His Majesty the King v. Lehlohonolo Molefe, 2026 ONSC 2270

Court File and Parties

CITATION: R. v. Molefe, 2026 ONSC 2270

COURT FILE NO.: CR-24-90000666

DATE: 20260417

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

LEHLOHONOLO MOLEFE

COUNSEL:

Julia De Filippis, for the Crown

Christien Levien, for Lehlohonolo Molefe

HEARD at Toronto: March 3, 4, 5 and 6, 2026

J.K. PENMAN J.

Reasons for Judgment

Overview

1Mr. Molefe is charged on a 17-count indictment with various drug trafficking and firearm possession offences between August 17 to September 15, 2023. The charges stem from an investigation into Mr. Molefe who Toronto Police believed was trafficking cocaine in the Lakeshore Boulevard and Islington Avenue area.

2On August 17, 2023, an undercover officer contacted “Lolo”, believed to be Mr. Molefe, and arranged to buy a quantity of cocaine. The transaction was completed with an unknown male who the police believed was being used as a “runner” for Mr. Molefe. Successful transactions took place on August 25 and September 13, 2023, with Lolo arranging the deal by phone, but using a runner to deliver the drugs. Another drug purchase was arranged by Lolo and the undercover officer for September 15, 2023. The runner was arrested before the deal took place and found to have a quantity of cocaine on his person.

3At the time, police believed Mr. Molefe was residing at 160 Islington Avenue, a commercial building known as the Rehearsal Factory, with units primarily being used as recording studios. Police officers spoke with Chris Skinner, the landlord of the Rehearsal Factory to obtain lease information for the units that appeared to be associated to Mr. Molefe.

4Mr. Skinner provided police with the lease for Unit 108 in the name of Karabo Makgalo dated August 28, 2023. The second lease agreement was for Unit B4 and was in the name of Lehlohonolo Molefe dated August 30, 2019. Mr. Skinner provided police with a screenshot of an e-transfer for first and last month’s rent for Unit 108 in the name of Ntebogiseng Molefe. Mr. Skinner also provided DC Sivanathan with Mr. Molefe’s email address, as well as his phone number and indicated that payments for both units were coming from nmolefeholdings@icloud.com. Mr. Skinner also provided police with access to the buildings common room and exterior CCTV footage.

5Through a combination of surveillance and CCTV footage the police observed Mr. Molefe going in and out of 160 Islington Avenue with a key and often attending the side alley of the building for brief meetings with people. Police believed these were drug transactions.

6Toronto Police sought and obtained search warrants for Units 108 and B4, 160 Islington Avenue. On September 15, 2023, police entered Unit 108 and found Mr. Molefe sitting at a desk on which were bags of cocaine, and drug related paraphernalia. Next to Mr. Molefe was the phone that had been used to communicate with the undercover officer. Police located a firearm in a distinctive backpack behind the fridge. Keys to the unit were on a coffee table, and numerous documents in Mr. Molefe’s name were found throughout the unit. Mr. Molefe was arrested for the drug trafficking, drug possession, and firearm offences.

7During the search of Unit B4, police located additional drugs and a firearm which was found in the same distinctive backpack as the firearm in Unit 108. A document in Mr. Molefe’s name was also located.

8At trial, the Crown called several police officers including the undercover officer and search officers. The Crown’s case also included photographs, the text messages exchanged between the undercover officer and “Lolo”, surveillance evidence, and CCTV footage.

9Mr. Molefe did not testify. The defence called Zuki Madikizela, who testified that the drugs and firearms found in Units 108 and B4 belonged to him.

10The landlord of 160 Islington Avenue, Mr. Skinner had since passed away. The Crown now seeks to introduce the statements and documents provided by Mr. Skinner to DC Sivanathan under the principled exception to the hearsay rule.

11The issues for me to decide are:

1. Are the documents and hearsay statements by Mr. Skinner admissible?

2. Did Mr. Molefe traffic cocaine to the undercover officer on August 17, 25, September 13, and 15, 2023?

3. Was Mr. Molefe in possession of the drugs and firearms found in Units 108 and B4?

12For the following reasons, I am satisfied that the documents and hearsay statements are admissible. I also find that Mr. Molefe engaged in trafficking with the undercover officer on the dates outlined above, through the use of “runners”. I am also satisfied that the Crown has established beyond a reasonable doubt that Mr. Molefe had both knowledge and control of the drugs and two firearms found in Units 108 and B4.

Issue 1: Are the documents and hearsay statements by Mr. Skinner admissible?

13Mr. Skinner provided police with information and documentation about the tenants of Units 108 and B4, including information about deposits and rent payments. The Crown seeks to rely on this information to establish that Mr. Molefe occupied and controlled both units. For the following reasons, I am satisfied that the documents and statements attributed to Mr. Skinner are admissible.

14Hearsay evidence is presumptively inadmissible but can be admitted through the principled exception to the hearsay rule if found to be both necessary and reliable: R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 23.

15There is a critical distinction to be made between threshold and ultimate reliability. At the threshold stage, it is for the trial judge to determine whether there exist “sufficient indicia of reliability so as to afford the trier of fact ‘a satisfactory basis for evaluating the truth of the statement’”: R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at para. 83, citing R. v. Hawkins, [1996] 3 S.C.R. 1043, at para. 75; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 35.

16The burden of proof is on the party seeking to admit the evidence to satisfy the judge that both criteria are established on a balance of probabilities: R. v. B. (K.G.), [1993] 1 S.C.R. 740, at p. 800; Khelawon, at para. 47.

i) Necessity

17As the Supreme Court of Canada held in R. v. Khan, [1990] 2 S.C.R. 531, at p. 546, the first issue is whether reception of the hearsay statement is necessary. Necessity means reasonably necessary, in other words the direct evidence of the witness is unavailable despite reasonable efforts to obtain it: R. v. F. (W.J.), [1999] 3 S.C.R. 569, at para. 45.

18Necessity is met where the declarant is physically unavailable to testify, for example because of death, absence from the jurisdiction, insanity, testimonial incompetence, or non-compellability. It does not mean necessary to the prosecution’s case: R. v. Rowe, 2021 ONCA 684, 159 O.R. (3d) 127, at paras. 41-42.

19I am satisfied in this case that the necessity requirement has been made out. Mr. Skinner has passed away and there is no other mechanism by which his evidence can be received at trial.

20I do not accept the submission that when DC Sivanathan learned that Mr. Skinner was terminally ill, the police should have followed up at that point and obtained the original documents and an affidavit from Mr. Skinner. By the time these issues arose for trial, Mr. Skinner had passed away.

21Mr. Skinner asked his assistant to forward the documentation and then referred to that documentation while he was speaking DC Sivanathan. I do not accept that because Mr. Skinner received some information and documentation from his assistant, that necessity is not made out. Mr. Skinner was the landlord at the time, is no longer available to testify, and it is reasonably necessary to admit the hearsay evidence to obtain his version of events.

ii) Reliability

22Reliability, at this stage, is concerned with threshold reliability, which is to say whether the statement exhibits sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis for evaluating the truth of the statement: Hawkins, at para. 75.

23Threshold reliability is concerned with procedural or substantive reliability. Procedural reliability questions whether there are adequate substitutes for testing the truth and accuracy of the statement. Substantive reliability asks whether there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy. These elements can work together and be combined to overcome specific hearsay dangers where each on its own would be insufficient to establish reliability: Bradshaw, at paras. 27, 32; R. v. Srun, 2019 ONCA 453, 146 O.R. (3d) 307, at para. 127.

24The Supreme Court of Canada established that substantive reliability is determined by considering the circumstances in which the statement was made, and any evidence that corroborates or conflicts with the statement. Reliability, however, does not need to be established with absolute certainty. The statement must be “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process.” Bradshaw, at paras. 30-31.

25Corroborative evidence can only be relied upon if it shows, when “considered as a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement.”: Bradshaw at para. 44.

26The Supreme Court of Canada in R. v. Charles, 2024 SCC 29 at para. 49 explained that the “Bradshaw framework serves to ensure that corroborative evidence is used only in cases where it bears on the aspect sought to be proved by adducing the statement. The requirement for a connection between the corroborative evidence and the aspect in question flows from the role that such evidence must play.”

27DC Sivanathan spoke to Mr. Skinner on September 8, 2023, and advised him that Toronto police were conducting a drug investigation into Mr. Molefe. DC Sivanathan asked for access to the building cameras and that Mr. Skinner sign a consent form for the surveillance within the building. The officer also asked Mr. Skinner for copies of the lease agreements for Units 108 and B4.

28Mr. Skinner indicated that he was in the process of selling the building, did not want any issues, and was willing to fully cooperate. Mr. Skinner was on the phone with his assistant who sent him the lease documents, while he was speaking with DC Sivanathan. Mr. Skinner provided the police with a master key to access the common areas, and two lease agreements.

29The first lease agreement was for Unit 108 in the name of Karabo Makgalo dated August 28, 2023. Mr. Skinner provided DC Sivanathan with a screenshot of a direct deposit e-transfer payment for first and last month’s rent for Unit 108 in the name of Ntebogiseng Molefe, dated September 1, 2023.

30The second lease agreement was for Unit B4 and was in the name of Lehlohonolo Molefe dated August 30, 2019. Mr. Skinner also advised that the email registered to Unit B4 was holdings.investments@gmail.com, and the phone number registered to the unit was 647-916-5996.

31Mr. Skinner told DC Sivanathan that payments for both units were received from NMolefeholdings@icloud.com.

32The hearsay dangers at issue in this case are Mr. Skinner’s memory, perception, and sincerity. Specifically, is there any basis to suggest that Mr. Skinner was providing inaccurate information, and did Mr. Skinner have a motive to lie, exaggerate or tailor his evidence?

33I am satisfied that the following circumstances surrounding the seizure of the leases and the statements by Mr. Skinner are inherently trustworthy. Mr. Skinner was advised there was a police investigation and that the police were specifically interested in Units 108 and B4. Mr. Skinner as the landlord who would have knowledge relating to the renters of those units. Mr. Skinner willingly provided the information and indicated he wanted to fully cooperate. Mr. Skinner was referencing documents sent to him by his assistant while speaking with the police. Mr. Skinner had never met Mr. Molefe and there is no basis in the evidence to suggest that Mr. Skinner had an ulterior motive or reason to fabricate the information being provided to the police.

34There is a significant amount of reliable evidence that corroborates material aspects of Mr. Skinner’s evidence that in my view address the specific hearsay dangers. This evidence includes the following:

• Video surveillance showing Mr. Molefe entering 160 Islington Avenue with a key.
• Mr. Molefe was located within Unit 108 when the police executed the search warrant.
• The key to Unit 108 was located in Unit 108 on the coffee table.
• The phone that was located next to Mr. Molefe is the same phone number that Mr. Skinner said was registered to Unit B4. This is the same phone number the undercover officer called to purchase cocaine.
• Documents in Mr. Molefe’s name were found in both units.
• The lease document for Unit B4 has Mr. Molefe as the lessee.
• The screenshot of the direct deposit confirmation showing a payment from Ntebogiseng Molefe for first and last month’s rent for Unit 108.
• It was agreed by the parties that Mr. Molefe’s surety on these charges is Ntebogiseng Molefe.

35I am satisfied that it is unlikely that there is any rational or logical explanation for the hearsay statements attributed to Mr. Skinner other than the truth of these statements. I am not persuaded that there is any basis to support the suggestion that Mr. Skinner would fabricate the information. Mr. Skinner provided the information to the police “without hesitation”. While cross-examination is obviously preferred, I am not satisfied that cross-examination would add anything to the process: R. v. Furey, 2022 SCC 52, [2022] 1 S.C.R. 711, at para. 5.

36For all these reasons, I am satisfied that threshold reliability has been established.

Issue 2: Was Mr. Molefe trafficking cocaine on August 17, 25, September 13, and 15, 2023

Overview

37This investigation began when police came to believe that Mr. Molefe was selling drugs out of 160 Islington Avenue, specifically Units 108 and B4. Officer Gill was detailed to act as an undercover officer in the investigation into Mr. Molefe. Officer Gill was provided with the phone number 647-916-5996 and the name “Lolo”, and he understood that Lolo was dealing cocaine and “molly”. The police believed that Lolo was Mr. Molefe.

38Officer Gill engaged in three different transactions with a male believed to be a “runner” delivering the cocaine on behalf of Lolo. These males were later identified as Mr. Makgalo and Mr. Ola-Olorunsola. The fourth buy on September 15, 2023, did not take place because the police executed search warrants on Units 108 and B4.

39Mr. Molefe is the lessee of Unit B4 and was observed repeatedly going in and out of 160 Islington using a key. Mr. Makgalo’s signed the lease for Unit 108 on September 1, 2023. The CCTV footage from the common areas and exterior of 160 Islington Avenue shows Mr. Molefe, Mr. Makgalo, and Mr. Ola-Olorunsola exiting and entering 160 Islington throughout the investigation and specifically at time periods which coincide with the drug transactions.

40When police executed the warrant on Unit 108, Mr. Molefe was found alone in the unit, sitting at a table that had large quantities of cocaine, other drugs, drug trafficking paraphernalia, and the phone used to communicate with the undercover officer on it.

41Counsel for Mr. Molefe acknowledged the strength of the evidence that Mr. Molefe was found in Unit 108 with a large amount of cocaine in front of him, and that the phone used to communicate with the undercover officer was found next to him. Counsel did not specifically argue that Lolo was not Mr. Molefe. Rather, he argued it is “possible” that other people were using the phone that was in the unit to conduct the drug transactions.

42For the following reasons, and based on the evidence related to the transactions, police’s observations, evidence from the searches of the units, and Mr. Skinner’s evidence, as outlined below, I am satisfied that the only reasonable inference on the whole of the evidence is that Mr. Molefe trafficked cocaine to the undercover officer using a “runner” on August 17, 25, and September 13, 2023. On September 15, 2023, although no transaction occurred, I am satisfied that Mr. Molefe offered to sell the undercover officer a quantity of cocaine. I am satisfied that the elements of drug trafficking have been established beyond a reasonable doubt.

Legal Principles

43Under s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, “[n]o person shall traffic in a substance included in Schedule I . . . or in any substance represented or held out by that person to be such a substance.” The following s. 2 definitions are also relevant:

“traffic” means, in respect of a substance included in any of Schedules I to V,

(a) to sell, administer, give, transfer, transport, send or deliver the substance,

(b) . . .

(c) to offer to do anything mentioned in paragraph (a) or (b),

otherwise than under the authority of the regulations.

"sell" includes offer for sale, expose for sale, have in possession for sale and distribute, whether or not the distribution is made for consideration;

44Accordingly, the elements of the offence of trafficking cocaine include:

1. that the accused trafficked in a substance;

2. that the substance was cocaine;

3. that the accused knew that the substance was cocaine; and

4. that the accused intentionally trafficked in cocaine.

45The case against Mr. Molefe is largely circumstantial. The Supreme Court of Canada has held that, when assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 37.

46It is also the case that the Crown may need to negative reasonable possibilities but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation: Villaroman, at para. 37.

Analysis

i) August 17, 2023

47On August 17, 2023, Officer Gill texted the number for Lolo looking to buy 3.5 grams of powder cocaine. Lolo responded saying he could sell that amount to him for $280 and asked to meet “by Southside”, which the officer understood to mean Southside Johnny’s bar.

48At 7:16pm, the officer messaged Lolo, “hey bro I’m here”. At 7:17pm Lolo responded by asking, “Can you come the side alley of 160 Islington please”. The officer responded that he did not have a car. Lolo called the officer and confirmed that he was at the karaoke bar and that someone would be there.

49At 7:44pm Officer Gill texted asking, “Hey bro…you close?”. Lolo responded, “Ya let me find out how close”, and “He is there in a minute”. At 7:52pm Lolo texted “he is at the back now”, to which the officer responded, “Ok I’m coming out”. Lolo replied, “dark gray sedan”.

50Officer Gill purchased 4 grams of cocaine off a male who was later identified to be Mr. Makgalo. Mr. Makgalo is the male who two weeks later signed the lease for Unit 108, where Mr. Molefe was found when the police executed the search warrant. Mr. Molefe is also observed on the CCTV footage in the company of Mr. Makgalo on several occasions.

51While the undercover officer was communicating with Lolo, other officers had Mr. Molefe under surveillance at 160 Islington Avenue beginning at 6:09pm. Around the same time Lolo texted the undercover officer asking if they could meet at the side alley of 160 Islington Avenue, Mr. Molefe was observed going in and out of 160 Islington Avenue to the side alley where he met briefly with various people.

52I have considered that the phone used to communicate with the undercover was found next to Mr. Molefe when the warrant was executed on September 15, 2023. I have also taken into consideration the surveillance of Mr. Molefe going in and out of 160 Islington Avenue to the side alley, at the proximate time that Lolo asked the undercover to meet him in the side alley of 160 Islington Avenue.

53Mr. Makgalo, the “runner”, is connected to Mr. Molefe through surveillance, and his leasing of Unit 108 on September 1, 2023. I am satisfied that Mr. Molefe is “Lolo” and that Mr. Molefe trafficked cocaine to the undercover on August 17, 2025.

ii) August 25, 2023

54On August 25, 2023, Officer Gill texted Lolo at 7:14pm, asking “can you do a ball”, and asked if they could meet at Southside Jonny. He then asked to meet at Sloppy’s instead. Lolo responded saying, “ya no problem gonna be 15 for delivery”. At 8:40pm, Officer Gill texted that he was at the bar. Lolo responded, “kk my man is coming”. At 9:02pm, Officer Gill asked, “where is he at”, and Lolo responded, “he is at Southside give him a min”.

55Shortly after 9:02pm, Officer Gill exited the bar and was approached by the same male as on the previous occasion, who was on a scooter wearing a black t-shirt and light blue jeans. Officer Gill received the cocaine, which was in a two-by-two inches clear plastic bag, and he turned over the $280.

56At 7:45pm, Mr. Makgalo was observed waiting outside 160 Islington Avenue, meeting with someone who appeared to be Mr. Molefe. At 8:43pm, Mr. Makgalo left 160 Islington Avenue with a scooter. Mr. Makgalo was observed returning to the building at 9:16pm and being let back into the building by Mr. Molefe. This is approximately 14 minutes after the transaction with the undercover officer.

57At 8:59pm, Mr. Molefe was observed getting out of the driver’s seat of a grey Chrysler sedan license plate, CTEN 915, which was stopped outside 160 Islington Avenue.

58Again, I am satisfied that Mr. Makgalo conducted the drug transaction with Officer Gill at the behest of Mr. Molefe. Mr. Molefe was found on September 15, 2023, at a table with large quantity of cocaine in front of him and all the trappings of a drug trafficking operation. The phone used to communicate with the undercover officer was located on the desk next to him. According to Mr. Skinner the phone number associated to that phone was registered to the unit being leased by Mr. Molefe.

59While Lolo was telling the undercover that his runner was on the way, Mr. Makgalo was observed leaving 160 Islington Avenue with a scooter. The runner who met with the undercover had a scooter. When Mr. Makgalo returned, he was let into the building by Mr. Molefe. The only reasonable inference on this evidence is that Mr. Molefe trafficked cocaine to the undercover officer.

iii) September 13, 2023

60At 7:07pm on September 13, 2023, Officer Gill texted Lolo asking to buy a “ball”, or 3.5 grams of cocaine. Lolo responded yes, for $260 and $20 for delivery because the officer asked to meet at Sloppy’s. At 8:42pm, Lolo texted, “ok my man go to the side door”, to which Officer Gill responded, “now”, and he understood Lolo to be referring to the Sloppy’s side door. Lolo texted, at 8:46pm, “no at the studio”, to which the officer responded, “No. I’m at Sloppys”. At 8:59pm, Lolo texted, “he is there my man”.

61At 9:01pm, Officer Gill exited the bar and met with a male, later identified to be Mr. Ola-Olorunsola, in a grey Chrysler sedan license plate CTEN 915. When Officer Gill approached the driver’s side of the vehicle, he noticed the driver had a phone on his thigh and was on the phone. Officer Gill was able to see the caller’s name on the screen, which was Lolo. He heard the voice on the other end of the line and thought it sounded like the person he understood to be Lolo.

62At 8:33pm, an officer conducting surveillance at 160 Islington Avenue observed an unknown male, later identified to be Maxwell Ola-Olorunsola, entering Unit 108 with a key. At 8:44pm Mr. Ola-Olorunsola was observed leaving Unit 108 and going to the side stairwell. At 8:47pm Mr. Ola-Olorunsola returned to Unit 108 and was seen exiting again at 8:54pm. Mr. Ola-Olorunsola was seen on the CCTV footage returning to 160 Islington Avenue in the grey Chrysler at 9:11pm and entering the building.

63Based on the timing of the messages and police’s observations of Mr. Ola-Olorunsola, I am satisfied that Mr. Ola-Olorunsola was directed by Mr. Molefe to attend the side door to meet with the undercover officer. When Lolo texted the officer “no at the studio”, he was explaining that the deal would be conducted at the side door of 160 Islington Avenue. When the officer told Lolo that he was at Sloppy’s instead, Mr. Ola-Olorunsola left 160 Islington Avenue to go and complete the transaction.

64I have also taken into consideration Officer Gill’s observation of the name Lolo on the screen of Mr. Ola-Olorunsola’s phone, and the officer’s identification of Lolo’s voice.

65For all these reasons, I am satisfied that it is Mr. Ola-Olorunsola who sold cocaine to the undercover officer and that he did so at the behest of Mr. Molefe.

iv) September 15, 2023 (Incomplete Transaction)

66At 5:00pm, Officer Gill texted Lolo again to purchase a “ball” or 3.5 grams of cocaine for $280. They agreed to meet at Southside. Lolo texted that, “He will be here in an hour”. The police planned on executing the search warrants on Units 108 and B4, so Officer Gill never attended the meeting.

67Prior to the warrants being executed, Mr. Molefe was observed exiting 160 Islington Avenue at 6:43pm and attending the side alley with an unknown male for a short period of time. At 6:59pm, Mr. Molefe was seen leaving 160 Islington Avenue, crossing the street and meeting with a male later identified as Mr. Molin. They both entered 160 Islington Avenue, and Mr. Molefe was seen using a key.

68At 7:05pm, Mr. Molefe left and went into the side laneway with a female. Five minutes later, Mr. Molefe was back in 160 Islington Avenue, again using a key to enter the building.

69At 7:20pm, Lolo texted the undercover officer, “he is leaving in 5 min”. At 7:20pm, Mr. Ola-Olorunsola was observed outside 160 Islington Avenue in the grey Chrysler sedan. Mr. Ola-Olorunsola was arrested outside 160 Islington Avenue minutes later, and 3.55 grams of cocaine were located on his person. Mr. Molin was arrested shortly afterwards in the hallway on the first floor, and a quantity of cocaine was found on his person.

70The police executed the search warrants at 7:28pm. Mr. Molefe was found sitting in Unit 108 in front of a table with large amounts of drugs and drug paraphernalia on it, including cocaine and packaging that was the same as used in the transactions with the undercover officer. Mr. Molefe was alone in the unit. The phone used to communicate with the undercover was on the table next to Mr. Molefe.

71In addition, when Lolo texted the undercover officer saying that his runner was leaving in five minutes, Mr. Ola-Olorunsola was observed outside 160 Islington Avenue in the grey Chrysler sedan. He was arrested with the exact quantity of cocaine on his person that had been agreed upon by Lolo and the undercover officer. I am satisfied that Mr. Molefe offered to sell the undercover officer this quantity of cocaine on September 15, 2023.

72I am satisfied beyond a reasonable doubt that Mr. Molefe, under the pseudonym Lolo, trafficked cocaine to the undercover officer through the use of “runners”, either Mr. Makgalo or Mr. Ola-Olarunosola, on each of the occasions outlined above.

Issue 3: Was Mr. Molefe in possession of the drugs and firearms found in Units 108 and B4?

Overview

73Mr. Molefe submits that possession of the drugs and firearms found in either unit has not been established. He argues, first, that I should believe Mr. Madikizela’s evidence that the drugs and firearms belong to him and were in the units unbeknownst to Mr. Molefe. Second, although drugs were found on the table in front of Mr. Molefe, the Crown has not proven that he exercised control over Unit 108 and, thus, the drugs. Finally, he submits that the firearms were not in plain view, and there is no forensic evidence tying Mr. Molefe to the drugs or firearms.

74The Crown responds that the evidence establishes that Mr. Molefe exercised control over both Unit 108 and Unit B4, and that his knowledge flows from the fact that he was found seated at a table with a large quantity of drugs and drug‑trafficking paraphernalia directly in front of him.

75For the reasons that follow, I am satisfied that Mr. Molefe had both knowledge of and control over the drugs and firearms located in Units 108 and B4.

Legal Principles

76In this case the Crown relies on both personal and constructive possession to establish Mr. Molefe’s guilt. Personal possession consists of two components, knowledge and control. Knowledge requires that the accused be aware that they have physical custody of the thing alleged and must be aware of what that thing is: R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 45.

77When personal possession is not alleged, the Crown can rely on constructive possession. Constructive possession is established when an accused does not have physical custody of the thing but has it in any place for their own or another’s use or benefit: Lights, at paras. 46-47.

78When things are found in a premises or in a place occupied by an accused, no presumption of knowledge and control arises from proof of occupancy: Lights, at para. 50.

Analysis

i) Evidence of Zuki Madikizela

79The defence called Mr. Zuki Madikizela, who testified that the drugs and firearms found in Units 108 and B4 belonged to him. I do not accept Mr. Madikizela’s evidence. It was vague, lacked details, was disjointed, and at times simply not plausible. Mr. Madikizela’s evidence does not leave me with a reasonable doubt.

80Mr. Madikizela testified that he first attended 160 Islington Avenue in 2021 because he was an artist who was looking to network and work with other producers making music. Mr. Madikizela met with Mr. Molefe and attended both Units 108 and B4.

81He described that, eventually, he met Mr. Makgalo, and they came to an agreement with “Mr. Ola” to share the profits of a drug trafficking business and work on their music at the same time. He could not provide phone numbers for Mr. Makgalo or “Mr. Ola” even though he worked with them for a significant period of time. Mr. Madikizela also eventually came to an arrangement with Mr. Makgalo and “Mr. Ola” based on which he would rent the “studio”, i.e., Unit 108, for $20 an hour, or for the full day at a flat rate.

82Mr. Madikizela was pressed in cross-examination about when he started selling drugs and where he would purchase his drugs. Although he testified that he would buy in bulk, for example a few ounces of cocaine which would cost $1,100, his answers were otherwise vague and lacking in detail.

83Mr. Madikizela agreed that Mr. Molefe would come by the building and specifically Units 108 and B4 and would not let him know in advance that he was coming. He also agreed that he trusted Mr. Molefe to a certain extent because they were business associates.

84Mr. Madikizela testified that the reason he attended Unit B4 was to leave drugs and a gun there. He brought the gun and drugs to Unit B4 about three months after first attending the building. He did not have a lease for Unit B4, did not have permission from anyone to leave those items there, and never told Mr. Molefe that he was bringing those items into the unit. He left the items there for “protection and using them to make money”. In cross-examination, he testified that at the time he had a key for both units but could not remember who gave him the key.

85Mr. Madikizela testified he did not go to Unit B4 very often, but when he did, on at least two occasions he saw people sleeping there and storing their belongings.

86This narrative is not plausible. I do not accept that Mr. Madikizela would just one day leave large quantities of drugs and a firearm in the unit of someone he had only recently met, in a unit that did not belong to him, and one that was being used and slept in by other people. Even if this narrative were true, I do not believe that he would have done so without telling Mr. Molefe. Drugs and firearms are valuable. Unit B4 is small. Mr. Molefe might well have found the contraband. It would not have just been left there without Mr. Molefe’s knowledge: see R. v. Yizhak, 2026 ONCA 100, at paras. 22-24.

87Mr. Madikizela testified that he also, eventually, brought a firearm and drugs to Unit 108. When asked what he specifically brought into Unit 108, Mr. Madikizela responded, “everything”. When asked the specifics, he referred to “a lot of paraphernalia”, a 9-millimeter firearm, cocaine, molly, LSD, and “shrooms”. When asked if Mr. Molefe was aware that he had brought these items into Unit 108, he responded, “I don’t know if he was aware. I didn’t tell him, no”. He believed that he had told the people he was working with that those items were in the unit.

88Mr. Madikizela was shown a photograph of the desk in Unit 108 on which were a large quantity of drugs, and drug paraphernalia. When asked if any of the items belonged to him, he responded, “I’ll take responsibility for it”.

89When pressed on the quantity of drugs he left in Unit 108, Mr. Madikizela’s answers were vague and not credible. He testified he left “quite a bit” of drugs in the unit. When asked how much, he responded, “I’d say there was quite a bit of drugs. I don’t know, I don’t want to say like a number of which drugs, like I don’t know. There is like, you know, different drugs, right? Different amounts.”

90When asked specifically about the quantity of cocaine that he had left in Unit 108 prior to the execution of the search warrant, Mr. Madikizela testified that it ranged anywhere from an ounce to a kilogram, unless some had already been sold. I do not find this evidence credible. There is a significant difference between an ounce and a kilogram of cocaine, and I do not accept that Mr. Madikizela would have been unaware of the quantity present in the unit at the time the search warrant was executed. If it were true that drug trafficking was his business, it would be illegal, and his source of income. He had business partners, and I do not accept that he would not have been kept informed of how much product had been sold, when it had been sold, and the resulting profits.

91When asked about whether drugs were always left out on the table, he responded, “They weren’t always out on the table, but they’d be around, right. They’d be in the room.” When asked where the drugs would be if not on the table, he responded that they would be on a brown table that was in the corner of the room, “and like things would be set up like there.”

92He testified that the last time he attended Units 108 and B4 was a few days before the search warrants were executed. Mr. Madikizela had difficulty remembering the specifics of when he last attended the building, who he saw, where he saw them, or what he was doing.

93Mr. Madikizela testified that the only drugs he left in Unit B4 were some Percocet in a grey Herschel bag. When police searched Unit B4, the grey Herschel bag contained 500 grams of cocaine. I do not believe that Mr. Madikizela would forget that he left that much cocaine in the unit.

94Mr. Madikizela’s evidence was internally inconsistent on the question of whether Mr. Molefe would have been aware of the drugs. He agreed that he would leave large quantities of drugs in Unit 108 notwithstanding that numerous individuals, including Mr. Molefe, were coming and going from the unit. He further acknowledged that he would not leave such a quantity of drugs in the unit unless someone he trusted was present. Despite this, Mr. Madikizela testified that he did not know whether Mr. Molefe was aware of the presence of drugs and firearms in Unit 108 or Unit B4.

95Mr. Madikizela testified that he brought a 9-millimetre Sig Sauer firearm into Unit 108 that he got from a friend for $1,500. He agreed he would not leave the firearm where it could be taken by “anyone”, but he simultaneously described a scenario in which the firearms could be found by others and said he was unconcerned because he “trusted” those who might encounter them. In particular, he suggested that if Mr. Molefe found the guns, Mr. Molefe would not implicate him. This reliance on the discretion of another person—indeed, the very possibility of third‑party discovery—undermines his asserted commitment to ensuring the firearm would not be accessible.

96Mr. Madikizela was also unable to remember the type of bag that the firearm was left in but remembered that it was left behind the fridge. The evidence establishes that the firearm was left in a distinctive backpack with the brand name “Rolling Papers” written on it. According to Mr. Madikizela the firearm that he left in Unit B4 was “like a small Magnum” and it was in a case with ammunition. He could not remember the exact name of it. He was “pretty sure” that he left it in the same bag as the drugs, the grey Herschel bag. The firearm in Unit B4 was found in the same distinctive backpack as the firearm found in Unit 108.

97I do not accept Mr. Madikizela’s evidence that he left a firearm in either Unit 108 or Unit B4. The firearm recovered from Unit 108 was located behind the refrigerator inside a distinctive knapsack. The firearm recovered from Unit B4 was contained in an identical knapsack. In my view, it is not credible that Mr. Madikizela would be unaware, or would have forgotten, that the firearms were stored in the same distinctive brand of knapsack.

98I have considered Mr. Madikizela’s evidence that he came to court to take responsibility for the drugs and firearms because he did not want Mr. Molefe to get in trouble for something he had done. He did not go to the police because he has not had the best experience with the police. He also was not 100% sure whether he would get in trouble or not by coming forward.

99I have carefully considered Mr. Madikizela’s evidence, but I do not accept it. Mr. Madikizela was vague on important details and internally inconsistent, and his narrative was implausible. I do not believe that he left either the drugs or the firearms in Unit 108 or Unit B4. Even if Mr. Madikizela’s evidence were true that he did leave drugs and firearms in the units, I do not accept that he would have done so without the knowledge of Mr. Molefe.

ii) Evidence of Knowledge and Control

100When the police executed the search warrants, the following items were located in Unit 108:

• 205.7 grams of cocaine;
343.89 grams of Psilocybin;
4.06 grams of crack cocaine; 178.3 grams of Oxycodone;
10.7 grams of MDMA;
• $400.00 was located on Mr. Molefe;
• Keys to the unit;
• A loaded Sig Sauer firearm;
• Digital scales;
• Drug packaging; and
• Documents in the name of Mr. Molefe.

101The following items were located in Unit B4:

• 293.91 grams of Oxycodone; 503.12 grams of cocaine; 10.89 grams of LSD; 3.19 grams of Psilocin;
• $3,325 CDN and $35 USD
• A Taurus Armas firearm and ammunition;
• A machete; switchblades; knives; brass knuckles; a stun gun; a taser; and
• A document in the name of Mr. Molefe

102The Supreme Court in Lights states that in some instances occupancy, or the authority to control access to premises, may support an inference of control over drugs found there when coupled with evidence of knowledge: at para. 98.

103I am satisfied, when considering all the evidence, that Mr. Molefe had control over Unit 108 for the following reasons:

• Mr. Molefe was found inside the unit by himself.
• Personal documents in his name were on the coffee table. Although these associated Mr. Molefe to two other addresses, they were dated 2021 and early 2023, supporting an inference of control over the unit for some time.
• Mr. Skinner’s evidence that Mr. Molefe was paying for both Units 108 and B4.
• The direct deposit slip for first month’s rent for Unit 108 in the name of Mr. Molefe’s relative.
• Keys to Unit 108 were on the coffee table beside dog waste bags. Mr. Molefe had been observed going in and out of the building with a dog.
• Although Mr. Makgalo had leased the unit two weeks before, the unit did not appear to have recently been moved into.
• Repeated observations of Mr. Molefe going in and out of 160 Islington Avenue with a key, including on August 25, when he was observed exiting the building with a dog and a bag of recycling, and going to the upstairs where Unit 108 is located.

104I am satisfied that Mr. Molefe exercised control over Unit B4 for the following reasons:

• The lease was in his name.
• The size of the unit was very small, was being used for storage, and contained a mattress, microwave, fridge, and men’s clothing.
• A personal document in Mr. Molefe’s name was found in the unit.
• Mr. Skinner’s evidence that Mr. Molefe was renting and paying for the unit.
• Repeated observations of Mr. Molefe going in and out of 160 Islington Avenue with a key.
• CCTV footage showing Mr. Molefe coming from the basement area.

105I do not accept the submission that Mr. Molefe at its highest was using Units 108 and B4 on a temporary basis. Having considered all the evidence, including the lease information, Mr. Molefe’s regular presence at the building, his being found alone in Unit 108, and the personal documents in his name in both units, I am satisfied that Mr. Molefe had control over both Units 108 and B4.

106I am satisfied as to the reliability and accuracy of the information provided by Mr. Skinner. I have a copy of the signed lease documents, and the e-transfer deposit slip. While Mr. Skinner received the documents and information while speaking to the officer, there is no evidence to suggest that Mr. Skinner was either mistaken or lying about Mr. Molefe’s phone number or that Mr. Molefe was the person who paid for both Units 108 and B4.

107I am satisfied that Mr. Molefe’s knowledge of the drugs and firearms can be inferred from the evidence of control outlined above, and the following evidence.

108Unit 108 is a very small unit that was being used to record music. Inside the unit was recording equipment and some furniture including a desk, couch, small fridge, mattress, and a coffee table.

109When police executed the search warrant on Unit 108, Mr. Molefe was found seated at a desk in the far corner of the unit. On the desk immediately in front of him were a Ziploc bag containing approximately 188 grams of cocaine; two spoons bearing cocaine residue; a digital scale; dime bags, both filled and empty; a storage container holding additional dime bags; a saran‑wrapped package labelled “hard powder”; cocaine testing kits; and pop cans with false bottoms.

110Two cellular phones were located on the desk beside Mr. Molefe, including the phone used to communicate with the undercover officer. As stated above, I have accepted Mr. Skinner’s evidence that this number was registered to the unit belonging to Mr. Molefe.

111I do not accept counsel’s submission that someone other than Mr. Molefe was using that phone to conduct the drug transactions. In my view this is a purely speculative submission. The phone number used by Officer Gill to communicate with Lolo is the same number that Mr. Skinner said was registered to the unit belonging to Mr. Molefe. The name “Lolo” is similar to and reasonably likely a short form of Lehlohonolo. When Mr. Molefe was arrested, he was in Unit 108 by himself, and the phone was beside him.

112At the end of the investigation the officers “proved” the phone by having Officer Gill phone the number associated with Lolo and confirming it was the same phone. Officer Dagonis was in possession of the phone at the time, and “Southside John” came up on the screen when it rang. I am satisfied that Lolo is Mr. Molefe.

113I am satisfied that although other people appear to have had access to Unit 108, the only reasonable inference on the evidence is that the phone belonged to Mr. Molefe and that Mr. Molefe was the person communicating with the undercover officer for the purpose of conducting drug transactions.

114In addition to the drugs on the desk, further drugs were found in the desk drawers. Psilocybin mushrooms were located on a chair beside the desk. Digital scales were found both inside and on top of the desk.

115The firearm was discovered behind the refrigerator in a distinctive backpack with the brand name “Rolling Papers”. A digital scale was located on the floor beside the refrigerator. Wrappers meant for kilo level packaging was also found beside the refrigerator.

116Unit B4 was also a small unit, seemingly being used for storage, that also had a mattress, microwave, fridge, and men’s clothing.

117During the search of Unit B4, a firearm was located in a gun box in the same distinctive backpack as the firearm recovered from Unit 108. The backpack also contained different types of ammunition, and a brick of cocaine.

118The cash found in Unit B4 was located inside a grey Herschel satchel, along with additional ammunition. The same brand of satchel was observed on the desk in Unit 108, suggesting an affinity for the brand.

119I accept the evidence of Detective Duffus, who authored an expert report, that the drugs seized from both units were not consistent with personal use. His opinion is supported by the quantity and variety of drugs, as well as the presence of packaging materials and digital scales—recognized indicators of drug trafficking. I am satisfied that the drugs in Unit B4 were stored for the purpose of sale. I also accept his opinion that the risk of violence is high in the drug trade and that firearms are commonly kept readily accessible by those involved.

120The dispersal of contraband throughout a small living space increases the risk associated with its storage and supports the inference that the person exercising control over the unit would have knowledge of all of it. In addition, some of the packaging located in the unit was the same as the packaging used for the cocaine sold to the undercover officer: see R. v. Daponte, 2023 ONCA 572, at para. 22, leave to appeal refused, [2023] S.C.C.A. No. 446.

121It also defies coincidence that different people would have stored firearms in the same distinctive brand of backpack in two different units.

122I have rejected Mr. Madikizela’s evidence. As set out above, I do not accept that Mr. Madikizela—or anyone else—would or could have placed contraband in either Unit 108 or Unit B4 without Mr. Molefe’s knowledge. As the Court of Appeal observed in Daponte, at para. 22, where a large quantity of drugs is involved, it is reasonable to infer that such a cache would not be entrusted to a person unaware of its contents. The same reasoning applies to firearms.

123I have considered the submission that the firearms were not in plain view. It is not a reasonable inference on the evidence that Mr. Molefe could have been aware of the substantial quantity of drugs while remaining unaware of the firearms. I do not accept that another person would have placed firearms in either unit without Mr. Molefe’s knowledge. The fact and nature of their concealment in the context of what is obviously a significant drug trafficking operation, in my view, supports an inference of knowledge: see Daponte, at para. 22; R. v. Rahmani, 2013 ONCA 130, at para. 18.

124I have found that Mr. Molefe was engaged in drug trafficking. This supports the inference that he had knowledge of the drugs in Units 108 and B4.

125The evidence found in each unit resonates with and reinforces the evidence found in the other. In my view, it defies coincidence that the cash and firearms found in each unit were not possessed by the same individual. I have considered the evidence relating to each unit independently and cumulatively, and I am satisfied that it establishes Mr. Molefe’s knowledge and control beyond a reasonable doubt.

Continuity

126As part of its case, Crown counsel led evidence with respect to the continuity of items seized by police. Although there were no submissions by counsel for Mr. Molefe with respect to continuity, I have considered this evidence and am satisfied that the Crown has established the continuity of the drugs, money and firearms.

Conclusion

127Proof beyond a reasonable doubt is a high standard based on reason and common sense. It is not enough that I conclude that Mr. Molefe is likely or probably guilty. That is not proof beyond a reasonable doubt.

128I have carefully considered all the evidence and the submissions of counsel, and I am satisfied that the Crown has established beyond a reasonable doubt that Mr. Molefe engaged in trafficking cocaine with the undercover officer on August 17, 25, September 13, and 15, 2023.

129I have carefully considered Mr. Madikizela’s evidence, but I do not accept it, and it does not leave me with a reasonable doubt. I am satisfied that the only reasonable inference on the evidence is that Mr. Molefe had both knowledge and control of the drugs and the firearms found in Units 108 and B4.

130Mr. Molefe will be found guilty of counts 1-4, the trafficking of cocaine on August 17, 25, September 13 and 15, 2023.

131Mr. Molefe will be found guilty of counts 5, 7, and 8, possession for the purpose of trafficking cocaine, OxyContin, and psilocybin.

132Mr. Molefe will be found guilty of counts 11 and 16, the counts relating to possession of the Sig Sauer firearm found in Unit 108.

133Mr. Molefe will be found guilty of counts 10, 12, 15, and 17, the counts relating to possession of the Taurus Armas firearm, and possession and careless storage of the ammunition found in Unit B4.

134The Crown chose not to proceed on counts 6, 13, and 14.

135Given the above findings, Mr. Molefe will also be found guilty of count 9, possession of proceeds of crime, specifically the $3,325 CDN and $35 USD found in Unit B4, and the $400 CAD found on Mr. Molefe’s person at the time of his arrest.

J.K. Penman J.