Ontario Superior Court of Justice
Court File No.: CR/23-666
Date: 2025/01/23
Between
His Majesty the King
Applicant
G. Akilie, for the Public Prosecution Service of Canada
-and-
Mario Bixhi
Respondent
S. Reid, for the Accused
Heard: January 13, 14, 15, 16, 17, and 20, 2025
Reasons for Judgment
A. J. Goodman
Introduction
1The accused, Mario Bixhi (“Bixhi”), is charged with possession of cocaine for the purposes of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, possession of cannabis for the purpose of distributing it and possessing cannabis for the purpose of selling it, contrary to their respective provisions in the Cannabis Act, possession of the proceeds of crime not exceeding $5,000, willfully resisting a police officer in the execution of his duty, and that he did, without the consent of a peace officer, take a weapon that was in the possession of a peace officer in the lawful execution of his or her duty, contrary to their respective provisions in the Criminal Code.
2The accused pleaded not guilty to all of the counts. For this trial, the Crown called six police officers and filed materials, including several s. 655 admissions (“ASF”). Numerous exhibits were filed by both parties. The defence called one witness and the accused testified on his own behalf.
3At the conclusion of the trial, and at the Crown’s invitation, the accused was found not guilty of count 4, proceeds of crime exceeding $5000 offence.
Agreement as to Facts
4The case arises from the execution of a search warrant in the early morning hours of May 12, 2022, at various locations including and specifically at Bixhi’s rental unit at 503-2040 Mount Forest Drive in Burlington (“503”).
5The validity and execution of the search warrant is not at issue for this trial.
6On the date in question, Bixhi and his girlfriend were the registered tenants of 503. Their tenancy had commenced on June 1, 2021, and was set to last for a period of one year.
7The execution of the warrant involved the tactical unit from the Halton Police Service as their assistance for a high-risk search had been requested.
8The parties agree that the cocaine located in and seized from 503 was possessed for the purpose of trafficking. The price of cocaine in the city of Hamilton/Burlington at the relevant time was $100.00 per gram at the time of this search warrant execution. The value of the cocaine seized if sold at the street level is approximately $127,979.00.
9The cocaine itself was split into two bundles, both within the same box in the front bedroom closet of 503. First was the 982.93-gram bundle packaged in kilogram packaging and wrapped in paper and duct tape with the number “998” written on the tape. This cocaine had not yet been broken down for distribution. The remaining 296.86 grams of cocaine was packaged in plastic in the same box, and had been previously broken down and prepared for distribution.
10All cannabis (marihuana) located in 503 on May 12, 2022, was possessed for the purpose of distributing and selling it, as defined in the Cannabis Act.
11The cannabis was split into bundles. There was a total of 908.75 grams of marihuana seized from the first bedroom, 356.2 grams seized from the closet, and an additional 46.02 grams seized from a kitchen chair in 503. This is a combined total of 1310.97 grams of marihuana (1.30 kilograms). The 908.75 grams of marihuana in this case was packaged in two large blue bags. Within those two blue bags, the marihuana was separated into five clear cellophane bags, which were vacuum sealed. In addition, the 356.2 grams of marihuana seized from the closet was packaged into smaller zip-lock bags. The value of the cannabis seized is as follows: Gram Level – $13,109.70, Ounce Level – $11,560.00.
12On May 5, 2022, Bixhi was observed outside of 2040 Mount Forest Drive. At approximately 7 p.m. he entered the parking lot of the building, parking his Nissan SUV. He entered the building for approximately one hour before driving away in the same vehicle. Bixhi was not viewed by police again at 503 until his presence during the early morning execution of the search warrant on May 12, 2022.
13Bixhi is acknowledged to be a participant in all text message excerpts included in Appendix A, filed as an exhibit. The parties agree that he authored or replied to all messages attributed to phone numbers 365-889-7493 and/or 365-889-7493.
14In this case, the accused testified and has admitted possession for the purpose of distributing and/or selling of the marihuana found in the apartment, contrary to ss. 9(2) and 10(2) of the Cannabis Act.
Relevant Legal Principles
15It is against this background that I turn to the specific evidence and the analytical principles that I am required to apply in determining whether the accused is guilty or not guilty of the charges he faces.
16All of the evidence must be considered in determining whether the Crown has made out the charges beyond a reasonable doubt. The accused is entitled to the benefit of the presumption of innocence and is not required to give any evidence or disprove the charges as alleged by the Crown and in the manner proposed by the prosecution. The most fundamental rule is that the burden of proving guilt of the accused lies upon the prosecution throughout the case. Before the accused can be found guilty, a court must be satisfied beyond a reasonable doubt that the evidence advanced by the prosecution establishes all of the essential elements of one or more of the offences charged against him.
Reasonable Doubt
17The Supreme Court of Canada has commented on the principle of proof beyond a reasonable doubt in several cases. In R. v. Lifchus, [1997] 3 S.C.R. 320, the Supreme Court explained that the meaning of proof beyond a reasonable doubt is "[a] standard of proof is higher than… a balance of probabilities, yet less than proved with absolute certainty": at para. 14.
18The law provides for no burden of proof on the defendant at any stage in the proceedings. Absolute certainty is not required, for that would be an impossibly high standard for the prosecution to achieve. However, as referenced in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, beyond a reasonable doubt demands considerably more than probable guilt. A conclusion of probable or likely guilt requires that an acquittal be entered: at para. 242.
Assessing Credibility – Generally
19In a case such as this the framework for evaluation of the evidence and the credibility of the witnesses is the three-step method of analysis described by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742.
20Ultimately, there are no fixed rules to which the Court can look to guide it in its assessment of the credibility of the Crown’s witnesses in this case, and its assessment of the credibility of the accused, but a number of elements may be considered. These include the perceptions of the witnesses, their memory, how reliably and accurately do they recall the events, the manner in which the witnesses’ perceptions have been communicated to the court, and whether the information has been presented in a sincere, complete and truthful manner. A trier of fact will assess whether the witness is being sincere and frank or seemingly biased, dishonest or careless with the truth, or perhaps even reticent or evasive in the evidence that they have provided to the Court.
21Inconsistencies in the evidence of witnesses on relatively minor matters or matters of detail are, of course, normal. They are to be expected. Indeed, I would observe that the absence of such inconsistencies may be of even greater concern, for it may suggest collusion between witnesses in their evidence or fabrication or excessive rehearsal and regurgitation of a set story.
22Conversely, where an inconsistency of a witness involves a material matter central to the elements of the alleged offences and about which common sense dictates that an honest witness is unlikely to be mistaken, the inconsistency can demonstrate carelessness with the truth that may undermine the whole of a witness’ evidence.
23There is a distinction between credibility and reliability. Credibility relates to the truthfulness of a witness’s evidence. Reliability relates to the accuracy of the witness’ testimony which engages a consideration of the witness’ ability to accurately observe, recall and recount an event. A witness who is not credible cannot give reliable evidence. However, a credible witness may, nonetheless, give unreliable evidence; see R. v. Morrissey, 22 O.R. (3d) 514 (C.A.) at p. 526.
24Where a witness’ evidence raises credibility concerns, I must be cautious in accepting the evidence. That said, there is no rule prohibiting the reasoned acceptance of the testimony from a witness with credibility concerns. Moreover, such a witness’ evidence may, at times, be corroborated by other evidence. Depending on the circumstances of the case, the corroboration may restore faith in the witness’ evidence, despite their credibility issues; see R. v. Khela, 2009 SCC 4 at para. 95. Of course, none of the Vetrovec principles apply in this case.
25The Crown reminds me that in R. v. Kruk, 2024 SCC 7, the Supreme Court reiterated that triers of fact may rely on reason and common sense, life experience, and logic in assessing credibility. Offering a similar articulation in R. v. S. (R.D.) at para. 13, the Supreme Court considered that the life experience of trial judges – though of course not a substitute for evidence, and subject to appropriately circumscribed limits – “is an important ingredient in the ability to understand human behaviour, to weigh the evidence, and to determine credibility”, and assists with a “myriad of decisions arising during the course of most trials”.
26Credibility can only be assessed against a general understanding of “the way things can and do happen”; it is by applying common sense and generalizing based on their accumulated knowledge about human behaviour that trial judges assess whether a narrative is plausible or “inherently improbable”: R. v. Kiss, 2018 ONCA 184 at para. 31. This analysis must always be based on the totality of the evidence: see R. v. Aslami, 2021 ONCA 249 and R. v. Smith, 2016 ONCA 25 at para. 81. If, after all of the evidence is considered, a reasonable inference inconsistent with guilt on any essential element of the offence exists, the accused is entitled to an acquittal.
27It is trite law that the trier of fact may accept all, none or some of a witness’ testimony. As I will explain momentarily, this principle is relevant in my assessment of the evidence in this case.
Counts 5 and 6: Willfully Resisting Arrest and Taking Weapon from a Peace Officer
Positions of the Parties
29The Crown submits that the accused’s version of events does not make sense and is inherently incredible and is inconsistent with the evidence. The Crown submits that the evidence of the officers, taken in the context of the unexpected behaviour of the accused and the evolving, dynamic and tense execution of the search warrant should be believed. On a fair, common-sense evaluation of all the evidence, the officers acted reasonably, proportionately, and justifiably in the circumstances. Meanwhile, the accused actively and wilfully resisted Acting Sergeant Evan McLeod (“McLeod”) and his fellow officers during the course of the search and subsequent arrest in 503. Finally, the Crown says that all of the officers acted within their scope of duty and there was no excessive force employed warranting criticism under s. 25 of the Code.
30The defence responds that he did not resist any of the officers and was fully compliant from the get-go. He was protecting himself from the unwanted and unnecessary assaults inflicted on him by the police. He alleges that it was the officers that used excessive force in his arrest, as no force – excessive or not – would have been necessary to properly effect his arrest or the search of 503. The accused submits that he did not resist any police officer during the incident. Moreover, at no time did he grab the officer’s rifle. The ultimate position of the defence is that the actions of the police were unwarranted and inflicted gratuitous violence on him, which resulted in apparent injuries to his face and body.
Analysis
31The evidence leading up to the entry of the police into the accused’s residence was uncontested at trial. The Halton Regional Police Tactical Rescue Unit (“TRU”) executed the warrant at the accused’s unit, 503, at the request of the Hamilton Police Service (“HPS”), who required assistance, as this warrant was one of three simultaneous warrants in a HPS investigation.
32The Operational Plan relied upon by TRU in the execution of the warrant was based on information provided by the HPS. Among other things, the operational plan contained a photo and description of the accused. It assessed the risk as Level 3 and detailed numerous risk factors including that the “occupant(s) may have a history of serious violent behaviour including weapons use, resist[ing] arrest and/or assault[ing] police”, there was a potential for multiple occupants to be present in the unit, and a potential for weapons to be present. These risk factors heightened the officers’ safety concerns. The operational plan called for a dynamic entry, requiring a quick clearing of the apartment. The objective was to arrest the accused and make the premises safe for investigators to search for drugs.
33The TRU officers met for a briefing just prior to the search. They reviewed the operational plan in detail at the briefing, including the risk factors. Following the briefing, the officers met at a staging area, dressed in their grey tactical uniform with their full gear and equipment.
34At 4:40 a.m., on May 12, 2022, the TRU officers left the staging area, went to the apartment building in question, entered the building, climbed the stairs to the fifth floor, and set themselves up outside of the accused’s apartment door, adjacent to the stairs.
35According to the evidence, Officer Pinkney (“Pickney”) was the “breacher”, with a battering ram in hand to strike the left side of the apartment door, where the handle and lock were located. McLeod was positioned on the right side of the door in order to see into the apartment when the door was ultimately breached and opened.
36Constable Andrew Wilson, (“Wilson”) was number 5 or 6 in the line-up. Officer Kevin Parker (“Parker”) was in or near the stairwell and in the back of the group. The officers testified that as they are waiting to enter 503, they are focused on the task at hand because of the relative unknowns on the other side of the door.
37The evidence at trial, including photographs and a video, establishes that 503 was a relatively small apartment. Upon entry, there is a very small foyer. Immediately beyond the foyer to the left is the entry to a small galley kitchen. Beyond the kitchen is a small dining area. Straight ahead of the entry door is a very short hall that opens into the living room. The living room is partly behind the kitchen.
38To the immediate right of the foyer and front door is a narrow hallway to the bedrooms, closets, and bathroom. The accused’s bedroom is on the left side of the hallway, the other bedroom is at the far right. There is a closet on the immediate right of this hallway.
39At the time the search warrant was executed, the apartment was dimly lit. The accused testified that there was a light on somewhere down the hallway. Some of the officers testified that it was quite dark.
40At 4:45 a.m., the police breached the apartment door to 503. It took a number of blows, approximately five such hits to penetrate the door. None of the officers knew precisely how many strikes were required to gain entry. McLeod testified that when additional strikes to the door are required, it creates the potential for safety risks as the officers no long have the element of surprise in their favour.
41While the door was not immediately breached, McLeod testified that he yelled “police; search warrant”. He testified that he said it once and that the purpose for this statement is to alert occupants to the police presence, so they can know it is not a break-in or drug dealer entering. McLeod believes that he made this statement before the door had been fully opened.
42A number of officers testified at trial that yelling “police, search warrant” is their usual practice in such circumstances. Parker and Wilson also testified to hearing the shout-out regarding “police” and “search warrant”. The number of times that this was yelled in this case is not fully known, albeit Parker and Wilson testified that it had occurred more than once.
43The accused had been in bed, asleep, wearing boxers and a tank top undershirt when he was awakened by loud bangs. He estimated there were between six and ten bangs, but he is not certain.
44The accused testified that when the banging ended, he was approaching the entry way to see who it was. As he was walking down the hallway toward the door, to investigate, he testified to not believing it was a threat at the front door, but noted that pieces of the door were breaking off. Once he viewed the first officer enter the unit, he realized it was the police. There was a lot of noise at the time, but he could not hear what the officers were saying to him. The accused testified that he did not hear any police directions or commands before the police entered the unit.
45I am satisfied that the police did announce and yelled their presence upon breaching the door. This would have been heard by anyone in the apartment, including the accused, who acknowledged in his testimony that he knew it was the police upon their immediate entry to the unit.
46When the door breached, it opened partway. The accused testified the door burst open about 16 inches. McLeod said the door opened about two feet.
47A distraction device was also employed. The officers testified that this also occurred contemporaneously with their entry and that the entire interaction was limited to a matter of seconds. McLeod, who was on the right side of the door which opened left to right, testified that he saw a hand and perhaps a portion of an arm from inside the unit as the door opened. He testified that the opening of the door, the deployment of the distraction device and seeing the hand were essentially simultaneous events. McLeod could not see a whole person or where the person was standing inside. The hand then disappeared. McLeod made first entry to the apartment immediately. As he entered the unit, he believes he forced the door open.
48Wilson testified that he heard someone yell “he has something in his hands.” He says he later learned that it was Officer Pinkney who had made this comment. Parker, who was at the stairwell, testified that he heard someone say something along the lines of “he’s got something in his hand or he pointed something at me.” It is acknowledged by all parties that there was nothing in the accused’s hands at any time during this incident.
49The accused testified that when the front door opened he was standing at the threshold to the hallway somewhere in the middle of where the tile floor and the parquet of the living room floor meet, towards the living room. The accused stated that while he was standing there, a uniformed police officer came through the door simultaneously yelling “Police. Get down. Police. Get down.” He testified that he was facing the front door. The accused saw the first officer with a rifle. As a result of the police command to “get down”, he dropped onto both knees, buttocks on his feet, with his hands by his side, extended to the floor.
50The accused testified that he did not grab anything in the hands of any officer and did not resist the officers’ attempts to put him in handcuffs. His true intention during the course of the event was to protect his face and head. He was kicked in the chest by a standing officer and as a result, fell backwards onto the floor. The accused testified that, after he is kicked, the officers began to beat him. He does not know how many officers there were because he was covering his face and his head with his hands and had his eyes closed. The accused believes it was more than one officer as he felt a number of strikes all over his body. He testified that it felt like he was being punched, kicked and hit with something hard. The hard object struck his head, on his left temple between his left eye and his hairline. He believed that this object was the butt of the rifle, largely based on his observations of the marks left on his face.
51The accused also testified that these strikes caused him injuries and he also yelled out in pain. The accused says that, at this point, he was lying on his stomach. He testified that at some point he felt the officers were standing on top of him. He felt feet come down with force on the back of his limbs and described them as “stomps”. The accused testified about the effect of the taser employed on him. He also described the various injuries he sustained.
52The accused denies resisting the officers at any time. He denies thrashing his hands around while on his stomach, or that he was ever told to show his hands. He testified that he never heard McLeod yell to let go of his rifle. He never touched or grabbed the rifle and testified that he would never do so. He was trying to cover his face and head and that his hands the whole time.
53As mentioned, McLeod was the first to enter the apartment. He turned on his weapon mounted flashlight and saw a male to his “one o’clock” who matched the suspect’s description. He testified that the accused was standing in a bladed stance, which caused him concern.
54McLeod testified that no one else was involved with his initial altercation with the accused. McLeod testified that he told the male he was under arrest and ordered him to get down. The male did not move. McLeod approached the accused to close the distance. McLeod testified that he felt his rifle being pulled away from him toward the ground. He did not see the accused actually pulling on the rifle but unequivocally felt the rifle’s movement away from him. McLeod did not see the accused’s hands. He did not know if it was a part of the rifle being pulled or the sling. He felt himself being pulled forward and down. He testified that being exposed in such a position prompted substantial safety concerns.
55McLeod testified that he tried to break free and delivered a front thrust kick with his right foot, while the accused was still standing. He does not recall exactly where he struck the accused. McLeod thinks his kick knocked the accused into a semi-seated position against the wall. McLeod testified that he told the accused to give up his hands. The accused was yelling, but McLeod does not know what the accused was saying. The accused was still non-compliant and was struggling.
56McLeod claimed that, in the midst of his struggle with the accused, he went to ground just inside the bedroom hallway on one or both knees. He felt exposed and in danger as he was also blocking the TRU team’s progress down the same hallway. He repeatedly told the accused to stop resisting. McLeod began to issue downward strikes, as he felt he was being held to ground. Some of these strikes were with his feet, and landed on the accused’s upper body, head and shoulder area. He was trying to release his rifle by moving it in a sawing and twisting motion. No other officer observed this “sawing” motion.
57McLeod testified that once he freed his rifle, he stood up and faced down the bedroom hallway. He recalled someone behind or beside him, and bumping someone during his altercation with the accused, and someone saying they were covering him. On cross-examination McLeod affirmed that he did say to the accused “let go, stop resisting, give up your hands”. He did not say anything regarding his rifle. McLeod does not know if he hit the accused with the rifle while doing this but concedes that it was possible.
58When Parker entered the apartment he turned right. He heard yelling and viewed what appeared to be a struggle. He saw an officer trying to effect an arrest. Parker testified that the accused was on the ground, either on his knees or side. He saw some struggling. He believed the officer was on the ground. He repeatedly gave commands for the accused to give him his hands and stop resisting. At the same time, he was also looking down the hallway. The officer did not see any struggle over McLeod’s rifle, but he only arrived seconds later. He testified that he did not see McLeod strike the accused. Parker testified that the accused grabbed his leg and that he kicked the accused with the heel or side of his boot two or three times between the accused’s head and waist to try to break free.
59Parker testified that he could see the accused’s hands at times and that the accused’s arms fluttered or flailed around at times. Parker was also continuing to look down the hallway. The accused was yelling or saying things that Parker could not decipher.
60McLeod estimates that the altercation with the accused lasted about 15 seconds, but is not entirely sure. Parker testified that the struggle lasted around 10 seconds. Parker testified that no other officers were involved in the altercation with McLeod.
61After this initial interaction, McLeod testified that he felt the accused being moved away from in between his own legs to a position behind him. Wilson testified that when he entered the apartment, he saw about three or four officers to the right of him, and a person lying face down with his feet toward kitchen. Wilson was the officer who grabbed the accused and moved the accused towards the kitchen area.
62Wilson testified that after he had moved the accused, he told him he was under arrest and asked him to put his hands behind his back. Wilson was kneeling with his knees on either side of the accused and sitting on the accused’s buttocks. He grabbed the accused’s right hand. The accused put it under himself and was resistance to commands. Wilson testified that the accused resisted him, and he had to strike the accused with three distraction blows – to his ribs, mid-back and behind his right ear – in order to gain compliance with the demand to release his hand from underneath him. Wilson said that he pulled his right arm back about six inches to a foot, to strike the blows. He says he continuously repeated to the accused that he was under arrest and that he show his hands. He could hear the accused saying something but could not discern what. Wilson said that the accused’s arms were now locked underneath him.
63Wilson testified that the accused then moved his hands to beside his ears and began to push up. Wilson was using his hands to try to pin the accused’s hands. Wilson did not see what happened, but he felt a sharp pain in his left wrist. He looked down to see that his wrist was cut in three spots. He testified that until this point, no other officer was involved with him and the accused. Wilson pulled out his taser and did a dry stun directly on the accused’s right mid-back over his shirt to gain compliance. Wilson testified that, with another officer’s assistance, they were able to move the accused’s hands, one at a time, behind his back to place handcuffs.
64After the accused was handcuffed, he was left sitting against the wall near the entry to the hallway until the apartment was cleared. Wilson testified that the accused had scratches on his right cheek and blood coming out of his lower lip.
65Paramedics arrived and the accused was taken to the hospital. He was discharged and taken to the police station and subsequently released on bail. No medical evidence was tendered by the accused. There were numerous photos tendered of the accused’s injuries taken at the police station and after the accused was released on bail.
66Finally, Parker testified that after his leg was freed from the accused, he moved down the hall. He observed the second bedroom where there was a male and a female. The occupants in the second bedroom were compliant. The HPS investigators were called in and the scene was handed over to them.
Application of the Facts to the Legal Principles
67Section 129(a) of the Code stipulates that: Every one who
(a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer, … is guilty of… an offence.
68Section 25 of the Code provides that a peace officer, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
69The officers acknowledge kicking the accused, struggling with him, striking him with a fist, kneeling on him, partially lying on him, employing a taser and then handcuffing him. There is no dispute that the accused suffered some injuries.
70The Crown concedes that once the accused establishes on a balance of probabilities that he was subjected to a use of force causing (grievous) harm, an evidentiary burden then falls to the Crown to establish that the force was justified by virtue of s. 25 of the Code. see R. v. Jarrett 2021 ONCA 758, at para. 61; R. v. Robinson, 2019 ONSC 4696 at para 102 citing R. v. Davis, 2013 ABCA 15, 75 Alta. L.R. (5th) 386, rev’d on other grounds 2014 SCC 4, [2014] 1 S.C.R. 78.
71In my analysis, I am guided by a number of sage principles emanating from the case of R. v. DaCosta, 2015 ONSC 1586, wherein Hill J. conducted a thorough review of the legal principles applicable to the use of force, at paras. 98-99, and 103. These include but are not limited to:
Officers have a duty to protect and a right to their own safety. Assessing whether someone might harm others or might take out their anger against the officers is not governed by clearly defined rules. It is an exercise in discretion and judgment, often guided by experience. Second-guessing is not helpful.
A critical contextual circumstance for many arrests is the dynamic and fluid nature of an apprehension with the need for rapid, on-the-spot decisions by a police officer.
Police officers put their lives and safety at risk to preserve and protect the lives and safety of others in potentially dangerous and unpredictable situations. Measures reasonably necessary to eliminate threats to the safety of the public or the police will generally be conducted by the police as a reactionary measure; they will generally be unplanned, as they will be carried out in response to dangerous situations created by individuals, to which the police must react on the sudden.
The police are often placed in situations in which they must make difficult decisions quickly, and are to be afforded some latitude for the choices they make. The justifiability of the officers’ conduct must always be measured against the unpredictability of the situation they encounter and the realization that volatile circumstances require them to make quick decisions.
Police cannot be expected to measure in advance with nuanced precision the amount of force the situation will require.
It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. Police officers will be exempt from liability if they use no more force than is necessary having regard to their reasonably held assessment of the circumstances and dangers in which they find themselves.
The police are entitled to be wrong but they must act reasonably. Therefore, the police need not demonstrate the correct decision was made, but that the decision was made based on reasonable grounds on the circumstances known at the time. Some allowance is justifiably afforded “for misjudging the degree of force because of the exigency of the moment”.
72I also accept the statement arising from the case at para. 106, that: “Nor should the [actions of police] “be reduced to an over-analytical parsing of events into static moments without practical regard for the overall picture.”
73Defence suggests that the officers either lied or fabricated a story or alternatively, misrepresented as to what occurred between the officers and his client. Defence pointed to the credibility and straight-forward manner of the accused’s and defence witness’ testimony, while also noting that no other officer (besides McLeod) observed his client grabbing the rifle.
74It is true that the evidence of the officers is not entirely congruent. There are many things each of the officers did not see: they arrived at different moments and were focused on different actions. They were all concerned with possible threats, even more so as this was a dynamic event, rapidly unfolding. The officers would not necessarily have taken in every detail of the interactions between colleagues and the accused. The layout of the inside of the apartment would have been unknown. They unexpectedly encountered the accused immediately upon entering the dimly lit and tight-quartered unit, which undoubtedly led to some confusion and a degree of chaos. The officers were in a high stress, potentially dangerous situation.
75In this regard, I agree with the Crown’s submissions. The defence position requires me to accept that, for some unexplained or gratuitous reasons, the officers immediately upon entering the apartment, began to vigorously assault a compliant and submissive individual with whom they had no prior involvement. With respect, I must reject defence counsel’s assertions.
76I recognize that, on cross-examination, the accused acknowledged that what occurred to him was traumatic and disorienting and that his perception in places might not be entirely accurate because of stress, being awoken and the quick unfolding of events. However, in my view, some of the accused’s evidence seemed contrived to fit the defence theory that the officers had struck him gratuitously without any justification or prompting by his conduct. Some portions of the accused’s evidence were embellished or simply not credible.
77I am persuaded that there are some internal inconsistency and minimizations in the accused’s evidence. For example, the accused did not explain how he ended up on his stomach. When asked what happened after he was kicked and fell backward; the accused simply says he was beaten by police officers. It is difficult to conceive how his positioning changed during the incident. Moreover, I also do not accept the accused’s evidence that he was subject to such an extensive beating that he almost lost consciousness; given what I attribute to his actions in resistance and his involvement with various officers.
78The accused’s direct response to the officers increased the risk. It was reasonable for them to perceive an increased risk in the circumstances.
79Wilson’s evidence and credibility was subject to challenge on cross-examination. Wilson denied that he had ever tailored his evidence. Wilson was asked if he had discussed his evidence with Pinkney before testifying at the preliminary inquiry. He responded that the preliminary inquiry was the first time he had ever testified in court, and that he had asked Pinkney about the process. Pinkney told him that he had been cross-examined about their arrest, but they did not discuss the details. In my view, while not the usual course of events, this situation does not detract from Wilson’s evidence. I am satisfied that there is neither collusion nor tailoring of evidence.
80Ultimately, I accept Wilson’s testimony as to what transpired. While the accused was on his stomach and Wilson was seated on him, Wilson was attempting to arrest the accused. The accused was not complying. Wilson testified that he had experience with individuals concealing weapons in shorts. to four seconds. The actions of the accused in placing his hands under his body were a cause for concern and created a risk to the officers. I accept Wilson’s evidence and the necessity to use force to restrain the accused, including the deployment of the taser.
81Of significance is my conclusion that the accused not only resisted McLeod, but also willfully resisted Wilson who was attempting to carry out his duties to assist his fellow officer. The numerous injuries sustained by the accused were all brought on by his own aggression and actions in actively and willfully resisting the police during his lawful arrest, not only with McLeod, but also with Wilson.
82In addressing the final count, I find that the accused did reach out for and grabbed the rifle in the course of actively resisting the officer’s entry into the unit. I do not accept the accused’s evidence that he dropped to his knees when McLeod commanded him to get down and that he proceeded to stay still and do nothing.
83I accept that the accused grabbed some part of McLeod’s rifle and a struggle ensued. During that struggle, McLeod repeatedly kicked at and wrestled to get his gun away from the accused. It is likely that the accused may have been struck by the rifle during the struggle. This incident created an enormous safety risk of all involved.
84The accused challenges McLeod’s ability to deliver a thrust kick if he was, in fact, holding the officer’s weapon. In my view, McLeod’s evidence as to what transpired and his delivery of a kick, even a front thrust kick is not inconsistent with the accused grabbing some part of the rifle. I do not have a reasonable doubt regarding the manner in which the officer felt the rifle being pulled away from him by the accused, with the requisite intent.
85I also accept Parker’s evidence as to his interaction with the accused. I find that Parker believed that the accused had grabbed his leg and that he kicked the accused to try to break free. At one point Parker reached down to try to control the accused’s hands. Both Parker and McLeod were telling the accused to stop resisting.
86McLeod does not recall anyone else being involved in his altercation with the accused. However, he did recall bumping into someone during his altercation as well as someone saying they were covering him. Although he saw some struggling, Parker testified that he did not see a struggle over the rifle. While there may be some differences, McLeod and Parker’s evidence is not irreconcilable. The officers were focused on the threat at hand and the risks they were each facing; Parker focus was on the hallway area, and McLeod focus on freeing himself from the accused. I find that any differences in their evidence to be inconsequential and accounted for by their respective involvement in the dynamic event unfolding at the time.
87I reject all of the accused’s evidence and it does not raise a reasonable doubt. In this regard, I do not accept the defence’s theory of the case.
88Returning to s. 25 of the Code, I conclude that the TRU officers had a subjective belief in the need to use the level of force they employed, which was objectively reasonable. The risks identified in the operational plan, and the potential for weapons to be present, informed the officers’ understanding as they executed the search warrant.
89I find that there is no breach of s. 25 of the Code. The arrest was lawful and the force employed was justified. I am satisfied that the Crown has met its onus and has established all of the essential elements regarding both counts 5 and 6 of the indictment.
Legal principles of Production and Possession for the Purpose of Trafficking of Cocaine
90Indeed, this is the most significant and serious offence. Over one kilogram of cocaine was seized, with the evidence at trial that there was up to two kilograms of cocaine originally stored in the closet at 503.
Positions of the Parties
91The Crown submits that the accused was a principal or a party to the offence of possession for the purpose of trafficking of cocaine. According to the Crown, the evidence establishes that the accused had the requisite knowledge and control, was present at the time, and was in defacto possession and occupier of the bedroom and premises in which the cocaine was found.
92The Crown contends that the accused’s evidence and that of the defence witness is not credible and ought to be rejected. Shkelqim Ibishi, (“Ibishi”), is an unsavory and disreputable witness and cannot be believed. The Crown says that both the accused and Ibishi’s evidence strain credulity. For example, given their seven-year friendship, it is unbelievable that the accused would not know Ibishi’s involvement and selling of illicit drugs or the circumstances of his employment for that matter. The accused continually minimized his evidence. He distanced himself from knowledge of the contents of the closet. His reactions on the morning of May 12, 2022, denote his knowledge that cocaine was in the apartment.
93The Crown submits that the accused had a stash house at 503. He had access to his unit. He had the constructive possession of both the marihuana and the cocaine. In the alternative, the accused was willfully blind to the cocaine stored in his bedroom.
94The Crown contends that its case has been met by the evidence disclosed in the photographs and the other exhibits. Given the totality of circumstances, it is submitted that count 1 has been proven beyond a reasonable doubt.
95Defence submits that the evidence of the accused and of the defence witness, Ibishi, raises a reasonable doubt. These witnesses were not contradicted on the principal points of their testimony. Admittedly, Ibishi is a career criminal and drug dealer with numerous convictions for crimes of dishonesty. However, his evidence is corroborated. Ibishi admitted that the cocaine was his and that he placed it in the closet, unbeknownst to Bixhi. The accused testified that he had no knowledge of the cocaine or the drug scale found secreted in the bedroom closet.
96Defence submits that in the case at bar, the Crown has failed to provide this court with cogent evidence that the accused had knowledge and control of the cocaine. Based on surveillance and police monitoring, Bixhi was not present when Ibishi placed the product in 503. No surveillance placed Ibishi and Bixhi together at the relevant time. The accused’s explanations resonate with truthfulness as he has accepted responsibility for the marihuana, but has never used or possessed cocaine. None of the text messages support the Crown’s assertions.
97The defence submits that the Crown has not satisfied their onus beyond a reasonable doubt to establish that the accused was a party or a principal and had knowledge and control over the cocaine found at 503, beyond a reasonable doubt.
Legal Principles applied to the Present Case
98In assessing whether the Crown has established guilt beyond a reasonable doubt on the whole of the evidence in this case, some overarching principles merit consideration.
99The proof of unlawful possession requires the Crown to establish the two distinct elements of knowledge and control: R. v. Robinson, 2009 ONCA 626 at para. 22; R. v. Chalk (2007) ONCA 815, at para. 19. The prosecution may establish actual or personal possession by an accused, or joint possession as described in s. 4(3)(a) of the Code. Thus, the accused may be convicted as a principal or a party to the offence. In order to constitute joint possession pursuant to s. 4(3)(b), there must still be knowledge, consent and a measure of control on the part of the person deemed to be in (joint) possession: see R. v. Terrence, [1983] 1 S.C.R. 357, at p. 364. The notion of control refers to power or authority over the item, whether exercised or not: see R. v. Mohammad (2004), 182 C.C.C. (3d) 97 (Ont. C.A.) at paras. 60-61.
100In many cases like the one before me, it is common for the prosecution to prove possession by circumstantial evidence: see R. v. Caccamo, [1976] 1 S.C.R. 786, at p. 273; R. v. Vu, 2002 BCCA 659, at para. 23, which states that “the prosecution need not prove the required knowledge by direct evidence ... it could be inferred from the surrounding circumstances"; R. v. Aiello (1978), 38 C.C.C. (2d) 485 (Ont. C.A.), at p. 488 (aff'd) [1979] 2 S.C.R. 15); R. v. Pham (2005), 203 C.C.C. (3d) 326 (Ont. C.A.), at para. 18; and R. v. Anderson, [1995] B.C.J. No. 2655 (C.A.).
101Here, the prosecution’s case involves both direct and circumstantial evidence. Before I address some of the direct evidence provided by the defence, it is worth mentioning that in a circumstantial case, inferences are ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence.
102There are also limits to the use of circumstantial evidence. Notedly, a trier of fact cannot be invited to draw speculative or unreasonable inferences. Any inferences must be carefully distinguished from conjecture or speculation. A judge must be alive to any explanation, contradiction or inference pointing toward innocence. A careful analysis is required to determine whether such evidence reasonably supports the circumstantial inference sought to be drawn: see R. v. Figueroa, (2008) ONCA 106, 2008 ONCA 106 , 232 C.C.C. (3d) 51, at para. 35. In a similar vein, a trier of fact must determine what primary facts have been proven and what rationale non-speculative inference flow from the primary facts: see R. v. Arcuri, (2001 SCC 54), [2001] 2 S.C.R. 828, at para. 31; Morrissey, at para. 209.
103It is trite law that circumstantial evidence is not to be evaluated piecemeal, rather cumulatively: R. v. Arp (1998), 129 C.C.C. (3d) 321 (S.C.C.), at para. 64.
104In order to convict in a circumstantial evidence case, the trier of fact must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty. In other words, an inference of guilt drawn from circumstantial evidence must be rooted in the evidence and must be the only reasonable or rationale inference available on the totality of the evidence, applying its logic and common sense to the totality of the evidentiary picture. Those alternative explanations may or may not lead the trier to conclude the Crown has failed to prove that guilt is the only reasonable or rationale inference available on the evidence: see R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 28, 35-42.
105The Crown refers to the case of R. v. Briscoe 2010 SCC 13. This was a murder case. The Supreme Court described that the mens rea requirement reflected in the word “purpose” under s.21(1)(b) has two components: intent and knowledge. For the intent component, “purpose” in s.21(1)(b) should be understood as essentially synonymous with “intention”. See also R. v. Hibbert, [1995] 2 S.C.R 973. The Court emphasized that “purpose” should not be interpreted as incorporating the notion of “desire” into the fault requirement for party liability. The accused need not desire that the offence be successfully committed, and a judge’s analysis should not be predicated on such: Hibbert, at para. 35.
106The legal concept of willful blindness can substitute for actual knowledge. The doctrine of willful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquires: See Sansregret v. The Queen, [1985] 1 S.C.R. 570 and R. v. Jorgensen, [1995] 4 S.C.R. 55. As Sopinka J. succinctly put it in Jorgensen, at para. 103, “[a] finding of willful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?”
107Finally, it is important to keep the concepts of recklessness and willful blindness separate and distinct.
Analysis
108Sergeant Mark Griffin (“Griffin”) and Constable Kyle Lentz (“Lentz”) testified for the HPS, and their evidence portrayed how the police discovered and seized the items located in 503, particularly in relation to the cocaine. Griffin had to thoroughly search the bedroom closet by moving things around. Towards the left side of the closet, there was a green Gucci box, and inside the box was the cocaine. He also found a digital scale located at the bottom left of the closet, approximately 18 inches from the cocaine. He also located a slip in the closet described at trial as the “Montreal slip” with the date unknown. On cross-examination, Griffin admitted that the slip could have been inside the Gucci box. The one kilogram wrapped cocaine bag had writing on it. “998” and “Clover”.
109Lentz was the exhibit officer and testified about the packaging of the cocaine. He also located certain documents and currency from the bedroom all pertaining to the accused. The “Montreal” slip and the Gucci box were not seized. No fingerprints were analyzed from any of the seized or non-seized items located in the bedroom closet.
110On cross-examination, Lentz testified that he knows Ibishi. There was surveillance conducted on this individual as part of a larger drug related project, including the fact that Ibishi went towards Kingston, in May 2022. He testified that the “Montreal” slip or receipt was in the Gucci box. He did not seize the slip as he believed it was not relevant.
111There is no issue that Ibishi obtained the cocaine from his supplier in Montreal and brought it back to Ontario. He was the distributor of the drugs for that purpose. As such, the live issue is whether the accused had the requisite knowledge and control over the cocaine in the bedroom closet.
112Here, we have a notorious and self-admitted drug dealer confessing to the possession, knowledge and control of the cocaine.
113Ibishi has an extensive criminal record, roughly 47 convictions, with numerous crimes of dishonesty. He is a drug trafficker, a thief, a liar, and not inherently reliable or credible. As such, his credibility is highly suspect. I am mindful that a Vetrovec self-warning is not applicable, nonetheless I must still assess his testimony given his extensive record for deceit, dishonest, and untruthfulness.
114Of course, one might reasonably suggest that his evidence and admissions to possessing the cocaine is untrustworthy and entirely self-serving.
115There is no dispute between the parties that the cocaine was brought to the apartment by Ibishi. The ASF details the cocaine values and amounts.
116While Ibishi took responsibility for the cocaine and described his visit to Montreal from approximately May 5 to 7 or 8, 2022, the defence also provided some photographs in relation to that visit. This included Ibishi’s description and reference to the “Montreal” slip that originated in May 2022, just prior to Ibishi’s return to Burlington. Ibishi testified that he was given a key to 503 about a month prior to the search. He had an arrangement with Bixhi for access to the apartment at $750 a month. He explained that he required a place to stay “when needed”, as he had issues with his girlfriend at the apartment “once and while”. Ibishi described the outside of 503, his access to the apartment, the unit itself and the bedroom’s layout with some degree of precision. He also referenced the Montreal slip and its genesis.
117Ibishi testified Bixhi - a good friend of some seven years at the time - abhors cocaine, did not know anything about cocaine generally, and was never informed about the cocaine in the bedroom closet of 503. Somewhat incredibly, Ibishi testified that he never told his good friend about his drug dealings or extensive criminal record. When asked if he would be putting his good friend at risk by storing the cocaine at 503, his response was “it was the safest thing to do at the time”.
118Ibishi testified that when he was in Montreal to purchase the cocaine, he believed that he was being followed and surveilled to some extent by the police. He testified that he needed to stash the cocaine until it could be sold. He admitted that the cocaine would be difficult to sell, given its poor quality.
119Ibishi also accurately described the packaging of the cocaine, the symbols of “Clover” and “998” on the package. Of course, he knew what it looked like, having purchased it from his supplier. Nonetheless, he testified that he broke open and took 500 grams from one package, which was measured on his scale. He left the remainder secreted in the closet, in the Gucci box under some clothing. He described the nature of the contents of the opened package with some exactitude.
120On cross-examination, Ibishi testified that his motivation to trafficking at the “kilo level” was to make money. Ibishi testified that there was an agreement of $750 to “access the place (503)” as he was having domestic-related issues. He denied the assertion that he would not leave $90,000 worth of cocaine tucked in the apartment, as it was only supposed to be for a few days, as he was attempting to move the product. He knew nothing about the marihuana found in 503.
121In re-examination, Ibishi clarified that he did not expect Bixhi to be at the apartment during the relevant time in May, 2022 as he not always there and the cocaine was only going to be stored for a few days.
122The accused testified that he never possessed cocaine, never used cocaine, never sold cocaine and did not know about the cocaine in 503. He stated that he never saw Ibishi with the impugned cocaine, although he may have seen him snorting cocaine at a party.
123The accused claimed that he too had issues with this girlfriend at the relevant time. He was a glazier by trade and lived with his parents in Hamilton. He was on the lease for 503 with his girlfriend, but would only go there once in a while. He felt obligated to the lease and had various tenants in the apartment.
124He acknowledged the text messages found in Exhibit 3. However, as was pointed out, none of those message made any reference to any cocaine transactions, only the selling and distribution of the marijuana.
125On cross-examination, the accused denied being at 503 at the same time as Ibishi. He claimed that he was there on May 5 and only returned on the evening of May 11, 2022. Again, quite astoundingly, he did not know what his good friend of seven years did for a living and never even made any such inquiries.
126In my opinion, the accused minimized his evidence and distanced himself from any substantial knowledge of the contents, clothing or items in the closet. He denied ever owing or viewing the Gucci box. He denied possessing or even recognizing certain clothing hanging in the closet.
127The accused denied the Crown’s suggestion that 503 was a “stash house”, notwithstanding that there was 1.5 kilograms of marihuana stored there by his own actions, (admittedly). On this very point, and going to his credibility, I do not accept the accused’s evidence that he merely sold or gave the marihuana to some friends. Given the significant amount of marihuana seized from 503, and the text messages, this assertion belies common sense.
128The accused disputed the Crown’s reference to various text messages and the nature of his rental situation and interactions with Ibishi.
129I have considered the doctrine of willful blindness. In many similar cases, it is wholly applicable, especially given the location of the cocaine in the bedroom, and the accused’s presence at 503 at the time of the search. However, when considering Ibishi’s testimony, albeit with a high degree of skepticism, the limited temporal placement and storage of the cocaine in the closet, and its manner of storage, I cannot find that this principle applies beyond a reasonable doubt.
130This case clearly involves an innocent explanation offered by the accused of the Crown's evidence rather than evidence contesting the credibility of the Crown witnesses. That being said, the broader principles found in W.(D.) are still applicable. If I believe the accused’s innocent account of what happened then I obviously must acquit. I do not. However, even if I am not convinced that the accused’s version or that offered by the defence witnesses is the truth, I must ask myself whether it nonetheless leaves me in a reasonable doubt. It does not.
131It is then on the third prong that I must make my assessment. This includes some of the testimony provided at trial but also my analysis of the circumstantial evidence.
132The accused took some calculated steps to carefully explain his limited positioning in 503, in an attempt to convince me that he was only ever in certain precise areas of the unit, with no opportunity to access the closet or view its contents. All of which would have left the impression that he was never in the closet at the relevant time where there was any opportunity to view cocaine, or the box, or the scale. The accused minimized his actions in the unit and his knowledge of the items in the closet. In cross-examination, I was provided with some corroboratory evidence in support of the accused’s position. While tempting, I cannot, as such, totally reject his evidence on the substantive issues.
133I am also not naïve to Ibishi’s motivation to obfuscate and testify in this case. However, in the course of his testimony, his evidence was consistent and in accordance with the version provided by the accused and the exhibits that were filed. I am not totally convinced that there was not some collusion, but nonetheless, Ibishi’s evidence, at times, cannot be totally rejected.
134The narrative advanced by the accused and Ibishi is not without its troubling areas. The use of 503, as storage, is questionable. So is the fact that the accused’s bedroom closet was where the cocaine was found. Coupled with the accused’s presence at the time of the search and his reaction to the police. I am alive to the possible inference that the accused had knowledge of the cocaine. I am left to ponder whether Bixhi’s actions can be explained by his knowledge of the cannabis in 503, or if they can only be rationalized by a knowledge of the presence of cocaine.
135Whether or not the circumstances of a given case support the inference that an accused is in possession of premises where cocaine is stored is always dependent on the facts of each case. Sometimes the facts are clearly open to alternative innocent explanations; in those cases, an accused must be afforded the benefit of the doubt.
136In this case, while I am skeptical as to some of the evidence presented by the defence, the admission from the accused as to the marijuana possession and the admission from Ibishi regarding the cocaine, the secretion of the cocaine from plain view, its manner of storage and the entirety of the circumstantial evidence does pose a challenge for Crown.
137As mentioned, the Crown must establish, beyond a reasonable doubt, the accused’s knowledge and control over the cocaine. For all of the aforementioned discussion, I am persuaded that there are other rationale or reasonable inferences to be drawn inconsistent with guilt.
138While I readily suspect that the accused likely or probably knew the cocaine was in the bedroom closet, that is not the standard in a criminal trial. The law requires both knowledge and control before possession can be found. Knowledge and presence are not enough. It is not an offence of "possession" for someone to be present in the location of the item, absent evidence of control or the intention to exercise control.
139Based on the totality of the evidence, and my application of W.D. and the law related to the assessment of circumstantial evidence and inferences to be drawn, I must agree with the defence. The Crown has not met its onus.
Conclusion
140The Crown has established all of the essential elements of the following offences beyond a reasonable doubt.
141In consideration of the accused’s evidence, the s. 655 admissions, the text messages, and the quantity of the marihuana seized, I find the accused guilty of counts 2 and 3, related to the distribution and selling of seized cannabis, contrary to s. 9(2) and 10(2) of the Cannabis Act.
142With regards to counts 5 and 6, I am satisfied beyond a reasonable doubt and find the accused did willfully resist McLeod and other persons in the execution of his duty as defined by s. 129(a) of the Criminal Code, and that he did take a weapon that was in possession of a peace officer in lawful execution of his duty, contrary to s. 270(1).1 of the Criminal Code. Convictions shall be registered on these counts.
143Finally, with respect to count 1, possession of a substance, to wit: cocaine, for the purpose of trafficking, I have a reasonable doubt as to the essential elements of knowledge and control. Therefore, I find the accused not guilty of this offence. An acquittal shall be registered on the indictment.
A. J. Goodman
Date: January 23, 2025