Court File and Parties
COURT FILE NO.: CR-24-005 (Owen Sound) DATE: 2024-12-16 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: His Majesty the King - and - Tahir Ali
Counsel: Elizabeth Barefoot, for the Director of Public Prosecutions Anya Shahabi, for Tahir Ali
Heard: November 18-22, 25 and 28, 2024
SPROAT J.
Reasons for Judgment
Introduction
[1] Mr. Ali is charged with possession of methamphetamine, cocaine, fentanyl, oxycodone, and benzodiazepine for the purpose of trafficking. He is also charged with unsafe storage of, and unlawful possession of, two .22 calibre rifles, and being in possession of those firearms and ammunition while subject to a weapons prohibition.
[2] At the outset of the trial Ms. Shahabi, on behalf of the accused, admitted the continuity of the items seized; that at the relevant time the accused was subject to a s. 109(2) weapons prohibition; that the firearms referred to in the indictment were functioning; and were firearms as defined in the Criminal Code. It was also admitted that, given the quantity of the drugs seized, they were clearly in the possession of some person for the purpose of trafficking. The issue was, therefore, whether the accused had knowledge of, and control over, the firearms and drugs that were seized.
[3] In the course of reviewing the evidence, I will make certain findings of fact. In all cases, however, these findings are based upon the totality of the evidence relevant to the charge in question, and taking into account findings of fact that may be made later in the reasons.
[4] In the course of giving their evidence, certain of the officers gave evidence as to the fact that a location attended by the accused was frequented by persons known to be part of the drug sub-culture or linked by police occurrence reports to persons with drug convictions. While this evidence was not objected to, I raised the issue of whether these types of observations had any probative value. I conclude that this evidence lacks any probative value, and I place no reliance on it in reaching my conclusion.
[5] A document seized in the course of the investigation indicated that the accused was incarcerated in 2019. This was only relevant to link him to the location where the document was found.
[6] I also recognize that any evidence of prior discreditable conduct, or that suggests an association with disreputable persons or places, cannot be relied upon to reason that the accused is more likely to have committed the offence charged, or that he is a bad person deserving of punishment.
[7] I also keep in mind that my verdict on each charge must be based only on the evidence and the legal principles that apply to that charge.
The Law
[8] In R. v. Villaroman, 2016 SCC 33, Justice Cromwell stated:
[30] It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative inferences. It may be helpful to illustrate the concern about jumping to conclusions with an example. If we look out the window and see that the road is wet, we may jump to the conclusion that it has been raining. But we may then notice that the sidewalks are dry or that there is a loud noise coming from the distance that could be street-cleaning equipment, and re-evaluate our premature conclusion. The observation that the road is wet, on its own, does not exclude other reasonable explanations than that it has been raining. The inferences that may be drawn from this observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.
[36] I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus, a reasonable doubt “is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence”: para. 30 (emphasis added). 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.
[37] When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: R. v. Comba, [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff’d , [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: R. v. Bagshaw, [1972] S.C.R. 2, at p. 8. “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.
[9] In R. v. Gagliardi (endorsement, January 12, 2006), I found the accused guilty of possession of a loaded handgun found in the console of his vehicle. In my reasons, I stated:
[43] I was referred to the decision of the Court of Appeal in R. v. Balasuntharam, [1999] O.J. No. 4861 (Ont. C.A.). I appreciate the facts in that case were significantly different than the facts before me. That case involved four men in a small car and an AK-47 and two clips were found in a cramped back seat. So I appreciate the facts of that case are quite different than the case before me. But certain of the language in the decision I think has some application by analogy to the present case. The Court of Appeal stated, “This is a common sense case” and then after referring to the facts they continued,
As the trial judge observed, human experience tells us that property of this nature simply would not be the subject of unknowing possession.
[44] In R. v. McIntosh, [2003] O.J. No. 1267 (Ont. S.C.J.) Justice Hill, as one of a number of factors, considered the improbability of a drug dealer letting a valuable asset out of his or her control. Justice Hill considered that as a factor in determining whether the accused was in possession of the drugs and weapon in that case.
[45] Now, the handgun in question here in the Toyota Tundra, certainly much more so than an AK-47 in a small car, could be the subject of unknowing possession. Having said that though, in my opinion there is considerable force to the Crown argument that a loaded handgun is a valuable item. It is also a dangerous item for anybody who might come upon it unexpectedly in the vehicle. And it is also an item that has attached to it penal consequences. This handgun is not something that a criminal would be likely to deal with casually or carelessly. To paraphrase Justice Hill, it is improbably that a criminal would let this valuable asset out of his control risking discovery and loss.
[51] When I consider the evidence that I have just reviewed, and from which it can be inferred that Mr. Gagliardi had knowledge of the gun and that the gun was located in the console of the truck for his use and benefit, I am satisfied that Mr. Gagliardi knew the gun was in the vehicle and that it was there for the use and benefit of himself. As such, I am satisfied on count one that the guilt of Mr. Gagliardi is the only reasonable conclusion to be drawn from the whole of the evidence.
[52] Having been satisfied by the Crown evidence as to the guilt of Mr. Gagliardi beyond a reasonable doubt, I would also refer then to Justice Hill in R. v. Emes, [2001] O.J. No. 2469 (Ont. C.A.) in which he stated at, paragraph 40,
[The Accused] did not testify and no defence evidence was called. In this regard, the words of Sopinka J. in The Queen v. Noble (1997), 114 C.C.C. (3d) 385 (S.C.C.) at 421 are to be remembered. “… while it is permissible to conclude from the failure to testify that there is no unspoken, innocent explanation about which the trier of fact must speculate, it is not permissible to use silence to strengthen a case that otherwise falls short of proving guilt beyond a reasonable doubt. If the totality of the evidence leads to guilt beyond a reasonable doubt, the accused’s silence simply fails ‘to provide any basis to conclude otherwise’.”
[10] The Court of Appeal dismissed an appeal, stating simply:
The trial judge correctly stated the operative legal principles and carefully applied them to the evidence.
[11] In R. v. Emes, the court stated:
[7] In our opinion, Hill J. was correct in his appreciation of the admissibility and use to be made of the materials seized from the Nina Street and Darcel Avenue addresses that were central to the Crown’s case against the appellant. He characterized the import and relevance of that evidence as follows:
The seized documents in this case have relevance to a material issue – whether Mr. Emes had a sufficient connection to the Darcel Ave. apartment to permit the court to be satisfied, beyond a reasonable doubt, that the accused was in possession of the marihuana.
The documents are effectively relevant for the fact of their existence as real or tangible evidence. The probative value relates to circumstantial inference-drawing apart from the truth of the contents of the seized documents: see Regina v. Lydon (1987), 85 Cr. App. R. 221 (C.A.) at 223-225 per Woolf L.J.; Regina v. Rice, [1963] 1 Q.B. 857 (C.C.A.) at 869-973 per Winn J., Ewart D., Documentary Evidence in Canada (1984), at pp. 20-21; Sopinka J., Lederman, S., Bryant, A., The Law of Evidence in Canada (1992), at p. 20.
[8] After reviewing the items of evidence, Hill J. set out his reasons for accepting the seized documents as circumstantial evidence. He held that:
Personal papers are, as a general rule, maintained in a location to which a person has access and control. When documents such as income tax forms, invoices, cancelled cheques, leases, insurance papers and the like are located in a residential premise it is surely a fair inference that the person identified in the documents is an occupant with a significant measure of control. This is a matter of logic and common sense. While the existence of the papers at the location in question could be as a result of the documents being stolen, or simply stored there, or abandoned, such explanations do not, in my view, accord with the factual probabilities of the circumstances here.
Likewise, the finding of documents relating to the subject matter of marihuana cultivation, found in close proximity to those personal papers identifying Mr. Emes, suggests that the documents are his as well. The inference to be drawn from a person’s possession of documents characteristic of one operating a hydroponics venture is not terribly dissimilar to the inference which might be drawn from finding an individual in possession of physical items such as ballast, fans, grocubes, water trays, fans, heaters, various chemicals, PH compound, transformers, high wattage bulbs and reservoirs.
[9] Having assessed the cumulative effect of the circumstantial evidence, Hill J. found that the only reasonable conclusion was that the appellant had knowledge and control of the marijuana at the Darcel apartment. In coming to this conclusion, he noted that the appellant did not testify or call evidence.
[10] We can see no error in the reasons of the trial judge and, accordingly, the appeal is dismissed.
The Evidence
Introduction
[12] On March 24, 2022, the accused was stopped while driving a Ford Edge vehicle and he was arrested. The police then executed search warrants at various locations. There was also evidence linking the accused to a number of vehicles.
[13] I will, therefore, review the police investigation, the evidence associated with the search of the Ford Edge, and the execution of search warrants at various locations. I will review surveillance and other police observations that connect the accused to various locations and vehicles. I will also review evidence obtained pursuant to tracking warrants for cell phone numbers and cell phone downloads.
Transmission Data Recorder
[14] The investigation of the accused began on August 21, 2021. Det. Larson, the officer in charge of the investigation, obtained Transmission Data Recorder (“TDR”) warrants for three cell phone numbers from December 7, 2021, until the accused was arrested on March 24, 2022. The TDR data allowed the OPP to receive reports, with a 15-minute delay, as to where the cell phones were located. This was based on data as to the cell site being accessed by each phone. While I refer, as the witness did, to the cell phones being tracked, it was explained that it is actually the SIM card in the cell phone that is associated with a particular phone number that is being tracked.
[15] The TDR data indicates the radius within which the cell phone is located. Over the period of December 14, 2021 to March 24, 2022, the police observed the accused at various locations. Det. Larson would frequently review the TDR data to see if the TDR reports placing the accused at a particular location corresponded with the actual observations of the police. In all cases they did. The only anomaly he noted was that, on occasion, the TDR data would vary somewhat as to the radius within which each of the cell phones was located. That difference is immaterial in all the circumstances.
[16] Det Larson also noted that observations were made of the accused driving and then arriving at a location. Det. Larson referred to the fact that when the accused stopped, there would sometimes be a flurry of activity on the cell phones. This too supports the conclusion that the phones being tracked were in his possession.
[17] On the March 24, 2022 arrest date, the TDR data for two of the cell phones in the Ford Edge indicated that the phones were located within a radius of 7 and 4 m of a spot marked on a map. This aligns with the police evidence as to where the traffic stop occurred. The TDR data for the third cell phone in the Ford Edge indicated it was located within a radius of 3,034 m. This radius included the location of the other two cell phones. They were obviously all within the Ford Edge. This is buttressed by the fact that two of the cell phones in the Ford Edge had stickers with a telephone number which corresponded to two of the cell phone numbers being tracked.
[18] Det. Larson testified that, over the period of December 7, 2021 to March 24, 2022, the TDR data demonstrated that the three cell phones consistently moved together, consistent with them being in the possession of one person.
[19] Det. Larson’s evidence was not challenged to any significant extent, and I accept it. This evidence satisfies me, to a very high degree of probability, that the accused was in possession of, and utilizing, the three cell phones that were being tracked.
[20] Det. Larson testified that the TDR data also demonstrated that the accused typically spent the night in the vicinity of 193 Edgehill Drive, Barrie. Other evidence supports the conclusion that he lived in apartment 114 at this address. The TDR data further demonstrated that the accused typically left Barrie mid-morning and travelled to Grey-Bruce, and was frequently at one or more of the following locations:
a. 318655 Grey Road 1, which is a property that has one large garage structure and a large parking lot, and which was referred to as the Grey Road 1 property, b. 1121 Bruce Road 23, which was referred to as the Kincardine property, c. 010105 Highway 6 – which was referred to as the Towing Yard.
[21] An analyst downloaded TDR data on or about March 7, 2022 to support the warrant applications. Exhibit 9 contains charts which mark with a red dot any day on which the cell phones were in the vicinity of the Barrie apartment, Grey Road 1 and the Kincardine property. The red dots overlap so one cannot count the actual number of days, but it is obvious that the accused was frequently attending these locations between December 7, 2021 and March 7, 2022.
[22] TDR data continued to be obtained to and including the arrest date of March 24, 2022. The data continued to indicate that the phones moved together, and that the accused frequented these same locations.
Expert Evidence
[23] Det. Auger was qualified to give expert evidence as to the use, pricing, sale and distribution of fentanyl, methamphetamine, cocaine and oxycodone, and the modus operandi of traffickers in these drugs. He has 15 years of experience working in an OPP drug enforcement unit.
[24] Ms. Shahabi conceded Det. Auger’s qualifications to give expert evidence. His opinions were not seriously challenged, and I accept them. I will later refer to the value of the drugs found at various locations, and these values are from Det. Auger’s report and testimony. The values are stated in a range which depends upon the quantity being sold. Sales in larger quantity are at a discounted price.
[25] Exhibit 17 is an agreed statement of fact as to the quantity of drugs found at each location. The amounts vary by an insignificant amount from the weight Det. Auger was asked to assume. As such, the value of drugs I will refer to vary slightly from his report, as he provided adjusted numbers in his testimony.
General Evidence of Drug Trafficking – Cell Phone Downloads
[26] The police attempted to download data from all of the cell phones but were only able to do so for the LG1 phone seized from the Ford Edge, the LG2 cell phone seized from the camping trailer at Grey Road 1, and the Alcatel cell phone seized from the Mazda parked at Grey Road 1.
[27] Det. Rupert is an OPP officer who is a forensic digital analyst, specializing in cell phones. He testified that the SIM card in a cell phone has a unique telephone number associated with it. The cell phone itself, independent of the SIM card, stores data recording incoming and outgoing communications such as telephone calls and messages.
[28] He searched all of the downloaded data from the three cell phones for the three phone numbers (for practical purposes, the SIM) being tracked. These searches are in Exhibit 19.
[29] The downloads for all three phones indicated numerous examples of the phone recording that it made calls and sent messages to, and also received calls and received messages from, one of the three phone numbers being tracked. This means that the SIM card in the phone was periodically being moved to a different phone.
[30] Exhibit G is a summary of information from the cell phone downloads prepared by Ms. Barefoot. The downloads provide compelling evidence supporting the conclusion that the accused was the person using the cellphones, and that drug trafficking was often the subject being discussed. I will indicate the drug related meaning of certain words based on the evidence of Det. Auger.
[31] The LG1 phone contained messages in February to March, 2022, referring to soft [powdered cocaine], hard [crack cocaine], tina and crystal [methamphetamine], “do you need 2 oz”, and “get pills please”.
[32] The user account for LG1 was in the name of alexwilliamcbad911@gmail.com. A March 15, 2022 message indicates the sender will be in Barrie at night. A March 14, 2022 incoming message is “Ali can you send Brianne money” (Exhibit 9, a document signed by the accused, stated his daughter’s name was Brianne Ali Williams). A March 7, 2022 message lists by make, a number of vehicles the accused drove, and states “Ford Edge mostly I drive”.
[33] The user account for LG2 indicates the BRE phone number of 519-353-8520 and there are several references in the user accounts to alexwilliamcbad911@gmail.com. The phone receives multiple messages addressed to the “alexwilliam” Gmail account from Apple, TD Bank that the accused dealt with, and a financial institution with messages beginning Tahir or Tahir Ali.
[34] The Alcatel phone has references to tina, down [fentanyl]. A March 4, 2022 message from Briana states, “I have the money thank you dad”.
Vehicles Associated with the Accused
[35] There was also evidence of the accused driving a number of vehicles, as follows:
a. Ford Edge (CSSW 583) b. Ford F350 (BN 89208) c. HINO Tow Truck (BN 98539) d. Mazda (CBBV 365) e. Honda (CSKF 932)
Surveillance and Observations
[36] Surveillance teams observed the accused on March 9, 10 and 17. Det. Larson and other officers periodically observed the accused on other days. I rely upon this evidence only for the following:
a. The evidence indicates that the accused frequently drove the Ford Edge and Mazda and, less frequently, the HINO tow truck and Honda; and b. At no time did the police observe anything that would indicate that BRE Towing & Tire was a real business. For example, no customers or employees were observed coming and going at the shop. The tow truck was never observed towing a vehicle.
[37] I place no reliance on the identity of the persons that the accused interacted with, or the reputation of places he frequented.
BRE Was a Sham Business
[38] Locations that the accused attended near Owen Sound and Wiarton had signage for BRE Towing & Tire, as did the vehicles the accused used. It will inform my reasoning to now state my finding that this was a sham business. The apartment of the accused and locations associated with BRE were searched. No business records of any sort were located. No point-of-sale equipment was located. There was no inventory or supplies on the premises. Despite the observations of the accused and the BRE properties, there never appeared to be anyone who was an employee or customer. Further, the accused resided in Barrie and typically left to drive to Grey County, a two-hour drive, in mid-morning. It makes little sense that a small business owner would reside so far away from his place of business. To falsely present as an active legitimate business allows for an inference that something nefarious is being concealed.
Position of the Parties
[39] The position of the Crown was that the drugs were all located in places under the direct control of the accused, or closely associated with him. The Crown also relies upon personal effects seized at the various locations, TDR data, and cell phone downloads to prove beyond a reasonable doubt that the accused was in knowing possession of the drugs.
[40] The position of the accused was that other persons were associated with the locations where drugs were seized. In particular Brenda Kwan, a partner or former partner of the accused, who was a convicted drug importer, had connections to the places where drugs were located.
[41] As I will explain, the evidence that the accused was in knowing possession of the drugs seized is overwhelming. As I will explain on the evidence, there is no reasonable inference, plausible theory or reasonable possibility that the accused is not guilty of the drug offences charged.
Search of the Ford Edge Following Arrest
[42] Det. White testified that she conducted the initial search of the Ford Edge that the accused was driving when he was arrested. In the console between the driver and passenger seats, she found a blue scale with residue that tested positive as cocaine, fentanyl, and methamphetamine, a clear plastic container containing 75.6 g. of what tested as cocaine, and a bag containing 731 g. of what tested to be methamphetamine. Underneath the bag of methamphetamine, Det. White found a clear container which had 1.9 g. of a substance, which tested positive for fentanyl and benzodiazepine.
[43] The value of the methamphetamine found in the console was $30,768 to $114,435, and the value of the cocaine found in the console was $7,168 to $9,856.
[44] On the passenger seat was what appeared to be a rectangular tan case which zipped up. It looked like a shaving case and contained a number of prescription pill bottles all in the name of the accused. A piece of paper near the gearshift related to an e-transfer dated March 23, 2022 sent by the accused.
[45] $1,220 in Canadian currency was on the driver side floor. There were six cell phones in the vehicle, one of which was described as broken.
[46] Det. Sgt. Thompson conducted a further search of the vehicle at the police station. A wallet on the front seat had a driver’s licence in the name of the accused with an address at 4538 Bruce Road 3, Port Elgin. There was also a vehicle licence plate document showing the accused as the owner of the Ford Edge.
[47] Taking into account the totality of the evidence and, in particular, the following:
a. The quantity and location of the drugs found in the Ford Edge owned by, and being driven by him; b. That multiple cell phones and scales are tools of the trade for drug traffickers; c. That drug trafficking is a cash business, and $1,220 in cash was lying on the driver side floor; d. The extreme improbability of anyone leaving 731 g. of methamphetamine and 75.6 g. of cocaine, having a total value in the range of $37,936 to $114,435, in the unknowing possession of another person; e. TDR data which demonstrates that the three cell phones being tracked moved together and in a manner consistent with the accused being in possession of them; and f. Cell phone downloads from cell phones in the possession of the accused that strongly suggest that the accused is trafficking in drugs,
I am satisfied beyond a reasonable doubt that the only reasonable inference is that the accused was aware of, and in possession of, the drugs found in the Ford Edge.
Barrie – Apartment 114-193 Edgehill Drive
[48] The TDR data shows that the cell phones, which I have found were in the possession of the accused, were very frequently in the vicinity of the Barrie apartment. Det. Larson testified that typically the phones being tracked were in the immediate vicinity of the apartment overnight.
[49] Officer Conroy was conducting surveillance and observed the accused at 8:09 a.m. as he walked from the vicinity of the apartment building at 193 Edgehill Drive to the Ford Edge vehicle. Following the arrest of the accused, the police executed a search warrant at apartment 114.
[50] Officers Groh, Conroy, and Bromley searched apartment 114, and Officer Breedon was the exhibits officer. All of the drugs seized and, with one exception, all of the items seized, were found in what Officer Bromley testified was the master bedroom. He testified that the door to the bedroom had to be forced open, but it was flimsy, and a “body check” forced it to open. Det. Bromley found 15 rounds of .22 calibre ammunition on the top shelf of the closet.
[51] Officer Conroy found, beside the bed on the floor, a stone bowl with a spoon that tested positive for cocaine, fentanyl, and methamphetamine. Under a side table he found three vials which tested positive for benzodiazepine. He also found three prescription bottles in the name of the accused. One bottle was dated March 11, 2022. On a table he found pills that tested as oxycodone.
[52] From under the bed, Officer Conroy seized a bag containing 589 g. of what tested to be Phenacetin, which is a pain killer which can be used to augment the weight of powdered drugs. Residue of this drug were found with other drug residue on the scale from the Ford Edge, and on the scale and a stone bowl seized from the bedroom.
[53] Officer Conroy also seized a red suitcase found between the bed and the window. Det. Larson testified that it contained Ontario, Quebec, Canada and Pakistan government documents dated from the 1980s to 2019. He also located a July 19, 2012 notarized letter signed by the accused, to permit his children to travel to Costa Rica. Det. Larson also found a correctional centre visitor authorization dated January 26, 2019, signed by the accused.
[54] Taking into account the following:
a. The TDR data from which I infer that the accused regularly stayed at the apartment overnight; b. The many documents bearing his name, found in the locked bedroom; c. The prescription bottles in his name, one of which was dated March 11, 2022, seized from the bedroom; d. The three vials of benzodiazepine found under a side table in the bedroom; e. A scale which tested positive for cocaine, fentanyl and methamphetamine was in plain view on a table in the bedroom; f. Drug packaging and paraphernalia seized in the bedroom; and g. The observation of the accused leaving the apartment building on the morning of March 24, 2022,
I am satisfied beyond a reasonable doubt that the only reasonable inference is that this was the apartment where the accused ordinarily resided and that he was aware of, and in possession of, all of the items seized from the master bedroom.
The Shop – 318655 Grey Road 1
[55] The TDR data shows the cell phones, which I have found to be in the possession of the accused, to be at the shop location very frequently from December 7, 2021 to March 7, 2022.
[56] The shop has a sign “BRE Towing & Tire Shop”. The letters “BRE” are closely associated with the accused. The Ford Edge he drove on March 24, 2022, the day he was arrested, had “BRE” in red letters on the front hood. When the search warrant was executed, the F350, Honda Civic, the Mazda, and the HINO truck, were parked and all had the letters “BRE” prominently displayed. Mr. Ali’s driver’s licence and a traffic ticket issued to him were in the glove box of the Mazda. The Mazda ownership was in the name of a person with the same street address as the accused in Barrie, although a different apartment number.
[57] In the shop, Det. Sgt. Thompson found an MTO document related to a vehicle transfer, which indicated that the transferor was the accused; a handwritten receipt to Alex Williams for $1,500 in rent dated December 8, 2021, and a March 23, 2022 government printout of the three-year driving record of the accused.
[58] There was also a camper trailer on the premises. Inside the camper trailer was a government of Ontario document indicated that Tahir Ali and Brenda Kwan were the general partners of BRE Tire Repair. Det. Sgt. Thompson seized a number of pill bottles that were in a red cooler inside the camper van. One pill bottle contained 87 oxycodone pills. Two pills were tested and were positive for oxycodone. Another pill bottle had 60 pills, and two pills were tested and were positive for oxycodone. Another pill bottle contained 15 pills, and two pills were tested and were positive for codeine.
[59] Det. Sgt. Knoll searched the F350 which was parked outside the shop building. In the centre console he located the following:
a. A replica .357 Magnum pellet gun; b. 329 pills that tested as oxycodone; c. A Ziplock bag containing 12 g. of a green substance that tested as fentanyl with benzodiazepine; d. A digital scale in working condition; e. An orange pill bottle containing 48.9 g. of a purple substance that tested as fentanyl with benzodiazepine; f. A black canvas pouch with a dime bag containing fentanyl, and a dime bag containing methamphetamine; and g. The Ontario health card, and other government photo identification, issued to the accused.
[60] A search of the Mazda located in the trunk, inside a green bag, two notebooks with names and amounts consistent with a debt list. In the drive door compartment, the police seized 19 g. of a substance that tested as fentanyl and benzodiazepine.
[61] Taking into account all of the relevant evidence and, in particular, the following:
a. The TDR data from which I infer that the accused regularly attended at the shop; b. Personal documents of the accused located in the shop, in the Ford F350, and in the Mazda; c. The observations of the accused driving the Mazda and the Ford F350; d. The documentation which indicated the accused was a general partner of BRE; and e. The extreme improbability of anyone leaving a total of 76 g. of fentanyl having a total value in the range of $15,380 to $23,070 in the Mazda and Ford F350 vehicles without making the accused, who was frequenting the premises and was a general partner in BRE, aware of the drugs,
I am satisfied beyond a reasonable doubt that the only reasonable inference is that the accused was aware of, and in the possession of, all of the drugs found in the camper trailer, the Mazda and Ford F350.
Kincardine – 1121 Bruce Road 23
[62] This is a two-storey farmhouse with two residential units. When the police arrived to search, Michael Phillips and Kailey Kwan were inside. On the second floor, there were three bedrooms, one of which had a padlock on it. There was a blue cooler in the locked room, and marked as exhibit five was a black notebook with the name Alex, and exhibit six, which was four dime bags. The cooler also had inside it an Ontario government document, Employment Training Income Report, with the “member” being the accused. The report was for the month of May, 2021. Another government form was dated June, 2021, and the “member” was the accused.
[63] On top of the bedside table, there was a pink insurance slip in the name of the accused, a business card with the name Sasha Ali, with telephone number 705-500-2180. There was also an invoice to BRE Tire and General Repair at the Kincardine address. There was also an Elections Canada document in the name of Kailey Kwan.
[64] In a white laundry basket, Det. Hamilton found 11 g of what tested as methamphetamine. In the plastic cooler, he found an orange prescription bottle with capsules, which tested as morphine. He also found an orange zip top bag with cocaine in the cooler.
[65] A photo from the bedroom shows packaging for the type of shaving case found on the passenger seat of the Ford Edge when the accused was arrested. This case contained various medications prescribed to the accused.
[66] Taking into account the the following:
a. The TDR data and surveillance demonstrated that the accused visited the residence with great frequency; b. The fact that the bedroom was locked; c. The bedroom contained personal documents of the accused; and d. Packaging was found in the bedroom which matched the shaving case in the Ford Edge being driven by the accused which had drugs prescribed for the accused,
I am satisfied beyond a reasonable doubt that the only reasonable inference is that the accused was in control of this room and aware of, and in possession of, the drugs seized from it.
[67] On the main floor, the police seized a .22 calibre Lakefield Mossberg rifle and a .22 Cooey rifle. They were found leaning against items in the corner of the room. While the accused frequently came to the house, the evidence indicates that Kailey Kwan and Michael Phillips lived there. The only thing linking these rifles to the accused is that they are .22 calibre rifles, and 15 .22 calibre rounds were found in the Barrie apartment of the accused.
[68] Counts five-ten all relate to the firearms and require proof beyond a reasonable doubt that the accused was knowingly in possession of the firearms. Given that the rifles were located on the main floor and not in the locked room and given that .22 calibre rifles are not uncommon in rural areas, the mere fact of .22 calibre ammunition being found in Barrie is not enough to satisfy me beyond a reasonable doubt that the accused was in possession, or joint possession, of these rifles. As such, I find the accused not guilty on counts five-ten in the indictment.
Conclusion
[69] Having found the accused to be in the possession of these drugs, the quantity and value of the drugs is such that the only reasonable inference is that the accused possessed these drugs for the purpose of trafficking.
[70] I find the accused guilty as charged:
a. Count one – possession of cocaine for the purpose of trafficking. (89.6 g. seized from the Ford Edge.) b. Count two – possession of methamphetamine for the purpose of trafficking. (731 g. seized from the Ford Edge, 205.5 g. from the camper trailer and Ford F350, and 11 g. from the Kincardine house.) c. Count three – possession of fentanyl for the purpose of trafficking. (1.9 g. seized from the Ford Edge, 16 g. from the Mazda, and 60.9 g. from the Ford F350.) d. Count four – possession of oxycodone for the purpose of trafficking. (329 pills seized from the Ford F350, and 147 pills from the camper trailer.) e. Count eleven – possession of ammunition while subject to a weapons prohibition. (15 .22 calibre rounds from the Barrie apartment.) f. Count twelve – possession of benzodiazepine for the purpose of trafficking. (3 vials seized from the Barrie apartment.)
[71] I find the accused not guilty on counts five-ten which related to the two rifles seized from the Kincardine house.
Sproat J. Released: December 16, 2024