Her Majesty the Queen - v. -, 2014 SKPC 009

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 009 Date: January 27, 2014 Information: 44304529 & 44331439 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Raldo Dwayne Thompson, Mustafa Yousof Omar, Anthony Justin Durrant, Mohammed Adbi Aden Appearing: Andrea Newsham, Lexi Pace For the Crown Darren S. Sederoff For Raldo Dwayne Thompson Barb Degenstein For Mustafa Yousof Omar Michael Nolin For Anthony Justin Durrant Ammy Murray For Mohammed Adbi Aden JUDGMENT D.A. LAVOIE , J

[ 1 ] The four named accused are jointly charged on one Information 44331439 as follows: (1) on or about the 2 nd day of May, A.D. 2012 at or near Saskatoon, Saskatchewan did unlawfully have in his possession a controlled substance to wit: cocaine for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act .; (2) on or about the 2 nd day of May, A.D. 2012 at or near Saskatoon, Saskatchewan did have in his possession proceeds of property, to wit: Canadian currency, of a value exceeding five thousand dollars knowing that all or part of the proceeds of the property was obtained or derived directly or indirectly as a result of the commission in Canada of an offence punishable by indictment, contrary to sections 354(1) and 355 (

a) of the Criminal Code . [ 2 ] In addition Raldo Thompson is charged on Information 44331439 as follows: (1) on or about the 2 nd day of May, A.D. 2012 at or near Saskatoon, Saskatchewan did unlawfully traffic in a controlled substance to wit: cocaine, contrary to section 5(1) of the Controlled Drugs and Substances Act ; (2) on or about the 2 nd day of May, A.D. 2012 at or near Saskatoon, Saskatchewan did have in his possession proceeds of property, to wit: Canadian currency, of a value not exceeding five thousand dollars knowing that all or part of the proceeds of the property was obtained or derived directly or indirectly as a result of the commission in Canada of an offence punishable by indictment, contrary to sections 354(1) and 355 (

b) of the Criminal Code . Preliminary Matters [ 3 ] Both Messrs. Omar and Aden gave notice of Charter issues at the commencement of the trial. The Court and counsel discussed technical procedural matters. The final process unfolded as follows with the consent of all counsel: 1. the Crown called all its evidence in the context of a voir dire on the Charter issues raised by Messrs. Omar and Aden; 2. all counsel cross-examined each witness as if we were within a trial proper; 3. Defence elected to call no evidence on the voir dire .

Decision on the voir dire was reserved; 4. all the evidence on the voir dire was applied by consent to the trial proper; 5. all four accused elected to call no evidence on the trial proper; 6. as all the events were so intertwined, it was agreed that the trial on Information ending in #439 against Raldo Thompson would proceed as a joint trial with Information ending in #529. [ 4 ] The trial proceedings involved eight days of evidence, and three days of arguments resulting in eleven volumes of transcripts supplemented with numerous written briefs. The Court rendered an interim ruling on the charter applications.

This is now a decision on the trial proper. The Law

[5] Before an accused can be convicted of an offence, the trier of fact must be satisfied beyond reasonable doubt of the existenceof all of the essential elements of the offence. (R.v. Vaillancourt, (SCC), [1987] 2 S.C.R 636 at 654) A reasonable doubt may arise from the evidence, a conflict in the evidence, or a lack of evidence. It is not an imaginary doubt. [6] The Court must be mindful that a criminal trial is not a credibility contest.

It is only after considering the evidence as awhole, and applying the principle of reasonable doubt to issues of credibility, or reliability of the witnesses and to the findings of fact,that the Court can come to a decision. The Court may accept all, some or none of the evidence of any particular witness. [7] The Court must also be careful not to inadvertently shift the burden to the accused, to show a motive for some of thewitnesses to fabricate evidence. The Court must not view the evidence piecemeal, but must determine whether the guilt is proven beyonda reasonable doubt on the totality of the evidence.

The burden remains on the Crown throughout. [8] In addition this case consists largely of circumstantial evidence, which brings into play numerous decisions over the yearswhich discuss the cautions and evidentiary guidelines the Court must consider before determining the guilt of an accused.

The first suchcaution is often referred to as The Rule in Hodge’s Case (1838 CanLII 1 (FOREP), 168 E.R. 1136), which states that before the jury canfind the prisoner guilty, they must be satisfied, “not only that those circumstances were consistent with his having committed the act, butthat they must also be satisfied that the facts were such as to be inconsistent with any other rational conclusion than that the prisoner wasthe guilty person.” [9] Numerous decisions have dealt with principles regarding circumstantial evidence.

Although not a drug case, the SupremeCourt of Canada gave a clear statement regarding conviction based on circumstantial evidence in R. v. Griffin, 2009 SCC 28 ,[2009] 2 S.C.R.42.

In para. 33, Charron J. stated, “that in order to convict on inferences, the Court must be satisfied beyond a reasonabledoubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty.” [10] The Court also wished to review and must avoid a problem often encountered in the application of the rule. [11] Any inferences drawn from the evidence must be drawn from objective facts rather than from conjecture or speculation.

Forthere to be a finding of guilt based on circumstantial evidence it must be consistent with all of the evidence and must be the onlyrational/reasonable inference to be drawn. A reasonable doubt cannot be grounded on speculative or fanciful possibilities that do not arisefrom or fit with the proven, admissible facts. See R. v. Vu (S.V.), 2002 BCCA 659 , 2002 BCCA659. The proven facts are to be interpreted in the light of experience, and the conclusion is a degree of probability not certainty. There must be an experience of logicalprobability that the fact in issue will follow from the established fact.

It is not enough simply to create a hypothetical narrative that couldpossibly link the primary fact or facts to the inference sought to drawn. (R. v. Munoz, (2006), 20 C.C.C. (3d)70 (Ont. S.C.) [12] The definition of trafficking contained in s. 2 (1) of the Controlled Drugs and Substances Act (CDSA) is as follows: “traffic”. means, in respect of a substance included in any of

Schedule I to IV, (

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

b) to sell an authorization to obtain the substance, or (

c) to offer to do anything mentioned in paragraph (

a) or (b), otherwise than under the authority of the regulations. The CDSA adopts the Criminal Code definition of “possession” as follows: 2(1) In this Act, ...

“possession” means possession within the meaning of subsection 4(3) of the Criminal Code; Section 4(1) of the CDSA provides: Except as authorized under the regulations, no person shall possess a substance included in Schedule, I, II or III. Section 4(3) of the Code defines “possession”: 4(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 or two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall bedeemed to be in the custody and possession of each and all of them. [13] Personal possession within the scope of s. 4(3)(

a) of the Criminal Code would generally require that the person has physicalpossession of the drug, on his person with his knowledge. [14] Constructive possession within the scope of ss. 4(3)(a)(

i) or (ii) of the Code would mean that the person has knowledge of theexistence of the drug in issue and has control over it. Joint possession within ss. 4(3)(

b) requires knowledge of the existence of the drug,consent to another person’s custody or possession, and a measure of control of the drug. (R.v. Pham, , 203 C.C.C.(3d) 326 (Ont.C.A.), at para. 15, affd (2006), 2006 SCC 26 , 209 C.C.C. (3d) 351 (S.C.C.)). [15] In order to constitute joint possession pursuant to section 4(3)(

b) of the Code there must be knowledge, consent, and ameasure of control on the part of the person deemed to be in possession. R. v.

Terrence, (SCC), [1983] 1 S.C.R. 357, 33C.R. (3d) 193 (SCC)). [16] In order to prove constructive possession, the Crown must establish that an accused had knowledge of the character of theobject, knowingly put or kept the object in a particular place, whether or not that place belong to him and intended to have the object inthat particular place for his use of benefit or that the drugs were in someone’s custody or possession, that the accused knew that the drugswere in that person’s possession, and that the accused consented to that person having custody or possession of the drugs.

Mere passiveacquiescence to the presence of the drugs is insufficient to establish control or consent to the possession; there must be some evidence ofsome measure of control over the drugs. (R. v. Terrence, (SCC), [1983] 1 S.C.R. 357, 33 C.R. (3d) 193 (SCC)). [17] Knowledge on the part of the accused can be shown if it can be said that the person should have known about the existence ofthe prohibited substance.

A person may be said to be wilfully blind if it is evident that the accused’s suspicion was “aroused to the pointwhere he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries”. In such a case, the SupremeCourt of Canada set the question to be answered as follows: “Did the accused shut his eyes because he knew, or strongly suspected, thatlooking would fix him with knowledge?” (R. v.

Briscoe, 2010 SCC 13 , [2010] 1S.C.R.411 at para. 21). [18] A factor to be considered by the Court, when determining the knowledge that ought to be attributed to a person, can includewhether the quantity and value of the drug seized is of such a nature as to make it inconceivable that the owner would entrust possessionof the container that concealed the drug to someone else. (R. v. Byron [2013] 0.J. No 673 (Ont C.

A) at para.11) [19] The Court is also mindful that the burden is on the Crown to prove the offences beyond a reasonable doubt. The test is notreasonable suspicion for investigative detention or reasonable and probable grounds to make an arrest. At this stage the Court’s scrutiny

of the circumstantial evidence must be rigorous. The Court must assess both the inculpatory, exculpatory and equivocal inferences to be drawn from the circumstantial evidence such that it is satisfied beyond a reasonable doubt that “the only rational conclusion is the guilt of each accused”. Facts [ 20 ] The Court set forth numerous evidentiary findings of fact in the Charter Ruling, and need not review them in this decision. In addition the following is a

summary of the evidence forthcoming from some 19 witnesses whose evidence was applied from the Voir Dire to the trial proper. The Court will set it out in different categories as the evidence relates to the two main places being searched as a result of valid search warrants and then as it relates to each individual accused. [ 21 ] The evidence discloses that a Black Chrysler 200 and a Gold Malibu became the two main target vehicles sometime during the morning of May 2, 2012. Exhibit P29 reveals Omar Hirad checked in to room 230 of the Riviera Motor Inn at 1:13 pm Wed. May 12, 2012.

He paid cash for the room rental. Around the same time period a gold Malibu was parked in the Denny’s restaurant parking lot, which is kitty corner to the Riviera Motor Inn. At approx. 1:20 p.m. the Chrysler 200 also enters the parking lot. At 2:07 p.m. four black males exited Denny’s restaurant. Covert photographs taken at that time show that two of the males got into the Black Chrysler and drove off. Mr. Thompson was the driver and Mr. Aden was the passenger. Of significance is that some photos depict Mr. Aden carrying a black and white bag bearing a “Footlocker” logo.

The subsequent warrant search of room 230 at the Riviera Motor Inn revealed a black and white plastic Footlocker bag, found in plain view in the room closet, as the closet had no door. The Footlocker bag was similar in appearance as shown in the photos, and contained a pyrex measuring cup, a box of baking soda, and a table knife which officer Knodel indicated were common “tools of the trade” so to speak, used by cocaine drug traffickers to cut or dilute the purity of powder cocaine or to cook crack cocaine.

The significance of any such paraphernalia will be reviewed later in the specific evidence of Officer Knodel who was qualified as a drug trafficking expert. [ 22 ] Omar Hirad and Mustafa Omar were identified as the other two males of the group of four. They drove off in the gold Malibu. Within a short period of time of each other, the Black Chrysler and the Gold Malibu arrive at the Riviera Motor Inn. The four males from the vehicles gather at the South East entrance to the Riviera and are let into the Motor Inn by a fifth unidentified person from inside.

The Court is satisfied those four individuals were Thompson, Aden, Hirad and Omar. Just after 4:00 pm a series of events unfold. A black male is observed driving away from the Riviera in the Gold Malibu at approximately 5 p.m., Mutafa Omar, the driver of the Mailbu is arrested, in a back alley. [ 23 ] When searched the following was found on Mr.

Omar: 1) a Samsung cell phone 2) a Blackberry cell phone 3) a Dakota Dunes Casino Card 4) a Riviera Motor Inn plastic room key which was programmed to open room 230. 5) a gold key 6) $570 cash, mostly in $20’s [ 24 ] Also found in the Malibu were: 7) $80 loose cash 8) Copy of Riviera room 230 rental agreement (P29) 9) Budget Rental Agreement in name of Jason Owusu (P28) [ 25 ] No drugs were found on Mr. Omar or the female passenger of his vehicle also arrested at the scene. [ 26 ] Just after 4 p.m. Mr. Thompson drove away in the Black Chrysler.

He was arrested just before 5 pm, being the driver and sole occupant of the Chrysler.

[ 27 ] Found on Mr. Thompson were: 1) a 0.2 gram package of crack cocaine inside a plastic folder holding his driver’s licence and the driver’s licence of Mohammed Aden. 2) $186.00 cash 3) Keys to the Chrysler and additional keys, which officer Graves believed looked like house keys. [ 28 ] The evidence in relation to these or similar keys which were tendered as exhibit P30 are of significant importance to this trial in general and Mr. Thompson in particular. Officer Graves testified a group of keys was placed on the hood of the Chrysler by the Police Officer who made the physical arrest and search of Mr.

Thompson. Officer Graves testified he took possession of those keys, then attended to the scene of the arrest of Vernie Junior Ferrigon some blocks away. A number of keys on a key ring were seized from Mr. Ferrigon. Officer Graves took possession of those keys. Officer Graves then attended to 1229 Ave D North in the City of Saskatoon. Using one of the keys he had seized from either Mr. Thompson or Mr. Ferrigon he was able to unlock the main front door of a multiple unit rooming house.

He returned later that night using 2 keys he had seized, unlocked the main front door and room #4 at 1229 Ave D North, for the purpose of conducting a search warrant search. Later that night he placed all the keys he had seized on the desk of officer Sperlie. [ 29 ] In any event, at the trial, Officer Sperlie tendered a group of approximately 11 keys and two vehicle remote fobs marked exhibit P30. They were all linked together with numerous key ring mechanisms such that they appear to be one single conglomerate or set of keys.

They physically form one unit such that by picking up any one key, one picks up all the keys. Officer Graves offered an explanation that he believed the keys he used to unlock the Ave D property were seized from Mr. Thompson and not Mr. Ferrigon. He suggested that somewhere during the transfer of all keys from one police officer to the other, the keys got put into one bundle. The burden is on the Crown to prove the facts and the inferences to be drawn from the facts, beyond a reasonable doubt.

The notes placed on the plastic exhibit bag containing the keys reveal the following: “Type #2 tamper proof evidence bag” “File #12 - 33042” “N 10” “Investigator Cst. Sperlie” “Date & time: 12 - 05 - 03 1812” “Sample Description: keys from Ferrigon” [ 30 ] Defence argued that continuity of the keys has been compromised and they should not be admitted as a full exhibit. The Court rules continuity in this case does not go to admissibility but goes to the weight, if any, to be placed or the inferences to be drawn from the keys.

There is no doubt that Officer Graves seized keys that opened the doors at the Ave D property. The issue is, from whom were the keys seized? The Court will rule on the same in delivering its conclusions. [ 31 ] In any event, room #4 at the Ave D property was searched pursuant to a search warrant, the validity of which was not challenged during the trial. The evidence discloses this room was rented to a person by the name of “Mohammed Aden” for the month of April. A receipt dated March 31, 2012 (exhibit P1) shows the rent of $330.00 was paid in cash. This was now May 2/12.

One can infer a person by the name of “Mohammed Aden” was the renter and had access to and control of the room since March 31/12. [ 32 ] Significant items found in the room were as follows: 1) A Body Shop bag found in plain view on a ledge along the wall containing $12,000 cash neatly folded and packaged into three bundles: Bundle 1: $5,000 Bundle 2 $2,000 Bundle 3 $5,000

2) Telus bag on ledge along wall containing cash: - $341.00 Cdn - $5 USD 3) A Mexx bag in the closet containing $2,045 cash 2 x $2 1 x $1 4 x $100 4 x $50 72 x 20 4) A backpack in closet containing $1,060.00 cash, 5) In the backpack were copies of a bus ticket in the name of Raldo Thompson indicating that person arrived in Saskatoon at 5 pm on April 22/12 ( P44) 6) Numerous bank cards in the name of Vernie Ferrigon (P49) 7) A room key card for The Heritage Inn in the wastebasket. 8) On the closet shelf, an Ontario Health Card, in the name of Mohammed Aden. 9) In the bathroom wastebasket, numerous sandwich bags with corners cut off. 10) Documents in the name of Mohammed Aden showing that in the City of Saskatoon, on April 28, 2012 he had been investigated and charged with driving while over .08. 11) A Budget Car rental agreement dated April 27/12 for a Blue Traverse, in the name of Raldo Thompson. 12) Numerous cell phones [ 33 ] In any event, different documents found in the room were in the names of Mohammed Aden, Raldo Thompson, Vernie Ferrigon and Shueb Nur.

Room 230 - Riviera Motor Inn [ 34 ] Upon making a quick, unexpected warrantless entry into Room 230 at the Riviera, police officers observed and found the following: 1) Anthony Durrant and Omar Hirad were lying on a bed, in what one could infer was a somewhat relaxed position.

2) In plain view on the bathroom vanity was a baggie of cocaine which contained 20 baggies of powder cocaine weighing 0.2 g to 0.3 g each, for a total of 4 grams of powder cocaine. (P16 photos B & C) [ 35 ] The police returned later that evening and conducted a thorough search warrant assisted search of Room 230 finding: 1) On the bathroom counter a plastic cup containing sandwich bags, scissors, electronic scale, a razor or blade and 21.9 grams of crack cocaine in various chunks and baggies of 0.2 grams each, (which is the normal packaging for street sale of $40 of an amount held out to be a ½ gram) (P16 photos A, E, F, G, H) 2) In the bathroom wastebasket numerous sandwich baggies with the corners cut out. 3) The aforementioned Footlocker bag, in the doorless closet 4) Hanging on a closet hangar, a bag containing 4.8 grams of cocaine in 21 baggies approx. 0.3 grams each. 5) In the T.V. stand top drawer, 195.4 g of powder cocaine in 7 separate bags of approximately 28 grams each. 6) Various other paraphernalia which is normally used to package and prepare for street trafficking of cocaine. 7) Various cell phones. 8) A total of 226.3 grams or 8 oz of cocaine was found in room 230.

All four accused, through their counsel, conceded that this amount of cocaine could be deemed to be for the purpose of trafficking. The sole issue was whether the evidence proved any of them had possession of the same. [ 36 ] Officer Knodel was qualified as an expert to give opinion evidence in the area of wholesale purchasing and then the protocols and techniques of packaging and street selling of cocaine. [ 37 ] A

summary of some of his opinions set forth a number of concepts including: 1) The sale of illicit drugs is a lucrative enterprise. 2) Purchase and sale transactions must be done clandestinely, or if they are done in public, they are conducted as quickly and unobtrusively as possible; 3) Steps are taken to preserve the commodity from theft and detection by police. Thus there is typically: - a stash location for the bulk of the cocaine where it is processed, stored and hidden; - street level sales are conducted off site rather than at the stash location; - the inventory in the possession of the seller is frequently a modest quantity to avoid theft and more serious criminal sanctions if the

seller is arrested. The seller takes small quantities of cocaine from the stash location and replenishes his supply as needed; 4) If the sellers elect to sell cocaine at the street level, they will often use rental vehicles. On occasion the sellers will arrange for a third party to rent the vehicle for them. This is done for a few reasons: - to avoid detection if they believe they may be known to police; and - if the seller is arrested for selling drugs from a vehicle, the vehicle is offence-related property and could be subject to forfeiture.

By using a rental vehicle, the seller’s own assets will not be lost. 5) The sale of cocaine, while lucrative, must be transacted with cash due to the simple fact that it is an illegal transaction and payment by electronic means or by cheque or debit card would leave a paper trail. 6) The cash generated from the cocaine sales cannot be lawfully possessed as it is “proceeds derived from crime.” Because of this there is the risk that the cash could be seized and forfeited. Steps are taken to at least conceal it.

While cash may sometimes be found at the same location as the drug “stash”, often sophisticated traffickers will maintain a separate location to store money to obviate the risk of losing it in a “police raid” on the drug stash location. Sometimes the cash is “laundered” meaning that steps are taken to transport it to a distant location; transfer it electronically by way of a money transfer business or place it in one or more bank accounts, often in the names of trusted third party nominees.

Analysis & Conclusions [ 38 ] In the voir dire decision the Court held reasonable inferences to be drawn from the surveillance supported reasonable and probable grounds for the police officers to arrest the individuals. However, at this stage the burden remains with the Crown and the onus is much higher, that of proof beyond a reasonable doubt. The Court must make a final decision based on the cumulative effect of the entire evidence, what is often referred to as the total constellation of factors.

However, at this stage, unlike the onus of “reasonable suspicion” or “reasonable and probable grounds” the Court must look at the inculpatory, exculpatory, and neutral aspects of each indicator in assessing what inferences may be drawn and then what weight if any to be given to each factor, in determining the cumulative effect. [ 39 ] Though not determinative of the final decisions in this matter, the Court feels compelled to comment on what appears to be an absence of any further investigation or follow up after the individuals were arrested.

Reasonable and probable grounds does not equate to proof beyond a reasonable doubt.

There is no evidence before the Court to clarify that: -any of the cell phones were checked to see if they were operational at the time of arrest and seizure. -did the police attempt to or make any inquiries about video surveillance at any of the hotels or car rentals or Money Mart cash offices so as to try and establish identity of individuals. -no phone records as to who purchased or took out cell phone contracts. -no attempts to obtain search warrants for records from any telephone providers. -no evidence of how many keys were issued by the Riviera for room 230. -no indication of any significant further investigations after May 2, 2012 other than analysis of drugs, analysis of the phones one year later and a report of a drug expert just prior to trial, -speculation, by the police, as to a small gold key found on Mr.

Omar, but no follow up to try and link it to a post office box rental agreement found during the searches. [ 40 ] The Crown’s written brief and any oral argument strenuously put forth that the evidence proved beyond a reasonable doubt the legal concept that all four individuals were involved in a “joint enterprise”.

[41] The Crown’s theory is that joint enterprise is a legal concept to describe the common liability of each individual of a groupacting in concert to achieve criminal objectives as set out in the joint information. In that context the case may be analysed through thelens of a “normal” circumstantial case and through the lens of a “joint enterprise”. [42] To reach a verdict the trier of fact must proceed in three stages. These steps, first adopted by the Supreme Court of Canada inR.v.

Barrow, (SCC), [1987] 2 S.C.R. 694 at 740, include: - The trier of fact must first be satisfied beyond a reasonable doubt that the alleged conspiracy in fact existed. - If the alleged conspiracy is found to exist then the trier of fact must review all the evidence that is directly admissible against theaccused and decide on a balance of probabilities whether or not he is a member of the conspiracy. - If the trier of fact concludes on a balance of probabilities that the accused is a member of the conspiracy then he must decide whetherthe Crown has established such membership beyond a reasonable doubt.

In this last step, only the trier of fact can apply the hearsayexception and consider evidence of acts and declarations of co-conspirators done in furtherance of the object of the conspiracy asevidence against the accused on the issue of guilt. [43] The Court is very mindful of the “joint enterprise” put forth by the Crown, in assessing the evidence as against each of theaccused. [44] Omar Hirad plead guilty to the charges and has been sentenced.

At the beginning of the trial the Crown directed a stay ofproceedings as against Vernie Ferrigon. [45] The Court will now do an analysis of the evidence as against each individual, together with a final ruling. Raldo Thompson [46] He travelled from Toronto to Saskatoon, via bus, and arrived April 22, 2012. -Documents show he was involved in renting and retrieving from the police compound, several rented vehicles. -On May 2, 2012 he was the main driver of the Chrysler 200 and was seen with the four individuals at Denny’s. -He had Mr.

Aden as his passenger on several occasions -He was seen entering the Riviera Motor Inn with three other males. -He had Mr. Aden’s driver’s licence in his possession. -Several of his personal items and documents were found at the 1229 Ave D property. -He was observed making stops consistent with trafficking for the purpose of reasonable and probable grounds, however there is noevidence of any actual drug transaction.

The inferences to be drawn are equally consistent with activity other than trafficking. -For whatever reason the Police chose not to stop or question any of the individuals seen meeting with him. [47] Lastly, evidence of all the keys seized is fraught with confusion as to which keys were actually seized from him and Mr.Ferrigon. Personal documents of Mr. Ferrigon were also found at the Ave. D property. The amount of cash found on Mr. Ferrigon wasmore consistent with possession of proceeds of crime than that found on Mr. Thompson.

In the end, the Court is not satisfied beyond areasonable doubt as to exactly who, the keys used to unlock the Ave. D property, were seized from. Was it Mr. Ferrigon or Mr.Thompson? The onus remains on the Crown. There is confusion as a result of lack of due diligence on the part of the police, in dealingwith the keys. The benefit of that doubt must be given to Mr. Thompson. The Court draws no inculpatory inferences against Mr.Thompson regarding those keys.

[ 48 ] Finally, only one .2 gram baggy of cocaine was found on Mr. Thompson, which is simple possession. He is charged with trafficking and not simple possession. The amount of cash found on him is equally consistent with personal use as opposed to proceeds of crime. Given the evidence of expert witness Knodel, the Court finds the $12,000 cash found at the Ave D location was proceeds of crime, derived from the offence of trafficking in cocaine. For reasons which will be expanded as to Mr.

Aden’s involvement, the evidence gathered at the time of Thompson’s arrest does not convince the Court beyond a reasonable doubt either through circumstantial evidence or joint enterprise that Mr. Thompson had the necessary access, knowledge or control of both the drugs at room 230 Riviera Motor Inn or the cash at the Ave D property. [ 49 ] In relation to Mr.

Thompson the Courts finds as follows: 1) Information 44304529 CT #1 Possession of Cocaine for the purpose of trafficking - Not Guilty CT #2 Possession of proceeds of Crime - Not Guilty 2) Information 44331439 CT #1 Traffic in cocaine - Not Guilty CT #2 Proceeds of Crime - Not Guilty Mustafa Omar [ 50 ] - He was in possession of and was the main driver of the Gold Malibu on May 2, 2012. - Upon arrest no drugs were found on him. - There is no evidence beyond a reasonable doubt that he at any time trafficked in any drugs on May 2, 2012. - The documents found in the Malibu are equally consistent with being left there by Mr.

Hirad who was seen in the vehicle. There is no evidence from which to draw the inference that he must have known the documents were there. - He was clearly seen in the company of the other individuals on May 2. - He was seen entering the Riviera. - His having possession of a key to room 230 is evidence from which the Court can draw inferences of possible involvement in the joint enterprise. [51] Mr. Omar has clearly placed himself in a position which gives rise to suspicion.

But suspicions on conjecture cannot replace proof in criminal matters. [52] It is not for the Court to determine what evidence the Crown will present, but equally the Court will not act upon a deficiency of evidence. The arrests were made after only one day of significant concrete surveillance with no time to get interception warrants or using additional common investigative tools.

There was no significant follow up after the arrests to bring more supportive evidence of the surveillance inferences. [53] The Court is not satisfied beyond a reasonable doubt based on circumstantial evidence or joint enterprise that Mr. Omar had the requisite knowledge or control of the drugs in room 230 or the cash at Ave D. [54] In relation to Mr. Omar the Court finds as follows: Information 44304529 CT. #1 Possession of cocaine for the purpose of trafficking - Not Guilty

CT. #2 Possession of proceeds of Crime - Not Guilty . Anthony Durrant [55] During cross examination there was a significant exchange between counsel for Mr. Durant and Officer Knodel, testifying as an expert. Officer Knodel was steadfast in suggesting several rules followed by street drug traffickers, including: - There is usually a stash house for the cash and one for the drugs. - They would not usually sell the drugs directly out of the drug stash location. - You are not going to allow a user, or client, or other person into the drug or cash stash location who is not a trusted person who is part of the group. Transcript P. 1914 - L 22 - 26 43 (

a) P. 1915 - L 1 - 24 43 (

b) Q. If –if an unusual thing was happening and someone was attending to buy drugs from that room, would you expect them to come inside? A. Absolutely not. If for some reason they were buying drugs from that room, they would be allowed up to the threshold of the door. The door would be open. The transaction generally is made on the doorstep. At the absolute most they would be allowed to come in and close the door, but they would not be allowed past that point. So then they would be sold the drugs there, and they would be gone again.

From my experience, watching these transactions hundreds of times, it is a 30 second to a minute maximum transaction, where they’re in and out again. Q. And that would be because they’re concerned about? A. They’re not friends. They are customers. It is a business transaction. They make the transaction and they’re gone again. Q. Are there any concerns with violence? A. Of course in this – in the drug culture it’s always a concern, where that person, once they’re in the room, they have access to whatever else is in that room. So then that person could get ripped off.

And we hear about that lots from our informants. Of course, that type of stuff is never reported to the police, but we hear of lots of home invasions and different things like that. So that’s why they take these security measures. [56] Only somebody who’s involved in the activities of the drug trafficking with the group would have possession of a key to the drug or cash stash locations. [57] In the recent decision of R.v. Kotyk, [2013] SKCA 140 the Sask C.A. gave some guidance as to what weight, if any, can be placed on the evidence of a drug expert witness.

The Court is mindful that it was in relation to provincial legislation with a reduced burden of proof, yet some of the principles enunciated give general guidance to the Court. [58] The Saskatchewan Court of Appeal in that case relied heavily on the evidence of the expert. In addition, in our present case the Court must mention that no evidence, contradictory or otherwise, was called by any of the accused, including Mr. Durrant. The Court of Appeal commented on such a situation as follows: [34] ...In this case it must be remembered that none of the evidence

was contested. [35] With the greatest of respect, we are of the opinion the Chambers judge misconceived the state of the evidence, especially when seen in its totality and in light of the fact not a shred of it was challenged. [59] I note the following: - Mr. Durrant was found in Room 230 in a relaxed position on a bed with Mr. Hirad. - Mr.

Hirad was a clear controlling figure in relation to the drug trafficking enterprise. - The room had only been rented at 1:15 p.m. some 4 hours earlier. - There was a significant quantity of drugs in plain view on the bathroom counter, packaged in 2 gram baggies ready for street sale. - There were sandwich bags in the wastebasket with corners cut out.

The only logical inference is that the packaging had just been completed in the last hour or so. - Drug paraphernalia was in plain view in the room. - A large amount of drugs were in the T.V. stand. [60] Considering the evidence of the expert, together with the unchallenged evidence of the circumstances in room 230, the Court is satisfied beyond a reasonable doubt that Mr. Durrant was more than an innocent bystander, passive acquiescent occupant of the room. Defence in cross examination put forth that type of scenario.

However, that amounts to pure speculation as there is no evidence to confirm how or why he got there to create a basis for any possible innocent or neutral inference. [61] The Court is satisfied the evidence proves the requisite access, knowledge and control of the drugs in room 230 by Mr. Durrant on the date and time in question, as contemplated by the provisions of the Criminal Code and relevant case law. [62] As to the cash at Ave D there is no evidence linking Mr. Durrant to that property at any time, other than possible speculation. [63] In relation to Mr.

Durrant the Court finds as follows: Information 44304529 CT #1 Possession of cocaine for the purpose of trafficking - Guilty CT #2 Possession of proceeds of crime - Not Guilty Mohammed Aden [64] The totality of evidence in relation to Mr. Aden sets out a more intertwined and consistent constellation of involvement in relation to room 230 Riviera and Ave D than each of the other accused. - He was seen at Denny’s with the individuals. - He was carrying a Footlocker bag similar to that found in room 230.

- The Footlocker bag had clear drug cutting paraphernalia. - During the 4 hours room 230 was rented, considerable drug packaging activity took place within. - Mr. Aden was inside the Riviera Motor Inn for the last 2 to 3 hours of that period. - Mr. Aden had possession of a key to room 230. - Mr. Aden tried to evade police when they attempted to arrest him. - A person by the name of Mohammed Aden rented the Ave D room on March 31, 2012. - Numerous personal papers in the name of Mr.

Aden were found in the Ave D room. - Large amounts of neatly bundled cash were found in a clear view bag in the Ave D room. (The Court found this was clearly proceeds of crime.) - Documents and surveillance show Mr. Aden was clearly linked to the target rental vehicles. - Mr. Thompson had Mr. Aden’s drivers licence. [65] In the end the Court is satisfied beyond a reasonable doubt that the only reasonable rational inference to be drawn from the totality of the evidence is that Mr. Aden was a significant controlling participant in relation to the drugs at room 230 and the cash at the Ave D room.

The Court is satisfied beyond a reasonable doubt he had the requisite access, knowledge and control of both the cash and drugs as contemplated by the provisions of the Criminal Code and the relevant case law. The evidence created an intricate, intertwined association of his access, knowledge, control and participation of both locations. All of said circumstantial evidence remains unchallenged and uncontroverted by any other evidence other than some possible scenarios put forth in cross examination. [66] In relation to Mr.

Aden the Court finds as follows: Information 44304529 CT #1 possession of cocaine for the purpose of trafficking - Guilty CT #2 possession of proceeds of crime - Guilty _______________________ D.A. Lavoie, J