COURT FILE NO.: CR-23-0244-00 DATE: 2024-07-15

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Misbah Haque, for the Crown

- and -

Brian Kelneric Justice Danto-Clancy, for the Accused

HEARD: May 13 & 14, 2024, at Thunder Bay, Ontario

Regional Senior Justice W. D. Newton

Criminal Judgment

Overview

[1] Brian Kelneric was arrested on December 22, 2021 and charged with five offences:

a. being unlawfully in a dwelling with intent to commit an indictable offence; b. possessing cocaine for the purpose of trafficking; c. possessing oxycodone for the purpose of trafficking; d. possessing cannabis for the purpose of trafficking; and e. possessing money less than $5,000 knowing that the property was obtained by crime.

[2] Upon arraignment, the possessing cannabis for the purpose of trafficking charge was withdrawn at the request of the Crown.

[3] By reasons dated April 25, 2024, [1] I dismissed Mr. Kelneric’s application to have the following evidence excluded from his trial:

a. cars keys and $960 cash found in Mr. Kelneric’s pockets; b. 14.44 grams of cocaine, 15.95 grams of crack cocaine, five oxycocet pills, and 3 cell phones located in a fanny pack found within arm’s length of where Mr. Kelneric was hiding in an apartment; c. scale, dime bags and two cellphones found in a bedroom in the apartment; and d. 260 grams of cocaine and $8,510 cash found within a vehicle rented by Mr. Kelneric.

[4] The trial proceeded on the issue of whether the Crown had established, beyond a reasonable doubt, that Mr. Kelneric was in possession of those items listed above.

The Facts

[5] Evidence in this trial consisted of the testimony of six police officers, body camera footage of four of those officers, photographs of the search of the vehicle, and certificates of analysis with respect to the substances listed above.

[6] It was conceded that the quantity of drugs establishes possession for the purpose of trafficking.

[7] Further, it was admitted that the vehicle searched was a rental vehicle owned by 1158155 Canada Ltd. located at 4600 Kingston Road, Scarborough. The vehicle was a blue Hyundai Elantra bearing licence plate CRCJ037.

[8] Mr. Kelneric did not testify or lead any evidence.

[9] Officers attended an apartment on 300 Syndicate Avenue North in response to a complaint from the tenant that there were persons unlawfully in the apartment trafficking drugs. The tenant told PC Creary that there was one black male and three white males in her apartment selling drugs. She told PC Kreuger the same and added that about 30 people were attending her apartment to buy drugs and that there was $70,000 present in cash.

[10] When the police arrived at the apartment and sought entry, the door was barricaded. It was about two minutes after the police announced their presence when they gained entry into the apartment. The body camera footage confirms that this was a very loud “knock and announce” by PC Creary who clearly identified himself as a police officer.

[11] Once the door was opened three people came down the stairs and exited the apartment: Ron Chabot, Nicky Jourdain, and the tenant. Found inside the apartment in the living room area and collapsed on a bed was the tenant’s son, Justice Andy. He appeared intoxicated and was believed to have potentially overdosed, so Mr. Andy was eventually taken to the hospital due to his declining medical status.

[12] About four minutes after entry, officers found Mr. Kelneric hidden in a closet or pantry, underneath a shelf or table, and behind several large plastic tubs. On first inspection of that area, Mr. Kelneric could not be seen. When discovered, Mr. Kelneric claimed that he lived in the apartment but refused to identify himself to the officers.

[13] Mr. Kelneric was arrested for being unlawfully in a dwelling and was searched incident to his arrest. PC Falkowski found a key fob in the right pocket of Mr. Kelneric's sweatpants. The key fob had a blue tag attached to it labeled "CRCJ 037 Blue elentra”. A large amount of loose cash ($960) was also found in Mr. Kelneric’s pockets.

[14] Directly beneath where Mr. Kelneric was hiding, a blue bag containing a powdery substance was found and was determined to be a cutting agent, phenacetin.

[15] Within a plastic tub adjacent to where Mr. Kelneric was hiding was a fanny pack containing three cell phones and approximately 30 grams of what was analyzed to be cocaine.

[16] The bedroom in the apartment, not where Mr. Andy was found, contained a table with a digital scale, dime bags, and two cellphones upon it.

[17] PC Kreuger took the key fob found in Mr. Kelneric’s possession and activated it and saw the lights flash on a vehicle parked about six houses away. He approached that vehicle and noticed a hand impression and marks in the snow on the trunk of that vehicle suggesting that the trunk had been opened.

[18] The vehicle was seized, and a warrant was obtained to search the vehicle.

[19] When the vehicle was searched, there were four provincial offence notices dated December 18, 2021 located inside the vehicle, charging Mr. Brian Kelneric of 411-3434 Eglinton Avenue East, Scarborough, with failing to have an insurance card, driving a vehicle without a permit, failing to have his driving licence, and failure to stop at a stop sign. All four notices bearing Mr. Kelneric’s name also note the corresponding licence plate of the vehicle being driven at the time of those offences, being CRCJ037.

[20] Also found in the trunk was a plastic bag and a small satchel. Inside the plastic bag was a powdery substance determined to be 260 grams of cocaine. Inside the satchel was cash totaling $8,510.

[21] In his cross-examination of the officers, counsel for Mr. Kelneric elicited the following answers:

• no surveillance was conducted upon the apartment to determine whether drug trafficking was occurring;
• the scales and the other items found were not fingerprinted;
• the blue bag containing the cutting agent and the fanny pack contained nothing pointing to ownership;
• nothing specifically belonging to Mr. Kelneric was found in the apartment;
• Mr. Chabot was a known drug user;
• no attempt was made to “unlock” any of the cell phones;
• Ms. Jourdain’s jacket was found in the bedroom where the scales and other drug paraphernalia were located;
• Mr. Chabot, Ms. Jourdain, and Mr. Andy were all arrestable for possession for the purpose of trafficking;
• Mr. Andy had $800 in cash located in his sock; and
• none of the bags containing drugs were tested for DNA as the Centre of Forensic Sciences does not conduct DNA testing for trafficking cases.

Positions of the Parties

[22] At the commencement of submissions, the Crown requested a stay of the charge on Count 1 (unlawfully in a dwelling), requested that Count 3 be reduced to simple possession of oxycodone (CSDA 4(1)) rather than possession for the purpose (CDSA 5(3)(a)) and amended Count 5 (proceeds of crime) to exceeding $5,000 to conform to the evidence.

[23] The Crown acknowledges that this is a circumstantial case but submits that the only reasonable inference is that Mr. Kelneric knew of and had control of the drugs and cash found in the apartment and the car.

[24] The Crown notes the following facts:

• Mr. Kelneric hid after the police clearly announced that they were at the door;
• the presence of the scales and other drug paraphernalia in the bedroom was clear and obvious evidence of drug trafficking occurring in the apartment;
• the cutting agent was found in the exact area in which Mr. Kelneric was hiding;
• the fanny pack containing the drugs and cell phones were found in a plastic tub adjacent to where Mr. Kelneric was hiding;
• Mr. Kelneric had $960 in cash and the car keys to the rental car in his pockets when arrested;
• Mr. Kelneric was operating and in possession of the rental car since at least December 18, the day on which he was charged with the HTA and CAIA offences; and
• a search of the vehicle disclosed the traffic tickets, $8,510 cash, and 260 g of cocaine.

[25] Counsel for Mr. Kelneric submits that the circumstantial evidence does not reach the level for the Crown to meet its onus of proving knowledge and possession beyond a reasonable doubt. Counsel points to the dearth of evidence on the key issues describing this as a “sloppy” or “incomplete investigation with no forensic evidence and no evidence called from the other four occupants of the apartment. Counsel submits that Mr. Kelneric’s guilt is not the only inference that arises from the evidence.

[26] Relying upon R. v. Lincoln, [2] counsel notes that operating a vehicle does not equate to knowledge and control of its contents for purposes of determining possession. Counsel notes the lack of information about any other driver of this rental vehicle.

[27] Counsel also emphasizes the fact that there is no evidence of knowledge or control of the fanny pack found near where Mr. Kelneric was hiding. In the circumstances of this case, counsel submits that there are many other inferences that arise other than the inference that Mr. Kelneric placed that fanny pack in the plastic tub. Relying upon R. v. Escoffrey, [3] counsel submits that Mr. Kelneric’s presence in that area does not equate to control, especially since the fanny pack was hidden.

The Law

[28] The basic tenet of criminal law is that everyone charged with an offence is presumed to be innocent, unless, and until, the Crown proves the accused’s guilt beyond a reasonable doubt.

[29] With respect to cases based on circumstantial evidence, the Supreme Court of Canada in R. v. Villaroman, [4] stated the following at paras. 35-37:

35 If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.

36 [A] reasonable doubt "is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence". A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense. [Citations omitted.]

37 When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt…. "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. [Citations omitted.]

[30] A trial judge’s obligation is to consider the circumstantial evidence as a whole and its cumulative effect, cognizant of the inter-related legal principles:

• that it is the cumulative effect of circumstantial evidence that must be considered against the reasonable doubt standard;
• that circumstantial evidence is not to be assessed on a piecemeal basis; and
• that the burden of proof beyond a reasonable doubt does not apply to individual pieces of evidence. [5]

[31] In discussing what is needed to establish constructive possession, the Supreme Court of Canada in R. v. Morelli, [6] stated the following:

17 Constructive possession is established where the accused did not have physical custody of the object in question, but did have it "in the actual possession or custody of another person" or "in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person." (Criminal Code, s. 4(3)(a)). Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his "use or benefit" or that of another person. [Emphasis in original.]

[32] Occupancy of a place or a vehicle on its own, or operation of a vehicle alone, does not create a presumption of possession. However, such occupancy or operation, together with other evidence, may enable a trial judge to infer knowledge and control in appropriate cases. [7]

Analysis

[33] Do the constellation of factors in this case, taken together, support the conclusion that the only rational inference than can be drawn from the circumstantial evidence is that Mr. Kelneric had knowledge and control of the drugs and cash found in the apartment and in the rental vehicle.

Constellation of Factors

[34] I disregard the hearsay evidence of the tenant about drug trafficking in her apartment.

[35] I accept that no identification belonging to Mr. Kelneric was found in the fanny pack and that no other belongings of Mr. Kelneric were found in the apartment. I acknowledge that there was no forensic evidence linking Mr. Kelneric to the cash or drugs or drug paraphernalia. I acknowledge that occupants of the apartment were known as “drug users” and that Mr. Andy had $800 in cash in his sock.

[36] In conducting my analysis, I find the following facts:

• The door was barricaded. The door was opened two minutes after a very loud “knock and announce” that clearly identified that police officers were at the door.
• Mr. Kelneric was the only person to hide from police. All other occupants exited the apartment in response to commands from the police, except for Mr. Andy who was incapacitated.
• Drug trafficking was clearly occurring in this small apartment based on the scale and other drug paraphernalia found on the table in the bedroom, in plain view.
• Directly beneath where Mr. Kelneric was hiding was the blue bag containing the cutting agent, phenacetin.
• Within reach of where Mr. Kelneric was hiding was the plastic tub in which the fanny pack containing the drugs and cell phones had been placed.
• $960 cash and the key fob to the rental vehicle with a blue tag labeled “CRCJ 037 Blue elentra" were found in Mr. Kelneric’s pockets.
• within the rental vehicle were four provincial offence notices dated December 18, 2021 charging Mr. Kelneric as operator of the vehicle and which each bear the corresponding licence plate CRCJ 037.

[37] The only rational inference that can be drawn from this evidence is that drug trafficking was occurring in this apartment. The only rational inference that can be drawn from the fact that Mr. Kelneric hid from police was that he knew that drug trafficking was taking place and that he was involved in that drug trafficking. No other inference that is not speculation arises on the evidence.

[38] The only rational inference that arises from the hiding of the fanny pack containing the drugs adjacent to where Mr. Kelneric was hiding is that it was Mr. Kelneric who hid those drugs.

[39] The only rational inference that arises from the key fob found in Mr. Kelneric’s pocket which corresponded to the rental vehicle, and from the four provincial offence notices from December 18, 2021 bearing Mr. Kelneric’s name and the licence plate for the same rental vehicle, is that Mr. Kelneric was the operator of that rental vehicle. Having concluded that Mr. Kelneric had knowledge of the drug trafficking in the apartment, the only rational inference that can be drawn from this circumstantial evidence is that Mr. Kelneric also had knowledge and control of the drugs and cash found within the rental vehicle. No other “reasonable possibility” that is not speculation arises on the facts of this case.

Conclusion

[40] Accordingly, the charges against Mr. Kelneric are disposed of as follows:

• Count #1 - unlawfully in a dwelling - stayed at the request of the Crown.
• Count #2 - possession of cocaine for the purpose of trafficking – guilty.
• Count #3 - possession of oxycodone - guilty.
• Count #4 - possession of cannabis for the purpose of trafficking - withdrawn at the request of the Crown.
• Count #5, possession of proceeds of crime exceeding $5,000 - guilty.

“originally signed by”

The Hon. Regional Senior Justice W. D. Newton

Released: July 15, 2024

COURT FILE NO.: CR-23-0244-00 DATE: 2024-07-15 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HIS MAJESTY THE KING Misbah Haque

• and – BRIAN KELNERIC Justice Danto-Clancy CRIMINAL JUDGMENT Newton R.S.J.

Released: July 15, 2024

[1] 2024 ONSC 2439.

[2] 2012 ONCA 542.

[3] (1996), , 28 O.R. (3d) 417 (Ont. C.A.).

[4] 2016 SCC 33 (“Villaroman”).

[5] R. v. Chu, 2023 ONCA 183, at para. 5.

[6] R. v. Morelli, 2010 SCC 8, [2010] 1 SCR 253, at para. 17.

[7] See R. v. Lights, 2020 ONCA 128, at para. 50; R. v. Lincoln, 2012 ONCA 542, at para. 3.