R. v. Kisfalvi, 2014 MBPC 45

R. v. Kisfalvi/Pop Citation 2014 MBPC 45 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) S. Crawley, for the Crown ) - and - ) ) Dennis Atilla Kisfalvi ) J. Prober, for the accused Kisfalvi - and – ) ) ) Sorin Pop ) ) M.

Glazer, for the accused Pop ) ) ) Judgment delivered: November 27, 2014 “In accordance with the application made for an order under s. 539(1), I hereby order that the evidence taken at this preliminary inquiry shall not be published in any document or broadcast or transmitted in any way before the accused is discharged, or, if he is ordered to stand trial, the trial is ended”. MOAR, P.J. [ 1 ] Dennis Atilla Kisfalvi and Sorin Pop are jointly charged with the offence of possessing cocaine for the purposes of trafficking in cocaine stemming from an investigation that occurred on March 17, 2008. Mr.

Kisfalvi also faces an additional charge of possession of proceeds of crime, being the Canadian currency, that was discovered during the execution of a search warrant at his 206 Kingston Row residence. [ 2 ] The matters before the court are indictable proceedings and this is the preliminary hearing into that matter. Publication Ban [ 3 ] A publication ban pursuant to s. 539(1) of the Criminal Code of Canada is in place. Admissions [ 4 ] At the outset of the proceedings the following admissions were agreed upon for the purposes of the preliminary hearing:

a) That 171 Kingston Row and 206 Kingston Row are residences owned by Dennis Kisfalvi (“Kisfalvi”).

b) The jurisdiction of this court is admitted.

c) The nature of the substances seized are admitted to be cocaine and benzocaine.

d) The observations of the surveillance team can be testified to by the appointed scribe.

e) There were no fingerprints found on any of the items that were seized by police. Rena Regina Irene Kisfalvi [ 5 ] The first witness called by the Crown was Rena Regina Irene Kisfalvi. She is the sister of the accused, Dennis Kisfalvi, and at the time of her testimony was resident at an address other than either of the two homes that were the subject of the search warrants executed on March 18, 2010. [ 6 ] However for the fifteen year time period of March 8, 1994 to March 2009, she testified to living with her brother, Dennis Kisfalvi at 206 Kingston Row.

She described that residence as having three bedrooms with a sunroom located up on the second floor. She confirmed the sunroom was as depicted in the photograph (Exhibit 6, photo 6) shown to her and that both she and her brother had access to that room. [ 7 ] Within the room she recalled there being a desk, computer and a filing cabinet amongst other items. When asked about the filing cabinet in the photograph she advised the court that it was always kept locked and she did not have a key for it, an assertion that was not challenged during the course of cross-examination by either counsel.

In terms of the large quantity of cash that was found in the filing cabinet drawer she stated that it was not her money. [ 8 ] Ms. Kisfalvi identified various items in the room that were either her own or items that she used, which included an orange colored cedar chest, four manila envelopes and a money counter. When asked about a second money counter located in a blue box, she acknowledged having seen it on prior occasions and believed that it came from the Blue Agave restaurant where her brother worked as a promoter. [ 9 ] With respect to Sorin Pop (“Pop”), Ms.

Kisfalvi advised the court she had been introduced to him by her brother and described him as a friend of her brother. At the time the search warrant was executed at 171 Kingston Row she estimated she had known Pop for about one year but could not recall exactly when she first met him. She testified that Pop was resident at 171 Kingston Row in March 2008 and when asked, indicated she knew that as she was told so by her brother.

However, later in her testimony she indicated she recalled seeing him moving into that home and thereafter saw him on a weekly basis at that residence when she would drive by on her way to work. She was able to identify him in the courtroom. [ 10 ] In cross-examination Ms. Kisfalvi testified that she believed Pop moved into that home in July 2007. She was aware that Pop was a long distance truck driver and was also aware that he was absent from the home for varying periods of time because of his work.

However, she was unable to say how many times he was out of town working during the time period of July 2007 to March 2008. Although she testified to him being the only person living at that address she could not say for sure that he did not have a roommate or someone who house sat when he was away from the home. [ 11 ] Ms. Kisfalvi confirmed that she never entered that residence nor could she say how many people may have had a key to the home.

In that regard she was clear that she never possessed a key for that residence. [ 12 ] She testified that she never observed cocaine, benzocaine or scales in 171 Kingston Row and agreed it was not until she met with police on April 29, 2008 that she became aware that cocaine had been found in that home. [ 13 ] Prior to the occupancy of Pop, Ms. Kisfalvi identified a male known to her as Gus as having lived at that home. She did not know who “Gus” associated with or whether he had a criminal record. She believed he lived alone at that address for about one year. Ms.

Kisfalvi had no personal knowledge as to when it was that Pop eventually moved out of that residence. [ 14 ] As for the money counter that was located in the blue box, she testified that she never saw it outside of its box nor did she ever see her brother ever use it. Stefan Schimnowski [ 15 ] Constable Stefan Schimnowski (‘Schimnowski”) testified that he was a member of the Winnipeg Police Service and had been so for twelve years. At the time of this matter he was working with the Organized Crime Unit and was involved in the execution of the search warrant at 171 Kingston Row on March 18, 2008.

Entry to that residence was gained at 0131 hours and his role was as the exhibit officer and his duties involved seizing items that were identified to him by the members conducting the search. He took photographs of the items seized and those photographs are contained within Exhibit six. [ 16 ] Schimnowski described the main floor of the home as having a kitchen, a dining room and a reading room. The second floor had two bedrooms and there was also an unfinished basement that he described as being three rooms that were partially dry-walled. As a

result of the search of the basement police located a hydraulic press in one room, cocaine in the ceiling rafters and a scale and baggie of cocaine in a chest of drawers. [ 17 ] In the southeast corner of the upper floor Schimnowski entered a bedroom that contained a bed, a side table and some clothing. On the side table, he located various letters that were unopened and seized them. In that same bedroom, Schimnowski recalled there was clothing that he believed to be male clothing, none of which he seized nor inventoried. [ 18 ] There was a second bedroom located in the northeast corner of the second floor.

Schimnowski testified that he made no notes concerning that room and took no pictures as nothing was seized from within it. [ 19 ] In terms of the kitchen, Schimnowski conducted the search of that area and located a vacuum pack sealer, in its packaging, inside the stove. That item was photographed, seized and sent for fingerprint examination that later came back negative. [ 20 ] This officer continued his search in the kitchen and in the bottom drawer of the stove he discovered a digital scale that was sent away for testing.

That scale was later found (Health Canada Envelope H2674359) to have cocaine residue on it. [ 21 ] Although initially suggesting to the court that he had located various pieces of identification documents in the name of Sorin Pop in the kitchen this officer later corrected himself and indicated that he believed the items were actually found in the front entrance area. [ 22 ] One of the documents seized was a water bill that was addressed to Sorin Pop at 171 Kingston Row and was noted as being due on December 5, 2007.

There was also a Canadian Passport in the name of Sorin Pop, with an expiry date of February 24, 2010 which had been ordered returned to Sorin Pop prior to this proceeding. The final document located was a Manitoba driver license, with a photograph, in the name of Sorin Pop that had an expiry date of April 19, 2008. [ 23 ] As previously noted, three unopened envelopes were seized from the upstairs bedroom and those were subsequently opened for the first time during the preliminary hearing. The first letter was from the Royal Bank of Canada and was described as a letter thanking him for his application.

It was addressed to Sorin Pop and was dated February 29, 2008. A second letter was from Fort Rouge Plate and Auto Glass Limited and it was described as an invoice addressed to Sorin Properties at 171 Kingston Row.

The third letter was from the credit department of MasterCard thanking him for his application and is dated February 28, 2008. [ 24 ] A search of the southwest corner of the basement by other officers in what was described as a utility room, led to a red hydraulic press being located behind a sheet of wood that had to be moved to make the press visible. [ 25 ] Within a drawer of a chest near the entrance to the laundry room, police located a Ziploc baggie of what appeared to be cocaine. In that same drawer police also located a grey Sunbeam digital scale that appeared to have cocaine residue on it.

That scale was sent for testing and came back (Health Canada Envelope H2674360) as being tested positive for cocaine. The Ziploc baggie was also tested and found to contain fifty-five grams of what was confirmed (Health Canada Envelope H2674346) to be cocaine. [ 26 ] In the laundry room, Constable Conway located a Mosto California Grape Limited pail and upon opening it found it contained six Ziploc baggies, totalling about six kilograms, of Benzocaine (Health Canada Envelope H26743761). He brought the pail upstairs for Schimnowski to seize prior to photographs being taken of it in its originating location.

Constable Conway continued his search of the laundry room and also located a small baggie containing what was later found to be 3.25 grams of cocaine in the ceiling rafters of that room. [ 27 ] Constable McLennan also assisted in the search of the basement and he located a quantity of cocaine within the ceiling rafters in a different area of the basement.

Specifically he found two baggies of cocaine in the east ceiling near the laundry room and testified that the baggies only became visible when he removed a set of ceiling tiles. [ 28 ] In yet another location of the basement ceiling, Constable Conway located what he described as being bundles of sealed packages containing cocaine with a total estimated weight of about three kilograms. These bundles were described as being pressed bricks or solid chunks of cocaine as opposed to the soft cut up cocaine that had earlier been located.

The packaging of each of these bricks was described for the court and each brick had an outer wrapping that this witness described was consistent with the packaging material he found in the oven with the Foodsaver device. [ 29 ] There were no other documents located in the home that were addressed to anyone but Sorin Pop. [ 30 ] In cross-examination Schimnowski was not able to say whether a key or force was used to gain entry to the residence. [ 31 ] Schimnowski confirmed that the search began at 0133 hours and was completed at 0425 hours.

As for the drugs found in the ceiling, this officer could not say how long they may have been there or who had put them there. In terms of the hydraulic press, he again could not say who put it there, when it had been put there and confirmed that there was no evidence indicating that it had been used to press cocaine. [ 32 ] In terms of the bedrooms on the upper floor, Schimnowski confirmed that he did not inventory the clothing he had observed in one of the bedrooms nor did he actually document in his notes that it was male clothing he observed.

As for the second bedroom, Schimnowski had no recollection as to whether it was furnished or not. [ 33 ] The officer again confirmed he was unsure where the driver license, the passport and water bill were found other than they were either found on a table in the front entrance or in the kitchen. [ 34 ] With respect to the cocaine located in the basement rafters, it was described as being a single baggie of cocaine that was visible from the stairway when you are walking down into the basement. There was no cash and no score sheets located by police during this search of the home.

[ 35 ] In questioning from Mr Prober, Schimnowski confirmed that there was no bill located during this search that had the name of Dennis Kisfalvi. In addition it was also clarified there were no other clothes samples found in the home that would have been consistent with the wrapping found on the bricks of cocaine that were located. Jeffrey Conway [ 36 ] Sargeant Jeffrey Conway (“Conway) testified he had been a member of the Winnipeg Police Service for nineteen years and at the time of his testimony was assigned to the Street Crime Unit.

On the date of this matter he was working with the Organized Crime Unit and was involved with the execution of the search warrant at 171 Kingston Row. It was his understanding that Constable Will DeGroot was the affiant of the warrants that were executed in this matter. [ 37 ] His recollection was that entry was forced through the front door and that no one was located in the residence. Conway advised that he was one of the officers assigned to search the home and during the course of this search he located a pail containing six bags of what was later confirmed to be Benzocaine.

This pail was located against the wall in a little room with a yellow colored linoleum floor just off of the basement stairs. At the time it was located, the pail did have a lid on it and he testified that he removed that lid in order to see the contents. Once he noted the contents he took the pail up to the main floor and left it beside the exhibit bag of Schimnowski in order to have him seize it. [ 38 ] In a search of the laundry room he located a small baggie (photograph 4, exhibit 6) containing what he believed at the time was cocaine.

He pointed this baggie out to Schimnowski who photographed it and then seized the baggie. [ 39 ] The route taken by Conway during his search of the residence was explored in cross-examination. He started his search on the main floor of the home before moving to the basement area. In terms the baggie of cocaine, although unsure, he believed that he may have had to climb onto something or stood on something when he made the discovery. He was clear that he could not have seen it without some type of aid, despite the fact he was 5’11” in height.

When asked he opined that a person coming down the basement stairs would not have been able to see the baggie. Grant Goulet [ 40 ] Constable Grant Goulet (“Goulet”) testified that he is a member of the Winnipeg Police Service and had been for fifteen years at the time of his testimony. As a member of the Organized Crime Unit he assisted in the execution of the search warrants at 171 Kingston Row and 206 Kingston Row. [ 41 ] At 206 Kingston Row he acted as a member of the search team. His task was to conduct an active search of the residence and if he located anything of interest he was to point the item(

s) out to Detective Gwyllt who, as the designated exhibit officer, would then document and seize the item. [ 42 ] Once in the home Goulet attended to the upstairs area and began a search of the second floor. He entered what was described to be a sunroom office and observed a computer desk. On the desk he observed a number of papers spread out and recalled one of the documents to be an e-mail that referenced a flight change for Sorin Pop.

That name was familiar to him and it was his understanding that person was the occupant of the house being searched at 171 Kingston Row. [ 43 ] The officer was shown a purported copy of this e-mail by Crown counsel and confirmed that it had the same title he recalled but was unsure if that was the exact document he referenced as he did not memorize the contents of the document. He did recall the e-mail document was amongst other documents that he observed Detective Gwyllt to seize. [ 44 ] Goulet also noted a filing cabinet in this office and upon checking found it to be locked.

He advised the court that he was aware Detective Leone had earlier seized a set of keys and requested those keys. One of the keys opened the filing cabinet and in the drawers he located a large quantity of cash as well as additional documents, all of which were pointed out to Detective Gwyllt to be seized. As for the keys, Goulet could not recall what he ultimately did with them after opening the filing cabinet. [ 45 ] Goulet continued his search of this room and located a money counter still in its original packaging.

The storage unit containing the money counter as well as the money counter itself were confirmed in photograph pages three, four and five of exhibit five. Once again this item was pointed out to Detective Gwyllt for him to seize. [ 46 ] In a bedroom on that same floor Goulet located a cordless drill with a Robertson bit, on the dresser.

He testified that it seemed odd that a drill would be on the dresser and spent some time looking around the room for possible hidden areas that the drill could have been used to access but found nothing. [ 47 ] After completing the search, Goulet assisted in loading all of the seized items into the police car and at 0320 hours he left 206 Kingston Row. He went directly to 171 Kingston Row which was the site of another search warrant that was being executed. His purpose for attending that location was to drop off the camera to Constable Schimnowski, who was the exhibit officer for that search.

He left that residence shortly after turning over the camera. [ 48 ] While he was at 171 Kingston Row Goulet noted that Robertson screws had been used to tack up the plastic panelling that had been concealing the bricks of cocaine in the ceiling rafters.

[ 49 ] In cross examination, Goulet confirmed which officers were involved in the search at the 206 Kingston Row. He was unable to state whether Detective Gwyllt was present at the time entry was gained to that residence or if he came later. He did recall that entry to the residence was gained with the use of a key but could not recall if entry was announced, and if so, whether it was announced before or after the actual entry occurred. [ 50 ] As for his presence at 171 Kingston Row, this officer confirmed that he was only there for a minute or two, solely for the purpose of handing over the camera.

He did not participate in the search of that home and could not recall if the door to that residence had been knocked in or not. [ 51 ] Goulet agreed he did not know how the itinerary that he located on the desk had got to that residence. As for the money counter he located, he agreed that the box looked new and that he did not open it to see what was inside. Ryan Scott Howanyk [ 52 ] Constable Ryan Howanyk (“Howanyk”) testified that he was a member of the Winnipeg Police Service for about ten years and at the time of his testimony was assigned to District three where he was performing general patrol duties.

At the time of the matter before the court he was working as a detective in the Organized Crime Unit. [ 53 ] On March 17, 2008 Howanyk testified that he was assigned the role of the note taker as a part of a surveillance team. His task was to record all of the observations being made by the members of the surveillance team that were being transmitted to him via an encrypted police radio. [ 54 ] At the outset of the surveillance each officer was assigned a particular call number that remained constant throughout the surveillance period.

The call number was a means for Howanyk to identify who was making the observation being radioed. [ 55 ] The target (T1) of the surveillance was identified as Dennis Kisfalvi and his vehicle, a black Ford F150 with license plate EPN 402, was identified as V1. There were also two residences of interest that were identified as L1 (206 Kingston Row) and L2 (171 Kingston Row). [ 56 ] Each of the surveillance team members were provided with the driver license photo of Dennis Kisfalvi, as a means to visually identify him, as well as a target sheet.

At the conclusion of the surveillance each of the officers reviewed the notes and initialed them if they were accurate. [ 57 ] The first notation was made at 1714 hours when Schimnowski radioed that V1 was parked at L1, being 206 Kingston Row. At 1743 Schimnowski radioed that V1 was now moving eastbound on Kingston Row and it was being driven by T1, being Dennis Kisfalvi, who was the lone occupant. The vehicle was observed to pull into the driveway at 171 Kingston Row at 1744 hours where Dennis Kisfalvi was observed to exit the vehicle and use a key to gain entry through the front door of the residence.

Three minutes later Schimnowski radioed that Dennis Kisfalvi was now out of that residence and mobile in his vehicle. [ 58 ] Detective Conway then radioed that the target vehicle was eastbound on Kingston Row, turned northbound onto Osborne, westbound Jubilee and then northbound on Pembina Highway. Schimnowski voiced at 1753 hours that the target vehicle was in the Tim Horton’s parking lot on Pembina Highway near Grant Avenue.

The vehicle went to the east side of the parking lot and parked. [ 59 ] Two minutes later, at 1755 hours, Schimnowski radioed that an unknown male approached the target vehicle and got into the passenger side. That male was described as being approximately fifty years of age, with long brown hair and wearing a brown jacket. The target vehicle then went mobile at 1758 hours with the target driving and the unknown male still in the passenger seat.

The vehicle went southbound in the parking lot and was observed by Detective Sargeant Trakalo to go into the parking lot of McDiarmid Lumber before parking beside a blue Astro van with plate number BCN 209. [ 60 ] At the time these observations were being made by Detective Sargeant Trakalo he was believed to be on foot and voiced that the unknown male got out of the target vehicle and entered the blue Astro van that they had parked beside.

Once inside the van the unknown male was observed to have his head down and was noted to be counting money that was on his lap. [ 61 ] Schimnowski radioed that the target vehicle was again mobile at 1759 hours, this time northbound in the parking lot before parking on the east side of the Tim Horton’s restaurant. The target, Dennis Kisfalvi, was observed to exit the vehicle and enter the Tim Horton’s restaurant. [ 62 ] Four minutes later Detective Sargeant Trakalo voiced that the Astro van was now mobile and it pulled up beside the target vehicle.

The target was observed to exit the restaurant with a coffee and Schimnowski voiced the target entered the passenger side of the Astro van. A computer check was run on the van and it came back registered to a Donald MacIntosh. [ 63 ] At 1809 hours Detective Sgt Trakalo observed Dennis Kisfalvi exit the van, now in possession of a white plastic grocery bag that appeared to be heavy with contained what looked to be bundles of money in it.

The target got into his vehicle and at 1810 hours both vehicles were observed to leave the parking lot. [ 64 ] Howanyk continued surveillance of the Astro van while the remainder of the surveillance team continued on with the target vehicle. The van went northbound Pembina Highway, westbound on Hugo Street, westbound onto Wellington Crescent, northbound Maryland Street, westbound Wolseley Avenue and then northbound in the west lane of Chestnut.

At 1818 hours a traffic stop was initiated on this vehicle by Detective Leone and Detective Sargeant Amant and Howanyk was unaware as to what happened as a result of that stop.

[ 65 ] While this was occurring, Howanyk also continued to act as the scribe and recorded the target vehicle went southbound Osborne from Jubilee and then westbound Kingston Row. As Howanyk was driving his own vehicle at the time these directions were being voiced, he did not record them until he had come to a stop at 1818 hours. [ 66 ] At 1821 hours Schimnowski voiced that the target vehicle backed onto the driveway at 206 Kingston Row.

The target was observed to exit the vehicle carrying a white plastic bag and entered his home. [ 67 ] All of the units then set up at the two residences located on Kingston Row and at 2021 hours a Honda Civic bearing license plate EKB 763 was observed to pull into the driveway at 206 Kingston Row. An unknown female (later identified as Rena Kisfalvi) exited the vehicle and entered the residence. Officers noted that there were lights on in the upstairs portion of the house. [ 68 ] At 2056 hours Dennis Kisfalvi was observed to exit 206 Kingston Row and enter into the Honda Civic car that had arrived earlier.

He proceeded to go eastbound on Kingston Row and then northbound on Osborne before a traffic stop was initiated by a marked Street Crime Unit car. At 2201 hours he was placed under arrest without incident. Howanyk was unable to indicate which members were part of that take down unit but was sure that it was not T20 (Leone & Amant) as they had remained on Kingston Row with the remainder of the surveillance team. [ 69 ] As this arrest was occurring, Detective DeGroot was acting as the affiant in the preparation of search warrant requests for the residences at 171 and 206 Kingston Row.

No further surveillance occurred after this arrest. [ 70 ] Upon arriving for his next shift on the evening of March 18, 2008, Howanyk and his partner, Jeff Conway, were advised that Sorin Pop had attended to the Public Safety Building and turned himself in. They were further advised that Pop had been placed under arrest and was left in a room on continuous video awaiting their arrival. [ 71 ] At 1600 hours they took custody of Pop from Detective Basic, a member of the Organized Crime Unit. Howanyk had been made aware that Pop had already been charged and cautioned and spoke to his counsel before their arrival.

They proceeded to interview Pop and at 1925 hours Detective Conway served Pop with a promise to appear with an undertaking attached prior to releasing him from custody at 1930 hours. [ 72 ] In cross-examination it was confirmed that Pop was cooperative with police and did provide a lengthy videotape statement. [ 73 ] With respect to the observation made at 1744 hours, Howanyk confirmed that Kisfalvi used a key to enter the south side entrance way of 171 Kingston Row and remained in that residence for about three minutes.

On his entry to that residence Kisfalvi was not observed carrying anything with him into the residence. Howanyk could not offer any information as to why Kisfalvi went into the home or what he did once in the home. When asked where Schimnowski was when he made these observations, Howanyk was not able to provide any clarification for the court.

This entry to the residence by Kisfalvi was noted to have occurred about seven and a half hours before the search warrants were executed. [ 74 ] Howanyk confirmed that once Kisfalvi was seen to leave the residence at 171 Kingston Row, there was no further surveillance kept of that residence until 1821 hours when police returned to the area. The surveillance of that residence then continued until the search warrants were executed and during this time no one was seen to enter that residence.

Howanyk was not aware of any prior surveillance of 171 Kingston Row occurring before this day. [ 75 ] With respect to the observations made at 1758 hours of the male who was seen in the Astro van counting money, there was no further elaboration on the amount of money believed to be counted nor any indication of the denominations of the bills observed by the reporting officer. [ 76 ] Howanyk could not provide any assistance as to whether Trakalo was on foot or in a vehicle, or what distance he was from the target when he observed Kisfalvi exit the Astro van with the white bag.

In addition Trakalo gave no indication as to the number of bundles he observed in the plastic white bag. [ 77 ] Howanyk was also unaware as to how it came that Pop turned himself into the Public Safety Building. In terms of the interview conducted, he and his partner entered the interview room at 1717 hours and at 1727 they commenced the interview, concluding it at 1842 hours. [ 78 ] In terms of the entry into 206 Kingston Row, Howanyk confirmed that it was not gained with the use of a battering ram.

Howanyk also agreed that he had been at 206 Kingston Row on a previous occasion before the March date on an unrelated matter where he picked up something from Rena Kisfalvi. Murray Gwyllt [ 79 ] Constable Murray Gwyllt (“Gwyllt) testified that he had been a member of the Winnipeg Police Service for approximately twenty years and is currently assigned to the Sex Crimes Unit.

Back in March 2008 he was assigned to the Organized Crime Unit and was involved in the investigation of that led to the arrest of Dennis Kisfalvi and Sorin Pop. [ 80 ] In the early morning hours of March 18, 2008 he testified to acting as the exhibit officer for a search warrant that was executed at 206 Kingston Row.

Various police officers were assigned to search the residence for any of the listed items in the warrant and if located they were to point them out to Gwyllt so that he could document and seize them. [ 81 ] Gwyllt confirmed that he was not part of entry team to the residence and did not know how entry had been gained. He estimated

his arrival on scene around 0135 hours and at that time there were already various officers in the home. He observed a female was in the home and was being dealt with by Detectives Leone and St. Amant. [ 82 ] The home itself was described as an older two bedroom home and Gwyllt began by searching the basement area. He found nothing of note and made no seizures from the basement. [ 83 ] At some point in time he was called to the second storey by Detective Goulet and attended to a back room area that appeared to be an office.

A large orange colored chest (pictures on pages 3, 4, 5 of exhibit 5) in the northeast corner of the room was pointed out to Gwyllt from which he seized a number of items. [ 84 ] The first item seized was a money counting machine that was contained in its own box. Also located in the chest was a hard plastic case containing various papers and documents, a silver colored soft sided case also containing documents and a file folder.

All of these items were seized and later turned over to the Integrated Proceeds of Crime Unit (“IPOC”) for further analysis. [ 85 ] Gwyllt was also directed to a filing cabinet that is accurately depicted on page six of exhibit five. The cabinet drawers were already open when he attended and he confirmed the photographs accurately show the contents of the drawers he observed that day. The top drawer had file folders containing various documents and in behind those folders there were numerous stacks or bundles of cash bound by rubber bands.

There were also cheques from two different bank accounts with one of them being from the Bank of Nova Scotia in the name of Dennis Kisfalvi. [ 86 ] In the bottom drawer more cash was located as well as some hand written documents that were found in an alligator wallet. Winnipeg Police seized the wallet and a Kings Head Pub Club membership in the name of Dennis Kisfalvi.

In addition to the money and wallet, a void Canadian passport in the name of Dennis Kisfalvi as well as a Cargill notepad with some handwritten notations on it that may be score sheets were also located in this drawer and seized. [ 87 ] Given the large quantity of money located, IPOC was contacted to assist in this investigation.

They attended to the Public Safety Building later on March 18, 2008 at which time the filing cabinet, its contents and a few other exhibits were all turned over to Constable Kim Allen and Constable Bill Buchanan. [ 88 ] With respect to the various papers and documents located on the computer desk they were all placed into Exhibit bag number WA105441. Further papers and documents seized from the top of an old console television were placed into a separate exhibit bag number (WB021864).

A computer was also seized and that was turned over to the technical services unit of the Winnipeg Police Service for further analysis. [ 89 ] In the kitchen, Gwyllt seized a large sized black leather wallet that contained credit cards, bank cards, personal cheques, a Canadian passport in the name of Dennis Kisfalvi and various types of currency including Canadian currency totalling $1,435.00.

All of this was also turned over to Constable Allen of the IPOC unit. [ 90 ] Gwyllt testified that he did not touch or process any of the money found in the filing cabinet, rather it was all turned over to IPOC on March 18, 2008. In addition to the money all of the seized documents were turned over to IPOC on March 27, 2008. [ 91 ] Prior to coming to court, Gwyllt did attend to the IPOC headquarters to retrieve three documents and the money counter that he had seized from the residence.

The documents were comprised of a purported original and two copies of that same document and when asked to examine the document, Gwyllt indicated that he did not have a specific recollection of having seized that particular document. He also picked up what he described as a key for the filing cabinet (WA086100) and indicated that he could not recall from where in the office he had seized it from. [ 92 ] In cross-examination Constable Gwyllt confirmed that he had no notation of the key being seized but did recall that it was from the office and was the only key he seized during this search.

It is his belief that he would have tried the key into the filing cabinet to confirm its use. [ 93 ] As for the cash found in the top drawer, it was Goulet who had pointed out the money and it is his understanding that it was Goulet who had had opened up the drawer and located the money. As far as he could recall, Goulet was the only officer who had access to the filing cabinet prior to his attending up to the second floor. [ 94 ] It was his understanding that when the orange chest was located, it was not locked.

The money counter found within it was not sent for fingerprint testing before it was turned over to the IPOC unit. [ 95 ] In terms of drugs, Gwyllt confirmed that there were none found during the search of this residence. Kimberley Allen [ 96 ] Constable Kimberley Allen (“Allen”) testified that she is a member of the Winnipeg Police Service and has been so for about seventeen and one-half years.

At the time of her testimony she held the rank of Detective Sargeant and was assigned to the Commercial Crime Unit. [ 97 ] Back in March 2008 she was assigned to the Integrated Proceeds of Crime Unit (IPOC) which is a unit comprised of police officers from both the Winnipeg Police Service and Royal Canadian Mounted Police who work together on proceeds of crime investigations. At the time of this matter she was finishing the first of two years in that unit before transferring out at the end of April 2009.

[ 98 ] On March 18, 2008 Constable Allen testified that she had been advised by her partner, Constable Buchanan, and supervisor, Sergeant Tapley, they were to attend the Organized Crime Unit of the Winnipeg Police Service to meet with Constable Gwyllt. Her understanding of the purpose of this meeting was to seize some suspected proceeds of crime as well as diamonds. [ 99 ] She departed “D” division at 0819 hours and arrived at the Public Safety Building at 0833 hours.

At 0835 hours she met with Constable Gwyllt who advised her that he was the exhibit officer and that two search warrants had been executed that morning. As a result of those warrants being executed an individual by the name of Dennis Kisfalvi had been arrested and charged in relation to some drugs and money that was located. [ 100 ] A two drawer grey filing cabinet was photographed and then turned over by Constable Gwyllt. Constable Allen proceeded to seize the cash from a drawer of the filing cabinet and placed it into bags.

One drawer was emptied at a time and each step was photographed as a means to document the process. The money was not counted at that time but rather an estimate was obtained by a common method where a ruler is utilized. Once the money was placed into a bag, it was sealed and signed by both seizing officers as well as by the member who initially seized the money.

The same process was followed for the money found in the top drawer of removing it, measuring it and then placing it into a bag that was then sealed. [ 101 ] Constable Allen seized a number of bundles of cash, an envelope that included three clear baggies of what was suspected to be diamonds, a gold coin, a blue velvet box and a Rolex watch from Constable Gwyllt. There was also some cash seized from the person of Mr.

Kisfalvi totalling $590.00. [ 102 ] Once all of the money was seized, it was taken back to the IPOC office where a secondary examination of the money was then done in the presence of a civilian member at the CRATS (currency recording and tracing office) office. The entirety of the seizure was then turned over to Sargeant Tapley who secured the property in a vault within the IPOC unit. [ 103 ] On March 27, 2008 at 1000 hours, Constable Allen attended to the Public Safety Building where she again met with Constable Gwyllt.

On this occasion she seized thirteen bundles of documents and copies of cheques that were provided to her in Winnipeg Police Service exhibit bags. She returned back to “D” division with these exhibits and placed each individual bundle into an IPOC bag and assigned a new exhibit number. [ 104 ] Constable Allen was asked about the exhibit bag she labelled number nine and testified that it contained Winnipeg Police Service exhibit bag number WA105441.

Her notes indicated that those documents came from 206 Kingston Row. [ 105 ] Once back at headquarters on March 28, 2008 the exhibit was again renumbered with a master number for this seizure. These documents were deemed as site three and therefore would have been labeled 2008 – 08 (Kisfalvi) - 003 and then numbered 001 through to 013. Specifically for this bag it was numbered 2008-08-003-009. [ 106 ] Each of the seized documents were then scanned into a program called supertext, which is a process where each document is then given its own individual number.

That process was done by Terry Titterton, who was described as a civilian member of the Royal Canadian Mounted Police. All of the documents are then kept in the locked CRATS exhibit room. [ 107 ] Constable Allen was asked to view the documents that had been brought to court by Constable Gwyllt and marked as Exhibit “B” for identification. She observed the document had an exhibit number at the top and an inprint that occurs from being put through the supertext process. The document was noted to be an itinerary update, flight change for Sorin Pop and was designated with number A:808003009-00000326.

She testified that was an original document based on the number and the fact there was an inprint left on the document which only occurs once it is scanned through supertext. [ 108 ] In terms of the documents she received from Constable Gwyllt, Constable Allen advised they totalled in excess of one thousand and all of them were all scanned using the supertext system.

On occasion she has had to review those documents as they formed the basis for the various production orders she has sought on this matter. [ 109 ] At 0945 hours on July 2, 2008 Constable Allen testified that she and Constable Wilkie entered the CRATS office to begin counting the cash that had been seized. Corporal Sutcliff unlocked the safe and each of the bags were photographed in the presence of Terry Titterton showing they were sealed. [ 110 ] The bags were then opened, the contents again photographed and this entire process was documented by Constable Allen in her notes.

At 0949 hours bag one was opened and it was noted that every fifty bills were flipped in the bundles. On some of the bills there were notations observed and Constable Allen confirmed that she was not the person who made the notations. [ 111 ] In the course of cross-examination Constable Allen confirmed that the all of the original Winnipeg Police Service exhibit bags were retained, although the last time she seen them was on March 27, 2008.

In terms of the documents that were seized, she did not make a separate note of each document that was seized. [ 112 ] Constable Allen confirmed that she did not personally scan the documents into the system nor did she make any of the markings noted on Exhibit “B”.

Her understanding is that only original documents are put through the supertext program and during the process of scanning them, a number is imbedded onto the back of the document by the program. [ 113 ] Constable Allen confirmed that she received the bundles of documents from Constable Gwyllt and at no time did she ever mix any of the documents between bundles. She did recall seeing a document for the itinerary of Sorin Pop but could not say for sure it was amongst the documents contained in exhibit nine.

All of those documents were from 206 Kingston Row and this officer confirmed she did not personally attend to that address nor was she present when the documents were actually seized. [ 114 ] She did not submit Exhibit “B’ for finger print analysis and agreed there is no signature on that document. She also agreed that it appears to be an e-mail.

[ 115 ] At the conclusion of this evidence I heard arguments pertaining to the admissibility of Exhibit “B” and on a later date ruled the document was admissible in the proceedings and had it entered as a numbered exhibit.

Michelle Galloway [ 116 ] After conducting a voir dire into the qualifications of Sargeant Michelle Galloway (“Galloway”) this court ruled that she was an expert, as that term is used within subsection 657.3 of the Criminal Code of Canada, and permitted to give expert opinion evidence regarding trafficking in cocaine and the proceeds of crime. [ 117 ] Specifically the scope of her expertise was set out to include the giving of opinion evidence in relation to the quantities of drugs sold for personal use and trafficking; the value and pricing for various quantities of cocaine; the packaging of cocaine; the practices and customs of the cocaine trafficking trade including the methods of trafficking and the components of drug distribution networks; and finally on the proceeds of drug trafficking. [ 118 ] Sargeant Galloway testified that she is a police officer with nineteen years of policing experience which includes an extensive history and knowledge in the area of trafficking of various types of drugs.

During the time period of 2008 – 2011 she was a member of the Organized Crime Unit where she performed varying duties including acting as the arresting officer, as an undercover officer, as a cover officer, as an exhibit and as a seizing officer. [ 119 ] She has worked on various major police projects including Project Van Gogh, where she acted as an undercover officer, and Project UTR, where she was the monitor room supervisor.

Her work on the various projects has included listening to intercepts of communications, conducting surveillance of subjects and viewing surreptitious video of individuals processing the drugs. [ 120 ] Her background on the streets involved over five hundred drug related investigations spanning from dial-a-dealer operations up to organized crime groups.

As an undercover officer she made many drug purchases and through that activity became aware of the drug terminology used on the streets. [ 121 ] Her work experience has been complimented by taking various courses dealing with drugs and the related topics of surveillance and search and seizure.

At present she directly supervises twenty police officers in division eleven while also acting as a lecturer to the new recruits of the Winnipeg Police Service on drug related matters. [ 122 ] With respect to the investigation before the court, Galloway confirmed that she was present in the courtroom for the evidence presented on August 31, September 1 & 2, 2011, with the exception of the testimony Rena Kisfalvi.

Throughout this matter she has made notes of the evidence presented and has also been provided with a transcript of the evidence by Crown counsel. [ 123 ] For the purposes of her role as an expert in these proceedings she has adopted the report that had been prepared by Sargeant Hoard, who was to have been the expert tendered by the Crown in this matter.

In addition she confirmed that she did read a report that had been previously prepared by Constable Sadr concerning this matter. [ 124 ] Galloway testified that cocaine is generally produced outside of Canada and is then brought into Canada where it is then distributed throughout the country.

It often arrives in a brick form and is wrapped with various types of materials in an effort to mask the smell of it. [ 125 ] There are generally three levels of traffickers with those being high level traffickers, mid-level traffickers and street level traffickers. [ 126 ] High level traffickers are often involved with the importation of the cocaine into the country and the subsequent distribution of the drug to the mid-level traffickers who then sell it to their street level dealers.

A mid-level dealer is seen as someone who is involved in ounce level sales of drugs. [ 127 ] When a brick of cocaine arrives into Canada it is often seen to have a ninety percent purity level before it is then mixed with an adulterant, such as benzocaine or procaine, in order to increase its weight. That mixture is then repressed back into brick form and sold as a kilogram of cocaine. [ 128 ] A courier is utilized to transport the drugs to the location of the sale where it is then exchanged for cash that is brought back to the supplier by the courier.

Once the cocaine is brought to Winnipeg, it will again be remixed and by the time it finally does hit the streets for sale, the purity level has been seen to anywhere between seven and thirty-five percent. [ 129 ] In 2008 a half-kilogram of cocaine was selling for about twenty to twenty-five thousand dollars while a kilogram was going for between forty-five and fifty thousand dollars.

Presently a kilogram of cocaine sells for about sixty to sixty-five thousand dollars. [ 130 ] A vital component for the organization in this type of business, given the large amounts of money involved as well as the cost of the cocaine, is trust. In order for a person to be able to purchase a kilogram of cocaine they would generally have to be well known within the organization, having probably worked their way up in that organization. [ 131 ] A stash house was described as a place where the high level drug trafficker keeps their supply of drugs until they are distributed.

Those drugs would then be replaced with large quantities of cash derived from the sale of the drugs. These types of homes must be secure with the location known to very few individuals. These homes are often located in low traffic areas in order to make it harder for police to conduct surveillance.

[ 132 ] The business of cocaine trafficking is a cash business although at the street level it has been seen that purchases can be made with the exchange of property. At the street level the original kilogram of cocaine that was imported is often tripled in volume through remixing and if sold at the quarter gram level it can net about eighty thousand dollars per kilogram. [ 133 ] The money obtained through the sale of the drugs is typically bundled in amounts of one-thousand, five-thousand and at times in bundles of ten-thousand dollars.

Once it is received it is often hidden by the drug trafficker. [ 134 ] In the case at bar it was noted that three bricks of cocaine were found at 171 Kingston Row. Only two of the bricks were actually weighed with the results being four hundred and ninety grams for one brick and the second brick weighed four hundred and ninety-five grams.

Although not weighed, it was suggested that given the appearance, the third brick appears to be about the same size as the other two bricks and would therefore weigh about the same as those two bricks. [ 135 ] In addition to the amount of cocaine located in the home, it is also noteworthy the police also located and seized about six kilograms of benzocaine, packaging material, weigh scales and a vacuum package sealer.

Galloway suggested the scales would have been used to weigh out the quantity of the drugs while the vacuum package sealer is often used to repackage the drugs or to package the bundles of money. [ 136 ] The cocaine seized was tested and found to have purity levels of thirty-nine and forty and forty-four percent which led Galloway to opine the cocaine was either diluted prior to its arrival or was being diluted by the present owners.

Given the way the bricks were packaged when found, particularly the presence of the white wrapping, it was the opinion of Galloway that the bricks of cocaine had not yet been unwrapped and therefore had been diluted prior to arriving at the current location. [ 137 ] Based on the totality of the evidence, Galloway suggested to the court that the cocaine found at 171 Kingston Row was being possessed for the purpose of trafficking. [ 138 ] In terms of the money that was seized from 206 Kingston Row, Galloway referenced Exhibit 27 which detailed the cash amounts of $120,040 and $28,000 located in the filing cabinet.

In addition she noted the smaller quantity of monies found elsewhere in the house during the execution of the search warrant. A picture (Exhibit 26) showing the way the money was packaged led Galloway to suggest that it was packaged that way in order to make it easier to count out for payment of cocaine or to just count it in general. [ 139 ] Based on her observations of the money it was her opinion that the money seized is from the proceeds of drug trafficking. [ 140 ] Galloway concluded by offering the opinion that 171 Kingston Row was being used as a stash house for cocaine.

Based on police surveillance seeing an individual enter that house for a few minutes and, then leaving the police surveillance team did witness a drug deal occur in the Tim Horton’s parking lot. [ 141 ] Sargeant Galloway was cross-examined extensively and agreed that close to two kilograms was seized by police from the home. As for the actual bricks she could not say whether any of them had any type of stamp on them. [ 142 ] With respect to her opinion the bricks had been repressed, Galloway conceded that she could not say that definitely occurred or who performed that task, if that was done.

As for the money found in the filing cabinet, she agreed that she could not say how the money got into the filing cabinet, who put it there or where it had originated. [ 143 ] Although it was suggested that the money located could have been consistent with the price of cocaine at that time, Galloway could not say that was definitely the origin of the money given her earlier concession that she did not know for sure where that money originated. [ 144 ] Galloway confirmed the report originally written by Sargeant Hoard was the first report she read about this matter.

She acknowledged reading a second report at a later point in time that had been prepared by Constable Sadr for this case. [ 145 ] The cross-examination of Sergeant Galloway was continued by Mr. Glazer and she agreed that there was no evidence of a cell phone being located in the residence at 171 Kingston Row. [ 146 ] She was extensively cross-examined about the hydraulic press and confirmed that she did not personally examine it nor is she aware of any cocaine residue being found on it.

She acknowledged that she did not hear any evidence as to whether it was in working order and also understood that there is no evidence indicating how long it had been in the basement prior to the police finding it or who put it there. She also agreed that there was no evidence linking the press to the cocaine found in the residence. [ 147 ] As for the report she adopted, Galloway agreed that the name Sorin Pop does not appear anywhere in that report.

Conversely the name of the co-accused, Dennis Kisfalvi, does appear in the report and he was identified as being more than a simple courier or a person maintaining a stash house. When pressed on this point, Galloway would not agree the report only linked Dennis Kisfalvi to the stash house and pointed to the discussion located in paragraph three of the report where the cocaine is described as travelling through the network of drug dealers, often changing hands three of four times before it is then sold to the user.

In her opinion, a network involves a stash house. [ 148 ] Further on in paragraph six, she pointed to the discussion concerning high level traffickers who are seen to insulate themselves from lower level traffickers by only trafficking to small groups of trusted people. It was the opinion of Galloway that a stash house is a part of the drug network.

However, when pressed, the officer agreed that the words “stash house” do not appear in the report. [ 149 ] Based on the evidence presented, Galloway agreed that 171 Kingston Row was owned by Dennis Kisfalvi and was the residence where police seized approximately three kilograms of cocaine, six kilograms of benzocaine, a hydraulic press and a sealing machine. It was also agreed that the name Sorin Pop is not mentioned in the report as being linked to 171 Kingston Row. [ 150 ] As for the money that was seized by police from 206 Kingston Row, Galloway confirmed that appears to be the residence of

Dennis Kisfalvi, which he occupied on the date of his arrest. It was acknowledged that Dennis Kisfalvi is the only person who is mentioned and linked to this residence in the report. [ 151 ] When asked further about the bricks of cocaine, Galloway confirmed she was not able to say when they were repressed or who did the repressing. [ 152 ] As for the hydraulic press located in the residence, Galloway conceded that she could not say for sure when that press came into the residence, who brought it into the house, who purchased it and for what purpose it was purchased.

She also agreed that a hydraulic press generally has many legitimate uses, for example the cutting of tile. That being conceded, Galloway was clear that she considered the presence of the hydraulic press, as well as the other items located and seized, when she formulated her opinion in this matter. [ 153 ] In terms of surveillance conducted, Galloway was unaware of there being any other surveillance conducted on these parties prior to or after the one day identified.

At the time the search warrant was executed, Galloway agreed that Sorin Pop was not present in the residence. [ 154 ] When challenged that there is no evidence linking Pop to residing at 171 Kingston Row, Galloway disagreed and pointed to the numerous documents bearing his name that were seized from inside the house. In addition to those documents found on the main floor, she noted Constable Schimnowski’s testimony that he seized additional documents in the name of Sorin Pop in a bedroom that was described as containing men’s clothing.

Galloway suggests that this supports her opinion as it relates to Sorin Pop’s involvement in this case. [ 155 ] With that Galloway did concede that there is no evidence of anyone physically seeing this accused at the house or in the vicinity of the house during the time period of the search warrants being executed.

She also agreed that there was no actual formal documentation (i.e. lease) before the court showing that Sorin pop lived in that residence during the material time. [ 156 ] Upon examination of each of the documents that were seized, Galloway acknowledged that none of them indicated a date in March 2008. Those documents included letters from Fort Rouge Plate and Glass dated February 28, 2009; a letter from RBC dated February 29, 2008; and a letter from MBNA that is dated February 2008.

In addition the water bill seized was addressed to Sorin Pop and covered a time period of May 1 – October 18, 2007 at 171 Kingston Row. A Canadian Passport in the name of Sorin Pop discovered in the home was still valid but did not have an address recorded on it nor did the valid driver license that was seized. [ 157 ] A suggestion by defence counsel that there is therefore no documentation showing Sorin Pop lived at the address on March 18, 2008 was not accepted by Galloway. She again recounted each of the documents that were seized but did concede that that none of them showed a date in March 2008.

She also agreed it was possible that Sorin Pop could have vacated the residence on March 1, 2008. [ 158 ] As for the cocaine seized it was agreed that there was no evidence showing where it originated from. In terms of the purity level, although Galloway testified that it generally comes into Canada at a purity level of ninety percent or more, she did concede that there is no evidence before the court showing the cocaine did not enter Canada at the purity level it was seized.

It is her opinion the cocaine was being cut at the residence where it was seized based on the presence of a scale, the press, packaging material and the benzocaine. She did not agree with the suggestion of counsel that these items could have been used for a legitimate purpose. She pointed out the testimony of Constable Schimnowski who opined the wrapping on the bricks was the same wrapping found with the food saver.

In this regard the expert did accept that Constable Schimnowski did not testify to doing any testing of the wrapping to confirm they were the one and the same. [ 159 ] In terms of generalities, it was agreed that a cocaine owner may use places, other than houses, to store the drugs. At times they will use secure places that have cameras, alarms and they may personally also have weapons nearby to protect themselves.

In this case Galloway agreed there was no alarm at 171 Kingston Row, no surveillance cameras, no safe, no armed guards and no weapons. [ 160 ] Although initially refuting the suggestion, Galloway did later agree that none of the drugs were in plain view in the basement. The bricks of cocaine in the ceiling rafters only became visible once the ceiling tiles were ripped out. The one baggie of cocaine found in the laundry room rafters was only discovered when the searching officer stood on an object to gain elevation.

The scale with the white substance on it was in a chest drawer in the basement and was not in plain view. Galloway agreed that there was no information before the court as to who may have put the scale there or whether Sorin Pop was present when it was put there. [ 161 ] With respect to the scale in the kitchen, it was agreed that it was also not in plain view. Galloway acknowledged that she did not test to see if it was in working order.

As for the residue found on the scale, Galloway agreed that it is possible the scale came into the home with the residue already on it. [ 162 ] As for her opinion that the cocaine was possessed for the purpose of trafficking, she acknowledged that there were no score sheets discovered during the search and there was no cash being stored at 171 Kingston Row. There was no surveillance conducted that observed people to be coming and going from that home, which may be indicia of trafficking.

In fact Sargeant Galloway agreed that there was only one day of surveillance and during that time period only Dennis Kisfalvi was seen by police. [ 163 ] Finally, Galloway agreed that there was no evidence that Sorin Pop possessed a key for 171 Kingston Row and there are no rent or lease documentation tying Sorin Pop to the residence. In fact it was acknowledged by Galloway that Dennis Kisfalvi was observed to enter that home using a key and Sorin Pop was never seen by police that day.

The Law Relating to Preliminary Hearings [ 164 ] In the case of a preliminary hearing, section 548(1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 sets out the standard to

be used by the preliminary hearing judge to determine if an accused person is to be ordered to stand trial for the offence(

s) charged or onany other offence revealed by the evidence adduced. [165] It reads as following: “548.

(1) When all of the evidence has been taken by the justice, he shall (

a) If in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offencein respect of the same transaction, order the accused to stand trial; or (

b) Discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused ontrial for the offence charged or any other indictable offence in respect of the same transaction.

(2) Where the justice orders the accused to stand trial for an indictable offence, other than or in addition to the one with which theaccused was charged, the justice shall endorse on the information the charges on which he orders the accused to stand trial.” [166] The test for determining whether there is sufficient evidence comes from the case of United States of America v. Sheppard, (SCC), [1977] 2 S.C.R. 1067 and directs that a committal to stand trial is to occur where there is any admissible evidencecould, if believed, result in a conviction. This test imposes a minimal standard that is consistent with the screening purpose of apreliminary hearing. [167] In the case of R. v. Coke,

(1996) O.J. No. 808, Justice Hill, at paragraph 9, provided the following guidance to courts on the issueof committal: “Judicial consideration of the committal authority reflects some consensus as to the existence of a subset of interpretative guidelinesgoverning the exercise of the authority including the following: 1. Credibility assessment and related factors affecting the weight are not to be resolved short of trial... 2. Any reasonable

interpretation or permissible inference from the evidence, properly admissible against the accused, beyondconjecture or speculation, is to be resolved in favour of the prosecution... 3. The justice is obliged to consider the cumulative effect of the evidence said to point toward guilt on the part of theaccused...” [168] In the case at bar there is no direct evidence of trafficking in any type of narcotic by any one person or persons. This is a classiccircumstantial case in which the trier of fact is going to be asked to draw a number of inferences from the evidence.

This court must lookat the case as a whole and determine if the evidence adduced could reasonably support a guilty verdict. It is not for this court todetermine the credibility of the witnesses nor is this court to determine the ultimate issue of guilt. [169] With that important distinction, the test for committal is the same whether there is direct evidence or if this is a circumstantialcase. That task does become somewhat more difficult in circumstantial cases as was recognized by the Supreme Court of Canada in thecase of R. v. Arcurri, [2001] 2 S.C.R.

No. 52.@ paragraph 23: “...with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established...that is,an inferential gap beyond the question of whether the evidence should be believed.” [170] Further on in paragraph 23 the court highlighted the following quote from McCormick on Evidence: “circumstantial evidence...may be testimonial, but even if circumstances depicted are accepted as true, additional reasoning is required toreach the desired conclusion.” [171] When looking at the evidence adduced the court must be careful not to usurp the function of a trier of fact and consider any other

explanations for that which is before the court. It is the entirety of the record that must be considered and although there may be more than one inference available from the evidence, at this stage of the proceedings “any reasonable

interpretation or permissible inference from the evidence must be resolved in favour of the Crown” ( R. v. Walcer , [2011] S.J. No. 46 (C.A.) @ para. 37). [ 172 ] It is this latter premise that reinforces the concept of a preliminary hearing.

General Crown Theory [ 173 ] The theory of the Crown is that Sorin Pop and Dennis Kisfalvi were working together in the drug trafficking business. [ 174 ] It is alleged that Sorin Pop is resident at 171 Kingston Row and that residence was being used as a drug stash house which the Crown suggests was evident by the quantity of cocaine discovered from the execution of the search warrant on March 18, 2010. No money was seized from this home. [ 175 ] On that same date a second search warrant was executed at 206 Kingston Row which is the residence of Dennis Kisfalvi.

The search of that residence did not turn up any drugs but rather a very large quantity of cash was seized by police from a locked filing cabinet in a second floor office. This was described as being the cash stash house that was being maintained by Dennis Kisfalvi. [ 176 ] An expert was called by the Crown and the opinion given supported the theory of the Crown that the drugs seized were possessed for the purpose of trafficking and the cash was from the proceeds of crime.

Crown Position on Dennis Kisfalvi [ 177 ] The Crown suggests that the evidence against Dennis Kisfalvi is strong on both charges that are currently before the court. While he was under surveillance, police observed him to enter into 171 Kingston Row with the use of a key. This is admitted to be a residence that he owns and it is position of the Crown that it was being rented by Sorin Pop at the material time. [ 178 ] Within three minutes of entering that home, he is seen to exit and is not noted to be carrying anything.

From this location he is then followed to the Tim Horton restaurant located on Pembina Highway where police observe and document a series of unusual actions undertaken by Dennis Kisfalvi. [ 179 ] Once in the parking lot he is observed to have a short meeting with an unknown male and a bit later on is seen to exit this males van in possession of what police observe and believe is a bag full of money.

From this location Kisfalvi is then followed back to his residence at 206 Kingston Row and was seen to enter his residence in possession of the plastic bag that he had received at the Tim Horton’s restaurant. [ 180 ] He remained in his home for some period of time before leaving in his sister’s car at which point in time police elected to initiate a traffic stop and Mr.

Kisfalvi was placed under arrest and charged for the offences that are now before the court. [ 181 ] A search of his residence revealed in excess of $100,000 in currency being located in a locked filing cabinet that the Crown suggests this accused had sole access to.

No narcotics were located by police during this search of his residence. [ 182 ] Police also execute a search warrant at 171 Kingston row and seize a significant quantity of cocaine from that residence but no cash. [ 183 ] According to the expert, she opined that 171 Kingston Row was being operated as a drug stash location and 206 Kingston Row was being utilized as the cash stash location, something that is not uncommon in bigger types of drug operations.

Based on the observations of the surveillance unit along with the seizures that were made, the Crown suggests there is evidence upon which a reasonable jury could convict this accused and he should be ordered to stand trial as charged. Defence Position on Dennis Kisfalvi [ 184 ] Defence counsel takes the position that this is a very weak case of possession and essentially suggests there is no evidence before the court to ground a committal to stand trial for Dennis Kisfalvi. [ 185 ] Based on the evidence adduced counsel suggests there is no evidence that his client ever possessed cocaine.

The fact that he may been seen counting money in the parking pot of Tim Horton restaurant is irrelevant to him being in possession of the cocaine that was seized from 171 Kingston Row. [ 186 ] The fact that a large amount of cash was located and seized from 206 Kingston row is irrelevant to the cocaine that was located at 171 Kingston Row. [ 187 ] The fact that his client went into 171 Kingston Row is also of no moment as the evidence shows he was only in there for a few minutes and the drugs were not in plain view such that one could reasonably conclude that he would have seen them and may have manipulated them to the point that he had possession. [ 188 ] Counsel suggests that but for his role as an owner and landlord to 171 Kingston Row there is nothing that ties him to having knowledge of the cocaine in that home and as such there is no evidence before the court of knowledge and control of the cocaine. [ 189 ] As such counsel suggests his client ought to be discharged on both counts that are before the court.

Crown Position on Sorin Pop [ 190 ] The Crown has acknowledged that the case against Sorin Pop (“Pop”) is a circumstantial case. [ 191 ] They acknowledge that there is no direct evidence of Sorin Pop being found in possession of cocaine, he was not seen by the surveillance unit on March 17, 2008 nor was he present at 171 Kingston Row when the warrant was executed.

The cocaine found in that residence was not in plain view and in fact a large quantity was discovered behind ceiling tiles that were torn down by police. [ 192 ] It is the position of the Crown that the testimony of Rena Kisfalvi coupled with the seizures made at 171 Kingston Row should establish for the court that at the material time Sorin Pop was resident at 171 Kingston Row.

Those seizures include the various documents that were located within the residence as well as the male clothing that was noted in the bedroom where some of the documents were located. [ 193 ] With respect to those documents discovered by police, it is suggested by Crown counsel that the documents are of a personal nature and it is reasonable to infer that they are the types of documents that would be maintained in a place where a person has access and control as an occupant.

It is on this basis that the Crown suggests there is sufficient evidence for this court to draw an inference that Sorin Pop was resident at 171 Kingston Row at the material time. [ 194 ] The Crown suggests the fact Sorin Pop was not present at the time the warrant was executed is not fatal (R. v. Basarowich , 2010 MBQB 4 ) to a finding that he was in construction possession of the cocaine based on him being resident at 171 Kingston Row.

The fact that he may not have had exclusive access to that residence, as was noted by the surveillance unit observing Dennis Kisfalvi enter that residence, is also not essential. [ 195 ] The presence of the benzocaine in the basement area of the home along with the cocaine contaminated scale found in a chest drawer in the basement and a second cocaine contaminated scale that was found in the lower oven drawer added to the packaging materials found in the oven permit a trier of fact to infer knowledge on Sorin Pop based on the circumstantial evidence before the court. [ 196 ] In totality the Crown suggests that it is open for a trier of fact to infer possession of the cocaine based on knowledge being inferred and Sorin Pop having control of the premises.

With the opinion of the expert the court is asked to commit him to stand trial on the sole count of possession for the purpose of trafficking in cocaine. Defence Position on Sorin Pop [ 197 ] Mr. Glazer takes a different view of the evidence and suggests that although the Crown has an interesting theory there is no evidence to support a finding of possession by Sorin Pop. [ 198 ] Counsel points to the opinion letter of the expert where Sorin Pop is not named or implicated in any way in that document.

Counsel suggests that there is no evidence before the court showing that Sorin Pop resided at 171 Kingston Row at the material time. The evidence before the court equally supports that the cocaine could have been in that home without any knowledge of Sorin Pop. [ 199 ] The surveillance conducted by police in this case is limited to one day and during that time Pop was not observed by police nor was he at 171 Kingston Row the time the warrant was executed. [ 200 ] The evidence of Rena Kisfalvi was largely hearsay and she had no knowledge as to the relationship between Sorin Pop and her brother, Dennis Kisfalvi.

She never saw any formal lease agreement for Sorin Pop concerning 171 Kingston Row and there is no evidence before the court of any formal rental agreement. Defence counsel suggests there is no evidence that Sorin Pop had a key to that residence or control of that home at the material time. [ 201 ] All of the documents seized by police were dated for the month February 2008 which could support that he may have lived at that residence at some earlier point in time.

In fact some of the documents had yet to be opened and there is therefore no evidence showing he was resident at the time the warrant was executed. [ 202 ] Defence counsel suggests the Crown is speculating when she asks the court to find that Sorin Pop was in possession of the drugs. There is no evidence of control by Sorin Pop nor is there any evidence of him having knowledge of the cocaine present in the home. [ 203 ] Even if the court were to infer that Sorin pop was resident at 171 Kingston Row, none of the items seized by police were in plain view.

There is no evidence pointing to him having any knowledge of the cocaine that was hidden in the basement rafters. [ 204 ] Defence counsel suggests that there are three scenarios listed in the case law where the court can infer knowledge. Those are when the drugs are in plain view, when the drugs are found in the common areas of the house or where the drugs are found in many locations throughout the house.

None of these scenarios exist in the case before the court. [ 205 ] Counsel suggests the expert’s opinion really begs who is in possession of the cocaine. [ 206 ] The Crown lacks any evidence showing that Pop was in the home at the same time as the drugs that were located by police.

Given that the drugs were hidden there was no evidence Pop knew they were there, there is no evidence he lived there when the search was done, there is no evidence he was resident there and there is no evidence of any signs of trafficking occurring from that house. [ 207 ] It is defence contention that in order for there to be possession, the Crown must show knowledge and control over the cocaine by Pop. The accused was not found in personal possession of the cocaine.

The Crown suggests he lived there but he was not the owner of the home, he had no key to the home, there is no evidence that he rented the home in March 2008 or had access to it during that time. [ 208 ] Even if he lived there it was known that he was away for long periods of time as was testified to by Rena Kisfalvi. The cocaine could have been put in the home at any point in time and could have even been there before Pop moved into the residence and it is

therefore conceivable he did not know of its existence. [209] The e-mail correspondence recovered by police at the residence of Dennis Kisfalvi does not signify any relationship between thetwo accused. It does not signify a trust relationship between them nor does it make them close friends. [210] Even with this correspondence it does not mean that Pop is involved in the matter. It does not mean that he therefore hasknowledge of the cocaine in the home. Even if the court draws the inference that the accused lived at the residence there is no evidenceof Pop having knowledge of the drugs that were concealed.

The items that were located in the kitchen are neutral and defence counselsuggests there is no evidence that the Food Saver could have been stored in a cupboard. The fact it was in the oven does not make itshady. [211] As such the accused should not be committed to stand trial on the charge before the court.

Analysis What is possession? [212] The issue before the court is whether the Crown has adduced any evidence that Sorin Pop had possession of the cocaine that wasdiscovered by the Winnipeg Police Service at 171 Kingston Row and possessed it for the purposes of trafficking. [213] Possession is defined in subsection 4(3) of the Criminal Code of Canada as follows: “4(3) For the purposes of this Act, (

a) a person has anything in possession when he has it in his personal possession or knowingly; (

i) has it in the actual possession or custody of another person or (ii) has it any place, whether or not that place belongs to or is occupied by him for the use or benefit of himself or another person; and (

b) where one of two or more persons with the knowledge and consent of the rest has anything in his custody or possession, it shall bedeemed to be in the custody and possession of each and all of them.” [214] Mr. Justice Hill explained the concept of possession in the case of R. v. Anderson-Wilson, 2010 ONSC 489 , [2010] O.J.No. 377 at para. 68 as requiring “the Crown to establish two distinct elements of knowledge and control…Control refers to the power orauthority over the item whether exercised or not…”. [215] The Ontario Court of Appeal in the case of R. v.

Kim Thi Pham (Tab 2 of Crown case book) at para. 14, delineated that subsection4(3) creates three types of possession for a court to consider, personal possession as is set out in subsection 4(3)(a); constructivepossession in subsections 4(3)(a)(

i) and (ii); and joint possession as set out in subsection 4(3)(b). [216] In the case at bar Pop was not observed by the surveillance team at any point in time on March 17, 2010 nor was he in or at 171Kingston Row when the search warrant was executed by the Winnipeg Police Service.

There is also no direct evidence before this courtof the accused being in personal possession of any cocaine. [217] With that, the court must then look to see if there is any evidence this accused had knowledge and control of the cocaine locatedin the residence sufficient to find that he had constructive or joint possession. [218] Constructive possession was defined by the Ontario court of Appeal in Pham, supra, at para. 15 as following: “In order to constitute constructive possession…there must be knowledge which extends beyond mere quiescent knowledge and disclosessome measure of control over the item to be possessed.” [219] At paragraph seventeen of that same decision, the Court of Appeal quoted with approval from the decision of Watt J, in the caseof R. v.

Sparling, [1988]

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