R. v. Kofman

Court File No.: CR-23-00000149-0000
Date: November 10, 2025
Ontario Superior Court of Justice

Between:

His Majesty the King

– and –

Leon Kofman, Defendant

Counsel

For the Crown: J. Geiger

For the Defendant: K. Schofield and C. Szpulak

Heard

March 17-21, 2025

Justice I.F. Leach (Orally)

Introduction

[1] In the wake of the near-simultaneous execution of Cannabis Act search warrants issued in relation to two residential properties, (a house with a specified address located on a rural property located in the community of Waterford, in the Township of Townsend, in the County of Norfolk, Ontario, and a condominium unit located at a specified address on Richmond Street here in the city of London, in the County of Middlesex, Ontario), the defendant Leon Kofman was charged with numerous offences set forth in an original nine-count indictment dated April 17, 2023.

[2] However, in the course of this ensuing proceeding, and after Mr Kofman's re-election of mode of trial from trial by judge and jury to trial by judge alone, the number and precise description of the charges being faced by Mr Kofman effectively were altered at the request of the Crown, in a manner not opposed by the defence. In particular:

a. the charge advanced in Count 7 of the original indictment, whereby it was alleged that Mr Kofman possessed a firearm while prohibited from doing so by reason of a weapons prohibition order made pursuant to section 110 of the Criminal Code of Canada, or "the Code", contrary to s.117.01(1) of the Code, was formally withdrawn.

b. a formal acquittal was made in relation to the charge advanced in Count 6 of the original indictment, whereby it was alleged that Mr Kofman possessed a firearm, to wit, a Dominion Arms shotgun without holding a licence to do so, contrary to s.91(1) of the Code; and

c. the wording of the charges advanced in Counts 8 and 9 of the original indictment was amended slightly to accord with the wording of the specified offence of the Code charged in the count and/or to accord with the evidence at trial.

[3] In the result, and maintaining the original numbering of the remaining counts as amended faced by Mr Kofman, for the purpose of clarity, the charged offences addressed during the ensuing trial before me, were/are as follows:

• Count 1: unlawful possession of cannabis for the purpose of distribution, contrary to s.9(2) of the Cannabis Act;

• Count 2: unlawful possession of cannabis for the purpose of distribution, contrary to s.9(2) of the Cannabis Act;

• Count 3: unlawful possession of cannabis for the purpose of selling it, contrary to s.10(2) of the Cannabis Act;

• Count 4: possession of a firearm, to wit, a .22 calibre rifle, without holding a licence to do so, contrary to s.91(1) of the Code;

• Count 5: possession of a firearm, to wit, a 9mm handgun, without holding a licence to do so, contrary to s.91(1) of the Code;

• Count 8: possession of a loaded prohibited firearm, to wit, a Springfield Armory 9mm handgun, without holding an authorization, licence and registration certificate to do so, contrary to s.95(1) of the Code; and

• Count 9: possession of a prohibited device, to wit, a 19 round capacity magazine, without holding a licence to do so, contrary to s.92(2) of the Code.

[4] Each of the above alleged offences was said to have been committed on or about November 3, 2021; i.e., the date upon which the search warrants I mentioned earlier were executed, with alleged resulting police discovery and seizure of the cannabis, firearms and prohibited device referred to in the aforesaid counts of the indictment.

[5] The offences charged in Counts 1, 4, 5, 8 and 9 of the amended indictment refer to cannabis, firearms and a prohibited device allegedly discovered at the aforesaid Townsend property in the county of Norfolk, during execution of the search warrant applicable to that property.

[6] The offences charged in Counts 2 and 3 of the amended indictment refer to cannabis allegedly discovered at the aforesaid Richmond Street property here in the City of London, in the County of Middlesex, during execution of the search warrant applicable to that property.

[7] In the course of his arraignment at the outset of trial, Mr Kofman entered a formal plea of "not guilty" in relation to each and every one of the aforesaid remaining charges to be addressed by the trial before me.

Essential Elements of the Remaining Charges

[8] While I will be returning in the course of these reasons to further consideration of whether the essential elements of each particular offence charged in the remaining counts of the indictment have been established beyond a reasonable doubt, I think it helpful to outline, at the outset, the nature of those essential elements.

[9] For me to find Mr Kofman guilty of the offence of unlawful possession of cannabis for the purpose of distributing it, contrary to s.9(2) of the Cannabis Act, each of the following essential elements of the offence must be established beyond a reasonable doubt:

a. that Mr Kofman possessed a substance;

b. that the possessed substance was cannabis;

c. that Mr Kofman possessed cannabis for the purpose of distributing it; and

d. that Mr Kofman's possession of cannabis for the purpose of distributing it was unlawful – although I also note that the Cannabis Act effectively shifts the burden of proof to an accused in that regard, (i.e., with such possession of cannabis for distribution essentially being presumed to be unauthorized and therefore unlawful unless the accused establishes the existence of an applicable authorization making the activity lawful), insofar as s.50(2) of the Cannabis Act provides that, in any prosecution for an offence under the Act, the prosecutor is not required, except by way of rebuttal, to prove that a certificate, licence, permit, authorization, exemption or qualification does not operate in favour of the accused, whether or not it is referred to in the indictment.

[10] For me to find Mr Kofman guilty of the offence of unlawful possession of cannabis for the purpose of selling it, contrary to s.10(2) of the Cannabis Act, each of the following essential elements of the offence must be established beyond a reasonable doubt:

a. that Mr Kofman possessed a substance;

b. that the possessed substance was cannabis;

c. that Mr Kofman possessed cannabis for the purpose of selling it; and

d. that Mr Kofman's possession of cannabis for the purpose of distributing it was unlawful – although I note that the Cannabis Act once again effectively shifts the burden of proof to an accused in that regard, (i.e., with such possession of cannabis for sale essentially being presumed to be unauthorized and therefore unlawful unless the accused establishes the existence of an applicable authorization making the activity lawful), insofar as s.50(2) of the Cannabis Act once again provides that, in any prosecution for an offence under the Act, the prosecutor is not required, except by way of rebuttal, to prove that a certificate, licence, permit, authorization, exemption or qualification does not operate in favour of the accused, whether or not it is referred to in the indictment.

[11] For me to find Mr Kofman guilty of the offence of possessing a firearm without being the holder of a licence under which he may possess it, contrary to s.91(1) of the Code, each of the following essential elements of the offence must be established beyond a reasonable doubt:

a. that Mr Kofman possessed a firearm, defined by s.2 of the Code as meaning a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person; and

b. that Mr Kofman did not hold a licence under which he could possess the firearm – although I also note that, pursuant to s.117.11 of the Code, where any question arises as to whether a person is the holder of an authorization, licence or registration certificate in any proceedings for an offence under s.91 of the Code, the onus is on the accused to prove that the person is the holder of the authorization, licence or registration certificate.

[12] For me to find Mr Kofman guilty of the offence of possessing a loaded prohibited firearm, while he was not the holder of an authorization of licence under which he may possess it and a registration certificate for the firearm, contrary to s.95(1) of the Code, the Crown must establish each of the following essential elements of the offence beyond a reasonable doubt:

a. that Mr Kofman possessed a firearm, as defined by s.2 of the Code in the manner I noted earlier;

b. that the firearm was a prohibited firearm, defined by s.84.1 of the Code so as to include a handgun that has a barrel equal to or less than 105mm in length, or is designed or adapted to discharge a .25 or .32 calibre cartridge;

c. that the firearm was loaded; and

d. that Mr Kofman did not hold an authorization or a licence under which he could possess the firearm or a registration certificate for the firearm.

[13] For me to find Mr Kofman guilty of the offence of possessing a prohibited device, knowing that he was not the holder of a licence under which he may possess it, contrary to s.92(2) of the Code, the Crown must establish each of the following essential elements of the offence beyond a reasonable doubt:

a. that Mr Kofman possessed an object;

b. that the object possessed by Mr Kofman was a prohibited device, defined by s.84(1) of the Code so as to include a cartridge magazine that is prescribed to be a prohibited device; and

c. that Mr Kofman did not hold a licence under which he could possess the prohibited device.

[14] As noted and discussed in more detail below, many of the essential offence elements I have outlined effectively were admitted or uncontested, with the primary area of dispute, in relation to each of the offences charged in the remaining counts of the indictment, being focused on whether the Crown had proved beyond a reasonable doubt, in relation to each of those offences, the essential element of possession common to each of those charged offences.

General Principles

[15] Before turning in more detail to the specifics of this case, I also think it helpful to outline a number of general principles I bear in mind throughout my approach to this matter.

[16] In that regard, there are fundamental principles that govern every criminal case, which include the following:

i. Presumption of Innocence and Burden of Proof

First, I have in mind, throughout my entire reasons and analysis, the presumption of innocence and the burden of proof that generally lies upon the Crown, except in relation to matters where that onus has been specifically reversed to a specified and limited extent by s.50(2) of the Cannabis Act and s.117.11 of the Code as noted above. In particular, according to the constitutional guarantee in s.11(d) of the Charter, Leon Kofman is presumed to be innocent, in relation to each of the charges in respect of which he has entered a plea of "not guilty", and that presumption of innocence remains with him throughout this matter, from beginning to end, unless and until the Crown establishes his guilt with respect to an alleged offence beyond a reasonable doubt. That is a heavy burden and, in relation to the essential elements of each charge against Mr Kofman that are not admitted, and in respect of which the onus is not specifically and to a limited extent reversed by s.50(2) of the Cannabis Act and s.117.11 of the Code, never shifts. In particular, Mr Kofman has no obligation whatsoever to establish his innocence.

ii. The Reasonable Doubt Standard

Second, in relation to the "reasonable doubt" standard, and as per the guidance offered by the Supreme Court of Canada in authorities such as R. v. Lifchus, [1997] 3 S.C.R. 320:

1. I am ever mindful that a reasonable doubt is not an imaginary, far-fetched or frivolous doubt, nor a doubt based on sympathy for, or prejudice against, any person involved in this trial. A "reasonable doubt" is, instead, a doubt that arises logically from the evidence, or the absence of evidence.

2. Moreover, it is not enough for me to believe that Leon Kofman is "probably" guilty or "likely" guilty of an offence. Proof of "probable" guilt or "likely" guilt falls short of proving guilt "beyond a reasonable doubt" and is not proof of guilt beyond a reasonable doubt.

3. On the other hand, I also bear in mind that it is nearly impossible to prove anything to an absolute certainty, that "absolute certainty" accordingly is a standard of proof that is impossibly high, and that Crown counsel is not required to meet that standard of proof.

4. In essence, in order for me to find that Crown counsel has proven beyond a reasonable doubt that Leon Kofman is guilty of a charged offence, I must be sure that Mr Kofman committed the offence. If, following careful consideration of all the evidence, (including witness testimony, exhibits and any agreed facts or admissions), there remains in my mind a reasonable doubt as to whether Mr Kofman committed a charged offence, I must find him not guilty of that offence.

iii. Quality of Evidence

Third, how much or little I rely on the evidence of witnesses does not necessarily depend on the number of witnesses who testify, one way or the other. My duty is to consider all the evidence. As the trier, I may decide that the testimony of fewer witnesses – or perhaps just one witness – is more reliable than the evidence of a larger number of witnesses. In other words, my task is to consider carefully the testimony of each witness, and to decide how much or little I believe and accept of what each witness has said. I am not to decide the case simply by counting witnesses. It is the quality of evidence, rather than the quantity of evidence, that determines persuasive force and/or whether or not proof has been established beyond a reasonable doubt.

[17] The general principles and considerations I have mentioned so far are applicable to all criminal cases, regardless of the nature of the particular offence or offences charged against an accused.

[18] However, insofar as each and every one of the offences alleged against Mr Kofman in the remaining counts of the indictment turns in large measure on the essential element of possession, common to each offence alleged in the remaining counts of the indictment, I think it also helpful to outline, at the outset, numerous principles in that regard which I have kept in mind throughout my approach to this matter, although I will have more to say about their particular application to the particular facts of this case during the course of my analysis. In that regard:

a. Section 4(3) of the Criminal Code defines possession for purposes of the Code, and s.2(1) of the Cannabis Act indicates that possession for the purposes of that legislation has the same meaning as in s.4(3) of the Criminal Code.

b. Subsection 4(3) of the Code reads as follows:

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 person, 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.

c. The aforesaid provision of s.4(3) have been interpreted as creating, in essence, three types of possession:

i. "personal possession", as outlined in s.4(3)(a) of the Code;

ii. "constructive possession", as set out in s.4(3)(a)(i) and s.4(3)(a)(ii) of the Code; and

iii. "joint possession", as defined in s.4(3)(b) of the Code.

d. Knowledge and control are essential elements of "personal possession". In particular, when personal possession is alleged, the knowledge element consists of two components: an accused must be aware that he or she has physical custody of the thing in question, and an accused must be aware of what that thing is. Those elements of knowledge must co-exist with an act of control.

e. Knowledge and control are also essential elements of "constructive possession". In particular, constructive possession requires that an accused has knowledge of the character of a thing, that the accused has knowingly put or kept the thing in a particular place, (irrespective of whether the place belongs to or is occupied by the accused), and that the accused intends to have the thing in the place in question for the use or benefit of the accused or another person. However, in order to constitute constructive possession, (sometimes referred to as "attributed possession"), there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed; i.e., the ability to grant or withhold consent to the storage of an item in a particular location. Mere indifference or passive acquiescence to another person's possession of something, (e.g., without evidence of any act done or omitted by accused to assist with that possession, or evidence of the accused giving any encouragement in that regard), will not suffice. Without limiting the generality of the foregoing, mere presence of an accused, even with knowledge of the presence of an object as well, is not enough to establish possession.

f. In order to constitute "joint possession", there must be knowledge, consent, and a measure of control on the part of the person deemed to be in possession.

g. The "knowledge" required to establish possession need not be established by direct evidence. As with any other issue of fact in a criminal proceeding, such knowledge may be established by circumstantial evidence, (i.e., evidence of the surrounding circumstances), sufficient to found an inference of the requisite knowledge.

h. Whether someone is in possession of something pursuant to s.4(3) of the Code is a question of fact to be determined on the evidence, based on the inferences to be drawn in each case. The difficulty in determining the sufficiency of evidence required to support an inference of possession is aptly demonstrated by contrasting decisions arriving at different conclusions despite underlying factual similarities.

i. However, matters considered in relation to determination of "knowledge" and/or "control" issues relating to possession have included the following:

i. The existence or absence of any direct evidence of an accused's knowledge of an item, such as an admission or a witness capable of stating affirmatively that the accused knew about an item.

ii. Whether or not the accused or someone else owned, rented or otherwise retained control over premises where an object was found, and if so, whether or not the accused did so alone or jointly with others. Having said that, it also should be remembered that rights of ownership or tenancy are neither necessary nor sufficient, on their own, to establish possession over an object at a particular time or place. Rather, the status of an accused as an owner, tenant, boarder, guest or visitor is relevant to a determination of how much knowledge and/or control, if any, an accused had in relation to areas of a residence in which relevant items were located.

iii. Whether or not a place is indicated to be the residence of an accused on government registries or other documents, (including consideration of how dated those indications may be), and whether similar sources of information indicate that the place is the residence of other individuals, whether or not the existence of such other individuals has been confirmed.

iv. Whether or not the accused exercised or demonstrably had any physical control over access to a particular place or space; e.g., through locking mechanisms and/or possession of keys or keycodes to permit entry.

v. Whether or not the accused was in apparent occupation of premises or a space where an object was located, (e.g., having regard to the accused's physical presence, and the nature and extent of items found in the location), and if so, whether or not the accused occupied such premises alone or jointly with others, and whether or not the accused was a permanent, regular or temporary occupant of those premises. In some instances, occupancy of premises, and more particularly the authority to control access to them, may support an inference of control over items found therein when coupled with evidence of knowledge. It nevertheless also must be remembered that a presumption of possession does not arise merely by virtue of occupancy, and that joint occupation of a residence or space does not, on its own, entail knowledge of, consent to and/or a measure of control over an item belonging to or in the possession of another occupant.

vi. Whether or not the accused was in apparent control of a particular room or space where an object was found, and/or where other items were located suggesting the accused's awareness of another object found in the room or space or elsewhere.

vii. The extent, (if any), to which the accused was observed in the premises or area where an object was found, (e.g., via police surveillance), and if so, how recent those observations were in relation to the time at which the object was discovered.

viii. The extent to which persons other than the accused frequented, had access to, and/or were located in premises or areas where an object was found.

ix. The physical proximity of the accused to a discovered object, and the extent to which the object was accessible to the accused, although it is not sufficient for the court to draw an inference of knowledge and/or control of an object simply because an accused was in close proximity to that object, especially in situations where the item was concealed or otherwise not readily visible.

x. The extent to which other evidence indicates the accused's awareness of and active participation in illicit activities carried on at the premises that would involve such an object or item.

xi. Whether or not an object was in plain view in a common area of a residence in circumstances where it could not reasonably be overlooked, (e.g., because of its placement, size and/or the absence of any container enclosing it), or was hidden in whole or in part or otherwise obscured vis impaired sightlines or containers such that it was not readily visible. The size of a residence in which an object was located also has a bearing on the extent to which an object located therein was likely to be noticed.

xii. Whether or not the item was left in a location where others were likely to have necessarily encountered or discovered the item.

xiii. Whether or not an item had significant value such that, as a matter of common sense and human experience, it is unlikely that someone would leave it unattended or in the control of someone unaware of its presence or value.

xiv. Whether or not there is evidence indicating when the object in question was placed in the location where it was discovered, and how long it had remained there; e.g., in terms of possible short-term or long-term presence.

xv. Whether or not the accused engaged in unambiguous post offence conduct, (e.g., by fleeing or otherwise making active efforts to put distance between the accused and the location of an object), suggesting awareness that something unlawful was present in a location.

xvi. Whether or not there is any forensic evidence, (such as fingerprints and/or DNA), linking an accused with a particular object.

xvii. As far as firearms in particular are concerned:

1. Firearms are valuable and dangerous items, the unauthorized possession of which carries penal consequences. They accordingly are not items which criminals are likely to deal with casually or carelessly; i.e., by letting such items out of their control, in a manner risking their discovery or loss.

2. However, the fact that a firearm is accessible, loaded and ready to be fired is not relevant to a finding of knowledge if the weapon was not readily visible.

[19] Finally, by way of initial reference to general principles I think it helpful to outline at the outset, (to emphasize that I have borne them in mind throughout my approach to this matter), I also note the following principles relevant to circumstantial evidence, particularly insofar as the Crown may place reliance on circumstantial evidence in its efforts to establish possession in accordance with the general principles I mentioned earlier:

a. To convict an accused based wholly or substantially on circumstantial evidence and corresponding inferences of fact, a trier must be satisfied beyond a reasonable doubt that guilt of the accused is the only rational inference to be drawn from the evidence as a whole. In that regard:

i. When assessing circumstantial evidence in that regard, it must be remembered that inferences consistent with innocence do not have to arise from proven facts. Indeed, requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts, and is contrary to the rule that assessment of whether or not there is a reasonable doubt, approached logically and in light of human experience, requires not only consideration of all the evidence, but also the absence of evidence, as certain gaps in the evidence also may result in inferences other than guilt. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.

ii. When assessing circumstantial evidence, a trier of fact therefore should consider other plausible theories, and other reasonable possibilities, which are inconsistent with guilt. In that regard, the Crown may need to negative such reasonable possibilities, although it certainly need not negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with innocence of the accused. In particular, such other plausible theories, and such other reasonable possibilities, must be based on logic and experience applied to the evidence or absence of evidence, rather than mere speculation or fevered imaginings. 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.

iii. In short, to justify a conviction based on circumstantial evidence, assessed in light of human experience, that circumstantial evidence should be such that it excludes any other reasonable alternative. However, circumstantial evidence does not have to totally exclude all other conceivable inferences, and a trier should not act on alternative interpretations of the circumstances that it considers to be unreasonable. In other words, alternative inferences must be reasonable, and not just possible.

iv. It is clear from cases respecting the test for committal at a preliminary inquiry, in cases where the Crown relies on circumstantial evidence, that in order to be reasonable, an inference need not be "easily drawn", "likely" or "probable".

b. To determine if circumstantial evidence meets the required standard of proof beyond a reasonable doubt, a trier of fact must keep in mind that it is the evidence assessed as a whole that must meet that standard of proof; i.e., not each individual piece of evidence that is but a link in the chain of proof. In particular, while it is often necessary to consider the significance of individual pieces of evidence before their cumulative effect can be considered, a trier is obliged to consider the cumulative effect of circumstantial evidence; i.e., rather than approaching individual pieces of such evidence in a piecemeal fashion, and "casting them aside" or otherwise removing them from further consideration because they individually may fail, (when viewed separately and in isolation), to establish proof beyond a reasonable doubt.

[20] Again, I will have more to say, in the course of these reasons, about the various principles I have mentioned, and their application to the particular facts of this case.

[21] However, with all of the above principles and those I may mention hereafter in mind, I turn next to a consideration of the specific evidence tendered in this case.

Overview of Presented Evidence – General Comments

[22] In that regard, while it might go without saying, I also think it helpful, before embarking on any review of the trial evidence in this matter, to note and emphasize expressly that I have been mindful at all times that the evidence to be considered, in making my necessary trial determinations as to whether the Crown has established requisite essential elements of each charged offence in the remaining counts of the indictment beyond a reasonable doubt, is limited exclusively to the evidence, (including witness testimony, exhibits and formally admitted and agreed facts), that was presented before me during the course of the trial proper that proceeded before me on March 17-21, 2025.

[23] Without limiting the generality of the foregoing, I note, (and the record obviously will confirm), that when this matter previously was the subject of an election by Mr Kofman to have the charges against him herein tried by a judge and jury, I was called upon, before the formal trial of this matter, to decide various pre-trial application issues in respect of which evidence was formally presented, in that specific context, for my consideration. In that regard:

a. While it may seem a somewhat artificial and unrealistic distinction and exercise to lay persons not fully informed or appreciative of our law in relation to such matters, any evidence presented in that pre-trial application context for my consideration, in determining those various pre-trial issues, is not and must not be carried over and applied to determination of issues in this trial context, (regardless of the fact that the same decision maker may be involved at the pre-trial application and trial stages of the proceeding), unless appropriate steps were taken in the context of the trial proper to separately, distinctly and actively make such evidence part of the trial evidence as well. No such steps were taken in this case. To the contrary, when that topic was raised as a preliminary matter at the outset of the trial:

i. Crown counsel noted the reality that I had prior "familiarity" with the matter, via the pre-trial application proceedings, but also expressly said "we of course put that aside from the evidence we're going to hear" during the trial; and

ii. defence counsel expressly indicated that we were "starting afresh" with a "clean slate", and my knowing "nothing about anything" for purposes of the trial, with no disagreement from Crown counsel.

b. In such circumstances, a judge hearing evidence in the context of a pre-trial application accordingly is required by law to notionally put all such pre-trial application evidence entirely out of mind if and when the same judge is called upon to preside over a criminal trial that may relate to the same underlying factual matters, and focus exclusively on whether the evidence presented at trial, (including witness testimony, exhibits and any admitted and agreed facts), is sufficient to prove all essential elements of a charged offence beyond a reasonable doubt.

c. Without limiting the generality of the foregoing, even if the Crown clearly was in possession of evidence presented for consideration in the pre-trial application context, (including but not limited to surveillance evidence, and/or other evidence relating to property ownership, occupation, use and/or visitation), such evidence is not to be considered in the trial context, and indeed must be ignored completely in that trial context, unless the Crown has taken proper and appropriate steps to reintroduce such evidence separately, distinctly and actively during the course of the trial, so as to make it part of the trial evidence to be considered.

d. For the purposes of this trial, any pre-trial application evidence presented for my consideration that was not separately, distinctly and actively made part of the trial evidence for my consideration therefore must be approached, and has been approached, for purposes of deciding whether the Crown has proved any or all of the offences charged in the remaining counts of the indictment beyond a reasonable doubt, as if such pre-trial application evidence simply did not exist.

[24] With that vital reminder and caveat in mind, I was presented with very detailed evidence at the trial proper for this matter that extended over the course of four days, prior to the receipt of closing submissions on a fifth and final day of trial.

[25] Without limiting the generality of the foregoing:

a. I was presented, effectively by way of two instalments, with an extended list of agreed facts, (expressly acknowledged to be formal admissions made by the accused pursuant to section 655 of the Code), which were reduced to writing and formally made numbered exhibits on consent; i.e., exhibits numbered 1 and 17 in the trial. I accordingly have accepted all of those agreed facts as established for purposes of the trial, without the need for any witness testimony or further exhibits in that regard.

b. I also was presented with testimony from the following 11 witnesses called by the Crown:

i. Rodney Grubb, a Detective Constable (or "D.C.") with the Ontario Provincial Police (or "the OPP") who participated, on November 3, 2021, in execution of the Cannabis Act search warrant issued in relation to the specified Townsend property in the County of Norfolk. Without limiting the generality of the foregoing, D.C. Grubb described how he assisted with entry in that regard, including initial "clearing" of the residence, and thereafter acted as a "Scenes of Crime Officer" (or "SOCO") to assist with documentation, (including video recordings and photographs), of where and how various items were located within and/or seized from the relevant Townsend property.

ii. Craig McMurtrie, another Detective Constable with the OPP who participated, on November 3, 2021, in execution of the same Cannabis Act search warrant issued in relation to the relevant Townsend property in the County of Norfolk. Without limiting the generality of the foregoing, D.C. McMurtrie described how he assisted with entry in that regard, and thereafter acted as an "Exhibits Officer" to assist with documentation of various items located within and seized from the relevant Townsend property, (including the preparation of interior room labelling, floor plan diagrams and a computerized exhibit registry via an "Excel" spreadsheet, log or "Exhibits Registry" involving the numbering and labelling of items), with those various items being brought to D.C. McMurtrie by other officers during execution of the search warrant to be documented in that manner.

iii. Ricky Adach, another Detective Constable with the OPP who participated, on November 3, 2021, in execution of the same Cannabis Act search warrant issued in relation to the relevant Townsend property in the County of Norfolk. Without limiting the generality of the foregoing, D.C. Adach described how he assisted with entry in that regard, including initial "clearing" of the residence, and participation in searching of the residence and seizure of items therefrom, as well as some searching of Aleksa Jaric, one of the three individuals who was located within the residence and arrested.

iv. Spenser Knoll, a Detective Sergeant (or "D.S.") with the OPP, who participated, on November 3, 2021, both personally and as "team leader" of the officers who participated in execution of the same Cannabis Act search warrant issued in relation to the relevant Townsend property in the County of Norfolk. Without limiting the generality of the foregoing, D.S. Knoll was on site, and participated in entry and initial "clearing" of the residence, as well as searching of the residence and the seizure of various items therefrom.

v. Kathleen Latimer, another Detective Constable with the OPP, who participated, on November 3, 2021, in execution of the same Cannabis Act search warrant issued in relation to the relevant Townsend property in the County of Norfolk. Without limiting the generality of the foregoing, while D.C. Latimer did not participate directly during initial entry of the residence, she was positioned during that entry at a point where she would be able to observe the rear exterior of the residence and any individuals who might have approached the residence from the rear of the property and its outbuildings. D.C. Latimer also entered the residence after the residence had been initially "cleared", assisting with the formal arrest of Luis Fonseca and Aleksa Jaric, (two of the three males who had been located therein), and D.C. Latimer thereafter, (following a formal assignment or transfer of those arrested individuals to other officers for transportation elsewhere), assisted with searching of the residence and the seizure of various items therefrom.

vi. Gregory Bell, another Detective Constable with the OPP, who was permitted to testify by way of videoconference pursuant to s. 714.1 of the Code. D.C. Bell also participated, on November 3, 2021, in execution of the same Cannabis Act search warrant issued in relation to the relevant Townsend property in the County of Norfolk. Without limiting the generality of the foregoing, D.C. Bell assisted with entry into the residence, (without active participation in the "clearing" of the residence that followed, but nevertheless participating in what he described as a personal "walkthrough" of the residence he performed immediately thereafter), before exiting the residence for a time, during which he observed what he described as large "cannabis marihuana grow fields" on the rural property, with the potential for thousands of plants in that regard. He then re-entered the residence to assist with searching and seizure of various items therefrom.

vii. Jarret Craig, another Detective Constable with the OPP, who also participated, on November 3, 2021, in execution of the same Cannabis Act search warrant issued in relation to the relevant Townsend property in the County of Norfolk. Without limiting the generality of the foregoing, D.C. Craig described how he participated in initial entry and clearing of the residence, including his initial securing, arrest and detention of Mr Kofman, (until custody of Mr Kofman was formally turned over to officers of the transport unit to be taken elsewhere), following which D.C. Craig also participated in searching of the residence and seizure of various items located therein.

viii. Cornelius Nieuwland, a Detective Constable with the London Police Service, but seconded to the OPP, who participated, on November 3, 2021, in execution of the Cannabis Act search warrant issued in relation to the relevant Richmond Street residence here in the city of London. Without limiting the generality of the foregoing, D.C. Nieuwland participated in the initial entry and securing of the relevant condominium residence, (in terms of searching for persons therein), and thereafter assisted by documenting the scene, (after preparation of interior room labelling), via video recordings taken before and after the residence was searched by police, and via photographs of evidence located therein and/or seized during that search.

ix. Wilhelm Knelson, an officer with the London Police Service who had the rank of Detective Constable back on November 3, 2021, (but who had attained the rank of Sergeant by the time of trial), and who also participated in execution of the Cannabis Act search warrant issued in relation to the relevant Richmond Street residence here in the city of London. Without limiting the generality of the foregoing, although D.C. Knelson assisted with police entry into the residence on the morning in question, his primary role at the time of the search warrant's execution was to serve as Exhibit Officer in relation to that location; i.e., to assist with documentation of various items located within and seized from the relevant condominium residence, including the preparation of interior room labelling and floorplan diagrams, and the logging, sealing and possession of various items brought to him by other officers during execution of the search warrant, until those items could be turned over to the OPP.

x. Sid Friederichsen, another Detective Constable with the OPP, who conducted surveillance on Mr Kofman, in relation to observed and photographed movements that were said to include Mr Kofman, on March 17, 2021, driving his vehicle to the relevant Richmond Street condominium residence here in the city of London, exiting his vehicle, and walking into that residence through its front door.

xi. Melinda Matte, a scientist employed by the Ontario Centre of Forensic Sciences, who was permitted to testify by way of videoconference pursuant to s. 714.1 of the Code. Ms Matte also was qualified as a witness permitted to provide expert opinion evidence relating to DNA forensic analysis, including the interpretation of DNA located in bodily fluids and non-fluid sources, the identification of DNA in bodily fluids and non-fluid sources, the identification and interpretation of DNA or DNA typing results derived from samples lifted from objects or persons, including the deposition, transfer and persistence of DNA from bodily fluids or non-fluid sources, the comparison of DNA profile results, including probabilities that DNA profiles match or do not match one another, and/or the exclusion or non-exclusion of profiles matching. In that regard, Ms Matte provided testimony that included the results of testing performed in relation to sample swabs taken by police in relation to items located by police at the relevant Townsend property residence, (to determine whether the presence of DNA could be detected in those samples and used to generate DNA profiles for the purposes of comparison), and her opinion as to whether individuals located in that Townsend residence at the time of the relevant Cannabis Act search warrant execution, (including Mr Kofman), could be excluded as the source of such DNA profiles.

c. Each of the witnesses called at trial by the Crown was examined in chief and cross-examined, except for Sergeant Knelson and D.C. Friederichsen, in respect of whom defence counsel had no questions. All of the cross-examined witnesses, (except for D.C. Adach, D.C. Latimer and Ms Matte), also were re-examined to some extent. By way of general comment on my assessment of the credibility and reliability of the witnesses called by the Crown:

i. In my view, all of those Crown witnesses were credible. Without limiting the generality of the foregoing:

1. Each witness fairly agreed with various points raised during cross-examination, without any apparent inclination to be defensive, partisan or unreasonable.

2. At no time did I form the impression that any of those witnesses was doing anything other than trying his or her best to be truthful, and recall events accurately to the best of their ability. There was no defence suggestion to the contrary.

3. To the extent there were professed gaps in some of the witnesses, there was nothing to indicate or suggest to me that such professed gaps reflected any attempt to avoid answering difficult questions, or anything other than a natural lapse in memory owing to the passage of time and the intervening involvement of the witnesses in other matters.

ii. For the most part, I also regarded the witnesses called by Crown to be reliable, albeit with certain notable reservations and caveats. In that regard:

1. In my view, each of the witnesses generally had the ability to make accurate observations at the time of the relevant underlying events, although some of those observations necessarily were more fleeting than others; e.g., owing to witnesses being primarily focused at the time on other priorities, including the need to clear premises and ensure officer safety.

2. The accuracy of most of the memories recalled by the Crown's witnesses was bolstered by the witnesses refreshing those memories through reference to notes that were made contemporaneously with, or shortly after, the underlying events they were describing.

3. Notwithstanding such considerations indicating general reliability of the Crown's witnesses, there were certain areas, usually corresponding to particular details and aspects of the underlying events in respect of which no such notes had been made, where the witnesses had acknowledged difficulty recalling particular details with certainty, and/or recalled them in a manner sometimes at odds with the details recalled by another witness in relation to the same matter, thereby indicating a measure of unreliability in relation to one or both such witnesses. To the extent there were such lapses in memory or conflicts in testimony I considered significant, I have noted them in my comments below.

d. Through the aforesaid witnesses called by the Crown and/or otherwise on consent, I also was presented with the following additional 15 numbered trial exhibits, (i.e., in addition to the two already-mentioned exhibits outlining agreed upon facts and formal admissions), for consideration:

i. what was described as a pre-search video of the interior of the residence at the relevant Townsend property, taken before the police engaged in searching that residence for evidence;

ii. a book of photographs taken of numerous items said to have been located by police inside the relevant Townsend property residence, during the course of their search;

iii. what was described as a "post-search" video of the interior of the residence of the relevant Townsend property, taken after the police had completed their search and seizure activity during execution of the search warrant relating to that property;

iv. a floorplan diagram of the relevant residence at the Townsend property;

v. the "Exhibit Registry" documenting items seized from the residence at the Townsend property;

vi. a photograph of the 9mm handgun listed in the aforesaid Exhibit Registry as Exhibit 38-24;

vii. what was described as the principal "entry" video made of the interior of the relevant Richmond Street condominium residence here in the city of London, taken before the police engaged in searching that property for evidence;

viii. what was described as a further short "entry" video in relation to the interior of the relevant Richmond Street condominium residence, also taken before the police engaged in searching that property for evidence, to document the state of an additional room of the residence that had been omitted from the primary "entry" video made in that regard;

ix. a book of photographs of numerous items said to have been located by police inside the relevant Richmond Street condominium residence, during the course of their search;

x. what was described as an "exit" video of the interior of the relevant Richmond Street condominium residence, taken after the police had completed their search and seizure activity during execution of the search warrant relating to that property;

xi. a floorplan diagram of the relevant Richmond Street condominium residence;

xii. four photos said to have been taken during surveillance of Mr Kofman carried out on March 17, 2021;

xiii. a copy of the curriculum vitae of Ms Matte;

xiv. a copy of the first biology report prepared by Ms Matte; and

xv. a copy of the second biology report prepared by Ms Matte.

[26] Following the Crown's presentation of evidence, Mr Kofman was put to his formal election as to whether or not he wished to present evidence as well, and indicated that he did not wish to do so.

[27] While I have considered and have regard to all of the evidence presented at trial, (i.e., the oral testimony I received, as well as the exhibits that were tendered and the facts that were agreed and formally admitted), I will not purport to reiterate or describe all of it in complete detail here.

[28] I will instead, after provision of general context by outlining various facts that were either agreed and formally admitted, or in my view generally not contested or controversial, (and which I have found to be established for purposes of my decision), turn to more specific consideration of the particular evidence and/or lack of evidence relating to the essential elements of the charged offences, considered in succession, in order to determine appropriate verdicts.

General Context

[29] As noted at the outset, this proceeding stems from the near simultaneous execution of Cannabis Act search warrants in relation to two locations that geographically were distant from each other; i.e., locations I have described, in a general way, as the Townsend property in the County of Norfolk, and the Richmond Street address here in the city of London. During the course of the trial, those locations were identified more specifically as 94 Concession 10, Townsend, Ontario, (more accurately described as being within the community of Waterford, within the Township of Townsend), and 71-1500 Richmond Street, London, Ontario.

[30] The relevant search warrants in relation to the two properties were executed on November 3, 2021.

[31] I will begin with a description of matters and events relating to the Townsend property that day, before turning to a description of matters and events relating to the Richmond Street property.

The Townsend Property

[32] In relation to the Townsend property and the residence located there:

Property Description

a. The property in question is a rural farming property, with a residence, a number of outbuildings, and surrounding fields that, (according to the trial testimony of D.C. Bell), were "quite large" and capable of being used for the cultivation of thousands of marihuana plants.

Residence Configuration

b. The nature and configuration of the residence on the property was depicted and/or described in videos and photographs taken by the police during the course of their warrant execution, as well as diagrams and testimony from officers presented during the course of the trial. Visual representations of the premises obviously can convey complexities and details more completely than words alone. However, by way of overview in that regard:

i. The residence at the Townsend property is a house with a general north-south alignment; i.e., with its "front" entrance situated to the north and its "rear" entrance situated to the south. It includes an original and older section to the north, to which a southern extension was added at some later point in time.

ii. The residence has three primary levels, consisting of what the police generally described as a "main" floor at approximately ground level, with an "upper" level above, and a "basement" level below. In that regard:

1. On the "main" floor, and proceeding from south to north as the police did when executing the relevant search warrant:

a. One initially enters the residence through an exterior door that opens into a large "mud room", (marked as Room "A" by the police for purposes of identification), which extends across the southern end of the residence from one side of the building to the other.

b. One then proceeds through a doorway, (albeit one lacking any door), to the north into a "kitchen" area, (marked as Room "B" by the police for purposes of identification), that also generally extends across the width of the house from east to west. At the west end of the kitchen is a doorway, (albeit one also lacking any door), leading into a windowless "storage room" area, (marked as Room "C" by the police for purposes of identification), which also has an exterior door to the residence; i.e., a door used by D.C. Grubb when entering and leaving the residence during the recording of his "post search" video. Immediately before the interior doorway leading from the kitchen to the storage room, on the right, is a doorway, (with a door), which opens to a stairwell leading down from the kitchen to the windowless basement area of the residence.

c. From the kitchen area, one can see and proceed through an opening to the north, (without a door), into a "dining room" area, (marked as Room "D" by the police for purposes of identification), that has a general north-south alignment occupying the eastern half of the residence on the main floor from the dividing wall with the kitchen to the south to the front of the residence at the north. The dining room has an exterior door to the residence situated in its northern wall; i.e., what attending police officers apparently regarded as the "front door" of the residence, as reference was made to them entering through the "rear door" of the residence in the mud room. Along the southwestern and western interior walls of the dining room are three doorways. Proceeding south to north in that regard:

i. the first is a doorway (with a door) providing access to a stairwell leading to the upstairs level of the residence;

ii. the second a doorway (with a door) leading west into the main floor "bathroom", marked as Room "F" by the police for purposes of identification; and

iii. the third is a larger doorway, (apparently equipped with "pocket doors" that open by sliding into the adjacent walls to either side of the entrance), leading west into a "living room" area, (marked as Room "E" by the police for purposes of identification), completing the rooms on that "main" floor.

2. On the "upper" floor of the residence, the stairwell leading up from the ground floor initially leads to a combined landing and hallway area, also described by police as a "media loft", which the police marked for purposes of identification as Room "J". Four doors lead off that landing or hallway area. In particular:

a. Immediately to the left, when one reaches the top of the stairs leading to the upper level of the residence, is a doorway leading west to the only bathroom on the upper level, which the police marked as Room "M" for purposes of identification.

b. More or less directly to the north, when one reaches the top of the stairs leading to the upper level of the residence, is a doorway (with a door) leading north into what was described as the "northwest bedroom", (because it occupies the northwest corner of the upper level of the residence), which the police marked as Room "L" for purposes of identification.

c. Almost immediately to the northeast, when one reaches the top of the stairs leading to the upper level of the residence, is a doorway (with a door) leading into what was described as the "northeast bedroom", (because it occupies the northeast corner of the upper level of the residence), which the police marked as Room "K" for purposes of identification.

d. Turning to the right or southeast from the top of the stairs leading to the upper level of the residence, one passes through the upper landing or "media loft" area to another doorway, (with a door), which provides the only entrance into a subdivided area collectively occupying the southern half of the upper level of the residence. In that regard:

i. The flooring of the various rooms in that southern half of the upper level of the residence is at the same elevation, (an elevation approximately two steps lower than that found in the northern half of the upper level of the residence), but that southern half of the upper level of the residence is subdivided into 3-4 connected rooms capable of being closed off from each other.

ii. Passing through the doorway leading south from the landing or "media loft" area at the top of the stairs to the upper level of the residence, one descends two stairs to enter what the police described as a "master bedroom", and labelled Room "H" for purposes of identification. It is situated to the eastern side of the upper level of the residence.

iii. A doorway (with a door) at the southeast corner of that "master bedroom" leads into an area the police described as a "sunroom", and labelled as Room "G" for purposes of identification. That "sunroom" area runs along the entire southern end of the upper level of the residence, and corresponds roughly, in its dimensions, to the "mud room" situated immediately below.

iv. A doorway (with a door) in the west wall of the "master bedroom" leads into an area the police described as the "west bedroom", and labelled Room "I" for purposes of identification.

v. A doorway (with a door) then leads north from that "west bedroom", (i.e., Room "I"), into a windowless and unfinished but large walk in area the police described as a "closet", but to which the police did not assign any letter for purposes of identification.

vi. Again, the only way of entering that combination of rooms occupying the southern half of the upper level of the residence is through the doorway leading south from the landing or "media loft" area, at top of the stairs leading to the upper level, and down two steps into the master bedroom or Room "H". In particular, both the sunroom, (or Room "G"), and the west bedroom (or Room "I"), and the closet on the north side of that west bedroom (or Room "I), can only be accessed by passing through the master bedroom or Room "H". Having said that, I also will note again that the master bedroom is also separated from the sunroom, west bedroom and the west bedroom's closet by numerous doorways equipped with closable doors.

3. The "basement" area of the residence is essentially divided, by a central interior wall running from the south end of the building to the north, into two large rooms or areas; one occupying the western half of the basement, and the other occupying the eastern half of the basement. In that regard:

a. The stairwell from the kitchen initially leads down to the large open area occupying the west half of the basement, described by police as a "furnace room", and labelled Room "N" for purposes of identification.

b. A short distance from the bottom of the stairs leading to the basement, to the right or east, is a doorway leading through the central north-south interior dividing wall of the basement into the large open area occupying the east half of the basement, described by police as a "cold storage" room, and labelled as Room "O" for identification.

Police Entry and Initial Actions

c. To execute the search warrant obtained in relation to the Townsend property, members of the OPP arrived at and entered onto the property in force, in a convoy of vehicles containing numerous officers, at approximately 7:00am or 7:01am on November 3, 2021, before the arrival of daylight in the area. D.S. Knoll testified, and I accept, that as the officers parked and approached the residence, it was in complete darkness. Some officers, (including D.C. Grubb and D.C. Craig), assumed positions outside the exterior door of at the south end of the residence leading into its mudroom, preparing to make entry. Other officers, (including D.C. Adach and D.C. Latimer), took up positions at various points around the residence to watch for individuals who might be attempting to leave the residence or approach the residence from other areas of the property. Once the officers were in position, they began repeatedly announcing their presence; e.g., with their team leader D.S. Knoll yelling "Police" "Search warrant", "Come down" and "Open the door", while also knocking repeatedly on the exterior door of the residence leading into its mudroom. A marked police cruiser, which had arrived with the convoy of police vehicles, also activated its blue and red emergency lights in an effort to assure anyone inside the residence that it was indeed the police who were outside the residence and seeking entry; i.e., rather than illicit would-be intruders.

d. Such continuous efforts by the police to make their presence known, and have someone inside the residence open the exterior door leading into the mudroom, went on for approximately three to four minutes without any apparent response from anyone inside. However:

i. Shortly after arriving at the property, police looking through the windows of the master bedroom (or Room "H") along the east side of the upper level of the residence saw Mr Kofman standing inside that room and looking out the window at the police before he then backed away from the window. In particular, less than a minute after arriving at the property, DC Adach was positioned on the east side of the residence, (to detect any movement there prior to the police entering the building), when the marked cruiser activated its lights and DC Adach noticed, through the windows of a room on the upper floor of the residence subsequently identified as the master bedroom or Room "H", the illuminated silhouette of an individual. DC Adach shone his flashlight directly at the windows in question to further illuminate the interior of that room, at which point he was able to observe the details of a shirtless Caucasian male with short brown hair and distinctive shoulder tattoos; an individual DC Adach did not know or recognize at the time, but who was later identified as Mr Kofman. D.C. Latimer also saw a male appear in the same window, although she was further away and unable to make the same detailed observations made by D.C. Adach. D.C. Bell recalled that he too personally had seen someone appear in a window of the residence and look down on the police when they arrived on scene, but had no further memory of any details in that regard. I accept that the person seen in that room by D.C. Adach, shortly after the police arrived at the property and shortly before they entered the residence, was Mr Kofman.

ii. Those observations of Mr Kofman were reported to other attending officers, including D.S. Knoll, who continued, for a time, to knock on the rear exterior door of the residence, announce the police presence and their possession of a search warrant, and to ask for those inside to come down and open the door. In doing so, D.S. Knoll also gripped the exterior handle and latch of that exterior door to determine whether the door was unlocked and/or otherwise capable of being opened without the door being forced.

iii. Having regard to observations that someone was inside the residence and awake but not coming to the door, (despite awareness that the police were present and seeking entry), D.S. Knoll then decided, for reasons of officer safety, that the police would make a forced entry into the premises.

iv. The police then forced their way into the residence, through its rear door, at approximately 7:04am.

Clearing and Securing the Residence

e. The movements and actions of attending officers that followed immediately thereafter, focused on efforts to "clear" the residence and render it safe for purposes of the contemplated search, (i.e., by locating and securing any and all individuals inside, and rendering any firearms therein "safe" or inoperable, for reasons of officer safety), were described as "very fluid", and were not recorded or documented immediately and/or with precision owing to the dynamic circumstances in which they were occurring. In particular, the police made no "entry" video, as opposed to a pre-search video made later, when efforts were made to document the state of the residence following the steps taken by police to enter and clear the residence to ensure officer safety during the contemplated search. However, evidence presented in that regard included the following indications:

i. As it was still dark outside, and there were no lights on inside the residence, the officers entering the building to clear it room by room did so with the aid of flashlights.

ii. As D.C. Craig and D.C. Adach were making their way through the kitchen area of the residence and into its dining room, they encountered Mr Kofman, (who had descended from the master bedroom to the main floor), in or near the opening between the kitchen and the dining room, (i.e., standing near the base of the stairwell of the residence connecting its main floor and upper level), dressed only in underwear. Directions in the nature of "Police!", "Search warrant!" and "Show us your hands!" were shouted at Mr Kofman, and he was ordered to the ground by D.C. Craig. Mr Kofman complied, and he was then physically secured by D.C. Craig, with D.C. Adach standing by; i.e., by D.C. Craig taking physical hold of Mr Kofman on the ground, and placing Mr Kofman in handcuffs at approximately 7:08am, before physically raising Mr Kofman and guiding him in a "hands on" manner to a seat at the nearby dining room table. For reasons of safety, D.C. Craig then remained with Mr Kofman for the next 90 minutes; i.e., until 8:38am, when Mr Kofman was turned over to officers of the police transport unit. During that time, D.C. Craig continued to interact with Mr Kofman, (e.g., providing rights to counsel and cautions, possibly providing Mr Kofman with a drink of water, and assisting Mr Kofman with retrieving and putting on more clothing before D.C. Craig participated in turning Mr Kofman over to transport officers, although D.C. Craig candidly had little or no particular memories in relation to such matters), while Mr Kofman generally remained in the dining room, seated at its table along with Mr Fonseca and Mr Jaric.

iii. D.C. Grubb entered the residence and eventually made his way up to the northeast bedroom on its upper level, where he located a male individual, (later identified as Luis Fonseca), who was described as "very compliant"; e.g., laying down on the floor with his hands behind his back. D.C. Grubb, (who was wearing thicker "breaching gloves" at the time, as opposed to latex gloves normally used during search efforts), detained Mr Fonseca, and remained with him in the northeast bedroom until receiving word that the entire residence had been cleared. D.C. Grubb then took Mr Fonseca downstairs to the main level of the residence, and turned him over to members of the "arrest team" located there.

iv. After receiving confirmation from D.C. Craig that Mr Kofman had been sufficiently secured, D.C. Adach continued his progress into the residence, proceeding upstairs in the wake of other officers, who were seen to have already secured two other individuals; i.e., Mr Fonseca and Mr Jaric. (I was not presented with any further evidence as to how Mr Jaric was located and secured, apart from the formal admission that Mr Jaric was located within the northwest bedroom, or Room "L".) D.C. Adach then proceeded, (together with another officer whose name he could not recall), into the area of the master bedroom, or Room "H", where D.C. Adach was able to confirm that it was the bedroom with the window through which he had seen Mr Kofman. While passing through that master bedroom on his way into the sunroom to clear that area as well, D.C. Adach noticed, (without having to move anything to do so), a box for 9mm ammunition located on one of the built-in shelves behind the head of the mattresses that were on the floor of the master bedroom. D.C. Adach could not say whether any other officers had been through that master bedroom before him, or had moved that ammunition box in any way before he saw it, but he was able to confirm that he personally did not touch it.

v. D.S. Knoll joined with the officers entering and clearing the residence. In doing so, he initially proceeded through the main floor area, where he saw Mr Kofman being apprehended, before moving on to assist with clearing of the living room area at the front of the residence. D.S. Knoll then recalled proceeding to the upper level at some point, (although he had been advised by then that two other individuals had been located and apprehended there by other officers clearing that level), before D.S. Knoll also proceeded to the basement to assist with the clearing of that area.

vi. Once Mr Kofman, Mr Jaric and Mr Fonseca had been secured, and the police had determined there was no one else in the residence, (all of which was said to have occurred by approximately 7:10am), the attending officers generally assumed what was described as a "holding pattern", while waiting for "prisoner transport" to arrive and remove the three arrested individuals; i.e., before most officers then would vacate the residence again for a time, so that D.C. McMurtrie and D.C. Grubb could label each of its rooms with visible lettering, and record "a pre-search video" to document the state of the residence before other officers would re-enter the residence and embark on more thorough searching of the residence pursuant to the warrant. During that time, the three detained individuals were all brought to and kept seated around the table in the dining room of the residence, pursuant to instructions previously provided by D.S. Knoll that all persons found inside the residence were to be brought to a central location. While seated around that dining room table, the three detained men also were formally arrested by D.C. Adach, (at the direction of D.S. Knoll, and with the assistance of D.C. Latimer, who had entered the residence at that point), for possession of cannabis for the purpose of distribution. D.C. confirmed that she was the officer who primarily dealt with Mr Fonseca and Mr Jaric during the process of their being arrested while D.C. Adach was the one who primarily dealt with the third male; i.e., Mr Kofman.

Firearms Located During Initial Clearing

vii. Notwithstanding the general intention of police to delay a more thorough search of the residence until the three arrested individuals had been removed, and the building generally vacated by most officers until its rooms could be labelled, a pre-search video recorded, (with D.C. Grubb emphasizing that the general intention in such situations is to "leave things as they are", with the scene generally "frozen" and "very little" movement of objects, "for the most part", until such a pre-search video can be recorded), and officers assigned to search for and seize items in a documented manner, it seems clear that the officers initially entering the Townsend property engaged in at least some preliminary searching and movement of objects to locate possible firearms within the residence and render them safe. In that regard:

1. The police located a total of three firearms within the residence, (i.e., a sawed-off shotgun, a .22 calibre rifle, and a 9mm handgun), along with various types of ammunition.

2. As for the sawed-off shotgun and the .22 calibre rifle:

a. It was admitted that both those firearms were found in the "living room" area of the residence, on the "dark couch" in that room, with the shotgun wrapped inside a green jacket and inside a garbage bag, (which also contained two magazines loaded with tactical #9 buckshot for the shotgun), and that the .22 calibre rifle was "sitting on" that garbage bag – although, (as noted in more detail below), it became clear during the course of the trial that there was a dispute as to whether the rifle came to be sitting on that bag, (rather than inside it), as the result of actions by the police. It was also admitted that a case of ammunition for the .22 calibre rifle was also on the "dark couch", "beside the garbage bag" in question.

b. Evidence concerning how those two firearms and their ammunition came to the attention of the police, and how they may have been handled and by whom prior to their being video recorded, photographed and formally seized before being taken to D.C. McMurtrie, was not altogether clear. In particular:

i. In his testimony, D.S. Knoll described how he had joined with officers during police entry and clearing of the residence, making his way through the main floor before proceeding to the upper level. He said that, in doing so, and within a minute of personally entering the residence, (i.e., by approximately 7:05am), he "made some observations", "in passing", from "probably a couple of feet" away, of one or more firearms on a couch in what he described as the "front room" of the residence. In that regard:

1. D.S. Knoll initially said that he saw a "long gun with a magazine" and another "possible gun" on that couch.

2. D.S. Knoll then said he frankly could not even recall what the "possible gun" could have looked like, and that there "could have been several" guns on the couch.

3. That nevertheless was followed by D.S. Knoll indicating that the second "possible" gun was "long in nature", and definitely a "long barrelled gun" or "long gun", that "might have been black", suggesting that he was able to see a second firearm directly.

4. When asked for further clarification in that regard, D.S. Knoll indicated that both the firearms he saw were in close proximity with each other, with both lying exposed on the couch. He could not recall the reason why he was unable to ascertain the nature of the second firearm with clarity, candidly acknowledging that his difficulties in that regard were attributable to possible observational and memory issues.

5. In cross-examination, D.S. Knoll also confirmed that, when he made his passing observations of the items on the couch, those observations probably were made with the use of flashlights while the house remained in darkness, and he had no recollection of seeing any garbage bag or other items on the living room couches, such as the long swords that were depicted there in the pre-search video and evidence photographs.

ii. In his testimony, D.C. Adach said that, after clearing the sunroom and returning to the main floor of the residence, D.C. Bell directed his attention to a couch and coffee table in the living room, where there said to be items of "evidentiary value". At that point, the main floor of the residence had been "cleared" by other officers, but D.C. Adach could not say how much time had passed since that had been done. D.C. Adach said that, when he then entered the living room, he observed, on a couch, a .22 calibre rifle with a magazine inserted and a box of .22 calibre cartridges directly beside it. However, while the rifle is visible on the couch in the subsequently recorded pre-search video, the box of .22 calibre cartridges is not. D.C. Adach nevertheless testified that the .22 calibre rifle, as depicted in the pre-search video, generally appeared to be in the same position as it was when he first saw it. Having said that, he also confirmed that he could not speak to the condition of the items on the couch when they originally were discovered by the police.

iii. The testimony of D.C. Bell regarding the location of a firearm or firearms within the living room was detailed in some respects, but vague in numerous other significant ways. In that regard:

1. D.C. Bell said he "believed" he was part of the team that made entry into the residence, but seemed to have little or no memory of what he specifically may or may not have done in that regard. In cross-examination, he noted his belief that he had entered the residence with the other officers making the initial entry, but also said he was not part of the team that located the three individuals inside, or otherwise cleared the residence. Moreover, his initial note of the incident refers to his simply conducting a "walkthrough of scene", which suggests that he was not actively involved in the more dynamic aspects of police efforts to enter, clear and secure the residence, including police efforts to locate any firearms. His note also indicates that he personally did not observe any firearm until 7:21am, (17 minutes after police entered the residence), at which time he entered the living room on the main floor, made a note of items he observed there, including "a firearm" (singular) on a couch in that room, and "alerted the team leader", (i.e., D.S. Knoll), to what he had found. Having said all that:

(a) In his initial testimony at trial, D.C. Bell's recollection was that he was the one who secured the living room, but he also admittedly could not recall whether any other officer was present while he made his initial observations of what was in the living room, whether any other officer may have manipulated the firearm he initially saw there, or whether he in fact touched that firearm. He initially said that he did not believe such things had happened, but then also emphasized that he "could be wrong" about that, as the events in question had taken place "a long time ago". In particular, D.C. Bell emphasized that the only thing he remembered with clarity was the firearm "being there" when he first entered that living room, with his note indicating that he had observed, during his initial attendance in that living room, a ".22 calibre rifle with ammunition laying in plain sight on a couch", with a magazine that appeared to be "high capacity", along with "ammunition in a clear case".

(b) In cross-examination, D.C. Bell acknowledged that firearms were the sort of thing officers clearing a residence would be looking for, to ensure officer safety, and that he simply had no knowledge of what those clearing officers may or may not have done to move or disturb the .22 calibre rifle he noted on the couch before he first encountered it; i.e., during the 17 minutes those officers spent clearing and securing the residence before D.C. Bell entered that living room. He specifically was unable to comment on any indication that the rifle he saw lying on top of a garbage bag on a couch in the living room also may have been inside that garbage bag when police initially entered the residence.

(c) Moreover, D.C. Bell also acknowledged, in cross-examination, that:

i. he may personally may have disturbed the position of that rifle when he first encountered it at 7:21am, by picking it up to conduct an initial examination of the firearm before putting it down again; and

ii. he also may have picked up and examined other items in the living room, (such as the long swords located on the couches there), before then handling the rifle.

2. D.C. Bell's notes indicated that he initially remained in the living room only between 7:21am and 7:50am, at which point he left the residence to observe the fields and "cannabis grow operation" at the back of the property; probably because all officers generally were required, as per normal police practice, to vacate such a residence after its clearing while steps were then being taken to make a video recording of the residence and prepare it for formal searching by the police.

3. D.C. Bell testified that, according to his notes, he returned to the living room of the residence, to begin his assigned search of that room, at approximately 10:08am. In the course of his testimony, D.C. Bell then described how he progressively moved, unwrapped, revealed and/or examined the .22 calibre rifle he had seen earlier, as well as various items said to have been situated near or underneath it, before then attempting to reverse that process to restore all of the items to the position in which he originally discovered and saw them, "as best as he could remember", before D.C. Grubb then arrived to progressively photograph what D.C. Bell had discovered as D.C. Bell then repeated, to the best of his ability, that same process of moving, unwrapping, disclosing and examining those various objects on the couch. In particular, D.C. Bell indicated:

(a) that the .22 calibre rifle he had seen earlier was lying atop a black garbage bag;

(b) that he then moved that rifle to examine it and its inserted magazine of magazine, (e.g., to note the details of the rifle's model and serial number, and the number of rounds in its magazine), before setting the rifle and its inserted magazine aside by placing them on another area of the couch, (without being able to remember if that particular area of the couch happened to be dry or wet for any reason), in order to open the garbage bag below the rifle and examine that garbage bag's contents;

(c) that he then similarly moved and examined a nearby case or box of additional ammunition for the .22 calibre rifle, to note details of the markings on that box and the number of rounds inside it, before setting that aside as well;

(d) that he then opened the black garbage bag to examine its contents, finding a sawed-off shotgun wrapped up inside a green jacket, (which could not be seen before the jacket was unwrapped), as well as two magazines containing ammunition, while progressively handling those items, examining them to note their details, and then setting those items aside as well; and

(e) that he then reversed that entire process to "put everything back" to the way he had found it, to the best of his memory at the time, before D.C. Grubb arrived to photograph similar stages of the process as it was carried out again.

4. I accept that D.C. Bell carried out the process as he described, and did so to the best of his ability. However, I also note that the process he described means that the photographs taken by D.C. Grubb of the various objects handled by D.C. Bell, including the .22 calibre rifle, do not necessarily depict the objects as they were positioned when the police entered the residence. All of those objects effectively had been moved at least twice by D.C. Bell, if not three times by D.C. Bell and also by others, before those photographs were taken.

5. Finally, D.C. Bell described how, after the various items on the couch had been photographed by D.C. Grubb, D.C. Bell had taken steps to prepare those items for delivery to D.C. McMurtrie. He said those efforts included proving the .22 calibre rifle and the sawed-off shotgun safe, and placing OPP safety seals through each firearm, (recording the specific numbers of those seals in his notes as he did so), in a manner whereby those seals would prevent each of the weapons from firing. He then placed the firearms in separate exhibit bags for presentation to D.C. McMurtrie, (with the shotgun magazines being placed into the same exhibit bag as the shotgun), albeit without sealing the exhibit bags containing the two firearms in case D.C. McMurtrie wished to examine them further. He then took his seized items to D.C. McMurtrie at the dining room table of the residence, began turning his exhibits over to D.C. McMurtrie at 1:04pm, and completed that process at 1:46pm. D.C. Bell nevertheless felt unable to speak to anything D.C. McMurtrie may or may not have done during that process, (in terms of handling or examining the items presented, or placing them on the surface of the dining room table), as D.C. Bell simply had no memory of such matters. D.C. Bell also could not remember whether or not he had worn any gloves while handling the various items he described, although his general practice was to wear latex gloves while doing so.

iv. In his testimony, D.C. Grubb indicated that, although the .22 calibre rifle was lying atop a garbage bag on a couch in the living room when he initially encountered it, (i.e., in the position depicted in his pre-search video recording and photographs before he ever touched the firearm), he had been informed by other officers that the rifle previously had been inside the garbage bag, together with the shotgun, before it had been "pulled out" of that garbage bag. In that regard, D.C. Grubb confirmed that he was not present when that had happened, but he definitely was told earlier, and knew at the time, that both the .22 calibre rifle and the sawed-off shotgun "were found in the black garbage bag"; i.e., such that the .22 calibre rifle, when initially located by police during their clearing and securing of the residence, was not in the same exposed position it was in at the time of the pre-search video. According to D.C. Grubb, by the time he was recording the pre-search video, the .22 calibre rifle had already been "pulled out" of the garbage bag, so that it could be seen in the video. D.C. Grubb also indicated that he could not remember whether or not he was present when the remaining contents of the garbage bag, including the originally "bundled up" sawed-off shotgun, had been unwrapped by other officers.

3. As for the 9mm handgun:

a. The formally agreed facts and admissions include an indication that the relevant handgun, and a magazine for the handgun, were located "in the rafters" in a closet of an "anteroom" off the master bedroom, otherwise described as Room "I".

b. D.C. Grubb testified, and I accept, that he was the officer who initially located the firearm, and that he found it in that walk in "closet" accessed through a door located on the north wall off the "West bedroom" or Room "I".

c. There were some notable discrepancies in the testimony I received concerning the particulars of how the handgun and its magazine came to be located and secured, and the extent to which the initial position of certain items, (including a box of 9mm ammunition located within the master bedroom or Room "H"), may have been disturbed during that process. In that regard:

i. As mentioned earlier, D.C. Adach said that he noticed that 9mm ammunition box, sitting on a built-in shelf in the wall behind the "head" of the mattresses on the floor of the master bedroom, as he was passing through that area on his way to the adjacent sunroom. While he admittedly had noticed the ammunition box only in passing, during what he described as a "quick pan past that shelving unit", D.C. Adach felt that the location and position of the box when he first came across it generally corresponded to its location and position in the pre-search video he was shown at trial, although he candidly could not say whether it had been "moved fractionally or anything like that".

ii. D.C. Grubb testified that, as officers were waiting for prisoner transport to arrive, he was advised by his supervisor, D.S. Knoll, that some 9mm ammunition had been located "in a room upstairs", prompting efforts to locate and secure another possible firearm in the residence corresponding to that ammunition, before the police embarked on efforts to search the residence more thoroughly pursuant to the warrant. In particular, D.C. Grubb said he therefore returned to the upstairs area of the residence to assist D.S. Knoll in those efforts, and that he was the officer who located the weapon shortly thereafter at approximately 7:35am. In that regard, D.C. Grubb described how he and D.S. Knoll alone were "looking around where the bullets were located for a firearm", after seeing a box of 9mm ammunition on a wall shelf behind the bed in the master bedroom, with "9mm luger" written on the outside. In that regard, D.C. Grubb indicated his understanding at the time, based on what D.S. Knoll had communicated, that the box contained ammunition and that D.S. Knoll and/or another officer therefore probably had touched and/or opened the box to confirm that was the case before D.C. Grubb first saw it, although he personally had not seen that happen. Despite that stated belief, however, D.C. Grubb also said he nevertheless personally picked the box up briefly to ensure it was not simply an empty box, before replacing it on the shelf in exactly the same position. D.C. Grubb testified that he was then looking in the closet off the north of the West bedroom or Room "I" when he discovered the 9mm handgun placed on a rafter within that closet, at the level of his head. In particular, D.C. Grubb described how he entered that darkened closet, using his flashlight to search the area, when he noticed light from his flashlight "shining" or "glowing back" at him from the two "sites" or "rear post" situated at the back of the handgun, (which were coated with reflective material), as the firearm was lying atop the rafter, approximately 18 inches away from the edge of the rafter, with its barrel pointing directly away from him, and its magazine inserted/fitted into its handle. The gun was in a position where D.C. Grubb, at that point, did not need to move the gun or anything else to see it, and easily could have reached up to grab the gun with his hand while standing on the floor. D.C. Grubb nevertheless did not seize the weapon at the time, (i.e., prior to the contemplated thorough and documented search and seizure efforts to be carried out pursuant to the warrant), or otherwise move or touch it in any way, but instead drew the handgun's location to the attention of D.S. Knoll, who was still nearby in the master bedroom, looking for a firearm corresponding to the noted 9mm ammunition. D.S. Knoll asked D.C. Grubb whether he had cleared or done anything with the firearm, and D.C. Grubb confirmed that he had not touched the weapon. At that point, D.C. Grubb says, he watched D.S. Knoll, (who was wearing some form of gloves at the time), exclusively handle the handgun by picking it up to render/prove it safe, (i.e., by taking hold of its handle, pulling its slide back, removing its magazine, ensuring there was no round in the chamber, and leaving its action open), before placing the firearm and its detached magazine back on the rafter of the relevant closet in the same general area where it initially had been found, albeit facing in a different direction.

iii. In his testimony, D.S. Knoll denied having instructed D.C. Grubb to search for a handgun corresponding to the 9mm ammunition that had been located in the upper level of the residence. In that regard, D.S. Knoll indicated a recollection of "somebody finding some 9mm ammunition upstairs", and making a report about that. D.S. Knoll candidly could not recall the name of the officer who made that report. However, while "somebody" initially spoke to him of that discovery of 9mm ammunition, D.S. Knoll says that he did not provide any instructions in that regard, or proceed upstairs to personally follow up in relation to such matters, until he did so in response to a further report, this time from D.C. Grubb, that D.C. Grubb had located and seen an additional firearm. D.S. Knoll remembered being on the main floor of the residence when he received that report. It was at that point, D.S. Knoll recalled, at approximately 7:36am, that he went upstairs and first saw a box of 9mm ammunition positioned on what he described as one of two shelves "near the bed area" of a bedroom in the "southeast corner" of the upper level of the residence, with the shelves in question forming a sort of "back board" to the bed in question. D.S. Knoll could not recall whether or not his attention was specifically drawn to the location of the 9mm ammunition box when he arrived in the bedroom, or whether he saw it independently, but he confirmed knowing about the ammunition box being there before his arrival. He had no recollection of personally moving that box or anything around it, (e.g., to see whether it actually contained ammunition), nor any recollection of seeing anyone else do so. His attention was then directed by D.C. Grubb to the location of the discovered firearm, which D.S. Knoll described as a "black Glock style gun", which "would have been in the same room where the ammunition was located". In that regard, D.S. Knoll recalled the gun being in an "awkward spot", on a "ledge area" that may have been a "shelf" or "roof coming down" inside the house owing to previous construction", "inside a closet" of what he described as the "main bedroom at the southeast corner" or at the "south end" of the residence. D.S. Knoll said that, once the gun was pointed out to him, (at approximately 7:37am), he "pulled it out of that ledge area, overtop of the closet", indicating that he had to reach less than a full arm's length from where he was standing, ("without overstraining" himself), to grab and remove the gun. When he did so, he observed that there was a magazine in that gun, in turn prompting him to remove the magazine and prove the weapon safe as a mandatory priority. In that regard, he not only removed the gun's magazine, (which was full of 9mm ammunition), but also made sure there was "nothing in the barrel". He then then put the gun "back into the position it was before", albeit with its magazine out and beside it "in the same exact area", ("for purposes of photographs and videos"), and had no further interaction with those items. D.S. Knoll confirmed that he was wearing gloves when he handled the gun and its magazine, adding that he personally always wears latex gloves in that regard "when searching" a residence. In cross-examination, however, D.S. Knoll acknowledged that, when he was handling the discovered handgun and proving it safe, he "quite possibly" had not yet switched to wearing the sort of latex gloves he uses when searching a residence, but was instead still wearing the stronger protective "hatch gloves", (made of durable leather with a Kevlar lining), he routinely wears when entering and clearing premises, and before an "official" search of a residence for evidence and "processing of a scene" begins, (with officers being assigned to search specific rooms), at which point he switches to latex gloves. D.S. Knoll confirmed in cross-examination that those hatch gloves admittedly were the same ones he had worn when interacting with the handle mechanism of the rear door to the residence when trying to effect entry, (i.e., to see whether the door was locked or capable of being opened without a forced entry), and thereafter "quite possibly" may still have been worn by him while moving through the residence for the ensuing 33 minutes or so before he was called upon to handle and secure the discovered handgun. D.S. Knoll also indicated in re-examination that, while it would be preferable as a matter of general practice to switch to latex gloves before handling items within a residence that is going to be officially searched, his personal practice in that regard "depends on the situation", and that if he encounters something he needs to move and/or if he has to do something "right away", and he can't readily transition into latex gloves, he will do so using his hatch gloves. Having regard to D.S. Knoll's other testimony, including his indication that he regarded the need to render and prove the discovered handgun safe immediately as "mandatory practice", (for reasons of officer safety), I find that, when he handled the discovered handgun, he did so while still wearing the same hatch gloves he had been wearing from the time of testing the rear door of the residence, and during the ensuing 33 minutes or so of moving through the residence, before dealing with the handgun.

iv. To the extent there are deviations between the testimony of D.C. Grubb and D.S. Knoll concerning the manner in which the two came to note and possibly interact with the box of 9mm ammunition, and the subsequent location of the handgun and how it was handled, I generally prefer the testimony of D.C. Grubb. In particular, as team leader, D.S. Knoll inherently and simultaneously was addressing multiple observations, concerns and reports of the overall police action in a less focused way than an officer such as D.C. Grubb, focused on his individually assigned tasks, and D.S. Knoll's memory was clearly flawed in a number of respects; e.g., insofar as he described the master bedroom as being at the south end of the residence, said there were only two shelves behind the head of the mattresses in the master bedroom, and indicated that the handgun had been located in a closet of the same room in which the ammunition had been located. However, I do doubt D.C. Grubb's indications of having been told by D.S. Knoll that the box contained ammunition, and/or having seen D.S. Knoll pick up or otherwise move the box of 9mm ammunition before D.C. Grubb admittedly did so, (in order to confirm that the box was not empty), as there would have been no need for D.C. Grubb to doubt the word of D.S. Knoll as to whether the box contained ammunition, or to duplicate an action of picking up the box to see if that was so if he already had seen that done by D.S. Knoll.

v. In any event, there was consistency between the testimony of D.C. Adach, D.C. Grubb and D.S. Knoll that the box of 9mm ammunition was clearly visible on a shelf behind the head of the bed or mattresses in the master bedroom at all times during police execution of the search warrant, and I accept that it generally was in the same shelf location and position as depicted in the pre-search video and photographs, even if it had been touched or lifted slightly, by D.C. Grubb in particular, before the video and photographs were taken. In that regard, I also note and accept D.C. Grubb's further testimony that, when he was taking evidence photos as the residence was being thoroughly searched and items were being formally seized, a single round of ammunition was already out of the box and rolled into view from behind the box, when he moved the box slightly to facilitate a better photo of its exterior. While that indication initially seemed slightly at odds with D.C. Grubb's testimony about the box being lifted earlier in the day shortly after police had entered the residence, to ensure that the box was not empty, (with no accompanying indication that any loose round had been disturbed or rolled into view at that point), I generally found D.C. Grubb to be a credible and reliable witness, and am mindful that his described initial interaction with the ammunition box took place at a time when it was still dark and the police were searching the residence with the use of flashlights. In the circumstances, I think it entirely possible and plausible that D.C. Grubb may have failed to notice a loose single round of ammunition lying nearby on the same shelf, when he initially interacted with the ammunition box, and that the single round in question rolled into view during the daylight searching only when it was further disturbed by D.C. Grubb's later movement of the same ammunition box.

vi. There was also consistency in the testimony of D.C. Grubb and D.S. Knoll that, although the precise position of the handgun and its magazine may have been altered slightly between the time of its initial discovery by D.C. Grubb and its appearance in the pre-search video, (through the actions taken by D.S. Knoll to render the weapon safe), the handgun, with its magazine inserted and loaded therein, was located on a rafter or ledge within a closet of an upstairs bedroom, and returned to the same general location after the weapon had been handled and rendered safe by D.S. Knoll. I accept that was the case, find that the closet in question was the one to the north of the "west bedroom" or Room "I" as depicted in the pre-search video, (and not a closet in the master bedroom as suggested by D.S. Knoll), and that the pre-search video accurately depicts where the gun and its magazine were located when the police entered the residence on the morning in question, even if the precise position of the gun and its magazine had been altered slightly by the time that pre-search video was made.

d. More concerning, I think, is the lack of clarity in evidence about how the handgun and its magazine thereafter may have been handled and by whom, prior to its being further photographed and/or formally seized, and before being taken to D.C. McMurtrie. In particular:

i. D.C. Grubb testified that he normally was asked by officers discovering items to photograph them "in situ", as they were found, prior to their being formally seized and taken to D.C. McMurtrie to be received, documented and logged. However, by the time D.C. Grubb was asked to photograph the 9mm handgun and its magazine, (before they were taken downstairs to D.C. McMurtrie), someone obviously had removed both objects from the rafter in the closet off the west bedroom or Room "I", and placed both items on the bed of the master bedroom or Room "H". (While there is no photograph of the handgun and its magazine on the bed taken at a distance to make their position in that regard clear, I agree with defence counsel that the distinctive pattern of the fabric underlying the handgun and its magazine in their relevant "close up" photos matches the distinctive pattern of the sheets on the bed in the master bedroom.) D.C. Grubb could not say how the handgun and its magazine had been moved from the relevant closet rafter, (where he and D.S. Knoll had left it after the latter had proved it safe), to the bed in the master bedroom.

ii. D.C. Latimer described how she interacted with the handgun and its magazine during her assigned search of the master bedroom, or Room "H", after completing her assigned search of the northwest bedroom or Room "L", and the upstairs bathroom or Room "N". In that regard:

1. D.C. Latimer indicated that, during her progressive search activity, she changed the nitrile gloves she was wearing before embarking on any search of a different room; i.e., in an effort to prevent the possible inadvertent disturbing of fingerprints or transfer of DNA from room to room. However, she also acknowledged that she did not change gloves between the handling of items located within the same room as it was being searched.

2. D.C. Latimer testified that, upon entering the master bedroom or Room "H", she began her search that assigned area by opening and searching through the "cubby" built into the wall immediately to her right upon entering the room, as well as the "drawers" that were built into the wall of that bedroom opposite the foot of the bed or mattresses there; i.e., opening and searching through that wall cubby and those built in drawers but finding nothing of note, and without making a note of what may items they may have contained which D.C. Latimer also may have touched.

3. At approximately 11:20am, D.C. Latimer then noticed a black handgun and magazine "that would go inside the gun" lying beside each other on the bed of the master bedroom, towards the "foot" of that bed, and directly on its bedsheet, in positions she described as being similar to those depicted in the evidence photo found at Exhibit 3, page 28. While admittedly wearing the same gloves worn while she had opened the bedroom's wall cubby and drawers, and searching through or examining whatever their contents may have been, D.C. Latimer then proceeded to handle that handgun and magazine. In that regard:

(a) D.C. Latimer testified that, when she saw the handgun and magazine on the bed, she had an understanding that they had been placed there by another officer, but she did not know who might have done that.

(b) Protocol nevertheless required that D.C. Latimer personally prove the weapon safe, even if she had a belief that it previously had been proven safe. She therefore picked the handgun up by its handle or grip to personally prove it safe, (e.g., to ensure that there was no projectile in its barrel despite the magazine having been removed), without having to pull back the weapon's slide as that already had been opened, and then noted the particulars of the handgun's model and serial number.

(c) D.C. Latimer than picked up and examined the relevant magazine, to ascertain and confirm that the magazine contained sixteen 9mm rounds of ammunition.

4. D.C. Latimer described how, after examining the handgun and magazine and placing them back on the bed where she had first seen them, she thereafter went on to locate and seize additional items in the master bedroom: e.g., two mobile phones found on the bed, one with no power and one powered on; a wallet located on a shelf behind the bed that contained "bulk cash", Mr Kofman's driver's licence, a blank cheque and three bank receipts; and a box of "Brazer Brass" 9mm ammunition, (containing eighteen 9mm rounds), as well as one 9mm round outside and beside that box, which were found on another shelf behind the bed. In that regard, D.C. Latimer confirmed that those various items, when she located them, where in the same general positions indicated in the corresponding exhibit photos taken of those items before their seizure.

5. D.C. Latimer testified that, at approximately 11:44am, she was then advised by D.C. Craig that he had located the handgun and magazine in Room "I", (in some kind of "attic space"), and that he therefore would be the seizing officer for those items, with carriage of them. While D.C. Latimer did not observe D.C. Craig do anything with the handgun or magazine, she therefore left them on the bed of the master bedroom where she had found and replaced them, and formally seized and turned over to D.C. McMurtrie only the other items of interest she had located.

iii. In the course of his testimony, D.C. Craig confirmed that he was assigned to search the west bedroom or Room "I" of the residence, and said that he did so after completing his search of the northeast bedroom or Room "K". In that regard:

1. D.C. Craig indicated that the west bedroom or Room "I" appeared to be a "spare" bedroom, insofar as it did not appear to be occupied by anyone, but he located the 9mm handgun and its magazine in the room's closet. He regarded himself as the officer who had seized and taken custody of those items, and confirmed that he was the officer who eventually presented those items to D.C. McMurtrie to be documented and logged.

2. D.C. Craig's evidence as to how he located the handgun and its magazine, and how it was handled between the time of him seizing it and the time of his presenting it to D.C. McMurtrie, nevertheless seemed problematic to me for a number of reasons.

3. For example, there were aspects of D.C. Craig's testimony regarding his location and seizure of the handgun and its magazine that were remarkably vague. In particular:

(a) On the one hand, he was sure that he was "told at some point that it was there", as opposed to just finding the firearm himself.

(b) On the other hand, he said he had no recollection whatsoever of anyone telling him that the firearm was there. He simply recalled going to Room "I" to search that room, at which point he located and seized the handgun.

4. Next, D.C. Craig testified that, when he located, seized and thereafter handled the handgun, it had been "rendered inoperable" through someone having already applied a standard OPP safety "seal" in that regard to the firearm, as depicted in the photo marked as Exhibit "7" at trial. In that regard, D.C. Craig said he did not apply such a safety seal to the handgun, and that he was told sometime "afterwards" that the seal had been applied by D.S. Knoll after he found the handgun. When asked about such matters in cross-examination, D.C. Craig said he was sure the yellow safety seal and tag had remained in place on the 9mm handgun from the time he located and seized the firearm until the time it was turned over to D.C. McMurtrie. However:

(a) In the course of their testimony, neither D.C. Grubb nor D.S. Knoll mentioned the application of any such seal to the firearm after D.S. Knoll had proved it safe, and returned the handgun and its magazine to its original location atop the rafter in the relevant closet.

(b) No such bright yellow safety seal is visible, (as I think it clearly would have been had it been present), when the handgun, still resting on the relevant closet rafter, appears in the pre-search video made by D.C. Grubb before D.C. Craig was assigned to search Room "I" and its closet.

(c) An OPP safety seal also had not been applied to the firearm when D.C. Latimer noticed the weapon lying on the bed in the master bedroom, while carrying out her assigned search of that room, and she therefore felt obliged to personally prove it safe.

(d) No such safety seal is visible in the photographs taken of the handgun while the weapon and its magazine were still lying on the bed of the master bedroom. I find it difficult if not impossible to believe that, in the context of an ongoing police action involving execution of a search warrant in large multi-room residence, by multiple officers who might come across a weapon without any prior knowledge of how it may or may not previously have been handled, a safety seal applied to that weapon would have been removed simply for the sake of it being photographed.

(e) As noted and described in more detail below, D.C. McMurtrie also denied that the 9mm handgun, when presented to him, was accompanied by any applied plastic yellow seal through the firearm, confirming that it had been proven safe. He instead recalled feeling obliged to personally take steps to prove the weapon safe, before it was logged as an exhibit.

(f) For all these reasons, I find that D.C. Craig's memory about the state of the handgun when he located, seized and handled was simply inaccurate.

5. D.C. Craig's testimony regarding handling and treatment of the handgun and magazine, between the time he seized those items and the time he presented them to D.C. McMurtrie, is also problematic owing to some glaring inconsistencies and/or gaps in that evidence. For example:

(a) D.C. Craig said that, when he finished searching the west bedroom or Room "I", he took the 9mm handgun and magazine, (the only items of interest located and seized from that room), down to D.C. McMurtrie. For some unexplained reason, however, D.C. Craig indicated the passage of almost an hour between his locating and seizing the handgun and magazine at 11:31am, and his presenting those items to D.C. McMurtrie at 12:27pm.

(b) D.C. Craig testified that, after he located and seized the handgun and its magazine, he did not relinquish possession of those items until he turned them over to D.C. McMurtrie. He made no mention of the handgun and its magazine being transferred from the closet of the west bedroom or Room "I" to the master bedroom or Room "H", or being left unattended for a time on the bed of that master bedroom. However, in my view that clearly seems to have happened, having regard to D.C. Latimer's testimony. D.C. Craig also had no recollection of any photographs being taken of the handgun or magazine, during the time when they supposedly were in his uninterrupted possession after he seized them, and indicated in cross-examination that he did nothing in relation to having the items photographed, or assisting with the taking of such photographs, yet photos of those items clearly were taken as they lay on the bed of the master bedroom, before they were taken down to D.C. McMurtry.

(c) When asked about such matters in cross-examination, D.C. Craig then said that he simply could not say whether or not he had placed the items on a bed, on a dresser, or in his cargo shorts for transport. He acknowledged having no memory of where the handgun and magazine actually may or may not have been placed between his location and seizure of them, and his turning them over to D.C. McMurtrie.

6. Finally, there was also lack of clarity as to whether or not D.C. Craig was wearing gloves when he handled the handgun and its magazine, and if he was, what gloves he may have been wearing and therefore what else those gloves may have touched. In that regard:

(a) During examination in chief, D.C. Craig initially indicated that it was his general practice to wear gloves at such times, and probably blue nylon gloves, for purposes of safety and to prevent the transfer of fingerprints. However, he then candidly acknowledged that he could not recall whether or not he was wearing any gloves when he was handling the 9mm handgun in question.

(b) In cross-examination, D.C. Craig then indicated a recollection that he was wearing gloves when he initially encountered and physically interacted with Mr Kofman, and that those were the same gloves he wore "from beginning to end" during his time at the Townsend property.

(c) In the course of further cross-examination, D.C. Craig then said he usually would wear his slash-resistant "hatch gloves" while engaged in initial entry and clearing of a residence, (as they offered better protection), before then switching to latex gloves. He therefore believed that he probably "would have" changed his gloves in that manner during the period when he was still interacting with Mr Kofman at the dining room table, before turning Mr Kofman over to the transport officers. He nevertheless also said those latex gloves, worn while still interacting with Mr Kofman, then would have been the same gloves he was wearing when he subsequently handled the 9mm handgun and magazine.

(d) In the course of re-examination, D.C. Craig then said he usually would change his gloves, (from Hatch gloves to latex gloves), when the police were starting their formal search of a residence; i.e., by which point those found within the residence would have been removed from it. However, he then added that there really was no "typical time" at which he would make such a change. He also indicated that, once he changed into latex gloves, he normally would wear only one pair of latex gloves during the entirety of a search; i.e., without changing into new latex gloves at any point.

f. Once the three detained males had been turned over to prisoner transport, all officers but D.C. McMurtrie and D.C. Grubb exited the residence temporarily, to permit organization of the contemplated thorough search and seizure efforts pursuant to the warrant; e.g., through the methodical application of visible lettering to the individual rooms of the residence, the preparation of floor plan diagrams, the recording of the pre-search video noted above, (starting at approximately 9:38am), the "setting up" of a central station within the residence where officers searching the residence could bring seized items of interest to D.C. McMurtrie to be received and documented/logged, and the assignment of particular officers to search particular rooms or areas of the residence. At some point during that process, D.C. Grubb also exited the residence temporarily to record a pre-search video of one of the property's out buildings; i.e., the interior of a barn on the property.

g. It was not disputed that the workstation location chosen by D.C. McMurtrie to receive and document/log seized items, brought to him by officers searching the residence, was the table in the dining room of the residence. In that regard:

i. As noted above, this was the table around which Mr Kofman, Mr Jaric and Mr Fonseca were placed and seated after they had been located and arrested, and where they waited for an extended period while awaiting the arrival of prisoner transport.

ii. As depicted in the pre-search video recording which began at 9:38am, (and confirmed by the testimony of D.C. Grubb), prior to D.C. McMurtrie setting up a workstation to receive and document/log located and seized items of interest, the surface of that dining room table was extensively cluttered with numerous objects, including but not limited to what appeared to be food items, numerous beverage containers such as coffee cups and opened water and soft drink bottles and cans, as well as items resembling types of napkins and/or wrappings.

iii. While D.C. McMurtrie believed those items probably were cleared from the surface of the dining room table to create an effective workstation or "exhibit post" for him to receive and document/log seized items, he was not sure about that. In any event, there were no other efforts made to clean or sanitize that surface, or to place, over the surface of that table, any tablecloth or other sanitized covering brought by the police for that purpose. To the contrary, D.C. McMurtrie testified that, to the best of his recollection, seized items brought to him had just been placed directly on the surface of the dining room table once it had been cleared.

h. Various officers then proceeded to search the interior of the Townsend property residence more thoroughly, with D.C. Grubb moving around the interior of the residence with them to photograph items the searching officers had located "in situ", (i.e., in the places where they were said to have been found), before the items then were taken to D.C. McMurtrie's workstation on the dining room table of the residence. I will not attempt an exhaustive summary of those search activities and located/photographed items here. Nor will I embark, for the moment, on more detailed comments concerning the appearance or contents of rooms as depicted in the pre-search video recording or photographs that were presented in evidence. However, some preliminary comments in relation to such search efforts and located items, which will be supplemented by further comments later in these reasons and during the course of my analysis, include the following:

i. Various forms of cannabis, cannabis products and associated measuring and packaging materials were found in a number of locations throughout the residence, i.e., in the main floor kitchen labelled as Room "B", in the storage room on the main floor labelled as Room "C", in the main floor dining room labelled as Room "D", in the main floor dining room labelled as Room "E", in the northwest bedroom labelled as Room "L", in the sun room labelled as Room "G", and in basement furnace room labelled as Room "N". The specific nature and quantity of such items is set forth in much more detail below.

ii. In the northeast bedroom labelled as Room "K", where Mr Fonseca was located, police also located, inter alia, a black Iphone, a wallet containing identification in Mr Fonseca's name, and a red duffle bag containing, (amongst other things), an empty holster. In that regard, I received testimony from D.C. Craig, (the officer formally assigned to search that northeast bedroom or Room "K", and the officer who discovered that holster), that it was a holster for a "pistol"; i.e., a holster for a "Glock" type of handgun, (i.e., of the type located in the closet to the west bedroom or Room "I"), as opposed to a holster for a revolver. As explained by D.C. Craig, the configuration of a holster designed for a "pistol" or "Glock" firearm is larger, shorter and wider than the configuration of a holster for a revolver, which is smaller and more narrow.

iii. In the northwest bedroom labelled as Room "L", where Mr Jaric was located, police also found, inter alia, an Iphone and mail in the name of Mr Jaric.

iv. In the master bedroom labelled as Room "H" where Mr Kofman was seen by police shortly after their arrival at the Townsend property, the police located, inter alia, two mobile phones, a wallet, (found on one of the shelves behind or at the head of the bed in the room), containing identification for Mr Kofman, (including a driver's licence issued on April 6, 2018, with an expiry date of April 20, 2023), indicating a residence of 71-1500 Richmond Street, here in the city of London; i.e., the "Richmond Street" residence referred to herein. Police also located, within Mr Kofman's wallet, (according to the formal exhibit log and exhibit photographs), currency, banking cards and banking documents. Next to the wallet, on the same shelf at the head of the bed, were a number of coins and a lighter. On a higher shelf in the same area at the head of the bed, the police located the box of 9mm ammunition noted earlier. Despite cannabis-related items being located in the sunroom to the south of the master bedroom, (i.e., Room G"), and the 9mm handgun discussed herein being found in the closet of the west bedroom located to the west of the master bedroom, (i.e., the closet of Room "I"), no narcotics or firearms were found in the master bedroom or Room "H" per se.

v. In my view, it is reasonable to infer that, when the police arrived at the Townsend property on November 3, 2021, Mr Fonseca had been sleeping in the bed in the northeast bedroom or Room "K", Mr Jaric had been sleeping in the bed in the northwest bedroom or Room "L", and Mr Kofman had been sleeping in the bed in the master bedroom or Room "H", having regard to considerations that include the following:

1. the early pre-dawn timing of police arrival at the property, (i.e., at 7:00am), making it more likely that occupants of the residence had been sleeping when the police got there;

2. the existence of three occupants in the residence;

3. the existence of only three beds in the residence configured for sleeping, (one in each of Room "K", Room "L" and Room "H"), particularly insofar as the only additional mattresses visible in the residence were located in the west bedroom or Room "I" and were resting on their side, with that bedroom apparently being used for storage rather than any type of ongoing occupation; and

4. the presence of various items placed on top of the only other furnishings in the residence that otherwise may have provided a comfortable sleeping surface, such as the two couches in the living room labelled as Room "E", or the couch in the northwest bedroom labelled as Room "K".

5. the physical presence of Mr Fonseca and his wallet in Room "K" when police entered the residence;

6. the physical presence of Mr Jaric and his mail in Room "L" when police entered the residence, and Mr Jaric having assumed a position lying on that bedroom's floor with his hands behind his back, apparently to await the arrival in that bedroom by the police as they made their entry and took steps to clear the residence; and

7. the sighting of Mr Kofman shortly after police arrived at the property, standing in the master bedroom or Room "H", and looking out of that darkened bedroom's window while undressed at least from the waist up such that his tattoos were visible, (and his being dressed only in underwear minutes later), as well as the presence of his wallet in that master bedroom.

i. Officers locating and seizing items from various parts of the Townsend property residence then brought those items, (after they had been photographed by D.C. Grubb), to D.C. McMurtrie at the workstation he had set up, on the dining room table of the residence, to receive and document/log those items. In that regard:

i. The testimony I received, (including testimony from D.C. Craig, D.C. Latimer and D.C. Bell, and confirmation from D.C. McMurtrie), indicated that, while some of the seized items were brought to D.C. McMurtrie in sealed exhibit bags, some seized items were brought to him in unsealed exhibit bags, while other seized items were brought to D.C. McMurtrie and placed on the dining room table without their first being placed in any exhibit bag. For example:

1. D.C. Bell testified that he placed the firearms and ammunition he seized into exhibit bags, but that he also did not seal those exhibit bags before presenting those items to D.C. McMurtrie, in anticipation of D.C. McMurtrie possibly needing to handle those items again before the exhibit bags were sealed.

2. D.C. Craig testified that none of the items he seized, (including the 9mm handgun and its magazine), were placed in an exhibit bag before they were presented to D.C. McMurtrie, who then dealt with such items, (including their placement into exhibit bags), as they were being documented and logged.

ii. D.C. McMurtrie testified that, while personally handling the various seized items being brought to him, he wore latex gloves; e.g., for self-protection, and in an effort to prevent his contamination of the seized items being brought to him. However, he also admittedly did not change gloves at any point during his handling of all the seized items; e.g., to address and minimize or prevent the risk of inadvertent DNA transfer between items by his handling of successive items. Nor were any steps taken to address, minimize or prevent the risk of inadvertent DNA transfer between the uncleaned surface of the dining room table and seized items, or vice versa, as various seized items brought to D.C. McMurtrie successively were placed on that same dining room table surface. In cross-examination, D.C. McMurtrie candidly acknowledged that, in retrospect, he probably gave no consideration to any such concerns.

iii. D.C. McMurtrie created a formal exhibit log, in electronic format, (i.e., an Excel spreadsheet), progressively entering each seized item brought to him in the log by assigning it a number in sequence, although those numbered entries were then separated into different categories, depending on the type of item they were; e.g., general property, electronic devices, drugs, currency or firearms. Through that progressive numbering, one can discern, inter alia, the following:

1. The relevant magazine of ammunition originally located within the 9mm handgun, (and addressed by Count 9 o the indictment), and the 9mm handgun itself, (addressed by Counts 5 and 8 of the indictment), respectively were the 23 rd and 24 th seized items presented to D.C. McMurtrie. In other words, 22 other items apparently had been handled by D.C. McMurtrie and/or been placed on the surface of the dining room table before that occurred in relation to the 9mm handgun magazine and the 9mm handgun itself. I nevertheless also note that none of those 22 previous items included any of items, apparently associated with Mr Kofman, that were located in the master bedroom or Room "H" of the residence.

2. The .22 calibre rifle addressed by Count 4 of the indictment was the 38 th item brought to D.C. McMurtrie. Prior items brought to D.C. McMurtrie and his dining room table workstation therefore included the aforesaid 9mm handgun magazine and handgun, (both of which, at a minimum, had been placed directly on the bedsheet apparently used by Mr Kofman in the master bedroom the night before), as well as currency and banking documentation, (i.e., a cheque and several receipts), all of which had been removed from Mr Kofman's wallet and also laid directly on the bedsheet in the master bed to be photographed before being brought to D.C. McMurtrie.

iv. In cross-examination, D.C. McMurtrie confirmed that the 9mm handgun and the .22 calibre rifle were not brought to him in sealed exhibit bags, as he specifically recalled personally handling both firearms to once again prove them safe personally before logging them as exhibits. (Again, in re-examination, D.C. McMurtrie denied that the 9mm handgun had been presented to him with yellow plastic seal confirming that it already had been made and proven safe, eliminating the need for him to do that again.) In the result, D.C. McMurtrie confirmed he had not only directly handled both firearms, (after his handling of all the previous items that had been brought to him), but also had placed both firearms on the uncleaned and unsanitized surface of the dining room table before they were placed in exhibit bags.

j. Following completion of the warrant's execution, and the search and seizure of various items of interest by the police, D.C. Grubb then recorded a "post search" video of the Townsend property residence, documenting the state of the residence and its remaining contents before the police exited the residence for the final time, locking the exterior door behind them.

k. In terms of forensic evidence, relating to the Townsend property residence, and/or particular items located and seized from that residence:

i. As outlined in more detail in the formally agreed and admitted facts, identification Constable Rob Laaper examined the three firearms seized from the Townsend property residence, (i.e., the .22 calibre rifle, the sawed-off shotgun and the 9mm handgun), looking for fingerprints and taking DNA swabs that were sealed and sent to the Centre of Forensic Sciences for forensic analysis.

ii. Pursuant to a warrant authorization obtained by the OPP, Constable Laaper also took individual DNA blood samples from each of Mr Kofman, Mr Jaric and Mr Fonseca, and those too were forwarded to the Centre of Forensic Sciences for forensic analysis.

iii. Constable Laaper's examination of the three firearms detected no fingerprints of sufficient quality for analysis.

iv. It was also formally agreed and admitted that there were no other fingerprints collected from the Townsend property residence that were sufficient for analysis.

v. As for the results of forensic analysis carried out in relation to the aforesaid DNA samples collected from the firearms, and the DNA blood samples collected from Mr Kofman, Mr Jaric and Mr Fonseca:

1. In relation to the Springfield XD 9mm handgun:

a. a swab of the firearm's handle and slide detected DNA from at least two people, (including at least one male), and a male DNA profile that was suitable for purposes of comparison;

b. Leon Kofman could not be excluded as the source of that male DNA profile, with the probability of that profile originating from Mr Kofman estimated to be greater than one trillion times more likely than it originating from some unknown person unrelated to Mr Kofman; and

c. Aleksa Jaric and Luis Fonseca were both excluded as the contributor or source of that male DNA profile.

2. In relation to the Mossberg .22 calibre rifle:

a. a swab of the firearm's pistol grip and foregrip detected DNA mixture from at least three people, including at least one male;

b. Leon Kofman could not be excluded as a contributor to that DNA mixture, with the probability of he and two unknown people having contributed to that mixture estimated to be 62 million times more likely than if the mixture originated from three unknown people unrelated to Mr Kofman;

c. Aleksa Jaric also could not be excluded as a contributor to that DNA mixture, with the probability of he and two unknown people having contributed to that mixture estimated to be 17 times more likely than if they originated from three unknown people unrelated to Mr Jaric; and

d. Luis Fonseca was excluded as a contributor to that DNA mixture.

The Richmond Street Residence

[33] In relation to the Richmond Street residence:

a. The property in question is an urban townhouse-style condominium.

b. The nature and configuration of the residence was depicted and/or described in videos and photographs taken by the police during the course of their warrant execution, as well as diagrams and testimony from officers presented during the course of the trial. Once again, visual representations of the premises obviously can convey complexities and details more completely than words alone. However, by way of overview in that regard:

i. The "front" of the property is situated to the north, where it can be entered through an exterior door for individuals, and through a much larger exterior door permitting vehicle entrance into a two-car garage. The "rear" of the property is situated to the south, where it can be entered through another exterior door.

ii. The residence has three primary levels, consisting of what the police described as a "main floor", an "upper" level above, and a "basement" level below. In that regard:

1. The "main floor" of the condominium, while having closable doors in relation to certain areas, (e.g., to a bathroom and closets), is generally laid out in what might commonly be described as an "open concept" configuration; i.e., whereby various areas of the floor generally open into others without any intervening doors, and sometimes without any intervening walls. However, for purposes of identification, the main floor was notionally divided into individually described and lettered areas, whether or not there were such intervening doors and/or walls. With that caveat in mind, and if one begins on the main floor by entering the north or front door of the residence designed for use by individuals:

a. That exterior door opens into a relatively small entrance area, with a closet, marked as Room "A" by the police for purposes of identification.

b. Located immediately to the east of that Room "A" entrance area, and separated from that entrance area by a closable door, is an adjacent bathroom marked as Room "F" by the police for purposes of identification.

c. Proceeding north from that Room "A" entrance area, one passes the base of an open stairway, (i.e., not equipped with any doorway at its top or bottom, and with its sides consisting of mere railings in some areas, and walls in others), leading to the upper level of the residence.

d. Beyond the base of that open stairwell, and still proceeding north from the Room "A" entrance area, one encounters a large open space, (containing extensive furnishings I will not attempt to list in detail here), with that large open space nevertheless subdivided to some extent by structural elements positioned in the centre of that open space that do not extend from one side of the space to the other. In particular, those centrally positioned structural elements include a central support pillar, connected to what might be described as a "semi-wall" with an east-west alignment, (i.e., a partition wall that extends only from the floor to waist height with an open area above), which in turn connects to a solid floor to ceiling partition wall with a north-south alignment. Proceeding into and around that large and partially subdivided open space in a counter-clockwise manner, one passes through notionally divided areas which the police described and labelled, for identification purposes, as:

i. a living room labelled as Room "B", which includes, on its north side, the entrance to an open stairwell, (positioned immediately below the stairwell mentioned earlier), leading down to the basement of the residence;

ii. a dining room area labelled as Room "C", with a doorway and closable door on its north wall that opens into the garage of the residence, (to which the police did not assign a letter label but simply identified as the "garage"), which contained a single vehicle, with numerous objects piled on and against it, at the time of the warrant's execution;

iii. a kitchen area labelled as Room "D"; and

iv. a seating area labelled as Room "E", which then opens back into the aforesaid living room area labelled as Room "B".

2. As for the "upper" level of the residence:

a. Ascending the stairway leading to the upper level of the residence, one arrives, immediately at the top of that stairwell, at a central landing or "hallway" area, (marked as Room "G" by police for purposes of identification), which has numerous closable doors situated around its various walls, each of which leads to another room.

b. Starting with the doorway immediately to the right at the top of the stairs, and then proceeding in a counter-clockwise manner to the other successive doorways leading off that upper hallway area, one encounters the following:

i. a bedroom which the police labelled for purposes of identification as Room "L", with furnishings including a bed or mattress positioned on or low to the floor, (as well as another mattress on its side leaning up against a wall), a desk with a nearby desk chair on rollers and a small corner table, as well as a walk-in closet;

ii. a bathroom which the police labelled for purposes of identification as Room "K", described by police as a "shared bathroom", apparently because that bathroom, (the only one on the upper level), was accessible via closable doorways from the Room "G" landing but also from the aforesaid bedroom labelled as Room "L";

iii. a laundry room which the police labelled for purposes of identification as Room "J", and an adjacent closet with shelves;

iv. another bedroom described by the police as a "master" bedroom, and which they labelled for purposes of identification as Room "I", with furnishings that included a raised bed, (i.e., one apparently including a frame and not positioned directly on the floor), bedside tables, an upright clothes cupboard or wardrobe, a dresser with a television on top, as well as a walk-in closet; and

v. another room described by the police as a "loft" area, (no doubt because its eastern end is not a solid wall but a railing and otherwise open area which looks out over the living room area below), and which they labelled for purposes of identification as Room "H", with furnishings that included a desk, a chair, shelving units and a large L-shaped "sectional" sofa along the room's eastern railing and southern wall, but with no apparent closet.

3. As for the "basement" area of the residence:

a. Descending the stairway leading from the main floor living room or Room "B" to the basement of the residence, one initially arrives at a small square landing, (labelled by police for purposes of identification as Room "M"), with a closable door immediately on the right that leads into the remaining areas or rooms of the basement.

b. The basement was in a condition commonly described as "unfinished"; e.g., with walls or and/or contemplated walls consisting of exposed concrete, visible insulation and/or studs without any plaster or dry-walling.

c. The various areas of the basement were not sub-divided or separated by doorways of any kind. However, for purposes of identification, police notionally sub-divided, described and labelled the basement as containing three areas, namely:

i. the largest of the three areas, into which the door at the bottom of the stairs opened, which was described by the police as a furnace room and labelled by them for purposes of identification as Room "N", and which contained the furnace, water heater and principal electrical facilities for the residence, and which otherwise could not really be described as "furnished", apart from it containing a number of shelving units, rough tables and desks, a number of which apparently were in storage or being used for storage and/or as work surfaces;

ii. a smaller area located in the southeast corner of the basement, surrounded by white and opaque plastic sheeting extending from floor to ceiling, and across the ceiling, which the police labelled for purposes of identification as Room "O", largely empty at the time of the search warrant's execution and furnished with a single chair, but described by the police as a "growing room", apparently because they drew an inference as to its purpose from the plastic sheeting and what were described by D.C. Nieuwland as a "Clone chart", dehumidifiers and numerous lamp bulbs, as well as a fan, that were still located within that area when the police arrived; and

iii. the smallest of the three basement areas, located in the southwest corner of the basement, (i.e., to the left of the doorway leading into the basement from the bottom of the stairs), which the police labelled for purposes of identification as Room "P" and described as a "laundry" room, although it appeared to contain no laundry appliances and its furnishings were limited to two large washtubs or sinks and a single table in one corner of that unfinished area.

c. I was presented with very little evidence at trial as to who may have been seen entering or leaving the Richmond Street residence at any time prior to police execution of the relevant search warrant. Indeed, the only evidence I received was provided by D.C. Friederichsen, who indicated the following:

i. He participated in police surveillance conducted in relation to Mr Kofman on March 17, 2021; i.e., approximately 7½ months before the police executed their search warrant in relation to the Richmond Street residence on November 3, 2021.

ii. At 11:57am on March 17, 2021, Mr Kofman was observed arriving at the Richmond Street residence in what was said to be "his vehicle", after which he was seen to exit that vehicle and walk into the front door of that residence.

iii. At trial, D.C. Friederichsen presented a series of four photographs taken by him during the course of those described observations, (although the second was simply an enlargement of the first), showing Mr Kofman:

1. stepping out of the driver door of a vehicle parked in the driveway of the Richmond Street residence;

2. starting to close that driver door after he had exited the vehicle; and

3. ascending the steps leading to the front door of the Richmond Street residence.

iv. In the photographs, Mr Kofman is shown from a distance wearing, inter alia, a black t-shirt with writing on the front; i.e., a single word, in cursive written format, that clearly starts with a capital "W", and in its entirety appears to me to read as "Waynsh" or something similar to that.

v. It nevertheless also should be noted that neither the photographs, nor the testimony of D.C. Friederichsen, address the precise manner or circumstances in which Mr Kofman entered through the front door of the residence; i.e., in terms of whether he employed a key or was able to simply open the door without a key, or whether the door was otherwise opened for him.

vi. Finally, in relation to the testimony of D.C. Friederichsen, I note that he made repeated reference to Mr Kofman entering "his residence", or what was said to be "the known residence" of Mr Kofman. However, no evidentiary basis for those conclusory assertions in D.C. Friederichsen's testimony was provided, which in my view is significant, insofar as the nature and extent of Mr Kofman's possible connections with the Richmond Street residence, (if any), were very much at issue during the trial.

d. I also was presented with very little and arguably no meaningful evidence describing how police made entry into the Richmond Street residence to execute their search warrant from the premises. In that regard:

i. D.C. Nieuwland indicated that he was one of the officers who was involved in that entry, entered the residence at 7:00am on the day in question, and was able to embark on his pre-search video recordings of the residence and his taking of photographs, after visible labelling of its rooms with letters, by 7:17am; i.e., from which I infer that any dynamic entry activity by the police must have been relatively brief in duration. (I note in passing that, although D.C. Nieuwland formally labelled the video recording he initially made as an "entry" video, he also confirmed in his testimony that it actually was not a video depicting entry of the police into the Richmond Street residence on the morning in question, but a video taken shortly after the police had completed their entry into the residence as well as their clearing it for any individuals inside, and before any more active search efforts began. I therefore will refer to it hereafter, more accurately I think, as a "pre-search" video.) D.C. Nieuwland also provided a general indication that, during police activity to enter, clear and secure the residence, the police were focused on looking for and securing anyone who might be inside the residence, (i.e., by looking in any areas where such a person might be, and incidentally opening or moving items such as closet doors only to facilitate that limited purpose), without otherwise searching for anything, or moving/opening anything to gain access to areas that could not conceal a person. However, D.C. Nieuwland provided with no express indications of whether or how the police gained access to the residence, or whether, how and to what extent anyone was located inside the residence at the time of the police entry. The most information I received in that regard was D.C. Nieuwland indicating, during presentation of his initial pre-search video, that a female seated in the "seating area" labelled as Room "E", on the main floor, (with a female police officer whom D.C. Nieuwland identified as Sergeant Ryan from the London Police Service standing nearby to the east in the living room area or Room "B", and looking on), was understood by D.C. Nieuwland to be what he described as the "homeowner", although D.C. Nieuwland also indicated and emphasized that he personally never confirmed the woman's identity.

ii. For his part, D.C. Knelsen indicated that the police arrived at the Richmond residence shortly before 7:00am on the day in question, and entered the residence at 7:00am that morning. Beyond that, however, he simply indicated a general memory of going through the home, "to assist with clearing the residence", and noted that he did not actually have any interaction at all "with any of the individuals", (plural), in the residence. He confirmed that his primary role during execution of the relevant search warrant was to act as the exhibit officer; e.g., to make a diagram of the residence and label its rooms accordingly, (which he did shortly after entering the residence, prior to commencement of the pre-search video recording that started at 7:17am), and then assist with the handling, documenting/logging and sealing of seized items of evidentiary value as they were handed over to him, at the work station he set up in the dining room of the residence, by what D.C. Knelsen described as "a lot" of other officers who were participating in execution of the warrant; i.e., without D.C. Knelsen personally going to where the items had been located in situ and taking them from those locations.

iii. In the result, I was left with no indication or confirmation of how many individuals actually may have been located within the residence when the police made entry, where such individuals may have been found, and what was done by police in relation to any such individuals, apart from the limited indication noted above that one female civilian, (whose identity was not specified in any way, and whose status in relation to the residence was not indicated in any way apart from D.C. Nieuwland's understanding, based on apparent unspecified hearsay and admittedly not personally confirmed, was the "homeowner"), was seated in the Room "E" area of the residence approximately 17 minutes after the police made entry.

e. I will not attempt an exhaustive summary of all items seen and/or located within the Richmond Street evidence at the time the police executed their search warrant; i.e., as depicted in the pre-search video recordings made by D.C. Nieuwland, and supplemental descriptions he provided during the course of his testimony. Nor will I embark, for the moment, on more detailed comments concerning the appearance or contents of rooms as depicted or described. However, some preliminary comments in that regard, which will be supplemented by further comments later in these reasons and during the course of my analysis, include the following:

i. Various forms of cannabis, cannabis products and associated measuring and packaging materials were found in a number of locations throughout the residence; i.e., in the living room area labelled as Room "B", in the "loft" room labelled as Room "H", (which D.C. Nieuwland also described as "a bit like an office and sitting room"), in the dining room area labelled as Room "D", and the garage of the residence. The specific nature and quantity of such items is set forth in much more detail below.

ii. In the "loft" or Room "H":

1. Police also located, (as per formally agreed and admitted facts), an admitted "Order list", a digital weigh scale, labels and business cards for "Stoni Cannabis", a money counter, a vacuum sealer, and cannabis packaging. Further details in that regard, supplied via the testimony provided by D.C. Nieuwland and photographs in evidence which he took at the time, include the following:

a. The "Order list" I mentioned took the form of a clipboard with a page on it setting out information in three or four columns, and includes references to what appear to be various names assigned to different types of products, with corresponding handwritten numbers, set forth under or beside headings in bold print that include "Shatter", "Hash", "Syringe", "Edibles", "Pre Rolls", "Grinders", "Vape Pens", "Raw Papers" and "Resin/Diamond/Hash Rosen (sic)", as well as the words "Total Cash Received", and references to a "Driver Name", (with the name "Henry" written beside), "Date" and "Shift".

b. The "Stoni Cannabis" entity or organization, noted on the labels and business cards I mentioned, is described therein as a "Premium Cannabis Delivery Service", guaranteeing such delivery within 60 minutes, with indicated operations based in Hamilton and London.

2. In the course of his testimony, D.C. Nieuwland made reference to other items which he described and referred to in photographs he had taken, which in my view also were in the "loft" or Room "H". In that regard, I note that D.C. Nieuwland was not always asked to specify or clarify the particular room in which such items were found, and/or indicated that he could not recall with certainty while testifying where a particular photograph had been taken, but I found it possible to confirm the relevant discovery location by cross-referencing the depictions of various areas and objects, (including notable underlying or background surfaces), in the photographs, pre-search videos and post-search video created at the time by D.C. Nieuwland. On that basis, I find that additional items, located in the "loft" or Room "H" of the Richmond residence, included the following:

a. On the desk of that room were items that included a "Notice of Trial" addressed to Mr Kofman at the Richmond Street residence address, (advising him that his trial in relation to an alleged Highway Traffic Act offence was scheduled for December 7, 2021), a bundle of currency with a $50.00 bill on top, and an "Xpresspost" parcel addressed to "L. Kofman" at the Richmond Street residence address, with date information on the label apparently indicating that it was posted in Vancouver, British Columbia, on "2021.10.27", (i.e., October 27, 2021), as well as applied stamp information referring to Vancouver and "2021".

b. On the floor of that room were numerous items including, (beyond the cannabis and cannabis products noted earlier and described in more detail below), a hard closable plastic case, (which D.C. Nieuwland described as a "Pelican case"), bearing the word "Waynsh", in the same cursive format that appeared on the t-shirt Mr Kofman was wearing when he was seen entering the residence during the surveillance carried out by D.C. Friederichsen on March 17, 2021.

iii. Although it was not expressly addressed by D.C. Nieuwland during the course of his testimony, or otherwise commented upon at trial, I independently noted the existence of some form of wall hanging, mounted at eye level on the relatively small wall between the dining room and the top of the stairs leading down to the basement of the residence, saying "The Kofmans, EST 2013".

f. In terms of forensic evidence, relating to the Richmond Street residence, and/or particular items located and seized from the Richmond Street residence:

i. It was formally agreed and admitted that there were no fingerprints collected from the Richmond Street residence that were sufficient for analysis.

ii. I was presented with no DNA evidence whatsoever relating to the Richmond Street residence or any items located therein. Without limiting the generality of the foregoing, there was no evidence to indicate that any efforts were made to collect any DNA samples from any items found in that residence.

Consideration of Particular Charges Against the Accused

[34] With all of the above matters in mind, I turn, finally, to a more detailed consideration of the particular charges advanced against Mr Kofman in the remaining counts of the indictment, and whether or not Mr Kofman's guilt in relation to each of those charges has been established beyond a reasonable doubt.

[35] The specifics of those charges, as set forth in the indictment, already have been noted earlier, along with the essential elements that must be established beyond a reasonable doubt in relation to each charged offence for the Crown to secure a conviction in that regard.

[36] I will address each of the remaining counts in turn.

COUNT 1

[37] As noted above, Count 1 of the indictment charges Mr Kofman with unlawful possession of cannabis for the purpose of distribution, contrary to s.9(2) of the Cannabis Act. All concerned were agreed that the reference in Count 1 to the alleged offence having taken place "at the County of Norfolk" signified that this count referred to the cannabis and cannabis products that were located by police during their execution, on November 3, 2021, of the Cannabis Act search warrant relating to the residence at the relevant Townsend property.

[38] The presence of very substantial quantities of cannabis and/or cannabis products within that Townsend residence, at the time of the search warrant's execution on November 3, 2021, clearly has been established beyond any reasonable doubt. Without limiting the generality of the foregoing:

a. Pursuant to sub-paragraph 4(b) of the first Agreed Statement of Facts, (marked as Exhibit 1 in the trial), it was formally admitted and agreed that the following quantities of cannabis and/or cannabis products were located by police at the following locations within the Townsend residence:

i. In the living room on the main floor of the residence, (labelled by police as Room "E" for purposes of their search), the police located, inter alia, on the coffee table of that room, 40 jars of cannabis distillate, with each jar containing 206 grams of that cannabis product, such that the 40 jars contained a total 8.2 kilograms of that cannabis product.

ii. In the dining room on the main floor of the residence, (labelled by police as Room "D" for purposes of their search), the police located, inter alia:

1. four ziplock bags containing a total of 1 kilogram of cannabis;

2. two pizza boxes, sitting on a TV stand, containing a total of 2.55 kilograms of cannabis resin in sheets;

3. a shoebox containing four jars, each containing 400 grams of cannabis resin, or a total of 1.6 kilograms of cannabis resin; and

4. a backpack with one large ziplock bag containing 300 grams of dried cannabis;

iii. In the kitchen on the main floor of the residence, (labelled by police as Room "B" for purposes of their search), the police located, inter alia:

1. a box containing 2.85 kilograms of cannabis resin, which had been placed in a freezer;

2. a further 41 kilograms of cannabis resin, placed in the same freezer;

3. a bag containing 100 grams of dried cannabis, found on the kitchen table; and

4. two vacuum packs containing a total of 900 grams of dried cannabis, located on a pantry shelf.

iv. In the storage room on the main floor of the residence, (labelled by police as Room "C") for purposes of their search, the police located, inter alia:

1. two bags containing a total of 3.5 kilograms of cannabis shatter, in the form of 1 gram patches;

2. a glass jar containing 50 grams of brown cannabis resin;

3. another glass jar containing 250 grams of yellow cannabis resin; and

4. a box containing 40 jars, with each containing 206 grams of cannabis resin, or a total 8.2 kilograms of cannabis resin.

v. In the northwest bedroom on the second floor of the residence, (labelled by police as Room "L" for purposes of their search), the police located, inter alia:

1. a bag containing 450 grams of cannabis and labelled "COG";

2. another bag containing 450 grams of cannabis and labelled "WC"; and

3. a ziplock bag containing 10 grams of cannabis;

vi. In the basement furnace room of the residence, (labelled by police as Room "N" for purposes of their search), the police located, inter alia:

1. two ziplock bags of cannabis resin, including 250 additional one gram "patches" of such resin; and

2. two further ziplock bags containing a total 1.45 kilograms of blue packaged "cookie" cannabis shatter.

vii. It was formally admitted and agreed that the total quantities of cannabis and/or cannabis products seized from the relevant Townsend residence were as follows:

1. 3.21 kilograms of dried cannabis;

2. 4.95 kilograms of cannabis shatter; and

3. 23.991 kilograms of cannabis oil/resin.

b. Pursuant to sub-paragraph 4(b) of the initial Agreed Statement of Facts marked as Exhibit 1, and sub-paragraph1(b) of the second or supplemental Agreed Statement of Facts marked as Exhibit 17 in the trial, it was also formally admitted and agreed that the various forms of cannabis and cannabis products located within and seized from the Townsend residence had the following total quantities and corresponding approximate values:

i. the located and seized dried cannabis, with a total mass of 3.21 kilograms, valued at $660.00 to $2,400.00 per kilogram, had a corresponding total value of $2,118.00 to $7,704;

ii. the located and seized cannabis "shatter", with a total mass of 4.95 kilograms, valued at $3.00 to $20.00 per gram, had a corresponding total value of $14,850.00 to $99,000.00;

iii. the located and seized cannabis oil/resin, with a total mass of 23.991 kilograms, had a value $24,000.00 to $60,000.00, if sold at the kilogram level for $1,000.00 to $2,500.00 per kilogram, or $239,910.00 to $479,820.00, if sold at the gram level for $10.00 to $20.00 per gram.

[39] In my view, the Crown also established, beyond a reasonable doubt, that if Mr Kofman was in possession of those very substantial quantities of cannabis and/or cannabis products, located within that Townsend residence, he possessed them for the purpose of distribution. Without limiting the generality of the foregoing:

a. The offence created by s.9(2) of the Cannabis Act reads as follows: "Unless authorized under this Act, it is prohibited to possess cannabis for the purpose of distributing it contrary to subsection (1)".

b. Amongst the various prohibitions created by s.9(1) of the Cannabis Act is a prohibition whereby, pursuant to s.9(1)(a)(i) of the legislation, it is prohibited for an individual who is 18 years of age or older "to distribute cannabis of one or more classes the total amount of which is equivalent, as determined in accordance with Schedule 3, to more than 30 grams of dried cannabis", unless the individual is authorized under the Cannabis Act to do so. Schedule 3 of the Cannabis Act provides a table, setting forth the "Equivalent Amounts" of various classes of cannabis, (including but not limited to "solids containing cannabis", "non-solids containing cannabis, other than cannabis beverages", and "cannabis concentrates"), deemed to be equivalent to 1 gram of dried cannabis. For example, 15 grams of solids containing cannabis, 70 grams of non-solids containing cannabis other than cannabis beverages, and .25 grams of cannabis concentrates, (such as cannabis resins), are each deemed to be equivalent to 1 gram of dried cannabis.

c. As of November 3, 2021, Mr Kofman was well over the age of 18, (having regard to the date of birth information indicated on his driver's licence, found within the wallet of Mr Kofman when it was located in the Townsend residence at the time of the relevant search warrant's execution), and having regard to s.50(2) of the Cannabis Act, I also note that there was no evidence to indicate or even suggest that Mr Kofman had any authorization under the Cannabis Act to distribute cannabis or cannabis products in a manner that would otherwise contravene s.9(2) of the Cannabis Act without such an authorization.

d. Pursuant to s.2(1) of the Cannabis Act, the term "distribute" is defined such that it "includes administering, giving, transferring, transporting, sending, delivering, providing or otherwise making available in any manner, whether directly or indirectly, and offering to distribute". The term "distributing", as employed by Parliament within the offence created by s.9(2) of the Cannabis Act, therefore obviously has a corresponding meaning.

e. I note that the formal admissions set forth in the initial and second or supplemental Agreed Statement of Facts, filed as Exhibits 1 and 17 in the trial, include no formal agreement or admission that the cannabis and/or cannabis products located within the Townsend residence were possessed, (if possessed at all), for the purpose of distributing it or them, within the meaning of Cannabis Act and the offence created by s.9(2) of the legislation. Nor was I presented with any expert opinion evidence in that regard. However:

i. In my view, a trier's ability to find possession of cannabis for the purpose of distribution proven beyond a reasonable doubt is no more dependent on expert opinion evidence than a trier's confirmed ability to find possession of controlled substances for the purpose of trafficking proven beyond a reasonable without such expert opinion evidence. As we routinely tell our criminal juries, expert opinion evidence sometimes may help a trier decide a case, but such opinion evidence is neither required nor decisive in relation to any issue the trier alone must decide.

ii. In this particular case, I do not regard the factual determination to be made as to whether the cannabis and cannabis products located by police within the Townsend residence were possessed if at all for the purpose of distribution to be one requiring expert evidence. To the contrary, I think possession of that cannabis and those cannabis products for the purpose of distribution is the only sensible and rational conclusion when one has collective regard to the following:

1. The total volume of cannabis and cannabis related products found in the Townsend residence, (i.e., 3,210 grams of dried cannabis per se, 4,950 grams of solid cannabis shatter or the equivalent of a further 330 grams of dried cannabis pursuant to the Schedule 3 equivalence table, and 23.991 kilograms of cannabis concentrate in the form of cannabis oil or resin or the equivalent of a further 95,964 grams of dried cannabis pursuant to the Schedule 3 equivalence table), far exceeds, on any sensible view I think, the amount of cannabis and cannabis products that one individual, or even three individuals for that matter, might reasonably be expected to have on hand for their own intended personal use or consumption.

2. The total value of that cannabis and those cannabis related products, ($40,968.00 to $547,524.00), clearly represents a substantial asset; an asset that all but the most affluent of Canadians inherently seem very unlikely to possess in a manner intended entirely for personal use or consumption. Possession of such an asset in contemplation of redistribution of all or part of that cannabis and those cannabis related products to others, in exchange for some form of compensation, seems a far more sensible conclusion.

3. In this particular case, much of that cannabis and those cannabis related products already had been subdivided and packaged into smaller and easily transferrable amounts and containers, (i.e., via ziplock bags, patches and jars), all of which would have been unnecessary if all of that cannabis and all of those cannabis products had been intended for personal use or consumption.

4. Additional items found in the residence included further substantial packaging material and a digital scale, all of which reinforce an inference that the cannabis and cannabis products found in the house were being carefully subdivided and packaged into measured amounts for the purpose of making them available to third parties, as personal use and consumption would not require such subdivision and packaging efforts.

[40] As already noted, there was no evidence to indicate or even suggest that Mr Kofman had any authorization under the Cannabis Act to distribute cannabis or cannabis products in a manner that would otherwise contravene s.9(2) of the Act. Pursuant to s.50(2) of the Cannabis Act, if Mr Kofman possessed the cannabis and cannabis products located in the Townsend residence for the purpose of distribution, it accordingly also has been established beyond a reasonable doubt that he did so unlawfully.

[41] In my view, the Crown's case against Mr Kofman, in relation to Count 1 of the indictment, nevertheless founders when it comes to proving beyond a reasonable doubt that Mr Kofman possessed the cannabis and cannabis products found within the relevant Townsend residence. In that regard:

a. Among the many considerations that have been factored into my cumulative assessment of the presented evidence and lack of evidence were the following:

i. There was no direct evidence, (in the form of any admission or witness testimony), indicating affirmatively that Mr Kofman knew about any of items in the Townsend property residence giving rise to the charges against him, including the cannabis and cannabis products underlying Count 1 of the indictment.

ii. I was presented with no evidence whatsoever to indicate ownership of the residence, or the existence or absence of any tenancy or rental agreements relating to the residence; e.g., to indicate directly or indirectly the individual or individuals who may have been in a position to control what items were permitted into the residence, or allowed to remain there. Evidence relating to ownership of the property, (e.g., through a search of the publicly available land title registry), inherently was something that would have been easy for the Crown to obtain, but nothing in that regard was presented in evidence at trial.

iii. There was no documentary evidence of any other government registry or documentation suggesting any connection between Mr Kofman and the Townsend property or the residence located there. Indeed, the only documentary evidence presented that indicated an address for Mr Kofman, (i.e., his driver's licence, albeit dated though not expired), indicated that he was resident elsewhere; i.e., at the Richmond Street address. All of the other documentation located at the Townsend property address, (the cheque and banking receipts), were found in Mr Kofman's wallet; an item that he obviously was likely to keep in his personal possession wherever he went, even for a very short-term visit or stay.

iv. I also was presented with no evidence whatsoever to indicate, through police surveillance or otherwise, the observed presence of any individuals at the Townsend property, (let alone entering, leaving or moving within the residence there), at any time before the police arrived there on the morning of November 3, 2021. Without limiting the generality of the foregoing, there was nothing to indicate that Mr Kofman had ever been seen or noted at the Townsend property prior to his being located within the residence there on the morning of November 3, 2021.

v. Nor was there any evidence whatsoever to indicate the length of time Mr Kofman may have been in the residence when he was discovered there by police on the morning of November 3, 2021, or the time of day at which he may arrived there; a factor which has relevance to what the lighting conditions possibly may or may not have been like to facilitate Mr Kofman's making of observations within the residence, during the unknown duration of his presence there before he was found inside by the police on the morning in question.

vi. As noted above, the residence had three exterior doors capable of being used to enter or leave the residence; i.e., a door at the north or front side of the residence opening into its dining room, or Room "D", a door at the rear or south side of the residence opening into its mud room, or Room "A", and a door at the west side of the house opening into its storage room, or Room "C". As described in the testimony I received, and in the pre-search and post-search video recordings made by D.C. Grubb, the exterior doors opening into the mud room and store room of the residence were equipped with locks and capable of being locked, and I think it reasonable to infer that the exterior door at the front of the residence opening into its dining room therefore would have been equipped with a functional locking mechanism as well. However, although the post search video prepared by D.C. Grubb indicates and demonstrates that the police somehow had located or obtained keys to the residence capable of opening and locking at least the exterior door on the west side of the residence, I was presented with no evidence whatsoever to indicate where or how such keys may have been located or obtained, or from whom. In other words, there was no evidence whatsoever to indicate that Mr Kofman, (or either of the other two individuals found in the residence for that matter), was found in possession of any key or keys to the residence.

vii. While the cannabis and cannabis products underlying Count 1 had considerable value, in my view the isolated rural character of the residence at the Townsend property, and the considerable volume of such cannabis items stored there, makes it unlikely that those with long term occupation and control of the premises and those cannabis items would have had any serious concerns about leaving such items unattended or in the possible control of someone unaware of their presence or value. In particular, in my view the circumstances were such that those with long term occupation and control of the residence, and the cannabis items it contained, were unlikely to have had any serious concerns about a short-term guest or visitor, certain to be someone known to such persons, but with no awareness of those cannabis items, making off with those items in an undetected manner.

viii. The cannabis and cannabis product items underlying Count 1 clearly were present in the residence while Mr Kofman was there at the time of the search warrant's execution, and I think it likely that they, or similar items they replaced on a revolving basis, (i.e., while such items progressively were distributed and then replaced), would have been present in the residence for some time; i.e., owing to the volume, nature and distribution of those items in various areas of the residence. In other words, it seems unlikely that the bulk of such items would have arrived at the residence suddenly and in short order.

ix. While I think it likely that anyone staying in the residence for an extended period therefore likely would have noticed cannabis or cannabis-products located in common areas of the residence such as the kitchen, dining room and living room to the extent such items were not enclosed in opaque boxes or containers, and/or that such a person inevitably would have exhibited curiosity about the contents of large boxes or other containers left in such common areas, (e.g., such as the box located on the coffee table in the living room), I do not think that necessarily would have occurred in relation to a short-term visitor or guest. For example, the variety of external doors capable of being used to enter the residence, and the absence of any evidence indicating the precise movements of Mr Kofman within the residence prior to arrival of the police on the morning of November 3, 2021, makes it entirely possible for Mr Kofman to have entered the residence, and to have proceeded upstairs to its master bedroom or Room "H" and remained there, without ever having set foot in various rooms of the residence where seized items of interest were located, (such as the storage room, the living room, the northeast bedroom, the northwest bedroom, the sun room, the western bedroom or its closet, or the basement), and to have spent little or no time making observations as he passed from the rear or southern exterior door through the kitchen and southwest corner of the dining room towards the door opening to the stairway leading to the upper level of the residence and the master bedroom.

x. I was presented with no evidence to indicate whether doors to various rooms within the residence were opened or closed when the police made their entry and began their efforts to clear and secure the residence. In that regard, the interior doors visible within the residence were all open during the pre-search video, recorded after the police had entered, cleared and secured the residence. However, think it reasonable to infer that any doors closed at the time of police entering the residence would have been opened by them during their efforts to look through each and every one of its rooms to ensure they had located and secured any individuals who might have been present. In the circumstances, it is entirely possible that interior doors to various rooms within the residence where items of interest were located and secured, (e.g., the basement, living room, northwest bedroom, northeast bedroom, sun room, and the west bedroom and its closet), were closed to Mr Kofman and not opened by or for him over the entire unknown duration of his time within the residence prior to his being found there by the police on the morning of November 3, 2021.

xi. In my view, it also needs to be noted and emphasized that, even if one entered rooms of the Townsend property residence where cannabis and cannabis-related products were located, many of those items were not readily visible, or the presented evidence in relation to such matters was sometimes unclear. In that regard, D.S. Knoll testified that, when he was clearing the residence, he saw bags containing what he believed to be "miscellaneous dried cannabis" in the kitchen, living room and dining room areas. However, much (although not all) of the cannabis and cannabis-related product and packaging was situated within closed and opaque boxes, bags and/or other containers and enclosures, (e.g., cupboards and a freezer), which had to be opened or otherwise actively accessed and examined to ascertain their contents, or the evidence about whether such opening and examination was required was unclear. For example:

1. D.C. Bell testified that a brown cardboard box containing cannabis oil or resin, located on the coffee table of the living room, was in plain view, but did not indicate whether or not that box, when located by police, was closed or open such that its contents also may have been in plain view.

2. As noted by D.C. Adach, and confirmed in the scene photographs, the large cardboard box on the living room coffee table containing 40 jars of cannabis distillate had a lid, and the pizza boxes, shoebox and backpack found in the dining room similarly had to be opened and otherwise examined and explored more closely before it was confirmed that they respectively contained cannabis resin in sheets, additional jars of cannabis resin, and a large ziplock bag containing dried cannabis.

3. When testifying about the "large cardboard tray" or box containing 40 glass jars of cannabis resin located in the main floor storage room or Room "C", D.S. Knoll admittedly could not recall whether the large lid for that tray or box, clearly visible in the photos taken by D.C. Grubb, was open or closed when the box was discovered, although he believed it may have been open. He nevertheless recalled that the thousands of individually wrapped packages of cannabis "shatter", discovered within the same storage room or Room "C", had been located within a "tied up plastic bag", within a cardboard box he believed to have been open at the time of its discovery; i.e., as reflected in a photograph taken by D.C. Grubb, showing a number of items, including a large transparent bag with such patches inside, sitting in a cardboard box with the four folding box covers open.

4. D.C. Craig simply could not recall whether or not the red duffle bag found in Room "K", in which he located the gun holster and other narcotics, had been open or closed.

5. As noted and emphasized by D.C. Grubb, by the time he photographed such items, many already necessarily had been opened by other officers searching the residence to ascertain their contents, and D.C. Grubb then did so again for the purpose of taking his photographs.

xii. I agree with the submissions of counsel for the defence that the presented evidence, (and the pre-search video recording made by D.C. Grubb in particular), makes it clear that the northeast and northwest bedrooms of the residence, (the ones closest to the only upstairs bathroom), contained significantly more indications of "entrenchment" or longer-term occupation compared to the master bedroom of the residence. In that regard, and without limiting the generality of the foregoing:

1. The northeast bedroom in which Mr Fonseca was located had a bed with a mattress and boxspring sitting above the floor on a raised frame and legs of some kind, as well as additional furniture beyond that bed in the form of a dresser, chair and bedside table. The bedroom also had curtains, wall mounted artwork, a wall mounted television or screen, a wall-mounted full-length mirror, a wall-mounted shelf filled with neatly arranged items, and numerous items of clothing, including hats, jackets and other items hanging from hooks mounted in the walls, as well as many other items of clothing scattered around the room's furniture and floor.

2. The northwest bedroom in which Mr Jaric was located also had a bed with a mattress and boxspring raised off the floor by a frame and legs of some kind, as well as additional furniture beyond that bed in the form of a couch, a chair, a corner table, a desk, and a bedside table, the latter of which was covered with numerous personal items, including an object resembling a clock radio. The room also had a doorless closet space with transparent plastic drawers containing clothing, as well as numerous other items of clothing scattered around the room on the furniture and on the floor, including a pair of ice skates. There are objects resembling speakers on a small wall-mounted shelf in an upper corner of the room and on the room's desk. Someone also clearly seems to have been maintaining a pet cat in the room while occupying it, insofar as the room contains a litter box, a box of cat litter and a small entry into the base of the bedroom's door to allow a cat to enter or leave the room despite someone having closed the door; a measure that would have been unnecessary had the door to that bedroom always been left open, in a manner consistent with its not being regularly occupied.

3. In contrast, the master bedroom of the residence (or Room "H") in which Mr Kofman was initially seen by police appears much more spartan and less entrenched or cluttered with items. For example:

a. Nothing whatsoever was mounted on the walls of the master bedroom, and it had no curtains.

b. Its bed, such as it was, took the form of two differently-sized mattresses, with the smaller one piled on top of the larger one, with that pile being directly on the bedroom's floor.

c. The bedroom contained no other furnishings whatsoever, apart from some large open shelves built into the wall behind the apparent "head" of the bed, a few small closable drawers built into the upper area of the wall opposite the foot of the bed, and a small closable cupboard built into the upper area of the wall immediately to the right as one entered the room from the upper landing or "media loft" area of the residence.

d. The six larger shelves built into the wall area at the head of the "bed" were all completely open to view, as were the three smaller shelves built into the high wall area to the right of those six larger shelves and reached via a small step ladder consisting of four steps. Much of that extensive open shelving nevertheless was devoid of items, or occupied by items so limited in number and separated from each other such that their nature generally was discernable, unless the room was in darkness. Those items included:

i. at the far left of one of the large built-in wall shelves, (the third from the top), the box of 9mm ammunition mentioned earlier; and

ii. on the large shelf below that, (i.e., the fourth from the top), in an area further to the right and slightly above the level of the top mattress, Mr Kofman's wallet, which had been placed next to various coins, a lighter and what appears to be a small dark plastic bottle of some kind – which in my view are items largely consistent with someone having simply emptied his or her pockets and placing them by a bed before going to sleep.

e. I was presented with little or no evidence as to what (if anything) may have been contained within the three relatively small drawers built high into the wall opposite the foot of the "bed", (with drawers that were slid into the wall and closed at the time of the video), and a small hinged cupboard of some kind located half way up the wall immediately to the right when one entered the room, (also closed at the time of the video), apart from the testimony of D.C. Latimer indicating that she opened and searched those compartments and found nothing of interest.

f. In contrast to the other two bedrooms, few items of clothing were visible around the master bedroom; i.e., with only a few visible items situated on or immediately beside the bed, and what may have been a few of items of additional clothing and/or extra bedsheets placed elsewhere along the open shelves above the head of the bed.

g. In short, the presented evidence of what was found in the master bedroom does not provide much support for suggestions that anyone was exercising any extended occupation or control over the master bedroom. The evidence of what was found there, in my view, seems more consistent with someone using that bedroom as a short-term guest or visitor to the residence.

h. Moreover, with the exception of the box of 9mm ammunition located on the shelf above the head of the bed in the master bedroom, (addressed in more detail in relation to Count 5 of the indictment, and thereby indirectly in relation to Counts 8 and 9 of the indictment), nothing located in the master bedroom itself suggests that the occupant of that room was more likely to be aware of related objects found elsewhere in the residence.

i. On a related note, Mr Kofman was not in immediate proximity to any of the cannabis underlying the charge in Count of the indictment when he was first located by police, visually at least, when the police arrived at the property. In particular, there was no cannabis found in the master bedroom, where Mr Kofman was first observed on the morning in question. Nor was there any cannabis or cannabis product per se in either of the two rooms immediately adjacent to the master bedroom; i.e., in the sunroom or west bedroom. While Mr Kofman had descended into the dining room when he was physically apprehended by the police, and there was cannabis located in that dining room, the configuration of the house and the location of its stairway between the upper level and main floor effectively obliged Mr Kofman to pass through a corner of the dining room if he had any reason to descend from the master bedroom to the main floor; e.g., a reason such as proceeding towards the rear exterior door of the residence to unlock and open that door, in response to the ongoing demands being made in that regard by the police.

4. While a relatively minor point, I also note that video depicting the contents of the upstairs bathroom, (the only one immediately available to anyone occupying the bedrooms on the upper floor of the residence), indicates the presence, on the only countertop surrounding the sink of that bathroom, of only two toothbrushes, (both electric and plugged in), and two tubes of toothpaste. Of course, such observations do not negate the possibility of a third person keeping a toothbrush elsewhere, or simply not making regular use of any toothbrush. In my view, however, it offers at least some further evidence to suggest that there were only two occupants using the upstairs bedrooms of the residence on a regular basis.

5. More generally, I agree with defence counsel's submission that such matters allow for a reasonable possibility and inference that the residence at the Townsend property was being occupied primarily by two individuals, using the northeast and northwest bedrooms as their respective sleeping and changing areas, while the master bedroom was being used by someone staying there on a much more temporary basis. For reasons already noted, I think it reasonable to infer that the two individuals primarily occupying the residence and sleeping in the northeast and northwest bedrooms were Mr Fonseca and Mr Jaric, respectively, while the more temporary occupant sleeping in the master bedroom was Mr Kofman.

xiii. There were, in any event, at least two individuals other than Mr Kofman found in the Townsend property residence who may have had responsibility for placement of items found therein. Beyond those two individuals, shipping labels on the exterior of boxes located in the basement furnace room of the residence next to the water heater there, (i.e., boxes containing material thought to be intended for the packaging of cannabis products), indicated that they had been shipped to "John McClure", at "1500-71 (sic) Richmond Street", in London, Ontario, and/or to "McClure Landscaping" in London, Ontario. As emphasized by Crown counsel, the "1500-71 Richmond Street" address may be a simple transposition of the address information for "71-1500 Richmond Street", the other property said to be associated with Mr Kofman, thereby providing evidence to support an inference that Mr Kofman was depositing cannabis-related items at the Townsend property residence, in turn suggesting knowledge and a measure of control in that regard. However, I received no evidence whatsoever to indicate whether or not "John McClure" was a real or fictitious person, and/or whether or not "McClure Landscaping" was a real or fictitious business. As it stands, such ambiguous evidence indicates the possibility of one or more additional individuals who may have been depositing cannabis-related items at the Townsend property residence.

xiv. Apart from the physical evidence located in the Townsend property residence, and Mr Kofman's presence there at the time of the search warrant's execution, there was no other evidence presented at trial, (e.g., in the nature of police surveillance indicating activity relating to illicit cannabis or witness testimony in that regard), to indicate that Mr Kofman was actively engaged in or aware of such activities. In that regard, it should also be noted that there was no similar fact application made or granted in this case to permit consideration of evidence underlying Counts 2 and 3 of the indictment to any other counts of the indictment.

xv. In my view, the evidence concerning Mr Kofman's conduct in the wake of police arrival at the Townsend property involved nothing unambiguously suggesting any awareness that something unlawful was present in the residence. While he did not descend immediately to the main floor to unlock and open the exterior door of the residence for the police, despite knowing the police were there, he also made no apparent effort to flee the premises, (i.e., descending to the main floor of the residence dressed only in underwear), and arguably may have been proceeding from the master bedroom to the rear door of the residence to unlock it when the police made their forced entry and encountered Mr Kofman at the base of the stairway leading down from the upper level.

xvi. There was no forensic evidence, (e.g., fingerprint or DNA evidence), to suggest any connection between Mr Kofman to the items underlying Count 1 of the indictment.

b. The circumstances presented in evidence at trial certainly give rise to legitimate suspicion that Mr Kofman was someone who likely knew that cannabis and/or cannabis product were located within the Townsend property residence. At the very least, someone entering the residence through its rear entrance in daylight, (enabling a view of the cannabis growing in the fields behind the residence), or staying in the residence for any significant period of time, seems likely to have encountered and observed visible cannabis, seen others moving and opening containers thereby shown to have contained cannabis, and/or exhibited a natural curiosity about the contents of boxes and other containers in various areas around the house prompting investigation and/or inquiries made to those who may have been in principal occupation or control of the premises and its contents underlying Count 1 of the indictment. There is also no evidence clearly negating the possibility that Mr Kofman was one of those persons.

c. However, Mr Kofman obviously has no obligation to prove his innocence and, in a case entirely dependent on circumstantial evidence, a finding of guilt in relation to Count 1 of the indictment would require a finding that Mr Kofman's knowledge and control over the items underlying Count 1 of the indictment is the only rational inference to be drawn from the evidence as a whole. In my view, that is simply not the case here, based on my cumulative assessment of the evidence presented at trial.

d. Without limiting the generality of the foregoing:

i. To employ a phrase that seems to be used increasingly by judges dealing with such issues, in my view there are simply too many relevant but significant questions in this case that have not been or can not be answered, including but not limited to:

1. who had legal ownership and control of the Townsend property, or otherwise exerted effective control over who was permitted to enter the residence, and what items could be brought into its residence and/or left there;

2. who was predominantly or consistently present at the property's residence, and/or actively engaged in the cannabis-related activity being conducted there;

3. the extent, (if any), to which Mr Kofman had been to the residence before the night he apparently spent there immediately prior to the police arriving to execute the search warrant;

4. the extent, (if any), to which Mr Kofman had actually been to any areas of the residence where cannabis or cannabis products were located, seen such items, or otherwise knew of their existence; and

5. the extent, (if any), to which Mr Kofman had any measure of control in relation to such items, even if he had no control over the residence as a whole.

ii. In my view, the evidence presented at trial allows for a reasonable alternative to Mr Kofman having the requisite knowledge and control, in relation to the items underling Count 1 of the indictment, to establish his constructive or joint possession over those items beyond a reasonable doubt. In particular, I think it entirely reasonable to suggest that the evidence is consistent with Mr Kofman simply being a short-term overnight visitor or guest to the residence, who may have been attending there for the first time, without any familiarity with the premises or awareness of the Count 1 items located therein, and/or without any control whatsoever over those items even if he knew they were there.

iii. In short, based on my cumulative assessment of the evidence presented at trial, I have a reasonable doubt as to whether Mr Kofman was in possession of the items underlying the charge in Count 1 of the indictment.

[42] As the Crown has failed to establish the essential element of possession required for the s.9(2) Cannabis Act offence charged in Count 1 beyond a reasonable doubt, there will be a finding of not guilty in relation to Count 1 of the indictment.

COUNT 2

[43] As noted above, Count 2 of the indictment also charges Mr Kofman with unlawful possession of cannabis for the purpose of distribution, contrary to s.9(2) of the Cannabis Act. All concerned were agreed that the reference in Count 2 to the alleged offence having taken place "at the City of London" signified that this count referred to the cannabis and cannabis products that were located by police during their execution, on November 3, 2021, of the Cannabis Act search warrant relating to the residence at the relevant condominium property located on Richmond Street here in the city of London.

[44] The presence of very substantial quantities of cannabis and/or cannabis products within that Richmond Street residence, at the time of the search warrant's execution on November 3, 2021, clearly has been established beyond any reasonable doubt. Without limiting the generality of the foregoing:

a. Pursuant to sub-paragraph 4(a) of the first Agreed Statement of Facts, (marked as Exhibit 1 in the trial), it was formally admitted and agreed that the following quantities of cannabis and/or cannabis products were located by police at the following locations within the Richmond Street residence:

i. In the living room of the residence, (labelled by police as Room "B" for purposes of their search), the police located, inter alia, 10 bags containing, in total, 4.5 kilograms of vacuum sealed cannabis bud.

ii. In what was described as the "loft" area of the residence, (labelled by police as Room "H" for purposes of their search), the police located, inter alia:

1. 34 eight-ounce jars of cannabis concentrate, found on the floor;

2. nine ten-ounce jars of cannabis extract;

3. 23 four-ounce jars of cannabis concentrate;

4. two bags found on the floor containing, in total, 0.6 kilograms of marihuana bud; and

5. a further two bags found on the office chair containing, in total, an additional 0.8 kilograms of marihuana bud.

iii. In the dining room of the residence, (labelled by police as Room "D" for purposes of their search), the police located, inter alia, three bags containing a total 1 kilogram of marihuana bud.

iv. In the garage of the residence, the police located two pizza boxes, (found on top of the vehicle parked in the garage, along with many other items piled on top of or up against that vehicle), with those boxes containing, in total, 1.15 kilograms of cannabis shatter.

v. It was agreed that the total quantities of cannabis and/or cannabis products seized from the relevant Richmond Street residence were as follows:

1. 6.9 kilograms of dried cannabis;

2. 1.15 kilograms of cannabis shatter; and

3. 12.955 kilograms of cannabis oil/resin.

b. Pursuant to sub-paragraph 4(a) of the initial Agreed Statement of Facts marked as Exhibit 1, and sub-paragraph1(a) of the second or supplemental Agreed Statement of Facts marked as Exhibit 17 in the trial, it was also formally admitted and agreed that the various forms of cannabis and cannabis products located within and seized from the Richmond Street residence had the following total quantities and corresponding approximate values:

i. the located and seized dried cannabis, with a total mass of 6.9 kilograms, valued at $660.00 to $2,400.00 per kilogram, had a corresponding total value of $4,554.00 to $16,560.00;

ii. the located and seized cannabis "shatter", with a total mass of 1.15 kilograms, valued at $3.00 to $20.00 per gram, had a corresponding total value of $3,450.00 to $23,000.00; and

iii. the located and seized cannabis oil/resin, with a total mass of 12.995 kilograms, had a value $13,000.00 to $32,500.00, if sold at the kilogram level for $1,000.00 to $2,500.00 per kilogram, or $129,550.00 to $259,100, if sold at the gram level for $10.00 to $20.00 per gram.

[45] In my view, the Crown also established, beyond a reasonable doubt, that if Mr Kofman was in possession of those very substantial quantities of cannabis and/or cannabis products, located within that Richmond Street residence, he possessed them unlawfully for the purpose of distribution. Without limiting the generality of the foregoing:

a. As noted above, in relation to Count 1 of the indictment, at all material times Mr Kofman was well over the age of 18, and having regard to s.50(2) of the Cannabis Act, there was no evidence to indicate or even suggest that Mr Kofman had any authorization under the Cannabis Act to distribute cannabis or cannabis products in a manner that would otherwise contravene s.9(2) of the Cannabis Act without such an authorization. It accordingly would have been prohibited for Mr Kofman to distribute the equivalent of more than 30 grams of dried cannabis of one or more classes to anyone 18 years of age of older.

b. While the formal admissions set forth in the initial and second or supplemental Agreed Statement of Facts include no formal agreement or admission that the cannabis and cannabis products located within the Richmond Street residence were possessed (if possessed at all) for the purpose of distribution, and I was presented with no expert evidence in that regard, in my view, (based on the reasons I outlined earlier in relation to Count 1), the latter consideration does not prevent me from finding, beyond a reasonable doubt, in appropriate circumstances, that particular cannabis and cannabis products were possessed, (if possessed at all), for the purpose of distribution.

c. In my view, such a finding is appropriate in this particular case, in relation to the cannabis and cannabis products found by police in the relevant Richmond Street residence, when one collectively considers matters that include the following:

i. The total volume of cannabis and cannabis related products found in the Richmond Street residence, (i.e., 6,900 grams of dried cannabis per se, 1,150 grams of solid cannabis shatter or the equivalent of a further 76.67 grams of dried cannabis pursuant to the Schedule 3 equivalence table, and 12,955 grams of cannabis concentrate in the form of cannabis oil/resin or the equivalent of a further 51,820 grams of dried cannabis pursuant to the Schedule 3 equivalence table), far exceeds, on any sensible view I think, the amount of cannabis and cannabis that any individual, or even a few individuals, might reasonably have on hand for their own intended personal use or consumption.

ii. The total value of that cannabis and those cannabis related products, (i.e., $21,004.00 to $298,660.00), clearly represents another substantial asset that all but the most affluent of Canadians seem unlikely to possess in a manner intended entirely for personal use or consumption; i.e., without contemplation of redistribution of all or part of that cannabis and those cannabis related products to others in exchange for some form of compensation. In that regard, I am mindful that the focus in relation to this Count 2 charge is on distribution rather than sale, but am also mindful that there inherently and realistically could be no such selling of the cannabis and cannabis products without its corresponding distribution.

iii. Much of the cannabis and cannabis related products located within the Richmond Street residence already had been subdivided and packaged into smaller and easily transferrable amounts and containers, (i.e., via bags and jars), which would have been unnecessary if all of that cannabis and all of those cannabis products had been intended for personal use or consumption.

iv. As noted above, additional items found in the residence included an admitted "Order list", a digital weigh scale, labels and business cards for "Stoni Cannabis", (described therein as a "Premium Cannabis Delivery Service", guaranteeing such delivery within 60 minutes, with indicated operations based in Hamilton and London), a money counter, a vacuum sealer, and cannabis packaging, all of which clearly reinforce an obvious inference that the cannabis and cannabis products found in the Richmond Street residence were being carefully subdivided and packaged into precise amounts for the purpose of making them available for distribution and sale to third parties through a well-organized sale and delivery service.

[46] In my view, the Crown's case against Mr Kofman, in relation to Count 2 of the indictment, nevertheless founders when it comes to proving beyond a reasonable doubt that Mr Kofman possessed the cannabis and cannabis products found within the relevant Richmond Street residence. In that regard:

a. Among the many considerations that have been factored in my cumulative assessment of the presented evidence and lack of evidence were the following:

i. There was no direct evidence, (in the form of any admission or witness testimony), indicating affirmatively that Mr Kofman knew about any of items in the Richmond Street residence giving rise to the charges against him, including the cannabis and cannabis products underlying Counts 2 and 3 of the indictment.

ii. Apart from the passing reference in the testimony of D.C. Nieuwland to his understanding that an unidentified female civilian seen in the pre-search video shortly after police entered the residence was "the homeowner", (which in my view is an indication that deserves little weight, insofar as it was apparently based on hearsay from an unspecified source and not personally confirmed by D.C. Nieuwland), I was presented with no evidence whatsoever to indicate formal ownership of the residence, or the existence or absence of any tenancy or rental agreements relating to the residence. Clearly, I think, the prominently displayed wall mounting near the entrance to the dining room of the residence, referring to "The Kofmans, EST 2013", provides a firm indication that the residence was occupied by one or more members of a family with the surname "Kofman". For present purposes, however, I simply note the absence of any further evidence, relating to ownership or formal tenancy rights, to indicate directly or indirectly the individual or individuals who may have been in a position to control what items were permitted into the residence, or allowed to remain in the residence. Once again, evidence relating to ownership of the property inherently was something that would have been easy for the Crown to obtain, but nothing in that regard was presented in evidence at trial.

iii. The address indicated on Mr Kofman's driver's licence indicates that the Richmond Street residence was the residential address he himself provided to the province's Ministry of Transportation, and I am mindful of the requirements of O.Reg.340/94 to the Highway Traffic Act, R.S.O. 1990, c.H.8, requiring those who change their primary residence to provide the Ministry with notice of such a change within six days. However, as noted earlier, Mr Kofman's driver's licence was not expired but somewhat dated, and there is no evidence to indicate whether or not he was mindful of or compliant with the regulation requirements in that regard if there was a possibility of his having changed residences; a possibility that must be acknowledged in the absence of any evidence positively indicating that he personally had attended the Richmond Street residence at any point after March 17, 2021.

iv. As noted earlier, I was presented with no evidence whatsoever to indicate and confirm the number or identity of individuals (if any) that may have been found within the residence when the police made entry therein, or where such individuals may have been located at the time. While it seems quite probable that the unidentified female civilian seen in the pre-search video was within the residence when the police arrived, (as she was obviously there when the pre-search video recording began just 17 minutes after the police made entry, and it seems extremely unlikely that she otherwise could or would have been summoned to the residence or permitted inside once the police had commenced their execution of the search warrant), there was simply no evidence addressing the possible presence of other individuals within the residence when the police made entry, who may have been removed from the residence before the pre-search video began. As noted above, D.C. Knelson, in his testimony, indicated that he had not interacted with any of the individuals, (plural), who were found inside the residence when the police entered and cleared it.

v. As also noted earlier, I was presented with very little evidence to indicate, through police surveillance or otherwise, the observed presence of any individuals at the Richmond Street residence, (let alone entering, leaving or moving within the residence there), at any time before the police arrived there on the morning of November 3, 2021, apart from the isolated observation of Mr Kofman arriving at and entering the residence on March 17, 2021, more than 7 ½ months before execution of the search warrant. Moreover, as also noted above, that limited evidence of Mr Kofman's single observed attendance at the Richmond Street residence did not make it clear whether he had keys to the residence, or the ability to enter there without the knowledge and permission of others. Nor was I presented with any other evidence to indicate who might have possessed such keys to the residence.

vi. In my view, the contents depicted within the residence suggest extended or frequent occupation by an adult female and one or more children, with relatively few indications of such occupation by an adult male. Without limiting the generality of the foregoing;

1. There are only two obvious bedrooms in the residence, with each containing a bed for contemplated sleeping arrangements on an extended basis. While it clearly would be possible for someone to sleep on the large sectional sofa in the "loft" or Room "H" area, there was no indication of any bedding or clothing in that area, apart from one or two indiscernible items that had been left on the sofa. Moreover, as noted above, the entire eastern side of that room is essentially open to the living room area below, such that anyone staying and sleeping in that room on any extended or frequent basis inherently would have little privacy there.

2. While the presented evidence makes it impossible to ascertain the nature of all clothing that may have been present in the residence, and there are many folded and stacked items, the distinguishable items of clothing hung up or otherwise placed within the various closets of the upstairs bedrooms and inside the laundry room generally appear to be predominantly of a nature, style and size one commonly would associate with an adult female.

3. At various locations throughout the residence, (e.g., in the front entrance area or Room "A", the living room area or Room "B", the garage, the master bedroom or Room "I", and the bedroom labelled Room "L"), there are clearly a great many prominently displayed and readily accessible stuffed animals, children's toys, a small plastic basketball net and backboard, a children's life jacket, and other child-centred items. Various forms of artwork, apparently created by a child, are also displayed at various locations around the home. The cover on the bed in Room "L" also has a large and colourful depiction of a helmeted Roman soldier or medieval knight, which seems consistent with occupation of the bedroom by a child.

vii. Mr Kofman clearly was not in the Richmond Street residence on the morning of November 3, 2021, nor anywhere near the items underlying Counts 2 and 3 of the indictment when they were found within the Richmond Street residence that morning. At the time, he obviously was at the Townsend property residence, where he apparently had spent the night.

viii. In my view, there nevertheless clearly were items located within the Richmond Street residence indicating a connection to Mr Kofman, and the loft or Room "H" area of the residence, in particular. In that regard:

1. Items that were being mailed to Mr Kofman at the Richmond Street address, apparently within a month of the warrant being executed or relating to a trial that would be occurring the following month, were being deposited on the desk of the "loft" or Room "H" area of the residence. An obvious inference, (particularly in relation to mail that had been opened), is that Mr Kofman was leaving the items there. However, even if those items were not deposited there by Mr Kofman, in my view the circumstances suggest, at the very least, a strong alternative inference that such items left in that location were left with an expectation that their placement on that desk would bring the items to Mr Kofman's attention.

2. I agree with the submission of Crown counsel that the "Waynsh" logo displayed on the t-shirt seen being worn by Mr Kofman on March 17, 2021, as he was entering the residence, and on the hard plastic case situated on the floor of the "loft" or Room "H", are not commonplace but somewhat unusual, (i.e., insofar as they are not a readily recognizable brand logo or identifier such as "Nike", "Adidas" or some other well known manufacturer, business, etc.), thereby suggesting an additional link between Mr Kofman and the loft or Room "H". That link nevertheless was inherently dated, by the time the relevant search warrant was executed, and the items underlying Counts 2 and 3 of the indictment were located by the police.

3. On a related note, there is no evidence to indicate how long the various items of cannabis and cannabis products found within the Richmond Street residence had been there, or whether they were present in the residence when Mr Kofman was last present in that residence.

ix. Apart from the physical evidence located within the Richmond Street residence, there was no other evidence presented at trial, (e.g., in the nature of police surveillance indicating activity relating to illicit cannabis, or witness testimony in that regard), to indicate that Mr Kofman was actively engaged in such activities or aware of them. Again, it should be noted that there was no similar fact application made or granted in this case that permit consideration of the evidence relating strictly to Count 1 to any other counts of the indictment.

x. In my view, evidence of the significant value of the items underlying Counts 2 and 3 of the indictment, which might normally give rise to an inference that it would not be left unattended or in the control of someone unaware of its presence or value, (in case it was discovered by that person, leading to the person who left the items being deprived of them), arguably does not give rise to that inference in this particular case. In particular, if Mr Kofman was the person with knowledge and effective control over the items underlying Counts 2 and 3 of the indictment, and left or deposited them at the Richmond Street residence as it was occupied by other members of his family without their immediate awareness, he also might reasonably have hoped that those family members, (if they had any affection for or loyalty to him), would not have taken or otherwise deprived him of such items had they been discovered; e.g., by destroying the items or reporting their existence to the police.

xi. As to whether the various items of cannabis and cannabis-related products in the Richmond Street were readily visible, and/or situated in a manner that otherwise would have made their presence known to Mr Kofman:

1. D.C. Nieuwland testified, and I accept, that he generally used his best efforts to document the position of items in situ, without moving items before making a video-recording or photograph depicting how they were situated when he first encountered them, although it may then have been necessary to move one item slightly to display what was situated behind or beneath it.

2. However, as D.C. Nieuwland also noted, other officers who were searching the residence necessarily may have moved or disturbed things to locate and seize items of interest before they were brought to D.C. Nieuwland's attention to photograph them, and he simply had no way of knowing whether or not that had been done in relation to any particular item or items documented in the photographs. Moreover, as depicted in the pre-search video, (taken before the police embarked on active efforts to search the residence for anything more than persons who may have been located inside), at least some of the cannabis and/or cannabis-related product eventually located within the residence initially was situated within closed containers, such as the pizza boxes located on top of the vehicle in the garage which contained cannabis shatter, and a number of closed brown cardboard boxes and a closed "Budweiser" box, located in the "loft" or Room "H", which contained jars of cannabis extract or concentrate. Moreover, although ten bags of vacuum sealed cannabis bud apparently were found by police somewhere in the living room or Room "B", and three bags of marihuana bud apparently were found by police somewhere in the dining room or Room "C", such items did not seem to be readily visible in the pre-search video made by D.C. Nieuwland before more active and intrusive search efforts began. I also think it reasonable to infer, in that regard, that if such items had been readily visible to D.C. Nieuwland during his recording of the pre-search video, he naturally and understandably would have focused his recording on those items for a time, as he did in relation to other clearly visible items of obvious interest. In that regard, I also note the following:

a. The pre-search video depicts a closed black and grey bag on the wood-panelled floor of the living room area, (or Room "B"), at the end of a table located there.

b. The evidence photos include depictions, at pages 55 and 56 of Exhibit 10, a similar black and grey bag, on a similar wood-panelled floor, shown to contain, when opened, several transparent and apparently vacuum sealed bags containing cannabis bud.

c. While D.C. Nieuwland did not address those photos or what they depicted during the course of his testimony, I think it reasonable to infer that the relevant grey and black bag depicted in the evidence photos and containing such vacuum sealed bags of cannabis bud was the closed grey and black bag depicted on the floor of the living room during the pre-search video, and that the cannabis bud admittedly located by police in the living room therefore was not visible when the police entered the residence and the pre-search video was recorded, and was not exposed until the bag in question was opened later by the police during their more intrusive search efforts.

3. That having been said, as depicted in the pre-search video, there also clearly were various items of cannabis and/or cannabis-related products that were clearly visible to anyone with eyes to see if they approached the location of those items, such as the marihuana bud in transparent bags situated on the chair in the "loft" or Room "H", and a number of open boxes in that same room that contained jars of cannabis concentrate or extract. Moreover, I think the open boxes in that regard, with their clearly visible contents, might have led anyone seeing those open boxes to readily infer that nearby boxes of a similar size and nature contained similar items. However, any such observations of those readily visible items obviously would depend on Mr Kofman personally attending that "loft" room, and those items being present at the time of any such attendance. The evidence presented at trial included nothing to indicate how long such items may have been present in the residence, or whether their presence coincided with an attendance there by Mr Kofman.

xii. There was no forensic evidence, (e.g., fingerprint or DNA evidence), to suggest any connection between Mr Kofman and the items underlying Counts 2 and 3 of the indictment.

b. Once again, I think a reasonable person might find it quite likely that Mr Kofman was an individual, if not the individual, who had knowledge and control over the items underlying Counts 2 and 3 of the indictment. In particular, there were indications that, at the very least, members of his family were residing in that residence, (such that he was welcome there), that Mr Kofman himself had resided and/or otherwise attended at the residence in the past, and that he may still have been staying and/or attending there, at least intermittently, if only to retrieve items still being mailed to him there. There similarly are indications, (via the location of such mailed items), that he was present in the "loft" area where he could not have failed to notice the presence of substantial cannabis product, if it was there at the time and positioned in a manner similar to that documented at the time of the search warrant's execution.

c. However, in my view, the evidence presented at trial once again falls short of proving requisite knowledge and control of the items underlying Counts 2 and 3 of the indictment, to establish Mr Kofman's possession of those items beyond a reasonable doubt.

d. Without limiting the generality of the foregoing, in my view there once again are simply too many relevant and significant questions effectively left unanswered by the trial evidence, including:

i. who had legal ownership and control of the Richmond Street residence, or otherwise exerted effective control over who was permitted to enter the residence, and what items could be brought into the residence and/or left there;

ii. who was predominantly or consistently present at the property's residence, and/or actively engaged in the cannabis-related activity apparently being conducted there;

iii. how and when the items underlying Counts 2 and 3 arrived at the Richmond Street residence, and whether Mr Kofman had any involvement in that regard, or was present at the residence at any time after the items arrived there, in circumstances that would have made him aware of their presence;

iv. the extent, (if any), to which Mr Kofman otherwise had any knowledge of the relevant items; and

v. the extent, (if any), to which Mr Kofman had any measure of control in relation to such items, even if he had no control over the residence as a whole.

e. It is reasonable and relatively easy to posit a scenario wherein Mr Kofman owned and/or was a co-tenant of the Richmond Street residence, or was otherwise permitted to stay at or use areas of the Richmond Street residence by one or more other members of his family who possessed such ownership or rights of control. It also is reasonable and relatively easy to extend that scenario to such a relation or relations not being aware of Mr Kofman's possession of the items underlying Counts 2 or 3 of the indictment, (e.g., because they trusted him and/or wished to avoid intruding on his activities), and/or tolerating such illicit activity because he was a family member.

f. However, the reality is that the evidence falls short of establishing such a scenario. More to the point, it does not negate another reasonable alternatives consistent with the presented evidence; e.g., that the Richmond Street residence was owned or otherwise controlled by someone other than Mr Kofman, that he had ceased to occupy or regular attend the residence (even if he had done so in the past) by the time the items underlying Counts 2 and 3 of the indictment came to be there, that the items in question had been brought to or deposited at the Richmond Street residence without his participation or knowledge, and that he no longer had, (if he had ever had), any effective control over items within the residence.

g. In my view, the evidence presented at trial, cumulatively assessed, falls short of establishing that Mr Kofman knew about and had a measure of control over the items underlying Counts 2 and 3 of the document, in a manner sufficient to establish constructive possession or joint possession.

[47] As the Crown has failed to establish the essential element of possession required for the s.9(2) Cannabis Act offence charged in Count 2 beyond a reasonable doubt, there will be a finding of not guilty in relation to Count 2 of the indictment.

COUNT 3

[48] As noted above, Count 3 of the indictment charges Mr Kofman with unlawful possession of cannabis for the purpose of sale, contrary to s.10(2) of the Cannabis Act. All concerned were agreed that the reference in Count 3 to the alleged offence having taken place "at the City of London" signified that this count also referred to the cannabis and cannabis products that were located by police during their execution, on November 3, 2021, of the Cannabis Act search warrant relating to the residence at the relevant condominium property located on Richmond Street here in the city of London.

[49] For the reasons I outlined earlier, in relation to Count 2 of the indictment, the presence of very substantial quantities of cannabis and/or cannabis products within that Richmond Street residence, at the time of the search warrant's execution on November 3, 2021, clearly has been established beyond any reasonable doubt.

[50] In my view, the Crown also established, beyond a reasonable doubt, that if Mr Kofman was in possession of those very substantial quantities of cannabis and/or cannabis products, located within that Richmond Street residence, he possessed them unlawfully for the purpose of sale. Without limiting the generality of the foregoing:

a. The offence created by s.10(2) of the Cannabis Act reads as follows: "Unless authorized under this Act, it is prohibited to possess cannabis for the purpose of selling it contrary to any of paragraphs (1)(a) to (c)".

b. Pursuant to s.10(1) of the Cannabis Act, it is prohibited, (unless a person is authorized to do so under the Act), for anyone to sell cannabis, or any substance represented or held out to be cannabis, to an individual who is 18 years of age or older, [s.10(1)(a)], to an individual who is under 18 years of age, [s.10(1)(b)], or to an organization, [s.10(1)(c)], with "organization" having the same broad definition as that set forth in section 2 of the Code. Collectively, the sub-paragraphs of s.10(1) arguably encompass most if not all of the various possible ways in which a person could sell cannabis.

c. Having regard to s.50(2) of the Cannabis Act, I note that there was no evidence to indicate or even suggest that Mr Kofman had any authorization under the Cannabis Act to sell cannabis, or any substance represented or held out to be cannabis, in a manner that would otherwise contravene ss.10(1) or 10(2) of the Act without such an authorization.

d. Pursuant to s.2(1) of the Cannabis Act, the term "sell" is defined such that it "includes offer for sale, expose for sale and have in possession for sale". The term "selling", as employed by Parliament within the offence created by s.10(2) of the Cannabis Act, therefore obviously has a corresponding meaning.

e. I note that the formal admissions set forth in the initial and second or supplemental Agreed Statement of Facts, filed as Exhibits 1 and 17 in the trial, include no formal agreement or admission that the cannabis and/or cannabis products located within the Richmond Street residence were possessed, (if possessed at all), for the purpose of selling it or them, within the meaning of Cannabis Act and the offence created by s.10(2) of the legislation. Nor was I presented with any expert opinion evidence in that regard. However:

i. For reasons similar to those already noted above in relation to a trier's ability to find possession of cannabis for the purpose of distribution proven beyond a reasonable doubt without the necessity of expert opinion evidence, in my view, a trier also has the ability to find possession of cannabis for the purpose of selling it proven beyond a reasonable doubt without the need for expert opinion evidence.

ii. In this particular case, I do not regard the factual determination to be made as to whether the cannabis and cannabis products located by police within the Richmond Street residence were possessed for the purpose of selling it or them to be one requiring expert evidence. To the contrary, as noted in passing in relation to Count 2 of the indictment, I think possession of that cannabis and those cannabis products for the purpose of selling it or them is the only sensible and rational conclusion when one has collective regard to the following:

1. Again, the total volume of cannabis and cannabis related products found in the Richmond Street residence, (i.e., dried cannabis per se, solid cannabis shatter and cannabis concentrate in the form of cannabis oil/resin), was the equivalent, pursuant to the Schedule 3 equivalence table, of more than 58,796 grams or 58 kilograms of dried cannabis; an amount far exceeding, on any sensible view I think, the amount of cannabis and cannabis related products that any individual, or more than one individual living in such a two bedroom residence, might reasonably have on hand for intended personal use or consumption.

2. Again, the total value of that cannabis and those cannabis related products, (i.e., $21,004.00 to $298,660.00), clearly represents a substantial asset that all but the most affluent of Canadians seem unlikely to possess in a manner intended entirely for personal use or consumption; i.e., without contemplation of redistribution of all or part of that cannabis and those cannabis related products to others in exchange for some form of compensation, via an effective "sale" of that cannabis and those cannabis related products.

3. Again, much of that cannabis and those cannabis related products already had been subdivided and packaged into smaller and easily transferrable amounts and containers, (i.e., via bags and jars), which would have been unnecessary if all of that cannabis and all of those cannabis products had been intended for personal use or consumption.

4. And, again, the additional items found in the residence, including an admitted "Order list", a digital weigh scale, labels and business cards for "Stoni Cannabis", (described therein as a "Premium Cannabis Delivery Service", guaranteeing such delivery within 60 minutes, with indicated operations based in Hamilton and London), a money counter, a vacuum sealer, and cannabis packaging, all clearly reinforce an obvious inference that the cannabis and cannabis products found in the Richmond Street residence were being carefully subdivided and packaged into precise amounts for the purpose of making them available for sale to third parties through a well-organized sale and delivery service.

[51] In my view, the Crown's case against Mr Kofman, in relation to Count 3 of the indictment, nevertheless founders when it comes to proving beyond a reasonable doubt that Mr Kofman possessed the cannabis and cannabis products found within the relevant Richmond Street residence, and does so for the same reasons outlined in relation to Count 2 of the indictment, which I will not repeat again here.

[52] As the Crown has failed to establish the essential element of possession required for the s.10(2) Cannabis Act offence charged in Count 3 beyond a reasonable doubt, there will be a finding of not guilty in relation to Count 3 of the indictment.

COUNT 4

[53] As noted above, Count 4 of the indictment relates to Mr Kofman's alleged unlicensed possession of a firearm; i.e., a .22 calibre rifle, described with more particularity in the evidence presented at trial as a Mossberg International 715T semi-automatic rifle capable of firing .22 calibre ammunition, bearing serial number ELD3369863.

[54] At least some of the essential elements of the s.91(1) Code offence charged in Count 4 clearly have been established beyond a reasonable doubt in this case. In particular:

a. As per sub-paragraph 5(b) of the Agreed Statement of Facts filed as Exhibit #1 in the trial, the relevant .22 calibre rifle identified more specifically in the manner I have described "is a non-restricted firearm, and is capable of being fired". The fact that the item in question is a "firearm" therefore has been formally agreed and admitted, and established beyond a reasonable doubt.

b. As noted above, the s.91(1) Code offence charged in Count 4 of the indictment falls within the ambit of s.117.11 of the Code, which effectively reverses the onus of proof in relation to the essential element of the offence requiring that Mr Kofman did not hold a licence permitting him to possess the relevant firearm; i.e., the specified .22 calibre rifle. In other words, pursuant to s.117.11, the onus effectively was cast on Mr Kofman to prove that he was the holder of such a licence, failing which it could and would be presumed that he did not hold such a licence. In this case, however, despite the Crown having the benefit of s.117.11 of the Code in that regard, it was also formally admitted and agreed, in paragraph 7 of the Agreed Statement of Facts filed as Exhibit #1 at trial, that Mr Kofman "does not have a licence or exemption permitting him to possess any firearms". The fact that Mr Kofman was not the holder of a licence under which he could possess the firearm relevant to Count 4 of the indictment, (i.e., the specified .22 calibre rifle), therefore has been formally agreed and admitted, and established beyond a reasonable doubt.

[55] I nevertheless have reasonable doubt as to whether the remaining essential element of the s.91(1) Code offence charged in Count 4 of the indictment, relating to Mr Kofman's alleged possession of the firearm in question, has been established. In that regard:

a. Many of the concerns I outlined earlier in relation to Count 1 of the indictment, relating to factors undermining suggestions that Mr Kofman had knowledge and control over items within the Townsend property residence, apply to Count 4 as well. I will not reiterate my reasons in that regard here.

b. In my view, however, such concerns are reinforced, in relation to Mr Kofman's alleged knowledge, control and possession of the .22 calibre rifle, by further considerations that include the following:

i. Evidence of extreme probability that an accused's DNA was located on a firearm normally would be extremely compelling and, even on its own, something often capable of satisfying a trier, beyond a reasonable doubt, that the accused at some point had knowledge and control over the firearm sufficient to establish possession. In particular, it is hard to imagine how an accused's DNA, if transferred directly to a firearm through the accused touching the grip or grips of such an item, reasonably could occur without the accused having knowledge of the firearm and its nature, and exercising a degree of control over that firearm. I also saw no reason to question or doubt the analysis carried out by Ms Matte, and the Centre of Forensic Science, which supported a strong probability that Mr Kofman's DNA was found on the relevant 9mm handgun and .22 calibre rifle.

ii. In this particular case, however, I am not inclined to give any weight to the evidence of Mr Kofman's DNA almost certainly being found on the .22 calibre rifle, or on the 9mm handgun, owing to the manner in which both items were poorly handled by the police; i.e., in terms of police failure to avoid the reasonable possibility of Mr Kofman's DNA being transferred onto each of those firearms through means other than Mr Kofman's personal contact with those firearms. In that regard:

1. I have carefully reviewed and considered the entire impressively delivered testimony of Ms Matte in relation to DNA transfer and persistence, but will not attempt to reiterate all of its details here. For present purposes:

a. I note Ms Matte's emphasis on the scientific reality that there are many variables that can impact the transfer and persistence of DNA on various items under various circumstances. In that regard, Ms Matte noted that such factors include, but are not limited to: the quantity of DNA to begin with that went into a possible transfer, which in turn might be affected by prevailing heat and moisture conditions that affect DNA persistence; how much contact takes place between surfaces; the extent to which a bodily fluid or skin cells may or may not have been involved; and the extent to which the source from which the DNA was being transferred and the surface to which it was being transferred were wet or dry, and a soft and/or porous surface or a hard and/or non-porous surface. However, Ms Matte also emphasized that there was no definitive or exhaustive list of such factors that can affect DNA transfer.

b. For such reasons, Ms Matte explained that scientists like her are "often unable to make definitive conclusions when it comes to specific scenarios" regarding possible DNA transfer and persistence. In particular, scientists "often cannot tell how, when and under what circumstances DNA may have transferred or ended up on a location" because of all the potential variables she was describing, and "nothing can be fully controlled" in that regard. Nor could scientists differentiate between probabilities and possibilities of a DNA transfer happening in a certain way or not. She noted that, as a matter of "common sense", the more complex the scenarios and transfer mechanisms, (i.e., the more steps introduced in relation to a possible DNA transfer), the less likely such a transfer may be. However, Ms Matte also emphasized there is simply no way to estimate a specific percentage of probability of DNA transfer in any given scenario. While scientists sometimes are able to weigh two competing hypotheses, and say that one may be more likely than the other, it would still be impossible to "rule out the less likely one". As she put it, in relation to possible DNA transfers, "it's all possible because there's so many factors that we can't control".

c. In cross-examination Ms Matte expressly acknowledged that such possibilities included a person's DNA being transferred to a firearm by a person touching the firearm directly, (a "primary transfer"), the firearm being put in contact with an item the person had touched, (a "secondary transfer"), and DNA being transferred from the person to the firearm through additional stages of successive contact between items and/or people; e.g., "tertiary transfers", or "fourth", "fifth" and further transfers. She also confirmed that detected presence of a person's DNA on an object provides no indication of how it may have got there; i.e., in terms of the nature or number of potential transfer mechanisms involved.

d. Because the potential transfer of DNA is therefore always a reasonable possibility and ongoing concern, Ms Matte emphasized the advisability and importance of taking steps, (always employed by the Centre of Forensic Science), to address and prevent the possibility of such DNA transfer and contamination, such as:

i. the use of appropriate "PPE", or personal protective equipment;

ii. the use of fresh and clean gloves in that regard when touching each new item, as DNA can be transferred via touching different objects with the same gloves;

iii. the taking of appropriate measures to prepare workstations, to change and clean work surfaces;

iv. avoiding putting objects down on surfaces likely to have been touched by others; and

v. the use of appropriate packaging that prevents a seized item from coming into contact with other items.

2. I certainly do not think the possibility of such DNA transfer onto an item, through means other than such personal contact between an accused and an item, should be readily assumed or inferred, and such a possibility obviously should not be the subject of mere fanciful speculation or conjecture.

3. In this case, however, I think the evidence presented at trial presents multiple opportunities through which Mr Kofman's DNA reasonably could have been transferred onto the 9mm handgun and the .22 calibre rifle through indirect means; i.e., means other than Mr Kofman personally touching either firearm. In that regard:

a. I viewed some of the explicit or implicit suggestions of possible indirect transfers of Mr Kofman's DNA to the firearms to be somewhat hypothetical and/or based on speculation rather than evidence. For example:

i. D.S. Knoll did actively handle the door handle to the rear exterior door to the residence, and then handle the .9mm gun a short time later to prove that firearm safe, while almost certainly wearing the same hatch gloves. In theory, if Mr Kofman had entered through that same rear exterior door, and touched its handle while doing so, his DNA may have been transferred to that handle, and then onto the gloves of D.S. Knoll, and then onto the grip of the 9mm handgun. However, as noted earlier, there was no evidence to indicate Mr Kofman's movements around or in the Townsend property residence before the police arrived, and any suggestion that he entered through its rear door, (rather than one of its other exterior doors), or touched the rear door's handle while doing so, is pure speculation.

ii. Similarly, D.C. Bell admittedly set the .22 calibre rifle directly on another area of the living room couch while opening and examining the contents of the garbage bag on which the rifle had been placed, and in theory that might have allowed for DNA previously deposited on that area of the couch by Mr Kofman to be transferred onto the firearm. Once again, however, there was no evidence presented to indicate that Mr Kofman was ever in that living room, let alone that he sat on the relevant area of the couch.

iii. For similar reasons, the suggestion that Mr Kofman's DNA may have been transferred to the surface of the dining room table before arrival of the police, through his consumption of any of the food or beverages whose remnants were still on the table when the police entered the residence, is also conjectural. Although I agree the possibility seems more likely as a matter of human experience, (i.e., insofar as even a temporary overnight visitor to a residence usually can be expected to engage in some shared consumption of food or drink before going to sleep, and the evidence suggests consumption of food and drink in that particular residence took place around that dining room table), the fact remains that there is no evidence of Mr Kofman being at that dining room table before the arrival of the police.

b. Far more significant, I think, are indications in the presented trial evidence that the .9mm handgun came into contact with persons and objects that Mr Kofman did have interaction with before and after arrival of the police, in a manner creating a reasonable possibility of indirect transfer of DNA from Mr Kofman to the handgun. In that regard:

i. The .9mm handgun clearly was seized and handled repeatedly by D.C. Craig, who was the officer who physically apprehended Mr Kofman, (directly, forcefully and repeatedly touching Mr Kofman's largely unclothed body in various ways), and who thereafter interacted closely with Mr Kofman on an ongoing basis for a further 90 minutes, in ways that were acknowledged to include possible provision of water to Mr Kofman, assisting with locating additional clothing for Mr Kofman and helping Mr Kofman put that clothing on, and thereafter transferring custody of Mr Kofman over to transport officers who arrived at the property, all of which inherently seem likely to involve further direct contact with Mr Kofman and/or items of clothing belonging to Mr Kofman. Whether D.C. Craig was not wearing gloves during such interactions, wore the same gloves during all such interactions as those he was wearing when he later handled the .9mm handgun, or changed his gloves from hatch gloves to latex gloves during the 90 minutes spent interacting with Mr Kofman while waiting for the transport unit to arrive and then continued his remaining direct interactions with Mr Kofman, (all of which were possibilities acknowledged by D.C. Craig), the evidence establishes, in my view, a reasonable possibility that D.C. Craig had Mr Kofman's DNA on his hands or gloves when he thereafter seized and handled the 9mm handgun.

ii. Perhaps most significantly, after being seized and removed from the closet rafter where it was initially located by D.C. Grubb, the 9mm handgun clearly, (and almost unfathomably, from any perspective mindful of possible DNA transfer), was laid directly and repeatedly on the sheet of the bed where Mr Kofman had slept the night before, over the course of what was likely to have been many hours. In my view, the possibility of Mr Kofman's DNA being transferred to that bedsheet, and in turn transferred to the 9mm handgun, seems obvious. Indeed, during the course of her expert opinion testimony, Ms Matte confirmed that scientists would expect there to be DNA in a person's bed, (because of habitual/sustained contact between a person and that bedsheet), such that, as a matter of common sense, one should avoid placing an object on such a bed to avoid probable DNA transfer and contamination.

iii. The evidence also establishes that DC Latimer also directly handled the 9mm handgun after touching numerous other surfaces and items in that same bedroom where Mr Kofman had spent the night; i.e., touching, at the very least, the wall cupboard, in-built drawers and their contents before then seeing the handgun and handling it to prove it secure, all while wearing the same pair of gloves. While there is no evidence directly indicating that Mr Kofman directly touched any of those objects or items before they were touched by D.C. Latimer, in my view the possibility is far less speculative when it is clear that Mr Kofman was definitely in that room, which had little in the way of other furnishings. That in turn creates a reasonable possibility that he left his DNA on those objects or items, which was then transferred to the gloves of D.C. Latimer when she touched the same objects or items the following morning, and then used those same gloves to touch and handle the 9mm handgun.

iv. In my view, concerns about how Mr Kofman's DNA may have come to rest on the 9mm handgun before it was presented to D.C. McMurtrie are reinforced by the clear and troubling gaps in evidence, noted above, as to how the 9mm handgun possibly was handled, and by whom, over the extended time between D.C. Craig's seizure of it and the time he eventually delivered it to D.C. McMurtrie. While no arguments by the Crown or defence counsel should be based on speculation and conjecture, it seems a matter of concern, from my perspective, when the Crown seeks a conviction for a very serious firearm offence based largely if not primarily on DNA evidence, where other evidence demonstrates an arguably cavalier disregard for possible DNA transfer, (e.g., by placement of the firearm directly on a surface likely to contain the accused's DNA, such as the bed on which Mr Kofman slept), and the evidence presented by the Crown also fails to indicate with clarity how else the seized firearm may have been handled over an extended period of time before it was turned over to the exhibit officer, and before it was ever placed in an exhibit bag.

v. While the above concerns underscore reasonable possibility of a possible indirect transfer or successive indirect transfers of Mr Kofman's DNA onto the 9mm handgun before it was delivered to D.C. McMurtrie, in my view the circumstances in which D.C. McMurtrie then dealt with the handgun suggest the possibility of further indirect transfer or transfers of Mr Kofman's DNA in that regard. In particular:

1. As noted above, D.C. McMurtrie chose to set up his exhibit post on the dining room table of the Townsend property residence, without taking any steps to clean, sanitize or cover the surface of that table to prevent any possible transfer from that surface to seized items of evidence being placed on that table, including the 9mm handgun.

2. Even if one discounts the not unreasonable possibility that Mr Kofman had participated in the consumption of food and drink at that dining room table before the arrival of the police, (leaving visible remnants of such eating and drinking activity in place at the time the police entered the residence), that also was a table at which Mr Kofman had been seated for approximately 90 minutes after the police made their entry and secured Mr Kofman.

3. In the circumstances, I think it entirely reasonable to think that Mr Kofman, or items Mr Kofman had touched, likely came into contact with the surface of that dining room table during that 90-minute period, allowing for the possibility of DNA transfer to that surface. That likelihood seems even stronger if Mr Kofman, as D.C. Craig acknowledged, may have been provided with a drink of water while he was awaiting transport, and/or may have touched the dining room table, or had items of his clothing placed on that table, in the process of receiving or donning additional clothing beyond his underwear prior to being escorted from the residence.

4. In my view, that in turn created a situation giving rise to further reasonable possibility of indirect transfers of Mr Kofman's DNA to the handgun once it was delivered to D.C. McMurtrie. In particular:

(a) D.C. McMurtrie admittedly placed that handgun directly on the uncleaned surface of that same dining room table, creating a reasonable possibility that DNA left on that surface in any of the ways noted above was then transferred to the handgun. In that regard, I note the evidence I received indicating the presence of liquids on that table when the police arrived, the acknowledged possibility that Mr Kofman may have been provided a drink of water while seated at that table, the absence of any measures taken to clean that table when D.C. McMurtrie created his exhibit post there, and Ms Matte's expert testimony that the transfer of DNA is made easier through the involvement of liquids and wet surfaces.

(b) In working at that dining room table, D.C. McMurtrie himself also clearly was touching that uncleaned dining room table surface repeatedly, before and in addition to his successive handling of other seized items, including the handgun. That too created another reasonable possibility of Mr Kofman's DNA, having been transferred to the surface of the dining room table in any of the ways noted above, being transferred onto the handgun; i.e., via D.C. McMurtrie's gloves. In that regard, I note Ms Matte's expert testimony that immediate examination of successive items, without the taking of intermittent cleaning steps, was certainly something to be avoided, in terms of preventing possible DNA transfer.

c. I have commented first on concerns regarding reasonable possibilities for indirect transfer of Mr Kofman's DNA onto the 9mm handgun, before commenting on concerns regarding reasonable possibilities for indirect transfer of Mr Kofman's DNA onto the .22 calibre rifle, (notwithstanding the obvious focus of Count 4 of the indictment on the .22 calibre rifle), because I think the former has an obvious bearing on the latter. In particular:

i. As noted above, the 9mm handgun was presented to D.C. McMurtrie, placed on the dining room table surface, and otherwise handled by D.C. McMurtrie, (e.g., not only in receiving the handgun but actively proving it safe before logging it and finally placing it in an exhibit bag), before presentation to D.C. McMurtrie of the .22 calibre rifle.

ii. For the reasons noted above, that means that DNA of Mr Kofman indirectly transferred onto the 9mm handgun, via any of the reasonable possibilities outlined above, also:

1. was the subject of a reasonably possible indirect transfer from the handgun onto the gloves of D.C. McMurtrie, who then used those same gloves to handle the .22 calibre rifle, creating the possibility of a further indirect transfer of Mr Kofman's DNA onto the rifle; and

2. was the subject of a reasonably possible indirect transfer from the handgun onto the surface of the dining room table, onto which D.C. McMurtrie then directly placed the rifle, creating the possibility of a further indirect transfer of Mr Kofman's DNA onto the rifle.

d. I am mindful of the testimony of Ms Matte, noted above, that common sense suggests that the likelihood of DNA transfers may diminish with the complexity and number of transfer mechanism steps being considered. I am also mindful that the various possible instances of indirect DNA transfer outlined above involve secondary and at times tertiary or fourth stage DNA transfers from Mr Kofman to the 9mm handgun and/or .22 calibre rifle. However, as essentially noted and emphasized by Ms Matte, diminished probability does not negate reasonable possibility. Moreover, what gives me particular pause, in the circumstances of this particular case, are the number of reasonable possibilities by which Mr Kofman's DNA may have transferred, and transferred repeatedly in succession, to the 9mm handgun, and then, and/or independently, to the .22 calibre rifle.

e. I also bear in mind Ms Matte's testimony emphasizing that she did not receive the actual firearms for biology testing, but only a swab of DNA that inherently was taken only from a selected and/or selective part of each firearm's surface area; i.e., thereby highlighting the potential impact of an isolated indirect transfer or successive indirect transfers of Mr Kofman's DNA to those particular surface areas, all of which were on areas of the firearms almost certainly touched and handled by D.C. McMurtrie as he independently was proving each firearm safe before logging the item and placing it in a sealed evidence bag.

f. I also am mindful of the reality that Mr Kofman's DNA was not the only DNA found on either firearm. If that had been the case, I think such a consideration would have militated against a finding of his DNA being transferred indirectly to the firearms; i.e., as civilians not expecting police detection or seizure of a firearm are far less likely than police officers to ensure that such a firearm is handled only with gloves preventing the transfer of DNA from the handler to the firearm, or to make other efforts to ensure that DNA transferred from a handler to a firearm is removed. But again, Mr Kofman's DNA was not the only DNA found on either firearm, reasonably leaving open the possibility that each firearm was handled by a civilian other than Mr Kofman, whose DNA then also was transferred to the firearm indirectly.

4. For the above reasons, I think it would be unsafe to place weight on the particular DNA evidence presented in this case, suggesting a probability of Mr Kofman's DNA being on the 9mm handgun and the .22 calibre rifle, in turn suggesting that he had knowledge and control of either firearm, and therefore possessed either firearm, at some point before police located those firearms in the Townsend property residence. In particular, if indirect transfer of Mr Kofman's DNA onto either or both firearms is a reasonable possibility in this case, giving such DNA evidence any weight at all might be entirely misleading, in terms of determining, beyond a reasonable doubt, what actually happened in this case; i.e., in terms of Mr Kofman directly handling or not directly handling those firearms.

iii. As noted earlier, evidence concerning how the .22 calibre rifle initially was discovered, and whether and how it may have been disturbed prior to recording of the pre-search video, was unclear. Without limiting the generality of the foregoing, D.C. Grubb was firm in his recollection of having been told that the .22 calibre had been inside the black garbage bag on the couch in question, along with the wrapped up sawed-off shotgun, before it was pulled out of that bag by the police at some point before the pre-search video was made.

iv. In any event, as depicted in the pre-search video recorded by D.C. Grubb, the relevant firearm, dark black or grey in colour, was situated on top of a black garbage bag, and both were situated on top of a dark couch, and behind a wicker chair with a high solid back that had been positioned with its back up against that dark couch, effectively obscuring the surface area of the couch located directly behind it. The pre-search video itself indicates how the firearm was not really visible until the camera was walked over into that corner of the room, and specific efforts were made to raise the camera over the back of the wicker chair and point it downwards to the couch surface in an effort to indicate what was there. In short, in my view the firearm was not readily visible, even to someone who may have entered the living room, unless they took active steps to look over and behind that wicker chair, or happened to sit on the couch beside the firearm – which seems unlikely, at least given the state of affairs depicted at the time of the pre-search video, insofar as a long sword was lying across the other nearby area of the couch in question.

v. I also think it telling that, during the course of his testimony commenting on the pre-search video, D.C. Grubb himself acknowledged that he was "not really" able to "make out" either of the long guns located on the "dark couch" in the living room.

vi. At the risk of some degree of repetition:

1. Even if the .22 calibre rifle was present and readily visible to anyone entering the living room of the Townsend property residence, there is no evidence to indicate that Mr Kofman ever entered that room, let alone that he did so when the firearm was present and visible.

2. Nor was anything located in the areas of the Townsend property residence where Mr Kofman was shown to have been present to suggest any connection to a firearm located in the living room of the residence, or indication of awareness of such a firearm.

3. Moreover, even if Mr Kofman was aware of that firearm, the evidence falls far short of establishing that Mr Kofman had any ability to object to its presence or require its removal. In other words, there is simply no evidence to indicate that he had any measure of control in that regard.

vii. Once again, the circumstantial evidence, (this time presented in relation to Count 4 of the indictment, does not negate reasonable alternatives to Mr Kofman's guilt; i.e., in terms of his knowledge of the .22 calibre rifle, and having a measure of control over that firearm, sufficient to establish constructive possession or joint possession. In my view, for the reasons outlined earlier, it is entirely reasonable to suggest a different possibility; i.e., that Mr Kofman was nothing more than a short-term visitor or overnight guest to the residence, possibly attending there for the very first time, who did not enter the living room during his visit, had no knowledge whatsoever of the .22 calibre rifle that was there, and no ability whatsoever to exert control over that firearm even if he had known it was there.

viii. In other words, I have what I consider to be a reasonable doubt as to whether Mr Kofman possessed the relevant .22 calibre rifle.

[56] As the Crown has failed to establish the essential element of possession required for the s.91(1) Code offence charged in Count 4 beyond a reasonable doubt, there will be a finding of not guilty in relation to Count 4 of the indictment.

COUNT 5

[57] As noted above, Count 5 of the indictment relates to Mr Kofman's alleged unlicensed possession of a firearm; i.e., a 9mm handgun, described with more particularity in the evidence presented at trial as a Springfield Armory XD9 semi-automatic handgun capable of firing 9mm ammunition, bearing serial number US113365.

[58] At least some of the essential elements of the s.91(1) Code offence charged in Count 5 clearly have been established beyond a reasonable doubt in this case. In particular:

a. As per sub-paragraph 5(a) of the Agreed Statement of Facts filed as Exhibit #1 in the trial, the relevant 9mm handgun identified more specifically in the manner I have described "is a prohibited firearm, and is capable of being fired". The fact that the item in question is a "firearm" therefore has been formally agreed and admitted, and established beyond a reasonable doubt.

b. Again, as noted above, the s.91(1) Code offence charged in Count 5 of the indictment falls within the ambit of s.117.11 of the Code, which effectively reverses the onus of proof in relation to the essential element of the offence requiring that Mr Kofman did not hold a licence permitting him to possess the relevant firearm; i.e., the specified 9mm handgun. In other words, once again, pursuant to s.117.11, the onus effectively was cast on Mr Kofman to prove that he was the holder of such a licence, failing which it could and would be presumed that he did not hold such a licence. In this case, however, despite the Crown having the benefit of s.117.11 of the Code in that regard, it was also formally admitted and agreed, in paragraph 7 of the Agreed Statement of Facts filed as Exhibit #1 at trial, that Mr Kofman "does not have a licence or exemption permitting him to possess any firearms". The fact that Mr Kofman was not the holder of a licence under which he could possess the firearm relevant to Count 5 of the indictment, (i.e., the specified 9mm handgun), therefore also has been formally agreed and admitted, and established beyond a reasonable doubt.

[59] I nevertheless have reasonable doubt as to whether the remaining essential element of the s.91(1) Code offence charged in Count 5 of the indictment, relating to Mr Kofman's alleged possession of the firearm in question, has been established. Without limiting the generality of the foregoing:

a. In my view, it is not unreasonable for the Crown effectively to suggest and rely upon a scenario, consistent with the presented evidence, that the relevant 9mm handgun belonged to Mr Kofman. In particular, I do not think it unreasonable to suggest:

i. that Mr Kofman initially kept the firearm close at hand with him, (along with its 9mm ammunition), in the master bedroom where he was sleeping;

ii. that Mr Kofman nevertheless then took steps to hide the firearm in the closet of the adjacent west bedroom, during the little time available to him between his noticing the arrival of the police at the property and the police forcing their way into the residence; and

iii. that Mr Kofman, during those inherently rushed efforts to hide the firearm, while the master bedroom and adjacent west bedroom and its closet were in darkness, nevertheless failed to hide its ammunition as well for reasons attributable to his forgetting to hide the ammunition, not having time to hide the ammunition, or not thinking that hiding of the ammunition was important.

b. However, many of the concerns I outlined earlier in relation to Count 1 of the indictment, relating to factors undermining suggestions that Mr Kofman had knowledge and control over items within the Townsend residence, apply to Count 4 as well. Again, I will not reiterate those reasons in detail here.

c. However, in my view, such concerns are reinforced, in relation to Mr Kofman's alleged knowledge, control and possession of the 9mm handgun, by further considerations that include the following:

i. For the reasons I outlined earlier in detail, I am not inclined to attribute weight to the forensic biological evidence of extreme probability that Mr Kofman's DNA was located on the handgun.

ii. I am mindful that a holster, suitable for holding a firearm such as the 9mm handgun located in the closet of the west bedroom or Room "I", was found in the northeast bedroom or Room "K" of the Townsend property residence, (apparently being occupied by Mr Fonseca, and therefore under his apparent control), without any other handgun being located in that northeast bedroom or anywhere else in the residence. In my view, it obviously makes little sense for someone to possess a holster for a pistol or "Glock" type handgun without also possessing a corresponding firearm of that nature to place inside the holster. In my view, that reality, and the fact that no other firearm of that nature was located in the residence, in turn suggests a reasonable possibility if not probability that the 9mm handgun located in the closet of the west bedroom was in fact associated with the holster found in the northwest bedroom apparently subject to Mr Fonseca's occupation and control.

iii. There is simply no evidence to indicate when or how the handgun had been placed on the rafter of the closet to Room "I", and whether or not that took place while Mr Kofman was present at the residence, let alone while he was present in the master bedroom, through which anyone approaching Room "I" and its closet must have passed to reach that location.

iv. The box of 9mm ammunition located on the shelf above the head of the bed where Mr Kofman was sleeping clearly was present when Mr Kofman went to sleep in the master bedroom, and in my view it would have been just as visible to him as it was to the several officers who noticed its presence on the relevant shelf of that room. Moreover, I think the presence of a box of 9mm ammunition immediately would have suggested to anyone seeing it, (as it did to the aforesaid police officers), that there probably was a corresponding 9mm firearm somewhere else in the residence. In other words, the presence of the ammunition in the master bedroom establishes an obvious link between that ammunition and the handgun located in the closet of the adjacent west bedroom. Having said that, without evidence to indicate that Mr Kofman was the person who placed the ammunition on that shelf, his mere observation of the ammunition clearly would provide no indication as to where such a handgun might have been located, and the gun had been placed in the darkened closet of another room, in a place where it clearly would not have been readily visible.

v. For similar reasons, the evidence does not indicate that the handgun was in close proximity to where Mr Kofman was originally seen by the police, or where he was apprehended by the police. At most, the handgun was situated in the closet of an adjacent bedroom, and separated from Mr Kofman's location in the master bedroom by two doors.

vi. In my view, the handgun also was placed in a location where, because it was in an unused bedroom apparently being used only for storage purposes, and positioned atop a rafter in the darkened closet of that bedroom, it was unlikely to be accidentally discovered and removed by anyone without knowledge of its existence. In other words, despite the weapon's obvious value, I think someone with knowledge and control of the gun would not have had many qualms of hiding it there, owing to any fear of it being readily discovered or taken.

vii. It might be argued that Mr Kofman's descent from the master bedroom to the main floor of the residence reflected an effort on this part to put further distance between himself and the relevant handgun, in turn reflecting his awareness that there was something incriminating in the closet of a bedroom accessible only via the master bedroom in which he had been sleeping. However, in my view, his conduct in that regard is not unambiguous. Without limiting the generality of the foregoing, Mr Kofman clearly had reason to know, or at least suspect, that he already had been seen in the master bedroom of the residence; e.g., as D.C. Adach already had directed his flashlight at Mr Kofman through the window of the master bedroom, illuminating the interior of that room and Mr Kofman. As noted earlier, Mr Kofman descending to the main floor arguably also may have reflected an effort on his part to proceed to the rear door of the residence and unlock/open it for the police, as they were requesting.

viii. In my view, while the Crown's theory of how the handgun came to be situated in its discovered hiding place is entirely plausible and reasonable, the entirety of the circumst