Reasons for Judgment

Court File No.: CR-24-90000023-0000
Date: 2025-04-11
Ontario Superior Court of Justice
Between:
His Majesty the King
and
Michael Alexander Llanos

Counsel:
I. Erdei, Counsel for the Crown
S. Rinas, Counsel for the Defendant

Heard: March 11, 12, 13, 14, 17 and 19, 2025

Judge: J.M. Barrett

Overview

[1] On December 26, 2022, the defendant, Michael Llanos, and his then girlfriend, Kyla Joyner, were arrested and charged with several offences relating to the possession of drugs and weapons found during a search of their one-bedroom apartment.

[2] Kyla’s charges were stayed after she died of a drug overdose on July 1, 2023. At trial, several formal admissions were made pursuant to s. 655 of the Criminal Code, RSC 1985, c C-46, leaving only one disputed issue: Mr. Llanos’ knowledge of the drugs and brass knuckles found in their shared apartment.

[3] The Crown’s case is entirely circumstantial. The defence submits that the Crown has failed to prove beyond a reasonable doubt that Mr. Llanos’ guilt is the only reasonable inference available. Rather, the defence argues that two alternative theories are available that are inconsistent with guilt: that unbeknownst to Mr. Llanos, Kyla Joyner had the contraband in the apartment either for herself, or as a favour for one of her drug suppliers.

[4] Mr. Llanos did not testify. Nor did the defence call any evidence.

[5] For the following reasons, I am satisfied that the only reasonable inference available is that Mr. Llanos possessed the drugs and the brass knuckles that were found directly beside the drugs.

Admitted Facts

[6] The parties filed an extensive thirty-page Agreed Statement of Facts (Exhibit 10) and a Supplementary Agreed Statement of Facts (Exhibit 35).

[7] Mr. Llanos admits that the drugs and brass knuckles were found in his apartment and that he had some measure of control over those items.[1] He further admits that the quantity of each controlled substance found was of such volume that possession was for the purpose of trafficking. Mr. Llanos denies any knowledge of the drugs and weapons seized.

[8] What follows is a summary of the facts admitted by the parties.

(i) Execution of the Search Warrant and Arrests

[9] On December 26, 2022, members of the Toronto Police Service obtained a warrant to search unit 208, at 10 Macey Avenue, in the City of Toronto. The target of the search warrant was Kyla Joyner. The warrant was obtained after a complaint was made to the police on December 25, 2022, by Kyla’s mother (Barbara Stock) and sister (Alana Joyner). Alana Joyner reported that she received threatening text messages from Kyla that included images of Kyla holding a gun while inside unit 208.

[10] Armed with a warrant, at 1:30 p.m. on December 26, 2022, the police went to 10 Macey Avenue. An officer viewed CCTV footage for 10 Macey Avenue from that day but observed nothing notable. Surveillance was set up on unit 208. Kyla Joyner was arrested at 5:53 p.m., immediately after she exited unit 208. One minute later, at 5:54 p.m., Mr. Llanos was arrested as he exited the elevator on the second floor and turned in the direction of unit 208. Mr. Llanos was carrying various items, including baby clothes, in plastic bags.

(ii) The Drugs and Weapons Seized

[11] In total, the police seized: 26.51 grams of fentanyl; 5.13 grams of cocaine; and 7.57 grams of crystal methamphetamine.

[12] With the exception of 0.07 grams of cocaine found in one of Kyla’s prescription pill bottles, all of the drugs were found on a chair in the living room in two boxes and a black Adidas satchel. The contents of each receptacle are summarized below:

• Black Box:[2] The repurposed Champagne box contained 22.91 grams of fentanyl, 3.02 grams of cocaine, and 6.36 grams of crystal methamphetamine. The fentanyl was in a KTape container. The crystal methamphetamine and cocaine were found in three glass cylinders. Aside from these controlled substances, the box also contained a functioning digital scale; several clean, unused plastic “dime” bags held together with an elastic; a driver’s licence in the name “Darren Blueboy” whose address was in Moose Factory, Ontario; an exacto knife; a black Sharpie marker; a pen; a $50 prepaid Mastercard with no name; a pink Post-it note that had “Dec” written in the upper left corner, as well as three columns titled “Party”, “Rob Ford” and “bitch” with lines below each title consistent with someone keeping track of items; and, a glass cylinder containing unidentified pills.

• Blue Box: The blue box had three dividers separating columns with plastic dime bags. On top of the right column was a dime bag with marijuana leaves. On top of the middle row was a dime bag containing white crystals labelled “Britney”. On top of the left row was a dime bag containing blue fentanyl. A total of 15 plastic dime bags were found. The inside of the lid had three pink Post-it notes listing six columns titled “Party”, “Sold”, “Rob Ford”, “Sold”, “Bitch”, “Sold”. Each column had marker lines underneath.

• Black Adidas Satchel: The satchel was found resting against the back of the chair with its zipper open. It contained 12 plastic dime bags with small quantities of either fentanyl, cocaine or crystal methamphetamine.

[13] The 27 dime bags found in the blue box and the black satchel had quantities of fentanyl, cocaine or crystal methamphetamine ranging from 0.08 grams to 0.44 grams.

[14] Black rimmed glasses were found on top of the blue box. Underneath the blue box, the police found a gold covered notebook, the first page of which contained the following list of names:[3]

Sam - 70
Teddy - 85
Leighton - 20
P - 20

[15] Black brass knuckles were found on the chair directly beside the two boxes and black satchel. A second set of brass knuckles were found in the living room but their precise location was neither photographed, nor otherwise recorded by police.

[16] Police fingerprinted some of the items found. No fingerprints suitable for comparison were found.

(iii) Occupancy of Unit 208

[17] At the time of the search, the lease holder for unit 208, 10 Macey Avenue, was Blanca De Llanos; Michael Llanos’ mother. The lease lists Michael Llanos as the sole occupant of the unit. The one-year lease commenced on October 1, 2021. The agreement was expired at the time of the search but it is an agreed fact that Michael Llanos and Kyla Joyner lived in unit 208.

(iv) Expert Opinion Evidence

[18] Following a voir dire, Detective Constable [“DC”] Jorge Hurtado was qualified as an expert on the pricing, modus operandi, distribution, and packaging of crystal methamphetamine, fentanyl, and cocaine. He was also qualified to provide evidence on coded language related to crystal methamphetamine, fentanyl, cocaine, crack cocaine, and marijuana.[4]

[19] The parties agree that DC Hurtado, if presented a hypothetical scenario consistent with the evidence in this case, would provide the following opinion:

• A quantity of 26.51 grams of fentanyl is of such a volume that quantity alone is indicative of possession for the purpose of trafficking.
• A quantity of 5.13 grams of cocaine and 7.57 grams of crystal methamphetamine alone could be consistent with possession by a heavy drug user. However, when examined with all of the other evidence, such as the manner in which the drugs were packaged, the presence of a functional digital scale, the debt list, and the unused packaging, these amounts of cocaine and crystal methamphetamine are also consistent with possession for the purpose of trafficking.
• Drug traffickers use a technique of including, with drugs, identity documents of other people who look similar to themselves to try to obfuscate ownership of the drugs in question.[5] DC Hurtado would also admit that it was possible that an identification found with drugs also simply belonged to the true owner of those drugs.
• Traffickers will sometimes have weapons for protection.
• It is common for drug traffickers to individually package drugs in dime bags and have empty dime bags for future drugs.
• Traffickers may at any given time have a large quantity of cash, drugs or both on their person, in their house or in their vehicle.

[20] In 2022, the value of the drugs seized would range in value depending on the quantity in which they were sold. In DC Hurtado’s opinion, the value of the substances found is as follows:

• Fentanyl: The total of 26.51 grams of fentanyl found in unit 208 would range in value from $3,181.20 to $5,832.20, depending on the quantity in which it was sold. In 2022, the price range was as follows: $20 per 0.1 gram; $60 to $80 per 0.5 gram; $180 to $220 per gram.
• Cocaine: The total of 5.13 grams of cocaine found in unit 208 would range in value from $410.40 to $615.60, depending on the quantity in which it was sold. In 2022, the price range was: $40 to $60 per 0.5 gram; or, $90 to $120, per gram.
• Crystal Methamphetamine: The total of 7.57 grams of crystal methamphetamine found in unit 208 would range in value from $378.50 to $1,135, depending on the quantity in which it was sold. In 2022, the price range was as follows: Point (0.1 grams) $10 to $15; or $50 to $80 per gram.

(v) Kyla Joyner’s Background

[21] On July 1, 2023, Kyla died of an opioid overdose caused by a fatal ingestion of fentanyl, cocaine, heroin, and fluorofentanyl. She was 23 years old.

[22] Prior to her death, Kyla was in an intimate relationship with Mr. Llanos for about six to seven years. Their relationship started when Kyla was 17 years old and Mr. Llanos was 34 years old.

[23] Kyla had a long history of drug addiction which Mr. Llanos was aware of. He knew Kyla used crystal methamphetamine, crack cocaine, fentanyl, and marijuana.

[24] Over the years, Kyla’s mother, Ms. Stock, called the police several times to request wellness checks on Kyla. Such checks were done on at least four occasions: October 31, 2017; August 24, 2018; October 2, 2022; and April 3, 2023.

[25] In a Supplementary Agreed Statement of Facts (Exhibit 35), the parties agreed that at the time of her arrest, there was evidence on Kyla Joyner’s phone that she was pregnant, that Mr. Llanos was aware of her pregnancy, that Kyla believed him to be the father, and that she wore an engagement ring.

(vi) Contents of Kyla Joyner’s Cell Phone

[26] On August 23, 2023, Ms. Stock gave the police one of Kyla’s three cell phones that Kyla left in Ms. Stock’s car sometime prior to her death. The parties agreed that an examination of the phone revealed the following:

• A screenshot of a prescription in Kyla Joyner’s name dated November 22, 2022, from the Centre for Addiction and Mental Health (“CAMH”). Phone location data showed that Kyla’s cell phone was used on the premises of CAMH on November 20, 2022. The next data location stamp was on November 23, 2022, at 10 Macey Avenue.
• Kyla had 2,715 contacts on her phone, including phone numbers, emails, Facebook, Instagram, and other social media contacts, but none named “Britney”.[6]
• Kyla’s contacts included the names “Teddy”, “Leighton”, and “Sam” (i.e., the names listed on the page from the gold notebook found underneath the blue box).
• Kyla’s call log history showed 388 calls to or from Mr. Llanos, whose contact name was “Daddy”.
• Kyla’s phone contained several photographs of Mr. Llanos wearing black rimmed glasses and her wearing silver rimmed glasses.
• No messages were found that could be interpreted as Kyla trafficking in drugs to third parties (although the Crown cannot show whether any of the phone’s contents were deleted before the phone was examined by the police).[7]
• Kyla had receipts and train tickets for trips to and from Cochrane, Ontario to Moosonee, Ontario for Mr. Llanos’ son, Miguel Halldorson. Moose Factory is an Indigenous Reserve in Moosonee, Ontario.[8]
• The call logs on Kyla’s phone showed calls with persons believed to be other drug dealers: 87 calls to or from “Ace” who also went by the name “Dope” and “Ave”; 99 calls to or from “Angelina”; 25 calls to or from “Badass”; and, 61 calls to or from “C30”.

[27] The “notes” section of Kyla’s phone contained a total of 333 notes, including the following:

• Note of June 26, 2022:[9] In this lengthy note addressed “To daddy”, Kyla wrote about their relationship. Some of her comments included: “[r]ecently I have been feeling like me and you are going down a slippery slide that we can’t get off of. We have for 1: started doing drugs again 2: im doing dumb shit with people over a chat line”. Kyla complained she felt like they were just “room mates” because “we don’t do anything together unless it’s getting high and going on the chat line”. Kyla wrote she wanted to stop doing drugs and having sex with other men and to give their relationship “another go” as she was “so sad” and “wouldn’t care if [she] died tomorrow”.

• Notes of October 18 and November 30, 2022: both show the name “Daddy” with numbers underneath.

• Notes of December 11 and 20, 2022: [content not detailed]

• Note of December 25, 2022: [content not detailed]

• Note of December 26, 2022: [content not detailed]

Other Evidence

(i) Viva Voce Testimony of Barbara Stock and Alana Joyner

[28] At trial, the Crown called two witnesses: Kyla Joyner’s mother – Barbara Stock, and her sister – Alana Joyner.[10]

[29] Ms. Stock’s testimony may be summarized as follows:

• Kyla Joyner was 16 or 17 years old when she began her relationship with Mr. Llanos. At the time, Mr. Llanos was in his thirties and had three children, one of whom was the same age as Kyla. Mr. Llanos was also known as “Spanish”.[11]
• Kyla Joyner used some drugs prior to meeting Mr. Llanos, but her drug use escalated to opioids during their relationship.
• In the months prior to her arrest, Kyla told her mother that she had started injecting drugs.
• Ms. Stock repeatedly called the police and asked for wellness checks, out of concern for Kyla’s safety. Kyla was always upset after a wellness check.
• Over the years, Kyla would sometimes return to the family home. When this occurred, Mr. Llanos would text or call non-stop.
• Whenever Ms. Stock called Kyla, Mr. Llanos would be in the background on speaker phone.
• In 2018, Ms. Stock took Kyla to CAMH, but Kyla stayed for less than one week. There were other times over the years that Ms. Stock tried to get Kyla into a rehabilitation facility.
• In November 2022, Ms. Stock took Kyla to CAMH after Kyla overdosed. The overdose was reversed with Narcan. At the time, Kyla looked “terrible”. CAMH admitted Kyla immediately, but Kyla did not stay.
• Around the time of Kyla’s admission to CAMH, she asked her mother for money and appeared worried.
• In the weeks prior to Kyla’s arrest, Kyla’s behaviour escalated. It appeared to Ms. Stock that things were out of control. Kyla was constantly “battering” Ms. Stock for money and acted like her life depended on getting Christmas gifts that Ms. Stock believed Kyla would sell.
• Over the years, Kyla received money from welfare, her mother, and from her job at a cannabis dispensary.
• On December 25, 2022, Ms. Stock and Alana Joyner went to the police and reported threatening text messages that Kyla sent to Alana.
• Prior to her death, Kyla had as many as three cell phones, one of which she gave to Mr. Llanos. After her arrest in December 2022, Kyla was in Ms. Stock’s car with two phones and mistakenly left one behind. After Kyla’s death, Ms. Stock gave this phone to the police. Before doing so, she did not alter anything on the phone.

[30] In cross-examination, Ms. Stock admitted to having many concerns about Kyla’s honesty over the years. Ms. Stock confronted Kyla about her lack of honesty. For instance, Kyla would ask for money to buy food or to pay the rent; however, Ms. Stock believed that in reality, the money was for drugs. Kyla’s drug use appeared to impact Kyla’s memory. Ms. Stock received a text from Kyla the day before she died (i.e., June 30, 2023), in which Kyla complained that Ms. Stock “screwed it up” because Ms. Stock was “more happy about putting him behind bars” when Kyla had been “living perfectly” but was now “homeless”. Kyla told her mother that she had “made a whole bunch” of things up because she was “mad and jealous”. Ms. Stock testified that she did not believe Kyla was the author of this text.

[31] Alana Joyner’s testimony may be summarized as follows:

• Alana is two years younger than Kyla.
• Kyla ran away from home when she was about 16 or 17 years old.
• Sometime after she ran away from home, Kyla started dating Mr. Llanos and then living with him in an apartment on “Gordonridge”.
• Once Kyla started living with Mr. Llanos, Kyla looked really bad and was not herself.
• Kyla and Mr. Llanos frequently argued. Alana believed Kyla was scared of Mr. Llanos.
• By 2022, Kyla and Mr. Llanos had moved from Gordonridge to their apartment at 10 Macey Avenue.
• On December 25, 2022, Alana made a police report about the threatening text messages Kyla sent, including the image of Kyla holding a gun that Alana recognized was taken from inside unit 208.
• Alana visited Kyla at 10 Macey Avenue about fifteen times. Mr. Llanos was always there whenever Alana visited.
• Kyla kept her possessions both at 10 Macey Avenue and at her parents’ home.
• The furnishings of unit 208 were mainly those of Mr. Llanos. Kyla’s clothing was in the bedroom closet of unit 208.
• Kyla sent Alana videos which she had made of herself smoking crack and methamphetamine with a pipe. Alana also knew Kyla to use fentanyl. Alana only saw videos of Kyla using drugs. Alana did not see any videos of Mr. Llanos using drugs.
• Kyla sent Alana a screenshot of crystal methamphetamine on the living room table at 10 Macey Avenue (Exhibit 8H).
• Alana did not know of Kyla selling drugs. Alana was also a drug user but has been “clean” for four years.

[32] During cross-examination, Alana Joyner agreed that Kyla would sometimes lie to her about her drug use, or claim that she was in “rehab”.

(ii) Kyla Joyner’s Text Communications

[33] The Crown filed text communications from five days in November 2022, between Kyla and Mr. Llanos (Exhibits 21-25). Although not part of the Agreed Statement of Facts, there was no dispute concerning the authenticity and admissibility of the texts.[12] The following is a summary of these text conversations:

• November 7, 2022: Mr. Llanos texted Kyla that his “pipe broke”, but she has the one he gave her yesterday. When Kyla replied that it’s “in my drawer” Mr. Llanos texted “Oh fuck should I know where you put it”. Kyla asked if Mr. Llanos was going to call “your boy”. He replied “I can get blow” and “the blow is good but I have to make it”. Kyla replied, “a 40 will cook back to be so small and I won’t get my full 20”.[13]
• November 12, 2022: During this text conversation, Mr. Llanos replied “ok” after three texts from Kyla that read: “I only have $20 cash so I don’t know what I want to do”; “I’m probably gonna wanna buy something from you so if I get the smokes give you a change can you give me you gave me a .5 for 20 last time so can you give me a .5”; “Scale it rn and it’s ok if it's a .4 I just don’t want less then that”; “And then no more for me I’ll quit with u”.
• November 13, 2022: During this brief one-minute text conversation, Kyla wrote “scale me out 10$ I alrey added to tab! Last one” to which Mr. Llanos replied, “come here”.
• November 15, 2022: In this text conversation, Kyla is upset over Mr. Llanos’ infidelity. Mr. Llanos tells Kyla that she has had sex with 43 people that year whereas he has only had two “new girls”. Mr. Llanos texts Kyla that she is “stupid” and “being an idiot” and a “fucking bitch” for “ruining everything […] because you do all the fucking drugs I give you and then fuck it up”. Mr. Llanos complains that he should be able to do what he wants and tells Kyla their “relationship is over”.
• November 18, 2022: A single text from Mr. Llanos reads “Get 500. Cream Pie”.[14]

[34] The Crown also filed six text communications between Kyla and third parties (Exhibits 26-31). Although not included in the Agreed Statement of Facts, the authenticity and admissibility of these texts was not disputed.[15]

[35] Two of the six text conversations involved explicit attempts by Kyla to get money from two men in exchange for sexual relations that were sent shortly after Mr. Llanos’ text on November 18, 2022, that read “Get 500. Cream Pie”. The other texts are with drug suppliers. In summary, these texts are:

• Texts with “Dope” (a.k.a. “Ace”) – November 6, 7, 13, 27, 2022: In these texts, Kyla asked to be “spotted” “a 30 of hard I’ll pay u tomorrow 100% I already spotted and payed u back so I will do it”. On November 13, Dope texted, “Let me come inside”. Kyla replied, “Where upstairs?” Dope confirmed “Ye” and that he was “With a girl”. Kyla replied, “Let me ask Spanish but you’ll give me that if I let you come up”. Dope said “Yes”. On November 27, 2022, Kyla asked to be spotted “a 30 of hard and the 30 or 40 lfedi and I’ll pay by Friday” and then wrote, “Ok yeah I only want 10 piece because I want a lot of fetyy”.
• Texts with “Angelina” – November 13, 2022: At 7:50 a.m., Kyla asked for “40” and arranged to meet Angelina. At 10:08 a.m., Kyla asked, “Could I spot 1 more 30 — It’s ok with the husband — I want it for him tbh – Coming rn got some weed and papers”. By 4:46 p.m., Kyla wrote “I am no longer doing drugs I have gotten to a point where it is fucked up and taken over my life so I’m quitting as of now please don’t give me anything ever again even if I beg you!”
• Texts with “C30” – November 18, 2022: Kyla complained to C30 about the poor quality of drugs she received and wrote, “Yo you gave me the same shit as last time I am not spending $120 to not get high so tomorrow when I see you I’m coming down with my pipe with Spanish I’m not buying it if it’s trash you never give me the a bag give me the A bag….” In another text, Kyla again asked for the “A bag” and wrote “When u needed a favor for me I was there right away. I never said no when u needed me”. Kyla complained, “I still don’t know why u won’t spot me. Like I always pay I’m a good customer. I get paid every 2 weeks. I have a job and I have never not paid back anyone. U almost known me for 6 years …”. In another text, Kyla complained again about the quality of the drugs and said, “I want the good shit all the time” and that if she asked “for a spot”, she should be spotted.

(iii) Hearsay Statements of Kyla Joyner

[36] At the outset of the trial, the Crown sought to admit a total of eight hearsay statements made by Kyla to either her mother or sister for the truth of their contents. Argument on this issue was heard during closing submissions. At that time, the Crown abandoned its request except in relation to the following two statements:

• Kyla’s statement to Barbara Stock: Around the time of Kyla’s admission to CAMH in late November 2022, she asked her mother for money and said it was needed to pay Mr. Llanos for drugs she took from his stash in their apartment.
• Kyla’s statement to Alana Joyner: A couple of months before Kyla’s arrest, Kyla was with her sister at their parents’ home when Kyla showed Alana an empty white box – similar to those used for Apple computers – and said, “Spanish gets me to keep fentanyl in here”.

[37] The Crown submits both are admissible either under the principled exception or, as declarations made in furtherance of an unlawful common design. Mr. Llanos opposes the admission of these statements on the basis that they do not meet the criteria for either exception.

[38] As I will explain below, I find that the statements are inadmissible.

Governing Legal Principles

Burden of Proof and Presumption of Innocence

[39] Mr. Llanos is presumed innocent of all charges. That presumption remains with him unless and until the Crown establishes his guilt beyond a reasonable doubt. That heavy burden of proof never shifts. There is no onus on Mr. Llanos to prove anything: R. v. Kruk, 2024 SCC 7, paras. 60-61.

[40] The standard of proof beyond a reasonable doubt is an exacting one. While the Crown is not obliged to establish guilt to an absolute certainty, proof beyond a reasonable doubt is much closer to proof of absolute certainty than it is to proof of probable or likely guilt: R. v. Starr, 2000 SCC 40, para. 242; R. v. Lifchus, paras. 13-14. Mr. Llanos can only be found guilty if I am sure that he committed the offences alleged.

Circumstantial Evidence

[41] Nothing illicit was found in Mr. Llanos’ personal possession. Unit 208 was unoccupied when the police entered to conduct their warranted search of the apartment.

[42] There is no evidence of who brought the drugs and weapons into unit 208, or when. There is no forensic evidence linking Mr. Llanos to any of these items.

[43] Given that the Crown’s case relies wholly on circumstantial evidence, the onus is on the Crown to prove that Mr. Llanos’ guilt is the only reasonable inference to be drawn from the evidence when viewed cumulatively as a whole: Kruk, at para. 62; R. v. Villaroman, 2016 SCC 33, para. 30; R. v. Morin, p. 362.

[44] This standard applies to the whole of the evidence, not individual pieces of evidence that are mere “building blocks of proof, not the final product”: R. v. Hudson, 2021 ONCA 772, para. 70.

[45] To discharge this burden, there can be no other reasonable inferences or conclusions available other than guilt: Villaroman, at para. 35. However, the Crown need not “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: Villaroman, at para. 37. Other plausible theories or reasonable possibilities inconsistent with guilt must be “assessed logically, and in light of human experience and common sense”: Villaroman, at para. 36. Alternative inferences need not, however, be based on proven facts. Nor must they be as strong or as compelling as the inference of guilt. Proof that guilt is the strongest reasonable inference will not suffice; guilt must be the only reasonable inference: R. v. Stewart, 2025 ONSC 1277, para. 118.

Law of Possession

[46] There is no issue that cocaine, fentanyl, and crystal methamphetamine were found in the living room area of unit 208. All are controlled substances under the Controlled Drugs and Substances Act, SC 1996, c 19. There is also no issue that brass knuckles were found and are a prohibited weapon, the possession of which is contrary to s. 91(2) of the Criminal Code. The only issue is whether the Crown has established Mr. Llanos’ possession of these objects beyond a reasonable doubt.

[47] Pursuant to s. 4 of the Criminal Code, possession may exist in three forms: personal; constructive; and joint. In this case, as the items were not found in Mr. Llanos’ personal possession, the issue is whether the Crown has proven beyond a reasonable doubt that Mr. Llanos had constructive and/or joint possession of the objects found.

[48] Constructive possession exists if a person has the item in question “in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person”: s. 4(3)(a)(i), Criminal Code; R. v. Morelli, 2010 SCC 8, para. 17; R. v. Lights, 2020 ONCA 128, para. 47; R. v. Choudhury, 2021 ONCA 560, para. 19.

[49] Joint possession exists “where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession”: s. 4(3)(b), Criminal Code; R. v. Pham, paras. 15-16, aff’d R. v. Pham, 2006 SCC 26.

[50] Tenancy or occupancy of a place where an object is found does not give rise to a presumption of possession: Lights, at para. 50; Choudhury, at para. 19; R. v. Lincoln, 2012 ONCA 542, para. 3. However, occupancy may be relevant when considering the issue of possession: Lights, at para. 98.

[51] The key question is what did Mr. Llanos know? Not, what ought he to have known.

Legal Principles Governing the Admissibility of Hearsay Statements

[52] The statements made by Kyla to her mother and sister are hearsay. As such, they are presumptively inadmissible unless they fall within an exception. In this case, the Crown seeks their admission under either the principled exception, or the exception for declarations made in furtherance of an unlawful common design.

[53] The principled exception is available if the statement meets the twin criteria of necessity and threshold reliability on a balance of probabilities. Ultimate reliability is determined at the conclusion of the trial by the trier of fact, based on a consideration of the statement in the context of all the evidence presented at trial: R. v. Khelawon, 2006 SCC 57, paras. 2, 47, 50; R. v. Bradshaw, 2017 SCC 35, paras. 23-24; R. c. Charles, 2024 SCC 29, para. 45.

[54] As a judge alone trial, the parties reserved their submissions on this issue to the end of the trial. However, as noted by the authors of Modern Criminal Evidence, “the purpose of these analyses remains distinct. It is essential that trial judges not weigh in on ultimate reliability at the admissibility stage”: Matthew Gourlay et al., Modern Criminal Evidence (Toronto: Emond Montgomery, 2022) at p. 188. Threshold reliability must be met for the statement to be admissible and available when determining whether, and to what degree, the statement should be relied upon in determining guilt. The standard for threshold reliability is high.

[55] There is no issue that the requirement of necessity is met. The declarant – Kyla Joyner – is deceased. Reliability is the only disputed issue.

[56] Threshold reliability is typically met in one of two ways: by demonstrating either procedural reliability, or substantive reliability. These, however, are not mutually exclusive; “factors relevant to one can complement the other”: Bradshaw, at para. 32.

[57] Procedural reliability is met where there are adequate substitutes for testing the truth and accuracy of the statement to compensate for the lack of contemporaneous cross-examination. Substitutes include video recordings of the statement, the presence of an oath and a warning about the consequences of lying. Some form of cross-examination of the declarant is usually required: Bradshaw, at para. 28; Charles, at para. 46.

[58] Substantive reliability is met if the statement is inherently trustworthy. Substantive reliability is concerned with “whether the circumstances, and any corroborative evidence, provide a rational basis to reject alternative explanations for the statement, other than the declarant’s truthfulness or accuracy”: Bradshaw, at para. 40. The standard for substantive reliability is high and requires that the trial judge “be satisfied that the statement is ‘so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process’”: Bradshaw, at para. 31, quoting Khelawon, at para. 49.

[59] To be corroborative, the evidence must relate to the material aspect of the hearsay statement. As explained in Charles, at para. 54 “[t]he function of corroborative evidence is thus to ‘mitigate the need for cross‑examination, not generally, but on the point that the hearsay is tendered to prove’” (Emphasis original). It must be capable of “ruling out plausible alternative explanations” for the material aspects of the statement: Charles, at para. 55; Bradshaw, at para. 47. Further, the corroborative evidence must itself be trustworthy: Bradshaw, at paras. 50 and 74.

[60] The common design exception is available if: (i) there is proof beyond a reasonable doubt that a conspiracy to traffic drugs existed between Kyla and Mr. Llanos; (ii) based on Mr. Llanos’ own words and conduct, he was probably a member of the conspiracy; and (iii) Kyla’s hearsay statements were made in furtherance of the common purpose: R. v. Carter, p. 947; R. v. Mapara, 2005 SCC 23, paras. 8-9.

[61] Admissibility is also subject to the residual discretion of a trial judge to exclude any admissible hearsay evidence where the prejudicial effect of the evidence outweighs its probative value: Khelawon, at para. 3; R. v. Dion, 2025 ONCA 7, paras. 32-33.

Analysis

[62] The sole issue at this trial is whether the Crown has proven beyond a reasonable doubt that Mr. Llanos was in possession of the fentanyl, cocaine, crystal methamphetamine and brass knuckles found in his residence.

[63] Before undertaking this analysis, I must first address the admissibility of Kyla’s two hearsay statements to her mother and sister.

(1) Admissibility of the Two Hearsay Statements

[64] In my view, the Crown has failed to demonstrate that either statement meets the test for admissibility.

[65] I will deal first with Kyla’s statement to her mother in late November 2022, that she needed money to repay Mr. Llanos for drugs taken from Mr. Llanos’ “stash” which was kept in their apartment. In my view, this statement fails to satisfy the criteria for admission.

[66] The principled exception is unavailable as the statement does not meet the criteria for threshold reliability. Procedural reliability is lacking because there are no adequate substitutes to compensate for the lack of contemporaneous cross-examination. The statement was not recorded. It was not made under oath or solemn affirmation. And, it was not a cautioned statement.

[67] Nor is the statement substantively reliable. It is not corroborated. Nor do the circumstances in which it was made imbue it with inherent trustworthiness. As explained by Karakatsanis J., in Bradshaw, at para. 45, to be corroborative, the evidence must “mitigate the need for cross-examination, not generally, but on the point that the hearsay is tendered to prove” (Emphasis original). The corroborative evidence must rule out plausible alternative explanations for the hearsay statement.

[68] In this case, the material aspect of Kyla’s statement is that Mr. Llanos kept drugs in their apartment. There is nothing corroborative of this material aspect. Even if the text messages between Kyla and Mr. Llanos are suggestive of Mr. Llanos keeping drugs in their apartment, the texts do not rule out the plausible alternative explanation for Kyla’s statement: She wanted money from her mother, and this was just another tactic.

[69] Nor does Kyla’s statement to her mother meet the test for admission under the common unlawful design exception. Even if the Crown had proven an unlawful common design and Mr. Llanos’ probable membership in it,[16] the statement does not meet the “in furtherance” requirement of the Carter test. It was not made in pursuit of any common unlawful objective between Kyla and Mr. Llanos: R. v. Hook. It is not a statement that can be said to be “the very acts by which the conspiracy is formulated or implemented and are made in the course of the commission of the offence”: R. v. Chang, para. 123; R. v. Bogiatzis, 2010 ONCA 902, paras. 34-36. Indeed, assuming the truth of Kyla’s statement, it shows an act independent of the common purpose, not an act of an agent advancing an unlawful common design.

[70] I reach the same conclusions with regard to Kyla’s statement to her sister, that Mr. Llanos got her to keep fentanyl in a white computer box.

[71] The statement lacks both procedural and substantive reliability. The statement was not recorded, was not under oath or solemn affirmation, and was not cautioned. There is nothing that corroborates the material aspect for which the Crown seeks its admission – that Kyla was in the practice of holding drugs for Mr. Llanos.[17]

[72] Similarly, the statement fails to satisfy the criteria for admission under the unlawful common design exception. The statement is narrative, or a recounting of past events. The statement was made about the common purpose, not in pursuance of it: Hook. It is not a statement that can be said to be “the very acts by which the conspiracy is formulated or implemented and are made in the course of the commission of the offence”: Chang, at para. 123.

Mr. Llanos’ Knowledge of the Drugs and Weapons Found in Unit 208

[73] In analyzing the evidence, I have considered the whole of the evidence cumulatively. I have not subjected items of evidence to any standard of proof before considering them. Evidence that appears tenuous or weak may still be probative when considered cumulatively.

[74] I recognize that there is an absence of any forensic evidence connecting Mr. Llanos to the drugs or weapons found or to any of the three receptacles which held the drugs. Nor is there any evidence about the origins of this contraband. When and how the items came to be in unit 208 is unknown. Indeed, despite the voluminous photographs found in Kyla’s phone, none show Mr. Llanos with the black satchel, the brass knuckles, or the two boxes in which the drugs were found.

[75] The evidence of Kyla Joyner’s possession of the contraband is overwhelming. For instance, she was the last person to exit unit 208 prior to it being searched by the police. Cocaine (0.07 grams) was found in a prescription bottle in her name. Her phone contained “notes” suggestive of a deep involvement in the drug subculture and trafficking (e.g., “Must get Baggies, Glass vials”).

(i) Are the two alternative theories reasonable?

[76] In this case, Mr. Llanos submits that the inferences available other than guilt are that Kyla brought the contraband into unit 208 without his knowledge, either for herself or, as a favour for another drug dealer. In support of this theory, Mr. Llanos points to the absence of any evidence about when he was last in unit 208, Kyla’s strong involvement in the drug subculture, Kyla’s text message in which she spoke of having done a favour for a dealer, and her agency as demonstrated by the fact that she was employed. Mr. Llanos further argues that Kyla may have been holding the drugs as a favour for one of her dealers and points to the evidence suggestive of a link to three others, namely “Ace”, “C30”, and “Darren Blueboy”. He submits that the black box could belong to “Ace”, given the Ace of Spades on its lid and Kyla’s numerous calls to Ace. The black box also contained the driver’s licence of Darren Blueboy. Further, in a text to “C30”, Kyla spoke of having done a past favour for C30.

[77] I reject these alternative theories. They are not reasonable, having regard to the totality of the evidence and based on logic, human experience, and common sense.

[78] In no order of importance, the following factors, viewed cumulatively, exclude these alternative theories:

• The value of the drugs: The drugs found were worth between $3,970.10 to $7,582.80. This is a significant sum for Kyla, who struggled financially and regularly had to borrow money or earn money through sex work. In the weeks prior to the search, Kyla asked to be “spotted” for small quantities of drugs from various people and appeared to encounter some difficulty — having to plead her case as someone who always paid after receiving her paycheck every two weeks.
• Location of items: The drugs were found in three containers on a chair in the living room – a common area – in a small, one-bedroom apartment. The chair is directly beside the couch. Although the drugs in the two boxes and satchel were not visible, none of the containers were locked, covered, or concealed. The zipper of the satchel was open. These containers were obvious to anyone on entry into the small apartment. The black brass knuckles were in plain view beside the containers.
• Multiple Containers: The three containers are obviously part of one trafficking operation. They contain the same types of drugs and similar tracking lists. The three containers reflect different aspects of the trafficking scheme. The black box contained the bulk supply along with drug paraphernalia, including a digital scale and unused dime bags. The blue box tracked and organized the drugs based on the type of substance in each dime bag. And, the black satchel was used for dealing – it contained nothing other than the dime bags ready for sale.
• Mr. Llanos’ control over the apartment: Mr. Llanos was the principal occupant of unit 208. He exercised control over who entered the unit as demonstrated by Alana Joyner’s testimony, that Mr. Llanos was present whenever she visited. Also, Kyla’s text message shows that Kyla would not allow Ace entry into her apartment before checking with Mr. Llanos.
• Controlling nature of the relationship: Mr. Llanos was a controlling partner who would be in the background on speaker phone whenever Ms. Stock called to speak with Kyla. On the occasions that Kyla returned to her parental home, Mr. Llanos would call and text non-stop. When they met, Kyla was only 16 or 17 years old, had run away from home, and had started living with Mr. Llanos who was 34 years old with children, one of whom was Kyla’s age.
• Black rimmed glasses: The black rimmed glasses found directly on top of the blue box appear to be those worn by Mr. Llanos in several photographs.
• Kyla’s personal circumstances: Kyla was heavily addicted to drugs. She purchased drugs or asked to be “spotted” for small amounts of drugs. Weeks earlier, she overdosed and looked so terrible that her mother brought her to CAMH where she was admitted immediately.
• Absence of evidence that Kyla sold drugs: While there is extensive evidence of Kyla’s heavy drug use, there is no evidence that Kyla trafficked to third parties. Alana Joyner was also involved in the drug subculture during this period yet did not know of Kyla ever trafficking in drugs.
• Expert evidence of DC Hurtado: It is an agreed fact (Exhibit 10, para. 81-iii) that drug traffickers may use the identity documents of another person whose appearance is similar in an attempt to obfuscate ownership. I find that this is why the black box had the driver’s licence of Darren Blueboy, whose photo bears a striking resemblance to Mr. Llanos.

[79] Viewed in totality, the only reasonable inference is that Mr. Llanos knew of the drugs. It is not logical to believe that one of Kyla’s drug suppliers would entrust her with drugs worth thousands of dollars. Kyla was a heavy drug addict who purchased small amounts of drugs, yet still asked to be “spotted” until her next pay day. Her mother, Barbara Stock, testified that prior to her arrest, Kyla had become particularly desperate for money.

[80] Nor is it logical to believe that Kyla had the drugs in unit 208 without Mr. Llanos’ knowledge and consent. They were not co-tenants. They were intimate partners in which Mr. Llanos was a controlling and emotionally abusive partner. Mr. Llanos was aware of Kyla’s drug addiction. He both sold and gave Kyla drugs as evidenced by their text messages. Just weeks prior to her arrest, Kyla overdosed and was admitted into CAMH. Then, by the time of her arrest, she believed she was pregnant and that Mr. Llanos was the father. Her texts and other conduct are such that I have no doubt that she would not act without Mr. Llanos’ explicit knowledge and approval.

[81] Even if Kyla had the agency suggested by the defence, it is not logical that she would leave the apartment with the containers in plain view. The three receptacles are immediately visible from the front entrance. It also makes no sense that Mr. Llanos’ black rimmed glasses would be on top of the blue box without his having knowledge of what the box contained. Further, the contents of the boxes and satchel demonstrate an active ongoing business of trafficking in fentanyl, cocaine, and crystal methamphetamine. Kyla’s cell phone suggested trafficking related activity on December 24, 25, and 26, 2022. Given all of the circumstances, I find it is not plausible that Kyla was engaged in trafficking without Mr. Llanos’ knowledge.

(ii) Is Mr. Llanos’ knowledge the only reasonable inference available?

[82] Having rejected the alternative explanations advanced by the defence as unreasonable, Mr. Llanos can only be convicted upon proof that his possession of the drugs and brass knuckles is the only reasonable inference available. In my view, it is the only reasonable inference to be drawn from the evidence as a whole, including:

• Location of the drugs: The boxes and satchel in which the drugs were found were not hidden away in a closet or drawer, nor covered or concealed. When Kyla left the apartment, she left all three containers in a prominent position beside the couch in the living room. The zipper of the satchel was open. The boxes were unlocked.
• Occupancy of residence: Mr. Llanos was the primary occupant and named tenant of unit 208. While Kyla lived with Mr. Llanos, she sometimes returned to her family home and was in and out of treatment programs, including CAMH, only five weeks prior to the search.
• Black glasses on blue box: Glasses worn by Mr. Llanos were found on top of the blue box.
• Driver’s licence of Darren Blueboy: DC Hurtado’s expert opinion evidence is that drug traffickers may use the identity documents of another person whose appearance is similar to theirs, in an attempt to obfuscate ownership. The photo of Darren Blueboy bears a striking resemblance to Mr. Llanos.
• Circumstances of arrests: On December 26, 2022, Mr. Llanos was observed returning to unit 208 one minute after Kyla exited, leaving all three of the drug receptacles in plain view. The CCTV footage of that day showed no one coming or going from the unit. While it is unknown how long Mr. Llanos was absent from the apartment, given that it was Boxing Day and he returned with bags of baby clothes, this suggests he was not absent for any significant period.
• Mr. Llanos’ prior trafficking to Kyla: Kyla’s text messages with Mr. Llanos show that in the weeks prior to the search, Mr. Llanos both sold and gave Kyla drugs, including cocaine. I have not used Mr. Llanos’ history of drug trafficking for forbidden propensity reasoning. Rather, I use it for its limited relevance on the issue of knowledge, given his recent access to and ability to traffic in similar drugs: R. v. Lepage, paras. 33-38.
• Nature of relationship: Kyla’s relationship with Mr. Llanos was abusive. Mr. Llanos was a controlling partner who exploited Kyla’s drug dependency. Kyla would not allow “Ace” into unit 208 without first checking with Mr. Llanos. Nor did Alana Joyner ever visit Kyla without Mr. Llanos being present. Mr. Llanos had a dominant, controlling role in their relationship. At the time of the search, Kyla believed she was pregnant with Mr. Llanos’ child.
• Kyla’s circumstances: About four weeks prior to her arrest, Kyla overdosed and was admitted to CAMH, where she stayed from November 20 to 23, 2022. Within days of leaving, Kyla messaged Ace and asked to be spotted for “a 30 of hard and the 30 or 40 lfedi” until her payday.
• Kyla’s personal stash: I find that the 0.07 grams of cocaine found in Kyla’s prescription bottle was Kyla’s personal stash which was kept separately from the other drugs. It is consistent with her past purchases of small quantities.

[83] Viewed in isolation, the individual pieces of this circumstantial case are not compelling. Viewed cumulatively, however, they are quite compelling. They satisfy me beyond a reasonable doubt that Mr. Llanos was clearly in possession of the drugs found. I find that they were his drugs. Kyla’s role was secondary.

[84] However, even if Kyla somehow acquired the drugs on her own, I am satisfied beyond a reasonable doubt that they were only stored in unit 208 with Mr. Llanos’ full knowledge and consent. Mr. Llanos had a strong controlling influence over all aspects of Kyla’s life. There is no reasonable doubt that Mr. Llanos had direct involvement in at least some aspect of the ongoing trafficking scheme that was active throughout December 2022.

[85] Turning next to the black brass knuckles that were found in plain view on the chair directly beside the two boxes and satchel containing the drugs, I am satisfied that Mr. Llanos knew of this object.

[86] I am not, however, satisfied beyond a reasonable doubt of his knowledge of the beige coloured brass knuckles. The only evidence about this object is found in the Agreed Statement. The parties agree that they were found “in the living room area of the apartment”. Without more, I am not satisfied that Mr. Llanos knew of this object. Was it found under a couch cushion? I know from Alana Joyner’s testimony that she and others visited the apartment. Given that other plausible theories need not be based on proven facts, without further information, the Crown has not met the high standard of proof beyond a reasonable doubt.

[87] In short, I find that Mr. Llanos was in constructive possession of the drugs and black brass knuckles found in his apartment. As to the quantity of cocaine that was possessed for the purpose of trafficking, I find that it does not include the 0.07 grams found in Kyla Joyner’s prescription pill bottle.

Conclusion

[88] For the reasons given, Mr. Llanos is found guilty on Counts 1, 2, 3, and 4.

[89] Mr. Llanos is found not guilty on Count 5.

J.M. Barrett
Released: April 11, 2025

Endnotes

[1] If knowledge can be proved, then the element of control can be inferred: see R. v. Chambers.

[2] A label on the inside of the black box shows it was for an Armand de Brignac Champagne bottle, also known colloquially as Ace of Spades.

[3] The “notes” feature of Kyla Joyner’s cell phone contained a note created on December 25, 2022, that lists three of these same names but a different dollar amount for one of the three: “Teddy: 85$”; “Leighton: $70”; “Sam: $70”.

[4] In an oral ruling, I found that DC Hurtado was qualified to give opinion evidence. DC Hurtado did not testify at trial. Instead, the substance of his anticipated testimony was included in the Agreed Statement of Facts.

[5] The photograph on the driver’s licence of Darren Blueboy found in the black box bears a striking resemblance to Mr. Llanos.

[6] The only “Britney” contact was that of a social media influencer.

[7] Ms. Stock testified that she did not alter the phone prior to giving it to the police.

[8] The driver’s licence of Darren Blueboy found in the black box had an address in Moose Factory, Ontario.

[9] The parties’ agreement to the contents of this note was included in a Supplementary Agreed Statement of Facts (Exhibit 35).

[10] In a ruling reported at 2025 ONSC 1690, the Crown’s application to admit evidence of prior disreputable conduct was granted in part, allowing Ms. Stock and Alana Joyner to testify about some of Mr. Llanos’ conduct toward Kyla.

[11] The name “Spanish” appears in some of Kyla’s text messages.

[12] During submissions, defence counsel agreed that Mr. Llanos’ texts were admissible against him, and that Kyla’s texts met the test for admission under the principled exception to the hearsay rule as they are both necessary and reliable; they are a contemporaneous written recording of the communication. The Crown argued that the texts are admissible as party admissions given that Kyla was originally a co-accused. As party admissions, the texts are admissible without reference to necessity and reliability: R. v. Schneider, 2022 SCC 34, para. 55.

[13] The Agreed Statement of Facts included DC Hurtado’s interpretation of some terms used in the text messages, e.g., “blow” is commonly used to refer to “cocaine”, “cook back” is the term used to refer to cocaine being cooked to make crack.

[14] Kyla’s cell phone extraction records show that within minutes of this text, she messaged a male contact (i.e., Joseph) and offered sex explaining, “I really really really really need some money”. After 33 minutes of attempting to arrange a meeting with Joseph, Kyla messaged a second male - Peter - offering to have sex with him, explaining that she really needed money. Kyla’s cell phone contained a price list for “Custom Pics”, including “Pussy (creampie): $8.99”.

[15] During submissions, defence counsel agreed that these contemporaneous written communications by Kyla satisfied the test for admission under the principled exception to the hearsay rule as they were both necessary and reliable. Both Crown and defence counsel relied on the texts to support their respective theories.

[16] In R. v. Samuels, 2007 ONCA 608, para. 5, the Court of Appeal for Ontario found that “[t]he relationship of a seller and buyer of drugs is capable of giving rise to a finding of a common purpose to effect the transaction under the first step of the Carter analysis.”

[17] Based on the Crown’s written submissions, the Crown anticipated Alana Joyner to testify that Kyla connected her holding of Mr. Llanos’ drugs to the fact that Mr. Llanos was subject to “checks” and therefore the agreed facts that Mr. Llanos was subject to bail and probation conditions was corroborative evidence. However, Alana Joyner’s testimony did not mention Mr. Llanos being subject to “checks”. The Crown agreed that the admissions set out in paras. 76 and 77 of the Agreed Facts (Exhibit 10), were admissible solely to determine the admissibility of the statement to Alana Joyner.