Court File and Parties

Court File No.: CR-23-00000526-0000

Date: 2025-10-01

Ontario Superior Court of Justice

Between:

His Majesty the King

and

Anderson St. Valle, Defendant

Before: The Honourable Justice J. R. Henderson

Counsel:

• D. Anger, for the Crown
• Self-represented Defendant

Heard at St. Catharines, Ontario: March 18-21, 2025

Trial Decision

Introduction

[1] The defendant, Anderson St. Valle, is charged with possession of cocaine for the purpose of trafficking, contrary to s.5(3)(a) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 and with possession of money of a value exceeding $5,000 knowing that the money had been derived directly or indirectly from an offence punishable by indictment, contrary to s.355(a) of the Criminal Code of Canada, R.S.C. 1985, c. C-46.

[2] In 2019, Niagara Regional Police Service ("NRPS") officers received information from a confidential informant ("CI") that the defendant was trafficking in cocaine. A team of police officers subsequently engaged in surveillance of the defendant. Thereafter, the officers obtained a search warrant for the defendant's Chevrolet Equinox motor vehicle and the defendant's residence.

[3] On May 23, 2019, the defendant was arrested and charged. A search of his vehicle at the time of his arrest disclosed 1.1 grams of crack cocaine in a baggie in the armrest of the vehicle. The search warrant was then executed at the defendant's residence, an apartment on the tenth floor of an apartment building at 221 Glenridge Avenue in St. Catharines, Ontario. In the apartment, the officers found a total of 26.8 grams of crack cocaine and 31.1 grams of powdered cocaine. The officers also found approximately $11,150 CAD and $1,390 USD in cash in the apartment.

[4] This trial was conducted as a blended hearing in which the court heard the evidence on the substantive charges and the evidence as to whether there were reasonable grounds to arrest the defendant as required by s.495 of the Criminal Code.

[5] Regarding the substantive charges, the defendant testified that the crack cocaine and powdered cocaine found in his vehicle and his residence did not belong to him, that he did not possess any cocaine, and that he did not engage in drug trafficking. He also provided innocent explanations for some of the activities observed by the police surveillance team.

[6] Therefore, the issues before the court are:

1. Did the police officers have reasonable and probable grounds to arrest the defendant?
2. Did the defendant possess the cocaine that was found in his vehicle and his residence?
3. If the defendant had possession of the cocaine, did he have possession for the purpose of trafficking?

W.D. Analysis

[7] Because the defendant testified, when I consider the substantive offences it is necessary to analyze this case in the manner discussed in R. v. W.(D.), [1991] 1 S.C.R. 742. Regarding step one of the W.D. analysis, I do not accept the evidence of the defendant absolutely. The defendant's evidence in some instances was illogical and lacked detail which makes me question his overall credibility. Regarding step two of the W.D. analysis, I find that the testimony of the defendant raises a reasonable doubt about some, but not all, of the events alleged by the prosecution. I will refer to those events individually throughout the course of these reasons. Regarding step three of W.D., at the end of these reasons, I will decide whether the Crown has proved its case beyond a reasonable doubt, based on all the evidence that I do accept.

The Confidential Information

[8] The officer in charge, Officer Decker, testified as to the confidential information that was received by the NRPS. In summary, at some point in 2019, a CI informed NRPS officers that the named defendant was a cocaine trafficker, that he was a black male in his thirties, that he lived in the apartment building at 221 Glenridge Avenue, that he drove a grey Chevrolet Equinox, that he went to school for policing, that he sold drugs using his vehicle, that he sold drugs from his residence, and that he goes into the hallways and stairwells at the apartment building to avoid the surveillance cameras.

[9] The evidence is, and I accept, that this informant had provided confidential information approximately five times in the past, and that he had been found to be reliable by the NRPS.

The Surveillance

[10] The police surveillance team conducted occasional surveillance of the defendant over a period of approximately two months commencing in March 2019. Between March 28, 2019 and May 22, 2019, police officers observed five separate events that the officers believed were indicative of, or consistent with, the defendant engaging in drug trafficking.

[11] The defendant testified with respect to all five of these events. He testified that the first event, on March 28, did not occur at all. Regarding the other four events, the defendant acknowledged that he was present at the time and place where he was observed, but he described the events differently, and/or he provided innocent explanations for his observed conduct.

[12] When I consider whether the police officers had reasonable and probable grounds to arrest the defendant, I must consider the incidents or events from the viewpoint of the officers. That is, I need to determine what the officers observed, and how it was subjectively interpreted by the officers. Thus, the credibility of the officers with respect to their subjective observations is very relevant.

[13] In that respect, I found that all of the surveillance team police officers testified in a clear, straightforward manner without embellishment or bias. I note that none of the officers testified that they saw the defendant give anything to any other party or receive anything from any other party. They all acknowledged that they did not see any hand-to-hand contact with another person, and that they did not see the defendant reach into any vehicle. Further, all of the officers acknowledged that there were days of surveillance in which they did not observe any suspicious activity of the defendant.

[14] In summary, I make the following findings regarding the five events observed by the surveillance team that are relied upon in this case.

March 28, 2019

[15] Officer Decker was conducting surveillance at the Glenridge Avenue apartment building. He testified that at 3:46 p.m. the defendant walked out of the side door of the apartment building, into the parking lot, and stood in a bouncer's stance with his hands behind his back, looking to his left and right. At that point, a white male in his fifties walked behind the defendant, very close to the defendant, such that Officer Decker believed that they could have touched hands.

[16] The defendant testified that this incident did not occur at all. He testified that he was elsewhere refereeing a basketball game at the time. However, I found that the defendant gave very few details as to his whereabouts on this day. The defendant appeared to have access to records that would have indicated when and where he was refereeing, but he did not produce those records.

[17] Further, at no time did the defendant provide any details as to where he was refereeing, his schedule, the teams involved, or how he knew he was refereeing at the date and time in question. I find that the evidence of the defendant does not raise a reasonable doubt about Officer Decker's observations. I accept the testimony of Officer Decker with respect to this incident.

May 2, 2019

[18] Officer Spera received information from a vehicle tracking device that was monitoring the defendant's vehicle. Consequently, Officer Spera located the defendant's Chevrolet Equinox parked at the Big Bee Plaza parking lot on Lake Street at 3:15 p.m. He observed that the defendant was seated in the vehicle in the driver's seat, and his young daughter, approximately five years of age, was also in the vehicle. Officer Spera stated that a shorter black male was standing at the driver's side window of the defendant's vehicle when he commenced his observations. That male person remained at the window for approximately one minute, and then walked to the back of the plaza where he entered an orange vehicle. At 3:16 p.m., the defendant drove out of the Big Bee Plaza parking lot. Shortly thereafter, Officer Spera observed the defendant and his daughter in another nearby parking lot where they exited the vehicle and went into a 7-Eleven store.

[19] The defendant testified that he was in fact parked at the Big Bee Plaza parking lot with his daughter, but that they had been in the parking lot for longer than the one or two minutes he was observed to be there by Officer Spera. The defendant said that he had ordered food from the Caribbean Eatery restaurant that shares the parking lot with the Big Bee variety store, and that he was waiting for his food. He denied that any person came up to his driver's side window and interacted with him.

[20] The defendant's evidence on this point again lacks detail. If he ordered food, he did not provide details as to what he ordered, when he ordered it, how long he waited for it, or when he arrived at the parking lot. If he did receive food, did someone bring it out to the vehicle? Did the defendant go into the restaurant to pick up the food? Why did the defendant leave the parking lot when he did? Accordingly, I do not accept the defendant's evidence on this point, and it does not raise a reasonable doubt about Officer Spera's observations.

[21] Moreover, whether the defendant had been in the parking lot some time before Officer Spera started his observations has little significance. What is important is that Officer Spera observed a short meeting between the defendant and another person and then observed the defendant drive away immediately after the meeting.

[22] Although there is a slight discrepancy between Officer Spera's evidence and Officer Decker's evidence about the location of the orange vehicle, I note that Officer Decker was not present and did not make any observations; rather, he was referring to Officer Spera's observations. Therefore, I accept Officer Spera's evidence regarding this incident.

May 6, 2019

[23] Officer Viger was conducting surveillance at the Glenridge Avenue apartment building. He observed a brown SUV enter the parking lot at 3:56 p.m. and park in the rear parking lot. Then, at approximately 4:00 p.m., he saw the defendant exit the building with his two rottweiler dogs. He said that the defendant walked over to the brown SUV and at 4:02 p.m. the defendant interacted with the driver of the SUV. At 4:04 p.m., the brown SUV drove away. At 4:05 p.m., the defendant went back into the building with his dogs. On the following day, one of the officers searched the licence plate of the brown SUV and found that the registered owner was a woman who was a known associate of Joe Pirillo, a known drug offender.

[24] In direct examination, the defendant testified that he did not meet with anyone in the parking lot that day; he just took his dogs out to pee. However, in cross-examination, he testified that he met with a used car parts dealer named Joe in the parking lot one day because he was interested in purchasing some used tires. The defendant had his two dogs with him. He said that Joe took the tires out of the back of his pickup truck and bounced them on the pavement. Joe asked for $400 for the tires and the defendant declined. The defendant said that he then allowed his dogs to urinate and returned to his apartment.

[25] With respect to this event, the defendant's evidence raises the possibility that there was a meeting in the parking lot with Joe about the purchase of used tires. However, even if such a meeting occurred, I have concerns about the defendant's evidence. In particular, I am concerned about the change in the defendant's testimony as to whether there was a meeting, and about the discrepancy as to whether the vehicle in question was an SUV or a pickup truck. Further, there was no indication from the defendant as to why, five years after the fact, he could remember the date and time of a brief meeting with a person whom he only knew casually.

[26] Accordingly, the evidence of the defendant on this point does not raise a doubt about the veracity of Officer Viger's evidence. I accept that Officer Viger observed what he says he observed.

May 22, 2019, at approximately 12:45 a.m.

[27] Officer Viger had been assigned to conduct surveillance on a property known as 59 Rykert Street, which is a complex of townhouse units. He stated that at 12:45 a.m. on May 22, 2019, he observed the defendant arrive in his Chevrolet Equinox and park at 59 Rykert Street. Officer Viger saw the defendant exit his vehicle and enter one of the townhouse units at 12:46 a.m. At 12:51 a.m., the defendant exited that unit, returned to his vehicle, and drove away.

[28] The defendant did not dispute what Officer Viger had observed. He testified that he had a girlfriend who lived at 59 Rykert Street, and that he went to her townhouse to do his laundry because the laundry room at his apartment building was being renovated. He arrived at 12:45 a.m., but he realized he had left his Febreze scent beads back at his apartment. He therefore left Rykert Street and drove with his girlfriend back to the Glenridge Avenue apartment building to pick up his Febreze scent beads.

[29] Accordingly, I accept Officer Viger's observations regarding this incident. The defendant's innocent explanation for his short attendance at 59 Rykert Street does not undermine Officer Viger's observations for the purpose of forming reasonable and probable grounds for arrest. However, I accept that the defendant's evidence raises a reasonable doubt as to whether or not the defendant was engaged in a drug transaction at the time.

May 22, 2019, at approximately 1:00 a.m.

[30] Officer Decker was conducting surveillance at the Glenridge Avenue apartment building on May 22, 2019 when, at approximately 1:00 a.m., he observed the defendant arrive in his Chevrolet Equinox and park beside a white Nissan motor vehicle. Officer Decker said that the defendant exited his vehicle and went to the driver's window of the white Nissan, briefly interacted with the driver of the Nissan, and then returned to his vehicle. The white Nissan left the apartment building at 1:02 a.m. Officer Poirier observed the Chevrolet Equinox leave at 1:08 a.m.

[31] Officer Decker recorded the licence plate number of the white Nissan. He also testified that he recognized the vehicle and the licence plate from an earlier drug investigation. Officer Stewart, who was conducting surveillance with Officer Decker at the Glenridge Avenue apartment building, then followed the white Nissan and was able to identify the driver as Dolal Jama. Both Officer Decker and Officer Stewart were very aware of Dolal Jama, as he is a known drug offender and had been the subject of a prior extensive drug investigation.

[32] The defendant testified that he knows Mr. Jama from college. He said that on the evening in question he had returned to his apartment building to pick up his scent beads. He acknowledged parking in an area in which he did not usually park. He said that he exited his vehicle and was walking toward the apartment building when he saw Mr. Jama exit the building on foot. They did not have any interaction other than the defendant nodded his head to acknowledge Mr. Jama.

[33] As I indicated, I found that Officer Decker gave his evidence in a clear, straightforward manner without embellishment. In fact, there is little advantage for police if they had seen the defendant interact with Mr. Jama on foot in the parking lot or at the window of his vehicle.

[34] I accept that the defendant knows Mr. Jama. At trial, the defendant was well aware that police officers had been observing him, and that they were suggesting that he was associated with known drug offenders. I find that his evidence at trial was tailored so as to minimize his interaction with Mr. Jama on this particular evening.

[35] In summary, I do not accept the defendant's evidence on this point. Further, his evidence does not raise a doubt as to what was observed by Officer Decker. I accept Officer Decker's evidence about this incident.

The Day of the Arrest

[36] By the morning of May 23, 2019, Officer Decker had formed the opinion that there were reasonable and probable grounds to arrest the defendant. He discussed the matter with Officer Spera, and they both agreed that there were reasonable and probable grounds to arrest the defendant. That belief was then conveyed to the rest of the investigation team. The team's plan was to safely arrest the defendant at some point on May 23, 2019.

[37] After the decision had been made to arrest the defendant, but before he was arrested, Officer Stewart was assigned to conduct surveillance at the Glenridge Avenue apartment building. In the afternoon of May 23, 2019, Officer Stewart observed two other incidents that he believed were consistent with drug trafficking by the defendant.

[38] Officer Stewart testified that a known drug offender, Chris Waseliwicz, arrived in a vehicle at the Glenridge Avenue building, exited the vehicle, and entered the building at 4:08 p.m. He then exited the building at 4:18 p.m., returned to his vehicle, and drove away.

[39] Officer Stewart further testified that, at 4:27 p.m., a four-door vehicle pulled up to the front of the Glenridge Avenue apartment building and a known drug offender, Derek Rowley, exited the vehicle and went into the building. The vehicle parked in the Tim Horton's parking lot across the street. Officer Stewart recognized one of the other occupants of the vehicle as Brandon Abrams, another known drug offender. At 4:56 p.m., Mr. Rowley exited the Glenridge Avenue apartment building, walked to the vehicle in the Tim Horton's parking lot, and re-entered the vehicle. Officer Stewart was able to observe that Mr. Rowley was sitting in the vehicle with a clear plastic bag in his lap that Officer Stewart believed to contain illegal drugs.

[40] The defendant testified that he did not know Chris Waseliwicz, Derek Rowley, or Brandon Abrams. He had no knowledge of any of these people visiting the Glenridge Avenue apartment building on that day. In that sense, the observations that Officer Stewart made on May 23 were never challenged, and accordingly I accept his evidence as to the observations that he made with respect to these two incidents on that day. However, as I will discuss, these observations have limited value.

[41] Regarding the arrest of the defendant, the surveillance police officers observed the defendant leave the Glenridge Avenue apartment building in his Chevrolet Equinox with his young daughter at 5:37 p.m. He drove his vehicle to the YMCA parking lot where he parked. He was arrested by uniformed officers at 5:51 p.m. in the YMCA parking lot.

Search of the Person, Vehicle, and Residence

[42] When the defendant was arrested, Officer Stewart found on his person a black iPhone, a black flip phone, a wallet, keys, and $585 cash. It was later determined that the keys fit the defendant's unit at the Glenridge Avenue apartment building.

[43] A search of the defendant's Chevrolet Equinox, incident to arrest, disclosed a baggie containing 1.1 grams of crack cocaine, located in the armrest of the vehicle.

[44] On the search of the defendant's apartment at the Glenridge Avenue apartment building, pursuant to the search warrant, the officers found a red and black toque located on the middle shelf of the kitchen cupboard. Inside the toque was a plastic bag containing 15.5 grams of cocaine, another plastic bag containing 26.8 grams of crack cocaine, and a small digital scale.

[45] Four smaller baggies containing cocaine were found in the right front pocket of a leather jacket that was hanging in the hall closet. The baggies contained 3.9, 3.9, 4.0, and 3.8 grams of cocaine, respectively.

[46] Several bundles of cash were located within the unit. In particular, $3,720 was located in the top dresser drawer, $610 was located in an RBC envelope between the mattress and box spring, $6,470 was located in the front pouch of an Adidas shirt hanging in the bedroom closet, $348 was located in a wallet in the top drawer of a dresser and $1,390 USD was found in the front pouch of a black sweatshirt that was hanging in the bedroom closet.

[47] Also discovered during the search of the residence was a pressure cooker located on the kitchen counter that contained plastic bags, many unused plastic baggies, tinfoil squares, and gloves. The officers also found a lithium digital scale and a bag of a cutting agent located in the kitchen cupboard.

Reasonable and Probable Grounds to Arrest

[48] Section 495(1) of the Criminal Code reads as follows:

495 (1) A peace officer may arrest without warrant

(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence; …

[49] The Supreme Court of Canada has stated that there are both objective and subjective elements to the formation of reasonable grounds to arrest without a warrant: see R. v. Beaver, 2022 SCC 54, 475 D.L.R. (4th) 575, at para. 72; R. v. Storrey, [1990] 1 S.C.R. 241, at pp. 250-51. To establish reasonable grounds to arrest a person without a warrant the Crown must show that:

1. The arresting officer subjectively believed that he had reasonable and probable grounds on which to base the arrest; and
2. A reasonable person, standing in the shoes of the arresting officer, would have believed that reasonable and probable grounds to arrest the accused existed.

[50] Regarding the subjective element, the question is whether the arresting officer honestly believed that the suspect committed the offence or was about to commit the offence: see Beaver, at para. 72. This component requires the trial judge to evaluate the credibility of the officers. In the present case, as discussed earlier, I find that Officer Decker and Officer Spera, the officers who made the decision to arrest, were very credible witnesses.

[51] Officer Decker testified that he believed there were reasonable and probable grounds to arrest the defendant by the morning of May 23, 2019. He discussed the matter with Officer Spera, the supervising officer, who agreed. I accept the evidence of both officers that, subjectively, they both believed that they had reasonable and probable grounds to arrest the defendant.

[52] Neither Officer Decker nor Officer Spera arrested the defendant, but it is clear that the arresting officer was simply following the directions given by Officer Decker and Officer Spera and that he was acting pursuant to their subjective belief. This is an acceptable approach. It is immaterial in these circumstances whether the officer who made the arrest had personally formed a subjective belief as to the grounds to arrest: see R. v. Debot, [1989] 2 S.C.R. 1140, at para. 49. Therefore, the first element of the test is met.

[53] Regarding the objective element of the test, the court must consider the strength of the evidence upon which the officers formed their belief and the totality of the circumstances known to the officers at the time of the arrest: see Beaver, at para. 72. In this case, the officers relied upon the confidential information provided to the NRPS, and the observations of the police surveillance team.

[54] The strength of the confidential information should be assessed by considering the three factors set out in Debot at para. 53. Although Debot is a case that considered whether there was justification for a warrantless search, courts have recognized that the Debot factors may be helpful in objectively assessing whether a tip from a CI is strong enough to support other intrusions on an individual's liberty: see R. v. Buffong, 2024 ONCA 660, at para. 4. Therefore, in this case, I will consider whether the confidential information was credible, compelling, and corroborated.

[55] The CI in this case had provided information approximately five times previously to the NRPS. They had been reliable on each occasion. Therefore, I find that the CI in this case was highly credible.

[56] The specific details provided by the CI contained some details that would have been within the general knowledge of anyone who was familiar with the Glenridge Avenue apartment building, but also contained other details that were more specific to the defendant. In particular, the CI was able to name the defendant and identify where he lived. He identified his vehicle. He identified places in the building in which drug transactions were allegedly taking place. I find that the details provided by the CI were modestly compelling.

[57] Regarding corroboration, the officers relied on the observations of the surveillance police officers. As I indicated previously, when considering whether there were reasonable and probable grounds to arrest the defendant, it is not appropriate to consider the innocent explanations provided by the defendant at trial. These possible explanations were unknown to the officers both during surveillance and at the time of the arrest. The court at this stage must consider what the officers observed and whether a reasonable person in the shoes of the officers would have formed the opinion, based on all of the circumstances, that an indictable offence had been committed or was about to be committed.

[58] In summary, the surveillance team observed four separate events in which there had been a very short meeting between the defendant and another person after which the defendant and the other person immediately separated. Those short meetings occurred on March 28, 2019 in the Glenridge Avenue parking lot, on May 2, 2019 in the Big Bee Plaza parking lot, on May 6, 2019 in the Glenridge Avenue parking lot, and again in the early hours of May 22, 2019, in the Glenridge Avenue parking lot. These four short meetings are consistent with the defendant engaging in drug trafficking.

[59] I find that the defendant's attendance at 59 Rykert Street at approximately 12:45 a.m. on May 22 also corroborated the CI information because, without an explanation, it would have appeared to Officer Viger that the defendant drove to a specific address, stayed for only five minutes, and then left the premises. This is also consistent with the defendant engaging in a drug transaction. Accordingly, all five of these events provide corroboration of the confidential information.

[60] The attendance of two separate known drug offenders at the Glenridge Avenue apartment building in the afternoon of May 23 has only limited value. It is certainly suspicious that known drug users entered the building for very short periods of time, at the same time as the defendant was suspected of engaging in drug transactions within the building. I agree that these two additional incidents provide some additional support for the officers' belief, but the fact that the officers could not identify which of the many units in the building were attended by these two known drug users substantially minimizes the effect of this evidence. In any event, the officers had formed their subjective beliefs before these two incidents had occurred.

[61] Another factor to consider is the training and experience of the team of police officers. The court should not necessarily defer to the training and experience of the police officers, but it is a factor for consideration in determining the reasonableness of the officer's belief: see R. v. Whyte, 2011 ONCA 24, 341 D.L.R. (4th) 394; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 47. In Whyte, Rosenberg J. considered a short sequence of events that led to the arrest of the accused and wrote, at para. 31, "This sequence of events had to be measured against the knowledge and experience that the police officers brought to the investigation in informing the inferences to be drawn from the observations."

[62] I find that all five of the police officers who were involved in the present investigation were experienced police officers. They were well aware of the nature of drug transactions and drug trafficking. Moreover, Officers Decker, Stewart and Spera all had extensive experience in drug offence investigations. Officer Decker, in particular, had been involved in 250 to 300 drug offence investigations at the time of trial. Therefore, I find that the police officers in this investigation were well-trained and experienced, and able to form accurate opinions as to the nature of the activities that they observed.

[63] The defendant also raised the issue of whether the police officers adequately investigated the confidential information and the surveillance evidence. In particular, the defendant submits that the police officers should have reviewed the video recordings from the surveillance cameras that were located within and around the Glenridge Avenue apartment building to confirm or refute their view of the events that occurred.

[64] I accept Officer Spera's testimony that it would be exhausting and time consuming for the officers to review video recordings from every surveillance camera in the vicinity of every event that is observed by police officers in every drug investigation. Furthermore, the law is clear that police officers are not required to undertake an investigation that would rule out all possible innocent explanations for the events before making an arrest: see Chehil, at para. 34; R. v. Spackman, 2012 ONCA 905, 300 O.A.C. 14, at paras. 108-109.

[65] I acknowledge that the defendant is entitled to question the failure of police to pursue certain leads, however, this type of challenge does not negate the evidence before the court. The defendant's concern simply raises the question of an absence of evidence. In this case, the oral testimony of the surveillance officers is solid evidence of the activities of the defendant.

[66] In summary, I find that the strength of the confidential information received by the NRPS was modest to strong, that the police officers involved in the investigation had the experience and knowledge to accurately assess the activities that they observed, that there were four separate incidents in which the defendant engaged in conduct that was consistent with drug trafficking, that there was another incident on May 22 that also appeared to be consistent with drug trafficking, and that there were two incidents on May 23, with limited value, that were consistent with drug trafficking by someone in the building. On all of this information, I find that a reasonable person, standing in the shoes of the officers, would have believed that reasonable and probable grounds existed for the arrest of the defendant.

[67] Therefore, I find that the Crown has proved both elements of the test under s.495. Thus, I find that the Crown has proved that there were reasonable and probable grounds to arrest the defendant on May 23, 2019.

Possession

[68] In order to prove that the defendant was in possession of cocaine, the Crown must prove that he had knowledge of, and some measure of control over, the drugs found in his vehicle and in his residence: see R. v. Pham (2005), 77 O.R. (3d) 401 (C.A.), at para. 15, aff'd 2006 SCC 26, [2006] 1 S.C.R. 940.

[69] The defendant testified that, although the drugs were found in his residence and his vehicle, he did not own the drugs, and he had no knowledge of them. In cross-examination, without making a direct accusation, he implied that police had planted the drugs in his residence and his vehicle. When he was asked if he was suggesting that the police or someone else planted the drugs, he said, "Based on my interactions with police, I'm not ruling anything out."

[70] The defendant also testified that his daughter's mother had a key to his apartment, and that his daughter's uncle had stayed with him at the apartment in the past, implying that the cocaine in the apartment may belong to one of them, if it had not been planted by police.

[71] Using a W.D. analysis, I find the defendant's theory that the police planted the cocaine to be highly improbable. If police had planted the drugs, they would have had to plant the drugs in the vehicle and in the residence. The secret planting of the drugs in the residence would have had to occur during a very short time period after the defendant left his residence on May 23. Further, there is no explanation as to how or when the police officers could have planted cocaine in the armrest of the vehicle.

[72] Also, if the police were planting drugs in the residence, they would likely try to hide the drugs in a concealed place. It would make no sense for them to take the unusual step of putting the drugs in a toque, and then placing the toque in open view in the kitchen cupboard, where it clearly did not belong. It is not a place in which anyone would try to hide drugs. Similarly, it makes no sense to plant drugs in a jacket pocket where the drugs could easily be discovered. Therefore, the apartment did not appear to be set up to frame the defendant. It appeared to be the apartment of a person in the drug trade who had left his drugs and drug paraphernalia casually spread around his residence.

[73] Further, the defendant breached the rule in Browne v. Dunn, (1893), 6 R. 67 (H.L.), as the defendant failed to confront any of the police officers with his theory that police may have planted the drugs. Even though the defendant did not make a direct accusation, the gist of his evidence was clear: he believed that police planted the drugs. The rule applies equally whether the defendant's theory was direct or implied.

[74] In this case, the defendant did not reveal his theory that he may have been framed by police until he was cross-examined on the witness stand. As an aside, I also note that the defendant testified that police officers may have stolen some of his U.S. cash when they conducted the search warrant, but again, he did not confront any of the police officers about this allegation.

[75] In my view, this breach of the rule in Browne v. Dunn substantially weakens the defendant's position. In order to assess the police officers' testimony that drugs were found in the residence against an allegation that police officers may have planted the drugs, the court expects that the officers would be given the opportunity to hear the allegation and respond to it on the witness stand. The police officers were not given that opportunity in this case. In my view, this failure undermines the credibility of the defendant's allegation.

[76] Moreover, Officer Decker was recalled to the witness stand to give reply evidence with respect to the location of the toque in the kitchen cupboard. Even in reply, after the defendant had raised the issue, the defendant did not question Officer Decker about this issue.

[77] Regarding the defendant's theory that perhaps the cocaine belonged to someone else, such as his daughter's mother, I note that the defendant again did not make a specific accusation. In cross-examination, he testified that someone must have put it there and that he was not the only person with access to the apartment.

[78] Again, the defendant's alternate theory is highly improbable. This apartment was the defendant's residence. He lived there by himself, with shared custody of his young daughter. Considering the relatively accessible location of the cocaine in the defendant's jacket pocket, and the unusual placement of cocaine in a toque in the cupboard, if someone else was stashing cocaine in the defendant's apartment, in my view, it surely would have been quickly observed or noticed by the defendant. The cocaine in the toque, in particular, would have been noticed by the defendant as soon as he opened the kitchen cupboard.

[79] The principles set out in R. v. Cashman, 2022 BCSC 892, and R. v. Nguyen, 2009 ABQB 234, apply to this case. In those cases, the courts held that a defendant can be expected to have seen or observed the things that were in plain view or easily accessible in his residence. Thus, the defendant will generally be found to have knowledge of easily accessible items in his residence and a degree of control over those items.

[80] In Nguyen, at paras. 108-109, the court stated:

[108] Logic dictates that a resident would reasonably be expected to know what is in plain view and what is in commonly accessed areas such as appliances and kitchen cupboards. There is no reasonable explanation to the contrary.

[109] This logic also establishes required consent and control over those items. Residents consent to the presence and control of items in plain view and in commonly accessed areas.

[81] At step one of my W.D. analysis, if I were to believe the defendant's testimony that he did not own the drugs and he had no knowledge of them, I would have to find that a police officer or some person planted cocaine in several places around the apartment, and also in the armrest of the defendant's vehicle. In the alternative, I would have to find that some person had access to both the apartment and the defendant's vehicle and chose to keep cocaine in various locations that were easily accessible to the defendant, but without the defendant's knowledge. This testimony is not believable.

[82] Moreover, at step two of my W.D. analysis, I find that the defendant's testimony does not raise a reasonable doubt as to whether the defendant had possession of the cocaine. At step three of W.D., based on the evidence that I do believe, I find that the defendant was in possession of all of the cocaine found in his vehicle and in his residence on May 23, 2019.

For the Purpose of Trafficking

[83] To prove that the defendant possessed cocaine for the purpose of trafficking, the Crown relies upon the quantity of the drugs found, the packaging of the drugs, other items found in the apartment, and the nature of the drugs.

[84] In that respect, the Crown called an expert witness, Officer Sean Moxham. I found that Officer Moxham was well qualified to provide expert evidence as to the nature of cocaine, the prices of cocaine, the consumption rates of cocaine, the difference between cocaine and crack cocaine, and the general manner in which drug transactions take place. I accept his evidence.

[85] Officer Moxham testified regarding the amount of cocaine that was found in the apartment. He stated that there was more cocaine found in the apartment than he would expect a user to have on hand for personal use. He testified that even a heavy user would not have had this much. A heavy user would use up to 3.5 grams per day. Thus, the amount located at the apartment (26.8 grams of crack cocaine and 31.1 grams of powdered cocaine) would be enough for personal use of a heavy user for 17 straight days. Officer Moxham found this to be very unlikely. Therefore, the amount of cocaine found at the apartment is an indicator that all of it was not for personal use.

[86] Furthermore, I accept Officer Moxham's testimony that a cocaine or crack cocaine user is not likely to have both crack cocaine and cocaine in such large amounts. A user would have either a quantity of cocaine or crack cocaine, but likely not both. The significant amounts of both cocaine and crack cocaine found at the apartment is another factor that supports a finding that the drugs were not for personal use.

[87] In addition, I find that the division of some of the drugs into small bags is also indicative of preparation for drug trafficking, as a drug trafficker would usually divide a larger stash of drugs into smaller quantities for trafficking purposes. Further, I find that the large quantity of unused baggies is consistent with drug trafficking. As Officer Moxham stated, small baggies are tools of the trade for a trafficker as they are a perfect size to traffic in small quantities of cocaine or crack cocaine. Additionally, I agree that the digital scales, as found in the defendant's residence, are also tools of a drug trafficker.

[88] I accept Officer Moxham's evidence that the amount of cash found at the apartment is consistent with drug trafficking. However, this is tempered somewhat by my findings as to the source of all of the cash as discussed later in this decision.

[89] In my analysis of the trafficking charge, I have also considered the defendant's involvement in several short meetings that were observed by the police surveillance team. Officer Moxham testified that drug transactions usually involve short secretive meetings. The exchanges are usually very quick, and the parties want to separate quickly after a meeting. He also testified that such meetings often occur in parking lots, parks, or clubs.

[90] Again, the case of W.D. requires me to consider the defendant's innocent explanations for these meetings. At step one, as discussed earlier, I do not absolutely believe the defendant's evidence about these meetings. There is strong evidence that the defendant was involved in four short meetings in which he was engaged in activities that were consistent with drug trafficking. Further, the defendant's evidence does not raise a reasonable doubt about whether these four incidents were consistent with drug trafficking.

[91] The defendant's testimony about the fifth incident, at 12:45 a.m. on May 22, 2019, raises a reasonable doubt about whether the short visit to 59 Rykert Street was for the purpose of drug trafficking. Also, as I indicated earlier, I find that the two visits to the Glenridge Avenue apartment building by known drug traffickers in the afternoon of May 23, 2019 have limited value.

[92] Therefore, although the observations by the police officers are not conclusive proof that the defendant engaged in drug trafficking, I find that there are four incidents in which the defendant engaged in conduct that is consistent with conducting a drug transaction.

[93] On this issue, at step two of my W.D. analysis, I find that the defendant's testimony that he did not engage in drug trafficking does not raise a reasonable doubt. At step three of W.D., based on the evidence that I do believe, including the expert evidence, I find that the defendant was in possession of all of the crack cocaine and cocaine that was found in his vehicle and his residence for the purpose of trafficking.

Possession of Property

[94] The defendant certainly had a great deal of cash stowed in various places around his residence. The defendant explained that he acquired the U.S. cash by working in security at a nightclub in Niagara Falls where he was paid in cash. He also stated that he worked as a referee for basketball games for nine years and had been paid in cash. He said that he kept the cash from his refereeing job for future use.

[95] At step two of my W.D. analysis, I find that the defendant's testimony regarding the cash in his apartment raises a doubt as to whether all of the cash was as a result of drug trafficking. I accept that some of the cash, but not all of it, related to his refereeing and/or security jobs. However, the defendant's testimony does not raise a doubt as to whether some of the cash was a result of drug trafficking.

[96] The defendant testified that the $6,470 found in the Adidas shirt was his savings from nine years of refereeing, that the money found in a wallet ($348) was a small quantity of collector's items such as a two-dollar bill, and that the money in the RBC envelope ($610) was to pay his Visa bill. Further, as already discussed, the defendant stated that the U.S. cash was money from a security job. I am prepared to accept that the defendant's testimony raises a reasonable doubt with respect to the source of those funds. However, I find that the $3,720 found in a dresser drawer is cash that was obtained through drug transactions.

[97] Accordingly, I cannot find the defendant guilty of an offence under s.355(a), as the Crown has not proved that the defendant was in possession of more than $5,000 that was derived from drug trafficking. However, I find that the $3,720 found in the dresser drawer was in the possession of the defendant and was derived from drug trafficking. Therefore, the defendant will be convicted of the lesser and included offence under s.355(b) of the Criminal Code.

Conclusion

[98] For these reasons, on count one, I find the defendant guilty of possession of a Schedule I substance, namely cocaine, for the purpose of trafficking. On count two, I find the defendant not guilty as charged, but guilty of the lesser and included offence of possession of money of a value less than $5,000 knowing that the money was derived from an offence punishable by indictment.

J. R. Henderson, J.

Date Released: October 1, 2025

[1] This decision was given orally on October 1, 2025. At that time, I indicated that written reasons would follow. These are those reasons. They may vary in the precise language used. Where there is a variation between the oral and written reasons, the written reasons prevail.