ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
FAIAZ AHMED
Counsel: David Quayat, for the Crown Kim Schofield and Josephine Baldassi, for Mr. Ahmed
HEARD: March 4, 5, 6, 7, 8, 11, 2024; October 1, 2, 2024.
REASONS FOR JUDGMENT
J. R. PRESSER, J.
I. INTRODUCTION
1A large quantity of illegal drugs, a loaded prohibited firearm, and $40,000 in cash were hidden in a compartment in the trunk of Faiaz Ahmed’s car. The drugs, gun, and money were found and seized by police in the execution of a search warrant on June 16, 2021. Mr. Ahmed was charged with three counts of possession for the purpose of trafficking, one count in relation to each of cocaine, fentanyl, and methamphetamine; one count of possession of the proceeds of crime over $5000; and one count of possession of a loaded restricted or prohibited firearm.
2He was tried before me, sitting without a jury, on his plea of not guilty. The matter proceeded as a blended preliminary motion voir dire and trial. The parties agreed that the evidence on the preliminary motions would apply to the trial itself. I heard the evidence for the Crown and both parties’ arguments on the pre-trial motions on March 4, 5, 6, 7, 8 and 11, 2024. On June 11, 2024, I released my reasons for decision on the preliminary motions, dismissing Mr. Ahmed’s application for exclusion of evidence under s. 24(2) of the Charter and admitting the prosecution’s surveillance videos from Mr. Ahmed’s building: R. v. Ahmed, 2024 ONSC 3344, 2024 W.C.B. 1521. On October 1 and 2, 2024, the trial resumed with defence evidence and counsel’s closing arguments. On December 12, 2024, I gave my bottom-line decision on the trial proper, with written reasons for judgment to follow. These are those written reasons.
3The Crown’s case that Mr. Ahmed was in possession of the drugs, gun, and cash that were found in his car consists entirely of circumstantial evidence. The Crown position is that it can be inferred from this evidence that Mr. Ahmed had knowledge and control of the contraband found in his car. Accordingly, the Crown alleges that Mr. Ahmed is guilty of the offences charged, relating to the unlawful possession of these items.
4Mr. Ahmed testified. He acknowledged that the car in which the drugs were located was his, and that he drove it on the day in question. However, he maintained that he had no knowledge of the drugs, gun, or cash hidden in the compartment in the trunk of his car. In addition, the defence position was that there was other evidence in the case from which I could infer that Mr. Ahmed’s knowledge and control of the contraband were not the only reasonably plausible inferences.
5Given that Mr. Ahmed testified, the first issue for my determination is whether I believe his evidence or am left in a state of reasonable doubt by it. If so, he must be acquitted. If I do not believe Mr. Ahmed and am not left in reasonable doubt by his evidence, the issue for my determination is whether Mr. Ahmed’s guilt is the only reasonable inference available on the evidence that I do accept.
6I have very carefully reviewed and considered all of the evidence, the submissions of counsel, and the governing authorities. For the following reasons, I do not accept the evidence of Mr. Ahmed and am not left in reasonable doubt by it. I am satisfied that the only reasonably plausible inference available on all the evidence I do accept in this case is that Mr. Ahmed had knowledge and control of the drugs, gun, and cash that were hidden in his car. The Crown has proven Mr. Ahmed’s guilt beyond a reasonable doubt.
II. THE EVIDENCE
7I have summarized much of the Crown’s evidence in my reasons for decision on the preliminary motions in this case: Ahmed, at paras. 7-43. As a result, a more summary recitation will suffice here, with greater attention to summarizing the defence evidence that was received after the release of my reasons for decision on the preliminary motions.
8Shortly before noon on June 15, 2021, the complainant Autumn Osborn ran out of unit 526 at 85 Queens Wharf Road. Building surveillance videos depict her running out of the unit and into the stairwell. The videos also show that Mr. Ahmed also exited unit 526, shortly after the complainant. Mr. Ahmed walked down the fifth-floor hall, hailed the elevator and waited for it. He was carrying a black gym bag that said Fit4Less in yellow letters on it and a dark grey or black satchel.
9Ms. Osborn went to the security desk on the ground floor of the building, where she asked the security concierge, Mr. Fenil Gorjiya, to call 911 on her behalf. Mr. Gorjiya testified that she told him that her partner, Mr. Ahmed, was being abusive to her and that there was some fentanyl in the unit. These hearsay statements made by the complainant were not admitted for the truth of their content. Mr. Gorjiya called 911.
10Mr. Ahmed took the elevator down to the P1 level and exited to the garage. He is shown on surveillance videos approaching a silver SUV, getting into that vehicle with the black gym bag, and driving out of the parking garage.
11Shortly thereafter, Mr. Gorjiya saw the defendant talking to the complainant in the lobby. Mr. Gorjiya said that the defendant went back upstairs and several minutes later, the complainant followed.
12At 12:23pm, PCs Millar and Ridsdale arrived at 85 Queens Wharf Road in response to Mr. Gorjiya’s 911 call on behalf of the complainant. At 12:32pm, the two officers knocked on the door of unit 526. Mr. Ahmed and the complainant answered the door. PC Millar asked Mr. Ahmed to step into the hall with him, while PC Ridsdale remained in the unit with the complainant. The officers investigated the reasons for the 911 call, questioning Mr. Ahmed and the complainant separately. The complainant alleged that the defendant had physically assaulted her.
13At approximately 12:40pm, PC Majid arrived at unit 526. He entered and spoke with PC Ridsdale, who told him that he was going to arrest Mr. Ahmed for domestic assault. At 12:47pm, he did so.
14PC Majid asked the defendant whether he had identification, as part of the arrest process. The defendant said he did not, but that it was in his wallet, which was in his car. Upon further questioning, the defendant told police that his silver Hyundai Santa Fe SUV was not parked in his parking spot in the garage of the building. Rather, he said it was parked on the street nearby. PCs Millar and Ridsdale conducted a pat down search of the defendant and located his house and car keys. They held him for a bail hearing and took him back to the police station.
15PC Majid remained at unit 526 with the complainant, who was packing up her and her child’s possessions to leave the unit.
16The complainant’s child’s father, Marcus Nurse, arrived at unit 526 with his partner, two children, and a dog. They were there to pick up the complainant and Mr. Nurse’s son and take him back to Mr. Nurse’s residence in Guelph. Between 12:53pm and 1:14pm, different combinations of the complainant, Mr. Nurse, Mr. Nurse’s partner, and the three children were unattended by police in unit 526. PC Majid left them in the unit while he waited in the hall.
17At 1:14pm PC Majid stood in the doorway of unit 526 and had a conversation with the complainant, Mr. Nurse, and Mr. Nurse’s partner. They told PC Majid that they needed the complainant’s child’s car seat to drive the child to Guelph. The car seat was in the defendant’s car. Different options for obtaining a car seat were discussed. Ultimately, PC Majid volunteered to retrieve the defendant’s car keys from the police station when he took the complainant in to make a statement, find the defendant’s car, retrieve the car seat, and return with it to Mr. Nurse.
18At 1:18pm, PC Majid and the complainant departed for the police station. They left Mr. Nurse, Mr. Nurse’s partner, the children, and the dogs in unit 526. PC Majid told the building security concierge that they would be staying in the unit until his return.
19At 1:18:58pm, a surveillance video from the hall of the fifth floor at 85 Queens Wharf Road depicts Mr. Nurse’s partner leaving unit 526 carrying a large-screen TV from the unit, down the hall, and into the elevator. The defendant viewed this video and identified the TV as the one that had been in unit 526. He said he did not know the woman and had not authorized her to remove the TV from the unit. The defendant testified that he had rented the unit furnished and was responsible for returning it to the landlord with all the original furnishings and appliances present. The large-screen TV was missing from the unit when the lease ended. The defendant testified that he had to reimburse the landlord for the missing TV.
20At 1:36pm, PC Majid and the complainant arrived at the police station. There she met with DC Beaulac and gave a sworn videotaped statement in which she made a number of allegations against the defendant. These included that he was in possession of fentanyl in the unit, that he assaulted her when she confronted him about that, that the defendant loaded the fentanyl into a black gym bag, that she ran out of the unit to ask the security concierge to call 911 for her, and that she believed that the defendant had followed her out of the unit and took the Fit4Less gym bag down to his silver Hyundai SUV.
21The complainant did not testify at this trial. Her sworn videotaped statement was not tendered in evidence and was not admitted for the truth of its contents. I was made aware of the content of the complainant’s police statement on the Charter voir dire, where it was tendered as part of the narrative and in support of the grounds for the issuance of the warrant. I have included what I understand is an outline of the content of the complainant’s videotaped statement here, not because I am considering the statement for its truth. I am not. Rather, I include it here for its narrative purposes. Without considering the statement for the truth of its contents, I am outlining it because it helps explain why police ultimately sought and obtained surveillance videotapes from the hallways, elevators, and parking garage of 85 Queens Wharf Road.
22At approximately 1:54pm, surveillance videos show that an unknown Black man wearing sunglasses and a covid mask exited the fifth-floor elevator with Mr. Nurse and some children, walked down the hall and entered unit 526. Surveillance videos also show that at 1:56pm, Mr. Nurse’s partner and an unknown woman wearing sunglasses and a covid mask exited the elevator on the fifth-floor, walked down the hall, and entered unit 526. Neither the unknown man nor the unknown woman was carrying anything when they entered unit 526. At 2:04pm, the surveillance videos show that the unknown man and woman exited unit 526 and walked to the elevator. The man was carrying a tan or brown duffle bag. The defendant viewed this surveillance video and identified the tan duffle as a bag that belonged to him and that had been in his unit. At 2:06pm, the unknown man and woman got into the elevator.
23After leaving the complainant at the police station to give her videotaped statement, PC Majid retrieved the defendant’s keys from his property there. He then located the defendant’s car parked on a city street close to 85 Queens Wharf Road. At 2:08pm, PC Majid activated his body worn camera (“BWC”). He approached the defendant’s car and unlocked it using the defendant’s key fob. He opened the rear passenger door, removed the child car seat, closed the door, and locked the car using the key fob. PC Majid did not open any other car doors or the trunk of the car. I have previously found that this warrantless entry into the defendant’s car violated Mr. Ahmed’s rights under s. 8 of the Charter: Ahmed, at paras. 104 -110.
24At 2:15pm, surveillance videos reveal that Mr. Nurse, his partner, and the children exit unit 526 and walk to the elevator. One of the kids is riding a bicycle. Everyone else is carrying things, including a number of garbage bags that appear to contain items of some weight. One of the kids has what appears to be a vacuum hose around his neck. The defendant viewed this video and testified that he did not authorize Mr. Nurse or Mr. Nurse’s partner to remove the vacuum or any possessions from unit 526. He said that he had to reimburse his landlord for a vacuum cleaner that was missing from the apartment at the end of the lease.
25The surveillance videos show that at 2:17pm, Mr. Nurse walked from the fifth-floor elevator back down the hall and re-entered unit 526. At 2:18pm, the elevator arrived on the fifth floor. Mr. Nurse, his partner, and the kids entered the elevator. They were all carrying things, including a number of garbage bags that had weight to them. Mr. Nurse’s partner was carrying a package of two rolls of paper towel.
26PC Majid met Mr. Nurse in the lobby of 85 Queens Wharf Road at 2:23pm and gave him the child’s car seat. Mr. Nurse told PC Majid that he was concerned about his son being in harm’s way while living with the defendant and that the officer should pay close attention to what was on the couch in unit 526.
27At approximately 2:30pm, PC Majid re-entered unit 526, ostensibly to secure the unit which had been left unlocked and unattended. This was a warrantless entry, which I have previously found violated Mr. Ahmed’s rights under s. 8 of the Charter: Ahmed, at paras. 111 – 122. Mr. Nurse and his partner, who said they were looking for the complainant’s son’s toy trains, waited in the hall just outside the open door to the unit at PC Majid’s direction. In the unit, PC Majid observed what he believed to be drug packaging on a chair in the living room area, and a digital scale on the kitchen counter. He did not find the toy trains Mr. Nurse had been looking for.
28At some point between when PC Majid left unit 526 with the complainant at 1:18pm and when he returned to it at 2:30pm, several noticeable changes were made to the interior of the unit. A comparison of: (1) the BWC videos between when PCs Millar and Ridsdale first arrived on scene at 12:32pm and when PC Majid departed at 1:18pm, with (2) PC Majid’s BWC video from when he re-entered the unit at 2:30pm reveal the following changes:
- There was no drug packaging on the living room chair and no digital scale on the kitchen counter between when PCs Millar and Ridsdale arrived at 12:32pm and when PC Majid departed with the complainant at 1:18pm. Drug packaging and the digital scale were present in those places when PC Majid returned at 2:30 p.m;
- There was a large-screen TV in the living room area between when PCs Millar and Ridsdale arrived at 12:32pm and when PC Majid departed with the complainant at 1:18pm. The TV was gone when PC Majid returned at 2:30pm; and
- The unit was in a noticeably greater state of disarray when PC Majid returned at 2:30pm than it had been when police officers were there between 12:32pm and 1:18 pm.
29It is clear that the scene was tampered with or staged at some point between when PC Majid left with the complainant at 1:18pm and when he returned at 2:30 pm.
30At 2:32pm, PC Majid exited unit 526. He called Detective Mansour at the police station to advise him of the possible presence of drugs in the unit based on his observations. Det Mansour directed PC Majid to secure the unit and hold it for a search warrant. PC Majid waited in the hall outside unit 526 until he was relieved by other officers at 4:50pm.
31At 4:30pm the same day, PC Harding was tasked by Det Mansour with attending at 85 Queens Wharf to inquire about building surveillance videos and how to obtain them. Det Mansour told her to look at the videos to see if the defendant was carrying a Fit4Less gym bag to his vehicle, in relation to this investigation.
32PC Harding arrived at 85 Queens Wharf at 4:47pm on June 15, 2021. She spoke with security concierges who worked at the building. Mr. Gorjiya sought and obtained permission from his manager for the security concierges to share building surveillance videos with PC Harding. I have previously held that the police came to possess these videos lawfully and that as a result the defendant’s right to be free from unreasonable search and seizure was not violated: Ahmed, at paras. 160-169.
33A security concierge showed PC Harding surveillance videos from the fifth-floor hall, the elevator, and the parking garage at 85 Queens Wharf Road. She activated her BWC and recorded the segments of the videos that depicted the complainant and the defendant moving around the building, as outlined earlier in these reasons. PC Harding’s BWC recordings of the surveillance videos were shown to Mr. Gorjiya at trial. He identified the blonde woman running down the fifth-floor hallway from unit 526 to the stairway as the person who had asked him to call 911 on June 15, 2021. He identified the man carrying the black gym bag as the tenant in unit 526 of 85 Queens Wharf Road, the defendant.
34Police sought and obtained warrants to search the defendant’s car and residence. In doing so, they relied on information from the investigation including: information from Mr. Gorjiya’s 911 call, his statement to PCs Millar and Ridsdale, the complainant’s videotaped statement, the surveillance videos at the defendant’s building, PC Majid’s location of the vehicle, and the MTO and CPIC databases. I have previously found that there was sufficient credible and reliable evidence in the Information to Obtain a Search Warrant (“ITO”) as corrected on review, to permit the issuing justice to find reasonable and probable grounds to believe that a drug offence was committed, and that evidence of that offence would be found in the defendant’s residence and vehicle: Ahmed, at paras. 205-206.
35Mr. Ahmed’s vehicle was secured by police at approximately 4:50pm on June 15, 2021. They executed the search warrant on the vehicle June 16, 2021, at 1:19 am. They entered the vehicle using the keys that were seized from the defendant at the time of his arrest. By Agreed Statement of Fact, the defendant admitted that police found and seized the following items from his car:
- Registration and insurance documents for the vehicle in the defendant’s name;
- A black Lacoste satchel containing identification in the defendant’s name, including an Ontario driver’s licence, an Ontario health card, several bank and credit cards, and $680 in Canadian currency;
- A green Zara backpack and a black Fit4Less gym bag in a compartment in the trunk of the car. Police opened this compartment using a pry bar;
- Inside the green Zara backpack and the black Fit4Less bag: 5.32 kilograms of fentanyl; 791.8 grams of cocaine; 740.59 grams of crystal methamphetamine; 5.74 grams of crack cocaine;
- Inside the green Zara backpack: a black .40 calibre handgun, which was loaded with seven rounds of ammunition; and
- Inside the green Zara backpack: $40,000 in Canadian currency, in four bundles of $10,000 each.
36By Agreed Statement of Fact, the defendant admitted that at all times relevant to this case, the silver Hyundai Santa Fe was registered to and insured by him. He admitted that the value of the fentanyl was between $239,400 and $855,000; the value of the cocaine was between $53,732 and $87,098; the value of the crystal meth was between $14,457 and $59,247; and the value of the crack cocaine was between $459 and $1,434. He admitted that the quantity of the drugs was such that its possession would have been for the purpose of trafficking. He further admitted that the gun met the Criminal Code definition of a prohibited firearm, and that he was not the holder of any permit or authorizations required by law to own or possess a firearm.
37Police completed the search of the defendant’s vehicle at 1:46am on June 16, 2021. At 3:19am, the defendant was arrested on drug and firearms charges arising from the execution of the search warrant on his car. He was still detained in custody on the domestic assault charge at the time.
38The search of the defendant’s residence yielded nothing of evidentiary significance.
39There was no DNA or fingerprint evidence linking the defendant to the drugs, gun, or cash.
40On June 17, 2021, a police officer attended at 85 Queens Wharf Road to seize a copy of the building’s relevant surveillance videos. That video was corrupted. The only available evidence of the surveillance videos was PC Harding’s BWC copy of the videos. I have previously held that the Crown satisfied the tests for admission of electronic documents under the Canada Evidence Act. The Crown authenticated the BWC videos and established that they met the requirements of the best evidence rule: Ahmed, at para. 244. Accordingly, the BWC video copies of the surveillance videos were admissible and admitted at trial: Ahmed, at paras. 243-270.
41The defendant testified that he came to Canada in 2012 from Bangladesh. He had no criminal record. He attended York University for three years, completing a Bachelor’s Degree in business economics in 2015. After graduation, he worked in a number of different jobs. In 2018, after being laid off from a sales job at Bell Canada, the defendant started a mobile car detailing business and a catering business. In 2020, he registered these businesses as FZ Cleaning and Detailing and FZ Catering, respectively. These businesses were the defendant’s only source of income. He testified that in 2021 he was barely making enough money from his businesses and was taking what I understood to be government-funded covid payments to supplement his income.
42The defendant testified that he met the complainant in late 2018 or early 2019 through Leolist, a website where buyers and sellers of sexual services can connect. He explained that he hired the complainant as a sex worker because he wanted to lose his virginity. She was the first and only person with whom he had ever engaged in sexual activity. The defendant testified that he met the complainant once or twice a month for 30 minutes at a time, in his basement apartment in Mississauga, and paid her for sexual services. On one occasion, the defendant did not have cash to pay the complainant and had to e-transfer payment to her. He had originally known her as Wendy. But when he had to e-transfer payment to her, he learned that her real name was Autumn.
43The defendant testified that after his arrest on these charges, he searched Leolist and found that the complainant was still advertising her services on that website. The defence filed a number of screenshots of ads from Leolist containing photographs of the person advertising her sexual services, collected on August 10, 2021, that the defendant identified as the complainant.
44The defendant explained that over time, he and the complainant became closer. She started extending her time with him until she was staying overnight. By mid to late 2019, the complainant would come “hang out” with him and not take payment from him. The defendant said he felt special and thought maybe he and the complainant were in a relationship. Eventually, the complainant introduced the defendant to her son.
45However, according to the defendant, he came to see that the complainant was using him. He said she never had a place of her own. She would move around. She would stay with her parents and used the defendant to stay at his place for a night or two. The defendant said the complainant asked him to pick her up and drop her off. In cross-examination, he said that he believed he was driving the complainant to and from her appointments in her capacity as an escort. He said he did a lot for her. He said the complainant also asked him to babysit her son. At times, according to the defendant, the complainant would leave her son with him when she went to appointments with clients. This would happen once or twice a week, typically for a couple of hours at a time. The defendant said that he loved the complainant’s son. He did his best to look after the complainant’s son when the boy was in his care. He did not leave the boy unattended.
46The defendant testified that in 2019-2020, as his relationship with the complainant was developing, he had two cars. He explained that he really loves cars, and always had a summer car. He agreed that he is a “car guy.” In 2019-2020, he had a 12-year-old Infinity G37 that he got a really good deal on. He also had a Hyundai Santa Fe SUV, the car in which the drugs, gun, and cash that are the subject of these charges were found. The defendant said that the Hyundai SUV came with two key fobs. He said he had one and the complainant had the other. In cross-examination, the defendant maintained that the complainant had his car key on the date of this incident. He could not explain why, if the complainant had his car key, PC Majid had to go to the police station to get the key to open the car and retrieve the complainant’s child’s car seat.
47The defendant said that the complainant used the Hyundai SUV for her appointments with her clients and to drive her son to school. She would typically use it for a couple of hours, but sometimes she would keep it overnight to drive her son to his father’s home in Guelph and she would stay overnight there.
48From 2020 into 2021, the defendant said that his relationship with the complainant was not the best as it evolved. He testified that she would get into arguments with him and would get very physical with him. He said it would “get crazy.” The defendant said he would be at work, unable to answer the complainant’s phone calls, and she would get very angry. He testified that as he got to know the complainant better, it became an abusive relationship for him. He said that the complainant would push him, slap him, and threaten him. The defendant testified that on many occasions the complainant trashed his apartment and broke his cars. On one specific occasion, according to the defendant, the complainant broke everything in his apartment. His landlady had to get involved. The defendant testified that the landlady of his Mississauga basement apartment barred the complainant from attending there, warning that if she ever saw the complainant there again, the defendant would have to move out. The defendant did not call the police on the occasion in which he said the complainant trashed his apartment. He did call the police on one occasion, possibly in 2019, when he said the complainant stole his licence plates and was driving around with them. That was the only time he ever called the police about an incident with the complainant.
49In 2021, in the period just before these alleged offences, the defendant said that he and the complainant were not seeing each other much. This was because he could not bring her to his apartment, and the complainant did not have her own place either. They were mostly just texting each other. The defendant said that the complainant would sometimes text him to ask if she could borrow his car. In cross-examination, he said the complainant borrowed his car two, three, or four times between when she trashed his apartment and June of 2021, for a couple of hours, overnight, or for a couple of days.
50On June 15, 2021, the date of the alleged offences, the defendant was living in unit 526 of 85 Queens Wharf Road. He said it was a three-month short-term rental from April to June that he was sharing with a friend. The friend was Kaushal Das, who usually lived in British Columbia, but enjoyed Toronto. The defendant said that he wanted to explore downtown Toronto while living at Queens Wharf. He said he had always wanted to live downtown. It was on his bucket list. But he couldn’t afford to rent in downtown Toronto by himself. The monthly rent for the unit was $2000, of which Mr. Das paid $1250 and the defendant paid $750. Mr. Das slept in the bigger bedroom and the defendant slept in the den. The defendant was also paying $600 per month for his basement apartment at the time.
51In early June of 2021, according to the defendant, the complainant called him and told him that she was in trouble. She asked whether she and her son could come stay with him for two or three days. She asked him to do it for her son because she knew the defendant had a soft spot for the boy. The defendant agreed. In cross-examination, the defendant said that he allowed the complainant to stay with him even though she was abusive to him and had previously trashed his apartment, because she said she was in trouble. He said the complainant begged him to let her and her son stay with him for the son’s sake. The defendant maintained that he allowed the complainant to stay with him notwithstanding that she was abusive and had trashed his place in the past because he had a soft spot for her. He said she was his first love.
52The defendant said the complainant brought many items with her to his residence at Queens Wharf. These items included suitcases, garbage bags, and her son’s toys. She and her son ended up staying with the defendant in unit 526 for two weeks. The defendant said that for the first couple of days the complainant and her son were staying with him it was “ok.” He was happy to see the boy. But after that, according to the defendant, he was reminded of how the complainant treated him. He had to do everything, such as clean the home and make the beds. He would go to work, and when he returned, there would be no food for the complainant’s son. The defendant said the complainant would stay in the unit, smoke weed, watch movies, and take his Hyundai SUV to go to her appointments. The defendant also used the Hyundai for work. He said that he and the complainant worked around each other regarding the use of the car. The defendant did not do the cooking for his catering business. Instead, the food was cooked in Scarborough, he would pick it up, package it at home, and then deliver it to his customers. The defendant said he typically had one to two catering jobs a week and one to two mobile car detailing jobs a week.
53On the morning of June 15, 2021, the date of the alleged offences, the defendant said he asked the complainant how long she intended to stay at Queens Wharf. His short-term lease ended in two weeks and he wanted the complainant to make a decision about where she was going. The defendant testified that as soon as he raised this with the complainant, her tone changed. He said she “got crazy” and “very physical,” that she was throwing things at him, and that she said “you don’t love me, you don’t do anything for me.” The defendant said the complainant started pushing him. He said she threatened to send him to jail. According to the defendant, the complainant said she had sent her child’s father to jail and that she could do the same to him. He denied that he got physical with the complainant.
54The defendant said that in the past when he and the complainant started arguing, he would just leave and come back hours later after the complainant had calmed down. He said that is what he decided to do here. The defendant said he wanted to leave to de-escalate the situation and allow the complainant to calm down. He said she had threatened him, and he was worried that she would take the car or break the car. The defendant said he thought he should take the car away so the complainant could not cause damage to it. At the time, the Hyundai SUV was the most valuable thing he owned. So the defendant said he quickly grabbed his essentials, such as a pair of shoes, a jacket, and some other items, and put them in a duffle bag. The defendant said the duffle bag was only about half full. He also grabbed his fanny pack containing his ID, some cash, some cannabis, and his car keys. He left the apartment. In cross-examination, the defendant could not recall whether he or the complainant left the unit first. He thought he left first. He maintained that he was in such a panicked state at the time that he could not recall exactly what happened. He said the situation brought back past experiences and memories that were traumatizing for him.
55In cross-examination, the Crown played the surveillance video of the fifth-floor hall that showed the complainant and the defendant leaving unit 526 shortly before noon on June 15, 2021. When confronted with the fact that the complainant left the unit first, the defendant explained that she was initially trying to prevent him from leaving. Then he said they both left the unit at the same time, but she was running because she was trying to get to the car first. The defendant maintained that he was afraid of what the complainant would do to his car. However, he acknowledged that the complainant went to the security concierge to ask them to call 911, and that she never actually went to the car. He agreed in cross-examination that at no point did the complainant try to prevent him from getting to his car. He maintained that she had threatened to go to his car and break it.
56When asked why he was walking so casually down the hall, the defendant explained that he had a lot of things going on in his head, but that he was just walking down the hall. He acknowledged that he had left the complainant’s son unattended in his residence when he left. He explained that although he loved and cared for the complainant’s son, he did not think about leaving the child alone in the unit in the moment. The defendant said he was only worried about himself and his car. He denied that he was leaving his residence because the complainant said she would call the police. He denied that he was leaving to take his drugs and gun out of the building. He denied that he was worried about the car because of the large quantity of valuable drugs and the gun in the car.
57The defendant viewed other surveillance videos as well. He identified himself standing on the fifth floor, waiting for the elevator to arrive. He said he was going to his car, which was parked in the parking space that came with the unit. The defendant explained that the first time the elevator arrived he did not get in. He said that this was because the incident had occurred during the covid pandemic, when building rules limited the number of people allowed in each elevator at any given time. As a result, he had to wait for the next elevator. In cross-examination, the defendant maintained that he patiently waited for the elevator because he did not know how to take the stairs to get to the underground parking garage in the building. Two minutes later, the elevator arrived, the defendant entered and rode it down to the parking garage, where he walked to his Hyundai SUV. He unlocked the car, placed his duffle and fanny pack on the front passenger floor, and drove away. The defendant said he never accessed the trunk or the back doors of the car that day.
58The defendant said his plan was to drive to his basement apartment in Mississauga. He was driving to Spadina to get on the QEW. And then said he realized that he should go back to the unit. The complainant had trashed his apartment in the past, and if she did that in unit 526, he would be solely liable for the damage. So the defendant said he turned around and went back. He said he did not want to park in the building because the complainant knew where his parking spot was located and had a key. He found street parking. In cross-examination, the defendant denied that he wanted to hide his car because he knew there was $1 million worth of drugs and a gun in the car. He said he left his fanny pack and the duffle bag on the front passenger floor of the car.
59The defendant agreed that the location in which PC Majid found his car, as depicted in the officer’s BWC, was where he had parked the car. He could not recall whether he locked the car or left it unlocked. He said he was in a panic state to get back to the unit. He entered the building through the front lobby. He saw the complainant there. He asked her what she was doing there and where her son was. She told him that the boy was upstairs. The defendant testified that he told the complainant that he was going upstairs and asked whether she wanted to come. She said she would come up soon. The defendant went back up to unit 526, and approximately five minutes later, the complainant came back to the unit as well. He said she was calmer when she returned. She was gathering and organizing her things. The defendant said he made a peanut butter sandwich for the complainant’s son.
60The defendant testified in-chief that he and the complainant were silent during this period. In cross-examination, he said he could not remember whether he told the complainant where he had parked the car. He said he might have, notwithstanding that he was worried about her trashing his car. The defendant agreed that he had never spoken with Mr. Nurse, Mr. Nurse’s partner, or the two unknown people who were shown in surveillance videos going in and out of his residence. He agreed that he did not tell any of them where his car was parked. However, the defendant said that he could have told the complainant where his car was located, and the other people in and out of his residence were connected to her.
61Five to ten minutes after the complainant returned to the unit, PCs Millar and Ridsdale knocked on the door.
62Defence counsel asked the defendant to review the photos that were taken during the execution of the search warrant on his car. In cross-examination, the defendant maintained that even though he was a “car guy” he did not know there was a hidden compartment in the trunk of his car. He insisted that he learned about the compartment for the first time when he saw the disclosure associated with this case.
63The defendant identified his fanny pack from the search warrant photos but maintained that he had not left it on the backseat of the car. The defendant identified three jackets depicted in photos of the backseat of the car as jackets he had packed in the duffle bag, which he said he had left on the floor of the front passenger side of the car. He explained that he packed jackets even though it was June because he comes from a hot country and finds it chilly in Canada, so he always bundles up.
64When shown the photo of the black Fit4Less bag, the defendant said he recognized the bag and believed it was the bag he had used to take his clothing to the car. However, he testified that the bag was in the trunk of his car in the photo, and he had not put his bag in the trunk. He also testified that the bag looked quite full, but that he had only filled up half of the bag with some clothes and shoes. The defendant testified that he did not recognize the photographs of the rest of the bags that were found in his car, and that he did not have knowledge of any of the drugs, the gun, or the cash that were found in the compartment in the trunk of his car.
65The defendant said that the last time he had used the Hyundai SUV before the day of his arrest was two days earlier. The complainant had used it, according to the defendant, the night before – June 14, 2021 – to go to a client meeting. The defendant said she was away for a couple of hours, that she had left him with her child, and that she returned at midnight or 1:00am.
66The defence filed the criminal record of the complainant, which contains a number of youth court convictions. These include a theft conviction and a number of assault convictions, fail to comply with recognizance convictions, and fail to attend court convictions. The most recent of these was in 2014, some seven years before the events at issue in this case.
III. POSITIONS OF THE PARTIES
67The position of the Crown is that it has proven Mr. Ahmed’s guilt beyond a reasonable doubt. The Crown argues that I should not believe Mr. Ahmed’s evidence and not be left in reasonable doubt by it. The Crown argues that there is sufficient evidence to establish beyond a reasonable doubt that Mr. Ahmed had knowledge and control of the illegal items in his car and that his guilt is the only reasonably plausible inference available on all the evidence.
68The position of the defence is that I should accept Mr. Ahmed’s evidence that he had no knowledge of the compartment in the trunk of his car, nor knowledge of the drugs, gun, and cash within it. The defence submits that on all the evidence, there are reasonably plausible inferences inconsistent with guilt. In particular, the defence points to evidence that it says grounds a plausible inference that someone other than Mr. Ahmed had access to his car, could have installed the hidden compartment without his knowledge, and placed the contraband within it. This includes:
- Evidence demonstrating that a number of people accessed Mr. Ahmed’s residence after he was arrested, and appear to have stolen items from it;
- Evidence demonstrating that someone staged the residence to incriminate Mr. Ahmed by placing drug packaging and a digital scale in visible places in the unit after both Mr. Ahmed and the complainant left the unit; and
- Evidence from Mr. Ahmed that the complainant had used his vehicle on many occasions in the past, including the night before these events, sometimes for as long as overnight, that she had a key to the vehicle, and that she may have known or overheard where the vehicle was located on the street that day.
69The defence position is that it is reasonably possible that the complainant or someone associated with her installed the hidden compartment in his car without his knowledge or consent. Mr. Ahmed submits that it is also reasonably possible that whoever staged his residence to incriminate him – likely one of the people who was in his residence after his arrest, associated with the complainant – also placed the drugs, gun, and cash in his car without his knowledge or consent, either to frame him or to temporarily hide the items there and retrieve them later. Accordingly, the defence submits that there are reasonably plausible inferences inconsistent with guilt and Mr. Ahmed must be acquitted.
IV. ANALYSIS
A. Applicable Legal Principles
(1) Burden and Standard of Proof
70Mr. Ahmed is presumed innocent. He may only be convicted if the Crown proves all essential elements of the offences charged beyond a reasonable doubt. The burden of proving the essential elements of the offences rests with the Crown and never shifts. Mr. Ahmed does not have a burden of proving or disproving anything. The standard of proof beyond a reasonable doubt does not require absolute certainty, but it is a significant and high standard of proof for the Crown to meet. It “falls much closer to absolute certainty than to proof on a balance of probabilities”: R v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242.
(2) Credibility and the Burden of Proof
71A well-established approach to assessing the credibility of a defendant and its relationship to the burden of proof derives from the Supreme Court’s decision in R. v. W.D., 1991 CanLII 93 (SCC), [1991] 1 SCR 742. That case stands for the proposition that defence evidence must be assessed in the context of the evidence as a whole, not in insolation, in this way: (i) if the trier of fact believes the evidence of the defendant, they must acquit; (ii) if the trier of fact does not believe the evidence of the defendant but is left in reasonable doubt by it, they must acquit; and (iii) even if not left in reasonable doubt by the evidence of the defendant, the trier must determine whether, on the whole of the evidence they do accept, they are convinced of the guilt of the defendant beyond a reasonable doubt. In other words, “a trier of fact has three options with respect to exculpatory evidence: he or she can reject it, accept it, or be unsure whether the evidence is true or false”: R. v. A.A., 2021 ONSC 3210, 173 W.C.B. (2d) 318, at para. 29, citing R v. L.K., 2020 ONCA 262, at paras. 18-19. This formulation is consistent with the presumption of innocence. It seeks to ensure that the burden of proving the charge remains on the Crown and never shifts, and that the standard to which the Crown must prove the charge is proof beyond a reasonable doubt and nothing less. A defendant can only be convicted if the trier of fact is satisfied that the exculpatory version of events is false and is also satisfied that the inculpatory version of events is true.
(3) Circumstantial Evidence of Possession
72To prove possession, the Crown must prove that Mr. Ahmed had both knowledge and control of the drugs, gun, and cash: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 15; R. v. Bains, 2015 ONCA 677, 328 C.C.C. (3d) 149 at para. 155. Because Mr. Ahmed was not in personal possession of the contraband at the time it was found by police, the Crown is required to establish that possession can be attributed to him because he was in constructive possession under s. 4(3)(a)(ii) of the Criminal Code: R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 101.
73The elements required to establish possession can be proven by direct evidence or inferred from circumstantial evidence: R. v. Pham (2005), 2005 CanLII 44671 (ON CA), 77 OR (3d) 401 (C.A.), at paras. 17-18.
74In R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, the Supreme Court gave guidance as to the approach to be taken in cases that rely heavily on circumstantial evidence. The Court directed that “an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits”: Villaroman, at para. 30. Villaroman went on to hold that reasonable alternative inferences to guilt need not be based on proven facts. They need only be plausible based on logic and experience as applied to the evidence or the absence of evidence. Alternative theories will not be reasonably plausible if they are merely based on speculation or irrational or fanciful conjecture: Villaroman, at paras. 35-37. Ultimately, the trier of fact must “determine whether any proposed alternative way of looking at the case as a whole is reasonable enough to raise a doubt about the guilt of the accused”: Lights, at para. 39, citing Villaroman, at para. 56.
75Mr. Ahmed testified that he did not have knowledge of the drugs, gun, or cash in the compartment in his car. The defence pointed to evidence that gave rise to what it argued is the reasonably plausible inference that whoever staged the scene in the defendant’s residence also placed the contraband in his car. The Crown called evidence that tied Mr. Ahmed to the Fit4Less bag containing contraband and the car in which it was located. If, considered as a whole, the evidence gives rise to reasonable inferences that the defendant did not have knowledge and control, then he will be entitled to an acquittal. But if the evidence supports the inference that the defendant had knowledge of the drugs, gun, and cash and control over it, and to no other reasonable inference inconsistent with knowledge and control, then the Crown will have succeeded in proving that Mr. Ahmed is guilty of possession of the illegal items.
76I turn now to assess the evidence, applying these legal principles.
B. Assessing the Evidence of Mr. Ahmed
77I have carefully assessed Mr. Ahmed’s evidence, against the backdrop of the evidence as a whole. As I will explain, I do not believe Mr. Ahmed’s exculpatory evidence, nor am I left in a reasonable doubt by it.
78The defendant’s evidence about the interaction between him and the complainant in unit 526 shortly before noon on June 15, 2021 is contradicted by what is shown on the surveillance videos and by the complainant’s subsequent actions. The video shows that the complainant ran out of unit 526 and straight into the stairwell. She was the first one out of the unit, exiting before the defendant. The complainant is moving very quickly in this video. She appears distressed and frightened.
79The defendant exits unit 526 shortly after the complainant. He testified that he decided to leave his residence to let the complainant cool down. He also testified that he was leaving quickly, in a panicked state, to prevent the complainant from damaging or taking his car. He said that he was so worried about his car, and in such a panic to get to it, that he did not even think about the fact that he was leaving the complainant’s young son alone in the unit. This was a child the defendant said he loved, did his best to care for, and never abandoned when the child was in his care. The defendant maintained that he was so worried in the moment that he could only think of himself and his car; he did not think about the fact that he was leaving the child unattended.
80Yet he testified that he took the time to pack some of his essentials, including clothing, shoes, jackets, ID, and cannabis, into the Fit4Less bag and his fanny pack. If the defendant had really been in such a panic to prevent the complainant from damaging his car, he would not have taken the time to pack up a bag with so many different things, many of which he would not need if he only planned to be away for the few hours he said it typically took the complainant to calm down after an argument.
81Common sense and experience suggest that if the defendant had the presence of mind to think about packing several jackets, shoes, ID, cannabis, and other things to provide for himself away from his residence, he would have had the presence of mind to think about the well-being of a child he loved and whose care he had been involved in. This inconsistency between the defendant’s evidence as to his state of panic, his care in packing, and his lack of care for the child, suggests that the defendant was not in a state of panic when he left the unit and that he lied when he said he cared about the child. In the alternative, the defendant’s actions may suggest that he was in a state of panic and did care for the child but was not packing clothing and personal effects. Rather that he was packing something that he needed to get out of the unit so urgently that it superseded his concern for the child’s needs. Either the defendant was not telling the truth when he said he was in a state of panic that overcame his awareness of the child, or he was not telling the truth when he said it was clothing and personal effects that he packed into the Fit4Less bag to take away with him.
82The defendant’s evidence was that the complainant assaulted and threatened him, that he was traumatized and in a state of panic, and that he was in a hurry to get to his car before the complainant did. He testified that he was trying to prevent the complainant from damaging or taking his car. The video, however, depicts that unlike the complainant, the defendant appears to be in no rush whatsoever. It shows that he exited unit 526 shortly after the complainant. He appears calm, and in no apparent distress. He casually walks down the hall to the elevator, presses the button, waits for the elevator, lets the first elevator go because of covid protocols, and waits approximately two minutes for another elevator to arrive before getting on.
83The surveillance videos and Mr. Gorjiya’s evidence reveal that the complainant never went anywhere near the car on that day. The complainant went directly from unit 526 to the stairs and then to the security desk where she asked Mr. Gorjiya to call 911 for her. Even after 911 was called on her behalf, the complainant did not go down to the parking garage or try to find the defendant’s car. She went back to unit 526.
84The defendant knew that the complainant had left unit 526 before he did, although he initially testified in-chief that he thought he had left first. In cross-examination, when he was shown the video, the defendant said that he and the complainant left the unit at the same time but that she was running because she was trying to get to the car first. In the moment, and also when he testified, the defendant would have known that if the complainant was going to the car to take it or damage it, she would have gotten to it first. If the complainant intended to damage or take his car and had a car key, as he testified she did, she could have done so or started to do so before he got to the car. Nothing prevented the complainant from taking or damaging the car. She had a lead of several minutes on the defendant. And yet, she did not go to the parking garage and take or damage the car. She went quickly and directly to the security desk to ask the security concierge to call 911 for her.
85If the defendant had genuinely been concerned that the complainant would take or damage his car, what he described as his most valuable asset at the time, he would have been in more of a rush to get to the car before she did. The defendant testified that he did not know how to take the stairs to the parking garage. Effectively, the defendant’s explanation for his long wait at the elevator was that he had no alternative way to get to the car faster. I suppose it is possible that the defendant did not know how to take the stairs to the parking garage. He may never have had occasion to take the stairs from the fifth floor to the parking garage in the two and a half months he had been living in the building. However, it seems a matter of common sense that the stairs from the fifth floor would lead down to the parking garage. Or at least to the lobby where there would be another staircase down to the garage.
86But even if I take the defendant’s evidence that he did not know how to take the stairs down to the garage at face value, common sense and experience suggest that a person who was truly in a state of traumatized panic and urgently needed to get to his car would have taken every step possible to get there more quickly. A person who was truly in a panicked rush would have tried to get there faster, and would not have waited calmly for such a long time. If the defendant really wanted to get to his car urgently, he would have run down the stairs to the lobby and asked the security concierge how to get to the parking garage from the lobby via the stairs. Or he would have pushed onto the first elevator despite covid protocols, apologizing and pleading emergency to others on the elevator. Or he would have called down to security and asked them to go to his car to prevent the complainant from taking it or damaging it, and said that he would meet them down there as soon as he could get there. Or he would have called the police to ask for immediate assistance as he made his way down to the garage. He would not have simply and apparently calmly waited for the elevator, allowed one elevator to pass, until he could get on the next one. But the defendant did none of these things. He calmly waited for the elevator, allowed one elevator to pass, and finally, minutes later, rode another elevator to the garage. I conclude that the defendant was not truly worried that the complainant was about to take or damage his car. He lied to the court when he said he was. And he lied to the court when he identified this as the reason he went to his car.
87In assessing the defendant’s credibility by comparing his testimony to the fifth-floor hall video, I have been mindful of the fact that there is no hard and fast rule as to how people who are the victims of trauma like sexual or even domestic assault will behave: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275 at para. 65. I am well aware that it is an error of law to make assumptions about how a victim of sexual assault should or will react to an assault: R. v. A.R.D., 2017 ABCA 237, [2017] A.W.L.D. 4602, at para. 50, aff’d at R v A.R.J.D., 2018 SCC 6, [2018] 1 S.C.R. 218; R. v. A.B.A., 2019 ONCA 124, 372 C.C.C. (3d) 301. I consider that this rule of law applies equally to the context of intimate partner violence.
88Having reviewed the video, it appears to me that the complainant was terrified and in distress when she ran out of the unit and down the hall. The defendant appears cool, calm, and collected. It might be tempting to conclude from what is depicted on the video that the complainant must have been the victim of threats and/or violence; that the defendant must have been the aggressor or perpetrator of threats and/or violence; and that the defendant must have been lying when he testified that the complainant threatened and assaulted him. However, I have explicitly instructed myself against coming to that conclusion. I accept that, as a matter of law, I may not make assumptions about how a victim of trauma like intimate partner violence will react. It is possible that the defendant appeared calm despite having been threatened or assaulted, because there is no hard and fast rule about how victims of trauma will respond.
89My conclusion that the fifth-floor surveillance video demonstrates that the defendant lied does not arise from assumptions about how victims behave. Rather, my conclusion that the video puts the lie to the defendant’s evidence arises from the inconsistencies between: (1) the defendant’s testimony and (2) his and the complainant’s behaviour as shown in the video and as testified to by Mr. Gorjiya, as described earlier. In other words, I have found the defendant’s evidence defies belief because he testified he was panicked and in an urgent rush, but his behaviour as shown in the video demonstrates that he was not. Further, while he testified that the complainant was trying to get to his car, the videos and Mr. Gorjiya’s evidence demonstrate that she did not attempt to access the car despite leaving the unit first and having the opportunity to get to the car before the defendant.
90The defendant’s and the complainant’s actual behaviour at the time, as evidenced by the video and Mr. Gorjiya’s evidence, demonstrate that the defendant was not responding to a perceived or actual imminent threat to his vehicle. He lied when he testified that he was. He lied when he said that his reason for going to his vehicle was to protect it against threats from the complainant.
91The more likely explanation for the defendant’s behaviour is that the complainant threatened to call the police, and the defendant wanted to get contraband out of the unit and out of the building before the police arrived. Indeed, the defendant testified that the complainant threatened to send him to jail, as he testified she said she had done to her child’s father. The defendant would have known that it would take at least a few minutes for the complainant to get to the security desk, for 911 to be called, and for the police to arrive. This would explain why he took the time to pack a bag and why he abandoned the complainant’s child. He needed to get illegal items out of the unit before the police arrived. This was urgent enough to force the defendant to leave the child unattended, but not so immediate that he had to hurry or run down the stairs.
92I also find the defendant’s evidence that he was not aware of the hidden compartment in the trunk of his vehicle to be unbelievable. The defendant said that he loves cars. He agreed that he is a “car guy.” In fact, he operated a mobile car detailing business. He explained that the Hyundai SUV, in which police found the hidden trunk compartment, was the primary vehicle he drove for work. He said his other car was too small for most of his jobs. His catering jobs required him to drive to Scarborough, pick up the food from where it was cooked, bring it back to his home, package it, and then deliver it to his customers. I infer that the defendant needed the space in the trunk of the Hyundai SUV for the food he picked up and delivered, as well as for the equipment he needed to take with him to and from mobile car detailing jobs.
93The defendant’s evidence was that he did, on average, one to two catering jobs per week, and one to two car detailing jobs per week. This means that the defendant would have accessed the trunk of the Hyundai multiple times a week. Each catering job would have required him to access the trunk four times: once when putting the cooked food into the trunk to take back to his residence, a second time to unload it at his residence, a third time when he put it back in the trunk after he packaged it, and a fourth time when he unloaded it for delivery to the customer. According to the defendant, he would have done this process of accessing the trunk four times for a catering job once or twice a week on average.
94Mobile car detailing jobs would likely have required him to access the trunk at least three times: once when he loaded equipment into the trunk, a second time when he arrived at a job, and a third time when he loaded the equipment back into his car after a job. I infer that the defendant did not generally keep the car detailing equipment in the Hyundai at all times because it was not found in the car on execution of the search warrant. It may also be that the defendant had to access the trunk on multiple occasions while he was doing mobile car detailing so as to access the equipment, cleaning supplies, and materials that were required for the particular job. According to the defendant, he would have done this process of accessing the trunk at least three times for a mobile car detailing job once or twice a week on average.
95The defendant would have accessed the trunk of his car multiple times every week in the course of his work.
96I do not believe that a self-professed “car guy,” one who operated a car detailing business, could have a compartment in the trunk of his car that he did not know about. Particularly not when he was using the car and accessing its trunk so many times a week for work. The very nature of a car detailing business is that it focusses on identifying and correcting faults or flaws in cars. It is work that necessarily requires attention to detail when it comes to cars. I do not believe that a lover of cars who was in the business of detailing them could have missed or overlooked the presence of a compartment installed in the trunk of his own car. This was a car the defendant said was his most valuable asset. He would have the court believe that he cared about this car so much that he would abandon a child he said he loved in order to protect it. It is simply not believable that this defendant could have been ignorant of a compartment installed in the trunk of this car in these circumstances.
97The defendant’s evidence was that the complainant had access to and used the Hyundai SUV on multiple occasions, sometimes for an hour or two to go to her work appointments, and sometimes overnight or for a couple of days. This was evidence, if accepted, from which I could infer that the complainant or her associates had opportunities to install the compartment without the defendant’s knowledge. However, against the backdrop of all the evidence, even if I were to accept that the complainant had sole use of the car for periods of time, I still would not accept that she or people associated with her had opportunities to install the compartment without the defendant’s knowledge. Given the frequency with which the defendant used his car and accessed the trunk, the complainant or her associates would have had to install the compartment shortly before it was discovered by the police in order for it to escape the defendant’s notice.
98The defendant’s evidence was that he had last driven the car two days before he was charged, on June 13, 2021. He said that the complainant had used it the night before, on June 14, 2021, for a couple of hours to go to a client meeting, and that she returned to his residence at midnight or 1:00am. There was no evidence as to whether the defendant used the car for work when he last drove it on June 13, 2021. As a result, it is possible that he used it for personal reasons, and did not access the trunk. However, I consider that unlikely. The defendant had two to four jobs in a week on average between his two business. It is therefore unlikely that he would have gone from June 12th to June 15th with no job-related reason for accessing the trunk of his car. Even if he did drive the car on June 13th for a non-work-related reason, many personal errands such as grocery or other shopping, require one to access the trunk of one’s car. I consider it unlikely that the defendant could have used his car on June 13th without accessing the trunk.
99This means that the complainant or her associates would have had to install the hidden compartment at some time between the defendant’s last use on June 13th and the wee hours of the morning on June 15th. While this is possible, it is improbable. It is unlikely that the compartment was installed in the one to two hours that the defendant said the complainant had the car before midnight or 1:00am on June 15th. Work on cars does not typically take place in the middle of the night. And there was no evidence that the complainant had the vehicle for the amount of time such an installation would likely require at any other point on June 13th or 14th. In so holding, I am not placing a burden of proof on the defendant. Rather, I am recognizing that the evidentiary foundation that would be required to ground a plausible and not fanciful inference that the complainant or her associates installed the compartment is absent here.
100Moreover, the defendant’s evidence was that both he and the complainant drove the Hyundai SUV for work. He said they had to work around each other’s schedules in order to share the car. As noted, the defendant had two to four jobs per week on average, and each catering job required two car trips. The complainant had no reason to have the car overnight in the period leading up to June 15, 2021 because she and her son had been staying with the defendant for two weeks at that point. These facts suggest that it was unlikely that the complainant could or would have had the defendant’s car for a long enough period to enable a hidden compartment to be installed in it without his knowledge or agreement. There was no evidence before me as to how long it would take to install a hidden compartment, but as a matter of logic and common sense I expect that this would be a job that requires a period of at least several hours. The search warrant photographs of the trunk compartment show that it consisted of metal pieces welded together. These would, no doubt, have taken several hours to weld and construct. Given the defendant’s use of the car for work and the fact that there was no reason for the complainant to have the car overnight, it is not reasonably plausible that the complainant had the car for long enough to install a hidden compartment without the defendant’s knowledge in the relevant period.
101I also disbelieve the defendant’s evidence that the complainant had a key to the Hyundai SUV. This was evidence, if accepted, from which I could infer that the complainant or her associates could have accessed the vehicle and placed the drugs, gun, and cash in it after the defendant’s arrest. But I do not accept that the complainant had a key to the vehicle. PC Majid’s BWC video from June 15, 2021 at 1:14pm depicts a conversation the officer had with the complainant, Mr. Nurse, and Mr. Nurse’s partner. The conversation was about how to get the complainant’s son’s car seat from the defendant’s car. On the video, the complainant can be heard asking PC Majid whether the defendant had his car keys when he was arrested. PC Majid said that he did. The complainant then said “of course – that’s the only way to get into the car.” Other options for getting a car seat were then canvassed, with the complainant saying that someone else had a car seat they could use but that it was in Brampton. PC Majid ultimately volunteered to get the car key from the defendant’s property at the police station when he took the complainant there to make her statement. He said he could retrieve the key from the police station and use it to open the car and get the car seat. The complainant asked whether her child, Mr. Nurse, Mr. Nurse’s partner, and the other children could remain in the unit until PC Majid returned with the car seat. PC Majid said he would speak to the security concierge about it. Mr. Nurse’s partner then asked if she could have PC Majid’s cell phone number so that they could text him of they managed to get a car seat another way.
102This conversation would not have occurred if the complainant had had a key to the defendant’s car. I do not accept that the complainant had the key, pretended she did not, and engaged in this conversation with PC Majid as an elaborate charade to secretly access the defendant’s car later without police knowing. The complainant’s comments on the BWC video to the effect that there was no other way to access the defendant’s car without his key were spontaneous and genuine. Her concern about getting her son’s car seat from the defendant’s car also seemed genuine. I do not believe that this conversation about accessing the defendant’s car to retrieve the car seat was an elaborate pantomime the complainant deceptively staged notwithstanding that she was actually in possession of the car key.
103If the complainant had the car key, she would simply have given it to Mr. Nurse so that he could open the car and take the child’s car seat. Or she would have told PC Majid that she had the key and asked him if she could get the car seat before going to the station to give her statement. Or she would have given the key to PC Majid to use to open the car and get the child’s car seat for Mr. Nurse. But that is not what she did. Instead, she tried to figure out how to get access to the car to retrieve the car seat, given that, as she said, there was no way to get into the defendant’s car without his key.
104The complainant also seemed concerned not to inconvenience Mr. Nurse and his partner any more than necessary. This was evidenced by the fact that she was trying to think of other ways to get a car seat for her son, and by the fact that she asked whether Mr. Nurse and his party could remain in the unit while they waited for PC Majid to return with the car seat. I infer that the complainant would have volunteered the car key if she had had it so as not to further inconvenience Mr. Nurse and his partner. It was also clear that at least Mr. Nurse’s partner was anxious not to have to wait around for the car seat unless it was absolutely necessary to do so. I infer that if Mr. Nurse and his partner were aware, as associates of the complainant, that the complainant was in possession of the car key, they would not have waited for PC Majid to retrieve the car key from the police station, get the car seat, and return to Queens Wharf. Indeed, if Mr. Nurse and his partner were in cahoots with the complainant to place contraband in the defendant’s car, and the complainant had a key, it would have made sense to say nothing about the car, the key, or the car seat to PC Majid. It would have made sense to simply use the complainant’s key to the defendant’s car, retrieve the car seat, and place the drugs, gun, and cash in the car at the same time.
105For these reasons, I do not believe the defendant’s evidence that the complainant had the key to his Hyundai SUV. He lied when he testified that she did. He did so in aid of his position that the complainant or her associates could reasonably have accessed his car and placed the illegal items in it. It was a lie calculated to mislead the court into accepting his evidence that he had no knowledge of the items in the compartment in his trunk.
106I also disbelieve the defendant because he testified that when he and the complainant returned to unit 526 after he moved the car on June 15, 2021, he may have told her where he had parked the car. The defendant testified that he was terrified that the complainant would take or damage his car. He testified that this was the reason he left his residence and moved the car out of its parking spot in the building. It would not have made sense for him to return to the residence and tell the complainant where he had put the car. Not even if he found her calmer on his return, as he said he did. On the defendant’s evidence, the complainant was abusive of him, had trashed his basement apartment on a prior occasion, had broken his car and stolen his licence plates in the past, and had threatened to damage or take his car on this occasion. As a matter of common sense and experience, the defendant would not have told the complainant where he had hidden the car when his stated motivation for hiding the car was to keep it away from her. I conclude that the defendant was not telling the truth when he said he may have told the complainant the location of the car. He lied about this because he knew that if the complainant was aware of the location of his car, this could contribute to a reasonable inference that she or her associates placed the illegal items in the car without his knowledge.
107For all of the foregoing reasons, I do not believe the evidence of the defendant, and am not left in reasonable doubt by it.
C. Assessing the Other Defence Evidence
108I have considered the other defence evidence, which is largely circumstantial. It does not leave me in a state of reasonable doubt as to the defendant’s guilt. That is, the defence circumstantial evidence does not give rise to reasonably plausible inferences that are inconsistent with guilt, as I will explain.
109The evidence called by the defence in addition to the defendant’s testimony included surveillance videos from the fifth-floor hall of 85 Queens Wharf Road that depict Mr. Nurse and his partner taking items out of unit 526 without the defendant’s permission - a big-screen TV and a vacuum cleaner, among other things. The big-screen TV was removed from the unit less than a minute after PC Majid departed with the complainant. The videos also depict an unknown man and an unknown woman coming into unit 526 empty-handed and then leaving a short time later carrying a duffle bag that belonged to the defendant. The defendant did not authorize the removal of any of these items from his unit, except presumably the complainant’s son’s clothing, toys, and personal effects.
110The defence filed the complainant’s criminal record and printouts of what the defendant identified as Leolist advertisements for the complainant’s sexual services.
111The defence highlighted that the interior of unit 526 was altered between when PC Majid left the unit with the complainant, and when he returned approximately an hour and a quarter later. Most importantly, the defence pointed to evidence supporting a conclusion that the drug packaging and digital scale observed by PC Majid when he re-entered the unit at 2:30pm had been placed there in his absence. Further, the defence underscored that Mr. Nurse pointedly told PC Majid to look at what was on the couch in the defendant’s living room when he re-entered the unit.
112The defence position was that, taken together, this evidence grounded a reasonably plausible inference that is inconsistent with the defendant’s knowledge of the gun, drugs, and cash in his car. Namely, the defence argued that I could infer that Mr. Nurse, and possibly others, wanted to incriminate the defendant by planting evidence consistent with drug trafficking in his residence. I agree that this is a reasonable inference from the appearance of drug packaging and a digital scale in the defendant’s residence between when PC Majid departed and when he returned. The drug packaging and digital scale appeared after a time when Mr. Nurse, his partner, and two unknown people had accessed the unit unsupervised by the police, building security, or the defendant. Further, Mr. Nurse made pointed comments to PC Majid that would have drawn his attention to these incriminating items. I agree that someone planted evidence – or at least brought evidence that was previously hidden out conspicuously into the open – in unit 526 to incriminate Mr. Ahmed. It is likely that that someone was Mr. Nurse, his partner, and/or the two unknown people who entered the unit after PC Majid departed and before he returned.
113The defence submission carries on to posit that it is reasonable to infer that someone placed the illegal items in the defendant’s car without his knowledge, given that someone tried to frame the defendant as a drug dealer by placing items in his residence, alongside all the other evidence in the case. This alternative explanation for how the illicit items got into the defendant’s car relies on:
- An inference that someone who wanted to frame the defendant as a drug dealer by placing drug packaging and a digital scale in his residence would also want, and be able, to frame him by placing drugs worth up to $1 million, a loaded gun, and $40,000 in cash in his vehicle;
- An inference that, because the defendant said that the complainant borrowed his car, she would have had opportunities before the morning of June 15, 2021 to install a hidden compartment in its trunk, without his knowledge;
- An inference that the complainant and/or her associates had access to the defendant’s car after his arrest and after PC Majid entered the car on June 15, 2021. This inference would flow from the defendant’s evidence that the complainant had a key to the defendant’s car, which she could have given to Mr. Nurse or his partner; and from the defendant’s evidence that he may have told her where he had parked the car on the street, or the defence suggestion she may have overheard him telling police that the car was parked on the street nearby shortly after his arrest; and
- An inference that people who steal and plant evidence are the kind of people who would be involved in guns and drugs, and who would further engage in framing the same person for drug dealing and possessing a gun by planting evidence in that person’s car. These inferences would flow from the evidence that Mr. Nurse, his partner, and possibly the two unknown people apparently stole items, including a big-screen TV and a vacuum, from the defendant’s residence. One or more of the same people probably planted evidence to incriminate the defendant. The defendant’s alternative explanation that the illegal items were placed in his car without his knowledge leans on an inference that the actions of these people at the unit makes it logical that they would plant evidence in his car.
114I am not able, on the evidence before me, to find that the defendant’s alternative explanation for the drugs, gun, and money in his car is reasonably plausible. The defendant’s alternative explanation that is inconsistent with his guilt depends on inferences that the evidence does not reasonably permit me to make.
115I do not accept that any person would frame another with such a large and valuable quantity of drugs and cash. No one would part with drugs worth as much as $1 million plus $40,000 in cash to frame someone. Especially not when a frame-job could just as effectively be accomplished with a quantity of drugs worth a fraction of that value and a significantly smaller sum in cash.
116Moreover, if someone’s goal was to incriminate the defendant, it does not make sense that they would only place drug packaging and a digital scale in the residence and save the motherload of actual drugs, a gun, and cash for the vehicle. The defence argued that planting illegal items in the car and not the residence would make sense if the intention was to incriminate the defendant, while protecting the complainant from criminal liability. However, this submission ignores that both the defendant and the complainant had been living in unit 526 together for two weeks, and the defendant’s evidence that the complainant had access to the car and drove it as recently as the night before this search. Placing incriminating items in the defendant’s car rather than in his residence was not likely to materially affect whether the complainant was potentially implicated. In short, if the goal was to incriminate the defendant and the person doing the planting of evidence had access to the defendant’s residence, there would be no sensible reason, in the circumstances of this case, to save the drugs, gun, and money to plant in the vehicle.
117In addition, at two points on PC Majid’s BWC video, Mr. Nurse made comments indicating that he did not have positive feelings about the complainant. When PC Majid first returned to 85 Queens Wharf Road with the car seat, he started telling Mr. Nurse that the complainant was at the police station making a statement. Mr. Nurse interrupted him, saying that he had no worries about the complainant. He said it was his son he was worried about, and that as far as he was concerned, the complainant had his son in harm’s way as long as she was with that “goof” (referring to the defendant). Later, when Mr. Nurse and his partner were taking the elevator back to the fifth floor with PC Majid, Mr. Nurse offered that he was “low key disgusted” when he came to collect his son. He went on to say that he was going through a court process because the complainant was trying to take their son from him. Given Mr. Nurse’s comments, it seems clear that he would not be motivated to try to protect the complainant while incriminating the defendant.
118The defence argued, in the alternative, that it was reasonably possible that people other than the defendant placed the illegal items in the defendant’s car to hide them, intending to return and retrieve the items later. In my view, this potential explanation for how the contraband got into the defendant’s car is completely fanciful. There is simply no evidence at all of anyone other than the defendant having a connection to these drugs, or of anyone other than the defendant having a need to hide them from the police. There is also no evidence of anyone other than the defendant and the police having access to the defendant’s vehicle on June 15, 2021, as I will discuss further. There is simply no basis grounded in evidence that anyone else would or could have hidden the illegal items in the defendant’s car.
119I do not accept that someone who wanted to frame the defendant as a drug dealer by placing drug packaging and a digital scale in his residence would also necessarily be in a position to frame him by placing extremely valuable drugs, a gun, and cash in his vehicle. I also do not accept that anyone could have hidden the illegal items in the defendant’s car to hide them from the police with the intention of returning to retrieve the items later.
120For reasons I have already explained in detail above, I do not accept that the complainant or her associates could have installed the hidden compartment in the trunk of the Hyundai SUV, or that the complainant had a key to that car. There is no evidence that anyone other than the police could have accessed the defendant’s vehicle after his arrest on June 15, 2021, without breaking into it. There was no evidence that I accept that anyone other than the defendant, and then the police, had a key to the vehicle. The defendant testified that he could not recall whether he locked the car after he parked it at the side of the street. But PC Majid’s BWC camera reveals that when he approached the Hyundai to retrieve the car seat, he unlocked it using the defendant’s key fob. It also reveals that PC Majid re-locked the car using the defendant’s key fob after he had extracted the car seat from the car and closed the rear passenger side door. In other words, the car was locked at all times after the defendant parked it roadside until police executed the search warrant, with the exception of the time PC Majid unlocked it to access the car seat and then relocked it. No one other than the defendant and the police could have gotten into that car because no one else had a key, unless they broke into it. There was no evidence that the car had been broken into or otherwise forced open. There is no evidence that anyone other than the police could have accessed the defendant’s car after his arrest on June 15, 2021.
121I also do not accept that just because Mr. Nurse, his partner, and two unknown other people apparently stole items from the defendant’s residence, that this meant they were in a position to plant valuable drugs, guns, and a large sum of cash in his car. The evidence that these people stole from the defendant is indeed some evidence of bad character. Theft is a crime of dishonesty. And there was a brazen quality to these thefts. The TV was carried out of the defendant’s residence less than a minute after PC Majid departed with the complainant. All of the items were removed at a time when Mr. Nurse and his partner knew the officer would be returning shortly, in a building where there were visible surveillance cameras and signs advising people that they were being surveilled, and where the items would almost certainly have had to be carried out through the lobby past the security concierge desk. These were flagrant thefts, and their perpetrators were apparently scoff-laws. There may also have been some animus toward the defendant. This can be inferred from the theft of items from the defendant’s residence, combined with Mr. Nurse’s comments to PC Majid that were disparaging of the defendant.
122However, even a person of bad character, like a thief, and one who had animus toward the target of a framing, would require access to the high value contraband found in the Hyundai, in order to be able to plant it. The TV, vacuum cleaner, and two rolls of paper towel that were stolen here were relatively small dollar value items. It seems unlikely that someone who stole such low value items would have access to such valuable contraband. Or, if they did, that they would be prepared to lose it by having it seized by police after they planted it. It seems more likely that someone who stole these items and who had access to such valuable contraband would need or want to sell it, and not risk losing it. It is also unlikely that someone who had access to drugs worth up to $1 million dollars and $40,000 in cash would steal a TV, a vacuum cleaner, and two rolls of toilet paper. As the Crown argued, anyone who had access to the items that were seized from the defendant’s car could have only planted $39,000 in cash, used the leftover thousand dollars to buy a new big-screen TV, and not stolen the big screen TV from unit 526. I agree.
123I recognize that theft may not be motivated by need. A person may steal just because the opportunity to do so has presented itself, or for their own unknowable other reasons. However, in my view, the low value of the items stolen here makes it implausible that the thief or thieves had access to the kind of extremely valuable items that were found in the defendant’s car.
124In my view, the fact that one or more of Mr. Nurse, his partner, and the unknown man and woman probably staged evidence in the defendant’s residence to incriminate him and what that says about their propensity is more telling. That one or more of these people wanted to get the defendant criminally charged with drug-related offences by placing items in his residence in plain view suggests a specific propensity or disposition to incriminate the defendant for drug related offences. This makes it more likely that one or more of them did the same thing to his car than if they had not staged his residence.
125However, on all the evidence in this case, I conclude that even with a specific propensity to plant evidence to incriminate the defendant, there is no reasonably plausible inference that anyone actually planted incriminating evidence in the car. For reasons I have already explained, there is no evidence I accept that the complainant or people associated with her could have installed the hidden compartment in the defendant’s car. There is no evidence I accept that anyone other than the police had access to the defendant’s car after his arrest. There is no evidence that anyone other than the police did access the defendant’s car after his arrest. There is no evidence that anyone other than the defendant drove his car on June 15, 2021. And there is no evidence linking anyone other than the defendant with the Fit4Less bag in which drugs were found in his car.
126On this evidence, it would be speculative and fanciful to infer that anyone planted the drugs, gun, and cash in the defendant’s car, notwithstanding that the person or people who staged his residence may have had the specific propensity to incriminate him.
127Before I complete my assessment of defence evidence, I want to address the complainant’s criminal record as well as the defence evidence that the complainant was a sex worker who continued to work in the sex trade after the defendant’s arrest. Defence counsel made no submissions as to what use she wanted me to make of defence evidence that the complainant was a sex worker. With respect to the complainant’s criminal record, defence counsel acknowledged that it was dated, and argued that the record revealed that the complainant was a troubled youth who was no stranger to the criminal justice system, and who may have had a drug problem.
128In my view, the complainant’s criminal record and defence evidence that she was a sex worker have little to no evidentiary value in this case. The complainant’s last conviction was seven years earlier. She had no drug convictions. She did not testify at this trial, nor was her K.G.B. police statement put into evidence for the truth of its contents. Her criminal record, albeit dated, might have been of some assistance to me if her evidence was before the court and I had to assess her credibility, but that was not the case here.
129The only mechanism by which the complainant’s work in the sex trade and her dated and unrelated criminal record could be relevant in this case is through some sort of propensity reasoning. Defence counsel did not invite me to engage in such reasoning. But I can see no other possible relevance for this evidence here where the complainant did not testify. It is only through a conclusion that the complainant is a person of bad character who was likely to be involved in unsavoury and illegal activities and participate in framing the defendant that the evidence of her antecedents could have relevance.
130I decline to use this evidence in this way.
131First, because I do not accept that merely because a person is a sex worker that they are person of bad character who is likely to commit unsavoury and illegal acts.
132Second, on the evidence in this case, even if I were inclined to find that the complainant is a person of bad character, which I am not, the evidence does not permit me to infer that she participated in framing the defendant. I have already found that the complainant could not have participated in installing a hidden compartment in the defendant’s vehicle. She could not have participated in staging the defendant’s residence because this occurred after she left the premises with PC Majid. She did not have a key to the defendant’s vehicle, so she could not have accessed it, nor arranged for confederates to do so, after his arrest.
133Finally, I am not satisfied on the evidence that the complainant was a sex worker. The defendant testified that she was, and I have no specific reason to disbelieve this particular evidence. However, I have found the defendant’s evidence generally so lacking in credibility, that I am not convinced that his evidence that the complainant was a sex worker is true. It may well be that, like much of the defendant’s evidence, this evidence was calculated to further the defendant’s position that there are reasonably plausible inferences available that are inconsistent with his knowledge of the illegal items. The defendant’s evidence may have been calculated to invite me to reason from bad character to find that the complainant participated in planting the illegal items in his car. I am also unable to conclude the printouts of Leolist ads that the defendant identified as the complainant were in fact her. The women pictured in the advertisements generically resemble the complainant’s appearance in the BWC and building videos from June 15, 2021. However, this is not a close or identifiable resemblance that could permit me to conclude that they are her.
134Even if I were to accept the defence evidence that the complainant was a sex worker, for the reasons I have already given, this does not make it more likely that she would have participated in framing the defendant.
135In sum, for the foregoing reasons, I do not believe the defendant’s evidence and am not left in reasonable doubt by it. I am also not left in reasonable doubt by the other defence evidence. In its totality, considered with all the evidence, the defence evidence does not give rise to any reasonably plausible inferences that are inconsistent with guilt.
D. Assessing the Prosecution’s Circumstantial Evidence of Possession
136I now move on to consider whether, on the whole of the evidence I do accept, the Crown has proven the defendant’s guilt beyond a reasonable doubt. In this case, that means I must assess whether the Crown has proven that the only available reasonable inference is that the defendant had knowledge of the drugs, gun, and money in the trunk of his car. I have concluded that the Crown has succeeded in doing so.
137The following facts have been established, were not in dispute, or were the subject of an agreed statement of facts:
- The defendant was the registered owner of the Hyundai SUV in which the illegal items were found, and it was insured by him;
- He drove the car regularly;
- Items belonging to the defendant were found in the car. These included identification in his name and articles of clothing that he acknowledged were his;
- On the date at issue, the defendant and the complainant had some kind of altercation which caused her to run out of their shared residence, go to the security desk, and ask that 911 be called on her behalf;
- In the course of the altercation, the complainant threatened to put the defendant in jail;
- Shortly after the complainant exited the unit, the defendant carried a black Fit4Less bag from his residence to the car, and then drove away;
- The defendant was in exclusive control of the vehicle a short time before police arrived at his residence;
- The defendant parked the vehicle on the street, away from his residence;
- The defendant was the only person who drove the car on the day on which the illegal items were found in it;
- The car was located by police in the location the defendant told police he had parked it;
- The Fit4Less bag carried by the defendant from his residence to the car is identical to the Fit4Less bag found to contain illegal drugs in the car. The defendant acknowledged that the bag found by police appears to be the same bag he carried to the car;
- The illegal items were in a hidden compartment in the trunk of the defendant’s car. Police opened this compartment using a pry bar;
- The illegal items were well-hidden and not in plain view;
- The defendant was aware of the hidden compartment in the trunk of his car;
- The defendant was the only person who had a key to the car, until police seized the key from him. The complainant did not have a key to the car;
- No one other than the police had access to the defendant’s car after his arrest. No one other than the police did access the defendant’s car after his arrest;
- There is no evidence that the defendant’s fingerprints or DNA were found on the drugs, gun, or money;
- The defendant did not have a criminal record; and
- The drugs, gun, and money were of significant value. The drugs alone were worth up to $1 million. The cash was in the amount of $40,000.
138In determining whether the only reasonable inference to be drawn from this evidence is that Mr. Ahmed had knowledge of the illegal items, I have considered the defence argument arising from what it says are differences over time in the appearance of the Fit4Less bag, and in what is visible in the back seat of the defendant’s car.
139The defendant testified that when he threw his “essentials” into the Fit4Less bag in his residence, the bag was only half full. By contrast, the defence argues, the photograph of the Fit4Less bag taken during the execution of the search warrant on the defendant’s car shows a bag that is very full of drugs. The defendant testified that when he got to his car shortly before noon on June 15, 2021, he placed the Fit4Less bag and his satchel on the floor of the front passenger side of the car. He maintained that he never accessed the backseat or the trunk of the car that day. The defence argues that PC Majid’s BWC video of his entry into the car demonstrates that there was nothing on the backseat other than the car seat and a child’s yellow covid mask. By contrast, the photographs of the backseat of the car from the execution of the search warrant depict that the defendant’s satchel and some of his clothing are strewn about the backseat and back floor of the Hyundai.
140The defence submits that, taken together, this evidence grounds a reasonable inference that someone accessed the Hyundai after PC Majid retrieved the car seat. That they emptied the defendant’s personal effects from the Fit4Less bag, left them and his satchel around the backseat of the car, loaded drugs into the Fit4Less bag, and stashed it into the compartment in the trunk.
141I do not accept this submission. I have carefully reviewed the surveillance videos in which the defendant is carrying the Fit4Less bag and waiting for the elevator. I do not agree that the bag is only half full. It appears to be mostly full. Indeed, it appears to be as full as the Fit4Less bag in the first search warrant photograph that depicts the bag zipped closed. I agree that in subsequent photos, bags containing drugs inside the Fit4Less bag appear to be piled up to the top of the unzipped Fit4Less bag. However, on reviewing these subsequent photographs, it is clear to me that police officers unzipped the Fit4Less bag and pulled the bags inside it containing drugs toward the top so that they would be visible for the purpose of documenting the contents for the photographs. I conclude that the Fit4Less bag was no more full when police found it in the trunk of the defendant’s car than it was when he carried the bag from his residence.
142I do not accept the defendant’s evidence that he placed the Fit4Less bag and his satchel on the front passenger side floor, never moved them, and never accessed the backseat or trunk of the car that day. As I have already explained, I found the defendant’s evidence to be lacking in credibility. Like many of the things the defendant lied about in his testimony, his evidence that he never moved the Fit4Less bag, or his satchel was self-serving. It was calculated to serve the defendant’s position that he did not have knowledge of the illegal items in the trunk of his car. While it is true that the defendant did not access the backseat or the trunk of his car while in the parking garage, as evidenced by surveillance videos, it is entirely possible that he did so once he had moved and parked the car. The location of these items when the search warrant was executed, considered together with all the evidence, convinces me that the defendant lied when he said he left the satchel and the Fit4Less bag on the front passenger floor of the car and never accessed the trunk of the car. In combination with all the evidence, the location of these items satisfies me that they were found where the defendant placed them before leaving the car.
143I have carefully viewed and reviewed PC Majid’s BWC video of his retrieval of the child’s car seat from the defendant’s car. Unfortunately, the video does not allow for clear views of what was or was not in the backseat. The pattern of bright sunshine and dark shadow in the interior of the car and the limited range of the BWC have the effect of preventing a view of what was in the backseat of the defendant’s car beyond the child’s car seat in the passenger side of the backseat and an inch or two immediately next to it. From viewing PC Majid’s BWC footage, I am unable to see whether the defendant’s satchel was in the middle of the backseat where it was later photographed by police. I am also unable to see in the BWC video whether the defendant’s jackets were strewn about the backseat area where they were later photographed by police. The BWC video does not permit me to compare the locations of the defendant’s satchel or his clothing from when PC Majid accessed the backseat of the car with their locations in the search warrant photographs.
144The Agreed Statement of Fact refers only to the location of the defendant’s satchel when it was found by police. It says that the satchel was located in the backseat. There is no mention of the defendant’s clothing in the agreed statement, and no mention of where the clothing was found by police. There is also no evidence that would permit me to conclude that items found in the car were photographed where they were located, or that items were not moved during the search before they were photographed. In fact, a review of all of the search warrant photographs satisfies me that most of the photographs are of items that were moved before they were photographed. The first photograph of the trunk compartment depicts the Fit4Less bag and the green Zara backpack in the compartment where they were found by police. All the rest of the photographs of the items found in the compartment capture the bag and the backpack and their contents after these were removed from the compartment. Two of the three photographs of the satchel include pictures of what was located inside of it, which necessarily must have been taken after the satchel was moved and its contents extracted.
145Considering all of the evidence, there is no reasonably plausible inference available that the defendant’s car and its contents were tampered with after PC Majid accessed the car. I am not left in reasonable doubt as to the defendant’s knowledge of the drugs, gun, and cash by all the evidence of the location of items in the defendant’s vehicle.
146I consider the value of the drugs and cash to be of assistance in my determination that the Crown has proven knowledge beyond a reasonable doubt. Where the value of illegal items is high, this “suggests the asset is one the owner would not risk losing. In other words, a drug dealer, as a person with business interests in mind, is unlikely to expose cargo of this value to the risk of discovery or loss by relinquishing to another possession of the receptable concealing the asset”: R. v. McIntosh, 2003 CanLII 41740, 57 WCB (2d) 481 (S.C.J.), at paras. 45-46. For these reasons, a trier of fact may infer knowledge from the high value of contraband. As the Court of Appeal for Ontario held in Bains, at para. 157:
Where the subject matter of which an accused is alleged to be in possession is a controlled substance of significant value, it may be open to a trier of fact to infer not only knowledge of the nature of the subject, but also knowledge of the substance itself. […] It is a reasonable inference that such a valuable quantity of drugs would not be entrusted to anyone who did not know the nature of the contents of the bag or other container.
147In this case, it is agreed that the drugs and cash found in Mr. Ahmed’s car are extremely valuable. The drugs were worth as much as $1 million. The cash totalled $40,000. These are items of such high value that no one would risk losing them. No one would hide illegal items of this value in someone else’s car without their knowledge, thereby exposing the cargo to the risk of discovery or loss. No one would forfeit items of this value to the police in order to frame someone else.
148I recognize that the inference of knowledge from the value of the items at issue is one that is available but not mandatory in all circumstances: R. v. Knight, 2019 ONSC 2443, 155 W.C.B. (2d) 309, at para. 27. Knowledge is not “an inescapable inference from the possession of drugs of significant value”: R. v. Khan, 2019 ONSC 2002, 157 W.C.B. (2d) 611, at para. 28. Rather, as trier of fact, I must look at the totality of the evidence in this case to determine whether knowledge is the only reasonable inference available: Khan, at para. 28. Having carefully considered all the evidence, I am satisfied that it is. There is simply no basis grounded in the evidence not to infer knowledge from the very high value of the contraband at issue here.
149On all the evidence in this case, both direct and circumstantial, I find that sometime before June 15, 2021, Mr. Ahmed installed a compartment in the trunk of his Hyundai SUV, caused one to be installed, or knowingly consented to its installation. On June 15, 2021, shortly before noon, Mr. Ahmed loaded contraband that was in his possession in his residence into his Fit4Less bag. He did this because the complainant threatened to call police and send him to jail. He wanted to get the drugs, gun, and money out of his residence before police arrived. He took the Fit4Less bag and his satchel to his car and took them into the front seat with him. He did not access the back doors or the trunk at that time. Mr. Ahmed drove out of the parking garage and parked his car on the street a short walking distance from 85 Queens Wharf Road. He then moved the Fit4Less bag into the hidden compartment in the trunk of his car to hide it, and either moved the satchel to the back seat or left it on the back seat (he may have originally reached back and placed the satchel on the back seat when he entered the car). Mr. Ahmed then locked the car and walked back to the apartment. He intended to return to collect his car and its valuable contents after the situation with the complainant de-escalated and after police left.
150On these facts, I am satisfied beyond a reasonable doubt that the defendant had knowledge of the nature of the contraband in his car. For the reasons given, I conclude that there is no reasonably plausible inference available that is inconsistent with the defendant’s knowledge. The Crown has proven guilt beyond a reasonable doubt.
E. Conclusion
151For the foregoing reasons, I have concluded that there is no reasonably plausible inference available on all the evidence that is inconsistent with the defendant’s knowledge of the drugs, gun, and money that were located in the trunk of his car. The alternative explanations offered by the defence, namely that third parties planted the contraband in the defendant’s car to frame him, or that third parties hid the contraband in the car with a view to escaping apprehension by police, are speculative, fanciful, and not grounded in the evidence. The only reasonably plausible inference available on all the evidence is that the defendant had knowledge of the nature and presence of the contraband in his car. The Crown has proven guilt beyond a reasonable doubt.
V. DISPOSITION
152Mr Ahmed is found guilty of all of the counts on which he was arraigned: counts 1, 2, 3, 4, and 7 on the indictment, namely: possession for the purpose of trafficking cocaine, possession for the purpose of trafficking fentanyl, possession for the purpose of trafficking methamphetamine, possession of the proceeds of crime over $5000, and possession of a loaded restricted firearm without an authorization or licence and registration certificate, respectively. Convictions will be entered on these counts.
Released: December 12, 2024
J. R. PRESSER J.