ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
CHRISTOPHER MUSCLOW
COUNSEL:
Jason Mitschele and Iatasha Bachelor, for the Crown
Joe Wilkinson and Liam Thompson, for Mr. Musclow
HEARD: March 3-7, 10-14, April 16, May 2, May 5, May 16, 2025
Pinto J.
Charter Application and Trial Judgment
Overview
1Christopher Musclow stands charged that on July 6, 2017 he possessed over 2 kilograms of fentanyl for the purpose of trafficking (“P4P”) at a residential address in Toronto. He was tried before me, sitting without a jury. The matter proceeded as a blended voir dire and trial.
2The circumstances of Mr. Musclow’s alleged offence are that he called 911 at approximately 2:06 p.m. and advised that a female had overdosed. On the 911 call, he directed dispatchers to 419 Markham Road, an apartment building. Paramedics and uniformed police officers attended and found Mr. Musclow present with an unknown female who was lying unconscious in the lobby. Mr. Musclow confirmed that he was the 911 caller and that he was visiting his girlfriend in unit #812. Paramedics administered medication to the female and took her to the hospital. She ultimately recovered from a fentanyl drug overdose.
3Two officers attended at the 8th floor. On their way to unit #812 they noticed that the door to unit #810 was ajar. An officer knocked on the door of unit #812 and was greeted by a South Asian male and his family. The officers quickly determined that unit #812 was not connected to the events in the lobby.
4The officers on the 8th floor entered unit #810 on the basis that they were seeking potential other victims of the drug overdose. The officers learned over the police radio that an officer in the lobby was in foot pursuit of Mr. Musclow, who was later apprehended and placed under arrest. Among other items, the officers on the 8th floor located a paper bag in the middle of a bedroom that contained a white powdery substance. A subsequent search under warrant of unit #810 by Toronto Drug Squad officers determined that over 2 kilograms of fentanyl were located in the apartment. Mr. Musclow and Debra Kerr, a woman whose name appeared on the lease for the apartment, were charged with drug possession offences.
5Mr. Musclow submits that police breached his rights under ss. 7, 8, 9, 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms. He argues that police had no legal authority to enter and conduct a search of unit #810. He also argues that he was arbitrarily detained and not given his rights to counsel in a timely manner. He further alleges that police stole approximately $6,000 in cash that he had left in a dresser in unit #810. He submits that his charge should be stayed under s. 24(1) of the Charter or, in the alternative, that the drug evidence against him should be excluded under s. 24(2).
6For the reasons that follow, I find that police breached Mr. Musclow’s ss. 8, 10(a) and 10(b) rights but not his ss. 7 and 9 rights. I decline to stay the proceeding or to exclude the drug evidence, and the single drug possession charge against Mr. Musclow should be decided on its merits. On the trial proper, I find Mr. Musclow guilty of possession of fentanyl for the purpose of trafficking.
Agreed Statement of Facts
7The parties entered various evidence through one set of admissions and three Agreed Statement of Facts (“ASFs”):
(a) Admissions pursuant to s. 655 of the Criminal Code;
(b) ASF of Officer Daryl Gazey, a member of the Toronto Drug Squad;
(c) ASF of Officer Spencer Fraser, another member of the Toronto Drug Squad; and
(d) ASF with respect to the ICAD (Intergraph Computer Aided Dispatch).
Section 655 Admissions
8The parties agreed on several non-contentious issues pertaining to the Charter application and trial, including that the value of the fentanyl in the apartment was $406,000 to $486,960 at the gram level, and $181,250 to $290,000 at the ounce level.
ASF of Daryl Gazey
9On July 6, 2017 at 9:21 p.m., Officer Gazey and other Drug Squad members participated in the warranted search of unit #810. The Drug Squad members entered the unit after the seal to the unit was broken. The apartment was small and the officers knew within ten seconds of entry that no one was in the apartment. Another Drug Squad officer, Officer McCabe, made a search warrant entry video. Officer Gazey was responsible for searching the bedroom. He discovered a paper bag located on the floor of the bedroom. The top of the bag was of a design where you could look right down and see inside the bag. The paper bag was opaque and it was not obvious what was in the bag from the threshold of the bedroom.
10Officer Gazey had to stand over the bag and look down into it to observe the contents of the bag. In the bag, there were plastic bags containing quantities of powder, which when tested turned out to be fentanyl. Something in marker was written on the plastic bags. Officer Gazey had to manipulate the bags in order to observe the writing on them. The bag also contained a digital scale, which was not obvious looking into the bag from the top down. Officer Gazey had to manipulate the contents of the bag to see the scale.
11In the bedroom, Officer Gazey observed a vertical dresser to the left of the bedroom entrance. On top of the dresser was an Ontario Health Card bearing Mr. Musclow’s name and his federal parole documentation. The top drawer of the vertical dresser was closed when Officer Gazey entered the bedroom. Officer Gazey searched all the drawers in the dresser. In the top drawer, he discovered men’s underwear and socks, as well as a small bag of a beige powder which was later identified as Metandienone, a Schedule IV substance and anabolic steroid. Officer Gazey did not find any cash in the vertical drawer. Had he found any cash, it would have been seized as proceeds of crime. Also in the bedroom was a nightstand and a shorter, wider dresser. There were pill bottles for various prescription medications bearing Mr. Musclow’s name on top of the nightstand. The medications were not seized and were only filmed.
12All controlled substances were seized by Officer Gazey and transferred to Officer Fraser for processing.
ASF of Officer Spencer Fraser
13On July 6, 2017, Officer Fraser was responsible for searching the living room and dining room of unit #810. When Officer Fraser entered unit #810, he immediately noticed a bag of white powder on the burgundy armchair located in the centre of the living room. The bulk weight of the 5” x 5” bag seized from the armchair was 77.25 grams of fentanyl.
14The total weight of all suspected fentanyl seized from unit #810, which includes the contents of the paper bag found in the bedroom and the drugs found on the armchair in the living room, was 2,029.56 grams.
ASF with respect to ICAD
15An ASF was entered at trial appending an ICAD Details Report which accurately depicted the communications between the police and the 911 call centre in response to the 911 call placed by Mr. Musclow on July 6, 2017, and the criminal investigation that followed. The ICAD Details Report is a coded summary and not a written transcript of the police officers’ communications.
Witnesses
Crown Witnesses
16Five witnesses testified on behalf of the Crown:
(a) PC Laura Kolebniak (née Spencer): one of four police officers to first arrive on scene on July 6, 2017 responding to Mr. Musclow’s 911 call. I will refer to her as PC Spencer, as she was referred to in 2017.
(b) PC Christopher Bradley: another one of the four police officers to first arrive on scene, who was partnered with PC Vilvanathan.
(c) PC Theepan Vilvanathan: another one of the four police officers to first arrive on scene, partnered with PC Bradley.
(d) Sargent Mario Hrepic: the fourth police officer to first arrive on scene. He arrived at the apartment building a few minutes after Officers Spencer, Bradley and Vilvanathan.
(e) Amanda Ferderbar: the person who was found passed out in the lobby when first responders arrived at the apartment building. She provided her evidence at trial by way of CCTV.
Defence Witnesses
17The Defence called six witnesses:
(a) Debra Kerr, Mr. Musclow’s former girlfriend. She was the lease holder of unit #810, 419 Markham Road, where she resided with Mr. Musclow after his release from prison on June 27, 2017.
(b) Jason Musclow, the brother of the accused.
(c) Christopher Musclow, who testified in his own defence.
(d) Drug Squad Officers Stacey McCabe, Christopher Tracey, and Rajan Vhogal.
Other Admissions and Evidence
18CCTV video footage captured the events that took place in the lobby area of the apartment building. The parties agreed that the timestamp on the video was 12 minutes and 22 seconds behind the actual time.
19Until May 2, 2025, the trial proceeded on the basis that only the ICAD Details Report and CCTV video footage pertaining to the events of July 6, 2017 were available. However, on May 2, 2025, the Crown advised that the actual audio communications from the ICAD had been discovered and had been disclosed to the defence. Select audio clips of the officers’ radio communication were presented during the balance of the trial. Officers Vilvanathan, Spencer, Bradley, and Hrepic, and the accused, Mr. Musclow, were recalled in light of the newly discovered audio evidence.
Review of Evidence
Mr. Musclow’s background
20Mr. Musclow was born on April 27, 1984 and grew up in Ottawa. His parents divorced when he was a child. At the age of 10, he moved to Venezuela to live with his biological father as he did not get along with his step-father. He speaks English and Spanish fluently, and some French.
21Mr. Musclow has a significant criminal record. In 2003, he was convicted of trafficking in a Schedule II substance contrary to s. 5(1) of the Controlled Drugs and Substances Act (the “CDSA”), and for failure to attend court. He received a $100 fine and credit for four days of pre-sentence custody. In October 2004, he was convicted of several offences including three counts of robbery and one count of forcible confinement. He received a sentence of two years less a day for each charge to be served concurrently, and probation for three years. In March 2006, he was convicted for failure to comply with his probation order. He received a one day sentence and credit for 16 days of pre-sentence custody. In August 2006, he was convicted of robbery and failure to comply. He received a 36-month concurrent sentence and a weapons prohibition order for life. He received a statutory release on September 5, 2008. On February 19, 2009, he was recommitted to custody for violation of the terms of his statutory release.
22In June 2009, he was convicted of assault and received a 90-day sentence consecutive to the sentence he was already serving. In September 2009, he was convicted of carrying a concealed weapon. He received a 45 day sentence consecutive to the sentence he was already serving. In May 2012, Mr. Musclow was convicted of dangerous operation of a motor vehicle and failing to remain at the scene of an accident. He received a one day sentence and 70 days credit for pre-sentence custody.
23In August 2013, he was convicted of multiple robberies and using an imitation firearm. He received a total seven and a half years jail sentence. His statutory release date was June 27, 2017.
24Debra Kerr, 51 at the time of trial, testified that she met Mr. Musclow in 2012 through a newspaper advertisement that he had placed in the Toronto Star. At the time, Mr. Musclow was in custody for robbery convictions. In 2014, their relationship became romantic. In the summer of 2017, Mr. Musclow made arrangements to live with Ms. Kerr in Toronto following his release on parole.
From Mr. Musclow’s release on June 27, 2017 to the 911 call on July 6, 2017
25As Mr. Musclow’s statutory release date approached, he learned that the authorities in Quebec had decided to execute an outstanding warrant for his arrest from 2011 for multiple robbery charges out of Montreal. He was transported from Collins Bay institution in Kingston, Ontario to Rivières-des-Prairies Detention Centre in Montreal, Quebec where he pleaded guilty. He was sentenced to 40 months less time served. Notwithstanding his release on parole for his Ontario charges, he expected to spend another four months in custody in Quebec. To his surprise, late at night on June 27, 2017, he was released from custody in Montreal and found Ms. Kerr waiting to pick him up. Later, he learned that the authorities in Quebec had liaised with his Ontario parole officer and Ms. Kerr. Mr. Musclow and Ms. Kerr returned to Toronto and moved into unit #810 at 419 Markham Road, an apartment that Ms. Kerr had rented in anticipation of Mr. Musclow’s release.
26Over the years that Mr. Musclow was incarcerated, Ms. Kerr had sent money to his inmate trust account for canteen purchases and for his phone card. He ran up a debt to Ms. Kerr of approximately $10,000. Ms. Kerr testified that she maintained a close account of Mr. Musclow’s debts in a red spiral-bound notebook, which she kept in a shoebox in a linen closet in their apartment. She testified that Mr. Musclow said that he would pay her back when he was released from prison.
27Jason Musclow testified that, just prior to his brother’s arrest for the robberies in 2012, his brother lived with him. Mr. Musclow lent Jason some funds. While Mr. Musclow was incarcerated, Jason agreed to run certain financial transactions for his brother through a joint account at TD Bank held in the name of Jason and his wife. These transactions were in respect of tobacco and cannabis deals that Mr. Musclow had arranged while in prison. Jason received the funds into the TD joint account via e-transfer. The TD banking records were entered into evidence at trial. Jason also occasionally borrowed money from this account for his own use.
28Mr. Musclow confirmed that the funds that came into his TD Bank account were from “hustles” that he did while in custody at Collins Bay penitentiary. These included earnings at a poker table and from selling bags of weed or tobacco. When Mr. Musclow came out of jail in June 2017, he saw the red book kept by Ms. Kerr and was surprised at how meticulous it was. Ms. Kerr had dates, emails, and reasons for every single dollar that she loaned to Mr. Musclow. Mr. Musclow testified that the red book was placed in a box with all the letters and cards that he had sent to Ms. Kerr while he was in prison. The red book went missing after July 6, 2017 and was never found.
29On June 30, 2017, two days after Mr. Musclow’s release on parole, Jason attended 419 Markham Road where Mr. Musclow and Ms. Kerr were staying. Jason testified that he brought $8,700 in cash in a white envelope, which he handed to Mr. Musclow when they met in the parking lot of the apartment building. Mr. Musclow immediately counted the money, wrote the amount on the envelope, and put the envelope in his pant pocket. Jason also brought Mr. Musclow a puppy that Jason had bred.
30Mr. Musclow and Ms. Kerr testified that Mr. Musclow kept the envelope with the funds in the upper left corner of a tall-boy dresser in the bedroom of unit #810. Mr. Musclow testified that, in the same drawer, he kept some steroids in a tied-off corner of a sandwich bag, as well as one or two Suboxone tablets which he had taken with him when he was released from prison. He had been prescribed Suboxone while in the penitentiary. At one point, he had an opioid addiction and had come off methadone. He testified that he used Suboxone closer to the time of his release from the penitentiary in late June 2017.
31In the period between June 27 and July 4, 2017, Mr. Musclow testified that he bought around $800 worth of clothes. He also purchased a gym membership for about $60, protein powder, and creatine. He testified that he purchased these items from money in the envelope in the dresser. He also purchased a motorcycle for $1,500 and a bike helmet that he planned on using to get to work.
32On the evening of July 5, 2017, Mr. Musclow and Ms. Kerr discussed Mr. Musclow’s debt to Ms. Kerr. Ms. Kerr testified that they counted the money in the envelope and the remaining amount was slightly under $6,000.
The events of July 6, 2017
33On the morning of July 6, 2017, Mr. Musclow and Ms. Kerr left the apartment sometime between 8:00 and 8:30 a.m. Ms. Kerr drove Mr. Musclow in her car to attend an appointment at Service Ontario. Mr. Musclow wanted to surrender his old driver’s license and get a new Ontario Photo ID card. Ms. Kerr testified that before they left the apartment, she noticed the envelope full of cash in its normal place in the left side of a tall-boy dresser in the bedroom. After they completed their business at Service Ontario, Ms. Kerr drove Mr. Musclow back to the apartment and dropped him off in the building driveway at about 10:00 a.m. She then headed to work in mid-town Toronto.
34Mr. Musclow testified that once he returned to the apartment, he tidied up, had a shower, made breakfast, took the puppy for a walk, and went on Facebook. Amanda Ferderbar, a woman he had had known from his teenage days, messaged him on Facebook asking for help. He was using Ms. Kerr’s laptop computer to access Facebook.
35Mr. Musclow testified that, a few days earlier, Ms. Ferderbar’s contact had come up on his Facebook account as a suggested friend. He knew it was Ms. Ferderbar based on her picture and profile, even though her account was not in her name but under the name “Tiger Blue-Eye Princess.” He had always known Ms. Ferderbar to be a sex worker. He had not spoken to her in 15 years. He wrote, “hey, what’s up, how are you doing?” He told her that he had just got out of prison and that it would be nice to see her. He testified that even though he did not use the word “sex”, it was implied that he wanted to have sex with her.
36Mr. Musclow testified that, on July 6, 2017, sometime between 10 and 11 a.m., Ms. Ferderbar contacted him and told him that her boyfriend had beaten her up. She had been drinking heavily and needed somewhere to go that was safe. She did not specifically ask to come over to Mr. Musclow’s apartment, but he asked if she had somewhere to go and eventually told her that she could come over to his apartment. Ms. Ferderbar said she needed liquor, and he told her to grab a bottle and he would give her money when she got to his place.
37On Mr. Musclow’s evidence, Ms. Ferderbar arrived by taxi at the apartment building somewhere around 1:00 p.m. Mr. Musclow went downstairs and met Ms. Ferderbar as she exited her taxi. She had already paid for the taxi, but Mr. Musclow gave her money for the fare. He observed that Ms. Ferderbar had a large black tote bag with her. It had big straps and was made from a hard plastic, possibly vinyl or polyurethane. Ms. Ferderbar looked like she had been assaulted. She had black eyes and her nose was swollen. It was obvious that she was inebriated. Mr. Musclow and Ms. Ferderbar went back up to the apartment. Once Ms. Ferderbar entered the apartment, he led her to the bedroom where she put her large black tote bag down.
38Mr. Musclow testified that he could see the following contents in Ms. Ferderbar’s tote bag:
(a) an LCBO bag, which contained a bottle of wine and a bottle of vodka;
(b) a blue and pink striped make-up bag;
(c) a black purse;
(d) some clothing; and
(e) a paper bag that had two paper wire handles. Mr. Musclow described this as a “dark, sparkly bag” and identified it as the same bag in which police found almost two kilograms of fentanyl.
39Mr. Musclow testified that Ms. Ferderbar sat on the bed. He tried to play with her hair and kiss her. However, she said she needed a shot. She took the LCBO bag out of her large black tote bag and they walked towards the kitchen.
40Once in the kitchen, Ms. Ferderbar got some glasses, poured some vodka, and offered him some, but he declined. Ms. Ferderbar drank a “good gulp” of vodka, emptying the contents of the glass, went into the living room and sat in one of the two burgundy armchairs. Mr. Musclow pulled the burgundy armchair that he was sitting in closer to Ms. Ferderbar. He let her know that he wanted to sleep with her. He eventually decided to take the shot of vodka that was left in the kitchen and returned to the living room. Ms. Ferderbar told him that she wanted to get high first. He asked Ms. Ferderbar, “high on what?” and she told him to hold on, went into the bedroom, and when she came back out, she had her tote bag and put it beside her.
41Mr. Musclow testified that Ms. Ferderbar set the tote bag on the floor and pulled a plastic bag halfway out of the tote bag. He could see there was white powder in the plastic bag. Ms. Ferderbar told him that it was fentanyl. She dipped a key into it and leaned over to him. At the time, he had just got out of jail, had never tried fentanyl, but had heard about it and knew it was dangerous. He figured she knew what she was doing, so he tried a little bump of fentanyl that was on the end of the key. He covered one nostril, Ms. Ferderbar held the key up to his other nostril, and he sniffed.
42Mr. Musclow was shown the search warrant entry video of unit #810 taken by police officers. He identified the baggie with white powder that police located on a burgundy armchair in the living room as the same plastic bag with white powder that Ms. Ferderbar pulled from her tote bag. He testified that, after he moved the armchair, the corners of the two armchairs (i.e., the ones that each of them was sitting in) were almost touching, maybe six inches apart, so that when they were sitting, they were “like knee to knee.” He agreed that the burgundy armchairs shown in the search warrant entry video were not in the same position as when he and Ms. Ferderbar were seated together. He also agreed that the armchair with the baggie of drugs on it came to be in the position it was seen on the search warrant entry video because he moved it there. He also testified that the baggie of drugs ended up on the armchair because he placed it there.
43Mr. Musclow testified that, after he did the bump of fentanyl, he passed out. When he came to, he was seated in the armchair with a rag on his neck or head. He testified that it was the armchair that had the baggie of drugs on it in the search warrant entry video. Ms. Ferderbar told him that he was out for 30 or 45 minutes. He was surprised by her nonchalance as she was just watching TV. He was shocked that he passed out as he had never passed out before. He was scared and immediately got up and went to the kitchen. He poured some water in a glass, added some instant coffee to it, and drank it.
44He was worried about what Ms. Ferderbar was doing while he was passed out. He went to the dresser in his bedroom and counted his money. He did not find anything missing so he went back into the living room and sat down. He was sure that, when he went into the bedroom, the paper bag with the drugs that police later found was not there.
45After he returned to the living room and sat down, he had a brief exchange with Ms. Ferderbar about the fentanyl. She asked him how he felt. He did not feel any euphoria and it was not pleasant. He asked to look at the baggie of fentanyl. Before Ms. Ferderbar handed him back the baggie, she told him that it was her turn to get high. She took a little bit of the fentanyl with a key and put it on a table that was sitting between the two burgundy armchairs. Mr. Musclow clarified that there was a mistake in his affidavit sworn July 10, 2018 in support of his Charter application where he stated that Ms. Ferderbar did fentanyl off a key. In fact, she used the key to get the fentanyl out of the baggie and put some fentanyl on the table. She then asked Mr. Musclow for a bill. He pulled out a $100 bill that was in his wallet and handed it to her. She rolled it and used something to separate the fentanyl on the table into four lines. She bent down and sniffed two of the lines. He was still holding the baggie. Ms. Ferderbar stood up and as she suggested doing another line, she slumped to the floor.
46Mr. Musclow became very panicked and was not sure what to do. He had some Suboxone pills that had Naloxone in them. He retrieved them from the dresser drawer in the bedroom, crushed either one or two pills and placed them under Ms. Ferderbar’s tongue to make the pills act faster. He recalled that he left the top dresser drawer open about 6 inches and never closed it again. He waited to see if there was any change in Ms. Ferderbar but nothing happened. He tried giving Ms. Ferderbar CPR. He noticed her colour change and decided to call 911.
47The 911 call was received at 2:06:31 p.m. During the call, Mr. Musclow gave his apartment number as unit #111. He testified that he did so because, at the time, he was on parole. He did not want police coming to unit #810. He also knew that he was going to bring Ms. Ferderbar down to the lobby, so he told the 911 operator that she was in the lobby. In fact, he was calling 911 as he was bringing Ms. Ferderbar downstairs. Mr. Musclow tried unsuccessfully to carry Ms. Ferderbar in his arms. He realized that he could not do so; therefore, he put his arms behind her armpits and dragged her with her feet on the floor to the elevator.
48The camera footage from the building’s lobby shows paramedics arriving on scene at 2:11:15 p.m. and initially heading down a hallway off the lobby. At 2:12:41 p.m., Mr. Musclow is seen dragging Ms. Ferderbar into the lobby having come out of the elevator. She is completely passed out. At 2:13:21 p.m., paramedics return to the lobby and start tending to Ms. Ferderbar just as PC Vilvanathan arrives on scene followed by PC Bradley.
49Mr. Musclow told paramedics that the woman’s name was Amanda, that she overdosed on fentanyl, and needed Narcan. The paramedics continued working on her. Mr. Musclow’s puppy can be seen in the camera footage. He testified that he did not intentionally bring his puppy down to the lobby, it just followed him.
50Mr. Musclow testified that he did not have any direct conversation with PC Bradley. However, he was questioned by PC Vilvanathan. He answered that he was visiting his girlfriend in unit #812, that he did not live there, and that he saw a woman overdosing, called 911, and helped her downstairs. He did not tell the officers that the woman overdosed in unit #812.
51He told the officers unit #812 because he panicked and was confused at that point. He was aware that, at this point in 2017, there was a new law called the Good Samaritan Law and the government was running advertisements about it constantly. He understood the Good Samaritan Law to mean that if you called 911 in respect of a drug overdose, you did not have to worry about being charged by the police because the purpose of the law was to save lives.
52PC Vilvanathan testified that he asked for Mr. Musclow’s name and his date of birth, which he provided. PC Vilvanathan made notes. Mr. Musclow testified that PC Vilvanathan also asked him a number of questions about his girlfriend, what drugs she consumed, and his relationship to the building. He told PC Vilvanathan that she used cocaine and MDMA but did not mention fentanyl. He was getting uncomfortable with PC Vilvanathan’s questions. PC Vilvanathan asked him if he minded if officers walked through unit #812 and he said that he did. PC Vilvanathan told him, in that case, the officers were going to seal the unit and get a warrant to search the premises. After PC Vilvanathan closed his notebook, he told Mr. Musclow that police were going to hold him until they obtained a search warrant.
Amanda Ferderbar’s evidence
53Ms. Ferderbar provided a different account of how she ended up at unit #810. She agreed that she had known Mr. Musclow since her teenage days. However, she testified that two to three weeks before July 6, 2017, Mr. Musclow messaged her on Facebook to recruit her to sell drugs, specifically fentanyl, given her wide social circle. She declined to sell drugs for him. Prior to that, the last time she had seen Mr. Musclow was when she was 16 or 17 years old. She was 33 years old in July 2017 and almost 40 at the time of trial.
54Ms. Ferderbar acknowledged that she is an alcoholic with addiction issues. She testified that she started drinking at 5 a.m. in the morning on July 6, 2017. She arrived by taxi at Mr. Musclow’s apartment. She brought a tote bag that contained her wallet, a bottle of vodka, and a makeup bag.
55When she got to the apartment, Mr. Musclow showed her his red motorcycle. She testified that Mr. Musclow took some fentanyl, and she asked him how he was going to “get through this going to court”. He showed her a bag with suspenders, which she described as a “piss bag.” Ms. Ferderbar was referring to a device by which Mr. Musclow, who was on parole, was going to evade drug testing despite using fentanyl.
56Ms. Ferderbar testified that Mr. Musclow passed out after doing fentanyl. She put a cold rag on his head. He woke up and thanked her for helping him out. She did two lines of fentanyl, and her next memory was waking up in a hospital with doctors and nurses telling her that she was lucky to be alive.
57Ms. Ferderbar denied being a drug dealer or ever trying fentanyl before July 6, 2017. She did not know where Mr. Musclow obtained the fentanyl from. However, the fentanyl that she used was from the coffee table. She did not see fentanyl anywhere else in the apartment. She never went into the bedroom of unit #810. She only went into the living room, kitchen, and bathroom.
58She acknowledged that she has a criminal record. Her criminal record starts on November 19, 2009 with two convictions in relation to the use of a credit card. She received a suspended sentence and probation for 18 months on each charge concurrent. On October 7, 2014, she was convicted of failure to comply with a recognizance. She received a suspended sentence and probation of 12 months, less seven days pre-sentence custody.
59On November 19, 2014, she was convicted of mischief under $5,000. She received a suspended sentence and probation of 12 months and a discretionary weapons prohibition order for five years. Also, on this date she received a conviction for assault of a peace officer and received a suspended sentence and probation for 12 months.
60Ms. Ferderbar’s last conviction was on November 24, 2014, for failure to comply with a bail condition. She received a suspended sentence and probation for 12 months.
61She acknowledged using drugs on July 6, 2017, but prior to that she had not used drugs since her early twenties.
62Ms. Ferderbar agreed that she messaged Mr. Musclow on July 6, 2017 advising that she had been in a fight with her boyfriend. She may have told him that she needed somewhere to go. She insisted that Mr. Musclow wanted her to sell drugs for him for at least two to three weeks prior to her coming over to his apartment. Ms. Ferderbar agreed that she brought a bottle of vodka to the apartment, but denied that she brought a bottle of wine as she does not drink wine. She testified that the contents of her tote bag were her makeup bag, wallet, pajama shorts, vodka bottle, and cell phone. She agreed she was planning on staying somewhere other than her home that night, but not necessarily with Mr. Musclow.
63Ms. Ferderbar was shown the search warrant entry video paused at an image of her black tote bag, makeup bag, and wallet. She agreed that the location of her tote bag was different than where she placed her bag when she first came into the apartment, which was by the balcony door. She did not know how the tote bag got moved to the location seen in the search warrant entry video.
64Ms. Ferderbar denied ever kissing Mr. Musclow or flirting with him. She denied that Mr. Musclow ever asked to have sex with her. She acknowledged pouring two to three shots of vodka in the kitchen for herself, but testified that she did not offer Mr. Musclow a shot of vodka as he does not drink.
65She denied that she told Mr. Musclow that she wanted to get high first before engaging in sex. She insisted that she is an alcoholic, not a drug user. She also denied going into the bedroom and retrieving her tote bag or retrieving a plastic bag of white powder from the tote bag. She also denied giving Mr. Musclow a bump of fentanyl off a key. She testified that after Mr. Musclow took the fentanyl, he passed out. She put a cold washcloth on his head, and when he came to, he thanked her. In cross-examination, she could not remember how Mr. Musclow ingested the fentanyl; but in re-examination, she testified that Mr. Musclow used a hundred-dollar bill of his own. She disagreed that Mr. Musclow was freaked out about being unconscious. She also disagreed that Mr. Musclow went into the bedroom after he had recovered consciousness. Rather, he sat on the burgundy chair. She agreed that she did two lines of fentanyl that day.
66Ms. Ferderbar denied the defence’s suggestion that she stole roughly two kilograms of fentanyl from a man named Vanniu, also known as Dragon, and that she tried to hide the drugs by coming to Mr. Musclow’s apartment. She also denied that the reason she got into a fight with her boyfriend was because he was unhappy that she had stolen drugs. She testified that she did not recognize the paper bag containing the large quantity of drugs found in the bedroom. She acknowledged being charged along with Mr. Musclow with possession of fentanyl for the purpose of trafficking. She signed a statutory declaration on April 11, 2018 in which she denied any possession of the fentanyl found in the apartment.
Evidence of Police Officers on scene
67On July 6, 2017, PCs Bradley and Vilvanathan were working in primary response in a uniformed capacity. At 2:07 p.m., they received a radio call advising that a male had called 911 and reported a person who had overdosed needing Narcan. The caller had identified the address as 419 Markham Road and mentioned unit #111. The caller hung up before the emergency dispatcher could obtain further information.
68PC Vilvanathan testified that emergency services received an echo-tiered 911 call, which is an emergency call requiring an immediate response from police, fire, and ambulance services. Whichever service arrived first would tend to the call. PCs Vilvanathan and Bradley arrived at the building lobby at 2:13:17 p.m. They noticed a woman who was unconscious, lying on her back in the lobby while being attended to by two EMS paramedics. PC Vilvanathan did not think the woman was going to survive the overdose. A male holding a puppy was standing beside the woman. The male identified himself to PC Vilvanathan as “Joseph Musclow” and as the person who had called 911. He provided a birthdate, phone number, and email address. He said that his address was “812 – 419 Markham Road.” Mr. Musclow told PC Vilvanathan that the woman in the lobby was “Amanda”, that she was known to have used MDMA or uppers, and that she had had a fight with her boyfriend and had come over “to the apartment, or his apartment.”
69PC Vilvanathan testified that he asked Mr. Musclow what apartment he lived in because PC Vilvanathan believed that the woman had passed out somewhere else and not in the lobby where everyone walked through. Mr. Musclow indicated that the woman had come over to his place so PC Vilvanathan believed that the woman may have taken drugs in Mr. Musclow’s apartment.
70As Mr. Musclow was answering the officers’ questions, PC Spencer arrived on scene at 2:16:42 p.m. PC Bradley determined that he wanted to go up to the 8th floor to see if he could obtain some identification for the female in the lobby so that paramedics could present the identification at the hospital. At 2:19:19 p.m., PC Bradley and PC Spencer took an elevator up to the 8th floor.
71PC Vilvanathan stayed on scene as EMS personnel and firefighters placed the female, later identified as Ms. Ferderbar, on a stretcher for transportation to Scarborough General Hospital. At 2:20:07 p.m., PC Vilvanathan and Mr. Musclow exited the lobby and went outside the building.
72Upstairs on the 8th floor, PC Spencer turned left and PC Bradley turned right as they exited the elevator. As PC Bradley headed down the hallway to unit #812, he noticed that the door to unit #810 was wide open with about three-quarters of the apartment visible from the threshold. At 2:20:44 p.m., PC Bradley radioed PC Vilvanathan to confirm whether the correct unit number was #810 or #812, and PC Vilvanathan responded #812.
73PC Bradley proceeded to unit #812 and knocked on the door. Around 2:21:19 p.m., a man of South Asian origin answered the door with a young child in his arms. He told PC Bradley that he had lived in the unit for a couple of years with his wife and son. PC Bradley concluded that unit #812 was not the unit where the drug overdose had occurred. At 2:21:38 p.m., PC Bradley told PC Vilvanathan to caution Mr. Musclow for obstruction of justice and to arrest him if he lied again. The question of whether PC Vilvanathan immediately cautioned Mr. Musclow is in dispute.
74PC Spencer testified that she had never responded to an overdose where the victim had been removed from the scene to get medical attention. It seemed very strange to her. In her experience, drug overdoses are not usually a solo activity. She wondered if somebody else was injured or in need of medical attention. She had a conversation with PC Bradley, who was on scene with his partner PC Vilvanathan. PC Bradley gave her a bit of additional information about how the female came to be in the lobby, and they made the decision to go up to where the overdose victim came from.
75PC Spencer testified that, once she was on the 8th floor and heading back towards unit #812 and PC Bradley, she noticed that the door to unit #810 was ajar, which felt odd to her. She described the door as 6 to 12 inches open. Later in the proceeding, PC Spencer was presented with PC Bradley’s evidence that the door was wide open, and she did not have an explanation for the discrepancy in their evidence.
76PC Spencer continued down the hall toward unit #812. When she was beside PC Bradley, she heard PC Bradley say to PC Vilvanathan over the radio that unit #812 was not the right unit. At 2:21:57 p.m., PC Vilvanathan radioed that he would check with the superintendent, but Mr. Musclow was adamant that it was unit #812.
PC Spencer and PC Bradley’s entry into unit #810 and discovery of drugs
77Based on the officers’ audio communications and testimony, I find that PCs Spencer and Bradley entered unit #810 around 2:21:45 p.m. When the officers entered unit #810, PC Spencer testified that the officers were conducting a search for people, not items. PC Spencer turned right into a small hall that led to a bathroom and a bedroom. PC Bradley turned left into the living room and kitchen area. The apartment was a small one-bedroom apartment.
78Upon walking down a hallway, PC Spencer could see a bathroom. She could see that there was a substance in the toilet. It may have been vomit or feces. She could not be sure, as she did not closely inspect it. From the threshold of the bedroom, she could see a dresser on the left and a bed up against the wall on the right. She testified that she could not, at the threshold of the bedroom, definitively determine if there were any people in the bedroom. She could not see the other side of the bed, or into the closet, or the other side of the dresser. She walked into the room to sort of make a circle around the room to check corners.
79She noticed a shopping bag made of brown paper in the middle of the floor between the dresser and the bed. It seemed very oddly placed, as it was just in the middle of the floor. The room was pretty neat other than that. She could only see the bag itself from the threshold of the room and that it was open. She approached the bag because it was odd and something unusual in the room. She had a bird’s eye view looking down into the bag. She was at standing height. Her height is 5’ 4”.
80She could see a clear plastic bag that contained what looked like more smaller plastic bags. They were Ziplock bags full of white powder. She could see the letters “POW” and separately “RAP” written on the bag in red marker. She also noticed a silver square scale tucked down the side of the bag. She testified that she did not touch, manipulate, or move the bag. She went to tell PC Bradley what she had found. She suspected it was drugs. He came into the bedroom and they had a brief conversation about what they thought it was, and decided to get a search warrant.
81PC Spencer testified that PC Bradley stood beside her in the bedroom. He had the same vantage point, standing, looking down into the bag which was at their feet. She did not see PC Bradley touch, manipulate, or move the bag. She cannot remember PC Bradley’s exact words but remembers him telling her that he suspected that it was fentanyl.
82PC Bradley also testified about the officers’ entry into unit #810. He turned left into the apartment and did not see anyone around. There was a kitchen on his left. He noticed a cup of water on the floor, and some vomit at the edge of the kitchen sink. He continued to make his way through the kitchen towards the back of the apartment where there was a balcony. He went onto the balcony and noticed some pee pads and water for a puppy. He recalled that Mr. Musclow had a puppy down in the lobby. He came back inside the apartment and noticed a number of other items, including a couch and a table.
83On a table was a black leather wallet and a pink makeup bag and some clothes beside a bag. He made his way over to the wallet because it looked like a female’s wallet. He opened the wallet to see if he could find a health card for “Amanda.” He did not find a health card but found a birth certificate. It was while he was holding the birth certificate and reading it that PC Spencer called his attention to the bedroom. As he was about to head over to the bedroom, the birth certificate fell out of his hands onto the floor. He bent to pick it up and, as he was bent over, he could see that there was a Ziploc baggie on a burgundy chair that looked like it contained a white powdery substance. He then made his way over to the bedroom.
84PC Bradley testified that he stood on the inside of the threshold of the bedroom. PC Spencer said that she thought she had found a bag of drugs that was lying in the middle of the bedroom floor. She said that within it there were some larger bags of a white powder and a large scale. PC Bradley did not look at the bag himself. He scanned the room with his eyes and his attention was drawn to an open drawer of a dresser to the left, which was full of clothes. On top of those clothes was a tiny individually wrapped bag of white powder.
85He told PC Spencer that they should probably exit the apartment, seal it, and obtain a search warrant. The only thing seized at that point was Ms. Ferderbar’s birth certificate, which was still in PC Bradley’s hands. He testified that the police objective had switched from lifesaving to a criminal investigation.
86At 2:22:44 p.m., PC Bradley radioed to advise that the door to unit #810 was wide open, officers went into the unit to check for other victims, but based on what they found, they needed to seal the unit.
87At approximately 2:27 p.m., PC Spencer and PC Bradley were about to exit the apartment when Sargent Hrepic showed up with a puppy that he was looking to leave in the unit. The officers advised Sargent Hrepic about what they had found in the unit. PC Bradley went to the balcony and grabbed a bowl of water for the puppy but changed his mind when he realized that a search could take several hours. He decided that they should probably not leave the puppy inside the unit.
88The officers communicated over the radio that they needed a seal for the door. Officer Tindall came up with a police seal and turned the seal over to PC Bradley. PC Bradley did not lock the unit because he did not have a key at that point, so officers remained at the door and unit #810 was sealed at around 2:30 p.m.
Foot pursuit and arrest of Mr. Musclow
89At 2:21:57 p.m., when PC Vilvanathan was in the vestibule area downstairs with Mr. Musclow and Sargent Hrepic, he radioed to say that he would check with the superintendent, but Mr. Musclow was adamant that the correct unit was unit #812.
90At 2:22:11 p.m., PC Vilvanathan re-entered the lobby. Following behind him was Mr. Musclow, holding a puppy in his arms, and Sargent Hrepic. PC Vilvanathan spoke to the building superintendent in the lobby.
91At 2:22:28 p.m., the superintendent left the lobby and headed down a hallway to his office to the right of the camera angle. Sargent Hrepic followed him.
92At 2:22:38 p.m., PC Vilvanathan spoke into his radio. PC Vilvanathan testified that, around this time, PC Bradley radioed down to ask if unit #812 was the right apartment. PC Vilvanathan asked Mr. Musclow if it was, and Mr. Musclow agreed.
93At 2:22:44 p.m., PC Bradley radioed to advise that the door to unit #810 was wide open, officers went into unit to check for other victims, but based on what they found, they needed to seal the unit.
94At 2:23:04 p.m., the superintendent emerged out of the hallway, came back into the lobby, and spoke to PC Vilvanathan. Sargent Hrepic stood just behind the superintendent. Mr. Musclow testified that the superintendent told PC Vilvanathan that he had repaired a fan in unit #810 and recalled seeing Mr. Musclow there. PC Vilvanathan told Mr. Musclow that this was his last chance to confirm the correct unit number and Mr. Musclow again insisted that it was unit #812. Mr. Musclow testified that the superintendent addressed him directly saying that he saw him in unit #810, and that he could show him a work order that would confirm it.
95At 2:23:13 p.m., the superintendent left the lobby again and headed into the same right hallway followed by Sargent Hrepic.
96At 2:23:35 p.m., the superintendent returned to the lobby holding some paperwork, closely followed by Sargent Hrepic. Sargent Hrepic testified that he obtained the correct unit number, #810, for Mr. Musclow from the superintendent’s office, and he mentioned this to PC Vilvanathan who was standing about a metre away from Mr. Musclow.
97As soon as PC Vilvanathan turned his back to Mr. Musclow, Mr. Musclow put down the puppy, turned around, and ran away from the police officers. Mr. Musclow testified that the reason why he ran away was because he heard over PC Vilvanathan’s radio that police found white powder in the unit. Sargent Hrepic testified that he heard no such thing.
98Later in the trial, following the discovery of the police officer’s audio communications, Mr. Musclow acknowledged that no such comment about powder being found in the apartment was made, but he still had the impression that it was made. He revised his testimony to say that the exact message that he heard was something like “the door was open and we went in to check for bodies and we’re going to have to seal it because of what was found.”
99At 2:23:37 p.m., PC Vilvanathan and Sargent Hrepic commenced a foot pursuit of Mr. Musclow, which was not caught on camera. PC Vilvanathan testified that he chased Mr. Musclow down a hallway with apartments on each side. PC Vilvanathan caught up to Mr. Musclow and tackled him from behind just as Mr. Musclow was running up some stairs. PC Vilvanathan handcuffed Mr. Musclow and arrested him for obstruction of justice. Mr. Musclow had a cut on his head from falling on the stairs. PC Vilvanathan testified that he read Mr. Musclow his rights to counsel at the stairwell, and that Mr. Musclow said he understood his rights, but did not want to speak to a lawyer at that time.
100Mr. Musclow denied that PC Vilvanathan or Sargent Hrepic read him his rights to counsel in the stairwell.
101At 2:24:05 p.m., PC Vilvanathan radioed that he had “one in custody.”
102PC Vilvanathan testified that, following Mr. Musclow’s arrest, as he was escorting him down a hallway back toward the entrance of the building, Mr. Musclow told him that there was fentanyl in the apartment upstairs and that Mr. Musclow could give him information on other dealers or criminal activity. PC Vilvanathan testified that he did not make any promises, threats, or offer any inducements in respect of these comments.
103Mr. Musclow denied saying anything about fentanyl upstairs or offering to provide information about dealers or criminal activity.
104PC Vilvanathan testified that he cautioned Mr. Musclow not to talk as he was under arrest, but Mr. Musclow continued to say that he could get the police bigger dealers and provide information. PC Vilvanathan testified that he still did not know that police had entered unit #810.
105PC Vilvanathan acknowledged that there is an obligation to re-caution a detainee when there is a change in jeopardy, but he did not believe there was a change in Mr. Musclow’s jeopardy because he had no confirmation that Mr. Musclow was actually in possession of fentanyl.
106At 2:25:14 p.m., the lobby camera captured PC Vilvanathan escorting Mr. Musclow, who was in handcuffs, out of the building towards a police cruiser. Officer Hrepic picked up the puppy and spoke to the superintendent.
107At 2:25:41 p.m., Sargent Hrepic exited the building holding the puppy in his arms, apparently to follow PC Vilvanathan and Mr. Musclow.
108At 2:26:59 p.m., Sargent Hrepic reentered the building and entered an elevator holding the puppy.
109At 2:37:31 p.m., PC Vilvanathan said to the dispatcher, “DAS [meaning the ambulance] left prior to us getting the info about fentanyl. Can you let them know so that …(indecipherable). The dispatcher responded, “10-4. I told them over the phone but I will call them back.”
110At 2:40:38 p.m., Sargent Hrepic said to the dispatcher, “He [i.e. PC Vilvanathan] has the keys and he has the phone now. He just wanted to make sure that the officers upstairs know the drugs that are inside. He is on the phone now with them so everything is okay.” The dispatcher responded, “Sorry, can you repeat that? Sounded like we were getting another transmission at the same time.” Sargent Hrepic replied, “The officer that is with the body wanted to make sure that the officers that are up in the unit are aware of what kind of drug they are dealing with and they are talking on the phone now so everything is fine.” This communication ended with the dispatcher saying, “10-4. An ambulance has been updated on that as well.”
111Mr. Musclow testified that, after he was sitting in the police cruiser for a few minutes, PC Vilvanathan provided him with his rights to counsel for obstruction of justice. He testified that he had no idea that there was a large quantity of fentanyl in the sparkly paper bag that police found in the bedroom. He never touched that bag or placed it in the location where it was found. He admitted to having the small baggie of fentanyl in his hands for around two to three minutes and knowing that the contents were fentanyl.
112In cross-examination, Mr. Musclow testified that when he and Ms. Ferderbar sat down in the living room, Ms. Ferderbar’s tote bag was still in the bedroom where she had left it after first coming into the apartment. So when she suggested first getting high, she went to the bedroom, grabbed the bag and came back into the living room. At that point, Mr. Musclow noticed that the sparkly bag was absent from her tote bag. He testified that he was, “very observant, especially when I have women come over or friends, like I’m always watching everything.” He noticed that when she brought the tote bag into the living room, the sparkly bag wasn’t in it.
113Mr. Musclow was asked about his testimony in chief that, after he had woken up from passing out from fentanyl, he went into the bedroom to check that Ms. Ferderbar had not stolen any money, and he was 100% sure that the sparkly bag was not in the bedroom. He testified that what he meant to say was that he could not say with any certainty that he saw the sparkly bag in a specific place. Later he testified, “I can only say that [the sparkly bag] wasn’t in the middle of the floor like that in the bedroom.”
114PC Bradley and PC Vilvanathan transported Mr. Musclow to the police division.
115PC Vilvanathan testified that, once they arrived at the police division, he requested a strip search of Mr. Musclow. In cross-examination, he acknowledged that he did not specifically mention to the booking Sargent that Mr. Musclow had made an utterance about fentanyl upon arrest. Rather, PC Bradley mentioned that there were potentially some drugs in the apartment. Moreover, PC Vilvanathan did not want to put on the record that Mr. Musclow was trying to provide source information.
Evidence of Debra Kerr
116Ms. Kerr testified that on July 6, 2017 she finished work and returned home at about 6:00 p.m. She got off the elevator and noticed two police officers outside her apartment door. She was arrested, taken to a police station, and released the next day on bail.
117She testified that she had never seen the paper bag in which police found the large quantity of fentanyl. She denied owning a kitchen scale. She testified that all her property was recovered, except for the roughly $6,000 in cash in the tall-boy dresser, the red journal in which she recorded Mr. Musclow’s debts to her, the shoebox in which the journal was kept, a blue Fuji camera, and an Oxford Property gift card worth $400 given to her by her employer.
118Ms. Kerr testified that following Mr. Musclow’s release from prison in June 2017, she never saw him intoxicated by drugs or alcohol. She never saw non-prescription drugs or alcohol in the apartment. She confirmed that the cash Mr. Musclow had in his possession went from about $9,000 to $6,000 because he bought himself clothes, hygiene products, a cell phone, and a motorcycle. She testified that she intended to put together a journal of expenses and figure out a payment plan for Mr. Musclow, including rent, on the weekend following July 6, 2017.
119In cross-examination, Ms. Kerr acknowledged that she had a criminal record, including for perjury.
120Ms. Kerr denied that, during the week she was off work following Mr. Musclow’s release, she saw him with a “pee-bag”, i.e., what Ms. Ferderbar called a “piss-bag.” She did not know how Mr. Musclow provided his urine samples to the parole officer.
121Ms. Kerr did not know how two kilograms of fentanyl ended up in her home. She did not consume drugs, nor did she have any substance issues. Ultimately, she could not say for certain what happened with the cash in the dresser after she left for work.
Evidence of Drug Squad officers McCabe, Tracey, and Vhogal
122The defence alleged that either PC Spencer or PC Bradley stole the money that Mr. Musclow had left in a the tall-boy dresser in his bedroom on July 6, 2017. The defence called three of the Drug Squad officers to provide testimony, presumably to counter any suggestion that one of the Drug Squad officers stole the money.
123Police obtained a search warrant at 7:15 p.m. on July 6, 2017 to search unit #810. Drug Squad officers had a briefing that ended around 8:30 p.m. where they learned that an overdose had taken place in the unit.
124At 9:21 p.m., the seal was broken and unit #810 was unlocked by DC Fraser using a key that was provided by the building superintendent.
125At 9:43 p.m., PC McCabe commenced a search warrant entry video. As the affiant for the search warrant, she did not conduct any search. She testified that the tall boy dresser depicted in the search warrant entry video was essentially how the dresser appeared to her and that the top drawer of the dresser was closed.
126The search of the unit commenced at 9:45 p.m.
127After the search warrant entry video was complete, DC Fraser searched the living room and family room. DC Gazey searched the bedroom, and DC Tracey searched the kitchen, washroom, and closet.
128The Drug Squad crew exited the apartment at 10:17 p.m. The unit was locked by DC Fraser.
129Later that evening at 10:45 p.m., DC Tracey returned with PC Vhogal to look for anti-seizure medication for Mr. Musclow, who is epileptic. The officers retrieved medication that was located on top of a dresser in the bedroom.
DEFENCE CHARTER APPLICATION
130Mr. Musclow raises the following Charter issues:
(a) Did police breach his s. 9 rights by unlawfully detaining him?
(b) Did police breach his s.10(a) and 10(b) rights by failing to advise him of the reasons for his detention or providing him his rights to counsel immediately?
(c) Did he make an utterance about fentanyl being in the apartment after he was arrested? Relatedly, even if he did, is his utterance inadmissible because the Crown failed to prove beyond a reasonable doubt that it was voluntary and obtained in a manner compliant with his 10(a) and 10(b) rights?
(d) Did the police breach his s. 8 rights by unlawfully entering into unit #810 and searching it?
(e) Did the police breach his s. 7 rights and engage in an abuse of process by stealing money from the dresser drawer?
(f) If Charter violations are found, is the appropriate remedy to stay the proceeding under s. 24(1), or to exclude the evidence under s. 24(2)?
Did police breach Mr. Musclow’s s. 9 rights by unlawfully detaining him?
131Section 9 of the Charter guarantees the right to be free from “arbitrary detention.” A detention will not be arbitrary if it is lawful and is undertaken in a reasonable manner.
132Mr. Musclow alleges that, while police may have been called to the apartment building for general assistance on a 911 call, the police quickly fixated on him and targeted him for a focused investigation. PC Vilvanathan began asking him questions about what apartment he lived in and whether they could search it. All officers were uniformed and visibly armed. PC Vilvanathan directed Mr. Musclow’s movements by, for instance, asking him to step outside into the parking area as Ms. Ferderbar was placed in an ambulance and transported to hospital.
133Mr. Musclow submits that the court should find that he was psychologically detained once PC Vilvanathan began asking him questions about the apartment. Alternatively, he submits that he was detained when he was told that he could not attend at the hospital with Ms. Ferderbar, or later when he was cautioned for obstruction of justice which, he submits, took place while he and PC Vilvanathan were still outside the building at 2:21:38 p.m.
134The Crown disagrees that Mr. Musclow was unlawfully detained. The Crown submits that PC Vilvanathan engaged Mr. Musclow in general questioning given that he was the 911 caller and he was present when an initially unknown woman was found passed out in the lobby. The questioning made sense since Mr. Musclow stated that he was visiting his girlfriend and found a woman who had passed out and brought her down to the lobby. PC Vilvanathan testified that it did not look like “Amanda” was going to make it, and he was concerned that this would become a sudden death investigation. Mr. Musclow’s casual behaviour, evident on the lobby footage and the overall circumstances, were inconsistent with Mr. Musclow being detained by police.
135The Crown submits that, at the earliest, Mr. Musclow was detained when he was cautioned by PC Vilvanathan for obstruction of justice, but that that did not occur immediately after PC Bradley told PC Vilvanathan by radio to caution Mr. Musclow. Rather, PC Vilvanathan did so later when the building superintendent confirmed the correct unit number was #810. The Crown argues that the precise timing of PC Vilvanathan’s caution is unclear but likely occurred in the 50 seconds before Mr. Musclow put the puppy down and ran away from police.
136Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that they had no choice but to comply. When deciding whether a person has been psychologically detained, the court must consider: a) the circumstances giving rise to the encounter, b) the nature of police conduct, and c) the particular characteristics of the individual: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 35, at para. 44. The individual’s level of sophistication and experience with previous police encounters may impact whether they perceive that it is necessary to simply submit to police demands: R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 110. However, not every police interaction attracts Charter scrutiny: Grant, at para 26, citing R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52, at para. 19.
137I conclude that Mr. Musclow was not unlawfully detained by police.
138I find that Mr. Musclow was not detained when PC Vilvanathan questioned him about his name, the apartment he came from, and his relationship to the overdose victim. Mr. Musclow clearly identified himself as the 911 caller who assisted the overdose victim. Therefore, PC Vilvanathan was engaged in legitimate questioning of a witness. Mr. Musclow clearly demonstrated a concern for the overdose victim and, at one point, removed a necklace with a cross that he himself was wearing and placed it in Ms. Ferderbar’s hand while she was passed out in the lobby. PC Vilvanathan returned the necklace to Mr. Musclow. I find that Mr. Musclow was a concerned bystander in the lobby and not compelled to be present by police. The lobby footage shows him holding a puppy in his hand and petting it throughout his interaction with PC Vilvanathan. At certain times, PC Vilvanathan turned his back to Mr. Musclow which suggests that Mr. Musclow was not the focus of his attention. I find that Mr. Musclow was not physically or psychologically detained while Ms. Ferderbar was in the lobby and while he was being questioned by PC Vilvanathan.
139Mr. Musclow testified that when PC Vilvanathan asked him to step outside into the parking lot for a second, he said nothing, but internally felt he had no choice. I do not find that this amounts to Mr. Musclow being detained. Rather, I accept PC Vilvanathan’s evidence that Mr. Musclow seemed concerned for the victim and that PC Vilvanathan was going to provide Mr. Musclow with the name of the hospital where the victim was going. That police denied Mr. Musclow the opportunity to go with the victim to the hospital does not amount to his detention. Rather, it appears to reflect a police decision about who would be entitled to accompany the victim to hospital. Mr. Musclow had not indicated any familial or special relationship with the victim.
140I find that Mr. Musclow was detained when he was cautioned by PC Vilvanathan for obstruction of justice. The defence submits that this occurred immediately after PC Bradley advised PC Vilvanathan to caution Mr. Musclow for obstruction of justice at 2:21:38 p.m. when PC Vilvanathan and Mr. Musclow were still outside the building. However, I accept PC Vilvanathan’s evidence that he did not immediately caution Mr. Musclow when PC Bradley told him to do so. Instead, I find that PC Vilvanathan’s response to PC Bradley was to check with Mr. Musclow what the correct apartment was. PC Vilvanathan testified that he also wanted to first check with the building superintendent. This is why PC Vilvanathan advised PC Bradley over the radio at 2:21:57 p.m. that he would check with the superintendent, but that Mr. Musclow was adamant that it was unit #812.
141PC Vilvanathan addressed this point under Crown questioning:
Q. Okay. So, at this – when – just to be clear, when PC Bradley puts that communication over the air, you don’t, at that time, caution Mr. Musclow?
A. No, because I was still – because the super was there, he was going to confirm the unit number and I was going to try to get it that way or find out what he was going to say, and the second time he comes back is, I believe, when I cautioned him, or just before he checked it again, I cautioned him and then he came back a second time and – and that’s when we engage in the foot pursuit.
142At 2:22:11 p.m., PC Vilvanathan, Mr. Musclow, and Sargent Hrepic re-entered the lobby, and PC Vilvanathan spoke to the building superintendent. A few seconds later the building superintendent headed to his office down a hallway followed by Sargent Hrepic. At 2:22:38 p.m., PC Vilvanathan received a radio call from PC Bradley and asked Mr. Musclow if unit #812 was the right one and he agreed.
143At 2:22:44 p.m., PC Bradley radioed to advise that the door to unit #810 was wide open, officers went into the unit to check for other victims, but based on what they found, they needed to seal the unit.
144I find it is around 2:23 p.m., when PC Vilvanathan cautioned Mr. Musclow. It is evident, based on the video footage, that PC Vilvanathan was speaking to Mr. Musclow at this point. PC Vilvanathan conceded that, after the caution, he would have stopped Mr. Musclow from leaving had he tried to leave without answering more questions.
145Four seconds later, at 2:23:04 p.m., the superintendent emerged out of the hallway, came back into the lobby and spoke to PC Vilvananthan about repairing a fan in unit #810 and seeing Mr. Musclow there. I find that this is when PC Vilvanathan told Mr. Musclow that this was his last chance to confirm the correct unit number. Mr. Musclow again insisted that it was unit #812.
146It was at 2:23:35 p.m., when the superintendent returned to the lobby holding paperwork, that Mr. Musclow put down the puppy and ran away from police.
147I find that it was reasonable for police to have detained Mr. Musclow after he was cautioned since police had received conflicting information about which apartment he had come from and relatedly, where other potential overdose victims could be found. Mr. Musclow had told PC Vilvanathan that is was unit #812, but the building superintendent and the upstairs officers said it was unit #810. It was reasonable for PC Vilvanathan to detain Mr. Musclow after he was cautioned. The “crime” under investigation that police detained Mr. Musclow for at this point was obstruction of justice, not possession of drugs.
148Mr. Musclow was not arbitrarily detained and I find no breach of his s. 9 Charter rights.
Did police breach Mr. Musclow’s s. 10(a) and 10(b) rights by failing to advise him of the reasons for his detention or providing him his rights of counsel immediately?
149Section 10(a) of the Charter mandates that police are obliged to inform a person under arrest or detention of the reasons therefore promptly, which means immediately. Section 10(b) establishes police are also obliged to immediately inform persons under arrest or detention of their right to retain and instruct counsel.
150As explained above, I find that Mr. Musclow was detained when he was cautioned for obstruction of justice at around 2:23 p.m. PC Vilvanathan agreed that, at this point, Mr. Musclow was no longer free to go. It was only 35 seconds later that Mr. Musclow ran away from the police. Still, police should have provided Mr. Musclow with his rights to counsel and cautioned him immediately after he was cautioned and detained and police should have ceased further questioning. Police breached Mr. Musclow’s s. 10(a) and 10(b) Charter rights by failing to do so.
Did Mr. Musclow make an utterance about fentanyl being in the apartment after he was arrested? Relatedly, even if he did, is his utterance inadmissible because the Crown failed to prove beyond a reasonable doubt that it was voluntary and obtained in a manner compliant with his s. 10(a) and 10(b) rights?
151Mr. Musclow submits that I should reject the following of PC Vilvanathan’s evidence: (i) PC Vilvanathan provided him with his rights to counsel in the stairwell immediately upon his arrest; (ii) Mr. Musclow said he understood his rights, but he did not want to speak to a lawyer at that time; (iii) Mr. Musclow made an utterance in the hallway following his arrest that there was fentanyl in unit #810; and (iv) Mr. Musclow suggested that he could provide police with information related to other drug related criminal activity.
152Mr. Musclow further submits that, even if I find that he made certain utterances about fentanyl and criminal activity, I should find them inadmissible since he was not provided with his rights to counsel, and the Crown failed to prove beyond a reasonable doubt that the utterances were made voluntarily.
153For the reasons that follow, I am convinced, on a balance of probabilities, that PC Vilvanathan provided Mr. Musclow with his rights to counsel and cautioned him immediately upon his arrest in the stairwell. I accept PC Vilvanathan’s testimony that Mr. Musclow understood his rights and said that he did not want to speak to a lawyer at that time. I am also convinced that Mr. Musclow mentioned that there was fentanyl in the apartment and that he could provide the names of dealers and information about other criminal activity. Finally, I am convinced beyond a reasonable doubt that Mr. Musclow’s utterances were voluntary.
154I find that PC Vilvanathan arrested Mr. Musclow at around 2:24 p.m., based on the fact that, at 2:24:05 p.m., he radioed that he had “one in custody.”
155PC Vilvanathan testified that he provided Mr. Musclow with his rights to counsel and cautioned him right after he was arrested in the stairwell, and Mr. Musclow said that he understood his rights and did not want to speak to a lawyer. In cross-examination, PC Vilvanathan did not budge from this position.
156The defence does not rely on any internal inconsistencies in PC Vilvanathan’s evidence. Rather, the defence submits that Sargent Hrepic testified that he was very near PC Vilvanathan after Mr. Musclow’s arrest, but did not hear PC Vilvanathan provide rights to counsel to Mr. Musclow, or hear Mr. Musclow make any utterances about fentanyl or other criminal activity.
157Mr. Musclow testified that PC Vilvanathan only read him his rights to counsel when he was placed in a police cruiser, which I find took place at around 2:26:30 p.m., about two and a half minutes after he was arrested in the stairwell.
158PC Vilvanathan testified he did not know how close Sargent Hrepic was to him following Mr. Musclow’s arrest.
159Noting the evolution in Sargent Hrepic’s testimony as explained below, in comparison to the consistency of PC Vilvanathan’s testimony, I prefer the latter’s evidence. I find that PC Vilvanathan provided Mr. Musclow with his rights to counsel and cautioned him in the stairwell and that Mr. Musclow made utterances to PC Vilvanathan about the identity of the drug being fentanyl.
160In his examination-in-chief on March 7, 2025, Sargent Hrepic testified that, besides helping PC Vilvanathan with handcuffing Mr. Musclow, he had no personal dealings with Mr. Musclow. He testified that he had no recollection of what PC Vilvanathan said to Mr. Musclow after his arrest, or of how far apart he and PC Vilvanathan were when they were walking with Mr. Musclow back to the lobby. He did not have anything in his police notes about Mr. Musclow being provided his rights to counsel, or any utterances about fentanyl or drug activity by Mr. Musclow.
161Later the same day in cross-examination, Sargent Hrepic testified that he did not hear PC Vilvanathan provide rights to counsel to Mr. Musclow in the stairwell and that he himself did not do so. He agreed that, had he heard PC Vilvanathan provide rights to counsel to Mr. Musclow, he would have recorded that in his notebook. Still in cross-examination, he agreed that he was just a few steps, roughly a metre and a half, behind PC Vilvanathan. He testified that he had no recollection of Mr. Musclow making any incriminating statements and that, had he heard such utterances, he would have made a note of them. Finally, he agreed that no one ever told him that Mr. Musclow said there was fentanyl in the apartment.
162However, around two months later, when Sargent Hrepic was recalled and re-examined by the Crown on May 2, 2025 after the discovery of the officers’ audio communications, he testified that Mr. Musclow told PC Vilvanathan that the drug that they were dealing with in the unit was fentanyl, and that he (Sargent Hrepic) was present when PC Vilvanathan was on the phone with officers advising them of this. Sargent Hrepic recalled that this transpired before he went up to unit #810, which would mean before 2:26:59 p.m. I permitted limited cross-examination of Sargent Hrepic on this point, and Sargent Hrepic maintained his position.
163The first time the word “fentanyl” is mentioned in the officers’ recorded audio communications is at 2:37:31 p.m., roughly 11-1/2 minutes after Mr. Musclow was arrested, when PC Vilvanathan told the dispatcher to let the ambulance know about fentanyl, and the dispatcher responded, “I told them over the phone but I will let them know.” By the time of this communication with the dispatcher, PC Vilvanathan must have already spoken to the officers upstairs by phone that there was fentanyl in the apartment given that the dispatcher said she had, by this time, told the ambulance about the drug being fentanyl.
164Further, in Sargent Hrepic’s radio call to the dispatcher a few minutes later at 2:40:38 p.m., he made reference to PC Vilvanathan being on the phone and letting the officers upstairs know what kind of drug they were dealing with.
165Other evidence is also consistent with PC Vilvanathan advising the officers upstairs that they were dealing with fentanyl, based on Mr. Musclow’s utterances, rather than the upstairs officers coming to that conclusion on their own and transmitting that to PC Vilvanathan downstairs and the dispatcher / ambulance.
166For instance, PC Bradley testified that, in 2017, he did not know what fentanyl was. I find that he only came to know that the drug was fentanyl from PC Vilvanathan. I appreciate there is evidence going the other way in terms of PC Spencer’s testimony that, in the bedroom, she did not have a clue what the drug was, but PC Bradley told her that it was fentanyl. However, I am persuaded by PC Bradley’s testimony that when he encountered the baggie of drugs in the armchair, and then the paper bag of drugs in the bedroom, it was just a powder substance to him. He testified that PC Spencer did not tell him that the powder was fentanyl, and he did not tell PC Spencer that the drug was fentanyl. PC Bradley was quite definitive about his ignorance of fentanyl at the time. Accordingly, I find that at no point did the upstairs officers, namely PCs Spencer and Bradley, identify the drug in the apartment as fentanyl.
167The question then becomes how did PC Vilvanathan identify the drug as fentanyl as recorded in his 2:37:31 p.m. radio call with the dispatcher. I find that he must have learned that the drug was fentanyl based on what Mr. Musclow told him, and that very shortly after Mr. Musclow’s utterances about fentanyl and other criminal activity, PC Vilvanathan spoke over the telephone to the officers upstairs about the drug being fentanyl. I cannot say for sure how the ambulance transporting Ms. Ferderbar to hospital was told the drug was fentanyl, but by 2:37:31 p.m., the information had already been conveyed by the dispatcher, which explains the dispatcher’s response to PC Vilvanathan.
168I have considered whether PC Vilvanathan not mentioning to the booking Sargent, that Mr. Musclow made an utterance about fentanyl, is good evidence that no such utterance was made. I find that it is not. I accept PC Vilvanathan’s explanation that he was uncertain whether Mr. Musclow was in actual possession of fentanyl, and that PC Bradley had already mentioned there were potentially drugs in the apartment. I consider PC Vilvanathan’s suggestion that he also did not want to put source information on the record as a bit of post-facto reasoning, but it does not cause me to doubt his credibility on this point.
169Circling back to why I find that PC Vilvanathan provided rights to counsel to Mr. Musclow immediately upon his arrest in the stairwell, I find that Sargent Hrepic had a limited memory of the events in question when he provided his testimony in chief and in cross-examination in March 2025. But it was two months later, after the audio communications of the police officers were played in court, that Sargent Hrepic recalled certain facts. I therefore place little weight on Sargent Hrepic’s earlier testimony that he did not hear PC Vilvanathan provide rights to counsel to Mr. Musclow.
170In contrast, PC Vilvanathan was steadfast in his testimony that he provided Mr. Musclow with this rights to counsel immediately upon arrest in the stairwell. PC Vilvanathan was not seriously challenged on this point in cross-examination. Defence counsel put to PC Vilvanathan that, after he tackled and handcuffed Mr. Musclow in the stairwell, he gave Mr. Musclow his rights to counsel, and PC Vilvanathan agreed.
171Further, I find that PC Vilvanathan was more credible than Mr. Musclow, and that PC Vilvanathan’s overall narrative of what transpired makes sense.
172Mr. Musclow made a complete about face in his testimony about why he ran away from police officers. Initially, he testified that he ran away because he heard over PC Vilvanathan’s radio that police found white powder in the unit. He insisted that this happened. Later in the trial, after hearing the police officer’s audio communications, he acknowledged that no such police comment about white powder was made, but he still had the impression that it was. He revised his testimony to say that the exact message that he heard was something like, “the door was open and we went in to check for bodies and we’re going to have to seal it because of what was found.” I conclude that Mr. Musclow ran away from the police because he knew that police had found something incriminating in unit #810. This is an additional piece of circumstantial evidence that supports PC Vilvanathan’s version of events, that right after he arrested Mr. Musclow, he read him his rights to counsel and cautioned him, and Mr. Musclow made utterances seeking some leverage in what was a difficult situation where police had found something incriminating against him in the apartment.
173I am convinced beyond a reasonable doubt that Mr. Musclow’s utterances were voluntary about fentanyl in the apartment and about his willingness to provide information about other criminal activity. The available video and audio evidence and witness testimony does not show any evidence of Mr. Musclow’s will being overborne so as to deprive him of an operating mind: R. v. Oickel , 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 69. Officers Vilvanathan, Bradley, and Hrepic each testified that they did not make any threats, promises, or inducements to Mr. Musclow in their interaction with him.
174Given my findings, I do not find that Mr. Musclow’s s. 10(a) or 10(b) rights following his arrest were breached.
Did the police breach Mr. Musclow’s s. 8 rights by unlawfully entering into unit #810 and searching it?
175Section 8 of the Charter protects against unreasonable search and seizure.
176It is uncontested that PC Spencer and PC Bradley entered unit #810 without a warrant after concluding that unit #812 had no connection with the overdose victim in the lobby. Warrantless searches are presumptively unreasonable: R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, at paras. 22-23. However, s. 487.11 of the Criminal Code authorizes police officers to conduct a search without a warrant where there are exigent circumstances that would make it impracticable to obtain a warrant.
177Mr. Musclow submits that there was no justification for the warrantless entry and search of unit #810, which was his dwelling, and that the police testimony about needing to look for other overdose victims was a post-facto explanation created to satisfy the exigency doctrine.
178Mr. Musclow urges that I find that: (i) PC Spencer and PC Bradley had nothing more than a hunch or educated guess that unit #810 had something to do with the overdose victim in the lobby; (ii) PC Bradley’s evidence that the door to unit #810 was wide open should be accepted; (iii) PC Spencer’s evidence that she heard the correct apartment was unit #810 before officers entered should be rejected; (iv) at the point of entry or very soon thereafter, PC Bradley observed the baggie of drugs that was sitting in plain view on the burgundy armchair, and the officers’ evidence about still needing to look for other overdose victims should be rejected; (v) the officers improperly ventured into and searched the unit leading them to find the bag with a large quantity of fentanyl in the bedroom; (vi) PC Spencer manipulated and searched the paper bag of drugs in the bedroom; and (vii) the officers’ conduct amounts to an illegal search that violated Mr. Musclow’s s. 8 rights.
179The Crown responds that, given the exigent circumstances, the police had a legitimate public safety interest in entering unit #810 without a warrant. The police entry was brief and unintrusive leading to the finding of a baggie of fentanyl on an armchair in the living room, and a bag of fentanyl in plain view in the bedroom.
180For the reasons that follow, while I disbelieve PC Spencer’s evidence that she never touched the bag of drugs in the bedroom, I find that the police were justified in their warrantless entry into unit #810 on the basis of exigent circumstances. I find a technical s. 8 Charter breach arising from PC Spencer’s actions regarding the paper bag, but in all other respects the police conduct was appropriate.
181PC Spencer arrived at the building lobby about 3 minutes after PC Vilvanathan and his partner PC Bradley. The officers and paramedics encountered a woman who was unconscious, lying on her back in the lobby being attended to by EMS paramedics. PC Vilvanathan did not think that the woman was going to survive an overdose. PC Bradley and PC Spencer went upstairs to the 8th floor at around 2:19 p.m. as they did not think the woman had overdosed in the lobby and were concerned that there may be other overdose victims.
182I prefer the evidence of PC Bradley that the door to unit #810 was wide open over the evidence of PC Spencer that the door was only 6 to 12 inches ajar. PC Bradley’s evidence is consistent with Mr. Musclow’s testimony that he dragged Ms. Ferderbar out of the apartment by her armpits. I conclude that Mr. Musclow must have left the door open wide enough to drag Ms. Ferderbar out and not closed the door any further on his way out since his arms were occupied.
183I accept PC Bradley and PC Spencer’s evidence that it seemed odd to them that the door to unit #810 was wide open. PC Spencer testified that it seemed strange to her that the drug overdose victim had been brought down to the lobby. She had never encountered the moving of a victim in previous overdose situations. She also testified that drug overdoses are not usually a solo activity.
184While I place little weight on PC Spencer’s evidence that she was already skeptical of the information that unit #812 was the right unit before she got there, I accept that both officers were convinced unit #812 was not the right unit after PC Bradley’s encounter with the South Asian man at that apartment. The occupant was holding a baby, and the circumstances did not mesh with the overdose situation in the lobby. At 2:21:38 p.m., PC Bradley told PC Vilvanathan downstairs to caution Mr. Musclow for obstruction of justice and to arrest him if he lied again. Seven seconds later at 2:21:45 p.m., PC Bradley and PC Spencer crossed the threshold of unit #810 after PC Bradley called out “police” without receiving a response from within.
185I find, based on the officers’ audio communication, that the foot pursuit of Mr. Musclow downstairs commenced at 2:23:37 p.m., just under two minutes after PCs Bradley and Spencer entered unit #810 at 2:21:45 p.m. Hence, it cannot be the case, as PC Spencer testified, that the officers knew about the foot pursuit before they entered unit #810.
186I also reject PC Spencer’s testimony that the officers had received information that unit #810 was the right unit. However, I accept that, with the two officers having received incorrect information from Mr. Musclow about unit #812, the open door at unit #810 seemed like a logical next location to investigate.
187I disagree with the defence’s suggestion that, because the door to unit #810 was wide open, it must have been obvious to PC Bradley that a baggie of drugs was on the burgundy armchair and consequently his actions thereafter were really in furtherance of a search for drugs, rather than a search for other overdose victims. While I accept that later, PC Fraser, one of the drug squad officers, immediately noticed a bag of white powder on the burgundy chair, I find that the mandate of PC Fraser was quite clearly to look for items, specifically drugs. The situation for officers Bradley and Spencer was completely different. I note that Sargent Hrepic testified that he did not see the baggie of drugs on the burgundy chair immediately upon entry and only noticed it when it was pointed out to him by PC Bradley. Within a few seconds of PC Bradley’s entry, he noticed some vomit at the edge of the sink and then pee pads and water for a puppy. It made sense for him to connect these items with the puppy and Mr. Musclow downstairs and continue to search for potential overdose victims.
188PC Spencer also saw vomit or feces in the bathroom before she went to the bedroom in unit #810. I find that, independently of PC Bradley, PC Spencer’s continued search for potential other overdose victims was justified.
189I accept as truthful PC Bradley’s testimony that one of his objectives in entering unit #810 was to search for identification for the overdose victim. He saw what looked like a female’s wallet and opened it hoping to find a health card for “Amanda”. Instead, he found a birth certificate for Ms. Ferderbar and when he dropped it, he saw the Ziploc baggie sitting on the burgundy chair. PC Bradley did not attempt to open the Ziploc baggie and instead proceeded to the bedroom.
190I find, based on the search warrant entry video and the officers’ testimony, that the bedroom in unit #810 was fairly small. Accordingly, I do not see the difference between PC Bradley remaining at the threshold of the bedroom, or conversely, entering a few steps into the bedroom as all that important. In any event, I find that PC Bradley entered further into the bedroom than he remembered to view the unusual paper bag sitting in the middle of the bedroom that PC Spencer had identified. At the same time, PC Bradley’s attention was drawn to the open drawer with some clothes on top of which was a Hershey-sized wrapped piece of plastic, which Mr. Musclow identified as his steroids.
191PC Spencer testified that she did not manipulate the paper bag at all; yet she was able to describe the contents in some detail. However, given the ASF concerning Officer Gazey’s evidence, which I accept, I find that it would have been impossible, without touching or manipulating the paper bag, for PC Spencer to have seen the centre portion of a digital scale and that the brown paper bag contained smaller Ziplock bags full of white powder with the letters “POW” and “RAP” written on them in red marker. I find that it is far more likely that PC Spencer, being curious about the strange paper bag in the middle of the bedroom floor, reached down and briefly inspected the contents, and then called PC Bradley. I would not characterize this as PC Spencer lying about what happened. Rather, given that the events in question took place 8 years before PC Spencer testified at trial, I would describe this as PC Spencer misremembering.
192At 2:22:44 p.m., PC Bradley radioed that the door to unit #810 was wide open, officers went into the unit to check for other victims, but based on what they found, they needed to seal the unit. This is only one minute after the officer’s entry into the unit. I find that this evidence significantly undercuts the defence theory that the officers went into unit #810 to surreptitiously conduct a search, as opposed to look for other overdose victims due to exigency.
193R. v. Godoy, 1999 709 (SCC), [1999] 1 S.C.R. 311, is the leading authority regarding police duties to respond to 911 calls. Each matter must be determined on a case-by-case basis considering all of the circumstances and a number of factors, including the duty being performed, the extent to which some interference with individual liberty is necessitated in order to perform that duty, the importance of the performance of that duty to the public good, the liberty interfered with, and the nature and extent of the interference: at para 18.
194I am satisfied that the police entry into unit #810, and the limited search of Ms. Ferderbar’s wallet which produced her birth certificate was justified by the exigency of the situation. Police knew from the 911 call that the caller advised that he was dealing with an overdose situation that needed Narcan. When police arrived in the building lobby, they encountered an unusual situation where the overdose victim was lying unconscious in the lobby, and the 911 caller provided some information about a link to unit #812. PC Bradley and PC Spencer determined upstairs that unit #812 was not linked to the overdose information but, just nearby, the door to unit #810 was wide open. Police believed that overdosing was not a solo activity and genuinely believed that other overdose victims may be in the vicinity. Police called at the door of unit #810 but no one answered. Shortly after entering, the vomit in the bathroom and kitchen, and the pee pad / water created a legitimate link to the Mr. Musclow and the overdose situation downstairs. In my view, it would have been a dereliction of their responsibility had the officers not looked around unit #810 searching for other potential overdose victims. The evidence demonstrates that the officers did not spend more than a minute before concluding that a search warrant was required to conduct any further inspection. PCs Bradley and Spencer waited roughly four minutes more at the threshold of unit #810 when Sargent Hrepic showed up with the puppy from downstairs. The door to unit #810 was sealed at 2:30 p.m. and the unit was only searched at 9:45 p.m. after police had a search warrant.
195But for PC Spencer’s brief inspection of the paper bag, which constitutes a technical s. 8 Charter breach, I find that police conducted themselves appropriately.
Did the police breach Mr. Musclow’s s. 7 rights and engage in an abuse of process by stealing money from the dresser drawer?
196Mr. Musclow submits that police stole approximately $6,000 from a tall-boy dresser in the bedroom of unit #810. He acknowledges that he has the burden of proving this theft on a balance of probabilities. If proven, he submits that the police conduct is an abuse of process that constitutes a violation of his s. 7 Charter rights.
197He submits that his evidence, the evidence of his brother Jason, Ms. Kerr, and various exhibits submitted at trial prove that there was a significant amount of money in the apartment on the morning of July 6, 2017, before officers went into the apartment. Yet, no money was found in the dresser when Toronto Drug Squad officers went in during the evening hours to conduct a search under warrant of unit #810. Mr. Musclow submits that there are two potential thieves: PC Bradley and PC Spencer. Of the two, PC Bradley is the more likely thief. His evidence that he did not enter further into the bedroom was not credible given his reference to being able to see the tiny Hershey-sized bag of steroids that was in the same location as the cash. Rather, it was indicative of his trying to distance himself from the theft, which likely occurred in the four to six minutes that the officers were waiting for officers to come upstairs and seal the unit. The defence points to an anomaly in the evidence whereby PC Bradley had in his notes that the drawer of the tall-boy dresser was open, yet the search video demonstrated that it was closed.
198PC Bradley categorically denied stealing Mr. Musclow’s money. He testified that he did not have an explanation for why the dresser drawer appears closed in the search warrant entry video, but that it was open when he first saw it in the bedroom. He suggested that it would be odd for him to bring attention to the drawer in his notes if he did, in fact, steal the money.
199I find that Mr. Musclow has failed to meet his burden of proving that it is more likely than not that police were responsible for the theft of the money that he said was present in the tall-boy dresser drawer before police entered.
200I accept the evidence from Jason Musclow, Ms. Kerr, and Mr. Musclow himself that, after his release from prison, Mr. Musclow had a sizeable amount of cash, roughly $9,000, in his possession. I accept that this dwindled to around $6,000, as Mr. Musclow spent some of this money on various items, including a motorcycle and helmet.
201However, the circumstantial evidence suggests that Mr. Musclow himself is responsible for the missing money rather than any police officers.
202First, I find it significant that Ms. Kerr testified that, leaving aside the cash in the dresser, other items of hers went missing and were never found after July 6, 2017: the red journal in which she recorded Mr. Musclow’s debts to her, the shoebox in which the journal of debts was kept, a blue Fuji camera, and an Oxford Property gift card worth $400 given to her by her employer. There was no allegation that police stole these items, and I find it suspicious that the one item that could have corroborated the amount that was owed by Mr. Musclow to Ms. Kerr went missing along with his cash. Mr. Musclow was the only other person living in the unit, and he had just come out of prison.
203Second, I find, based on Ms. Kerr’s evidence which I accept, that the weekend following July 6, 2017, she wanted to sit down with Mr. Musclow and do a reconciliation of what he owed her in connection with determining how they were going to pay rent. Once again, it would be in Mr. Musclow’s interest for the red book where Ms. Kerr kept meticulous records to go missing.
204Third, by Mr. Musclow’s own evidence, Ms. Kerr or Ms. Ferderbar could not have stolen the money. Ms. Kerr was at work all day. Mr. Musclow testified that, after he recovered from passing out from fentanyl, he went into the bedroom and determined that every dollar of cash was still there. Thereafter, Ms. Ferderbar ingested the fentanyl, passed out, and Mr. Musclow took her down to the lobby. Thus, Ms. Ferderbar could not have taken his money.
205Fourth, I agree with PC Bradley that it makes no sense that, if he stole the money, he would indicate in his notes that the dresser drawer was open and then close it. I do not know why the drawer ended up closed on the police entry search video at 9:43 p.m. after PC Bradley observed it open at around 2:22 p.m. Unless both PC Bradley and PC Spencer conspired to steal the money and did so in the one minute that they were both in the bedroom after entering the unit, the opportunity for one of them to steal it was in the six to eight minutes while they waited for an officer to come up with a seal to close the unit. However, it is clear that PC Bradley radioed at 2:22:44 p.m. that, based on what the officers had found, they needed to seal the unit. It seems incredibly risky for PC Bradley or PC Spencer to return to the bedroom to steal the cash knowing that, at any time, an officer from downstairs could enter the unit. In fact, Sargent Hrepic attended the unit at 2:27 p.m. holding a puppy in his hands. Then Officer Tindal came up with a police seal for the door.
206Fifth and finally, as described below when dealing with the trial evidence, I do not find Mr. Musclow or Ms. Kerr to be credible witnesses. I am entitled to accept some, all, or none of their evidence, as is true of all witnesses. Mr. Musclow’s allegation that police stole his money is based on his and Ms. Kerr’s evidence that there was roughly $6,000 to begin with on or around the morning of July 6, 2017. The Crown suggests that the greater likelihood is that Mr. Musclow used the “missing” cash as a downpayment for buying, or being fronted, the much more valuable quantity of fentanyl that was found in the paper bag in the bedroom. Even leaving aside this possibility, I find that there is far more circumstantial evidence pointing back at Mr. Musclow than pointing toward the police in terms of who took the money.
207Ultimately, I am not in a position to determine what happened with the cash that Mr. Musclow testified was in the dresser drawer. I am confident in saying no police officer was responsible for stealing the money.
208Having found no theft of the money by police, I find no police misconduct or breach of Mr. Musclow’s s. 7 Charter rights.
If Charter violations are found, is the appropriate remedy to stay the proceeding under s. 24(1), or to exclude the evidence under s. 24(2)?
209I found no violation of Mr. Musclow’s ss. 7 or 9 Charter rights. But, I found a breach of his ss. 8, 10(a) and 10(b) rights.
210I found that PC Spencer briefly inspected the paper bag that she found in the middle of the bedroom on July 6, 2017. In doing so, in the absence of a search warrant and outside the bounds of exigency, PC Spencer breached Mr. Musclow’s s. 8 Charter rights. I find that, at most, PC Spencer briefly moved a few contents of the bag around thereby permitting her to determine that the contents were likely drugs of some sort. I find the Charter breach was not consequential in any way so no stay under s. 24(1) of the Charter is warranted, and no evidence should be excluded under s. 24(2).
211As well, I found that police breached Mr. Musclow’s s. 10(a) and 10(b) rights by failing to provide him with his rights to counsel and caution him immediately upon being cautioned and detained by PC Vilvanathan.
212Four seconds after PC Vilvanathan cautioned Mr. Musclow, PC Vilvanathan was interrupted by the superintendent returning from his office with Sargent Hrepic in tow. Then, PC Vilvanathan and Sargent Hrepic had a brief conversation. Sargent Hrepic left towards the hallway, and when he returned with the superintendent who was holding paperwork, Mr. Musclow ran away from police. I find there was a limited opportunity for PC Vilvanathan to advise Mr. Musclow of his rights upon detention.
213I agree with the Crown’s submission that Mr. Musclow’s act of running away from the lobby frustrated PC Vilvanathan’s ability to provide Mr. Musclow with his rights to counsel upon detention. The delay of 35 seconds was of limited consequence as PC Vilvanathan was managing a dynamic situation in speaking with the building superintendent and Sargent Hrepic to confirm the correct unit number and communicate with his partner, PC Bradley, upstairs. I would not stay the proceeding under s. 24(1) of the Charter, or exclude the drug evidence under s. 24(2) in the circumstances.
214In the alternative, I will set out my reasons concerning what remedy I find appropriate had I found additional Charter breaches.
215Had I found that a police officer had stolen almost $6,000 in cash from unit #810, I would have found it a clear breach of Mr. Musclow’s s. 7 Charter rights, and I would have stayed the proceeding under s. 24(1) of the Charter. I would have found a stay was necessary to denounce the serious issue of police theft and dissociate the court from such police misconduct.
216Concerning a potential s. 8 breach, I note the purposive and generous approach accorded to the question of whether evidence was “obtained in a manner” based on the temporal, causal, and contextual connection to the finding and subsequent search and seizure of the fentanyl evidence. Therefore, I would have found that the fentanyl evidence was obtained in a manner making such evidence liable to exclusion under s. 24(2): Grant, at para 131.
217A court’s task is to determine the seriousness of the Charter infringing conduct and to situate the conduct on a scale of culpability. Inadvertent or technical breaches impact less on the administration of justice than willful or reckless disregard of Charter rights: R. v. Le, 2019 SCC 34, at para. 143.
218Had I agreed with the defence submission that Mr. Musclow was psychologically detained either when he was being questioned by PC Vilvanathan or, a few minutes later, when he felt compelled to follow PC Vilvanathan out into the parking lot, I would have still found that his detention was not arbitrary given his connection to the overdose victim, hence I would have not found a s. 9 Charter breach. However, depending on an alternative finding of facts, I would have found that there was a delay in Mr. Musclow being informed of his reasons for detention and then arrest, and a delay in his being instructed about his right to retain and instruct counsel, hence a breach of s. 10(a) and 10(b) of the Charter.
219The evidence indicates that PC Vilvanathan and PC Bradley arrived on scene at 2:13:17 p.m. PC Bradley told PC Vilvanathan to caution Mr. Musclow at 2:21:38 p.m. Mr. Musclow took off from the police officers at 2:23:35 p.m. and was tackled and arrested at 2:24 p.m. In the alternative, I would have accepted Mr. Musclow’s evidence that he was only provided his rights to counsel and cautioned at 2:26:30 p.m.
220Even in the alternative, I would not have found that Mr. Musclow was detained the second the police arrived on scene. Instead, I would have found that the invasive questioning of Mr. Musclow commenced around 5 minutes before he ran from the police officers. I find that the state actors were acting in good faith and were dealing with a very serious situation involving a woman who had overdosed and looked like she may die. There is no evidence that the officers callously disregarded Mr. Musclow’s rights, albeit they mistimed the provision of reading him his rights.
221In respect of the officer’s precipitous and warrantless entry into unit #810, I agree with the Crown that the officers did not miss the mark by much when they entered the residence without waiting for confirmation from downstairs as to which apartment Mr. Musclow resided. I found that the upstairs officers entered unit #810 at 2:21:45 p.m. and that Mr. Musclow was arrested at 2:24 p.m. If I accept Mr. Musclow’s position, PC Vilvanathan only read him his rights at 2:26:30 p.m. The officers were not inside unit #810 for long and everything was observed in plain view.
222Between the small baggie of fentanyl found in the armchair, and the much large quantity of fentanyl found in the paper bag in the bedroom, police located over 2 kilograms of fentanyl in unit #810. This is an enormous amount of a deadly drug which points strongly in favour of inclusion. The exclusion of evidence would terminate the Crown’s case. Society has an interest in the adjudication of possession of fentanyl for the purpose of trafficking, on its merits. In this case, Ms. Ferderbar almost died from an overdose linked to the illegal controlled substance.
223Ultimately, had I found the police violated Mr. Musclow’s Charter rights, outside of a s. 7 breach, I would have also found that they exceeded their authority inadvertently and due to exigent circumstances. The evidence found was reliable and police were acting in good faith in trying to locate potential other overdose victims. The admission of evidence would not bring the administration of justice into disrepute, and the evidence would not have been excluded under s. 24(2).
PART II - TRIAL PROPER
224Mr. Musclow is charged with one count of possession of fentanyl for the purpose of trafficking. There is but one trial issue: Has the Crown proven beyond a reasonable doubt that Mr. Musclow possessed the fentanyl found in unit #810 on July 6, 2017? For the reasons that follow, I find that the Crown has and that Mr. Musclow is guilty.
Relevant Legal Principles
225I have instructed myself with respect to a number of applicable legal principles.
Presumption of Innocence and Requirement of Proof Beyond Reasonable Doubt
226Mr. Musclow is presumed to be innocent, unless and until the Crown has proven the offence against him beyond a reasonable doubt. It is not enough for me to believe that he is possibly, or even probably, guilty. I must be convinced of his guilt beyond a reasonable doubt. As a standard, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty. At the same time, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities.
W.D. Analysis
227I must comply with the analysis in R. v. W.(D)., 1991 93 (SCC), [1991] 1 S.C.R. 742, at p. 758:
First, if [I] believe the evidence of the accused, obviously [I] must acquit.
Second, if [I] do not believe the testimony of the accused but [I am] left in reasonable doubt by it, [I] must acquit.
Third, even if [I am] not left in doubt by the evidence of the accused, [I] must ask [myself] whether, on the basis of the evidence which [I] do accept, [I am] convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
228I also accept that, in deciding whether the accused’s evidence leaves me with a reasonable doubt, I cannot consider the accused’s testimony in isolation from the rest of the case: W.D., at p. 757.
Circumstantial Evidence
229Even in a case where the accused testifies, the principles of circumstantial evidence must be followed where the Crown relies heavily on such evidence to tie the accused to a particular location and argue that the accused had possession (i.e. knowledge and control) of the drugs found in that location.
230Forestell J. in R. v. Tewolde, 2023 ONSC 4932 at para. 113, citing R. v. Gill, 2017 ONSC 3558, at paras. 9-13, summarized the applicable law concerning circumstantial evidence. Forestell J. cautioned that where one or more elements of an offence relies largely or exclusively on circumstantial evidence, “an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits”: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 30.
Use of Mr. Musclow’s Criminal Record
231I am entitled to consider Mr. Musclow’s criminal record in respect of his credibility. However, I am mindful of the fact that “not all prior convictions assist in proving the untrustworthiness of a witness to the same degree”, and Mr. Musclow’s past convictions that I consider must allow for the inference “that the witness has a specific capacity or willingness to be dishonest at the time of the trial”: R. v. Hussein, 2026 SCC 2, at para. 61 (emphasis in original).
232Mr. Musclow has a lengthy criminal record going back to 2003. However, this does not, on its own, demonstrate a specific capacity or willingness to be dishonest. Rather, it is the nature of specific crimes that are probative of an accused’s credibility, such as crimes of dishonesty and administration of justice offences. Often, crimes of violence cannot support this inference: Hussein, at paras. 80-81, 86 and 91. Mr. Musclow has been convicted for drug offences, assault, and multiple robberies. These are not the types of offences that undermine his credibility at trial. However, he has also been convicted of several offences pertaining to the administration of justice, such as failure to attend court, failure to comply, and violation of probation orders. Such conduct demonstrates a failure to adhere to promises and undertakings made to a court and may be indicative of how constrained Mr. Musclow may feel by a testimonial oath or affirmation: Hussein, at para. 81. Therefore, while I disregard Mr. Musclow’s past convictions for violent offences, I find that his criminal record as it relates to his disregard for court orders and failure to comply diminishes his credibility in this trial.
Position of the Parties
233The Crown submits that it has proven Mr. Musclow’s guilt beyond a reasonable doubt and that, as between Ms. Ferderbar and Mr. Musclow, Ms. Ferderbar was, by far, the more credible witness even though she was not a perfect witness. The Crown argues that many aspects of Mr. Musclow’s testimony do not make sense such as his claim that he was recovering from opioid addiction but then, as soon as he was out of custody, he took fentanyl when offered by a virtual stranger, Ms. Ferderbar. The Crown also argues that Mr. Musclow’s evidence with respect to the contents, placement, and movement of the tote bag containing the fentanyl are difficult to reconcile with the objective evidence.
234Conversely, the defence submits that reasonable doubt remains, including for the reason that Ms. Ferderbar was not a credible or reliable witness. Ms. Ferderbar claimed against all evidence that Mr. Musclow “left her for dead” and said that she would do anything to put him in jail. The defence argues that the Crown provided no cogent explanation for how Mr. Musclow acquired hundreds of thousands of dollars’ worth of fentanyl after being released from prison only nine days earlier. The Crown’s theory that Mr. Musclow used the $6,000 that went missing as a deposit to purchase 2 kilograms of fentanyl worth over $400,000 does not make economic sense.
Discussion
235I am convinced beyond a reasonable doubt that Mr. Musclow was in possession of the fentanyl found in unit #810. While there may be some aspects of this case that remain unclear, they do not leave me in reasonable doubt about Mr. Musclow’s guilt.
Mr. Musclow’s claim that he invited Ms. Ferderbar over for sex is dubious
236I disbelieve Mr. Musclow’s evidence that as soon as Ms. Ferderbar entered his apartment, he led her to the bedroom to have sex.
237Mr. Musclow’s claim about wanting to have sex with Ms. Ferderbar is linked to his earlier evidence about reconnecting with her after a long time. Mr. Musclow testified that he had not spoken to Ms. Ferderbar in 15 years, but she came up on Facebook as a suggested friend two or three days before July 6, 2017. Mr. Musclow was asked about his online exchange with Ms. Ferderbar, and he said that it was basically about sex, yet he acknowledged that he did not use the word “sex” in his Facebook conversation. He claimed that because he had always known Ms. Ferderbar to be a sex worker, and because he had just got out of prison and told her that it would be nice to see her, it was obvious that he wanted to meet up for sex. Ms. Ferderbar completely denied any discussion of sex, direct or implied. She testified that, starting two to three weeks earlier, Mr. Musclow indicated that he wanted to recruit her to sell drugs given her large social circle.
238Even without Ms. Ferderbar’s evidence, I find Mr. Musclow’s evidence difficult to accept. It would be one thing if Mr. Musclow testified that he had sex with Ms. Ferderbar in the past, or that she was a sex worker with whom he regularly had sex 15 years ago. Such evidence would have supported the implication that meeting up meant wanting to meet for sex. But Mr. Musclow simply relied on Ms. Ferderbar’s alleged status as a sex worker from 15 years earlier, and his Facebook message that it would be nice to meet. Mr. Musclow’s explanation makes little sense.
239Mr. Musclow’s testimony that he immediately led Ms. Ferderbar into his bedroom to have sex is also suspect given Ms. Ferderbar’s condition. Mr. Musclow acknowledged that he knew Ms. Ferderbar had been assaulted by her boyfriend and needed a safe place to go when she arrived at his apartment. He testified that she had been beaten up, had black eyes, a swollen nose, and was obviously inebriated. Yet, by his evidence, as soon as they entered the apartment, he led her to the bedroom, Ms. Ferderbar sat on the bed, and he tried to play with her hair and kissed her, but Ms. Ferderbar said she needed a shot. I note that Mr. Musclow testified that he was not proud of his behaviour.
240Still, I do not believe that Mr. Musclow was so insistent on having sex from the minute Ms. Ferderbar arrived that events transpired as he described. More to the point, it is difficult to imagine Ms. Ferderbar entering the small apartment, willingly going down the short hallway to the right into the bedroom still carrying her tote bag and sitting down on a bed, rather than turning left into the living room and kitchen area. To be fair, Ms. Ferderbar was inebriated and not familiar with the layout of the apartment, so she could have simply followed Mr. Musclow, but the defence emphasized that the living room and kitchen areas of the apartment were obvious to the police officers immediately upon entry. Given Ms. Ferderbar’s condition, her having been assaulted by her boyfriend, her desire to drink, and her insistence that her relationship with Mr. Musclow was entirely platonic, I find it unlikely that Ms. Ferderbar would head into the bedroom upon her arrival, let alone take her tote bag into the bedroom.
Mr. Musclow’s testimony of where Ms. Ferderbar placed her tote bag is problematic
241I find that Mr. Musclow’s claim about sex and Ms. Ferderbar immediately entering the bedroom is tied to his claim that Ms. Ferderbar first placed her tote bag down in the bedroom. The placement and movement of Ms. Ferderbar’s tote bag between the bedroom and the living room is integral to Mr. Musclow’s explanation for why he knew nothing about the large paper bag of drugs police found in the bedroom.
242Mr. Musclow testified that when Ms. Ferderbar first entered the apartment, he led her directly into the bedroom. They sat on the bed and Ms. Ferderbar put her tote bag down. But she did not reciprocate Mr. Musclow’s kiss, and said that she wanted to have a shot and took out an LCBO bag out of her tote bag. Then, when Mr. Musclow was standing in front of her in the bedroom, he could see the sparkly bag (which was later found in the bedroom with drugs by the police) in the tote bag, except it was not open. He could also see, within the tote bag, a makeup bag and a wallet. He could not see the contents of the sparkly bag because the top of the bag was rolled over the contents.
243Mr. Musclow testified that they exited the bedroom and went to the kitchen where Ms. Ferderbar poured vodka, but he initially declined a drink. Next, they headed to the two burgundy chairs. He sat in a chair beside her, and told her that he wanted to sleep with her. He decided to have a drink, got up, and took the shot of vodka that was still in the kitchen, and went back and sat down. Ms. Ferderbar responded that she wanted to get high first. He testified that Ms. Ferderbar went into the bedroom returned to the living room with her tote bag.
244Defence counsel showed Mr. Musclow the search warrant entry video paused at 39 seconds, at an image of her tote bag, make up bag, and purse on a different table than the one between the burgundy chairs. Mr. Musclow was asked what happened after Ms. Ferderbar came back into the living room from the bedroom?
J. Wilkinson: Q. Thank you. What happens after she comes back into the living room with that bag?
A. She sets it on the floor and she pulls a plastic bag out of the purse like halfway, and I could see there is white powder in it and she says it’s fentanyl and she dips a key into it and leans over to me and I had never tried fentanyl, I just got out of the pen, it was all news to me, like I had heard about it in the news, I knew it was dangerous, but I figured like she knew what she was doing, so I did a little bump and --
Q. What’s a little bump mean?
A. Like a little bump on the end of the key.
Q. Okay.
A. She held it out to me and I just did like this, like I covered one nostril, she held it up to the other and I sniffed.
Q. And where did the – the drugs on the key come from?
A. The white plastic bag from the purse.
Q. Okay.
A. Or not white plastic, but the plastic bag with the white powder that she pulled from her purse that ended up on the red chair that you can see in the video.
245According to Mr. Musclow, Ms. Ferderbar placed her tote bag down on the floor in the living room and did not take the baggie of drugs out completely from her tote bag. Rather, she only took the baggie out halfway and dipped a key into it to retrieve the fentanyl, which she placed under one of Mr. Musclow’s nostrils and he inhaled.
246The problem with Mr. Musclow’s evidence is that the tote bag in the search warrant entry video is not that close to where Mr. Musclow was sitting on the armchair in the living room. Assuming that Ms. Ferderbar went to the bedroom, retrieved her tote bag and placed it on the living room floor where it appears in the video, by Mr. Musclow’s evidence, Ms. Ferderbar would have had to put the bump of fentanyl on the key and walk a few steps over to where Mr. Musclow was seated in the farther armchair in order to place the fentanyl under his nostril. This would make little sense.
247When given the chance, Mr. Musclow did not testify that Ms. Ferderbar placed her tote bag down near to where he was seated in the armchair when she returned to the living room. Rather, Mr. Musclow testified that Ms. Ferderbar returned to the living room and placed the tote bag in one of two locations, either “beside her on the chair” or where it appears on the floor in the search warrant entry video. But neither of those locations makes sense given his description of how Ms. Ferderbar gave him the fentanyl. Each location would require Ms. Ferderbar to move some distance holding a key topped with fentanyl to where Mr. Musclow was seated in the armchair.
248At first, Mr. Musclow testified that Ms. Ferderbar put the tote bag beside her on the chair:
Q. So, you’ve told us you told Ms. Ferderbar that you wanted to have sex with her. She indicated she wanted to get high first?
A. Yeah.
Q. Okay What happens after that?
A. I said high on what, and she told me to hold on, she went into the bedroom, and when she came back out she had her purse. She put it beside her on the chair – (emphasis added)
249Then, when Mr. Musclow was asked to focus on the search warrant entry video paused at 39 seconds which shows the tote bag on the floor at the foot of a table with Ms. Ferderbar’s makeup bag and purse, Mr. Musclow seemed to accept that this was where Ms. Ferderbar placed her tote bag. He did not suggest that the location of the tote bag was different than where it was located when Ms. Ferderbar reached into it and gave him fentanyl.
250One way to reconcile Mr. Musclow’s evidence about how he ingested fentanyl with the location of the tote bag in the search warrant entry video is to envisage that when Ms. Ferderbar went to the bedroom and returned to the living room, she placed her tote bag at the feet of, or very near to, Mr. Musclow seated in the armchair. This placement would permit Ms. Ferderbar to reach into her tote bag, halfway remove the baggie of fentanyl, use a key to take a bump of it, and place it under Mr. Musclow’s nostril. But then the question would arise as to when, how, and why the tote bag moved from being at Mr. Musclow’s feet to where it was ultimately found by police as depicted in the search warrant entry video.
251Ms. Ferderbar testified that at no time did she enter the bedroom, so her tote bag was never in the bedroom. I note that she testified that she placed her tote bag upon entry closer to the windows / balcony in the living room, and not where it appears in the search warrant entry video. The windows and balcony, visible at the 43 second mark of the search warrant entry video, are nowhere close to where Mr. Musclow would have been seated in the armchair. But Ms. Ferderbar never suggested that the fentanyl came from her tote bag. Hence, unlike the problems with Mr. Musclow’s evidence, there is less of an internal contradiction in her evidence if, on the one hand, her tote bag was placed near the windows, and on the other hand, it was placed as shown on the search warrant entry video. There is nothing in Ms. Ferderbar’s evidence to suggest that she went into the bedroom.
252I find that the reason why there are problems with Mr. Musclow’s evidence about the placement of the tote bag is that Mr. Musclow was making up a fictious event. While I am prepared to grant Mr. Musclow some latitude in recalling events from eight years ago, significant inconsistencies in his evidence cannot be put down to mere forgetfulness. Rather, they reflect Mr. Musclow’s inability to mold a fictitious narrative to the available evidence.
253A much more plausible explanation is that Ms. Ferderbar’s tote bag was always in the location where it was found in the living room which is also where Ms. Ferderbar’s makeup bag and wallet were found. This would be far more consistent with the fentanyl not coming from Ms. Ferderbar’s tote bag since the two armchairs are a few steps away. If the fentanyl did not come from Ms. Ferderbar, it could have only come from Mr. Musclow.
Mr. Musclow’s evidence about moving the armchairs was problematic
254Mr. Musclow’s difficulties and lack of credibility were evident in other areas. Mr. Musclow testified that, normally, the two burgundy armchairs were placed with their backs to the wall in the living room but that, when Ms. Ferderbar came over, he moved the armchairs so that the corners of the two armchairs were almost touching, maybe six inches apart, so that when they were sitting, they were “like knee to knee.” He testified that the armchairs shown in the search warrant entry video were not in the same position as when he and Ms. Ferderbar were seated together. Yet, he also agreed that the armchairs came to be in the position that they appeared in the search warrant entry video because he moved them there.
255I find that Mr. Musclow’s description of the movement of the armchairs makes no sense. First, the armchairs shown in the search warrant entry video do not have their corners almost touching. There is a side table between them. Accepting Mr. Musclow’s evidence that he moved the armchairs so that the corners were touching would require someone to have moved them apart later so that they appear as they do in the search warrant entry video. Except, based on Mr. Musclow’s own evidence, there was little opportunity or reason for Mr. Musclow to have moved the armchairs apart.
256As described by Mr. Musclow, he and Ms. Ferderbar were seated in the armchairs, presumably knees touching. Ms. Ferderbar said she wanted to get high first, went to the bedroom and returned with her tote bag, and gave a bump of fentanyl to Mr. Musclow who passed out for 30 to 45 minutes. He came to, went to the kitchen, made instant coffee, and was very concerned about whether any of his items were stolen. So he went to his bedroom, saw that all was in order, and returned to the armchair, and had a brief exchange with Ms. Ferderbar. Next, Ms. Ferderbar said it was her turn to get high, which led to her passing out and Mr. Musclow immediately taking her down to the lobby. It is difficult to understand why and when in this sequence of events Mr. Musclow would have separated the armchairs from each other. I find that Mr. Musclow invented the narrative of the armchairs almost touching to advance the idea of him getting intimate with Ms. Ferderbar, which is related to him earlier taking her into the bedroom and her leaving her tote bag there. I cannot be sure whether or how the armchairs moved, but Mr. Musclow’s evidence does not make sense.
Mr. Musclow had inconsistent positions about the location of the paper (sparkly) bag
257Chronologically, in Mr. Musclow’s version of events, he and Ms. Ferderbar sit down in the armchairs, he tells her that he wants to sleep with her, she says she wants to get high first, she goes to the bedroom, returns to the living room with her tote bag from which she pulls out a plastic baggie halfway, she gives Mr. Musclow a bump of fentanyl off a key, he passes out, wakes up, makes coffee, goes to his bedroom to check his money, returns to the living room and asks for the baggie, Ms. Ferderbar takes lines of fentanyl, she collapses, Mr. Musclow goes again to his bedroom, grabs the Suboxone from his drawer, returns to the living room, places it under Ms. Ferderbar’s tongue, and calls 911 as he is taking Ms. Ferderbar down to the lobby.
258In his evidence in chief, Mr. Musclow seemed to be100% sure that the paper bag (what he called the sparkly bag) in which the police later found drugs was not in the bedroom when he recovered from passing out and went to the bedroom to check whether his money was still there. This would imply, by his evidence, that the paper bag was still in Ms. Ferderbar’s tote bag which, by this time, she had moved from the bedroom to the living room so that they could get high.
Q. When you went into the bedroom to check your money was still there, can you tell us whether you noticed anything in the bedroom?
A. I can say that that bag in – on the floor in the bedroom in [the search warrant entry video] that was there in the bedroom on the video, 100% was not there when I went in to look at the money.
Q. Perhaps we could, just so we make – is this – this is the sparkly one you’re talking about?
A. Yes.
259But then, in cross-examination, focusing on a few minutes earlier when Ms. Ferderbar first said she wanted to get high, Mr. Musclow was asked where the fentanyl came from:
Q. So, tell me – tell us again how she – how and where she retrieved this fentanyl from that you did a bump off they key?
A. So, we sat down, her purse was still in the bedroom where she left it.
Q. Hmm, h’mm.
A. When we first came in the apartment.
Q. H’mm, h’mm.
A. So when we sat down on the red chairs and said let’s get high, or I want to get high or whatever, she went to the bedroom, grabbed the carrier [tote] bag, and came back. I noticed, sitting there, that sparkly bag was absent from her bag. I’m very observant, especially when I have women come over or friends, like I’m always watching everything. I noticed when she brought that bag back, that sparkly bag wasn’t in it. I didn’t know what was in the sparkly bag at the time.
260Mr. Musclow’s evidence, in cross, would appear to be inconsistent, because in chief he implied that the paper bag was in the tote bag in the living room, but in cross he said that he was very observant and that the paper bag was not in the tote bag in the living room.
261Still later in cross-examination, when asked about this apparent contradiction, Mr. Musclow demurred, and landed on, “I cannot say with certainty that I saw it [the paper bag] in a specific place.” Mr. Musclow’s comment is difficult to reconcile with the small size of the bedroom and his earlier claim about being very observant about the paper bag.
262Ultimately, I find that Mr. Musclow had inconsistent positions about the location of the paper bag in which police later found the fentanyl. The reason why Mr. Musclow was inconsistent was that he had difficulty being consistent when making up a story that was untrue.
Mr. Musclow’s evidence about what Ms. Ferderbar moved out of the bedroom seems odd
263Mr. Musclow testified that both he and Ms. Ferderbar passed out from fentanyl that came from the small baggie found by police on the burgundy chair in the living room. He testified that Ms. Ferderbar went to the bedroom, returned to the living room with her tote bag, pulled out a plastic baggie halfway, and gave Mr. Musclow a bump of fentanyl off a key.
264Accepting Mr. Musclow’s evidence that Ms. Ferderbar entered the apartment and placed the tote bag in the bedroom, one would expect that when Ms. Ferderbar returned to the bedroom to retrieve the fentanyl to get high, the following methods of moving the fentanyl to the living room would seem the most convenient: she could move the tote bag (which supposedly contained the paper bag that contained the large amount of fentanyl) to the living room; she could move the paper bag (containing further baggies of drugs) to the living room, leaving behind the tote bag in the bedroom; or, she could remove a small plastic baggie of drugs out of the paper bag and move the baggie to the living room, leaving behind the tote bag in the bedroom still containing the paper bag. These options correspond to moving any one of the tote bag, paper bag, or baggie of drugs from the bedroom to the living room.
265It seems odd, by Mr. Musclow’s evidence, that Ms. Ferderbar would choose to take the baggie of drugs out of the paper bag, and bring the baggie and tote bag into the living room, leaving behind the paper bag in the bedroom. While it not impossible that Ms. Ferderbar would have done so, her putting the small baggie into the large tote bag and moving the tote bag to the living room seems odd. I find Mr. Musclow’s evidence contrived to match the objective evidence. I find it much more likely that the paper bag of drugs found in the bedroom had nothing to do with Ms. Ferderbar’s tote bag. If so, Mr. Musclow and not Ms. Ferdebar possessed the drugs found in the apartment.
The tote bag appears to be too small to fit all the items Mr. Musclow attributed to Ms. Ferderbar
266According to Mr. Musclow, Ms. Ferderbar brought the following items into his apartment in her tote bag: (i) an LCBO bag, which contained a bottle of wine and a bottle of vodka; (ii) a blue and pink striped make-up bag; (iii) a black purse; (iv) some clothing; and (v) a paper bag in which police found almost 2 kilograms of fentanyl.
267The search warrant entry video paused at 39 seconds shows the tote bag containing what appears to be clothing, and the makeup bag and purse on the table. Given the size of the various items, I find that it would be very difficult for the paper bag containing approximately 2 kilograms of drugs, as seen in the search warrant entry video and a separate video of the bedroom, to have fit into the tote bag with the other items. Of course, viewing the items on video, I cannot definitively say that it would be impossible for all the items described by Mr. Musclow to have fit into Ms. Ferderbar’s tote bag. This is just one piece of circumstantial evidence that weighs against Mr. Musclow.
Ms. Ferderbar was a difficult but credible witness
268Ms. Ferderbar testified at trial via CCTV. She was a difficult and, at times, feisty witness. But there were no material inconsistencies in her evidence. She corrected herself upon viewing the search entry video and acknowledged that she ventured farther into the kitchen than she originally said. She could not explain how her tote bag ended up where it was seen on the search entry video since she remembered placing it closer to the balcony or window. However, I do not find these inconsistencies to be damaging to her overall evidence. She was steadfast that she never went into the bedroom, and had no knowledge of the paper bag of drugs found there.
269I disagree with the defence’s suggestion that Ms. Ferderbar was drunk on the first day of her testimony in court and possibly on the second day as well. While she admitted to consuming three vodka cranberry drinks before she attended on the first day, it was not clear how much earlier in the day she had consumed them. I note that she answered questions put to her by Crown counsel over an entire Friday afternoon. In cross-examination the following Monday, she testified that earlier that day she had not had anything to drink.
270Defence counsel submitted that Ms. Ferderbar was consumed by anger against Mr. Musclow and was committed to seeing him convicted. At the start of Ms. Ferderbar’s testimony she claimed that Mr. Musclow “left her for dead.” She testified that, returning to court eight years later was traumatic since, up to that point, she was “trying to get [her] fucking shit together and [she] was doing really good.” She stated, “whatever frigging puts this guy away, I’m doing it.” In cross-examination, she was asked how she could blame Mr. Musclow when objectively, the 911 call that he made resulted in paramedics saving her life. She responded that Mr. Musclow did not give the right unit number. As well, she claimed that, around a month after Mr. Musclow’s arrest in 2017, he contacted her via Facebook and told her that, as he dragged her lifeless body down to the lobby, he could see her “nice shaved pussy.” Mr. Musclow denied doing so.
271On three different occasions in cross-examination, Ms. Ferderbar asked defence counsel, “how do you even sleep at night?” At another point, when defence counsel suggested that she was, in fact, in the bedroom, she responded, “you can suggest whatever you want, but I’m telling you the frigging truth.” When defence counsel suggested that she stole 2 kilograms of fentanyl from Dragon, she answered directly that she did not know who Dragon was and added “so, you can stop with the bullshit.”
272While Ms. Ferderbar was at times crude and combative with defence counsel, she still answered all questions put to her. I believe her testimony that while she was an alcoholic, she did not bring the drugs into the apartment on July 6, 2017. I believe her anger to be directed to her belief that Mr. Musclow supplied her with the drugs that almost killed her. That Mr. Musclow called 911 when she passed out, likely saving her life, seemed lost on her. She was completely illogical on this point, but that does not translate into her lying when she testified that she had nothing to do with the drugs.
I disbelieve Mr. Musclow’s evidence and the evidence I do believe convinces me of his guilt beyond a reasonable doubt
273I disbelieve much of Mr. Musclow’s evidence. Many aspects of his evidence make little sense. Accepting his narrative would involve accepting that Ms. Ferderbar, having been beaten up by her boyfriend, left her boyfriend’s home inebriated with a tote bag containing hundreds of thousands of dollars’ worth of fentanyl. Of course, the details of Ms. Ferderbar leaving are unknown, so it is possible that Ms. Ferderbar managed to get away from her boyfriend with or without his knowledge of the drugs she was carrying. In any event, I find Ms. Ferderbar’s version of events more credible than Mr. Musclow’s.
274Once in the apartment, Mr. Musclow would have the court believe that he still wanted to have sex with a woman who he had not seen in 15 years who was inebriated, beaten up, and presented with black eyes, and a swollen, possibly broken, nose. But Ms. Ferderbar wanted to drink first and then get high. And, despite his stated desire to have sex, Mr. Musclow got high first. Despite struggling his whole life with addictions, and coming off a methadone addiction a few months earlier, he decided he would get high on fentanyl, a dangerous drug he had never tried before, brought by a woman he hardly knew.
275After Ms. Ferderbar insisted on getting high in the living room, she did not retrieve from the bedroom either the small Ziplock baggie of fentanyl by itself, or the paper bag containing multiple Ziplock bags of fentanyl. Instead, depending on what version of Mr. Musclow’s evidence you accept, she brought her large tote bag into the living room which contained the small baggie of fentanyl, leaving behind in the bedroom the paper bag containing the larger amount of drugs. Before Mr. Musclow ingested the fentanyl, he was so observant that he noticed that the paper bag was missing from the tote bag when Ms. Ferderbar came back into the living room. Strangely, despite being very concerned about what Ms. Ferderbar had been doing for half an hour while he was passed out, and earlier observing that the paper bag was not in the tote bag in the living room, when Mr. Musclow went into the bedroom he was, by his testimony in chief, 100% sure that the paper bag was not in the bedroom but, in his cross-examination, not certain where the paper bag was located.
276I find that Mr. Musclow’s possession of fentanyl in unit #810 is the only reasonable inference that the evidence permits in this case. While the logistics of how Mr. Musclow managed to bring roughly two kilograms of fentanyl into unit #810 are unclear, this does not leave me with a reasonable doubt as to his guilt. After Mr. Musclow’s release from prison, he was free to move around in the community, and Ms. Kerr was out of the apartment for long periods of time given her full-time job. Although he initially used Ms. Kerr’s phone, he had his own cell phone by July 6, 2017.
I place no weight on Mr. Musclow’s post-offence conduct
277While Mr. Musclow undoubtedly mislead the emergency and police authorities by claiming a connection with unit #111 and then unit #812, his reason for doing so can be attributed to aspects that do not point to his guilt with respect to P4P of fentanyl, or at least not to P4P of fentanyl in respect of the larger amount of fentanyl found in the bedroom. Mr. Musclow was on parole. He should not have been getting high on any illegal substance. He was consorting with a someone who he knew as a sex worker and who had a criminal record. At the time, he thought he had $6,000 in cash sitting in a drawer which originated in illegal “hustles” that he had made while in custody. He admitted that he did not want Ms. Kerr to know about Ms. Ferderbar.
278While I admitted into evidence Mr. Musclow’s utterances about there being fentanyl upstairs in the apartment and him being able to get police the names of bigger dealers and other criminal activity, I am not prepared to treat that as evidence of Mr. Musclow’s consciousness of guilt in respect of the charge of P4P of fentanyl. It may have been the case that, knowing that police had found the smaller amount of fentanyl in the baggie on the armchair, he knew he was in jeopardy and was trying to leverage some information while, at the same time, being ignorant of the larger quantity of fentanyl in the paper bag in the bedroom. Accordingly, I ruled that Mr. Musclow made the utterances about fentanyl and other potential criminal activity, but I give it no weight in terms of its persuasive value concerning the evidence against Mr. Musclow at trial.
The Defence arguments do not cause me to have a reasonable doubt about Mr. Musclow’s guilt
279I have also considered the defence argument that, had Mr. Musclow been responsible for the fentanyl in the apartment he would not have abandoned the apartment with the door wide open with potentially over $400,000 worth of fentanyl sitting in a paper bag in the middle of the bedroom. The defence argues that it must be the case that the fentanyl came from Ms. Ferderbar and Mr. Musclow did not even know about the paper bag containing fentanyl in the bedroom. I find the counterweight to this argument more persuasive. I find that, when Ms. Ferderbar passed out, it was such a life and death situation that Mr. Musclow forgot he left a bag of drugs in the middle of the bedroom, or he thought that he would be able to return to unit #810 to tidy things up. He likely had no expectation that police would come up and look for other overdose victims in the unit. Of course, once Ms. Ferderbar overdosed and he went downstairs with her, he was never allowed back into the unit.
Conclusion
280In conclusion, I am convinced of Mr. Musclow’s guilt beyond a reasonable doubt and find him guilty of possession of fentanyl for the purpose of trafficking.
Pinto J.
Released: January 26, 2026