Decision Content
R v Gattie & Mohammed, 2020 NWTSC 11 S-1-CR-2018-00036
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
-v-
GARY JAMES GATTIE AND LIBAN MOHAMOOD MOHAMMED
________________________________________________________
Transcript of the Reasons for Judgment delivered by the Honourable Justice S.H. Smallwood, sitting in Yellowknife, in the Northwest Territories, on the 21st day of February, 2020.
________________________________________________________
APPEARANCES:
B. Green: Counsel for the Crown
P. Harte: Counsel for Gary James Gattie
A. Ouellette: Counsel for Liban Mohamood Mohammed
(via teleconference)
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Charges under s. 354(1)(a) of the Criminal Code
and s. 5(2) of the Controlled Drugs and Substances Act.
I N D E X
PAGE
RULINGS, REASONS
Reasons for judgment 1
FRIDAY, FEBRUARY 21, 2020
THE COURT: Gary James Gattie and Liban Mohamood Mohammed are jointly charged with two charges; possession of property obtained by crime contrary to section 354(1)(a) of the Criminal Code and possession of cocaine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act.
On September 8th, 2017, the RCMP executed a search warrant at apartment 307, 4920 54th Avenue in Yellowknife. The RCMP were looking for drugs and evidence of drug trafficking. The tenant of the apartment was Gary Gattie. When the police executed the warrant, Liban Mohammed was located in the apartment and was placed under arrest. Mr. Gattie was located elsewhere and arrested a short time later.
Inside the residence, the police found two safes in an upstairs bedroom. Inside one safe, two bags of cocaine and $52,325 in cash were located. A bag of cocaine was also located on a table in the upstairs bedroom.
The trial was held before me on June 17th to 19th, 2019, and December 3rd, 2019. The Crown called seven witnesses; Constable John Keefe, Corporal Douglas Melville, Constable Jeremy Bigger, Corporal Benjamin Fage, Sergeant Sebastien Ruel and Constable Bryan Martell. Neither accused presented evidence in the trial. There were a number of exhibits which were entered into evidence, including agreed statements of facts, photographs, surveillance reports, DVD videos, banking records and cellphone extraction reports.
As there was a dispute about the admissibility of some evidence, the trial was conducted as a blended voir dire and trial. At the conclusion of the evidence, I ruled orally on the disputed evidence and determined that it was admissible. That evidence was the photograph of a CIBC banking receipt located in the upstairs bedroom, photograph 25 in Exhibit 4, and Exhibit 8, an agreed statement of facts regarding Mr. Mohammed's status as a parolee at the time of the events. As I have already made my ruling, I do not intend to further address the admissibility of that evidence in this decision.
The Crown and Defence Positions:
There are a number of things which were not in issue in this trial; the identity of the accused, the date and place of events, that cocaine was found inside the residence, that the cocaine was consistent with possession for the purpose of trafficking, that the money found inside the residence was proceeds of crime. None of these were argued before me.
What is in issue is whether the cocaine and the money located in the upstairs bedroom was in the possession of either accused. The Crown's position is that Mr. Gattie's apartment was being used as a stash house to store drugs by Mr. Mohammed. The drug transactions were conducted at the nearby Victorian Suites by Mr. Mohammed and possibly others.
The Crown argued that Mr. Gattie must have known about the drug trafficking operation out of his apartment. The Crown argued that both Mr. Gattie and Mr. Mohammed were in possession of the drugs and money found in the apartment.
The Crown called Sergeant Ruel as an expert witness who testified that the cocaine was consistent with possession for the purpose of trafficking and that his opinion was that apartment 307 was being used as a stash house for a drug trafficking operation. He also testified that, in his opinion, the cash was proceeds from the sale of cocaine.
Mr. Gattie's position is that Mr. Gattie did not have a key to the locked upstairs bedroom and there is no evidence that he had any control over anything in the locked bedroom. Mr. Gattie's fingerprint which was found only puts him in contact with a safe that does not have any drugs or money in it, and there are a number of innocent explanations for how Mr. Gattie's fingerprint could have gotten on the outside of the safe. Mr. Gattie's position is that there is no evidence that he had knowledge or control over the contents of the safe in the upstairs bedroom.
Mr. Mohammed's position is that Mr. Mohammed had no key and no access to the locked bedroom. There is no evidence that he was staying at the apartment or had access to the locked bedroom and there is no direct link between Mr. Mohammed and the drugs or money and it is not a reasonable inference to conclude that he had knowledge or control over those items.
I want to begin by stating two very important principles that must always be kept in mind in a criminal trial. The first is the presumption of innocence. The accused are considered innocent throughout the case. The presumption of innocence means that the burden of proof is on the Crown and always remains on the Crown to prove the guilt of each accused. Mr. Gattie and Mr. Mohammed are not required to prove anything or to explain anything.
The second principle is the requirement for proof beyond a reasonable doubt. This is a high standard of proof. It is more than probable or likely guilt. At the same time, it is not proof to an absolute certainty.
A reasonable doubt is not an imaginary, far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. Instead, it is a doubt based on reason and common sense. It is a doubt that comes logically from the evidence or that comes from the absence of evidence.
If, after considering all of the evidence and the lack of evidence for each count and for each accused I am sure that the accused committed the offence charged, then I would be satisfied beyond a reasonable doubt and must find that accused guilty of that offence. If I am not sure and I have a doubt, I must find him not guilty of that offence.
In order to find Mr. Mohammed or Mr. Gattie guilty of possession for the purpose of trafficking, the Crown must prove each of the essential elements of the offence beyond a reasonable doubt. So first, that the substance was a controlled substance, in this case, cocaine. Second, that Gary Gattie or Liban Mohammed was in possession of the substance. Third, that Gary Gattie or Liban Mohammed knew the nature of the substance, and fourth, that Gary Gattie or Liban Mohammed possessed the substance for the purpose of trafficking.
In order to find Mr. Gattie or Mr. Mohammed guilty of possession of property obtained by crime, the Crown must prove beyond a reasonable doubt that the accused was in possession of the money, that the money was proceeds of crime, and that the accused knew that the money was the proceeds of crime.
The defence does not contest that the possession of the cocaine located in the safe would be for the purpose of trafficking or that the cash located in the safe was proceeds of crime. Sergeant Ruel was qualified to give opinion evidence on whether the drugs located in the apartment would have been possessed for the purpose of trafficking. He was also of the opinion that the money would have been the result of the sale of cocaine.
I have considered the evidence and Sergeant Ruel's opinion on these points and I am satisfied that the cocaine seized would be possessed for the purpose of trafficking and the money seized was proceeds of crime. It is a significant amount of cocaine in two packages, locked in a safe, packaged along with over $50,000 in cash. The amount of cocaine is well in excess of what even a heavy user of cocaine would have had on hand. There was a box of sandwich baggies and a digital scale in the locked bedroom as well which is indicative of packaging cocaine for sale.
There was also a cellphone located in a jacket in the bedroom which had texts which were consistent with the sale of drugs. All of this is indicative of possession of the cocaine for the purpose of trafficking, and I think it is also safe to say that whoever possessed the cocaine and money and stored it in a locked safe in a locked bedroom would have had knowledge of the nature of the substance as cocaine or an illegal drug.
The real issue in this trial based upon the admissions and the arguments made by counsel for both offences is whether Gary Gattie or Liban Mohammed was in possession of the cocaine and the money seized by the police. If one or both of Mr. Gattie or Mr. Mohammed was in possession of the cocaine, then that person necessarily was also in possession of the money and vice versa. So I will address the issue of possession for the cocaine and the money at the same time for each accused.
Possession is defined in the Criminal Code in section 4(3) which reads:
(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.
A person can be in personal, constructive or joint possession of something. To prove possession, the Crown must prove beyond a reasonable doubt both knowledge and control by the accused of the cocaine or the money. This can be done by direct and/or circumstantial evidence. The Court must consider the evidence as a whole and consider the totality of the evidence.
Personal possession is where someone has physical control of something, for example, something in their jacket pocket. What is required is that an accused person is aware that they have physical custody of the substance and must be aware of it, of what it is. Both elements also require control, and that is the R v Morelli, 2010 SCC 8 at paragraph 16.
Constructive possession is where a person knowingly has a substance in the actual possession of somebody else or in some place for the use or benefit of himself or somebody else, provided that he has some measure of control over the substance. Constructive possession has been established where an accused has knowledge of the character of the object, knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and intends to have the object in the particular place for his use or benefit or that of another person. Morelli, paragraph 17.
"Knowingly" means that the person is aware of the possession or custody of the substance by another, or in another place, and does not act through ignorance, mistake or accident. There must be knowledge which is more than quiescent knowledge, and the accused must have some measure of control over the substance. R v Pham, [2005] O.J. No. 5127, (C.A.) at paragraph 15.
With respect to possession in a residence, the law regarding possession was summarized as follows in "Drug Offences in Canada", 4th edition at 4:100.60:
Where a person occupies a room, apartment or house, a trier of fact may be entitled to infer that the occupant was aware of the presence of and had a measure of control over drugs found within those premises. Just how strong that inference is, and whether it should be drawn at all, depends very much on the full factual matrix before the Court….
Whether and to what extent any particular accused can be tied to drugs found in residential premises will depend on a range of factors, including: whether the accused lived there or regularly stayed over; whether others lived there or stayed over, and the frequency; clothing and other indicia of living arrangements; who paid the rent or mortgage; in whose name are the various utility accounts; frequency of attendance based on surveillance; and relationship between individuals appearing to live in the premises. This is not, of course, an exhaustive list. For example, knowledge and control over openly visible drugs can and often will be inferred where the accused are the only ones living in the premises. [Citations omitted]
Control is also required for constructive possession. The Crown must prove that an accused had the ability to exercise some power, some measure of control, over the item in issue, and it is not necessary for the Crown to prove that such power was, in fact, exercised. R v Wu, 2010 BCCA 589, paragraph 20.
There can also be joint possession where two or more persons are in joint possession of a substance. When any one of two or more persons with the knowledge and agreement of the others has a substance in his possession, all of them are in possession of that substance, provided that they have some measure of control over the substance. However, mere indifference or doing nothing does not constitute consent. Knowledge and control are thus elements of all types of possession.
In this case, there was also circumstantial evidence. The case of R v Villaroman, 2016 SCC 33 considered circumstantial evidence. A verdict of guilty based upon circumstantial evidence cannot be reached unless the trier of fact is satisfied beyond a reasonable doubt that guilt is the only reasonable inference to be drawn from the whole of the evidence.
In deciding whether the only reasonable inference is that the accused is guilty, the trier of fact must consider whether there are other reasonable inferences or reasonable possibilities that are inconsistent with guilt. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.
In Villaroman at paragraph 36, Justice Cromwell stated:
A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.
Other reasonable possibilities must be based on logic and experience applied to the evidence or the lack of evidence, and not on speculation. Villaroman, paragraph 37.
The Alberta Court of Appeal in R v Dipnarine, 2014 ABCA 328 at paragraph 24, which was cited with approval in Villaroman, held that "Alternative inferences must be reasonable and rational, not just possible." A trier of fact cannot base a decision on irrational or unreasonable inferences.
Turning now to the evidence, the investigation, the RCMP began surveillance of apartment 307, 4920 54th Avenue on August 31st, 2017. They surveilled the apartment on August 31st, September 1st, 2nd, 5th and 8th, 2017.
On August 31st, 2017, the officers on surveillance observed an unknown black male leaving Executive Suites and walking to Victorian Suites about two blocks away. On September 1st, 2017, at approximately 6:22 p.m., an officer observed Liban Mohammed exiting Executive Suites and leaving in a taxi to Victorian Suites apartment building. On September 2nd, 2017, at approximately 6:55 p.m., an officer observed Gary Gattie come out of apartment 307, walk down the stairs to the main entrance of Executive Suites. There, a cab pulled up and a woman got out. Mr. Gattie paid for the cab and he and the woman then entered apartment 307.
On September 5th, 2017, the RCMP simulated a traffic stop outside of Executive Suites. The purpose of the traffic stop was to see if the occupants of apartment 307 would come to a window overlooking the street and if they could determine who was inside the apartment. The traffic stop was staged with lights and sirens to draw the attention of the occupants.
Constable Melville observed Gary Gattie at the window of the apartment. There was a second individual at the window shortly after who appeared to be holding up the blind of the window, but Constable Melville testified he could not identify who that person was.
Constable Martell testified that he observed Gary Gattie moving the curtain and looking at the traffic stop for several seconds. Then a second person lifted a different part of the curtain and this person was observed by Constable Martell who described this person as a black male wearing a white T-shirt. That person then went away, and according to Constable Martell, Mr. Gattie took the curtain and began to look out the window again.
Constable Martell testified that the photographs and the video taken of the surveillance during the traffic stop did not clearly show the unknown black male that he saw as he was looking through binoculars. This person was not subsequently identified by the RCMP.
On September 8th, 2017, the RCMP conducted surveillance again at Executive Suites. Constable Melville observed an unknown male exit the building and enter a cab and depart the location. A short time later, Liban Mohammed arrived in a cab. Liban Mohammed entered the Executive Suites building and then departed a short time later wearing a different shirt. He got into the same cab which Constable Melville believed waited for him. Liban Mohammed departed and then came back again with what appeared to be food containers and plastic bags. He went back into Executive Suites.
The RCMP entered apartment 307 at Executive Suites at approximately 4:30 p.m. on September 8th, 2017 to execute the search warrant. They announced "Police search warrant." They entered -- they were not let into the apartment and they had to enter the apartment using a battering ram as the door was locked. It took a minute or two to enter the apartment as they could not initially breach the door.
When the RCMP entered the apartment, there was one male present. He was observed coming out of the bedroom on the main floor. That male identified himself as Hakim Ahmed but was later determined to be the accused, Liban Mohammed. He was arrested for possession for the purpose of trafficking at 4:36 p.m. and provided his Charter rights and the police warning.
A bank deposit slip was located in Mr. Mohammed's right front pocket. The bank deposit slip showed a deposit of $1,600 to an account ending in 3291 on September 8th, 2017 at 3:41 p.m.
Prior to the search of the apartment, Corporal Melville took a pre-search video. In the video, the screen of the downstairs bedroom window is torn and flapping. In the surveillance video taken on September 5th, 2017 during the simulated traffic stop, the screen on the window did not appear to be torn or flapping. The officers thought that Mr. Mohammed might have thrown something out of the window. The police searched the area below the window but were not able to locate anything.
During the search of the apartment, an iPhone was located on the ottoman in the living room. Mail was located in the apartment addressed to Gary Gattie and bearing the address of the apartment. In the downstairs bedroom, Gary Gattie's passport was located in a box addressed to Mr. Gattie at the apartment's address.
In the bathroom on top of the cabinet two digital scales and a cigarette package which contained a pipe were located. There were also takeout food containers located in the apartment with a receipt which coincided with the officer's observations of Mr. Mohammed leaving and returning with what appeared to be food containers that day. The open food containers were on the ottoman beside the iPhone.
Also located in the living room were some corner baggies and white residue. The upstairs bedroom door was locked. The police gained entry to the bedroom by kicking in the door.
In an upstairs bedroom, two safes were located. Inside a large Honeywell safe, Corporal Melville found two bags of crack cocaine weighing 239 grams and 54.1 grams and $52,325 in cash. A smaller Garrison safe was empty.
The safes were later tested for fingerprints. A fingerprint of Luqman Abdulkarim was located on the inside of the larger safe and a fingerprint of the accused, Gary Gattie, was found on the outside of the smaller safe. The fingerprint of Gary Gattie on the outside of the smaller safe was consistent with lifting or carrying the safe. The fingerprint analysis is not able to determine when any of the fingerprints might have been left on the safes.
On the floor of the bedroom was a white plastic shopping bag, a knife, multiple Ziploc bags, coffee grounds and duct tape wrapping. The grounds were all over the carpet. Inside the white plastic shopping bag was a prescription label for Luqman Abdulkarim. On the floor, there was a boarding pass dated September 1st, 2017 for Luqman Abdulkarim to travel from Edmonton to Yellowknife. A Samsung cellphone was located on the floor; inside the closet in the bedroom, a box of Ziploc sandwich bags with a black digital scale inside the box with white residue on it.
Inside the bedroom, a blue suitcase was located which had the Ontario driver's licence of Kamal Mohamood. A Blackberry cellphone was also located in the pocket of the luggage. A CIBC receipt was located in the blue luggage in the upstairs bedroom. It shows a deposit of $2,000 to an account ending in 3291 on August 31st, 2017, at 4:54 p.m.
An itinerary was also located in the bedroom for Farah Zakariya for a trip from Yellowknife to Calgary on April 23rd, 2017, and another for Kamal Mohamood flying from Yellowknife to Calgary on July 30th, 2017. There was also another boarding pass for Luqman Abdulkarim travelling from Edmonton to Calgary on July 4th, 2017. There was another boarding pass for Omar Farah travelling from Calgary to Yellowknife dated February 12th, 2017.
There was also a drug and alcohol testing card bearing the name Bilal Mohammed Abdullahi dated May 19th, 2017. It was located in a black Eddie Bauer suitcase in the bedroom.
On the bedside table, a wallet was located with the Alberta driver's licence and other identification of Luqman Abdulkarim. Beside the wallet was a small bag of cocaine weighing 1.4 grams.
Hanging on the wall in the upstairs bedroom was a black parka which contained keys, a receipt for a flight, an LG flip-phone in the inside pocket, and an Apple iPhone in the outside left pocket of the parka. The electronic ticket receipt was for Omar Farah for a flight from Calgary to Yellowknife on February 12th, 2017. The keys were for the front door of the apartment. No keys were located for the locked bedroom door.
Gary Gattie was arrested by Constable Bryan Martell at the downtown subway on September 8th, 2017, at approximately 5:10 p.m. for possession for the purpose of trafficking and possession of the proceeds of crime. He was given his Charter rights and the police warning. Following this, Constable Martell testified that Gary Gattie said that he wanted to discuss things, and Constable Martell told him to wait until the police station and after he had talked to a lawyer.
Constable Martell then testified that Gary Gattie asked if others had been arrested. Constable Martell told Mr. Gattie that a search warrant had been executed at his apartment and one person arrested there. When he was arrested, Gary Gattie had a Blackberry cellphone and an iPhone on his person. There was a bundle of $20 bills in his left breast pocket, $5 bills in his right front jeans pocket, and $20 bills in a wallet in his backpack. In total, Mr. Gattie had $520 and $70 in cash. He also had a set of keys in his pocket, including a key with the number 5307.
As part of the investigation, the police obtained a production order on November 3rd, 2017, for several bank records. Photographs taken at the CIBC branch in Yellowknife on August 31st, 2017, at approximately 4:53 p.m. show Liban Mohammed wearing what appears to be the same sweatshirt and pants as worn in the surveillance photos taken on September 8th, 2017, when he was photographed leaving Executive Suites and getting into a cab.
The CIBC photographs taken on August 31st, 2017, depict Liban Mohammed entering the bank at a bank teller, appearing to deposit cash, and then leaving the bank. There are also photographs from the CIBC branch in Yellowknife on September 8th, 2017 at 3:41 p.m. showing Liban Mohammed again appearing to wear the same outfit as on August 31st, 2017. The photographs depict him entering the bank, again appearing to deposit cash at a bank teller, and then leaving the bank.
The bank records of Faduma Ali, whose bank account ends in 3291, were obtained and shows that a deposit of $2,000 was made to her account on August 31st, 2017 at the Yellowknife Banking Centre of CIBC. They also show that another deposit was made on September 8th, 2017 of $1,600 at the Yellowknife Banking Centre.
These amounts, dates and times coincide with the bank receipts which were seized by the police on September 8th, 2017, at apartment 307 of Executive Suites. The August 31st, 2017 CIBC receipt was seized from inside the locked bedroom inside the blue luggage, and the September 8th, 2017 CIBC receipt was located in Mr. Mohammed's pocket on his arrest.
Three of the phones seized from apartment 307 were searched. The LG flip-phone found inside the pocket of the parka in the upstairs bedroom (PE-61), an Apple iPhone found in the outside left pocket of the parka in the upstairs bedroom (PE-60), and the Apple iPhone found on the ottoman in the living room (PE-70).
From a review of the extraction report of PE-70, I conclude that the iPhone on the ottoman belongs to Liban Mohammed. There are text messages in the phone that refer to Liban. There are many, many text message exchanges over a significant period of time between Liban and someone who has been entered as a contact as Faduma, and from that exchange it is apparent that they were in a relationship and later married.
Sergeant Sebastien Ruel was called by the Crown and qualified as an expert in the production, manner and methods of use, packaging, distribution and placing of cocaine, the language and paraphernalia associated with users and traffickers of cocaine and drug jargon in general. Sergeant Ruel testified that crack cocaine sells for $80 for half a gram in Yellowknife. His opinion was that the crack cocaine seized in this case would have a street value of approximately $46,000.
Sergeant Ruel's opinion was that a drug user would not be in possession of 293 grams of crack cocaine and $52,325 in cash for personal use. A person would possess that quantity of crack cocaine to traffic in cocaine and make a profit.
Sergeant Ruel viewed the packaging that was found on the floor in the upstairs bedroom and was of the view that it was consistent with how drug traffickers transport cocaine or other drugs. In his opinion, the packaging he viewed would hold a kilo of powder cocaine. Sergeant Ruel also testified that the sandwich bags and digital scales are often used by drug traffickers to weigh and package cocaine for sale and would be consistent with drug trafficking activity.
Sergeant Ruel viewed some of the texts, extracts of text messages, from the LG cellphone and was of the opinion that many of the text exchanges were consistent with trafficking in drugs. Sergeant Ruel testified that drug traffickers would probably use a stash location to hide the drugs. If a person used an apartment to stash the drugs, then access to the apartment would be limited because the trafficker would not want a lot of people to be seen at that location.
Sergeant Ruel's opinion was that apartment 307 at Executive Suites was being used as a stash house. Sergeant Ruel testified that he would expect that Liban Mohammed's role, based on the evidence, would be that of the head of the operation in Yellowknife. With respect to Gary Gattie's knowledge of what Mr. Mohammed was doing, Sergeant Ruel's opinion was that he would expect that Mr. Gattie would be aware.
When asked why he would not expect Mr. Mohammed to keep this hidden from Mr. Gattie, Sergeant Ruel stated:
Well, first you’ve seen -- like outside the upstairs bedroom which was locked, you see trace of consumption of drugs like the scales in the bathroom, the pipe. But also on the table in the living room there was baggies and white powder traces. That is a good sign. But also the -- let’s say Mr. Mohammed was about to -- was leaving the area, the apartment, he has to trust the person who is there to make sure he doesn’t get robbed. But also, if he does not tell Mr. Gattie, there’s strong chances that Mr. Gattie will see the suspicious transaction, the suspicious in's and out's, and then he would maybe contact the police and become maybe a police source or --
Defence counsel has pointed out that the baggies and the white powder traces were not readily apparent on the living room table. It was during the search that they were located and placed on the living room table, then photographed.
It is not clear from the evidence where those items were located in the residence, although presumably it was in the living room as the officers placed the items on the living room table once they were found, but they were not visible in the pre-search video as being on the living room table. So I cannot conclude that those items would have been readily visible to an occupant of the residence. There is simply no evidence to support that conclusion.
Sergeant Ruel also acknowledged that based on a review of the surveillance reports of Executive Suites that there were no suspicious comings and goings at Executive Suites and that the activity, the suspicious activity, was actually at Victorian Suites.
Dealing first with Mr. Gattie, the Crown has argued that there are three categories of evidence which implicate Gary Gattie and lead to the conclusion that he must have known that there was a drug trafficking operation operating out of his apartment. These categories are:
1) Mr. Gattie's utterance on arrest;
2) his fingerprint on the safe in the locked upstairs bedroom; and
3) his apartment and the inferences that can be drawn from that and what is found in the apartment.
Dealing with the utterance on arrest, Constable Martell testified that when he arrested Mr. Gattie after he had given him his Charter rights and the police warning, Mr. Gattie had said that he wanted to discuss things, and Constable Martell told him to wait until they were at the police station and after he had spoken to a lawyer as Mr. Gattie had indicated he wished to speak to a lawyer. Following this, Constable Martell testified that Gary Gattie then asked him, "if others had been arrested".
During the trial, Constable Martell was cross-examined about whether Gary Gattie had asked “if others” or “if the others” had been arrested. Constable Martell admitted that he was not sure exactly how Mr. Gattie had phrased the question.
Defence counsel took issue with Constable Martell failing to disclose the details of this conversation prior to trial. Constable Martell testified that he had noted the other's remark in his notebook and he was not trying to capture the conversation verbatim as Mr. Gattie had invoked his right to speak to counsel.
In the circumstances, I am not satisfied that this a disclosure issue. Constable Martell noted the comment in his notebook, and I do not think the specific phrasing is relevant whether it was "if others" or "if the others" was used. The implication is that, once he was arrested, Gary Gattie was asked about other people being arrested.
The Crown argues that this comment, however it was phrased, is indicative of Mr. Gattie's knowledge of the drug trafficking operation. While Mr. Gattie may have asked about others being arrested because he had knowledge of the drug trafficking operation, I do not think that is the only inference that can be drawn from his question.
It is apparent from the search of apartment 307 that someone else, maybe more than one person, was occupying the residence along with Mr. Gattie. The locked upstairs bedroom had two suitcases and had items like driver's licences and boarding passes with the names of multiple people.
Liban Mohammed was seen coming and going from the Executive Suites building during the surveillance. It is plausible that when Mr. Gattie was arrested, he was asking about who else was arrested because there was more than one person occupying apartment 307. It does not necessarily follow that he had knowledge of what was in the safe in the locked bedroom. In my view, the comment is equivocal.
Mr. Gattie's fingerprint was found on the outside of the empty safe found in the upstairs bedroom. The placement of the fingerprint was consistent with someone lifting or carrying the safe. While this shows that Mr. Gattie may have carried the safe into the bedroom, there is no evidence about when that might have occurred. There was also no evidence that he touched the safe while it was in the bedroom.
His fingerprint was placed on the safe at an unknown time and it is not known where the safe was when that happened. Also, his fingerprint was found on the outside of a safe that did not have anything in it. There is no evidence that the cocaine or cash were ever in that safe. Even if Mr. Gattie assisted someone in moving the safe into the bedroom, it does not mean that he was aware of the contents of that safe or any other safe.
It is clear that Mr. Gattie lived in apartment 307. There was mail addressed to him at that address, his passport was in the apartment and there were plaques on the wall with his name on them, and when he was arrested, he had a set of keys with the number 307 on them. During the simulated traffic stop on September 5th, 2017, Mr. Gattie came to the window of apartment 307 and was observed by the police officers. He was also observed during the surveillance when he came out to pay for the cab. He is also clearly visible in the photographs taken by the officer at the time of the simulated traffic stop.
I am also satisfied that Mr. Gattie occupied the downstairs bedroom in the apartment. During the search of the apartment, it was apparent that the downstairs bedroom was being occupied. In the downstairs bedroom, Mr. Gattie's passport was found in a box addressed to Mr. Gattie at the apartment's address and the bedroom had items in it which suggested it was being occupied.
Where a person occupies an apartment, an inference may be drawn that the person was aware of the presence of and had a measure of control over drugs found within those premises. Whether that inference can be drawn or the strength of that inference will depend on the circumstances of each case.
The surveillance in this case showed Gary Gattie entering and leaving Executive Suites and Liban Mohammed also entering and leaving Executive Suites. However, there are no suspicious in's and out's, to use the terminology of Sergeant Ruel. So it is not apparent that the activity at Executive Suites was such that it can be inferred that Mr. Gattie would have been aware that there was a drug trafficking operation associated with apartment 307.
Within the apartment downstairs, the Crown has referred to indicia of drug use. There are scales in the bathroom found on top of the medicine cabinet. The scales do not appear to be the type of scales that you would use to weigh food, and their location would be an odd choice to store a food scale, and they are located along with the cigarette pack which has a pipe inside. There is no evidence about whether the scales worked.
There are also the baggies, pipe and white residue located in the living room area. The photographs depict a cigarette pack, a piece of pipe, remnants of baggies and white residue on the living room coffee table.
It is not clear where these items were located as they were not present on the coffee table when the pre-search video was taken. The white residue was not tested, so we do not know that it is cocaine. However, the white residue, being located by empty baggies and a piece of pipe, it is a reasonable inference that the residue is cocaine.
In any event, these items could have been Mr. Gattie's or they could have been left in the apartment by another person. It could have been Mr. Mohammed as he was present in the apartment when the police arrived, or another person who was occupying the upstairs bedroom.
Constable Martell testified that he saw an unidentified black male come to the window during the simulated traffic stop. It could have been this person. Because we do not know where these items were located, it cannot be established that Mr. Gattie would have been aware that these items were in his apartment or that drug activity was occurring in his apartment.
Before I move on to the next point, I want to address the issue of the unidentified black male that Constable Martell testified that he saw at the window of apartment 307 during the simulated traffic stop. A lot was made of this during the trial. Constable Martell is the only officer who observed this person during the traffic stop, and counsel for Mr. Gattie has asserted that Constable Martell has made this evidence up.
It is a serious allegation. This is based upon a review of the video and photographs taken during the surveillance. Defence counsel screenshot a portion of the video and enlarged it and lightened it to demonstrate that the person in the window appeared to be Mr. Gattie and that only Mr. Gattie was visible in the window.
I have reviewed the surveillance video and the photographs and I am not prepared to conclude that Constable Martell fabricated this evidence. While clearly Mr. Gattie is seen in the window during the traffic stop, it is not impossible that someone else was at the window. It was a bright, sunny day, and the officers were looking into a darker window and the video and the photographs are not clear.
The police have never conclusively identified who this person might have been and have not alleged that it was, for example, Liban Mohammed. In any event, I do not see how the presence of an unidentified black male in apartment 307 has any real significance to the guilt or innocence of Gary Gattie. It may be that having other unidentified individuals observed in Mr. Gattie's apartment is actually to Mr. Gattie's benefit, as that widens the pool of individuals who might have been responsible for the contents of the upstairs bedroom.
Sergeant Ruel testified that his opinion was that apartment 307 was being used as a stash house for a drug trafficking operation. First he stated that Gary Gattie would have been aware of the operation because of the suspicious comings and goings to the apartment. He later said that the drug trafficker would need to have a location where they can limit access to and where they can trust other individuals will not rob them or report them to the police.
The problem with this is there are no suspicious comings and goings to apartment 307, and it is inconsistent that there would be suspicious comings and goings, yet it would also be a location where the drug trafficker would want to limit access to, to keep their stash hidden or secure from others. If apartment 307 was being used as a stash house, I would expect that the drug trafficker would need to trust Gary Gattie for the reasons stated by Sergeant Ruel. The individual would need to be trusted not to steal the drugs and cash and trusted not to report the activity to the police or to expose the drugs and cash to being stolen by others. It would be a great risk to use the location as a stash house without being sure of the cooperation of other occupants of the residence.
While the bedroom door was locked and no key was found by the police to the bedroom, I do not place much weight on that. It is not apparent that a key was needed to open the door. Some interior doors of residences can lock without the necessity of having a key for the door. For example, a bathroom door can sometimes lock by pushing the doorknob in. There is no key to the door, but access can be obtained by using a bobby pin or other similar device.
I have reviewed the videotape of the pre and post search videos and the doorknob is visible in one of the videos but it cannot be determined whether a key was required to open the door. Constable Bigger testified that he gained access to the bedroom by kicking in the door and he did so in one kick. I expect that if Mr. Gattie or Mr. Mohammed wanted to access the upstairs bedroom, they could have done so with or without a key without much difficulty.
The locked bedroom door is an indicia that the drug trafficker was taking precautions within the apartment to limit access to the drugs and cash. The cocaine and cash were stored in a safe in a locked bedroom that appeared to be used by individuals other than Mr. Gattie. Within the bedroom, it was apparent that someone had opened a package in the bedroom using a knife and leaving empty Ziploc bags and coffee grounds all over the carpet.
Sergeant Ruel testified that the packaging was consistent with cocaine being packaged for transport. If the person is not concerned about Mr. Gattie or others knowing about the contents of the package, then why wouldn't they have opened the package in the kitchen or the bathroom, rather than leaving a mess on the floor of the bedroom.
When I consider all of this evidence, I strongly suspect that Mr. Gattie would have had knowledge of what was going on in his apartment and the cocaine and money being stored in a safe in the upstairs bedroom, but I do not think that this is an inescapable conclusion. Overall, I think it is very likely that Mr. Gattie was involved in this drug trafficking operation, but the evidence does not satisfy me beyond a reasonable doubt.
Turning to Liban Mohammed, for Mr. Mohammed, the Crown has also argued that there are three categories of evidence which implicate him and lead to the conclusion that he was in possession of the cocaine and money located in the upstairs bedroom. These categories are:
1) the police surveillance;
2) evidence of consciousness of guilt, which is more properly termed "post-offence conduct"; and
3) the bank receipts and other documents located in the bedroom.
The police began surveillance on Executive Suites on August 31st, 2017. They conducted surveillance on August 31st, September 1st, 2nd, 5th and 8th. Liban Mohammed was seen exiting Executive Suites on September 1st, 2017. On September 8th, 2017, Liban Mohammed entered Executive Suites and then departed a few minutes later wearing a different shirt. He then left in a cab before returning to Executive Suites again with what appeared to be takeout containers and plastic bags.
While the surveillance establishes a connection between Liban Mohammed and the Executive Suites building, the police are not able to observe what apartment Mr. Mohammed is entering or exiting. When the police enter apartment 307 to executive the search warrant, Mr. Mohammed is in the apartment alone. Mr. Mohammed does not have a key to the apartment, but clearly he is able to access the apartment on his own. He returns to the apartment to change clothes before leaving and returning again. When the police enter that apartment, it is apparent that he had been eating his lunch in the apartment. And as I will get to, the documents located in the apartment also establish a connection between Liban Mohammed and apartment 307.
Turning to the post-offence conduct, when arrested, Liban Mohammed identified himself as Hakim Ahmed to the police. He was later determined to be Liban Mohammed. Mr. Mohammed providing a false name to the police is not necessarily indicative of guilt because he was also on parole, and one of the conditions of his parole was that he was to reside in Calgary and he did not have permission from his parole officer to be in Yellowknife.
While this behaviour is suspicious, his actions in providing a false name and violating his parole do not necessarily mean that he was involved in drug trafficking. There is a reasonable alternative explanation. Mr. Mohammed's actions could also be indicative of not wanting the police to find out he was violating his parole and Mr. Mohammed could have been in Yellowknife or any other community without permission of his parole officer for another reason other than drug trafficking. In the circumstances, I do not give any weight to Mr. Mohammed providing a false name or that he was violating his parole.
The two bank deposit receipts from CIBC establish a connection between Liban Mohammed and the upstairs bedroom. One bank receipt is located in his right front pocket on arrest, and the other bank receipt is found in the upstairs bedroom.
Constable Bigger testified that the receipt was found in the purple suitcase. Corporal Melville, when testifying, called it a blue suitcase. The photos depict a sort of blueish/purple colour to the suitcase. I am satisfied that they are referring to the same suitcase as the evidence was that there were two suitcases in the bedroom; a black Eddie Bauer suitcase and the blue or purple suitcase.
The bank records obtained through the production order establish that it was Liban Mohammed who deposited the money into the bank account on August 31st, 2017, and September 8th, 2017. As I stated, in the photographs, Liban Mohammed is clearly identifiable. It looks like Liban Mohammed entering and leaving the bank on each occasion and at the bank teller. He is wearing the same clothing, a hoodie and trackpants, that he is observed to be wearing in the surveillance photographs taken on September 8th, 2017.
The August 31st CIBC receipt was located in the blue suitcase which, while no one inventoried its complete contents, the officers testified that it contained clothing. Liban Mohammed obviously changed his clothing on September 8th, 2017 when he came back to Executive Suites before leaving in a different hoodie. The implication is that he returned to apartment 307 and changed his clothing.
Since the CIBC receipt was in the blue suitcase, one of the possibilities is that Liban Mohammed entered the upstairs bedroom and changed his clothing, accessing the blue suitcase. It is possible that he had clothing in other areas of the apartment, although the evidence of the officers was that it appeared that Gary Gattie occupied the downstairs bedroom.
Another connection is that the CIBC receipts, the one located on Liban Mohammed and the one located in the blue luggage, were for deposits to the account of Faduma Ali. The iPhone that was located on the ottoman by the food that Liban Mohammed was apparently eating when the police knocked on the door, had many text messages between Faduma and Liban who were in a relationship and later married.
There are text messages between Faduma and Liban that discuss bank deposits which coincide with deposits being made according to the CIBC banking records which were obtained for Faduma Ali's account. The logical inference is that Liban Mohammed was sending money to his spouse, Faduma Ali, by depositing it in her CIBC bank account. Depositing money in a spouse's bank account is not indicative of criminal activity, however, the relevance is that it further buttresses the connection between Liban Mohammed and the CIBC bank receipt located in the blue luggage in the locked upstairs bedroom.
There were other documents that were located in the upstairs bedroom. Kamal Mohamood's driver's licence was located there, and Kamal Mohamood's name appears on Liban Mohammed's cellphone several times.
The name of Bilal Mohammed Abdullahi appears on a card dated May 19th, 2017, which was found in the upstairs bedroom. Liban Mohammed texted Faduma on more than one occasion asking her to email money to Billy, and provided the email address bilalmo613@gmail.com. Ms. Ali's bank records show that she then sent money to Bilal Abdullahi.
The name of Omar Farah was located on an airline ticket in the upstairs bedroom. Omar Farah's name also appears on Liban Mohammed's phone. A flight itinerary in the name of Zakariya Farah was found in the upstairs bedroom. Text exchanges between Liban Mohammed and Faduma show him asking her to buy him an airline ticket using the name Zakariya Farah.
Many of these documents are dated in the weeks or even months prior to September 2017. It is not clear that any of these individuals were ever in the upstairs bedroom, however, the relevance of these documents is they establish a connection between Liban Mohammed and the bedroom. The idea that coincidentally there would be multiple connections between the names on documents located in the upstairs bedroom and Liban Mohammed's phone strains credulity.
The evidence suggests that Liban Mohammed had access to the upstairs bedroom over a period of time. The implication is that whoever had access to the upstairs bedroom would also have had knowledge of the contents of the safe and control over the safe. The empty packaging and coffee grounds on the floor in the bedroom are consistent with a package containing a significant amount of cocaine according to Sergeant Ruel's evidence.
The locked bedroom door suggests that the occupant of the room wanted to keep the items in the bedroom secure, and placing the cocaine and cash in the safe also suggests that what needed to be secured in the room was the cocaine and the cash. The LG flip-phone located in the jacket hanging in the bedroom had text messages which were consistent with trafficking in drugs. The locked bedroom and a failure to find the key is a factor to consider, but I do not view it as determinative. As I mentioned, it is not clear that the door required a key and Mr. Mohammed had time when the police were trying to enter the apartment to lock the door and hide or dispose of the key to the bedroom. As I mentioned, it took a couple of minutes for the police to gain access to the apartment.
In my view, the surveillance shows a connection between Liban Mohammed and Executive Suites. Mr. Mohammed had returned to the apartment and changed his clothes. Liban Mohammed was found in apartment 307 alone when the police entered and was eating lunch. The documents that are located in the upstairs bedroom and on Liban Mohammed when he is arrested demonstrate a connection. The banking records and the contents of Liban Mohammed's cellphone further strengthen the conclusion that Liban Mohammed was one of the people occupying the upstairs bedroom.
Based on all of the evidence, I am satisfied beyond a reasonable doubt that Liban Mohammed was occupying the upstairs bedroom and had knowledge and control over the cocaine and cash located in the safe. Therefore, for the reasons stated, I find the accused, Gary James Gattie not guilty of both counts, and I find the accused, Liban Mohamood Mohammed guilty of both counts. So there will be an acquittal entered for Mr. Gattie and convictions will be entered for Mr. Mohammed.
(PROCEEDINGS ADJOURNED TO JUNE 8, 2020, YELLOWKNIFE, NWT)
Neesons, the undersigned, hereby certify that the foregoing pages are a complete and accurate transcript of the proceedings transcribed from the audio recording to the best of our skill and ability. Judicial amendments have been applied to this transcript.
Dated at the City of Toronto, in the Province of Ontario, this 25th day of Mach, 2020.
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Kim Neeson
Principal