Reasons for Judgment

Court File No.: CR-22-90000564
Date: 2025-01-24
Ontario Superior Court of Justice
Between:
Stephen William Koritar – and – His Majesty the King

Appearances:
Dragi Zekavica, for the Accused
Elisa Mastrorillo, for the Crown

Heard: June 6, 7, 11 and 13, 2024
Released: January 24, 2025
Judge: Sidney N. Pinto

Overview

[1] On February 1, 2021, police executed a Controlled Drugs and Substances Act (CDSA) search warrant on a condominium unit at 2 Sonic Way in Toronto. There were three individuals in the unit when police entered: Christopher Delgado, who leased the unit; Stephen Koritar, the accused; and Katelyn Carter, Mr. Koritar’s girlfriend at the time.

[2] The condo had two bedrooms and two bathrooms: a larger master bedroom with an ensuite bathroom; a smaller second bedroom; and a second bathroom near the main entrance.

[3] When police entered, Mr. Delgado was in the main living area, Ms. Carter was in the master bedroom, and Mr. Koritar was in the ensuite attached to the master bedroom. There was an altercation between police officers and Mr. Koritar before he was arrested.

[4] In the master bedroom, police located a variety of illicit substances including methamphetamine, fentanyl, ketamine, cocaine, and cannabis resin.

[5] In the kitchen, police located a large quantity of GHB (gamma hydroxybutyrate) and GBL (gamma butyrolactone), the precursor to GHB, that were openly displayed.

[6] Mr. Koritar is charged with eight offences under the CDSA and the Criminal Code involving possession of controlled substances for the purpose of trafficking, assault of a police officer with intent to prevent arrest, attempt to take a weapon from a police officer, and possession of proceeds of crime. He denies all charges.

[7] In a pre-trial ruling, I dismissed Mr. Koritar’s Charter application seeking to have the charges against him stayed, or the evidence against him excluded.

[8] At trial, the parties entered into an Agreed Statement of Fact (ASF). The Crown called four police officers as witnesses. Mr. Koritar testified in his own defence.

[9] For the reasons that follow, I find Mr. Koritar guilty of the eight offences as charged.

Factual Background

[10] In 2021, the Toronto Police Service (TPS) conducted an investigation into drug trafficking in Toronto. Mr. Koritar, now 50, was the target of the investigation. On January 31, 2021, TPS Officer Walker reviewed CCTV footage of 2 Sonic Way. The CCTV footage showed an individual entering the elevator on the 23rd floor at 1:24 a.m. on January 31, 2021, and taking the elevator down to the ground floor.

[11] On February 1, 2021, TPS officers executed a search warrant at Unit 2308, 2 Sonic Way. Three individuals were found in the unit: Mr. Koritar, Mr. Delgado and Ms. Carter. After all three parties were arrested, police searched the unit.

[12] In the master bedroom, police located 70.45 grams of methamphetamine, 9.97 grams of fentanyl (mixed with caffeine and dimethyl sulphone), 13.65 grams of ketamine, 7.35 g of cocaine, and 18.54 g of cannabis resin. The police also located mail in the name of Mr. Koritar, with billing address Unit 2308 – 2 Sonic Way, an Ontario Health Card in the name of Mr. Koritar, and $1,315 in Canadian currency.

[13] In the kitchen, police located 14.365 kgs of GHB, and 13.15 kgs of GBL. They also located a ladle containing drug residue on the counter, a silver digital scale on the counter, and two digital scales in a cupboard.

[14] A full description of the drugs and quantities of drugs located in the unit is found in the ASF, appended to these reasons.

[15] The police located three cell phones in the unit. They did not locate any drugs or drug-related paraphernalia in the second bedroom. Nothing of evidentiary value was seized from the second bedroom.

[16] It is an agreed fact that on February 1, 2021, Mr. Koritar and Ms. Carter were in a romantic relationship.

[17] It is also agreed that if Mr. Koritar is found in possession of the drugs located in the unit on February 1, 2021, he possessed the drugs for the purpose of trafficking. It is also agreed that the cash located in the master bedroom was the proceeds of crime.

[18] Four officers testified on behalf of the Crown:

• Police Constable (PC) David Bilby.
• Detective Constable (DC) Paul Walker.
• DC Rui Esteves.
• DC Ashley Pickford.

[19] Mr. Koritar testified in his own defence.

[20] Mr. Koritar and Mr. Delgado were charged on a 9-count Indictment that included a single charge of possession of drugs (Count 1) only against Mr. Delgado.

[21] Mr. Delgado pleaded guilty to possession of GHB for the purpose of trafficking. The charges against Ms. Carter were withdrawn.

[22] The remaining 8 outstanding charges against Mr. Koritar are as follows:

• Count 2 – Attempt to take a weapon from a peace officer, PC Bilby;
• Count 3 – Assault on PC Bilby with intent to resist or prevent lawful arrest;
• Count 4 – Possession of cocaine for the purpose of trafficking;
• Count 5 – Possession of fentanyl for the purpose of trafficking;
• Count 6 – Possession of ketamine for the purpose of trafficking;
• Count 7 – Possession of methamphetamine for the purpose of trafficking;
• Count 8 – Possession of GHB for the purpose of trafficking; and
• Count 9 – Possession of proceeds of crime not exceeding $5,000.

[23] The offences can be placed into three categories:

1. Charges alleging that Mr. Koritar attempted to take PC Bilby’s taser away from him and assaulted him with intent to resist arrest (counts 2 and 3 respectively);
2. Charges alleging that Mr. Koritar was in possession of controlled substances (cocaine, fentanyl, ketamine, methamphetamine, and GHB) for the purpose of trafficking (counts 4, 5, 6, 7 and 8 respectively); and
3. A charge alleging that Mr. Koritar was in possession of the proceeds of crime. The parties agree that if Mr. Koritar is found guilty of drug possession he is guilty of this offence (count 9).

Applicable Legal Principles

[24] I have instructed myself with respect to several important legal principles that arise in this matter.

Presumption of Innocence and Requirement of Proof Beyond a Reasonable Doubt

[25] Mr. Koritar is presumed to be innocent, unless and until the Crown has proven the offences against him beyond a reasonable doubt. It is not enough for me to believe that he is possibly or even probably guilty. I must be convinced of his guilt beyond a reasonable doubt. As a standard, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty. At the same time, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities.

W.D. Analysis

[26] I must comply with the analysis in R. v. W.(D)., [1991] 1 S.C.R. 742 (“W.D.”), at p. 758:

First, if [I] believe the evidence of the accused, obviously [I] must acquit.
Second, if [I] do not believe the testimony of the accused but [I am] left in reasonable doubt by it, [I] must acquit.
Third, even if [I am] not left in doubt by the evidence of the accused, [I] must ask [myself] whether, on the basis of the evidence which [I] do accept, [I am] convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[27] I also accept that, in deciding whether the accused’s evidence leaves me with a reasonable doubt, I cannot consider the accused’s testimony in isolation from the rest of the case: W.D., at p. 757.

Possession

[28] Section 4(3) of the Criminal Code, RSC 1985, c C-46 defines possession. It includes personal possession, constructive possession, and joint possession:

4(3) For the purposes of this Act,
(a) a person has anything in possession when he has it in his personal possession or knowingly
(i) has it in the actual possession or custody of another person, or
(ii) has it 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; and
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

[29] In R. v. Faudar, 2021 ONCA 226, the following description of constructive possession is provided:

[84] Constructive possession applies when an accused did not have physical custody of the object in question, but did have it “in the actual possession or custody of another person” or “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”: Criminal Code, s. 4(3)(a); R. v. Morelli, 2010 SCC 8, para 17.

[85] To establish constructive possession, the Crown must prove:

• That the accused knew the character of the object;
• That the accused knowingly put or kept the object in a particular place; and
• That the accused intended to have the object in the particular place for his use or benefit or that of another: Morelli, at para. 17; R. v. Lights, 2020 ONCA 128, paras 47-48.

[86] There must be knowledge that discloses some measure of control over the item to be possessed: R. v. Pham, paras 14-15, aff’d 2006 SCC 26. In many cases, the evidence relied upon to prove constructive possession is wholly or substantially circumstantial: Lights, at para. 48.

[87] Occupancy of premises alone does not create a presumption of possession, but it supports an inference of control when coupled with evidence of knowledge: Lights, at para. 50; R. v. Watson, 2011 ONCA 437, para 13; R. v. Lincoln, 2012 ONCA 542, para 3. The circumstantial evidence must tie the accused to the location such that the only reasonable inference is that the accused was aware of the contraband and had control over access to it: Lights, at paras. 36, 98; Pham, at paras. 17-18, 25-29; R. v. Dipnarine, 2014 ABCA 328, paras 17-20.

[30] In order to constitute joint possession pursuant to s. 4(3) of the Code, there must be knowledge, consent, and a measure of control on the part of the person deemed to be in possession: R. v. Brown, 2023 ONSC 901, per Presser J., and the cases cited therein.

[31] Control over a room is a relevant piece of evidence in establishing knowledge and control of drugs therein, but it must still be established that knowledge and control of the drugs is the only reasonable inference available: R. v. Morris, 2017 ONSC 835, para 101; R. v. Choudhury, 2021 ONCA 560, para 19.

Circumstantial Evidence

[32] Even in a case where the accused testifies, the principles of circumstantial evidence must be followed where the Crown relies heavily on circumstantial evidence to tie the accused to a particular location and argue that the accused had possession (i.e. knowledge and control) of the drugs found in that location.

[33] In R. v. Tewolde, 2023 ONSC 4932, Forestell J. summarized the applicable law concerning circumstantial evidence as follows:

[113] The Supreme Court of Canada, in R. v. Villaroman, 2016 SCC 33, set out the principles applicable to cases involving circumstantial reasoning. In the case of R. v. Gill, Fairburn J. (as she then was) summarized those principles as follows:

• Where one or more element of an offence relies largely or exclusively on circumstantial evidence, “an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits”: Villaroman, at para. 30.
• Staying focused on the question of whether circumstantial evidence admits of other reasonable alternative inferences, ensures that the trier of fact does not “fill in the blanks” or “jump to conclusions” too quickly: Villaroman, paras. 29-30.
• While previous cases speak in terms of other “rational” inferences, the unanimous Villaroman court settled upon the term “reasonable”: see, R. v. Griffin, 2009 SCC 28, para 33, Villaroman, at paras. 32-34. As Cromwell J. noted in Villaroman, while “reasonable” and “rational” inferences carry the same meaning, and it is not in error to speak in terms of “rational inferences”, the use of the term “reasonable” guards against any confusion that may arise from the use of “reasonable doubt” and “rational inference”.
• Inferences consistent with innocence do not have to arise from proven facts: Villaroman, at para. 35. As Fish J. observed in R. v. Khela, 2009 SCC 4, para 58, the defence does not have to “'prove' certain facts in order for the jury to draw an inference of innocence from them”. To make this a requirement for finding alternative rational inferences would be to reverse the burden of proof. Ultimately, the court must consider the “range of reasonable inferences that can be drawn” from the circumstantial evidence. As in Villaroman, at para. 35, “[i]f there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.”
• A theory alternative to guilt is not “speculative” simply because there is no affirmative evidence supporting the theory. A “theory alternative to guilt” can arise from a lack of evidence: Villaroman, at para. 36. Gaps in the evidence can result in inferences other than guilt, but they must be “reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense”: Villaroman, at paras. 36-38.
• Reasonable possibilities and theories inconsistent with guilt must be considered, but this does not require the Crown to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: Villaroman, at para. 37, adopting R. v. Bagshaw, [1972] S.C.R. 2 (S.C.C.), at p. 8. Other reasonable inferences must find support in logic and experience and not rest on speculation.
• As noted by Cromwell J., at para. 38, the “basic question” is whether the circumstantial evidence, “viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty”.

[114] Cromwell J. at paragraph 42 of Villaroman stated that “alternative inferences [to guilt] must be reasonable, not just possible”.

[34] In R. v. Charley, 2024 ONSC 5064, Schreck J. also suggested asking the following question in cases that turn on circumstantial evidence:

[17] Ultimately, the issue is whether there is any other way of looking at the case as a whole that is reasonable such that there is a doubt about the accused’s guilt, when assessed logically and in light of human experience: R. v. Choudhury, 2021 ONCA 560, para 19.

[35] In R. v. Abshir, 2023 ONSC 4297, Nakatsuru J. commented on the requirement that the evidence be looked at in a cumulative fashion:

[13] Importantly, proof beyond a reasonable doubt does not apply to each piece of circumstantial evidence: “facts are not to be examined separately and in isolation with reference to the criminal standard”: R. v. Morin, [1988] 2 S.C.R. 345, at p. 362. Instead, there is a duty on the trier of fact to assess the evidence in a cumulative fashion: “it is the cumulative effect of all the evidence that must satisfy the criminal standard of proof, not each individual item which is merely a link in the chain of proof”: R. v. Smith, 2016 ONCA 25, para 81. See also Morin, at p. 361; R. v. Khalid, 2022 ONCA 501, para 23; Lights, at para. 37. As noted in Smith, at para. 82:

Often, individual items of evidence adduced by the Crown examined separately lack a very strong probative value. But it is all the evidence that a trier of fact is to consider. Each item is considered in relation to the others and to the evidence as a whole. And it is all the evidence taken together, often greater than the sum of individual pieces, that is to be considered and may afford a basis for a finding of guilt… [Citations omitted].

Crown’s Theory of the Case

[36] The Crown submits that Mr. Koritar is guilty of all of the offences as charged. His evidence at trial was neither credible nor reliable. There were several inconsistencies between his evidence at trial and the evidence he gave during his Charter application. PC Bilby’s version of the altercation with Mr. Koritar is true.

[37] Mr. Koritar testified that he had knowledge of the presence of certain drugs in the unit, and identified which drugs were only found in the master bedroom, and which were found in the kitchen.

[38] Mr. Koritar’s evidence that he had knowledge but not control of the various drugs in the unit does not make sense. Mr. Koritar acknowledged that, at the time, he was a user and dealer in drugs. Mr. Koritar’s claim that only Mr. Delgado had control of the drugs stretches credulity. The GHB was on open display in the kitchen area, and the preponderance of evidence suggests that Mr. Koritar had control of the master bedroom where the other drugs were found.

[39] To the extent this is a circumstantial case, the only reasonable inference based on the evidence as a whole is that Mr. Koritar is guilty as charged.

[40] The Crown submits that Mr. Koritar had sole constructive possession of the drugs in the master bedroom and joint possession with Mr. Delgado of the GHB in the kitchen. In the alternative, Mr. Koritar and Mr. Delgado had joint possession of all the drugs in the unit. On either theory, the Crown has proven the essential elements of the charges against Mr. Koritar beyond a reasonable doubt.

Defence Theory of the Case

[41] The Defence submits that Mr. Koritar’s testimony is true including about his altercation with police. His evidence should be believed over that of PC Bilby.

[42] Mr. Delgado was a known drug dealer who pleaded guilty to possession of the GHB. All the drugs in the unit were exclusively in Mr. Delgado’s possession. In the alternative, the drugs were in the sole control of Ms. Carter, who was also a user, or she could have jointly possessed the drugs with Mr. Delgado. Mr. Koritar was aware of drugs in the unit but the Crown was unable to prove that he had sufficient knowledge and control of the drugs. The Crown also failed to prove that Mr. Delgado consented to Mr. Koritar jointly possessing drugs with him.

[43] It is a reasonable possibility that Mr. Delgado and/or Ms. Carter possessed the drugs exclusively or jointly with each other; therefore, Mr. Koritar cannot be found guilty of possession.

Discussion

Issue #1: Has the Crown proven beyond a reasonable doubt that Mr. Koritar assaulted PC Bilby (Count 3), and attempted to take his taser away from him (Count 2)?

[44] PC Bilby testified that there were outstanding warrants for Mr. Koritar’s arrest from 22 Division (failure to comply recognizance) and 51 Division (fail to appear) in Toronto. Police officers including from the Emergency Task Force (ETF) unit arrived on the 23rd floor of 2 Sonic Way at 7:59 p.m. ETF officers including PC Bilby entered the unit at 8:00 p.m. without knocking using a hydraulic breaching device that caused the door frame to give way. The ETF officers were in full tactical gear.

[45] At the time, ETF officers did not use Body-Worn Cameras (BWCs) so there is no BWC footage. PC Bilby was the only Crown witness who testified about the altercation with Mr. Koritar which relates to the assault and attempt to take weapon charges. The other officers’ testimonies relate to the drug possession charges against Mr. Koritar.

[46] PC Bilby’s account and Mr. Koritar’s account of the altercation between police officers and Mr. Koritar is diametrically opposed.

[47] PC Bilby testified that, after entering the unit, he proceeded initially to what turned out to be the second bedroom of the unit. It was empty. He then entered the master bedroom and noticed a male lying on his stomach in a little hallway between the bedroom and the ensuite bathroom. The male was Mr. Koritar. He pulled Mr. Koritar forward towards the bedroom so that the officers had enough room to manipulate Mr. Koritar’s arms and handcuff him.

[48] When PC Bilby first encountered Mr. Koritar, Mr. Koritar’s head pointed toward the bed in the master bedroom and his feet pointed toward the ensuite bathroom. Two ETF officers were already engaging with Mr. Koritar. They were not on top of Mr. Koritar but in close proximity to him. Mr. Koritar’s legs and arms were moving and he was actively avoiding being secured. PC Bilby testified that, with his full tactical gear on, he likely weighed around 270 to 275 pounds. As he leaned forward, Mr. Koritar pulled him forward and PC Bilby ended up going down on one knee. Mr. Koritar was able to pull the officer’s hand towards Mr. Koritar’s facial area. PC Bilby felt something come down on the tip of his gloved hand. As PC Bilby pulled his hand back very quickly, his glove came off. He testified that he was not sure whether Mr. Koritar was trying to bite him, but Mr. Koritar got a hold of PC Bilby’s glove. Mr. Koritar grabbed PC Bilby’s vest and pulled him towards him. PC Bilby utilized knee strikes to the upper part of Mr. Koritar’s body in the hope of Mr. Koritar releasing his grasp but that was ineffective. PC Bilby used a closed fist and an open hand to strike Mr. Koritar in the face, which was successful in getting Mr. Koritar to release his grip.

[49] PC Bilby testified that he sat upright and decided to use a Conducted Energy Weapon (CEW), more commonly known as a taser. Mr. Koritar was actively kicking and punching. PC Bilby retrieved his taser from the right side of his vest and deployed it towards an open area of Mr. Koritar’s lower back which was 12 to 16 inches away. The taser probes shot out. They appeared to have zero effect on Mr. Koritar and the struggle with him became more intense. PC Bilby decided to utilize the taser in “redirect” mode which involved placing the taser directly against a body part and activating it. PC Bilby applied the taser to Mr. Koritar’s butt or the upper part of his thigh. Again, this did not appear to incapacitate Mr. Koritar who became even more upset. PC Bilby was concerned that, since there was a second cartridge in the taser, Mr. Koritar could get a hold of the taser and deploy it against the officers. PC Bilby testified that Mr. Koritar grabbed his taser. PC Bilby outstretched his hand at a 45-degree angle as far away as possible from Mr. Koritar to break Mr. Koritar’s grip on the weapon. Mr. Koritar was then subdued by a group of officers and handcuffed. At the end of the struggle, Mr. Koritar’s head was towards the bathroom and his feet were towards the bed.

[50] PC Bilby testified that he sustained a cut to his right knuckle which he treated with alcohol and Band-Aids. He described Mr. Koritar’s behaviour throughout as resistant, non-compliant, and unusual. He testified that Mr. Koritar kicked and punched him numerous times, but he could not provide a specific number of kicks and punches. Medics were able to remove one taser probe from Mr. Koritar’s body; the other was just sitting loose in his pants, which could explain why the first taser deployment had no effect.

[51] PC Bilby testified that he did not recall Mr. Koritar saying anything during the altercation.

[52] PC Bilby testified that he completed a Use of Force Report and a CEW Use Report.

[53] Mr. Koritar testified in his own defence. He denied assaulting PC Bilby or attempting to take his taser away from him. He testified that, on February 1, 2021, when police entered the 2 Sonic Way unit, he was living there with Ms. Carter, his girlfriend at the time. He had previously lived at Shore Breeze Drive in Toronto, and moved into the Sonic Way unit in the early morning hours of January 29, 2021, around 1:00 a.m.

[54] Mr. Koritar is a large man. He testified that he is 6’ 5”, and weighs 245 lbs.

[55] He testified that he was in the ensuite of the master bedroom when police entered the unit. He was on the ground, face down, when PC Bilby entered the bathroom. PC Bilby grabbed him and pulled him out of the bathroom. It hurt because he was being stretched out so he pulled his arm back. He denied kicking or flailing his arms and striking PC Bilby. He testified that the officers were “twisting him up pretty badly” so every time they twisted his wrist or hand, they hit pressure points and he squirmed because it hurt. Police kept on saying, “stop resisting” and he said, “I’m not resisting, I’m not resisting.” He was trying to be loose and let the officers put their cuffs on him, but they would not stop hurting him. At some point, PC Bilby had such a strong grip on his hand, that the officer’s glove came off. He denied biting or kicking the officer.

[56] Mr. Koritar testified that he got tased three to five times. He remembered getting tased on his back, wrists, and legs. He blacked out at some point and does not remember anything after getting tased the last time. He denied attempting to remove the taser from PC Bilby or assaulting him. He testified that he sustained injuries from the taser that “punctured” him. His face was bruised and he had blood coming out of his ear. His hands were pretty bruised around his wrists. He could not specify which officer was responsible for his injuries.

[57] In cross-examination, Mr. Koritar testified that when police entered the bathroom, he was told to get down. Then he was punched in the face and had more than one officer on top of him. He was on his stomach and officers were twisting his arms behind his back. He could not say how many times he got punched. At one point, officers pulled him upwards to the point that he was in an upright position. He did not know whether he was on his knees or standing, but thinks he was standing for a second or two. The police tased him on his wrists. His knees buckled and he went down. He then got punched in the side or back of his head. Then he got tased on the side of his body somewhere from underneath his arms to his back. He blacked out after the last tasing.

[58] I do not believe the evidence of Mr. Koritar and I am not left in reasonable doubt about Mr. Koritar’s guilt regarding Counts 2 and 3 based on the evidence at trial which includes the evidence of PC Bilby.

[59] The evidence from the pre-trial applications was not blended with the trial evidence. Rather, it was used for the purpose of cross-examination. Mr. Koritar gave a number of inconsistent answers. In his Charter application, he testified that he did not remember whether he grabbed a taser, yet at trial he testified that he definitely did not grab a taser. In the application, he did not testify about bruising on his wrists, a conspicuous omission considering that he alleged excessive use of force, yet at trial he testified about such bruising. Further, in the application he testified that he was pushed to the ground by officers, but at trial he testified that his knees buckled after he was tased. Ultimately, he settled on being pushed forward and down on his back. Even accepting this answer, I find it difficult to understand how, if Mr. Koritar’s knees buckled and he was pushed forward—meaning in front of him—how he would land on his back. Finally, in the application, Mr. Koritar detailed only one time when an officer knelt on him and he felt pain in the small of his back. Yet at trial, he testified that an officer or officers were on his back several times throughout the altercation. Mr. Koritar responded that he could not remember the exact number of times this happened.

[60] I also find Mr. Koritar’s version of the altercation with police implausible. Mr. Koritar suggested that when police entered the bathroom they ordered him to get down and then they punched him in the face. In his version, the officers pulled him upwards to the point that he was standing for a second or two. Accepting Mr. Koritar’s version would mean that, notwithstanding that Mr. Koritar was already down and supposedly compliant, the officers pulled this 6’ 5”, 245 lb. man up to a standing position or at a minimum an upright position, and then tased him three to five times. I note, parenthetically, the uncontested evidence of PC Bilby that a single taser has 2 cartridges. There was no evidence whatsoever of an officer other than PC Bilby using a taser. So, it seems improbable that PC Bilby’s taser was used three to five times on Mr. Koritar.

[61] I find that PC Bilby’s evidence is credible and reliable. PC Bilby testified that the first taser deployment which involved the prongs shooting out had no effect. This is consistent with the officer’s later evidence that one of the prongs was hanging loose in Mr. Koritar’s clothing. PC Bilby testified that between the start and the end of the altercation, Mr. Koritar’s body turned 180 degrees which is consistent with his evidence that Mr. Koritar’s arms and legs kept moving. PC Bilby’s evidence that, in order to loosen Mr. Koritar’s grip on his taser, he outstretched his right hand as far as possible at a 45-degree angle makes sense.

[62] I found that PC Bilby was careful to qualify his evidence. He did not testify that Mr. Koritar bit him. Rather he testified that he did not know whether Mr. Koritar was trying to bite him but he felt something come down on the tip of his gloved finger and that his glove came off. He testified that three additional officers came in after his first deployment of the taser on Mr. Koritar. He answered that he could not say where the initial two officer were standing relative to Mr. Koritar when he first encountered Mr. Koritar. Although this could be taken as a strike against PC Bilby’s testimony—that he should have remembered this detail—it made sense in the circumstances that PC Bilby could not say which side the officers were on in this dynamic situation.

[63] Mr. Koritar’s evidence that he had blood coming out of his ear was contradicted by the evidence of PC Bilby, DC Esteves and DC Pickford who did not notice any blood in the area of the altercation.

[64] Under Count 2, I am convinced beyond a reasonable doubt that the elements of the offence of “attempt to take weapon of peace officer” under s. 270 have been satisfied. It is undisputed that PC Bilby was engaged in the course of his duties, that a taser is a weapon, and that PC Bilby did not consent to his taser being taken. The offence is made out by an individual taking or attempting to take a weapon that is in the possession of a peace officer engaged in the execution of his duties.

[65] I find that Mr. Koritar continued to struggle with police officers including PC Bilby and, in the course of that struggle, he intended to and did grab the taser in PC Bilby’s hand. PC Bilby was clear that Mr. Koritar grabbed the front portion of the taser that was in his hand and pulled it down towards him. I find Mr. Koritar guilty under Count 2.

[66] Under Count 3, I am convinced beyond a reasonable doubt that the elements of the offence of “assault resist arrest” under s. 270(1)(b) have been satisfied. I believe PC Bilby’s version of the altercation and his evidence that Mr. Koritar intended to prevent his lawful arrest or detention. I find that Mr. Koritar punched and kicked PC Bilby with the intention of using force without the officer’s consent. I do not believe that Mr. Koritar was compliant and that the officers continued to assault him and told him, without justification, to stop resisting arrest. Accordingly, I find Mr. Koritar guilty under Count 3.

Issue #2: Has the Crown proven beyond a reasonable doubt that Mr. Koritar was in possession of controlled substances (cocaine, fentanyl, ketamine, methamphetamine and GHB) for the purpose of trafficking?

[67] Police found quantities of cocaine, fentanyl, ketamine and methamphetamine in the master bedroom and nowhere else in the condo. Similarly, they found GHB in the kitchen area of the unit and nowhere else.

[68] I find, for starters, that on February 1, 2021, Mr. Koritar occupied and was in possession of Unit 2308, 2 Sonic Way. There is not much dispute about that but I will nevertheless outline my reasons for this finding.

[69] Mr. Koritar testified that, as of 2021, he had known Mr. Delgado for over 6 years. Mr. Delgado was a fashion designer who worked from home. Mr. Delgado’s name was on the lease for the unit.

[70] Mr. Koritar testified that he faced a difficult choice. He and his girlfriend were living in a unit on Shore Breeze Drive in Toronto but had to move out. He knew that there were drugs in Mr. Delgado’s unit but it was “either sleep there, or on a park bench.”

[71] Mr. Koritar testified that Mr. Delgado gave him a set of keys. He was inconsistent about whether he had access to the garage. In his pre-trial application, he said he had a garage fob, but at trial he testified that he did not know how he accessed the garage. He never testified that his access to the unit, lobby or parking garage was restricted. Indeed, as discussed below, building surveillance showed Mr. Koritar descending from the 23rd floor at 1:24 a.m. on January 31, 2021. I find that he could come and go as he pleased.

[72] The evidence at trial also confirms that Mr. Koritar had unrestricted access to all parts of the unit. Indeed, when police entered, Mr. Koritar was found in the ensuite of the master bedroom.

[73] Mr. Koritar testified that when he and his girlfriend Ms. Carter moved in, the unit was a complete mess. Mr. Delgado was cooking GHB on the stove. Mr. Delgado did not walk the dogs. Dog feces were on the balcony and in the bathroom near the entrance, and there were holes in the walls of the unit. Mr. Koritar and Ms. Carter spent almost all their time fixing up the place. He could not recall if during that time he slept or stayed awake all night. He testified that between January 29 to February 1, he never slept in a bed. He only dozed off in the living room. He may have been able to stay up for so many hours because he was doing crystal meth. Mr. Koritar testified that he knew that there were drugs in the unit, namely crystal meth, cocaine, and GHB. In particular, he knew that all the drugs were in the master bedroom, except the GHB. He testified that there may have been a small amount of cocaine on a plate in the living room.

[74] Mr. Koritar testified that all the drugs in the unit belonged to Mr. Delgado. He acknowledged that, at the time, he too was a drug dealer but claimed that he never stored his drugs in the 2 Sonic Way unit. Buyers never came to that residence. Instead, he stored his drugs in the storage locker of a friend’s apartment in the Don Mills and Lawrence area. That is where he was heading when the building surveillance showed him on January 31, 2021 in an elevator with a leather jacket on and a gray backpack.

[75] He testified that, late in the evening on January 31, 2021, he received a phone call to sell some drugs. He left the condo building and was driven by Ms. Carter to his storage locker. He then went to Shuter Street in downtown Toronto to sell the drugs which consisted of cocaine and crystal meth. He then returned to the storage locker to drop off the knapsack and returned to the unit on Sonic Way.

[76] Officers found a leather jacket similar to the one worn by Mr. Koritar in the master bedroom of the unit with a Health Card belonging to Mr. Koritar in the jacket pocket. Mail addressed to Mr. Koritar at Unit 2308 - 2 Sonic Way was also found in the master bedroom.

[77] Mr. Koritar testified that he borrowed Mr. Delgado’s leather jacket when he went to do the drug deal on Shuter Street on January 31. On his return, he threw it on the couch in the living room. He testified that the reason why his Health Card was found in Mr. Delgado’s leather jacket in the master bedroom is that Mr. Delgado was using Mr. Koritar’s Health Card in the living room to chop lines of cocaine. At some point, Mr. Delgado must have placed the Health Card in the jacket used by Mr. Koritar and taken the jacket into the master bedroom.

[78] With respect to the mail directed to Mr. Koritar at Unit 2308, he testified that he was on ODSP and that he did not receive benefit cheques via mail. Instead, the benefits were deposited directly into his bank account and he was given a bank card to access the funds. He testified that four to five months before the February 1 police entry, Mr. Delgado had permitted him to use the Sonic Way residence as his mailing address. He could not say how his mail came up to the unit, whether he or someone else picked it up from the mail room, or how it found its way into the master bedroom.

[79] The envelope addressed to Mr. Koritar was opened for the first time in court while Mr. Koritar was under cross-examination. The contents were a letter from the Ministry of Children, Community and Social Services to Mr. Koritar dated January 29, 2021 entitled Statement of Assistance describing his ODSP benefits for the period January 1 to January 31, 2021. Mr. Koritar testified that he did not open and look at all of his correspondence concerning his ODSP benefits.

[80] At trial, DC Pickford testified about finding a sheet of paper posted on the refrigerator called “House Rules.” The sheet described 13 rules to be followed presumably by the occupants of the unit. Some of the rules were, “1. If you open it, close it”, “4. If you break it, fix it”, “8. If you make a mess, clean it up”, “10. If it belongs to someone else and you want to use it, ask permission”, and “12. If the dogs are wining (sic), take them out!”. Mr. Koritar testified that Ms. Carter wrote the “House Rules” and that they were a sort of guideline for how everyone should act within the apartment.

[81] I find that Mr. Koritar would not likely direct mail that had to do with his only legal source of income to an address that he did not have control over. Further, the “house rules” that his girlfriend created also suggest that he had access to everything in the unit.

[82] I will then move on from the unit in general to the master bedroom in particular.

[83] Mr. Koritar’s knowledge of methamphetamine and cocaine in the master bedroom is conceded. He admitted to this but claimed that the drugs belonged to Mr. Delgado. However, he disputes the Crown’s assertion that he had control of the master bedroom or any of the drugs in it.

[84] As stated earlier, police found cocaine, fentanyl, ketamine and methamphetamine in the master bedroom and nowhere else in the condo. As described in the ASF, the drugs in the master bedroom were found in two locations:

• within a Ziploc brand Tupperware container that contained fentanyl (with caffeine and dimethylsulphone), cocaine, methamphetamine, ketamine, and a cocaine and ketamine mixture; and
• within a Champion brand satchel that contained methamphetamine, DMT, cannabis resin, sildenafil or its salts, and a mixture of caffeine and dimethylsulphone.

[85] Both the Tupperware container and Champion satchel were found on the floor of the master bedroom within a few inches of each other.

[86] In the master bedroom, police also found:

• the black jacket worn by Mr. Koritar in the elevator with his Health Card in its pocket;
• $1,315 in cash;
• a black wallet on top of a white stand – there was no evidence of the police examining the contents of the wallet to determine its owner;
• women’s clothing; and
• art supplies.

[87] One of the key issues in this case is whether Mr. Koritar was assigned and slept in the master bedroom when police executed the search warrant on February 1, 2021. Mr. Koritar denied this and testified that after he moved in, he only slept on the couch in the living room. He testified that the clothing in the second bedroom belonged to him, and the male clothing in the master bedroom belonged to Mr. Delgado. He testified that Ms. Carter hung up her clothing in the master bedroom because they had not finished cleaning the second bedroom.

[88] However, the circumstantial evidence strongly points to Mr. Koritar and his girlfriend being assigned and using the master bedroom, not the second bedroom.

[89] First, and most obviously, when police entered, Mr. Koritar was found in the ensuite of the master bedroom. Mr. Koritar suggested there was dog feces in the other bathroom near the entrance; however, it is difficult to understand why, if there were three individuals in the unit since the early morning hours of January 29, and Mr. Koritar and Ms. Carter had been cleaning the unit almost continuously for almost four days, the other bathroom would still be unusable. Mr. Koritar also acknowledged leaving his toothbrush in the ensuite bathroom of the master bedroom which is more consistent with Mr. Koritar actually sleeping in or using the master bedroom as his own, rather than the second bedroom.

[90] Second, police found Ms. Carter in the master bedroom. Her purse containing her driver’s licence was found there too. Women’s clothing was only found in the master bedroom, not in the second bedroom. Given that Mr. Koritar and Ms. Carter were romantically linked, if Ms. Carter was in the master bedroom, it would suggest that that bedroom belonged to Mr. Koritar rather than Mr. Delgado. Unless Ms. Carter took her purse everywhere she went in the apartment, it would be odd for her to take her purse into the master bedroom even though she was normally using the other smaller bedroom.

[91] I must also contend with the evidence arising from a statutory declaration signed by Ms. Carter on September 30, 2021. In her statutory declaration, Ms. Carter, 27, stated that for about three months or so previously, she had been sleeping over with Mr. Koritar, her boyfriend, two to three times a week. Notably, she did not specify which residence this was at, but she stated that she left items of a personal nature such as a change of clothes and toothbrush there. She explicitly stated, “I was not living there” and earlier in the declaration stated that, at the time, she was living with her family in Stouffville, Ontario. In the balance of the statutory declaration, Ms. Carter denied any knowledge or control of any illicit substances in the unit.

[92] Mr. Koritar testified that he and Ms. Carter moved into Mr. Delgado’s unit, not that only he moved in and Ms. Carter visited him. Be that as it may, one way to reconcile the discrepancy in the evidence is that, given that Ms. Carter was sleeping over with Mr. Koritar two to three times a week, it was reasonable for Mr. Koritar to describe this as Ms. Carter and him moving in with Mr. Delgado.

[93] Third, it is a reasonable inference given their romantic relationship, that Mr. Koritar and Ms. Carter would sleep in the same bed. This provides another circumstantial reason for why it is difficult to accept Mr. Koritar’s evidence that he was assigned the smaller bedroom and not the master bedroom. As I stated previously, Mr. Koritar is a large man. I find it difficult to believe Mr. Koritar’s evidence that after he moved into the unit, he only slept on the couch in the living room, and Ms. Carter slept on his lap. Further, given that there were two of them and one of Mr. Delgado—and that Mr. Delgado is shorter and lighter than Mr. Koritar (Mr. Koritar testified that Mr. Delgado was 6’ 2” and weighed 220 lbs.)—it seems incongruous that Mr. Koritar and Ms. Carter would be assigned the smaller bedroom. PC Walker testified that the bed in the master bedroom was a bit bigger than the one in the second bedroom.

[94] Fourth, the evidence of personal belongings does not support Mr. Koritar’s testimony. I have already dealt with Ms. Carter’s purse being found in the master bedroom. The leather jacket that Mr. Koritar was seen wearing in the elevator was found by police in the master bedroom with Mr. Koritar’s Health Card in a pocket. Mr. Koritar’s explanation, that it was actually Mr. Delgado’s jacket that he borrowed; that the reason why his Health Card was found in it was because Mr. Delgado was cutting lines of coke; and that the jacket somehow moved from the couch into the master bedroom, seems farfetched. A far more straightforward explanation is that the reason why the jacket and Health Card were found in the master bedroom is that Mr. Koritar was assigned to the master bedroom and was using the master bedroom on or around February 1, 2021.

[95] Fifth, the Crown’s theory that Mr. Koritar was using or sleeping in the master bedroom is also supported by police finding his mail in the master bedroom. Mr. Koritar was unable to state why or how his mail got to the master bedroom. Conversely, while police testified that male clothing was found in the second bedroom, the only identifiable document in that bedroom was mail in the name of “Roberto.” When I magnified the image of the photo that was put into evidence at trial, the mail appeared to be in the name of “Robert Rachero / Daniela Lucaro.” No evidence was presented at trial about a “Roberto” or his relationship to any of the occupants. Nothing clearly belonging to Mr. Koritar was found in the second bedroom. Also, PC Walker testified that he did not think that the male clothing in the second bedroom would fit Mr. Koritar. Finally, although police did not find it, Mr. Koritar agreed in cross-examination that there was mail in Mr. Delgado’s name in the second bedroom.

[96] Sixth, I agree with the Crown that, by the process of elimination, the black wallet found on the white stand in the master bedroom likely belonged to Mr. Koritar, notwithstanding that Mr. Koritar denied that he had a wallet. This is because, when Mr. Delgado was arrested, a wallet was found on him. Ms. Carter’s wallet was found in her purse which was in the master bedroom. Assuming that Mr. Delgado and Ms. Carter did not have more than one wallet, and that the black wallet did not belong to someone different altogether, that would only leave Mr. Koritar without a wallet. The wallet, likely belonging to Mr. Koritar, found in the master bedroom also provides another bit of circumstantial evidence tying Mr. Koritar to the master bedroom.

[97] In summary, the preponderance of evidence links Mr. Koritar to the master bedroom, not the second bedroom. I find that the only reasonable inference is that Mr. Koritar had control of the master bedroom, or that he had control of it jointly with Mr. Delgado. I do not see it as realistic or reasonable that only Ms. Carter, only Mr. Delgado, or only Ms. Carter and Mr. Delgado jointly, had control of the master bedroom. The Crown does not have to negative every possibility, no matter how remote.

[98] Further, I find, given the circumstances, that Mr. Koritar also had knowledge and control of the drugs in the master bedroom. Mr. Koritar testified that he knew that crack cocaine and methamphetamine were in the master bedroom. That covers off knowledge. But he also had control. He testified that he cleaned the unit with Ms. Carter for over three days almost continuously. By his own admission, he moved items into the master bedroom.

[99] A reasonable inference can also be drawn that the methamphetamine that he was using came from the master bedroom. He testified that, in January and February 2021, he was using methamphetamine daily. He further testified that he used methamphetamine on February 1, 2021, and that he was addicted to cocaine and methamphetamine. He used GHB once in a while, but never fentanyl. He had used ketamine before, but not around the January and February 2021 timeframe. I acknowledge the evidence where Mr. Koritar testified that he left the unit at 1:24 a.m. on January 31 with a backpack and accessed a storage locker where he stored his drugs. Police never found a backpack in the unit and the timing of Mr. Koritar’s return is unclear. I considered the possibility that when Mr. Koritar used methamphetamine on February 1, he used a batch that he had retrieved from his storage locker and not from the master bedroom. But, on balance, the location of the methamphetamine in the master bedroom – just on the floor near the bed; the fact that it was easily accessible in a Tupperware container and a Champion satchel; the fact that he was addicted to it; and his admission that he actually used methamphetamine on February 1 leads me to conclude that Mr. Koritar used methamphetamine that came from the master bedroom. I note, parenthetically, that the Crown does not have to prove that Mr. Koritar used a controlled substance, he only needs to have had knowledge and control of it.

[100] Another key point is that Mr. Koritar testified that when he tried to clean the unit, he asked Mr. Delgado if the drugs were always going to be there and he did not get a straight answer. I find that this is evidence of Mr. Delgado not placing any restrictions on Mr. Koritar having access to the drugs that were in the master bedroom. It may very well have been that Mr. Koritar did not want to have drugs in the master bedroom, perhaps because of his addiction or for whatever other reason. But the legal test is not about Mr. Koritar’s attitude toward the drugs. It’s simply about his knowledge and control of them.

[101] Relatedly, the Defence submitted that the owner of all the drugs in the unit was Mr. Delgado. Even if that were true – and I am not convinced of that – so long as Mr. Koritar had knowledge and control of Mr. Delgado’s drugs, he is still guilty of possession under the Criminal Code. I also find that the location of the Champion satchel and Tupperware container on the floor that contained the drugs indicates that there was no effort to hide or compartmentalize the drugs away from whomever had control of the master bedroom.

[102] All of this leads me to conclude that Mr. Koritar had knowledge and control, and therefore possession, of all the drugs in the master bedroom. Given that the baggies containing the various drugs were right beside each other in either the Tupperware container or Champion satchel, it would not be plausible for Mr. Koritar to argue that, while he may have had possession of the methamphetamine and cocaine, he did not have possession of the other drugs including ketamine and fentanyl in the master bedroom.

[103] I am therefore convinced beyond a reasonable doubt that Mr. Koritar had possession of the cocaine, fentanyl, ketamine and methamphetamine for the purpose of trafficking. I find him guilty on Counts 4, 5, 6 and 7.

[104] I turn then to evidence of the GHB in the kitchen area. As stated earlier, large quantities of GHB in the kitchen were on open display. There was a large green pot on the stove containing over 12 kgs of GHB that PC Pickford described as still warm. I infer that a batch of GHB had been prepared shortly before police officers entered the unit at 8 p.m. Additionally, police found a 2 litre Pepsi bottle on the kitchen counter containing roughly 2 kgs of GHB, and 41 clear 100 ml bottles located in a cardboard box on the kitchen floor. There was also a line of GHB on the floor that rendered it slippery.

[105] Mr. Koritar testified that in February 2021 he used GHB a bit, that he knew GHB was in the unit on February 1, albeit not in the quantities that were found, and that Mr. Delgado cooked GHB on the stove.

[106] There is no dispute that Mr. Koritar had knowledge of the GHB in the unit. Besides, it was on open display in the kitchen. The only question is whether Mr. Koritar also had control. Given that he had free reign over any and all parts of the unit, and that there was no evidence at trial of Mr. Koritar being restricted in any way from the kitchen or the GHB, I find that Mr. Koritar had control of the GHB. Given that he had knowledge and control, I am convinced beyond a reasonable doubt that he had possession of the GHB and that he is guilty under Count 8 of possession of GHB for the purpose of trafficking.

Issue #3: Has the Crown proven beyond a reasonable doubt that Mr. Koritar was in possession of proceeds of crime not exceeding $5,000?

[107] The parties agreed that if I found Mr. Koritar guilty of drug possession, he would also be guilty on the proceeds of crime charge, count 9. Accordingly, I find Mr. Koritar guilty on count 9.

Conclusion

[108] I find Mr. Koritar guilty of the eight offences as charged.

Sidney N. Pinto
Released: January 24, 2025