R. v. Bair, 2019 ONCJ 445

ONTARIO COURT OF JUSTICE CITATION: R. v. Bair , 2019 ONCJ 445 DATE: June 20, 2019 COURT FILE No.: 4811-18-15001885-00 4811-18-15001887-00 4817-19-75001125-00 4817-19-75001124-00 BETWEEN: HER MAJESTY THE QUEEN — AND — DORANT BAIR Before Justice R. Rutherford Heard on April 9, 10, 29, 30 2019 & May 1 2019 Reasons for Judgment released on June 20, 2019 E. Marrocco.......................................................................................... counsel for the Crown J. Struthers & A. Pinnock.................................................... for the defendant Dorant Bair Rutherford J .: [ 1 ] Mr.

Bair stands charged with multiple drug and firearms offences. At the outset of the trial counsel on behalf of Mr. Bair brought an application to quash the search warrant. [ 2 ] Mr. Struthers and Ms. Pinnock further argued that Mr. Bair’s s. 8 Charter right to be free from unreasonable search and seizure was violated, therefore, all items seized should be excluded pursuant to 24(2) of the Charter of Rights and Freedoms. The Search Warrant and Charter Application [ 3 ] Mr. Struthers submits there are no reasonable and probable grounds for the issuing justice to have authorized the search warrant.

He argues the police did no investigation to corroborate the information provided by the two confidential informants. Mr. Struthers argues that the issuing justice in the circumstances should have been suspect of the credibility and reliability of the information provided. Mr. Struthers lastly argues that because there are no objectively reasonable facts upon which the police could rely, the information provided to the issuing justice was neither compelling nor credible. [ 4 ] On April 29, 2019 I dismissed the application with reasons to follow. I will now set out my reasons. The Facts

[ 5 ] On March 12, 2018 a Justice of the Peace granted a warrant to search 2215-325 Bleeker Street in the City of Toronto. The Information to Obtain (ITO) was sworn to by Police Constable Bogal. It incorporated the contents of a previously sworn ITO.

That warrant was denied on March 3, 2018 by Justice of the Peace Rotundi. [ 6 ] The ITO contained information from two confidential sources and was heavily redacted to conceal the identification of both confidential sources. [ 7 ] The warrant was executed on March 12, 2018. [ 8 ] Police seized three handguns, a magazine, cocaine, approximately $4000.00 in Canadian currency, digital scales, two cellular phones and identification in Mr. Bair’s name. Two of the firearms, the ammunition and a prohibited device were located in a plastic zip lock bag in a hole in one of the walls of the unit.

The third firearm, cocaine and money were found in a lockbox in a bedroom. In the same bedroom, in a dresser drawer, the police located a quantity of cocaine. [ 9 ] Mr. Bair was located in the unit and was arrested without incident Process on the Charter and Garofoli Application [ 10 ] Prior to commencing the application Crown counsel Ms. Marrocco conceded that the ITO in its redacted state did not disclose reasonable and probable grounds to believe that the items listed in the warrant would be found in the unit. She provided a

summary of the ITO to the Applicant. [ 11 ] The Applicant was not satisfied with the

summary. Counsel argued the judicial

summary did not allow the Applicant to make informed submissions. The Applicant sought leave to cross examine the affiant and sub affiant. [ 12 ] At the commencement of the trial both parties agreed that the case should proceed to a “Step 6 Garofoli”. I was provided with a copy of the unredacted ITO. [ 13 ] I held an in camera hearing with Ms. Marrocco. Submissions and a discussion took place. I made edits to the judicial

summary. A new judicial

summary, exhibit 4, was provided to the Applicant. [ 14 ] Upon review of Exhibit 4 Mr. Struthers submitted that the source was a police agent and not an informant and accordingly did not enjoy the same privileges as those of a confidential informant. He argued the case against Mr. Bair should fail. [ 15 ] I held another in camera hearing with the Crown. I heard submissions and reviewed an affidavit from the informant’s handler. The affidavit is a sealed exhibit on the Charter application.

Based on the submissions and information I was given I was satisfied on a balance of probabilities that the informant was not a police agent and that the source continued to enjoy the privileges of a confidential informant. [ 16 ] Mr. Struthers and Ms. Marocco then made submissions on the sufficiency of the contents of the judicial

summary. Part way through submissions Mr. Struthers conceded the

summary was sufficient and submissions were made on the Charter application. [ 17 ] Ms. Marocco and Mr. Struthers agreed to the following: 1. There was no police corroboration by observation of Mr. Bair. 2. The police did not execute the warrant in accordance with the procedure and terms set out by the issuing justice. The police did not wait for the possibility that Mr. Bair could be located outside of the unit before executing the warrant. [ 18 ] Mr. Struthers withdrew the application to cross-examine the affiant and the sub affiant. The Garofoli Hearing-The Law

[19] The test is well settled. Search warrants are presumptively valid. The defence has the onus of demonstrating on a balance ofprobabilities that s. 8 of the Charter has been breached due to the invalidity of the warrant. [20] On review the question becomes whether there was sufficient credible and reliable evidence before the issuing justice that couldenable her/him to find reasonable and probable grounds to believe that an offence had been committed and that evidence of the crimewould be found at a specified place and time.

It is not the Court’s job to substitute its own opinion for that of the issuing justice. Whatthe Court must do is look at the record and determine whether it is satisfied that the issuing justice could have issued the warrant. Ifsatisfied then the test has been met. [21] The standard for making this determination is one of credibly based probability. There must be more than an experienced basedhunch or mere suspicion.

There must be a reasonable probability or a reasonable belief. [22] Where, as in this case, the reasonable grounds are based largely on information from confidential sources, I must consider the testset out in R v. Debot (SCC), [1989] 2 S.C.R. 1140. Three criteria must be considered. Is the information: 1. Compelling; 2. Credible; 3. Corroborated through independent investigation. [23] In determining whether the information is compelling the Court will consider whether the information is first hand, or whether itis rumour or hearsay. Is the information detailed?

The more details provided the more compelling the information will be. Is theinformation specific or is it more common place? If it is common information then it is unlikely to be compelling. Is the informationcurrent or does it detail past information with no emphasis on the present? The more current the more compelling. [24] To determine whether the information is credible the reviewing justice will look to whether the source is past proven. What isthe track record of the source? Has past information proven to be accurate? Does the informer have a criminal record? Are thereconvictions for crimes of dishonesty?

What is motivating the informer to provide the information? Is the information being providedknowing that no benefit will follow unless the information is accurate? [25] Lastly the reviewing justice must consider whether the police have conducted an investigation that corroborates any of theinformation provided by the confidential source. Corroboration of commonplace information or conduct is not as persuasive as morespecific or “inside” information. However there may be occasions when innocent details will enhance the overall credibility of thesource alleviating the need for other corroboration.

What the reviewing court must consider is whether the information is corroborated toa degree that is reasonable in the circumstances. [26] Inquiries into the three Debot factors need not be done in isolation. As set out in R v. Iyeke 2016 ONSC 7120 (Sup. Ct. Jus.) andR. v. Greaves-Bissesarsingh [2014] O.J. No. 3892 ( Sup. Ct. Jus.) strength in one of the Debot criteria may offset weakness in another.The reviewing justice must therefore consider the totality of the circumstances when determining whether the information provided tothe issuing justice was compelling, credible and corroborated.

Analysis [27] When I consider the totality of the circumstances I find that the information provided to the issuing justice was sufficient toauthorize a search of the premises at 2215-325 Bleeker Street. [28] The information from both sources is sufficiently compelling. [29] The information provided by Confidential Source 1 was detailed and current. The source had direct dealings with Mr. Bair andwas able to identity him by a photograph. The source provided details about prior drug transactions between them. The issuing justicehad information about a particular cocaine transaction that occurred between Mr.

Bair and the source including when it took place. Thesource had personal information about Mr. Bair, which included details of associates, vehicle information and a location.

[30] Confidential Source 2 also provided detailed information about Mr. Bair. This information in combination with the informationprovided by confidential source 1 would assuage any concern the issuing justice would have regarding the compelling nature of theinformation. [31] I also find the information provided to the issuing justice was credible. Confidential source 1 has been used by the police on prioroccasions and is registered with a police service. The source has been proven reliable and has not been found to have provided misleadinginformation in the past.

The issuing justice had information surrounding the details of past use. Although source 1 was motivated bymoney the source was cautioned about providing misleading information and was told that no benefit would occur unless theinformation was accurate. [32] The same caution was given to confidential source 2. I am mindful that this source is not past proven reliable. This could havethe effect of undermining the credible nature of the information.

In this case however the issuing justice had sufficient details of thesource’s information which when combined with the information from confidential source 1 meets the standard of reasonably credibleinformation. [33] I also find that the information provided to the issuing justice was reasonably corroborated. I say this knowing that at no timeprior to the execution of the warrant did the police ever observe Mr. Bair or attempt to set up an undercover drug purchase.

Anyobservations of this nature would obviously assist in corroborating the information from the sources. [34] In this case the issuing justice was told the police could not remain covert in the targeted area. It is an area where drug usersfrequent and are suspicious of new people. I accept that this would make it difficult for covert surveillance. Corroboration however doesnot necessarily demand that police make observations or take up surveillance on the target. Corroboration can occur in other ways. In R v.

Rocha (2012) 2012 ONCA 707 , 112 O.R. (3rd) 742 the Ontario Court of Appeal held at paragraphs 22 and 23: “The police will rarely be able to confirm the tip to the extent of having observed commission of the offence and that level ofconfirmation is not required. In a very short judgment in R v. Caissey, 2008 SCC 65, [2008] 3 S.C.R. 451, [2008] S.C.J. No. 66, theSupreme Court of Canada said the following [at para.2] : The dissenting judge advanced the view that only corroboration of some criminal particular of the offence offered the necessaryassurance for the issuance of the warrant.

This is the question of the law that brings the appeal before us. On this issue, we agree with thetest adopted by the majority. In the Alberta Court of Appeal, the majority described the independent confirmation as “the police independently confirmed a number ofdetails, including the identity of the appellant and his residential address, that no children lived in the home, the name of his roommate,and the description of his vehicle”: R v. Caissey, [2007] A.J. No. 1342, 2007 ABCA 380, at para.25. In that case, the informer claimedto have seen a large [page 752] quantity of drugs in the appellant’s apartment.

Thus, the details confirmed by the police tended to showthat the informer had actually been in the apartment even though they did not on their own show that the appellant was in possession ofdrugs. “ [35] Accordingly consideration must always be given to the totality of the information that was provided to the issuing justice. [36] In this case there are two confidential sources. When I consider the entirety of the information provided by both sources I findthat there was reasonable corroboration to support the issuance of the warrant.

I am not permitted to set out further details because theidentity of the confidential sources could be revealed. [37] In all of the circumstances the issuing justice had reasonable and probable grounds to issue the warrant to search Unit 2215- 325Bleeker Street. The Substantive Charges [38] Detective Constable Greaves and 5 others attended 325 Bleeker Street to search Unit 2215. None of the officers knew Mr. Bair

nor had they ever seen him in the past. [ 39 ] Detective Constable Greaves testified there was a lot of property strewn around the apartment. There is a videotape depicting the state of the unit. [ 40 ] Upon entry he testified that Detective Constable Bogol immediately approached Mr. Bair. Mr. Bair was in bare feet and was wearing boxer shorts. Officer Greaves arrested Mr. Bair for possession for the purposes of trafficking in cocaine. He provided Mr. Bair with rights to counsel. He asked Mr. Bair whether he understood those rights. The defendant responded that he did.

Officer Greaves asked him whether he would like to speak to a lawyer. Mr. Bair answered in the affirmative. Officer Greaves knew that Mr. Bair wanted to speak to a lawyer. Mr. Bair was cautioned. [ 41 ] Officer Greaves described Mr. Bair as cooperative. He appeared to understand what was being said to him. Officer Greaves testified there were no issues surrounding Mr. Bair’s arrest. [ 42 ] Just after the arrest and caution Officer Greaves asked whether there was anything in the apartment that could harm the police. He was concerned about officer safety particularly officers coming into contact with fentanyl.

He was also concerned there may be weapons or booby traps in the unit. He testified this type of question is often asked during a search of this nature. [ 43 ] Mr. Bair responded that there was a lot of stuff in the apartment. He told Officer Greaves that there were guns in the wall. He gestured with his head towards the wall at the entranceway. He also said there were guns in the safe. [ 44 ] Officer Greaves observed a hole in the drywall by the entranceway. The hole was covered by a shutter. Inside the wall was a plastic bag with two unloaded firearms, two unloaded magazines and ammunition.

He testified that given the nature of the search the police would have located the guns and ammunition without being told of their location. He testified that it was not difficult to move the shutter away from the hole. [ 45 ] Officers Greaves and Bogol searched bedroom 1. Officer Bogol located another firearm, drugs and currency from a safe in the closet. [ 46 ] Officer Greaves seized a black Samsung cellphone from the bed and a white powder, he believed to be a cutting agent, from the bottom left dresser drawer in the bedroom. [ 47 ] He also observed several pairs of men’s jeans.

They appeared to be over size 30. He agreed that some still had the tags on them. He observed no women’s clothing or any other female items in the unit. [ 48 ] Officer Nishikawa described Mr. Bair as cooperative, polite and calm during and subsequent to his arrest. Officer Nishikawa stayed with Mr. Bair. [ 49 ] He observed 3 pairs of different coloured size 11 NIKE shoes in the living room. He observed no female shoes. The officer testified that he observed a photograph of Mr. Bair with a female and young child in the living room in a case. He seized a cellphone and Mr. Bair’s driver’s licence.

The two items were together. The driver’s licence displayed a different address. [ 50 ] Officer Nishikawa looked inside a closet and observed only men’s jackets. [ 51 ] Officer Bogol testified that he was the first officer who entered the apartment. He testified Mr. Bair exited the bedroom slowly with his hands up. Mr. Bair was immediately arrested. He described Mr. Bair as cooperative and nice. Officer Bogol testified there was no problem with communication and that Mr. Bair appeared to understand what was happening. [ 52 ] Officer Greaves told Detective Constable Bogol there was a firearm in the safe.

Officer Bogol searched the bedroom and found the safe. The safe was locked and was located on top of a dresser drawer in the closet. Officer Bogol testified the key was in plain view and was the only item on top of the safe. Upon opening the safe he found a revolver, a large amount of cash and two clear sandwich bags of cocaine.

[53] Officer Bogol described the bedroom as messy. He observed men’s clothing in the closet however he made no notation of thesize. [54] Officer Bogol searched another dresser in the bedroom. On top of the dresser he observed what appeared to be a man’s watch, ablack wallet containing identification in Mr. Bair’s name and a 2014 expired passport also belonging to Mr. Bair. The officer testifiedthat none of the identification found displayed 325 Bleeker Street as Mr. Bair’s address. There was also a digital scale. He could not sayhow close it was in relation to the identification.

He found no other documents that belonged to anybody else. [55] Officer Bogol testified that upon searching inside the dresser drawer he found what appeared to be crack cocaine. [56] He agreed that no DNA or fingerprints were taken from the premises or from any of the items seized. [57] The police searched the apartment for about two hours. The Statement - Voluntariness and Charter - 10 (

b) and 24(2) Was Mr. Bair’s utterance to Officer Greaves Voluntary? [58] The crown must prove beyond a reasonable doubt that Mr. Bair’s utterance was voluntary, namely, it was free from pressure,threats or promises made. [59] Mr. Struthers argues the question “Is there anything in the apartment that would harm us” is a human level inducement. Heargues that by posing the question Officer Greaves was appealing to Mr. Bair’s humanity to ensure the police were safe during thesearch. Mr. Struthers argues from a public policy perspective citizens should be encouraged to look out for one another.

Informationrelating to personal safety should not be withheld from a person asking for help. [60] Mr. Struthers argues that in situations such as this one the Court should encourage police safety, namely, a defendant should nothave to choose between concern for self- incrimination and police safety. For this reason Mr. Struthers submits the question posed byOfficer Greaves was an inducement. [61] Mr. Bair was described by all officers as cooperative. He put his hands up as soon as the police entered the unit. He was politeand compliant. At no time did he try to resist the arrest.

He was immediately arrested and said that he wanted to speak to a lawyer. BothOfficers Greaves and Bogol understood and were going to ensure that a lawyer would be contacted for Mr. Bair. [62] The police made it clear upon entry that they were there to search the apartment. They had a valid warrant to search for drugs.The search began immediately. They knew there was a possibility that weapons could be found. In this case the purpose for OfficerGreave’s question was to ensure police safety, namely to ensure that no officers were harmed by anything unexpectedly found in thesearch. [63] Mr.

Bair immediately told Officer Greaves there were firearms in the wall and in the safe. Mr. Bair was not pressured to answer.The question was only posed once. Neither Officer Greaves nor any other police officer were aggressive or overly physical with Mr.Bair. Officer Bogol, the first officer to confront Mr. Bair did not have his gun drawn. Officer Greaves did not think his gun was drawn. [64] The arrest was uneventful. Officer Greaves did not suggest to Mr. Bair that he was going to receive anything in return foranswering the question. He was not offered leniency. Mr.

Bair had been cautioned prior to answering the question. He was under nocompulsion to answer the question. He chose to answer it. The utterance was voluntary. Was there a 10(

b) violation and should the statement be excluded pursuant to 24(2). [65] Upon arrest Mr. Bair asserted his right to counsel. The police must hold off questioning him until he has been able to exercise orimplement his right to counsel. (R v. Manninen (SCC), [1987] 1 S.C.R. 1233 and R v. Prosper (SCC),[1994] 3 S.C.R. 236)

[66] After arrest and after knowing that Mr. Bair wanted to exercise his right to counsel the police posed a question to Mr. Bair. Heprovided a potentially incriminating response. [67] The SCC in Manninen, supra, suggests that questions that are not investigatory in nature are not prohibited. At paragraph 23 LamerC.J. states: Further, s. 10(

b) imposes on the police the duty to cease questioning or otherwise attempting to elicit evidence from the detainee until hehas had a reasonable opportunity to retain and instruct counsel. [68] In R v. Dupe 2010 ONSC 6594 , [2010] O.J. No. 5757 Dambrot, J. found that responses to questions asked for non-investigatory purposes did not violate the defendant’s 10(

b) right. In that case Mr. Dupe was charged with murder. While under arrestand while at the police station Mr. Dupe was asked a series of questions by the booking sergeant. The booking sergeant made aconscious decision not to ask questions that could impinge on the reasons for the defendant’s arrest. At trial the Crown sought to lead theutterances in an attempt to undermine the defendant’s defence of diminished capacity. Dambrot, J held that the questions were not of aninvestigatory nature. They were asked to ensure Mr. Dupe’s safety and were asked after seriously considering Mr.

Dupe’s Charter rights.The Court found that at the time of the questions Mr. Dupe was not of the view that any of the questions would be relevant to the issue ofdiminished capacity. Dambrot, J. found there was no 10(

b) violation. He states at para 24 “Questioning to assist the accused to exercise his rights, preserve his property, provide care for his family, or protect his health and safety or the health and safety of others, just to name the most obvious examples are not prohibited by the language in Manninen. Norshould they be. Prohibiting such questions would not enhance the purpose of s. 10(b). An accused does not require the advice of counselto assist him or her in determining how to answer the questions, while the best interests of not only the accused but those around himdemand that they be asked.

An accused only requires the advice of counsel to assist him or her in determining how to answer thequestions designed to elicit incriminatory evidence, or at least to elicit evidence relating to the offence under investigation.” [69] Dambrot, J. referred to other authorities in coming to this conclusion. [70] In R v. Smith (2007) (ON SC), 163 C.R.R. (2nd) 41 (Ont. S.C.) Trafford J. agreed that Manninen does notstand for the proposition that all police questioning must stop once a defendant asserts their 10(

b) right. He finds that questions askedduring the booking process are often proper and necessary and are normally not asked for the purpose of eliciting incriminatingevidence. He finds however that when proper non-investigatory questions elicit an incriminating response Courts must be cautious. Hesays at para 71: “Upon arrest, the defendant told Constable Correa that he wanted to speak to duty counsel.

Section 10(

b) of the Charter required thepolice to cease questioning the defendant or otherwise attempting to elicit evidence from him until he had a reasonable opportunity toobtain advice from counsel about exercising his rights. See R. v. Manninen (1987), (SCC), 34 C.C.C. (3d) 385 (S.C.C.).No such opportunity was given to Mr. Smith before he spoke to Sergeant Suddes. He was instructed, or otherwise implicitly required, toanswer her questions which, on their face, were innocent ones not related to the alleged murder.

Those questions were asked to properlycare for the medical condition of the defendant and the safety of all persons in the station. In my view, R. v. Manninen, supra, does notprohibit such questions for such purposes. However, it does prohibit any questions of an investigative purpose and, in my view, thesubsequent use of any answers by the defendant to any question of the booking officer asked to care for the health or safety of people inthe station. These circumstances undermined the defendant's right to choose to speak about the alleged murder. His responses areconscriptive evidence.

The breach is a serious one. The reputation of the administration of justice will not be adversely affected by theexclusion of a statement that is inaudible. The voluntariness of this, the third, statement by the defendant has not been proven beyond areasonable doubt and, in any event, as it was obtained in violation of s. 10(

b) of the Charter, it is excluded under s. 24(2) of the Charter. [71] Ms. Marrocco argues the statement was not elicited for investigatory reasons and in no way breaches Mr. Bair’s 10(

b) right. Shepoints out that the statement is evidence of knowledge and control and should be admitted for the truth of its contents. She submits thatit was not asked for the purposes of obtaining a confession. The Crown urges the Court to accept and adopt the reasoning of Dambrot, J.in Dupe, supra and admit the statement. [72] Officer Greaves wanted to know whether there was anything harmful in the apartment. In his mind he was concerned an officercould accidentally touch or come into contact with fentanyl and/or weapons, things that could pose a danger to the police.

When he askedthe question Detective Constable Greaves was not trying to elicit incriminating evidence. [73] Police officers have a right to be safe during the execution of their duties, especially in an investigation of this nature. Thepassing of information to police officers that allows them to do their job safely must be encouraged particularly from the individuals whohold that knowledge. Any decent society would insist upon this for public safety reasons. The question posed by Officer Greaves

therefore was entirely appropriate in order for him and his colleagues to safely search the premises. [74] Having said that I find the facts and circumstances in this case to be distinguishable from those in Dupe, supra. Unlike Mr.Dupe, Mr. Bair was not at a police station. He was not being asked typical or standard booking questions that concerned his health or anyexisting medical condition. He had just been placed under arrest in an apartment unit that was in the process of being searched for drugs.There were several officers in the apartment conducting the search.

He told Officer Greaves that he wanted to speak to a lawyer. Mr. Bairwas advised that he could speak to a lawyer at the police station. Mr. Bair was cautioned about saying anything in answer to the charge.He remained silent when he was cautioned. This suggests that he had nothing to say. The police understood that they were to hold offquestioning Mr. Bair about the investigation because any responses may hold no evidentiary value. [75] The question posed had nothing to do with Mr. Bair’s medical condition nor with whether the recent consumption of alcohol ordrugs compromised his health.

The question went right to the heart of the investigation. The question put Mr. Bair in a position of havingto choose between potentially endangering the police and potentially incriminating himself. Mr. Bair could easily have gotten legaladvice before answering this question. In these circumstances the question, although not improper, had the effect of elicitingincriminating evidence. [76] Mr. Bair chose to protect the police at his own expense. An arrestee should not have to be put in this position. The public expectsand demands that police officers are safe when they execute their duties.

At the same time the public expects that rights and freedoms setout in the Canadian Charter of Rights and Freedoms, particularly the right to counsel is upheld in a meaningful way and is not eroded.Right to counsel is a cornerstone of the Charter, therefore any public policy that deals with police safety should not have the direct effectof undermining an individual’s right to counsel. Society expects and wants a serious trial such as this one to be litigated on its merits butnot in a manner that compromises such a fundamental right. [77] Officer Greaves asked an appropriate question.

He was given an answer that assuaged any police concern about safety. To nowuse the statement against Mr. Bair not only undermines his right to counsel and right to have the police hold off on questioning but it alsohas the effect of undermining future safety for the police in similar circumstances. It would cause future defendants to think twice beforedeciding to protect the police. I find that there was a 10(

b) violation and I find the breach to be a serious one. Pursuant to R v. Grant 2009SCC 32 , [2009] 2 S.C.R. 353, for the reasons I have stated the statement is excluded pursuant to s. 24(2). Knowledge and Control [78] Ms. Marrocco submits the Crown has proven beyond a reasonable doubt that Mr. Bair had both knowledge and control of all thecontraband found in the apartment unit. She argues the circumstantial evidence when assessed as a whole establishes guilt. Ms. Marroccorelies upon the Supreme Court of Canada decision in of R v. Villaroman 2016 SCC 33 , [2016] S.C.J. No 33. [79] Mr.

Struthers argues the Crown has failed to prove that Mr. Bair was in possession of the contraband. He submits there is a lackof evidence establishing that Mr. Bair was the tenant of the premises. He argues the contraband was not in plain view, that Mr. Bair’sdriver’s licence listed a different address, and there is an absence of fingerprint or any other forensic evidence linking Mr. Bair to theapartment or to the contraband. Mr. Struthers points out there is also an absence of evidence of observations of Mr. Bair going in and outof the residence. He urges the Court to dismiss the charges against Mr.

Bair. [80] In the case of Villaroman, supra, the Supreme Court held that in a circumstantial case the Court must consider other plausibletheories or reasonable possibilities which are inconsistent with guilt, however those other possibilities must be based on logic andexperience and not on speculation. At paragraph 38 the Court states: Of course, the line between a “plausible theory” and “speculation” is not always easy to draw.

But the basic question is whether thecircumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other thanthat the accused is guilty. [81] I find that the circumstantial evidence in this case supports a reasonable inference that Mr. Bair lived in and occupied theapartment unit. [82] The police arrived around 9 PM. Mr. Bair was coming out of the bedroom. This room was the only room in the apartmentwhere one could comfortably sleep. The bed was not made. Mr. Bair was barefoot and was in his boxer shorts, a typical form of dress forsleeping.

Logic dictates that Mr. Bair was either sleeping or was going to go to sleep in that room. His wallet was on the dresser along

with his 2014 expired passport, a document that one would expect to be found in one’s home. The only clothing in the room was men’s clothing, including a number of large sized pants. Mr. Bair is a large man, therefore the pants could logically be his. Multiple pairs of size 11 NIKE shoes were also seen in the apartment. They also could belong to him. No women’s shoes or clothing were seen anywhere in the apartment. [ 83 ] There was a single photograph of Mr. Bair, a woman and a child displayed in the living room.

A photograph of this nature is personal and is often displayed out of affection and often in one’s home. [ 84 ] Mr. Bair’s driver’s licence was located in the living room. It was separated from the other identification. This demonstrates that Mr. Bair had access to other rooms in the unit and was free to leave personal identification anywhere he wanted. Although the drivers licence lists an address other than the Bleeker Street address there are reasons why a different address is listed. A person can forget to file a change of address when they move.

For security reasons a person could have a protected address whereby a different address is displayed. [ 85 ] When I consider all the circumstantial evidence I find that a reasonable inference can be drawn that Mr. Bair was the lone male occupant of the apartment and would therefore have the requisite knowledge and control of the contraband found during the course of the search. [ 86 ] Keeping Villaroman, supra, in mind I must also consider whether the circumstantial evidence when viewed logically is reasonably capable of supporting inferences other than the guilt of the accused.

Is there an alternative explanation, namely was Mr. Bair a visitor or guest? [ 87 ] The search took place in the evening. Mr. Bair was in his boxer shorts and was in the bedroom. His wallet with identification along with an expired passport were on top of the dresser in the room. It is not unusual for an overnight guest to sleep in the only bedroom of an apartment. Logic suggests that before going to bed the guest would likely place their wallet and watch on top of the dresser rather than placing it inside a dresser drawer. A dresser holds personal items and clothing.

Even a trusted guest would not be expected to open drawers of a dresser. The fact that Mr. Bair’s expired passport was on the dresser, although unusual, can mean different things. He may be transporting it from one place to another. He may have left it there on a prior occasion. Given the circumstances I find these inferences to be reasonable and not speculative. [ 88 ] The digital scale was not directly beside or on top of or underneath the wallet or passport. It could have been there for a long period of time. There is no evidence that any fingerprints, including Mr.

Bair’s, were found on the scale. [ 89 ] There is no evidence of the size of the jeans or any of the other clothing found in either the closet in the bedroom or in the closet in the hallway. Other than the officer’s evidence that Mr. Bair is a large man there is no evidence of Mr. Bair’s actual size. There is no evidence that any of the clothing actually belonged to him or fit him. The clothing could belong to another male person, perhaps the resident of the unit. [ 90 ] The apartment can only be described as a mess. Whoever lives there is obviously untidy.

Reason suggests that a tenant would not want a guest to stay in an apartment in this state however friends and family are often the exception. People have different levels of tolerance for cleanliness. It is not unreasonable to infer that a family member or friend would be unwelcome. [ 91 ] The photograph of Mr. Bair found in the living room is personal and suggests that Mr. Bair has a personal connection with the unit. That connection however could logically include a friend or relative. It is not unusual for people to keep photographs of other loved ones in their family home.

This is a single photograph, not a collection of photographs. It is consistent with a friend or family member wanting to display a photo of a person close to them. In other words whoever lived there could have a close relationship with Mr. Bair. [ 92 ] There is no evidence of observations of Mr. Bair in the unit, around the unit, or coming and going from the unit. The police had no prior interaction with Mr. Bair. There is no evidence that Mr. Bair was named on the lease to the unit. There is no fingerprint or DNA evidence linking Mr. Bair to the drugs, the guns or the money seized. There is no evidence that Mr.

Bair had keys to the apartment. The address on Mr. Bair’s driver’s licence is different from the apartment unit suggesting that he lives somewhere else. All of this supports the inference that Mr. Bair did not live in the unit. [ 93 ] The drugs, firearms, ammunition and currency seized by the police were not in plain view. They appeared to be hidden. As I set

out earlier a trusted friend or guest would not be reasonably expected to open and look at the contents of a locked safe, to look through drawers inside a bedroom dresser or look into a hole in the wall. [ 94 ] When I consider all of the evidence I find that there is a reasonable and logical alternative explanation for the circumstantial evidence. The fact that Mr.

Bair may be a guest may not be the most likely explanation but nonetheless I find it to be in keeping with human experience and logic and is not speculative in the circumstances. [ 95 ] For these reasons I am not convinced beyond a reasonable doubt that Mr. Bair had the requisite knowledge and control of the contraband found during the lawful search at 325 Bleeker Street, Unit 2215. The charges are dismissed. R eleased: June 20, 2019 Signed: Justice R. Rutherford