R. v. Hendsbee, 2011 ONCJ 369

Citation: R. v. Hendsbee , 2011 ONCJ 369 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — ETIENNE HENDSBEE AND RESTU SOLOMON Before Justice L. CHAPIN Heard on May 10 th , 11 th , 12 th and 13 th , 2011 Reasons for Judgment released on July 14, 2011 Ms. D. Polgar .......................................................................................................... for the Crown Ms. L. Shemesh ................................................................. for the Defendant Etienne Hendsbee Ms.B.

Petrouchinova ............................................................... for the Defendant Restu Solomon J. CHAPIN: Introduction: [ 1 ] This is a ruling on committal following a Preliminary Inquiry which proceeded on consecutive days between May 10, 2011 and May 13, 2011. Counsel provided written submissions on a later date for which I am grateful. [ 2 ] Mr. Hendsbee and Mr. Solomon are jointly charged with trafficking cocaine on July 8 th , 2009, possession of cocaine for the purpose of trafficking on October 22, 2009 and possession of Ketamine on October 22, 2009. Mr.

Solomon also faces a charge of possession of proceeds of property, ($435.00) derived from committing the offence of trafficking cocaine. [ 3 ] These charges arise out of a larger project the Toronto Drug Squad launched called Project Hustler. The project started with a number of undercover purchases of cocaine from another individual, Mr. Durham. The project expanded to a larger investigation into individuals the police felt were suppliers of cocaine. Mr. Solomon and Mr. Hendsbee are alleged to be suppliers of cocaine to Mr.

Durham who was selling it to the undercover officer. [ 4 ] Counsel for the defendants, very reasonably, admitted jurisdiction, nature of the substance and continuity for the purpose of the preliminary inquiry. It was also agreed that the crown did not need to call an expert to establish that the quantity of cocaine found on October 22, 2010 during the execution of the search warrant was for the purpose of trafficking. [ 5 ] The crown’s case is based on circumstantial evidence that was provided by the ten police witnesses the crown called. Neither Mr. Hendsbee nor Mr.

Solomon called any evidence at this Preliminary Inquiry. THE EVIDENCE

The July 8 th , 2009 Purchase of Cocaine [ 6 ] D.C. Reid, the undercover officer, testified that he had met with Mr. Durham on several occasions for the purpose of purchasing cocaine. He initially purchased one gram for $100 and set up a meeting five months later on may 1, 2009 and purchased 14 grams of powder cocaine for $700.00. On July 7 th , 2011 D.C. Reid met with Mr. Durham for the purpose of purchasing another ½ ounce of powder cocaine. Mr. Durham got into D.C. Reid’s car and directed him to drive to the area of Queen Street West and Lisgar Street. Once they arrived at that location Mr.

Durham went to an apartment at 1124 Queen Street West and returned with the powder cocaine. [ 7 ] The next day, D.C. Reid went to a briefing. His team planned to conduct surveillance at 1124 Queen Street west in order to determine who Mr. Durham’s supplier had been the day before. D.C. Reid contacted Mr. Durham and planned to pick him up. At 10:00 p.m. D.C. Reid met with Mr. Durham and they drove to the area of Portugal square. Mr. Durham went to number 575 then came back and advised D.C. Reid that the supply was not ready. [ 8 ] Later that evening D.C.

Reid drove to the area of Queen Street and Bathurst Street at Mr. Durham’s request and parked the car on the north side of Queen Street just east of Bathurst Street Mr. Durham said that he was going to meet the supplier in a Falafel Restaurant close to where D.C. Reid had parked the car. They discussed future purchases and then Mr. Durham asked the officer to give him an advance of $500.00 towards the $700.00 purchase price saying that the person he was dealing with was a “no nonsense guy”. D.C. Reid gave Mr. Durham the $500.00 and Mr.

Durham got out of the car and walked westbound towards the restaurant. [ 9 ] At this time D.C. Reid noticed a man get out from the front passenger door of a beige BMW vehicle with the licence plate marker BEKX755. He described this person as a male, white, mid to late 30s, height - 6’1” to 6’3”, weight - 280 pounds, bald with no facial hair wearing a white dress shirt and black pants. This person looked back at D.C. Reid from a distance of approximately 5 metres away and then walked westbound toward the restaurant. [ 10 ] A few minutes later D.C. Reid saw Mr. Durham and Mr.

Hendsbee walk out of the restaurant and proceeded eastbound on Queens Street towards him. D.C. Reid did not notice if they had anything in their hands. They both stopped and entered the aforementioned BMW that was parked a short distance in front of D.C. Reid’s car. The BMW then drove westbound across Bathurst Street and stopped again. D.C. Reid followed them and parked right behind them. Mr. Durham got out of the BMW and back into D.C. Reid’s car and directed him to turn south on Tecumseh and then east on Richmond and they stopped on the North side. Mr.

Durham pulled out a zip lock back containing cocaine and an empty zip lock bag. They divided the ounce of cocaine and D.C. Reid gave him the additional $200.00 he owed. D.C. Reid then returned to the police station and turned over the drug to D.C. Kim. The drug was subsequently tested by Health Canada and it was determined to be cocaine. [ 11 ] On August 6, 2009 D.C. Reid participated in a photographic line-up and identified Mr. Hendsbee as the person that got out of the BMW to meet with Mr. Durham on July 8, 2009 at the Falafel restaurant. [ 12 ] D.C.

Douglas was conducting surveillance on July 8th, 2009 and was tasked with watching the undercover officer and attending at 1124 Queen Street West At 6:39 p.m. that day he observed a silver BMW licence plate BEKX755 circling the area as if looking for a place to park. The vehicle had tinted windows. He described the tinting as light compared to aftermarket tint. D.C. Douglas’s attention was drawn to the vehicle as it appeared to him that there were a lot of places to park. His conclusion was that it was looking for a place to park that was “out of view”.

He conceded in cross examination that he did not note that in his memo book. He observed four occupants. Two males got out of the vehicle. He described the male that got out of the front passenger seat as being white, 6’3”, shaved head, clean shaven, mid 30s wearing a white dress shirt. This man was later identified as Mr. Hendsbee. He described the second male as being taller with short dark hair, and weighing approximately 260 pounds with a tattoo on one forearm, wearing blue jean shorts and white running shoes. D.C. Douglas was about 20 - 30 feet away and had a clear unobstructed view.

It was July so it was still light out. [ 13 ] Officer Douglas changed locations and at 4:45 p.m. he observed the two males go into the apartment at 1124 Queen Street west from the rear and saw them come back out to the car. [ 14 ] At 6:48 p.m. Officer Douglas was part of a team that took up surveillance of the BMW and observed it drive to 80 Carr Street. At 8:15 p.m. Officer Douglas observed all three men; the driver and the two males leave 80 Carr Street and get into the car. The car drove to various locations and returned at 8:56 p.m.

[ 15 ] Later that evening Officer Douglas was conducting surveillance on the undercover officer and Andre Durham. Officer Douglas was on Warwick St and observed the undercover officer and Mr. Durham in the undercover motor vehicle. The under- cover motor vehicle drove to an address at 575 Portugal Square and stopped there for about 20 minutes. Mr. Durham went into the address and the undercover officer stayed in the car. Mr. Durham came back and they drove to 97 Wolseley St and Mr. Durham went into the address and came out with a bag that looked like a dark grocery bag in his hand. D.C. Reid and Mr.

Durham were then observed driving to the Falafel queen restaurant on Queen Street West at approximately 11:30 p.m. Officer Douglas said that there was a lot of artificial lighting in the area and described the front of the Falafel Queen restaurant as having full windows and a door that was made of glass. [ 16 ] At this point Officer Douglas was on foot. He observed Mr. Durham enter the restaurant and then observed the same BMW X5 pull up directly in front of the undercover vehicle. Officer Douglas saw the person later identified as -Mr.

Hendsbee get out of the front passenger door and walk up to the restaurant .Officer Douglas was about 10 feet away from Mr. Hendsbee when he first got out of the car and it looked to him as if Mr. Hendsbee was carrying something in his right hand as that hand was in a fist. Mr. Hendsbee entered the restaurant and walked up to Mr. Durham. Officer Douglas observed what appeared to be bills sticking out from Mr. Durham’s hand and saw him hand it to Mr. Hendsbee and Mr. Hendsbee then gave Mr. Durham whatever was in his hand. Then both Mr. Durham and Mr. Hendsbee walked out of the restaurant and over to the BMW.

Officer Douglas was about 10 feet away when he observed the aforementioned transaction. [ 17 ] D.C. Kim was also part of the surveillance team on July 8, 2009. At approximately 6:39 p.m. he observed two males take the stairs behind 1124 Queen Street and enter into an apartment. D.C. Kim also saw Mr. Solomon driving on that day; however, he conceded in cross-examination that he did not write that in his notes. [ 18 ] Det. McLean was part of the team attending at 1124 Queen Street for the purpose of identifying a cocaine supplier. He observed a BMW X5 park on the south side of Carr St at 7:08 p.m. and observed Mr.

Hendsbee and Mr. Solomon walking north. At 8:56 p.m. he saw the BMW stop in front of the Carr Street address and saw Mr. Hendsbee carrying a black bag over his shoulder while walking with the other male to unit 19. At 11:13 p.m. Det. McLean observed the same BMW drive west bound on Queen Street west of Bathurst Street It then made a u turn and travelled east bound on Queen. He didn’t recall seeing Mr. Solomon or Mr.

Hendsbee at the time. [ 19 ] Detective Hillier was a member of the surveillance team on July 8 th , 2009 at 1124 Queen Street West At approximately 6:39 p.m. he was advised that a BMW X5 had stopped on Lisgar Street facing north with four occupants. He then observed an unknown male he described as being in his 30s, height 6’3” wearing a white dress shirt and a second unknown male who was noticeably taller with dark hair wearing blue jean shorts. This man had been sitting in the front passenger seat. The second male also had a tattoo on his right forearm.

He observed both men walk toward queen Street and then lost sight of them. [ 20 ] Det. Hillier turned his focus back to the BMW from a distance of 30 to 40 yards. He had a clear view of the car and at 6:45 p.m. he saw an unknown black male get out of the driver seat and put a black bag in the trunk. He described this man as being 6’2” tall, 230 pounds with a shaved head wearing blue jeans and a blue jersey. He also saw a female passenger get out of the car and go across to a pizza store. Det. Hillier received information that the two males he had observed previously were now headed back towards the BMW.

He saw them both get back into the BMW in the same seats they had been occupying. The BMW then went westbound on Queen Street and the surveillance team followed it to 80 Carr Street. Later at 8:14 p.m. Det. Hillier received information that a group of people had left 80 Carr St, including the driver of the vehicle and the man that had been sitting in the front passenger seat earlier that day. [ 21 ] At 11:30 p.m. that night Det.

Hillier observed the same BMW pull up in front of the undercover officer’s car and saw the male in the front passenger seat get out of the vehicle and go into the Falafel Queen and then come out and walk with Mr. Durham to the BMW. This officer was not able to see what was happening inside the restaurant. They both got into the vehicle and drove a short distance and then Mr. Durham got out of the car and went back into the undercover officer’s car. Det.

Hillier said that lighting in the area was good that evening and he had no problem seeing the people walking; however, he was not able to see into the BMW. [ 22 ] D.C . Kim was assigned to be an exhibits officer in the early morning hours of July 9 th and D.C. Reid, the undercover officer turned over a quantity of cocaine in a clear plastic bag. The bulk weight was 2.38 grams and the total weight was 14.08 grams. July 22, 2009 Police Surveillance

[ 23 ] D. C. Korac was part of surveillance team on July 22, 2009. At 8:11 p.m. he attended the area of 80 Carr Street and observed the target vehicle. A short time later he received information that Mr. Hendsbee and Mr. Solomon left unit 19 at 80 Carr Street and were followed to several locations. At 8:47 p.m. D.C. Korac observed the BMW return to the area of 80 Carr Street and walk towards an unknown male. He continued to observe them for the next minute and saw Mr. Solomon return to the BMW and remove clothing from hangers that were wrapped in plastic. Mr. Solomon walked back toward the unknown male and Mr.

Hendsbee. Then all three men walked up the stairs to unit 19 and D.C. Korac observed Mr. Hendsbee open the front door. It appeared to D.C. Korac that Mr. Hendsbee was using a key that was in his right hand. Officer Korac conceded in cross-examination that he was not sure if there was a light in the alcove where the door to unit 19, 80 Carr Street was and that he did not actually see a key. All three males went into unit 19. The October 1, 2009 Purchase of Cocaine [ 24 ] On October 1, 2009 D.C. Reid spoke to Mr. Durham and arranged to meet to purchase three ounces of powder cocaine. D.C.

Reid had planned to purchase 3 ounces of powder cocaine that day, but he had not discussed a price with Mr. Durham. D.C. Reid met Mr. Durham just after 7:00 p.m. and asked him if he could get 3 ounces. Mr. Durham told him to call him back in half an hour as his supplier was going to be picking some up. D.C. Reid called again and Mr. Durham told him he could only get two ounces and they discussed a purchase price of $2,650.00. Mr. Durham told him to wait for him at the area of Bathurst Street and Wolseley Street. D.C. Reid arrived there at 8:11 p.m. and called Mr.

Durham who told him to wait a bit longer as he was going to get it from his supplier. [ 25 ] D.C. Reid waited and a short time later he observed Mr. Durham walking northbound on the east side of Bathurst from Wolseley St and he got back into the officer’s car. Mr. Durham directed the officer to take a drive and they ended up parking on Wolseley Street close to where Mr. Durham lived. At that time Mr. Durham took some cocaine from his pocket and D.C. Reid gave him $2,654.00. They talked about a future deal and the officer left. D.C. Reid went back to the division and turned over the drugs to D.C.

Hillier. [ 26 ] D.C. Kim was part of the team conducting surveillance on October 1, 2009 on 80 Carr Street as well as the undercover officer. At 6:35 Officer Kim’s team followed the silver BMW licence plate number BEKX755, that had been parked at Carr Street to Mississauga, Bentley Drive #3250. D.C. Kim advised that his team had identified the driver as Restu Solomon. In cross-examination he acknowledged that he had not provided a detailed description of Mr.

Solomon until October 22, 2009; however, he said that he had seen him previously and he had an independent recollection of seeing him on previous occasions [ 27 ] At the Bentley Drive location an unknown male walked up to the BMW and holding a grey bag and entered the passenger side of the vehicle. About one minute later the same male and Mr. Hendsbee got out of the vehicle and were talking. The unknown male no longer had the bag. Then both males got back into the vehicle which drove around the residential area for some time and then stopped at 3355 Thomas Street where the unknown male got out. Det.

Kim had no further observations that day. [ 28 ] Det. Hillier was also part of the surveillance team that day and at 6:07 p.m., from about 4 car lengths away, he observed Mr. Hendsbee and Mr. Solomon walking up to the BMW. He recognized the men from his prior observations of them and from pictures he had seen when he prepared a photographic line-up. Mr. Solomon got into the driver’s side and Mr. Hendsbee was in the front passenger side of the car. The car was followed out to Thomas Street in Mississauga. Once there at 7:40 p.m. he observed Mr.

Solomon and an unknown black male get out of the vehicle and then get back in from a distance of 30 yards. At 7:45 the BMW travelled back to 80 Carr Street, which he described as a townhouse style condominium with multiple levels. At 9:01 p.m. Mr. Hendsbee and Mr. Solomon came out of 80 Carr Street and went back into the BMW vehicle; however, the officer was not able to follow them. [ 29 ] Det. Hillier was also the exhibit officer that day regarding the drug transaction between Mr. Durham and the undercover police officer. At 10:16 p.m. that night D.C.

Reid turned over a quantity of cocaine in a 6 by 8 inch clear zip lock bag. He took out a 4 gram sample and placed it in an exhibit envelope to send to Health Canada for testing. He took the rest of the cocaine and weighed it. The weight of the remaining cocaine was 52.7 grams and the substance did test as being cocaine. [ 30 ] D.C. Spencer was a member of the surveillance team on October 1, 2009 took over observations from another team. At 8:15 he observed the BMW target vehicle on Carr Street he observed Mr.

Solomon get out of the car and go into unit 19 of 80 Carr Street The officer was approximately 20 - 25 metres away at the time. He recognized him from previous surveillance he had done on this individual. At 8:22 p.m. he saw Mr. Durham go into unit 19 of 80 Carr St and leave at 8:28. At 9:01 p.m. he observed Mr. Solomon and Mr. Hendsbee leave unit 19 and get into the BMW target vehicle; however, the surveillance team lost the vehicle.

The October 22, 2009 P urchase of Cocaine [ 31 ] On October 22, 2009 D.C. Reid called Mr. Durham to place an order for 9 ounces of powder cocaine. Mr. Durham said he would get back to him with the price by text at 5:15 p.m. D.C. Reid didn’t get a text at that time, so he called him at 5:55 p.m. and Mr. Durham said he hadn’t contacted the supplier yet. At 7:22 p.m. the officer called again and Mr. Durham said he could sell him 6 ounces for $8,000.00 and the officer told Mr. Durham he would pick him up at 9:00 p.m. [ 32 ] D.C.

Hamlon was part of the surveillance team on this date and attended at 80 Carr St at 3:47 p.m. and observed Mr. Solomon park the car at 3:48 and go into a convenience store. Mr. Solomon walked back to unit 19 of 80 Carr Street and knocked several times. At 3:56 Mr. Solomon walked back to the vehicle and looked at a cell phone. Then Officer Hamlon saw Mr. Hendsbee open the front door of the unit. Officer Hamlon was approximately 20- 30 feet away at the time he made this observation. At 4:14 p.m. Officer Hamlon saw Mr.

Solomon take out 2 garbage bags and then go back and walk into unit 19 without knocking or using a key. At 4:57 p.m. the surveillance team had changed locations and Officer Hamlon saw Mr. Hendsbee and Mr. Solomon in front of a dry cleaning place located at 1456 Bloor Street Mr. Hendsbee was having a cigarette and Mr. Solomon was holding a paper bag in his right hand. At 4:57 they went back in and came out at 5:09 and walked out of sight of the officer. D.C. Hamlon did not recall if Mr. Solomon still had the bag. [ 33 ] D.C.

Davies was part of the surveillance team this day and at 4:13 p.m. on October 22, 2009 he was observing 80 Carr Street, unit 19 and saw Mr. Solomon walking on the street with a set of garbage bags to a lane where he threw them into a dumpster and went back into the unit. At 5:33 p.m. he was following the BMW and saw it stop on Simcoe Street. Mr. Hendsbee and Mr. Solomon got out of the car and walked to a cell phone shop and then went back to the BMW. Mr. Hendsbee was driving and Mr. Solomon was the passenger. The BMW was then followed for a significant period of time driving around the downtown core.

The vehicle finally stopped in the area of 80 Carr Street and parked. The two men left the BMW and went to the front door of unit 19 at 80 Carr Street and Mr. Hendsbee used a key to enter and they both went in. Officer Davies was about 75 feet away when he was observing this. [ 34 ] At 7:20 p.m. Officer Davies received information that Mr. Solomon had returned to the BMW and Officer Davies saw the vehicle stop on Lowther Street in the area of 66 Spadina Avenue. Mr. Solomon was the only person in the vehicle.

Officer Davies received information that a male had boarded the vehicle and had been dropped off at another location. At 7:40 p.m. Officer Davies observed the BMW back at 80 Carr Street and saw that Mr. Solomon was the driver. Mr. Solomon got out of the vehicle and was carrying a beige box that was about half the size of a standard 6 by 6 inch box. Mr. Solomon walked directly into unit 19 and did not use a key. Three minutes later he saw Mr. Solomon get back into the BMW and was not carrying anything in his hands. [ 35 ] At 8:00 p.m. the BMW came back to 80 Carr Street and Mr.

Solomon had some sandwich bags with him and again walked into unit 19 without using a key and did not knock. At 8:40 p.m. Mr. Solomon left unit 19 again and went to the BMW and drove away. Mr. Solomon returned at 9:32 and walked straight into unit 19. [ 36 ] D.C. Reid picked up Mr. Durham at 9:28 p.m. and Mr. Durham directed him to drive around for awhile. When they were at the intersection of Bathurst Street and Carr Street Mr. Durham got out of the vehicle and told the officer that he was going to get the supply and to meet him on Wolseley Street. D.C. Reid drove over to Wolseley Street and parked. Mr.

Durham came up to him and the officer asked him if he had it and Mr. Durham said yes and removed a removed a 6 by 8 inch zip lock bag that appeared to be cocaine. The officer gave the bag back to him, left the vehicle and gave the signal for the take down. [ 37 ] At 9:44 Officer Davies saw Mr. Durham go into unit 19 without knocking or using a key. Eleven minutes later Mr. Durham came out and left on foot. Approximately 2 minutes later Officer Davies received information that Mr. Durham had been arrested.

The Execution of the Search Warrant at Unit 19, 80 Carr Street [ 38 ] Officer Davies assisted with the execution of the search warrant at unit 19, 80 Carr Street. Once officer Davies entered the residence he observed Mr. Hendsbee at the top of the stairs and placed him under arrest and searched him. [ 39 ] Det. Irish assisted with the execution of the search warrant on October 22, 2009. He saw both Mr. Hendsbee and Mr. Solomon being arrested. Det.

Irish was detailed to search the kitchen and on the counter between the stove and the refrigerator he saw a black canvass bag that contained two zip lock bags, one was small sandwich bag and the other was approximately 8 by 12 inches and both had powder residue. He also seized some other items in the same area as follows; a weigh scale, blackberry, elastic bands and papers but he

was not sure whether they had been in the black canvass bag or if there were on the counter. Det. Irish searched the kitchen cabinets and found a black dextrose powder container which, according to this officer’s knowledge is used for cutting powder cocaine. While searching the kitchen he notices that he cupboards contained cutlery, cups, saucers and the types of items one would expect to find in a kitchen. Det. Irish turned everything over to D.C. Kim. [ 40 ] D.C. Korac was the central note taker on October 22, 2009 and assisted in the execution of the search warrant. D.C. Korac and Officer Davies arrested Mr.

Hendsbee. After Mr. Hendsbee was secured D.C. Korac searched Mr. Solomon and found $435.00 dollars. D.C. Korac took some keys that were inside the condominium and the keys opened the BMW. He searched the vehicle but didn’t find anything of evidentiary value. [ 41 ] At 10:01 Officer Kim assisted in the execution of the search warrant at 80 Carr St, Unit 19. When this officer first entered he observed Mr. Hendsbee at the top of the stairs. Mr. Hendsbee was arrested by D.C. Korac and Davies and Officer Kim saw Mr. Solomon in the living room and placed him under arrest Mr. Solomon advised D.C.

Kim that his address was 488 Cusis Circle, Milton, Ontario. After the arrest Officer Kim became the exhibit officer and set up a station in the living room to receive property. He received the following: • $435.00 of Canadian currency from the front right pocket of Mr. Solomon, • a clear zip lock bag of powder cocaine that weighed 8 grams from D.C. McLean, • small plastic baggies of possible Ketamine with black spade symbols on one side from D.C. Sabadin weighing 1.1 grams • a red Rogers cell phone and white cell phone and silver cell phone and Motorola charger from D.C. Sabadin. • from D.C.

Irish, a clear zip lock bag that looked like cocaine - weighed to be 4.6 grams, bulk 161.2 grams, • a scale black and silver digital scale - tested • a BlackBerry cell phone, bag with rubber bands, papers and canvas back - that was on the kitchen counter between the fridge and stove all in a black canvass shopping bag , it had everything including the powder cocaine . • various sizes zip lock with powder residue bag and 2 larger bags • Plastic dextrous powder container label 908 grams - but don’t know how much in there, it was not full.

That was located on top of kitchen cab on top of fridge used as a cutting agent [ 42 ] D.C. Kim turned over all of these items to D.C. Hiller who was the central exhibit officer. [ 43 ] Det. McLean participated in the execution of the search warrant. He found a zip lock sandwich bag on the floor beside the mattress and it contained a quantity of what he believed to be crack cocaine. The room was a bedroom and Det. Mclean observed men’s clothing on the floor and closet. He described the room as being messy as there were empty food packages and pop cans lying around. He turned the bag over to D.C. Kim. [ 44 ] Det.

McLean said that it appeared that someone was living in the condominium given the above and the fact that the television was on in the kitchen and there was food in it. There were also decorations in the unit. [ 45 ] At 9:58 p.m. that evening Det. Hillier assisted with the execution of the search warrant at unit 19, 80 Carr Street. He assisted D.C. Kim, who had Mr. Hendsbee in custody and then went back to 14 division to prepare for his role as central exhibit officer. There were five locations where search warrants were being executed that day and one of the locations was at 1124 Queen Street West . Det.

Hillier advised that on a previous occasion, prior to July 7 th , 2009, there had been a purchase of, white pills and off white powder believed to be mdma, cocaine, hashish, mushrooms and marijuana at 1124 Queen Street west [ 46 ] D. C. Spencer participated in the execution of the search warrant at 80 Carr Street unit 19 and searched one of the bedrooms. He described it as being quite bare with only a mattress on the ground. He also called the tow truck to seize the BMW target vehicle.

[47] None of the officers had any conversations with the landlord or neighbours at 80 Carr St. Legal Framework The Test for Committal on a Preliminary Inquiry [48] The issue to be decided is whether there is any evidence upon which a reasonable jury, properly instructed, could return a verdictof guilty: USA v. Sheppard (1976), (SCC), 30 C.C.C. (2d) 424 (S.C.C.). [49] Justice Hill has provided a brief

summary of the applicable principles in R. v. Pinnock [2007] O.J. No. 1599 (Ont. Sup. Ct.) perHill J.): which starts at par. 42 as follows:

(1) A justice acting under

Part XVIII of the Criminal Code pursuant to s. 548(1), "[w]here all the evidence has been taken" atthe preliminary inquiry, “shall": ... if in his [her] opinion there is sufficient evidence to put the accused on trial for the offence charged or any otherindictable offence in respect of the same transaction, order the accused to stand trial ...

(2) In forming an "opinion" as to the evidence's sufficiency to justify committal, the justice exercises a discretionary, but constrained,assessment of the evidence. The whole of the admissible evidence is to be considered.

(3) The preliminary hearing judge is obliged to determine whether there is some evidence reasonably supporting the existence of each ofthe elements of the offence charged - even if only a scintilla of evidence: (R. v. Martin, (ON CA), [2001] O.J. No.4158 (C.A.) at para. 3; R. v. Olubowale, [2001] O.J. No. 961(C.A.) at para. 8, 10) provided "it registers in the scales as any evidence atall within the Sheppard test" (R. v. McIlwain (1988), (ON SC), 67 C.R. (3d) 393(Ont. H.C.J.) at 309(McIlwain approved, R. v. Montour, [2002] O.J. No. 141 (C.A.) at para. 4; R. v. Campbell (1999), (ON CA), 140C.C.C. (3d) 164 (Ont. C.A.) at 165)).

(4) As a general rule, it is not open to a preliminary inquiry judge to assess the quality, credibility and reliability of evidence: R.v. Deschamplain(2004), 2004 SCC 76 , 196 C.C.C. (3d) 1 (S.C.C.) at 9; R. v. Savant, 2004 SCC 77 , [2004] 3 S.C.R.635, at para. 18; R. v. Cinous (2002), 2002 SCC 29 , 162 C.C.C. (3d) 129 (S.C.C.) at 172. In other words, the preliminaryinquiry is not "a forum for litigating the merits of the case against the accused": R. v. Russell (2001), 2001 SCC 53 , 157 C.C.C.(3d) 1(S.C.C.) at 11.

Where more than one inference can be drawn from the evidence, "only the inferences that favour the Crown are tobe considered": R. v. Savant, at para. 18. Because of the limited focus of a preliminary inquiry, the provincial court must commit for trialeven if the defence proffers exculpatory evidence: R. v. Savant, at para. 16.

(5) The prohibition against weighing evidence in assessing the committal question is narrowly modified where the prosecutionadduces circumstantial evidence said to point toward guilt. Circumstantial evidence is "evidence that tends to prove a factual matter byproving other events or circumstances from which the occurrence of the matter at issue can be reasonably inferred": R. v.

Cinous, at 172.The preliminary inquiry judge, in determining whether the elements of the offence may be reasonably inferred from circumstantialevidence, is permitted to engage in a "limited weighing" of such evidence as there exists "an inferential gap beyond the question ofwhether the evidence should be believed": R. v. Arcuri, (2001) 2001 SCC 54 , 157 C.C.C. (3d) 21 (S.C.C.) at 31-2. Determiningwhether "facts have been established by evidence from which [the matter in issue] may reasonably be inferred" does not require the courtto ask whether facts ought to be inferred: R. v. Cinous, at 173.

The preliminary inquiry judge is not to choose among competinginferences arising from the primary facts in evidence.

(6) Circumstantial inferences are ones which "can be reasonably and logically drawn from a fact or group of facts established by theevidence": R. v.Morrissey (1995), (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.) at 209. Most cases "will involve hiatusesin the evidence which can be filled only by inference":Lameman v. Canada (Attorney General), 2006 ABCA 392 , [2006] A.J.No. 1603 (C.A.) at para. 87. "The process of drawing inferences from evidence is not, however, the same as speculating even where thecircumstances permit an educated guess": U.S.A. v. Huynh (2005), (ON CA), 200 C.C.C. (3d) 305 (Ont. C.A.) at307.

The same point is made in C.P.R. Co. v. Murray, (SCC), [1932] S.C.R. 112 at 117 in adopting thefollowing dicta from Jones v. Great Western Railway Co.(1930), 47 T.L.R. 39 at 45: The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of nolegal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence,and if it is reasonable deduction it may have the validity of legal proof.

(7) Some inferences are strong and capable of creating practical certainty while others are weaker: Lameman v. Canada (AttorneyGeneral), at para. 94. A reasonable and logical inference to be drawn from circumstantial evidence need not be an easy one to draw (R.v. Katwaru (2001), (ON CA), 153 C.C.C. (3d) 433 (Ont. C.A.) at 444) or indeed the most obvious or compellinginference: R. v. Munoz, (ON SC), [2006] O.J. No. 446 (S.C.J.) at para. 21-31. The trier of fact, of course, assesses theevidence "in light of common sense and human experience": U.S.A. v. Huynh, at 307.

The justice is obliged to consider the cumulativeeffect of the evidence said to point toward guilt on the part of the accused. Especially in a case premised wholly or in large measureupon circumstantial evidence, it is improper to isolate a particular piece of evidence and to then discuss any probative force flowing therefrom without regard to the context of the totality of the evidence: R. v. Coke, [1996] O.J. No. 808 (S.C.J.) at para. [50] In conclusion, the preliminary inquiry is not the forum to weigh competing inferences, or to assess the quality and reliability ofthe evidence. Rather, any reasonable

interpretation or permissible inference from the evidence adduced at a preliminary inquiry, ifproperly admissible against the accused, must be resolved in favour of the prosecution.

Count one - Mr. Hendsbee and Mr. Solomon are jointly charged with trafficking in cocaine offence date: July 8, 2009 [ 51 ] In order for the crown to have Mr. Hendsbee and Mr. Solomon committed with this offence there must be some evidence that both intentionally trafficked in a substance that was cocaine, knowing that it was cocaine . [ 52 ] I will deal with Mr. Solomon first. The evidence against Mr.

Solomon regarding the July 8th, 2009 transaction is that he is observed by Officer Hillier to get out of the BMW X5 marker B3KX755 at approximately 6:45 p.m. and take a black bag and hat out of the back seat and place them in the trunk of the vehicle. He then returned to the driver’s seat. [ 53 ] He is later observed by Officer Douglas to drive to 80 Carr Street and he is observed getting into the car again with Mr., Hendsbee and a third male and subsequently drove to several locations and returned to 80 Carr Street at 8:56 p.m. [ 54 ] There is no evidence that Mr. Solomon was in the BMW at the time Mr.

Hendsbee met with Mr. Durham at the Falafel Queen Restaurant later on that night. There is no direct evidence against Mr. Solomon on this count. [ 55 ] The crown submits that Mr. Solomon should be committed on this count give subsequent observations that were made of him on later dates; however, in my view I cannot use the evidence of Mr. Solomon’s actions on later dates to establish an inference that he had formed an intention in common to traffic cocaine along with Mr. Hendsbee to Mr. Durham on July 8 th , 2009. Therefore with respect to count one Mr. Solomon is discharged. [ 56 ] With respect to Mr.

Hendsbee the crown has, in my view, called evidence upon which a reasonable jury, properly instructed could make a reasonable and logical inference that Mr. Hendsbee was trafficking in cocaine on July 8 th given the following; • Mr. Hendsbee is observed attending at 1124 Queen Street West where a drug transaction had occurred one day earlier involving an undercover officer • Later in the day Mr. Hendsbee meets with Andre Durham shortly after Mr. Durham secures a deposit of $500.00 from the undercover officer and advises the officer that he is going to get the powder cocaine from his supplier • Mr.

Hendsbee is observed to have something in his hand which is exchanged for money from Mr. Durham • Mr. Durham returns to the undercover officer after meeting with Mr. Hendsbee and exchanges a zip lock bag with a white powdery substance for the balance of the $700.00 • The undercover officer identifies Mr. Hendsbee as the person who met with Mr. Durham from a photographic line up • The substance purchased by the undercover officer tested as being cocaine Count two - Mr. Hendsbee and Mr.

Solomon are jointly charged with possession of cocaine for the purpose of trafficking on October 22, 2009. [ 57 ] The crown must call some evidence that both Mr. Hendsbee and Mr. Solomon knew that they were in possession of cocaine and that it was for the purpose of trafficking. [ 58 ] Possession is defined in the criminal code in section 4(3) of the Criminal Code . Possession

(3) For the purposes of this Act, (

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

i) has it in the actual possession or custody of another person, or

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

b) where one 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. [59] Whether someone is in joint possession of something pursuant to the definition found in s. 4(3) (b) , is a matter of fact to bedetermined on the evidence based on the inference to be drawn in each case. See R. v. Pham (ON CA), [2005] O.J.No. 5127. Joint possession requires knowledge of the nature of the subject-matter, consent to its possession or custody by another andsome measure of control over it.

See, R. v. Terrence, (SCC), [1983] 1 S.C.R. 357, 4 C.C.C. (3d) 193, 194, 197-8. [60] In my view, despite the fact that neither Mr. Hendsbee or Mr. Solomon had drugs on their person, the crown has evidence uponwhich a reasonable jury, properly instructed could make a reasonable and logical inference that Mr. Hendsbee and Mr. Solomon were injoint possession of the cocaine found during the execution of the search warrant at 80 Carr Street Unit 19, for the purpose of traffickingon October 22, 2009 based on the following evidence: • Both Mr. Hendsbee and Mr.

Solomon had a strong association with the address of 80 Carr Street unit 19 • Both gentleman were seen entering and leaving the address on numerous occasions without knocking on the door • On at least two occasions it appeared that Mr. Hendsbee was using a key to open the door of the unit • Mr. Solomon had been observed taking garbage bags out of the unit and throwing them in a dumpster • Mr. Solomon had been observed bringing dry-cleaning into unit 19, 80 Carr Street • Mr. Durham had been observed attending the address on that day and had sold cocaine shortly after to the undercover officer • Both Mr.

Hendsbee and Mr. Solomon were located in the residence at the time of the execution of the search warrant • Drug paraphernalia and bags with powder residue were located in a black bag sitting on the kitchen counter and • A zip lock bag containing cocaine was found in the bedroom beside the mattress in plain view which contained cocaine [61] For the same reasons both Mr. Hendsbee and Mr. Solomon will be committed on count three, possession of Ketamine and Mr.Solomon will be committed on count 4, possession of property obtained by crime.