COURT FILE NO.: CR-22-57
DATE: 2024/04/11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
ANTHONY EDWARDS
Defendant
J. Piszczek, for the Federal Crown
M. Mazurski, for the Provincial Crown
G. Clark, for the Defendant
HEARD: January 15-18, 22-23, 30, 2024
CORRECTED
REASONS FOR DECISION AT TRIAL
Corrections are listed on page 31
Table of Contents
OVERVIEW... 2
THE EVIDENCE.. 3
The Search. 3
The Seizures. 5
The Front Bedroom.. 5
The Kitchen. 6
The Back Bedroom.. 6
The Audi 7
The Samsung Phone. 7
The Glock Handgun. 9
The Maple Leafs Jacket 10
The Evidence of Cassandra Puskas. 10
THE CHARGES. 11
THE PARTIES’ POSITIONS. 12
The Accused’s Position. 12
The Crown’s Position. 12
THE ISSUES. 13
ANALYSIS. 13
Should the evidence of the confidential informants about two unknown Black males be admitted?. 13
Has the Crown proven each essential element of the offences beyond a reasonable doubt?. 14
The Remaining Issues. 14
Possession. 15
Circumstantial Evidence. 16
The Handgun: Possession. 17
The Handgun: Knowledge. 23
The Drugs: Possession. 24
The Drugs: Purpose. 26
CONCLUSION.. 29
eLLIES j.
OVERVIEW
[1] The accused, Anthony Edwards, faces multiple firearms and drug trafficking charges stemming from the execution of a search warrant on March 30, 2021. On that date, members of the Ontario Provincial Police (“the OPP”) Community Street Crime Unit executed a search warrant in a basement apartment leased to Cassandra Puskas at a residence on Arthur Street, in Sturgeon Falls, Ontario. Inside, they located three individuals, including Puskas, her former partner Sean Collins, and the accused.
[2] The accused was apprehended by the police as he was attempting to crawl out of a bedroom window at the back of the apartment. Outside of the window, the police located a blue Toronto Maple Leafs jacket. In the right pocket of the jacket, they found a loaded Glock 9 mm semi-automatic handgun. Inside the bedroom, they located approximately 68 g of fentanyl, 30 g of cocaine, a significant amount of cash, functioning digital scales, and two cell phones, among other things.
[3] As a result of the search, the accused is charged with a number of offences, including possessing fentanyl and cocaine for the purpose of trafficking; possessing the proceeds of crime; possessing a loaded, prohibited weapon; failing to comply with the terms of two release orders; and breaching two firearms prohibition orders.
THE EVIDENCE
The Search
[4] Sturgeon Falls is a small town located about 32 kilometers west of North Bay, Ontario. The town is policed by the OPP, which has detachments throughout Northeastern Ontario. At most OPP detachments, there is at least one officer who is a member of the Community Street Crimes Unit (“CSCU”). As of March 30, 2021, in Sturgeon Falls, that officer was Detective Constable Robert Labelle, an 11-year veteran of the force.
[5] Det. Cst. Labelle had received information through confidential informants that Collins and two unknown Black males had been selling drugs in Sturgeon Falls. Labelle knew who Collins was. He had previously arrested Collins for drug-related offences. Det. Cst. Labelle knew that Collins had a relationship with Puskas, and he knew that Puskas lived in a basement apartment located at 284 Arthur Street.
[6] Based on the information he obtained prior to March 30, 2021, Det. Cst. Labelle had begun to draft an Information to Obtain (“ITO”) to obtain a warrant to search both the Puskas residence and Collins’ own residence located nearby, at 224 Railway Street.
[7] On the morning of March 30, 2021, Det. Cst. Labelle drove by the Arthur Street residence and saw a black Audi automobile that he believed was involved in drug trafficking. As a result, he decided to complete the ITO and to seek a warrant that day. He notified his superior in Sudbury, Detective Sergeant Roch Perreault. Det. Sgt. Perrault then notified the CSCU members at a number of other Northeast OPP detachments that they might be needed to execute a search warrant in Sturgeon Falls. In response, five officers were dispatched to Sturgeon Falls that morning.
[8] While the members of the CSCU were on route, regular law enforcement officers with the Nipissing West OPP were asked to maintain surveillance of the Railway Street residence. As they arrived, members of the CSCU took up surveillance on the Arthur Street residence. Det. Cst. Labelle ran the license plate on the Audi and learned that it had been rented to a female from Whitby, Ontario. He added this and other information to the ITO and eventually submitted it electronically.
[9] At 5:12 p.m., Det. Cst. Labelle learned that warrants had been granted to search the Arthur Street and Railway Street residences, as well as the Audi. He then notified the other members of the search team.
[10] The CSCU officers, including Det. Sgt. Perreault, discontinued their surveillance and met at a safe location once the warrants were issued. During the meeting, it was decided that the officers would execute the warrant issued for Arthur Street first. Among other things, the officers also decided the order of the “stack”, meaning the order in which they would enter the residence.
[11] In addition to deciding who would form the stack and in what order, it was also decided that Det. Sgt. Perreault would go to the rear of the residence to ensure that none of the occupants escaped.
[12] The search of the Arthur Street residence was a “no-knock” search, meaning that the police did not want to alert the occupants to the fact that there was a search about to be conducted. For that reason, one officer was designated as the “breacher”. The breacher’s job is to first attempt entry by opening the door to the residence. If the door is locked, the breacher must use a heavy metal cylinder with handles on it to break through the door as quickly as possible. Standard procedure then requires each officer in the stack to enter the residence shouting “Police. Search warrant.”
[13] At about 5:28 p.m., the officers assembled a distance away from the Arthur Street residence and approached it on foot. At the residence, they had to line up in a row in a small stairwell that led down to the apartment door. The door itself was locked and, therefore, had to be breached using the ram.
[14] There is an inconsistency between the evidence of Detective Constable Glen Goode and the other police officers about who was designated as the breacher, as well as other aspects of the execution of the search warrant. Det. Cst. Goode testified that he was the one who breached the door at Arthur Street, whereas the other officers testified that it was Constable Brian Henry, an officer from Parry Sound who was on a temporary assignment to the CSCU at that time.
[15] I accept the evidence of the other officers that Cst. Henry was the breacher and that Det. Cst. Labelle was second in the stack. This is borne out by the uncontroverted evidence that these two officers were the ones to arrest Puskas and Collins, who were found in a bedroom located just across from the entrance door. This is consistent with the evidence of all of the officers, including Det. Cst. Goode, that the goal of the police when executing a no-knock search warrant is to “fill up space” as they secure the premises. As Det. Cst. Goode himself put it, the process is analogous to filling up an ice cube tray from one end continuously to the other. If Det. Cst. Goode had been the breacher, one would have expected him to be one of the officers arresting Puskas and Collins.
[16] After Cst. Henry and Det. Cst. Labelle, Detective Constable Bruce Fox was the next officer to enter the residence, followed by Det. Cst. Goode. They headed left as they entered the residence, past a small kitchen and bathroom/laundry room area towards a bedroom at the rear of the apartment. As they entered the bedroom, they saw the accused attempting to climb out through the basement window. From the outside, Det. Sgt. Perreault pushed the accused back into the residence while Det. Cst. Fox and Det. Cst. Goode pulled the accused inside, where he was handcuffed after a brief struggle.
[17] All three arrestees were brought into the kitchen/living room area. The accused was asked to identify himself, but he refused to do so. The arrestees were all read their rights to counsel and cautioned about making statements. Because, at the time, the Nipissing West detachment of the OPP did not have a permanent facility in Sturgeon Falls, the three individuals were then transported in two police vehicles by Det. Cst. Labelle and Detective Constable Josh Broncheski to the North Bay detachment. There, they were processed and interviewed by Det. Cst. Labelle. The accused and Collins were held for bail, while Puskas was released.
[18] After the arrestees had been removed from the Arthur Street residence, the remaining officers began their search. Det. Cst. Goode had been designated the exhibits officer. Before the search began, he took a series of photographs of the residence to show the state in which it had been found. He then set himself up at the kitchen table and, using a laptop computer and a spreadsheet program, prepared to receive and make note of the items seized by the other officers.
The Seizures
[19] The officers searched the apartment beginning with the area in which they had each arrested the occupants. The evidence of Det. Cst. Goode about where certain things were found also differs in certain important respects from that of the other officers. Where there is a conflict in the evidence about the location at which an item was seized, I prefer the evidence of the officer who seized it. I found the evidence of the officers in the stack to be more reliable than that of Det. Cst. Goode. Unlike Det. Cst. Goode, these officers were only responsible for noting what they themselves seized. The evidence about the events that occurred before the items were seized was generally consistent among the other officers and, with one other exception I will come to later, was not impeached or shaken in cross-examination.[^1]
[20] In the recitation of the seizures that follows, I will refer only to the evidence of the seizing officers with respect to the location at which an item was seized. The nature of the substances seized was later determined by analysts at Health Canada, with respect to which Certificates of Analyst have been admitted into evidence on consent.
[21] There is no issue about the controlled nature of the fentanyl and cocaine found.
The Front Bedroom
[22] In the bedroom in which he had arrested Puskas and Collins, Cst. Henry found the following:
(1) on a nightstand near the bed:
(a) a working digital scale,
(b) 1 g of a mix of fentanyl, benzodiazepine, and caffeine;
(2) on a shelf above the nightstand:
(a) .2 g of benzodiazepine (Bromazolam) in a Ziplock bag bearing the initial “T”;
(3) in a black coat on the bed:
(a) a government health card bearing Collins’ name and likeness;
(4) under the black coat:
(a) a felt bag containing 1 g of fentanyl;
(5) inside a zippered red purse-style pouch:
(a) 20.4 g of dimethylsulphate (not a controlled substance);
(6) inside a small white purse:
(a) 1.3 g of a mix of fentanyl, benzodiazepine, and caffeine;
(b) .2 g of a mix of fentanyl, benzodiazepine, and caffeine;
(c) .5 g of a mix of fentanyl, benzodiazepine, and caffeine in a separate container; and
(d) .9 g of a similar mix in yet another container.
[23] In addition, Cst. Henry found a wallet in the top drawer of a dresser in which he found photo identification in the name of an individual named Tyrone Lothian, a Black male (as is the accused), with a birthdate of June 30, 1999.
[24] Det. Sgt. Perreault assisted in the search of the front bedroom. Under the bed, he found a .22 calibre rifle in an unlocked gun case.
The Kitchen
[25] In addition to searching the front bedroom, Det. Sgt. Perreault also searched the kitchen, in which he found a working digital scale in a drawer.
The Back Bedroom
[26] The bedroom in which the accused was arrested was searched by Det. Cst. Fox, as was the area outside of the window through which the accused was attempting to leave. Det. Cst. Fox found the following:
(1) on a nightstand near the bed:
(a) a Winners bag containing three different Ziplock bags, which contained:
i. 23.9 g of a mix of fentanyl, benzodiazapram, and caffeine in one bag;
ii. 15.4 g of a mix of fentanyl and caffeine in another; and
iii. 29.3 g of a mix of fentanyl and caffeine in the third;
(b) 31.1 g of cocaine in a separate plastic bag;
(c) a functioning digital scale;
(d) a Samsung cellular telephone containing two SIM cards, which was connected to a charger plugged into a wall outlet;
(e) an Apple cellular telephone, which was also connected to a charger plugged into a wall outlet;
(2) in a “Champion” brand fanny pack found on the bed:
(a) a CapitalOne credit card bearing the name of the accused with an expiry date of “05/25”;
(b) a Scotiabank Visa card bearing no name, with a similar expiry date; and
(c) cash in the amount of $1,100;
(3) a blue Maple Leafs jacket on the ground outside the window;
(4) in the Maple Leafs jacket:
(a) a 9 mm Glock handgun in the right pocket, with a round of ammunition in the chamber and eight rounds in the magazine; and
(b) the key fob for an Audi automobile in the left pocket.
The Audi
[27] Detective. Sgt. Perreault used the key fob obtained from the Maple Leafs jacket to open and search the Audi SUV parked outside of the Arthur Street residence. In the centre console, he found a driver’s licence bearing the name and likeness of the accused, with a birthdate of March 15, 1990, and an address in Whitby.
The Samsung Phone
[28] Although the police obtained a warrant on May 13, 2022, to search the Samsung phone found charging in the back bedroom in 2021, it was not until 2023 that an OPP digital forensic analyst was able to extract useful data from the phone. Special Constable David Bugo testified that he was unable to extract all of the data when he first tried to do so in 2022, so he sent the phone to the OPP headquarters in Orillia. However, the OPP required an upgrade to the software it used to extract cell phone data, a program called “Cellebrite”. Therefore, the Samsung phone remained at the OPP headquarters without any extraction being undertaken until Sp. Cst. Bugo retrieved it in June 2023. On June 28, 2023, he succeeded in extracting all of the data he sought from the phone and sent it to Det. Cst. Labelle.
[29] The data is contained in a report prepared by Det. Cst. Labelle and generated using the Cellebrite software.
Call Logs
[30] The data extracted from the phone includes a call log showing three calls on March 29, 2021, between the user of the phone and someone named “Stugon Sean”, whose phone number began with “705”, the area code for Sturgeon Falls (the full number is contained in the call log).
Text Messages
[31] Also extracted from the phone was a series of text messages between someone the phone labelled “(owner)” and the same “Stugon Sean”. I will refer to “owner” as “the owner” in this part of these reasons.
[32] The messages begin on March 27, 2021, at “1:04:37 AM (UTC+0)” and end on March 30, 2021, at “4:16:46 PM (UTC+0)”. I take judicial notice of the fact that “UTC” is a reference to “Coordinated Universal Time”, a standardized means of measuring time throughout the world, much the same as “GMT” or “Greenwich Mean Time”: see Law v. Canada (Minister of Employment & Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497, at para. 77; R. v. Find, [2001] 1 S.C.R. 863, 2001 SCC 32, at para. 48.
[33] I also take judicial notice that Sturgeon Falls is in the Eastern Time Zone, a time zone that is usually referred to in the context of universal time as “UTC-5”, meaning that it is five hours earlier than the universal time. However, once the clocks in Canada are moved forward in recognition of Daylight Savings Time, the Eastern Time Zone is only four hours behind the benchmark universal time.
[34] Finally, I take judicial notice that the clocks in the Eastern Time Zone were moved ahead to recognize Daylight Savings Time on March 14, 2021. Therefore, four hours must be subtracted from the times shown on the call logs and text messages in this case to determine the actual time at which they were made or sent. Thus, the text messages begin at 9:04:37 p.m. on March 27, 2021, and end at 12:16:46 p.m. on March 30, 2021, the day the search warrant was executed.
[35] The text messages are obviously coded. To decipher them, the Crown called North Bay Police Services Constable Dan Weber, who was permitted by the court to give expert evidence regarding the indicia of possession of fentanyl and cocaine for the purpose of trafficking. He explained the meaning of a number of terms, all of which were found in the texts, including:
• “chops”, meaning interest in purchasing drugs
• “pts”, meaning 0.1 g
• “qrt”, meaning ¼ ounce
• “½”, meaning .05 g
• “zip”, meaning 1 ounce
• “ball”, meaning 3.5 g
• “snow”, meaning cocaine
• “down”, meaning fentanyl
• “white”, meaning cocaine
[36] The messages begin with a text from the owner of the phone to Stugon Sean that reads, “This number back”. Stugon Sean replies, “Who is this”. The owner replies “Jimmy”. Stugon Sean replies, “Nice you found a phone”, which I interpret as meaning the phone was being used for the first time by Jimmy.
[37] The messages indicate that Jimmy was inquiring of Stugon Sean whether there was any interest expressed by anyone in buying drugs, including fentanyl and cocaine, and that he was delayed due to family commitments in travelling from where he lived to the area where Stugon Sean lived. At 6:07:14 p.m. local time on March 29, 2021, Jimmy texted Stugon Sean that he was “almost there”.
Contact List
[38] The phone’s contact list was also extracted. It consists of 25 contacts, including Stugon Sean and 18 contacts whose names started with “Sudz”.
Device Connectivity
[39] The extraction report includes two segments, one entitled “Device Connectivity (1)” and another entitled “Devices (1)”. Both segments list only one device, a device named “Audi MMI 4070”. The Device Connectivity report indicates that the phone and Audi MMI 4070 were connected beginning at 10:54:13 p.m. local time on March 27, 2021.
Photographs
[40] In addition to the data referred to above, a large number of photographs were extracted from the phone. Only some of them were introduced into evidence in the extraction report. Most of the ones that were introduced depict the accused in what are obviously self-portraits (“selfies”).
[41] Of particular interest to Det. Cst. Labelle was a photo that shows the accused wearing a Maple Leafs jacket and toque. The toque appears to be very similar, if not identical, to a Maple Leafs toque shown on one of the pre-search photos taken by Det. Cst. Goode of a number of items on the bed in the back bedroom.
[42] The jacket also appears to be very similar to the one found outside of the window of the back bedroom. However, the logo on the jacket appears in the photo to be on the right side of the accused’s chest, whereas the logo on the jacket found outside of the window is on the left side. The lettering on both the toque and the jacket cannot be made out on the cell phone photos because it is too small.
[43] However, the lettering on a “Tommy Hilfiger” T-shirt worn by the accused in another photo can be made out, and it is backwards. Based on this photo, Det. Cst. Labelle determined by experimentation that selfies taken using the Snapchat app cause the image on a phone to be reversed. If Snapchat was used by the accused to take the selfie of himself driving and wearing the Maple Leafs toque and jacket, then these articles of clothing could easily be the same ones seized during the search of the Arthur Street residence on March 30, 2021. The Samsung phone did have the Snapchat app installed.
[44] Another photo depicts the accused in what appears to be the living room area of the Arthur Street apartment, based on the scene photos taken by Det. Cst. Goode.
GPS and Other Data
[45] Finally, the Cellebrite report contains GPS data and what appear to be searches undertaken using a web browser on the phone. The report indicates that the user of the phone searched the address of the Arthur Street residence on March 29, 2021.
[46] I have not found the GPS data to be helpful. It appears to show the phone to be in the Bradford West Gwillimbury and Arthur Street areas at about the same time. Det. Cst. Labelle was unable to explain this.
The Glock Handgun
[47] The Glock handgun and the jacket seized at the scene were turned over by Det. Cst. Labelle to Officer Shone Tarrant, who was a Forensic Identification Officer with the OPP at the time. He was asked by Det. Cst. Labelle to process both items for DNA samples and fingerprint impressions.
[48] Officer Tarrant swabbed the handgun for DNA and sent the swab, the gun, and the magazine to the Centre for Forensic Sciences (“the CFS”) for processing. The swab resulted in a partial DNA profile. However, because of the quality of the sample, the CFS advised Officer Tarrant that it would not conduct any further DNA analysis with respect to the handgun, which was returned to Officer Tarrant.
[49] Officer Tarrant then attempted to obtain fingerprint impressions from the handgun, the magazine, and the bullets. While he was able to obtain partial impressions, they were not suitable for further analysis.
The Maple Leafs Jacket
[50] Officer Tarrant also swabbed the neck area of the jacket and sent the swab to the CFS. However, the CFS refused to conduct any analysis of the swab.
[51] When he learned of the CFS’s refusal to process the samples taken from the handgun and the jacket, Det. Cst. Labelle called the CFS in the hope that he could persuade the officials there to change their mind. He was not successful.
The Evidence of Cassandra Puskas
[52] The only person arrested during the execution of the search warrant to testify was Cassandra Puskas, who was called by the Crown.
[53] She testified that she had been renting the apartment on Arthur Street for about 11 years at the time the search warrant was executed. Collins is the father of one of her children. According to both Puskas and the police surveillance evidence, however, they were not living together at the time the search warrant was executed. Collins was living at the Railway Street address, not far away.
[54] Puskas admitted during her testimony that she was using fentanyl at the time of her arrest and that people came to her apartment to do likewise. However, she denied being aware that Collins was dealing in drugs or that she was complicit in his dealings.
[55] Puskas testified that she and Collins had been trying to repair their relationship in March 2021, and that Collins had been staying at her apartment off and on at the time. She said that, on the day the warrant was executed, Collins had arrived at her apartment with the accused at about 2 a.m. and that they had arrived in a black Audi. According to her, the accused was wearing a blue zip-up sweater with a hood while he was in the apartment.
[56] Puskas testified that she had met the accused on one prior occasion and that he had been introduced to her as “Jimmy”. Collins told her that the accused was his friend and that he was in town. He asked if the accused could stay over and she permitted him to use the second bedroom (the “back bedroom”), the one in which he was later apprehended. Puskas testified that she did not go into that bedroom after the accused arrived and before the search warrant was executed later that day. She said that Collins did go in once.
[57] According to Puskas, the screen on the back bedroom window was broken and both sides of the window were capable of being opened. She said that she had used the window herself on many occasions when she had locked herself out of the apartment.
[58] Puskas testified that she saw the accused using two cell phones while they were together that day in the living room area of the apartment. She said that he was conversing with people on one and texting on the other. She testified that when the accused answered phone calls, he would go with the phone to the back bedroom.
[59] Puskas denied that either of the phones found in the back bedroom or the Maple Leafs jacket belonged to Collins or to her. She also denied that any of the drugs found in the back bedroom were hers.
[60] Puskas was charged with possessing the drugs and the gun found during the execution of the warrant on March 30, 2021. She was also charged with possessing fentanyl as a result of the execution of another warrant at her Arthur Street apartment in July 2021. According to Puskas, she had sublet the apartment to someone else by that time and had only gone to the apartment to get her cats. When she was apprehended in the apartment by the police, she was found with a gram of fentanyl in a re-usable grocery bag. She was released on that charge, as well.
[61] Puskas failed to attend court on numerous occasions following her release on both sets of charges. She eventually turned herself in to police custody on February 14, 2023. As part of an agreement reached with the office of the Crown Attorney, Puskas pleaded guilty on March 16, 2023, to one count of failing to appear, one count of theft under $5,000, and assault with a weapon. The theft charge was laid after Puskas lied to a retailer in order to obtain a refund for items she had not, in fact, purchased. The assault charge apparently was laid after she struck a male partner (not Collins) with a magazine, according to Puskas.
[62] All of the remaining charges against Puskas, including the charges arising from the March 30, 2021, search warrant, were withdrawn within days of Puskas making a statutory declaration in response to a list of questions the police provided to her lawyer about the activities of the accused and Collins leading up to the execution of the search warrant in March 2021.
THE CHARGES
[63] The accused faces 10 charges stemming from the execution of the search warrant on March 30, 2021.
[64] With respect to the drugs found in the back bedroom, he faces three charges: one count of possession of fentanyl for the purpose of trafficking, one count of possession of cocaine for the purpose of trafficking, and one count of possession of the proceeds of crime not exceeding five thousand dollars.
[65] The remaining seven charges relate to breaches of the licensing requirements for firearms and of certain orders by which the accused was bound on March 30, 2021. The Crown has introduced a Certificate of Analyst prepared by Constable Richard Savard on October 31, 2023, certifying that the Glock handgun is a prohibited firearm. On consent, the Crown has also introduced copies of two release orders, one made on May 11, 2020, in Toronto, and one made on March 3, 2021, in Newmarket, both of which provide, among other things, that the accused is not to possess any weapons. The Crown has also introduced into evidence, again on consent, copies of two weapons prohibition orders. The first is dated August 2014. That order prohibits the accused from possessing any firearm for a period of 10 years. The second is dated January 15, 2020. That order prohibits the accused from ever possessing a firearm.
THE PARTIES’ POSITIONS
[66] I turn now to the positions of the parties on the evidence at trial. Although the accused has no burden in these proceedings. I begin with his position because the central issue is whether the circumstantial evidence is sufficient to amount to proof beyond a reasonable doubt and because his arguments help to put the issues about the evidence into context.
The Accused’s Position
[67] In his closing submissions, Mr. Clark advanced for the first time an application to admit into evidence the information that Det. Cst. Labelle obtained from confidential informants that there were two unknown Black males selling drugs from the Arthur Street address. This information is hearsay, of course. He submits that it should be admitted as an exception to the rule against hearsay evidence because it is both necessary and reliable: R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787. He submits that the evidence is necessary because it came from confidential informants and his client would not be able to identify them for the purpose of compelling them to testify. He submits that the evidence is reliable because Det. Cst. Labelle said it was reliable in the ITO he swore to obtain the search warrant in question.
[68] Mr. Clark makes two main arguments with respect to the evidence that has been admitted at trial.
[69] First, he submits that the evidence is not sufficiently reliable or credible to support a conviction. He points to conflicts in the evidence of the police witnesses about what was found in the apartment, where, and when it was found. He submits that the evidence of Puskas was so riddled with inconsistencies and implausibilities that it goes beyond having no value and constitutes positive evidence of consciousness of guilt leading to the reasonable possibility that the drugs and gun were, in fact, hers and/or that of Collins.
[70] Mr. Clark’s other main argument is that, apart from its frailties, the circumstantial evidence tendered by the Crown leads to other reasonable inferences apart from his client’s guilt and, therefore, cannot support a conviction. As I understand it, this argument has two parts. In one part, Mr. Clark submits that the evidence the police did gather is insufficient to negate other reasonable possibilities. In the other, he submits that the absence of evidence gathered by the police also gives rise to other reasonable inferences apart from his client’s guilt.
The Crown’s Position
[71] On behalf of the provincial Crown, Ms. Mazurski strongly opposes Mr. Clark’s late-breaking hearsay application. She submits that it is procedurally unfair for several reasons. For one, she submits that this is an attempt to do indirectly what I held previously the accused was not able to do directly, namely challenge the search warrant: R. v. Edwards, 2023 ONSC 4437. She also submits that, because there was no proper application and notice that the accused would be seeking to introduce this evidence, there was no cross-examination of Det. Cst. Labelle about the objective reliability of the evidence of the confidential informants. She points out that Det. Cst. Labelle’s subjective opinion about the reliability of the evidence is neither admissible nor determinative.
[72] With respect to the balance of the evidence, the provincial Crown acknowledges that there are inconsistencies in the evidence of the police officers. However, Ms. Mazurski urges me to consider their evidence in the context of the events as they unfolded during the execution of the search warrant. With respect to the evidence of Puskas, Ms. Mazurski asks me not to dismiss her evidence out-of-hand. She also asks that I draw an inference of consciousness of guilt not from the fact that the accused refused to identify himself to the police, but from the fact that he lied about his identity to Puskas and that he was caught attempting to flee from the bedroom. As it relates to the handgun, the Crown submits that the only reasonable inference on all of the evidence is that the accused was in direct or constructive possession of the weapon.
[73] On behalf of the federal Crown, Mr. Piszczek submits that the evidence is capable of supporting an inference that the accused was either in constructive or joint possession or the drugs found in the back bedroom. He submits that the strongest piece of circumstantial evidence may be the fact that the Samsung phone was found plugged into an outlet in that room and that the contents of the phone show that it belonged to the accused. Mr. Piszczek also asks me to rely on the evidence of Det. Cst. Weber about the quantities of fentanyl and cocaine normally required for personal use and his evidence about the indicia of drug trafficking, including the use of scales, multiple telephones, the rental of cars, the use of aliases, and the sale of drugs at the end of the month to those in receipt of monthly payments.
THE ISSUES
[74] The issues in this case are:
Should the evidence of the confidential informants about two unknown Black males be admitted?
Has the Crown proven each essential element of the offences beyond a reasonable doubt?
ANALYSIS
Should the evidence of the confidential informants about two unknown Black males be admitted?
[75] In my view, the accused should not be permitted to introduce the hearsay evidence of the confidential informants relied upon by Det. Cst. Labelle in the ITO sworn to obtain the search warrant.
[76] In support of his submission, Mr. Clark relies on a long and well-established line of cases that stand for the proposition that the rules of evidence may be relaxed in favour of an accused. In R. v. Williams (1985), 1985 CanLII 113 (ON CA), 50 O.R. (2d) 321 (Ont. C.A.), Martin J.A. wrote:
It seems to me that a court has a residual discretion to relax in favour of the accused a strict rule of evidence where it is necessary to prevent a miscarriage of justice and where the danger against which an exclusionary rule aims to safeguard does not exist.
[77] Justice Martin’s comment was subsequently adopted by Cory J. in R. v. Finta, 1994 CanLII 129 (SCC), [1994] 1 S.C.R. 701, at p. 854, and has been repeatedly referred to with approval since: see R. v. Caesar, 2016 ONCA 599, 339 CCC (3d) 354, at para. 68. However, as the Court of Appeal said in Caesar, at para. 71:
Inadmissible hearsay does not become admissible hearsay simply because it is proffered by the defence in support of its right to make full answer and defence and because an accused is entitled to the presumption of innocence, in my opinion. The evidence must either fall within one of the recognized exceptions to the hearsay rule or pass the test of the necessity/reliability analysis under the principled exception, taking into account the … reservation regarding the exceptional circumstance where there is some evidence of reliability, in particular, and where rigid adherence to the strict rules of evidence would hinder a fair trial or lead to a miscarriage of justice.
[78] In this case, there is too little evidence of reliability, in my view. As the Crown submits, the evidence in the ITO of Det. Cst. Labelle’s opinion, or even that of the Justice of the Peace who issued the search warrant, is nothing more than an out-of-court statement; opinion evidence based on a completely different test than the one that governs threshold reliability. Because the request to admit the evidence was made only at the end of the trial, and because the accused was denied standing to challenge the warrant, Det. Cst. Labelle was never cross-examined about why he believed the evidence of the confidential informants was reliable.
[79] For this reason, the evidence of the confidential informants about the unknown Black males is not admissible in this trial as an exception to the hearsay rule, even though the request to admit the evidence is made by the accused.
[80] I turn now to the rest of the evidence and the question of whether it is capable of proving the Crown’s case beyond a reasonable doubt.
Has the Crown proven each essential element of the offences beyond a reasonable doubt?
The Remaining Issues
[81] As a result of the admission of the Certificate of Analyst of Cst. Savard, the only remaining issues relating to the handgun are whether the Crown has proven beyond a reasonable doubt that the handgun was in the possession of the accused and, if so, whether the accused knew or was wilfully blind to the fact that it was loaded: R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 67. If possession is proved beyond a reasonable doubt, then convictions for breaching the prohibition and release orders will follow automatically because the orders have been admitted into evidence.
[82] As a result of the admission of the Certificates of Analyst from Health Canada, the only remaining issues relating to the fentanyl and cocaine are whether the Crown has proven beyond a reasonable doubt that the drugs were in the possession of the accused and, if so, whether they were possessed for the purpose of trafficking.
[83] Finally, as the evidence relates to the money found in the fanny pack, there are three main issues: (1) whether the Crown has proven beyond a reasonable doubt that the money was in the possession of the accused; (2) whether the Crown has proven beyond a reasonable doubt that the money was obtained by the commission of a crime; and (3) whether the Crown has proven beyond a reasonable doubt that the accused knew or was wilfully blind to the fact that the money was obtained by crime. While it is open to the Crown to argue that proof of the commission of any crime will suffice because no specific crime has been set out in the indictment, practically speaking the only evidence introduced has been about drug trafficking. Thus, if the other elements of the proceeds charge are proven, a finding that the drugs were possessed for the purpose of trafficking will be dispositive of that charge.
[84] It is clear, therefore, that the issues in this case centre around possession and purpose. I will discuss the law of possession before moving on to a discussion about circumstantial evidence as it relates to proof of both possession and purpose.
Possession
[85] Section 4(3) of the Criminal Code defines possession. It reads:
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 of 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.
[86] Thus, there are three types of possession: personal or actual possession, in which a person has physical custody of an item; constructive possession, in which a person has the item somewhere else for that person’s benefit or the benefit of someone else; and joint possession, where an item is either in the actual possession of someone or in the constructive possession of someone, with the knowledge and consent of others.
[87] In this case, the Crown is alleging actual or constructive possession of the gun. Knowledge and some degree of control are essential elements of both: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 15. As the Supreme Court of Canada explained in Morelli, at paras. 15-16:
On an allegation of personal possession, the requirement of knowledge comprises two elements: the accused must be aware that he or she has physical custody of the thing in question, and must be aware as well of what that thing is. Both elements must co-exist with an act of control (outside of public duty): R. v. Beaver, 1957 CanLII 14 (SCC), [1957] S.C.R. 531 (S.C.C.), at pp. 541-42.
Constructive possession is established where the accused did not have physical custody of the object in question, but did have it "in the actual possession or custody of another person" or "in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person." (Criminal Code, s.4(3)(a)). Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his "use or benefit" or that of another person. [Emphasis in original.]
[88] As the case relates to the drugs, the Crown is alleging constructive or joint possession. These are not mutually exclusive concepts. Constructive possession can be joint possession. More than one person can constructively possess a thing. It is true that the Crown is not alleging, for example, that the accused was in joint possession of drugs found in the physical control of someone else, such as Collins or Puskas. However, the fact that either Collins or Puskas had access to the back bedroom and knowledge of the presence of drugs there does not preclude a finding that the accused was in possession of those drugs. What matters is whether the accused’s constructive or joint possession of the drugs is the only reasonable inference available, which leads me to a discussion of the law surrounding circumstantial evidence.
Circumstantial Evidence
[89] There is no direct evidence in this case that the accused was in possession of either the drugs or the handgun found in and just outside of the back bedroom. Nor is there any direct evidence that he was selling the drugs. The Crown’s case on possession and purpose is entirely circumstantial. To explain the law relating to the use of circumstantial evidence, I can do no better than to quote the discussion by Watt J.A. in Lights, at paras. 36-38:
When the Crown's case consists wholly or substantially of circumstantial evidence, the standard of proof requires the trier of fact be satisfied beyond a reasonable doubt that the accused's guilt is the only reasonable inference to be drawn from the evidence as a whole: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 (S.C.C.), at para. 20.
To determine if the circumstantial evidence meets the required standard of proof, the trier of fact must keep in mind that it is the evidence, assessed as a whole, that must meet this standard of proof, not each individual piece of evidence that is but a link in the chain of proof: R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534 (Ont. C.A.), at paras. 81-82; R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345 (S.C.C.), at pp. 360-61; R. v. Côté (1941), 1941 CanLII 348 (SCC), 77 C.C.C. 75 (S.C.C.), at p. 76.
Inferences consistent with innocence need not arise from proven facts. Rather, they may arise from a lack of evidence: Villaroman, at para. 35. Accordingly, a trier of fact must consider other plausible theories and other reasonable possibilities inconsistent with guilt so long as these theories and possibilities are grounded on logic and experience. They must not amount to fevered imaginings or speculation. While the Crown must negate these reasonable possibilities, it need not negate every possible conjecture, no matter how irrational or fanciful, which might be consistent with an accused's innocence: Villaroman, at paras. 37-38. See also R. v. Bagshaw, 1971 CanLII 13 (SCC), [1972] S.C.R. 2 (S.C.C.), at p. 8.
[90] As Watt J.A. pointed out in Lights, at para. 50, it is not enough to prove that the accused was occupying a certain place. Occupancy does not create a presumption of knowledge and control; more is necessary.
[91] Bearing these principles in mind, I will begin my analysis with the handgun.
The Handgun: Possession
[92] I am satisfied beyond any reasonable doubt that the accused was in possession of the Glock 9 mm handgun found in the blue Maple Leafs jacket during the execution of the search warrant on March 30, 2021. The evidence upon which I rely in reaching that conclusion includes:
(1) the photos downloaded from the Samsung phone showing the accused wearing the Maple Leafs jacket prior to the date the phone was seized;
(2) the evidence of Puskas that neither she nor Collins owned such a jacket;
(3) the evidence of Puskas that she permitted the accused to occupy the back bedroom;
(4) the circumstantial evidence that the accused did occupy the back bedroom;
(5) the evidence that the jacket was found just outside of the window of the bedroom through which the accused was observed trying to escape;
(6) the absence of evidence that anyone else occupied the bedroom or wore the Maple Leafs jacket; and
(7) the evidence I will come to later in these reasons that the accused was in possession of the fentanyl and cocaine found in the back bedroom.
[93] I will discuss each area of the evidence in turn.
The Photos Downloaded from the Samsung Phone Showing the Accused Wearing the Maple Leaf Jacket Prior to the Date the Phone was Seized
[94] Mr. Clark submits that the Cellebrite report is not evidence. This submission is somewhat surprising given that there was no objection made at the time the Crown sought to introduce the report. In any event, I disagree. The report is evidence, although it may not be all the evidence and it may not all be useful evidence.
[95] As I understand it, the Cellebrite report is merely a paper version of some of the data that was on the Samsung phone, deciphered and presented in a comprehendible format by the Cellebrite program. I agree that it would have been preferrable for a complete report to have been introduced as evidence, even if a condensed report was used as an aide during the trial. I also agree that additional evidence might be necessary to understand some of the data, such as the GPS data I referred to earlier.
[96] However, if there was additional data that the defence believed could be of assistance, it was open to the accused to seek to introduce it through Det. Cst. Labelle. I must assume that it was available as part of Crown disclosure. With respect to data that was introduced, while some of it required further explanation, I do not believe that this is true of the data upon which I have relied. Cell phones are too ubiquitous to require expert evidence about much of the data that they contain. We all know what text messages look like, what call logs are, and how phones connect to cars using Bluetooth technology. When it comes to data like this, the situation is not unlike video surveillance evidence. We do not need an expert to explain to us how the camera captures or transmits images to be able to admit and rely upon this type of evidence.
[97] Based on the photos downloaded from the phone, I am satisfied that the Samsung cell phone belonged to the accused. As I mentioned earlier, all of the photos of the accused appear to be selfies. “Photo #2”, showing the accused wearing a Maple Leafs jacket and toque, is a good example. This photo shows the accused sitting in the front seat of a vehicle and it is taken at an upward angle. This photo could only have been taken by the accused himself.
[98] Based on the evidence of Det. Cst. Labelle that the photo is inverted, which evidence I accept, I conclude that the accused is driving in the photo and that the coat and toque are the same ones found in the back bedroom during the execution of the search warrant on March 30, 2021.
The Evidence of Puskas that Neither She Nor Collins Owned Such a Jacket
[99] As I will come to, Puskas's evidence suffers from frailties that make it unreliable in certain respects. Because all of her charges were withdrawn as part of what appears to be an agreement with the Crown to give evidence against the accused and because she has a criminal record for offences of dishonesty, Puskas's credibility also suffers: R. v. Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811, (sub nom. R. v. Gaja), 136 D.L.R. (3d) 89. For that reason, I have approached her evidence with caution and have looked for confirmation of her testimony in the other evidence adduced at trial.
[100] With respect to the Maple Leafs jacket, Mr. Clark submits that Puskas changed her evidence at trial from what she told the police and what she said in her statutory declaration. I am not convinced she did.
[101] At trial, Puskas testified that the accused was wearing a blue, zip-up jogging-suit style sweater with a hood and that he was wearing it the whole time he was there. In cross-examination, it was put to her that her trial testimony contradicted both what she told the police when she was interviewed after her arrest and what she said in her statutory declaration. That is true, but only to a certain extent.
[102] In her statement to the police, Puskas said that she could see that the accused had a T-shirt on underneath the blue sweater, whereas she testified at trial that she could not see what was underneath because the zipper was done up all the way. While this is an inconsistency, it is not much of one and it is not clear that there is any other. In her statutory declaration, Puskas said that she did not notice the accused wearing the “blue jacket/sweater” which was seized by the police and that it must, therefore, have been in the “duffle bag” he brought into her apartment. In cross-examination, she said that she was wrong about this. However, it is not clear to me that Puskas was talking about the Maple Leafs jacket either at trial or in any of her previous statements.
[103] The Maple Leafs jacket was introduced as an exhibit after Puskas testified. I have examined it closely and, in my opinion, it cannot be said that it resembles a jogging suit, as Puskas testified the accused was wearing at her apartment. Nor does it have a hood. Ms. Puskas was never asked to identify the Maple Leafs jacket at any point during her testimony. Therefore, we cannot say for certain that she was talking about the same article of clothing when she referred to a “blue jacket/sweater” in her police statement, her statutory declaration and her trial testimony.
[104] I am certain, however, about one thing. Puskas testified that neither she nor Collins owned anything with a logo on it like the Maple Leafs jacket. I accept this evidence. There is no evidence to the contrary. There is no evidence, for example, that any police officer conducting surveillance ever saw Collins wearing such a jacket and the jacket, a size “XL”, appears to be too large to fit Puskas, whom I saw testify over the course of two days and who does not appear to be that large. Further, as I will mention again later in these reasons, there is evidence that Collins was wearing a black leather coat at the time the warrant was executed and would have no need of a Maple Leafs jacket at that time.
The Evidence of Puskas that She Permitted The Accused to Occupy the Back Bedroom
[105] One of the many frailties of Puskas's evidence relates to when the accused arrived at her apartment. At trial, she said that he and Collins arrived at about 2 a.m. on the day the search warrant was executed. In her statutory declaration, she said they arrived after lunchtime. In a statement she gave to the police after her arrest, she said they arrived around dinner time. For the reasons expressed below, I conclude that Puskas was right the first time she said anything about this.
[106] During his testimony, Det. Cst. Labelle opined that he believed the contacts in the Samsung phone whose names began with “Sudz” were people who lived in Sudbury and that, therefore, “Stugon” was shortform for “Sturgeon”, meaning Sturgeon Falls. I have not relied on this opinion evidence. There is no evidence that any of these contacts lived in Sudbury, although I believe it would have been a simple matter for the police to determine that.
[107] Nonetheless, I am satisfied that the “Stugon Sean” with whom the accused was texting is Collins. Collins lived in Sturgeon Falls and his first name is Sean. It would defy coincidence, especially in the context of the other evidence, if Stugon Sean was anyone else.
[108] Based on the texts, I conclude that the accused arrived in Sturgeon Falls at about dinner time on March 29, 2021, when he sent a message to Collins at 6:06:14 p.m. that he was “almost there”, and Collins replied “Nice”. While there are later texts, the next one is sent about one and a half hours later and pertains to specific drug transactions, in my view. I conclude that the accused was already at the Puskas residence when the later messages were sent.
[109] Based on this evidence, the accused had been at the Arthur Street residence overnight on March 29 and for most of the day before the search warrant was executed on March 30, 2021. I accept Puskas’s evidence that she allowed the accused to stay in the back bedroom from the time of his arrival until the execution of the search warrant. This is borne out by the evidence of the items found in that room, to which I will now turn.
The Circumstantial Evidence that the Accused Did Occupy the Back Bedroom
[110] The police found a number of articles in the back bedroom linking the accused to the use of that room. This includes the Maple Leafs toque that was found there and the fact that the Samsung phone was plugged into the wall there. It also includes the CapitalOne credit card in the accused’s name and the Scotiabank card, both found in the fanny pack. Although the Scotiabank card was not in anyone’s name, I have compared the signature on the back of that card with the signature on the accused’s drivers’ licence, as I am entitled to do, and they appear to be the same: see R. v. Abdi (1997), 1997 CanLII 4448 (ON CA), 34 O.R. (3d) 499 (Ont. C.A.).
[111] The circumstantial evidence also includes the evidence that a black gym back was found in the back bedroom. That bag was searched by Det. Cst. Fox and found to contain articles of clothing. This is consistent with the evidence of Puskas that the accused had a black bag with him when he arrived. The fact that there was only one bag found there is consistent with the accused being the only occupant of the bedroom.
The Evidence that the Jacket was Found Just Outside of the Window of the Bedroom Through Which the Accused was Observed Trying to Escape
[112] On behalf of the accused, Mr. Clark submits that the evidence surrounding the seizure of the handgun lacks reliability. He points to the fact that Det. Sgt. Perreault never mentioned seeing the coat outside the bedroom window even though he was in that area at the time he wrestled the accused back into the bedroom. He also relies on a Case File Synopsis prepared by Det. Cst. Labelle concerning this case in which he wrote that the accused had broken a screen off the back bedroom window. He points out that none of the police officers mentioned seeing such a screen and that no screen is shown in any of the photos taken by Det. Cst. Goode.
[113] I am not troubled by these aspects of the evidence. I accept Det. Cst. Labelle’s evidence that he prepared the Case File Synopsis the night the search warrant was executed and that he relied on the evidence of the other officers in preparing it. The synopsis is nothing more than a hearsay statement about the events. There is no evidence that Det. Cst. Labelle ever went into the back bedroom, let alone outside of it to the window area. I accept that he may simply have misunderstood the information he was given.
[114] I also accept the Crown’s submission that the evidence of Det. Sgt. Perreault must be assessed in light of the events that were unfolding at the time. He testified that, after he pushed the accused back into the bedroom, he “ran” back around the house to get into the apartment to help his fellow officers secure the scene. Because he did not and could not know how many people had been found in the apartment, I accept that he would have been in a hurry to get inside the apartment, given what he had seen about the actions of only one of the people that were in there.
[115] More importantly, the photos taken by Det. Cst. Goode show what I believe is a blue jacket located on the ground just outside the window of the back bedroom. These are the same photos that Mr. Clark asks me to rely on when considering the evidence about the screen. It is true that the photos do not show a screen. However, that does not mean it was not there. The photos are taken from an angle looking upward. It is quite possible that the screen was outside the window, out of sight. Although, as I have explained, I am cautious about Puskas’s evidence overall, I accept her evidence about the screen having been broken before the events of March 30, 2021. There is no reason for her to lie or even to be mistaken about this. I accept that she had to use the window to get in at times, although I do not accept her evidence about how often.
[116] Mr. Clark also focuses on Det. Cst. Goode’s entry on the exhibit list that the Maple Leaf jacket was found by Cst. Henry, who testified that he only searched the front bedroom and the only coat he found was the black one underneath Collins. The entry also conflicts with the evidence of Det. Cst. Fox that he searched only the back bedroom and found the Maple Leafs jacket just outside of it. For the reasons I have explained, I accept the evidence of both of these officers over the evidence of Det. Cst. Goode. Based on this evidence, I conclude that the entry by Det. Cst. Goode about who found the Maple Leafs jacket was an error. As Det. Cst. Goode explained, the spreadsheet program he was using automatically pre-populates the fields based on earlier entries. The entry concerning the blue Maple Leaf jacket was made immediately after a series of entries that were unchallenged in which Det. Cst. Goode entered what Cst. Henry had found in the front bedroom.
[117] For these reasons, I am satisfied that the Maple Leafs jacket was found just outside of the back bedroom window and that it contained the handgun in the right pocket.
The Absence of Evidence that Anyone Else Occupied the Bedroom or Wore the Maple Leafs Jacket
[118] Mr. Clark also refers me to evidence that someone else may have occupied the back bedroom. First, he refers me to the fact that Det. Cst. Labelle wrote in the Case File Synopsis that the health card with Collins’s likeness on it and the flip phone were found in the back bedroom. I believe that this is another error on the part of Det. Cst. Goode. Det. Cst. Labelle testified that he relied on Det. Cst. Goode’s exhibit list in preparing the synopsis and I accept that evidence. Det. Cst. Goode’s exhibit list indicates that the health card and flip phone were found in the back bedroom by Det. Cst. Fox. However, as I mentioned earlier, the spreadsheet program pre-populated fields based on earlier entries. The entry about the health card and the flip phone followed a series of entries about what Det. Cst. Fox found in the back bedroom. I accept Cst. Henry’s evidence that he found the health card and flip phone in the front bedroom.
[119] Mr. Clark also referred me to a statement made by Det. Cst. Labelle in an ITO sworn on May 12, 2022, in support of the warrant to search the Samsung phone. Apparently, Det. Cst. Labelle wrote that Tyrone Lothian’s identification was found in the back bedroom and not the front bedroom. This information contradicts the evidence of Cst. Henry and Det. Cst. Goode’s exhibit list, both of which indicate that the wallet was found by Cst. Henry in a drawer in the front bedroom. The ITO in question was not introduced as evidence and I am, therefore, not in a position to make my own determination as to whether there is a contradiction. Assuming there is, I am satisfied that it was an error on Det. Cst. Labelle’s part. I accept the evidence of Cst. Henry, who impressed me as a very credible and reliable witness. He was not impeached in any way.
[120] Finally, Mr. Clark argues that there is an absence of evidence as a result of which other reasonable inferences arise about who possessed the drugs apart from his client. He highlights the evidence of Shone Tarrant, the Forensic Identification Officer, that fingerprint impressions could have been lifted from the numerous fast-food containers found by the police on the night table in the back bedroom.
[121] It is true that the absence of circumstantial evidence can give rise to reasonable inferences other than an accused’s guilt, in just the same way the presence of certain evidence can: Villaroman, at para. 36. However, while I agree that the police could, and probably should, have done more to investigate the allegations here, as these reasons explain, the evidence is sufficient to preclude any reasonable inference other than the guilt of the accused.
The Evidence that the Accused was in Possession of the Fentanyl and Cocaine
[122] As I will explain when I deal with the drugs found in the back bedroom, I am satisfied beyond any reasonable doubt that the accused possessed the fentanyl and cocaine for the purpose of trafficking. As the evidence relates to the handgun, I accept the evidence of Det. Cst. Weber that drug traffickers arm themselves with handguns to defend their supply against other traffickers and users. This is amply supported by the many reported cases in which police have seized drugs and handguns in the same place and at the same time.
[123] For this reason, I rely on the presence of the drugs for the purpose of trafficking as circumstantial evidence that the accused possessed the handgun.
[124] Based on this and all of the other evidence I have mentioned, I am satisfied beyond a reasonable doubt that the accused was in possession of the handgun.
The Handgun: Knowledge
[125] The remaining question is whether the Crown has proven beyond a reasonable doubt that the accused knew the gun was loaded? I believe it has.
[126] This is not a case like Lights. In Lights, the only evidence that the accused possessed a loaded gun consisted of the evidence of the police officers that they saw the accused put something silver under his buttocks or between his legs as they entered his apartment, where he was sitting on a couch. A subsequent search of the area where he was sitting revealed a loaded semi-automatic handgun. There was no evidence in Lights that the accused had possessed the gun for any period of time before the police entered and the remaining evidence made it uncertain whether he could have known it was loaded merely by handling it.
[127] That is not the case here. In this case, the evidence of the photos from the Samsung phone show that the accused was in possession of the Maple Leafs jacket before he arrived at the Arthur Street address. There is no evidence that anyone else wore the jacket and there is no reason to believe that anyone else would have. As the black coat found under Collins in the front bedroom demonstrates, he had his own coat. As I have explained, I accept Puskas’s evidence that neither of them owned a Maple Leaf jacket.
[128] As the sole person in possession of the jacket, it is reasonable to infer that it was the accused who placed the handgun in it. Any other inference would be unreasonable. While the evidence of Puskas is that Collins went to the back bedroom at least once, it is unlikely he placed the gun in the accused’s pocket without the accused knowing. Puskas testified that the accused was in the bedroom at the time. The evidence also precludes the possibility that either Collins or Puskas placed the gun in the jacket just before or during the execution of the search warrant to avoid being accused of possessing it. The evidence is that both of them were in the front bedroom at the time the police entered and that the police gave no notice that they were about to do so.
[129] Based on this evidence, I conclude that the only reasonable inference available on the evidence is that the accused had possession of the handgun before he arrived at the Arthur Street address and maintained such possession while he was there. As such, only he could have loaded it.
[130] Having found beyond a reasonable doubt that the accused was in possession of the loaded Glock handgun, it follows that he is also guilty of breaching the prohibition and release orders.
[131] I move on now to the evidence about the drugs.
The Drugs: Possession
[132] I am satisfied beyond any reasonable doubt that the accused was in possession of the drugs found in the back bedroom. The evidence I rely upon in reaching that conclusion includes:
(1) the evidence of Puskas that she allowed the accused to occupy the room exclusively;
(2) the absence of evidence that the bedroom was being occupied by anyone other than the accused;
(3) the evidence that the drugs in the back bedroom were in plain sight;
(4) the evidence of Puskas that the drugs were not hers;
(5) the evidence of the police officers who testified that Collins and Puskas were found in the front bedroom as they entered the apartment to execute the search warrant and the things they found there;
(6) the evidence of Det. Cst. Fox that the door to the back bedroom was closed as he approached it during the execution of the search warrant;
(7) the evidence of the Maple Leafs toque found on the bed and the Maple Leafs jacket found outside the window;
(8) the evidence of the fanny pack found in the bedroom, in which there was a CapitalOne credit card with the accused’s name on it and a Scotiabank credit card with his signature on the back; and
(9) the evidence that the Samsung phone belonged to the accused and was plugged into the wall when it was found in the bedroom.
[133] I have already discussed the evidence of Puskas that she allowed the accused to occupy the back bedroom, the absence of evidence that anyone else occupied that bedroom at the same time, the evidence about the Maple Leafs toque and jacket, the evidence about what was found in the fanny pack, and the evidence that the Samsung phone belonged to the accused. I will now discuss the other evidence upon which I rely in concluding that the accused possessed the drugs found in the back bedroom.
The Evidence that the Drugs in the Back Bedroom Were in Plain Sight
[134] The photographs taken by Det. Cst. Goode prior to the search being undertaken support the evidence of Det. Cst. Fox that the drugs found in the back bedroom were in plain sight. They show a white plastic bag on the night table in which one can see several Ziplock bags. Inside the Ziplock bags, one can see a blue substance. Even more obvious is another Ziplock bag, this one sitting alone on the night table, inside of which one can see a white substance. The blue substance turned out to be fentanyl. The white substance was cocaine.
[135] The fact that the drugs were in plain sight leads to an inference that the accused knew they were there.
The Evidence of Puskas that the Drugs Were not Hers
[136] Mr. Clark spent a lot of time on behalf of his client cross-examining Puskas to show that she was aware of and, in fact, profiting from the fact that Collins was dealing drugs from her apartment. Although Puskas refused to admit it, I accept that Collins was dealing drugs from the Arthur Street residence and that Puskas not only knew about it, but was being given small quantities of drugs to support her habit. This is demonstrated by the small quantities of drugs found in feminine articles in the front bedroom.
[137] However, the fact that Puskas knew about the drugs does not detract from her evidence that the drugs were not hers. I accept that they were not. All of the evidence I have referred to and the evidence I will highlight shortly is consistent with the fact that the drugs found in the back bedroom were those of the accused and not Puskas or Collins.
The Evidence of the Police Officers Who Testified that Collins and Puskas Were Found in the Front Bedroom as They Entered the Apartment to Execute the Search Warrant and the Things They Found There
[138] This evidence, like so much of the other evidence, is relevant to both the drug and the firearm charges.
[139] As I mentioned in my recitation of the background facts, this was a “no-knock” warrant execution. It was designed to take the occupants of the apartment by surprise, and I believe it did. For reasons I will explain immediately below, I do not believe that there was anyone in the living room area when the police entered. Instead, I believe that the occupants were found by the police in the areas they had been in immediately before the police entered: Puskas and Collins in Puskas’s bedroom and the accused in his.
[140] This evidence supports an inference that the accused was in sole occupation of the back bedroom. So, too, does the evidence about what the police found in the front bedroom. It is clear from the photos that Puskas occupied the front bedroom. It was much more crowded with the signs of being lived in – articles of clothing, toiletries, and the like – than was the back bedroom. Based on the presence of the black leather coat found under Collins when the police entered, I infer that he was temporarily occupying that room, as well.
[141] It would make no sense, if the drugs were theirs, why either Puskas or Collins would not have them in the front bedroom, rather than in the back bedroom.
The Evidence of Det. Cst. Fox that the Door to the Back Bedroom was Closed as he Approached it During the Execution of the Search Warrant
[142] Mr. Clark submits that the evidence gives rise to inferences other than his client’s guilt that prevent me from concluding that his client was in possession of the drugs found in the back bedroom. He highlights the evidence of Det. Cst. Goode that he believes he saw the tail end of the accused running from the living room area to the back bedroom area when the officers first entered the apartment and the evidence of Det. Cst. Bronicheski given during the preliminary inquiry to a similar effect. If this is correct, then it could mean that the accused went into a room he was not otherwise occupying.
[143] I do not accept this evidence. I have already explained why I do not accept the evidence of Det. Cst. Goode where it conflicts with the evidence of other officers. I accept the evidence of the other officers in the stack that Cst. Henry was the breacher. Cst. Henry did not testify that he saw anyone moving from the living room area to the back bedroom area. I also accept the evidence of Det. Cst. Labelle that he was immediately behind Cst. Henry and his evidence that he, too, did not see anyone moving from the living room to that area.
[144] Finally, I accept the evidence of Det. Cst. Fox that he was third in the stack, that there was no one in front of him when he went to the back bedroom, and that the bedroom door was closed. His evidence that he went to the back bedroom without pursuing anyone is consistent with the evidence of all of the officers that they “take up space”. Cst. Henry and Det. Cst. Labelle had already taken up the front bedroom. While it is true that Det. Cst. Fox would have had to pass the bathroom/laundry room area as he made his way to the back bedroom, I accept that what was going on behind a closed door would have been of more concern to a police officer than what was happening in an open space in which no one was readily visible.
[145] As for Det. Cst. Bronicheski's testimony, I accept his evidence at trial that he was mistaken when he testified at the preliminary inquiry that he thought he saw the accused running to the back bedroom. At trial, he testified that he now believed it was either Det. Cst. Fox or Det. Cst. Goode that he saw. This makes sense given that, on any account of the facts, Det. Cst. Bronicheski was behind both of them as he entered the apartment. It seems unlikely that he could have seen anyone other than the officers in front of him. Det. Cst. Goode testified that he is 6’3” and I can attest to the fact that he is not a small man. I doubt that Det. Cst. Bronicheski could have seen around him as they made their way into the apartment after lining up single file in the small stairwell that led to the apartment door.
[146] Moreover, any contradiction there may be between Det. Cst. Bronicheski’s evidence at the preliminary inquiry and his evidence at trial is not a strong one. He expressed considerable uncertainty at the preliminary inquiry about this aspect of his evidence. I believe that any change in his evidence is more consistent with having thought it through than having decided it was not helpful to the Crown.
[147] This evidence, along with the other circumstantial evidence I have already dealt with showing sole occupation of the bedroom by the accused supports an inference of control of that area by the accused and knowledge of the presence of the drugs.
[148] For all of these reasons, I am satisfied beyond a reasonable doubt that the drugs found in the back bedroom were in the possession of the accused.
The Drugs: Purpose
[149] Finally, I am satisfied beyond a reasonable doubt that the accused possessed the drugs found in the back bedroom for the purpose of trafficking. The evidence I rely upon in reaching that conclusion includes:
(1) the content of the text messages extracted from the Samsung cell phone;
(2) the use of an alias;
(3) the use of two cell phones by the accused;
(4) the use of a rental car by the accused;
(5) the presence of the two cell phones charging in the back bedroom;
(6) the time of the month at which the accused was visiting Collins;
(7) the presence of a digital scale in the back bedroom;
(8) the presence of blue and white residue on the scale, consistent with the colour of the drugs found there;
(9) the amount of cash found in the fanny pack;
(10) the loaded gun found in the Maple Leafs jacket; and
(11) the quantity of the drugs themselves.
The Content of the Text Messages Extracted from the Samsung Cell Phone
[150] I have already mentioned the nature of the text messages downloaded from the Samsung phone and how they indicate that the accused was inquiring of Collins whether there was any interest in anyone buying drugs. To illustrate, I will set out a series of texts exchanged between the accused and Collins between 9:14 p.m. on March 26 and 1:55 a.m. on March 27, 2021:
The accused: So any concrette chios9 [sic]
The accused: Chops
Collins: Yeah lots of chops
Collins: Yeah lots of chops [sic]
The accused: How much they need
Collins: I’m trying to reach out m but everyone is looking from pts to g to qrt I’ll find out about the qrt chop but I know I had 2 gs sold if you’d of came at 10.
Collins: I’d imagine they found by now but the folks love the blue m and prefer it over anything else
The accused: Need the qrt chops
The accused: See if he wants it ill cum
[151] Based on the evidence of Det. Cst. Weber, I have no difficulty concluding from these messages that the accused was supplying drugs to people in Sturgeon Falls with the assistance of Collins at the time he was found in possession of the drugs in question.
The Use of an Alias
[152] I am also satisfied that the accused in this case used the name Jimmy as an alias. This was the name he gave himself on the Samsung phone, the name he gave Puskas, and even the name he gave Collins. However, based on the driver’s licence found in the Audi, Jimmy is not the accused’s name.
[153] Based on the evidence of Det. Cst. Weber, and plain common sense, the use of an alias is circumstantial evidence supporting the inference that the drugs in question were possessed for the purposes of trafficking.
The Use of Two Cell phones by the Accused
[154] I accept the evidence of Puskas that she saw the accused using two cell phones while he was at her apartment. The evidence itself was detailed about how he used one phone to text and another to talk and about how he went to the back bedroom to carry on conversations. It could not be said that this evidence was self-serving on Puskas’s part because it undermines her evidence that she did not know that Collins was selling drugs from her apartment.
[155] Puskas’s evidence is also supported by the fact that the police found two cell phones in the back bedroom, which I will come to shortly.
The Use of a Rental Car
[156] I am satisfied that the rented Audi was being used by the accused based on the evidence that the key to the Audi was found in the Maple Leafs jacket, that it was used to open the Audi parked in front of the Arthur Street property, that the Samsung phone was connected at one point to a device named Audi MMI 4070, and that the accused’s driver’s licence was found in the Audi to support this inference.
[157] On behalf of the accused, Mr. Clark submits that there was not enough evidence about where Det. Sgt. Perreault found the accused's drivers licence in the Audi. I am not troubled by this. The officer testified that he found the licence in the centre console of the car. No other licence was found in the car. Therefore, it makes no difference where in the centre console the licence was found.
The Presence of Two Cell Phones Charging in the Back Bedroom
[158] Although the police did nothing to determine the identity of the owner of the Apple phone found in the back bedroom, I infer that the phone also belonged to the accused. I base this inference on the fact that the Apple phone was found plugged into the wall next to the Samsung. It is unlikely that someone who was not the owner of the phone would plug it into an outlet in a room being occupied by someone else when there were other outlets available to charge the phone, as it appears there were, based on the pre-search photos taken by Det. Cst. Goode.
[159] The inference that the Apple phone belonged to the accused is also supported by the evidence of Puskas that she saw the accused using two cell phones.
The Time of the Month at Which the Accused was Visiting Collins
[160] While I do not give this evidence much weight, it is still relevant that the accused was in Sturgeon Falls at the end of the month of March. As Det. Cst. Weber testified, this is consistent with trafficking drugs to people who receive government funds at the end of each month.
The Presence of a Digital Scale in the Back Bedroom
[161] The digital scale found in the back bedroom was located just in front of the plastic bags containing fentanyl and cocaine. While I accept that scales can be used by both sellers and purchasers of drugs, the fact that it was found located right next to a very significant quantity of drugs leads me to conclude that it was used by the accused mainly for selling, not for buying.
The Presence of Blue and White Residue on the Scale
[162] So, too, does the presence of both blue and white residue on the scale. These colours are consistent with the use of the scales to measure quantities of both the fentanyl and the cocaine found next the scale. In combination with the evidence of Det. Cst. Weber about the quantity of the drugs, this supports an inference that the scales were used for selling, not buying, drugs.
The Amount of Cash Found in the Fanny Pack
[163] One hardly needs expert evidence to know that drug deals are done in cash, although there is such evidence in this case. In addition to the $1,100 found in the fanny pack, the police also found two bank cards, which I have concluded both belonged to the accused. The fact that the accuse had two bank cards leads to the conclusion that the accused did not need to carry around that much cash, unless he was collecting it from drug sales or using it as a float, which is what I have concluded is this case.
The Loaded Gun Found in the Maple Leafs Jacket
[164] Having concluded beyond a reasonable doubt that the accused was in possession of the handgun and that he knew it was loaded, I am entitled to consider these facts as circumstantial evidence of drug trafficking, based on the evidence of Det. Cst. Weber and, as I have said, legions of other cases. Indeed, the presence of a loaded handgun in a jacket is a significant piece of circumstantial evidence because loaded handguns are rare outside of the drug dealing context, at least in Canada.
The Quantity of the Drugs
[165] Finally, I come to the quantity of the drugs found in the back bedroom.
[166] Det. Cst. Weber testified that the value of the fentanyl found was between $13,720 and $41,160. He said that, depending on the rate of consumption, the quantity found could last either 34 days or 6,860 days. With respect to the cocaine, Det. Cst. Weber testified that the value of the amount found was between $3,100 and $6,200. In the absence of other evidence, it might be inferred that this was for personal use. However, based on the other evidence to which I have referred, I conclude it was not.
[167] For these reasons, I have concluded beyond a reasonable doubt that the accused was in possession of the drugs found in the back bedroom for the purpose of trafficking.
CONCLUSION
[168] For all of the foregoing reasons, I am satisfied beyond a reasonable doubt that the accused was knowingly in possession of the loaded handgun found in the Maple Leafs jacket, that he was in possession of the drugs found on the night table in the back bedroom, and that he possessed those drugs for the purpose of trafficking them.
[169] Therefore, convictions will be entered on all counts.
M.G. Ellies J.
Released: April 11, 2024
COURT FILE NO.: CR-22-57
DATE: 2024/04/11
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
ANTHONY EDWARDS
Defendant
REASONS FOR DECISION AT TRIAL
M.G. Ellies J.
Released: April 11, 2024
CORRECTED DECISION: The text of the original decision was corrected on April 11, 2024, and the description of the correction is appended below:
• The spelling of the name of counsel, M. Mazurski, was corrected on pages 1 and 12.
[^1]: In fairness to Det. Cst. Goode, he gave his evidence at trial under difficult circumstances. He had just lost a loved one and was visibly emotional over the loss.