Court File and Parties
COURT FILE NO.: CR-23-90000658-0000 DATE: 20241212
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – EPHRAIM WOLDEHAWARIAT
Counsel: V. Sayed, for the Crown C. Mills, for Mr. Woldehawariat
HEARD: December 9-10, 2024
Reasons for Judgment
SCHRECK J.:
[1] Ephraim Woldehawariat was sitting with a woman outside a safe injection site when they were approached by two police officers. As the officers spoke to them, Mr. Woldehawariat took a plastic bag he was holding and shoved it down the front of his pants. The bag was seized after Mr. Woldehawariat was arrested and searched and found to contain 27 grams of fentanyl.
[2] Mr. Woldehawariat is charged with one count of possession of a Schedule I controlled substance for the purpose of trafficking and has elected to be tried by this Court without a jury. He admits that he had the fentanyl in his hand and put it down his pants, but submits that the Crown has failed to prove that he had sufficient time to form an intention to exercise control over it and has therefore failed to prove that he legally possessed it. He accepts that if the Crown can prove that he possessed the fentanyl, then he did so for the purpose of trafficking.
[3] The facts are established by an agreed statement of fact, the testimony of the two police officers and video from the body worn cameras they were wearing at the time and are not in dispute. The sole issue is whether the Crown has proven that Mr. Woldehawariat formed the intention to exercise control over the fentanyl. The following reasons explain why I have concluded that it has done so.
I. Evidence
(i) The Initial Interaction Between the Police and Mr. Woldehawariat
[4] Toronto Public Health operates a safe injection site located at 277 Victoria Street. The purpose of the site is to provide those who are addicted to dangerous drugs a safe location at which to consume them. The site does not provide the users with drugs, which they must supply themselves.
[5] In the early evening of August 29, 2022, P.C. Helmut Steger and P.C. Sean Clendenning, who were on bicycle patrol, turned onto Victoria Street from Dundas Street West. [1] They observed a man and a woman (later identified as Mr. Woldehawariat and H.H.) sitting on a bench directly outside of 277 Victoria Street. P.C. Steger testified that he saw the man pass the woman a green rock-like substance, which he believed to be fentanyl. P.C. Clendenning testified that he saw “what appeared to be a drug transaction,” but later acknowledged that he did not see anybody pass anything to anyone. The body worn cameras of both officers were filed as exhibits. Although both began recording before the officers turned onto Victoria Street, no transaction or passing of objects is apparent on the video.
[6] The two officers approached Mr. Woldehawariat and H.H. and observed her to be holding a green rock-like substance (which the parties agree was fentanyl) in her left hand and a white substance (which the parties agree was crystal methamphetamine) in her right hand. Mr. Woldehawariat was holding a plastic bag containing a larger green rock-like substance in his left hand, which he placed behind a satchel he had over his shoulder. When the officers started talking to him, he shoved the plastic bag down the front of his pants.
[7] The officers placed Mr. Woldehawariat and H.H. under arrest. Mr. Woldehawariat appeared to have difficulty following the officers’ directions. According to P.C. Steger, he “seemed to have some sort of impairment,” although P.C. Steger was unable to say whether this was the result of being under the influence of drugs, a mental illness, a hearing impairment, or a combination of these factors.
(ii) The Search of Mr. Woldehawariat
[8] The officers conducted a search of Mr. Woldehawariat’s person, during which the plastic bag fell out of his pant leg onto the ground, where the officers seized it. It is an agreed fact that the bag contained 27.01 grams of fentanyl and had a value of between $1000 and $5942.20, depending on whether it was sold by the “hit” (0.1 grams), the gram or the ounce (28 grams).
[9] The police also searched Mr. Woldehawariat’s pockets and the satchel he was carrying. Nothing of significance was found.
(iii) The Search of H.H.
[10] The police searched H.H.’s backpack, which contained a number of items, including two glass pipes, three mobile phones, and spiked “brass knuckles” (which are a “prohibited weapon” within the meaning of s. 84(1) of the Criminal Code). [2] The police did not search H.H.’s pockets. She was later released at the scene without charge.
II. Analysis
A. Overview
[11] Mr. Woldehawariat faces a single count of possession of a Schedule I substance for the purpose of trafficking. “Possession” is defined in s. 4(3) of the Criminal Code and can be personal, constructive or joint, only the first of which is at issue in this case. To establish personal possession, the Crown must prove that (1) the defendant had the item on his person; (2) he knew that he had the item on his person; (3) he was aware of the nature of the item; (4) he exercised some measure of control over the item; and (5) he intended to exercise control over it: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para.16; R. v. Farmer, 2014 ONCA 823, 318 C.C.C. (3d) 322, at paras. 33-34.
[12] In this case, there is no issue that Mr. Woldehawariat had the fentanyl on his person. The fact that he decided to attempt to conceal it from the police shows that he was aware of its nature, and his action of putting it down his pants is clearly an exercise of control over the item. The issue that must be determined is whether the Crown has proven that Mr. Woldehawariat intended to exercise control.
[13] It is the position of the defence that the Crown cannot prove when Mr. Woldehawariat first picked up the fentanyl and that there is a reasonable possibility that H.H. shoved it into his hands upon noticing the police officers and that he reflexively put it down his pants before having an opportunity to form any intention to control it. This is often referred to as the “hot potato” defence.
B. Mr. Woldehawariat’s Failure to Testify
[14] As the Crown correctly points out, Mr. Woldehawariat did not testify. The Crown submits that because of this, there is no evidentiary basis for the “hot potato” defence. I do not accept that Mr. Woldehawariat’s failure to testify or call evidence is necessarily fatal to his defence. As in most possession cases, the Crown relies on circumstantial evidence to prove that Mr. Woldehawariat intended to exercise control over the fentanyl. The approach to be taken to circumstantial evidence was discussed by the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 30, where Cromwell J. explained that “an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits.”
[15] Cromwell J. went on to caution that in considering whether the circumstantial evidence gives rise to reasonable inferences other than guilt, those alternative inferences need not be based on proven facts and may be based on “other plausible theories” and “other reasonable possibilities” which are inconsistent with guilt, provided that they are rooted in logic and human experience applied to the evidence or the absence of evidence: Villaroman, at paras. 35-37; R. v. Stennett, 2021 ONCA 258, 408 C.C.C. (3d) 141, at para. 60. To the extent that R. v. Fuller (1971), 1 N.R. 112 (Man. C.A.), aff’d , [1975] 2 S.C.R. 121, on which the Crown relies, holds that alternative inferences must be based on “facts adduced in evidence,” it has been overruled by Villaroman.
[16] It follows from the foregoing that the central issue in this case is whether there is a plausible theory that Mr. Woldehawariat came to handle the fentanyl in circumstances such that the “hot potato” defence is available to him.
C. The “Hot Potato” Defence
[17] The “hot potato” defence arises in cases involving “instances of temporally brief manual handling” of the item in question: R. v. Foster, at para. 134. If there is insufficient time for the defendant to make a conscious decision whether to take control of the item, he will not have been in legal possession of it: R. v. Vance and Nichols, [1977] O.J. No. 1103 (C.A.), at para. 7; R. v. Lewin (1998), 67 O.T.C. 112 (S.C.J.), at para.13. This was explained in R. v. York, 2005 BCCA 74, 193 C.C.C. (3d) 331, at para. 20:
I think the law can be summarized as follows. Personal possession is established where an accused person exercises physical control over a prohibited object with full knowledge of its character, however brief the physical contact may be, and where there is some evidence to show the accused person took custody of the object willingly with intent to deal with it in some prohibited manner.
[18] The “hot potato” defence is most often successful in cases where the defendant is passed the object in question by someone else and immediately disposes of it, as occurred in Vance and R. v. Hall (1959), 124 C.C.C. 238 (B.C.C.A.). However, there is no requirement that the defendant dispose of the item. For example, in R. v. Jeyakanthan, 2021 ONSC 8250, on which the defence relies, an intent to control was found not to have been proven where the defendant was handed an illegal firearm by another person and “instinctively shoved it down his pants to hide it” (at para. 41).
[19] While both parties provided me with a number of cases where the “hot potato” defence was or was not successful, each case obviously turns on its own facts. The ultimate issue is whether in the circumstances of the case, the Crown has proven beyond a reasonable doubt that the defendant formed the intention to exercise control over the object. While the length of time the defendant has the object is an important consideration, it is not dispositive.
D. Application to This Case
[20] As noted, the defence submits that it is reasonably possible that the fentanyl in the bag belonged to H.H. and that she shoved it into Mr. Woldehawariat’s hands upon noticing the police and as in Jeyakanthan, he “instinctively shoved it down his pants to hide it.” I accept that the fentanyl in the bag may well have belonged to H.H. Other than the fentanyl, Mr. Woldehawariat was not in possession of anything that would suggest that he was involved in street-level trafficking, such as a scale, small baggies, or most significantly, any cash whatsoever. H.H., on the other hand, was in possession of three mobile phones and a prohibited weapon, and whether she had any cash is unknown as her pockets were not searched. However, ownership and possession are distinct legal concepts and the Crown is only required to prove the latter, not the former.
[21] The body worn camera footage shows that the police first turned onto Victoria Street at 18:57:18, and Mr. Woldehawariat and H.H. first become visible on the video at that point or a second later. Neither of them appears to notice the police officers as they approach until 18:57:26, at which point they look up towards the officers. Neither Mr. Woldehawariat nor H.H. move their arms during this period, contrary to the evidence of both officers who claim to have seen a drug transaction. By the time Mr. Woldehawariat and H.H. notice the officers at 18:57:26, Mr. Woldehawariat is already holding the bag of fentanyl. He does not make attempts to hide the bag until 18:57:38, first by putting it behind his satchel and then by shoving it down his pants.
[22] It is clear that Mr. Woldehawariat had the fentanyl in his hand for at least 20 seconds before he tried to hide it, which he only did once the police approached and began speaking to him. The only reasonable inference in these circumstances is that Mr. Woldehawariat knew what was in the bag and once the police approached, he formed the intention to hide it from them. Attempting to hide an item from the police constitutes an element of control over it: R. v. Watson, 2014 ONSC 566, at para. 47; R. v. Van Santen, 2009 ABPC 161, 10 Alta. L.R. (5th) 127, at para. 53, R. v. Basha, [2007] N.J. No. 424 (P.C.), at para. 21.
E. For the Purpose of Trafficking
[23] Mr. Woldehawariat has made an admission pursuant to s. 655 of the Criminal Code that if the court concludes that he was in possession of the fentanyl, then he possessed it for the purpose of trafficking. This is proper concession regardless of whether the fentanyl belonged to Mr. Woldehawariat or H.H. If it belonged to him, it is admitted that the amount involved was inconsistent with personal use. If it belonged to H.H., then Mr. Woldehawariat hid it in his pants with the intention of returning it to her once the police left. This would amount to “trafficking,” which is defined in s. 2 of the Controlled Drugs and Substances Act to mean “sell, administer, give, transfer, transport, send or deliver.” The Crown need not prove that Mr. Woldehawariat intended to sell the drugs for profit.
III. Disposition
[24] Mr. Woldehawariat is found guilty on the sole count in the Indictment.
Justice P.A. Schreck
Released: December 12, 2024
Footnotes
[1] P.C. Clendenning did not testify at trial but a transcript of his evidence from the preliminary inquiry was admitted on consent.