HER MAJESTY THE QUEEN — v. —, 2019 ONCJ 885

ONTARIO COURT OF JUSTICE CITATION : R. v. Suman , 2019 ONCJ 885 DATE : December 12, 2019 Old City Hall - Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — ALBERTO SUMAN ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) For the Crown F. Alibhai and A. Shachter For the Defendant M. Macchia Heard: November 12, 13 and 21, 2019 REASONS for JUDGMENT RUSSELL SILVERSTEIN, J.: A. INTRODUCTION [ 1 ] On July 18, 2018 police executed a search warrant at 16 McAdam Avenue, unit 807, in the city of Toronto. In the bedroom closet they found two locked suitcases containing 12 firearms, ammunition and a grenade.

The accused is charged with numerous offences in connection with this trove. [ 2 ] The principal issue in the case is whether the Crown has succeeded in proving beyond a reasonable doubt that the accused was “in possession” of these weapons and ammunition on July 18, 2018. Or, put another way, has it been proven that the accused had both knowledge and control of these weapons on that day. [ 3 ] The Crown called one witness, Thomas Scarlett of the RCMP, who participated in the search of the apartment.

The Crown also filed two agreed statements of fact as well as several other documents including photos and a fingerprint chart. [ 4 ] Mr. Suman testified in his own defence but called no other witnesses.

B. EVIDENCE (

a) The testimony of Officer Scarlett [ 5 ] Officer Scarlett was principally in charge of taking photographs during the search of the apartment and examining the fingerprints found therein. [ 6 ] When the police entered the one-bedroom apartment there was no one there. It was clearly not lived in. What little furniture was present was largely covered in plastic and the kitchen cupboards were essentially bare. There were no personal items in the bathroom and no clothing in any of the closets.

One kitchen cupboard contained a vacuum sealer used to package food in plastic wrap. [ 7 ] In the bedroom closet were two locked suitcases as well as other miscellaneous luggage. The two locked suitcases, one blue, the other red, both contained smaller pieces of luggage which contained guns and ammunition. One of these two suitcases contained a grenade. Just what the other suitcases contained was not set out in the evidence, but it is admitted that they did not contain any contraband. [ 8 ] Several fingerprint impressions were found on certain items found in the apartment. Mr.

Suman’s fingerprints were found on the exterior of the blue suitcase. No other identifiable prints were recovered from this piece of luggage. One fingerprint impression identified as that of the accused was found on the exterior of a clear baggie containing ammunition, which clear baggie was found inside the blue suitcase. Two fingerprint impressions belonging to the accused were found on an inside surface of the vacuum sealer. Several prints belonging to various individuals were found on various items including bags containing the contraband.

One of these impressions, found on a grey grocery bag containing guns, inside the red suitcase, belonged to Faruk Portobanco. (

b) A

summary of the agreed facts [ 9 ] The principal target of the police investigation was Faruk Portobanco, who was under police surveillance between December 2017 and July 2018. In December, January, February and March, he was seen on four occasions dealing in fentanyl and cocaine. Mr. Suman was not seen to be involved in any of these transactions, nor is there any evidence of the two being together during this period. [ 10 ] Surveillance of the apartment at McAdam Avenue began on March 27, 2018. Portobanco is seen in and around the building on March 27 and March 30, coming and going from this address. Mr.

Suman is not present. [ 11 ] On May 24, 2018, Mr. Portobanco was seen at Toronto Pearson Airport, with the accused, running to board a flight for London, England. [ 12 ] On June 22, 2018 Mr. Portobanco arrives at the building at 10:15 pm. One minute later Mr. Suman is seen arriving in a car with two suitcases and a large duffel bag. Neither of the suitcases is one of the offending suitcases found by police when the apartment is searched. They both take the bags up to the apartment and Portobanco opens it with a key. They both stay in the apartment for just under two hours and leave together.

Portobanco visits the apartment alone several times later that day transporting various pieces of luggage. [ 13 ] On June 26 Portobanco and an unknown male visit the apartment and Portobanco has a key. [ 14 ] On June 27 Portobanco again visits the apartment with an unknown male. He is tracked by police and found to be in the vicinity of the building on June 30, July 4 and July 5. [ 15 ] On July 7, 2018, video footage reveals that Portobanco is seen entering the unit with a large black bag and backpack at 1:41 a.m. and exiting the unit with no bags at 1:41 a.m. At 1:43 a.m.

Portobanco and Suman, with a backpack and a motorcycle helmet in hand, are seen entering the unit. At 3:17 a.m. Portobanco and Suman, both carrying backpacks, and Suman with a motorcycle helmet in hand, are seen exiting the unit. At 11:44 a.m., Portobanco is seen entering the unit with a key and carrying a black backpack. At 11:45 a.m., Portobanco is seen exiting the unit without a black backpack. At 11:48 a.m., Suman has a black backpack and enters the unit with Portobanco. Portobanco uses a key. At 11:57 a.m., Portobanco exits with a large black duffle bag. At 11:59 a.m.

Portobanco is seen entering the unit using a key without a large black duffle bag. At 12:15 p.m. Portobanco is seen exiting the unit with a black suitcase and backpack. At 3:14 p.m. Suman is seen exiting the unit using a key on the door and wearing a black backpack. At 4:29 p.m., Suman enters the unit with a black backpack using a key to enter the premises. At 5:22 p.m. Suman exits the premises using a key on the door. At 5:34 p.m., Suman enters the unit using a key and with a black backpack. At 11:54 p.m., Suman exits using a key on the door. At 11:56 p.m., Suman enters the unit with an unknown female.

He uses a key. At 1:00 a.m., on July 8, 2018, the unknown female exits the apartment. She is not observed locking the door. At 4:17 a.m. Suman exits the apartment alone. He locks the door with a key. [ 16 ] On July 9, 2018, video footage reveals that Suman enters the unit with a black backpack and motorcycle helmet.

He remains inside the unit for 50 seconds before he exits. [ 17 ] No one enters the apartment between July 9 and the search on July 18. [ 18 ] No one is ever seen bringing either of the offending suitcases to the apartment. [ 19 ] Portobanco was arrested on July 18, 2018 and charged with trafficking drugs and possession of the weapons at the apartment. He has since pleaded guilty. [ 20 ] Police surveillance of Suman is continued until his arrest on October 22, 2018. At no time is he seen anywhere near the McAdam apartment and he does not possess a key to it when arrested.

There is no evidence that Suman had learned of the raid on McAdam or Portobanco’s arrest prior to his own arrest. (

c) The testimony of the accused

[21] The accused is a 36-year-old Canadian Citizen. He has an extensive criminal record including convictions for offences ofviolence, participation in a criminal organization, disregard for the administration of justice, weapons and drug possession. He was lastreleased from prison in September 2016. He is single with no dependants. [22] The accused met Portobanco in 2014. They quickly became close friends. Since then they have travelled abroad together fourtimes, most recently to London, England in May 2018.

They roomed together in a small hotel and hurriedly packed their bags together inpreparation for their return to Toronto. Portobanco had the blue suitcase, eventually found full of weapons, on the London trip. Giventhe close quarters, the accused says he must have handled the suitcase at some point. He also opined that, while packing, he must havetouched the plastic baggie that eventually contained the ammunition. [23] In June, 2018 the accused understood that Portobanco was living with his mother and sometimes with a friend. Portobancorented a new apartment and planned to move in.

On June 22, 2018, Portobanco asked the accused to do him a favour. Portobanco askedthe accused to pick up some luggage from Portobanco’s mother’s home and bring it to his new apartment at 16 McAdam. The accusedwas at the Albion Mall when approached for the favour and because it was close to Portobanco’s mother’s place he agreed to help.Shortly before 10 pm he hired an “Uber” and picked up the three bags at Portobanco’s mother’s home and brought them to McAdam. Heand Portobanco then went out for some drinks at a strip club. [24] His next visit to the McAdam apartment was on July 7, 2018 in the early morning hours.

He met Portobanco there, stayed forabout 90 minutes, then accompanied him to an after-hours club. He went home from there at around 7 am then accepted an invitationfrom Portobanco to return to McAdam, arriving there late in the morning. [25] Portobanco said he had some things to do and left the accused alone in the apartment with his key, after coming and going withsome luggage, which the accused thought nothing of. The accused left the apartment on a couple of occasion to look for something to eatand some cigarettes. He also slept. Just before midnight he received a text from a woman he had met the night before.

He invited herover and they had sex. He then left the apartment at around 4 am, locking the door behind him. [26] On July 9 he returned to pick up his phone charger, which he had forgotten there the day before. He used the washroom andleft. Later that day Portobanco came to the accused’s home and picked up his key. [27] As concerns the food storage device, the accused testified that he might have touched the exterior of the device while lookingthrough the cupboards for something to eat.

He denied ever operating it or opening it to access the surface where his fingerprints wereeventually found. [28] The accused never asked Portobanco why he had not yet moved into the apartment. Portobanco never warned the accused tostay out of the bedroom. [29] As for his use of a backpack, the accused testified that he usually, but not always, carries one, in much the same way as womencarry purses. [30] The accused testified that he never went into the bedroom and knew nothing of the offending suitcases, or their contents. C. ANALYSIS (

a) Introduction [31] The law governing my approach to this case has its foundation in R. v. W. D., (SCC), [1991] S.C.J. No. 26. [32] First, the accused is presumed innocent and the burden of proof is on the prosecution throughout. To secure a conviction, theCrown must prove the allegation against the accused beyond a reasonable doubt. [33] Because the accused testified, I must approach the evidence as follows: if I believe Mr. Suman’s denial; I must of course findhim not guilty.

Even if I do not believe him, his evidence alone, or in conjunction with supporting evidence may nonetheless, whenexamined in the context of all the evidence, raise a reasonable doubt. If it does, I must also find him not guilty. If it does not raise areasonable doubt, I must examine the evidence that I do accept to see if it proves the allegations beyond a reasonable doubt. If it does not,the accused must be acquitted. If it does, he must be found guilty. R. v.

W.D., supra. [34] If I do not accept the accused’s denial, I must keep in mind that the Crown’s case against the accused is entirely based oncircumstantial evidence. I must thus determine whether the totality of the circumstantial evidence is rationally inconsistent with anyother conclusion than that the accused had knowledge of the guns and ammunition; in which case he must be found guilty. Put anotherway, I must ask myself if there is a reasonable, innocent explanation for the body of circumstantial evidence, even if that explanation isnot founded on the evidence. If so, I must acquit. R. v.

Villaroman, 2016 SCC 33 at para. 13. (

b) The testimony of the accused [35] There is one glaring problem with the testimony of the accused and it relates to his account of his dealings with the shrink wrapmachine. Mr. Suman’s fingerprints were on a part of the machine that would only be accessible to his fingers if he did more than what headmitted to doing with it. That inconsistency, along with his extremely serious criminal record (which is relevant only to his credibility)make it such that I am not convinced by his denial. [36] I must then examine his evidence in the context of all the evidence. If this examination leaves me with a reasonable doubt hemust be acquitted. (

c) An examination of the entirety of the evidence

[37] The most significant evidence implicating the accused is the fingerprint evidence. [38] His prints are on the exterior of the blue suitcase and on the exterior of one of the interior plastic bags containing ammunition.The strength of this evidence is blunted by the accused’s explanation as to the circumstances of his trip to London with Portobanco. Thathe did indeed take that trip is supported by the surveillance evidence.

That the two stayed together in a small hotel room and hurriedlypacked to leave is quite plausible and would make the deposition of the accused’s prints on the two bags a reasonable possibility. Thereis no evidence that the pattern of distribution of the prints is inconsistent with the accused’s explanation. [39] As for the prints on the food sealer, as stated above, I do not believe the accused’s explanation, but the inference of guilt arisingfrom the presence of the prints is not very strong. No evidence was led to suggest that there is anything nefarious about use of the foodsealer.

The Crown argues that the presence of the prints on an inside surface leads to the conclusion that the accused used it and was thusmore involved with the use of the apartment than he let on.

The accused’s presence in the apartment is already well demonstrated in theevidence, and in my view, his use of the food sealer does not add to the inculpatory nature of this body of evidence. [40] The evidence of the accused’s attendance at the apartment, when examined in the context of the entirety of the surveillanceevidence, loses much of its strength. [41] The accused is alleged to be in a joint criminal venture with Portobanco, yet has very little to do with him over the long periodof surveillance. He is never seen with Portobanco between December 2017 and May 2018.

Unlike Portobanco, the accused rarely goes tothe apartment and never goes there alone. Apart from his one-day sojourn there, he doesn’t have a key. [42] The accused is never seen bringing the suspect suitcases to the apartment. He is not found in possession of the keys to thelocked suitcases. June 22 is the only date when he is seen transporting suitcases to the apartment, but there is no evidence they containedcontraband.

In fact, one of them was found by police upon the search of the apartment and it did not contain contraband at that time.Even though the accused was under surveillance for this period, there is no evidence that he attended at 16 McAdam between July 9 andhis arrest more than three months later. [43] The Crown argues that Portobanco would not have trusted the accused with a key to the apartment and left him thereunattended for so long if the accused were not a party to the possession of the weapons. I do not find this argument persuasive.

Theweapons were in locked suitcases, in a closet in an empty unfurnished bedroom. That Portobanco might have trusted the accused not topry into his private affairs in the bedroom aligns with the accused’s testimony that they were good friends. D. CONCLUSION [44] After having considered the strengths and weaknesses of the witnesses’ testimony, along with the documents filed as exhibits, Iam left unsure whether the accused had knowledge of the contraband. This state of uncertainty is what it means to have a reasonabledoubt. R. v. Lifchus, (SCC), [1997] S.C.J.

No. 77 at para. 39. [45] Accordingly, the charges are dismissed, and Mr. Suman is acquitted on all counts. Released on December 12, 2019 __________________________ Justice Russell Silverstein