COURT FILE NO.: CR-22-30000386-0000 DATE: 20240614
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – YOLANDA MEECHAM Defendant
Counsel: Yoni Rahamim, Counsel for the Crown Glen Orr K.C., Counsel for the defence
HEARD: May 21, 22, 24, 28 to 31, 2024
M.A. CODE J.
Reasons for judgement
A. Overview
[1] The accused Yolanda Meecham (hereinafter, Meecham) is charged in a seven count Indictment with possession of controlled substances for the purpose of trafficking and possession of ammunition in violation of s. 109 prohibition Orders. There are four drug counts (relating to cocaine, crack, fentanyl, and methamphetamine) and there are three ammunition counts (relating to three separate s. 109 Orders imposed on Meecham in 2006, 2008, and 2018).
[2] Meecham had originally elected trial by jury. Her counsel, Mr. Orr, had also filed a Notice of Application in advance of trial alleging violations of ss. 7, 8, 9, 10(a), and 10(b) of the Charter of Rights. No evidentiary record was filed in support of the alleged Charter violations. On the first day of trial, Mr. Orr advised that the accused would re-elect trial by judge alone. He also advised that the various alleged Charter violations set out in the Notice of Application were abandoned, with the one exception of a s. 8 search and seizure issue. That s. 8 issue related to the validity of the search warrant relied on by the police to search Meecham’s residence. The drugs and ammunition that she was charged with possessing were all seized during the search of her residence.
[3] It was agreed by the Crown and the defence that the trial issue relating to Meecham’s alleged possession of the drugs and ammunition, and the s. 8 issue relating to the validity of the search warrant, could be heard together at a single blended proceeding. Both issues depended to some significant extent on wiretap intercepts. Those wiretap intercepts were introduced at trial by the Crown. They had also been summarized by the affiant in the search warrant Information. The wiretap intercepts were a small part of a much larger police investigation known as “Project Red Owl”. The wiretaps had been authorized by Roberts J. in March and May 2021. The search warrant based on these wiretaps was executed at Meecham’s residence on June 7, 2021. There were twenty-eight accused persons (including Meecham) who were charged in Project Red Owl and were awaiting trial in this Court. They brought a joint s. 8 Charter Application challenging the wiretap authorizations. That Charter Application was dismissed by Akhtar J. on April 24, 2024. Accordingly, the wiretaps were admissible at Meecham’s trial. See: R. v. Alleyne et al, 2024 ONSC 2381.
[4] The s. 8 issue relating to the validity of the search warrant executed at Meecham’s residence was whether the affiant had fairly and accurately summarized the relevant wiretap intercepts and whether there were sufficient grounds to justify the search. At the end of Meecham’s blended trial and s. 8 Charter Application, Mr. Orr conceded that the s. 8 Application relating to the search warrant could not succeed. After reviewing the wiretaps and the search warrant Information, I was satisfied that this defence concession made by Mr. Orr was well taken. Accordingly, the s. 8 Charter challenge to the search warrant was dismissed.
[5] As a result of the above developments at trial, the only issue that needs to be addressed in these Reasons is whether the Crown has proved that the accused Meecham was in possession of the drugs and ammunition that the police found in her residence. The other elements of the offences charged are admitted. In relation to the disputed possession issue, I am satisfied that the main principal (or co-principal) who was clearly in possession of the drugs and ammunition was one Thiago Machado. He was temporarily staying at Meecham’s residence at the time of the search on June 7, 2021 but he was not present when the search warrant was execcuted. He was called as a defence witness at Meecham’s trial. He is an admitted drug dealer and he had pleaded guilty to a number of charges emerging from Project Red Owl, including possession of the drugs and ammunition seized from Meecham’s residence. He was a young first offender and Bawden J. sentenced him to a six year penitentiary term on January 11, 2024.
[6] The issue at Meecham’s trial is whether the Crown has proved that she was an aider or abettor, or a co-principal with Machado, in possessing the drugs and ammunition found at her residence. At the conclusion of the trial on May 31, 2024, I reserved judgement. These are my Reasons for Judgement.
B. Facts
(i) The search and seizure evidence
[7] A five member team of officers from the Guns and Gangs Task Force in Toronto executed the search warrant on June 7, 2021 at Meecham’s residence. That residence was a townhouse located at 1890 Rymal Road East in Hamilton. These officers were working under the direction of senior investigators from the Major Projects team who were in the Toronto police “wire room”. The Project Red Owl wiretap authorization had named Thiago Machado as a target in that investigation. As a result, his phone was being wiretapped. Meecham was not named as a target in the investigation but her telephone conversations with Machado were intercepted on his phone. The police developed grounds to believe that Machado’s drugs and his firearm were being stored at Meecham’s residence. They obtained a search warrant for that residence in the early morning hours of June 7, 2024 and they proceeded to Hamilton. The local police force provided a uniform officer to guard the perimeter and the five Toronto officers entered the residence at about 8:28 a.m.
[8] There were two occupants inside the residence at the time of the search. It is a two storey townhouse with a basement and a garage. There was a black Honda Civic parked in the driveway. Meecham’s daughter (who is now 13 years old, and would have been about age 10 or 11 at the time) was already up and about. She was on the main floor, which is an open area that includes a kitchen, living room, and dining room. There were three bedrooms on the second floor. Meecham was asleep in the large master bedroom. She was detained and brought downstairs to the main floor. The other two bedrooms on the second floor appeared to be a child’s bedroom with children’s clothing and bunk beds, and a spare bedroom where it appeared that someone had been staying.
[9] There is no real dispute concerning the items that the five searching officers found at the residence, or the circumstances in which these items were found. In summary, the relevant items found during the search were as follows:
- In the main floor kitchen area, on a bar stool at the kitchen island, was a Chanel purse that was full of Canadian cash. This money was readily apparent because the flap on the purse was half open. Aside from the cash, there was nothing else in the purse except for a small package of Covid masks. There were three separate bundles of cash in the purse. One large bundle was on top and it was wrapped with elastic bands. It totalled $7,390. Underneath this large bundle were two smaller bundles that were not wrapped with elastic bands and that were in two separate compartments of the purse. They totalled $6,000 and $1,340. In other words, there was a total of $14,730 in the purse. In her testimony at trial, Meecham admitted that the purse and the money belonged to her (see: Exhibit 2, photos 44-49, 68-76, and 119-132);
- In the same open main floor area but in the living room, there were three backpacks on the floor next to an ottoman and a couch. One black Jansport backpack contained nothing of evidentiary value. One red and black Champion backpack contained an expandable police baton inside a closed zippered compartment. And one black and gold Champion backpack contained men’s clothing and a box of 45 calibre ammunition. There were 11 live rounds in the box, which had originally contained 20 rounds. This ammunition is the subject of counts 5 to 7 in the Indictment. The box was inside a closed zippered compartment at the front of the backpack. It is apparent from the wiretaps, from the male clothing in the backpack, and from Machado’s testimony, that these three backpacks belonged to him (see: Exhibit 2, photos 40-42, 77-85, 92-94, and 117-118);
- Mail addressed to Meecham at this Rymal Road residence was also found in the main floor living room area. In her testimony, Meecham admitted that she was living at the Hamilton residence (see: Exhibit 2, photos 95-97);
- In the master bedroom on the second floor where Meecham was sleeping, the police found a digital “kitchen scale” on the floor beside her bed. They also found a relatively large plastic shopping bag containing marijuana on top of a dresser. It was legal to possess marijuana in Canada at the time of the search in 2021 and the marijuana was not seized. Finally, the police found three cell phones. Two of these phones were on Meecham’s bed and the third phone was plugged in and was on the bedside table. One piece of Meecham’s identification was on another bedside table. In her testimony, Meecham acknowledged being in possession of all these items seized from her bedroom (see: Exhibit 2, photos 62-67, 86-91, and 98-99);
- In the black Honda Civic parked in the driveway, the police found a purse on the front passenger seat with what appears to be a small amount of loose cash. There was another cell phone on this front passenger seat beside the purse. In the trunk, the police found a wallet with some additional cash in a zippered compartment. It was not counted but it appears to be about $800. Meecham’s driver’s license and various credit cards and identification were also found in the wallet. The ownership papers for the car, in Meecham’s name, were found in the wallet. In her testimony, Meecham acknowledged ownership of the Honda Civic, and acknowledged that she was driving it at the time. She also had a second older car, a white Nissan Altima, which the police found parked nearby. It was searched and nothing of evidentiary value was found (see: Exhibit 9, photos 9-28; Exhibit 2, photos 2 and 100);
- The third or “spare” bedroom on the second floor appeared to have been occupied. There was a towel hanging on the door, sheets or a comforter on the bed, and clothes on the floor and in the closet. The room was messy and looked “lived in”, as Det. Balint put it. There was also a child’s play pen or crib beside the bed and this crib was full of clothes. The clothing in this room included men’s, women’s, and children’s clothing. In addition to the clothes found hanging in the closet, there were various other items stored inside the closet, including clothing in a plastic container, pillows on the closet floor, linens and clothing on a closet shelf, and a mobile play structure for an infant on the closet floor. Det. Balint had to remove some of these items in order to look into the right side of the closet. About 18” to 20” inside and to the right, against the front wall of the closet, Det. Balint found a Supreme satchel or unisex purse. The satchel has a strap and it can be worn at the waist or over the shoulder by a man or a woman. The zippers on the satchel were closed. Neither the satchel nor its contents were in plain view, when standing outside the closet. The satchel was not covered or concealed, once Det. Balint looked inside the closet and to the right where he saw the satchel. Det. Balint opened the zipper on the satchel and found various controlled substances (which are the subject of counts 1 to 4 in the Indictment). The only other contents in the satchel were some coins in a ziplock baggie and some condoms (see: Exhibit 2, photos 26, 29-37, 55-61, and 104-105);
- The child’s bedroom on the second floor, the basement, and the garage were all searched. Nothing of evidentiary value was found in these three locations. The police were looking for a firearm and for a safe (where it was believed the firearm was stored). Neither a firearm or a safe were found. Det. Balint had been a police officer for 29 years and had executed about 600 or 700 search warrants. He testified that the police sometimes learn after the fact that they have missed certain items during a search.
[10] The controlled substances seized from the satchel found in the spare bedroom closet were weighed and tested. They were as follows:
- Orange fentanyl in a clear plastic bag. It weighed 26.3 gms and was apparently mixed with dimethylsulphone and caffeine;
- Red fentanyl in a clear plastic bag. It weighed 19.95 gms and was apparently mixed with dimethylsulphone;
- Pink fentanyl in a clear plastic bag. It weighed 6.36 gms and was apparently mixed with dimethylsulphone and caffeine;
- Pink fentanyl wrapped in brown paper inside a clear plastic bag. It weighed 0.86 gms and was apparently mixed with codeine, cocaine, benzodiazepine, acetaminophen, and caffeine;
- Cocaine, described as “crack” by the officers, in grey plastic wrapping. It weighed 3.62 gms and was apparently mixed with levamisole;
- Cocaine, also described as “crack” by the officers, in a clear plastic bag. It weighed 14.19 gms and was apparently mixed with phenacetin;
- Cocaine in a clear plastic bag. It weighed 14.83 gms;
- Methamphetamine in a clear plastic bag. It weighed 26.62 gms;
- Two Percocet pills in a clear ziploc baggie. They weighed .58 gms and tested as oxycodone apparently mixed with acetaminophen. No charges were laid in relation to these two pills.
[11] It can be seen that there were nine separately wrapped controlled substances in the satchel found in the spare bedroom closet. They were all different in their appearance and composition. The four different packages of fentanyl totalled over 53 gms, or just under two ounces. The three different packages of powder and crack cocaine totalled over 32 gms, or more than an ounce. The one package of methamphetamine was 26 gms or just under an ounce. Given the quantities and varieties of these seized drugs, Machado appeared to be a substantial street level to mid-level trafficker, as Det. Duffus testified (see Exhibits 6 and 7, and Exhibit 2, photos 58-59 and 112-116).
[12] After Det. Balint seized the above controlled substances from the satchel in the spare bedroom closet, he instructed the officers downstairs in the kitchen area to arrest Meecham. The arrest was carried out at about 8:55 a.m. However, once the search was completed, the senior Project Red Owl officers in the Toronto “wire room” instructed Det. Balint not to charge Meecham at that time. As a result, she was released unconditionally while still at the residence, at about 10:10 a.m. that same day. The officers concluded the search and left the residence at 10:54 a.m.
(ii) The wiretap evidence
[13] Det. Duffus was the Crown’s expert witness in relation to certain aspects of the drug trafficking business. He had been a police officer for over 33 years, he had extensive experience and training in drug investigations, and his expertise was admitted by the defence (see: Exhibits 8 and 11). In addition, the defence admitted that whoever possessed the drugs seized from the satchel in the spare bedroom closet, possessed them for the purpose of trafficking (see: Exhibit 14). As a result, it was not necessary to examine Det. Duffus about this aspect of the case. His testimony became focused almost exclusively on certain terminology used in the drug trade. That terminology was used in the wiretap intercepts tendered by the Crown and, to some extent, in the testimony of the two defence witnesses Machado and Meecham. I will incorporate or refer to Det. Duffus’ interpretation of certain coded, guarded, or slang terminology, when summarizing the wiretap intercepts [by placing Det. Duffus’ interpretation in square brackets].
[14] All of the intercepted telephone conversations tendered by the Crown were either incoming or outgoing calls on Machado’s phone (admittedly number 416-558-1783). Two of the calls were with Meecham’s phone (admittedly number 416-873-2422). The accuracy of the data obtained from the phone companies during the Project Red Owl wiretaps was admitted, including the LBS data about the location of Machado’s phone at the time of the intercepts (see: Exhibits 4, 5, 8, and 14). Four of the calls tendered by the Crown did not include Meecham as a participant. Those intercepts depended on the co-conspirators’ or common unlawful purpose exception to the hearsay rule, if they were to be used for the truth of what was being asserted. See: R. v. Carter (1982), 67 C.C.C. (2d) 568 (S.C.C.). Machado did testify about all six of these intercepts but his testimony was often of little value in relation to the substantive meaning or content of the intercepted conversations.
[15] The six intercepts all took place between June 2 and 7, 2021, in the time period immediately before and after the execution of the search warrant. These intercepts are important evidence and I will analyse their meaning in greater detail in the next section of these Reasons. In summary, they were as follows (see Exhibits 12 and 13):
The first relevant call
- On June 2, 2021, one Shane Paul called Machado. It appeared that Paul wanted Machado to come and join him “up here soon” in furtherance of some criminal venture that would involve the use of “grains” [bullets]. Machado explained that he could not “leave” the place where he was located because “she left us here at her house”. LBS wiretap data established that Machado’s phone was near Meecham’s residence in Hamilton at the time of this intercept (see Exhibit 15). In other words, this phone call tended to establish that Machado had arrived at Meecham’s residence in Hamilton by June 2, 2021 and that she had left him there in the house. More substantively, Machado went on to assert that, “she has the code to the safe”, that it [perhaps his firearm] “is in the safe”, that “she” is the girlfriend of “my older head” [a more senior or mature person], and that he and Paul were trying to obtain “grains” [bullets or ammunition] for their criminal venture;
The second relevant call
- On June 5, 2021 at 1:06 a.m., Machado called Meecham’s phone. It was Meecham who admittedly answered the call. Machado immediately started describing what appeared to be a plan to sell a substantial amount of drugs to a “buddy” of a guy named “Steve”. This guy had $16,000. Meecham initially replied, “Yeah”, and then she replied, “Okay yeah, so okay”, while Machado described the potential sale. When Machado continued to discuss this plan, Meecham interrupted him, provided her Snapchat user name (“Pretty 613”), and said, “I’m gonna talk to you on there”. The intercepted call ended at this point. Det. Duffus testified that Snapchat is an app that automatically erases messages after they have been sent and reviewed. I will analyse this important intercept in greater detail later in these Reasons;
The third relevant call
- Later that same day, on June 5, 2021 at 7:30 p.m., Machado received a call from an unknown male (who was later described by Machado and Meecham as the “shady” guy). The parties to this call immediately discussed what appeared to be a drug deal, as they asked each other “what do you need” and “what’re you dealing with?” As Machado later testified, dealing drugs was his only occupation. They proceeded to discuss their respective locations. The “shady” guy said that he was “in the parking lot … in the gas station”. Machado said to “come to the crib” [home or residence]. The “shady” guy replied, “She said go to the gas station and talk to her ’cause I’m here already”. Machado indicated that he would have to “walk” some distance if they were to meet at the gas station. He then asked someone in the background for the “addy” [address]. He proceeded to give the “shady” guy the 1890 Rymal Road East address of Meecham’s house. The “shady” guy replied, “I’m going to be there soon”. LBS wiretap data established that Machado’s phone was near to Meecham’s residence in Hamilton at the time of this intercept (see Exhibit 15);
The fourth relevant call
- Two minutes later, at 7:32 p.m. on June 5, 2021, Meecham called Machado. After they said “Hello”, Meecham immediately asked, “Are you talking to him?” Machado replied, “I just told him to pull up to 1890.” Meecham was clearly upset with this development, asking “why did you tell him that?” She then stated, “My boy was supposed to circle to the gas station and make him follow quick. He knew that.” Machado appeared to understand that Meecham was concerned about the “shady” guy coming to her house. He tried to reassure her, stating “I promise … I won’t do nothing … this is your house.” Meecham replied, “I just got out of jail … I was looking at 18 years.” Machado again sought to reassure her, stating “you opened your door to me and you’ve been blessing me. I’m not going to do nothing stupid … I’m smarter than that, trust me.” At this point, Meecham stated “If this guy tries to fucking, just D.A. him, tie him up or something. We’ll deal with it.” Machado agreed, stating “yeah, if he tries to thing, we’re going to try to D.A. him …” Meecham continued, “Like you said that he’s shady. I trust you … I’ve had a chance to feel you out … But I don’t know that guy … He’s not listening to you … not really saying fucking anything … just talking loud.” By the end of the call, it appeared that Meecham had calmed down. She laughed softly and said, “Okay, all right”. Machado said, “I’ll talk to you soon”. They said “bye” and the call ended. The LBS data indicated that Machado’s phone was near to Meecham’s residence during this intercept (see Exhibit 15). Det. Duffus testified that “D.A.” means disciplinary action, that is, to take action upon somebody. I will analyse this important intercept in greater detail later in these Reasons;
The fifth relevant call
- The next relevant intercept was a day later, at 8:46 p.m. on June 6, 2021. This was about twelve hours before the search warrant was executed early in the morning of June 7, 2021. The call was between Machado and an unknown male. Machado was not at Meecham’s residence. He said that he was “coming back from … Oshawa.” The unknown male asked, “where am I going to leave Zee?” He then said, “we need to bounce [leave] from Hamilton because she’s having her daughter come … we’re leaving the crib [home or residence] in less than an hour because her daughter’s coming home …. So we can’t even come stay here no more.” The unknown male told Machado that they would stay “in the trap” [stash house]. Machado then told the unknown male, “my bag and shit, everything’s in there … go to the crib and grab all my shit … my side bag … it’s upstairs in the bedroom in the closet … where I was sleeping … grab all my clothes and shit that’s there … All my three Champion bags … all my shit.” The unknown male agreed, stating “I’ll grab it for you right now.” He then spoke to someone in the background, saying “Oh, so he could stay here? Oh no, no, no, we’re bouncing. So he can come back? Yeah.” The unknown male then returned to speaking to Machado and stated, “so she said you could come back because it’s where you’re supposed to be.” Machado replied, “Okay, so tell her to … put the stick [firearm] in the safe. It’s in my side bag … when I come back to Hamilton I’ll get it … Tell her I’ll draw for it [pick it up].” The unknown male replied, “Say no more” and the call ended;
The sixth relevant call
- The last relevant intercept was on June 7, 2021 at 1:26 p.m. This was about two and a half hours after the police search of the residence had concluded. The call was between Machado and a male party (who appeared to be the same male who had agreed in the previous call to get Machado’s “stick” from his room in Meecham’s house). They discussed the police search at “that crib” and Machado asked, “why didn’t you take out the grizzy [bullets] … I told you … the grizzies and the stick is in my bag.” The male replied, “Yeah, I told her that, I’m like it's loaded … They didn’t find the stick … they found the ammo.” Machado said, “No, the box of grizzies were in my bag too … I said take the grizzies and the stick out.” The male replied, “I thought you just said take out the stick … give it to her … I only took the stick. I didn’t touch anything else. I just put it back against the wall where it was … Yola was there with me … I just grabbed the hammer [firearm]. I didn’t even look inside. Just pulled it out, put it on the bench, told her yeah that’s the stick, take it … and she took it … and I put it back against the wall.” Machado asked, “did you take my pack [drugs] out of my bag too … I left a pack in there.” There was further discussion about what the police did and did not find during their search. Machado appeared to believe the police only found “bands” [thousands of dollars] and “grizzies” [ammunition]. The call concluded with Machado stating, “I have to go help her clean her house.”
(iii) The s. 109 prohibition Orders
[16] The Indictment alleged three separate counts of possession of the seized ammunition, in violation of three s. 109 prohibition Orders that had been imposed on Meecham in 2006, 2008, and 2018. However, the Crown only proved the 2018 prohibition Order (see: Exhibit 10). In this regard, the Crown indicated that it would only be seeking a conviction on one of the three counts relating to the ammunition.
(iv) The defence witness Machado
[17] The defence called two witnesses, Machado and Meecham. Thiago Machado testified that he is 23 years old. He would have been 19 and 20 years old at the time of the Project Red Owl investigation in 2021. He had no adult criminal record, prior to pleading guilty before Bawden J. on January 11, 2024. He pleaded guilty to possession of a firearm and possession of fentanyl, crack, and methamphetamine for the purpose of trafficking. He had been arrested on June 16, 2021, as he was leaving Hamilton some nine days after the search of Meecham’s residence. The gun and drugs that he pleaded guilty to possessing were seized “on the road” (at a Brantford gas station where he was arrested), at “trap houses”, and at Meecham’s residence. Machado testified that he met Meecham a week or two prior to his arrest.
[18] Machado explained the circumstances in which he met Meecham. He testified that he was having family difficulties, after an argument with his father. As a result, he needed a place to stay. He was sleeping with a woman named Nicole, who said that she had a friend with a home where he might be able to stay. Nicole gave Machado the contact information for her friend. Machado then contacted the friend, Yolanda Meecham, on social media. Machado went to meet Meecham at her home in Hamilton and she agreed that he could stay for a few days or a week. He stayed for a “few nights”. Machado did not pay any rent. Meecham was simply a “good person” who was doing him a favour. Machado did not know Nicole’s full name, her address, how they first met, when or where they would meet, the city or place where she now lives or lived, how they communicated, and when or where they would sleep together. Machado agreed that the police wiretapped his phone for three months, that he reviewed the wiretaps, and that there was no mention of Nicole in his intercepted calls.
[19] Machado testified that he was making money from selling drugs. He was selling fentanyl, crack, methamphetamine, and Percocet. He was also using drugs like cocaine and Percocet on a daily basis. He would not use fentanyl. His drug use affected his mental state and his memory. There were other people who were involved in what he referred to as his drug trafficking “organization”. He had his phone on him at all times and used it to buy and sell drugs, but also for personal calls. He would sometimes bring his firearm and his drugs with him, in his satchel or backpack, when he was out and about doing drug deals. Otherwise, he left the firearm and drugs at Meecham’s residence. He was selling a lot of drugs. There were a lot of other people in his drug trafficking “organization”. These drug trafficking activities extended to Thunder Bay, Hamilton, and Chatham. He would send others to these places in order to sell his drugs. His profit margins were high and he was making money, while trying to set aside a “nest egg” so that he could leave the drug business. However, he insisted that he was not making a profit.
[20] Meecham let Machado stay in her spare bedroom. He left his satchel in the bedroom closet and he left his backpack downstairs. He believed that he kept his drugs in the satchel and he “guessed” that he kept his ammunition in either the satchel or the backpack. He did not tell Meecham about his criminal activities because he believed that she was “square” and that she would kick him out of her home, if she was to learn about these activities. He did not believe Meecham knew about his drugs. He communicated with her both on his phone and on Snapchat.
[21] Machado was questioned, both in-chief and in cross-examination, about the six intercepted phone calls that were introduced in evidence by the Crown. In summary, his account about these calls was as follows:
The first relevant call
- The June 2, 2021 call from Shane Paul took place in the context of a robbery of a marijuana delivery person that Machado and Paul were planning. Paul was part of Machado’s “organization”. Both in-chief and in-cross, Machado agreed that his reference to something being in the “safe” was a reference to his gun. He testified that “safe” was code for the gun being in his satchel. In-chief, he testified that the person in this call referred to as “she”, who “has the code to the safe” and who “left us here at her house,” was a woman named Royal Thompson who he was having a relationship with and who worked in his drug trafficking “organization”. However, in cross-examination, he agreed that “she” was Meecham and that he was telling Paul in this call that Meecham knew that his gun was in his satchel and was also telling Paul that she was the “shorty” (or girlfriend) of an older experienced associate. Machado agreed that Meecham was older than he was. He explained that he was lying to Paul, in order to make Paul think that Meecham was “cool” and was “one of them”. He also told Paul in this call about drinking and doing drugs with another associate at Meecham’s house, at a time when she was away;
The second relevant call
- The June 5, 2021 call, according to Machado’s account both in-chief and in-cross, was about a guy who he was selling drugs to, who had $16,000, and who Machado was trying or hoping to sell all his drugs to. Machado did not know whether the female he was calling, and who wanted to continue the call on Snapchat, was Meecham or Royal Thompson or someone else. The defence conceded that Machado was lying on this latter point as the call was clearly to Meecham;
The third relevant call
- In cross-examination, Machado agreed that the subsequent June 5, 2021 call at 7:30 p.m. was from a member of his “organization” and that he was telling this person to come over to Meecham’s residence on some drug-related business. Meecham was not at the residence at the time of this call. Machado agreed that he could be heard asking a male “associate” in the background for the address of the house. This male “associate” was at the house without Meecham’s permission, according to Machado;
The fourth relevant call
- The incoming call that Machado received two minutes later, at 7:32 p.m. on June 5, 2021, was definitely from Meecham. Both in-chief and in-cross, Machado testified that he was telling Meecham about a guy who was coming over to the house to sell marijuana. Machado acknowledged that marijuana was legal at the time but he did not like “government marijuana” and so he bought marijuana for his own personal consumption from a “weed dealer”. Meecham was upset that he had arranged this deal at her house. Machado agreed that Meecham said to “D.A.”, or disarm this marijuana dealer, and to “tie him up”. Machado also agreed that Meecham appeared to know something about this dealer who was coming to the house, and that she appeared to have had some role in arranging or facilitating the deal, but he could not remember this. Finally, Machado agreed that there was already one member of his drug “organization” at the house, and now there was another who was coming over. Nevertheless, he insisted that he would not talk to Meecham about people in his “organization”;
The fifth relevant call
- Machado eventually agreed that the subsequent June 6, 2021 call at 8:46 p.m. was about getting his gun, his drugs, his ammunition, and his clothing out of Meecham’s house. He explained that he did not want other people to know that he was living with a “square” and he was afraid that Meecham would report him to the police, if she found out about his drug business. He could not explain what he meant when he said, “tell her to … put the stick in the safe. It’s in my side bag.” He agreed that these references to “the safe” and to “my side bag” are to two different things. He might have simply meant to keep his firearm safe;
The sixth relevant call
- The last intercepted call, on June 7, 2021, was about the police search at Meecham’s house. He was asking the other person on the call why he had not taken everything that was in his “side bag” or satchel out of the house. He could not remember who the female was who they repeatedly referred to as “she” or “her” in this call. It could have been any number of women he was seeing at the time.
(v) The defence evidence of the accused Meecham
[22] Meecham testified that she is 36 years old. She would have been 33 at the time of the events in June 2021. She grew up in both Toronto and Hamilton. Her father died when she was young and she was raised by her mother and grandmother. She left high school after grade 10. Her teenage years were troubled. The family was poor and she was acting out, stealing groceries and doing drugs. She began using cocaine at age 17, she had a habit by age 18, and she began selling drugs to support her habit. She would be given cocaine on consignment by a dealer and would pay him after she had sold the drugs. She became involved with an abusive boyfriend named Richard Brewster, who was a drug dealer. Her criminal record is as follows:
- theft under and fail to comply in Hamilton Youth Court in 2005, when she was 17. She was sentenced to probation;
- possession of cocaine for the purpose of trafficking and fail to comply in Hamilton in 2006, when she was 19. She received an effective sentence of about 10 months in jail;
- possession of cocaine for the purpose of trafficking in Hamilton in 2008, when she was 21. She received an effective sentence of about 18 months in jail and probation;
- simple possession of marijuana in North Bay in 2016, when she was 28. She received a $100 fine; and
- possession of a large amount of marijuana for the purpose of trafficking in Toronto in 2018, when she was 31. She received an effective sentence of about 14 months in jail.
[23] This last conviction resulted from her ongoing involvement with Richard Brewster. This is what she was referring to in the fourth wiretap summarized above when she told Machado, “I just got out of jail … I was looking at 18 years.” There had been other drugs in this case that were far more serious than marijuana and that she had initially been charged with possessing. She testified that she was finally able to leave Brewster after this case concluded. She returned to living with her mother, her grandmother, and her daughter in Toronto. She had previously completed her GED requirements for grade 12 and she now enrolled in two different community college programs. She did not complete these programs and switched to taking certificate courses as an aesthetician. She completed six certificates. They related to hair, eyelashes, nails, and massage skills. She completed these certificates in 2020 and her mother helped her get a home in Hamilton. The plan was to establish her own business as an aesthetician in the Hamilton townhouse and to slowly transition her daughter into living at that home. Her daughter had been attending school and living in Toronto with Meecham’s mother and grandmother. Meecham testified that she is very close to her mother.
[24] Meecham’s mother leased the townhouse at 1890 Rymal Road East in Hamilton and Meecham moved into this residence on October 15, 2020. She testified that she developed a successful business as an aesthetician, doing hair extensions, nails, massage, and wig instals. She would have her clients come to her home and would also drive to their homes to do “house calls”. She bought the Honda Civic car in 2020 for $12,000, because her older Nissan car was no longer reliable. She had enough clients that she did not need to advertise. She testified that she was earning $12,000 to $15,000 per month on average. Some months she made $20,000. She would charge clients $2,500 to $3,000 for hair extensions. She had six to ten regular clients and they would refer their friends to her. She paid the monthly rent on the townhouse, which was $2,450. The income from her business was mainly paid in cash but there were some e-transfer payments. She did her own taxes and reported her income on her tax returns. She may not have reported “everything” but it was a registered business. She testified that she could access her tax returns in her CRA account. She kept cash in her wallet and in her purse, as seen in the police search photos of these items found in her Honda Civic. She felt that “life was good” at the time of the police search. She was living in a nice furnished townhouse, she had a good relationship with her mother, she had a good business that was making money, she had two cars, and she had clients who used her services.
[25] Meecham explained how Machado came to be living at her house in early June 2021. She testified that when she was young, her mother and grandmother had met a poor woman named Donna in Toronto. Donna had children but she drank and did drugs and her children were neglected. Meecham’s mother and grandmother would help Donna and her children by giving them clothing and groceries. Sometimes Donna’s children even lived with Meecham’s mother and grandmother in Toronto. One of those children was Nicole Webber. At some point, Donna and Nicole were “bouncing around” in Hamilton. Nicole would sometimes visit Meecham and stay overnight at Meecham’s townhouse. On one occasion, in late May 2021, Nicole brought Machado to Meecham’s house. Meecham cooked for them. She had sympathy for Nicole and was trying to “mentor” her. The day after this visit, Nicole messaged Meecham and asked if Machado could come and stay with her. Nicole explained that Machado was having difficulties with his parents, that he was a nice guy, and that he had nowhere to stay. Nicole said that Machado only needed to stay for a week. Meecham also had sympathy for Machado as he was young and she too had difficulties when she was a “troubled teen”. In cross-examination, Meecham was not able to provide any useful identifying details about Nicole. For example, she did not know how to get in touch with her, she did not know where Nicole lived, and she did not have a photograph of her. She and Nicole had argued, after Meecham’s arrest, because Nicole had vouched for Machado.
[26] Meecham believed that Machado came to stay at her house on Wednesday June 2, 2021, which was a day or two after Nicole had messaged Meecham. A friend of Machado dropped him off at Meecham’s house. Machado did not bring his backpacks at this time. He only had his satchel or “side bag”. Meecham talked to him and tried to find out his “back story”. He told her about his difficulties with his father. She wanted to be able to help him and she told him her own “back story”. She allowed him to stay as she was trying to be a “good person”. She showed him the spare bedroom upstairs. It was unlocked and Meecham could access it. She had to go out to a hair appointment that day. She left Machado and told him that there were to be no drugs, no weapons, and no friends coming over to hang out in her home. She knew that he smoked “weed” and she told him to do it outside. She told him that she was trying to bring her daughter to live at her home. Machado slept there this first night. He then left the house and did not return until Friday June 4, 2021.
[27] When Machado returned on Friday June 4, 2021, it was three days before the police search of the home on Monday June 7, 2021. Machado brought three backpacks with him and left them in the living room. He took a sweater out of one backpack and changed his clothing in the living room. Meecham told Machado that he could take his backpacks upstairs to the spare bedroom. She told him that she would clean out the closet. She stored her own and her daughter’s summer clothing in this spare bedroom, as well as a child’s playpen for the children of her girl friends, who sometimes stayed over. The three backpacks belonging to Machado remained in the living room. Meecham assumed they contained Machado’s clothing. She never looked in the backpacks.
[28] After he arrived at Meecham’s home on Friday June 4, 2021, Machado would come and go from the house. He would usually be wearing his satchel. Meecham was not aware that Machado was keeping his satchel in the spare bedroom closet. She was not aware that he had drugs in the satchel. Meecham knew that Machado had friends or associates. When he arrived at the house on Friday, he was being driven by one friend and there was another friend who came with him to the door. He asked if these friends could come into the house with him, but Meecham said she did not want his friends in the house. She did not know them. Their names were perhaps “Zack” and “K”, who were people she referred to in the wiretaps.
[29] Meecham testified about the six relevant wiretap intercepts and about the circumstances referred to in those phone calls, as follows:
The first relevant call
- In relation to the Wednesday June 2, 2021 phone call between Machado and Shane Paul at 6:08 p.m., Meecham testified that Machado arrived that day and slept at the house that night. Meecham had no explanation for why Machado said in this phone call that he was “stuck” in the house and could not “leave” because “she has the code to the safe”. There was no safe, according to Meecham. She also denied that she was the “shorty” (or girlfriend) of an “older head”, namely Richard Brewster. She had not seen Brewster since 2016 or 2017 and wanted him out of her life. She agreed that Brewster was born in 1981 and would have been 39 years old at the time;
The second relevant call
- In relation to the Saturday June 5, 2021 phone call at 1:06 a.m., Meecham testified that Machado had returned to the house that Friday. Meecham agreed that this wiretap intercept was Machado calling her late that night, in the early morning hours. During her evidence in-chief, Meecham testified that this call was about a “Steve guy” and that Machado had told her that Steve was an older friend of his in Hamilton. Machado had told her that Steve had money and had offered to pay first and last month’s rent on a place for Machado, if Machado’s father would not let Machado back into the family home. According to Meecham, this was Machado’s “back-up plan” for finding a place to live. Meecham went on to testify that she was with someone that night and she was preoccupied and not engaging with Machado’s phone call. She wanted to get rid of Machado and end this discussion about “Steve”, so she told Machado to contact her on Snapchat. She gave him her “Pretty 613” Snapchat account, where she could ignore any messages and where her calls were on “do not disturb.” In cross-examination, Meecham testified that she was preoccupied during this call and did not understand that Machado was talking about someone who had a lot of money. She did not know a “Steve”. When reminded of her evidence in-chief, she agreed that Machado had told her about a “Steve guy” who would pay his first and last month’s rent. This was the subject of the call and it was not about selling drugs. She identified screen captures that were put to her from her “Pretty 613” Snapchat account (see Exhibit 16). She agreed that she asked Machado to contact her on this Snapchat account, that they would message each other on this platform, and that the messages would automatically disappear unless you manually saved them. After the search warrant was executed, she called or messaged Machado on the Snapchat account and the messages were not saved;
The third and fourth relevant calls
- The two calls on the evening of Saturday June 5, 2021, at 7:30 p.m. and 7:32 p.m., were the subject of considerable evidence from Meecham. She explained that the background to these calls was that Machado told her he was meeting with a “shady” friend who owed him money and who had stolen his clothing. Machado wanted to meet this friend at the house and Meecham said “No”. She was present when Machado called the “shady” friend on Snapchat. She overheard the call on speaker phone and did not like the arrogant way that the “shady” friend was talking. She took the phone from Machado and gave this guy the address of a nearby gas station, where Machado and the “shady” friend could meet away from Meecham’s house. Meecham then left the house around 5:00 p.m. that afternoon, either to meet a client or to visit her grandmother. This was shortly before the two intercepted calls at 7:30 to 7:32 p.m. Machado was still at the house, waiting for a ride from his friends “K” and “Zee”, when Meecham left the house. The two friends were supposed to come and pick up Machado and drive him to the meeting at the gas station with the “shady” friend. This was Meecham’s explanation for the first call, at 7:30 p.m., where the “shady” friend called Machado from the gas station and said, “ She said go to the gas station and talk to her ’cause I’m here already” [emphasis added]. Meecham agreed that she had arranged the meeting at the gas station, in order to keep the “shady” friend away from her house. The meeting was not about the sale of drugs but was about repaying a debt and returning clothes. Machado “messed up” this plan when his friends did not come to pick him up and give him a ride and so he told the “shady” friend to come to the house and gave him the Rymal Road address. This is what occurred in the first call at 7:30 p.m. according to Meecham. In the second call, at 7:32 p.m., she phoned Machado and she learned that the “shady” friend was coming to the Rymal Road townhouse. She had called Machado in order to see if everything was okay. She told Machado in this second call, “ My boy was supposed to circle to the gas station and make him follow quick. He knew that” [emphasis added]. Meecham initially testified in-chief that “my boy” referred to the “shady” friend, and that it was a slang term. She then testified in-chief that “my boy” must have referred to Machado’s driver and “him” referred to the “shady” friend who was supposed to “follow quick”. Finally, she testified in-cross that “my boy” simply means any person or “the guy”, and that she was referring to the “shady” guy as “my boy”. She had experience with other guys like this “shady” friend, as a result of the time she spent with her ex-boyfriend Brewster. She was worried about this guy coming to her house and so she went on in the call to tell Machado to “D.A.” him, that is, to protect himself. She had heard this slang term used by others and she understood it to mean defend yourself. She only knew this “shady” friend from hearing him on speaker phone on Snapchat that day, when he “rubbed her the wrong way”. She was frantic and so she told Machado to “D.A.” him or to “tie him up”. By the end of the call, she agreed that she was laughing, but she testified that it was a nervous laugh and that she was still frantic;
The fifth relevant call
- The call on the next day, June 6, 2021, was also the subject of considerable evidence from Meecham. She was not a direct party to this call but she testified that she was present in her home during the call and she was actually in the background, speaking to the caller and his associates. This call was at 8:46 p.m. on Sunday evening, about 12 hours before the police search. At that time, Meecham was home alone, waiting for her aunt to arrive. Her aunt was coming to drop off her daughter. The immediate context for this call, according to Meecham, was that three of Machado’s friends or associates had arrived at Meecham’s home – a white guy, a girl, and a black guy named Zee. Meecham did not know them. They said that Machado had sent them in order to drop off Zee at the house. Meecham told them that they could not drop off Zee and that Zee could not come in the house. Meecham had the impression that Machado was getting too comfortable, thinking that his friends could be dropped off at her house. She told them that her daughter was coming and was only an hour away. She then overheard the white guy, who was on the phone with Machado, saying that they could not stay because her daughter was coming. Meecham heard Machado tell his friends to go upstairs and get his belongings. She heard them say, “it’s upstairs”. Meecham let them into the house and let the white guy and the girl go upstairs to the spare bedroom to get Machado’s things. Meecham was getting angry at this point, as her arrangement with Machado was not working out. She remained downstairs with Zee. The next development was that the girl came back downstairs and asked Meecham whether all of Machado’s stuff was upstairs. Meecham said “no” and pointed to the three backpacks in the living room. At this point, the girl said that “he really has nowhere to stay”. Meecham felt sorry for Machado and told them that Machado could stay, but she did not want the rest of them staying. At this point, the girl went back upstairs. A minute later, the white guy and the girl came back downstairs and said they would not take everything because Machado was coming back. According to Meecham, she and the white guy did not discuss “putting the stick in the safe”. There was no safe in the house. Meecham did not see them take anything away when they came downstairs and when they left the house. However, the girl had a purse and both males had satchels. Meecham planned to give Machado one last warning, when he returned, about having his friends come over to the house;
The sixth relevant call
- Meecham was not questioned about the final wiretap intercept, which took place the next day on June 7, 2021. In that call, the above events were further discussed by Machado and the male who had been speaking to Meecham at the house on June 6, 2021 and who was involved in removing Machado’s gun.
[30] The final area of Meecham’s testimony was about the search of her house on June 7, 2021. Her aunt had dropped off her daughter on the evening of June 6, after Machado’s three friends had left the house. Her daughter was up early the next morning, before the police arrived. Meecham was still asleep. The officers woke her up. I need not review the evidence about ss. 10(a) and 10(b) Charter issues, as they were abandoned.
[31] Meecham observed the police search the three backpacks in the living room. She saw them find the box of bullets and the baton. Meecham had not been aware of these items. Meecham admitted that the large bag of marijuana on the dresser in the master bedroom was hers. She bought it by the pound for personal use. The kitchen scales by the bed were also hers. She used them to weigh the marijuana, as she was being “shorted”. The three cell phones in her bedroom were also hers, although one was her daughter’s. Finally, the $14,730 in Canadian cash in the Chanel purse on the bar stool in the kitchen was hers. She kept large amounts of cash at her grandmother’s house in Toronto, as “no one knows where her grandmother lives.” She had just picked up the three bundles of cash in the Chanel purse that week, from her grandmother’s house. She had a monthly rent payment of $2,450 coming up on June 15th and she was going to buy hair extensions. They cost a minimum of $1,000 per customer. She did not know how many hair extension appointments she had coming up but she was busy. In addition, she needed cash for spending because she liked to shop.
[32] Meecham denied knowing that Machado was a drug dealer and that he had the drugs that were found in his satchel. She let him into the house because she was trying to be nice to a troubled youth. She was not aware of his friends or associates being in the house, except for the three who she let in on June 6, 2021, in order to get his belongings.
C. Analysis
[33] All of the counts in the Indictment depend upon proof of the element of possession. The trafficking purpose is not in dispute on the drug counts and the prior prohibition Order is not in dispute on the one ammunition count that is proceeding. In relation to the law of possession, the accused Meecham was clearly not in personal possession of the drugs found in Machado’s satchel in the spare bedroom. She was also not in personal possession of the box of ammunition found in Machado’s backpack on the living room floor. Accordingly, the Crown must prove that she was either in constructive possession or joint possession of the drugs and/or the ammunition. Both of these forms of possession require proof of knowledge and a measure of control over the contraband. See: R. v. Morelli, 2010 SCC 8 at paras. 15-17; R. v. Pham, 2005 ONCA 890 at paras. 12-18, aff’d 2006 SCC 26; R. v. Terrence, [1983] 1 SCR 656; R. v. Beaver, [1957] SCR 531 at pp. 140-141.
[34] In relation to the element of control, there is no dispute that the accused Meecham was the tenant in the townhouse located at 1890 Rymal Road East in Hamilton where the drugs and ammunition were found. Her mother had leased the townhouse for Meecham and it was Meecham who admittedly paid the rent and admittedly controlled access to and use of the house. If she knowingly allowed Machado to store his drugs and/or his ammunition in her home, or knowingly allowed him to carry on his drug trafficking business from her home while armed and while residing there during the first week of June 2021, then Meecham would be exercising a degree of control over the contraband herself as a joint co-principal, or she would be aiding and abetting Machado’s possession of the drugs and/or the ammunition. In R. v. Colvin and Gladue (1942), 78 C.C.C. 282 (B.C.C.A.), O’Halloran J.A. stated:
If there is the power to consent there is equally the power to refuse and vice versa. They each signify the existence of some power or authority which is here called control.
[35] Martin J.A., speaking for the Ontario Court of Appeal, applied the Colvin and Gladue definition of control in Re Chambers and the Queen (1985), 20 C.C.C. (3d) 440 (Ont. C.A.). That was a case where it could be inferred that the accused Chambers had allowed her boyfriend Cardenas, who was visiting from Detroit, to store his cocaine in her bedroom in Toronto. Martin J.A. reasoned as follows:
There was evidence that the room in which the drug was found was the respondent’s [Chambers’] room and, consequently, she could give or withhold her consent to the drug being in her room … the respondent in the present case had the power to either consent or withhold her consent to her room being used to store cocaine … a court [may draw] appropriate inferences from evidence that a prohibited drug is found in a room under the control of an accused where there is also evidence from which an inference may properly be drawn that the accused was aware of the presence of the drug. [Emphasis added].
Also see: R. v. Mohamad, 2004 ONCA 10 at para. 61 (Ont. C.A.); R. v. Savory (1996), 94 O.A.C. 318 (C.A.); R. v. Lights, 2020 ONCA 128 at para. 98. Meecham, of course, denies having any knowledge of the drugs and the ammunition and denies knowledge that Machado was a drug trafficker.
[36] I am satisfied that if knowledge can be proved, then the element of control can be inferred on the basis of the principle set out above in the Re Chambers and Colvin and Gladue line of authority. Accordingly, the key element in dispute in this case is whether Meecham had knowledge of the drugs and/or ammunition. In my view, the most important items of circumstantial evidence relating to proof of knowledge are the following:
- First, the quantity and variety of drugs being stored by Machado in his satchel in the spare bedroom was substantial. He was also storing a loaded handgun in the satchel in this same location. I am satisfied that these items of contraband had significant value. It is a reasonable inference that Machado would not have left these valuable items in Meecham’s house unless he trusted her to look after them, which would require her to have knowledge that they were there. See: R. v. Bains and Pannu, 2015 ONCA 677 at para. 157 (Ont. C.A.); R. v. Thompson, 2020 ONCA 361 at para. 11; R. v. Bonilla-Perez, 2014 ONSC 2031 at para. 51, aff’d 2016 ONCA 535 at para. 16;
- Second, Machado was a full-time professional drug dealer. He had no other source of income or livelihood. He also had an “organization” around him, as he repeatedly put it, involving other associates who were assisting his substantial drug trafficking activities. In addition, he was a user of hard drugs himself and his manner of speech in the wiretaps and his appearance in court were consistent with the drug trade and the drug sub-culture. Indeed, he disparaged those who were not involved in the drug trade and the drug sub-culture as “squares” who were not “cool”. Finally, Meecham acknowledged her own prior experience with the kind of associates Machado was talking to, based on her significant time spent with her former boyfriend and former drug dealer, Richard Brewster. As a result, she had learned and she used some of the slang terms associated with the drug trade. In short, she was not naïve about the drug trade. All these circumstances would likely have caused Meecham, at a minimum, to suspect that Machado was involved in drug trafficking;
- Third, Machado kept his three backpacks with his belongings, including his clothing, in the living room. He never took them up to the spare bedroom, inferring that he spent some time in the downstairs open living room and kitchen area. In addition, he conducted his drug business over his telephone. Meecham overheard Machado’s phone call with his “shady” friend because the phone was on speaker mode. In addition, she was present when Machado’s friends called him from her house and discussed removing his belongings from the house. In all these circumstances, it is a reasonable inference that Meecham overheard at least some of Machado’s drug-related phone calls;
- Fourth, and more importantly, Meecham’s Chanel purse was half-open on a bar stool at the kitchen island, opposite the living room area. It was full with three bundles of Canadian cash totalling $14,730. Nothing else was in the purse except a small package of Covid masks. In other words, this particular purse of Meecham’s was being used for the sole purpose of carrying an unusually large amount of cash. As will be discussed below, Meecham’s explanation for her possession of this cash is not credible. In my view, Meecham’s possession of the cash is consistent with significant involvement in Machado’s drug trafficking “organization”;
- Fifth, Meecham was in possession of three cell phones in her bedroom and a fourth cell phone in her car. The locations in which these four phones were found, as depicted in the photographs, tends to infer that they were in use. Meecham’s possession of the four cell phones is also consistent with involvement in the drug trade;
- Sixth, there is evidence that Machado’s friends and associates were present in the house at various times. In the June 2, 2021 call with Shane Paul (the first call), it appears that Machado was discussing a prior occasion when he and a friend or associate were drinking and doing drugs in Meecham’s home. He confirmed this in his testimony. As a result, this evidence does not depend on the co-conspirators exception to the hearsay rule. See: R. v. Yumnu, 2010 ONCA 637 at para. 342 (Ont. C.A.). In the first June 5, 2021 call at 7:30 p.m. (the third call), it appears that Machado spoke in the background to an associate who was already at the house and who told him the address, which Machado then gave to his “shady” friend in relation to an apparent drug transaction that was to be carried out at the house. Again, Machado substantially confirmed this in his testimony. Finally, at the time of the June 6, 2021 call at 8:46 p.m. (the fifth call), Meecham acknowledged in her testimony that she had let three of Machado’s friends or associates into the house in order to retrieve his belongings. In her presence, the male who was talking to Machado on the phone stated: “where am I going to leave Zee”; “we need to bounce from Hamilton because she’s having her daughter come”; “we’re leaving the crib in less than an hour because her daughter’s coming home”; and “we can’t even come stay here no more. So we just need a spot in Hamilton.” [Emphasis added]. Machado’s response to these repeated assertions was to ask, “So where are we gonna to stay?” [Emphasis added]. The use of these statements in relation to the Carter exception to the hearsay rule, will be discussed later in these Reasons. All of this above sixth set of circumstances infers that a number of Machado’s friends or associates had access to or were using Meecham’s residence, and not just Machado;
- Seventh, and perhaps most significantly, Machado’s call to Meecham on June 5, 2021 at 1:06 a.m. (the second call), was undoubtedly for the purpose of discussing a significant drug trafficking transaction involving “one Steve guy”. Machado immediately raised this subject with Meecham and she twice replied, “yeah” and “okay yeah, so okay”, while he explained a potential $16,000 sale of “everything to him until he’s broke”. When Machado continued to discuss this transaction, Meecham gave him her “Pretty 613” Snapchat account and said, “I’m gonna talk to you on there.” The intercepted phone call ended at this point. Any continuation of the discussion about this drug transaction on Snapchat would admittedly not be recorded, saved, or intercepted. The clear inference from this phone call is that Machado regarded it as normal to discuss a significant potential drug sale with Meecham. In other words, he was not keeping his drug trafficking work a secret from her, contrary to both Machado’s and Meecham’s testimony. Once again, Meecham’s explanation for this call is not credible, as will be explained below;
- Eighth, and equally significantly, Meecham’s June 5, 2021 call to Machado at 7:32 p.m. (the fourth call) infers her direct involvement in his drug trafficking business. The timing of this call, and its immediate context, are significant. Machado had just completed the prior 7:30 p.m. call with his “shady” friend (the third call). That call was about a drug transaction as this was admittedly Machado’s only business at the time and the parties began the call by asking each other, “what you need?” and “what’re you dealing with?” The parties proceeded to discuss where they would meet. Once again, the application of the Carter rule to this prior 7:30 p.m. call will be discussed below. When Meecham called Machado two minutes later, at 7:32 p.m., it can be inferred that she was aware of the fact of the prior call because she immediately asked Machado, “Are you talking to him?” Indeed, Meecham conceded in her testimony that she had arranged the proposed meeting that was under discussion between Machado and his “shady” friend. The facts underlying this concession by Meecham were self-evident because she told Machado early in the 7:32 p.m. call, “My boy was supposed to circle to the gas station and make him follow quick. He knew that”. [Emphasis added]. It is clear, in my view, that Meecham had arranged the meeting between Machado and the “shady” friend. Meecham, however, denied that the purpose of the meeting was drug-related. She asserted that Machado was simply collecting a debt and his stolen clothing from the “shady” friend. Once again, Meecham’s evidence on this point is not credible, as will be discussed below. The 7:32 p.m. call between Meecham and Machado continued, with Meecham instructing Machado about what to do, if anything went wrong when he met with the “shady” friend. She stated, “fucking just D.A. him, tie him up or something. We’ll deal with it.” Machado responded by agreeing as he stated, “yeah, if he tries to thing we’re going to try to D.A. him”. [Emphasis added]. I am satisfied that this meeting between Machado and the “shady” friend involved a drug transaction and that Meecham and Machado were jointly engaged in arranging it and planning how to carry it out;
- The ninth set of relevant circumstances are the “in furtherance” utterances of other co-conspirators. The parties agree that the first step in the Carter test is easily met as there was undoubtedly an ongoing conspiracy between Machado and the others in his “organization” to traffic in controlled substances. In my view, the above eight sets of circumstances easily establish Meecham’s involvement in that common unlawful purpose on a balance of probabilities. Those eight bodies of circumstantial evidence emerge predominantly from Meecham’s own acts and declarations (the sixth and eighth bullet points include some reference to the acts and declarations of others). Considering only Meecham’s own acts and declarations, they satisfy the second step in the Carter test. Turning to the potential “in furtherance” utterances of others, in the June 2, 2021 call between Machado and Shane Paul (the first call), there are incriminatory assertions about Meecham having “the code to the safe” and implying that “the [gun] is in the safe”. I am not satisfied that this call was “in furtherance” of a common unlawful drug trafficking purpose between Machado and Meecham and others. It appears that Machado and Shane Paul were discussing an armed robbery of a marijuana delivery person. There is no evidence that Meecham ever joined this unlawful purpose. Accordingly, this call is not admissible against Meecham for its truth pursuant to the Carter rules. See: R. v. Kler, 2017 ONCA 64 at paras. 63-68 (Ont. C.A.); R. v. Sauvé and Trudel, 2004 ONCA 1 at paras. 111-119 (Ont. C.A.). In relation to the June 5, 2021 call at 7:30 p.m. (the third call), between Machado and his “shady” friend, I am satisfied that it was “in furtherance” of a common unlawful drug trafficking purpose that included Meecham. As explained above, the call was about a drug transaction and Meecham’s own acts and declarations establish her involvement (at least, on a balance of probabilities). In this call, Machado told the “shady” friend to “come to the crib” [home or residence]. The “shady” friend replied, “She said go to the gas station and talk to her ’cause I’m here already” [emphasis added]. I am satisfied that this is a reference to Meecham and it directly implicates her in the drug transaction. I am also satisfied that the June 6, 2021 call at 8:46 p.m. (the fifth call), between Machado and an unknown male, was “in furtherance” of a common unlawful drug trafficking purpose between Machado and Meecham and others. Certain parts of this call admittedly took place in Meecham’s presence and she was admittedly providing certain information to the unknown male party during this call. Leaving aside this question of whether Meecham was a direct participant in the call, I am in any event satisfied that it is admissible against her under the Carter exception to the hearsay rule. The main purpose of the call was to remove certain belongings of Machado’s from the house, in particular his firearm, prior to the imminent arrival of Meecham’s daughter. This purpose was directly related to the ongoing success and operation of Machado’s drug trafficking business. As set out above (in the sixth bullet point), the unknown male and Machado repeatedly made statements that implied their prior use of Meecham’s house. In addition, when Machado and the unknown male were unsure about the location of “the trap” [stash house] where they were now going to stay, the unknown male told Machado, “Just call her and talk to her”, implying that Meecham knew the location of “the trap”. The unknown male then told Machado, “she said you could come back [to her house] because it’s where you’re supposed to be.” Machado replied “tell her to … put the stick [firearm] in the safe. It’s in my side bag, and … when I come back to Hamilton I’ll get it … Tell her I’ll draw for it” [pick it up]. [Emphasis added]. I am satisfied that these utterances are about Meecham and they implicate her in Machado’s drug trafficking “organization”. In relation to the final wiretap intercept on June 7, 2021 at 1:26 p.m. (the sixth call), I am not satisfied that it is “in furtherance” of an ongoing common unlawful drug trafficking purpose between Machado and Meecham. This call, between Machado and the unknown male who had removed Machado’s firearm from the satchel in the closet, occurs after the police had searched the house and after Meecham had been arrested and then released at her home. The discussion is almost entirely about past events. I advised the Crown during oral argument of my preliminary view, that the call was mainly “narrative” and was not “in furtherance” of an ongoing common unlawful purpose. See: R. v. Mota (1979), 46 C.C.C. (2d) 273 (Ont. C.A.); R. v. McNamara et al (No. 1) (1981), 56 C.C.C. (2d) 193 (Ont. C.A.). As a result, the Crown did not seek admission of this final call against Meecham pursuant to the Carter rules. In conclusion in relation to this ninth set of circumstances, the June 5th call at 7:30 p.m. (the third call) and the June 6th call at 8:46 p.m. (the fifth call) are both admissible against Meecham for their truth. They both confirm and support the reasonable inference, from the first eight bodies of circumstantial evidence set out above, that Meecham was involved in Machado’s drug trafficking “organization”. Although the declarants of these “in furtherance” utterances are accomplices and persons of bad character, whose credibility as witnesses would have to be approached with considerable caution, their intercepted contemporaneous “in furtherance” assertions have greater credibility and reliability, especially when they are supported by the other circumstantial evidence (as they are);
- Tenth, there are a number of circumstances relating to the element of knowledge on which the defence relies. In particular, the drugs in the satchel and the ammunition in the backpack were not in plain view. They were inside zippered enclosed compartments of these two bags, and the satchel was inside a closet in an upstairs spare bedroom. There were no drugs found in the open kitchen and living room area or in Meecham’s master bedroom (aside from the marijuana). In addition, the defence relies heavily on Meecham being immediately upset with Machado in the June 5, 2021 call at 7:32 p.m., when she learned that he had told his “shady” friend to come to her house for their meeting. The defence also relies on Machado’s response in which he told Meecham, “Yo, I promise I won’t do nothing … Like come on, this is your house … I’m not going to do nothing stupid … I’m smarter than that, trust me.” Finally, the defence relies on Meecham’s own direct evidence, denying knowledge of the drugs and ammunition. That testimony, of course, depends on her credibility, which will be discussed below.
[37] Three of the most important sets of circumstances summarized above are based on evidence that Meecham tried to explain during her testimony (the fourth bullet point concerning $14,730 in cash in a purse belonging to Meecham, and the seventh and eighth bullet points concerning Meecham’s two intercepted phone calls with Machado). As indicated above, I have concluded that Meecham’s explanations are not credible in all three instances. I will address each of these three findings of credibility in turn.
[38] Meecham’s explanation for carrying $14,730 cash and almost nothing else in her Chanel purse, and then leaving it out in the open on a bar stool in the kitchen, was that she had recently picked the money up from her grandmother’s house in Toronto. She testified that she would store large amounts of cash at her grandmother’s house because “no one knows where my grandmother lives.” On this occasion, she needed the cash to pay her June rent, to buy hair extensions, and for personal shopping. She earned the money lawfully from her registered beautician business and she declared most of this income on her tax returns. There was no support for any of these assertions and so they depend entirely on the truthfulness of Meecham’s testimony. If this income was lawful and was substantially declared on her tax returns, there would be no reason to keep it stored secretly in the form of cash. Meecham never explained why she did not deposit her income from a lucrative lawful registered business in a bank. The photographs of the wallet and purse that Meecham appeared to be using at the time showed that they were located in her car. They also show that she carried a CIBC credit card, together with her identification and a number of other cards, as well as normal spending amounts of cash, in this different purse and wallet and not in the Chanel purse (see: Exhibit 9, photos 9 to 11, 14 to 16, and 19 to 28). Meecham’s explanation for storing significant amounts of cash at her grandmother’s house in Toronto, at some inconvenient distance from where she lived in Hamilton, was that “no one knows where my grandmother lives.” This suggests that she had concerns about theft of her money, and yet she left it in the open on a bar stool in her kitchen while she slept. The three expenditures she was anticipating – rent, hair extensions, and personal shopping – did not come close to explaining the unusually large amount of cash in the Chanel purse on the bar stool. Finally, the odd manner of carrying the money in three separate and different bundles (suggesting different sources), and the fact that the bundles included many small bills (consistent with trafficking) was not explained. For all the above reasons, Meecham’s explanation for the $14,730 cash was not credible. Her demonstrated association with the drug trade, as set out in the circumstantial evidence summarized above, is a far more probable explanation for this money.
[39] Turning to the June 5, 2021 call from Machado to Meecham at 1:06 a.m. (the second call), she gave inconsistent explanations about this important intercepted call. During her evidence in-chief, she testified that she understood the call to be about a “Steve guy” who had offered to pay the first and last month’s rent on a place where Machado could live. This was a “back-up plan” in the event that Machado’s father would not let him return to the family home. In cross-examination, Meecham testified that she did not understand Machado to be talking about a guy with a lot of money, that she did not know a “Steve guy”, and that she was not engaging at all in the subject of this call and just wanted to get rid of Machado. When reminded of her evidence in-chief, Meecham reverted to her story about a “Steve guy” who was offering to pay Machado’s first and last month’s rent. These inconsistent accounts reflect the fact that Meecham has no straightforward or credible explanation for the incriminating content of this call. There is no suggestion, in the actual content of the call, that it is about someone paying Machado’s first and last month’s rent. There is also no suggestion, in her tone and voice, that she was not engaged and was trying to get rid of Machado. On the contrary, she sounds bright and awake and interested. The subject of the call is a potential customer who has $16,000 and Machado is planning to “nip” [sell] all his drugs to this person, according to both Det. Duffus’ and Machado’s own evidence about this call. Meecham twice acknowledged in the call that she was following or understanding the subject under discussion, and she then asked Machado to continue the discussion on her Snapchat account. Similarly, when she wanted to discuss the police search of her house with Machado, after it had concluded and the police had left, she contacted him on Snapchat. Similarly, when she spoke to the “shady” guy on Machado’s phone about meeting at the gas station, it was on Snapchat. There would admittedly be no record of any of these calls which all related to Machado’s drug trafficking business. For all these reasons, Meecham’s explanation for this June 5th late night call is not credible. The call is consistent with all the other circumstantial evidence implicating Meecham in Machado’s drug trafficking “organization”.
[40] Finally, Meecham provided inconsistent explanations for her June 5, 2021 call to Machado at 7:32 p.m. (the fourth call). In addition, her account of this call was inconsistent with Machado’s account. Her evidence in-chief was initially that she used the slang term “my boy” to refer to the “shady” guy. She later testified in-chief that “my boy” referred to Machado’s driver. In cross-examination, she returned to testifying that “my boy” referred to the “shady guy” who Machado was about to meet. These inconsistencies reflect the difficulty that Meecham had in explaining the fact that she had arranged this meeting, and in explaining the reason for this meeting between Machado and the “shady” guy. Her explanation as to the reason for the meeting was that the “shady” guy owed Machado a debt and had also stolen Machado’s clothes, and they were meeting in order to repay the debt and return the clothes. There is nothing in the actual content of this call, or in the earlier and closely related 7:30 p.m. call (the third call), that suggests such a purpose for the meeting. In the 7:30 p.m. call, as explained above, it is apparent that the purpose of the meeting was related to a sale of drugs. Even Machado, who was rarely a credible witness, acknowledged that the 7:30 p.m. call was with a member of his “organization” and that he was buying drugs from this guy (although he believed that the drugs in question were marijuana). The defence relies on the fact that Meecham was upset with Machado for changing the location of the meeting, from the gas station to Meecham’s house. However, this is entirely consistent with Meecham not wanting a drug deal with an unknown party to take place at her house (where it could be connected to her). What is significant, in this regard, is that Meecham was not “frantic” about this imminent meeting taking place at her house, as she testified. She allowed it to proceed and she directed Machado to “just D.A. him, tie him up or something.” If anything was to go wrong at the meeting, she said that “we’ll deal with it”. Far from being “frantic”, the demeanour and tone of her voice sound calm and in control, and the words spoken involve instructions on how to proceed. Three times during the call she appears to be laughing. The call concludes with a seemingly fond exchange, “I’ll talk to you soon” and “All right, bye.” She appeared to be content with the meeting proceeding at her house, pursuant to the joint arrangements that they had agreed upon. Once again, this call is consistent with Meecham’s knowledge of and involvement in Machado’s drug trafficking business.
[41] Once Meecham’s explanations for these three particularly important sets of circumstances (summarized at the fourth, seventh, and eighth bullet points above) are set aside as not credible, the totality of all the circumstantial evidence gives rise to a compelling inference of knowledge. Some of the circumstances set out above have greater weight than others but, when considered together, I am satisfied that the only reasonable inference is that Meecham knew that Machado was a drug trafficker, she allowed him to work out of her house, and she was directly involved in at least some of his drug trafficking transactions.
[42] For all these reasons, I cannot accept Meecham’s explanation for why she allowed Machado to use her house as a temporary residence. She was not a good Samaritan who had sympathy on a troubled teenager. Rather, she was aware of and involved in his drug trafficking business. There is no reasonable doubt on this issue. See: R. v. Villaroman, 2016 SCC 33 at paras. 18 and 30-43 (S.C.C.); R. v. Gibson, 2021 ONCA 530 at paras. 75-79; R. v. D. (J.J.R.), 2006 ONCA 820; R. v. Hansen, 2018 ONCA 46 at para. 34 (C.A.).
[43] Based on the above analysis of the circumstantial evidence, I am satisfied beyond reasonable doubt that Meecham knowingly allowed Machado to possess controlled substances in her house and to conduct his drug trafficking business from her house. She also participated directly in that business on certain occasions. She was either in joint possession of his drugs, or she was aiding and abetting his possession, or both. See: R. v. Thatcher, [1987] 1 SCR 652 at pp. 508-515 (S.C.C.); Re Chambers and the Queen, supra at p. 449; R. v. Portillo, 2003 ONCA 470 at paras. 65-71 (Ont. C.A.); R. v. Glasner, 2022 ONCA 64 at para. 18.
[44] Counts one, two, three, and four in the Indictment particularize the controlled substances allegedly possessed as cocaine, crack cocaine, fentanyl, and methamphetamine. Given the conclusion set out above, that Meecham was actually involved in Machado’s drug trafficking business to the extent of setting up meetings where he was to carry out drug deals and discussing potential drug deals with him, she must have known the nature of the controlled substances that Machado possessed and that he was both buying and selling. I am satisfied that the element of knowledge has been proved in relation to these four counts. There is, of course, no suggestion in the present case that the Crown proved that the four controlled substances possessed were anything other than what was particularized in the Indictment. See: R. v. Blondin (1970), 2 C.C.C. (2d) 118 (B.C.C.A.), aff’d 1971 SCR 979; R. v. Aiello (1978), 38 C.C.C. (2d) 485 (Ont. C.A.), aff’d 1979 SCR 944; R. v. Morozuk, [1986] 1 SCR 31; R. v. Rooke and DeVries, [1990] 1 SCR 1000.
[45] In relation to the three ammunition counts, the Crown is only proceeding on Count five. It alleges a breach of the more recent 2018 prohibition Order imposed by Schreck J. The Crown did not prove the earlier 2006 and 2008 prohibition Orders alleged in Counts six and seven. Accordingly, Meecham is not guilty on those two counts. The Count five evidence relating to Meecham’s knowledge of Machado’s box of ammunition, stored in the black and gold Champion backpack in the living room, is not as compelling as the evidence relating to her knowledge of Machado’s drugs. In the analysis set out above, I have concluded that Meecham knew that Machado was a drug trafficker and that she was directly involved in certain drug trafficking transactions, based on a large body of circumstantial evidence. Although the possession and use of loaded firearms often accompanies drug trafficking, this is not always the case. The strongest evidence of Meecham’s knowledge of Machado’s loaded firearm (and, therefore, of any related ammunition) is found in the hearsay assertions of Machado in the June 2, 2021 call with Shane Paul (“she has the code to the safe and [it] is in the safe”) and of the unknown male in the June 7, 2021 call with Machado (“I just grabbed the hammer … told her yeah that’s the stick, take it … and she took it”). These hearsay assertions in the first and sixth calls are not admissible against Meecham pursuant to the Carter rules, for the reasons set out above. Machado never incriminated Meecham in relation to the firearm or the ammunition and never adopted his hearsay assertions to the effect that his firearm was in a safe and that Meecham had the code to the safe and that he arranged to get the firearm from her after the search of the residence. The firearm was not found at Meecham’s house, the safe was never found, and the box of ammunition was hidden inside the backpack. The best evidence that Meecham had knowledge of the loaded firearm (and any related ammunition) comes from Machado’s “in furtherance” instructions to the unknown male in the June 6, 2021 call at 8:46 p.m. Machado stated, “tell her to ... put the stick in the safe … when I come back to Hamilton I’ll get it … Tell her I’ll draw for it.” This evidence is admissible, pursuant to the Carter rules, but I would have to infer that these instructions in the fifth call were carried out by the unknown male, without any supporting evidence. In all these circumstances, I am not satisfied that the element of knowledge has been proved beyond reasonable doubt in relation to the box of ammunition seized from the backpack. Accordingly, Meecham is not guilty on Count five.
D. Conclusion
[46] For all the reasons set out above, Meecham is found guilty on Counts one, two, three, and four. She is found not guilty on Counts five, six, and seven.
M.A. Code J.
Released: June 14, 2024