ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
His Majesty the King
- and -
Rahiem Nesbeth
Defendant
D. Anger, for the Crown
E. Buzzins, for the Defendant
HEARD at St. Catharines, Ontario:
December 8-10, 2025
THE HONOURABLE JUSTICE J. R. HENDERSON
REASONS FOR JUDGMENT1
INTRODUCTION
1The defendant, Rahiem Nesbeth, is charged with possession of fentanyl for the purpose of trafficking, contrary to s.5(3)(a) of the Controlled Drugs and Substances Act, possession of proceeds of crime, namely money, of a value not exceeding $5,000, contrary to s.355(b) of the Criminal Code of Canada, and four firearms offences.
2The Crown’s case against the defendant revolves around a black Nike backpack that the defendant dropped or tossed in the parking lot of the Pen Centre, St. Catharines, while police officers from the Niagara Regional Police Service were attempting to arrest him. The backpack contained, among other things, a clear plastic bag that held 61.3 grams of purple fentanyl, another bag containing 5.7 grams of fentanyl, and a loaded SCCY CPX-1 9 mm handgun with ammunition.
3The Crown’s position is that the defendant was in possession of the fentanyl and the handgun because he had control of the backpack and knowledge of its contents. Further, at the time of his arrest the defendant was in possession of a grey satchel that contained $3,045 in cash that the Crown alleges was proceeds of crime.
4The defendant testified that the Nike backpack did not belong to him. He said that he had mistakenly taken the wrong backpack when he left an Airbnb residence in Niagara Falls. The defendant also testified that the cash in the satchel was money that his girlfriend had given to him for their visit to Niagara Falls.
THE LAW OF POSSESSION
5The law of possession is important in this case with respect to both the fentanyl and the loaded handgun in the backpack. To prove possession, the Crown must prove that the defendant had knowledge of, and some measure of control over, these items: see R. v. Pham (2005), 2005 44671 (ON CA), 77 O.R. (3d) 401 (C.A.), at para. 15, aff’d 2006 SCC 26, [2006] 1 S.C.R. 940.
6In R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 15, Fish J. stated that it is undisputed that knowledge and control are essential elements of personal possession. He then wrote at para. 16,
On an allegation of personal possession, the requirement of knowledge comprises two elements: the accused must be aware that he or she has physical custody of the thing in question, and must be aware as well of what that thing is. Both elements must co-exist with an act of control (outside of public duty): Beaver v. The Queen, 1957 14 (SCC), [1957] S.C.R. 531, at pp. 541-42.
7In this case, the defence concedes that the defendant had control over the Nike backpack as he picked it up from the Airbnb, took it with him when he entered a BMW, and drove with it to the Pen Centre. The issue is whether the defendant had knowledge of the contents of the backpack.
THE W.D. ANALYSIS
8Because the defendant testified at trial, the court must assess his evidence in accordance with the principles set out in the case of R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. Regarding step one of the W.D. analysis, I do not accept the evidence of the defendant absolutely. The defendant’s evidence in some instances was illogical or defied common sense such that I have to question his overall credibility. I will provide some examples later in this decision.
9Regarding step two of the W.D. analysis, it is necessary to analyze the defendant’s testimony in the context of the evidence presented by the Crown to determine whether the defendant’s evidence raises a reasonable doubt about the defendant’s guilt. Finally, at step three, I will decide whether the Crown has proved its case beyond a reasonable doubt, based on all of the evidence.
THE CROWN’S EVIDENCE
10The Crown’s case is based on surveillance conducted by police officers on April 30, 2024. Five police officers from the surveillance team testified at trial.
11Officer Sills testified that the defendant first came to his attention when he observed the defendant sitting in the driver’s seat of a Chevrolet motor vehicle, later identified as a Chevrolet Malibu, parked at an address on Gale Crescent in St. Catharines. When the defendant left that location in the Malibu, he was followed by Officer Sills and members of the surveillance team to a residence at 4674 Zimmerman Avenue, Niagara Falls, Ontario (the “Zimmerman residence”).
12At 1:29 p.m. Officer Crane and Officer Sills both observed the defendant arrive at the Zimmerman residence driving the Malibu. They observed him exit the Malibu and enter the Zimmerman residence. At 1:47 p.m. Officer Crane observed the defendant exit the Zimmerman residence, re-enter the Malibu, and drive away. At that point, the police officers decided that they would conduct a traffic stop of the Malibu vehicle when it was safe to do so.
13The surveillance team communicated with each other so that they could follow the defendant while he was driving the Malibu. Officer Molnar observed the Malibu being operated on the Niagara Parkway and then proceed into the parking lot of the Ramada Inn. He testified that the Malibu drove right past him and he was able to observe the driver, whom Officer Molnar identified as the defendant.
14A police cruiser that had been following the Malibu activated its lights as the Malibu entered the parking lot of the Ramada Inn. Instead of stopping for police, the Malibu accelerated away from the police cruiser, swerved around another police vehicle, and sped away at a high rate of speed.
15Officer Sills had driven to the far side of the Ramada parking lot. As the Malibu was attempting to speed away from the cruiser it headed directly toward Officer Sills’ vehicle. Officer Sills testified that at the last instant, the Malibu swerved to avoid him. He said that he was able to clearly see the driver of the Malibu, whom he identified as the defendant.
16For safety reasons, the police officers decided not to engage in a high-speed chase. Instead, the officers re-established surveillance at the Zimmerman residence.
17At 3:09 p.m. Officer Crane observed a white BMW attend at the Zimmerman residence. It is not disputed that the BMW was an Uber vehicle. Officer Crane then observed the defendant exit the Zimmerman residence and enter the BMW through the rear passenger door. Officer Crane observed that the defendant was carrying a backpack when he entered the BMW.
18The surveillance team followed the BMW to the Pen Centre in St. Catharines. By the time the BMW entered the parking lot of the Pen Centre, there were several police vehicles that were covertly following the BMW. In particular, police vehicles operated by Officer Sills, Officer Harris, and Officer Roots were close behind the BMW.
19At approximately 3:35 p.m., the BMW stopped in the driving lane of the Pen Centre parking lot near a Starbucks location. From a short distance away, Officer Sills, Officer Harris, and Officer Roots each observed the defendant exit the BMW carrying a backpack.
20Officer Harris left his vehicle and approached the defendant with the intention of arresting him, but the defendant pulled away and attempted to flee. Officer Harris tackled the defendant to the ground. The defendant then got to his feet and started to run. Officers Harris and Roots were able to catch the defendant after a short chase, approximately 50 metres from the BMW.
21Officer Sills saw the defendant drop the backpack on the ground near the BMW when Officer Harris tackled him. Both Officer Harris and Officer Roots testified that the defendant dropped the backpack during the struggle with Officer Harris.
22Officer Sills remained with the backpack until Officer Molnar seized the backpack and itemized its contents.
THE BACKPACK AND THE SATCHEL
23The backpack was black in colour with a large white Nike swoosh on the front. It had at least one external side pouch and a bottom zippered compartment.
24The main compartment of the backpack contained a red Shoppers Drug Mart bag, two laptops, and a hammer. Inside the Shoppers Drug Mart bag were items including a blender, yellow and blue molds, a digital scale, and empty plastic bags. Also, inside the Shoppers Drug Mart bag was a clear plastic bag that contained 61.3 grams of purple fentanyl. Another bag inside the backpack contained 5.7 grams of fentanyl.
25It is agreed that the substances found in the backpack were in fact fentanyl. It is further agreed that the amount of fentanyl that was found would support a finding that the fentanyl was for the purpose of trafficking.
26A SCCY CPX-1 9 mm handgun was found in the bottom zippered compartment of the backpack. The handgun was loaded with a magazine containing ammunition and a bullet in the chamber. It is agreed that the handgun was a prohibited firearm, and that the defendant did not hold a licence that permitted him to possess the handgun.
27In the external side pouch was what appeared to be a green Canada Dry Ginger Ale can, but I accept the officer’s evidence that this was a “stash can” that had been made to look like a pop can. A Québec driver’s licence in the name of Martin Gagnon was also found in the backpack.
28At the time of his arrest, the defendant was wearing the grey satchel strapped to his body. It contained $3,045 in cash as well as a Smart Serve card and a private security card, both in the name of the defendant.
THE DEFENDANT’S EVIDENCE
29In summary, the defendant admits that he picked up the Nike backpack in question at the Zimmerman residence and took it with him in the BMW to the Pen Centre. However, he testified that he picked up the wrong backpack and he was not aware of its contents.
30The defendant testified that he travelled with his girlfriend from Toronto to Niagara Falls that morning. His girlfriend drove them in her VW Jetta. Their plan was to spend the day together Niagara Falls. They planned to get a Jacuzzi room and visit Clifton Hill and maybe the casino. His girlfriend gave him over $3,000 in cash to pay for their day. He put the cash in his satchel.
31He testified that, after they arrived, his girlfriend had a family emergency as she had to return to Toronto to pick up her kids from daycare and take them to their father’s house. The defendant decided not to accompany her as he did not wish to see the father of her children. The plan was for the defendant to stay in Niagara Falls while his girlfriend picked up her children, and then his girlfriend was going to return to Niagara Falls to pick him up.
32However, the defendant testified that he had posted on Snapchat that he was going to be in Niagara Falls and a friend named “Kirk” invited him to come to an Airbnb on Zimmerman Avenue. He then decided to visit the Zimmerman residence and “just kick it” until his girlfriend came back to pick him up.
33He had two bags with him. He had a grey satchel in which he kept his money, his identification, and some weed. He also had a black backpack in which he had a change of clothes, and some cold shot beers.
34When he arrived at the Zimmerman residence, there were several people present, but he only knew Kirk. Some of the other people also had backpacks or bags. He left his backpack near the front door. He then went into the back room of the residence and had some more beer, weed, and MDMA. He fell asleep for a while in the back room.
35Later, his girlfriend contacted him and told him that she was on her way to pick him up and take him home. He decided to go to the Pen Centre to get some food, shop, and wait for his girlfriend to pick him up. He arranged for an Uber.
36An Uber BMW picked him up from the Zimmerman residence. He entered the BMW and sat in the rear passenger seat. He took his satchel and his black backpack with him. The satchel had been on the bed beside him, and he just picked it up. Regarding the backpack, he walked to the front of the house where he had left it and picked up the only backpack that was there. He assumed it was his backpack. He placed the backpack beside him on the rear seat of the BMW.
37He told the Uber driver to drop him off at the food court at the Pen Centre. When he got out of the BMW, he had the satchel strapped to his body, and he was carrying the backpack. When he saw the police officers coming toward him, he was stunned and frightened and started to run. Then, he realized that he had no reason to run and he just stopped.
38Regarding the other events of the day, he denied that he ever drove a Chevrolet Malibu. He denied that he drove to the Ramada Inn. He testified that he never got into any vehicle other than his girlfriend’s VW Jetta and the Uber BMW. He did not leave the Zimmerman residence until he left in the BMW.
THE DEFENDANT’S CREDIBILITY
39The defendant did not change his evidence or resile from his testimony while on the witness stand. However, as I indicated previously, some of the defendant’s evidence is illogical and some of it strains the boundaries of common sense.
40In particular, it is not believable that the defendant did not recognize that the Nike backpack that he took from the Airbnb was not his backpack. I accept that a person can easily make a brief mistake about the identity of a piece of luggage or a bag. However, the defendant spent more than a brief period of time with this Nike backpack. The defendant took it with him when he left the Zimmerman residence, placed it on the seat beside him in the BMW, and drove from Niagara Falls to St. Catharines with the backpack clearly visible to him. The evidence of the police officers, which I accept, is that the drive took approximately 25 minutes.
41I also find that the Nike backpack had very distinctive features, including an obvious green ginger ale can in the external pouch that, on the defendant’s evidence, would not have been in his backpack. That feature of the Nike backpack, on its own, should have caused the defendant to question whether he had the wrong backpack.
42Furthermore, the Nike backpack had a prominent white Nike swoosh on the front of the pack. The defendant testified that he could not recall the make of his own backpack. The defendant said that he was unaware that he had the wrong backpack until police officers told him that the backpack that he had dropped contained a loaded handgun. If that were true, a reasonable person in the defendant’s shoes would immediately have thought about whether he had grabbed the wrong backpack. He would have immediately thought about the make and characteristics of his own backpack. Thus, upon his arrest, the defendant would have recalled whether his own backpack had a Nike swoosh on it, and that fact would be indelibly etched in his mind to date. The defendant’s testimony that he cannot remember the make of his backpack is not believable.
43Another aspect of the defendant’s evidence that is not believable is his testimony that he was not the driver of the Malibu vehicle that was pursued by police earlier in the afternoon.
44Defence counsel submits that I should not accept the police officers’ testimony about the identity of the driver of the Malibu because eyewitness identification evidence is, by its nature, untrustworthy. I acknowledge that I must be cautious about eyewitness identification evidence as there are frailties associated with that type of evidence as discussed in R. v. Burke, 1996 229 (SCC), [1996] 1 S.C.R. 474, R. v. Miaponoose (1996), 1996 1268 (ON CA), 30 O.R. (3d) 419 (C.A.), and R. v. Wilband, 2011 ABPC 298.
45In particular, in the Burke decision, Sopinka J. wrote at para. 52:
The cases are replete with warnings about the casual acceptance of identification evidence even when such identification is made by direct visual confrontation of the accused. By reason of the many instances in which identification has proved erroneous, the trier of fact must be cognizant of ‘the inherent frailties of identification evidence arising from the psychological fact of the unreliability of human observation and recollection.’
46However, in the present case there are several factors that favour acceptance of the identification evidence. Specifically, there were three separate police officers who identified the defendant as the driver of the Malibu, and those three officers made their observations at different locations and from different perspectives.
47I accept that the officers only saw the driver of the Malibu for brief periods of time and often during an intense interaction, but I find that all the officers had a very good view of the driver of the vehicle. In particular, Officer Sills observed the driver of the Malibu as the Malibu was driving directly toward him in the Ramada parking lot. Further, Officer Sills and Officer Crane observed the defendant exit the Malibu at the Zimmerman residence, and Officer Crane observed him re-enter the Malibu at the same location, during more passive observations of the defendant.
48I also take into account the fact that the three identification witnesses were all police officers, not lay witnesses. Police officers are trained observers. There are still frailties associated with police officer identification evidence but, as a general rule, observations made by police officers are more reliable than observations made by lay witnesses.
49Further, I take into account the fact that two of the police officers, Officers Sills and Molnar, were present at the arrest of the accused only a few hours after they observed the driver of the Malibu. Thus, this is not a situation in which an eyewitness is asked to identify an accused in a photo line-up or in the prisoner’s box months or years after observing him or her engaging in an activity on the street.
50Finally on this point, the keys to the Malibu were found in the defendant’s possession when he was arrested. There is no evidence as to whether the keys were found on the defendant’s person or in one of the bags he was carrying. The best-case scenario for the defendant is that the keys were found in the backpack, which the defendant claims was not his backpack.
51In my view, assuming the keys were in the backpack, it is still difficult to believe the defendant’s testimony. If I were to believe the defendant, I would have to accept that he picked up the wrong backpack, that the three police officers all mistakenly identified him as the driver of the Malibu, and that somehow the backpack that he mistakenly picked up just happened to contain the keys to that Malibu.
52Therefore, I accept the identification evidence of the police officers, and I find that the defendant was the driver of the Malibu that was pursued by police in the afternoon before his arrest.
53These are just a few examples of the credibility issues raised by the evidence that the defendant presented at trial. Therefore, as I discussed earlier, with respect to step one of the W.D. analysis, I find that I cannot believe the defendant absolutely. Accordingly, I must consider step two and step three when I analyze the Crown’s case against the defendant.
ANALYSIS OF THE CROWN’S CASE
54The evidence is not disputed that the defendant took control of the Nike backpack at the Zimmerman residence, maintained control over it while he drove in the BMW to the Pen Centre, and dropped it on the ground when he was confronted by police officers.
55Knowledge of the contents of the backpack can be inferred from circumstantial evidence, as I will discuss. The issue at step two of the W.D. analysis is whether the defendant’s evidence raises a reasonable doubt with respect to his knowledge of the contents of the backpack. In my view, the defendant’s evidence is based on a series of extremely improbable events. Overall, the series of events described by the defendant is so improbable that the evidence does not raise a reasonable doubt.
56The first set of improbable events relates to the defendant’s explanation as to how he came to be on his own, without his girlfriend, in an Airbnb in Niagara Falls, with his beer, MDMA, weed, a large amount of cash, and a backpack.
57According to the defendant, the plan was to spend the day with his girlfriend in Niagara Falls. Yet, within a short time of arriving in Niagara Falls his girlfriend was called back to Toronto. Then, despite the plan to spend the day with his girlfriend, the defendant chose not to accompany her back to Toronto. Rather, the defendant chose to stay by himself in Niagara Falls, with his girlfriend’s money.
58Also, at the same time as his girlfriend was called back to Toronto and the defendant was left on his own, it just happened that the defendant was invited to an Airbnb in Niagara Falls. Further, at the Airbnb there were several other people whose identities were unknown to the defendant, there were other backpacks at the Zimmerman residence when the defendant arrived, and one of the other backpacks looked similar to his backpack.
59In my opinion, the chances of these events occurring in the exact sequence described by the defendant are very remote. The defendant’s evidence that this was not a planned trip to the Airbnb is highly improbable.
60The defendant then testified that he fell asleep, and he did not leave the Zimmerman residence until he called the Uber. Not only is this improbable, but it is not true. I have already found that the defendant spent some time that afternoon driving a Malibu in and around the Ramada Inn.
61The defendant further testified that when he awoke, he changed his original plan to stay at the Zimmerman residence and decided to go to the Pen Centre. In isolation, this event is not improbable, but it must be considered in the context of other events.
62Thereafter, the defendant described another series of improbable events related to the Nike backpack. On this point, I find that the Nike backpack that the defendant picked up was the property of a fentanyl dealer as it contained items that would be very valuable to a fentanyl dealer, including a large amount of fentanyl and a handgun.
63Therefore, I must consider the plausibility of the defendant’s evidence that there was a fentanyl dealer at the Zimmerman residence, that the fentanyl dealer’s backpack looked like the defendant’s backpack, that the fentanyl dealer left the Zimmerman residence before the defendant awoke, and that the fentanyl dealer took the wrong backpack. In my view, even if I get past the suggestion that, by coincidence, the defendant’s backpack looked similar to the backpack of the fentanyl dealer, it is very unlikely that a fentanyl dealer would have been so casual as to mistakenly leave the residence without his valuable possessions and abandon his fentanyl bag in an unsecured area of a residence in which there were other occupants.
64Finally, there was another series of improbable events, specifically that the defendant mistakenly picked up the wrong backpack, that the defendant failed to observe the distinctive features on the backpack including the Nike swoosh and the green pop can, and that the defendant drove for about 25 minutes to St. Catharines looking at the wrong backpack on the seat beside him without recognizing that it was not his backpack.
65Again, the chances of all of these events occurring in the manner described by the defendant are slim.
66Defence counsel referred to the fact that a Québec driver’s licence in the name of Martin Gagnon was found in the Nike backpack and submitted that, in conjunction with the defendant’s testimony, it raised a reasonable doubt as to whether the defendant owned the backpack. In my view, the evidentiary value of this driver’s licence is limited.
67The driver’s licence suggests that someone named Martin Gagnon may be involved or have some knowledge of the contents of the backpack. However, in this case, ownership of the Nike backpack is not the relevant issue. The backpack could have been owned by the defendant, by Martin Gagnon, or by some other person. The issue is whether the defendant intended to pick up this particular backpack, had control of this backpack, and had knowledge of its contents.
68In summary, I cannot accept that all of the improbable events in this series of events occurred, or that there is a reasonable possibility that they occurred. Therefore, in my view, even considered in conjunction with the Québec driver’s licence, the defendant’s evidence does not raise a reasonable doubt about his guilt.
69The remaining question at step three of W.D. is whether the Crown has proved its case beyond reasonable doubt based on the evidence that I do accept. The evidence, as discussed, does not include any direct evidence of knowledge. To establish knowledge, the Crown relies on the court drawing an inference based on the circumstantial evidence presented at trial.
70In assessing circumstantial evidence, the court must consider other reasonable inferences that could be drawn from the evidence that are inconsistent with the defendant’s guilt. As Cromwell J. wrote in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 35:
The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.
71In the present case, I have already found that the defendant’s explanation that he picked up the wrong backpack does not raise a reasonable doubt. For the same reasons, I find that the innocent inference suggested by the defendant, that he picked up the wrong backpack, is so far-fetched that it is not reasonable nor plausible. The only reasonable inference is that the defendant intentionally picked up this Nike backpack from the Zimmerman residence and took it with him to the Pen Centre.
72In addition, I find that the backpack contained valuable contents including the fentanyl and the loaded handgun. Where the subject matter of which an accused is alleged to be in possession is a substance of significant value, it is open to a trier of fact to infer knowledge of the nature of the substance and knowledge of the substance itself: see R. v. Bains, 2015 ONCA 677, 127 O.R. (3d) 545, at para. 157. Thus, if the defendant intentionally took control of the backpack, it is reasonable to infer that the defendant had knowledge of the contents of the backpack.
73I acknowledge that, on the evidence before me, it is possible to reasonably infer that the defendant did not own the Nike backpack. However, as discussed, ownership is not the issue. Whether or not the defendant was the owner of the Nike backpack, I would still find that the defendant had knowledge of its contents.
74In summary, based on the circumstantial evidence, I find that the only reasonable inference is that the defendant had knowledge and control of the backpack and its contents.
75Therefore, I find that the Crown has established the elements of possession. I find that the Crown has proved beyond reasonable doubt that the defendant had possession of the 67 grams of fentanyl and the loaded handgun that were found in the backpack.
THE PROCEEDS OF CRIME CHARGE
76Regarding the $3,045 in cash that was found in the defendant’s satchel, I note that there is no evidence that the defendant was involved in a drug sale earlier that day that might explain the source of the funds. Therefore, I have no direct evidence as to the source of the funds. Again, the Crown’s case as to the source of the cash is based on circumstantial evidence.
77In my view, on this point, there are other reasonable inferences as to the source of the cash that are inconsistent with the defendant’s guilt. For example, the defendant testified that the cash in the satchel was money that his girlfriend had given to him to pay for a day together in Niagara Falls. While I do not accept the absolute truth of this statement, it is a plausible inference that could be made with respect to the source of those funds. Therefore, I find that the Crown has not proved the defendant’s guilt on this count beyond reasonable doubt.
CONCLUSION
78In conclusion, I make the following findings:
79On count number two, possession of fentanyl for the purpose of trafficking, I find the defendant guilty.
80On count number five, possession of proceeds of crime, namely money, of a value not exceeding $5,000, I find the defendant not guilty.
81On count number six, possession of a prohibited firearm without being a holder of a licence, contrary to s.91(3), I find the defendant guilty.
82On count number seven, occupying a motor vehicle knowing that there was a prohibited firearm in the motor vehicle, contrary to s.94(2), I find the defendant guilty.
83On count number eight, possession of a loaded restricted firearm, without being a holder of a registration certificate, contrary to s.95(2), I find the defendant guilty.
84On count number nine, possession of a restricted firearm without being the holder of a licence, contrary to s.92(3), I find the defendant guilty.
J. R. Henderson J.
Released: January 26, 2026
CITATION: R. v. Nesbeth, 2026 ONSC 516
COURT FILE NO: CR-25-00000652-0000
DATE: 2026-01-26
ONTARIO
SUPERIOR COURT OF JUSTICE
His Majesty the King
– and –
Rahiem Nesbeth
Defendant
Reasons for judgment
J. R. Henderson, J.
Released: January 26, 2026