COURT FILE NO.: CR-21-90000529
DATE: 20230206
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
SHAWN BROWN
Defendant
I. Erdei, for the Crown
E. Willischick, for the Defendant
HEARD: November, 14, 15, 17, 2022
REASONS FOR JUDGMENT
J. R. Presser J.
[1] Police found 22 grams of crystal methamphetamine (“crystal meth”), 47.2 grams of GHB, and a digital scale in a small backpack on the backseat of the taxi where Shawn Brown had been sitting when he was arrested on October 20, 2020. Another man, Patrick Cuch, was seated in the back of the taxi with Mr. Brown. Mr. Cuch was also arrested from the taxi on October 20, 2020.
[2] A baggie containing a further 2.41 grams of crystal meth, and a wallet containing $690 in cash were located in Mr. Brown’s jacket when he was searched at the police station following his arrest.
[3] Police executed a search warrant at 224 Queen Street East, Unit 3 later the same day. In a locked bedroom at that address, police found: a Ziploc baggie containing 110.6 grams of crystal meth; a Ziploc baggie containing 25.72 grams of crystal meth; digital scales; and various pieces of government identification in the names of six different people. The prosecution alleges that Mr. Brown lived at this address, that the locked bedroom was his, and that he was on a probation order requiring him to keep the peace and be of good behaviour at the time.
[4] As a result, Mr. Brown is charged on a 16-count Indictment with a number of offences relating to possession of crystal meth for the purpose of trafficking, possession of government identity documents, possession of proceeds of crime, and breach of probation. He elected to be tried in this court without a jury.
[5] Mr. Brown lived with a roommate, William Reynolds, at the time of the search. Both Mr. Brown and Mr. Reynolds were targets of the investigation and search. Mr. Reynolds was in one of the bedrooms with the door open, lying on the bed watching TV when police entered 224 Queen Street East, Unit 3 to execute the warrant. Police found 4.88 grams of crystal meth in the room Mr. Reynolds was found in, as well as a digital scale and white powder. Mr. Reynolds, who is now unfortunately deceased, was arrested at the scene on October 20, 2020.
[6] Mr. Brown admits that the items were found at 224 Queen Street East, Unit 3 and in the small backpack. He also admits that the quantity of crystal meth found is sufficient to establish possession for the purpose of trafficking. However, he maintains that the Crown has not proven beyond a reasonable doubt that he had knowledge and control of the drugs or government identity documents found in the locked bedroom, or that he had knowledge and control of the drugs found in the small backpack. He submits that it is reasonably plausible that the drugs in the backpack belonged to Mr. Cuch; and that the drugs and the government IDs in the locked bedroom belonged to Mr. Reynolds or other people.
[7] The central issue for my determination is whether the Crown has proven beyond a reasonable doubt that Mr. Brown had knowledge and control of the drugs and government identity documents. To make this determination, I must consider whether the Crown’s circumstantial evidence is consistent with Mr. Brown having knowledge and control of the items at issue and with no other reasonably plausible inference other than guilt.
I. EVIDENCE
A. Surveillance Before the Arrest and Search
[8] On October 16, 2020, Detective Constables (“DC”s) Ito and Kawaya attended a briefing in relation to this drug investigation. They were detailed to conduct surveillance at the target address of 224 Queen Street East, Unit 3, in Toronto, from where it was suspected that two individuals were dealing drugs. The first individual was Shawn Brown, who had a date of birth of September 6, 1983, and was described as a white male with brown hair, brown eyes, 5’7”, and approximately 191 lbs. The other individual was William Reynolds, who had a date of birth of April 15, 1977. Mr. Reynolds was described as a white male with blond hair, 5’11”, 200 lbs. The officers received a ‘person of interest’ package which contained photographs of Mr. Brown and Mr. Reynolds.
[9] DCs Ito and Kawaya attended at 224 Queen Street East and surveilled the building from the street. DC Ito observed Mr. Brown exit the address twice and engage in what he believed to be three separate hand-to-hand drug transactions. DC Kawaya twice saw the lights in a window at the target address facing Queen Street go on for a period and then off. Both times, the lights went off shortly before Mr. Brown exited to the street to perform what DC Ito thought were hand-to-hand drug transactions. DC Kawaya observed the lights go back on shortly after Mr. Brown returned to 224 Queen Street East each time. What follows is a more detailed summary of DC Ito’s and DC Kawaya’s evidence in relation to these observations.
[10] The officers arrived at the address at approximately 11:40 p.m. When they arrived, DC Kawaya observed that the lights in the window of the target apartment were off. The light went on almost immediately, and remained on until 11:55 p.m. when it was extinguished. At 11:57 p.m., DC Kawaya observed an unknown male exiting from 224 Queen Street East to the street. DC Kawaya was not able to identify the male, but communicated his description over the radio to DC Ito as follows: white male, medium build, wearing a red, white, and blue baseball hat, blue jeans, a grey hoodie, and a greyish-blue jacket with white sleeves. DC Kawaya observed the male put a bag of garbage to the curb.
[11] DC Ito then observed a male matching the description given by DC Kawaya walking along Queen Street to McFarrens Lane and then proceeding southbound.
[12] DC Ito was on foot in McFarrens Lane. When he was approximately 15 – 20 metres away from the male, DC Ito saw that the man had three tattoos on his neck (though he could not make out what the tattoos were). When he was approximately 15 metres away from the male, DC Ito saw the man’s face. He recognized the man as Shawn Brown from the photo in the ‘person of interest’ package. He said he was able to see by the artificial lighting at the back of a condo building on the lane.
[13] The officer observed Mr. Brown approach the front passenger door of a silver Mazda and enter the car. The windows were not tinted, so DC Ito was able to see into the car. He observed hand movements between Mr. Brown and the driver. The driver’s left hand went to Mr. Brown and Mr. Brown’s right hand went to the driver. DC Ito was within five to 10 metres when he saw the driver’s hand movements and was about five metres away when he saw Mr. Brown’s hand movements. He passed within 1-2 metres of the Mazda. Mr. Brown was in the car for about 20 seconds.
[14] After Mr. Brown exited the Mazda, DC Ito observed him go down McFarrens Lane to Richmond, along Richmond to Sherbourne, and north on Sherbourne to Queen Street. At 12:04 a.m. on October 17, 2020, DC Kawaya saw Mr. Brown walking northbound on Sherbourne and then back into 224 Queen Street East. One minute later, at 12:05 a.m., DC Kawaya saw the lights in the apartment facing Queen Street go back on. At 12:13 a.m., DC Kawaya saw the lights go off. At 12:14 a.m., the same man, Mr. Brown, exited 224 Queen Street East and walked eastbound on Queen Street on the north side.
[15] At 12:17 a.m., DC Ito observed Mr. Brown walking eastbound on Queen Street. DC Ito was in his vehicle, 2-3 metres away. He saw Mr. Brown walk to a Shell gas station at the north-east corner of Parliament and Richmond, where at 12:24 a.m., he got into a line-up to buy something. DC Ito said the lighting at the Shell station was good and he was able to see the man’s face. He confirmed that it was Shawn Brown.
[16] Mr. Brown then went back to Richmond Street, crossed to the south side, and headed west. He met with a man who appeared to be waiting for him at the south-west corner of Berkeley and Richmond Street. DC Ito said that the two men were facing each other. He could see most of the front of Mr. Brown and the side of the unknown male. DC Ito observed the unknown male’s left hand going to Mr. Brown’s right hand. Mr Brown looked at his right hand and then put an object in his jacket pocket. Mr Brown’s left hand went into his left pant pocket and then his left hand went to the unknown male’s hand. DC Ito could see this interaction by streetlight, from 30-35 metres away in his vehicle.
[17] DC Ito then saw Mr. Brown continue westbound on Richmond Street. At 12:34am, he crossed to the north side of Richmond and walked up Brigden Place at the east side of a Ford car dealership. Mr. Brown approached an unknown male who was waiting there. DC Ito saw Mr. Brown’s right hand take something from the unknown male and then his right hand went into his right jacket pocket. DC Ito observed Mr. Brown’s left hand go into his pants pocket and then go over to the unknown male’s right hand. The male looked at his hand at what he had received from Mr. Brown. This was a short interaction of approximately 20 seconds in DC Ito’s estimation. DC Ito saw Mr. Brown continue back to Richmond Street and then head west on Richmond.
[18] At 12:36 a.m., DC Kawaya saw Mr. Brown return to 224 Queen Street East. The light went back on in the top floor window.
[19] At 12:39 a.m., the officers discontinued their surveillance and returned to the police station. There, DC Ito reviewed the police intelligence book and saw photos of Mr. Brown showing that he had three diamond shaped tattoos on his neck.
[20] DC Ito testified that he believed that he had witnessed three hand-to-hand drug transactions by Mr. Brown on the night of October 16-17, 2020. He thought these were drug transactions because what he saw was not, in his view, consistent with innocent handshakes. He explained that people do not usually put their hand in their pocket before extending it to shake hands, and they do not usually look at their hand after shaking hands. DC Ito also explained that the short amount of time each interaction took was consistent with a drug transaction, not a social or other innocent transaction.
[21] In cross-examination, DC Ito maintained that, in his view, the interactions he witnessed were not consistent with Kijiji or eBay sales. He explained that, in his experience, when people are meeting to effect a Kijiji purchase/sale, they usually meet in more well-lit and public places in case anything goes wrong. He said he would usually expect a Kijiji purchaser to examine the item and the seller to count the money. By contrast, these interactions were at night, in places that were not well-populated, and there was no examination of the item being purchased or counting of the money.
[22] DC Ito believed he had witnessed drug transactions by Mr. Brown. He maintained that he had grounds to arrest Mr. Brown on the night of October 16-17, 2020, but that he did not do so because he did not have the person-power at the time.
B. Surveillance on the Day of the Arrest and Search
[23] On October 20, 2020 a number of police officers attended a briefing in relation to this drug investigation. They had a warrant to search 224 Queen Street East, Unit 3. The targets of the investigation were Shawn Brown and William Reynolds. The plan was for officers to attend at the address, engage in some surveillance, arrest the targets of the investigation, and execute the warrant.
[24] DC Kawaya arrived at the address at 7:26 p.m. The lights in the top window facing Queen Street were off. At 7:37 p.m., DC Kawaya observed that the lights went on. They remained on until 7:42 p.m. when they went out. At 8:01 p.m., he observed two unknown males exit 224 Queen Street East. DC Kawaya described unknown male #1 as a white male wearing a black jacket and hat, blue jeans, black and white shoes, and carrying a small backpack. He described unknown male #2 as a white male wearing a brown jacket, dark pants, and carrying a black knapsack.
[25] DC Ito observed the two unknown males at a bus shelter at the southeast corner of Shuter and Sherbourne Street at 8:04 p.m. He was not able to positively identify either of them at the time, but he did see that unknown male #1 was carrying a smaller backpack with some lines on it. DC Ito thought the lines were white and reflective. He said the backpack looked like an Adidas bag. DC Ito saw the two males continue northbound on Sherbourne.
[26] At 8:05 p.m., DC Lisa Dulude saw the two unknown males walking northbound on Sherbourne Street. At 8:06 p.m., she drove by unknown male #1 and identified him as Shawn Brown from his neck tattoo. She noted that Mr. Brown was carrying a small black Adidas backpack with yellow stripes.
[27] DC Dulude saw Mr. Brown and unknown male #2 get into Beck taxi #1772, heading northbound on Sherbourne at 8:09 p.m.
C. The Arrest
[28] At 8:10 p.m. on October 20, 2020, the “take down” or arrest of Mr. Brown and the unknown male in the Beck taxi was ordered.
[29] Police Constables (“PC”s) Jeffrey and Miller caught up to the taxi in their marked police vehicle. They activated their emergency lights and siren and pulled the taxi over.
[30] PC Miller approached the rear passenger side of the vehicle. He opened the door and saw Mr. Brown sitting there. PC Miller said Mr. Brown was wearing a black jacket, blue jeans, a baseball cap, and black and white running shoes. He had a small backpack with white stripes on his lap, and a cellphone and another bag at his feet. PC Miller was confident that the small backpack was on Mr. Brown’s lap, not on the seat beside him when PC Miller first opened the taxi door. He identified the backpack from the photo taken later at the police station. He agreed that its stripes as shown in the photo were yellow, not white. He explained that he initially thought the stripes were white because he thought this was an Adidas backpack and he usually associates Adidas with white stripes.
[31] PC Miller took Mr. Brown out of the vehicle, arrested him, and read him his rights to counsel at 8:13 p.m.
[32] Mr. Brown did not take his property with him when he left the taxi. PC Miller said that the small backpack and cellphone were left on the taxi seat and the other bag was left on the floor. He advised DC Ito that Mr. Brown’s property was still in the taxi.
[33] DC Ito retrieved the small backpack and cell phone from the back of the taxi. He described the backpack as having three yellow lines, the Adidas three-line markings. In cross-examination, DC Ito agreed that he testified that the stripes he first saw were white. He said he thought the stripes reflected white from lights, but that after Mr. Brown was arrested he could see that the stripes were actually yellow. DC Ito agreed that he was only able to correct his earlier impression that the stripes were white because he saw that the stripes were yellow when he retrieved the backpack from the taxi. He acknowledged that he was correcting backwards to explain his earlier incorrect observation, but maintained that he was also working off the description of the stripes’ colour given by other officers on scene. DC Ito said there was only one striped backpack in the back of the taxi.
[34] DC Ito searched the small striped backpack. In it he found: Mr. Brown’s passport; a large bundle of socks that was hard and rectangle-shaped which contained a digital scale and what he believed and ultimately tested to be crystal meth (22 grams) in two baggies; and a clear cylinder containing what he believed and ultimately tested to be GHB (47.2 grams).
[35] PC Miller explained that Mr. Brown’s identity was confirmed upon arrest by the passport in his name that was found in the small striped backpack, as well as by the diamond shaped tattoo on the left side of his neck.
[36] The other man, Patrick Cuch, was also arrested from the back of the taxi. He was wearing a brown jacket over a grey t-shirt, ripped blue jeans, and black shoes. He was charged with possession of crystal meth for the purpose of trafficking in relation to the drugs that were found in the taxi.
[37] Mr. Brown was transported back to the police station. The booking video and a screenshot from that video depict that Mr. Brown was wearing a black jacket, blue jeans, black and white shoes, and had a tattoo on the left side of his neck. PC Miller searched Mr. Brown’s jacket at the station and found a small baggie containing what he believed to be crystal meth. It tested to be 2.41 grams of crystal meth. DC Ito testified that a wallet containing $690 in cash was located on Mr. Brown’s person.
D. Execution of the Search Warrant
[38] After the arrests, police officers went to 224 Queen Street East to execute the search warrant. DC Cory Fougere explained that there are store front businesses at the street level of that address. Officers were able to enter the unlocked street level door to the residential part of the address. They went up a long flight of stairs to the second level. There were a number of doors there. Officers went to the door for Unit 3. The door was locked. It took police several minutes, employing a hooligan or “hoolie” bar, to pry this door open. DC Fougere estimated that it would have taken two to three minutes for officers to force the door open. He said that it made a lot of noise. DC Dulude was not able to estimate how long it took to force the door open, but said that it took several tries and made very loud banging noises.
[39] Once the door to Unit 3 was forced open, officers announced themselves as police. They went up another, curving, flight of stairs, into the unit. Immediately on the right there was a kitchen that was unoccupied. Further along the hallway, next to the kitchen, was a bedroom on the right. William Reynolds was in this first bedroom, lying on the bed. The door to this room was open. DC Dulude testified that there was a lock on the door. She said the television was on in the room. According to DC Dulude Mr. Reynolds stood up when police entered. She described him as a white male, approximately 5’11” tall, bald, and muscular. He was wearing shorts but no shirt.
[40] DC Fougere testified that although it took some time to break down the door to Unit 3 and made noise, Mr. Reynolds would not necessarily have been able to hear this happening. DC Fougere asked Mr. Reynolds whether he could hear police entering the unit, and Mr. Reynolds told him that he could not. DC Kawaya noted that the target apartment was up a flight of stairs from the door that police had to force open to enter.
[41] DC Ito advised Mr. Reynolds that he was under arrest and handed him off to DC Dulude.
[42] Officers seized 4.88 grams of crystal meth from the room Mr. Reynolds was found in. Officers also located a digital scale and white powder in that room. DC Ito found a shirt, size XL, hanging on the inside of the door to the room Mr. Reynolds was found in.
[43] Following the hallway to the left, there was an unoccupied bathroom, then a second room that was cluttered with many items on the floor. Officers said that this room did not appear to be used as a bedroom, but rather for storage. It did not have a bed in it and was so cluttered that it looked like a “hoarder’s” room. It was not occupied.
[44] There was a third room at the end of the hallway. The door to this room was locked. DC Ito said that there was a camera above this door. DC Fougere explained that the door to this room had to be forced open using the “hoolie” tool.
[45] Immediately upon getting the door to this bedroom open, DC Fougere saw a brown bag sitting on the floor. It contained a Ziploc bag containing what DC Fougere thought was crystal meth. DC Kawaya seized this bag.
[46] In the locked bedroom, DC Fougere also found a blue digital scale and a black digital scale, both of which were in working order. In the top drawer of a three-drawer cabinet, DC Fougere found government issued IDs in the names of six different people as follows: Ontario Health Card and Ontario Driver’s Licence in the name of Pramechan Singh; Ontario Health Card and Ontario Driver’s Licence in the name of Maninder Gill; Ontario Health Card in the name of Federico Bonechi; British Columbia ID card, Indian Status Card, Social Insurance Number Card, and British Columbia Birth Certificate in the name of Kristopher Young; Canadian Passport in the name of Matthew Storrey; and Ontario Driver’s Licence in the name of Ellen Seaton. In a desk with mounted shelves against a wall in the locked bedroom, DC Fougere also found a black notebook which contained what he thought looked like a debt list, and what he thought was a recipe for making GHB.
[47] DC Kawaya searched this locked bedroom, which was the room whose light he had seen going on and off. In addition to the bag of crystal meth that was sitting in a brown paper bag on the floor, DC Kawaya also seized: a clear bag of crystal meth from the top drawer of a unit to the right of the bedroom door; US dollars in a locked box in a white dresser; empty baggies in a container on top of a dresser; a number of empty baggies inside an ottoman on the floor in the middle of the room; a green digital scale and a black digital scale; a small Ziploc bag containing an unknown substance in a locked box in a plastic container; two 10 ounce Canadian silver bars; and a yellow travel suitcase with a luggage tag bearing the name “Brown.”
[48] DC Kawaya also found a red folder labelled “Tax Stuff” containing a number of documents in the name of Shawn Brown at the address 224 Queen Street East, Unit 3, Toronto, in the locked bedroom. The documents inside the “Tax Stuff” folder included: a healthcare document, a document from H&R Block, a Canada Revenue Agency document, a Credit Bureau document, a Statement of Discounting Document, and a Superior Court of Justice Statement of Defence addressed to Shawn Brown as plaintiff. All of these documents were addressed to Shawn Brown at 224 Queen Street East, Unit 3. There was also a Canada Revenue Agency Statement of Assessment addressed to Shawn Brown care of H&R Block, and a Curriculum Vitae for Shawn Brown which gave his address as 224 Queen Street East, Unit 3. DC Kawaya also found an Elections Canada Elector Registration Card in the name of Shawn Brown at 3-224 Queen Street East in the locked bedroom, but he was not sure of whether he found it inside the “Tax Stuff” folder or elsewhere in the room. Also found in the locked bedroom were: a Scotiabank Statement addressed to Shawn T Brown, 224 Queen Street East, Unit 3, for the period of September 1 to September 30, 2020; an Air Canada boarding pass in the name of Shawn Brown dated June 18, 2020; and an Air Canada receipt in the name of Shawn Brown dated June 18, 2020.
[49] DC Ito identified a number of photographs of the execution of the search warrant. He had taken these photos. Among these were photographs of shirts found in the locked bedroom. Some of the shirts were found hanging in a dresser, one was hanging off the door, and some were found in the brown paper bag sitting on the floor that also contained a baggie of crystal meth. All of these shirts were in size small or size medium.
[50] DC Fougere explained that Mr. Reynolds was only charged in respect of the drugs that were found in the room he was found in. Only Mr. Brown was charged in respect of the drugs that were found in the locked bedroom. In cross-examination, DC Fougere explained that he did not think Mr. Reynolds could have put the crystal meth or other items in the locked bedroom. He explained that the key to the locked room was not found on Mr. Reynolds person or in the room he was found in. He testified that Mr. Reynolds gave him a plausible explanation for why Mr. Reynolds did not move out of his room and had remained lying in bed. In addition, DC Fougere explained that there were no clothes in Mr. Reynolds’ size in the locked bedroom, only clothes in Mr. Brown’s size were located there. And there were multiple documents in the name of Shawn Brown in the locked bedroom.
[51] In cross-examination, DC Kawaya testified that he did not think Mr. Reynolds could have quickly secreted the drugs in the locked bedroom when he heard police entering the unit. He acknowledged that the crystal meth in the brown paper bag on the floor was not concealed, and could have been quickly placed there. However, he explained, the bag of crystal meth he found in the top drawer of a shelving unit was placed in a location that was not obvious or easy to access. It was over six feet up. It was a location that was chosen with care, not a quick or obvious location to throw drugs if one were in a hurry.
E. Expert Evidence
[52] The defence consented to the admission of the Crown’s Notice of Intention to Adduce Expert Testimony, the Expert’s CV, and the Expert Opinion Evidence Report.
[53] The Crown’s expert, DC Sean Quinn, provided a report in relation to his areas of expertise, namely: possession of crystal meth for the purpose of trafficking, possession of GHB for the purpose of trafficking, and proceeds of crime. The defence admitted the expert’s qualifications, and the contents of the expert report.
[54] I will not summarize DC Quinn’s evidence in relation to GHB because Mr. Brown does not face any charges in relation to this drug.
[55] DC Quinn’s report indicates that he has learned that a heavy crystal meth user may consume up to 1 gram of crystal meth per day, whereas a light user may consume 0.02 to 0.05 grams per week. One crystal meth hit by inhalation is approximately 0.01 grams. Crystal meth sold at the gram level will sell for between $50 per gram at the low end of the range and $80 per gram at the high end of the range.
[56] In his report, DC Quinn indicates that digital scales are used to ensure accurate weights when packaging controlled substances for distribution, and are an important tool for the trafficking of such substances. He notes that debt lists are commonly used by drug traffickers to keep accurate records of monies owed to them in exchange for drugs provided. DC Quinn further opines that drug traffickers typically keep sums of cash, which are proceeds of crime, in their possession. This, he says, is because drug trafficking is a cash business, so traffickers will regularly possess cash they have received as payment for drugs sold. In addition, DC Quinn opines that drug traffickers may avoid more conventional practices, like the use of bank accounts, because they are subject to monitoring and detection.
II. THE CHARGES
[57] Counts 1 and 2 charge Mr. Brown with possession of methamphetamine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act.
[58] Count 3 charges Mr. Brown with possession of proceeds of crime under $5000, contrary to s. 354(1)(a) of the Criminal Code.
[59] Counts 4 to 15 charge Mr. Brown with one count of possession of property knowing it was obtained by offence punishable by indictment, namely government-issued ID, and one count of possession of identity document, contrary to sections 354(1) and 56.1(1) of the Criminal Code respectively, in respect of identity documents in the names of each of six different named individuals.
[60] Count 16 charges Mr. Brown with failing to comply with a probation order dated April 12, 2019 by failing to keep the peace and be of good behaviour, contrary to s. 733.1(1) of the Criminal Code.
III. ANALYSIS
A. Relevant Legal Principles
i) Presumption of Innocence
[61] Mr. Brown is presumed innocent. He may only be convicted of any offence charged if the Crown proves all of its essential elements beyond a reasonable doubt. The burden of proving the essential elements of each offence charged in the indictment rests with the Crown and never shifts. Mr. Brown does not have a burden of proving anything. He does not have to prove his innocence. Proof beyond a reasonable doubt is not the same as absolute certainty, but it is a significant and high standard of proof for the Crown to meet. I must hold the Crown to its burden and standard of proof considering each count separately.
ii) Circumstantial Evidence of Possession
[62] Mr. Brown is charged with possessing crystal meth in the backpack and in the locked bedroom for the purpose of trafficking, and with possessing the government IDs in the locked bedroom. He admits that he was in possession of the small amount of crystal meth found on his person on arrest, and acknowledges that he is guilty of a simple possession in respect of that. He also admits that whoever possessed the quantity of crystal meth found in the backpack and the locked bedroom did so for the purpose of trafficking.
[63] To prove Mr. Brown was in possession, the Crown must prove that he had both knowledge and control of the drugs and the IDs: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at para. 15; R. v. Bains, 2015 ONCA 677, 127 O.R. (3d) 545 at para. 155. The prosecution relied entirely on circumstantial evidence, from which it submits Mr. Brown’s knowledge and control can be inferred.
[64] The prosecution called evidence that tied Mr. Brown to the backpack and the locked bedroom. If this evidence gives rise to inferences that he had knowledge and control over the crystal meth and the government IDs, and to no other reasonable inference inconsistent with knowledge and control, then the Crown will have succeeded in proving that Mr. Brown is guilty of possession.
[65] The position of the Crown is that the only reasonable inference available on all the evidence is that Mr. Brown was in personal, constructive, or joint possession of the crystal meth and the government IDs. In R. v. Pham (2005), 2005 CanLII 44671 (ON CA), 77 O.R. (3d) 401 (C.A.) at paras. 13-15, the Court of Appeal for Ontario set out the following comprehensive guide to the legal requirements of the various types of 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 (Alberta Supreme Court, Appellate Division); R. v. Grey (1996), 1996 CanLII 35 (ON CA), 28 O.R. (3d) 417 (C.A.).
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 CanLII 51 (SCC), [1983] 1 S.C.R. 357 (S.C.C.); R. v. Williams (1998), 1998 CanLII 2557 (ON CA), 40 O.R. (3d) 301 (C.A.); R. v. Barreau, 1991 CanLII 241 (BC CA), 9 B.C.A.C. 290, 19 W.A.C. 290 (B.C.C.A.) and Re: Chambers and the Queen (1985), 1985 CanLII 169 (ON CA), 20 C.C.C. (3d) 440 (Ont. C.A.) [emphasis added].
[66] The Court of Appeal in Pham went on, at paras. 17-18, to note that the elements required to establish possession could be proven by direct evidence or inferred from circumstantial evidence.
[67] In R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, the Supreme Court of Canada gave guidance as to the approach to be taken in cases that rely heavily on circumstantial evidence. The Court directed, when the Crown’s case is based on circumstantial evidence, that “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”: Villaroman, at para. 38.
[68] Villaroman went on to hold that reasonable alternative inferences to guilt need not be based on proven facts. They need only be plausible based on logic and experience as applied to the evidence (at paras. 35-37):
In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts. . . . 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.
When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies] and “other reasonable possibilities” which are inconsistent with guilt. . . . 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”. . . . “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 [internal citations omitted].
B. Assessment of Circumstantial Evidence of Possession
i) Small Backpack and its Contents
[69] The defence position is that the Crown did not succeed in establishing beyond a reasonable doubt that Mr. Brown had knowledge of the contents of the small striped backpack, or control of the backpack or its contents. The defence argued that it is reasonably possible that the backpack belonged to Mr. Cuch or Mr. Reynolds, and not to Mr. Brown,; and that it is reasonably possible that Mr. Cuch, not Mr. Brown, was in possession of the backpack on the evening of the arrest. In support of what it says are these reasonably plausible alternative inferences, defence counsel notes:
• that officers observed both unknown males carrying backpacks as they left 224 Queen Street East on the evening of October 20, 2020;
• that some of the officers observed the man they identified as Mr. Brown carrying a backpack with white stripes whereas the backpack seized from the back of the taxi had yellow stripes; and
• that the yellow-striped backpack was seized from the back seat of the taxi, not from Mr. Brown himself. Mr. Cuch had also been sitting in the back seat of the taxi next to Mr. Brown.
[70] The Crown submits that the circumstantial evidence that Mr. Brown was in possession of the small striped backpack and its contents is overwhelming. The Crown argues that any suggestion that Mr. Brown was not in control of the backpack on the night of October 20, 2020, or that he did not know it contained crystal meth, is unreasonable. In support of this position, the Crown notes:
• that police officers who surveilled 224 Queen Street East on the evening of October 20, 2020 gave matching descriptions for unknown male #1. DC Dulude was able to positively identify this man in real time as Shawn Brown. The man arrested in the back of the taxi on October 20, 2020 matched the description of the man who had left 224 Queen Street East a short time earlier. His identity as Shawn Brown was confirmed by the passport found in the small striped backpack. The police station booking video reveals that Shawn Brown was wearing clothing and shoes that matched the description officers gave for unknown male #1, identified as Shawn Brown, earlier that evening;
• that the clothing surveillance officers described unknown male #2 as wearing on the night of October 20, 2020 did not match the clothing Mr. Brown was wearing on the booking video. It matched the clothing Patrick Cuch was wearing on arrest;
• that officers observed unknown male #1, Shawn Brown, carrying the smaller backpack when the two unknown males left 224 Queen Street East on the evening of October 20, 2020. DC Ito observed that the smaller backpack had lines on it. DC Dulude saw that the smaller backpack had yellow lines on it. When the taxi was stopped, PC Miller saw that Mr. Brown had the small striped backpack on his lap;
• that people generally know what is in a bag they are carrying;
• that people usually know where their illegal items are located; and
• that people usually know where their high value items are located. Based on the expert’s evidence as to the street value of crystal meth, the 22 grams contained in the small backpack would have been worth between $1100 and $1760 (according to the expert’s evidence) if sold at the gram level. A person would know where an item of that value was located.
[71] In my view, the only reasonable inference available on all of the evidence here is that Mr. Brown was in possession of the small backpack and its contents.
[72] The evidence of all the police officers was consistent and seamless. Officers observed Mr. Brown from the time he left his apartment at 224 Queen Street East through to the time they arrested him from the back of the taxi. Officers’ descriptions of him and his outfit throughout remained consistent and matched Mr. Brown’s appearance and the clothing he was wearing after his arrest on the booking video. Mr. Brown was carrying the small striped backpack when he left his apartment, when he was walking to the bus shelter, and when he got into the taxi. He had it on his lap when he was arrested. It was on the taxi seat at or near where he had been sitting when it was seized. It contained his passport.
[73] The only reasonable conclusion available on this evidence is that Mr. Brown was in control of the small striped backpack.
[74] That some of the officers initially thought Mr. Brown’s small backpack had white stripes when it actually had yellow stripes is of no moment. There was only one striped backpack involved in this case, the backpack carried by Mr. Brown from his apartment into the taxi; the one on his lap when he was arrested. The same backpack that was seized from the back of the taxi and found to contain Mr. Brown’s passport, 22 grams of crystal meth, and 47.2 grams of GHB. The same backpack that was identified at trial by all of the officers involved in the surveillance and the arrest on October 20, 2020. Mr. Cuch was also carrying a backpack that night, but his backpack did not have stripes on it. No backpack with white stripes was located in the taxi, on the person of either Mr. Brown or Mr. Cuch, or at the scene. There is simply no evidence that could lead me to conclude that Mr. Brown was carrying a different striped backpack, one with white stripes, and therefore that he was not in control of the small backpack with yellow stripes. I conclude that Mr. Brown was in control of the small striped backpack and its contents.
[75] I also conclude that the only reasonable inference available from all the evidence is that Mr. Brown knew what was in the backpack. As a matter of common sense and experience, people do not casually leave illegal substances, or items of value, at the bottom of a bag and forget them there. Nor do they let other people carry their valuable and illegal goods around without knowing they are doing so. I find it implausible in the extreme that Mr. Reynolds or Mr. Cuch would have placed 22 grams of crystal meth and 47.2 grams of GHB into that backpack and left them there for Mr. Brown to pick up in the backpack and carry unawares. Any inference other than that Mr. Reynolds had knowledge and control of the crystal meth is too speculative and fanciful to be plausible on this evidentiary record.
ii) Locked Bedroom
[76] The defence submits that it is reasonably possible that the drugs in the locked bedroom at 224 Queen Street East, Unit 3, belonged to William Reynolds and not to Shawn Brown. Defence counsel argues that Mr. Reynolds would have heard the noise officers made over several minutes when they were forcing open the apartment door, and that he would have heard officers announcing themselves. And that he could have used that time to hide his drugs in one bedroom, locked the door, and then made it appear that he was casually lounging and watching TV in the other bedroom, all to avoid being caught by police in possession of crystal meth. Defence counsel notes that one baggie of crystal meth was sitting at the top of a brown paper bag on the floor of the locked bedroom in plain sight, as if quickly dropped there by someone in a rush. The defence position is that it defies common sense and logic that Mr. Reynolds would lounge casually on his bed when he could hear someone noisily breaking into his apartment. The defence argues that Mr. Reynolds’ conduct only makes sense if he knew that police were entering the apartment and he was trying to evade being caught with his drugs. He notes that Mr. Reynolds was a target of the search warrant, which meant that police had reasonable grounds to believe that Mr. Reynolds was in possession of drugs for the purpose of trafficking, and that evidence of that offence would be found at 224 Queen Street East, Unit 3.
[77] Defence counsel acknowledges that there is circumstantial evidence linking Mr. Brown to the locked bedroom, but argues that there is nothing indicating that Mr. Brown had exclusive access to that room. Indeed, the defence argues, the presence of ID documents in the names of other people introduces a reasonable possibility that others had access to the locked bedroom. According to the defence, the room may have been used for AirBnB rental by other people.
[78] The defence acknowledges that the clothing found in the brown bag (where a baggie of crystal meth was located) suggests that Mr. Brown had access to that room in the past. However, the defence argues, there was another drug dealer living in that apartment. It is possible that Mr. Reynolds accessed the locked bedroom and deposited the crystal meth there some time after Mr. Brown left his T-shirts there. According to the defence, that Mr. Brown was the person who left the crystal meth in that bag is not the only reasonable inference available on the evidence.
[79] The Crown submits that the circumstantial evidence that Mr. Brown had knowledge and control of the drugs in the locked bedroom is overwhelming. The Crown argues that any suggestion that Mr. Brown was not in control of the contents of the locked bedroom on the night of October 20, 2020, or that he did not know it contained crystal meth, is unreasonable.
[80] The Crown submits that it is not a reasonably plausible inference available on the evidence that Mr. Reynolds hid the crystal meth in the locked bedroom. This is because Mr. Reynolds would have had to have heard the noise of the officers forcing open the door, understood that it was police, run to hide the crystal meth – dropping one baggie in plain view in a brown bag on the floor and carefully placing the other on a high hard to reach shelf out of view, locked the door, disposed of the key in a place from which it was never recovered, and run back to bed in the other room with the TV on to make it appear that he was lounging. In the Crown’s submission, Mr. Reynolds would not have had time to do all of this in the few minutes police were forcing his front door open. He may not have even heard police at the door because that was one flight of stairs down from where he was, and he had his TV on. Indeed, he told DC Fougere that he did not hear the police. Even if Mr. Reynolds had heard police forcing the door, he would not necessarily have realized that it was police: as noted by the Crown, DC Ito testified that police did not announce themselves until after the door was breached. Moreover, the Crown argues, it would not make sense for Mr. Williams to have hidden some drugs in the locked bedroom while leaving 4.88 grams of crystal meth, a digital scale, and white powder in the room he was in, if he had been trying to avoid being caught with illegal substances.
[81] In addition, the Crown emphasizes all the circumstantial evidence tying Mr. Brown to the locked bedroom: numerous documents with his name on them found in that room, including a bank statement for September 2020, one month before the alleged offence; a suitcase with an airline baggage tag with his name on it; clothing in size small and medium that would not have fit Mr. Reynolds; surveillance evidence that the light in the locked bedroom turned on and off before Mr. Brown exited the address to perform what DC Ito believed to be three hand-to-hand drug transactions on the night of October 16-17, 2020; and surveillance evidence that the light in the locked bedroom turned on and off before Mr. Brown and Mr. Cuch exited the address on October 20, 2020.
[82] The Crown notes that both bedrooms had locks on the door. The locked bedroom also had a surveillance camera above the door. There were drugs and scales found in both bedrooms, but no drugs or drug paraphernalia found in the common areas. This, according to the Crown, supports a conclusion that while Mr. Brown and Mr. Reynolds were both drug dealers, they were mistrustful of each other and each maintained their own stash in their own locked room, to which the other did not have access.
[83] On this evidentiary record, the Crown submits, the only reasonable inference is that Mr. Brown had knowledge and control of the contents of the locked bedroom at 224 Queen Street East, Unit 3.
[84] I agree.
[85] In my view, the evidence that connects Mr. Brown to the locked bedroom and its contents is overwhelming.
[86] I recognize that tenancy or occupancy of a place where an object is found does not create a presumption of possession: R. v. Choudhury, 2021 ONCA 560 at para. 19. In addition, joint occupancy of a place is not necessarily sufficient to establish joint or constructive possession of items located in that place: R. v. Robertson, 2017 BCSC 2402 at para. 54. But here, I do not need to rely on Mr. Brown’s tenancy, occupancy, or joint tenancy of 224 Queen Street East, Unit 3, or to presume possession from it. Here, the Crown has proven through evidence establishing a strong connection between Mr. Brown and the locked bedroom that he was in possession of the locked room and its contents.
[87] The Crown has adduced numerous documents addressed to Shawn Brown at the target address, or in Mr. Brown’s name at the target address, that were found in the locked bedroom. These were personal papers – tax, banking, legal, and health-related documents – and some of them were very recent.
[88] In R. v. Emes (2001), 2001 CanLII 3973 (ON CA), 157 C.C.C. (3d) 124 (Ont. C.A.) at para. 8, the Court of Appeal for Ontario held that personal papers are, as a general rule, maintained in a location to which a person has access and control. The Court went on to recognize, however, that the presence of personal papers in a given location does not necessarily mean that the person named in the documents had access to and control over the location. The presence of documents could be a result of them having been stolen or simply stored there and abandoned. In Emes, the Court found that such explanations did not accord with the factual probabilities in the circumstances of that case.
[89] In this case, I find it highly improbable that Mr. Brown’s personal papers were stolen or abandoned in the locked bedroom at 224 Queen Street East, Unit 3. In my view, the only plausible explanation available on the evidence is that Mr. Brown maintained his personal papers in the locked bedroom because that was his room. He had access to it, was in control of it, and was in control of its contents. In addition to the presence of Mr. Brown’s numerous, recent personal papers in the locked bedroom, I conclude that Mr. Brown was in possession of the locked bedroom and its contents for the following reasons.
[90] First, DC Kawaya saw the lights in the locked bedroom go on and then off shortly before Mr. Brown exited 224 Queen Street East on two occasions on the night of October 16-17, 2020. After the lights went off and Mr. Brown exited to the street, DC Ito observed Mr. Brown engaging in what he believed to be three separate hand-to-hand drug transactions in his two forays to the streets. When Mr. Brown returned to the apartment after the third transaction, DC Kawaya saw the lights in the locked bedroom go on again.
[91] On October 20, 2020, DC Kawaya saw the lights in the locked bedroom go on and then off shortly before Mr. Brown and Mr. Cuch exited 224 Queen Street East. When Mr. Brown was arrested a short time later that evening, he had crystal meth, GHB, and a digital scale in his backpack and crystal meth and cash on his person.
[92] At no time was Mr. Reynolds seen leaving 224 Queen Street East after the lights went on and off in the locked bedroom. Nor was Mr. Reynolds observed conducting what officers believed were hand-to-hand drug transactions on the street after the lights went on and then off in the locked bedroom.
[93] On the evidence before me, I cannot conclude beyond a reasonable doubt that Mr. Brown was conducting hand-to-hand drug transactions on the night of October 16-17, 2020, although it seems extremely probable that he was. But I can and do conclude that Mr. Brown was accessing the locked bedroom before leaving the apartment on three separate occasions while under police surveillance. And, on the third of these occasions, the night of October 20, 2020, after accessing the locked bedroom, Mr. Brown left the apartment with crystal meth, GHB, and a digital scale in the backpack he was carrying and more crystal meth and cash in his jacket. The only reasonable inference is that when Mr. Brown went into the locked bedroom on October 20, 2020, he accessed drugs and drug paraphernalia that were stored in there (where they were later found by police), put them in his backpack and jacket, and went out to engage in drug transactions after locking the door to the room.
[94] In addition, on the night of October 16-17, 2020, the lights in the locked bedroom went on each time Mr. Brown returned to 224 Queen Street East, shortly after he returned. This suggests that Mr. Brown was returning to the locked bedroom after conducting what I find were likely hand-to-hand drug transactions. He was likely returning the proceeds of his drug transactions to the room at that time.
[95] The above is clear evidence of a link between Mr. Brown, the locked bedroom, and the drugs and drug paraphernalia contained in this room.
[96] While it is theoretically possible that Mr. Reynolds also had access to the locked bedroom and its contents, there is no evidence to support an inference that he did. The key to the locked room was not found during the search of 224 Queen Street East, Unit 3. It was not found in Mr. Reynolds’ room or on his person. Mr. Reynolds may well not have heard police forcing open the door to his apartment on the evening of October 20, 2020, because the door was down a flight of stairs and Mr. Reynolds had the TV on in his room. But even if he had heard police breaking down the door, he would have not had enough time to secret the crystal meth in the locked room. To do so, he would have had to realize that it was police breaking down the door. But officers did not announce themselves until after they had breached the door, by which time they were already entering the apartment. Mr. Reynolds would not have had time to run to hide the drugs in the locked bedroom at that point. To do so, he would have had to run to the other room; hide the two baggies of crystal meth in two separate places – one of which was high up, hard to reach, and out of view; lock the door, hide the key, run back down the hall, and make it look like he was relaxing on the bed. There simply would not have been time for Mr. Reynolds to accomplish all of this in the two or three minutes it took police to force open the door and come up the stairs. On this evidence, the defence suggestion that Mr. Reynolds hid the drugs in the locked bedroom is speculative. It does not provide a reasonably plausible alternative theory here.
[97] Second, DC Fougere found a notebook in the locked bedroom that contained a recipe for making GHB. When Mr. Brown was arrested on the evening of October 20, 2020, he had 47.2 grams of GHB in his small backpack. There was no GHB found in Mr. Reynolds’ room, on his person, or anywhere else in the target address. In my view, Mr. Brown’s possession of GHB further links him, and no one else, to the locked bedroom and its contents.
[98] Third, shirts located in the locked bedroom were in size small or size medium. Some of these shirts were in the brown paper bag on the floor that also contained a baggie of crystal meth. By contrast, the shirt found in the bedroom Mr. Reynolds was found in was a size XL. Mr. Brown is a smaller man than Mr. Reynolds was. Indeed, the defence acknowledged in its closing argument that the small and medium shirts in the locked bedroom belonged to Mr. Brown. The shirts in Mr. Brown’s size do not conclusively, on their own, indicate that he had exclusive access to the locked room and its contents. However, when viewed alongside all the evidence in the case, the shirts in Mr. Brown’s size contribute to my certainty that the circumstantial evidence is consistent with Mr. Brown’s knowledge and control over the contents of the room. And with no other reasonably plausible conclusion.
[99] All this evidence tying Mr. Brown to the locked bedroom and its contents, viewed as a whole, is substantial and compelling, notwithstanding that it is circumstantial. It satisfies me that Mr. Brown had knowledge and control of the drugs in the locked bedroom at 224 Queen Street East, Unit 3.
[100] There is no evidence that connects Mr. Reynolds to the locked bedroom or its contents other than that he was found in another room in the same apartment, and that he was also in possession of crystal meth and a digital scale. As already noted, tenancy or occupancy of a place where an object is found does not create a presumption of possession: Choudhury, at para. 19. Nor is joint occupancy necessarily sufficient to establish joint or constructive possession: Robertson, at para. 54. In the absence of other evidence linking Mr. Reynolds to the locked bedroom or the drugs within it, I cannot reasonably infer from Mr. Reynolds’ occupancy of the apartment that it was he who had knowledge and control of the drugs in the locked bedroom. There is no reasonably plausible alternate inference available that is inconsistent with Mr. Brown’s guilt.
iii) Identity Documents
[101] The defence argues that the presence of identity documents in the names of several other people evidences a possibility that people other than Mr. Brown had access to the locked bedroom. Defence counsel notes that there was no lengthy police surveillance of the address, and submits that it is possible that the room was being rented out on AirBnB.
[102] The Crown submits that there is no evidence that the locked bedroom was rented out on AirBnB, and that this is not a reasonably plausible inference available here.
[103] I accept the Crown’s position. I find that it is not reasonably possible that the locked bedroom was being rented out on AirBnB. To find that it was, would require me to accept that six different people rented out that room and all left their important government-issued identity documents behind there, all in the same drawer. I accept that one AirBnB renter might accidentally leave their ID in a rented room after they departed. But six different AirBnB renters would not all do so. And they certainly would not all leave their IDs in the same drawer together.
[104] In addition, the room was very messy, not a state in which AirBnB rooms are typically offered to customers. People who are renting out rooms to strangers through AirBnB do not tend to leave valuable items like two 10-ounce silver bars in the room to be found and potentially stolen by renters. Nor do they leave valuable illegal items like 136.32 grams of crystal meth (worth $6,818 to $10,908 if sold at the gram level, according to the expert evidence) to be found by renters and stolen or consumed, or to result in a call to police.
[105] The suggestion that the locked bedroom was rented out on AirBnB is a fanciful one. It does not offer a reasonably plausible explanation for how the government IDs of six different people ended up in that room.
[106] I conclude that the only reasonable inference available on the evidence is that Mr. Brown was in possession of the IDs, just as he was in possession of the drugs.
[107] Accordingly, I find Mr. Brown guilty of the six counts of possession of identity documents that relate or purport to relate to other people without lawful excuse as charged, contrary to s. 56.1(1) of the Criminal Code.
[108] However, the Crown has not succeeded in establishing all of the elements of the six counts of possession of property (government IDs) knowing that they were obtained by an offence punishable by indictment, contrary to s. 354(1) of the Code. The Crown called no evidence whatsoever from which I could conclude that these identity documents were obtained by an offence punishable by indictment, or that Mr. Brown knew that they were. It seems likely that Mr. Brown came into possession of the identity documents through crime. But in the absence of any evidence at all about how he came into possession of these IDs or anything about them, other than that they were not in Mr. Brown’s name and they were found in his room, I cannot conclude that the Crown has proven that Mr. Brown knew that they were obtained by an offence punishable by indictment. The Crown has not proven the elements of the s. 354(1) offences in relation to possession of government-issued identity documents beyond a reasonable doubt.
F. Possession of Proceeds of Crime Under $5000
[109] Mr. Brown was in possession of $690 cash when he was arrested. He admits the contents of the expert opinion report, in which the expert DC Quinn opined that drug traffickers typically keep sums of cash, which are proceeds of crime, in their possession. Given my finding that Mr. Brown was in possession of crystal meth for the purpose of trafficking and the expert evidence, I conclude that the $690 cash in Mr. Brown’s possession was proceeds of crime.
G. Fail to Comply with Probation Order
[110] The defence admitted that Mr. Brown was on probation at the time of the offences before the Court. One of the conditions of his probation order was that he keep the peace and be of good behaviour.
[111] I have found that Mr. Brown was in possession of crystal meth for the purpose of trafficking, and that he was in possession of identity documents that relate or purport to relate to other people. In committing these offences, Mr. Brown breached his condition of probation that required him to keep the peace and be of good behaviour.
H. Conclusion
[112] For the foregoing reasons, I have concluded that the Crown has proven beyond a reasonable doubt that Mr. Brown had knowledge and control of the crystal meth in the small backpack and the crystal meth and the government identity documents in the locked bedroom. The Crown’s circumstantial evidence is consistent with Mr. Brown having had knowledge and control of these items, and with no other reasonably plausible inference other than guilt.
[113] Mr. Brown admitted that the quantities of the drugs at issue were for the purpose of trafficking. Having found that Mr. Brown possessed the drugs, I conclude on the basis of his admission that he possessed them for the purpose of trafficking. The expert evidence also supports a conclusion that possession of crystal meth in this quantity would be for the purpose of trafficking, not for the purpose of personal consumption.
[114] I further conclude that Mr. Brown was in possession of $690 cash that were proceeds of his drug trafficking activities.
[115] In possessing crystal meth for the purpose of trafficking and possessing government identity documents relating or purporting to relate to others, Mr. Brown breached the condition of his probation order requiring him to keep the peace and be of good behaviour.
[116] The Crown has not proven the six counts of possession of property (government identity documents) knowing that they were obtained by an offence punishable by indictment beyond a reasonable doubt.
IV. DISPOSITION
[117] Mr. Brown is found guilty of the following counts on the indictment:
• Counts 1 and 2 - possession of crystal methamphetamine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act;
• Count 3 – possession of proceeds of crime under $5000 contrary to s. 354(1)(a) of the Criminal Code;
• Counts 5, 7, 9, 11, 13, 15 – possession of government identity documents relating or purporting to relate to Pramechan Singh, Maninder Gill, Federico Bonechi, Kristopher Young, Mathew Storey, and Ellen Seaton, respectively, contrary to s. 56.1(1) of the Criminal Code; and
• Count 16 – failure to comply with probation, contrary to s. 733.1(1) of the Criminal Code.
[118] Mr. Brown is found not guilty of the following counts on the indictment:
• Counts 4, 6, 8, 10, 12, 14 – possession of property knowing it was obtained by an offence punishable by indictment, namely government identity documents of Pramechan Singh, Maninder Gill, Federico Bonechi, Kristopher Young, Mathew Storey, and Ellen Seaton, respectively, contrary to s. 354(1)(a) of the Criminal Code.
J. R. Presser J.
Released: February 6, 2023