This week’s top three summaries: R v Williams, 2019 ONCA 846, R v Dorion, 2019 SKQB 266, and R v Main, 2019 BCPC 241.
R v Williams (ONCA)
[October 28/19] Murder: Mens Rea - Jury Questions Cancel Prior Instructions - 2019 ONCA 846 [Reasons by R.G. Juriansz J.A., with S.E. Pepall J.A., L.B. Roberts J.A. concurring]
AUTHOR’S NOTE: A terrible error in Crown submissions suggesting that the mens rea for murder was based on what the Accused "ought to have known" was ultimately not corrected explicitly by the Trial Judge's jury instruction. Although, the trial judge gave correct instructions on the requirement of subjective intent for murder, the instruction was not directed at what the Crown said. Ultimately, jury questions on the topic of "ought to have known" brought the issue to the fore again and their questions were not answered with direction back to the necessity of a subjective intent to kill. The end result was a new trial. The case is a particularly good example of the power of jury questions. Essentially, they cancel all previous instructions on their topic. Error in answering them cannot be saved by previous correct instructions on the same topic.
Pertinent Facts
[1] Before it convicted the appellant of second degree murder, the jury asked a question that made apparent it had been misled by Crown counsel’s incorrect description of the mens rea required for murder. The trial judge’s attempt to clarify the law was inadequate. Therefore, a new trial is necessary.
[3] On June 21, 2012, the appellant and his friend, Denzel Neron, went to two parties where they drank heavily and smoked marijuana. They were intoxicated. They entered an unoccupied building owned by the appellant’s family, in which they found the appellant’s uncle.
[4] A fight broke out between the three men. The uncle suffered serious injuries and died of blunt force trauma to the chest. The appellant and Neron gave differing accounts of how the fight unfolded.
[6] According to Neron, he and the appellant found the appellant’s uncle asleep on the floor of the unoccupied building. The appellant woke his uncle, demanded he get up, and began pushing him out of the building. The three men fought until the appellant and Neron knocked the appellant’s uncle down. As the appellant and Neron were walking away, the uncle sat up and began cursing at them, calling them “assholes”. The appellant jogged back, jumped, and stomped on the uncle’s leg, “jump stomped” on the uncle’s chest three times and then on his collarbone. The uncle went silent and they left. Neron and the appellant rode home on a bicycle with Neron on the handlebars.
[7] Neron’s trial testimony substantially contradicted a police statement he gave on June 22, 2012, in which he denied any knowledge of the killing. At trial, Neron admitted to lying to the police.
[8] DNA consistent with that of Neron was on a necklace found near the uncle’s body. Gray Vans brand shoes seized from the appellant’s residence had a blood stain on the shoelace with a DNA profile consistent with that of the uncle. An expert qualified in footprint comparisons testified that the shoes’ soles could not be excluded as having created impressions on and around the uncle’s body, including a footprint on his chest that may be linked to the fatal injury. The appellant and Neron disagreed as to who wore those shoes at the time of the killing.
[10] The next day, the appellant went to see a friend who had been out with him the night before. The appellant was crying because his uncle had died. When the friend revealed that she had heard that the appellant killed his uncle, the appellant shook his head and asked her to “do me a solid”. He told her he was naïve and drunk, and the only evidence the police had on him was a shoe. He recounted that he did not remember walking home the night before. An acquaintance overheard this conversation and testified that the appellant broke down and said, “Yeah, I fucked up.”
[14] The appellant’s main submission is that the trial judge, by failing to correct a misstatement of the law by the Crown and by failing to provide clear, fulsome answers to the jury’s questions, permitted the jury to find him guilty of murder without being satisfied he had the subjective foresight that his uncle might die as a result of his actions.
Crown Submissions & Law of Mens Rea for Murder
[15] In her closing address to the jury, the Crown incorrectly described the state of mind necessary to establish murder. She said:
And when you consider the issue of the intent that Mr. Williams would have had to have had, or the mental state that he would have had to have had to form the intent to kill, or that he ought to have known his actions would cause death, or was reckless to whether his actions would’ve caused death … I think there is significant evidence to prove that in fact Naanan Williams did have the necessary state of mind to know what he was doing, to kill his uncle, and to know that his actions in stomping his uncle would kill him, or ought to believe that it would likely cause death, or he just didn’t, you know, put his mind to it. He was reckless to that, okay. [Emphasis added.]
[16] After reviewing additional evidence, she repeated:
[A]ll that, that shows that, that Naanan Williams had the state of mind that night, had the intent to know that when he stomped or to – that he ought to have known that when he stomped on Clifford Riley that action was likely to cause his death. [Emphasis added.]
[17] These were serious misstatements of the law with respect to the mens rea for murder. The phrase “that he knows or ought to know is likely to cause death” appeared in s. 229(c) of the Criminal Code. The Supreme Court of Canada declared that language in s. 229(c) unconstitutional in R. v. Martineau, 1990 CanLII 80 (SCC), [1990] 2 S.C.R. 633 and it has recently been repealed: R.S., 2019, c. 25, s. 77. The court made clear in Martineau that a murder conviction cannot rest on any mens rea less than subjective foresight of death: at pp. 645-46.
[19] In R. v. Cooper, 1993 CanLII 147 (SCC), [1993] 1 S.C.R. 146, at pp. 155-56, the court clarified that the mens rea for murder under s. 229(a)(ii) of the Criminal Code requires the Crown to prove beyond a reasonable doubt the accused’s (a) subjective intent to cause bodily harm and (b) subjective knowledge that the bodily harm is of such a nature that it is likely to result in death.
Instructions by the Trial Judge and Subsequent Questions
[21] At the beginning of the trial, the trial judge told the jury it should take the law from him....
[22] In his jury charge, the trial judge gave the jury clear and correct instructions on the mental state required for murder....
[24] However, at this stage, no one, including the trial judge, said anything about the Crown’s misstatements to the jury that it could convict the appellant if “he ought to have known his actions would cause death”.
[25] In the course of its deliberations, the jury asked two questions that revealed it was left in confusion by the Crown’s closing and the jury instructions.
[26] Three or four hours into its deliberations, the jury posed the question “state of mind – pre, present and post testimony – which can be used as evidence.” The trial judge correctly answered the question by instructing the jury that the state of mind required was whether the appellant “meant to cause Clifford Riley bodily harm that Naanan Williams knew was likely to kill Clifford Riley and was reckless whether Clifford Riley died or not, or he meant to kill Clifford Riley.”
[27]... The jury sought clarification on the legal meaning of “ought to know” and “reckless to the effects of your efforts”. The phrase “ought to know” did not appear in any part of the jury charge. Neither counsel nor the trial judge questioned the relevance of these terms to a charge of second degree murder. After consulting counsel, the trial judge answered the “ought to know” portion of the question:
There is not any, as far as I am aware, definition from any legal context or precedent. … However, “ought to know” at least piecing that together with Black’s Law Dictionary … is a general direction only, but will be taken as mandatory if the context requires. Little bit – be under a moral obligation, have as a duty, and advised or expected. That is the “ought” part. The “know” is to possess information, instruction, or wisdom, to perceive, apprehend, understand.
[28] Rather than disabusing the jury of the incorrect standard stated by the Crown, this instruction reinforced it. The instruction, in effect, confirmed the validity of the Crown’s statement and provided the jury with guidance as to how to apply the incorrect state of mind in its deliberations.
[30]... he went on to add:
Then using again the Oxford Dictionary, more expanded version, “reckless”: of a person heedless of consequences of one’s actions or of danger, incautious, rash, inconsiderate of oneself or another, of an action, behaviour characterized as heedlessness or rashness, incautious, careless, wilfully careless. That is it. There is no other. There is nothing else that we have with respect to those expressions.
[31] This erroneous instruction was all the more serious because it immediately followed the guidance the trial judge had provided about the meaning of “ought to know.” The instruction would have led the jury to understand that it could convict the appellant if he “ought to have known” his uncle would die, or if his behaviour met a dictionary definition of reckless that included mere carelessness.
[32] After receiving these instructions, the jury retired at 9:15 a.m. Shortly after, the Crown advised the court that she had misstated the law. She alerted the court that the jury should not be basing its decision on whether they believed that the appellant “ought to have known” his actions would have resulted in his uncle’s death.
[33]... The trial judge said:
Ladies and gentlemen, you probably wonder why unceremoniously we have brought you back into the courtroom when you have not asked a question. It goes back to your previous question, “ought to know”. There is no such definition in the section dealing with second-degree murder. “Ought to know” is not part of your consideration or concern. Any reference to the expression “ought to know” should be struck, deleted from your understanding in terms of your deliberations. I say that to you because that expression was used unfortunately by Madam Crown Attorney, inadvertently she used the expression “ought to know”. That is not part of the section, all right? So I am asking you to delineate, delete, whatever expression you want to do, erase my response to the query about “ought to know”. Your focus should be on reckless, which is clearly there, and not on that expression. I cannot be more definitive than that. … And I am asking you again to disregard that expression. It is not part of your deliberations. [Emphasis added.]
[34] The jury retired at 9:52 a.m. and returned with its verdict at 10:27 a.m.
[35] The last instruction was intended to salvage the situation by correcting the answer given to the jury’s question about “ought to know”. Unfortunately, it did not do so fully and correctly. While the trial judge told the jury, clearly and emphatically, that “ought to know” was not the correct standard for the mens rea for murder, he was wrong to tell the jury its focus should be on “recklessness.” There are two problems with this instruction.
[36] The first problem is that, half an hour earlier, the trial judge had left the jury with a definition of “reckless” that included carelessness. It is likely the broad dictionary definition he gave the jurors would still have been fresh in their minds. Considered in the context of that definition, telling the jury its focus should be on “recklessness” was a misdirection.
Jury Questions
[39] Questions by the jury give the clearest possible indication of the particular problem the jury is confronting: R. v. S. (W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, at p. 528. When the jury submits a question, it must be assumed that the jurors have forgotten the original instructions and will base their subsequent deliberations on the answer to the question: S. (W.D.), at p. 531. The correctness of the original charge cannot excuse an error in the answer to the jury’s question: S. (W.D.), at p. 530-31.
[41] The appellant’s murder conviction cannot be regarded as safe. I decline the Crown’s invitation to apply the curative proviso under s. 686(1)(b)(iii) of the Criminal Code. In this case manslaughter, rather than second degree murder, was a possible verdict on the Crown’s version of the events.
R v Dorion (SKQB)
[October 10/19] Juries - Peremptory Challenges are a Substantive Right - 2019 SKQB 266 [Danyliuk J.]
AUTHOR’S NOTE: As the fallout from the knee-jerk reaction to the Stanley trial verdict makes its way through the courts, the debate whether the lack of peremptory challenges applies to cases already in the system continues. Unfortunately, a lack of challenges, for the most part disadvantages visible minority clients and their lawyers as it is even more difficult to get someone on their jury that might share their ethnic, cultural, and socio-economic perspective. Here, Justice Danyliuk provides a well-reasoned basis to stall the decline in representativeness in juries until defence lawyers can figure out a better way to forward. The author is betting that challenge for cause questioning will be eventually be expanded by judges who are as disappointed with the jury pools as the rest of the defence bar.
Pertinent Facts
[1] New law on the selection of juries. A significant shift in the way in which juries are selected in Canada. No direct transitional provisions in Bill C‑75 (An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, SC 2009, c 25). Uncertainty as to whether these provisions are procedural or substantive amendments, hence retrospective or prospective in operation.
[2] It is in this context that the present matter comes before me for determination. For the reasons set out below, I have determined that the amendments are essentially substantive in nature; thus, do not operate retrospectively. The Crown and accused will select the jury in this matter using peremptory challenges and the procedures set out in the Criminal Code, RSC 1985, c C‑46, which were in force prior to September 19, 2019.
Substantive vs Procedural
[15] These legislative provisions have been judicially interpreted, notably in R v Dineley, 2012 SCC 58 (CanLII), [2012] 3 SCR 272. Justice Deschamps, writing for the majority, noted as follows at paragraphs 10 and 11:
[10] There are a number of rules of interpretation that can be helpful in identifying the situations to which new legislation applies. Because of the need for certainty as to the legal consequences that attach to past facts and conduct, courts have long recognized that the cases in which legislation has retrospective effect must be exceptional. More specifically, where legislative provisions affect either vested or substantive rights, retrospectivity has been found to be undesirable. New legislation that affects substantive rights will be presumed to have only prospective effect unless it is possible to discern a clear legislative intent that it is to apply retrospectively (Angus v. Sun Alliance Insurance Co.,1988 CanLII 5 (SCC), [1988] 2 S.C.R. 256, at pp. 266‑67; Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42 (CanLII), [2004] 2 S.C.R. 248, at para. 57; Wildman v. The Queen, 1984 CanLII 82 (SCC), [1984] 2 S.C.R. 311, at pp. 331‑32). However, new procedural legislation designed to govern only the manner in which rights are asserted or enforced does not affect the substance of those rights. Such legislation is presumed to apply immediately to both pending and future cases(Application under s. 83.28 of the Criminal Code (Re), at paras. 57 and\ 62; Wildman, at p. 331).
[11] Not all provisions dealing with procedure will have retrospective effect. Procedural provisions may, in their application, affect substantive rights. If they do, they are not purely procedural and do not apply immediately (P.‑A. Côté, in collaboration with S. Beaulac and M. Devinat, The Interpretation of Legislation in Canada (4th ed. 2011), at p. 191). Thus, the key task in determining the temporal application of the Amendments at issue in the instant case lies not in labelling the provisions “procedural” or “substantive”, but in discerning whether they affect substantive rights. [Emphasis added].
[22] In Dineley, a point of apparent agreement between the majority and minority was that judicial determination of an amendment as procedural or substantive is not dependent solely upon its form. The true function and effect of the new enactment must be examined.
[23] In my view Dineley must also be read in light of an overarching consideration, one that is referenced in Tran. In that case, a permanent resident of Canada who had not yet obtained citizenship was convicted of an offence. The maximum sentence for that offence changed (i.e. increased) between the date of commission and the date of sentencing for that offence. The issue was whether the offender could remain in Canada. A ministerial delegate referred the matter for a hearing. On judicial review a judge quashed that decision on the basis that the change in the law did not bring the matter within the scope of the law directing effective deportation of the offender. That decision was reversed on appeal. On appeal to the Supreme Court the original judge’s decision on judicial review was affirmed.
Peremptory Challenge and Stand Aside Changes
[25] I now turn to the application of these principles to the case at bar. In the four cited cases which are specific to this issue, two have found the jury selection amendments to be procedural and retrospective in operation, while the other two have found the amendments to be substantive and prospective.
[26] I find myself drawn to the reasoning of Justice Ferguson in Raymond. First, he acknowledges that this decision is “a close call” (paragraph 110). I agree.
[32] Is it appropriate that judges, acting singly under the auspices of these new Criminal Code provisions, alter the manner in which juries are composed?
[33] That question must be considered in its broad legal and historical context. In R v Kokopenace, 2015 SCC 28 (CanLII), [2015] 2 SCR 398, Justice Moldaver’s judgment begins with this passionate opening:
[1] The right to be tried by a jury of one’s peers is one of the cornerstones of our criminal justice system. It is enshrined in two provisions of the Canadian Charter of Rights and Freedoms – the s. 11(d) right to a fair trial by an impartial tribunal and the s. 11(f) right to a trial by jury. Yet despite the importance of this right, this is the first time the Court has been called upon to determine what efforts the state must make to ensure that a jury is “representative” of the community. In turn, this raises the related questions of how representativeness should be defined and what role it should play in the rights guaranteed by ss. 11(d) and 11(f) of the Charter. In answering these questions, it must be remembered that the right to a representative jury is an entitlement held by the accused that promotes the fairness of his or her trial, in appearance and in reality. It is not a mechanism for repairing the damaged relationship between particular societal groups and our criminal justice system more generally – and it should not be tasked with that responsibility.
[2] In my view, representativeness focuses on the process used to compile the jury roll, not its ultimate composition. Consequently, the state satisfies an accused’s right to a representative jury by providing a fair opportunity for a broad cross‑section of society to participate in the jury process. A fair opportunity will be provided when the state makes reasonable efforts to: (1) compile the jury roll using random selection from lists that draw from a broad cross‑section of society, and (2) deliver jury notices to those who have been randomly selected. When this process is followed, the jury roll will be representative and the accused’s Charter right to a representative jury will be respected. [Emphasis added].
[35] Rather than maintaining focus on the composition of the jury roll, these new provisions provide for judicial intervention into the composition of individual juries and individual jurors. While this may meet some people’s notion of “representativeness” when it comes to juries, it does not meet the current legal definition of that term as utilized in the context of jury trials. As a result, what might be seen facially as a procedural change is, in actuality, substantive in nature.
[38] This change may be procedural on its face, but its effect could well be substantive – and highly transformative – in its implementation. A careful consideration of this particular legislative change militates in favour of finding the amendments to be substantive in nature. And, of course, for present purposes I am dealing with the amendments as a package.
[49] It is difficult, if not impossible, to see these combined changes as merely a procedural speed bump on the jury trial freeway. The overall scheme of the existing jury trial provisions has been held to constitute a comprehensively fair scheme which not only delivers justice but is seen to deliver justice. Cumulatively, the provisions amount to a carefully defined and balanced jury selection process to which additional judicial powers ought not to be added (R v Barrow, 1987 CanLII 11 (SCC), [1987] 2 SCR 694). This balance has been disturbed through the alteration of key components of the process, while leaving other facets in place.
[50] While it has often been said that accused persons in Canada are not entitled to a perfect trial, they are entitled to a fair trial. Previously, fairness in this aspect of criminal proceedings was achieved in large measure through a balanced and nuanced approach as to whom had input into various aspects of jury selection. These amendments see significant reductions to the ability of an accused person (who already has the substantial power of the state arrayed against him or her) to have input into who tries the case.
[51] The change is real. Prior to the amendments, an accused person could effectively decide whether a limited number of persons were suitable jurors, through the use of peremptory challenges. Now, the best an accused person has is the ability to argue with the judge about it.
[52] The accused (and the Crown) formerly was able to decide whether some jurors were suitable to sit on a particular jury. That ability has been removed entirely by the new amendments, the abolition of peremptory challenges.
[53] Formerly, an accused could decide whether two static triers or rotating triers chosen from the array would decide whether prospective jurors survived a challenge for cause. Now, all of that power is in the hands of the trial judge. This, on its own, is a significant change; with the elimination of peremptory challenges, it is fair to posit that challenges for cause (both to the entire juror pool and on an individual basis) will be more common. This gives the shift in decision‑making power even more impact.
[54] Finally, the shaping of juries into “properly representative” decision‑making bodies through the expanded use of stand asides under the new s. 633 fundamentally alters the landscape of jury selection. A judge can shop for the “right” kind of juror in order to maintain “public confidence in the administration of justice or any other reasonable cause”.
[55] I find this troublesome. The strength of the jury system – indeed, the entire Canadian system of criminal justice – has been its impartiality, its indifference to trends, uninformed opinions, and biased social or political viewpoints. Numerous times in a jury trial, the judge tells the jurors to set aside any fear or bias or sympathy or prejudice, and are told to decide this case only on what they see and hear in this courtroom. Jurors are selected for impartiality. In turn, jurors decide the case based on the evidence presented and nothing else.
[58] The potential of these unlimited stand asides to be utilized for the intrusion of political correctness, for the social justice flavour of the week, into jury trials is daunting. Over time, we may see the erosion of this pulchritudinous veneer. But to the present point, it is far more than a change in process. It amounts to a change which is substantive in nature, especially when viewed cumulatively with the other amendments.
[60] But I cannot help but see the amendments as more than procedural in nature. They have substantive effects. I return to where I began this analysis, with the citation from paragraph 11 of Dineley:
[11] Not all provisions dealing with procedure will have retrospective effect. Procedural provisions may, in their application, affect substantive rights. If they do, they are not purely procedural and do not apply immediately. …
Conclusion
[61] I therefore conclude that the amendments are substantive in nature and therefore do not operate retrospectively.
[62] For the jury trial in this matter, the Criminal Code provisions respecting jury selection as they existed prior to September 19, 2019, are applicable and shall be utilized.
R v Main (BCPC)
[October 21/19] – Purpose of Trafficking: Fentanyl & Methamphetamine – 2019 BCPC 241 [Judge R.P. McQuillan]
AUTHOR’S NOTE: Herein, Judge McQuillan gives a good factual overview of factors relevant to determining if an amount of fentanyl was possessed for trafficking or personal consumption. The facts are useful for arguments made by analogy in other cases. Key in this case was a determination that a habitual user came into a larger amount of money through good fortune and then converted it into drugs.
Pertinent Facts
[3] The Crown led its evidence through three police officers. Two of those officers participated in the detention and arrest of Mr. Main. A third officer, was qualified as an expert in the areas of trafficking in controlled substances, including personal consumption rates, distribution, pricing and packaging of heroin, fentanyl, carfentanil, U-4700 and methamphetamine.
[4] Coquitlam RCMP officer Constable Brett Niezen was the officer who arrested Mr. Main. He testified that on January 3, 2018, he was tasked with responding to a report received from security personnel at the Hard Rock Casino in Coquitlam, B.C. The report alleged that a person named David Main had attempted to use a prisoner’s identification card to collect gambling winnings. Security staff had contacted the RCMP about the individual and indicated that they were aware of him having an outstanding warrant for his arrest. It was not entirely clear how the security staff would be aware of an outstanding warrant, although Constable Niezen speculated that it was through the casino’s police liaison.
[6] When Constable Niezen arrived at the Hard Rock Casino, he was met by another officer, Constable Nelson, who had arrived in another police car. They entered the casino together and were met by security staff who escorted them towards Mr. Main who was playing a slot machine. Constable Niezen also recognized Mr. Main from the photograph of him he had just seen on Prime. He then identified himself as a police officer and asked the individual if he was David Main. Mr. Main initially responded that his name was “Greg”. Constable Niezen challenged him on the name he gave and Mr. Main then admitted to his correct name. He was then advised that he was under arrest at approximately 5:20 PM and was advised of his Charter rights and rights to counsel.
[7] Constable Niezen handcuffed Mr. Main and walked him outside the casino to his police car. He then conducted a search of Mr. Main incidental to his arrest. The search led to the discovery of a collapsible baton in his right jacket pocket. His left breast pocket contained a number of bags and a pill bottle, which Constable Niezen believed to contain heroin. Inside his left pants pocket was found a stack of $100 bills and a “cash out voucher” from the Hard Rock Casino indicating a stored value of $4181.00. As a result of the discovery of these items, Mr. Main was then re-arrested and cautioned for possessing controlled substances for the purpose of trafficking.
[8] The drugs that were seized from Mr. Main were found in one pill bottle and two separate plastic bags. The pill bottle in turn held 16 small baggies containing what Constable Niezen believed to be heroin but which testing subsequently confirmed to be a combination of fentanyl, carfentanil and U-4700. The total weight of the 16 bags was 4.52 grams, including the baggies. (Parenthetically, I note that carfentanil and U-4700 are analogues of fentanyl, albeit of different potencies. For ease of reference I will refer to the combination of those drugs as fentanyl even though each is technically unique.)
[9] One of the two larger bags contained a bulk amount of methamphetamine which had a total weight of 11.46 grams. The other larger bag held six smaller baggies containing methamphetamine, which weighed a total of 9.95 grams, after being removed from the baggies. Thus the total amount of methamphetamine seized from Mr. Main was 21.41 grams.
[10] The amount of cash found on Mr. Main’s person was $11,338.10, which was comprised of 111 - $100 bills, 10 - $20 bills and an assortment of smaller bills and change.
[11] Constable Nelson took a secondary role in the arrest of Mr. Main. However, after the arrest and seizure of drugs from Mr. Main, he transported him to the detachment. He did not observe any signs of intoxication, impairment or symptoms of drug withdrawal from Mr. Nelson during the approximately 30 minutes he was dealing with him.
Police Drug Expert Evidence
[12] Sergeant Luke Rettie testified for the Crown after having been qualified as an expert. ... He was presented with a hypothetical situation which mirrored the circumstances of Mr. Main’s arrest, including the same quantities of drugs, packaged in the same manner, together with an absence of cell phones, scales, empty bags or indicia of drug use. In his opinion, such facts would lead to no other reasonable conclusion than that the drugs were possessed for the purpose of trafficking.
[13] Sergeant Rettie testified that the amount of fentanyl consumed by an average user in a day is one to two points. A point is 0.1 gram. A heavy fentanyl user could use upwards of 5 points in a day but anything more than 5 points in a day would be relatively rare. Consumption of ten points, or one gram, in a day would be extreme and Sergeant Rettie has not personally encountered such high usage levels, although he concedes that it could be possible.
[14] Fentanyl is typically trafficked at the street level in quantities of one point or 0.25 gram. Sergeant Rettie stated that a drug user could use that amount and then repeat the same dose a few hours later after the effects of the first dose diminished. It is generally consumed by smoking it which has an immediate effect. Another common method of consumption is by injection. That requires the user to mix the fentanyl with water in a spoon and then heat it up with a lighter before injecting it with a syringe. Both methods of consumption require the use of a lighter. Smoking requires tin foil or a pipe. Injection will typically require a spoon and often steel wool or cotton balls to act as a filter for injecting. The effects of a single dose lasts between an hour and several hours.
[15] Sergeant Rettie opined that possessing 4.95 grams of fentanyl would be unlikely to be for personal use. Possessing such a large amount for personal use could only be suggestive of an extremely heavy user. Such a heavy user would have great difficulty doing such things as holding down a job, driving a vehicle and maintaining relationships.
[18] Sergeant Rettie also said that it would be highly unusual for a fentanyl user to purchase that many pre-packaged single use bags of fentanyl for his own use, for a number of reasons. Firstly, drug users typically purchase only enough for one or perhaps two doses at a time. After they use that amount they then purchase another dose or two. Since fentanyl is so readily accessible, it is simple to make subsequent purchases when the drug user needs another fix. Secondly, it is risky for drug users to purchase larger amounts at one time because that carries with it the risk of being robbed of a larger amount of money or drugs, or of having a larger quantity of drugs seized by the police should they be apprehended. Sergeant Rettie estimated street value of the fentanyl possessed by Mr. Main as being $640, assuming each of the 16 bags was sold as 0.25 gram for $40 each. Thirdly, if a user was to purchase a larger or bulk amount, it would typically be sold without being individually packaged, as a discount can be found in purchasing larger amounts prior to it being weighed and packaged into single use bags.
[19] Turning to the methamphetamine, Sergeant Rettie testified that a heavy user may consume 0.5 to 1.0 gram in a day. It is typically sold to users at the point or two point quantity. It is most commonly consumed by smoking it in a pipe, although it may also be injected or snorted. He expects that heavy users would carry with them a pipe and a lighter or, if injecting, a spoon and a syringe.
[21] As with fentanyl, Sergeant Rettie testified that users of methamphetamine will typically purchase it in small amounts and then purchase more when ready to use again. The same rationale for the frequent purchasing patterns of fentanyl user applies equally to methamphetamine users.
[22] The street price of methamphetamine is $50 to $80 per gram. Accordingly the 21.4 grams found in Mr. Main’s possession had a street value of $1000 to $1600. If sold at the bulk amount in which it was found, it would be worth approximately $1000. In Sergeant Rettie’s opinion it would be very unlikely for a methamphetamine user to possess such a significant quantity for his own use as a user would generally not carry more than he intended to consume in a day.
[23] Mr. Main was not in possession of any drug paraphernalia associated with consuming either fentanyl or methamphetamine at the time of his arrest. Sergeant Rettie said that this absence suggests that he was not a heavy consumer of those drugs, and that he likely had not recently consumed and was not about to consume in the short period ahead. Nor did Mr. Main exhibit any signs upon his arrest of being intoxicated by drugs, or suffering from any obvious symptoms of withdrawal.
[24] Sergeant Rettie also testified that possessing such a large quantity of two very different kinds of drugs, being opiates and methamphetamine, supported his view that both drugs were possessed for the purpose of trafficking. His experience is that while drug users will sometimes cycle through different drugs, they will typically use one type of drug, or category of drug, at a time and that it is rare for users to use both a stimulant such as methamphetamine, and a depressant such as fentanyl at the same time. Using the two at the same time would result in each counteracting the effect of the other and drug users will more typically seek out more of the same drug for the same high. He said that only about 10% of the drug users that he has interacted with have been such polysubstance users. He is not aware of drug users taking opiates to slow down their heart rate from the methamphetamine.
[29] He also acknowledged that while drug users typically carry their consumption implements of choice, up to 30% of users will leave their paraphernalia at home.
[30] Constable Rettie said that the typical profile of a heavy drug user is someone who is homeless, has no job and little cash available to purchase larger quantities of drugs. However, he has also observed drug users who have a home, a car and a job but even such users still tend to purchase drugs in the same manner, by making daily purchases. He acknowledges however, that he has never encountered an individual drug user who has purchased larger quantities of drugs as a result of coming into a windfall as asserted by Mr. Main in this case.
Defence Evidence
[32] He stated that a month before his arrest, he had won a $7230.00 slot machine jackpot at the Elements Casino in Surrey, B.C. That occurred on December 4, 2017. However, because his wallet had been recently stolen he had no acceptable identification, which was required for him to be able to claim the winnings at that time. He was allowed 30 days to claim the winnings and endeavoured to obtain an official BC ID card so that he could do so. However, he then learned that he would first have to obtain his birth certificate before applying for a BCID card and that process would likely take too long to allow him to claim the winnings within 30 days. He said that he then spoke to an employee of Elements and was advised that a statutory declaration may be sufficient to claim his winnings.
[34] Upon receiving the winnings, Mr. Main and Ms. Groven left the casino in Ms. Groven’s vehicle. They then drove to a 7-11 in Surrey to fill up with gas. Mr. Main then went into the store to pay cash for the gas and buy cigarettes. When he came out of the store, he saw one of his regular drug dealers outside of the store, where he regularly positions himself to sell drugs. He asked the dealer for “side” (methamphetamine) and “down” (heroin), and told him he would purchase all that the dealer had. The dealer told him that he had an ounce of methamphetamine and a half ball (1.75 grams) of down. He believed that the “down” was heroin although he was also aware that heroin is often mixed with fentanyl. Mr. Main told the dealer that he would take all of it. The dealer initially gave him a price of $1000 and Mr. Main negotiated him down to an agreed upon price of $800.
[35] Mr. Main then received the drugs from the dealer, which he looked briefly at and then placed in his jacket pocket. He felt that he gotten a good deal as normally an ounce of methamphetamine costs $700 to $800 and a half ball of heroin costs about $200. This was a large quantity of drugs that Mr. Main intended to smoke over the next few days. He said that his practice was to not just buy what he needed for the day but rather for a longer period of use, if he had the money to do so. He expressed the view that purchasing multiple times creates a greater risk of being caught by the police than making fewer purchases of larger amounts. It also allows for the discount of larger quantities. This was however, the first time that he had received a windfall and spent such a large amount on drugs.
[37] Mr. Main testified that he is 51 years old and weighed 250 pounds at the time. He has been a user of hard drugs for the past 10 years and describes himself as being a heavy user for the three or four years prior to his arrest. At the time of his arrest, he says that he was using drugs daily, which consisted of mostly methamphetamine and heroin, and sometimes cocaine. His practice was to smoke methamphetamine with heroin, which he says makes the effects of heroin last longer. He said that he has been consuming drugs in that way for years. At the time of his arrest, he said that when he had money, he would typically smoke half a gram of heroin and two to three grams of methamphetamine in a day.
[39] ....The cash out voucher indicates a time of 17:19, which is consistent with the time of his arrest indicated by police officers.
[42] In cross-examination, Mr. Main testified that he last worked full time about three years ago. After that he received employment insurance benefits in the amount of $900 per month for a period, although that ended in January 2018, around the time of this offence. At that point he concedes that the costs of his drug habit exceeded his income. He said that he made up the difference by shoplifting, which was often Lego sets that he exchanged with dealers for drugs. He was also selling his personal belongings for extra cash. He admits that he was willing to be dishonest to feed his addiction.
Analysis
[56] In the case before me, I agree that the Crown’s case has shortcomings. I remain uncertain as to the amount of fentanyl that Mr. Main possessed. It could be as little as 1.32 grams or perhaps even less, depending on the weight of the empty baggies. In a heavy user, this amount could constitute less than a day and a half of use, according to the testimony of Sergeant Rettie.
[57] The quantity of methamphetamine is unquestionably a large amount. Even at Mr. Main’s professed high consumption rate of two grams per day, this amount is the equivalent of more than 10 days of use. However, given that Mr. Main had come into the windfall of significant gambling winnings, his explanation that he purchased all that his dealer had is not unreasonable.
[58] Although Mr. Main did not possess any drug using paraphernalia at the time of his arrest, he was not challenged on cross-examination as to his drug use or his assertions of being a heavy drug user. As well, Sergeant Rettie stated that some drug users leave their drug paraphernalia at home, which Mr. Main may well have done.
[59] While Sergeant Rettie expressed the view that poly drug users are relatively rare, I did not understand his evidence to preclude the possibility of someone using both opiates and methamphetamine at the same time as asserted by Mr. Main. The same profile of drug use was accepted by the Court in the Bhatticase. Again, Mr. Main was not challenged in cross-examination on his asserted pattern of using both drugs at the same time.
[60] There was also an absence of other indicia of drug trafficking in this case, beyond the large quantities and mode of packaging. There were no score sheets, cell phones or scales found on Mr. Main. He was not found in an area associated with drug trafficking, but rather was actively engaged using a slot machine, where he had been for some time. I must assess reasonable doubt by also including a consideration of any such absence of evidence: R. v. Villaroman 2016 SCC 33 (CanLII) at para 36.
[61] While I accept that typically drug users will purchase only the amount that they intend to use in the very short term, exceptions to that proposition exist. In the unusual circumstances of this case, it is difficult to exclude the real possibility that, at least on this occasion, Mr. Main is an exception to the typical pattern given his receipt of a significant amount of money earlier that day.
[62] .... Under the circumstances of a habituated drug user coming into possession of $7200, which is not contested by the Crown, I find it quite conceivable that he would buy a large quantity of drugs with the money, rather than buy a single use amount as the Crown suggests.
[66] Accordingly, on the totality of the evidence before me, I find you not guilty of the two counts of possession for the purpose of trafficking. I do however, find you guilty of one count of possession of fentanyl, carfentanil and U-4700, and one count of possession of methamphetamine, both of which are contrary to s. 4(1) of the CDSA.
