His Majesty the King v. Kelvon Clarke, 2024 ONSC 5721

Court File No.: CR-22-10000301 Date: 2024-10-15 Ontario Superior Court of Justice

Between: His Majesty the King – and – Kelvon Clarke

Counsel: Anna Martin and Brandt Chu, for the Crown Craig Bottomley and Janelle Belton, for Kelvon Clarke

Heard: July 3 and 4, 2024

Before: Pinto J.

Reasons for Judgment

[1] On June 2, 2021, police executed a search warrant at a residence on the 17th floor of an apartment building in Toronto. The search warrant was in relation to personal items stolen in a break and enter (B&E) from a different residence a few days earlier. When police entered the apartment on June 2, they found six individuals present: two suspects believed to have been responsible for the B&E, and four found-ins, one of whom was the defendant, Kelvon Clarke. The police found controlled substances, including approximately 1.3 kgs of fentanyl, in the kitchen and balcony area of the apartment, along with three digital scales. The police also found $1,150 in cash on Mr. Clarke.

[2] Mr. Clarke is charged with possession of fentanyl for the purpose of trafficking, and possession of proceeds of crime not exceeding $5,000.

[3] In a pre-trial ruling, I dismissed Mr. Clarke’s Charter application seeking to have the charges against him stayed, or the evidence against him excluded: R. v. Clarke, 2024 ONSC 2451.

[4] At trial, the parties entered into a comprehensive Agreed Statement of Fact (ASF). The parties agreed that the viva voce evidence from the police officers at the pre-trial motions was admissible at trial. Certain exhibits from the pre-trial motions were also made exhibits at the trial.

[5] For the reasons that follow, I am convinced beyond a reasonable doubt that the only reasonable inference based on the whole of the evidence is that Mr. Clarke is guilty of the two offences as charged.

Factual Background

[6] Police were initially involved in an investigation into a B&E that occurred on May 29, 2021 on Minerva Avenue in Toronto. Through video evidence, police identified two suspects, Cameron Trevena and Leah McCarthy, who were believed to have forced their way into an apartment. Police determined that Ms. McCarthy was a tenant in Unit 1712 at 10 Gordonridge Place, a high-rise apartment building in Toronto. Police obtained a search warrant for the apartment and conducted surveillance on the building.

[7] At 5:26 p.m. on June 2, 2021, police received information that Ms. McCarthy was returning to her apartment in the company of another female. At 5:45 p.m., police received information that three males were observed on the balcony of the target apartment. At 6:00 p.m., 13 officers met in the underground garage of the apartment building to go over a tactical plan to execute the search warrant. The officers decided to dispense with knocking on the door of the apartment because that would present an escape risk for the occupants, and a greater opportunity for the occupants to destroy evidence.

[8] At 6:27 p.m., police entered Unit 1712 using a key that had been provided by building management. Several of the officers yelled, “police, search warrant” and entered the apartment.

[9] The layout of the one-bedroom apartment was made an exhibit at trial. The entrance door opens into a hallway, the end of which is the entrance to a bedroom. Before the bedroom is a bathroom to the left off the hallway. Off the hallway to the right is the common area of the apartment. The right side of the common area is the kitchen and the left side is the living room, the far side of which has an entry to the balcony. Between the kitchen and the living room areas is a loveseat that faces the balcony. Perpendicular to the loveseat and to its left is a three-seater couch.

[10] An officer recognized Ms. McCarthy kneeling on a bed in the bedroom and handcuffed her. At the time Ms. McCarthy was 33 years old. Nothing was located on her when she was searched incident to arrest.

[11] Another officer found Cameron Trevena, 33 at the time, in the open area between the loveseat and the kitchen, nearer to the kitchen. Mr. Trevena was searched incident to arrest and found with a set of keys and a $20 bill in his right shorts pocket. In his left shorts pocket, he was found with a quantity of drugs which were later determined to be 4.18 g of a fentanyl mixture, and 19.26 g of cocaine. [1] At the police station, it was determined that the keys belonged to Ms. McCarthy. In June of 2023, Mr. Trevena pleaded guilty to Possession of Fentanyl for the Purpose of Trafficking. He admitted that the cocaine and fentanyl found on his person were possessed for the purpose of trafficking.

[12] DC Shortt was the first officer to encounter Mr. Clarke. DC Shortt testified that after he entered the apartment, he saw a male (i.e., Mr. Clarke) in the common area running towards the balcony. DC Shortt and Mr. Clarke were in the area of the loveseat. Police determined that Mr. Clarke was not cooperating with their instructions and that he was a flight risk. They tackled him down to the loveseat and handcuffed him. Mr. Clarke was led out into the hallway and subsequently paraded at a police station.

[13] Mr. Clarke, who was 21 at the time, was found wearing a grey Wilson sweater, grey sweatpants, and black and white running shoes. He was found with a pink iPhone in a black case, $1,150 CAD consisting of 5 x $100 bills, 32 x $20 bills, and 2 x $5 bills, and a small container of hand sanitizer.

[14] Three other individuals were also found in the apartment:

a) Krystal Howe – she was found seated on a black couch in the corner and was detained. Nothing of note was found on Ms. Howe’s person when she was arrested.

b) Jammie Keim – he was also found seated on the couch in the living room and was detained. He was cooperative with police, but moving slowly and appeared to be confused, unfocused and tired or possibly under the influence of something.

c) Cole Williams – he was found just at the beginning of the kitchen, right beside the fridge. Nothing of note was found on his person.

[15] From 6:36 p.m. to 6:40 p.m., DC MacDonald took entry photographs depicting the state of the apartment after it was cleared of the found-ins and before the search commenced. The entry photos were made exhibits at the pre-trial motions and at trial.

[16] DC MacDonald also photographed items of interest as they were located and/or seized. The search photos were made exhibits at trial.

[17] Between 7:43 p.m. and 7:45 p.m., once the search had concluded, DC MacDonald took exit photographs, depicting the state of the apartment post-search. The exit photos were made exhibits at trial.

[18] Back at the station, between 10:26 p.m. and 1:21 a.m., DC MacDonald took photographs of the seized property and exhibits. These exhibit photographs were also made exhibits at trial.

[19] Several items of note were found during the search warrant:

a) In a dresser in a bedroom closet, a quantity of cash totaling $215 was found. In the same drawer, what appeared to be three slugs of cannabis/tobacco mixture wrapped in cellophane were found.

b) In the balcony of the apartment, a black duffle bag containing a mixture suspected to be fentanyl was found. The fentanyl was packaged in a blue surgical glove with three individual packages wrapped in Saran wrap. Based on a Health Canada analysis, two packages were determined to contain 10.64 g of a mixture of cocaine, fentanyl and other controlled substances. The third package contained 6.65 g of the same mixture.

c) On the coffee table in the living room, two black digital scales were found.

d) Five cell phones were found in various locations throughout the apartment (one of which was Mr. Clarke’s cell phone).

e) In the kitchen:

i. The door of the stove was open and in the hinge area of the door, a piece of clear plastic containing a granular greenish/purple substance was found. DC Charles had noticed the package at the commencement of his search, but thought it was a cleaning agent at first. Later, he concluded it was fentanyl and seized it once other fentanyl was found on the balcony. A Health Canada analysis determined this to be 12.98 g of a fentanyl mixture.

ii. An open purple reusable bag was found on the floor of the kitchen underneath the open stove door where the clear plastic containing suspected fentanyl was found. The purple bag contained: a black sweatshirt; a Diablo digital scale wrapped in white plastic; an aluminum pot and a knife with residue on them; an inside out white polo t-shirt; various food and water colouring agents; a green Sobey’s bag; a spoon and a green knife with pink/whitish suspected fentanyl residue; and multiple packages of substances that appeared to be fentanyl in various colours and consistencies. A Health Canada analysis determined the controlled substances to be approximately 1.26 kgs of fentanyl mixed with other substances, and 787.74 g of caffeine.

iii. A red Oster brand blender in one of the kitchen cupboards. It contained white residue and a metal spoon with residue.

[20] No fingerprints or DNA belonging to Mr. Clarke were found on any items seized in the apartment.

[21] Videos taken from various cameras in the apartment building between 3:18 and 3:20 p.m. depict a Black male, wearing a blue surgical mask, a grey Wilson hoodie with his hood pulled up, grey track pants and black and white shoes, carrying a purple reusable shopping bag and a water bottle. The parties agree, and I find, due to the identical nature of the clothing worn by the male in the apartment video and the video of Mr. Clarke in the police van, that the Black male was Mr. Clarke.

[22] The videos depict Mr. Clarke approaching the front door of the building at 3:18:19 p.m. carrying a weighted purple bag. He is also carrying a clear plastic disposable water bottle. Mr. Clarke opens the exterior door and enters the building. He then pulls out a key fob from his pocket, fiddles with it for a second, and taps it on the reader at 3:18:30 p.m. before returning it to his pocket and entering the area between the lobby and elevator bank.

[23] Notably, the fob data from the building’s management indicated that the fob swiped by Mr. Clarke was registered to a person named Donald Groves. The fob was only swiped once on June 2, 2021. The fob was associated to Unit 1714, not 1712. Mr. Clarke entered the elevator as the lone occupant at 3:18:58 p.m. and pressed the left-most button on the second row from the top. Video footage reveals him still holding the purple bag and water bottle. At 3:18:58 p.m., Mr. Clarke exited the elevator on the 12th floor (not the 17th floor) and turned left.

[24] Video surveillance also depicts Ms. McCarthy and Ms. Howe entering the frame of the building’s mailbox area a few seconds before 4:00 p.m. Ms. Howe is carrying a tray of drinks, and Ms. McCarthy is carrying a McDonald’s Happy Meal Box and a white plastic bag. The two linger in a mailbox area for a few seconds. At approximately 4:02 p.m. they enter an elevator and press the top right-most button.

[25] Mr. Clarke did not testify at trial.

Crown’s Theory of the Case

[26] The Crown submits that:

a) Apartment 1712 was being openly used to prepare drugs for distribution.

b) The bulk of the drugs and associated preparation materials were found in a purple bag in the kitchen.

c) Mr. Clarke is the man who brought the purple bag and other items into the apartment.

d) Mr. Clarke was a knowing participant in the distribution scheme – either possessing the fentanyl as a principal, or by aiding the principals.

[27] While acknowledging that this is a circumstantial case, the Crown submits that the only reasonable inference based on the evidence as a whole is that Mr. Clarke is guilty as charged.

Defence Theory of the Case

[28] The Defence submits that this is not just a case where the Crown failed to prove the essential elements of the offences beyond a reasonable doubt, but a case where the Crown did not even attempt to do so. The Defence argues that the Crown could have compelled any one or more of the other five other individuals who were present in the apartment to testify about the circumstances in which Mr. Clarke arrived at the apartment potentially with the purple bag, but the Crown did not do so. The Crown could have also led evidence of the relationship, if any, between Mr. Clarke and Donald Groves and/or Unit 1714 which may have shed light on the origins of the purple bag but, once again, the Crown did not do so.

[29] The Defence argues that many reasonable inferences other than Mr. Clarke’s guilt could be drawn from the evidence or lack of evidence as to what transpired in the approximate 3-hour-and-9-minute gap between when Mr. Clarke was seen entering the building at 3:18 p.m. with a purple bag, and when the police entered the unit at 6:27 p.m. The Defence suggests that the purple bag in the apartment may appear distinctive but it could, in reality, have been a different bag than the one that Mr. Clarke brought to the building. The style of the bag may have simply been popular at the time, or commonly used in the neighbourhood.

[30] Even accepting that the purple bag found in the apartment was the same as the one brought into the building by Mr. Clarke, the Defence argues that the Crown cannot deny the reasonable possibility that others found in Unit 1712, including Mr. Trevena, a known drug dealer, were responsible for filling the purple bag with drugs. Mr. Clarke’s mere presence at the scene of a crime does not make him a criminal: R. v. Dunlop and Sylvester (1979), 8 C.R. (3d) 349 (S.C.C.).

[31] Tellingly, Mr. Clarke’s fingerprints and DNA were not found on the items in the apartment including the purple bag. When the police entered the unit, Mr. Trevena and Mr. Williams were closer to the purple bag in the kitchen than Mr. Clarke. And there could be many innocent reasons why Mr. Clarke had $1,150 on his person when he was arrested by police. In sum, the Defence submits that there are a myriad of reasonable inferences that point away from Mr. Clarke’s guilt. Yet, the Crown is asking the court to disregard those reasonable alternative inferences and speculate on the evidence to obtain a conviction.

Applicable Legal Principles

[32] I have instructed myself with respect to several important legal principles that arise in this matter.

Presumption of Innocence and Requirement of Proof Beyond A Reasonable Doubt

[33] Mr. Clarke is presumed to be innocent, unless and until the Crown has proven the offences against him beyond a reasonable doubt. It is not enough for me to believe that he is possibly or even probably guilty. I must be convinced of his guilt beyond a reasonable doubt. As a standard, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty. At the same time, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities.

Circumstantial Evidence

[34] In R. v. Tewolde, 2023 ONSC 4932, Forestell J. summarized the applicable law concerning circumstantial evidence as follows:

[113] The Supreme Court of Canada, in R. v. Villaroman, set out the principles applicable to cases involving circumstantial reasoning. In the case of R. v. Gill, Fairburn J. (as she then was) summarized those principles as follows:

• …Where one or more element of an offence relies largely or exclusively on circumstantial evidence, ‘an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits’: Villaroman, at para. 30.

• Staying focused on the question of whether circumstantial evidence admits of other reasonable alternative inferences, ensures that the trier of fact does not ‘fill in the blanks’ or ‘jump to conclusions’ too quickly: Villaroman, paras. 29-30.

• While previous cases speak in terms of other ‘rational’ inferences, the unanimous Villaroman court settled upon the term ‘reasonable’: see, R. v. Griffin, 2009 SCC 28 at para. 33, Villaroman, at paras. 32-34. As Cromwell J. noted in Villaroman, while ‘reasonable’ and ‘rational’ inferences carry the same meaning, and it is not in error to speak in terms of ‘rational inferences’, the use of the term ‘reasonable’ guards against any confusion that may arise from the use of ‘reasonable doubt’ and ‘rational inference’.

• Inferences consistent with innocence do not have to arise from proven facts: Villaroman, at para. 35. As Fish J. observed in R. v. Khela, 2009 SCC 4 at para. 58, the defence does not have to ‘'prove' certain facts in order for the jury to draw an inference of innocence from them’. To make this a requirement for finding alternative rational inferences would be to reverse the burden of proof. Ultimately, the court must consider the ‘range of reasonable inferences that can be drawn’ from the circumstantial evidence. As in Villaroman, at para. 35, ‘[i]f there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.’

• A theory alternative to guilt is not ‘speculative’ simply because there is no affirmative evidence supporting the theory. A ‘theory alternative to guilt’ can arise from a lack of evidence: Villaroman, at para. 36. Gaps in the evidence can result in inferences other than guilt, but they must be ‘reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense’: Villaroman, at paras. 36-38.

• Reasonable possibilities and theories inconsistent with guilt must be considered, but this does not require the Crown to ‘negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused’: Villaroman, at para. 37, adopting R. v. Bagshaw, [1972] S.C.R. 2 (S.C.C.), at p. 8. Other reasonable inferences must find support in logic and experience and not rest on speculation.

• As noted by Cromwell J., at para. 38, the ‘basic question’ is whether the circumstantial evidence, ‘viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty’.

[114] Cromwell J. at paragraph 42 of Villaroman stated that “alternative inferences [to guilt] must be reasonable, not just possible”.

[35] In R. v. Charley, 2024 ONSC 5064, Schreck J. also suggested asking the following question in cases that turn on circumstantial evidence:

[17] Ultimately, the issue is whether there is any other way of looking at the case as a whole that is reasonable such that there is a doubt about the accused’s guilt, when assessed logically and in light of human experience: R. v. Choudhury, 2021 ONCA 560, at para. 19.

[36] In R. v. Abshir, 2023 ONSC 4297, Nakatsuru J. commented on the requirement that the evidence be looked at in a cumulative fashion:

[13] Importantly, proof beyond a reasonable doubt does not apply to each piece of circumstantial evidence: “facts are not to be examined separately and in isolation with reference to the criminal standard”: R. v. Morin, [1988] 2 S.C.R. 345, at p. 362. Instead, there is a duty on the trier of fact to assess the evidence in a cumulative fashion: “it is the cumulative effect of all the evidence that must satisfy the criminal standard of proof, not each individual item which is merely a link in the chain of proof”: R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at para. 81. See also Morin, at p. 361; R. v. Khalid, 2022 ONCA 501, at para. 23; R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 37. As noted in Smith, at para. 82:

Often, individual items of evidence adduced by the Crown examined separately lack a very strong probative value. But it is all the evidence that a trier of fact is to consider. Each item is considered in relation to the others and to the evidence as a whole. And it is all the evidence taken together, often greater than the sum of individual pieces, that is to be considered and may afford a basis for a finding of guilt… [Citations omitted.]

Possession

[37] Section 4(3) of the Criminal Code defines possession. It includes personal possession, constructive possession, and joint possession.

[38] In R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, the Ontario Court of Appeal provided the following guidance:

[45] When personal possession is alleged, the knowledge element consists of two components. An accused must be aware that they have physical custody of the thing alleged. And an accused must be aware of what that thing is. These elements of knowledge must co-exist with an act of control: Morelli, at para. 16. See, also, R. v. Beaver, [1957] S.C.R. 531, [1957] S.C.J. No. 32, at pp. 541-42 S.C.R.

[46] When personal possession is not alleged or cannot be established on the evidence, the Crown may rely on constructive possession to prove its case.

[47] Constructive possession is established when an accused does not have physical custody of the thing but has it in any place for their own or another's use or benefit: Criminal Code, s. 4(3)(a)(ii). Constructive possession is complete where an accused

(i) has knowledge of the character of the thing;

(ii) knowingly puts or keeps the thing in a particular place, irrespective of whether the place belongs to or is occupied by the accused; and

(iii) intends to have the thing in the place for the use or benefit of the accused or of another person.

[Morelli, at para. 17]

[48] In many cases, the evidence relied upon to prove constructive possession is wholly or substantially circumstantial.

[49] Two further points deserve brief mention.

[50] When things are found in a premises or place occupied by an accused, no presumption of knowledge and control arises from proof of occupancy. Put simply, occupancy does not create a presumption of possession: R. v. Watson, [2011] O.J. No. 2562, 2011 ONCA 437, at para. 13; R. v. Lincoln, [2012] O.J. No. 3872, 2012 ONCA 542, at para. 3.

[51] We define knowledge as true belief: United States of America v. Dynar (1997), 33 O.R. (3d) 478, [1997] 2 S.C.R. 462, [1997] S.C.J. No. 64, at para. 41. It includes not only actual knowledge but also wilful blindness.

[52] Wilful blindness involves a degree of awareness of the likely existence of the prohibited circumstances together with a blameworthy conscious refusal of self-enlightenment. A person, aware of the need for some inquiry, who declines to make that inquiry because they do not wish to know the truth, is wilfully blind: R. v. Williams, 2003 SCC 41, [2003] 2 S.C.R. 134, [2003] S.C.J. No. 41, 2003 SCC 41, at paras. 27-28; R. v. Briscoe, [2010] 1 S.C.R. 411, [2010] S.C.J. No. 13, 2010 SCC 13, at paras. 22-24; R. v. Sansregret, [1985] 1 S.C.R. 570, [1985] S.C.J. No. 23, at p. 584 S.C.R.

Aiding

[39] The actus reus consists of an act (or omission) that assists the actual offender in committing the offence.

[40] The mens rea consists of:

a) Intention to assist the perpetrator in committing the offence; and

b) Knowledge that the perpetrator intends to commit the offence (including wilful blindness).

See R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 13-25.

Discussion

[41] I will focus primarily on the inferences that can be drawn concerning the purple bag, given that the bulk of the drugs in the apartment was found there, and that Mr. Clarke arrived at the apartment building with an identical looking purple bag. Later, I will discuss the significance, if any, of the smaller amount of drugs found in the hinge of the stove, the balcony, and on Mr. Trevena’s person.

Mr. Clarke is the man in the video seen entering the building

[42] I find that Mr. Clarke is the man seen on the building video arriving at the apartment building at approximately 3:18 p.m. on June 2, 2021. He is carrying a plastic purple bag and a water bottle. As mentioned earlier, the parties are in agreement on this point.

Mr. Clarke entered the building with a purple bag that was not empty

[43] I am certain that the purple bag that Mr. Clarke carried into the building was not empty. The video evidence indicates that the bag had heft and appeared to be stuffed with something. I find the suggestion that the bag was empty when Mr. Clarke arrived at the building to be completely implausible as the contents appear to be pushing out the contours of the purple plastic bag.

The purple bag contained more than one item, and at least one of the items was hard or solid

[44] I further find a very strong likelihood that the purple bag contained more than one item when Mr. Clarke arrived at the building. This is because the contents of the bag push out the interior of the bag in an uneven fashion. From the camera view of the exterior of the bag, it appears that the bag contained hard and soft objects. I surmise this because generally a hard object stuffed into a plastic bag leaves an outline of its shape that is visible from the outside of the bag, whereas a soft object does not. I cannot completely exclude the possibility that the bag contains just one item with multiple parts albeit of different firmness and shapes. However, based on my review of the building video (enlarged and slowed down as necessary), the distended, uneven shape of the bag, and the appearance of certain outlines and bulges visible on the exterior of the bag, I conclude that the purple bag was not empty and contained more than one item, at least one of which was hard or solid.

The inferences that can be drawn from the shape of a solid object within the bag

[45] I am equivocal about whether the shape of a pot in the bag can be made out as Mr. Clarke enters the building, gets into an elevator and then rides it to an upper floor. I can say that the size of the outline created by what appears to be a hard or solid object within the bag is not all that different from the size of the pot that was found by police in the purple bag.

The inferences that can be drawn from Mr. Clarke exiting on the 12th floor, and the fob

[46] I find that the Defence makes too much of the fact that Mr. Clarke exited the elevator on the 12th floor and not the 17th. The same goes for the fact that the fob used by Mr. Clarke was registered to a person named Donald Groves, and that the fob was associated to Unit 1714, not 1712. The Defence argues that this could reasonably lead to the inference that Mr. Clarke had an association with Mr. Groves and/or Unit 1714, and/or that Mr. Clarke went to Unit 1714, before he went to Unit 1712. This is a reasonable inference, but it does not change my mind about what happened to the purple bag that Mr. Clarke brought to the building.

[47] I do not know why Mr. Clarke exited at the 12th floor but ended up on the 17th floor later that evening. The Defence suggests that it is plausible that Mr. Clarke made certain stops along the way before he arrived at Unit 1712, which increases the likelihood that the purple bag he entered the building with is not the same as the purple bag in the kitchen found by the police. I agree this is a possibility but it does not change the reality of what I find to be certain: Mr. Clarke arrived at the building at 3:18 p.m. with a purple bag that was not empty. He also had a large plastic water bottle. A little more than 3 hours later at 6:27 p.m. the police found an identical looking purple bag full of drugs in the kitchen area. I deal with the water bottle below. Logically, I conclude that it could have been anywhere from a few minutes after 3:18 p.m. to a few minutes before 6:27 p.m. that Mr. Clarke arrived at Unit 1712. I also find, based on the video and photographic evidence, that he did not change his clothing in that period.

Mr. Clarke brought the purple bag that he entered the building with into Unit 1712

[48] I find that when Mr. Clarke arrived at Unit 1712 sometime in the 3-hour-and-9-minute timeframe, he brought into the apartment the purple bag that he had with him earlier. I find the possibility that Mr. Clarke had no connection to the plastic bag found in the apartment to be vanishingly remote.

[49] Let me consider the Defence arguments to the contrary. One is that, although Mr. Clarke initially attended the building with a plastic bag, he disposed of it and its contents before he arrived at Unit 1712. This does not make sense for a couple of reasons. It would be one thing if the purple bag was a generic plastic bag with negligible value, say for instance, a flimsy white or translucent zipperless plastic bag which was non-descript in colour, marking and texture. If the bag was a generic plastic bag, it would increase the possibility that the plastic bag seized by the police was not the same bag as the one brought to the building by Mr. Clarke. But, on my visual inspection of the videos and photos, the before and after purple plastic bags look absolutely identical. I draw the inference that the re-usable, zippered, purple plastic bag with a textured cloth strap that Mr. Clarke was initially seen with was a bag designed for repeated use. It had some value. I do not consider it a reasonable inference that Mr. Clarke would simply dispose of that bag before he attended Unit 1712, somewhere in the three-hour period that followed his entry into the building.

[50] Moreover, there is no evidence that the purple bag found by the police was brought by another occupant or came from the apartment itself. Ms. McCarthy and Ms. Howe were observed on video entering the building at around 4:00 p.m. carrying McDonald’s food, a tray of drinks and a thin white plastic bag. The purple bag found by the police was fairly large, had a zipper and did not appear to be easily collapsible such that it would fit into the white plastic bag carried by Ms. McCarthy. There is nothing in the description of Kristal Howe, Jammie Keim or Cole Williams to suggest that they brought a plastic bag into the unit that was similar or identical to the one carried earlier by Mr. Clarke. I would treat as fanciful the possibility that Ms. McCarthy, Ms. Howe, Mr. Keim or Mr. Williams brought the purple bag into the apartment.

[51] Mr. Trevena was found with $20 in cash and drugs in his left short pocket. He pleaded guilty to possessing fentanyl for the purpose of trafficking. When the police entered, he was close to the kitchen area where the purple bag was found. It is a reasonable possibility that he had something to do with the purple bag, but that is not inconsistent with Mr. Clarke also having something to do with the bag. Despite the evidence that the apartment was very messy, there was no photographic or video evidence that there were other similar looking purple reusable bags in the unit.

[52] Thus far, I have concluded that the only reasonable possibility is that, regardless of where Mr. Clarke went after he entered the building at around 3:18 p.m., at some point before 6:27 p.m., he arrived at Unit 1712 with the same purple plastic bag that he brought with him earlier into the apartment building.

The contents and location of the purple bag in the kitchen

[53] I will next focus on the location and contents of the purple bag as it was found by the police in Unit 1712. The purple bag was found in the kitchen just below the stove. In the hinge of the stove, a quantity of drugs was found in a translucent bag of cellophane. When police first encountered Mr. Clarke, they found him moving towards the balcony area in the area of the loveseat, which is steps away from the kitchen. The Crown and Defence urge me to draw different inferences from this evidence. The Crown submits that, even though Mr. Clarke was not in the kitchen where the purple bag of drugs and the drugs in the stove were found, he was only a few steps away and it is entirely reasonable to conclude that he was associated with those drugs. The Crown also suggests, based on the officers’ testimony, that Mr. Clarke was moving away from the kitchen area towards the balcony when (or because) the police entered the unit. I only agree with the suggestion that Mr. Clarke was observed moving towards the balcony from where he was in the living room. There is no evidence that he was coming from the kitchen.

[54] The Defence reminds me that when police entered, not only was Mr. Clarke not in the kitchen area, but two other individuals, Mr. Trevena and Mr. Williams, were closer to the kitchen than Mr. Clarke. Given that drugs were found on Mr. Trevena, and that he pleaded guilty to possession for the purpose of trafficking, the Defence submits that it would amount to an error of law for me to find that the only reasonable inference to be drawn from the totality of the evidence is that Mr. Clarke was responsible for the drugs found in the purple bag. The Crown disagrees and argues that liability as between Mr. Clarke and Mr. Trevena is not mutually exclusive. Even if Mr. Trevena was responsible for some or all of the drugs found in the apartment and kitchen in particular, Mr. Clarke can still be found guilty on the basis of joint possession, or by aiding Mr. Trevena (or anyone else) in the possession of the drugs for the purpose of trafficking.

[55] I find it significant that Mr. Clarke was in the common/living room area as opposed to the bedroom when the police entered the unit. I do not agree with the Defence that because Mr. Clarke was not found in the kitchen at the point of police entry, or that because two other individuals in the unit were closer to the kitchen, I cannot draw a reasonable inference that Mr. Clarke was associated with the purple bag containing drugs, or the drugs found in the hinge of the stove. Obviously, the reason I am focusing so much more on the drugs found in the purple bag is that roughly three hours earlier, Mr. Clarke was seen entering the building with an identical looking purple plastic bag that was not empty and that contained more than one object, at least one of which was solid.

The state of Unit 1712 and the remaining evidence

[56] The Crown argues that multiple pieces of evidence suggest that in the hours before the police entered Unit 1712, one or more persons were openly engaged in preparing drugs for sale by mixing, colouring, weighing, and packaging controlled substances.

[57] The Crown submits that when the police entered the unit:

a) The door of the stove in the kitchen was open and a semi-open cellophane package containing 12.98 g of a fentanyl mixture was found in the hinge of the door. The Crown argues that it is unlikely that the cellophane package was deliberately placed in such an awkward location. It is supposedly indicative of a drug operation in plain view that was recent and interrupted when police suddenly entered the unit.

b) Below the open stove door, the purple bag was found that contained the bulk of the drugs in the apartment. The zipper of the bag was open, allowing a view of the top of the contents of the bag. The contents of the purple bag were referenced earlier at paragraph 19(e)(ii) of these reasons and included the pot that purportedly made the circular impression visible on the outside of the purple bag that Mr. Clarke brought to the building.

c) Blue vinyl or rubber looking gloves were found in a corner of the kitchen floor, and on the right and left hand side of the stove. The bright blue colour and texture of the gloves matched the colour and description of the gloves containing drugs that were found in the duffle bag on the balcony.

d) Three digital scales were found on open display in the unit: one on the kitchen counter, and two on the coffee table. One of the scales on the coffee table had white residue. The coffee table was very close to where Mr. Clarke was first observed by the police, just before he was tackled down to the loveseat.

[58] The Crown relies on all of the foregoing to submit that Mr. Clarke must have had knowledge and control of the drugs in the apartment on June 2, 2021, or at least in the kitchen area.

[59] The Defence disagrees that the appropriate or only inference that can be drawn from the state of the apartment was that a drug operation was in progress. With respect to the cellophane package found in the hinge of the stove, the Defence suggests that the better inference is that it was not obvious that it contained drugs. In fact, DC Charles had noticed the package at the commencement of his search, and initially thought it was a cleaning agent.

[60] The Defence suggests that the blue vinyl/rubber looking gloves found in the kitchen were fairly generic. They could be found in any household. The similar looking blue gloves containing drugs found on the balcony, far from the kitchen area, were hidden in a black duffle bag. A reasonable alternative inference is that the blue gloves found in the kitchen were ordinary kitchen gloves used for cooking or cleaning purposes and not associated with drug activity.

[61] One or more of the scales found in the unit may or may not have been associated with drug activity, but their presence does not demonstrate that the activity was recent. Simply viewing scales in an apartment would not necessarily lead an observer to have knowledge that drug activity was taking place in the apartment.

[62] The open purple plastic bag had a piece of dark clothing and a white plastic bag visible on top. The drugs were buried underneath in bags within bags. There is no reason to believe that an occupant of the apartment looking at the purple bag, in combination with some or all the above pieces of evidence, would conclude that a drug operation was in progress in the apartment.

The Water Bottle

[63] The Crown also relies on inferences that can be drawn from the presence of a translucent plastic water bottle found on the kitchen counter that resembles the one that Mr. Clarke had when he entered the building. The Crown claims that, in one of the search photos (#66), a large, ribbed, translucent plastic water bottle can be seen laying on its side beside a yellow spray bottle. The Crown suggests that by that point the bottle was empty as the cap of the bottle was missing and, in another photo (#84), the distinctive blue cap of the water bottle can be seen in a corner of the kitchen floor. The Crown submits that the size, ribbing, and translucency of the water bottle on the kitchen counter and its matching blue cap on the kitchen floor are identical to the water bottle that Mr. Clarke entered the building with. This should allow the court to draw the inference that, sometime after Mr. Clarke got off the elevator on the 12th floor, he drank or emptied the water bottle either before or after entering Unit 1712. He then left the empty water bottle on the kitchen counter which would confirm that, at some point, he was in the kitchen, where the purple bag and cellophane package of drugs were found.

[64] The Defence disagrees that so much can be made from what appears to be a random water bottle found on a kitchen counter. The Defence points out that the photo with the water bottle was not one of the entry photos. It was one of the search photos that were taken at a later time when police officers had moved items around in the kitchen. For instance, a comparison of entry and search photos confirms that police moved some fruits and vegetables to the top of the stove where previously there were none. The Defence argues that the water bottle and blue cap on the floor could have come from anywhere, not necessarily from Mr. Clarke. Moreover, if they came from Mr. Clarke, they could have been moved from anywhere in the apartment to the kitchen. It would be an unreasonable inference to conclude that the photo of the water bottle and cap are confirmation of Mr. Clarke’s presence in the kitchen. In reply, the Crown submits that when the police moved items around, they moved them around within the kitchen; they did not move items from other rooms into the kitchen.

[65] I agree with the Crown that I can reasonably conclude that the plastic water bottle found on the kitchen counter is the same as the one that was brought into the building by Mr. Clarke. The water bottles in both instances are large, plastic, unlabeled, translucent, ribbed, and have a blue cap. While it is true that many disposable water bottles can be described as such, based on the police photos, no other similar water bottles were found in the apartment.

The keychain used by Mr. Clarke to gain entry to the building

[66] The parties similarly disagree on what inferences can be drawn from a keychain holding keys and a fob found on the coffee table. The Crown contends that this is the same keychain used by Mr. Clarke to gain entry to the apartment building earlier in the afternoon. No keychain was found on Mr. Clarke when he was arrested. So what happened to the keychain used by Mr. Clarke? The Crown asserts that after Mr. Clarke entered Unit 1712, he left the keychain on the coffee table in the living room. The Crown relies on the fact that the keychain found on the coffee table (photo #17) has multiple fobs and at least one hexagonal shaped key, which is the same as the keychain depicted in the entry video. The Crown reasons that the keychain on the coffee table could not have belonged to Ms. McCarthy because her set of keys was found on Mr. Trevena, and had a different look. The Crown asks me to draw the inference that, if Mr. Clarke left his keys on the coffee table, he was present in the apartment for longer than just a few seconds. Further, he would have likely seen the two digital scales on the coffee table.

[67] The Defence disputes that the video footage of Mr. Clarke entering the building reliably depicts what keychain he used, and that the keychain can be matched to the one found on the coffee table. There were six individuals in the apartment. Any one of them could have left a keychain on the coffee table. Even if Mr. Clarke left the keychain he used earlier on the coffee table, it is not a reliable indicator of how long he was in the unit before police entered. It could have been a few seconds, minutes or hours.

The $1,150 found on Mr. Clarke

[68] Another piece of circumstantial evidence is that Mr. Clarke was found with $1,150 in cash on his person. The cash included 5 x $100 notes, and 32 x $20 bills. The Crown suggests that the presence of this amount of money on Mr. Clarke’s person is a piece of circumstantial evidence pointing to his knowledge and control of the drugs: R. v. Duvivier, 2010 ONCA 136, [2010] O.J. No 683 (Q.L.), at para. 8. Of course, the Defence claims that Mr. Clarke could have simply taken out this cash from an ATM to spend on legitimate purchases.

[69] While I consider it somewhat unusual for a 21-year old young man to be walking around with $1,150, I have treated this as a neutral piece of evidence.

No fingerprints or DNA of Mr. Clarke found on items seized

[70] The final aspect of evidence worthy of discussion is the fact that no fingerprints or DNA belonging to Mr. Clarke were found on any items seized in the apartment. The Defence submits that an available inference is that Mr. Clarke never touched the purple bag or any of the drugs found in the apartment. And if he never touched or handled the items, he probably did not know about them. This is significant since there is no evidence that Mr. Clarke was wearing gloves when he was entering the building holding the purple bag. The Crown disputes the significance of this evidence since there was no admission that the items in the apartment were tested for fingerprints and DNA. My conclusion is that there is simply an absence of fingerprint or DNA evidence. It cannot be equated with a finding that Mr. Clarke did not touch any items.

Analysis

[71] I do not know when Mr. Clarke got to the apartment, but I consider it an unreasonable possibility that Mr. Clarke never entered the kitchen. First, this was a small one-bedroom apartment where the common living area is adjacent to the kitchen. Second, since I believe that Mr. Clarke’s discarded water bottle was found in the kitchen, I am inclined to believe that he entered the kitchen and left it there. I am not perturbed by the possibility that police moved around some items in the kitchen after they entered the apartment, as I consider it far-fetched that police would move a water bottle that was outside the kitchen and place it on the kitchen counter. Third, when police arrived, Mr. Clarke was found just a few steps away from the kitchen. I am therefore convinced that, at some point, Mr. Clarke was in the kitchen.

[72] I consider it a reasonable possibility that Mr. Trevena and/or Mr. Williams, the individuals closer to the kitchen than Mr. Clarke, were preparing or packaging drugs in the kitchen area around the time that the police entered the unit at 6:27 p.m. However, if so, I also believe that because it was Mr. Clarke’s purple bag, that Mr. Clarke was intentionally aiding them. He would be equally liable for possession for the purpose of trafficking.

[73] I reject as unreasonable the scenario that, even if Mr. Clarke brought the purple bag with him to the unit, without his knowledge, another occupant filled the bag with drugs. I note that the bag was found in an open area of the kitchen. Anyone in the common area of the apartment could easily see what was going on in the kitchen. The contents of the purple bag were, among other things, a pot, the blade of a knife, food colouring, and multiple bags within bags of drugs. Assuming the purple bag was empty at some point in the kitchen, the bag would have to be filled. Given the number of items in the purple bag and their arrangement, it would take some time to load up the bag. The time frame under consideration is around three hours in the late afternoon. It is not as if Mr. Clarke was sleeping in a bedroom while other occupants filled his purple bag with drugs unbeknownst to him and then, just as he awoke, the police entered.

[74] The fact that Mr. Trevena was found with certain items on his person including a quantity of fentanyl and cocaine does not cause me to have a reasonable doubt that Mr. Clarke had knowledge and control of the purple bag full of drugs.

[75] I do not need to determine the precise mode of Mr. Clarke’s participation in order to convict him if I find, as I do, that he is guilty beyond a reasonable doubt: R. v. McKay, 2012 ABCA 310, 84 Alta. L.R. (5th) 404, at para. 13; R. v. Russell, 2020 BCCA 108, 386 C.C.C. (3d) 480, at paras. 57-58.

[76] I will briefly touch upon the Biggs case relied upon by the Defence and explain why I would distinguish it. In R. v. Biggs, 2016 ONCA 910, 34 C.R. (7th) 147, the appellant successfully appealed from his convictions for drug possession. The appeal court held that there was insufficient evidence that the accused had knowledge of drugs hidden behind a light fixture in the closet of a basement that he occupied with other individuals. The trial judge erred by relying primarily on occupancy factors to ground a conviction. Notably, unlike in the present case, Biggs was not seen entering or leaving the house—let alone with an item associated with the drugs—and no scales or cell phones were found in the basement bedroom.

[77] The case against Mr. Clarke is one where, to borrow from Abshir, it can be aptly said that all the evidence taken together, often greater than the sum of individual pieces, affords a basis for a finding of guilt.

[78] It is also a case where, even though I have considered the totality of the evidence, one fact predominates, namely that Mr. Clarke brought a distinctive purple bag to the building. Three hours or so later, an identical looking bag was found full of drugs. Having said that, I hasten to add that it is much more than finding Mr. Clarke guilty only because of the purple bag. It is all the pieces considered carefully put together which include:

a) Mr. Clarke is the man in the video seen entering the building.

b) Mr. Clarke entered the building with a purple bag that was not empty.

c) The purple bag contained more than one item, and at least one of which was hard or solid.

d) The size of the outline created by what appears to be a hard or solid object within the purple bag was not all that different from the size of the pot that was later found by police in a purple bag.

e) Mr. Clarke got off on the 12th, not 17th, floor for reasons that are unknown, but clearly entered Unit 1712 at some point.

f) The timing of Mr. Clarke entering Unit 1712 is unknown but it is clear that he did not change his clothes after entering the building.

g) Mr. Clarke entered Unit 1712 with the purple bag that he originally entered the building with.

h) When police entered at 6:37 p.m., Mr. Clarke was in the common living area steps away from where the purple bag with drugs and the cellophane bag with drugs were found.

i) The plastic water bottle found on the kitchen counter was the same as the one that was brought into the building by Mr. Clarke so, at some point, Mr. Clarke must have been in the kitchen.

j) There were three digital scales in plain view. One, on the coffee table, had white residue on it, albeit the residue was not tested. Another one, in the kitchen, was very close to the drugs in the purple bag and in the hinge of the stove.

k) Ms. McCarthy, Ms. Howe and Mr. Keim were found by the police away from the kitchen area. Nothing was found on them linking them to the drugs.

l) Mr. Clarke’s fingerprints and DNA were not found on any items in the unit; however, there was no admission that the items in the unit were tested.

[79] I reject as fanciful the scenario that Mr. Clarke carried a bag full of drugs into the building, but that he did not know the contents of the bag. To be fair, this was not a theory advanced by the Defence. The Crown led evidence that the value of the 1,291.59 g of fentanyl found in the apartment was between $80,000 to $110,000 based on the price per kilo, or $138,000 to $207,000 based on the price per ounce. The amount of fentanyl in the purple bag was approximately 1.26 kgs of fentanyl so the value would not be significantly different. I agree with the Crown that 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: R. v. Bains, 2015 ONCA 677, 127 O.R. (3d) 545, leave to appeal refused, [2015] S.C.C.A. No. 478.

Conclusion

[80] While I agree that all sorts of inferences are available, I am convinced beyond a reasonable doubt that the only reasonable inference based on the whole of the evidence is that Mr. Clarke is guilty of the two offences as charged.

[81] Given that I believe that the purple bag found with drugs in Unit 1712 was Mr. Clarke’s bag from earlier, and that he knew that it had drugs in it, I find that he is criminally liable by way of:

a) Physical possession, since he touched the bag, knowing that it had drugs in it.

b) Constructive possession, since he had knowledge of the drug related contents of the bag either because he brought those contents with him to the building and Unit 1712, or that he knew of the drug contents being loaded into the bag while he was at the apartment, and he knowingly put or kept the bag in the apartment; and intended to have the bag in place either for his own benefit or for another person.

c) Joint possession – he had the bag of drugs in his possession or custody with the knowledge and consent of one or more other occupants.

d) Aiding – he intended to assist others in possessing the drugs knowing (including through wilful blindness) that they intended to commit the offence of drug possession.

[82] I do not find that there is any other way of looking at this case as a whole that is reasonable such that there is a doubt about Mr. Clarke’s guilt, when assessed logically and in light of human experience: Choudhury.

[83] I find Mr. Clarke guilty of possession of fentanyl for the purpose of possession. Since I find him as such, I draw the conclusion that the $1,150 that was found on him was proceeds of crime under $5,000, therefore I find him guilty of that offence as well.

Pinto J. Released: October 15, 2024

[1] See the ASF for an exact description of the controlled substances.