Court File and Parties

COURT FILE NO.: CR-21-5240 DATE: 2024-04-19

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – MOHAMED AHMED ABDIRAHMAN Defendant

Counsel: Richard Pollock, Agent for the Director of Public Prosecutions Jessica Grbevski, for the Defendant

HEARD: April 2, 3, 4, 5, 10, 11 & 12, 2024.

THOMAS, J. :

Endorsement

[1] On December 24, 2019, just after midnight, Mohamed Ahmed Abdirahman, (“Abdirahman”), drove a 2019 white Volvo transport truck pulling a loaded trailer across the Ambassador Bridge into Canada at Windsor, Ontario.

[2] The following facts are revealed by the admissions made by counsel.

[3] It was approximately 12:10 a.m. when the accused, Mohamed Ahmed Abdirahman, the sole occupant and driver of a commercial tractor-trailer unit, owned by Hilton Transportation Inc., (“Hilton”), entered Canada via the Ambassador Bridge Port of entry at Windsor, Ontario. He was returning from a trip to California. The truck was a white Volvo model with Ontario licence plate PA 10579.

[4] Mr. Abdirahman drove his tractor-trailer to CBSA Primary Commercial Inspection Lane #9. He presented himself to Border Services Officer Comerford, (“Comerford”).

[5] The accused was referred to secondary inspection.

[6] A search of the truck cab revealed nine boxes and plastic totes, each of which contained packages of methamphetamine, a Schedule 1 substance under the Controlled Drugs and Substances Act.

[7] A total of 200 packages of methamphetamine were found among nine boxes and plastic totes; each weighed approximately one kilogram.

[8] The total weight of methamphetamine seized was 196.7 kilograms without packaging.

[9] Samples of the drugs were sent to Health Canada for analysis. It was confirmed to be methamphetamine.

[10] Abdirahman was arrested at the commercial inspection lane and is charged with importation of methamphetamine and possession of that drug for the purpose of trafficking.

[11] The triable issue here is simply whether Abdirahman has the requisite knowledge of the drugs he was transporting, to find him guilty of the offences charged. The Crown case is built on circumstantial evidence. The defence called no evidence.

The Evidence

Customs - Windsor

[12] Comerford was the first Canadian contact with Abdirahman. He was the Officer in booth #9. The Volvo tractor-trailer came to his booth.

[13] Abdirahman told him he had been in the United States for nine days and had only two cartons of cigarettes to declare. Comerford saw that his communication system required him to send the truck to secondary inspection and he did so.

[14] From the primary booth, Abdirahman drove his truck to the commercial inspection area. He stopped at the appropriate kiosk and there met Officer McGregor, who received the same information about Abdirahman being nine days away in the United States, (the evidence reveals he was in the United States for 14 days). McGregor directed the vehicle to an appropriate location for secondary inspection.

[15] There is no evidence from any of the Border Service Officers who came in contact with Abdirahman on December 24, 2019 that he displayed any nervousness or anxiety, only that he appeared withdrawn.

[16] Once parked, Abdirahman was directed away from the truck and inside the inspection facility. Officers Gaudette, (“Gaudette”), and Legare, (“Legare”), approached the vehicle to commence inspection.

[17] It is the evidence of both Officers that in an inspection of a truck like the Volvo, they started by inspecting the cab, and then later moved to the trailer at a different location. The evidence, including the photos, revealed the Volvo to be designed for long-haul trucking, with a bunk area behind the driver and storage areas designed to maximize all available space to accommodate items for the lengthy trip.

[18] There are two storage compartments, one on each side of the cab, which can either be accessed from the outside of the vehicle, or from the inside by lifting up the lower bunk exposing the storage areas. To allow for access from outside the truck, the doors of the truck must be opened and a ring near the foot of the driver or passenger, respectively, pulled. That pulling of the ring disengages a latch on the cover of the storage area and allows for it to be lifted by someone standing on the ground.

[19] Gaudette completed that process on the passenger side of the vehicle and was confronted with a cardboard box. The box had clear tape on it to seal it but was found open. Gaudette removed the box, and it is his evidence that he placed it on the passenger seat to look inside. The evidence of the Officers diverge on where the box was placed once removed, but the photos taken by Officer McGregor shows it between the two seats.

[20] In any event, the box reveals multiple sealed plastic bags containing a white crystal substance. Gaudette alerted Legare and Legare manually inspected the bags. Legare then took one of the gloves he was wearing to the inspection facility where he conducted an ion test that determined the presence of methamphetamine. At that time, Abdirahman was taken out of the facility, arrested for importation and handcuffed. It was 12:25 a.m.

[21] It should be noted as well that it was the evidence of all Officers that they were wearing personal protective equipment (PPE), in part because once inside the cab, they were confronted with a very strong chemical odour, described as a smell similar to nail polish, which was irritating to the nose and eyes. It is possible that the odour was made more distinct by the presence of the open box in the cab placed there by Gaudette.

[22] After the arrest of Abdirahman, Officers Gaudette, Legare and McGregor conducted a detailed search of the truck cab. Officer McGregor took all of the photos, which attempted to capture all seized items, as they appeared, before they were touched by the Officers.

[23] The evidence of these witnesses reveal the following Exhibits found as a result of that detailed search:

• Box 1: A large cardboard box found in the exterior passenger side compartment of the tractor; which contained 18 bags containing 17.859 kilos of methamphetamine. This is the initial box found by Gaudette that lead to the arrest of the accused.
• Box 2: A “center pull” cardboard box found in same exterior passenger side compartment of the tractor; which contained 21 bags containing 20.868 kilos of methamphetamine.
• Box 3: A black plastic tote with a yellow lid on top of the driver’s side lower bunk bed, next to the fridge, in the cab of the tractor; which contained 60 bags containing 29.765 kilos of methamphetamine.
• Box 4: A red “Huggies” diaper box sealed with black duct tape found next to the black plastic tote on top of the driver’s side lower bunk bed; which contained 18 bags containing 17.847 kilos of methamphetamine. It should be noted that boxes 3 and 4 were covered by a bed sheet or blanket prior to being found by the Officers and were on the bunk directly behind the driver’s seat. The sealing duct tape on box 4 was the subject of some comparative testing which will be described later.
• Box 5: A brown cardboard box sealed with clear packing tape on one side and black duct tape on the other was placed behind a pillow on top of the passenger side lower bunk in the cab of the tractor. This was the opposite end of the bunk from boxes 3 and 4; it housed 19 bags containing 18.860 kilos of methamphetamine.
• Box 6: A second red “Huggies” diaper box sealed with clear packing tape found in passenger side closet compartment, in the cab of the tractor contained 18 bags containing 17.876 kilos of methamphetamine.
• Box 7: A brown cardboard box labelled “SIC VERNON, CA 90058”, sealed with clear packing tape, found under the bunk bed, in the cab of the tractor; contained 15 bags containing 14.876 kilos of methamphetamine.
• Box 8: A second black plastic tote with yellow lid, found under the bunk bed, in the cab of the tractor; contained 60 bags containing 29.961 kilos of methamphetamine.
• Box 9: A brown cardboard box labelled “Sterillite” found under the bunk bed, in the cab of the tractor. It was also accessible via the exterior driver’s side compartment, which contained 29 bags containing 28.795 kilos of methamphetamine.

[24] It should be noted that boxes 1, 2, 8 and 9 could be accessed from inside the truck cab by raising the lower bunk mattress, which was hinged, and then viewing a space below, which revealed three separated storage areas where the boxes were located.

[25] Also seized from the same driver’s side storage compartment above the refrigerator was a used roll of Gorilla brand black duct tape, which was the subject of comparative testing to be described later. This compartment is open to view and the duct tape was in plain view.

[26] The net weight of all the packaged methamphetamine was 196.7 kilograms without packaging.

[27] Officers also seized several other items during their secondary examination and arrest of Abdirahman, including a Samsung cell phone, a Hilton Trip List, bills of lading and various receipts for food and fuel.

[28] Officers returned to the truck subsequent to the initial search in an attempt to locate a “Papago” camera system. It is the evidence of Hilton Transportation employee John Ivy, (“Ivy”), that as the safety and compliance officer for Hilton Transportation in 2018 and 2019, as well as the equipment manager, he had installed the Papago camera system on the Volvo truck driven by Abdirahman. The camera was attached to the dash or windshield by a suction cup and obtained power from a 12 volt outlet, like a cigarette lighter. The camera was very easy to install or remove.

[29] The camera system faced outward toward the front of the trailer and was meant to capture any front end collisions of the vehicle. It was integrated with the Volvo’s proximity sensor system, and the camera was activated only by a collision and recorded video on a memory card in the unit. While Ivy was certain that this particular Volvo truck had the Papago camera installed, he agreed he had not inspected this vehicle since approximately December 1, 2019.

[30] The Officers did not locate a camera during their search of the vehicle. It is difficult to draw any inference from this camera evidence.

The Trip

[31] The evidence, including that received from the Hilton Transportation owner Jamieson Patry, (“Patry”), confirms that Hilton, based in Brampton, specialized in long-haul trucking. The vast majority, some 70 percent, was directed to the Company hub in Fontana, California for either pickup or drop off of loads. This particular trip for Abdirahman was no different.

[32] Abdirahman was hired in August, 2019, when he did his orientation and driver’s test. His first day of work was September 11, 2019. This trip was his third for Hilton. Abdirahman used his own cell phone to communicate while on the road, and a tablet located in the truck assisted in the electronic logging of the truck’s activities. GPS tracking allowed for Hilton to know where the truck was located at any given time.

[33] The log, as well as receipts for food and fuel, found in the truck cab confirmed the stops made by Abdirahman, across the United States and back to the Detroit/Windsor border. Along with the seized receipts were found documents for “Love’s” a truck stop found across the United States. Love’s apparently has a reward program that allows truckers to acquire points to be used on their own purchases. Interestingly, the Love’s receipts found, related to Abdirahman’s trip, did not show his name but rather the name “Zack Moris”, which other seized information related to an associated email address of Zackemorries@gmail.com.

[34] Those Love’s receipts note stops for fuel on the outbound trip in Michigan, Oklahoma and California, and on the return trip in Arizona; and finally on December 23, 2019 in Williamsville, Illinois.

[35] Regulations in place in both Canada and the United States require the drivers to rest and “reset” after being at the wheel for a maximum number of hours. Several long break periods taken by Abdirahman and recorded in the log could quite possibly have been reset periods.

[36] There is, however, a break taken by Abdirahman when his vehicle travelled south from Fontana, California to near San Diego. It was parked there and it is admitted that Abdirahman crossed by foot into Mexico near Tijuana at the San Ysidro, California Border crossing. His phone data shows his phone in Mexico, and a receipt from Mexican Uber shows he used Uber transportation further into Mexico. Again, the Uber receipt indicated the name of Zack Moris. Border crossing information has him returning to the United States at the same crossing on December 16, 2019, presumably to start his trip home. The driver log records show Abdirahman is 22 hours and 38 minutes in the sleeper bunk during these two days.

[37] It was the evidence of Patry that while drivers were allowed, and even required, to take breaks from time to time, they are not supposed to leave their trucks for any extended period, to prevent thefts. Patry testified that he would never have approved Abdirahman to leave the truck to enter Mexico, and information like that would be a “huge red flag” for him as the business owner.

[38] William Sturgeon, (“Sturgeon”), of the R.C.M.P. provided an extraction report and evidence regarding his download of the cell phone seized from Abdirahman. The Crown has pointed me to the frequency of phone usage, but particularly the contact by Abdirahman’s phone with a number associated with a contact “El Chapo”.

[39] The extraction report shows over 80 communications with El Chapo from December 2, 2019 to December 23, 2019, with 14 calls on December 23, 2019, the day before Abdirahman’s border crossing.

[40] The driver log notes that upon arriving at the truck stop in Illinois on the return trip, Abdirahman was logged into the sleeper bunk from 2:00 a.m. until 3:15 p.m., or 22 hours.

Andrea MacLeod

[41] On January 6 and 7, 2020, Andrea MacLeod, (“MacLeod”), became involved in the assessment of the seized items. She was a forensic investigator with the R.C.M.P. The exhibits seized from the cab of the Volvo truck driven by the accused were brought to her at the R.C.M.P. detachment in Newmarket at that time.

[42] The exhibits were broken down. Each bag and box weighed and assessments done by MacLeod to determine if fingerprints could be exposed on the exhibits. Despite extensive efforts no fingerprints, suitable for identification, were identified.

[43] At the time, MacLeod removed a section of black duct tape, which had been used to seal a red Huggies box filled with methamphetamine. That box was found on the bunk next to the refrigerator directly behind the driver’s seat inside the truck cab.

[44] MacLeod compared the end of the black duct tape to the end of the partial roll of black “Gorilla” duct tape found in a storage compartment above the refrigerator, also directly behind the driver’s seat.

[45] MacLeod took photographs of both sections of tape as well as measurements and detailed observations of the physical characteristics of both pieces of tape.

[46] It was proposed by the Crown that MacLeod be qualified as an expert and be allowed to provide her opinions on whether the end of the tape from the box matched the end of the tape on the roll found in the location described, such that both pieces were at one point in time part of a continuous single strip of duct tape.

[47] I received MacLeod’s evidence of her observations, photos and measurements as a “fact” witness. I declined to admit her potential expert opinion in that I found it unnecessary to assist me as the trier of fact.

[48] In White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, the Court directed that the first step to admitting expert opinion evidence required the proponent to satisfy the following threshold:

(i) Logical relevance; (ii) Necessity to assist the trier of fact; (iii) Absence of an exclusionary rule; and (iv) A properly qualified expert.

(See also R. v. Abbey, 2017 ONCA 640; R. v. Mohan, [1994] 2 S.C.R. 9.)

[49] To satisfy the threshold “necessity”, the opinion evidence must be more than simply helpful, but must be needed to allow the trier to appreciate technical information or form a correct judgment where ordinary persons would be unlikely to do so without the expert’s assistance. (R. v. D. (D.), 2000 SCC 43, [2000] 2 S.C.R. 275.)

[50] Ordinary persons regularly confront the experience of attempting to match pieces together, whether it be a broken or torn item, or a simple jigsaw puzzle. I am content that with the facts provided by this witness, I am able to form the correct judgment regarding the tape match without an expert opinion.

[51] Investigator MacLeod first provided evidence regarding the strip of tape she removed from the red Huggies box (Exhibit #249). It was her evidence that the tape was 4.7 centimetres in width with 54 indentations that run across the entire width. These indentations are 1 millimetre apart and approximately 1 millimetre in length. The tape is black, porous and flexible. The edge of the tape is, for the most part, straight, but has several irregular points on the edge, which may be the product of tearing it away from the roll.

[52] The evidence reveals that the end of the tape on the roll (Exhibit #9) is also 4.7 centimetres in width with the exact same number of indentations, those indentations having the same measurements as Exhibit #249. The tape off the roll (Exhibit #9) is also back, porous and flexible.

[53] The close-up photographs of the two tape ends placed side by side reveal that the irregular points on the edge of Exhibit #249 fit almost perfectly into the irregular gaps on the edge of Exhibit #9 with the straight portions matching as well.

[54] As a result, I find as a fact that the tape from the red Huggies box (Exhibit #249) and the end of the tape from the roll (Exhibit #9) were at one time a continuous single section of tape.

[55] It is clear then that the tape found in the compartment behind the driver’s seat was used to seal the box of methamphetamine found on the bunk close by.

Rodney Gray

[56] I have received the evidence of Rodney Gray, (“Gray”), on consent. Gray retired from the R.C.M.P. in 2021 with the rank of Sergeant and is an expert in the identification, pricing, packaging, importation, and trafficking of illegal substances, including methamphetamine.

[57] It was his evidence that regulations in the United States and Canada, that have restricted the supply of precursor drugs, like ephedrine, have lead to a decline in the production of methamphetamine in those countries. As a result, methamphetamine production in Mexico has increased and is controlled by cartels, which direct the transnational smuggling from Mexico into the United States.

[58] It was his opinion that this quantity of 100 percent pure methamphetamine (consistent with the testing of this seizure) would have a value of between $15,680,000 and $29,400,000 on the gram level or $4,508,000 to $5,880,000 on the kilogram level.

[59] It is conceded that possession of this drug in this quantity could only be for the purpose of trafficking.

The Crown Position

[60] The Federal Crown relies upon the location, quantity and value of the drug to prove knowledge and therefore possession. It suggests that without an alternative explanation, the inference of possession and guilt is overpowering.

[61] It also argues that I should find the use of the alias “Zack Moris” as supporting of this illegal transport, along with the numerous communications with El Chapo. It suggests that Abdirahman’s diversion into Mexico was likely to firm up the details of the delivery of methamphetamine to the truck driver by Abdirahman.

The Defence Position

[62] The defence contends that there are a myriad of unknowns and possible explanations, which individually, or particularly cumulatively, should lead to reasonable doubt on the issue of Abdirahman’s guilty knowledge.

[63] I will attempt to capture the argument here:

• Neither the primary officer, Comerford, nor the kiosk officer, McGregor, noticed an odour from the truck cab and so there was no reason to think Abdirahman would be offended by it either. Additionally, it is possible that the truck later smelled of a chemical smell because of the open box of methamphetamine placed there by Gaudette.
• Abdirahman suffers from an inadequate investigation. Officers from Canadian Border Services did not treat the truck as a crime scene. More effort should have been taken to photograph the entire inside of the truck cab before individual photos were taken. No effort was made to collect trace evidence like D.N.A., even though the drug-related items did not yield fingerprints suitable for comparison. There was no investigation of associates of Abdirahman.
• The defence pointed to a Hilton employee/driver named Andre Drebicki. Drebicki no longer drives for Hilton, but at the time of Abdirahman’s road test in August, 2019, he used the truck assigned to Drebicki. Also, we know Drebicki was coming back into Canada at the Ambassador Bridge sometime shortly after Abdirahman’s arrest and he alerted the Hilton dispatcher of the seizure. The defence suggests that Drebicki was coming from California and stopped with Abdirahman in Illinois.
• It is the defence’s argument that Drebicki or his confederates may have taken that opportunity to load Abdirahman’s truck with the drugs without his knowledge. Drebicki may have used Abdirahman as a decoy to get arrested, allowing Drebicki and his load of contraband to cross undetected.
• There is evidence that as with most Hilton drivers, Abdirahman likely had two sets of keys to the Volvo truck. It is common practice for drivers to fix a magnetic hide-a-key in case they lose the first set. Perhaps Drebicki, his confederates or an unknown third party, found the key and loaded Abdirahman’s truck cab with the drugs.
• The defence suggests that the used roll of black Gorilla brand duct tape found in the storage compartment could not have been in plain view as the photo depicts, despite McGregor’s evidence. The defence points to what they say is an anomaly on the photo that should alert me to the photo’s image as unreliable.

Analysis

[64] To satisfy its onus in this case, the Crown must prove beyond a reasonable doubt that Abdirahman “constructively” possessed the methamphetamine.

[65] Constructive possession was defined in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at para. 17:

[17] 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.

[66] As mentioned previously, there is no issue that methamphetamine was in the cab of the truck controlled by Abdirahman. The issue is simply did he know that the methamphetamine was there. The Crown has sought to prove the essential element of knowledge with the cumulative effect of the inferences drawn from circumstantial evidence.

[67] In R. v. Villaroman, 2016 SCC 33 at paras. 35-38, the Supreme Court described the quality of circumstantial evidence needed to support a guilty finding.

[35] At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts”: see R. v. McIver, [1965] 2 O.R. 475 (C.A.), at p. 479, aff’d without discussion of this point , [1966] S.C.R. 254. However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149, at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.

[36] I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus, a reasonable doubt “is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence”: para. 30 (emphasis added). A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

[37] When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: R. v. Comba, [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff’d , [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: R. v. Bagshaw, [1972] S.C.R. 2, at p. 8. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

[38] Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.

[68] The use of the circumstantial evidence was described by the Court of Appeal in R. v. Wu, 2017 ONCA 620 at para. 15, relying upon its own decision in R. v. Uhrig, 2012 ONCA 470.

[15] It is also important to note that where evidence is circumstantial, the standard of proof beyond a reasonable doubt applies only to the final evaluation of innocence or guilt by the trier of fact. It does not apply piecemeal to individual items of evidence. Here, having regard to the manner in which the case was put to us by the appellant, the words of this Court in R. v. Uhrig, 2012 ONCA 470, at para. 13 are particularly apt:

When arguments are advanced, as here, that individual items of circumstantial evidence are explicable on bases other than guilt, it is essential to keep in mind that it is, after all, the cumulative effect of all the evidence that must satisfy the standard of proof required of the Crown. Individual items of evidence are links in the chain of ultimate proof: R. v. Morin, [1988] 2 S.C.R. 345, at p. 361. Individual items of evidence are not to be examined separately and in isolation, then cast aside if the ultimate inference sought from their accumulation does not follow from each individual item alone. It may be and very often is the case that items of evidence adduced by the Crown, examined separately, have not a very strong probative value. But all the evidence has to be considered, each item in relation to the others and to the evidence as a whole, and it is all of them taken together that may constitute a proper basis for a conviction: Cote v. The King (1941), 77 C.C.C. 75 (S.C.C.), at p. 76.

([R. v. Wu], para. 15).

[69] The circumstantial evidence of the Crown is overwhelming. Abdirahman drove up to the Windsor border inspection over the Ambassador Bridge at 12:15 a.m. on December 24, 2019. He had been away 14 days but declared that it was 9. He had driven all the way to California and back and been stopped for 22 hours in Illinois the day before logging into his sleeper bunk.

[70] The trailer was sealed but in every conceivable place of storage in the cab of the truck were boxes of packaged 100 percent pure methamphetamine. There was a total of 200 packages of methamphetamine weighing in excess of 196 kilograms. The value is estimated depending on the mode of sale as a low of $4,508,000 on a kilogram level to a high of $29,400,000 on a gram level. It is appropriate at this point to set out para. 157 in R. v. Bains, 2015 ONCA 677:

[157] As with other offences, Crown counsel may prove the essential elements of constructive possession by direct evidence, by circumstantial evidence or by a combination of direct and circumstantial evidence. Where the subject matter of which an accused is alleged to be in possession is a controlled substance of significant value, it may be open to a trier of fact to infer not only knowledge of the nature of the subject, but also knowledge of the substance itself: R. v. Blondin, [1971] B.C.J. No. 656, 2 C.C.C. (2d) 118 (C.A.), at p. 121 C.C.C.; R. v. Fredericks, [1999] O.J. No. 5549 (C.A.), at paras. 3-4; R. v. To, [1992] B.C.J. No. 1700; and R. v. Bryan, [2013] O.J. No. 673, 2013 ONCA 97, at para. 11. It is a reasonable inference that such a valuable quantity of drugs would not be entrusted to anyone who did not know the nature of the contents of the bag or other container.

[71] Some of the drugs were stored in boxes in compartments accessed outside the truck, but only if one was able to release the latch from inside the cab. The drug was stored under the bunk and in a closet near the bunk. There were three boxes on top of the bunk, making use of the bunk for sleeping impossible on a trip of 5,000 miles over ten days.

[72] There was an overpowering chemical smell within the cab of the truck when Officers attended. It was necessary for them to mask and wear other PPE.

[73] In addition, there was a used roll of Gorilla brand duct tape directly behind the driver’s seat in an open storage area over the fridge. I have found that tape roll was used to seal at least one box of the methamphetamine on top of the bunk close by, and then left in plain view.

[74] While Abdirahman’s sideline trip to Mexico and the calls to El Chapo, as well as the use of the alias Zack Moris are suspicious, I cannot draw the conclusions the Crown suggests. Nor can I utilize the evidence of the missed dash cam for the same purpose.

[75] What I can say is that they do not support any inference the defence has suggested to raise a reasonable doubt. On the evidence, it would be dangerous to rely upon that evidence to support a finding of guilt, and frankly in this case, unnecessary.

[76] Let me now deal with the defence arguments one at a time.

• Neither Comerford nor McGregor entered the cab on their initial contact with Abdirahman. The truck window was open only and they were a number of feet away from the truck’s position. It is not surprising to me that they did not smell what was described as an overpowering odour. Further, the evidence reveals that while the smell could have been aggravated by the open box in the cab, it was too strong to be that box alone, and the same smell was noted when the boxes were assembled for unloading and weighing.
• There simply is no evidence that the investigation at the border was in any way inadequate or unprofessional. All investigators wore PPE to protect against contamination. The photos were taken with the drugs undisturbed, with the exception of the sheet or blanket being removed from the boxes on the bunk.
• I find as a fact that the drugs were found as depicted by the evidence and by the photo entered into evidence. Finally, in the circumstances of this offence and the evidence confronted, it was unnecessary to expend any more time or manpower to explore other investigative techniques.
• There is no evidence that Andre Drebicki or anyone else entered the Volvo truck during this trip, but for the accused Abdirahman. We do not know really anything about Drebicki; not his location, his propensities, his connection or lack of connection with Abdirahman. The fact that his truck was used for Abdirahman’s driving test four months before is probative of nothing.
• Finally, while Abdirahman may have had two sets of keys, there is no evidence he hid them on the outside of his truck, no evidence he lost them, and no evidence anyone entered his truck at any time. There is no sign of forced entry anywhere.

[77] In considering the arguments of the defence, it is always important to recognize that the defence bears no onus. However, in this matter it is appropriate to refer to the comments of the Court of Appeal in Wu at para. 16 and R. v. Ezechukwu, 2020 ONCA 8 at para. 29, both set out below:

[16] Further, when considering the reasonableness of the verdicts, and the inferences drawn by the trial judge, this court is entitled to consider that the appellant did not testify and did not adduce evidence to support any other reasonable inference consistent with his innocence. See R. v. Dell (2005), 194 C.C.C. (3d) 321 (Ont. C.A.).

([R. v. Wu], para. 16).

[29] We note that the appellant elected not to testify. In considering the reasonableness of the verdict, we treat the appellant’s silence as indicating that he could not provide an innocent explanation for his conduct. His failure to provide an innocent explanation at trial undermines the alternative inferences he says were available on the evidence: R. v. Dell (2005), 194 C.C.C. (3d) 321 (Ont. C.A.), at para. 35; R. v. An, 2015 ONCA 799, at paras. 15-16; R. v. Wu, 2017 ONCA 620, at para. 16.

([R. v. Ezechukwu], para. 29).

Conclusion

[78] There are no plausible theories or reasonable possibilities based on logic and experience that raise a reasonable doubt. The interferences and scenarios suggested by the defence amount to no more than fanciful speculation.

[79] The circumstantial evidence in this case taken cumulatively points to only one conclusion and supports no other inference then that the accused Abdirahman is guilty of the offences charged. There are therefore findings of guilt on both counts.

“Justice Bruce G. Thomas” Justice Bruce G. Thomas

Released: April 19, 2024.

COURT FILE NO.: CR-21-5240 DATE: 2024-04-19 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – MOHAMED AHMED ABDIRAHMAN REASONS FOR JUDGMENT THOMAS, J. Released: April 19, 2024.