R. v. Oudaimy Date:, 2013 BCPC 93

Citation: R. v. Oudaimy Date: 20130325 2013 BCPC 0093 File No: 186302-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GILBERT ANTOINE OUDAIMY ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: Federal Crown: J. Lawn Counsel for the Defendant: M. Stern, J. Currie Place of Hearing: Surrey , B.C. Dates of Hearing: November 22, 23, 28, 29, 30, December 19, 2012; February 13, 2013 Date of Judgment: March 25, 2013 [ 1 ] THE COURT : Gilbert Antoine Oudaimy is before the court for his trial on Information 186302-2-C. The Information sets out

five counts alleged to have been committed on or about December 11, 2010.

They are: 1. that he had possession of Ecstasy for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act; 2. that he had possession of codeine for the purpose of trafficking, contrary to the same section; 3. that he unlawfully had possession of a loaded prohibited firearm with ammunition, that being a Walther PP handgun, without beingthe holder of an authorization or licence allowing possession and a registration certificate for that firearm, contrary to s. 95 of theCriminal Code; 4. that he unlawfully had possession of that firearm without being the holder of a licence to possess it and a registration certificate,contrary to s. 91(1) of the Code; and 5. that he unlawfully had possession of a prohibited device, being a Glock magazine without being the holder of a licence to possess it,contrary to s. 91(2) of the Criminal Code. [2] At trial the Crown called five police investigators, two civilian witnesses and an expert chemist from Health Canada.

Anexpert report prepared by Staff Sgt. P.K. Murphy addressing the trafficking and valuation of these drugs, the drugs in issue in this matter,was filed by the Crown with the consent of defence as Exhibit 49. [3] Certain admissions were made by the defence precluding the need to call evidence. These admissions included proof of knownfingerprints of the accused used in comparison by Cpl. Pepper, the fingerprint examiner called by the Crown. The defence also admittedthat the drugs in issue were found in circumstances establishing that they were possessed for the purpose of trafficking.

This isconsistent with the conclusion reached by Staff Sgt. Murphy in his expert report filed by agreement as I mentioned a moment ago. Thedefence called no evidence. [4] The parties agree the issue for the court to resolve is whether the circumstantial case presented by the Crown establishedpossession by the accused of the drugs, firearm and magazine beyond a reasonable doubt. In the circumstances which I will outline herethe test to be applied is set out by the Supreme Court of Canada in R. v.

Cooper, (SCC), [1977] SCJ No. 81 at page 16where the following was stated: It is enough if it is made plain to the members of the jury that before basing a verdict of guilty on circumstantial evidence they must besatisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts. In addressing this test, the Court of Appeal in this province has provided the following guidance in a case called R. v.

To in 1992, wherethe following was stated at page 7: It must be remembered that we are not expected to treat real life cases as a completely intellectual exercise where no conclusion can bereached if there is the slightest competing possibility. The criminal law requires a very high degree of proof, especially for inferencesconsistent with guilt, but it does not demand certainty. (R. v. To, (BC CA), [1992] BCJ 1700 (BCCA)) [5] The circumstances here establish that the contraband items described in the Information were found in a rented storage unit towhich the accused was associated.

He was not the only person associated to that storage unit. The court must determine whether theevidence is sufficient to establish his possession as defined in s. 4(3)(

a) of the Criminal Code which states as follows: 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 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... [6] The circumstances here establish the contraband was not found in the actual possession of the accused or any other person andso it is the portion of the definition set out in s. 4(3)(a)(ii) referred to as "constructive possession" which is in issue here.

Constructivepossession requires proof of the accused's knowledge of the character and the presence of the contraband in the unit and that the accusedexercised an element of control over the contraband for his use or benefit or for that of another person. (R. v. Morelli, 2010 SCC 8, [2010] 1 SCR 253) [7] There is no issue that the items found in the storage unit, and referred to in the five counts could not be lawfully possessed bythe accused. The circumstances are as follows. In 2010 the RCMP unit in British Columbia responsible for investigating clandestine

labs making illicit drugs became aware of shipments of chemicals coming into the Lower Mainland which were suspicious. The investigators suspected the chemicals might be going to labs where drugs such as Ecstasy were being made illegally. Iodine is a chemical used for that purpose. In or about October 25th, 2010 investigators learned of three barrels of iodine which had arrived at a shipping office in Richmond. They attended and installed tracking devices in these three barrels and then waited to see where the barrels went.

Ultimately only two of the tracking devices functioned properly. [ 8 ] On October 26th of 2010 at about 1:40 p.m. the three barrels were picked up from the shipping office in Richmond by an unknown male. Relying on surveillance and the tracking devices functioning in two of the barrels, investigators established they were delivered to a residence at 10121 - 129th Street in Surrey at about 2:50 p.m. that day. Constables Westwick and Roe began covert surveillance at that location. [ 9 ] At about 3:55 p.m. Cst. Westwick observed two vehicles arrive. A Lexus RX300 plate 881 FRS backed into the driveway.

A 2009 Infiniti EX35 plate 513 SDJ parked opposite the residence. At 4:20 p.m. the Lexus plate 881 FRS departed northbound on 129th Street. A male person was observed crossing the street from the residence, entering the Infiniti 513 SDJ and then backing that vehicle into the driveway of the residence. He was then seen putting something into the rear of the vehicle. At 4:23 p.m. he drove the Infiniti out of the driveway and south on 129th Street. The observations at the residence are documented in books of photographs marked Exhibits 40 and 51.

Investigators determined that each of these vehicles was carrying one of the barrels with functioning trafficking devices. [ 10 ] Initially, due to limited resources, investigators focused on surveillance of the Lexus plate 881 FRS, the first vehicle to depart. At about 5:30 p.m. investigators refocused surveillance on the second vehicle, the Infiniti plate 513 SDJ. The tracking device relating to the barrel of iodine in this vehicle was moving in the area of King George Boulevard, Surrey.

By about 5:53 p.m. it appeared to be stationary and investigators established it had been taken to a storage facility at 7401 King George Boulevard at 73A Avenue. Investigators were able to establish the tracking device was transmitting from unit B019 within the storage facility. This is a large storage facility which rents units of various sizes to the public, operating under the name Public Storage Canada. Its location is shown in aerial photographs marked Exhibit 35. Through a production order, officers obtained the lease for unit B019 and related documents which is Exhibit 37.

The tenant is Mitch Khera, who was called to give evidence by the Crown. The lease was signed on January 30th, 2010. The unit is depicted in photographs in Exhibit 1. It is approximately 20 by ten by ten feet and is accessed by a door across the front of the unit which slides up into the ceiling of the unit. [ 11 ] Exhibit 38 is a report of all activity at the Public Storage facility on October 26, 2010.

It is generated based on electronic records created when a unique code for each unit is entered into a keypad allowing the gate to the facility to open and permitting a vehicle to drive into the related storage unit. Entry of that code disarms the alarm on that unit. The alarm is reactivated when the code is entered as the vehicle or person departs. The time of all of these events are recorded electronically and form the data in Exhibit 38.

Further, a video camera is installed in the keypad assembly and captures the driver of the vehicle positioned at the keypad as he enters the unique code to open the gate to access the unit. Those records establish that the code for unit B019 was entered at 5:30 p.m. on October 26, 2010 and the unit accessed. Departure was recorded at 5:36 p.m. The video recording related to this access to unit B019 shows the accused Mr. Oudaimy entering the code to access the unit. Unit B019 was not accessed at any other time on that date.

From this I conclude that on October 26, 2010 the accused transported the barrel of iodine with one of the tracking devices from the residence on 129th Street to the unit B019 and left it there. [ 12 ] Investigators continued to monitor the tracking device and were satisfied it remained stationary in unit B019 until on December 10, 2010 they applied for and obtained a general warrant to surreptitiously enter that unit to record its contents and service the tracking device. [ 13 ] On the evening of December 10, 2010 investigators attended the storage facility and gained entry to the storage unit pursuant to the general warrant.

In doing so a padlock securing the door was unlocked, the presence of the barrel of iodine with the tracking device was confirmed. Very soon after entry, investigators located the contraband referred to in the Information before the court and determined, bearing in mind the presence of a loaded firearm, that the plan to maintain a covert monitoring of the unit was no longer viable.

A search warrant was obtained and the investigators undertook a thorough search of the unit and its contents on December 11th of 2010. [ 14 ] Unit B019 and its contents as originally observed by investigators on opening the unit are depicted in photographs on pages 1 through 6 of Exhibit 1. Investigators identified 56 cartons of material in the unit and three barrels of iodine. Cartons were stacked on both sides of the unit and along the rear wall. Various packaging and shipping materials were present. The three barrels of iodine were located on the right side of the unit.

They are not immediately visible as one looks into the unit, based on the photographs, but become visible on the floor among the boxes as one moves into the unit. [ 15 ] Photographs on pages 5 and 6 of Exhibit 1 show the position of two of the barrels. The corner of one barrel is visible partially surrounded by boxes in the lower photograph on page 5 and the top photograph on page 6 of Exhibit 1. This barrel contained the tracking device. Immediately to the left of that barrel is a box with a white label. As the search proceeded all of the boxes in the storage unit were given numbers by investigators.

This box was numbered 1. It contained contraband covered in all five counts in the Information. [ 16 ] It appears from the evidence that two of the barrels of iodine found in the unit were part of the shipment intercepted on October 26 of 2010. The third barrel, found next to a barrel with the tracking device and visible to the right in the photograph at the bottom of page 9 of Exhibit 1, related to an earlier shipment, details of which were not provided in the evidence. [ 17 ] Photographs commencing on page 29 of Exhibit 1 show the numbering and position of the boxes in the unit.

Of particular significance are box number 1 to the right side of the unit and box number 51 on the left side. Their original positions are clear in the photographs on pages 30 and 31. Photographs on pages 33 through 41 show the sequence of discoveries as box number 1 was opened. When the flaps of that box were parted, a smaller box referred to as "the bunn box" was visible inside, as well as a green garbage bag, a white Safeway bag and a black and green Golf House bag. When the flaps of the bun box were parted a Ziploc bag was present

containing approximately 900 tablets which were analyzed to be the illicit substance often referred to as Ecstasy and described in Count 1. Also inside the bun box was a brown paper bag containing four Ziploc bags. Each Ziploc bag contained approximately 31 grams of a white powder which was subsequently analyzed to be Ecstasy in powder form. The tablets and the powder are the subjects of Count 1 in the Information. [ 18 ] The plastic Safeway bag inside the larger box number 1 contained a smaller box labelled "Armorlace" which was wrapped in a piece of newspaper dated March 22, 2009.

Inside the Armorlace box was a black Glock magazine containing 12 rounds of ammunition. This magazine is the subject of Count 5 in the Information. [ 19 ] The Golf House bag contained a black aluminum case held closed by two elastic bands. Inside was a Walther pistol containing a loaded magazine, a second loaded magazine and 42 loose rounds of ammunition. The position of that bag and its contents are shown in photographs on pages 44 through 47 of Exhibit 1.

The pistol and ammunition are the subjects of Counts 3 and 4 of the Information. [ 20 ] The green garbage bag in box number 1 contained 19 Ziploc bags of codeine pills weighing in total 4.45 kilograms. They are depicted in photographs on pages 51 through 53 of Exhibit 1. They are the subject of Count 2 in the Information. [ 21 ] Box number 51 was on the left side of the storage unit on entry. It was under another box as seen in the photographs on page 30 and 79 of Exhibit 1.

When the box on top was removed, box 51 appeared as in the lower photograph on page 79 of Exhibit 1 with several unused shipping envelopes on top. When those were removed, six Ziploc bags of powder were found, each weighing 31 grams. They were tested and found to be Ecstasy powder and are covered by Count 1 of the Information. [ 22 ] Based on Staff Sgt.

Murphy's report the total value of all of the drugs found if all of the powder was processed into tablets ranged from $81,000 to $192,000. [ 23 ] The substantial contents of the remaining boxes in the storage unit were inventory of pull cords and boot or shoelaces in packaging carrying the brand Armorcord or Armorlace, as well as shipping materials and flattened boxes.

Investigators confirmed none of the contraband was in plain view and there was no smell or other indicia which would raise suspicion that contraband items were present in the unit. [ 24 ] On the morning of December 11, 2010 following execution of the search warrant and discovery of the illicit items, the accused Mr. Oudaimy was pulled over while driving away from his residence in Burnaby. He was driving a vehicle registered in his name. He was arrested for production for the purpose of trafficking and possession of a firearm, all arising from the results of the search at unit B019.

On the dash area of the vehicle was a business card for the Public Storage facility and written on the card was the unit number B019 and the unique access code assigned to that unit and allowing access to the facility. It is Exhibit 31 and is visible in photographs in Exhibit 30 inside the vehicle. Also seized from a pocket in the accused's clothing on his arrest was a printout of a graph with two charted lines, one blue and one red. That document is Exhibit 32. [ 25 ] Jenny Shen is a chemist. She is an employee of Health Canada.

She was qualified as an expert in the analysis of controlled substances under the Controlled Drugs and Substances Act including the

interpretation of infrared spectra. She conducted an analysis of Exhibit 32. She explained the process by which a substance can be identified by infrared light analysis which produces a unique signature. She visually compared the blue line on the graph in Exhibit 32 to the standard graph for ephedrine in the Health Canada database.

She concluded this blue line on the graph in Exhibit 32 is the unique infrared spectra for ephedrine, which is a key ingredient for methamphetamine and which is a controlled substance under the Controlled Drugs and Substances Act . [ 26 ] Inside the glove box of the accused's vehicle, on his arrest, investigators located a single-page document entitled "Agreement" between Eric Davidson Green, 15757 - 176 Street, Surrey, British Columbia and Gilbert Oudaimy, 0719645BC Ltd., 217 - 713 Columbia Street, New Westminster, British Columbia.

It stated that Eric Davidson Green irrevocably appoints Gilbert Oudaimy to act as his proxy for all voting matters of Armorgroup Industries Ltd. and two numbered companies. It appears intended to be dated in April 2010 and provides for signatures of both parties, but it is unsigned. [ 27 ] The green garbage bag located in box number 1 and found to contain 4.5 kilograms of codeine pills was examined for fingerprints by Cpl. Erin Pepper. She was tendered as an expert in the locating, lifting, analyzing, comparing and identifying of fingerprints. Her expertise was admitted by the defence.

After hearing a recitation of her background and a review of her curriculum vitae filed as Exhibit 42 I qualified her as an expert in the areas for which she was tendered by the Crown. She detected three prints near one corner of the green garbage bag. She determined they were the right palm, the right ring finger and the right middle finger of the accused Mr. Oudaimy, based on her comparison with Mr. Oudaimy's known prints. It was her opinion that those prints were all left at the same time when Mr. Oudaimy grabbed the bag with his right hand. She did not find any other prints of Mr.

Oudaimy on the bag or on any of the other 40-plus items that she was asked to analyze. She is unable to say how long the prints were on the bag or when they might have been placed there. She noted plastic is a surface on which fingerprints may be more easily damaged. [ 28 ] In cross-examination, Mr. Stern, on behalf of Mr. Oudaimy, challenged the reliability of Cpl. Pepper's conclusions and he argued those conclusions are not well enough supported or explained to be relied on by the court. He argued that Cpl.

Pepper gave her evidence by rote and when pressed could not adequately point to the specifics of each print to explain the foundation of her opinions that each was from the accused. He pointed out that she prepared a chart only for R-2, the ring finger, indicating seven points of comparison but could not articulate other factors she relied upon. That chart is Exhibit 43. [ 29 ] In her evidence, Cpl. Pepper explained that she does not rely only upon a specific number of points of comparison to reach her conclusion.

She relies on an examination of the print as a whole in its totality, which she stated to be the accepted method in Canada. In respect to each print she used a ridge by ridge process and concluded there were no unexplained differences between the known and the unknown print. She prepared the chart for the single print in order to illustrate the process. She determined there was sufficient uniqueness in each print. I am satisfied after considering the whole of Cpl.

Pepper's evidence that I can accept her opinion that the three prints that were identified on the green garbage bag are the right palm, right ring finger and middle finger of the accused Mr. Oudaimy and that at some undetermined point prior to December 10th of 2010 he grabbed that bag with his right hand.

[ 30 ] The circumstances of the accused's access to the storage unit and assessment of the evidence surrounding whether and who else might have had access to the unit are important aspects of the Crown's case. These issues engage the evidence of Mitch Khera. Mr. Khera has known the accused for about 30 years and has been an associate of the accused in several business dealings over those years. They remain friends. In his evidence, Mr. Khera said that in or about January of 2009 Paul Able and Eric Green, friends of Mr.

Oudaimy's, ran into financial difficulties in respect of a business which marketed shoelaces and machinery starter cords using the name "Armor." Mr. Oudaimy and Mr. Khera agreed to invest in the business. Together they invested about $150,000. Mr. Khera became the manager and undertook a restructuring of the business to bring its costs under control. [ 31 ] Mr. Able, who was the founder and inventor of the product, and Mr. Green who was a shareholder, continued in the promotion and marketing of the product. Mr.

Oudaimy also participated in the selling of the product, although he was also involved in other businesses. In March of 2009, as a cost-saving step Mr. Khera closed an office and warehouse used by Armor and rented a storage unit at the Public Storage facility on King George Highway. The inventory of Armor products was moved into the storage unit. As sales were made the large inventory of product was reduced, and in January of 2010 Mr. Khera signed a new lease with Public Storage for a smaller unit, that being unit B019. The remaining inventory, together with shipping materials, was moved over to this unit. Mr.

Khera said, however, that he retained some of the inventory at his home because he said there were some tensions within the group of investors and he wanted to hold some security against his and Mr. Oudaimy's investment. [ 32 ] In addition to the four investors referred to already, four others were or became investors. They were Mark Woodside, Mike and Rob Perry and Cody Anderlini. When Mr. Khera rented unit B019 he completed a Tenant Information Sheet, which is filed with the lease as Exhibit 37. On that form Mr. Khera gave the name of his brother-in-law, Happy Anmol as an emergency contact. Mr.

Anmol is not involved in the Armor business. Mr. Khera listed the accused Gilbert Oudaimy as the only other person who was authorized to access the storage unit. The lease named Mr. Khera as the tenant. Neither the Armor organization nor any of its other principals are referenced anywhere in the lease or supporting documents. Mr. Khera said the rent was paid through his personal credit card, evidenced in the receipt also included with Exhibit 37. [ 33 ] On the face of the lease documents one would conclude that Mr. Khera was acting entirely in his personal interest and providing access to the unit only to Mr.

Oudaimy. Further, at the time he rented the larger unit in March of 2009, Mr. Khera said he bought a padlock from Public Storage which came with just two keys. That padlock was moved over and used on the smaller unit B019. Mr. Khera said he kept one of the original two keys and gave the other to Mr. Oudaimy. The tenor of Mr. Khera's evidence at trial, however, is that the unit was not for his personal benefit but for the benefit of the business. He said he put it in his name and authorized access only to himself and Mr.

Oudaimy so that in the event the business relationship with the other investors collapsed he would be able to protect his own and Mr. Oudaimy's investment by taking control of the inventory and preventing access to it by others. He said he reimbursed himself the rental costs from the Armor account. [ 34 ] During Mr. Khera's direct evidence the Crown sought leave under s. 9(2) of the Canada Evidence Act to cross-examine Mr. Khera relative to the number of keys existing for the padlock. This was permitted because in his evidence Mr.

Khera said two additional keys beyond the original two held by himself and the accused were made and held by others. This was clearly inconsistent with information he provided to police in an audio and video-recorded statement he gave to the police on December 13th of 2010. The ruling under s. 9(2) did not involve a finding that Mr. Khera was adverse. [ 35 ] In his evidence, Khera said Paul Able and Cody Anderlini each had keys to the unit and said Mr. Oudaimy told him he had made a copy of the key for Paul Able. Further, he said Mr. Able himself said he had a key. Mr.

Khera said he was aware of this, at least at the time of the move to the smaller unit in January of 2010. He is less precise about the source of the information that Mr. Anderlini had a key, but he was aware of this in the summer of 2009. He said the ability of Mr. Able and Mr. Anderlini to access the unit was demonstrated on several occasions when Mr. Khera came to the storage facility and observed them there in the absence of Mr. Oudaimy.

He said their presence was explained because they were both involved in the sales of the Armor products and would have to attend the unit to obtain product from the inventory to deliver to a buyer or to mail out using in the process shipping materials, including for example UPS packaging materials which were found in the unit. He said Mr. Oudaimy from time to time also attended to effect sales that he had arranged. He said the Perrys, Woodside and Green were not active in the business. [ 36 ] In his statement to police, Mr. Khera confirmed on several occasions the existence of two keys only.

Despite the opportunities during the interview to provide information or disclose the existence of other keys, he did not do so. He was closely cross-examined by Crown counsel about this discrepancy. Mr. Khera said he was nervous during the interview with police. He had never been in such a situation before and was scared. He said he was probably all over the place on a variety of details, including this issue. He said his anxiety increased when he was told that contraband was found in the unit. He said he did not think of the other keys. Mr.

Khera said he was in this state despite assurances by police that he was not under arrest and was free to leave if he wished. [ 37 ] In his evidence, Mr. Khera said he was not aware of the presence of the drugs, firearms or ammunition himself and had nothing to do with them. He said that during the course of 2010, he and Mr. Oudaimy decided to disengage from the business and sell out. The buyout of their interest was to be funded through sales of the inventory and Able and Anderlini were active in this aspect of the business. Mr. Khera said they had to have access to the unit or the business could not operate.

In the summer of 2010 he received a $25,000 deposit towards the buyout and it was completed in 2011. [ 38 ] Mr. Khera said that sometime in August or September of 2010 he was approached by Mr. Oudaimy who asked him for his key to the unit. He gave it to Mr. Oudaimy. It was returned to him sometime in November, likely towards the end of November of 2010. Mr. Khera himself had not been to the storage unit for perhaps four or five months when he was interviewed by the police in December of 2010. [ 39 ] The Crown says that I should find Mr.

Khera to have been truthful during his interview with police in December of 2010 when he referred to just two keys to the storage unit and made no mention of keys held by Able and Anderlini. The Crown argues that Mr. Khera was under no duress at that time and would have no knowledge or reason to concoct a story of other keys which would favour his friend Mr. Oudaimy's position. The Crown says the revelation of additional keys given at trial is obviously intended to support an argument that others had ready access to the unit and is given with time and opportunity to fabricate a version supporting Mr. Oudaimy.

[ 40 ] The assessment of Mr. Khera's evidence is significant in this trial. The Crown's position is that I should accept his evidence at trial that he himself had no knowledge of or involvement in the contraband found in the locker, but reject his evidence at trial that more than two keys existed. The court of course, may accept part, all or none of the evidence of a witness. It is evident here that a business involving the sale of Armor products was taking place from the storage unit rented in Mr. Khera's name.

In excess of 50 boxes of inventory packaged in Armor-labelled boxes and valued in the thousands of dollars was present in the unit when investigators searched it on December 10 and 11 of 2010. [ 41 ] Mr. Khera's evidence about Mr. Oudaimy, and by implication his own involvement in the business, is corroborated by the discovery of a draft proxy agreement between Oudaimy and Green referencing an Armor company. Further, surveillance on December 8 of 2010 conducted by investigators revealed Mr. Oudaimy meeting with Paul Able. Subsequently, Mr.

Able was observed driving a vehicle registered to Armorline Marketing International Inc. Thus there is reason to conclude that Mr. Khera's evidence about the business marketing Armor cords and laces and involving himself, Mr. Oudaimy, Paul Able and Eric Green is truthful. There is no reason to doubt Anderlini and others were also involved. It seems reasonable to conclude that ready access to the inventory in the unit would facilitate the business operation. Confining access to just two individuals, himself and Mr.

Oudaimy, and requiring their presence at the unit in order to facilitate product sales and shipment would seem to present a considerable inefficiency, particularly bearing in mind Mr. Khera and the accused were, on Mr. Khera's evidence, anxious to recover their investment and withdraw from the business. [ 42 ] There are complications in the assessment of this evidence, including the obvious question why Mr. Khera would not be forthcoming to the police about other keys if they existed, and what might occur if unauthorized people such as Able and Anderlini were discovered at the unit. Although Mr.

Khera's evidence is problematic, I conclude it is more likely additional keys existed than not. The weight of the evidence supports a finding that additional keys in the hands of other persons likely existed. [ 43 ] Exhibit 29 is an electronic record of all attendances at unit B019 following its rental in January of 2010 up to the 29th of November 2010. There are no records provided to establish whether attendances occurred between November 29, 2010 and the arrival of police on December 10 of 2010. The unit was accessed on 43 dates during the time period from January to the end of November 2010.

On several dates multiple entries occurred. The unit was accessed on 13 dates between August 1st and November 29 of 2010. This includes five dates in October. During this period, Mr. Oudaimy had Mr. Khera's key. Video footage shows Mr. Oudaimy attending the unit on October 6, 19, 20, 26 and October 30. It is not possible to say if others were with him on these occasions. It is not possible to say who was present at any of the other entries. [ 44 ] Crown argues that it has set out circumstances which establish both Mr.

Oudaimy's knowledge of the contraband items and control over the items such that constructive possession of the items of contraband is established beyond a reasonable doubt. In respect to knowledge, the Crown argues that Mr. Oudaimy had ready access to the unit, he is a friend of Mr. Khera's, and is authorized to enter on the lease. Indeed, only those two are named for access on that document. He was seen accessing the unit on five occasions in October of 2010 including his access to deliver one of the barrels of iodine that contained a tracking device on October 26th of 2010.

That barrel was found in close proximity to box number 1 wherein most of the illicit items covered in the counts before the court were found and in which the garbage bag with his prints was found, containing codeine tablets. The Crown says codeine is an ingredient of Ecstasy. Although there is no specific expert evidence on this assertion, it is not contested by the defence. I note there is no other demonstrated use for codeine consistent with the marketing of Armor products which is the reason Mr. Khera says the locker was leased. The Armor product itself, on the evidence of Mr.

Khera, was manufactured elsewhere. [ 45 ] The Crown argues that it is reasonable to associate the drugs with the firearm and related ammunition and magazines, all located in box number 1. Although packaged or wrapped separately, they are all found within box number 1. Everything in box number 1 is unlawful to possess and Mr. Oudaimy's prints are on one of the items of packaging, is the essence of the Crown's argument on this point.

Guns and drugs, the Crown says, naturally go together and so they are found in box number 1. [ 46 ] Further, the Crown argues that the drugs are valuable, as evidenced by the report of Staff Sgt. Murphy. It would be unreasonable for anyone to leave these items where they could be so easily discovered in boxes 1 and 51 by someone coming or going from the unit and uninvolved with those items. The Crown says this argues in favour of very limited access to the unit which Mr. Oudaimy had, and strengthens the argument that he knew of the presence of these items.

The Crown's case is at its strongest where very narrow access to the unit limited essentially to Mr. Oudaimy and perhaps Mr. Khera or to others only when one or other of them was present. The Crown says its circumstantial case in any event is strengthened by the discovery of the unit number and access code on the business card in easy reach of Mr. Oudaimy in his vehicle at the time of his arrest just the morning following police entry to the locker, and the unexplained finding of the infrared spectra graph for a scheduled precursor for methamphetamine, that being ephedrine, on Mr. Oudaimy's person when arrested.

Essentially, the Crown says these same factors demonstrate Mr. Oudaimy also exercised control over the contraband in the unit. [ 47 ] I have earlier determined however, based on Mr. Khera's evidence, that there is a likelihood that wider access to the unit existed. As I indicated earlier, based on Mr. Khera's evidence, his description of the way in which the product was sold and shipped and the express desire he and Mr. Oudaimy had to be bought out on the basis of proceeds from product sales, it only makes sense that others would be in a position to access the locker and in Mr. Khera and Mr.

Oudaimy's absence to effect those sales. This is not a speculative argument; it is based on the evidence I have heard which supports the existence of the Armor product line, substantial inventory in the locker, together with shipping materials some of which are readily visible when the locker was first opened. It is consistent with the operation of a legitimate business from that storage unit as a going concern. [ 48 ] There is no way to tell who was entering the locker other than on the dates specified in October 2010 where the accused was seen doing so.

There is no way to determine when the items of contraband were placed in the unit or by whom. Specifically, it is not possible to say whether they were present there at the time of the move in January of 2010 or in October 2010, or whether they were placed there following Mr. Oudaimy's last proven attendance on October 29th or 30th of 2010, about six weeks before the police search. The evidence shows the locker was accessed twice in November but there is no record to establish it was or was not accessed in the first ten days of December. [ 49 ] The Crown theory is that Mr.

Oudaimy had knowledge and control at December 11, 2010 but there is no evidence that he

attended the unit after the end of October 2010 after which it was opened at least twice. I repeat, we do not know when the contraband was placed therein. Mr. Oudaimy's fingerprints are on the garbage bag concealing the codeine pills in box number 1. That is supportive of the Crown's case. But I note that a garbage bag is a common item easily picked up and discarded in innocent circumstances. There is no way of knowing when the prints were placed there or in what circumstances that occurred.

Other reasonable possibilities exist, beyond the act of concealing the codeine tablets. [ 50 ] The presence of the infrared chart for ephedrine is highly suspicious and supports the Crown's argument. It may well be consistent with some involvement in illicit drug production or related activity. It is a fact which is to be weighed in the balance. [ 51 ] The Crown's circumstantial case must be assessed on the totality of the evidence. Those circumstances include Mr. Oudaimy's access, I conclude likely shared with at least two or three others, to a storage locker rented to facilitate a legitimate business.

In the locker are found illicit substances, out of sight but not well concealed amongst a large inventory of legitimate product. Mr. Oudaimy can be linked to a suspicious iodine delivery, to an infrared spectra chart for an illicit precursor, to a garbage bag in which an illicit substance is found and he is seen entering the locker five times in October. Crown's case is weakened by that extended access, by the inability on the evidence to determine when the contraband was placed in the locker, and more particularly by the absence of any evidence of Mr.

Oudaimy or anyone else's attendance there in the ten days before police entry. That situation is complicated for the Crown because the locker was accessed twice in November but there is no evidence as to who was present. This is troubling, because there is a means of determining at least who entered the code at the entry gate as was done in respect of Mr. Oudaimy in October. The absence of that evidence is not explained. [ 52 ] The Crown's case leads to a strong suspicion that at the time of his arrest or in the months preceding that Mr.

Oudaimy was involved in some aspect of illicit drug production or related activity. The evidence does not amount to proof beyond a reasonable doubt that he knew of or had control of the contraband items found in the locker on December 10th and 11th, 2010, which are the specific charges before this court. I conclude the Crown has failed to prove he had possession of those items as contemplated in s. 4(3) of the Criminal Code . He must be acquitted, and I acquit him on those charges. (REASONS FOR JUDGMENT CONCLUDED)