Reasons for Judgment

Court File Nos.: CR-22-10000294-0000, CR-22-90000286-0000, CR-23-10000213-0000
Date: 2025-02-21
Ontario Superior Court of Justice
Between:
His Majesty the King – and – Talicia Bryan

Appearances:
Erin Winocur, for the Provincial Crown
Jason Mitschele, for the Federal Crown
Rubaina Singh, for Talicia Bryan

Heard at Toronto: January 13, 14, 15, 16 and 17, 2025
Judge: J.K. Penman

A. Introduction

[1] On Sunday, February 14, 2021, Toronto Police Service (TPS) received a 911 call from Talicia Bryan’s mother who reported that Talicia had been assaulted by several females inside her home, was injured and was now missing.

[2] Concerned for the safety of Talicia Bryan, police entered 19 Western Battery Road Unit 3321 (“the apartment”). On entry, police observed the apartment to be in disarray. Police quickly observed in plain view packages and bags containing what were believed to be illicit substances. Live rounds of ammunition were scattered on the floor. A firearm was located up on a shelf in the living area, beside a small bag that contained an unknown white powdered substance.

[3] Ms. Bryan was found outside 39 Queens Quay East approximately an hour later. A search warrant was sought and granted for Unit 3321, 19 Western Battery Road. During the search, officers located 384.58 grams of fentanyl, 104.46 grams of crystal methamphetamine and 524.20 grams of benzodiazepine. The firearm was a Glock 9mm handgun loaded with six rounds of ammunition. Officers also found large quantities of 9mm and 10mm ammunition.

[4] On the floor of the master bedroom closet in a green Dollarama bag, officers found what turned out to be a powerful explosive device which is typically used in commercial and military applications.

[5] Officers also located various documents in the name of Talicia Bryan, several of which associated her with a different address, 15 Iceboat Terrace Unit 3516.

[6] Talicia Bryan is now charged with offences relating to the possession of the drugs, firearm and explosive material.

[7] Ms. Bryan did not testify.

[8] The Crown’s position is that the evidence establishes that Ms. Bryan was in constructive possession of the drugs, firearm and explosives. When looking at the whole of the evidence, the Crown argues there is no reasonable inference other than guilt. The Crown relies on the unlikelihood that someone would leave drugs of this value in the control of someone else who was unaware of their presence or value: R. v. Bains, 2015 ONCA 677, para 157.

[9] The defence position is that there are gaps in the evidence and a lack of physical and forensic evidence establishing Ms. Bryan’s connection to the drugs, firearm and explosives. The defence also argues that there is a reasonable alternate inference on the evidence that the illicit items were left in the apartment by Mr. Henry, a friend of Ms. Bryan’s, without her knowledge.

B. Was Talicia Bryan in Possession of the Drugs, Firearm and Explosive Material?

i) Legal Principles

[10] In this case, the Crown argues that when considering the whole of the evidence the only reasonable inference is that Ms. Bryan was either in constructive or joint possession of the drugs, firearm and explosive material.

[11] Constructive possession is complete where the Crown proves that Ms. Bryan: (i) has knowledge of the drugs, firearm and explosives; (ii) knowingly puts or keeps the illicit items in a particular place, irrespective of whether the place belongs to or is occupied by her; and (iii) intends to have the illicit items in the particular place for the use or benefit of herself or of another person: Criminal Code, RSC 1985, c C-46; R. v. Morelli, 2010 SCC 8, para 17.

[12] Joint possession requires knowledge, consent and a measure of control on the part of the person deemed to be in possession: R. v. Pham, para 16.

[13] It is not disputed that there is no presumption of possession arising from proof of tenancy or occupancy. The fact that a thing is found in a place occupied by a person does not create a presumption of knowledge and control: R. v. Lights, 2020 ONCA 128, para 50. However, the fact that a person has control over a place, together with other evidence may (depending on the whole of the evidence) enable a trial judge to infer knowledge and control of the item in appropriate cases: R. v. Lincoln, 2012 ONCA 542, para 3.

[14] The Crown case for possession is a circumstantial one. When the Crown's case consists wholly or substantially of circumstantial evidence, the standard of proof requires the trier of fact be satisfied beyond a reasonable doubt that the accused's guilt is the only reasonable inference to be drawn from the evidence as a whole. I must determine whether Ms. Bryan’s guilt is the only reasonable inference to be drawn from the evidence I do accept: R. v. Griffin, 2009 SCC 28, para 33.

[15] The alternative inferences must be reasonable but need not be as strong or as compelling as the inference of guilt. It is not enough for the Crown to prove that guilt is the strongest reasonable inference, it must be the only reasonable inference: R. v. Knight, 2019 ONSC 2443, para 20. In R. v. Darnley, the Court of Appeal held, “An acquittal need not be based on a conclusion about innocence but can rest on an inability to conclude guilt.”: 2020 ONCA 179, para 35.

[16] In assessing whether circumstantial evidence meets the required standard of proof, the court must bear in mind that it is the evidence assessed as a whole that must satisfy the standard of proof beyond a reasonable doubt, not each individual piece of evidence: R. v. Lights, 2020 ONCA 128, para 37. Inferences consistent with innocence are not required to arise from proven facts. They may arise from a lack of evidence: R. v. Villaroman, 2016 SCC 33, paras 20, 35-36.

ii) The Apartment and Execution of the Search Warrant

[17] The apartment was a small two-bedroom apartment with a kitchenette and balcony. One of the bedrooms was decorated and furnished as a child’s room, the other was a master bedroom with an ensuite.

[18] Ms. Bryan was not in the apartment when police arrived. When police arrived at the door to the apartment, they observed what they believed to be blood near the door handle. When they entered the apartment, the main area was in “disarray” or “trashed” and it appeared as though there had been an altercation or fight. Chairs were knocked over, and bags, shoes and papers were strewn over the floor and couch area. There were dents in the walls, the counter by the sink was broken and there was a broken cup in the kitchen sink.

[19] The apartment was furnished but somewhat sparsely with no artwork or photos on the walls. There was limited clothing hanging in the master bedroom closet. The second bedroom was decorated as a child’s bedroom. The bed in the child’s room had a duffle bag and pile of clothes on it. There was a large bin at the base of the bed filled with clothing.

[20] During the search of the apartment, the police located the following drugs:

• 258.47 grams of red fentanyl on the couch;
• 69.66 grams of blue fentanyl on the floor at the base of the couch;
• 56.30 grams of fentanyl on the top corner of the couch in the living room;
• 490.27 grams of benzodiazepine on the floor beside the couch;
• 33.93 grams of benzodiazepine inside a mop bucket in the main hallway;
• 101.64 grams of methamphetamine in a bag on the hallway floor;
• 2.82 grams of methamphetamine on the shelf beside the firearm.

[21] On a kitchen cabinet shelf, the police located a Glock 43 9mm firearm loaded with six rounds of ammunition. The shelf where the firearm was found was at the end of the kitchen area facing the balcony. Officer O’Neill who is six feet tall described that the shelf was above his head. From where he was standing at the far end of the apartment, he saw what he thought might be the butt of the gun. He reached up to confirm what it was and based on its weight believed it to be a gun, so he put it back down and informed the team.

[22] A box of pipes used for smoking was found on the couch, along with a vacuum sealer. One digital scale was found on the floor in front of the couch and another in the mop bucket. A spoon with red residue caked on it was found on the living room floor.

[23] A white bag containing 56 rounds of 9mm Luger ammunition and 30 rounds of 10mm ammunition was found on the floor near the kitchen.

[24] Sergeant Watson and Officer Mirza searched the master bedroom. In the closet, Sergeant Watson saw a green bag with orange and yellow wires and what he thought was white powder. He did not know what was in the bag, so he emptied its contents onto the bed. He was still not sure what he was looking at. On closer inspection it “dawned on” him that he was looking at some kind of explosives.

[25] Sergeant Watson notified the team; the apartment was evacuated, and steps were taken to secure the building. The bomb disposal unit attended and removed the device.

[26] Sticking out of a different bag in the master bedroom closet was a passport application in Ms. Bryan’s name dated August 20, 2020, almost six months prior to the February 14, 2021, events. The master bedroom bathroom had a full trash can and was stocked with bathroom related products, suggesting that it had recently been used.

[27] Two Blackberry cell phones were found in a drawer in the kitchen. A provincial offence ticket dated October 10, 2020, in Ms. Bryan’s name was also found in the drawer.

[28] Police found a Service Canada Social Insurance Number document in Ms. Bryan’s name dated March 2015 listing the address 20-3280 South Millway, Mississauga; an undated, unsigned Social Services form in Ms. Bryan’s name with the address 3516-15 Iceboat Terrace; and photocopies of Ms. Bryan’s driver’s license, health card and birth certificate. The address on the driver’s license was 3516-15 Iceboat Terrace. There was no evidence as to where in the apartment these documents were found.

[29] When police first arrived at apartment, Ms. Bryan was not in the apartment and nowhere to be found. Given the concern about Ms. Bryan’s well-being and the state of the apartment, officers attended the front desk to determine if there was any video footage of Ms. Bryan in the building.

[30] Ms. Shridri, the security guard working that night, testified that Ms. Bryan did not have a parking spot connected to the apartment. Only tenants with parking spots could access the parking garage with their fobs. Given this, the only way for Ms. Bryan to gain access to the residential floors was through the lobby, which did have video surveillance. There was no video surveillance in the building hallways or elevators.

[31] Ms. Shridri checked the fob logs in relation to the two fobs associated to apartment. The one fob was used at 3:50, but it was not clear whether that was a.m. or p.m. The other fob was used three days prior.

[32] Ms. Shridri and Officer Lorimer looked at the video surveillance of the lobby for the times related to the apartment fobs for these time ranges and a range of times prior to the police arriving. They were not able to locate footage of Ms. Bryan coming or going during the relevant times.

iii) Property Management Evidence

[33] As part of their investigation into the occupancy of Unit 3321, police obtained from property management a series of documents relating to the apartment. There was no evidence as to when or from whom the documents were obtained. They were the following:

• A “Key Release Checklist” form. Handwritten on the form is the name Joey Wong, “Owner”, and the form is dated November 25, 2020;
• A “Resident Information Form” listing the registered owner as Mariana Chi Mei Ip dated November 18, 2020;
• A “Key Pick Up Authorization” form dated November 19, 2020, signed by Mariana Chi Mei Ip. Joey Wong and Nixon Lau are listed as real estate agents for the purchaser of the apartment.
• An “Elevator Reservation Agreement” showed a request by Myriam Diawara dated either April 3, 2021 or March 4, 2021. Handwritten on the form were the words “new tenant” and the box “tenant” was checked off.

[34] Ms. Shridri was asked about a form entitled “Enterphone Form” which had her signature and Ms. Bryan’s signature on it. The “tenant” box was checked off. Underneath the tenant box was Ms. Bryan’s name and signature with the date January 9, 2021. Ms. Shridri recognized her own signature dated January 12, 2021 on the document, but could not speak to when or how she received the form or the circumstances surrounding her signing it.

[35] Other than Ms. Shridri, no one from property management testified about any lease or tenancy agreements for Unit 3321 or explained the various forms that were filed in evidence.

iv) Ms. Bryan’s Arrest

[36] Ms. Bryan was arrested at 39 Queens Quay East at approximately 1:00 a.m. on February 15, 2021. The only items in Ms. Bryan’s possession were a jacket and a cellphone.

[37] Ms. Bryan was upset, agitated, had blood on her pants and an injury to her arm.

v) Adam Henry

[38] Adam Henry testified for the Crown. Mr. Henry was an evasive witness who had difficulty recalling details on a variety of topics. He had difficulty recalling details of what was happening in his life in 2020 and 2021. He purported to have little information as to how much money he is currently earning or how much he has earned over the past several years.

[39] Mr. Henry has a criminal record that includes two convictions from 2018 for possession for the purpose of trafficking a Schedule I substance and two convictions for failure to comply with recognizance. He is also currently on bail for possession for the purpose of trafficking a Schedule I substance.

[40] Mr. Henry testified that he was a “good friend” of Ms. Bryan’s in late 2020 and early 2021. “Good friend” meant more than just friends but not boyfriend/girlfriend.

[41] Mr. Henry testified that Ms. Bryan was living at an address on Iceboat Terrace and that he was aware of this having picked her up and dropped her off at that address. He also said that she had a young son. There were occasions when Mr. Henry picked Ms. Bryan up that he noticed she had bruises. He believed she was in an abusive relationship. He paid for airline tickets for her to travel out of town for work and on occasions picked her up from the airport.

[42] Mr. Henry was aware that in January and February 2021, 19 Western Battery Road Unit 3321 was being rented out as a short-term rental without the formalities of going through Airbnb and providing credit card information. He knew the people who were renting it out and was aware that people would go and hang out in the apartment, for example if there was an event downtown. According to Mr. Henry, a lot of people had access to the apartment and keys were just “floating around”.

[43] Mr. Henry acknowledged that he had attended the apartment and believed at some point that he had a key. Mr. Henry was vague about the details or timing of when this occurred, saying it was a long time ago and that he could not remember. He always attended with other people but could not name anyone he attended with other than “Mark”.

[44] Mr. Henry helped Ms. Bryan rent the 19 Western Battery Road apartment sometime in January 2021, on this informal basis. He was aware that she was trying to get out of an abusive relationship and needed somewhere to store her belongings. He told her not to be there for long, and understood she was using it as a place to store her stuff and stay if she needed to. Mr. Henry did not help her move in.

[45] Mr. Henry was questioned about when he was last in the apartment. Initially, he indicated it was possible that he was there the day of the police search but later testified he had not been in the apartment since Ms. Bryan started staying there. Mr. Henry’s evidence on this point was vague and inconsistent.

[46] Around January and February of 2021, Ms. Bryan would stay at Mr. Henry’s residence on Queens Quay on occasion, but according to Mr. Henry, he never stayed with Ms. Bryan at the Western Battery Road address.

[47] Mr. Henry’s fingerprint and an unknown print were found on the firearm. Mr. Henry denied knowing anything whatsoever about the gun or how it came to be in the apartment. Mr. Henry also testified that he did not leave anything in the apartment or have knowledge of any illicit items found in the apartment. This was implausible evidence in my view as Mr. Henry had at minimum touched if not been in possession of that firearm given his fingerprint.

[48] On February 14, 2021, Mr. Henry was having a Valentine’s Day celebration at his apartment in the Queens Quay area with the mother of his child, Maria. Mr. Henry first testified that he may or may not have seen Ms. Bryan that day but could not recall. A short time later he testified that Ms. Bryan showed up angry to his apartment and there was a “commotion” between Ms. Bryan and Maria. Everyone was drunk and there was a lot of yelling between all three of them.

[49] Mr. Henry, however, was vague on the details of what the commotion was about or what started it. Mr. Henry was aware that Ms. Bryan had been hurt, and although he did not see her get hurt, assumed it happened during the commotion because things were being thrown around.

[50] Mr. Henry’s evidence was suspicious and inconsistent about when he was last in the apartment. At some point Mr. Henry had a key to the apartment and a firearm with his fingerprint was found in the apartment on February 14, 2021. I do not accept Mr. Henry’s denial that he had no knowledge of the firearm or how it came to be in the apartment.

vi) Was Ms. Bryan Residing at Unit 3321 19 Western Battery Road on February 14, 2021?

[51] The Crown argues that when looking at the evidence as a whole, it is clear that Ms. Bryan was residing at the apartment. They rely on the contents of the apartment and how it was furnished, the property management information and the evidence of Adam Henry.

[52] Counsel for Ms. Bryan points to several gaps in the evidence establishing whether Ms. Bryan was living there or just had access to the apartment for the purpose of storing her belongings and staying there if needed.

[53] I am satisfied that Ms. Bryan was to some extent occupying the apartment given how it was furnished, the personal documents in her name and the clothing in the closets. Ms. Bryan has a child, and the second bedroom was furnished and decorated as a child’s bedroom. There was a PlayStation on the floor in the main room and a child’s bike on the balcony.

[54] Both bathrooms appeared as though they were being used with numerous products on the shelves and in the drawers, fake eyelashes under the sink and multiple toothbrushes by the sinks. The kitchen appeared to have some limited pantry supplies and there was a bottle of dish soap by the sink.

[55] There was some evidence of female clothing and items, including some clothes and women’s shoes. In fairness, while there might have been additional clothing in bags and the laundry hampers, there was no evidence this was looked at to determine if it was male or female clothing.

[56] Mr. Henry testified, and I accept his evidence on this point, that he connected Ms. Bryan with the people who were renting out the apartment. He believed she was staying there but did not know how often or if she was just storing her belongings.

[57] Ms. Bryan’s name was on what appeared to be an intercom request form dated January 9 or 12, 2021, although there was no other property management documentation connecting Ms. Bryan to Unit 3321 Western Battery Road.

[58] However, the evidence also suggests that Ms. Bryan was still connected to the 15 Iceboat Terrace residence. According to Mr. Henry, this is where he understood Ms. Bryan to still be living. Several of the documents in Ms. Bryan’s name had this address on them. Police never followed up to determine what connection, if any, Ms. Bryan still had to the Iceboat Terrace residence.

[59] When Ms. Bryan was arrested, she was not in possession of a key to the apartment or a fob for the Western Battery Road building. While I appreciate she did not have any keys in her possession, the fact that she did not have a key to the apartment has some relevance: R. v. Choudhury, 2021 ONCA 560.

[60] Ms. Bryan’s only access to the residential floors was by way of the elevators off the lobby. The lobby did have video surveillance. Officer Lorimer and the security guard did not locate any footage of Ms. Bryan coming or going from the lobby area at any time proximate to the police search on February 14, 2021.

[61] The Crown argued that the officers did not know what Ms. Bryan looked like at the time, suggesting that maybe they just missed her entering or exiting 19 Western Battery Road. However, no follow-up investigation was done to look for video footage to determine when Ms. Bryan was last at the address. In my view, there is a gap in the evidence as to when Ms. Bryan was last at Western Battery Road.

[62] For the foregoing reasons, it is unclear whether Ms. Bryan was staying at the Western Battey Road apartment full-time or occasionally. Given this, I am unable to determine when Ms. Bryan was last at the apartment, and whether it was on or prior to February 14, 2021.

C. Is there a Reasonable Alternate Inference on the Evidence?

[63] Counsel for Ms. Bryan argues there is a reasonable inference available on the evidence that the illicit items found in the apartment belonged to Mr. Henry and were in the Western Battery Road apartment without Ms. Bryan’s knowledge.

[64] There is evidence that Ms. Bryan was occupying the apartment at some point proximate to February 14, 2021. The presence of personal documents or items in a place may establish knowledge of and control over the contents of that place: R. v. Emes.

[65] I agree that given Ms. Bryan’s occupancy of the apartment there is a strong inference that Ms. Bryan would have had knowledge of the items found in plain view during the search. That, however, is not the end of the inquiry. The issue is whether it is the only reasonable inference.

[66] There is no evidence that Ms. Bryan was involved in the trafficking of drugs or was otherwise involved in the drug trade, or the bomb business for that matter. This contrasts with evidence which illustrates that someone who is in the business of dealing narcotics has more opportunity and is more likely to be in possession of narcotics: R. v. Lepage, para 37. The Crown does not suggest that Ms. Bryan was in personal possession of any of the items in the apartment.

[67] In support of the argument that there is an alternate inference that Mr. Henry brought the illicit items into the apartment, counsel for Ms. Bryan points to the gaps in the evidence as to whether the clothing in the apartment was male or female or both.

[68] Numerous shoe boxes were found but there was no evidence, but for two pairs of women’s heels, whether these were men’s or women’s shoes. A pair of what appeared to be Fruit of the Loom men’s underwear was found by the mop bucket. By the front door were a pair of black slides next to a noticeably smaller pair of white running shoes.

[69] Counsel for Ms. Bryan also argued that other people had access to the apartment. Mr. Henry was not challenged on his evidence that in late December 2020 and early 2021, the apartment was being rented out informally, there were multiple keys “floating around” and people were in and out of the apartment. He himself acknowledged having a key at some point, although he attempted to distance himself from anything found in the apartment.

[70] Mr. Henry and Ms. Bryan were in some kind of relationship. According to Mr. Henry, they were more than friends but not boyfriend/girlfriend. There was a dispute between Ms. Bryan and the mother of Mr. Henry’s child on February 14, 2021, during the Valentine’s Day celebration. Clearly Mr. Henry was spending time with both Ms. Bryan and the mother of his child.

[71] Ms. Bryan would occasionally stay at Mr. Henry’s apartment at Queens Quay. I do not accept Mr. Henry’s evidence that he was never at the Western Battery Road apartment once Ms. Bryan started staying there. In his own evidence at a later point, he acknowledged it was possible he was at the apartment on February 14, 2021.

[72] According to the security guard, there were two fobs associated to the apartment. As the Crown acknowledged in their submissions, it is possible the fobs were being used by two separate people. While Mr. Henry had difficulty recalling the specifics of how he used the elevator, which did require a fob, this is not dispositive as Mr. Henry did access the apartment, so he presumably was in possession of a fob at some point.

[73] I am satisfied that the evidence of Mr. Henry’s connection to the apartment, along with his fingerprint on the firearm, does support an inference that Mr. Henry had access to the apartment proximate to February 14, 2021.

[74] I am unable to rule out the possibility that Mr. Henry still had a key and that on occasion was staying at the apartment with Ms. Bryan. It is also a possible inference on the evidence that he was at the apartment at a time after Ms. Bryan had last been in the apartment, and specifically that he was in the apartment on the day of the search.

[75] The Crown must prove not only that Ms. Bryan had knowledge of the drugs, firearm and explosives on the day of the search, but that she also exercised a measure of control over them. Ms. Bryan’s knowledge and control of the illicit items on February 14, 2021 must be the only reasonable inference on the facts.

[76] For the following reasons, in my view, it is a reasonable alternate inference that the drugs, firearm and explosives belonged to Mr. Henry and were brought into the apartment either without Ms. Bryan’s knowledge or at a point after Ms. Bryan was last at the apartment.

D. Conclusion

[77] I have reminded myself that the Crown’s burden of proof beyond a reasonable doubt is a heavy burden. It is not sufficient to believe that a defendant is probably guilty. The standard, however, does not require the Crown to prove its case to the point of absolute certainty, as that would set an impossibly high standard. Reasonable doubt can arise from the evidence or lack of evidence, and is a doubt based on reason and common sense: R. v. Lifchus, para 39.

[78] I have also reminded myself that it is the circumstantial evidence as a whole and its cumulative effect that must be considered against the beyond a reasonable doubt standard. The circumstantial evidence is not to be assessed on a piecemeal basis, and the burden of proof beyond a reasonable doubt does not apply to individual pieces of evidence: R. v. Chu, 2023 ONCA 183, para 5.

i) Drugs and Ammunition

[79] I am not satisfied beyond a reasonable doubt that Ms. Bryan was in possession of the drugs and the ammunition on the floor. Although the drugs and ammunition were in plain view at the time of the search, I have no evidence as to when they came to be in the apartment, or when they came to be in plain view. I am not persuaded that the only reasonable inference on the evidence is that the items were in the apartment when Ms. Bryan was last in the apartment.

[80] It was agreed that the fentanyl found in the apartment if sold by the ounce would be worth approximately $41,220 to $61,830 and the methamphetamine if sold by the ounce would be worth approximately $2,051 to $3,170.

[81] I do not dispute that it is open to a trier of fact to infer knowledge of the nature of the substance from the fact that an accused is in possession of a controlled substance of significant value. This is based on the logic that a valuable quantity of drugs would not be entrusted to anyone who did not know the nature of the contents of the bag or container. This reasoning also applies to firearms: R. v. Thompson, 2020 ONCA 361; R. v. Bains, 2015 ONCA 677, para 157.

[82] The difficulty with that argument in the circumstances of this case is there is no evidence as to when Ms. Bryan was last in the apartment and whether that coincided or not with the drugs, firearm and ammunition being in the apartment.

[83] Mr. Henry’s fingerprint was on the firearm and ammunition was scattered on the floor. I completely reject his evidence that he had no knowledge of the firearm or how it came to be in the apartment. In my view, it is a reasonable alternate inference on the evidence that the drugs, firearm and ammunition belonged to Mr. Henry.

[84] While the evidence suggests some kind of drug trafficking operation going on in the apartment, there is little or no evidence that this was taking place at a time Ms. Bryan was occupying the apartment.

[85] The Crown argued that there is an inference available that Ms. Bryan had been in the apartment at some point shortly before the police arrived on February 14, 2021, and was the one who trashed the apartment. They base this on what looked like a blood smear on the door, Ms. Bryan’s agitation, and Ms. Bryan’s arm injury at the time of her arrest.

[86] While I agree this is suspicious, Mr. Henry’s evidence was that during the commotion in his apartment, things were being thrown around and he believed this was when Ms. Bryan was injured. In addition, when police arrived at 39 Queens Quay East at approximately 1:00 a.m., Ms. Bryan’s arm was actively bleeding as though the injury had just happened.

[87] There was no testing done of what was believed to be blood on the door to see if it in fact was blood. No one described the blood on the door as fresh, and the photo taken does not assist as it was a general photo of the door, not specifically a photo of what was believed to be the blood smear. I also note that there was no evidence of blood in the apartment itself.

[88] I am not required to answer the question as to what happened in the apartment and why it was trashed. The only question is whether the only reasonable inference available on the evidence is that Ms. Bryan was in possession of the drugs, firearm and explosives on February 14, 2021. It is not.

[89] I am not satisfied beyond a reasonable doubt that Ms. Bryan was in possession of the drugs and ammunition on the floor.

ii) Firearm

[90] I am also not satisfied that Ms. Bryan had knowledge of the firearm or of the methamphetamine on the shelf beside the firearm. The small bag of methamphetamine was not in plain view.

[91] The firearm was located on a shelf above the head of an officer who is six feet tall. While there is no evidence as to Ms. Bryan’s height, from the Body Worn Camera of PC Cole and the booking video, it is obvious that Ms. Bryan is not a tall person. It was only when standing at the far end of the apartment that Officer O’Neill was able to see part of the butt end of the firearm. He then had to reach up and lift the firearm to confirm that it in fact was a firearm.

[92] Other people had recent access to the apartment, including Mr. Henry. A fingerprint belonging to Mr. Henry and a print belonging to an unknown person were found on the firearm. At some point, Mr. Henry was in possession of that firearm, and it was located on a shelf well above the height of Ms. Bryan. I have already rejected Mr. Henry’s evidence that he had no idea how the firearm came to be in the apartment.

[93] I agree that the question is not who owned or ever touched the firearm. The question is whether the only reasonable inference on the evidence is that Ms. Bryan knew about the firearm and exercised a measure of control over it.

[94] As the Court of Appeal explains in R. v. Pham, paras 15-16, to establish joint or constructive possession there must be knowledge which extends beyond mere “quiescent” knowledge and exhibits some measure of control over the item. Awareness does not constitute knowledge. Mere indifference or passive acquiescence is not enough: R. v. Thompson, 2010 ONSC 2997, para 47.

[95] In my view, it is a reasonable possibility that the firearm belonged to Mr. Henry, and that he left it in Ms. Bryan’s apartment without her knowledge. This alternative is a reasonable possibility and does not reach the level of “implausible” or “far-fetched”. I am not satisfied beyond a reasonable doubt that Ms. Bryan was in either constructive or joint possession of the firearm.

iii) Explosives

[96] I am not satisfied that Ms. Bryan had knowledge of the explosive material found in the closet. It is a reasonable possibility that someone put this bag in the closet without Ms. Bryan’s knowledge and even had Ms. Bryan looked into the bag, I am not satisfied that she would have known what it contained.

[97] Constructive possession requires knowledge of the character of the item, and in this case, I am not satisfied Ms. Bryan possessed that knowledge: Beaver v. The Queen; R. v. Morelli, 2010 SCC 8, para 17.

[98] It was not obvious that this was an explosive device. The officers themselves did not know what they were looking at when they found the bag. Even once the contents of the bag had been dumped onto the bed, it was only on closer inspection that the officers realized it was some kind of explosive device.

E. Disposition

[99] While this is a very close call and I am highly suspicious, I am not satisfied to the standard of proof beyond a reasonable doubt that Ms. Bryan was in possession of the drugs, ammunition, firearm or explosive materials.

[100] Ms. Bryan will be found not guilty on all counts on both indictments.

J.K. Penman
Released: February 21, 2025

[1] I heard a Charter application with respect to alleged violations of Ms. Bryan’s ss. 8, 9 and 10 rights. Those reasons are reported at R. v. Bryan, 2024 ONSC 6058. Defence counsel at the time advised the court of their wish to re-elect to proceed by way of judge alone. Counsel agreed that the matter would proceed by way of a blended hearing before me. On further reflection, it was agreed that the matter would proceed “unblended”, but that the evidence on the motion would apply to the trial proper, subject to any exclusionary rulings.