)) HER MAJESTY THE QUEEN – v. –, 2010 ONSC 7113

CITATION : R. v. Jeevan Coleman 2010 ONSC 7113 COURT FILE NO.: 1-600782 DATE: 20101222 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN – and – JEEVAN COLEMAN Respondent )) )) )) )) ) ) Eric Gilman, for the Public Prosecution Service of Canada Christopher K. Assié, for the Respondent HEARD: November 8, 9 and 10, 2010 Kiteley j. REASONS FOR DECISION [ 1 ] Mr. Coleman was charged with four offences: traffic in cocaine, possession of cocaine for the purpose of trafficking, possession of marihuana for the purpose of trafficking, and possession of proceeds of crime.

The trial consisted of the evidence of five witnesses who participated in the surveillance and the take-down together with an officer who provided expert evidence. For the reasons that follow, I find Mr. Coleman guilty of count 1 (traffic in cocaine), guilty of count 4 (possession of proceeds, namely $40.00) and not guilty of counts 2 and 3 (trafficking in cocaine and in marihuana). [ 2 ] On the afternoon of August 21, 2008, Officer Thomas Imrie received information from a confidential source regarding the location of illegal drugs at 54A Binswood Avenue.

While he prepared the Information to Obtain Warrant to Search, Officer Katherine Stephenson began surveillance on the location. She arrived at 5:37 p.m. There were two vehicles in the driveway that I will refer to as vehicle #1 (BALA 877) and vehicle #2 (BDJM 680). [ 3 ] At 6:04, an Asian male driving a vehicle with plate #AWHS 862 pulled up in front of 54A and parked on the street. He exited the vehicle and entered 54A. At 6:09 he exited the residence, entered his vehicle and drove north on Binswood.

Officer Stephenson was unable to say whether the Asian male had used a key or had knocked on the door but he had entered quickly. [ 4 ] At 6:29 a male black with braids approximately 3 inches long exited 54A and got into vehicle #1. He reversed out of the driveway and drove north. Officer Stephenson did not remember if he had locked the door behind him. [ 5 ] Officer Stephenson remained at that location until 9:18 p.m. She did not observe anyone enter or exit 54A. At 9:08, she observed what she thought was vehicle #1 driving south on Binswood but she could not see the plate.

The driver made a U turn and parked on Binswood south of 54A. A female exited the passenger side of the vehicle and walked past 54A out of the officer’s view. [ 6 ] Officer Stephenson departed at 9:18. On her way back to the division, she received a call that the search warrant had been authorized and she was directed to return. She arrived back at about 9:33. [ 7 ] At 9:11, Officer Hamilton [1] arrived on scene. After receiving information from Officer Stephenson, he took over at 9:18 and had a visual on the front door of 54A.

He exited his vehicle and was on foot to continue surveillance of vehicle #1. 54A Binswood is on the corner of Binswood and Barker Ave. Officer Hamilton said that the vehicle was parked south of Barker. The driver’s window was down. He was able to see inside and observed that the driver was a male black matching the description he had received from Officer Stephenson. He returned to his vehicle and then misplaced vehicle #1. He drove around the area and located vehicle #1 several streets to the west parked facing north on the east side. The window was open.

Officer Hamilton identified the driver as the same person. He did not see any other occupants. He took up observations on that vehicle at 9:28 when it did a U turn and travelled south on Fairside. He followed it as it made a couple of turns and ended up on Binswood. At 9:33 he received information that Officer Stephenson observed the same vehicle back at 54A drive into the driveway and park and that the same male who she had seen earlier had entered 54A. Officer Hamilton stood by. [ 8 ] Officer Stephenson resumed surveillance at 54A.

At 9:35, she observed the same male exit 54A Binswood, cross the street to the west side and walk north. He turned left on Cosburn where he met with an unknown male white who was later arrested and was

identified as Mr. Malia. She observed what she believed was a hand to hand transaction. The two males then walked east and the male she had earlier seen turned back south on Binswood while the unknown male went in a different direction. The black male was not out of her sight. [ 9 ] Officer Stephenson agreed that when Mr. Coleman exited at 9:35 and she followed him, she was no longer watching the house. [ 10 ] The take-down was called but Officer Stephenson did not participate in arresting the defendant.

She was directed to attend at 54A and assist in the execution of the search warrant. [ 11 ] Officer Hamilton said that at 9:35, he followed Mr. Coleman on foot walking northbound on the west side of Binswood. When he reached the corner of Binswood and Cosburn, Mr. Coleman turned west and he met an unknown male white. He said he believed he saw a hand to hand transaction. [ 12 ] Officer Christine Seabrook arrested Mr. Malia on the southwest corner of Binswood and Cosburn. After she handcuffed him, she noticed his right hand was shut.

She opened it and there was a small piece of what she thought was crack cocaine and on the ground by his feet was a crack pipe with a small piece of crack in it. The total weight of the two pieces was 0.05 grams of crack cocaine. [ 13 ] Officer Jason Spenser arrested Mr. Coleman at the southwest corner of Binswood and Virginia, which was one block south of Cosburn. He was identified with an OHIP card and a driver’s licence both indicating an address on Milverton. In his front right pocket he had $40.00 CDN. In his left pocket he had a wallet that contained approx $1200.00 CDN. He had a cell phone on his belt.

He had no drugs on him. According to my notes, Officer Spenser did not refer to seizing $110.00 U.S. as alleged in count 4. What occurred between the defendant and Mr. Malia? [ 14 ] The activity between the defendant and Mr. Malia was important to the offences of trafficking and possession of proceeds. But the activity was central to the Crown’s theory that Mr. Coleman had knowledge and possession of drugs found in 54A Binswood. Accordingly, there was considerable attention to detail by both counsel. [ 15 ] Officer Hamilton observed what he believed was a hand to hand from the male black over to the male white.

After that brief meeting they both walked eastbound and then split up. He said that when they met up they obviously knew each other. The transaction was brief. He said that they greeted each other and there was some chatter back and forth and then they left. The whole interaction took seconds. He was asked if it could have been a handshake of greeting and he said that Mr. Malia was waiting for Mr. Coleman and they greeted before he saw what he described as a hand to hand transaction. He saw their hands come together. He could not tell what was exchanged but he did see their hands come together.

He was asked again if it looked like a hand shake of greeting between them and he said that “one could characterize it as a hand shake” but based on his experience in the drug squad including over 100 times completing a hand to hand transaction as an undercover officer, it was very typical of a quick hand to hand drug transaction. [ 16 ] In cross-examination, Officer Hamilton said he saw only one interaction when their hands went out to each other. [ 17 ] Officer Stephenson said that the male white reached out with a clenched fist.

She observed the suspect reach into his pocket and then reach out to the male white. She was not close enough to see what was transferred but based on her two years’ experience on the drug squad, she believed she had seen a hand to hand transaction. She was asked why she concluded it wasn’t a handshake and she said that the male white reached out, the suspect reached out and appeared to have received something and then the suspect put his hand in his pocket and reached out. She said that the whole transaction lasted seconds. [ 18 ] In cross-examination, she said that Mr.

Malia initiated by extending his hand in a closed fist. She could not ascertain which hand he extended. Mr. Coleman accepted with his left hand and simultaneously reached into his right hand pocket. She agreed that Mr. Coleman was using both his left hand and his right hand with Mr. Malia. He accepted something with his left hand and reached out with his right hand. She did not see money or drugs. She was not close enough to hear what was said. [ 19 ] Det. John Margetson was called by the Crown.

Defence counsel agreed and I found that he was qualified as an expert to give opinion evidence with respect to the chain and distribution, prices, quality, methods of use, strength, quantity and packaging of cocaine when sold, as well as practices, habits and the modus operandi of the cocaine drug culture. [ 20 ] He was given a hypothetical fact situation consistent with the foregoing. In his opinion, the activity between Mr. Coleman and Mr. Malia was a hand to hand drug transaction. In cross-examination, defence counsel suggested that what the officers observed could be characterized as a handshake.

He said that he had never seen a handshake in such circumstances. He noted that a small piece of crack cocaine such as was found in the pipe and in Mr. Malia’s hand would fall out of the hand if the buyer and the dealer were simply shaking hands. [ 21 ] It is the case that Officer Hamilton and Officer Stephenson made observations that are not precisely the same. However, that can be accounted for by their different perspectives and the darkness. The essence of their evidence is that the encounter appeared to have been pre-arranged, it was brief, it involved hand to hand contact followed by Mr. Malia and Mr.

Coleman walking a brief distance before parting. Leaving aside the speculation that the officers observed a handshake in greeting, I am satisfied beyond a reasonable doubt that what transpired was a hand to hand transaction in which Mr. Coleman sold crack cocaine to Mr. Malia and Mr. Malia paid $40.00. On that basis, I find Mr. Coleman guilty of count 1 (trafficking). [ 22 ] Based on the evidence of Officer Spencer, Mr. Coleman had $1200.00 in his wallet and $40.00 in his pocket. Defence counsel conceded that if I found Mr.

Coleman guilty of count 1, there is a strong inference that the money in his possession was proceeds of crime. In making that submission, defence counsel did not distinguish between the $40.00 that Det. Margetson said was consistent with the sale of a small piece of crack cocaine to Mr. Malia and the balance of the money. I find Mr. Coleman guilty of count 4 on the basis of being in possession of $40.00. I am not satisfied beyond a reasonable doubt that $1200.00 is proceeds of crime. There was no evidence of seizure of $110.00U.S.

Search of 54A Binswood [ 23 ] At 9:38, the search warrant was executed. Det. Imrie said that the front door was closed but unlocked. Immediately to the left of the entry door was a short staircase leading upstairs to the apartment. He entered and did a cursory search. There was no one present. In one bedroom there was a locked metal cabinet. There was a set of keys on the bed. He used one of the keys to open the metal cabinet to make sure there was no one in it. He had forgotten to bring a video camera so the entry team left. He returned at 10:22 p.m. and began taking the video which was marked as Exhibit 4.

He narrated as the video was played. The kitchen was at the top of the stairs. There was a pyrex cooking container in the cupboard as well as baking soda and dextrose. Other than soft drink container and some beer, the fridge and freezer were empty. There were no cooking supplies other than the pyrex container. A hallway led to the living room at the far end. In that room was a closet with garbage in it. There was a television and some old electronics in a box as well as DVD’s and video games scattered on the floor, a coffee table and a couch or a futon. In the bathroom there were few personal items.

In the first bedroom , there was a flat screen tv and a bed on which there were strewn movie DVD’s. The closet was full of men’s clothing. Inside the locked metal cabinet were more men’s clothing, a bag of marijuana and cocaine. There was a linen closet or cupboard in the hallway. In the second bedroom the closet was empty but there was a bed or futon in the corner and a dog dish. [ 24 ] After taking the video, Det. Imrie searched the kitchen. He seized the pyrex cooking pot, a knife, a package of dextrose, a package of baking soda and two digital scales.

He said that the two scales and the knife were in plain view. There was a white substance on the knife and digital scales and in the pyrex pot. He noticed that the dishwasher was loose. He pulled it out and found a KFC brown paper bag and inside were three Ziploc bags each containing a white substance. Two contained crack cocaine and the third contained powder cocaine. He left at 10:56 p.m. and secured the front door with a key on the key chain found on the bed. [ 25 ] After the video was taken, Officer Hamilton searched the hall cupboard where he located a cocaine press in a black bag.

There was also a second press and assorted attachments in that cupboard. In the cupboard were several drawers. He pulled a drawer out and on the track on the right side of the drawer he located what he thought was crack cocaine. He located a second package of powder cocaine wrapped in plastic from the same drawer track. Officer Hamilton identified the black nylon bag containing part of a cocaine press and other items. He found nothing in the bathroom. [ 26 ] Officer Hamilton said that the apartment was very messy.

He said that a dog had been there and left feces and that there was a very bad smell. [ 27 ] Officer Spencer searched the bedroom with the locked metal cabinet. On the top shelf of the cabinet he located a large plastic bag containing marihuana and another plastic bag containing powder cocaine; on the bottom shelf he located a ziploc bag of powder cocaine; on the bed he located a couple of pieces of crack cocaine in a piece of plastic. Under the bed, he located one single 308 round of ammunition. He also found a mask that covers the mouth and nose.

In the closet, he located a Certificate of Completion from the Ability Learning Network that indicated that Mr. Coleman had successfully completed a 16 week training program on July 11 th , 2008. [ 28 ] The drugs seized were as follows: (

a) Under the dishwasher : 74.83 grams of crack cocaine; 84.49 grams of crack cocaine; 162.45 grams of powder cocaine; (

b) In the bedroom with the locked metal closet : (

i) in the locket metal cabinet: 222.12 grams of marihuana; 3.2 grams powder cocaine; 0.1 grams powder cocaine; (ii) on the bed: 0.2 grams crack cocaine; (

c) In the closet in the hallway : 48.75 grams of crack cocaine and 1.44 grams of powder cocaine. [ 29 ] Det. Imrie agreed that dextrose and baking soda are white powders similar in consistency to cocaine. He agreed that the two digital scales and the knife were in plain view. He agreed that the knife and the scales are not illegal. [ 30 ] Det. Imrie agreed that the car driven by the Asian man with plate #AWHS 862 was registered to a rental company. He said that they had determined that the Asian man was Mr.

Dat Wei Yung who was before the court for marihuana possession. [ 31 ] There was no evidence of anything seized in the second bedroom or living room. [ 32 ] Det. Margetson’s evidence was that except for the small amounts of cocaine that might be consistent with personal use, the large quantities retrieved from under the dishwasher, in the locked metal cabinet and in the cupboard in the hallway were all consistent with possession for the purposes of trafficking. He described the quantities as indicative of a mid level trafficker.

The baking soda and glucose or dextrose, the pyrex dish, the mask and the presses are used in the production of crack cocaine. The lack of other dishes and food indicated that the trafficker wasn’t staying at home making proper meals but was using it as a venue to cook up or chop to give to other dealers. He described how dealers will deal out of a residence or out of a stash house. Was Mr. Coleman in possession of the cocaine and marijuana? [ 33 ] The theory of the Crown is that Mr.

Coleman used 54A Binswood to cook his cocaine and store his drugs and play DVD’s while waiting for customers such as the Asian male and Mr. Malia. The key issue is whether the Crown has proven beyond a reasonable doubt that Mr. Coleman had knowledge and constructive possession of the drugs recovered from 54A Binswood. [ 34 ] The evidence that indicates knowledge and possession is as follows: Officer Stephenson arrived at 5:37. Mr. Coleman left at 6:29. For approximately 50 minutes, Mr. Coleman was in the apartment. He drove a vehicle that was parked in the driveway.

He was in the residence when the Asian male arrived and left after a few minutes. Mr. Coleman returned at 9:33 and left again at 9:35 and walked north to Cosburn where he met Mr. Malia and, as I have found, trafficked in cocaine. When the officers entered to execute the search warrant, the door at street level leading to the apartment was closed but unlocked. Leaving the door to the apartment unlocked is consistent with knowledge that he would be gone only a few minutes while he made the transaction with Mr.

Malia and with confidence that the drugs were well enough hidden that they would not be located in the few minutes he was gone. As indicated, Det. Margetson described the premises as a residence or a stash house given the paraphernalia and the quantities of secreted drugs. The Certificate of

Completion in his name was located in the closet in the bedroom where the locked cabinet containing the drugs was situated. [ 35 ] From all of that evidence, one could draw an inference that it is unlikely that Mr. Coleman was simply a guest in that he entered and exited twice in four hours, that during the initial period he had some interaction with the Asian male, and that he had sufficient control over the premises that he decided to leave at 9:35 without locking the door. One could draw the inference that Mr.

Coleman knew that the drugs were in the apartment and that he had control over them and that he dealt drugs from that location. [ 36 ] The evidence that indicates a lack of knowledge and possession is as follows: There is no evidence that the Asian male used a key but there is evidence that he entered quickly which would suggest that he was an occupant. Mr. Coleman’s health card and driver’s licence were associated with an address on Milverton. The key chain that was found in the bedroom with the locked cabinet held a key to the front door of 54A Binswood but was not associated with Mr. Coleman.

There were two bedrooms in the apartment. No illegal drugs or paraphernalia or clothing were located in the second bedroom or the living room. With the exception of a small amount of cocaine found on the bed, all of the drugs were hidden either underneath the dishwasher, or in the locked metal cabinet or in the drawers of the hall closet. When he left at 9:35 to meet Mr. Malia, he left the front door open suggesting that he would not have done that had he known what was hidden in the apartment.

The surveillance of the residence is limited to one evening over a four hour time span. [ 37 ] From all of that evidence, one could draw an inference that Mr. Coleman resided elsewhere and was a guest at Binswood. Equally, one could further infer that he might have been an occupant of the other bedroom. Whether he was a guest or an occupant, virtually all of the drugs were hidden. Only a small quantity that Det. Margetson said might be consistent with personal use was not hidden and even that was not so visible that Det. Imrie missed it in his initial walk-through.

At least one other person had ready access to the premises. [ 38 ] The evidence that is neutral is as follows: The Asian man was in and out within 5 minutes. The fact that he was associated to an outstanding marihuana charge is not persuasive. When he returned at 9:08, Mr. Coleman parked on Binswood south of 54A. A female exited and walked past 54A. Mr. Coleman did a U turn at 9:28 and left the street. The clothes in the bedroom with the locked cabinet were men’s apparel.

The white residue on the knife and the two digital scales was not tested. [ 39 ] Defence counsel observed that there was no surveillance of 54A Binswood between 9:18 when Officer Stephenson left and Officer Hamilton got out of his vehicle and observed vehicle #1 parked south of Barker and he misplaced the vehicle and 9:28 when he located the vehicle on Fairside and 9:33 when he was told that Officer Stephenson had located the black male in the vehicle return to 54A and the black male entered the house. I do not consider that to be relevant to knowledge and possession.

The drugs were sufficiently hidden that it would be speculation to expect an unknown person to have placed them in the apartment during that interval. [ 40 ] Based on all of the evidence, it is a reasonable inference that the apartment at 54A was a stash house and was a residence for at least one person. [ 41 ] The theory of the defence was that Mr.

Coleman was associated with a residence on Milverton, that he could have been a visitor at Binswood, that there was no evidence that the KIA key on the keychain found in the bedroom was associated with the vehicle that he had driven, that at least the Asian male had access to the apartment, and that Mr. Coleman may have left the Certificate of Completion there. Defence counsel conceded that an inference could be drawn that it was Mr. Coleman’s place but it was not the only inference. [ 42 ] According to the Crown, the evidence of the contents of 54A Binswood in isolation might give rise to a reasonable doubt.

He argued however that after the trafficking with Mr. Malia, the suggestion that he could be trusted to just hang out there with all the drugs was not rational. The Crown argued that if I found that he had trafficked with Mr. Malia, there could be no innocent explanation for Mr. Coleman being in 54A Binswood. [ 43 ] In order to find Mr.

Coleman guilty of counts 2 and 3, I must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that he is guilty. [2] The Crown is not required to negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the defendant. [3] [ 44 ] The evidence supports the inference that 54A Binswood was probably Mr. Coleman’s stash house. The fact that he was in the premises so briefly before he walked away to make the transaction with Mr. Malia reinforces that inference.

The fact that he engaged in trafficking is also persuasive. However, as the evidence of lack of knowledge and lack of control indicates, it is not the only rational inference that can be drawn. [ 45 ] I am not persuaded beyond a reasonable doubt that Mr. Coleman had knowledge and possession of the cocaine and the marihuana in 54A Binswood. I find him not guilty of counts 2 and 3. Kiteley J. Released: R. v. Jeevan Coleman 2010 ONSC 7113

1-600782 20101222 ONTARIO SUPERIOR COURT OF JUSTICE Her Majesty the Queen And Jeevan Coleman REASONS FOR JUDGMENt Kiteley J. Released: