COURT FILE NO.: 8737/23
DATE: 2024-08-27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
SHANE ERDMAN
Defendant
David Didiodato, for the Provincial Crown
Joe Chapman, for the Federal Crown
James Coulter, for the Defendant
HEARD: June 24, 25 & 26, 2024.
varpio j.
reasons for judgment
OVERVIEW
[1] On July 15, 2020, the Sault Ste. Marie Police Service (“SSMPS”) executed a search warrant at 217 Wallace Terrace in Sault Ste. Marie. They located four people and a considerable amount of narcotics throughout the house. They arrested two individuals, Mr. David MacLary and the individual that I tried, Mr. Shane Erdman.[^1]
[2] There is no dispute that the SSMPS seized narcotics, weapons and ammunition when executing the search warrant. The question in this trial is whether the inferences to be drawn from the evidence are such that I am satisfied of Mr. Erdman’s guilt beyond a reasonable doubt.
[3] After considering all the evidence, I am satisfied of Mr. Erdman’s guilt beyond a reasonable doubt on some charges, but have a reasonable doubt with respect to other charges.
THE EVIDENCE
[4] As described above, the evidence in this matter was non-contentious.
[5] The residence located at 217 Wallace Terrace is owned by the accused, Mr. Shane Erdman. A Land Titles Act certificate was filed proving that Mr. Erdman has legal title to the home.
[6] On July 15, 2020, at 20:03 hours, the SSMPS executed a search warrant at the residence. Many of the officers on scene testified in this trial.
Cst. Luigi Runco
[7] Cst. Luigi Runco testified that he was the Scene of Crime Officer during the execution of the search warrant which means that he was responsible for taking photos of the scene, taking finger prints, etc. A photobook containing pictures taken by Cst. Runco was filed as an exhibit, the accuracy of which was not contested. The photos depicted a small, detached, two-storey home with a main floor, a basement, and an upstairs. The upstairs had two bedrooms and a bathroom. Upon examination of the photos of the upstairs bathroom, the shower contained several shampoo bottles and other hair products.
[8] Cst. Runco testified that the first part of the search involved police officers entering the residence to clear individuals out of the house. Once the house was clear, other officers then searched the residence.
[9] Cst. Runco testified that he waited outside while the Emergency Services Unit (“ESU”) cleared the residence. Mr. Maclary exited the building in handcuffs. Cst. Runco read Mr. Maclary his rights and handed Mr. Maclary off to another officer.
[10] Cst. Runco then entered the house. Cst. Runco located a variety of items in the house. He found a black phone in the kitchen. He also found a blue cooler with white handles that contained a bag of marijuana in the kitchen. Cst. Runco found a digital scale in the bathroom near the children’s play area on the main floor, as well as two cans of bear mace and 16 pills of oxycodone (40mgs.). A rental agreement for an automobile in Mr. Erdman’s name was located in the kitchen.[^2]
[11] In the stairway leading to the basement, Cst. Runco found ammunition for a .22-calibre rifle and a 12-guage shotgun shell in the exposed 2 X 4’s that made makeshift shelving units.
[12] Cst. Runco confirmed that four people were located inside the house.
Cst. Mark Kates
[13] Cst. Kates testified that he set up surveillance on Mr. Erdman’s residence at approximately 13:00 hours on July 16, 2020. He observed a burgundy Kia vehicle in the driveway. He observed Mr. Erdman drive the Kia to Avis and switch it for another rental vehicle at approximately 16:28 hours.
[14] Subsequent to the rental switch, Cst. Kates became aware that a search warrant was signed and he assisted in searching the residence. At 20:03 hours, Cst. Kates entered the residence and ESU pointed to Mr. Erdman who was lying face-down on the kitchen floor which is located on the main floor of the house. Cst. Kates arrested the accused. Cst. O’Dell searched the accused.
[15] There were four individuals in the house: the accused, Mr. MacLary, Mr. Fogg and Mr. Wagner. The search commenced once the four individuals were secured.
[16] Cst. Kates concentrated on searching the upper floor of the residence. There were two bedrooms on the floor. One bedroom contained children’s items including a child’s bed, “Paw Patrol” children’s items, and the like. The other bedroom contained adult items including an adult sized bed and dresser.
[17] Cst. Kates was shown a photo of the adult bedroom. It was a small room. It had a brass pole in the foreground, with a bed in the background. The bed’s headboard was at the far end of the photo. There was a dresser on the right-hand side of the photo that had two columns of drawers, with three rows of drawers in each column. The left-hand column had open-faced drawers, and the right-hand column had closed-face drawers. There was little room between the bed and the dresser. There was a night table on the opposite side of the bed. The room was messy with items strewn everywhere. There was a chair on the bed. There appeared to be women’s items on the bed including a purse, a make-up brush, and nail polish. The picture showed what appeared to be a skirt on the left-hand side of the room (the side with the night table).
[18] The dresser had a mirror attached to it. Cst. Kates observed a card stuck in the mirror that stated “Happy Father’s Day Shaney-Poo”. In the second drawer of that dresser, Cst. Kates located a red container with baggies. Cst. Kates located a large amount of crystal methamphetamine in the second drawer of the dresser. On top of that dresser, Cst. Kates located a small amount of cocaine in a glass jar as well as two cans of bear mace. He located a black digital scale on the same dresser and a pill bottle with a large quantity of 5 mg oxycodone pills. In cross-examination, Cst. Kates testified that he did not recall seeing women’s clothing and/or feminine hygiene products in the dresser. There were other narcotics and/or drug paraphernalia located on or in the dresser.
[19] Cst. Kates also located a white Clorox bottle under the bed that had a false bottom. Under the false bottom, Cst. Kates located fentanyl. Cst. Kates reviewed a photo that depicted the Clorox bottle partially exposed from under the bed. Part of the bottle was under the bed, part of the bottle was not. In cross-examination, Cst. Kates testified that he did not order that the Clorox bottle lid and/or the container be subjected to fingerprint analysis.
[20] Under the bed, Cst. Kates also located a .303 Lee-Enfield rifle.
[21] In the closet in the adult bedroom, Cst. Kates located a safe. Inside the safe, he located 81 pills of crystal methamphetamine and 7 pills of Lorazepam.
Det. Sgt. David Sguigna
[22] On July 16, 2020, D/S Sguigna was a Detective Sergeant with the Drug Enforcement Unit of the SSMPS. He was engaged in surveillance of Mr. Erdman’s residence and saw the accused switch rental vehicles at Avis.
[23] D/S Sguigna assisted in the search of the adult bedroom during the execution of the search warrant. He located a Milwaukee brand construction radio that had a storage compartment. Inside the storage compartment, D/S Sguigna located Canadian currency, in $5 and $10 denominations. He gave the money to Sgt. O’Dell who was the exhibits officer. D/S Sguigna searched the dresser and located 53 rounds of ammunition for a .25 calibre gun. He also found a bundle of Canadian currency folded over and held in an elastic band, on the floor behind the computer.
Det. Sgt. Sean O’Dell
[24] On July 16, 2020, D/S O’Dell participated in the search of the residence. He was also the exhibits officer, responsible for logging the exhibits and for storing same.
[25] At 20:03 hours, the SSMPS entered the residence and D/S O’Dell entered as well. He located the accused on the floor in the custody of SSMPS officers. Cst. Kates cuffed the accused and D/S O’Dell searched Mr. Erdman. D/S O’Dell located a plastic bag with 10.6 g of cocaine in Mr. Erdman’s front-left pocket, along with Canadian currency. D/S O’Dell escorted Mr. Erdman outside to D/S Sguigna.
Cst. Dan Turco
[26] Cst. Turco is the K9 officer with the SSMPS. He assisted in the search of the residence. His testimony was not relevant to my decision.
Cst. Samuel Krmpotich
[27] Cst. Krmpotich is a police officer with the SSMPS and on July 16, 2020 he was a member of ESU, assigned to enter the residence at 217 Wallace Terrace. At 20:03 hours, he arrived on scene and entered the house shortly thereafter. Cst. Krmpotich was assigned as the #5 entry person, which means that there are four officers who preceded Cst. Krmpotich into the residence once the door was breached.
[28] Cst. Krmpotich entered the house and went up the stairs. He identified the adult bedroom from the photos filed. He located two individuals sitting on the bed in the adult bedroom, Mr. MacLary and Mr. Fogg.
[29] Cst. Krmpotich testified that, when entering a residence to execute a search warrant, police typically announce that they are executing a search warrant when they enter. People are directed to get on the ground and to show their hands. A residence is secured quickly. In this case, Cst. Krmpotich estimated that from the moment police entered the house to the moment he entered the adult bedroom, approximately 20 seconds elapsed.
[30] In cross-examination, Cst. Krmpotich could not recall whether the individuals sitting on the bed had their legs facing the dresser. The officer also could not provide an exact location of where the individuals were sitting on the bed. Cst. Krmpotich agreed that entry to the residence would be loud as police yelled, “search warrant”. The officers made their way through the residence in their tactical boots and the like. There is typically a lot of yelling during such searches.
Chart of Items Seized
[31] In evidence, it was explained – and accepted - that room #6 was the adult bedroom and that the other enumerated rooms were found on the main floor.
| Person | Location | Description |
|---|---|---|
| O’Dell | In left pant pocket of Shane Erdman | $940 in Canadian Currency |
| O’Dell | In left pant pocket of Shane Erdman | Ziploc bag containing cocaine |
| Runco | On speaker in room #1 | Digital scale with residue on it |
| Kates | Room #6 – second dresser drawer on left | Crystal methamphetamine |
| Kates | Room #6 – second dresser drawer on left | Bag containing cocaine |
| Kates | Room #6 – second dresser drawer on left | Packaging |
| Kates | Room #6 | Two canisters of bear mace |
| Kates | On top of dresser in room #6 | Digital scale with residue on it |
| Kates | Room #6 behind dresser | Pill container containing 69 5mg oxycodone pills |
| Kates | Room #6 – under bed in Clorox can | 5 methamphetamine pills, 3 5mg oxycodone pills in Tylenol container |
| Kates | Room #6 – under bed in Clorox can | Crystal meth |
| Kates | Room #6 – under bed in Clorox container | Four bags containing fentanyl - 2/blue/2 red |
| Kates | Room #6 – under the bed | Lee-Enfield .303 Bolt action rifle |
| Kates | Room #6 – in safe in closet | 81 meth pills |
| Kates | Room #6 – in safe in closet | 7 lorazepam pills |
| Runco | Room #4 – on DVD stand | Two cans of bear mace |
| Runco | Room #4 – on ottoman | 16 40 mg oxycodone pills |
| Runco | On stairs to basement | 11 22 cal. Bullets, 1 12 ga. shotgun |
| Runco | On kitchen floor | Black Samsung cellphone (Erdman) |
| Runco | In cooler in kitchen | 236 g. marihuana |
| Sguigna | Room #6 – on floor in a box | 53 25 cal. Bullets |
| Sguigna | Room #6 – on top of speaker | $360 in Canadian currency |
| Sguigna | Room #6 – second shelf under TV | 25 cal. Colt automatic handgun |
| Sguigna | Room #6 – on floor behind TV shelf | $2090 in Canadian currency |
POSITION OF THE PARTIES
[32] The Crown submits that the drugs and the weapons in the residence belong to Mr. Erdman. The residence belongs to Mr. Erdman. He was located in the residence with drugs and cash on his person and there were drugs and drug paraphernalia throughout the house. Accordingly, Mr. Erdman used 217 Wallace Terrace to traffic narcotics and he had possession of the items seized.
[33] Mr. Erdman submits that I am unable to conclude beyond a reasonable doubt that Mr. Erdman was in possession of the narcotics and the weapons located in the house because: (a) there were other people located inside the house; and (b) it appears that Mr. Erdman was not the only person living in the adult bedroom. Accordingly, I cannot draw the inference that Mr. Erdman is guilty beyond a reasonable doubt of possession of the narcotics and the weapons.
ANALYSIS
Constructive Possession
[34] In R. v. Choudhury, 2021 ONCA 560, [2021] O.J. No. 4228, the Court of Appeal for Ontario synthesized the legal principles governing constructive possession at para 19 of its reasons:
The relevant legal principles on constructive possession are not in dispute:
Constructive possession is established when an accused does not have physical custody of an object but knowingly has it in the actual possession or custody of another person or has it in any place for their own or another's use or benefit: Criminal Code, s. 4(3)(a); R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 17; and R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 47.
Knowledge and control are essential elements of constructive possession, which is established when the Crown proves beyond a reasonable doubt that the accused: (i) has knowledge of the character of the object said to be possessed; (ii) knowingly puts or keeps the object in a particular place, whether or not the place belongs to or is occupied by the accused; and (iii) intends to have the object in the place for the use or benefit of the accused or another person: Morelli, at paras. 15, 17; Lights, at paras. 44, 47.
Tenancy or occupancy of a place where an object is found does not create a presumption of possession: Lights, at para. 50; R. v. Watson, 2011 ONCA 437, at para. 13; R. v. Lincoln, 2012 ONCA 542, at paras. 2-3; and R. v. Bertucci (2002), 2002 41779 (ON CA), 169 C.C.C. (3d) 453 (Ont. C.A.), at para. 18.
When the Crown relies largely or wholly on circumstantial evidence to establish constructive possession, a conviction can be sustained only if the accused's knowledge and control of the impugned objects is the only reasonable inference on the facts. The trier of fact must determine whether any other proposed way of looking at the case as a whole is reasonable enough to raise a doubt about the accused's guilt, when assessed logically and in light of human experience and common sense: see R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 55-56; Lights, at para. 39; and R. v. Stennett, 2021 ONCA 258, at paras. 60-61.
Application of the Principles to this Case
[35] This is not a case where a residence is searched, and the police locate a discrete quantity of narcotics in a specific place within the residence.
[36] Rather, on July 15, 2020, the residence located at 217 Wallace Terrace was full of drugs, drug paraphernalia, weapons and ammunition. From my review of the evidence, it would appear that nearly every room in the residence contained some narcotic, tool used in the drug trafficking trade, weapon or ammunition save and except for the child’s bedroom and the upstairs bathroom. To suggest that any person living in that house would not be aware of the narcotics in the residence is an affront to common sense. Any marginally intelligent person residing in that house would have been live to the fact that the residence was being used as a hub to engage in the narcotics trade. The prevalence of pill bottles, scales, white powder and other such evidence (much of which was in plain view) means that the only inference to be drawn from the evidence is that the residents of 217 Wallace Terrace knew that the house was being used as a virtual narcotic convenience store.
[37] Any other conclusion is fanciful.
[38] Given this conclusion, I turn to the evidence linking Mr. Erdman to the residence. Mr. Erdman owned the residence. He was seen entering and exiting the residence in order to change rental cars. He was located inside the residence when the search warrant was executed. He had a quantity of cocaine and $960 on his person he was arrested. Given the foregoing, to suggest that I ought to have a reasonable doubt that Mr. Erdman knew that his residence was full of narcotics and weapons is unreasonable. In fact, the cocaine and the currency found on Mr. Erdman by themselves prove beyond a reasonable doubt that Mr. Erdman was involved in the drug subculture at the same time that his home was being used as a drug emporium. In other words, Mr. Erdman clearly allowed his home to be used as a base for drug trafficking. No other conclusion is possible.
[39] That finding is not, however, enough to convict Mr. Erdman of possession of each individual item within the home.
[40] With respect to the items found outside the adult bedroom, it is clear that the drugs and other items seized were accessible to at least three other people in the house – Mr. Maclary, Mr. Wagner and Mr. Fogg. Accordingly, and given the knowledge that each one of these individuals undoubtedly had regarding the existence of the narcotics in the house, it is a reasonable inference that any one of these individuals could have possessed the narcotics located outside the adult bedroom without Mr. Erdman’s knowledge. For example, it is a reasonable inference that one of these three individuals easily could have put the blue cooler containing marijuana on the ground a minute or two prior to police entry and then exited the kitchen. While Mr. Erdman knew that the house contained narcotics, he might not have had knowledge of the blue cooler in the kitchen (or the other items located outside the adult bedroom). Accordingly, I have a reasonable doubt that Mr. Erdman possessed the individual items located throughout the house (outside the adult bedroom) because any one of the individuals in the house could have possessed an individual item without Mr. Erdman’s knowledge.
[41] As for the adult bedroom, I find beyond a reasonable doubt that the bedroom was Mr. Erdman’s bedroom. First, the house belongs to Mr. Erdman. Second, there is a child’s bedroom upstairs. Third, the adult bedroom is next to the child’s bedroom and it has a Father’s Day card personalized to “Shaney-poo” in the mirror. Common sense dictates that parents with young children will often have their bedrooms close to a child’s room so as to ensure that any accidents that occur when a child is sleeping can be heard by a parent. Thus, the location of the bedrooms relative to one another, the personalized card and Mr. Erdman’s ownership of the home are such that I am satisfied beyond a reasonable doubt that the adult bedroom was that of Mr. Erdman.
[42] With that being said, it is also apparent that a female may have also occupied the bedroom. Items typically associated with women were found in the bedroom including what appeared to be a skirt and nail polish.
[43] I also note that two male individuals were found sitting on the bed when police entered the room.
[44] Thus, the question that I must resolve, is whether I am satisfied beyond a reasonable doubt that Mr. Erdman had knowledge of, and control over, the narcotics, weapons, cash and ammunition seized from his bedroom. Counsel for Mr. Erdman suggested that either of the individuals located on the bed, or the possible female occupant, may have had possession of all these items.
[45] I agree to an extent.
[46] With regard to the items not located on or under the bed, I am satisfied beyond a reasonable doubt that Mr. Erdman had possession of same. The following facts make clear that Mr. Erdman had knowledge and control of these items, and possessed them for the purpose of trafficking.
[47] First, the house was full of narcotics and was being used as a trafficking depot.
[48] Second, the bedroom belonged to Mr. Erdman, and possibly a female occupant.
[49] Third, the impugned items were found all over the messy bedroom: in the dresser, in a safe located in a closet, behind a computer, etc. The narcotics, paraphernalia and ammunition strewn throughout the room were not the kinds of items that Mr. MacLary and Mr. Fogg would have had time to hide when they heard the police enter the residence. Nor were the items found in locations where Mr. Maclary or Mr. Fogg may have left them upon visiting the room prior to police presence. Rather, the location and quantity of the items are such that an individual living in the bedroom must have had knowledge and control over the items and therefore possession of same.
[50] Lastly, while the female occupant may have known about the narcotics and had some level of control over same, it was Mr. Erdman who was located in the residence (in possession of a reasonable amount of cocaine and a not insignificant amount of Canadian currency) at the time the search warrant was executed. This fact proves that Mr. Erdman was involved in the drug trade and the only reasonable inference to be drawn from this fact is that he had possession of and control over the narcotics and paraphernalia found strewn throughout his bedroom, although it is possible that he may have had joint possession with the female occupant. Put another way, it is inconceivable that Mr. Erdman would be in physical possession of cocaine and cash on his person while located in a drug den that he owned, but that he did not have possession of the narcotics and weapons found in his bedroom.
[51] This combination of evidence proves beyond a reasonable doubt that Mr. Erdman knew of the items in his bedroom (excluding those on or under his bed) and had control over same. He was in possession of these items for the purpose of trafficking[^3].
[52] As for the narcotics located on or under the bed, I have a reasonable doubt that Mr. Erdman was in control of the narcotics in question (fentanyl and crystal methamphetamine). Cst. Krmpotich testified that he found two individuals sitting on the bed when he entered the room. I am uncertain as to where the drugs were found relative to the two individuals. It is possible that the crystal methamphetamine and the fentanyl were found in immediate proximity to where the two individuals were sitting. Indeed, the bedroom appears to be relatively small. It is therefore possible that these individuals were in possession of the crystal methamphetamine found on the bed and the fentanyl and crystal methamphetamine found partially under the bed and that they dropped same when they heard the police enter the residence. I therefore have a reasonable doubt that Mr. Erdman had possession of these items.
[53] Conversely, I am satisfied beyond a reasonable doubt that Mr. Erdman had possession of the .303 Lee-Enfield located under the bed. Much has been written by judges about how guns and drugs often go “hand in hand” and I need not say more. The only reasonable inference is that those in possession of the narcotics in the adult bedroom also had possession of the rifle to act as protection. It must be noted that the rifle is a long gun and that it was found under the bed in Mr. Erdman’s bedroom. Unlike a handgun, this is not the kind of weapon that an individual would walk around a house while in possession thereof. Rather, it is a cumbersome weapon located in a small room. It is therefore an implausible inference to find that anyone but Mr. Erdman was in possession of the rifle because Mr. MacLary and Mr. Fogg would not have been able to throw the rifle under the bed when they heard the police enter the house.
[54] I also note that the room was messy with a lot of items in and around parts of the bed. The general mess and the size of the room would have made it difficult to quickly discard the rifle upon police arrival. Accordingly, the only reasonable inference is that the occupant of the bedroom, Mr. Erdman[^4], had knowledge and control over the rifle since the likelihood of someone other than Mr. Erdman placing the weapon under the bed is virtually non-existent.
CONCLUSION
[55] For the foregoing reasons, I find Mr. Erdman guilty of counts 1, 2, 5, 6, 9, 15, 16, 18 and 19, and not guilty of the remaining counts.
Varpio J.
Released: August 27, 2024
COURT FILE NO.: 8737/23
DATE: 2024-08-27
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
SHANE ERDMAN
REASONS FOR JUDGMENT
Varpio J.
Released: August 27, 2024
[^1]: Mr. Maclary failed to appear for this trial. [^2]: I have highlighted some of the relevant items seized in these reasons, but the chart located at para. 31 provides a fulsome and accurate accounting of what SSMPS seized, the location where the items were located, and the officer that seized same. [^3]: It was effectively conceded by counsel that the quantum of narcotics found was such that possession for the purpose of trafficking was made out. [^4]: It is conceded that Mr. Erdman had no license to possess the firearm.