r v. Domenico, 2021 QCCQ 6620

R. c. Giannelli 2021 QCCQ 6620 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL «Criminal and Penal Division Division» No: 500-01-182417-185 DATE: July 29, 2021 ____________________________________________________________________ PRESIDING BY: THE HONOURABLE MYLÈNE GRÉGOIRE, JCQ _____________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v. Domenico GIANNELLI

(001) Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ I. OVERVIEW [ 1 ] The accused stands charged with three(3) counts of having in his possession for the purpose of trafficking different substances of

Schedule 1 , committing thereby the indictable offences provided by section 5(2)(3)

a) of the Controlled Drugs and Substances Act (hereinafter “ CDSA ”). [ 2 ] The charges were laid following the issuance and the execution of a search warrant on December 18, 2018, under section 11(1) of the CDSA , for the 105 Milton Street, apartment 1101, in Montreal.

Present on the scene at the time of the police intervention, the accused and his co-accused, Natalie Anne Fairfax, are arrested. [ 3 ] Several drugs and items are seized by the police. [ 4 ] At the opening of their trial on September 10, 2020, both accused submitted applications for exclusion of evidence pursuant to sections 8 and 24(2) of the Canadian Charter of Rights and Freedoms ( hereinafter “ Charter ”), which the Court dismissed on October 8, 2020. [ 5 ] On November 9, 2020, Natalie Anne Fairfax pled guilty to all three (3) counts. [ 6 ] On July 9, 2021, she was sentenced to two years less a day of imprisonment with a probation order of two years. [ 7 ] The accused’s trial continued and ended on May 14, 2021.

He did not testify. For his defense, Natalie Anne Fairfax took the witness stand to say that the accused has no involvement whatsoever in this case. [ 8 ] Defense counsel suggests this evidence should raise a reasonable doubt in the Court’s mind regarding possession and asks the accused be acquitted of all charges. It also argues Crown’s evidence is insufficient to support a conviction. [ 9 ] Crown counsel submits that Ms.

Fairfax testimony should not be believed, nor should it raise a reasonable doubt in the Court’s mind regarding the elements of possession for the purpose of trafficking of the drugs by the accused. It also contends its evidence leads to the only one reasonable inference, the accused was in joint possession of the drugs with Ms. Fairfax that day. II. ISSUE [ 10 ] Did the Crown established beyond a reasonable doubt that the accused was in possession of the drugs seized and that he possessed them for the purpose of trafficking? III.

CROWN’S EVIDENCE [ 11 ] S/D Jérémy Hurteau acted as the main investigator in the present file. [ 12 ] The investigation started in November 2018 after the police received information from sources stating that the accused, along

with others, was involved in drug trafficking of heroin, cocaine and crack. [ 13 ] The reliability of the information received was established by using police data base, physical surveillance and controlled drug purchases by an undercover agent, all of which led to the issuance of a search warrant for the apartment 1101 at 105 Milton Street. [ 14 ] The trial reopened with the following admissions: 1. The identification of Mr. Domenico Giannelli; 2.

The chain, nature and quantity of items seized at 105 Milton Street, apartment 1101, namely : a. 7.25 g of heroin mixed with fentanyl; b. 12.16 g of crack; c. 23.64 g of cocaine; d. CAD $ 14 035 $ ; e. 3 cellular phones; f. 1 contaminated scale; g. 2 accounting books; h. Rental contract in the name of Madame Natalie Anne Fairfax for 105 Milton Street, apartment #1101, Montreal starting December 10, 2018 and ending April 10, 2019. 3. The physical surveillance reports and their contents, subject to different information mentioned in the various testimonies, of the following dates: a. November 23, 2018 (3 pages); b.

December 4, 2018 (day) (3 pages); c. December 4, 2018 (evening) (5 pages); d. December 7, 2018 (3 pages); e. December 9, 2018 (2 pages); f. December 12, 2018 (4 pages). 4. Contents reports from l’AI62567 as well the quantities and chain of possession of the narcotics traded on the following dates: a. November 23, 2018 / 2 x 0,1 g of heroin (9 pages); b. November 30, 2018 / 2 x 0,1 g of heroin (6 pages); c. December 4, 2018 / 4 x 0,1 g of heroin (10 pages); d. December 7, 2018 / 1 g of heroin (9 pages); e. December 12, 2018 / 0,7 g of heroin (9 pages); f. December 12, 2018 / 1 g of heroin (6 pages). 5.

The personal notes of S/D Tétreault #5885 of December 4, 2018 (4 pages); 6. The personal notes of S/D Samuel Couture #6836 of December 13, 14, 18, 2018, subject to different information mentioned by him during his testimony (9 pages); 7. The personal notes of S/D Cédric Maréchal #5567 of December 18, 2018, subject to different information mentioned by him during his testimony (3 pages); 8. Videos of cameras installed at 105 Milton Street, Montreal (C/D): a. Day of December 14, 2018; b. Day of December 15, 2018; c. Day of December 18, 2018. 9.

Pictures description and pictures of 105 Milton Street, apartment 1101, December 18, 2018 (22 pages); 10. Search resume (5 pages);

11. Exhibits list (3 pages); 12. Apartment 1101 of 105 Milton Street plan (1 page); 13. Green Book (8 pages). [ 15 ] Besides the testimony of S/D Hurteau (SPVM), the Court also had the opportunity to hear several other officers from the Service de Police de la Ville de Montreal (SPVM): Officer Julien Daigneault, S/D Samuel Couture, S/D Louis-Pierre Tétreault, S/D Simon Grisé and S/D Cédric Maréchal. Officer Charles Voyer from SM Châteauguay took the stand as well. [ 16 ] The Court learned that at the beginning of the investigation, police attention was brought on a man called Benson Joseph.

The address of 1201 Hope Street also became of interest. Rapidly, with some physical surveillance, the police force notices that Benson Joseph is in contact with the accused in the present file. [ 17 ] To summarize, here are the key elements revealed by the evidence: ➢ At 14:24 on November 23, 2018, [1] an undercover agent buys $60 of heroin from Benson Joseph. At 13:57, before the conclusion of the deal, Benson Joseph tells the undercover agent that he didn’t have heroin (“smack”) but he could call a guy for him.

He calls back at 14:19 to set up the meeting. ➢ At 16:47 on November 30, 2018, [2] the undercover agent buys $60 of heroin from Benson Joseph and receives the drug in front of 1201 Hope Street from Vincent Williamson. ➢ On December 4, 2018, [3] the undercover agent contacts Benson Joseph and asks for heroin. It’s 11:28. They meet around 11:43 at a McDonald’s restaurant on Ste-Catherine Street. At 12:00, Benson Joseph asks for the money ($120) and tells the agent he will go get supplies. That brings them to the Hotel Comfort Suites Downtown, at 1214 Crescent Street.

Benson Joseph enters the hotel without anything in his hands. At 12:46, Benson Joseph texts the undercover agent and asks him to wait in the hotel lobby. S/D Louis-Pierre Tétreault sees Benson Joseph getting out of room #308 with a white plastic bag in his hands. Shortly after, S/D Tétreault meets with the manager of the hotel and receives the information that room #308 is rented by Natalie Anne Fairfax and that Domenico Giannelli (the accused) is in the room as well.

At 12:51, Benson Joseph gets out of the 1214 Crescent Street with the white plastic bag, meets with the undercover agent and proceeds to the drug transaction. Inside that plastic bag, the agent observes 15 packets of heroin contained in another larger transparent bag. At 16:38, S/D Tétreault sees Natalie Anne Fairfax getting out of the hotel with a suitcase and a black backpack. A surveillance team follows her as she drives a black Pontiac Torrent. About 10 minutes later, S/D Tétreault observes the accused leaving the hotel.

At 21:54, the accused is seen by the police surveillance getting out of the 1955 St-Jacques Street, approaching parked cars and going back in the lobby of the building. At 22:03, Natalie Anne Fairfax parks her vehicle in front of 1955 St-Jacques Street. The accused, empty handed, goes to the driver’s side, lean over and discusses with Ms. Fairfax. At 22:05, while Ms.

Fairfax drives away, the accused is observed getting back in the 1955 St-Jacques Street with an envelope in his left hand. ➢ At 12:50 on December 7, 2018, [4] S/D Simon Grisé sees the accused in the lobby of the Hotel “Le Chabrol” (6951 St-Jacques) and then entering room #400. At 12:52, Benson Joseph enters the same room. At 13:21, Benson Joseph leaves the hotel by taxi, empty handed. At 14:21, Benson Joseph is seen getting out the 1201 Hope Street and meets with the undercover agent in an alley nearby.

At 14:23, Benson Joseph sells him one gram of heroin in exchange for $180. ➢ On December 9, 2018 , at 11:25, an observation post is set up at the Hotel “Le Chabrol”. At 12:13, the accused leaves the lobby of the hotel accompanied by an unknown individual. [ 18 ] At 00:32 in the night of December 12, 2018, two officers from SM Châteauguay, Charles Voyer and Erika Grondin, stopped the vehicle driven by the accused, who parks his car in the entrance of 45 Vanier Street, in Châteauguay.

He identifies himself with his “Ontario driver’s license”, which is apparently valid. [ 19 ] The address coming from de police database for the accused “Quebec driver’s license”, is in Ville Lasalle. This license is sanctioned. [ 20 ] Consequently, the officers give him a statement of offense for driving with a sanctioned license. When asked which address they should use to write the statement, the accused gives the 45A Vanier Street in Châteauguay, instead of the one appearing on his “Ontario driver’s licence”.

[ 21 ] A few days later, officer Voyer is contacted by the investigator S/D Hurteau and relayed him the information about the interception of December 12, 2018. ➢ On December 12, 2018, [5] the undercover agent will make two drug transactions with Benson Joseph at 1201 Hope Street. During the first purchase at 12:23, Benson Joseph tells him to be careful because the heroin (0,7

g) might be mixed with Fentanyl. Later that day, the undercover agent asks for another gram of heroin. At 16:27, Benson Joseph presents himself with another man, identified as Vincent Williamson. Benson Joseph requests that the agent give $225 to Williamson. Then, Joseph hands him over the packet of heroin. ➢ December 12, 2018, at 15:38: An observation post is set up at 45A Vanier Street in Chateauguay, an address linked to the accused. A vehicle Audi “W96PXZ” is parked in the entrance. At 18:28, the accused gets out of the residence with a black shoulder bag and put it in the trunk of the Audi.

He then goes to the back of the parking lot. Two women and a child also get out of the house, head to the back of the parking lot and take place in another vehicle. They leave without the accused. The accused retrieves the black shoulder bag from the trunk of the Audi and leaves the premises. At 19:15, the accused parks the Audi in the back of the 105 Milton Street, and enters the building at 19:17. ➢ December 12, 2018 , at 22:10 (21:10 actual time): Ms. Fairfax arrives at 105 Milton Street, moving some furniture inside the lobby of the building. [6] Later that evening, Ms.

Fairfax and the accused are seen leaving the building together and taking place in a Kia Optima. [7] [ 22 ] During a surveillance operation on the morning of December 13, 2018, at around 8:30, S/D Samuel Couture notices the presence of the Audi “W96PXZ” in the parking lot located in the back of 105 Milton Street. [ 23 ] At 12:30, with the assistance of the manager of the building of 105 Milton Street, S/D Couture views the images of the surveillance cameras for December 12, 2018.

He notices that a white KIA “X13EDC” is parked besides the Audi “W96PXZ”. [8] [ 24 ] S/D Couture testified that every video sequences that appears on exhibit P-8 are scenes from 105 Milton Street.

On certain ones, we can observe the lobby and on others, the hall leading to the elevator. [ 25 ] Except for the videos of December 18, 2018, the time inscribed on the images is later by an hour than the actual time. [ 26 ] This explains why S/D Couture, when viewing video images, writes in his notes [9] that on December 12, 2018 at 20:18 , the accused is seen entering the building of 105 Milton using a microchip that corresponds to apartment 1101. In fact, it was around 19:17 as reflected in the surveillance report of that date [10] .

The Court was no provided with that specific sequence. [ 27 ] On the morning of December 14, 2018, S/D Couture meets once again with the manager of the building of 105 Milton Street. The manager confirms that the microchip used by the accused is linked to the apartment 1101. [ 28 ] Viewing subsequent videos of 105 Milton Street will reveal the following facts: ➢ December 14, 2018, 16:30:51 (15:30 actual time): The accused comes into the building, enters the hall using the microchip and takes the elevator.

He is by himself and wears a black shoulder bag. [11] 22:37:22 (21:37 actual time): The accused, alone again, enters the building using the microchip at the end of which is hung a key. He holds the device with his right hand while he carries a paper bag with his left hand. He is not wearing his shoulder bag. [12] 22:37:58 (21:37 actual time): A few seconds later , Ms. Fairfax arrives holding beverages with her left arm, a black purse on her shoulder and nothing in her right hand. The accused opens the door for her. [13] 22:38:05 (21:38 actual time): The accused and Ms.

Fairfax walk through the hall together and take the elevator. [14] ➢ December 15, 2018, 22:23:20 (21:23 actual time): The accused enters the 105 Milton Street with Vincent Williamson. Again, he uses a microchip to enter the hall and proceeds to get into the elevator.

He still wears his black shoulder bag while Williamson is empty handed. [15] 23:59:37 (22:59 actual time): The accused and Williamson get out of the elevator. [16] 23:59:43 (22:59 actual time): The accused and Williamson leave the building, the accused with his shoulder bag on and Williamson with a white plastic bag in his left hand. [17] [ 29 ] Due to his police experience and in light of the whole investigation, S/D Hurteau is able to say this contact between the two men is related to the world of narcotics. [18] [ 30 ] To complete the video evidence, two last sequences were introduced: ➢ December 18, 2018, 03:24:01: The accused enters the building. [19] Alone and still wearing his black shoulder bag, he uses the microchip to get in the hall and at 03:24:16 , he gets in the elevator. [20] [ 31 ] On the morning of December 18, 2018 , a surveillance operation starts at 8:36 at 105 Milton Street, as well as in the parking lot

where two vehicles associated to Ms. Fairfax and the accused are parked (a KIA “X13EDC” and an Audi “W96PXZ”). [21] [ 32 ] S/D Cédric Maréchal is the officer in charge of the operation. Several of his colleagues are also present. [ 33 ] During that period, neither the accused nor Ms. Fairfax are seen leaving the 105 Milton Street. [ 34 ] At 15:43, the Swat Team (“Groupe Tactique d’intervention” or “GTI”) proceeds to a dynamic entry in the apartment 1101 to execute the search warrant issued the same day. [22] [ 35 ] S/D Maréchal is the first to enter. He describes the apartment as a 1 ½ studio.

The accused [23] comes toward him with a cellular phone in his left hand. [24] The officer pushes him on the bed where he is immediately arrested and handcuffed. [ 36 ] Ms. Fairfax is located in the bathroom, taking a shower.

She is arrested as well. [25] [ 37 ] As the search begins at 15:46, S/D Maréchal notices on the floor near the bathroom, where he had his first contact with the accused, a little tissue bag in which 7,25 grams of heroin are found. [26] [ 38 ] Several other items are seized and many pictures taken; [27] the search is completed at 18:00. [ 39 ] S/D Hurteau tells the Court that after the accused’s arrest, when time came to fill the information sheet of the detainee, Mr. Domenico Giannelli gave the officers the 105 Milton Street, apartment 1101 as his current address. IV.

DEFENSE EVIDENCE [ 40 ] The accused exercised his right to remain silent. The evidence tendered in defense consists of the testimony of Ms. Natalie Anne Fairfax, the co-accused in the file. [ 41 ] In December 2018, Ms. Fairfax and the accused have known each other for about two years. [ 42 ] Ms. Fairfax explains that a week before her arrest, she rented the 105 Milton Street, apartment 1101, and signed the lease under her own name. [28] This location was intended to serve exclusively as a drug stash.

Nobody was actually living there. [ 43 ] She said that her involvement was planned for a month while she would act as the custodian of the illicit drugs. [ 44 ] In order to explain the presence of the accused at the time of the GTI intervention on December 18, 2018, Ms. Fairfax says that she asked him to come to visit her. [ 45 ] The accused is simply a friend in whom she confides in. [ 46 ] According to her testimony, the accused was never at the apartment of 105 Milton Street in her absence. In fact, the accused didn’t have access to the building. He never even had the key of the apartment door.

Upon arrival, he would have to phone her and she would come downstairs to open the door. [ 47 ] They were times she would send the accused to a store; she would then give him the microchip in order for him to get back inside the building. [ 48 ] At the end of her testimony in chief, Ms. Fairfax is asked what was the implication of the accused in the present file which she answered he had none. [ 49 ] During cross-examination, Ms.

Fairfax says that the accused didn’t live at 105 Milton Street, apartment 1101 although she didn’t know his current address. [ 50 ] She confirms that this “Airbnb apartment” was obviously nothing else than a drug stash. It was not a place to live. [ 51 ] Ms. Fairfax can’t tell exactly what kind of job the accused had in December 2018 but says he was working for a CLSC. [ 52 ] On December 18, 2018, Ms. Fairfax affirmed that she and the accused stayed in the apartment all day. At the time of the police intervention, she had just gotten out of the shower. Ms.

Fairfax confirms that the accused had a black bag with him. [ 53 ] As for Mr. Vincent Williamson, he is a friend of the accused. Mr. Benson Joseph worked as a drug seller. [ 54 ] Unable to identify the person for whom she was working, Ms. Fairfax said he was the one in charge of paying the rent. That person was not aware of the comings and goings of the accused at 105 Milton Street, apartment 1101 as she never told him. She only saw the persons who came to deliver the drug packages (Ziploc bags) and never asked for their names. V. ANALYSIS A.

W.(D.) [29] : when the accused does not testify APPLICABLE LAW [ 55 ] The case at bar is not in a traditional application case of W.(D.) where the evidence mainly relies on two contradictory versions, the classic “he said/she said” situation where the accused testifies . [ 56 ] Here, the accused did not testify. However, he did call evidence (Ms. Fairfax’s testimony) which was in direct opposition to the

Crown’s theory regarding the joint possession of the drugs seized at 105 Milton Street. [ 57 ] A trial judge is required to apply the well-known principles set out in W.(D.) not only in relation to an accused’s testimony but also to all potentially exculpatory evidence. [ 58 ] The Ontario Court of appeal recognized in R. v. B.D. [30] , that W.(D.) framework might also be applicable to cases where the accused did not testify.

The following statement is still echoed in recent case law: [114] Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown’s case, the trial judge must relate the concept of reasonable doubt to those credibility findings.

The trial judge must do so in a way that makes it clear to the jurors that it is not necessary for them to believe the defence evidence on that vital issue; rather, it is sufficient if – viewed in the context of all of the evidence – the conflicting evidence leaves them in a state of reasonable doubt as to the accused’s guilt: Challice . In that event, they must acquit. [ 59 ] To summarize the long known principles of W. (D.) application, [31] the decision of the Ontario Justice Peter Martin in R. v.

Gray [32] reveals itself as a reference : [42] […] Since W(D) , many courts, including the Supreme Court, have emphasized that the importance of W(

D) is the message, not a literal incantation of certain words that may or may not apply in every case. […] The proposed test, as enunciated in W(D) , could benefit from further refinement. Until then, it may be helpful simply to remember that the objective is to inform the jury that: (

i) The burden of proof is on the Crown to establish the accused’s guilt beyond a reasonable doubt, and that burden remains on the Crown so that the accused person is never required to prove his innocence, or disprove any of the evidence led by the Crown. (ii) In that context, if the accused’s evidence denying complicity or guilt (or any other exculpatory evidence to that effect) is believed, or even if not believed still leaves the jury with a reasonable doubt that it may be true, then the jury is required to acquit. (iii) While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not a credibility contest requiring them to decide that one of the conflicting versions is true.

The inability to decide between exculpatory evidence and other evidence that incriminates the accused will usually indicate that the jury has a reasonable doubt, which again must work to the benefit of the accused. (iv) In the event the accused’s evidence (or where applicable, other exculpatory evidence) is entirely disbelieved such that it does not raise a reasonable doubt, the jury may not convict unless it is satisfied that the Crown has proven the accused’s guilt beyond a reasonable doubt by other evidence that the jury does accept. [ 60 ] In assessing the testimonies, the Court must evaluate them, at each step, in the light of all the evidence.

The Court can believe any testimony in part, in its totality or simply reject it. [ 61 ] It should also be noted that the concepts of credibility and reliability remain fundamentally different. Credibility relates to the witness himself and to his truthfulness, veracity and integrity, while reliability relates to the accuracy and quality of his account. [33] APPLICATION TO THE CASE AT BAR [ 62 ] In a very laconic testimony, Ms.

Fairfax claims the accused is innocent, stating that she was the only one in charge of the drug stash and consequently in “possession” of the seized items, not him. [ 63 ] Her vague and unprecise testimony is akin to a general denial. [ 64 ] In light of the whole evidence, the Court considers that extremely important elements tarnish her reliability and her credibility. [ 65 ] Ms. Fairfax states the accused was a friend for two years, close enough to confide in him about personal concerns.

She declares he was not living at 105 Milton Street. [ 66 ] In that context, it is baffling to the Court that she is unable to state his address or precisely the job he does and where. [ 67 ] The Court does not believe that she was the only one having control over that apartment especially in a context where the accused, upon arrest, gave the police the 105 Milton Street as his current address. On top of that, certain objects belonging to him were seized there during the search. [ 68 ] The Court takes note that Ms.

Fairfax rented the apartment under her name [34] and was acting as a custodian of the drug stash but the evidence clearly reveals that the accused had free access to this place as well. [ 69 ] It is not uncommon to see drug organisations, no matter their magnitude, use people with no history, like Ms. Fairfax, to act as a front for their illicit activities and thus avoid drawing attention to them. [ 70 ] Ms. Fairfax’s assertion as to the duration of her involvement is contradicted by the admission filed under P-2h).

While she said it was for a month, the rental contract reveals that the lease started on December 10, 2018 and was supposed to end on April 10, 2019. [ 71 ] The Court cannot rely on Ms. Fairfax’s testimony either when she says the accused didn’t have a key nor a microchip for the apartment 1101 and that he was never there in her absence. Just like her claim that the door ringer didn’t work.

Those assertions are contradicted by the results of the different surveillance as well as the video evidence. [35] [ 72 ] The Court there concludes that all the video sequences show without a shadow of a doubt that the accused was at all time in possession of a microchip that gave him access to the 105 Milton building, without needing the intervention of Ms. Fairfax or anyone

else for that matter. [73] In fact, he is seen using that microchip on several occasions and at different times, day and night: December 12, 14, 15 and 18,2018. He is observed entering and getting out sometimes alone, sometimes accompanied; Ms. Fairfax and Mr. Vincent Williamson areamong those people. [74] More specifically, on December 18, 2018, the accused arrives alone, in the middle of the night (at 3:24 a.m.), and enters the 105Milton building using his microchip. [75] Ms. Fairfax and the accused didn’t leave the apartment all day. [76] Let us remember that when the police burst into the apartment, Ms.

Fairfax and the accused were not sitting down discussing,contrary to her declaration while explaining the accused’s presence.

She was in the bathroom, getting a shower. [77] The accused also seemed at ease wearing a tank top, this December 18, 2018. [78] Simply said, the accused’s evidence denying guilt is not believed, and does not leave the Court with a reasonable doubt that itmay be true. [79] Now, unlike the controlled drug purchases made by the undercover agent directly from Benson Joseph or through VincentWilliamson, no such evidence has been presented in relation to the accused. [80] But the rest of the evidence, taken as a whole, is convincing. B.

Direct and circumstantial evidence and the concept of “possession” APPLICABLE LAW Direct and circumstantial evidence [81] There are two types of evidence: direct and circumstantial. [82] Witnesses who describe what they personally saw or heard are providing direct evidence. Circumstantial evidence involves proofof inference. [83] An inference is a deduction of fact that may be logically and reasonably drawn from another fact or group of facts established inthe proceedings. [84] Recently, in R. v.

Lights,[36] the Ontario Court of appeal, inspired by the teachings of Villaroman[37], reiterated that: [36] When the Crown’s case consists wholly or substantially of circumstantial evidence, the standard of proof requires the trier of factbe satisfied beyond a reasonable doubt that the accused’s guilt is the only reasonable inference to be drawn from the evidence as a whole:R. v.

Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 20. [37] To determine if the circumstantial evidence meets the required standard of proof, the trier of fact must keep in mind that it is theevidence, assessed as a whole, that must meet this standard of proof, not each individual piece of evidence that is but a link in the chainof proof: R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at paras. 81-82; R. v. Morin, (SCC), [1988] 2 S.C.R. 345, atpp. 360-61; Côté v. The King (1941), (SCC), 77 C.C.C. 75 (S.C.C.), at p. 76. [38] Inferences consistent with innocence need not arise from proven facts.

Rather, they may arise from a lack of evidence: Villaroman,at para. 35. Accordingly, a trier of fact must consider other plausible theories and other reasonable possibilities inconsistent with guilt solong as these theories and possibilities are grounded on logic and experience. They must not amount to fevered imaginings orspeculation. While the Crown must negate these reasonable possibilities, it need not negate every possible conjecture, no matter howirrational or fanciful, which might be consistent with an accused's innocence: Villaroman, at paras. 37-38. See also R. v.

Bagshaw, (SCC), [1972] S.C.R. 2, at p. 8. [85] Circumstantial evidence need not totally exclude every other conceivable inference. Alternative inferences sought to be drawnmust be reasonable and based on the evidence, not just theoretically possible. In that sense, the law does not require that proof reach thelevel of absolute certainty.

The concept of “possession” [86] What are the essential elements of the offense of “possession for the purpose of trafficking” set out in the CDSA? [87] The actus reus which the Crown must establish on a charge of possession of a controlled drug varies in accordance with theform of possession contemplated by the indictment. [88] The meaning of “possession” at

section 2 of the CDSA refers to the definition of subsection 4(3) of the Criminal code whichinclude distinct types of “possession”. They are: “Personal possession”: Section 4(3) of the Criminal Code provides that “a person has anything in possession when he has it in hispersonal possession”. To show personal possession, the Crown must establish the following three elements: some form of physicalcontact between the accused and the drug, a measure of control over the drugs and knowledge by the accused of what the substance is. “Constructive possession”: “Constructive possession is established where the accused did not have physical custody of the object in

question, but did have it “in the actual possession or custody of another person” or “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” ( Criminal Code , s. 4(3) ( a )). Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his “use or benefit” or that of another person [38] ”. “ Joint possession ”: Paragraph 4(3) (

b) of the Criminal Code provides that, where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

It is clear that joint possession has three essential elements: knowledge, consent, and a measure of control on the part of the person deemed to be in possession. [ 89 ] In its submissions, the Crown mainly invokes the concept of “joint possession” although the Court is of the opinion that the facts of this case also call the concept of “constructive possession”. [ 90 ] As for the mens rea, there are two fundamental issues concerning the fault requirement when Crown proceeds with a charge of possession for the purpose of trafficking; knowledge and intent. [ 91 ] First, the Crown must prove beyond a reasonable doubt that the accused knew that he had possession of a controlled or prohibited substance.

Second, the accused must be shown to have intended to traffic the drug possessed. APPLICATION TO THE CASE AT BAR [ 92 ] What is the nexus between the drugs seized and the accused?

Was he in “possession” of the drugs? [ 93 ] Is proper inferences of knowledge by the accused and his intent to traffic ought to be drawn from the evidence taken as a whole? [ 94 ] In the present file, even if most of the evidence is circumstantial, several elements consist of direct evidence, such as physical surveillance, controlled drug purchases, video recordings and the results of the search itself. [ 95 ] Counsel for the accused took the position that the evidence supports a number of alternative inferences, only one of which points to the guilt of the accused. [ 96 ] The Court does not agree. [ 97 ] Benson Joseph is identified by Ms.

Fairfax as a drug seller, working for the same organisation as hers, and Vincent Williamson as the accused’s friend. These facts have in no way been contradicted. [ 98 ] During the course of the investigation, between November 23, 2018 and December 18, 2018, Ms.

Fairfax, Vincent Williamson, Benson Joseph and the accused were seen on different occasions interacting together in a context described as “narcotics contacts”. [ 99 ] On December 4 and 7, 2018, the accused was specifically observed near the location on time, or close to the time of the controlled drug purchases. [ 100 ] Defense counsel argues that, in regards of the evidence concerning December 4, 2018, there are contradictions between the physical surveillance report (P-3b)), the one of the undercover agent (P-4c)) and the personal notes of S/D Tétreault. [ 101 ] More specifically, defense sustains that the differences in the annotation of hours should lead the Court to conclude to a lack of reliability of that evidence.

Furthermore, the police did not verify the information received by the manager of the hotel as to the presence of the accused in room #308 at the hotel of 1214 Crescent Street. [ 102 ] Defense sustains that the police should have taken more steps to valid information, taken more notes or seized all viewed videos.

In other words, the absence of corroboration should conduct the Court to dismiss that evidence. [ 103 ] The Court does not retain these arguments. [ 104 ] Except for a marginal difference in time, which can be explained by the various observation points of each witness, the Court retains that for the rest, they all talk about the same transaction and describe it with similar details. ➢ P-3b): Officer Julien Daigneault observes at 12h54 a controlled drug purchase by the undercover agent from Benson Joseph who recovered the illegal substance in a plastic bag. ➢ P-4c): The undercover agent notes in his report that the controlled drug purchase occurred at around (+or-) 12h52 ; the agent also reports that the drug was retrieved from a plastic bag by Benson Joseph.

The bag contained approximately 15 packets of heroin. ➢ P-5: S/D Tétreault inscribed several information in his notebook that would have occurred between 13h01 and 16h00 . That would include the observation of Benson Joseph getting out of a hotel room with a plastic bag. [ 105 ] With respect to police note-taking, this is what Justice Durno declare R. v.

Machado [39] , decision of the Ontario Superior Court: While officers’ notes are provided as part of disclosure, there is no law that I am aware of that an officer must record everything he or she did or saw in their notebook to comply with the Crown’s disclosure obligation […].

[ 106 ] She then reports the following comments of Garton J. in R. v. Antoniak , [2007] O.J. No. 4816 : 24 It should be remembered that an officer's notes are not evidence, but are merely a testimonial aid. Trial judges routinely tell officers on the witness stand that they may use their notes to refresh their memory, but that they must also have an independent recollection of the events. To elevate the absence of a notation to a mandatory finding that the event did not occur would eliminate the officer's independent recollection from the equation.

The notes would become the evidence. 25 The significance of an omission in an officer's notebook, just like the significance of an inconsistency in a witness's testimony, must be determined by the trier of fact on a case-by-case basis. [ 107 ] Of course, the more detailed are the officer’s notes, the more precise his testimony is likely to be.

Failure to do so does not automatically mean that what he reports to the Court is unreliable. [ 108 ] The Court wishes to underline that both parties agreed with several admissions (paragraph 14) including the content of physical surveillance reports and the undercover agent reports. [ 109 ] The personal notes of S/D Tétreault, S/D Couture and S/D Maréchal were also admitted subject to different information if so revealed during each of their testimony. [ 110 ] Nor during cross-examination of S/D Tétreault nor with any other police witness for that matter, did the defense succeed to attack their credibility or reliability.

They testified with rigor and concern to well inform the court. [ 111 ] As implied by defense counsel, does the police need to corroborate every element of an investigation in order for the court to give faith and credibility to the evidence? [ 112 ] Recent comments by the Ontario Superior Court in R. v. Sleiman [40] are particularly eloquent. Toscano Roccamo J. stated: The law establishes that an accused does not have the right to direct the course of any police investigation. Prosecutorial authorities, and not the defence, dictate its course.

The law is well settled that an accused does not have a constitutional right to an adequately investigated case, nor does the accused have a right to a particular kind of disclosure, or type of investigation. Further, disclosure rights of the accused do not require the police to investigate defences, nor are they required to collect and record evide nce in the most probative manner . [41] […] I add, however, that while police are not required to investigate defences, or seek out exculpatory evidence, this does not preclude the Defence from making investigative requests.

While the police have no legal obligation to undertake any investigatory work for an accused, the Crown must give such requests serious consideration. [42] [ 113 ] Here, the evidence is silent as to whether any such request has even been made by the accused or if it remained unanswered. [ 114 ] Most of defense arguments are based on an analysis of the facts in isolation instead of studying them as a whole as it should be done. Here are a few examples: ➢ P-3c): December 4, 2018, between 22h03 to 22h07: because no evidence was made as to the content of the envelope given to the accused by Ms.

Fairfax, no one can infer that it was a drug type contact. That report need to be read along with P-3b), the physical surveillance of earlier in the day of December 4, 2018 and P-5, the notes of S/D Tétreault. After that exercise, the interaction between the accused and the other individuals (Benson Joseph (the drug seller) and Ms. Fairfax) becomes obvious. ➢ P-3d): December 7, 2018, 12h50: the accused enters the room #400 at The hotel Le Chabrol. Defense claims there is no direct or circumstantial evidence that links the accused to the drug transaction made in front of 1201 Hope Street at 14h21.

At 12h52, Benson Joseph enters the same room as the accused. An hour and a half later, Joseph concludes the deal with the undercover agent (1 gram of heroin in exchange of $180). Again, the same remarks apply to the analysis that must be done in the context of the evidence as a whole. Like on December 4, 2018, the accused and Benson Joseph are seen entering the same hotel room a few minutes before the controlled drug purchase of 12h54, on December 7, 2018. ➢ P-3f) December 12, 2018: Defense counsel argues that nothing relevant came out of that physical surveillance.

The accused is seen manipulating a black shoulder bag, similar to the one he is wearing on the video evidence of 105 Milton Street and that will be seized on December 18, 2018. ➢ P-13: Green book found on the kitchen table belongs to who? ➢ P-9, photo 0017: the black bag should have been searched by police. [ 115 ] Taken individually , one could say that for some circumstantial element, the Court could draw another inference than the guilt of

the accused. [ 116 ] At the risk of repeating it, the Court’s analysis must take the evidence as a whole. [ 117 ] Doing so, evidence was made that the accused, Ms.

Fairfax, Benson Joseph and Vincent Williamson are all related and in contact with one another in the context of drug trafficking. [ 118 ] Even if 1201 Hope Street revealed itself to be one of the narcotics sales address, this doesn’t precludes to infer that Benson Joseph and Vincent Williamson obtain supplies elsewhere including 105 Milton Street, apartment 1101. [ 119 ] The behavior of Vincent Williamson observed during the surveillance of December 15, 2018, is similar to the one adopted by Benson Joseph on December 4 and 7, 2018.

Each time they go get supplies at the place the accused is. [ 120 ] The link between the accused and 105 Milton Street, apartment 1101 was clearly established. Besides, upon arrest, the accused told the police that this was his living address. [ 121 ] On December 18, 2018, the accused and Ms. Fairfax have not left the 105 Milton Street, apartment 1101 all day. On that aspect, Ms. Fairfax corroborates the police observations. [ 122 ] Nobody else entered either. Ms. Fairfax and the accused were the only people present at the time the search warrant was executed. [ 123 ] As Ms.

Fairfax firmly stated, the apartment 1101 of 105 Milton Street was a drug stash. The whole investigation, the results of the search [43] along with the pictures [44] taken, support that assertion. [ 124 ] No full wardrobe, no pantry or crockery set were in the apartment.

With the exception of a few items, the cupboards were almost empty. [ 125 ] On the other hand, some material usually attributed to the world of narcotics was found such as: [45] ➢ A cauldron soiled with white powder; ➢ A measuring cup and a plastic container soiled with white powder; ➢ A box of baking soda. [ 126 ] Less than a minute after the dynamic entry of all police officers, S/D Maréchal found a little bag containing 7,25 grams of heroin mixed with fentanyl [46] on the floor right where he got in contact with the accused as they busted in. [ 127 ] Let us remember that on December 12, 2018, the undercover agent was cautioned by Benson Joseph to be careful, that the heroin may contain fentanyl. [47] This evidence adds to the important circumstantial evidence. [ 128 ] During the search, personal effects and documents belonging to the accused were located in the apartment. [48] His wallet and a piece of identification in his name were on the kitchen table.

As for his black shoulder bag, it was recovered under that table. [49] [ 129 ] This black shoulder bag or a similar one was in possession of the accused on December 12, December 14, December 15 and December 18, 2018 [50] as revealed by the evidence. [ 130 ] On December 18, 2018, at 03:24:01, using his microchip, the accused enters the building [51] alone, wearing his black shoulder bag. [52] [ 131 ] Ms.

Fairfax confirmed the accused owned such a bag. [ 132 ] In the accused shoulder bag, the police found the following items: ➢ Accounting sheets with inscriptions usually related to drug trafficking; [53] ➢ Documents related to the Audi driven by the accused during the physical surveillance; [54] ➢ CAD $10 300 in the front pocket of the bag. [55] [ 133 ] In Ms.

Fairfax’s purse, in different compartments, police found bundles of money, [56] and an accounting book. [57] Several cards under her name were in there as well. [ 134 ] Police noticed in plain view on the kitchen table, two cellular phones, [58] a big Ziploc bag containing 23,64 grams of cocaine [59] placed on top of a baby wipes box. In that box, they found a contaminated scale [60] and 12,16 grams of crack in several packets [61] and other unused bagging equipment. [62] [ 135 ] Right beside the baby wipes box is a green book. [63] We can read in that book the inscription of the address of “1201 Av.

Hope #205”, others that seem to be accounting notes, names and rates of different hotels or rentals, and another one with personal information related to Benson Joseph.

[ 136 ] Whether under the angle of “constructive possession” or “joint possession”, the evidence shows that the only reasonable inference is the accused had the knowledge, consent, and a measure of control over the drugs seized in the apartment 1101 of 105 Milton Street (drug stash) for which Ms.

Fairfax was described as a custodian. [ 137 ] The circumstances of all the evidence also prove, beyond a reasonable doubt, the accused’s intent to traffic these drugs. [ 138 ] In light of the whole evidence and for the reasons amply stated above, the Court concludes the prosecution met its burden by presenting evidence beyond a reasonable doubt of the guilt of the accused and on each count.

FOR ALL THESE REASONS, THE COURT FINDS the accused guilty on all three counts. __________________________________ MYLÈNE GRÉGOIRE, JCQ M e Éric Poudrier Attorney for the prosecution M e Lory Zakarian Attorney for the accused Dates of hearing: September 10, 2020, May 13 and 14, 2021. [18] R. c. Fadel , 2015 QCCA 1233 at para 29 [31] R. v. Achuil , 2019 ABCA 299 ; R. v. Ryon , 2019 ABCA 36 . [40] R . v. Sleiman , 2018 ONSC 5741 .