CITATION: R. v. Dorjee, 2026 ONSC 3738

COURT FILE NO.: 25-10000270-0000

DATE: 20260625

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

ORGEN DORJEE

Defendant

Benjamin Janzen and Heather Lamourie, for the Crown

Anil Kapoor and Oliveigha Moulton, for the Defendant

– and –

TENZIN DORJEE

Defendant

– and –

TENZIN SUNGRAP

Defendant

Paul Aubin for the Defendant

Jeffrey Fisher for the Defendant

HEARD: May 25-28; June 1-4, 2026

Contents

I. OVERVIEW... 2

II. THE ISSUES. 4

III. RELEVANT LEGAL PRINCIPLES. 4

A. Proof of Possession. 4

B. Proof Based Solely on Circumstantial Evidence. 5

IV. THE EVIDENCE.. 6

A. Surveillance of the Youth Person on February 8. 6

B. Surveillance of the Youth on February 12. 7

C. The Takedown on March 20. 7

D. Surveillance Video from 21 Maynard Avenue. 10

E. The Resolution of Charges Against Tenzin Sungrap. 10

V. ANALYSIS. 11

A. Has the Crown Proven that Tenzin Dorjee Possessed the Gun?. 11

B. Proof of Joint Participation in a Drug Trafficking Enterprise. 17

C. Has the Crown proven that Orgen Dorjee was in constructive possession of the firearm held by Tenzin Dorjee?. 21

D. Has the Crown proven that Tenzin Dorjee was in constructive possession of the controlled substances held by Orgen Dorjee?. 23

VI. CONCLUSION.. 24

JuSTICE PETER BAWDEN

I. OVERVIEW

1On March 20, 2024, officers from the Toronto Police Service Drug Squad arrested a 15‑year‑old after he sold fentanyl to an undercover officer. The officers believed the youth had been brought to the meeting in a grey Acura sedan. They surrounded the vehicle and attempted to detain its occupants. The driver, Orgen Dorjee, tried to escape by driving the Acura into the police vehicles blocking him, but was unsuccessful and was arrested after a brief struggle. During the arrest, another occupant, Tenzin Dorjee, fled from the back seat but was apprehended after a short pursuit.

2At the time of his arrest, Orgen Dorjee was holding a bag of powder cocaine. Individually packaged amounts of fentanyl were also found in the driver’s side door pocket and the passenger door jam. He has pleaded guilty to possession of these drugs for the purpose of trafficking.

3Police located a loaded handgun on the seat directly behind Orgen Dorjee and to the left of Tenzin Dorjee. Both men are charged with possession of the firearm and have pleaded not guilty. Each denies knowledge and control of the gun, and counsel submit that it may have been left in the vehicle by the youth when he exited the car to carry out the drug transaction.

4I do not accept that submission. It is clear that the youth knew the gun was in the car and it is possible (although only remotely so) that he had some control over it. I have no doubt, however, that Tenzin Dorjee also had knowledge and control of the handgun. He is therefore found guilty of the firearm‑related charges on the indictment.

5The Crown submits that Orgen Dorjee and Tenzin Dorjee were acting together in a joint trafficking enterprise and each was in constructive possession of the items held by the other. While I accept that it is possible and perhaps even likely that the two accused were engaged in such an enterprise, the evidence on the point is equivocal. It remains reasonably possible that Orgen Dorjee was independently engaged in his own drug trafficking activity, and that Tenzin Dorjee was merely present in the vehicle while Orgen Dorjee was engaged in trafficking drugs.

6Similarly, it is reasonably possible that Tenzin Dorjee possessed the firearm for his own purposes, without the knowledge or control of Orgen Dorjee. Although it may be most likely that both men were jointly involved in drug trafficking and that the firearm was present to protect their shared supply, other reasonable inferences are available.

7I therefore conclude that neither accused was in constructive possession of the items in the actual possession of the other. Orgen Dorjee is acquitted of all firearm-related charges, and Tenzin Dorjee is acquitted of all drug-related charges.

8These are my reasons for those conclusions.

II. THE ISSUES

9There is no dispute as to the applicable law on constructive possession, nor that the Crown’s case rests entirely on circumstantial evidence. The remaining issues are therefore factual:

a. Has the Crown proven that Tenzin Dorjee was in personal possession of the firearm, knowing that it was loaded?

b. Has the Crown established that Orgen Dorjee and Tenzin Dorjee were jointly engaged in a drug trafficking enterprise?

c. Has the Crown proven that Orgen Dorjee was in constructive possession of the firearm held by Tenzin Dorjee?

d. Has the Crown proven that Tenzin Dorjee was in constructive possession of the controlled substances held by Orgen Dorjee?

III. RELEVANT LEGAL PRINCIPLES

A. Proof of Possession

10Possession is defined in section 4(3) of the Criminal Code:

(3) For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or knowingly

(i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

11The elements of constructive possession were explained in R. v. Morelli, 2010 SCC 8 at para. 17:

17Constructive possession is established where the accused did not have physical custody of the object in question, but did have it “in the actual possession or custody of another person” or “in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person” (Criminal Code, s. 4(3)(a)). Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his “use or benefit” or that of another person.

12Knowledge and control are essential elements of both personal and constructive possession: see Morelli, at para. 15.

B. Proof Based Solely on Circumstantial Evidence

13There is no direct evidence that Orgen Dorjee was in possession of the firearm. The gun was not visible to him at the time of his arrest, and the Crown accepts that it is not reasonably possible that he discarded it during the takedown. There is no forensic evidence linking him to the firearm.

14Similarly, there is no direct evidence connecting Tenzin Dorjee to the drugs found in the front seat of the vehicle. The drugs were not visible from the backseat, his fingerprints were not found on the packaging, and he made no statement indicating knowledge or control of them.

15As such, the Crown is required to prove that the guilt of the accused is the only reasonable inference which can be drawn from the totality of the evidence. Justice Watt summarized the law concerning proof based on circumstantial evidence in R. v. Lights, 2020 ONCA 128:

37To determine if the circumstantial evidence meets the required standard of proof, the trier of fact must keep in mind that it is the evidence, assessed as a whole, that must meet this standard of proof, not each individual piece of evidence that is but a link in the chain of proof.

38Inferences consistent with innocence need not arise from proven facts. Rather, they may arise from a lack of evidence: Villaroman, at para. 35. Accordingly, a trier of fact must consider other plausible theories and other reasonable possibilities in-consistent with guilt so long as these theories and possibilities are grounded on logic and experience. They must not amount to fevered imaginings or speculation. While the Crown must negate these reasonable possibilities, it need not negate every possible conjecture, no matter how irrational or fanciful, which might be consistent with an accused's innocence: Villaroman, at paras. 37-38.

IV. THE EVIDENCE

A. Surveillance of the Youth Person on February 8

16On February 8, 2024, an undercover officer arranged to purchase fentanyl from a 15‑year‑old youth. This was their first transaction. The sale was completed at approximately 6:15 p.m., after which surveillance officers observed the youth enter the driver’s seat of a Honda Civic. Officers followed the vehicle for several hours as it travelled through Mississauga, Hamilton, and Toronto.

17Two of the locations attended by the Civic are relevant to this proceeding:

a. At 8:53 p.m., the youth drove to 2271 Delkus Crescent in Mississauga and stopped for several minutes. There is no evidence that anyone entered or exited the vehicle at that time. Orgen Dorjee resided at that address.

b. At 9:05 p.m., the youth parked in front of 180 Manitoba Street, a townhouse complex in Toronto. Tenzin Dorjee was subject to a recognizance requiring him to remain under house arrest at Unit #6–176 Manitoba Street.

B. Surveillance of the Youth on February 12

18On February 12, 2024, the undercover officer again arranged to purchase fentanyl from the youth. After the transaction, surveillance officers observed the youth enter a grey Acura sedan bearing licence plate DBAH 458. They did not observe which seat he occupied or whether any other persons were in the vehicle at the time he entered.

C. The Takedown on March 20

19On March 20, 2024, the undercover officer arranged a third purchase of fentanyl from the youth. The drug squad planned to arrest him after the transaction. Surveillance officers were in position and observed the youth exit the same Acura sedan seen on February 12. They did not see the vehicle arrive and first observed it parked in a lot at 21 Maynard Avenue.

20At 6:53 p.m., the youth exited the rear driver‑side seat of the Acura and walked to the intersection of Maynard Avenue and Leopold Street, where he met the undercover officer and completed the transaction.

21Immediately thereafter, officers moved in and arrested the youth. A search of his person revealed the cell phone he had used to communicate with the undercover officer, as well as 2.2 grams of pink fentanyl, 5.7 grams of crack cocaine, and 5.2 grams of powder cocaine. Each substance was packaged in small knotted pieces of torn plastic.

22Shortly after his arrest, the youth stated to an officer, “yo, Miss, the gun is mine.”

23After arresting the youth, members of the drug squad proceeded to the parking lot at 21 Maynard Avenue to investigate the occupants of the Acura. Their plan was to position police vehicles in front of and behind the Acura to prevent it from leaving, while officers on foot moved in to detain the occupants.

24Detective Constable Moxham drove into the lot and positioned his vehicle in front of the Acura, while Detective Constable Garvey positioned his vehicle behind it. As the police vehicles moved into place, Constables Hurtado, Pena, and Valino approached on foot, identifying themselves by shouting “police.”

25Orgen Dorjee was seated in the driver’s seat of the Acura. He initially attempted to reverse out of the parking space and struck Detective Constable Moxham’s vehicle. He then drove forward, striking Detective Constable Garvey’s vehicle. Detective Constable Hurtado was able to enter through the driver’s side door, place the vehicle in park, and remove Orgen Dorjee from the car.

26At the time of his arrest, Orgen Dorjee was holding a green plastic bag containing 40 grams of crack cocaine and 2 grams of powder cocaine. These substances were packaged in individual knotted pieces of torn plastic. Orgen Dorjee was also carrying $335 in cash which included one $100 bill, a $50 bill, five $20 bills, and 17 $5 bills.

27Tenzin Sungrap was seated in the front passenger seat and was arrested without incident. He was searched incident to arrest, and nothing of significance was found.

28Tenzin Dorjee was seated in the rear seat on the passenger side. As Tenzin Sungrap was being arrested, Tenzin Dorjee fled from the back seat by moving forward through the vehicle and exiting through the open front passenger door. Officers immediately gave chase and apprehended him a short distance away. A search incidental to arrest revealed that he had $295 in cash, consisting of one $100 bill and eight $20 bills.

29Police searched the Acura and found the following items:

a. The driver’s door storage pocket contained numerous packages of cocaine and fentanyl. The fentanyl was yellow and purple in colour. All of the substances were individually packaged in small, knotted pieces of torn plastic. The total weight of the cocaine was 9.4 grams, and the total weight of the fentanyl was 10.4 grams.

b. A prescription bottle containing 34 oxycodone pills was found in the centre console cup holder. The label bore the last name “McLean”.

c. A digital scale was found positioned on top of the prescription bottle.

d. A red reusable Shoppers Drug Mart bag was located in the front passenger footwell. Inside the bag was a clear plastic bag containing approximately 96 grams of powder cocaine.

e. A further sample of powder cocaine wrapped in torn plastic was lodged in the area between the front passenger door and seat. This sample weighed 8.5 grams.

f. A .40 calibre Glock handgun was found on the rear driver’s side seat. It was fitted with an extended magazine containing 20 cartridges.

D. Surveillance Video from 21 Maynard Avenue

30Officers obtained video surveillance footage capturing events in the 21 Maynard Avenue parking lot. The footage shows the following events:

6:50 p.m. The video begins with the Acura already parked in the lot.

6:53:18 p.m. A dark Honda CRV arrives and parks beside the Acura, positioning itself so that its driver’s side window aligns closely with the Acura’s passenger side window.

6:53:45 p.m. The youth exits the Acura from the driver’s side rear door and walks toward the pre-arranged meeting location with the undercover officer.

6:54:56 p.m. The driver of the CRV exits his vehicle, stands beside the passenger side of the Acura, and appears to hand a white item to the front passenger.

6:55:28 p.m. The CRV driver returns to his vehicle and continues speaking with the occupants of the Acura’s front seat.

6:58:07 p.m. Police vehicles arrive in the parking lot, and plainclothes officers begin approaching the Acura on foot.

6:58:18 p.m. The Acura reverses in an attempt to evade police while the CRV successfully escapes from the scene.

6:58:27 p.m. Officers open the driver’s door of the Acura and begin extracting Orgen Dorjee.

6:58:58 p.m. Tenzin Dorjee flees from the Acura on foot.

6:59:05 p.m. Tenzin Dorjee is apprehended by police.

7:04 p.m. The video recording concludes.

E. The Resolution of Charges Against Tenzin Sungrap

31Tenzin Sungrap was arraigned on charges of possessing the firearm and the controlled substances found throughout the vehicle.

32In its submissions, the Crown acknowledged that Mr. Sungrap may not have been aware of the firearm in the back seat and invited the Court to dismiss those charges. Although the Crown initially argued that he should be convicted of the drug offences as a participant in a joint trafficking enterprise, it later conceded that there was little evidence of his involvement and that it is reasonably possible he was simply a passenger in the Acura. While he may have had knowledge of the drugs in the vehicle, there is no evidence that he exercised any control over them. In these circumstances, the Crown ultimately recommended that all charges against Mr. Sungrap be dismissed, and they were.

V. ANALYSIS

A. Has the Crown Proven that Tenzin Dorjee Possessed the Gun?

33The Crown’s position is that Tenzin Dorjee had actual possession of the firearm and Orgen Dorjee had actual possession of the drugs, and that each was in constructive possession of the items held by the other. It must be said that other theories were also available. For example, the firearm was plainly visible on the back seat directly behind Orgen Dorjee, and the Crown could have argued that he was aware of its presence and in physical possession of it. The Crown might also have alleged that the two accused were jointly in possession of the items found in the vehicle based on their participation in a drug trafficking operation. The Crown did not advance either position and instead relied solely on constructive possession. These reasons will only address that theory.

34The first issue is whether the Crown has proven beyond a reasonable doubt that Tenzin Dorjee was in actual possession of the firearm. If the Crown fails to establish this, the allegation that Orgen Dorjee was in constructive possession of the firearm must also fail. The Crown relies on the following evidence:

• The firearm was in plain view on the seat beside Tenzin Dorjee. It was large and equipped with an extended magazine. There was nothing obstructing his view of it from where he was seated. It can easily be inferred that he knew of the firearm’s presence.

• The youth’s statement to a transporting officer (“yo, Miss, the gun is mine”) clearly indicates that he knew the firearm was in the vehicle. The Crown submits that it may be inferred from this statement that the other occupants were also aware of the firearm.

• Tenzin Dorjee’s flight from the vehicle is said to demonstrate consciousness of guilt in relation to possession of the firearm.

• The Crown submits that the surveillance evidence from February 8 and 12, together with the events of March 20, supports an inference that Orgen and Tenzin Dorjee were jointly engaged in a drug trafficking operation with the youth. On this basis, it is further argued that Tenzin Dorjee possessed the firearm to protect the drugs in Orgen Dorjee’s possession.

• It is not reasonably possible that either of the front‑seat occupants placed the firearm in the back seat. The events unfolded quickly once the Acura was boxed in. At the time of the takedown, Orgen Dorjee had one hand on the steering wheel and the other holding a bag of cocaine, leaving no opportunity to move the firearm. Tenzin Sungrap was occupied with rolling up the passenger window. There is no evidence that anyone other than Tenzin Dorjee had the opportunity to place the firearm on the rear driver‑side seat once the takedown began.

• It is not reasonably possible that the firearm belonged to the youth. If it had, he would have taken it with him during the drug transaction to guard against the risk of robbery. He also would not have left it in plain view when exiting the vehicle, given its value and the risk of detection or theft. In addition, the youth had been seated where the firearm was later found, and it is not reasonably possible that he had been sitting on it. The only reasonable inference is that the firearm was placed on the seat after the youth exited the vehicle, and Tenzin Dorjee was the only person who had the opportunity to do so.

35Mr. Aubin disputes all these points. He makes the following submissions:

• Tenzin Dorjee did not have an unobstructed view of the firearm. The centre armrest in the back seat partially blocked his view of where the gun was found. In addition, the firearm was black and would not have been easily visible against the dark seat. If the gun had only recently been left there by the youth, it is reasonably possible that Tenzin Dorjee did not see it.

• Tenzin Dorjee’s flight from police does not support an inference that he possessed the firearm. His actions are equally explained by the fact that he was breaching the terms of a house arrest order at the time. In these circumstances, his flight has no probative value on the issue of possession.

• The fact that Tenzin Dorjee was an occupant of the vehicle does not give rise to a presumption that he possessed any item within it: R. v. Lights, at para. 55. While prolonged presence in the vehicle may be a factor to consider, there is no presumption of possession based on occupancy alone. In this case, no such inference can be drawn because there is no evidence of how long Tenzin Dorjee had been in the car prior to the discovery of the gun.

• There is no forensic evidence linking Tenzin Dorjee to the firearm even though the gun was swabbed for DNA testing.

• Mr. Aubin disputes the Crown’s submission that Tenzin Dorjee was involved in a drug trafficking enterprise with Orgen Dorjee and submits that this assertion is speculative and unsupported by the evidence.

36Having considered all the evidence and weighed the available inferences, I am satisfied that the only reasonable inference which can be drawn is that Tenzin Dorjee had knowledge and control of the firearm. I come to that conclusion for the following reasons.

37I accept the evidence of D.C. Moxham that the gun was plainly visible on the seat when he first searched the vehicle and that he replaced it in the same position in which he had found it after proving the gun safe. The gun was found immediately beside a cardboard container of takeout food, a vape pen and a cigarette lighter. I find that it is most likely that all these items were present on the seat prior to the takedown and their position was not appreciably changed by the collisions which occurred when Orgen Dorjee attempted to escape from the box of police vehicles placed around the Acura.

38I have no doubt that Tenzin Dorjee saw the gun on the seat beside him. The gun was large, had an extended magazine, and was not covered by any other item. The armrest did not obstruct the view of the gun from the rear passenger seat. It is not realistic to suggest that such a large, valuable, and intimidating item went unnoticed in the vehicle, particularly when it was left in such a readily observable location. The evidence proves beyond any reasonable doubt that Tenzin Dorjee knew of the gun’s presence beside him.

39Mr. Aubin submits that it is reasonably possible that the gun belonged to the youth, and he left it behind in the seat which he had been occupying when he went to meet with the undercover officer. In my view, this is a very unlikely explanation for the evidence. If the gun belonged to the youth, it is most likely that he would have taken it with him while he was conducting a drug transaction rather than leaving it in a position where it could be seen by people passing by the car or potentially stolen by other occupants of the vehicle. However, even if the gun did belong to the youth, it would not assist Tenzin Dorjee. Proof of possession does not require proof of ownership.

40I find that Tenzin Dorjee’s flight does support an inference of possession of the firearm. While his conduct may also be explained by a concern about breaching his house arrest conditions, I find it more likely that he fled to avoid being found in possession of a firearm. Fleeing from police during a chaotic takedown involved significant risk, and it is unlikely that such a risk would be taken without a compelling reason.

41Although a breach of bail conditions could result in detention, the consequences of being found in possession of a firearm are considerably more serious and provide a stronger motive for flight. While I would not describe the evidence of flight as being at all determinative of guilt, it does, in my view, provide some support for the Crown’s position: see R. v. Calnen, 2019 SCC 6 at paras. 144–145.

42I accept that there are gaps in the evidence. As a trier of fact, I am disappointed that the police did not pursue DNA testing of the swab samples taken from the gun, which might have provided additional evidence of both knowledge and control. The fact-finding process would also have been assisted by better scene photographs, showing the details of the gun, the view of the gun from the rear passenger seat, and more details of the items found in close proximity to the gun. Although these are all gaps in the evidence, they do not give rise to any doubt regarding Tenzin Dorjee’s knowledge and control of the firearm.

43I have also considered whether there is any other plausible possibility to explain the evidence which is not consistent with a finding of guilt. I have considered, for instance, whether it is reasonably possible that one of the occupants of the front seat threw the gun into the back seat at the time of the takedown without any warning to Tenzin Dorjee. I have also considered the possibility that the gun was unexpectedly dislodged from some hidden spot when the vehicle collisions occurred and perhaps Tenzin Dorjee was unaware of the gun until the car came to rest. I have concluded that neither of these are realistic possibilities. If either Orgen Dorjee or Tenzin Sungrap had thrown a gun into the backseat as the arresting officers approached the car, the officers would undoubtedly have noticed such a potentially dangerous development. Nor is it reasonably possible that the gun was deposited on the seat during the collision. The video demonstrates that the collisions occurred at low speed and lighter items on the seat (such as a cardboard food container) were not disturbed during the same collisions.

44I find that the only reasonable conclusion to draw based on the totality of the evidence is that the gun was in the same position prior to the takedown and while in that position, it was visible to Tenzin Dorjee and he had control over it.

45Mr. Aubin further submits that, even if Tenzin Dorjee is found to have possessed the firearm, the Crown has not proven that he knew it was loaded. I do not accept this submission. I am also satisfied beyond a reasonable doubt that he knew the firearm was loaded.

46It is admitted that the firearm was equipped with an extended magazine containing 20 rounds of ammunition. The photographs in Exhibit 4 show that the magazine was inserted into the handle of the gun and extended well below it, making it plainly visible to anyone handling the firearm. The images at pages 3 and 16 also show openings along the side of the magazine through which the cartridges can be seen.

47Given the size and visibility of the extended magazine, and the clearly observable presence of ammunition within it, I am satisfied beyond a reasonable doubt that Tenzin Dorjee knew the firearm was loaded.

B. Proof of Joint Participation in a Drug Trafficking Enterprise

48The Crown’s theory is that Orgen Dorjee and Tenzin Dorjee were jointly engaged with the young person in a drug trafficking enterprise. On this theory, the youth sold fentanyl, crack cocaine, and powder cocaine on their behalf, thereby insulating them from direct involvement in the transactions. In return, they supplied him with drugs, provided transportation, and offered protection in case of robbery.

49Based on this theory, the Crown submits that Orgen Dorjee was in constructive possession of the firearm used to protect the drug supply, and that Tenzin Dorjee was in constructive possession of the drugs in Orgen Dorjee’s possession. The Crown relies on the following evidence in support of this position:

a. Surveillance officers followed the youth to locations in close proximity to the residences of both accused after the February 8 transaction. Although the officers did not observe any direct contact between the youth and either Orgen or Tenzin Dorjee, the Crown submits that such contact can reasonably be inferred given the proximity of these locations to their known addresses. It can be inferred that the meetings were for the purpose of obtaining drugs for resale or delivering proceeds from earlier transactions.

b. After the February 12 transaction, the youth was observed entering the Acura. On March 20, both Orgen and Tenzin Dorjee were present in that same vehicle when the youth attended to complete the last sale to the undercover officer. The Crown relies on the repeated use of the Acura, over a period of approximately six weeks, as evidence of an ongoing arrangement between the parties rather than isolated or coincidental involvement.

c. Orgen Dorjee admitted to possessing significant quantities of fentanyl, cocaine, and crack cocaine on March 20, 2024. Similar substances were found in the possession of the youth at the time of his arrest.

d. Prior to the arrests, the occupants of the Acura were observed interacting with the driver of a Honda CRV, who fled when police moved in. During this interaction, an item was passed through the passenger window of the Acura. The Crown submits that this exchange supports an inference that all the occupants of the Acura were engaged in drug‑related activity.

e. Orgen and Tenzin Dorjee did not simply drop off the youth for the drug transaction and then drive away. Rather, they remained in the Acura while the youth left to meet with the purchaser. The Crown submits that they must have known the youth was engaged in a drug sale and were assisting by providing transportation and, potentially, protection.

50At the start of the trial, the Crown expected there would be expert evidence to establish that experienced drug traffickers often reduce their risk of detection by using young persons as runners to deliver drugs. However, the Crown’s expert, D.C. Gill, did not give the expected testimony. Instead, when presented with a hypothetical based on the facts of this case and asked who faced the greatest risk, he responded that the person in possession of the largest quantity of drugs (Orgen Dorjee) faced the greatest risk, not the youth said to be acting as a runner. When asked to explain this answer, D.C. Gill advised that he had deliberately avoided learning the facts of this case so as not to influence his opinion on whether the drugs were held for trafficking or personal use. The Crown did not seek further supporting evidence from the witness on this point.

51Defence counsel submit that the Crown’s argument is entirely speculative and unsupported by the evidence. I do not agree. In my view, there is some evidence capable of supporting a finding that the three individuals had entered into an agreement to assist one another in the sale of controlled substances. However, this is not the only inference available on the evidence, and, at its highest, I would characterize it as a reasonable possibility rather than a compelling conclusion. I reach this conclusion for the following reasons:

a. There is nothing distinctive about the colour, packaging, or nature of the fentanyl sold by the youth that would support an inference that it came from Orgen Dorjee. The fentanyl sold to the undercover officer was yellow, while the fentanyl found on the youth’s person was pink and grey. The fentanyl located in the Acura was yellow and purple.

b. The items found on the youth at the time of his arrest support the inference that he was independently engaged in drug trafficking. He was holding significant quantities of cocaine and crack cocaine although the purpose of his meeting with the officer was only to sell fentanyl. The phone found on him was confirmed to be the one used to communicate with the undercover officer, indicating that he was arranging the transactions himself rather than acting under the direction of others. These circumstances are inconsistent with the Crown’s contention that the youth was acting merely as a “runner” to insulate older individuals.

c. There is no evidence of any relationship among the three adults found in the Acura. Although Orgen and Tenzin Dorjee share the same surname, they are not related. Apart from their presence together in the Acura on March 20, there is no evidence connecting them.

d. The surveillance evidence from February 8 provides only limited support for an inference that the youth met with either accused after the drug transaction with the undercover officer. At most, the evidence shows that he attended locations near their residences. In my view, it would be speculative to conclude that any meeting occurred.

e. Similarly, little weight can be placed on the presence of the Acura on February 12 and March 20. There is no evidence that either accused was in the vehicle on February 12, nor is there any evidence establishing ownership of the vehicle. Further, there is no evidence explaining how the accused came to be in the vehicle on March 20. At most, the evidence establishes that the Acura was parked at 21 Maynard Avenue for a brief period, without indicating when or where its occupants entered it.

52Proof of a joint enterprise is central to the Crown’s theory of constructive possession. In my view, there is evidence capable of supporting such a finding, but it falls short of establishing it as a fact. It remains a live possibility on the evidence that Orgen Dorjee and the youth were acting independently in the sale of drugs, and that Tenzin Dorjee was merely an occupant of the vehicle at the time of the March 20 takedown.

C. Has the Crown proven that Orgen Dorjee was in constructive possession of the firearm held by Tenzin Dorjee?

53The Crown’s theory is that Orgen Dorjee, Tenzin Dorjee, and the youth were acting together in a joint drug trafficking operation. According to the Crown, Orgen Dorjee had in his control a large quantity of valuable drugs in the Acura, which required protection, and that Tenzin Dorjee was carrying a handgun for that purpose on his behalf. On that basis, the Crown submits that Orgen Dorjee can be found to be in constructive possession of the firearm in Tenzin Dorjee’s possession.

54DC Gill did provide some evidence that supported the Crown’s position. He testified that the fentanyl, cocaine, and crack cocaine in Orgen Dorjee’s possession had a combined value of at least $4,000 and could be worth up to $23,000, depending on how they were sold. He also stated that drug traffickers face an ongoing risk of robbery, whether of cash or drugs, and often carry or have access to firearms for protection. Although the Crown was disappointed by some aspects of DC Gill’s testimony, it nevertheless submits that there is sufficient evidence to establish beyond a reasonable doubt that Orgen Dorjee knew Tenzin Dorjee had a firearm and exercised some degree of control over it.

55There is no evidence of any relationship between Orgen Dorjee and Tenzin Dorjee apart from their presence together in the Acura on March 20. Neither was observed participating in the transactions involving the youth on February 8 or 12. There is no clear evidence that the youth met with either accused after the February 8 transaction, nor is there any evidence that either accused was in the Acura when it was observed on February 12. While it may be inferred that Orgen Dorjee had some connection to the vehicle, given that he was in the driver’s seat on March 20, there is no evidence linking Tenzin Dorjee to the Acura. Nor is there any evidence as to how long Tenzin Dorjee had been in the vehicle prior to the takedown.

56In the absence of evidence establishing a relationship between the two accused, and without a finding that they were jointly engaged in drug trafficking, it cannot be concluded that Orgen Dorjee knew that Tenzin Dorjee was in possession of a firearm. The evidence supports a number of reasonable inferences, including that Tenzin Dorjee may have been associated with the youth and carrying the firearm for his own purposes without Orgen Dorjee’s knowledge. It is also reasonably possible that Tenzin Dorjee was involved in unrelated criminal activity and was merely a passenger in the vehicle on the day of the takedown.

57There is no other evidence establishing knowledge. Orgen Dorjee’s attempt to flee from the police can be explained by his possession of drugs and does not, on its own, support an inference that he knew of or controlled the firearm. As well, there is no forensic evidence linking him to the gun, despite the fact that it was swabbed for DNA.

58The evidence leaves me with a reasonable doubt as to whether Orgen Dorjee was aware of the firearm. As a result, he must be acquitted of all charges relating to it.

D. Has the Crown proven that Tenzin Dorjee was in constructive possession of the controlled substances held by Orgen Dorjee?

59I am satisfied that Tenzin Dorjee knew that drugs were present in the vehicle. It is not reasonable to infer that the Acura stopped in the parking lot for approximately eight minutes while the youth exited to sell fentanyl to an undercover officer, without the remaining occupants being aware of his purpose. Nor was there any apparent effort by Orgen Dorjee to conceal the presence of drugs in the vehicle. In addition, the interaction between the occupants of the Acura and the driver of a Honda CRV suggests that at least the front-seat occupants were engaged in drug-related activity. In these circumstances, it cannot reasonably be suggested that Tenzin Dorjee was unaware that drugs were being offered for sale from the vehicle, although he may not have known what those drugs were.

60However, I do have a doubt as to whether he controlled the items that Orgen Dorjee held in the front seat. If I was satisfied that there was a joint enterprise, I might be inclined to find that he had a measure of control, but the evidence of an enterprise is not strong enough to make that finding beyond a reasonable doubt. There is no evidence connecting Tenzin to the Acura apart from his presence beginning eight minutes before the takedown. Nothing excludes the possibility that he had just entered the car as a passenger shortly before these events occurred. If so, it cannot be said that he had control over the contents of the vehicle including the drugs which Orgen held in the front seat.

VI. CONCLUSION

61Orgen Dorjee is charged in Counts 1, 2, and 8 with firearm-related offences. Those charges are dismissed. Based on his guilty plea and the evidence at trial, I find him guilty on Counts 3, 4, 5, and 6.

62Tenzin Dorjee is charged in Count 1 with possession of a loaded firearm contrary to s. 95(1) of the Criminal Code, and in Count 2 with possession of an over-capacity cartridge magazine contrary to s. 92(2). He is convicted on both counts.

63Tenzin Dorjee is charged in Counts 3, 4, 5, and 6 with possession of controlled substances for the purpose of trafficking. Those charges are dismissed.

64All charges against Tenzin Sungrap are dismissed.

65It is expected that the remaining counts on the indictment will be addressed in accordance with the factual findings set out in these reasons.

Justice Peter Bawden

Released: 25 June 2026

CITATION: R. v. Dorjee, 2026 ONSC 3738

COURT FILE NO.: 25-10000270-0000

DATE: 20260625

ONTARIO

SUPERIOR COURT OF JUSTICE