COURT FILE NO.: 173/21
DATE: 2023-12-14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
JOSHUA ANANE, BORIS RUTI KALEKE, and GAEL KABANGA KALEKE
Accused
M. Hilliard, for the Crown
A. Prevost, counsel for Joshua Anane; N. Andrade, counsel for Boris Ruti Kaleke; and D. Rechtshaffen, counsel for Gael Kabanga Kaleke
HEARD: November 20, 21, 22, 23, 24, 28, 29 & 30, 2023 at London
HEENEY J.:
[1] The accused are being tried on a 14-count indictment, all of which are alleged to have occurred on April 16, 2020 at the City of London. Four of the counts, count 9, 11, 12 and 13, relate solely to Sebastiao Vieira (“Vieira”), who was severed from this indictment on November 20, 2023, and will proceed to trial on his own.
[2] The counts which affect all three accused are the following:
Counts 1 and 2 – possession of a restricted firearm without a license, contrary to s. 92(3) Criminal Code of Canada (“CCC”);
Count 3 and 4 – possession of a loaded restricted firearm, contrary to s. 95(2) CCC;
Count 5 – possession of Schedule 1 substance, Oxycodone, for the purpose of trafficking, contrary to s. 5(2) Controlled Drugs and Substances Act (“CDSA”);
Count 6 – possession of Schedule 1 substance, Hydromorphone, for the purpose of trafficking, contrary to s. 5(2) CDSA;
Count 7 - possession of Schedule 1 substance, Cocaine, for the purpose of trafficking, contrary to s. 5(2) CDSA;
Count 8 - possession of Schedule 1 substance, Fentanyl, for the purpose of trafficking, contrary to s. 5(2) CDSA.
[3] Count 10 is against the accused Gael Kabanga Kaleke (“Gael”) only, that he possessed a handgun while prohibited from doing so by reason of an order under s. 110 CCC, contrary to s. 117.01(3) CCC.
[4] Count 14 is against the accused Boris Ruti Kaleke (“Boris”) only, that he failed to comply with a condition of his release order, namely, not to possess or consume any unlawful drugs or substances, contrary to s. 145(5)(a) CCC.
[5] All accused have pleaded not guilty to all counts against them.
OVERVIEW:
[6] The police received information that drug trafficking was taking place out of 64 Grand Ave., Unit 1, London, and began surveillance on April 15, 2020. A search warrant was obtained, and executed on April 16, 2020 at 9:30 p.m. The locked door to the apartment was forced open, and the police found two males in the living room area sitting on lawn chairs, playing a video game on the television. They turned out to be the accused Joshua Anane (“Joshua”) and Gael. They were arrested and searched. Joshua had $820 in Canadian currency, in various denominations, in his right pants pocket, and two iPhones were found on two nearby lawn chairs.
[7] Meanwhile, the accused Boris had been seen leaving the building through the side door at 9:28 p.m., shortly after Vieira had exited through the same door. They both headed toward a Mazda vehicle parked in the lot across the street. That Mazda had been the subject of surveillance over the preceding two days. Boris got into the driver’s seat and Vieira into the passenger seat. Police blocked the vehicle from leaving, and both were arrested and searched. Boris had the car keys to the Mazda on his person, along with an I-phone and a Blackberry cell phone. Vieira had 3 x 5 mg. oxycodone pills in his backpack, which was the same drug and dosage as 611.5 pills later located in the kitchen cupboard in the apartment. The Mazda was searched and baking soda, measuring cups and plastic baggies were found. Baking soda can be used to manufacture crack cocaine.
[8] Back at Unit 1, a search was conducted. It is a small apartment, about 600 sq. ft. It can be accessed through an entry door located down a short flight of stairs from the side door along the east side of the building. This is the door the police used to execute the warrant. Upon entry to the apartment the police entered a long hallway, at the far end of which is the living room. There is another entry door to the apartment in the living room, which leads up a short set of stairs to the main level, which accesses the front door to the building.
[9] As the police walked down the hallway, they passed a bedroom on the left, then a bathroom and closet, and finally entered an open-concept kitchen and living room. The kitchen is to the left and is separated from the living room area to the right by a wall that extends part-way into the room.
[10] A black satchel was hanging from the knob of a pantry cupboard immediately to the left as one passes the kitchen. The black handle of a loaded Silver Ruger 357 Magnum was protruding from the satchel in plain sight. The business end of the weapon was wrapped in a white sock.
[11] On the counter in the kitchen, at the far end of the counter, furthest away from the hallway entry point, was a round, thin pressed cake of what turned out to be cocaine, on a piece of parchment paper. It was also in plain view, and weighed 92 g.
[12] On the counter, near the cocaine, was found an iPad, the potentially relevant contents of which will be discussed below.
[13] During the course of their search, the police located a large quantity of drugs, another handgun, and ammunition, which were not in plain view, and which are itemized in the Exhibit List marked as Ex. 3. The items of significance are as follows:
A black SIG Sauer handgun, unloaded, in a box in the kitchen pantry cupboard, along with a box of American Eagle ammunition;
Two bags of cocaine, totalling 506 g in a lower kitchen cupboard;
Multiple pill bottles, with no labels, in the kitchen cupboard above and to the left of the sink, containing 616.5 x 5 mg capsules of oxycodone, 56 x 3 mg capsules of hydromorphone, and 43 x 12 mg capsules of hydromorphone, along with two baggies of fentanyl containing 6 g and .82 g respectively;
A brown satchel found in the hallway closet, containing small packages of fentanyl, hydromorphone and cocaine in various amounts;
Two functioning digital weigh scales, ziplock baggies, a stainless-steel cup and baking soda in a kitchen cupboard above the sink;
A press, which the Crown’s expert DC Pouliot said is used to repress cocaine after a cutting agent is added, found within a box in the kitchen pantry cupboard; and,
A locked safe in the living room which, when pried open, was seen to contain a functioning Blue Infinity digital scale with cocaine residue on it, another silver digital scale, two empty handgun magazines, various rounds of ammunition, a Ziplock bag with an unknown amount of US currency, and a Ziplock bag with white powder inside and 2 scales.
[14] The total amount of controlled substances found was the following:
296 hydromorphone capsules in various doses;
617.5 oxycodone capsules;
607.25 g of cocaine;
9.75 g of fentanyl.
[15] The apartment itself was leased by the former co-accused Vieira. It was described by the expert DC Pouliot as a “stash house”, meaning a place whose primary function is to serve as a place used by traffickers to store, manufacture and package-controlled substances for later sale. He based this on a number of factors. First, it was sparsely furnished, with a single air mattress in the bedroom and no bedroom furniture, two lawn chairs for living room furniture (but none of the usual furniture such as a sofa), a television that sat on the floor, the lack of any cookware or dishes in the kitchen cupboards, and little or no food in the residence (although it appears that no-one looked in the refrigerator to see if it contained any). Second, the police found cutting agents used to dilute drugs such as cocaine in order to enhance profit, along with a press which can be used to repress the cocaine after cutting it to make it look like it originally appeared when it arrived from the country of origin. Third, scales and baggies were found, indicative of drugs being packaged for sale. Fourth, there were no signs that the apartment was being used as a place for the consumption of drugs, such as burnt tinfoil or syringes, leading him to conclude that its primary use was to facilitate trafficking.
[16] A significant portion of the Crown’s case consisted of footage from a security camera that viewed the outside threshold of the side door on the east side of the apartment building, along with a portion of the adjacent driveway and the parking lot to the north. It was the subject of a voir dire and was ruled by me to be admissible evidence. It covers the period April 12 to 16, 2020, and shows people coming and going from the building at various times, up to and including the police raid on April 16, when the accused Joshua and Gael were led, in custody, by the police from the building. Most of those people captured on the video are said by the Crown to be the three accused and Vieira, alone or in various combinations. The theory of the Crown is that the three accused and Vieira were involved in the joint enterprise of trafficking in controlled substances, and that their repeated comings and goings from the building were in furtherance of that enterprise.
[17] The central issue in this case is possession, i.e., knowledge and control of the drugs and weapons. All accused concede that if possession of the controlled substances is proven, there is no issue that such possession was for the purpose of trafficking.
RULING ON VOIR DIRE:
[18] Before considering the law and the Crown’s case against each accused, it is necessary to rule on another voir dire, which was argued just before closing submissions were heard and was to be ruled upon in my reasons for judgment.
[19] The Crown sought to introduce images extracted from an iPhone XR seized from Boris’ front pocket at the time of his arrest, as well as from the iPad found on the kitchen counter near the round cake of cocaine.
[20] It should be noted that some images and information from each device were conceded to be admissible, and I will not deal with them except as they become relevant in my discussion of the case against each accused, below. The contested images from the iPhone consisted of two photographs and a video of a large number of handguns, which landed, in some unknown way, on the device on March 29, 2020. I will deal with that first.
[21] There is no allegation that any of the guns seen in the photographs or video are the same as the two handguns found during execution of the search warrant. The use that the Crown proposes to make of this evidence is not to show a fascination or interest in firearms, because that would constitute inadmissible propensity evidence. Instead, the Crown seeks to use the images to show that the owner/user of the device had familiarity with guns, and therefore would recognize one when they saw one. This would presumably foreclose any argument by Boris and any user of the device that, while they may have seen the handgun that was in plain view, they didn’t know what it was.
[22] This would, on its face, be an absurd argument. Guns are seen on television and in movies every day by virtually everyone, and no-one could credibly argue that they don’t know what a handgun looks like. All defence counsel confirmed, on the record during argument, that they have no intention of making such an argument. In view of this, there would be no probative value to admitting the photographs since the argument it was intended to rebut will not be made. There is, however, an enormous amount of prejudicial impact, since collecting such images and videos does show an interest in such weapons and could lead to an inference that it is therefore much more likely that Boris was in possession of either or both of the handguns that were found. This is propensity evidence and is inadmissible.
[23] In view of the concession of counsel, the Crown withdrew their request for admission of the gun images and video.
[24] As to the iPad, there is again some content that is not in dispute and will be referred to where relevant. The contested items are slides 8, 9 and 10 on voir dire Ex. 1. According to the expert DC Pouliot, the first two show partial images of what appears to be a rectangular brick of cocaine, and the third appears to be a brick of cocaine that has been cut or broken in half. There is no evidence as to when these images came onto the device.
[25] Once again, the Crown does not allege that these images show any of the cocaine that was actually found in Unit 1. In addition, they do not seek to admit it to show an interest in cocaine, because that would be inadmissible propensity evidence. Instead, they seek to admit these images to show familiarity with cocaine on the part of whoever put the images on the device or viewed them, so as to rebut any argument that somebody seeing the cocaine found in Unit 1 would not know what it was. They need to do so because the “knowledge” component in possession requires not only that an accused knows of the presence of the drug, but also knows that it is a controlled substance.
[26] The problem with this submission is that it presupposes the very fact in issue. The chain of reasoning proceeds like this. There is evidence that a round cake of pressed cocaine was in plain view on the kitchen countertop. To establish that an accused person seeing that round cake would know it is cocaine, the Crown relies on images of bricks of cocaine on the iPad that the accused may have had access to, to establish his familiarity with the appearance of cocaine. However, in order for the images on the iPad to establish such familiarity, we have to assume that the accused would recognize that those images are cocaine. This presupposes the very fact that the Crown seeks to prove, i.e., that the accused would know cocaine when he sees it. While the expert DC Pouliot recognizes these images to be cocaine, there is no evidence that any of the accused would be able to do so.
[27] While that analysis is sufficient to decide the issue at hand, I should also note that there is no resemblance whatsoever between the round cake of cocaine found on the kitchen counter and the images of the bricks of cocaine on the iPad.
[28] Accordingly, I conclude that slides 8, 9 and 10 are not probative of the fact the Crown seeks to prove, and thus are essentially irrelevant. At the same time, they are highly prejudicial, for reasons which are obvious. Since the probative value is virtually nil, and the prejudicial impact is very high, this evidence is inadmissible.
THE LAW:
[29] I now move to a consideration of the elements that the Crown must prove beyond a reasonable doubt in order to prove possession.
[30] The leading case is R. v. Pham, 2005 44671 (ON CA), [2005] O.J. No. 5127, 77 O.R. (3d) 401 (C.A.), where the court gave the following guidance, at paras. 12 – 18:
The issue at trial was whether the appellant had knowledge and control of the cocaine found in the bathroom and therefore had it in her possession.
Section 2 of the Controlled Drugs and Substances Act, S.C. 1996 C.19 adopts the definition of “possession” in subsection 4(3) of the Criminal Code. That section reads:
4(3) For the purposes of this Act,
(a) a person has anything in possession when he has it in his personal possession or knowingly:
(i) has it in the actual possession or custody of another person or
(ii) has it in any place, whether or not that place belongs to or is occupied by him for the use or benefit of himself or another person; and
(b) where one of two or more persons with the knowledge and consent of the rest has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
Section 4(3) of the Code creates three types of possession:
(i) personal possession as outlined in section 4(3)(a);
(ii) constructive possession as set out in section 4(3)(a)(i) and section 4(3)(a)(ii); and
(iii) joint possession as defined in section 4(3)(b).
In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. See R. v. Caldwell(1972), 1972 ALTASCAD 33, 7 C.C.C. (2d) 285 (Alta. C.A.); R. v. Escoffery(1996), 1996 35 (ON CA), 28 O.R. (3d) 417 (Ont. C.A.) [hereinafter R. v. Grey].
In order to constitute joint possession pursuant to section 4(3)(b) of the Code there must be knowledge, consent, and a measure of control on the part of the person deemed to be in possession. See R. v. Terrence, 1983 51 (SCC), [1983] 1 S.C.R. 357 (S.C.C.); R. v. Williams(1998), 1998 2557 (ON CA), 40 O.R. (3d) 301 (Ont. C.A.); R. v. Barreau(1991), 1991 241 (BC CA), 19 W.A.C. 290 (B.C. C.A.) and R. v. Chambers(1985), 1985 169 (ON CA), 20 C.C.C. (3d) 440 (Ont. C.A.).
The element of knowledge is dealt with by Watt J. in the case of R. v. Sparling, [1988] O.J. No. 107 (Ont. H.C.) at p. 6:
There is no direct evidence of the applicant’s knowledge of the presence of narcotics in the residence. It is not essential that there be such evidence for as with any other issue of fact in a criminal proceeding, it may be established by circumstantial evidence. In combination, the finding of narcotics in plain view in the common areas of the residence, the presence of a scale in a bedroom apparently occupied by the applicant, and the applicants apparent occupation of the premises may serve to found an inference of the requisite knowledge.
The court of appeal decision in R. v. Sparling, [1988] O.J. No. 1877 (Ont. C.A.) upheld the above passage as being sufficient evidence to infer knowledge.
The onus is on the Crown to prove beyond a reasonable doubt, all of the essential elements of the offence of possession. This can be accomplished by direct evidence or may be inferred from circumstantial evidence. In Chambers, supra at 448, Martin J.A. noted that the court may draw “appropriate inferences from evidence that a prohibited drug is found in a room under the control of an accused and where there is also evidence from which an inference may properly be drawn that the accused was aware of the presence of the drug.”
[31] The Crown is relying almost entirely on circumstantial evidence in this case to prove the knowledge and control necessary to establish possession.
[32] In R. v. Anderson-Wilson, 2010 ONSC 489, at para. 74, Hill J. provided a useful list of factors that have been found to be relevant in weapons prosecutions, which this case is, at least in part:
Possession cases are fact-driven inquiries. Where proof is dependant upon circumstantial evidence, some facts will have more probative value than others. It is the cumulative effect of relevant circumstances which must be assessed in determining whether proof beyond a reasonable doubt exists. In weapons prosecutions, the following circumstances have been considered relevant:
(1) the physical proximity of the firearm to the accused
(2) the degree of visibility of the firearm: R. v. Marryshow, [2003] O.J. No. 1332 (Ont. S.C.J.) at para. 36-39 (aff'd [2008] O.J. No. 4790 (Ont. C.A.)); R. v. Green(1993), 5 M.V.R. (3d) 280 (Ont. C.A.), at 281 - a sawed-off rifle can be easily concealed because of its reduced length: R. v. Ferguson(1985), 1985 3534 (ON CA), 20 C.C.C. (3d) 256 (Ont. C.A.), at 262
(3) the degree of communal use of a vehicle containing the firearm: R. v. Freeman, [2006] O.J. No. 1021 (Ont. C.A.) at para. 6
(4) the size, nature and number of weapons in a particular space: R. v. Balasuntharam, [1999] O.J. No. 4861 (Ont. C.A.) at para. 2-4; R. v. Gagliardi, 2005 CarswellOnt 1543 (Ont. S.C.J.) at para. 43 (aff'd [2006] O.J. No. 72 (Ont. C.A.))
(5) the nature of other items located proximate to the firearm capable of providing context for inferences of knowledge and control: R. v. Coates(2003), 2003 36956 (ON CA), 176 C.C.C. (3d) 215 (Ont. C.A.) at para. 11, 14 (balaclava, binoculars, map, duct tape, etc.); R. v. Schero, [1969] O.J. No. 413 (Ont. C.A.) at para. 2 (face masks, gloves, handcuffs).
[33] The value of the drugs found has also been found to be a factor of significant weight in supporting an inference of knowledge and control, since the owner would not be expected to leave highly valuable contraband unguarded. In R. v. Fredericks, [1999] O.J. No. 5549 (C.A.), the court said this, at para. 3:
Having regard to the totality of the evidence, we are of the view that there was sufficient circumstantial evidence from which the trial judge could properly conclude that the appellant had both control and knowledge of the drugs found in the apartment. The trial judge gave particular weight to the fact that the appellant was brought to the apartment and allowed to remain there by Rudder, the tenant of the apartment who had knowledge and control over the large quantity of drugs and cash located in the apartment. The trial judge drew the inference that Rudder would not leave such a large quantity of drugs and cash unguarded (cocaine and marihuana having an aggregate street value of over $1,000,000 and approximately $60,000). The trial judge drew the further inference that, given the circumstances of the appellant's arrival at the apartment and his presence in the apartment with this quantity of the drugs and money, the appellant was entrusted to be the keeper of the drugs.
[34] DC Pouliot’s report establishes the value of the drugs found in the case at bar to be between $43,507 and $101,423, depending on the weights in which they were sold.
[35] However, it is not enough that circumstantial evidence supports an inference of guilt. Where the Crown’s case consists wholly or substantially of circumstantial evidence, the trier of fact must be satisfied beyond a reasonable doubt that the guilt of accused is the only reasonable inference to be drawn from the evidence as a whole.
[36] In R. v. Villaroman, 2016 SCC 33, at paras. 35 – 42, Cromwell J., speaking for the court, provides a very helpful discussion as to where the line is to be drawn between speculation and reasonable inferences. One particularly important point he makes in the passage below is that a reasonable inference pointing to innocence need not arise from proven facts, since that would shift the onus of proof to the defence:
At one time, it was said that in circumstantial cases, "conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts" see R. v. McIver, 1965 26 (ON CA), [1965] 2 O.R. 475 (Ont. C.A.) , at p. 479, aff'd without discussion of this point 1966 6 (SCC), [1966] S.C.R. 254 (S.C.C.). However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104 (S.C.C.) , at para. 58; see also R. v. Pryce, 2014 BCCA 370, 361 B.C.A.C. 301 (B.C. C.A.) , at para. 10; R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149 (Ont. C.A.), at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.
I agree with the respondent's position that a reasonable doubt, or theory alternative to guilt, is not rendered "speculative" by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus , a reasonable doubt "is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence": para. 30 (emphasis added). A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.
When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt: R. v. Comba, 1938 14 (ON CA), [1938] O.R. 200 (Ont. C.A.) , at pp. 205 and 211, per Middleton J.A., aff'd 1938 7 (SCC), [1938] S.C.R. 396 (S.C.C.) ; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11 (B.C. C.A.) , at para. 20; R. v. Mitchell, [2008] QCA 394 (S.C.C.) , at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused": R. v. Bagshaw(1971), 1971 13 (SCC), [1972] S.C.R. 2 (S.C.C.) , at p. 8. "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.
Of course, the line between a "plausible theory" and "speculation" is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.
I have found two particularly useful statements of this principle.
The first is from an old Australian case, Martin v. Osborne (1936), 55 C.L.R. 367, at p. 375:
In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. [Emphasis added.]
While this language is not appropriate for a jury instruction, I find the idea expressed in this passage — that to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative — a helpful way of describing the line between plausible theories and speculation.
The second is from R. v. Dipnarine, 2014 ABCA 328, 584 A.R. 138 (Alta. C.A.), at paras. 22 and 24-25. The court stated that "[c]ircumstantial evidence does not have to totally exclude other conceivable inferences"; that the trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible.
Where the line is to be drawn between speculation and reasonable inferences in a particular case cannot be described with greater clarity than it is in these passages.
[37] Each case must, of course, be assessed on its own facts. However, defence counsel rely on several cases which represent helpful illustrations of situations where alternative reasonable inferences have been found to exist.
[38] In R. v. Lights, 2020 ONCA 128, the accused appealed from a number of convictions, one of which was possession of marijuana and cocaine for the purpose of trafficking. Armed officers entered an apartment and encountered six men, one of whom was accused, who was sitting on a couch, and was seen to be attempting to hide a silver Ruger handgun under his buttocks or between his legs.
[39] The drugs in question were found in a black duffel bag, located in a common area of the apartment. The name of the accused was not on the lease for the apartment, but the presence of his clothing, documents and other personal items supported the conclusion that he was the principal occupant. Watt J.A., speaking for the court, concluded that it was reasonable to infer that he controlled access to the premises. Nevertheless, it could not be said that the only reasonable inference was that he was in possession of the duffel bag and its contents that were found in the apartment.
[40] Watt J.A. said the following, at para. 105:
But the black duffel bag and its contents was in a common area near the entrance to the apartment, equidistant to all six male occupants in possession of three fully-loaded handguns. The duffel bag was closed, its contents not visible from its exterior. There was no identification in, on, or attached to the bag. No forensic evidence linked the appellant to the bag. There was no evidence of its origins or how it came to be in its location. In these circumstances, we simply cannot say that the only reasonable inference from the evidence as a whole is that the appellant was in possession of the bag and its cache of contraband.
[41] In R. v. Grey, 1996 35 (ON CA), 28 O.R. (3d) 417, [1996] O.J. No. 1106 (C.A.), the police, acting on a search warrant, discovered crack cocaine hidden in a bedroom. The apartment was leased to the accused’s girlfriend, he stayed there several nights each week, and his clothing and other belongings were found in the bedroom where the drugs were hidden.
[42] At para. 16, Laskin J.A., speaking for the court, said the following:
There was no direct evidence of the appellant's knowledge. The Crown did not have a witness who could state affirmatively that the appellant knew about the cocaine. Also, the drugs seized by the police were not in plain view — they were hidden. To find that the appellant had possession of the cocaine, the trial judge had to infer knowledge from the circumstantial evidence. The case against the appellant rested principally on his regular occupancy of Ms. Escoffery's apartment and on the presence of his clothing and other belongings in the bedroom where the crack cocaine was found. The question is whether the trial judge was entitled to infer knowledge from this evidence. In my opinion, he was not.
[43] He commented at para. 22 on the extent to which knowledge can be inferred from the fact of occupancy of the premises where the drugs were found:
I would not prescribe a firm rule for inferring knowledge from occupancy: R. v. LePage (1995), 1995 123 (SCC), 36 C.R. (4th) 145 (S.C.C.). In the present case no other evidence connected the appellant to the drugs, there was no direct evidence of knowledge, the drugs were hidden, the apartment was rented by the co-accused, other persons frequented the apartment, and the appellant was not a permanent occupant. The circumstantial evidence does not therefore support a finding that the appellant had knowledge of the crack cocaine. Accordingly, the finding that the Crown had proved possession was unreasonable.
[44] In R. v. Savoury, [2008] O.J. No. 2896 (S.C.J.), Karakatsanis J., when she was a judge of this court, was dealing with a Crown application for certiorari arising out of the preliminary hearing judge’s discharge of certain drug and firearm charges. The accused was observed by police letting himself into the house in question with a key, entering the premises, and then leaving 4 minutes later. When he returned, he was arrested in the driveway, and found to have 5.63 g of cocaine in a plastic bag in his pocket, along with $845 in cash. Police searched the house and found cocaine in a shoebox in a bedroom, which also contained a shoebox with documents in the name of the accused. Quantities of cocaine and crack cocaine were also found in the laundry room and kitchen cupboards, and firearms and ammunition were found hidden in other rooms of the house.
[45] The accused was committed for trial relating to the drugs and money found on him at the time of arrest, as well as the drugs found in the bedroom containing his personal papers. However, he was discharged for the charges relating to the drugs and guns found elsewhere in the house.
[46] Karakatsanis J. dismissed the Crown’s application. She said the following, at para. 18:
It seems to me that it was open to the preliminary hearing judge to find the evidence of a key and of papers in one bedroom was insufficient to reasonably support the inference that Savoury had knowledge of the drugs and firearms hidden in the rest of the home in the circumstances of this case, even in light of some evidence that Savoury was himself a drug dealer. To find that he lived there or that he was in a joint illegal enterprise with the owner of the house or that he had knowledge of the hidden drugs and firearms would, in my view, require a speculative leap from the inference of Savoury's access and occupancy and his personal possession of drugs for drug dealing.
[47] Finally, in a case from London, R. v. Lloyd and Matthews, 2018 ONSC 1957, the two accused were boyfriend and girlfriend, and rented a room in the basement of a house. They installed a lock on the bedroom door, and each had a key to that lock. They were seen accessing the basement, together and separately, in the days leading up to execution of the search warrant.
[48] When the warrant was executed, a Ziplock bag containing 59 g of crack cocaine was found in plain view on a small fridge located beside their bed. A bag of marijuana was found on a small shelf beside the bed. A digital scale and $2,200 in Canadian currency were also found. Documents relating to both accused were found in the bedroom.
[49] The trial judge, Mitchell J., was satisfied beyond a reasonable doubt that they had some measure of control over the bedroom and its contents. The remaining issue was knowledge.
[50] Mitchell J. noted that in order to find that either accused had joint or constructive possession, it was necessary for the Crown to prove that one or the other accused individually had possession of the drugs. There was no direct evidence that either accused knew what crack cocaine or marijuana looked like. There was also no evidence establishing when the drugs were placed in their respective locations in the room, or which of the two accused last had access to the room.
[51] Mitchell J. concluded that the case created “the perfect conundrum” for the Crown. Two equally reasonable inferences could be drawn from the totality of the circumstantial evidence. The first was that the drugs were placed on the fridge and shelf by Lloyd without the knowledge of Mathews. The second equally reasonable inference was that they were placed in those locations by Matthews without the knowledge of Lloyd. Accordingly, she held that the Crown had failed to meet its burden of proving “knowledge” on the part of either accused, and an acquittal was entered.
[52] Defence counsel relied on other cases as well, which I do not propose to review, in which, arguably, a stronger connection existed between the accused and the premises in which drugs were found than in the case at bar, yet the court concluded that the guilt of the accused was not the only reasonable inference available on the evidence: R. v. Toy, [2012] O.J. No 6052 (S.C.J.); R. v. Thiessen and Thiessen, 2017 ONSC 2337; R. v. McConnell and Carmichael, 2016 ONSC 945; and, R. v. Cao, 2020 ONSC 1554.
THE EVIDENCE:
[53] The Crown Attorney, Ms. Hilliard, prepared a Powerpoint presentation that she used in her closing address, which very helpfully pulled together the evidence, including the extensive video surveillance evidence, that the Crown was relying upon against each individual accused. It clearly took a great deal of time and effort to do so, and she is to be commended for those efforts, because it has been of great assistance to the court. My summaries of the evidence, below, include the points made in the Crown’s presentation, but also include other relevant evidence that was not in the presentation, but which was noted by me during the course of the trial.
[54] The first grouping of evidence relates to the apartment itself, in which two of the accused were found when the search warrant was executed, and which was, the Crown argues, the place where all three were seen coming to and going from on many occasions on the surveillance video during the four days leading up to execution of the search warrant.
[55] The theory of the Crown is that this was a “stash house”, which was used to facilitate the joint enterprise of trafficking in controlled substances that was being carried out by the three accused and Vieira. That evidence included the following:
The apartment was sparsely furnished, with lawn chairs in the living room, a single air mattress in the bedroom, with none of the usual bedroom or living room furniture;
The kitchen cupboards were loaded with pills and Ziplock bags, but empty of dishes, pots and pans and food;
Items were found that are commonly used for “cutting” cocaine and repressing it, including a cutting agent, a cocaine press and acetone;
Packaging, a food saver, and several digital scales were found in several locations;
Four different types of controlled substances were found in various locations around the apartment, as detailed above;
There was no evidence that the apartment was being used simply as a place to consume drugs, such as syringes, burned tinfoil, etc.;
It was the expert opinion of DC Pouliot that this was a stash house, based on all of the above.
[56] The evidence against the accused Joshua includes the following:
He was in the apartment when the search warrant was executed;
The grip of a firearm was in plain view in a satchel hanging on the handle of the pantry cupboard in the kitchen, a short distance from the living room in which he was found by the police;
The cake of cocaine was found in plain view on the countertop in the kitchen, also a short distance from where he was found;
A Service Canada Medical Certificate dated October 22, 2019, bearing his name, was found in a kitchen cupboard;
$820 in Canadian currency was found in his right pants pocket by Officer Quinn;
His banking information was found on the iPad found on the kitchen counter;
He was observed on the video surveillance accessing the unit prior to the warrant being executed.
[57] As to the latter point, the first clip in terms of time, #92, was dated April 15, 2020, and was date-stamped at 00:32:43. We know from other evidence that the date-stamp was 43 minutes slow, so the actual time was about 1:15 a.m., but nothing turns on that. In subsequent references to the video, I will just note the date-stamp, and will not make the 43-minute adjustment. A partial view of the left side of the face of the person alleged to be Joshua can be seen, and while it resembles the mug shot of Joshua it is difficult to make a positive identification.
[58] The second clip, #100, was dated April 15, 2020, and was date-stamped at 16:41:33. It was daylight, so the man’s facial features are more readily seen than in the nightime clips. Comparing the image to his mug shot, I am satisfied that it is Joshua on this clip.
[59] The third, #102, was also from April 15, 2020, and was date-stamped at 20:57:40. It is difficult to see the face of the person in the image alleged to be Joshua because it is partially obscured by a hoody. However, he is wearing a light-coloured sweatsuit and dark vest, which appear to be the same clothing worn by Joshua in clip #100. In addition, he was wearing a backpack with a distinctive Michael Jordon logo on the back, which is seen in later video, and was found on the floor at the entrance to the living room where Joshua was located, by the police during execution of the warrant.
[60] The final clip, #110, dated April 16, 2020 and date-stamped at 19:34:19, shows an individual wearing a dark nylon coat with a hood. The hood obscures his facial features. However, this appears to be the same coat worn by Joshua in clip #115, when he was being escorted out of the building by the police.
[61] The evidence against Gael includes the following:
The first three points in the summary of the evidence against Joshua apply to Gael as well: his presence in the apartment when the search warrant was executed; the grip of the gun protruding from the satchel in plain view; and the cake of cocaine in plain view on the kitchen counter;
There was data on the iPad found near the cocaine on the kitchen counter, that linked Gael to the iPad, namely an Apple ID in the name of “kabangakaleke@gmail.com”;
His personal identification was found in the apartment, in a fanny pack bearing a blue Nike “swoosh” symbol and the words “Flight Air”, which is also seen being worn or carried in various video clips, as discussed below;
A person, which the Crown alleges to be Gael, was seen on the surveillance video coming and going at 64 Grand Ave. a total of 13 times between April 12 and 16, 2020;
DC Knelsen saw a male he believed to be Gael exit 64 Grand Ave. on April 15, 2020 at 20:27;
DC Pike saw a male he believed to be Gael leave 64 Grand Ave. on April 15, 2020 at 20:28 with two other males and get into the Mazda (which featured in this investigation and was the vehicle in which Boris and Vieira were ultimately arrested).
[62] With respect to the latter two points, I can say at this point that this evidence was not particularly helpful. It lacked any details as to how far away the officers were when they made their observations, whether they were using any aids such as binoculars, what the lighting conditions were, and so on. Without such evidence, it is impossible to independently assess the reliability of this evidence, and we are left with simply having to take the officer’s word for it.
[63] The video surveillance, on the other hand, can be assessed for reliability since the court is in a position to view it and arrive at its own conclusions as to what it depicts. Indeed, on one occasion it was apparent that Officer Knelson identified an individual on the video as being Gael when the Crown was of the view that it was Anane. I need not rely on the opinion of a witness nor the Crown as to who is depicted on the video, when I can see it myself, compare it to the mug shots filed in evidence, and come to my own conclusions: see R. v. Nikolovski, 1996 158 (SCC), [1996] 3 S.C.R. 1197.
[64] As to the video surveillance, the Crown started with clip #115, the video of Gael being escorted from the building by the police on April 16. This is admitted to be Gael. He is wearing a black hooded coat with distinctive white stripes down both arms with groupings of 3 black strips running diagonally across them. He is also wearing black jogging pants with a white stripe down the sides of them.
[65] This can be connected to clip #77, dated April 14, 2020, with a time stamp of 14:30:38. The facial features are not visible, but the individual seen entering the building is wearing what appears to be the identical coat.
[66] The next video, taken the same day with a date-stamp of 17:58:01, shows an individual wearing a different coat, but having a fanny pack over his shoulder, which appears to be the same fanny pack found near the entrance to the living room at the time of Gael’s arrest, and which contained his identification.
[67] Clip #80, taken April 14, 2020 with a date-stamp of 16:50:22, shows an individual exiting wearing the same distinctive coat with the white stripes. The same can be said for clip #83, but in addition that person is carrying the fanny pack connected to Gael.
[68] Clip #86, also taken April 14, 2020 with a date-stamp of 18:47:22, again shows the individual wearing the distinctive black coat with white stripes, but this time his face is more visible, and it resembles the mug shot of Gael filed in evidence.
[69] Clip #87, later the same day at 19:13:44, shows the individual approaching and entering the building wearing the same distinctive coat, but again his facial features are quite visible, and appear to match the mug shot of Gael.
[70] Clip #88, later the same day at 19:47:59 shows both the facial features and distinctive coat of Gael as he exits the building.
[71] Clip #94, dated April 15, 2020 at 05:48:25, shows an individual exiting the building, wearing a different coat but with what appears to be the same jogging pants that Gael was wearing when arrested.
[72] Clip #97, taken the same date at 14:41:36, shows an individual wearing a coat with a fur trimmed hood, who resembles Gael and is carrying the fanny pack connected to Gael.
[73] Clip #99, taken the same date and date-stamped 16:28:21, shows an individual wearing the same fur trimmed coat and carrying the same fanny pack, enter the building with two others, one of whom is wearing the Michael Jordon backpack connected to Joshua.
[74] Clip #101, taken the same date and date-stamped at 19:44:41, shows the individual wearing the fur trimmed coat and the jogging pants with the white stripe down the sides exiting the building following two others. The first man in the group is wearing the light-coloured track suit and carrying the Michael Jordan backpack associated with Joshua.
[75] Clip #102, taken at 20:57:40, shows the same three individuals returning to the building.
[76] The evidence against Boris includes the following:
He was seen by the police leaving 64 Grand Ave. on April 16, 2020 at 21:28, and was arrested shortly thereafter in the driver’s seat of the Mazda in the parking lot across the street, along with Vieira, who was in the passenger’s seat;
He had the keys to the Mazda on his person;
The Mazda contained plastic baggies, measuring cups and baking soda, which can be used to make crack cocaine;
Vieira had 3 x 5 TEC Oxycodone pills on his person, which is the same drug and dosage as the 611.5 Oxycodone pills located in the kitchen cupboard in Unit 1;
The cocaine and the grip of a handgun were in plain view in the apartment;
A cellphone was seized from his front right pants pocket. Extraction revealed that it has an Apple ID name of rkaleke10@gmail.com and ruti.kaleke19@gmail.com, as well as two “selfie” videos of a person appearing to be Boris;
On the cellphone was a photo of someone holding a bottle above the corner of a kitchen counter near a window. The location appears identical to the kitchen counter and window depicted in the photograph of the cake of cocaine found in the same location in Unit 1 when the warrant was executed;
Video surveillance shows him coming and going from the building on multiple occasions in the four days leading up to April 16. In particular, he is seen to be carrying a distinctive box, which was found by the police in Unit 1, and contained a cocaine press.
[77] It is necessary, once again, to review the surveillance video clips, this time relating to Boris.
[78] The first is clip #59, taken April 12, 2020 at 01:02:37. It shows an individual entering the building, who is not wearing a hoodie or anything else to obscure his facial features. It is clearly Boris in the video, when compared to his mug shot. He is followed by a man wearing a coat with a distinctive camouflage hood, whose face is also visible, and can be readily identified as Vieira, from his mug shot.
[79] Clip 60 was taken on the same date, at 04:44:36, and the individual is seen to be wearing the same grey hoodie and dark jacket as seen in the previous clip, but I do not find anything distinctive about that clothing.
[80] Clip #63, however, also dated April 12, 2020, date-stamped at 20:44:21, shows a clear view of Boris’s face, and he is wearing a distinctive sweatshirt with a “Champion” logo on it. The same can be said for Clip #64, taken a few minutes later at 20:59:32.
[81] Clip #65, taken later the same day at 21:09:20, does not provide a clear view of the face, but the individual exiting the building is wearing the same distinctive sweatshirt.
[82] Clip #66, taken the same day at 21:11:12 again shows both a clear view of Boris’s face, as well as the distinctive sweatshirt.
[83] Clip #68, taken the same day at 21:55:15, shows Boris again leaving the building wearing the distinctive Champion sweatshirt, followed a few seconds later by Vieira wearing the jacket with the “camo” hood.
[84] At Clip #69, Boris can be seen re-entering the building at 22:23:37.
[85] In Clip #71, taken April 13, 2020 at 04:38:50, one of the three individuals seen exiting the building is wearing the Champion sweatshirt, although his facial features can’t be seen.
[86] In Clip #78, taken April 14, 2020 at 16:35:55, Boris can clearly be identified entering the building, wearing the Champion sweatshirt. The same sweatshirt is visible shortly afterward, in Clip #81 at 17:05:10, as a male, whose facial features are not visible, exits the building following an unidentified male.
[87] The next clip shows the two males re-entering the building at 17:48:42, although the sweatshirt is not visible on the man alleged to be Boris.
[88] Clip #90 shows Vieira leaving at 21:55:48, following another male, and followed by someone alleged to be Boris. I am unable, however, to identify him as such.
[89] In Clip #91, however, taken at 22:35:10, Boris’s face and Champion sweatshirt are clearly identifiable.
[90] Clip #96 is potentially important. It was taken on April 15, 2020 at 14:25:20. It shows a blue Mazda pull up and stop beside the door. Shortly afterward it pulls away and an individual comes into view, approaching the door, having apparently been just dropped off. He is wearing a light grey sweatshirt with a different, and smaller, Champion logo over the left breast. His face is not visible. He enters the side door using a key because it is apparently locked. The Mazda returns and waits by the door. At 14:27:01 the male wearing the Champion sweatshirt, whose face is visible this time and matches Boris’s mug shot, exits the door carrying a box with a distinctive vertical white label with a red arrow on the side. He enters the vehicle, and it leaves. This box resembles the box later found in Unit 1 by the police, which contained the cocaine press.
[91] Clip #97 was taken later the same day, at 14:41:11. It shows Gael, wearing the coat with the fur trimmed hood and carrying the fanny pack, coming to the door with the individual wearing the same light grey Champion sweatshirt, already connected to Boris. Boris again uses a key to let them both in.
[92] Clip #98, taken the same day, shows Boris, wearing the light grey Champion sweatshirt, leaving at 15:09:47, with Gael wearing the coat with the fur trimmed hood.
[93] Clip #99, taken the same day at 16:27:40, shows Boris and Gael returning to the building. Boris once again uses a key to gain entry.
[94] Clip #101, still later at 19:44:29, shows Boris and Gael leaving the building, with an individual wearing the Michael Jordan backpack associated with Joshua.
[95] Clip #102, still later at 20:57:25, shows the same three men returning to the building. Boris’s face is clearly visible in this clip.
[96] Clip #103, still later at 22:01:46, shows Vieira and Boris leaving the building. Both are easily identified from their mug shots. Boris is still wearing the same clothing.
[97] Clip #104, still later at 22:37:05, shows Boris, clearly identifiable, returning.
[98] Clip #106, taken April 16, 2020 at 13:56:33, is of some significance. Vieira peeks out the door and looks around, apparently looking for something. A few seconds later, Boris appears, walking from the parking lot, carrying a box that apparently has some weight to it. It appears to be the same box with the white label with red arrows that he was seen leaving with in the Mazda the previous day, which was later found in the kitchen pantry cupboard in Unit 1 by the police and contained a cocaine press.
[99] The cocaine press is shown in a photograph found in Ex. 3, slide 27. The container that forms the upper part of the press is rectangular. There does not, therefore, appear to be a connection between this particular device, and the round cake of pressed cocaine that was found on the kitchen counter.
[100] That completes my review of the evidence against each accused.
ANALYSIS:
[101] I have no difficulty in concluding that the circumstantial evidence reviewed above is capable of supporting the inference that all three accused, along with Vieira, were engaged in an enterprise whereby Unit 1 was used as a stash house for the purpose of storing, processing, weighing, and packaging controlled substances for the purpose of trafficking them. I say this because all of the evidence is entirely consistent with what one would expect to see with such an enterprise.
[102] First, the unit itself was clearly not set up to be a place where someone would live in as a full-time residence. The lack of furniture, dishes, pots and pans and food, make that entirely obvious. Furthermore, the apartment was a virtual drug store of controlled substances, containing four different types of illegal drugs worth many tens of thousands of dollars. The many sets of scales and baggies are consistent with drugs being weighed and packaged for sale. The cocaine press is consistent with cutting cocaine to enhance profit for later sale, and cutting agents were found.
[103] Guns are commonly associated with drug trafficking, particularly at higher levels involving many thousands of dollars worth of product. It is a dangerous business, and those involved often arm themselves for protection. Thus, finding two handguns, along with various magazines and ammunition, is entirely consistent with the conclusion that the Crown seeks to prove.
[104] As a hub for trafficking in controlled substances, one would expect, as a matter of common sense, a great deal of coming and going from the residence, and the video evidence, as summarized above, is entirely consistent with that. All three accused are seen on the surveillance video, on many occasions over the four days preceding execution of the warrant, alone or in various combinations, and at all hours of the day and night, coming and going from the building.
[105] The accused Joshua and Gael were found in the unit when the search warrant was executed, with the handle of the handgun and a cake of cocaine in plain sight. While most of the drugs found were not in plain sight, they were not particularly well hidden either. One had to simply look into the kitchen cupboard to find a vast array of pills, or in the cupboard below the sink to find more than half of a kilogram of cocaine. Given the value of these drugs, one could draw the inference that these two accused were present in the apartment to guard this valuable contraband. That was the inference drawn in Fredericks, above. However, it should be noted that the drugs in Fredericks had a value of over $1 million, whereas the drugs here were worth between $43,507 and $101,423. This leads to a much weaker inference, if any.
[106] However, it is not sufficient to prove the Crown’s case to show only that the circumstantial evidence is consistent with the reasonable inference that the accused were participating in this illegal enterprise, and therefore had knowledge and control over the drugs and guns that were found. The Crown must also show that guilt is the only reasonable inference that can be drawn from the circumstantial evidence, when considered in light of all of the evidence. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.
[107] It is, therefore, necessary to examine whether any inferences, other than guilt, might reasonably be drawn from the circumstantial evidence.
[108] I will deal first with evidence as to the connection, if any, of the accused to Unit 1 where the drugs and guns were found. A connection to, and evidence of a degree of control over, the premises where drugs are found is an important element in proving knowledge and control.
[109] To begin with, the property was leased to Vieira. None of the three accused had any legal control over that apartment. The closest the evidence comes to showing some degree of control is the video that shows Boris apparently using a key to access the building on two occasions. Note that this does not mean that he had a key to access Unit 1, but only the building itself. There is no evidence that any of them lived there, or stayed overnight there, even temporarily. Indeed, there was no evidence at all as to where the three accused lived.
[110] The Crown’s case relies heavily on the surveillance video. It shows a great deal of coming and going by all three accused in varying degrees but, significantly, it shows them coming and going from the building, not from Unit 1.
[111] When they are seen to enter through the side door, one can see them turn to the left and descend. It is easy to infer that they were descending to the bottom floor, where Unit 1 is located. However, there are at least 4 units on that level. It is a reasonable inference that they could have been heading to one of the units other than Unit 1. Indeed, given that we have no evidence as to where any of the accused resided, one could reasonably infer that one or more of them lived in one of the other units, or were “couch surfing” there with friends, and were heading there when they entered the building.
[112] It is important to recall that reasonable inferences need not be based upon proven facts, since that would shift the onus of proof onto the accused. Villaroman makes it clear that a theory, alternative to guilt, is not rendered "speculative" by the mere fact that it arises from a lack of evidence. The inference that the accused might have been heading to one of the other units is something that could easily have been foreclosed had the police simply interviewed the other tenants on that same level. If it turned out that none of the accused lived in, or spent any time at, any of the other units, that inference would no longer have been available. As it is, it remains available since we simply do not know. Reasonable doubt can, of course, result from the evidence, or from the lack of evidence.
[113] Another area where there is a distinct lack of evidence relates to the activities of the accused when they left the building. Typically, in a case such as this, there is evidence that an accused was kept under surveillance by the police for a period of time prior to execution of the search warrant, often for the purpose of gathering the evidence necessary to obtain the warrant. He would be followed from place to place, and observations would be made consistent with drug transactions being made, such as this: the vehicle stops in a parking lot, a third party enters the vehicle, there is some activity consistent with an exchange being made, and the party departs a mere moment or two after arrival. When this pattern is repeated over and over, a strong circumstantial case emerges that the person is engaged in trafficking. When this evidence is combined with evidence that this accused has frequent access to a place where a great quantity of drugs is stored, and paraphernalia of trafficking is found, a strong inference emerges that he is part of a criminal enterprise engaged in trafficking from those premises.
[114] Here, some police surveillance was done, and the blue Mazda vehicle was followed from place to place, but no evidence emerged that a trafficking enterprise was underway. The reasonable inference that is available here is that when the accused left the building, either by car or on foot, they were doing nothing illegal.
[115] These weaknesses in the Crown’s case apply to all three accused. I will now consider issues specific to the cases against each accused.
[116] Dealing first with Joshua and Gael, they were found in Unit 1 when the search took place. This is, in fact, the only time that they can be proven to have been in the apartment, as opposed to being in the building.
[117] They were playing video games. No drugs were found on them when they were searched. There was a cake of cocaine found in plain view on the kitchen counter, and the butt of a handgun in plain view in the satchel hanging from the handle of the kitchen pantry cupboard. From their vantage point on the lawn chairs in the living room, the partial wall that separated the kitchen from the living room might have obscured their view of the corner of the counter where the cocaine was located, but not their view of the satchel. But common sense and human experience tells us that they would not likely have remained absolutely stationary in that spot for the entire time they were in the apartment. They would have walked by the kitchen on their way to the living room, if they entered the apartment by way of the side door that they were seen to use on the video. If they used the bathroom, they would have had to walk by the kitchen on their way from the living room. I accept the evidence of Officer Hay that “you couldn’t miss it” as you passed by the kitchen. He was referring to both the handgun and the cocaine.
[118] As to the cocaine, it was pressed into a round, relatively thin shape. Sgt. Younan, who knows what cocaine looks like from his experience on the guns and drugs unit, said he had not seen cocaine in this form very often. There is no evidence that either Joshua or Gael would have known that this was cocaine on the counter. As I have already noted, knowledge requires proof not only that the accused knows of the presence of the substance, but also that it is a controlled substance. In addition, there is nothing to support an inference that this cocaine belonged to them or was otherwise connected to them such that they had control over it.
[119] As to the handgun, it was suggested by defence counsel that the black handle is somewhat hard to see in the photographs, as against the background of the black satchel that it was found in. I have difficulty accepting that and find that both Joshua and Gael would have been able to see it from their vantage point, or otherwise as they moved around the apartment, and would have known what it is.
[120] While that would satisfy the knowledge component, knowing that the gun is there and that it is a gun does not amount to possession. It must, in addition, be proven that they had some measure of control over the gun. They had no control over the premises, which might have helped to support an inference that they had control over the contents of the premises. There was nothing found in the satchel, such as documentation or identification with their name on it, to show any connection between these two accused and the handgun. No forensic evidence linked these accused to the satchel, or to the gun inside. There was no evidence of where it came from or how it got there.
[121] This situation is very analogous to Lights, above, except that in that case the accused was the principal resident of the apartment where the satchel containing the drugs was found, which is a stronger case for the Crown that in the case at bar. In both cases, though, there is nothing to connect the accused to the satchel or its contents from which one could infer control.
[122] While one available, but weak, inference is that Joshua and Gael were left in charge of the apartment, and on “guard duty” so to speak, and therefore were left in control of the drugs and the gun, there is an equally reasonable inference that can be drawn: that they knew the gun was there, and may have known that what was on the counter was cocaine or some other controlled substance, but those things did not belong to them, they were not their business, and they had no control over them. Thus, they did not, in law, have possession of them.
[123] As to the SIG Sauer handgun, which was found in a box in the kitchen pantry cupboard, and the controlled substances that were not in plain view, there is no direct evidence that Joshua or Gael knew that they were in the apartment, or that they had any control over them. There is no circumstantial evidence either, supporting an inference of knowledge and control on the part of these accused, beyond their mere presence in the apartment. On the authority of Grey, that is not sufficient.
[124] As to the case against Boris, it is weaker than that against Joshua and Gael. He was not found in the apartment, with cocaine and the butt of a handgun in plain view. I have already addressed the fact that evidence showing that he was entering the building does not necessarily lead to the inference that he was thereby entering Unit 1. The only evidence that he was ever in the apartment is the photograph of someone holding a bottle at the corner of the kitchen counter which was found on his cellphone. However, the cellphone extraction report indicates that this image landed on his phone on or before March 23, 2020. It therefore is of no assistance in proving that he was in the apartment on April 16, 2020, when the guns and drugs were present.
[125] His contact with the box which was ultimately found in the apartment, and which contained a cocaine press, is highly suspicious. However, he is not charged with possession of a cocaine press. Circumstantial evidence that he transported one to the apartment does not, as a matter of logic, support an inference of knowledge and control over the guns and drugs found in the apartment.
[126] In summary, considering the circumstantial evidence in light of all of the evidence, there is no question that a trafficking operation was being undertaken at this residence. The quantity of drugs, guns and paraphernalia of trafficking make that obvious. The question is, has the Crown proven beyond a reasonable doubt that any of the accused were involved in it, and were therefore in joint or constructive possession of the guns and drugs found? The response may lead to a second question: if they were not, who was?
[127] The question as to whether the Crown has proven their case is answered by determining whether the circumstantial evidence supports any reasonable inference other than guilt. In undertaking this exercise, one must confront the blindingly obvious alternate inference: that the guilty party is, instead, their former co-accused Vieira. It was his apartment, so he had control of the premises. Thus, we do not need additional evidence as to what apartment he was coming from and going to when he was seen on the surveillance video, as we do with the three accused. He had just left his apartment before he was arrested, which was two minutes before the police entered the apartment, and thus one can infer that the cocaine and the butt of the handgun were in plain view when he left.
[128] Significantly, he was found to have 3 x 5 mg TEC Oxycodone pills in his backpack at the time of his arrest, which was the same drug, type, and dosage as 611.5 pills located in the kitchen cabinet. This provides a direct connection between him and the controlled substances found in the kitchen cupboards. He was the only one who had drugs on him when arrested.
[129] I conclude that the alternate reasonable inference that may be drawn is that the drugs and guns belonged to the person in whose apartment they were found, Vieira, and were there with his knowledge and under his exclusive control.
[130] I hasten to add that I am not making any finding of culpability with respect to Vieira. He is not on trial before me, and he has not yet had a chance to defend himself. His guilt or innocence will be determined by another judge at another time. I simply say that a reasonable inference may be drawn from the circumstantial evidence that is inconsistent with the guilt of the three accused who are on trial before me.
[131] In view of the existence of that alternate reasonable inference, the Crown has not proven their case beyond a reasonable doubt. Accordingly, all accused must be found not guilty on counts 1 through 8. The accused Gael is also found not guilty on count 10, and the accused Boris is found not guilty on count 14.
T. A. Heeney J.
Released: December 14, 2023
COURT FILE NO.: 173/21
DATE: 2023-12-14
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JOSHUA ANANE, BORIS RUTI KALEKE, and GAEL KABANGA KALEKE
REASONS FOR JUDGMENT
Heeney J.
Released: December 14, 2023