Reasons for Judgment

Court File No.: CR-24-90000073-0000
Date: 2025-02-12
Ontario Superior Court of Justice
Between:
His Majesty the King – and – Hady Delgado

Appearances:
Venus Sayed, for the Crown
Christian Pearce, for Hady Delgado

Heard at Toronto: January 20, 21, 22 and 23, 2025
Judge: J.K. Penman

A. Overview

[1] Toronto Police were investigating Hady Delgado (“Hady”) with respect to charges unrelated to these proceedings. On February 21, 2023, police attended 91 Spencer Avenue and observed Hady leaving the building, at which time he was arrested. Police then sought and obtained a search warrant for unit 407 where Hady lived with his parents and brother Jersey Delgado (“Jersey”).

[2] In the bedroom Hady shared with Jersey, police found 8.23 grams of cocaine, 238.53 grams of fentanyl, and two different bundles of money totaling $3,245 in clothing, a pillowcase, and a drawer under one of the beds.

[3] Hady is now charged with possession for the purpose of trafficking cocaine, possession for the purpose of trafficking fentanyl, and possession of proceeds of crime of a value not exceeding $5,000. Jersey was also charged but his charges were stayed on the first day of trial.

[4] It is agreed that if Hady was in possession of the drugs, it was for the purpose of trafficking. It is also agreed that if Hady was in possession of the cash, it was proceeds of crime.

[5] Hady did not testify.

[6] The Crown’s position is that Hady was in constructive or joint possession of the drugs and cash with Jersey. The Crown relies on the location and number of items found in different parts of a small, shared bedroom and the unlikelihood that Hady would not have known the items were in the room.

[7] Counsel for Hady argues that there is a reasonable alternate inference on the evidence that the drugs belonged to Jersey and were in the room without the knowledge of Hady.

[8] For the following reasons, I am satisfied that the Crown has failed to establish beyond a reasonable doubt that Hady Delgado is guilty of possession of the cocaine and fentanyl for the purpose of trafficking or that he was in possession of proceeds of crime.

B. Applicable Legal Principles

[9] In this case, the Crown argues that Hady was either in constructive or joint possession of the items in the bedroom. Constructive possession is complete where an accused: (i) has knowledge of the character of the thing; (ii) knowingly puts or keeps the thing in a particular place, irrespective of whether the place belongs to or is occupied by the accused; and (iii) intends to have the thing in the place for the use or benefit of the accused or of another person: Criminal Code, RSC 1985, c C-46, s. 4(3)(a)(ii); R. v. Morelli, 2010 SCC 8, para 17.

[10] Joint possession requires knowledge, consent, and a measure of control on the part of the person deemed to be in possession: R. v. Pham, para 16.

[11] It is not disputed that there is no presumption of possession arising from proof of occupancy. The fact that a thing is found in a place occupied by a person does not create a presumption of knowledge and control: R. v. Lights, 2020 ONCA 128, para 50.

[12] However, the fact that a person has control over a place, together with other evidence, may (depending on the whole of the evidence) enable a trial judge to infer knowledge and control of the item in appropriate cases: R. v. Chambers; R. v. Lincoln, 2012 ONCA 542, para 3.

[13] The Crown case for possession is a circumstantial one. When the Crown's case consists wholly or substantially of circumstantial evidence, the standard of proof requires the trier of fact be satisfied beyond a reasonable doubt that the accused's guilt is the only reasonable inference to be drawn from the evidence as a whole and not each individual piece of evidence: R. v. Griffin, 2009 SCC 28, para 33; Lights, 2020 ONCA 128, para 37.

[14] Inferences consistent with innocence are not required to arise from proven facts. They may arise from a lack of evidence: R. v. Villaroman, 2016 SCC 33, paras 20 and 35-36.

[15] The issue, however, is whether the circumstantial evidence supports inferences other than guilt. The Crown is not required to negate every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused: Villaroman, 2016 SCC 33, para 37.

[16] The alternative inferences must be reasonable but need not be as strong or as compelling as the inference of guilt. It is not enough for the Crown to prove that guilt is the strongest reasonable inference. It must be the only reasonable inference: R. v. Knight, 2019 ONSC 2443, para 20.

C. Was Hady Delgado in Possession of the Drugs in the Bedroom?

(i) Search of the Bedroom

[17] Unit 407 is a two-bedroom apartment with a living room, two bedrooms, a kitchen, and a bathroom.

[18] Officer Warren was a training officer with the Major Crime Unit at the time and this was the first occasion in which she was the “searching” officer. She was tasked with searching the bedroom believed to belong to Hady and was looking for items of clothing.

[19] Officer Warren described the room as small with two twin beds, a dresser, and a closet. She said that it was very messy. Clothes and miscellaneous items were piled all over the floor and on most of the surfaces of the room, and there was very little room to step between the two beds as it was full of clothing.

[20] Officer Warren found a pair of black track pants on the floor between the two beds and in the pocket found a quantity of cash with a small baggie that contained 2.55 grams of cocaine. She did not note which pocket the drugs and cash were found in but thought it might be the right pocket. Officer Warren did not take note of how much money was in the pocket.

[21] In a drawer under the bed closest to the window were two small, knotted baggies, one of which contained 4.55 grams of fentanyl and the other 1.68 grams of fentanyl. Officer Warren gave inconsistent evidence on whether this drawer was open upon entry to the room and whether the baggies were in plain view.

[22] In her evidence-in-chief, Officer Warren described that the drawer was open and the baggies visible when she first entered the room. On cross-examination, the officer was confronted with her evidence at the preliminary hearing where she said that the drawers were initially closed, and she had to open them. She explained this by saying that she had not articulated herself properly but that she initially closed the drawer to access the pile of clothes on the floor between the two beds and then re-opened it.

[23] Later, when shown an entry photo of the room with the drawer full of clothing, she agreed that the two baggies could not have been in plain view and that she must have moved all the clothing before she was able to see the two small baggies in the drawer.

[24] In the interior right pocket of a Canada Goose jacket hanging on the back of the door, Officer Warren found a clear bag which contained 107.28 grams of fentanyl. The pocket of the jacket in which the drugs were found had a zipper, but Officer Warren could not recall and did not have notes on whether the pocket was open or closed.

[25] On the floor by the closet under a pile of clothing, inside a pillowcase, inside a black sock, Officer Warren found a clear bag that contained 125.02 grams of fentanyl. The pillowcase and sock were not seized. There was no entry photo taken of the area of the room that contained the dresser and closet.

[26] Officer Warren testified that under a fan that was standing on a black box, she found a quantity of cash. She did not make note of how much money or the denomination of bills. Officer Warren testified that she found a digital scale on the dresser. The scale was not seized or tested.

[27] It is agreed between counsel that the total quantity of cash seized from the pants pocket and under the fan was $3,245. A shoebox containing documents in Hady’s name was also located.

[28] I found Officer Warren’s evidence somewhat troubling. Her recollection of where the items were found was vague, uncertain, and at times contradicted by the entry photos and her preliminary hearing evidence. While I do not believe she was being untruthful, the reliability of her evidence is a concern.

(ii) Evidence of Ana Bela Delgado

[29] Hady’s mother Ana Bela Delgado (“Ana Bela”) testified for the Crown. She testified that she has lived at 91 Spencer Avenue Unit 407 for 21 years with her husband and two sons, Hady and Jersey. Her two sons shared the bedroom in which the drugs were found. Hady slept in the bed by the window and Jersey slept in the bed closest to the door.

[30] Ana Bela was asked about the clothing all over the floor and explained that Jersey was the messy one, and that Hady was more organized. When asked about the clothing piled in the drawer under the bed by the window, she believed the clothing likely belonged to Jersey.

[31] Ana Bela believed that the Canada Goose jacket belonged to Jersey. Counsel for the Crown submitted that her evidence on this point was uncertain. I do not agree. When Ana Bela was first shown a photo of the jacket, she testified that she thought it belonged to Jersey. When shown a closer photo, she confirmed her belief that it was Jersey’s and that it was a Canada Goose jacket.

[32] Ana Bela testified Hady was home the night before the search and when she left for work in the morning. She was not asked whether Jersey was home the night before, but said she thought he was at school the next morning when she left for work.

[33] Ana Bela was not aware of any drugs in the apartment, and had she been aware of drugs in the possession of either of her children, she would have been angry and called the police.

[34] I am satisfied that Ana Bela’s evidence was both credible and reliable. She gave evidence that was both helpful and unhelpful to Hady’s defence. She did not exaggerate or try to distance Hady from the room or its contents.

(iii) Statutory Declaration of Jersey Delgado

[35] Jersey Delgado is 21 years old and resides at 91 Spencer Avenue Unit 407. Jersey was also charged with being in possession of the drugs and cash in the bedroom.

[36] Jersey signed a statutory declaration on January 17, 2025, where he attested to having no knowledge of the drugs or money found in the bedroom.

[37] According to the statutory declaration, Jersey had the benefit of advice from counsel, understood the consequences of making a false statement, and if called to testify would testify to the contents of the declaration.

[38] Attached to the statutory declaration was Jersey’s criminal record which indicates that he has a finding of guilt dated January 27, 2023, for assault for which he received a conditional discharge and probation for 18 months. I understand that Jersey was also convicted of possession of a firearm shortly after his arrest on these charges. I note that Jersey was on probation at the time of these offences.

[39] The theory of the Crown is that Hady and Jersey were either in constructive or joint possession of the drugs and cash. Crown counsel reasonably conceded that little weight can be attributed to Jersey’s assertion in the statutory declaration that he had no knowledge of the drugs and cash. Counsel also acknowledged that Jersey’s charges were stayed because of the statutory declaration.

[40] Jersey was facing the same charges as his brother and his charges were stayed upon the signing of the declaration. Jersey was not subject to cross-examination on the contents of the declaration. I have real concerns as to the reliability of the statutory declaration and in these circumstances, I agree that little weight can be attached to it.

(iv) Is There a Reasonable Alternate Inference on the Evidence?

[41] The Crown’s case in relation to possession of the drugs by Hady is a strong one. The room was small and shared by both brothers. The drugs were found in different locations around the room, albeit not in plain view. While the drugs were not in plain view, it is quite likely that Hady would have known about the drugs in the room. The question, however, is whether this is the only reasonable inference on the evidence that I do accept.

[42] It is not disputed that Hady had lived at 91 Spencer Avenue Unit 407 for 21 years, and that he and his brother Jersey shared the bedroom in which the drugs and cash were found.

[43] Counsel for Hady relied heavily on the case of R. v. R.-C.(K.), 2012 ONCJ 775 which involved a shared bedroom. In that case the 18-year-old accused was charged with possession of a loaded gun found in a Tupperware container in the closet of a bedroom he shared with his 20-year-old brother. Crack cocaine and a scale were found in a jewelry box in a desk in the room. Much like this case, clothes and shoes were all over the room.

[44] The court found that while both brothers had access to everything in the room, a person’s access to items in a room does not mean that person had knowledge of the items’ existence: R.-C.(K.), 2012 ONCJ 775, para 21. Ultimately the court was “highly suspicious” that the accused had knowledge of the items in the room but was not satisfied beyond a reasonable doubt.

[45] The Crown distinguished R.-C.(K.) from this case because the accused’s mother had testified that the brothers did not have assigned beds and would sleep in whichever bed they felt like. In this case, Hady’s mother identified the bed by the window, which had the drugs in the drawer below, as Hady’s bed.

[46] Crown counsel relied on R. v. Ndayihezagiye, 2023 ONCJ 85 that also involved a shared bedroom. In that case the accused was charged with possession of a firearm that was found in a room he shared with his 12-year-old brother. The firearm was found in an open Gucci satchel hanging behind the door, next to a small satchel that contained the keys to the accused’s car.

[47] The court in that case distinguished R.-C.(K.) and found that there was no reasonable alternate inference that the 12-year-old brother was in possession of the firearm either alone or with the knowledge of his older brother, based on the age difference, the location and weight of the gun in the bag, and the fact that the bag was in plain view.

[48] In Ndayihezagiye it was argued that the accused would have felt the weight of the Gucci bag that contained the firearm every time he opened or closed the bedroom door. Similarly, here the Crown argued it can be inferred that Hady would have known what was in the pillowcase because he was likely to have stepped on it in accessing the closet. In my view, anyone walking in Hady and Jersey’s bedroom would have been stepping on clothing and other miscellaneous items. I am not satisfied that had Hady stepped on the pile of clothing on top of the pillowcase, he would have had any idea that there was anything contained in it.

[49] In my view this case is more akin to the reasoning in R.-C.(K). I am satisfied that while Hady has access to everything in the room, that does not lead to an inference that he had knowledge of every item’s existence.

D. Conclusion

[50] I have reminded myself that the Crown’s burden of proof beyond a reasonable doubt is a heavy burden. It is not sufficient to believe that an accused is probably guilty. The standard, however, does not require the Crown to prove its case to the point of absolute certainty, as that would set an impossibly high standard. Reasonable doubt can arise from the evidence, or lack of evidence, and is a doubt based on reason and common sense: R. v. Lifchus, para 39.

[51] There is no forensic evidence such as fingerprint or DNA evidence to tie the drugs to either or both Hady and Jersey. The only evidence connecting Hady to the drugs in the room is his occupancy of the room.

[52] This evidence is suspicious but without more does not establish that Hady had any knowledge of the drugs in the room. The drugs were not in plain view. According to his mother, it is more likely that the clothes in the drawer where the fentanyl was found belonged to Jersey, and the Canada Goose jacket in which fentanyl was found also likely belonged to Jersey.

[53] I agree with the Crown that there is a strong inference that Hady had knowledge of the drugs in the bedroom. This, however, is not the issue. Counsel for Hady submits that there is an available alternate inference that the drugs belonged to Jersey and were hidden in the room, albeit carelessly, without Hady’s knowledge.

[54] In my view, this alternative is a reasonable possibility and one that is not “implausible” or “far-fetched”. I am not satisfied that the guilt of Hady is the only reasonable inference on the evidence, as there is a reasonable possibility that the drugs belonged to Jersey and were in the room without Hady’s knowledge.

[55] I am therefore not satisfied beyond a reasonable doubt that Hady Delgado was in constructive or joint possession of the drugs in the room. Hady Delgado will be found not guilty on counts 1 to 3 on the indictment.

[56] Hady Delgado was also arraigned on five counts of possession of identity information for a fraudulent purpose. The Crown called no evidence on these charges, and they will be marked as dismissed.

J.K. Penman
Released: February 12, 2025