Reasons for Judgment

Delivered: Orally and in writing on January 10, 2025
Court File No.: CR-21-5282
Ontario Superior Court of Justice
Between:
His Majesty the King – and – Hussein Al Hayawi (Accused)

Appearances:

• Richard Pollock, for the Federal Crown
• George Spartinos, for the Provincial Crown
• Jack Lloyd, for the Accused

Heard: April 3, 4, 2023 and September 19, and 20, 2024

Justice: Brian D. Dubé

A. Introduction

[1] On January 15, 2019, Police Constables (“PC”) William Gordon and Dale Roorda stopped the accused’s vehicle for alleged offences under the Highway Traffic Act, RSO 1990, c H.8 (“HTA”). Upon speaking with the accused, who was the sole occupant and driver, PC Roorda detected a strong smell of marihuana emanating from inside the vehicle.

[2] A warrantless search was subsequently commenced, and the accused was arrested for possessing a large quantity of marihuana discovered sticking out of a satchel that was located on the passenger seat. PC Roorda conducted a further search of the vehicle incident to arrest and discovered additional illicit substances together with three firearms, ammunition, and an empty magazine.

[3] As a result of the arrest of the accused and search of his vehicle, the accused was charged with 14 offences: three (3) counts of possessing a restricted/prohibited firearm without a permit contrary to the Criminal Code, RSC 1985, c C-46; three (3) counts of occupying a motor vehicle knowing that located therein was a prohibited/restricted firearm contrary to the Criminal Code; one (1) count of unlawfully transporting a firearm; one (1) count of possessing a prohibited cartridge magazine without a permit contrary to the Criminal Code; three (3) counts of possession of a Schedule I substance, namely, MDMA, oxycodone, and alprazolam, contrary to the Controlled Drugs and Substances Act, SC 1996, c 19 (“CDSA”); two (2) counts of possession of Schedule I and IV substances for the purpose of trafficking, namely, cocaine and methamphetamine, contrary to the CDSA; and one (1) count of possession of cannabis for the purpose of selling it, contrary to the Cannabis Act, SC 2018, c 16.

[4] The accused brought an application pursuant to the Canadian Charter of Rights and Freedoms (“Charter”) alleging an infringement of his ss. 8, 9 and 10(a) and (b) rights.

[5] On April 27, 2023, I dismissed the Charter application: see R. v. Al Hayawi, 2023 ONSC 2578.

[6] Before the blended voir dire/trial commenced, counts 11, 12 and 13 (simple possession of MDMA, oxycodone, and Alprazolam) were withdrawn at the request of the federal prosecutor.

[7] At the start of the voir dire, counsel for the accused made several admissions, including:

• Jurisdiction;
• The identity of the accused;
• The substance of the drugs;
• The continuity of all exhibits.

[8] After the voir dire concluded, the matter was adjourned and the accused discharged his former counsel. New counsel was subsequently retained and the continuation of the trial was scheduled for September 19 and 20, 2024.

[9] At the commencement of the trial, the accused made or confirmed the following admissions:

• That the evidence on the voir dire applies to the trial proper;
• The place and time of the allegations;
• The Report of PC Paul Maziak, Expert Opinion on Possession of a Controlled Substance for the Purpose of Trafficking, s. 5(2) of the CDSA.

[10] The accused elected not to testify at trial.

[11] After my ruling on the Charter application, the accused and both prosecutors agreed on the following at the trial proper:

• That it has been proven beyond a reasonable doubt that the 45.6 grams of cocaine, which is the subject matter of count 9, was possessed by the accused for the purpose of trafficking;
• That it has been proven beyond a reasonable doubt that the 18.3 grams of methamphetamine, which is the subject matter of count 10, was possessed by the accused for the purpose of trafficking;
• That it has been proven beyond a reasonable doubt that the 103.2 grams of marihuana discovered in the satchel, which is the subject matter of count 14, was possessed by the accused for his personal use;
• What remains a live issue is whether the accused knowingly possessed the marihuana in the trunk and, if I find beyond a reasonable doubt that he did, whether it was possessed for the purpose of selling it.

[12] Accordingly, the accused will be found guilty of counts 9 and 10.

[13] The only issue that I am now tasked to decide is whether the accused knowingly had, in the trunk of the vehicle, possession of the firearms, prohibited cartridge magazine, and cannabis (for the purpose of selling it), which are the subject matter of counts 1 through 8 and 14.

[14] My review of the evidence is limited to the determination of these narrow issues.

B. The Evidence

PC William Gordon

[15] PC Gordon had been a police officer for 15 years.

[16] On January 15, 2019, PC Gordon and his partner, PC Roorda, were on routine patrol in a marked Windsor Police cruiser. PC Roorda was the driver and PC Gordon was the passenger. At 8:34 p.m., while at a red light on the corner of Ouellette Avenue and Tecumseh Road and heading eastbound, PC Gordon observed a blue Dodge Charger with a rear number plate that was not illuminated, which is an offence under the HTA.

[17] A query of the vehicle revealed that the registered owner was Abdul Al Hayawi, and that the vehicle was associated with the accused, Hussein Al Hayawi, who was a suspended driver. It was later determined that Abdul Al Hayawi is the accused’s father. PC Roorda initiated a vehicle stop without issue, which took place in the parking lot of an apartment building.

[18] Once stopped, PC Roorda exited the cruiser and attended at the driver’s door of the Charger. PC Gordon made his way to the passenger side of the accused’s vehicle. While at the passenger side, PC Gordon noted that the windows were heavily tinted, which obscured his ability to get a clear look inside the vehicle, but he was eventually able to determine that the driver was the sole occupant.

[19] At some point, PC Gordon overheard what he assumed to be PC Roorda agreeing to a request by the accused to exit and inspect the burnt-out number plate light. When the driver opened the door to exit the vehicle, PC Gordon detected what he believed through experience to be a “very strong” odour of “fresh marihuana” from the vehicle.

[20] As the accused proceeded to the rear of the vehicle, PC Roorda advised PC Gordon that he observed a knife and pointed towards the side panel of the driver’s door, which was left open by the accused. PC Gordon subsequently moved over to the rear driver side of the vehicle and observed a knife in the pocket of the door, which was in a sheath and approximately 12 inches long.

[21] PC Roorda eventually directed PC Gordon to place the accused under arrest for possession of cannabis over 30 grams. After a search of the vehicle, the accused was arrested again for five counts of possession for the purpose of trafficking. Both arrests resulted in the accused being provided with his rights to counsel and caution.

[22] PC Roorda was then observed to attend the rear of the vehicle with a key in hand and search the trunk. That search led to PC Roorda discovering a large hockey bag that contained the following items:

• A Bushmaster .223 rifle;
• Two Canuck 12-gauge shotguns;
• Ammunition.

[23] A large clear Ziplock bag of marihuana was also seized in the area where the spare tire would normally be situated.

[24] At 8:48 p.m., the accused was arrested for a third time and provided with his rights to counsel and caution.

PC Sean Jones

[25] PC Jones was the exhibit officer. He testified about the items that were seized by PC Roorda from the accused’s vehicle during the search. These items, later filed as exhibits, are as follows:

• Exhibit #1 – a black shoulder satchel;
• Exhibit #2 – a large black hockey bag;
• Exhibit #3 – five bags of cocaine (from bag A to E):
  • Bag A – 17.7 grams
  • Bag B – 24.1 grams
  • Bag C – 1.1 grams
  • Bag D – 1.5 grams
  • Bag E – 2.0 grams
• Exhibit #4 – one bag of crystal methamphetamine – 18.3 grams;
• Exhibit #5A and B – two plastic bags of marihuana:
  • Exhibit #5A – 189.8 grams
  • Exhibit #5B – 103.2 grams
• Exhibit #6 – black infinity digital scale – no residue;
• Exhibit #7 – larger black infinity digital scale – white residue;
• Exhibit #8 – two cellphones:
  • Exhibit #8A – a black Alcatel flip cellphone
  • Exhibit #8B – a LG smart cellphone
• Exhibit #9 – roll of clear plastic bags.

[26] PC Jones testified again when the trial continued. He stated that a prescription bottle for dog medication containing the name “Hussein Al-Ha” and dated October 31, 2018, was also seized from the vehicle (Exhibit #22). The bottle contained all 50 pills that had been prescribed.

[27] It was also clear from the photographs of Exhibits 5A and 5B (Exhibit #25) that the plastic bag containing the marihuana located in the satchel was different from the one found in the trunk. While both baggies were the same size, the notable differences were that the top of one bag was blue and the other was clear, and the marking on one said “Zip-Zag Original” and the other said “Ziploc”. The two also contained differing amounts of cannabis.

PC Dale Roorda

[28] PC Roorda was a patrol officer with the Windsor Police for 30 years. Since testifying at the voir dire, PC Roorda had retired.

[29] On January 15, 2019, he and his partner, PC Gordon, were on general patrol in the City of Windsor. While driving eastbound and approaching Hall Avenue on Tecumseh Road East, he observed an older Dodge Charger at approximately 8:34 p.m. with a burnt-out number plate light, which is an infraction under the HTA. The window tinting also prevented him from being able to see inside the vehicle, which was another HTA offence.

[30] PC Gordon ran the plates through the police computer and it was determined that a previous driver associated with the vehicle had a suspended licence, which is an arrestable offence. With the results of the computer query and after considering the HTA infractions as well as the vehicle being older and in poor condition, PC Roorda stopped the vehicle in a plaza parking lot and made a demand for a driver’s licence, proof of insurance and ownership.

[31] PC Roorda exited the cruiser and walked up to the driver side window. While talking with the driver, PC Roorda detected a “strong” or “heavy”, “pungent” odour of cannabis, which was not smoke, emanating from inside the vehicle. PC Roorda testified that although not an expert, he had a hunch, due to the strong odour of marihuana, that there was a large amount of marihuana in the vehicle.

[32] Based on the odour of marihuana alone, PC Roorda stated that he had grounds under s. 8 of the Cannabis Act (possessing over 30 grams of marihuana), and not the HTA, to conduct a search of the vehicle. PC Roorda testified that despite the odour, he continued the ongoing HTA investigation without knowing whether the accused would ultimately be ticketed for traffic offences or arrested.

[33] When asked to produce his documentation, the driver, who verbally identified himself as Hussein Al Hayawi, with a birthdate of December 23, 1996, advised that he left his driver’s licence at home. He subsequently provided proof of ownership and an insurance card through the small gap in driver’s side window.

[34] PC Roorda allowed the accused to exit the vehicle to confirm that the light was not operating. When the accused did so, PC Roorda immediately observed a large hunting knife in the side pocket of the driver’s door, which he seized. PC Roorda then stuck his head inside the driver side door and observed a large clear Ziplock bag containing marihuana (Exhibit #5B) which was sticking out of a small satchel (Exhibit #1) situated on the passenger seat.

[35] PC Roorda testified that he believed, based on the large quantity and the strong odour, that the marihuana observed was greater than 30 grams. As a result, PC Roorda advised PC Gordon to arrest the accused under the Cannabis Act for possessing more than 30 grams of marihuana. He then conducted a physical search of the satchel and of the vehicle’s interior as incident to that arrest.

[36] The search of the satchel resulted in the discovery of suspected cocaine (Exhibit #3), methamphetamine (Exhibit #4), oxycodone, Xanax, MDMA and an Infinity portable scale (Exhibit #6 or #7). PC Roorda located another Infinity portable scale (Exhibit #6 or #7) in the cupholder of the vehicle’s centre console together with a roll of clear plastic bags (Exhibit #9). Another smaller steak knife was seized from the same pocket of the driver’s side door where the large hunting knife was located. Finally, a small bottle in the name of “Hussein Al-Ha” that contained medication for a dog was located on the back floor of the vehicle.

[37] As a result of the search, the accused was arrested for possession for the purpose of trafficking.

[38] PC Roorda subsequently took keys from the ignition to open the trunk and observed a large hockey bag (Exhibit #2). Inside, he discovered three firearms, an empty magazine, and ammunition (56 12-gauge shells; 19 7.62 rifle rounds; two centre fire rounds; and 13 .22 calibre long rounds). The firearms were subsequently examined and rendered safe. PC Roorda testified that none of the firearms were loaded. Also seized from the hockey bag were the following: a Mastercraft Sawzall, zip ties, a full and medium sized bolt cutter, a hammer, a pry bar, and an LG cell phone (Exhibit #8B).

[39] Finally, a second clear Ziplock bag containing a larger quantity of marihuana than that found in the satchel was discovered in the area where the spare tire would normally be located (Exhibit #5A).

[40] PC Roorda testified again on September 19, 2024, when the trial continued. He said that the accused did not produce a valid driver’s licence after the vehicle stop and that his licence was suspended. The accused told PC Roorda that his father, Abdul Al Hayawi, owned the vehicle, which was confirmed by the vehicle ownership (Exhibit #15).

[41] PC Roorda also testified that he seized two bags of cannabis from the trunk, which conflicted with his original testimony and that of the exhibit officer, PC Jones. He said that the one large freezer Ziploc type bag containing the marihuana on the passenger seat was similar to the two bags containing the marihuana which was found in the trunk. PC Roorda also advised that the bags of marihuana in the spare tire compartment of the trunk were located approximately 12 inches from the firearms. It is unclear from his evidence if the spare tire compartment was covered.

PC Douglas Tilson

[42] PC Tilson was qualified on consent to provide expert opinion evidence in the classification and verification of firearms, the test firing of firearms, and whether the firearms were functional.

[43] With respect to the firearms seized, PC Tilson provided the following evidence:

• PC Tilson both examined and test fired the two 12-gauge shotguns seized from the trunk of the vehicle. As per his reports (Exhibits #17 and #18), he determined both to be functional unrestricted firearms requiring that those who possess these firearms have a licence to do so. It was later determined that the accused did not have a licence to possess these firearms (Exhibit #19).
• PC Tilson also examined, and test fired the Bushmaster semi-automatic rifle seized from the trunk of the vehicle. As per his reports, he determined it to be a functional restricted firearm. As a restricted weapon, the firearm needed to be registered, which it was not, and those possessing the firearm needed to be properly licenced. It was later determined that the accused did not have the required licence to possess this firearm (Exhibit #19).
• Finally, PC Tilson observed an empty magazine inserted in the semi-automatic rifle when he received the firearm. After examining the magazine, he determined that the magazine was functional but that it had been manipulated, making it capable of holding 30 rounds of ammunition. This made the magazine a prohibited device under the Criminal Code. PC Tilson did not observe a trigger lock on the rifle.

Abdul Al Hayawi

[44] Abdul Al Hayawi (“Abdul”) testified with the assistance of two Arabic interpreters. He is the father of the accused.

[45] On January 15, 2019, he lived in a house with seven other people, including his spouse, the accused, his four other children and the spouse of one of his sons. Strangely, Abdul did not know the specific ages of his children, nor did he know who had a driver’s licence. On the date of the incident, he testified that he owned only one vehicle, which he identified from photographs as the subject Dodge Charger. This was the family vehicle.

[46] Abdul testified that the accused and anyone else with a driver’s licence was permitted on that date to drive the vehicle. The key to the vehicle was always hung on a wall. The vehicle was usually parked in front of the garage on the driveway. The vehicle is visible from roadway at that location.

[47] He did not recognize Exhibit #22, which is the dog medication. At the time, the family did, and still does, own two dogs.

[48] Abdul stated that the subject vehicle was involved in an accident before the date the accused was pulled over by the police, which prevented the driver’s side door from locking. Pushing a button inside the vehicle would open the trunk.

[49] Abdul testified that on January 15, 2019, he did not have a licence to purchase or possess firearms, did not have any firearms, had no knowledge of the firearms that were later found by the police in the trunk of his vehicle, did not own cannabis, and did not recognize or have knowledge of the cannabis located in the trunk depicted in Exhibit #5A.

[50] As it relates to the police witnesses, the credibility or reliability of PC Gordon, PC Jones, and PC Roorda was not seriously challenged on the voir dire, and I ultimately accepted their testimony as true and accurate for the purpose of my Charter ruling. I also accept PC Tilson’s testimony at the trial continuation. His evidence was again not challenged.

[51] The defence argues that I ought to reconsider the initial finding of credibility/reliability that I made regarding PC Roorda’s testimony after he provided inconsistent evidence at trial from that of the voir dire about the number of bags of cannabis discovered in the trunk. However, I decline to do so for reasons that I will discuss soon.

C. Position of the Parties

The Federal Crown

[52] The prosecutor reminds me that the defence admitted that the accused possessed the cocaine and methamphetamine for the purpose of trafficking and, further, that the accused possessed the cannabis – all which were located together in the satchel. It is the position of the prosecutor that based on all the evidence, including that the accused was the driver and sole occupant of the vehicle, that the only reasonable inference that can be drawn from the evidence is that the accused had knowledge and control and therefore possession of the firearms, the prohibited cartridge, and the cannabis located in the trunk. The prosecutor submits that the defence theory that another or other individuals secreted these items in the trunk without the accused’s knowledge is nothing but pure speculation. Finally, based on the circumstances, the accused also possessed the cannabis for the purpose of selling it to others.

The Accused

[53] The defence submits that the prosecutor has failed to prove beyond a reasonable doubt that the accused had knowledge and control over the contents of the trunk. This is especially so, according to the defence, because many other people, including upwards of seven family members, possibly had easy access to the trunk. Further, that the conflict in PC Roorda’s evidence regarding whether he seized one or two baggies of cannabis from the trunk also casts a reasonable doubt on the continuity of all items seized by the police, notwithstanding that continuity had been conceded by the defence at the beginning of the Charter voir dire. Finally, even if I find that the accused did possess the cannabis in the trunk, the possession in the circumstances was not for the purpose of selling.

D. Analysis

[54] In R. v. Bains, 2015 ONCA 677, the Ontario Court of Appeal described the essential elements of possession as follows, at paras. 155-157:

[155] Under s. 4(3) [of the CDSA], possession includes personal possession, constructive possession and joint possession: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 15. Knowledge and control are essential elements in both personal and constructive possession: Morelli, at para. 15.

[156] Constructive possession does not involve an accused having physical custody of a subject-matter. Constructive possession is established where an accused has the subject-matter in the actual possession or custody of another person, or in any place, whether belonging to or occupied by the accused or not, for the benefit of the accused or someone else: Morelli, at para. 17. To establish constructive possession the Crown must prove beyond a reasonable doubt that an accused:

i. knows the character of the object;

ii. knowingly puts or keeps the object in a place; and

iii. intends to have the object in the place for his or her use or benefit or the use or benefit of some other person: Morelli, at para. 17.

[157] As with other offences, Crown counsel may prove the essential elements of constructive possession by direct evidence, by circumstantial evidence or by a combination of direct and circumstantial evidence. 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: R. v. Blondin, 2 C.C.C. (2d) 118 (B.C.C.A.), at p. 121; R. v. Fredericks, [1999] O.J. No. 5549 (C.A.), at paras. 3-4; R. v. To; and R. v. Bryan, 2013 ONCA 97, at para. 11. 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.

[55] On the issue of knowledge, the Ontario Court of Appeal in R. v. Lights, 2020 ONCA 128, says this, at paras. 50-52:

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

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

[52] Wilful blindness involves a degree of awareness of the likely existence of the prohibited circumstances together with a blameworthy conscious refusal of self-enlightenment. A person, aware of the need for some inquiry, who declines to make that inquiry because they do not wish to know the truth, is wilfully blind: R. v. Williams, 2003 SCC 41, at paras. 27-28; R. v. Briscoe, 2010 SCC 13, at paras. 22-24; R. v. Sansregret, at p. 584 S.C.R.

[56] The prosecutor relies on a prescription bottle for dog medication inscribed with the name “Hussein Al-Ha” that was discovered in the vehicle as evidence suggesting that the accused had a level of control over the vehicle from the date on the bottle, October 31, 2018, to the date of the incident, January 15, 2019. I disagree. The pill bottle may have remained in the vehicle on the date it was prescribed – or it may have been left in the vehicle by any family member at any time after October 31, 2018. This was a family dog. The medication was prescribed for the dog, not a family member. Although the accused’s name was apparently on the bottle, anyone caring for the dog could have left the dog’s prescription bottle in the vehicle. It is also evident from photographs of the vehicle (Exhibit #10), that the interior was littered with debris. To take one bottle from the mass of debris littering the inside of that vehicle, which may have been left by the accused or any other family member apparently having access to that vehicle, is a meaningless exercise that adds little to my analysis of whether the accused had knowledge and control over the items found in the trunk.

[57] The defence argues that PC Roorda’s conflicting evidence between his testimony on the voir dire and the trial undermines both the credibility and reliability of his evidence and the continuity of the cannabis and perhaps other items from the trunk. I again disagree. First, not only did former counsel at the voir dire concede the continuity of all exhibits, but I also accepted PC Roorda’s evidence in my ruling on the Charter application as credible and reliable. What is clear is that over five and a half years after the event and one and a half years after he last testified in this matter, PC Roorda provided conflicting evidence not on whether a relatively large quantity of cannabis was found in the trunk but whether it was contained in one or two baggies.

[58] The evidence is clear that only two baggies were found in the vehicle. Since he testified last, I am satisfied that the officer was simply mistaken about the number of cannabis baggies that were found in the trunk. I find that this relatively minor discrepancy in the testimony of an officer who has since retired from the force, when considered within the context of the evidence as a whole, does not change my overall assessment of his testimony, which I accept, as I did before, as both credible and reliable. As a result, despite this relatively minor discrepancy, I will not revisit my findings regarding the quality of PC Roorda’s evidence nor counsel’s concession at the commencement of the voir dire that the continuity of all Exhibits, including the cannabis, was admitted.

[59] The evidence at trial was that the police stopped the accused when he was the driver and sole occupant of a vehicle owned by his father. Hidden away in a hockey bag in the trunk were the firearms, ammunition, and a prohibited cartridge magazine. Cannabis was also discovered in a compartment apparently under the hockey bag. The items in the trunk were not subject to fingerprinting or DNA analysis. No physical or direct evidence connects the accused to any of the items discovered in the trunk.

[60] The evidence also clearly demonstrates that the accused knowingly transported a relatively large quantity of cocaine, methamphetamine, and cannabis together with smaller amounts of oxycodone, Xanax, and MDMA in the vehicle. In fact, the defence concedes that the prosecutor proved beyond a reasonable doubt that the accused not only possessed the cocaine and the methamphetamine but that he did so for the purpose of trafficking (counts 9 and 10). The concession is reasonable considering that PC Roorda noted a “very strong” odour of marihuana inside the vehicle and then observed, in plain view, a large clear Ziplock bag containing marihuana sticking out of a small satchel situated on the passenger seat next to the accused. After the satchel was searched, several other types of illicit substances were discovered, including a bag of methamphetamine and several baggies containing cocaine.

[61] Two scales were also found inside the vehicle, one in the satchel and the other in a cupholder. In addition, two weapons, namely knives, were discovered in the pocket of the driver’s side door. The drugs and weapons were within arms reach and easily accessible to the accused. The accused’s father testified that he had no knowledge of the cannabis or the firearms that were discovered by the police in his vehicle. It is not clear from Abdul’s testimony whether anyone else at the family residence was properly licenced and therefore permitted to drive the family vehicle.

[62] The accused had easy access to the trunk of the vehicle by using a key he possessed or by pushing a button in front of the driver’s seat. Not only were weapons and drugs located close together in the cabin of the vehicle, but additional weapons and drugs (three firearms and cannabis) were found within the trunk. A sizeable amount of cannabis in similar sized clear plastic Ziploc baggies were also found in both locations (the cabin and the trunk of the vehicle).

[63] The defence submits that it is plausible that a third party or third parties, whose identity or identities are not known, placed the impugned items in the trunk of Abdul’s vehicle for reasons that are not known. This individual or these individuals could have been a family member or family members living at the residence or perhaps another unrelated person or persons who decided to gain access and place a hockey bag with two shotguns, a semi-automatic rifle, a prohibited cartridge magazine and numerous rounds of ammunition inside the trunk of the vehicle, without the knowledge of the accused or Abdul, who owned the vehicle. If done by a non-family member(s), or perhaps even a family member(s), this could presumably have happened while the vehicle was in the driveway (although perhaps there are other scenarios), and the trunk easily accessible to others by way of a key or the push of a button.

[64] The connection between weapons, including firearms, and drug trafficking is a judicially recognized one: see R. v. Craigg, 2021 ONSC 3955, at para. 43; R. v. Musara, 2022 ONSC 3190, at para. 69; R. v. Jn-Baptiste, 2011 ONSC 1379, at para. 36. At the time the accused was stopped by the police, he admittedly possessed relatively large quantities of cocaine and methamphetamine that were located on the seat right next to him. At the same time, two knives were also located within arms reach. After considering these and other circumstances, I find it difficult to believe that in the very same vehicle that the accused not only possessed hard drugs that he had for the purpose of sale, in addition to cannabis and knives - he would not have known or would have been wilfully blind to the fact that more cannabis and additional weapons were also located in the trunk, which he could easily access, including three valuable firearms, and related items such as a prohibited cartridge magazine, and numerous rounds of ammunition.

[65] An inference can be drawn, which I do draw, that these firearms are valuable not from direct evidence that I heard at trial, but because of the commonsense belief that three functioning firearms, such as an unregistered semi-automatic Bushmaster rifle which looks like an assault rifle, would be the sorts of weapons that are highly sought after by individuals immersed in the criminal/drug subculture. Accordingly, it is highly unlikely that any third party would willingly place three very valuable firearms including one that, according to PC Roorda, looks very similar to patrol rifles issued to members of the Windsor Police (Exhibit #21) in the trunk of a vehicle in circumstances where effective control over the weapons would be significantly reduced and the chances unnecessarily increased that the weapons could potentially be lost.

[66] According to Abdul, anyone who lived at the residence and licenced to drive could, at any time, take that vehicle out for a drive. Therefore, each time the vehicle was driven by someone there would be a significantly increased risk that the firearms/ammunition could be discovered and lost. For instance, if the vehicle happened to be stopped by the police and searched (as in this case), if it was involved in a serious accident, or simply if the trunk was opened as part of activity that regularly happens every day, such as going to the grocery store and placing groceries in the trunk. I just do not believe, because it makes no sense, that any third party including those from the family would store three valuable firearms in the trunk of a vehicle knowing that someone unaware of the weapons could, in the absence of evidence to the contrary, presumably, at any time, drive it away.

[67] The only inference that makes sense is that any person or persons who placed the firearms and related items in the trunk would, thereafter, attempt in some fashion to maintain a degree of control over the vehicle – whether as the driver or someone acting in concert with the driver. Accordingly, I am satisfied beyond a reasonable doubt that the accused would have had knowledge (either directly or by way of wilful blindness) of the nature and character of the items found inside the hockey bag, including each firearm, the magazine, and the ammunition.

[68] I reject the assertion by the defence that the accused, while driving the vehicle, did not have the requisite knowledge of the firearms and ammunition in the trunk. The only reasonable inference that can be drawn from the circumstantial evidence when viewed logically and in light of human experience is that the accused not only had the requisite knowledge but as the driver, also control over the firearms, the magazine, and the ammunition in the trunk: see R. v. Villaroman, 2016 SCC 33, at para. 41. To say it another way, I find beyond a reasonable doubt that no other reasonable inferences may be drawn from the evidence that is consistent with the accused’s innocence: see R. v. To, at paras. 38 and 41.

[69] PC Roorda discovered an “empty magazine” together with ammunition in the hockey bag. The only empty magazine examined by PC Tilson was one that had been inserted in the semi-automatic Bushmaster rifle after he received it for examination (Exhibit #20). From the evidence, I find the empty magazine referred to by both PC Roorda and PC Tilson are one and the same item. After examining the magazine, PC Tilson determined that the magazine was functional and capable of holding 30 rounds of ammunition, which made it a prohibited device under the Criminal Code. Considering that the firearms and ammunition were stored in same hockey bag as the empty magazine, I find that it is reasonable to infer that the accused also knew the nature and character of the cartridge magazine.

[70] While not as strong as the firearms, I am satisfied that the circumstantial evidence establishes that the accused also knew of and had control over the cannabis in the trunk. The accused possessed drugs with the intent to sell same while driving his father’s vehicle. He was found to have several different drugs that he kept in a satchel on the passenger seat next to him. Knives were located in the cabin of the vehicle. Other weapons such as firearms were located in the trunk. The drugs in the satchel included cannabis. Cannabis was also found in the trunk. The cannabis discovered in both locations were packaged in similar sized Ziploc type baggies, although a different type. The type and weight of the baggies were different, but both contained relatively sizeable amounts of cannabis, namely, 189.8 and 103.2 grams. The cannabis in the trunk was located close to and underneath the hockey bag containing the firearms.

[71] In all the circumstances, I find the accused also had the requisite knowledge and control and therefore possession of the cannabis in the trunk and that he did so for the purpose of selling it. The quantity of what appears to be marketable cannabis was relatively significant, weighing 293 grams in total. It was found in two separate bags. One bag of cannabis was located inside a satchel together with five bags of cocaine, a bag of methamphetamine, and other substances. This suggests that the accused was a trafficker of various substances, i.e., the go-to guy (see Exhibit #24, PC Paul Maziak’s Report, at para. 10). The police also seized two scales and two cell phones from the vehicle. Weapons were also located inside the vehicle, including knives that were accessible to the driver – possibly for protection when selling drugs. No items found inside the vehicle were consistent with possessing the cannabis for personal use, such as rolling papers, a pipe etc.

[72] In all the circumstances, I find that not only was the cocaine and methamphetamine possessed for the purpose of trafficking but that the accused also unlawfully possessed the cannabis with the intent to sell it.

E. Conclusion

[73] After considering all the evidence, I find beyond a reasonable doubt that the accused had the requisite knowledge and control and therefore possession of two non-restricted shotguns and a restricted rifle, all of which were located in the trunk of a vehicle that he both occupied and operated. Since the accused was not the holder of a licence permitting such possession, I find him guilty of counts 1, 2, 3, 4, 5, 6, and 7.

[74] I also find beyond a reasonable doubt based on all the evidence, including that of PC Tilson, that the accused knowingly possessed a prohibited device, namely, a cartridge magazine capable of containing more than five cartridges, and I find him guilty on count 8.

[75] Finally, I find beyond a reasonable doubt based on the evidence that the accused, who was not otherwise authorized under the Cannabis Act, possessed cannabis for the purpose of selling it, and therefore he is guilty of count 14.

F. Judgment

[76] In conclusion, I find the accused guilty beyond a reasonable doubt on all remaining counts in the indictment, counts 11, 12 and 13 having previously been withdrawn.

Brian D. Dubé
Justice

Released: January 10, 2025