His Majesty the King v. Andrew Curt Wint Restriction on Publication: s.539(1) Criminal Code TRIAL DECISION Judge: The Honourable Justice John A. Keith, 2023 NSSC 100

SUPREME COURT OF Nova Scotia Citation: R. v. Wint , 2023 NSSC 100 Date: 20230323 Docket: Hfx. No. 513337 Registry: Halifax Between: His Majesty the King v. Andrew Curt Wint Restriction on Publication: s.539(1) Criminal Code TRIAL DECISION Judge: The Honourable Justice John A. Keith Heard: January 18, 19 & 20, 2023, in Halifax, Nova Scotia Counsel: Jude Hall, for the Federal Crown Patrick MacEwen, for the Defendant By the Court: [ 1 ] Andrew Curt Wint was the subject of a police investigation into a dial-a-dope business operating in or around several towns in the Annapolis Valley.

He was arrested on December 22, 2020 near the Walmart parking lot on Damascus Road in Bedford, Nova Scotia. [ 2 ] By Indictment dated March 14, 2022, Andrew Curt Wint was charged with the following eight offences: Count 1: That on or about 22 December 2020, at or near Halifax, Nova Scotia, Province of Nova Scotia, he did unlawfully have in his possession, for the purpose of trafficking, a substance included in

Schedule 1 to wit Cocaine, contrary to Section 5(2) of the Controlled Drugs and Substances Act (“ CDSA ”); Count 2: That on the same date and place did; unlawfully produce a substance included in

Schedule 1, to wit Cocaine, contrary to

Section 7 of the CDSA; Count 3: That on the same date and place did; have in his possession proceeds of property, Canadian Currency of a value exceeding five thousand dollars knowing that all or part of the property or proceeds of the property was obtained by the commission, in Canada, of an offence punishable by indictment, contrary to Section 354(1) of the Criminal Code ; Count 4: That on the same date and place did; while not being authorized to do so, unlawfully possess cannabis for the purpose of distributing it, while contrary to Section 9(2) of the Cannabis Act ; Count 5: That on the same date and place did; operate a conveyance while prohibited from doing so by reason of an order pursuant to s. 320.24 of the Criminal Code contrary to

Section 320.18(1) of the Criminal Code ; Count 6: That on the same date and place did; escape from lawful custody after a lawful arrest, contrary to Section 145(1) (

a) of the

Criminal Code ; Count 7: That on the same date and place did; resist a peace officer to wit a police constable for the Royal Canadian Mounted Police, engaged in the execution of their duty of lawful arrest by fleeing on foot contrary to

Section 129 (

a) of the Criminal Code ; Count 8: That on the same date and place did; have unlawfully in his possession, for the purpose of trafficking, a substance included in

Schedule 1, to wit Fentanyl, contrary to Section 5(2) of the CDSA. [ 3 ] After evidence was called and at the beginning of closing submissions, the Crown invited the Court to dismiss Count 2 (unlawfully producing cocaine contrary to

section 7 of the CDSA ) and Count 6 (escaping from lawful custody after a lawful arrest, contrary to section 145(1) (

a) of the Criminal Code ) on the basis that there was no reasonable or realistic prospect of conviction based on the evidence presented at trial. [ 4 ] Based on the evidence, I agree Counts 2 and 6 should be dismissed and so order. [ 5 ] As to the remaining six counts: 1. Counts 1, 4 and 8 relate to a broader, serious allegation that Mr. Wint was engaged in a significant drug trafficking business. I note that there are three separate counts alleging trafficking in three different drugs: a. Cocaine contrary to section 5(2) of the CDSA (Count 1); b.

Cannabis for the purposes of distribution contrary to section 9(2) of the Cannabis Act (Count 4); and c. Fentanyl contrary to section 5(2) of the CDSA (Count 8). 2. Count 3 is also related to the same drug trafficking but focusses on the financial or economic component of the business. It alleges that Mr. Wint possessed cash exceeding $5,000 and obtained it through the commission of a criminal offence, contrary to section 354(1) of the Criminal Code . [ 6 ] Counts 5 and 7 relate to the circumstances surrounding Mr. Wint’s arrest – as opposed the drug trafficking charges. The Crown alleges that: 1. Mr.

Wint was driving a vehicle when prohibited from doing s o contrary to

section 320.18(1) of the Criminal Code (Count 5); and 2. Mr. Wint attempted to escape from lawful custody after a lawful arrest contrary to

section 129 (

a) of the Criminal Code (Count 7) Evidence [ 7 ] At trial, the following witnesses testified: 1. Constable Michal Gerald Robinson (“ Cst. Robinson ”), an RCMP officer and investigator with the street crime unit at the RCMP detachment in Windsor, Nova Scotia. Cst. Robinson was lead investigator in this matter involving Mr. Wint. He was involved when: a. The police obtained a Tracking Warrant to follow a cellphone now attributed to Mr. Wint; b. The police, using the Tracking Warrant, pinpointed the location of the device and began to follow its movement; c. The police arrested Mr. Wint on December 22, 2020; and d.

The police executed a search warrant later on December 22, 2020 regarding a leased Mitsubishi RVR (the “ Vehicle ”) seized in the Walmart parking lot on Damascus Road, Bedford, Nova Scotia; and e. The police executed a search warrant on December 22, 2020 at an apartment known municipally as Apartment 1106, 39 Seapoint Drive, Dartmouth, Nova Scotia and leased by Mr. Wint and Sarah Barnett (the “ Apartmen t”). The Vehicle was seized at the same time Mr. Wint was arrested. The Crown states that Mr. Wint was driving this Vehicle just prior to his arrest; 2. Constable Jeff Rideout (“ Cst.

Rideout ”), an RCMP officer who also works at the street crime unit at the RCMP Windsor detachment. Cst. Rideout assisted Cst. Robinson, was present when Mr. Wint was arrested on December 22, 2020, and also served as the exhibit officer responsible for seizing and preserving the evidence collected by the police when executing a search warrant on December 22, 2020 regarding both the Apartment and the Vehicle; 3. Sergeant Tyson Nelson (“ Sgt. Nelson ”), an RCMP officer who did not participate in the investigation but was called and qualified as an expert on: a.

The unlawful possession of cocaine, fentanyl, cannabis and methamphetamines for the purposes of trafficking; and b. The practical or logistical details around trafficking illegal drugs tracks including distribution methods, packaging and

pricing. 4. Constable Tim Cole (“ Cst. Cole ”), an RCMP officer who currently works with the street crime unit at the RCMP detachment in Bridgetown, Nova Scotia. Cst. Cole assisted in the arrest of Mr. Wint on December 22, 2020, seizing the Vehicle on December 22, 2020 and searching that same Vehicle later that same day. [ 8 ] Numerous exhibits were marked consisting largely of items which the police seized while executing the search warrants identified above. [ 9 ] The accused, Mr. Wint, elected to not call any evidence as was his right. [ 10 ] Mr.

Wint is entitled to the presumption of innocence and is not required to testify and prove anything. The burden of proof remains with the Crown throughout and they are required to prove beyond a reasonable doubt each of the essential element to the crimes summarized above. I return to this presumption below when summarizing the applicable legal principles. [ 11 ] By way of background, the police received information indicating that a person using the pseudonym “Tommy” was operating a “dial-a-dope” mobile drug business.

On November 12, 2020, Judge Rhonda Van Der Hoek granted a tracking warrant so that the RCMP could find and follow a cell phone connected to “Tommy’s” drug business. Mr. Wint subsequently challenged the validity of the tracking warrant on the basis that it breached his rights under

section 8 of the Canadian Charter of Rights and Freedoms (the “ Charter ”). I dismissed the Charter challenge at 2022 NSSC 367 . [ 12 ] The Tracking Warrant enabled the police to locate the subject cell phone and led them to the Apartment. After identifying the Apartment, the police were able to narrow their focus further to the accused, Andrew Wint, who they identified using a photo obtained from HRM police. In discussions with the building manager, the police also determined that Mr. Wint was leasing the Apartment with another person named Sarah Barnett. [ 13 ] Prior to Mr.

Wint’s arrest on December 22, 2020, the police conducted both static surveillance (i.e. observing Mr. Wint from a fixed location outside the Apartment building) and mobile surveillance (i.e. observing Mr. Wint while trailing him in a moving vehicle). Cst. Robinson testified that he observed Mr. Wint six times while positioned near the Apartment building. The day before Mr. Wint’s arrest (December 21, 2020), Cst. Robinson saw Mr. Wint on 2 occasions. On the first occasion, Mr. Wint was driving the vehicle. On the second occasion, Mr.

Wint was a passenger and another, unidentified person was driving. [ 14 ] During the pre-arrest period, police investigations yielded the following additional information: 1. The police determined that Mr. Wint was previously convicted of dangerous operation of a vehicle and was subject to an Order dated September 23, 2020 which prohibited him from operating a motor vehicle on any street, road, highway or other public place in Canada for the period September 23, 2020 – September 22, 2021; 2. Despite this driving prohibition, Mr. Wint was operating leased motor vehicles. The leases were not in his name, however.

Rather, the vehicles were leased to a person named John Boudaher. Mr. Boudaher was known to the police. He had previously been convicted of possession of prohibited drugs for the purposes of trafficking. Yet, the police also did not investigate or interview Mr. Boudaher. The lead investigator, Cst. Robinson conceded in cross-examination that, looking back, maybe he should have done this. That said, police surveillance did not uncover any other connection between Mr. Boudaher or the Apartment. In particular, the police did not observe Mr. Boudaher ever visiting the Apartment; 3. Mr.

Wint would drive in and out of the Apartment building using an underground parking garage. Police determined that a pass was required to access the parking garage; and 4. As indicated, police determined that Mr. Wint lived in the Apartment with Sarah Barnett. As part of the investigation, police discovered that Mr. Wint also associated with a man named Martell Smith from Sackville, Nova Scotia. Mr. Smith would drive a different vehicle also leased in John Boudaher’s name. Prior to the arrest, the police also observed Mr. Smith coming to and from the Apartment building. Yet, the police did not interview Mr.

Smith. [ 15 ] The police decided to arrest Mr. Wint on December 22, 2020. In preparation for the arrest, the police sought assistance from other officers including Cst. Rideout, Cst. Cole and members of the Halifax Emergency Response Team (“ ERT ”). [ 16 ] On December 22, 2022, Cst. Robinson was parked in a police vehicle outside the Apartment building, waiting for Mr. Wint to leave. He first laid eyes on Mr. Wint at about 10:00 a.m. when Mr. Wint left the Apartment building’s underground garage driving the Vehicle leased to John Boudaher, as indicated. There was a woman in the passenger seat (Ms.

Barnett, as it turned out). [ 17 ] Police surveillance followed Mr. Wint to a carpool parking lot on Sackville Drive where he pulled up next to a Ford 150 truck. This same truck had interacted with Mr. Wint on a earlier occasion. If the police made any further investigations into the driver of that truck, the Crown presented no evidence as to the results. [ 18 ] The police lost Mr. Wint shortly after this encounter with the Ford 150. The target vehicle took a left on Sackville Drive and the trailing police vehicle was caught at a red light. [ 19 ] Cst.

Rideout was tasked with operating the software and tablet being used to actually track movements of the cell phone identified in the Tracking Warrant. After the police lost Mr. Wint, Cst. Rideout stopped for a short period of time to activate his tablet and see where the tracked cellphone was located. [ 20 ] Eventually, police picked up the leased Vehicle once again. It was now at the Walmart Supercentre on Damascus Drive in Bedford, mentioned above. By the time the police witnesses arrived at this location, the vehicle was already parked. To that extent, and while police witnesses testified that Mr.

Wint was driving the vehicle when leaving the Apartment building, they could not state

definitively and based on direct, personal observation, that Mr. Wint was still driving when he and Ms. Barnett parked at Walmart about 30 minutes later. [ 21 ] In any event, at about 10:30 a.m., Mr. Wint and Ms. Barnett were observed exiting the Walmart. The ERT set into motion their plan to arrest Mr. Wint. [ 22 ] They began by throwing a distractionary device (or “flash-bang grenade”) in his direction.

Nobody from the ERT testified and none of the police witnesses provided any explanation as to why the ERT considered it necessary and appropriate to detonate a flash- bang grenade in a crowd of shoppers at the entrance to the Walmart Supercentre, three days before Christmas. [ 23 ] In any event, the device exploded with a loud bang and cloud of smoke. [ 24 ] Cst. Cole observed that people in the parking lot were taken aback. He also remembers a couple of older women responding by running away from the explosion. Mr. Wint also ran away. [ 25 ] Seeing that Mr.

Wint was running, members from the ERT pursued him on foot. Some were dressed in green uniforms. Others were in plain clothes. They were all armed with carbines which is a long gun but its barrel is shorter than a rifle, making it more compact and mobile for use as a tactical weapon. The members of the ERT who chased Mr. Wint did not testify and there was no evidence as to what they were saying to Mr. Wint, if anything. [ 26 ] Mr. Wint ran south across the parking lot towards a Canadian Tire store on the other side of Damascus Road. Cst.

Rideout testified that he drove his police vehicle to the other side of the parking lot in an attempt to cut Mr. Wint off. At this time, he observed Mr. Wint shedding things from his pockets. Mr. Wint crossed Damascus Road onto an open field near the Canadian Tire parking lot. He then slowed down, was subdued and arrested by the police. [ 27 ] After Mr. Wint was arrested, Cst. Cole located and took control of items dropped by Mr. Wint during the chase. Among the items found was the key fob for the leased Vehicle, parked in front of Walmart. [ 28 ] Cst.

Cole then assumed responsibility for taking control of the leased Vehicle; and overseeing the process of placing it on a flat bed tow truck so that it could be transported to a nearby police station to be searched. [ 29 ] In preparing the Vehicle to be towed, Cst. Cole noticed a suspicious baggie in the open compartment or pocket located at the bottom of the driver’s door. He suspected it contained drugs and said that he spoke to somebody about it.

However, he did not make a note at that time and did not do anything more until later when the Vehicle was being searched. [ 30 ] Eventually, five baggies were found in the driver’s door pocket each containing a white substance. The total weight of the five baggies was 44 grams broken down as follows: two 11 gram baggies, one 12.7 gram baggie, a 4.9 gram baggie and a 5 gram baggie. Testing subsequently confirmed that the substance in each of the baggies was cocaine. [ 31 ] Meanwhile, police were also preparing to execute a search warrant on the Apartment. As indicated, Cst.

Rideout was assigned the role of exhibit officer - responsible to preserve, photograph and properly create a record for any items seized. [ 32 ] Cst. Rideout arrived at the Apartment first. He was subsequently joined by Cst. Robinson (the lead investigator), Cst. Cole, and another RCMP officer named Constable Howe (“ Cst. Howe ”). Cst. Howe did not testify at trial but he participated on the day of Mr. Wint’s arrest and, in fact, was present when Mr. Wint was arrested. [ 33 ] Cst. Howe and Cst. Cole conducted the initial primary search. Cst. Rideout and Cst. Robinson conducted a secondary search.

Again, any item found was given to the exhibit officer, Cst. Rideout, who then photographed it, made a record of the item seized, and took the necessary steps to preserve the evidence. [ 34 ] By way of overview, the police found in the Apartment (and seized) a number of substances in various forms and packaging. The following items were put into evidence: • 1,103 grams (2.43 pounds) of cocaine. Sgt. Nelson suggested that this volume is indicative of a “high level local dealer”.

For the purposes of this decision, it is not necessary to confirm where this volume might place a dealer within the drug supply food chain. The relevant fact is that this is a significant amount of cocaine; and it should be noted that Mr. Wint does not challenge that this quantity of cocaine is consistent with a drug trafficking business. However, he properly adds that the Court cannot convict him of a criminal offence on quantity alone. More to the point, Mr.

Wint states that the Crown has not proven beyond a reasonable doubt the requisite elements of possession for the purpose of trafficking (in particular, knowledge and control of the cocaine). This involves a legal analysis which I return to below; • 23.6 grams of fentanyl and part of another 6.7 gram package that was in a single sealed package which also contained cocaine. Sgt. Nelson testified that this was a very large amount of fentanyl, particularly in Atlantic Canada where it’s use to date has been relatively low compared to other jurisdictions.

He said that police in Atlantic Canada usually see 2 grams or 5 grams of fentanyl in trafficking cases. Here again, Mr. Wint does not challenge that this quantity of fentanyl is consistent with trafficking but repeats that the Court cannot convict him of a criminal offence on quantity alone – and that the Crown has not proven all the essential elements of trafficking beyond a reasonable doubt; • 2 - 4 pounds of cannabis bud and oils. During examination in chief, Sgt. Nelson testified that this was more than he would expect for personal consumption.

However, during cross-examination he acknowledged that, in this case, the cannabis was found in a freezer which is not the best method for a trafficker to

store cannabis because the cold temperatures break down the active ingredient, THC. Sgt. Nelson further acknowledges that freezing cannabis would allow a person to break off small bits over time for personal consumption or even cooking. By contrast, he would expect a trafficker would be more interested in quick turnover of the product, not long-term storage. As well, a trafficker would often separate cannabis into smaller “dime bags” for sale – as opposed to keeping large amounts in a single container. [ 35 ] The police also seized other items which the Crown states is indicative of a drug trafficking operation.

The following chart breaks down all of the various items located in the Apartment and placed in evidence. It also identifies where, within the Apartment, police witnesses say the items were found.

ITEM PACKAGING AND WEIGHT LOCATION Cocaine 32 g (bag) Locked in a Nike Bag or Satchel found on the floor propped up against the kitchen island (the “ Nike Bag ”) Methamphetamine [1] 29 g (bag) Nike Bag Fentanyl 23.6 g (bag) Nike Bag Cocaine 27.6 g (bag) Nike Bag Cocaine 10.4 g (base form) Nike Bag Small Scale with cocaine residue on its surface Nike Bag Cocaine 26 g (bag) Located on a microwave in the kitchen but below eye level and recessed in an open cabinet space such that it was necessary to bend down in order to actually see the microwave top where the cocaine was sitting. (the “ Top of Microwave ”) Cocaine 26 g (bag) Top of Microwave Cocaine 25.8 g (bag) Top of Microwave Cocaine 12.5 g (bag) Top of Microwave Cocaine and Fentanyl 6.7 g – combined weight (Bag with cocaine (white substance) and fentanyl (blue substance) patch together) Top of Microwave Cocaine 210.6 g (large bag) Located in a closed cabinet under the kitchen sink.

The cabinet was not locked but it was necessary to open the cabinet doors to see the items found in this location (the “ Kitchen Sink Cupboard ”) Cocaine 376.5 g (large bag) The Kitchen Sink Cupboard Cocaine 20.8 g (bag) The Kitchen Sink Cupboard Digital Scale The Kitchen Sink Cupboard Measuring Cup The Kitchen Sink Cupboard Meat Tenderizer The Kitchen Sink Cupboard Cannabis Bud and oils 2 – 4 pounds Freezer in Kitchen Release Order for Andrew Wint Kitchen Debt Sheet/Score Sheet Kitchen Employee Information Form for Andrew Wint Kitchen Passport Photos of Andrew Wint stamped December 15, 2020 Kitchen cupboard at eye level. (the “ Kitchen Cupboard ”) NSCC Photo ID for Andrew Wint Kitchen Cupboard Cannabis Gummies 14 packages each containing 20 gummies Kitty Litter Box located in a pantry closet off the kitchen Cocaine 261.8 g Master Bedroom $32,000 Cash Master Bedroom NS Photo ID Card for Andrew Wint Closet off the Master Bedroom and leading to the ensuite bathroom (the “ Master Bedroom Closet ”) NS Health Card for Andrew Wint Master Bedroom Closet Capital One Mastercard for Andrew Wint Master Bedroom Closet

Business Registry Documents for abusiness which references AndrewWint Master Bedroom Closet A notice of rent increase for theApartment, addressed to SarahBarnett A cell phone receipt addressed to“M Smith”. Recall above thatMartell Smith had previously beenconnected to Mr. Wint and wasobserved driving other vehiclesleased to John Boudaher 8-10 cell phones. The phones werenot tendered as exhibits at trial andthe contents of the phones were notanalyzed. On this issue, I note thatSgt.

Nelson testified that theelectronic data on the phone of atrafficker may well have relevantinformation such as text messagesfor arranging transactions, particularin a dial-a-dope operation as wasalleged here. [36] Finally, I note that none of the items seized by the police were subjected to a fingerprint analysis – a concern that Mr. Wintraised in oral submissions. I re-visit this concern when applying the law to the facts.

The Law Presumption of Innocence and Burden of Proof [37] A foundational principle of Canada’s criminal justice system is that every person accused of a criminal offence is presumedinnocent until proven guilty. Its influence runs through the law and, in fact, has been described as “the golden thread of criminal justice”(R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320 (“Lifchus”, at paragraph 27).

Section 11(

d) of the Canadian Charter ofRights and Freedoms elevated the presumption of innocence to the realm of constitutional importance. It states: “Any person chargedwith an offence has the right … to be presumed innocent until proven guilty according to law in a fair and public hearing by anindependent and impartial tribunal.” Thus, Mr. Wint is entitled to this presumption at the beginning of the trial, throughout the trial, anduntil the evidence proves his guilt. [38] Two further rules flow from the presumption of innocence: 1. Because it is the Crown that accuses Mr.

Wint of criminal conduct, it is also the Crown that bears the burden of provingthose same accusations. Mr. Wint does not have to prove anything. 2. Guilt must be proven beyond a reasonable doubt.

At paragraph 36 of Lifchus, the Supreme Court of Canada defined“reasonable doubt” as follows: …a reasonable doubt is not a doubt based upon sympathy or prejudice; rather, it is based upon reason and common sense; it is logicallyconnected to the evidence or absence of evidence; it does not involve proof to an absolute certainty; it is not proof beyond any doubt noris it an imaginary or frivolous doubt; and more is required than proof that the accused is probably guilty — a jury which concludes onlythat the accused is probably guilty must acquit.

As well… the Crown is not required to prove its case to an absolute certainty since suchan unrealistically high standard could seldom be achieved [at paragraph 31] [39] With that presumption at the forefront, I turn to each of the counts made against Mr. Wint. Count 1 (Cocaine) and Count 8 (Fentanyl) [40] Section 5(2) of the CDSA states that “No person shall, for the purpose of trafficking, possess a substance included in ScheduleI, II, III, IV or V.” [41] Counts 1 and 8 relate to the allegation that Mr. Wint was in the possession of cocaine (Count 1) and fentanyl (Count 8) for thepurpose of trafficking.

It is acknowledged that cocaine and fentanyl are among the “controlled substances” covered by section 5(2).[2] [42] Setting aside identification of the drug as a “controlled substance”, the essential elements of section 5(2) are: 1. possession of the “controlled substance”; and 2. for the purpose of trafficking the “controlled substance”. [43] With respect to the second essential element of the offence (“for the purpose of trafficking”), the defence effectively

acknowledges that the volume of cocaine and fentanyl seized in the Vehicle and Apartment, together with other items found in the Apartment such as the digital scales dusted with cocaine residue constitutes proof beyond a reasonable doubt as to their underlying purpose (i.e. trafficking). Thus, the second essential element of the offence is not the subject of controversy. [ 44 ] However, the first element of the offence is very much in issue. The defence vigorously challenges the suggestion that the Crown has proven beyond a reasonable doubt that it was the accused, Mr.

Wint, who possessed the fentanyl and cocaine. In other words, the pivotal issue is possession, as that term is understood in the context of section 5(2) of the CDSA . [ 45 ]

Section 2 of the CDSA adopts the following definition from 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 be deemed to be in the custody and possession of each and all of them. [ 46 ] Under section 4(3) of the Criminal Code , culpable “possession” can occur in one of three ways: (

i) personal possession; (ii) constructive possession; or (iii) joint possession. [ 47 ] Here, there was no evidence that Mr. Wint personally possessed either the seized cocaine or fentanyl in the sense that neither of these two substances were found on Mr. Wint when he was arrested. The cocaine and fentanyl were found later, during searches of the Apartment and in the Vehicle. [ 48 ] Thus, the Crown did not argue actual possession. Rather, the Crown argued in oral submissions that Mr.

Wint was either in constructive possession or joint possession of the controlled substances and related trafficking paraphernalia. [ 49 ] In reply, the defence argued that the Crown did not prove any form of possession beyond a reasonable doubt and, further, that the evidence permitted the Court to draw alternative, reasonable inferences which compelled an acquittal.

The defence pointed to the Supreme Court of Canada’s direction in R. v Villaroman , 2016 SCC 33 (“ Villaroman ”) which confirms that where an alternate, reasonable inference may be drawn that is inconsistent with guilt, the Court must acquit. [ 50 ] At this stage, it is necessary to review in greater detail the law around inferences and the related process by which the Court properly draws inferences based on the evidence. [ 51 ] There are two types of evidence: direct and circumstantial. [ 52 ] Direct evidence is, as the name suggests, evidence that purports to be a direct observation of a material fact.

Where there is direct evidence, the Court does not need to infer anything or, put differently, engage in logical reasoning in which a factual finding is logically drawn based on the existence of a connected fact. For example, if a witness testified that she was standing outside in a rain shower, that would be direct evidence that it was raining outside. [ 53 ] By contrast, circumstantial evidence, “is any fact from the existence of which the trier of fact may infer the existence of a fact in issue” ( R. v Arcuri , 2001 SCC 54 at paragraph 23 ).

In Nova Scotia (Attorney General) v Jacques Home Town Dry Cleaners , 2013 NSCA 4 , Saunders, J.A. described the process of inferential reasoning as: …a kind of cognitive tool or buckle used to cinch together two potentially related, but still separated propositions. In the context of judicial decision-making, drawing an inference is the intellectual process by which we assimilate and test the evidence in order to satisfy ourselves that the link between the two propositions is strong enough to establish the probability of the ultimate conclusion.

We do that based on our powers of observation, life's experience and common sense. In matters such as this, reasonableness is the gauge by which we evaluate the strength of the conclusion reached through our reasoning. [ 54 ] Thus, for example, if a witness saw another person walking in a door after just being outside and that person was soaking wet, the Court might reasonable infer that it was raining outside. [ 55 ] The law does not require that essential elements of a criminal offence be proven by direct evidence from an eyewitness or perhaps a video recording.

Obviously, criminal conduct often occurs out of plain sight. Persons who commit crimes typically prefer to escape prosecution and do not broadcast their misconduct. In addition, the practical reality is that there will not always be an available witness to provide direct testimony for each essential element of every criminal offence. Thus, triers of fact are frequently required to develop factual conclusions based on circumstantial evidence. [ 56 ] The law treats both direct evidence and circumstantial evidence equally. There is nothing that makes one type of evidence better or more valuable than the other.

The fact that evidence is circumstantial and thus requires the Court to engage in inferential

reasoning does not mean the evidence is somehow weaker than, or inferior to, direct evidence. Circumstantial evidence can becompelling and powerful. Similarly, the fact-finding process is not somehow diminished because the Court is required to consider whatreasonable inferences (or factual conclusions) might reasonably be drawn from the circumstantial evidence. Inferential reasoning isessential to justice and an indispensable feature of the judicial process. It exemplifies the Court’s commitment to reason, logic and aprincipled decision-making process.

It also recognizes the practical reality that the specific evidence required to prove material facts willnot always be captured in a reliable recording or somehow appear in the direct observations of an available witness. [57] Here, as in many trafficking cases, the evidence is almost entirely circumstantial. For obvious reasons, drug traffickers do notoperate in a way that would make it easy for police to observe (and provide direct testimony) on their business activities.

More oftenthan not, the Crown relies on circumstantial evidence such as what police found and seized when searching a residence suspected ofhousing a drug dealer’s business operation.

The Court considers whether the Crown has proven its case beyond a reasonable doubt,having regard to the reasonable factual inferences that might be reasonably drawn from the circumstantial evidence. [58] Generally speaking, there are two types of inferences: 1. inculpatory inferences (i.e. those which support conviction) 2. exculpatory inferences (i.e. those which support acquittal) [59] With respect to inculpatory inferences, the circumstantial evidence must be sufficient, in and of itself, to prove the requiredinculpatory inferences beyond a reasonable doubt. [60] With respect to exculpatory inferences, and consistent with the presumption of innocence, the Court takes care to ensure anyreasonable exculpatory inferences are properly addressed.

Thus: 1. The Court must consider reasonable exculpatory inferences (i.e. factual inferences other than those which point towardsconviction). Moreover, if the circumstantial evidence allows the trier of fact to properly draw an alternate, exculpatory inference, theCourt must acquit. Put slightly differently, “[w]here the Crown's case depends on circumstantial evidence, the question becomeswhether the trier of fact, acting judicially, could reasonably be satisfied that the accused's guilt was the only reasonable conclusionavailable on the totality of the evidence.” (Villaroman, at paragraph 55.

See also R. v Hannan, 2023 NSCA 7 at paragraphs 156 - 157);and 2. The range of potential exculpatory inferences can be based on either the proven evidence or the absence of evidence. Thus,an accused person may legitimately contend that gaps in the evidence gives rise to an alternate, exculpatory inference without having toprove the facts in support of that alternate inference. The accused is not required to fill those gaps or present evidence sufficient tosupport an exculpatory inference. Again, the accused is entitled to the presumption of innocence.

The Crown has the evidentiary burdenof proving that the accused is guilty beyond a reasonable doubt. The accused is not required to prove his/her innocence. In short, wherethere is an absence of evidence, the proper question is not whether the accused has presented sufficient evidence to allow the Court todraw an exculpatory inference. Rather, the question is whether the Crown has proven its case beyond a reasonable doubt.

If the absenceof evidence allows the Court to draw an exculpatory inference, it means the Crown has not met the applicable standard of proof. (R vDowney, 2022 NSCA 59 (“Downey”) at paragraph 58 quoting from Villaroman). [61] Finally, but importantly, the process of inferential reasoning is not unrestricted or bounded only by the scope of one’simagination. Three corollary principles flow: 1. Inferential reasoning is constrained by logic, reason and human experience.

Inferences “…must be reasonable given theevidence and the absence of evidence, assessed logically, and in the light of human experience and common sense” (Downey atparagraph 36). Thus, the Court is neither at liberty nor compelled to draw inferences based on any far-fetched or fanciful

interpretationof the evidence or absence of evidence; and 2. The process of inferential reasoning must also acknowledge and respect the evidence and proven facts. Moreover, just asinculpatory inferences cannot involve speculative reasoning, exculpatory inferences cannot be based on speculation. "An inferencewhich does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation.”(R. v Morrisey (1995), (ON CA), 97 C.C.C. (3d) 193 at page 209 and quoted with approval in R. v Bidesi, 2021BCCA 227 at paragraph 27); and 3.

The process of inferential reasoning does not require the trier of fact to: i. first, separate the evidence on a piecemeal basis; ii. second, assess whether each discrete, individual bit of information has beenproven beyond a reasonable doubt; and iii. then determine what inferences might be drawn. (R v Roberts, 2020 NSCA 20 at paragraph 56, quoting from R v Al-Rawi, 2018 NSCA 10 at paragraphs 73 - 74) Inferences are factually specific and drawn based on the totality of the evidence in a given case. (R. v Hannan, 2023 NSCA 7 atparagraphs 156 – 157). [62] These restrictions on the inferential reasoning process affects both inculpatory and exculpatory inferences.

Thus: 1. Inculpatory inference cannot be drawn if the links in the chain of reasoning involve impermissible speculation. Thepresumption of innocence protects the accused and prohibits the Court from developing speculative facts to secure a conviction. The

following two examples are illustrative of the reasoning process: a. In R. v Murphy , 2014 NSCA 91 (“ Murphy ”), the police entered an apartment through an open door. They found an unidentified man (not the accused) sleeping on a couch in the apartment. A police search turned up a bottle of hydromorphone pills, cocaine, cash, a scale and documents indicating commerce in those drugs. The accused was named on the lease for the apartment as an “occupant”. Another person was named as the actual tenant.

Nevertheless, the accused was charged with possession of the drugs for the purpose of trafficking, contrary to section 5(2) of the CDSA . The accused was convicted at trial. On appeal, a central issue was whether the Crown proved that the accused was the sole occupant of the apartment. Beveridge, J.A. wrote that the trier of fact “needed to find sole occupancy by the appellant proven for them to draw inferences of knowledge and control” (at paragraph 83).

In that case, he further concluded: “There is not a shred of direct evidence in the trial record that the appellant had knowledge of and control of the drugs found on September 4, 2008 in Apartment 5. An inference of these essential elements could only be via a finding of sole occupancy” (at paragraph 86). Thus, the Crown did not prove its case beyond a reasonable doubt and the conviction was overturned; b. In R. v Allison , 2016 ONSC 3073 , the police executed a search warrant in a small, one-bedroom apartment. At the time, the accused was the only occupant. He had a key to the apartment but was not the tenant.

The police found a loaded firearm and drugs in a bin beside a makeshift bed. At trial, the Crown asserted that the accused’s presence combined with the fact that the accused owned both the bed and a nearby tray, it was reasonable to infer that the accused had knowledge of and controlled the contents of the nearby bin (i.e. the prohibited firearms and drugs). Trotter, J. (as he then was) rejected the inference as involving impermissible speculative reasoning (at paragraph 19). 2.

Exculpatory inferences cannot be drawn simply because the Crown failed to negate “every possible conjecture, no matter how irrational or fanciful” ( Villaroman at paragraphs 37 and 55 ). Where, for an example, an accused proposes an alternate, exculpatory inference based on an alleged improper investigation: Merely suggesting that if the police had conducted their investigation differently some exculpatory evidence might have turned up is, without more, pure speculation.

Reasonable doubt must be rooted in the evidence or the lack of evidence, not speculation. [ R v Malley , 2017 ABCA 186 (“ Malley ”) at paragraph 53] Put slightly differently, inferential reasoning does not run off the power of suggestion where an accused has free range to speculate about potential evidence that, if true, would allow the trier of fact to draw an exculpatory inference. Any proposed inference must recognize (and be based on a reasonable view of) the actual evidence or absence of evidence.

In R. v Soosay , 2020 ABQB 748 , Renke, J. made the following pithy observation: “It may be significant that the dog did not bark, but only if the dog was there (or should have been there).” [ 63 ] I turn now to the case at hand and, in particular, the process of inferential reasoning when considering the first essential element of trafficking contrary to section 5(2) of the CDSA ): possession.

This is the pivotal issue in this case and the evidence is entirely circumstantial, thus requiring the Court to consider permissible inferences. [ 64 ] Beginning with a general discussion of “possession” for the purposes of section 5(2) of the CDSA , there are three forms of culpable possession: personal, constructive or joint. ( R. v Morelli , 2010 SCC 8 (“ Morelli ”) at paragraph 15 ). Breaking these down further: 1. Personal possession requires proof beyond a reasonable doubt that the accused actually, manually handled the drugs in question.

As indicated, the Crown does not allege personal possession and there is no evidence of personal possession. It is unnecessary to consider that issue further; 2. Constructive possession and joint possession share certain common features. In both forms of possession, the Crown must prove knowledge and control ( Morelli at paragraph 15 ). 3.

In Morelli , the Supreme Court of Canada confirmed that the Crown proves constructive possession by demonstrating beyond a reasonable doubt that 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. [at paragraph 17] 4. Similar considerations bear upon the question of joint possession.

In R. v Fisher , 2005 BCCA 444 (“ Fisher ”), the British Columbia Court of Appeal compared joint possession with constructive possession as follows: a. To establish constructive possession, the Crown must prove beyond a reasonable doubt that the accused: “…knew of the presence of the cocaine and that he had some measure of control over its location.” b.

To establish joint possession, the Crown must prove beyond a reasonable doubt that: “…someone other than the [accused] had possession of the [prohibited drug, cocaine in that case] with [the accused’s] knowledge and consent and that [the accused] had some measure of control over it.” (at paragraph 24) [ 65 ] Here, the Crown argues constructive possession. The Defence argues that the evidence also suggests the possibility of joint possession having regard to the fact that, for instance, the Apartment was leased to both the accused Mr. Wint and Sarah Barnett. In addition, the Vehicle was leased to Mr.

Boudaher who was known to the police. Again, while there are conceptual differences in terms of assessing the issue of possession (e.g. was it the accused or some other person keeping the drugs) both forms of possession involve an

analysis into whether the accused had the requisite knowledge of, and control over, the drugs. [66] Several other issues arise in terms of assessing the accused’s knowledge and control of the drugs having regard to where,specifically, the drugs were actually located by the police and the accused’s connection to that specific location. I note the following: 1.

In Drug Offences in Canada, 4th Edn (Thomson Carswell: online) the authors provide the following non-exhaustive list ofrelevant factors when considering the question of knowledge and control where the police seizes drugs in a location allegedly connectedto the accused: …whether the accused lived there or regularly stayed over; whether others lived there or stayed over, and the frequency; clothing andother indicia of living arrangements; who paid the rent or mortgage; in whose name are the various utility accounts; frequency ofattendance based on surveillance; and relationship between individuals appearing to live in the premises. 2.

The authors also add that “knowledge and control over openly visible drugs can and often will be inferred where the accusedare the only ones living in the premises....” (at §4:55). In Murphy, Beveridge, J.A. (referenced above) similarly noted that: Occupancy of premises in which there are drugs and related paraphernalia in plain view, or hidden in circumstances indicative of likelyknowledge, can be sufficient to ground reasonable inferences of knowledge and control. [at paragraph 56] 3.

The requisite inferences of knowledge and control may become somewhat more complicated when the evidence proves thatthe accused is not the sole occupant of the premise. In the same text, the authors state: ... [W]here the accused simply visited the premises from time to time and had a key to the door, but there was no other evidenceconnecting the accused to the drugs and other persons frequented the premises, an inference of knowledge and control will not usually bedrawn: R. v. Grey (1996), (ON CA), 47 C.R. (4th) 40 (Ont. C.A.), at pp. 41-3; R. v. Do (2003), (ONCA), 175 C.C.C. (3d) 176 (Ont.

C.A.), at paras. 23-26. Likewise, the required inferences may not be drawn where the evidence fails todemonstrate that the accused was the sole occupant in the premises, the drugs and paraphernalia were not in plain view, and there was noother evidence connecting the accused to the drugs: R. v. Murphy, 2014 NSCA 91, at paras. 56, 64, 67, 69, 71, 74 and 82-86(overturning — at para. 85 — the jury's finding of knowledge and control, and the jury's “implicit finding” of sole occupancy, on thebasis that those findings of fact were unreasonable)...

Pausing here, on the issue of sole occupancy, it is helpful to elaborate and provide further context for Beveridge, J.A.’sdeterminations in Murphy. Beveridge, J.A. did not find that the Crown could not rely on sole occupancy to prove knowledge andpossession. Nor did Beveridge, J.A. conclude that the requisite knowledge and possession could only be proven where there was soleoccupancy. In terms of drawing reasonable inferences, much will depending on the circumstances. That said, in the uniquecircumstances of Murphy, Beveridge, J.A. concluded that the Crown’s case was predicated upon a finding of sole occupancy.

To repeatBeveridge, J.A.’s conclusion: “An inference of these essential elements could only be via a finding of sole occupancy” (at paragraph 86).Ultimately, on that point, the Crown’s evidence was exceedingly weak and riddled with omissions (see paragraphs 21, 67, 82, and 86). [67] Finally, in terms of how these principles are practically applied by the Court, it is useful to summarize the following three casesas they help reinforce the sort of relevant evidence that bear upon the scope of inferential reasoning when assessing an accused’sperson’s knowledge of, and control over, prohibited drugs and other trafficking paraphernalia: 1.

In R v Cudmore, 2019 PESC 20, [2019] PEIJ No 27 (“Cudmore”), the police were investigating several individuals andlocations in respect of a suspected cocaine trafficking operation. The accused – who was not one of the original subjects of the policeinvestigation – happened to be at one particular location when the police arrived to execute the search warrant. The residence was ownedby a Mr. Flynn, not the accused. Mr. Flynn was incarcerated at the time of the arrest. The police subdued and arrested the accused.

Theaccused pleaded guilty to possession and production of cannabis found on the site but not guilty to charges of possessing cocaine for thepurposes of trafficking. The issue was whether the accused was in constructive possession of the cocaine. Cann, J. described theexculpatory features of the Crown’s evidence which he summarized as follows: “Lack of evidence of the drugs being in plain view, lackof evidence of Mr.

Cudmore's belongings in proximity to the cocaine, lack of evidence of longstanding occupancy or exclusive access tothe Springvale dwelling, and lack of evidence of conduct inconsistent with ignorance of the presence of the cocaine or otherparaphernalia” (at paragraph 37).

The more specific problems were described at paragraphs 13 – 15 but they included the accused’sfailure to resist police access to cash and crack cocaine kept in a black backpack near the location where the accused was arrested; noevidence as to three cell phones seized by the police; no evidence as to the condition of various small baggies, white pills and plasticcontainers or where they were found other than somewhere in the kitchen; no evidence that the accused’s personal belongings werefound near other drug packaging material and phenacetin; failure to introduce a scale into evidence or information as to either itscondition or where it was found; no evidence that the main items seized were in plain view or that any of the accused belongings werefound near those items; 2.

In R v Schellenberger, 2020 ABCA 248, the police were investigating a suspected drug operation. They eventually executeda search warrant on four separate residences including one identified in the decision as “Residence B”. There were four bedrooms inResidence B. Three were occupied by various people, other than the accused. The accused occupied the fourth, master bedroom andattached bathroom. In that master bedroom, the police found 1.6 g of marijuana, a small amount of cocaine, four firearms in an openhockey bag on the floor at the foot of the bed, and various types of ammunition.

They also found a shoebox containing officialdocuments addressed to the accused and a valid driver's licence in the accused’s name.

The accused maintained that there was noevidence of how many persons accessed or occupied the residence; that there was no evidence regarding the occupants of the other threebedrooms each of whom was connected to the residence; that the accused was only seen at the residence twice and other targets werealso seen there; and that there was no evidence as to who accessed the residence for the seven days prior to the execution of the warrant.The accused concluded that these facts reasonably supported a number of exculpatory inferences which compelled an acquittal.

Theinferences included that: the registered owner of Residence B (not the accused) occupied the master bedroom; the accused was merely aguest without any control over the contents of the residence; that an unknown resident or guest put the hockey bag of guns into the

master bedroom; that the accused actually moved out of the residence and forgot his old documents; and that there was a new resident who had just taken over the master bedroom (at paragraph 25). The trial judge rejected these alternate inferences as unreasonable and convicted the accused. The accused’s appeal was dismissed. The Alberta Court of Appeal determined that there was no evidence to support the inferences being proposed by the accused and that “The evidence in its totality does not give rise to the appellant's suggestions as reasonable exculpatory inferences.” (at paragraph 27); and 3.

In R v Hickey , 2022 NSSC 235 (“ Hickey ”), a one-kilogram brick of cocaine with an 89% purity level was found hidden in a dry vac located in the accused’s garage. The accused testified that his friend was frequently at his house and would occasionally enter when the accused was not present. The accused’s friend had also been under investigation. Without formally advancing a third party suspect defence, the accused contended that the circumstances surrounding his friend gave rise to a reasonable doubt regarding knowledge and control.

In describing the relevant factors, Brothers, J. referenced the following non-exhaustive list found in R v Dunn , 2013 NLTD(G) 151: Whether the contraband in question is in plain view, or whether it is hidden. The proximity of the accused to the contraband in question. Whether there are items belonging to the accused in proximity to the contraband in question. The reaction of the accused when first confronted. The connection of the accused to the place in which the contraband is found. The credibility of the accused, in circumstances where the accused testifies.

Brothers, J. ultimately held that the accused’s suggestion did not raise a reasonable doubt as to the accused’s knowledge and control. Chief among the factors she considered were: 1. The purity and quantity prove beyond a reasonable doubt that the cocaine was possessed for the purpose of trafficking; 2. The accused’s attempts to feign a lack of knowledge of these items were incredulous; 3. The evidence included encrypted messages on the accused’s phone regarding about drug trafficking. [ 68 ] Applying these principles to the facts in this case, I conclude that Mr.

Wint was in constructive possession of the cocaine and fentanyl. Respectfully, it is the only reasonable conclusion based on the evidence. The evidence of knowledge and control is, in my view, clear: 1. Mr. Wint was a tenant in the Apartment. On this, it is interesting to note that Sarah Barnett was originally the only identified tenant on the lease. Her name was typed on to the lease form. Mr. Wint’s name was subsequently added in handwriting and signed by Mr. Wint in three places. This suggests a clear intention to be identified as tenant. 2.

The lease documents also include a Pre-Authorized Debit agreement attached to the lease referred to a TD Canada Trust bank account in Mr. Wint’s name only and was signed by Mr. Wint alone. This suggests an intention that rent would be taken only from Mr. Wint’s bank account. 3. Mr. Wint was not a periodic or infrequent visitor to the Apartment. The evidence confirms that he was a primary and permanent occupant. Prior to his arrest, he was observed driving in and out of the restricted access parking garage at the bottom of the Apartment Building. Moreover, significant personal documents belonging to Mr.

Wint were found in the sleeping quarters (master bedroom) of the Apartment including two forms of personal identification, his health card, passport pictures, and documentation regarding a business Mr. Wint was considering registering. 4. The quantity and location of drugs and related trafficking paraphernalia found throughout the Apartment were such that they were very clearly within the knowledge and control of Mr. Wint. With respect to the fentanyl: a. The amounts found in the apartment were significant and cannot reasonably be viewed as trace or accidental; b.

Part of the fentanyl was located on the top of the kitchen microwave in a package which also contained cocaine. I accept Mr. Wint’s statement that the microwave was below eye level and recessed in an open cabinet. However, having to bend down for the top of microwave to come into view (an act that would have been required naturally to operate the microwave), suggests these drugs were in plain sight; and c. The other part of the fentanyl was found in the Nike Bag which was lying in plain sight on the kitchen floor, propped against the island.

Beyond the fact that it was necessary to simply open the bag, the drugs were being stored in a casual manner and could hardly be characterized as “hidden” and placed beyond the purview of the Apartment occupants. Moreover, the Nike Bag did not only contain fentanyl, it contained cocaine and a small digital scale dusted with cocaine residue. With respect to the cocaine, the evidence is even more compelling: a. The amounts of cocaine found in the Apartment were again significant and they were scattered throughout the apartment. Cocaine was found on top of the microwave in the same place fentanyl was located.

Cocaine was also found in the same Nike Bag where additional fentanyl was discovered. Cocaine was found in the cupboard underneath the kitchen sink. I recognize that the cupboard door was closed but it was not locked, and it was an easy and obvious act to open the cupboard door under a kitchen sink. Upon doing that, not only was the cocaine in plain view but it was surrounded by unusual items that are connected with the drug business including a larger digital scale and a meat tenderizing mallet that Sgt. Nelson confirmed is used to break crack cocaine into pieces so that

they can be sold in smaller units. I recognize that a meat tenderizing mallet is not manufactured exclusively for use in the drug trade but its location and proximity to scales and crack cocaine reinforce its purpose in this Apartment; b. Cocaine was also found in the Master Bedroom, in close proximity to personal documentation belonging to Mr. Wint and also in close proximity to substantial amounts of cash found in the Master Bedroom.

Some of the cash can be seen in a jacket pocket but the bulk was found resting in plain view at the top of a laundry hamper, and much of that cash was bundled together in $5,000 stacks. Mr. Wint’s counsel properly observed that many businesses bundle cash together, including banks. However, to state the obvious, Mr. Wint was not managing a bank and there was no evidence as to any other business which generated the sort of cash found laying around the Apartment. There was evidence that Mr.

Wint was engaged in some sort of painting business but to use passing references to a painting business as a factual basis to draw an exculpatory inference would require factual financial assumptions based on nothing more than impermissible speculation. Respectfully, Mr. Wint is entitled the presumption of innocence but not entitled to speculate on facts that ensure an acquittal; c. Much of the cocaine found in the Apartment was subdivided and packaged in sizes consistent for sale, based on the evidence of Sgt. Nelson; d. Cocaine was also found in the driver’s door compartment of the Vehicle which Mr.

Wint was driving on the day of his arrest – again packaged in smaller units consistent with the conclusion that the drug was for sale to various customers. Here, respectfully, I reject the alternate inference that somebody other than Mr. Wint might have been driving the Vehicle immediately prior to the arrest or that Cst. Cole’s failure to immediately record his observations regarding this cocaine could reasonably give rise to an alternate inference.

In my view, these inferences are unreasonable and premised on speculation at best. [ 69 ] At this point, I wish to comment on several additional arguments made by Mr. Wint. [ 70 ] Mr. Wint properly points out a number of apparent gaps in the police investigation including: 1. The failure to question or investigate other individuals who were associated with Mr. Wint and/or connected to either the Apartment or Vehicle; 2. The failure to properly analyze 8 to 10 cell phones which were seized at the Apartment but were not entered as exhibits at trial; 3.

The failure to fingerprint either the cellphones or anything else at the Apartment to definitively connect Mr. Wint to the seized items. [ 71 ] Mr. Wint does not allege a negligent investigation but he does argue that these omissions or gaps give rise to a reasonable exculpatory inference and compel an acquittal. [ 72 ] In my view, Mr. Wint’s concerns around the police investigation do not give rise to mean that the Crown has not proven its case beyond a reasonable doubt or give rise to a reasonable alternative inference that would compel an acquittal.

The Crown may take a significant risk in failing to advance easily obtainable relevant evidence and the failure to do so may well be surprising and disappointing. [ 73 ] That said, the Crown is required to prove the case beyond a reasonable doubt, not to an absolutely certainty. The Crown is not required to negate every alternative exculpatory inference, regardless of whether it is rooted in the evidence or whether it is based on speculation.

Identified investigatory gaps do not necessarily mean the burden of proof has not been met. [ 74 ] In my view, the problems raised by the defence are not fatal to the Crown’s case. The evidence presented in support of possession (knowledge and control) may not have been complete but it is still overwhelming and I am emphatically of the view it proves possession by Mr. Wint of cocaine and fentanyl beyond a reasonable doubt. Moreover, in my view, the requested inferences would be grounded in speculation and unreasonable. [ 75 ] Turning to the specific omissions raised by Mr.

Wint, I deal first with the other individuals associated with Mr. Wint and/or connected to either the Apartment or Vehicle. These individuals include: 1. Martell Smith who drove another vehicle also leased by John Boudaher, an individual known to the police. Mr. Smith was also observed visiting the Apartment and there was minor documentation found in the Apartment belong to Mr. Smith (a cellphone invoice); 2. Sarah Barnett who also leased and occupied the Apartment; and 3. John Boudaher who, again, was known to the police and leased all of the vehicles connected to Mr.

Wint (including the Mitsubishi RVR and the vehicle driven by Mr. Smith). [ 76 ] I can deal quickly with Mr. Boudaher. There is aptly no evidence to suggest that Mr. Boudaher ever visited the apartment or was ever near the apartment. [ 77 ] As to Ms. Barnett, there is evidence to suggest that she was a co-tenant of the apartment. There was documentation in the apartment containing her name including a notice to increase rent. However that does not eliminate Mr. Wint’s own status as an occupant of the apartment with knowledge and control, as already discussed. [ 78 ] As to Mr.

Smith, again there is some minor documentation found in the apartment connected to Mr. Smith. Namely a cell phone invoice. There is also evidence to suggest that Mr. Smith was driving a rental vehicle leased to John Boudaher a known trafficker and that Mr. Smith was associated with Mr. Wint. There is evidence that Mr. Smith may have visited the apartment from time to time.

However, none of this in my view, gives rise to an alternative reasonable inference that, without Mr. Wint’s knowledge, the drugs cash and other trafficking paraphernalia found in the apartment were not under the control of Mr. Wint as tenant and occupant but, instead, under the control of some other person including Mr. Smith (a sometimes visitor) or Mr. Boudaher (for whom there is no evidence that he visited the Apartment) or Ms. Barnett (who lived in the Apartment but as a co-tenant with Mr. Wint).

That type of reasoning is not simply speculative, it is unreasonably incredulous and fails to properly align with the proven facts. [ 79 ] I deal with the final two issues raised by Mr. Wint together (i.e. the failure to analyze the 8 – 10 cellphones seized and the failure to take any fingerprints with respect to any of the seized items). I recognize that Sgt. Nelson confirmed that these cell phones could well have relevant information – particularly given that this investigation was triggered by a suspected dial-a-dope operation.

Similarly, fingerprinting these cellphones or any other items seized could also have produced relevant information connecting the drugs to Mr. Wint – and it would have not been an onerous task to take fingerprints. Finally, the failure to analyze cellphones was one of many factors considered by Cann, J. in Cudmore . [ 80 ] All that said, I am not satisfied that these omissions lead to the conclusion that the evidence does not prove guilt beyond a reasonable doubt with respect to these two particular counts involving cocaine and fentanyl.

Nor can I reasonably conclude the absence of this evidence (i.e. the contents of the cellphones or fingerprints) gives rise to an exculpatory inference that this information would not have been connected to either the cellphones or the other items seized. While cellphone analysis and fingerprints may have assisted and the failure to do so may be disappointing, the evidence presented at trial was overwhelming, in my view, and more than sufficient for the Crown to meet its evidentiary burden. [ 81 ] Exculpatory inferences cannot be fanciful or based on speculative evidence.

In my view, the requested exculpatory inference (i.e. that the information produced from cellphone analysis or fingerprints would not be connected to Mr. Wint) is unreasonable in the circumstances. It would be based on speculation as to the information that would be produced from the cellphone or fingerprint analysis. It would also convert the lack of cellphone and fingerprint analysis into an automatic acquittal and discount all of the additional evidence presented in this case.

I repeat the statement in Malley that: “Merely suggesting that if the police had conducted their investigation differently some exculpatory evidence might have turned up is, without more, pure speculation” (see paragraph 62 above) . Here, respectfully, I do not have “more” which would take Mr. Wint’s concerns out of the realm of speculative reasoning. [ 82 ] I find Mr. Wint guilty of Counts 1 and 8 on the Indictment Count 4 (Cannabis) [ 83 ] The situation regarding the cannabis is different. The cannabis was neither stored nor packaged in a manner that suggests possession for the purpose of trafficking.

The evidence of Sgt. Nelson made it clear that while the amounts of cannabis found in the Apartment were significant, there was a reasonable alternative inference of personal use. [ 84 ] I repeat that freezing cannabis can diminish its THC potency and reduce its retail value. Moreover, it can be used for cooking. Further again, Sgt. Nelson indicated that if the cannabis was for the purposes of trafficking, he would have expected this type of cannabis to be packaged differently. [ 85 ] I make similar comments regarding the 14 packs of gummies (each pack containing 20 gummies).

There is nothing inherently illegal or inappropriate about possessing 14 packs of cannabis.

And there was no evidence to suggest simply having 14 packs of cannabis gummies proves beyond a reasonable doubt an intention to distribute this cannabis contrary to the Cannabis Act . [ 86 ] In my view, in these circumstances, the evidence amply permits the court to draw an alternative exculpatory inference that the gummies were for innocent, personal consumption. [ 87 ] The evidence around the seized cannabis (including that found in the freezer and the gummies) permits a reasonable exculpatory inference that the possession of these drugs was not for the purpose of trafficking. [ 88 ] Mr.

Wint is acquitted of Count 4 on the Indictment. Count 3 (Possession of Proceeds of Crime) [ 89 ] For the same reasons described above I find that Mr. Wint had constructive possession (including knowledge and control) of the $32,000 in cash. [ 90 ] This money was found primarily in the master bedroom in close proximity to Mr.

Wint's personal identification cards and other personal documentation (i.e. in stacks in a laundry hamper located in the closet to the master bedroom). [ 91 ] I further find that this cash seized by the police in the apartment was obtained or derived from the crime of trafficking, contrary to section 4(2) of the CDSA . The only significant income available to Mr. Wint based on the evidence before me was that which would have been acquired through the sale of the prohibited drugs, cocaine and fentanyl.

I repeat my comments in paragraph 68 above regarding the passing references in the evidence to a painting business. Any exculpatory inference that the cash was generated from this painting business (not trafficking the drugs seized in the Apartment) would be based in speculation and unreasonable. And, here, I note the cash in question was again located and seized in close proximity to significant amounts of cocaine and fentanyl, some of which was packaged in a manner consistent with the expectation of retail sale or trafficking. [ 92 ] I further find that Mr.

Wint knew of the origins of this cash or how the cash was generated, as the issue of knowledge is interpreted under the law. At a minimum, Mr. Wint would have been aware of the need to make inquiries regarding the significant amounts of cash bundled in the laundry hamper, but failed to do so because he did not want to know the truth. [ 93 ] On this, it is notable that the cash was not hidden or concealed in places that Mr. Wint might not have been aware or suspected. As indicated, it was mainly collected in a hamper located in a closet just off the Master Bedroom. Photos taken from the scene show

that the hamper was also being used for its regular purpose (i.e. it contained laundry). There was no top to the hamper. It resembled alarge, open basket and the cash could be plainly seen lying on top of the laundry. Any person occupying the Apartment (specifically Mr.Wint) could very easily see the cash whenever clothes were being placed in the hamper by just walking by it. To make detection easier,the cash was resting on the top of the clothes and bundled in neat stacks of $5,000. [94] I note that this is different from the circumstances in Hickey where the accused was found with much less money ($1,840.00).

I recognize that Hickey did not involve a charge under Section 354(1) of Criminal Code for possession over $5,000 generated asproceeds of crime. Another distinguishing feature is that the accused in Hickey elected to testify and provided an explanation regardingthe cash. [95] All that said, Hickey is still somewhat helpful for comparison purposes. In Hickey, Brothers, J. found the evidence regardingthe cash (including the accused’s testimony) was a relevant factor in assessing whether the accused was engaged in a drug traffickingoperation.

She ultimately concluded that the evidence around cash (including the amount and where it was seized) was neitherinculpatory nor exculpatory. By contrast, in this case, it is notable that the amounts of cash are much larger and they were being kept ina much more unusual manner (stacks of $5,000, lying in a hamper). [96] In my view, at a minimum, this evidence surrounding the cash found in the Apartment cried out for an explanation. In sayingthat, it is important to be clear: I neither reverse the burden of proof nor suggest that Mr. Wint was required to somehow prove hisinnocence.

The point is that, without additional evidence, suggesting that Mr. Wint somehow was not impressed with sufficientknowledge and awareness of the cash is unreasonable in the circumstances and would require this Court to draw unreasonable inferencesbased on imagined facts or base speculation. (see R v Cook, (SCC), [1997] 1 S.C.R. 1113 at paragraph 39; R vJohnson (1993), (ON CA), 79 C.C.C. (3d) 42 (Ont.

CA) at paragraphs 49 – 50 cited with approval in R v Johnson(1995), 1995 NSCA 83 , 141 N.S.R. (2d) 133 at paragraph 107; and R v Banayos and Banayos, 2018 MBCA 86, leave to appealto SCC refused February 14, 2019 at paragraph 24). [97] Finally, I make the obvious observation that the value of the cash clearly exceeded $5,000 which is another essential element ofthe offence. [98] I find that the Crown has proven this offence beyond a reasonable doubt and that Mr. Wint is guilty of Count 3. Count 7 (Resisting Arrest) [99]

Section 129 of the Criminal Code states: Every one who (

a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such anofficer, is guilty of (

d) an indictable offence and is liable to imprisonment for a term not exceeding two years, or (

e) an offence punishable on

summary conviction. [100] I can dispose of this particular account quickly. [101] In my view there is absolutely no doubt that Mr. Wint should be acquitted of this offence. [102] For reasons that remain unknown and respectfully are somewhat baffling, the ERT team decided to initiate the process ofarresting Mr. Wint and taking him into custody by detonating a flash-bang grenade at a busy Walmart Supercentre three days beforeChristmas. [103] The idea that Mr.

Wint would run away from (not towards) a distractionary device or flash-bang grenade that emitted anexplosive sound together with a cloud of smoke is hardly surprising. Indeed, Cst. Cole noticed other people were also running away. [104] The idea that Mr. Wint would then keep running away from armed individuals who were chasing him after this explosion is alsonot surprising. Some of these individuals were in plain clothes. Others were in green tactical clothes.

All of them were armed. [105] There was a complete absence of evidence from any member of the ERT team to either explain the strategy or even indicate what,if anything, was being said to Mr. Wint as he ran from the flash-bang grenade and kept running from armed individuals, some of whomwere in plain clothes. [106] It was a chaotic scene and, in my view, the lack of evidence from the ERT members is telling. At a minimum, with respect to thisCount, the evidence allows the Court to draw a reasonable exculpatory inference that Mr.

Wint was not evading arrest but was engagedin an instinctive flight from an apparent from danger. [107] I find Mr. Wint not guilty of Count 7. Count 5 (driving while prohibited) [108] 320.18 (1) of the Criminal Code states: Everyone commits an offence who operates a conveyance while prohibited from doing so

(

a) by an order made under this Act; or (

b) by any other form of legal restriction imposed under any other Act of Parliament or under provincial law in respect of a conviction under this Act or a discharge under

section 730. True criminal offence requiring proof of mens rea . Knowledge of suspension is an essential element. (

a) ignorance of knowledge of suspension is a defence. (

b) Presumption of regularity applies (i.e. authorities were required by law to notify offender of suspension) However, presumption of regularity and certificate of disqualification can be rebutted if: i. notice of certificate invalid on face; ii. possible offender subject to disqualification without notice [ 109 ] The Release Order marked as Exhibit #34 clearly prohibits Mr. Wint from driving a vehicle on the day he was arrested. [ 110 ] I accept Cst. Robinson’s eye witness observations that Mr. Wint was driving the Vehicle on December 22, 2020.

The key fob for this vehicle was also found in the grass close to where Mr. Wint was ultimately subdued and arrested. [ 111 ] Respectfully, there can be no realistic or reasonable doubt that Mr. Wint breached the terms of the Release Order on this date, and has been proven guilty beyond a reasonable doubt of violating

section 320.18(1) of the Criminal Code . [ 112 ] I find Mr. Wint guilty of Count 5. Keith, J.