Court File and Parties
COURT FILE NO.: CR-21-1391-0000
DATE: 2024 01 19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
His Majesty the King
S. Burdo, counsel for the Crown
– and –
Taychan Andrew Beharie
R. Singh, counsel for the Defence
HEARD: December 4-7, 2023
REASONS FOR JUDGMENT
Conlan J.
I. The Indictment
[1] Taychan Andrew Beharie (“Beharie”) stands charged with two offences, both stemming from the police execution of a search warrant on a Nissan Rogue motor vehicle (“Rogue”) on October 1, 2019 in the parking garage of a condominium property (“Condo”) in Mississauga, Ontario.
[2] Both charges are possession of a controlled substance for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act.
[3] Count 1 alleges a schedule I substance – essentially, a fentanyl and heroin mixture. Count 2 alleges a schedules I and IV substance – essentially, a fentanyl and etizolam mixture.
II. The Trial
[4] Beharie was tried before this Court, without a jury, in-person in Brampton, Ontario, over four days between December 4 and December 7, 2023.
[5] Many of the facts were undisputed, and two statements of admissions (Exhibits 1 and 14) were filed. The admitted facts include the following:
(i) police seized from the Rogue 774.82 grams of a fentanyl and heroin mixture;
(ii) the said fentanyl and heroin mixture was possessed for the purpose of trafficking;
(iii) police also seized from the Rogue 3.36 grams of a fentanyl and etizolam mixture;
(iv) the said fentanyl and etizolam mixture was possessed for the purpose of trafficking;
(v) on October 1, 2019, Beharie was the registered owner of the Rogue;
(vi) police seized from the trunk of the Rogue, in plain view, two legal documents in Beharie’s name, dated April 2, 2019 and January 10, 2019;
(vii) the key fob that police used to access the interior of the Rogue and to execute the search warrant was attached to a key chain that contained two residential keys, one of which was for a unit at the Condo; and
(viii) the Rogue was locked when the police checked it the night before the execution of the search warrant, at about 11:55 p.m. on September 30, 2019.
[6] At trial, the Crown called five witnesses – (i) civilian Kameelah Commissiong (“Commissiong”), the former girlfriend of Beharie and his partner as of the alleged offence date, (ii) Detective Constable Connor Rogers (“Rogers”) of the Toronto Police Service, whose primary involvement was to take photographs (Exhibit 5) of the search of the Rogue, (iii) Detective Constable Hassan Syed (“Syed”) of the Toronto Police Service, whose primary involvement was searching the rear area of the Rogue, (iv) Detective Constable Harry Jugpall (“Jugpall”) of the Toronto Police Service, whose primary involvement was the search of the front area of the Rogue, and (v) Detective Constable Andrea Chalmers (“Chalmers”), whose primary involvement was as the property officer during the search of the Rogue and to watch video surveillance at the Condo.
[7] Beharie did not testify at trial. The defence presented no evidence at trial except for Exhibit 15, an affidavit of a law clerk employed by counsel for Beharie, which affidavit was filed on consent of the Crown and without the deponent testifying. Exhibit 15 describes the law clerk’s attendance at the Condo on November 30, 2023 and observations made by the law clerk inside the second floor of the parking garage (“P2”). Attached to the law clerk’s affidavit are several exhibits including photographs and videos taken by the law clerk while inside P2.
III. The Issue
[8] Ms. Burdo, counsel for the Federal Crown, and Ms. Singh, counsel for Beharie, both presented the case in a focussed and competent manner. This Court is grateful for that.
[9] The verdicts turn on one question – is this Court satisfied, beyond a reasonable doubt, that Beharie possessed the drugs found by the police inside the Rogue?
IV. The Presumption of Innocence
[10] Beharie is presumed to be innocent, unless and until the Crown proves his guilt beyond a reasonable doubt.
[11] That presumption of innocence remains throughout the trial and during this Court’s assessment of the case, and it is defeated only if and when the Crown proves each and every essential element of the offence in question beyond a reasonable doubt.
V. The Burden of Proof
[12] The obligation to prove the guilt of Beharie rests with the Crown. That burden of proof never shifts to Beharie. Beharie had no obligation to testify at trial or to present any evidence at trial or to prove anything.
[13] Unless the Crown has proven each and every essential element of the offence in question beyond a reasonable doubt, Beharie must be found not guilty of the offence charged.
VI. The Standard of Proof
[14] A reasonable doubt is not one that is imaginary, far-fetched, or frivolous, and not one that is based on sympathy or prejudice. Based on reason and common sense, it arises logically from the evidence or the absence of evidence.
[15] Proof of probable or likely guilt is not enough – that falls short of proof beyond a reasonable doubt. An accused who is found to be probably or likely guilty must be acquitted.
[16] Although proof to an absolute certainty is not required, proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on the civil standard of a balance of probabilities.
[17] If, after considering all of the evidence and the lack of evidence, this Court is sure that Beharie committed the offence in question, then I should find him guilty of it. Otherwise, Beharie should be acquitted.
[18] In a case that is entirely or largely circumstantial, as this one is, it is a serious omission for the trier of fact to not specifically recognize that a reasonable doubt may arise from a lack of evidence. R. v. Anderson, 2003 CanLII 31748 (ON CA), at paragraph 36.
VII. The Evidence of the Witnesses
[19] This Court may accept all, some, or none of any witness’ evidence.
[20] There are many factors that may be considered in determining what weight, if any, to give to a witness’ evidence, but those factors include whether the witness has been inconsistent in their evidence, and whether the witness has made a lot of mistakes in their evidence, and whether the witness has a reason to give evidence that is more favourable to one side than the other.
[21] The degree to which this Court relies upon the evidence of any particular witness does not necessarily depend on the number of witnesses who testify, one way or another.
[22] Of course, this Court must consider not only the testimony of the witnesses but also the exhibit evidence that has been filed.
VIII. The Essential Elements of the Offence of Possession for the Purpose of Trafficking
[23] For this Court to find Beharie guilty of either count that he is facing, the Crown must prove each of the following beyond a reasonable doubt:
(i) that Beharie was in possession of the substance in question – this is the issue at trial;
(ii) that the substance was what it is alleged to be – this is admitted;
(iii) that Beharie knew that the substance was what it is alleged to be – this is not an issue at trial; and
(iv) that Beharie had possession of the substance for the purpose of trafficking in it – this is admitted.
[24] The case turns on the first essential element.
[25] This is not a case of personal possession. It is a case of constructive possession in that it is alleged that Beharie knowingly had the substances in some place (inside the Rogue) for the use or benefit of himself or someone else, and that he had some element of control over the substances.
[26] A helpful summary of the meaning of “possession” can be found in the decision of the Court of Appeal for Ontario, per Justice Watt, in R. v. Bains, 2015 ONCA 677, 127 O.R. (3rd) 545, at paragraphs 154-157, set out below.
[154] Section 2(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, as amended ("CDSA"), incorporates the definition of "possession" found in s. 4(3) of the Criminal Code so that [page574] any CDSA offence of which possession is an essential element may be proven in any manner permitted by s. 4(3) of the Criminal Code.
[155] Under s. 4(3), possession includes personal possession, constructive possession and joint possession: R. v. Morelli, [2010] 1 S.C.R. 253, [2010] S.C.J. No. 8, 2010 SCC 8, at para. 15. Knowledge and control are essential elements in both personal and constructive possession: Morelli, at para. 15.
[156] Constructive possession does not involve an accused having physical custody of a subject matter. Constructive possession is established where an accused has the subject matter in the actual possession or custody of another person, or in any place, whether belonging to or occupied by the accused or not, for the benefit of the accused or someone else: Morelli, at para. 17. To establish constructive possession, the Crown must prove beyond a reasonable doubt that an accused Morelli, at para. [17]
(i) knows the character of the object;
(ii) knowingly puts or keeps the object in a place; and
(iii) intends to have the object in the place for his or her use or benefit or the use or benefit of some other person.
[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, 1970 CanLII 1006 (BC CA), [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, 1992 CanLII 913 (C.A.); 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.
IX. Circumstantial Evidence
[27] This case is one of circumstantial evidence. Beharie was neither found inside nor near the Rogue when or around the time that the drugs were located by the police. There is no direct evidence that Beharie ever had the drugs in his personal possession or that he ever placed them inside the Rogue.
[28] The leading authority on how a trier of fact ought to assess circumstantial evidence is the decision of the Supreme Court of Canada, authored by Justice Cromwell, in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paragraphs 29 through 43.
[29] A helpful summary of the governing principles outlined by Justice Cromwell can be found in the decision of the Court of Appeal for Ontario, authored by Justice Watt, in R. v. Okojie, 2021 ONCA 773, at paragraphs 137-139 and 141-142, reproduced below.
[137] In a case in which proof of one or more essential elements of an offence depends exclusively or largely on circumstantial evidence, the inference of guilt or of an essential element of the offence must be the only reasonable inference to be drawn from the evidence as a whole: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 30, 34.
[138] Inferences consistent with innocence may, but need not, arise from proven facts. This is because these inferences may also arise from a lack of evidence: Villaroman, at paras. 35-36. To establish guilt, the Crown is required to negative these reasonable possibilities consistent with innocence, but need not negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of an accused: Villaroman, at para. 37. These other plausible theories or reasonable possibilities must be based on logic and experience applied to the evidence, or absence of evidence, not on speculation: Villaroman, at para. 37.
[139] To support a finding of guilt based entirely or substantially on circumstantial evidence, the circumstantial evidence, taken as a whole, and assessed in the light of human experience, must exclude any other reasonable alternatives: Villaroman, at para. 41; R. v. Ali, 2021 ONCA 362, at paras. 97, 98.
[141] When a conviction based wholly or substantially on circumstantial evidence is challenged as unreasonable on appeal, the appellate court may consider the appellant’s failure to testify as indicative of the absence of any inference alternative to guilt: R. v. Corbett, 1973 CanLII 199 (SCC), [1975] 2 S.C.R. 275, at pp. 280-81; R. v. George-Nurse, 2018 ONCA 515, 432 D.L.R. (4th) 88, at para. 32, aff’d, 2019 SCC 12, [2019] 1 S.C.R. 570.
[142] A final point concerns the manner in which circumstantial evidence is to be assessed. Neither triers of fact at first instance, nor appellate courts on review for unreasonableness, examine individual items of circumstantial evidence separately and in isolation, adjudging them against the criminal standard and rejecting them should they fail to measure up to that standard. No individual item of circumstantial evidence is ever likely to do so. They are bricks with which to construct a wall, not the wall itself. In circumstantial cases, it is commonplace that individual items of evidence adduced by the Crown, examined separately and in isolation, have not a very strong probative force. But all the pieces of evidence have to be considered, each one in relation to the whole, and it is the whole of them taken together whose cumulative force must be considered and may constitute a basis for conviction: Coté v. The King (1941), 1941 CanLII 348 (SCC), 77 C.C.C. 75 (S.C.C.), at p. 76; R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at pp. 361-62
[30] In a circumstantial evidence case, the fact that the accused did not testify does not, on its own, justify an inference of guilt. It may, however, practically speaking, mean that there is the absence of an innocent explanation of inculpatory facts and, thus, a basis to conclude something other than guilt. Bains, supra, at paragraph 175.
[31] Why do we have special jury instructions about circumstantial evidence, and what led to the guidance provided by Justice Cromwell in the seminal decision of the Supreme Court of Canada in Villaroman, supra? I think that the answers to those questions can be found at paragraphs 28 through 30 of Villaroman itself, set out below.
[28] The reasonable doubt instruction describes a state of mind — the degree of persuasion that entitles and requires a juror to find an accused guilty: Berger, at p. 60. Reasonable doubt is not an inference or a finding of fact that needs support in the evidence presented at trial: see, e.g. Schuldt v. The Queen, 1985 CanLII 20 (SCC), [1985] 2 S.C.R. 592, at pp. 600-610. A reasonable doubt is a doubt based on “reason and common sense”; it is not “imaginary or frivolous”; it “does not involve proof to an absolute certainty”; and it is “logically connected to the evidence or absence of evidence”: Lifchus, at para. 36. The reasonable doubt instructions are all directed to describing for the jurors how sure they must be of guilt in order to convict.
[29] An instruction about circumstantial evidence, in contrast, alerts the jury to the dangers of the path of reasoning involved in drawing inferences from circumstantial evidence: Berger, at p. 60. This is the danger to which Baron Alderson directed his comments. And the danger he identified so long ago — the risk that the jury will “fill in the blanks” or “jump to conclusions” — has more recently been confirmed by social science research: see Berger, at pp. 52-53. This Court on occasion has noted this cautionary purpose of a circumstantial evidence instruction: see, e.g., Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16, per Rand J., at p. 22; John, per Laskin J., dissenting but not on this point, at p. 813.
[30] It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative inferences. It may be helpful to illustrate the concern about jumping to conclusions with an example. If we look out the window and see that the road is wet, we may jump to the conclusion that it has been raining. But we may then notice that the sidewalks are dry or that there is a loud noise coming from the distance that could be street-cleaning equipment, and re-evaluate our premature conclusion. The observation that the road is wet, on its own, does not exclude other reasonable explanations than that it has been raining. The inferences that may be drawn from this observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.
[32] In terms of what common sense inferences might be drawn by the trier of fact in a case of constructive possession of something illegal found inside a motor vehicle, Ms. Burdo points to paragraph 16 of the decision of the Court of Appeal for Ontario in R. v. Bonilla-Perez, 2016 ONCA 535, where the Court stated the following (Ms. Burdo emphasizing, in particular, the second and third points).
The trial judge concluded that the appellant was either a principal or a party to the gun possession. He based that conclusion on the following considerations:
• No one else had possession of the BMW and the appellant was driving it.
• That it is a common sense inference that people generally know what is in their car, especially when the object in question has some real value, when it is ready for use, when it is at least partially visible, and when it is within reach, as in the case at bar.
• That it is a common sense inference that other parties generally do not hide their valuables in someone else’s car, unless they know and trust the owner of the car to look after the valuables for them.
• That the only other person with access to the car on the night in question was [the co-accused] and he must have entered the car between 12:00 midnight and 1:30 a.m., while [the appellant] had direct personal custody and control of the car. If [the co-accused] brought the gun into the car and partially concealed it on the floor of the back seat, [the appellant] would have seen him and must have expressly or implicitly permitted or consented to this use of his car, or been wilfully blind to it.
[33] Ms. Burdo submits that, in our case, it is a reasonable inference that such a valuable amount of drugs that were located inside the Rogue would not be entrusted to anyone who did not know about them or where they were located, and that principle points to the guilt of Beharie, relying upon Bains, supra and the decision of the Court of Appeal for Ontario in R. v. Sandhu, 2017 ONCA 709, at paragraph 4.
X. Analysis
The Evidence of Commissiong
[34] 22 years old, unemployed, having dated Beharie for about two years before the arrest, not in any relationship with him currently, and having one child with him, Commissiong gave evidence both favourable to and unfavourable to the Crown’s position.
[35] As examples of the former, Commissiong testified that:
(i) the Rogue was Beharie’s family’s vehicle at the material time;
(ii) the drugs found inside the Rogue were not hers and were there without her knowledge; and
(iii) she and Beharie shared the keys to the Rogue.
[36] As examples of the latter, Commissiong testified that:
(i) the Condo was frequented by many persons as a kind of communal unit;
(ii) the key chain that had the key to the Condo also had on it a key to the Rogue and a key to Beharie’s grandmother’s place, and others besides her and Beharie used that key chain;
(iii) that key chain was usually left on the Condo’s kitchen counter, for anyone to use;
(iv) at least six or seven others had access to and used those keys, including her brother who is a convicted criminal and was on parole and was wanted for a shooting at the material time;
(v) on September 17, 2019, she drove the Rogue from the Condo to her mother’s place, and later that same day her brother and the mother of his child used the Rogue; and
(vi) she would sometimes leave the keys at her mother’s place, and her brother and the mother of his child were welcome to take the keys and to use the Rogue.
[37] For oral reasons given at the time, the Crown’s application to cross-examine Commissiong based on inconsistencies between her trial evidence and her signed statutory declaration dated August 23, 2021 was granted by this Court.
[38] During that cross-examination, Commissiong denied that her trial evidence was inconsistent with paragraph 7 of the said statutory declaration, wherein she stated that she did not have “control” of the Rogue. She explained that she meant that she did not have control of the Rogue on the date of the arrest, not generally.
[39] Commissiong denied, in cross-examination, that she was trying to protect Beharie, or that she did not want him to go to jail, or that she was lying for him, or that she was afraid of him.
The Evidence of the Police
[40] Similarly, the four police officers, Rogers, Syed, Jugpall, and Chalmers, gave evidence both favourable to and unfavourable to the Crown’s position.
[41] As examples of the former,
(i) when Beharie was arrested at the Novotel Hotel in Vaughan, Ontario on October 1, 2019, he tried to escape and struggled with the police;
(ii) there were documents found inside the Rogue that had Beharie’s name on them – a parking ticket, the ownership permit, an insurance document, a store rewards card, a large red envelope, and, from the trunk, two legal documents;
(iii) there were items found inside the Rogue that are consistent with what was seized from Beharie’s person upon his arrest – Apple headphones and an Apple charging cord inside the Rogue and an Apple cellular telephone on Beharie’s person;
(iv) Condo surveillance video footage shows Beharie in or around the parking area, the elevator, and the lobby on September 26, 2019;
(v) Condo surveillance video footage also shows Beharie and/or Commissiong at the Condo, and in some instances in the parking garage near the parking spot where the Rogue was believed to be parked, on September 5, 6, 8, 9, 10, 14, 16, 17, 18, 25, 27, and 28, 2019; and
(vi) the police did not observe anything inside the Rogue that was in someone else’s name besides Beharie.
[42] As examples of the latter,
(i) there was something found inside the Rogue that is consistent with something that was seized from Commissiong’s jacket found inside a bedroom of the Condo, namely, 40 caliber ammunition was found in both places;
(ii) the parking ticket found inside the Rogue, in Beharie’s name, was from March 2019, many months before the drugs were seized by the police;
(iii) the insurance document found inside the Rogue, in Beharie’s name, expired in August 2019, several weeks before the drugs were seized by the police;
(iv) the two legal documents seized from the trunk of the Rogue were both dated several months before the drugs were seized by the police;
(v) except for a small quantity of narcotics found inside the normal compartment underneath the lid of the vehicle’s centre console, the drugs and the drug paraphernalia that were found inside the Rogue were hidden; they were first observed by Syed after he noticed that the centre console was loose and he removed the back vent area of the centre console; and they were ultimately retrieved by Jugpall after he removed some trim around the gear shift area with the aid of a pry tool and then lifted up and removed the cup holder piece;
(vi) no keys were found on Beharie’s person at the time of his arrest;
(vii) the police had never seen Beharie driving or inside the Rogue;
(viii) Condo surveillance video footage does not show either Beharie or Commissiong on September 1, 2, 3, 4, 7, 11, 12, 13, 15, 19, 20, 21, 22, 23, 24, 29, 30, and October 1, 2019;
(ix) September 17 and 18, 2019 are the only two dates that Condo surveillance video footage shows the Rogue, and September 18th is the only date that the said footage shows Beharie in proximity to where the Rogue was believed to be parked in the garage; and
(x) the police had no information that Beharie was the owner of a parking spot or a unit at the Condo.
Assessment of the Evidence
[43] In very able submissions, Ms. Burdo argues that the only reasonable inference to be drawn from the evidence is that Beharie had knowledge of and control over the drugs found inside the Rogue. She points to several things:
(i) the alleged lack of credibility of Commissiong;
(ii) the attempt to flee by Beharie when the police tried to arrest him;
(iii) the documents in Beharie’s name found inside the Rogue;
(iv) the fact that the police did not observe any documents inside the Rogue in anybody else’s name;
(v) the Condo surveillance video footage, which footage includes, on September 14, 2019, Beharie walking in the garage while carrying a white plastic bag (similar to the one that contained most of the drugs found inside the Rogue) and going in the direction of parking spot 345, where the Rogue was believed to be parked;
(vi) the connection between the Apple cellular telephone seized from Beharie’s person and the Apple accessories seized from within the Rogue; and
(vii) the sheer value of the drugs, which points to Beharie, as the owner of the Rogue, being the person in possession of the drugs.
[44] The theory of the Crown is that the drugs were inside the Rogue and remained there between September 18 and October 1, 2019.
[45] On this Court’s assessment of the evidence, I respectfully disagree with the Crown’s submissions.
[46] On the totality of the evidence, including the absence of evidence, I have a reasonable doubt on the essential element of possession. I think that there is another plausible theory, another reasonable possibility, that has not been negated by the Crown. Put another way, I think that the circumstantial evidence is reasonably capable of supporting an inference other than that Beharie is guilty.
[47] More specifically, it is reasonably possible that another user of the Rogue, someone other than Beharie or Commissiong, placed the drugs inside the Rogue without the knowledge of Beharie and without Beharie having any measure of control over those drugs.
[48] This notion is not mere conjecture or speculation. To the contrary, it is grounded solidly in the evidence of Commissiong, which evidence was not undermined by any of the police evidence (including the Condo surveillance video footage), and which evidence I accept.
[49] I disagree with the Crown’s assertion that Commissiong was an incredible witness.
[50] I am not persuaded that she had a reason to give evidence more favourable to Beharie than to the Crown. There is no indication that Commissiong has anything to do with Beharie currently or even since the date of arrest more than four years ago. The evidence is that the child that they share together is supported solely by Commissiong, and there is no indication that the child has any relationship with Beharie.
[51] I am not persuaded that Commissiong’s evidence is tainted by her being fearful of Beharie. I found her to be rather emphatic and unshaken when she said in the witness box, “I’m not scared of Mr. Beharie”.
[52] There is no evidence that Commissiong has a criminal record or a prior history of being involved with the police.
[53] I did not perceive that Commissiong was being evasive in the witness box or careless in her evidence. And she was prepared to admit things that tended to support the Crown’s argument that she may have been afraid of Beharie, such as the fact that she had been assaulted in the past by Beharie.
[54] My understanding from the evidence is that Commissiong testified at Beharie’s trial on that assault charge, and she gave a statement to the police about that assault that occurred in the Niagara area, and Beharie was found guilty of the offence. At our trial, the Crown suggested that Commissiong may not have been completely truthful when she testified at that trial, and Commissiong was rather vague about that when she was questioned by Ms. Burdo.
[55] Nevertheless, that was a long time ago, and this Court has very little information to conclude that Commissiong did not tell the truth at that trial, never mind to conclude further that her untruthfulness then means that she is not telling the truth now. I do not know what she said at that trial; I do not know how the findings of fact made in that earlier case compare to what she said happened; I do not know whether Commissiong was found by the trier of fact in that case to have been a credible witness or not; I do not have any transcripts or reasons for judgment or anything from that assault trial.
[56] The sole issue that gives this Court some concern about the veracity of Commissiong’s evidence is that her testimony at trial was not entirely consistent with her earlier statutory declaration (Exhibit A).
[57] First, at paragraph 7 of that statement, she said that “I do not believe that I ever drove it [the Rogue] but it is possible that I may have at some point in time”. That is certainly different than her trial testimony, where she stated that she did remember having driven the Rogue, and more than once. Further, also at paragraph 7 of that statement, she said that “I had no knowledge or control over the vehicle…”, and again that is different than her trial testimony, where she stated that she permitted others to access the keys to the Rogue and to use the Rogue.
[58] On the first point, I accept Commissiong’s explanation that the difference in her evidence arose only in cross-examination by Ms. Singh, and it was a consequence of her having been asked more specific questions about her use of the Rogue. That is true in that, for example, in cross-examination by Ms. Singh, Commissiong was shown surveillance video footage of her, on September 17, 2019, walking in the Condo garage with the keys in her hand and then the Rogue reversing out of the parking spot and exiting the garage.
[59] On the second point, again, I accept Commissiong’s explanation that her comment in the statutory declaration, regarding her not having control over the vehicle, was in connection with the date of the arrest on October 1, 2019 and not generally. That makes sense to me when I review the statutory declaration in its entirety (nine paragraphs in total). The vast majority of the statement refers to October 1, 2019, either explicitly (paragraphs 1, 2, and 5) or implicitly (paragraph 3 – what was found by the police at the Condo unit, after the arrest, and paragraph 6 – what was found by the police in the Rogue, after the arrest). In fact, Commissiong’s comment, “I had no knowledge or control over the vehicle”, is incomplete; the full sentence at paragraph 7 of the statutory declaration is, “I had no knowledge or control over the vehicle, the ammunition, or the drugs or drug paraphernalia that were allegedly located in this vehicle” (emphasis added). In my view, the full context of the statutory declaration, and paragraph 7 therein specifically, supports Commissiong’s explanation for the apparent inconsistency in her evidence.
[60] On the basis of Commissiong’s evidence, I find as a fact that several others, including her brother and the mother of his child, used the Rogue, and her brother and the mother of his child used the Rogue on September 17, 2019.
[61] Further, based on Commissiong’s evidence, I find as facts that the Condo was frequented by many individuals; it was like a “communal unit” for partiers; and the keys to the Rogue were simply there for virtually anyone to take and use.
[62] Given those findings, I conclude that it is reasonably possible that another user of the Rogue, someone other than Beharie or Commissiong, placed the drugs inside the Rogue without the knowledge of Beharie and without Beharie having any measure of control over those drugs. That could reasonably have been done before, on, or after September 18, 2019, the last date that there is Condo surveillance video footage of the Rogue.
[63] It must be remembered that almost all of the drugs were concealed inside the Rogue, and thus, that Beharie is seen on the Condo surveillance video footage on September 18, 2019, allegedly proximate to the Rogue’s parking spot inside the garage, does not necessarily mean that he would have known about the drugs even if he was inside the Rogue on that date.
[64] It must also be remembered that the Condo surveillance video footage reviewed by the police, mainly Chalmers, has serious limitations to it. First, it excludes anything before the start of September 2019. Second, it does not capture the Rogue’s alleged parking spot inside the garage. Third, it does not capture the entrance/exit doors to that level of the parking garage, whether by motor vehicle or on foot. Fourth, there is uncontradicted evidence that someone on foot could access the Rogue’s alleged parking spot without being seen on the camera in question, and there is even evidence (although I think this point is a real stretch) that the Rogue could be moved out of the garage, from its alleged parking spot, without being captured by the camera in question. Fifth and finally, the police elected to seize only video clips that showed Beharie and/or Commissiong. I understand that decision, and I do not criticize the police for having made it, however, there is a consequence to that. We are left with Chalmers’ testimony that she reviewed Condo surveillance video footage for an entire one-month period, 24 hours per day, and she did that in about 9.5 hours of time. Obviously, simple arithmetic means that she had to fast forward the video, taken from just one camera inside the parking garage, at breathtaking speed, trying the best that she could to pay attention to anyone walking near where the Rogue was believed to be parked. It was a daunting task, and Chalmers was candid enough to acknowledge at trial the chance of some human error in the process.
[65] In summary, this is a circumstantial evidence case. I would not call it weak, mainly in light of the ownership of the Rogue and the documents and the items found inside it that connect Beharie to the motor vehicle. I also would not call it strong, certainly not strong enough to say that the only reasonable inference to be drawn is the one advocated for by the Crown.
[66] On the after-the-fact conduct evidence relied upon by the Crown, I place little weight on what happened at the Novotel Hotel. On its face, it appears suspicious than an innocent person would try to escape his arrest and resist his arrest, but that is purely an assumption on my part of how an innocent person would be expected to react in that situation. Assumptions can be dangerous. R. v. Arcangioli, 1994 CanLII 107 S.C.C., [1994] 1 S.C.R. 129, at paragraph 39.
[67] Beharie is a Black man. He was being confronted, unexpectedly, by police officers in the lobby of a hotel, who were approaching him. Perhaps he was afraid of them. Perhaps he did not trust them. Personally, I see no reason for Beharie to have those feelings, but I am not Beharie, and I have not lived his life. I think that what happened at the hotel is of limited utility in the overall assessment of the case.
[68] As for the Condo surveillance video footage showing Beharie in the parking garage carrying the white plastic bag, similarly, I think that evidence is of limited probative value. It is a piece of the circumstantial evidence puzzle, I agree, but the bag is generic and could not reliably be traced to what was found inside the Rogue more than two weeks later.
[69] At the end of the day, I might be prepared to go so far as to say that these drugs found inside the Rogue were likely Beharie’s. But acquittals must, nonetheless, result.
XI. Conclusion
[70] The Crown has not proven possession beyond a reasonable doubt.
[71] Beharie is, therefore, found not guilty on both counts.
Conlan J.
Released: January 19, 2024