ONTARIO COURT OF JUSTICE

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1 ONTARIO COURT OF JUSTICE CITATION: DATE: COURT FILE No.: Toronto BE WEEN: HER MAJESTY THE QUEEN - AND- MATTHEW WARD=JACKSON - AND- SANYA VASILJEVIC Before Justice K. Caldwell Reasons for Judgment released on October 29,2014 Mr. Lucas Price.,"'...,"... "...,..,..., counsel for the Crown Mr. Deepak Paradkar... counsel for the accused Mr. Ward..Jackson Mr. Dean D. Paquette... counsel for the accused Ms. Vasiljevic K. Caldwell J.: [1] Mr. Ward-Jackson and Ms. Vasiljevic were jointly charged with possessing cocaine, both crack and powder, for the purpose of trafficking, possessing $13,000 in proceeds of crime, and possessing marihuana for the purpose of trafficking. Mr. Ward-Jackson alone was charged with possession of a further amount of marihuana for the purpose of trafficking and possession of a further $120 as proceeds of crime.

2 -2- [2] This judgment contains my reasons for my trial finding 1. OVERVIEW OF THE EViDENCE [3] Mr. Ward-Jackson and Ms. Vailjevic were arrested in a taxicab shortly after they left 4247 Dundas Street West. At the time of the arrest, Mr. Ward Jackson had 8.83 g of marihuana with him. That marihuana is the subject of the possession for the purpose count that he alone faces. [4] A search warrant had been obtained for the Dundas Street West location. This address is a strip mall that has two or three apartments above the stores. The police focus was on one of the apartments and it is contended that Mr. Ward-Jackson and Ms. Vasiljevic lived together in that apartment. [5] Once inside, the police located g of powder cocaine and 7.81 g of crack cocaine in a bag under clothing in a bedroom closet. They also located $13,000 in a safe located in another closet in a hallway. Small suspected amounts of marihuana were found under a couch in the living room and between the mattresses of the bed in the bedroom. The police inadvertently never seized the marihuana. Rolling papers and a grinder were found on the coffee table in front of the couch. THE ISSUE [6] Mr. Ward-Jackson and Ms. Vasiljevic argue that the Crown has not proven possession of the items beyond a reasonable doubt. Specifically, they argue that the Crown has not established knowledge and control. If possession is established, they concede that the drugs found in the apartment were possessed for the purpose of trafficking and they concede that the money was the proceeds of such trafficking. TEST FOR POSSESSION [7] Section 4(3) of the Criminal Code defines possession and that definition is adopted by the Controlled Drugs and Substances Act ("CDSA,,)2. Possession can be actual, constructive or joint. Actual possession requires the individual to have the item in his or her possession. Constructive possession involves having the item in a place for the use or benefit of himself or herself, or a third party. Joint possession involves one or more than one person having an item in his or her possession with the knowledge and consent of others in which case the item is deemed to be in the possession of all. 1 Previously both Mr. Ward-Jackson and Ms. Vasiljevic brought a directed verdict motion that I dismissed except in relation to Count 6. A substantial amount of my reasoning in that judgment applies, however, to this judgment thus I have copied into this judgment the relevant portions. 2 See Section 2 of the CDSA

3 -3- [8] In all instances, both knowledge and control are required to establish possession. In joint possession cases, consent must also be established but this element is an aspect of control 3. THE LAW OF INFERENCES [9] This is a circumstantial case. In such cases there is "an inferential gap" between the evidence and the inferences the Crown contends are established by such evidence 4. [10] It can be surprisingly difficult to draw correctly the line between a reasonable inference and a speculative conclusion. Properly drawing that line is crucial, however. It is trite to say that the overriding principle that must be safeguarded in a criminal trial is proof beyond a reasonable doubt. A finding of guilt based upon inferences that are in reality merely speculative conclusions violates that principle. Further, it is vital not to equate an abundance of hunches or guesses with proof beyond a reasonable doubt as to do so risks basing such proof upon a mere house of cards. Hunches or guesses do not become stronger simply because they can be found in volume. Chief Justice 5 Lamer dealt with this issue in the 1993 decision R v MacKenzie 6, outlined below. [11] Justice Ducharme's R v Munoz 7 decision, and Justice Doherty's R v Portil/o B and R v Huynh 9 decisions, which are referred to in Munoz, are extremely helpful when grappling with the requirements for drawing a proper inference. [12] Justice Ducharme outlined a two-step process. First, the trier of fact must ensure that the primary facts underlying the requested inference have been proven. If the Crown fails to establish these primary facts, then the Crown's requested inference amounts to no more than mere speculation. 10 Once the primary facts have been established, then the trier of fact turns to the second step of determining if these primary facts establish the inference requested by the Crown 11. [13] As Justice Ducharme noted in Munoz, the Portillo decision illustrated how difficult it can be to ensure that there is compliance with the first step, and the Huynh decision did the same regarding the second step R. v. Terrence, [1983] S.C.J. No R. v Arcuri, [2001] S.C.J. No. 52 at para As he then was 6[1993] 1 S.C.R [2006] O.J. No. 446 (Ont. S.C.J.) 8 (2003),176 C.C.C. (3d) 467 (Ont. C.A.) 9 (2005), 200 C.C.C. (3d) 305 (Ont. C.A.) 10 Supra, at para Ibid, at para Ibid, at paras. 27 and 29.

4 -4- [14] The Crown in Portillo attempted to prove that Mr. Portillo committed a homicide. In order to do so, it was necessary to prove that Mr. Portillo was at the homicide scene, close to the body. An inference was necessary to establish this fact. The Crown contended that this inference could be drawn from evidence of two partial shoe prints found at the scene, two shoes found near Mr. Portillo's apartment, and expert evidence that the partial prints were similar to shoe impressions from the shoes. [15] As Justice Doherty pointed out, however, the evidence that Mr. Portillo was at the scene could only be drawn if two primary facts were established. The first was that the shoes found near Mr. Portillo's apartment made the prints and the second was that Mr. Portillo owned the shoes. Both of those facts could only be established inferentially and, as was noted by Justice Doherty, the Crown evidence did not support those inferences. [16] Evidence that the shoe prints were similar to impressions from the shoes did not allow for an inference that the shoe prints were made by the shoes. Secondly, the presence of the shoes near Mr. Portillo's apartment did not allow for the inference that Mr. Portillo owned the shoes as there were many others who had access to the area where the shoes were found. [17] As the primary facts could not be established, the ultimate inference could not be drawn. As a result, Justice Doherty concluded that the footwear evidence had no relevance and should have been excluded. [18] In Huynh, the accused faced charges of conspiracy and money laundering in relation to trafficking in a controlled substance. In that case, the primary facts weren't in issue. The issue was what inferences could in turn be drawn from these primary facts. [19] There was evidence that the accused concealed large amounts of cash in the gas tank of his car and thus moved this money from the United States to Canada. The Crown argued that it could be inferred that the money was the proceeds of trafficking given the large sums involved, the frequency of the trips with the cash from the US to Canada, the sophistication of the concealment which suggested a commercial operation, coded conversations between the parties, and the evidence of a DEA officer that this mode of operation was consistent with drug dealing. [20] Justice Doherty noted that the Crown was really arguing that its evidence allowed for two inferences - first, that the money was the product of an illicit activity and, secondly, that the illicit activity was drug trafficking. He held that the gap between the first and second requested inference could only be bridged by evidence and that the Crown had not provided such necessary evidence. The evidence allowed for the first inference - that the money came from an illicit activity. Drug trafficking certainly springs to mind as a possible illicit activity but

5 -5- such a conclusion, on the evidence, amounted to a mere "educated guess" and an educated guess in turn amounted to no more than speculation. [21] I turn now to MacKenzie and I emphasize this case as it comes into play later in this judgment when I assess Mr. Ward-Jackson's alleged "hand to hand" transaction at the Walmart. In MacKenzie, Chief Justice Lamer clarified the oftignored difference between "evidence" on the one hand and "facts" on the other. He noted that the two words are often used interchangeably but that the failure to differentiate between the two has often led to confusion. [22] He acknowledged that other evidence might corroborate doubtful evidence, including other doubtful evidence. He also noted that evidence is never removed from the equation and the trier of fact always must consider the entirety of the evidence. [23] He stressed, however, that "facts" are different from evidence. The trier of fact assesses all of the evidence in determining if the facts necessary to support a conviction have been proven beyond a reasonable doubt. He went on to add that it is necessary to determine if such facts have been proven before using such facts to support or infer further facts. To allow a lesser standard "would present the possibility than an accused could be convicted on the basis of facts which are established as matters of conjecture only,,13. [24] He drew an analogy to a fisherman's net: The evidence presented at trial by the Crown seeks to establish factual propositions. Once established, facts may be used to infer other facts. In this way, established factual propositions intertwine to construct a net of such propositions. If a factual proposition is established as a mere probability or likelihood, and not beyond a reasonable doubt, it cannot be used to infer any further facts. The interweaving of facts breaks down and there is a hole in the net. A net with a hole, however small, is no useful net at all, since there remains a critical factual proposition which is not consistent only with the accused's guilt. Thus, a fact which is not established beyond a reasonable doubt can play no part in the jury's decision to convict, either as a fact on which they rely to find an essential element of the offence, or as a fact used to infer such facts. Therefore, while it is a misdirection to instruct juries to "reject" evidence, to tell juries to reject factual propositions which the Crown's evidence does not establish beyond a reasonable doubt is to state the law correctly14. [25] This analogy also illustrates the importance of correctly differentiating between a proper inference on the one hand and a speculative conclusion on the other. 13 Supra, para. 3 (see Footnote 6 above) 14 Ibid, at paras. 3-4.

6 -6- INFERENCE OF RESIDENCY [26] I draw as an inference and find beyond a reasonable doubt that Mr. Ward-Jackson and Ms. Vasiljevic both lived at 4247 Dundas Street West on the date the search warrant was executed. [27] I find the following primary facts and draw the residency inference from these facts: " Mr. Ward-Jackson entered into a probation order just eighteen days earlier listing that address as his residence, at which point his recognizance outlined below expired; '" The same probation form was found on the floor of the residence 15; " Ms. Vasiljevic signed as surety for Mr. Ward-Jackson just eleven months prior and listed that address as her Mr. Ward-Jackson had been ordered to live with her as a term of that recognizance;.. Both parties had been seen at the address in the days just preceding the execution of the search warrant and in fact had left that address just moments before the warrant was executed. [28] Both accused argued that the lack of a unit number specification in the court papers and the lack of a key found on either of them should leave me with a reasonable doubt that the unit searched was the unit of residence given that there appeared to have been more than one residential unit above the shops at that address. [29] I find, however, that adding in the evidence of the probation order in Mr. Ward-Jackson's name found in the very unit searched leads me to draw the residency inference regarding Mr. Ward-Jackson. In terms of Ms. Vasiljevic, the fact that a recognizance that had expired just days prior signed by her and requiring Mr. Ward-Jackson to live with her, when combined with the location of the probation order, leads me to conclude that this was her residence unit as well. [30] It was argued that as the recognizance had expired three weeks earlier, I should be left in doubt that Ms. Vasiljevic still lived at the Dundas St. W. residence. I find that such a conclusion would amount to mere speculation with no evidentiary foundation. I appreciate that the onus is not on Ms. Vasiljevic to prove that she did not live there but I find that I am convinced beyond a reasona- 15 I accept the officer's testimony that the probation order was found on the floor in the bedroom. The office was straightforward, clear and credible in his testimony and there was no evidence to the contrary. The video evidence does not show such an order on the floor but I note that the scene video does not show the entire bedroom floor.

7 -7- ble doubt that she still lived at the residence on the basis of the evidence that I have just reviewed. INFERENCE OF BEDROOM OCCUPANCY [31] I infer and find beyond a reasonable doubt that Ms. Vasiljevic and Mr. Ward-Jackson shared the bedroom that contained the marihuana under the mattress and the cocaine in the closet. [32] A DVD of the residence was made during the search warrant execution. That DVD reveals evidence of two bedrooms in unit. The first bedroom had a neatly made bed, clothing described in evidence as men's and women's, and appeared to be occupied. The marihuana and cocaine were found in this bedroom. The second bedroom was extremely messy, contained a couch, no bed, and was filled with various piled items. I infer that the second bedroom was unoccupied. This inference, combined with the other evidence of the first bedroom, leads me to conclude that Ms. Vasiljevic and Mr. Ward-Jackson occupied the first bedroom together. [33] More specifically, I find that Mr. Ward-Jackson occupied that bedroom given: ~ The men's clothing found in the closet; ~ His probation order on the floor; ~ The lack of occupancy of the second The lack of evidence of any other tenant other than Ms. Vasiljevic 16 [34] I find that Ms. Vasiljevic occupied that @ The women's clothing found in the closet; The lack of occupancy of the second bedroom; The lack of evidence of any other female tenant. EVIDENCE OF MR. WARD-JACKSON'S ACTIONS OUTSIDE THE WALMART [35] Mr. Price for the Crown vehemently argued that I could still consider evidence of Mr. Ward-Jackson's actions outside of the Walmart despite the fact that I found in my directed verdict judgment that these actions would not allow an inference of drug dealing to be drawn. [36] I agree with Mr. Price up to a point and it is this issue that brings me back to my comments on the inference drawing process and in particular the MacKenzie decision There was evidence of another male, a Mr. Holtz, found on the scene but he was seen only on the search warrant date and no other evidence was led tying him to this address 17 See Footnote 5

8 -8- [31] As Chief Justice Lamer clarified in MacKenzie, admissible evidence is never removed from the fact finder's consideration. Further, in reaching conclusions of fact, the fact finder must consider all of the evidence. I therefore agree with Mr. Price that the evidence of Mr. Ward-Jackson's actions remains in play throughout my assessment of the facts in this case, assuming that I accept 8gt. Warrener's observations. [38] I do accept 8gt. Warrener's observations of Mr. Ward-Jackson though I do not reach the same conclusion regarding the import of these actions. I accept his evidence because I found his testimony to be straightforward, logical and, most importantly, measured. Bluntly, if he wished to exaggerate his observations in order to bolster his opinion that Mr. Ward-Jackson was engaging in a drug transaction, he could have stated that he actually saw objects that appeared to fit with such a transaction exchange hands. He didn't testify to such an actual exchange but merely said that hands touched on two occasions and that there appeared to be an exchange though he did not see an actual transfer of objects. In my view, the nature of this description is the more logical given his vantage point and also adds to his credibility. [39] Sgt. Warrener also gave the opinion that what he observed was a drug transaction. I understand why the officer held this opinion and I accept that this was his subjective belief. I do not reach the same conclusion, however. First, I note the lens through which Sgt. Warrener was making this assessment. The officers were conducting surveillance of Mr. Ward-Jackson, whom the police suspected was a drug trafficker. It is only logical that this fact risks impacting, unconsciously or consciously, the conclusions the police draw from the actions they observe. My role is different than that of the officers, however, and thus I must hold the evidence to a much higher standard before drawing such definitive conclusions. [40] I certainly find Mr. Ward-Jackson's actions suspicious and I find that he may very well have been engaged in a hand-to-hand drug transaction. I find, however, that I am not convinced of this fact beyond a reasonable doubt. The only other evidence in this case which, when combined with the Walmart observations, would lead me to conclude that a drug transaction occurred is the presence of drugs in the apartment. But this evidence, in turn, only assists if I have already concluded that the drugs belonged to Mr. Ward-Jackson. The reasoning then becomes circular. [41] The assessment of the import of the Walmart observations also highlights the importance of rigorously assessing evidence before drawing inferences as highlighted by Justices Doherty and Ducharme in Pattillo, Huynh and Munaz 1B. 18 See Footnotes 6-8.

9 -9- [42] I turn back to Mr. Price's contention that this evidence, however, is still evidence to be considered by me in assessing the ultimate question - whether Mr. Ward-Jackson possessed the drugs in the apartment. I agree, as per Chief Justice Lamer's reasoning in MacKenzie, that the evidence is still before me. [43] The evidence is still in play though not the fact that the Crown wished me to infer from that evidence. The importance of this distinction and the importance of holding the establishment of the inferential fact to one of proof beyond a reasonable doubt are clear if the contrary argument is followed through to its logical conclusion; I will return later to this point. INFERENCE OF KNOWLEDGE AND CONTROL OF THE COCAINE IN THE CLOSET [44] I found in my directed verdict judgment that a reasonable jury could infer that both Mr. Ward-Jackson and Ms. Vasiljevic had knowledge and control of the cocaine in the closet. [45] Such a conclusion is a factual one and I find that I am not convinced beyond a reasonable doubt that either had knowledge and control. [46] My finding in the directed verdict motion was based upon a blending of the reasoning in the R v Chambers 19 and R v Fredericks20 cases. First, any such finding requires that residency and occupation of the bedroom be found as primary facts. I have already outlined my reasons above for finding that both Mr. Ward-Jackson and Ms. Vasiljevic occupied the apartment unit and the bedroom. [47] In the Chambers case, Ms. Chambers was found in possession of drugs that also belonged to her boyfriend on the basis that she could give or withhold her consent to their presence and therefore an inference of control could be drawn even if the drugs primarily belonged to her boyfriend. As I noted in my directed verdict judgment, however, this inference is easier to draw in an instance when there is a sole occupant of the premises (in Chambers, the boyfriend was merely a visitor). In this case, I find it impossible to find that either party had control as a result of mere occupancy as I have found that both occupied the bedroom - I cannot conclude that one had control over the items belonging to the other when they appear to have had equal claim to the bedroom. [48] I turn then to the Fredericks case. Fredericks is based upon the conclusion that valuable items such as a substantial quantity of drugs would not be left in the bedroom without the express knowledge of all occupants as it would be too easy for one occupant to find the drugs and dispose of them. Further, according to the argument in Fredericks, it would be reasonable to infer that such expensive drugs would not be left unguarded thus the presence of one individual alone 19 [1985] O.J. No 143 (Ont. G.A.) 20 [1999] O.J (Ont. G.A.)

10 - 10- in the vicinity of the drugs could allow for the inference that the individual was acting as the keeper of the drugs for that period of time. [49] The Court of Appeal in Fredericks was reviewing the supportability of the trial judge's factual findings based on the evidence and the Court found that it was open on the basis of the evidence for the trial judge to make the factual finding of possession. The Court in so holding is not finding that the same factual conclusion must be drawn in all similar cases and I decline to draw it in this case. Obviously I do not know all of the nuances of the evidence in Fredericks and each case turns upon its own unique evidence. [50] I certainly agree with the Crown that the scenario is highly suspicious. If the standard of proof was one of balance of probabilities, I may find both accused to have had knowledge and control. That is not the standard, however, and I am not prepared to make a finding of possession by either accused in this case. [51] The drugs in question, though valuable, were not of the same degree of value as the drugs in Fredericks. They were concealed though admittedly not all that difficult to discover if one chose to rummage through the contents of the closet. I find, however, that I am left with a reasonable doubt and in part this doubt flows from the fact that I know nothing about the particular dynamics of the relationship between Mr. Ward-Jackson and Ms. Vasiljevic. I find that without knowing more about the nuances of this particular relationship I would be overstepping into the realm of speculation to conclude that one would necessarily tell the other of the presence of these drugs and, further, that the one who was told of the presence would have the freedom to dispose or otherwise deal with them if she or he saw fit, hence leading to a measure of control. INFERENCE OF POSSESSION OF THE $30,000 CONTAINED IN THE SAFE [52] Very simply, I do not draw the inference of possession and control of the $13,000 for the same reasons that I declined to draw that inference in relation to the cocaine in the closet. RETURN TO THE WALMART EVIDENCE [53] I turn back now to the point I left off in relation to the Walmart evidence. That evidence remains in play throughout but I find that it really adds nothing to

11 -11- my overall assessment of this case as the only value held by that evidence is in relation to the rejected inference of drug dealing. [54] It is at this juncture that the necessity of rigorously assessing inferences becomes clear. I have found that there is insufficient evidence to prove beyond a reasonable doubt that Mr. Ward-Jackson had knowledge and control of both the cocaine and the $13,000. What of the suspicious nature of the actions outside Walmart, however? Do those actions, assessed in combination with the presence of money and drugs in the apartment, lead to a conclusion that Mr. Ward Jackson possessed the money and drugs? [55] The Walmart actions don't assist in determining possession of the drugs and money unless those actions are seen to be those of a dealer and, though suspicious, I have found that the actions don't rise to that level. It would be very dangerous to imbue more meaning into actions that are merely suspicious and then use such actions to bridge the gap between the presence of concealed drugs and money to one of knowledge and control of such drugs and money. To take this step would be to base a "beyond a reasonable doubt" finding upon interwoven facts that contain the proverbial hole described in Chief Justice Lamer'S fishnet analogy in MacKenzie. [56] Further, the necessity of a rigorous assessment of the Walmart actions evidence highlights the importance of ensuring that the primary facts underlying any requested inference are established before proceeding further. An analogy can be drawn between this evidence and the shoe evidence led in the Portillo case outlined earlier. To refresh, in Portillo the Crown needed to prove Mr. Portillo's presence close to the deceased's body. The primary facts required by the Crown to establish this presence was that the shoes found near Mr. Portillo's apartment made the shoeprints found near the deceased's body and that those same shoes belonged to Mr. Portillo. Justice Doherty found that the evidence could not establish these primary facts and thus the entire analysis broke down. [57] Similarly, in this instance, the Crown wishes to establish that Mr. Ward Jackson was seen dealing drugs as a primary fact in order to further establish the inference that the drugs and money in the apartment were possessed at least in part by him. That primary fact - as with Portillo - requires an inference in order to be established. And, as in Portillo, the failure to establish this primary fact also leads to a breakdown in the analysis.

12 - 12- CONCLUSION [58] I therefore find Mr. Ward-Jackson and Ms. Vasiljevic not guilty of counts 1 and 3 (powder and crack cocaine in the closet) and count 4 ($13,000 in safe). The Crown invited me to acquit Mr. Ward-Jackson of count 2 (proceeds of crime relating to $120 found in his possession upon arrest) and I make this finding at this point if it was not noted previously. The Crown invited me to find Mr. Ward Jackson guilty of the lesser and included charge of simple possession in relation to count 5 (marihuana found in Mr. Ward-Jackson's possession upon arrest) and guilt was conceded on this basis -- I therefore find Mr. Ward-Jackson guilty of the lesser and included offence of simple possession in relation to count 5. I previously granted Mr. Ward-Jackson's and Ms. Vasiljevic's directed verdict motion in relation to count 6 and thus that count should be noted dismissed if that had not been noted previously. Released: October 29, 2014 Signed: "Justice K. Caldwell"