ONTARIO COURT OF JUSTICE DATE: 2021·03·19

BETWEEN:

Her Majesty the Queen

— and —

Gregory Walton

Judgment

V. Minkowski ........................................................................................... Counsel for the Crown J. Christie .......................................................................................... Counsel for the Defendant

Felix J.:

Table of Contents: R. v. Walton

I. Introduction 2 A. Introduction 2 B. Procedural Considerations 4 II. The Record 5 A. The Acquisition of the Defendant’s Urine and the Urinalysis Testing Procedures 5 B. Litigation Package 6 C. Evidence of Dynacare Employees 7 D. Expert Opinion Evidence 7 III. Analysis 9 A. The Legal Framework 9

1. The Criminal Burden of Proof 9
2. Circumstantial Evidence 10
3. Reasonable Doubt and Inferences of Innocence 10 B. Findings 11
4. The Admissibility of the Dynacare Records 12
5. Acquisition of the Defendant’s Urine 13
6. The Urinalysis Result 14
7. Does Coca Tea Contain Cocaine? 14
8. Is Exhibit 9 “Coca Tea”? 14
9. Does Exhibit 9 Contain Cocaine? 15
10. No Evidence of Consumption Proximate to the Urinalysis 17
11. The Origin of the Coca Tea Theory 18
12. Absence of Evidence 19
13. Lack of Foundational Support for the Defence Theory in the Expert Opinion Evidence 20 IV. Conclusion 21

I. Introduction

A. Introduction

[1] The defendant is subject to conditions of a Long Term Supervision Order (LTSO) requiring him to abstain from the consumption of illegal narcotics and to provide samples of his urine for drug testing. On September 30th, 2020 his federal parole officer directed him to provide a urine sample. He provided the sample that day. The defendant’s urine was tested at Dynacare Labs. This company regularly conducts drug testing for both private industry and government and is contracted by the Correctional Services of Canada to conduct drug testing of federal parolees. On October 5th, 2020, Dynacare notified the defendant’s parole officer that his urine tested positive for the cocaine metabolite – BENZOYLECGONINE [BZE]. The defendant is charged with one count of breaching his LTSO.

[2] The Crown called two laboratory scientists from Dynacare. These witnesses testified about the laboratory testing process and results of the urinalysis as documented in a consolidation of testing material called a Litigation Package.

[3] The Crown called two forensic toxicologists to explain the meaning of the defendant’s urinalysis results. These expert witnesses opined that: (1) the defendant had ingested or been exposed to cocaine; (2) the exposure to cocaine had occurred between 2 to 4 days prior to the acquisition of his urine sample; (3) the defendant’s urine had a concentration of the cocaine metabolite BZE measured at 318.61 ng/ml; and, (4) this concentration was well above the standard laboratory “cut-off” of 100 ng/ml used to mitigate false positive tests due to environmental exposure.

[4] Defence counsel challenges the continuity of the defendant’s urine sample and submits that the urinalysis is unreliable. Defence counsel submits that the Litigation Package produced by Dynacare is inadmissible hearsay, and the Crown failed to qualify the Dynacare scientists as expert witnesses so that they might rely upon hearsay in providing their testimony. The Defence position is that the Litigation Package, including the defendant’s urinalysis, should not be admitted into evidence.

[5] Defence counsel submits that even if the Litigation Package is admissible, the proper application of W.(D). v. The Queen (1991), 63 C.C.C. (3d) 77 (S.C.C.) [W.(D.)] provokes a reasonable doubt for several reasons. Defence counsel submits that the Court could have a doubt premised on the possibility that the defendant’s urine sample was contaminated during laboratory testing. Defence counsel argues that notwithstanding the evidentiary record demonstrating the continuity and integrity of the urinalysis testing process, the Court should have a doubt that it was conducted properly. Defence counsel argues that that persons involved in the testing and continuity may have falsely endorsed compliance with the laboratory standards.

[6] In the alternative, Defence counsel urges the Court to find that the defendant’s results were caused by his consumption of coca leaf tea containing cocaine which is supported by the viva voce evidence of the defendant’s girlfriend. Defence counsel submits that the prosecution has not proven that the defendant knew that the coca tea he consumed contained cocaine. For all of these reasons, Defence counsel submits that the Court should have a reasonable doubt as to how the concentration of cocaine metabolite BZE was deposited in the defendant’s urine.

[7] Reasonable doubt is an ethereal concept. It represents a state of mind held by the trier of fact and a conclusion that the prosecution has failed to prove the allegation to the criminal standard of proof. The defendant has no onus in a criminal trial. Given the criminal burden of proof placed upon the Crown, a trier of fact may source reasonable doubt in evidence, or the lack of evidence before the Court. Again, the defendant has no onus as it pertains to reasonable doubt. Reasonable doubt need not be premised upon an adduced evidentiary record. Reasonable doubt need not be premised upon a discrete inference or series of inferences.

[8] The prosecution’s case relies on a circumstantial inference – that the defendant’s failed urinalysis test, and the high concentration of the cocaine metabolite BZE, is due to his voluntary ingestion of some form of cocaine proximate in time to September 30th, 2020. In order to find the defendant guilty, a circumstantial inference of guilt should be the only reasonable inference having regard to: (1) all of the evidence at trial; (2) the absence of evidence; (3) logic; (4) common sense, and (5) human experience: R v. Villaroman, 2016 SCC 33, at para. 30 [Villaroman].

[9] I find that the records from Dynacare are admissible pursuant to s.30 of the Canada Evidence Act. I find that there was no issue with respect to the acquisition and testing of the defendant’s urine. The Crown Attorney laboriously and meticulously addressed the testing process. I find beyond a reasonable doubt, that prosecution has proven that the defendant’s urine was properly tested and produced the result described.

[10] As of the close of the prosecution case, the evidentiary record adduced by the Crown established all of the essential elements of the offence. In particular, at the close of the prosecution case, I was satisfied that the only available reasonable inference to draw from the evidentiary record was that the defendant consumed cocaine in violation of his LTSO conditions.

[11] The defendant, as is his right, did not testify. There is no direct evidence that he consumed coca tea proximate in time to the acquisition of his urine sample. The evidence presented by the defendant’s girlfriend does not cause me to harbour any reasonable doubt premised on the Defence theory that the defendant consumed coca tea. I do not have a reasonable doubt premised upon the Defence theory that the defendant’s results were caused by the consumption of coca tea.

[12] The defendant is found guilty.

B. Procedural Considerations

[13] This criminal trial was conducted byway of “Zoom-hybrid” video facilities. The Court presided in-person. The Crown Attorney appeared by video. All of the prosecution witnesses testified by video. The defendant and Defence counsel attended in-person. The defence witness testified in the courtroom.

[14] The Crown and Defence consented to this arrangement and requested the Court approve the arrangement. This Court has conducted several in-person trials and preliminary inquiries using Zoom-hybrid and Zoom facilities over the past eight months. This mode of proceeding is now an everyday reality for in-person proceedings. I was satisfied with the arrangements made for this trial. I made an Order permitting the trial to proceed in this hybrid fashion pursuant to s.715.25(3) of the Criminal Code.

II. The Record

A. The Acquisition of the Defendant’s Urine and the Urinalysis Testing Procedures

[15] I make the following findings of fact based on the evidence from the two Dynacare laboratory scientists and the Litigation Package:

1. Dynacare is private company involved in laboratory testing with a particular focus on workplace drug testing for private industry and government;
2. Dynacare was contracted by Correctional Services Canada to conduct urine testing;
3. Dynacare engages in batch testing of multiple urine samples;
4. The relevant “target compound” in this case is the cocaine metabolite BZE;
5. An instrument called the AU5800 performs the initial analysis of a urine specimen;
6. Once the initial screening is performed, a screening analyst tests the result for acceptability pursuant to quality control standards and procedures;
7. If the sample tests negative, [1] the testing procedure ends;
8. If the sample tests “non-negative”, this means a screened substance has been detected, and a second sample is subject to confirmation testing;
9. Confirmation testing involves the use of a GCMS (Gas Chromatography Mass Spectrometry) instrument to perform confirmation testing for the purpose of confirming or negating the initial result; and,
10. If the GCMS confirms the “non-negative” result, the results are communicated to the client.

B. Litigation Package

[16] Dynacare performs drug testing for private industry and government. Upon client request, Dynacare will prepare a “Litigation Package”. Dynacare prepared this package in relation to the defendant’s urinalysis. The Crown Attorney initially adduced specific pages from the litigation record into evidence. Ultimately, the entire ligation package was marked as an exhibit without objection from the Defence. [2]

[17] The stated purpose of a Litigation Package is to:

1. Disclose drug testing analytical results;
2. Demonstrate the laboratory's compliance to its Standard Operating Procedures;
3. Provide comprehensive chain of custody documentation;
4. List the personnel who participated in the analysis;
5. Describe the role of all personnel who participated in the analysis; and,
6. Provide information about the analytical instruments.

[18] The Litigation Package associated with the defendant’s urine testing is 88 pages long. The Litigation Package is a consolidation of all of the testing and quality control procedures involved in the testing of the defendant’s urine specimen. Amongst the contents of this package are:

1. The affidavit of the Certifying Scientist who reviewed all of the testing material and results generated by the AU5800 and the GCMS and certified that the urine sample was tested in accordance with their laboratory procedures including compliance with the quality control standards;
2. The affidavit of the Responsible Person for the Forensic Toxicology Department of Dynacare, certifying that this person reviewed the defendant’s specimen file, screening data, confirmation data, quality control, and chain of custody information, and that these measures were in compliance with the proscribed Toxicology Department Standard Operating Procedures;
3. Disclosure of drug testing results including the information generated by the AU5800 and GCMS instruments; and,
4. Documentation of the chain of continuity and compliance with laboratory standards.

C. Evidence of Dynacare Employees

[19] The Responsible Person involved in the defendant’s sample was called as a witness at trial. She acknowledged her affidavit. This witness has twenty years experience as a scientist involved in drug testing at Dynacare including a wide variety of roles. [3] Further to her affidavit, [4] she is responsible for the forensic toxicology department and reviewed the Litigation Package material documenting the defendant’s urinalysis.

[20] The Certifying Scientist involved in the defendant’s sample was called as a witness at trial. She acknowledged her affidavit. Further to her affidavit, [5] she reviewed the Litigation Package material documenting the defendant’s urinalysis. This witness has been working as a scientist and forensic technologist at Dynacare since 2011.

[21] The Certifying Scientist testified that there were no quality control, continuity, or other issues, with the defendant’s specimen. The Certifying Scientist specifically referred to page 67 of the Litigation Package and explained the result, including the fact that the “target compound” cocaine metabolite BZE was present in the defendant’s urine sample in a concentration measured as 318.61 ng/ml. This witness explained that pursuant to the contract with Correctional Services Canada, there existed a 100 ng/ml threshold reporting standard, above which, a test was considered reportable.

D. Expert Opinion Evidence

[22] The prosecution called two forensic toxicologists: Galiena Tse from the Ontario Centre of Forensic Sciences, and Dr. Karen Woodall, who previously worked at the Centre of Forensic Sciences from 1999 to 2019 and is now an Assistant Professor of Forensic Toxicology at the University of Toronto.

[23] Forensic Toxicologist Tse’s report and curriculum vitae were served on the defendant with notice in accordance with the Canada Evidence Act. Dr. Woodall’s report and accompanying materials were not disclosed in accordance with the statutory pre-requisites or timelines proscribed in the Canada Evidence Act. [6]

[24] Defence counsel conceded notice and admissibility as it pertained to Forensic Toxicologist Tse’s report. Defence counsel also conceded notice and admissibility concerning Dr. Karen Woodall’s report. Further, notwithstanding the Court addressing (on several occasions) the issue of a remedy for late disclosure of Dr. Woodall’s evidence, Defence counsel declined to seek a remedy (e.g., an adjournment).

[25] At trial, both the Crown and Defence counsel submitted that the threshold Mohan admissibility requirements of: (1) relevance; (2) necessity in assisting the Court; (3) the absence of an exclusionary rule; and (4) a properly qualified expert, had been satisfied in relation to both proffered experts: R. v. Mohan, [1994] 2 S.C.R. 9. I reviewed the curriculum vitae and report of each expert in turn, performed my discretionary “gatekeeping” function, and determined that the benefits outweighed the risks of admission: R. v. Bingley, 2017 SCC 12, at paras. 13-17; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, at para. 24; R. v. Sekhon, 2014 SCC 15 [Sekhon]; Mohan; R. v. Abdullahi, 2021 ONCA 82, at para. 34; R. v. Herlichka, 2020 ONCA 307, at paras. 79-82; R. v. Abbey, 2009 ONCA 145, at para. 76. In so doing, I also assumed the obligation to ensure that the expert opinion testimony stayed within the stipulated areas of expertise: [7] Sekhon, at paras. 47-48. I therefore dispensed with the need for a voir dire.

[26] The expert opinion evidence supports the following findings:

• BZE is the metabolite produced as the human body breaks down ingested cocaine.
• The standard approach of drug testing labs in North America is to test for the cocaine metabolite BZE as the by-product of ingested cocaine.
• A urine sample containing 318.61 ng/ml of cocaine metabolite BZE is a high concentration.
• The presence of the cocaine metabolite BZE in concentrations above the “cut-off” of 100 ng/ml means that the subject has recently ingested cocaine.
• A “cut-off” level of 100 ng/ml urine is used to mitigate the risks associated with environmental false positives.
• The ingestion of cocaine would have occurred within two to four days prior to the acquisition of the urine sample.
• The coca leaf plant is used to produce coca tea.
• The coca leaf plant contains a concentration of cocaine.
• “Coca tea” that is derived from the coca leaf plant has some concentration of cocaine.
• The consumption of “coca tea”, derived from the coca leaf plant (assuming a concentration of cocaine), can produce a high concentration of the cocaine metabolite BZE.
• In the one study disclosed by Dr. Woodall, consumption of coca tea produced levels of BZE many times higher than the defendant’s reading of 318.61 ng/ml.
• Neither expert witness was aware of “coca tea” [8] being legally for sale in Canada.
• Both expert witnesses were aware that “coca tea” [9] is found in other parts of the Americas and also on the internet.

III. Analysis

A. The Legal Framework

1. The Criminal Burden of Proof

[27] The axiomatic truth associated with criminal prosecutions is that the prosecution bears the burden of proof to establish the defendant’s guilt beyond a reasonable doubt. The burden does not shift to the defendant under any circumstances.

[28] In this case the Defence called one witness – the defendant’s girlfriend. She was called in aide of the Defence theory that the defendant’s urinalysis result was caused by the consumption of coca tea.

[29] The guidance provided by the Supreme Court of Canada in W.(D). applies. In addition to the oft-cited three stage consideration as to credibility, the central consideration in W.D. is that the Court must carefully focus on the criminal burden of proof and reasonable doubt. The Court must consider any evidence relevant to the test in W.D., whether it emanates from the case for the Defence or the prosecution: R. v. M.P., 2018 ONCA 608, at para. 60. Where there are credibility findings to address concerning conflicting evidence, it does not matter whether the record was adduced by the Defence or the Crown -- the concept of reasonable doubt must be addressed: R. v. Marki, 2021 ONCA 83, at paras. 23, 25; R. v. Charlton, 2019 ONCA 400, at para. 45; R. v. Kirlew, 2017 ONCA 171, at para. 17; R. v. B.D., 2011 ONCA 51, at para. 114.

2. Circumstantial Evidence

[30] The prosecution has not adduced direct evidence proving that the defendant’s urinalysis result is attributable to the voluntary ingestion of cocaine, crack cocaine, or some other illegal source. I find that the prosecution case rests upon a circumstantial inference that the defendant consumed an illegal source of cocaine proximate in time to the urinalysis.

[31] In Villaroman, the Supreme Court of Canada, at paragraph 30, re-affirmed the “Rule in Hodge’s Case” and the approach in R v. Griffin, 2009 SCC 28, concerning the proper mindset in circumstantial evidence cases:

It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative inferences.

[32] Triers of fact should be conscious of the inherent dangers associated with circumstantial inference drawing: Villaroman, at paras. 26, 29. There is a risk that the human mind will bridge gaps in the evidence or endorse a strained interpretation of facts in support of a particular inference: Villaroman, at para. 26.

3. Reasonable Doubt and Inferences of Innocence

[33] Reasonable doubt is based on “reason and common sense”, is not “imaginary or frivolous”, does not “involve proof to an absolute certainty”, and must be “logically connected to the evidence or absence of evidence”: (Villaroman, at paras. 28, 36 citing R. v. Lifchus, [1997] 3 S.C.R. 320).

[34] As it pertains to the evaluation of reasonable doubt, the defendant bears no burden to prove the foundational facts in support of an inference of innocence: Villaroman, at para. 35; R. v. Khela, 2009 SCC 4. Reasonable doubt does not take on the character of an inference or a finding requiring foundational support in the evidence presented at trial: Villaroman, at para. 28. A reasonable doubt may not be characterized as speculative simply because there is no evidence on the issue: Villaroman, at para. 36. The trier of fact should consider “other plausible theories” and “other reasonable possibilities” which are inconsistent with guilt: Villaroman, at paras. 37-38; R. v. S.B., 2018 ONCA 807, at para. 124 [S.B.].

[35] When evaluating the criminal burden of proof and circumstantial evidence, if other reasonable inferences or plausible theories inconsistent with guilt are available, the prosecution has not proven the criminal allegation beyond a reasonable doubt: Villaroman, at para. 35.

B. Findings

[36] With these core criminal law concepts in mind, I turn to the specific findings in this case.

[37] I find that the Crown has proven the guilt of the defendant beyond a reasonable doubt. I am satisfied that the only reasonable inference to draw from the evidentiary record is that the defendant consumed cocaine in violation of his LTSO conditions. In arriving at these findings, I have considered the entire evidentiary record at trial (whether led by the Crown or Defence), the absence of evidence, logic, common sense, and my human experience: Villaroman, at para. 30.

[38] As explained by the Court at paragraph 56 in Villaroman:

The governing principle was nicely summarized by the Alberta Court of Appeal in Dipnarine, at para. 22. The court noted that “[c]ircumstantial evidence does not have to totally exclude other conceivable inferences” and that a verdict is not unreasonable simply because “the alternatives do not raise a doubt” in the jury’s mind. Most importantly, “[i]t is still fundamentally for the trier of fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt.”

[39] The Crown Attorney adduced a meticulous evidentiary record in support of the guilt of the defendant. The Crown Attorney methodically addressed the acquisition of the defendant’s urine sample, continuity of the sample, and the testing of the sample. The Crown has proven beyond a reasonable doubt, that the defendant’s urine contained 318.61 ng/ml of cocaine metabolite BZE. The expert opinion evidence explains the significance of the concentration of BZE in the defendant’s urine – three times the “cut-off” used by laboratories to exclude false positives associated with environmental exposure to cocaine. In summary, by the end of the prosecution case, the Crown had proven the guilt of the defendant beyond a reasonable doubt.

[40] While the defendant bears no onus in a criminal trial, I do not accept the Defence theory around the consumption of coca tea as a “plausible theory” or “other reasonable possibility” accounting for the defendant’s drug test results: Villaroman, at paras. 37-38, 56; S.B., at para. 138. I do not harbour a reasonable doubt. In arriving at this finding, there are ten factors or reasons I have considered.

1. The Admissibility of the Dynacare Records

[41] Defence counsel submits that the Litigation Package was inadmissible hearsay. Defence counsel submits that the Crown failed to qualify either Dynacare scientist as an expert, so neither witness was permitted to rely upon hearsay records to provide the urinalysis results. The Crown Attorney argues that the Litigation Package was admissible under the business record exception to the hearsay rule pursuant to s.30 of the Canada Evidence Act.

[42] I am satisfied that the documents in the Litigation Package are admissible under the business records exception to the hearsay rule: R. v. Grimba, [1977] O.J. No. 2606 (Ont. Co. Ct.); R. v. Anthes Business Forms Ltd., [1975] O.J. No. 2477 (Ont. C.A.) aff’d R. v. Anthes Business Forms Ltd., [1978] 1 S.C.R. 970. I find that the Litigation Package is admissible pursuant to s.30 of the Canada Evidence Act for the following reasons:

1. The prosecution explicitly provided s.30(7) Canada Evidence Act notice respecting the Litigation Package; [10]
2. The Litigation Package was filed as an exhibit at trial with no objection;
3. The Litigation Package was relevant, and not subject to an exclusionary rule;
4. The results of the defendant’s urinalysis would be admissible if tendered byway of viva voce evidence from the Dynacare witnesses;
5. While the prosecution did not specifically lead the Dynacare witnesses to incant that the Litigation Package contained records produced “in the usual and ordinary course of business”, the substantive testimony of the Dynacare witnesses, and the records themselves, prove that the Litigation Package is a consolidation of all of the contemporaneously produced records concerning testing, procedures, continuity, and the functioning of instruments (e.g. GCMS);
6. Dynacare performs “batch” testing for drugs for both private industry and government. There is no question that these are records produced and relied upon during the ordinary course of Dynacare business;
7. While not argued by Defence counsel, I find that the Litigation Package satisfies sections s.31.1 to 31.8 of the Canada Evidence Act as it is an Adobe Acrobat PDF file of consolidated records including documents produced by computer and documents containing handwritten entries; and,
8. While not argued by Defence counsel, I find that the Litigation Package, notwithstanding the name, was not produced in violation of s.30(10)(a)(i) or s.30(10)(a)(ii) of the Canada Evidence Act.

[43] Dynacare is a drug testing laboratory business. I am satisfied that the reliability of their drug testing procedures is a mandatory central focus of their everyday business. The evidence from both Dynacare witnesses addressed the continuity of the defendant’s sample, the integrity of the laboratory steps in testing the defendant’s sample, and the result of the testing. The Litigation Package comprehensively documents and addresses these issues and the witnesses explained many of the relevant documents to the Court.

[44] I find that neither Dynacare witness required cloaking as an expert witness in order to testify to the urinalysis results. [11] As laboratory scientists, they were able to simply provide the results of the urinalysis (the concentration of BZE in the defendant’s urine) and the process involved. Neither scientist testified as to what the concentration of BZE implied. The Crown called two expert forensic toxicologists to address the implications associated with the urinalysis result.

2. Acquisition of the Defendant’s Urine

[45] Defence counsel submits that notwithstanding the business records and the evidence of the Dynacare witnesses, there could have been human error or contamination of the defendant’s sample. Defence counsel submits that the Court should be concerned that even though the role of all of the persons involved in the continuity and testing of the urine sample has been documented and addressed in the business records and evidence from the Dynacare employees, the Court should harbour doubt based on the suggestion that at times, people falsely indicate they have performed a task properly. Finally, Defence counsel submits that the prosecution should have called each person in the chain of continuity. I do not accept these submissions.

[46] The Litigation Package comprehensively documents the testing procedure and continuity of the defendant’s urine sample. Two laboratory scientist and two forensic toxicologists reviewed the Litigation Package. There is no evidentiary basis to question the reliability testing procedure. Nothing was elicited from these witnesses in furtherance of reliability concerns.

[47] Based on the Litigation Package and the evidence of the Dynacare scientists, I find that the Crown has proven the issue of continuity beyond a reasonable doubt. The prosecution has proven that the defendant’s urine was acquired and tested by Dynacare Labs.

3. The Urinalysis Result

[48] I find that the Litigation Package and the evidence of the Dynacare scientists proves beyond a reasonable doubt both the reliability of the urinalysis testing, and the results achieved.

[49] Even if I have erred in admitting the Litigation Package as business records, the Certifying Scientist provided viva voce evidence of the result of the urinalysis testing. In a sense, this witness simply refreshed her memory from the Litigation Package and provided the concentration of BZE in the defendant’s urine specimen. The Responsible Person endorsed the same result. Both expert witnesses examined the Litigation Package and reported the same result. All four witnesses report the concentration of BZE was 318.61 ng/ml.

[50] I find that the Crown has proven the reliability and admissibility of the defendant’s urinalysis testing results beyond a reasonable doubt. I find that the Crown has proven beyond a reasonable doubt that the defendant’s urine had a concentration of BZE measured at 318.61 ng/ml of urine.

4. Does Coca Tea Contain Cocaine?

[51] I accept the expert opinion evidence that: (1) coca tea derived from the coca leaf plant contains a concentration of cocaine; (2) ingestion of coca tea derived from the coca leaf plant could conceivably cause a high level of concentration of BZE in a urine sample; and (3) a study has found that the concentration of BZE in such circumstances could exceed the 100 ng/ml standard “cut-off”.

5. Is Exhibit 9 “Coca Tea”?

[52] The Defence position is that Exhibit 9: (1) is “coca tea”; (2) contains cocaine; (3) was consumed by the defendant; and (4) caused the high level of BZE detected in the defendant’s urine.

[53] There is good reason to be cautious with Exhibit 9.

[54] First of all, The expert opinion evidence was that coca tea containing cocaine is not legally available in Canada. It is available on the internet. It is available in other parts of the world.

[55] Second, the manner in which Exhibit 9 was obtained is questionable. The defendant’s girlfriend testified that she worked as a server in a restaurant and that one day a regular customer, who had a “ big bag of tea ”, allowed her to “ grab a few boxes ”. She took two boxes of “ some sort of coca tea ”. She thought it was chocolate tea. The name of the person who gave her the tea was not provided. The date (day, month, or year) that the tea was provided to her was not elicited. The witness testified that she last worked as a server at the restaurant in March 2020. It is unclear when she apparently acquired the two boxes of coca tea from the unnamed “regular”.

[56] Third, the production and labelling of a product purportedly produced in Columbia, obtained from an unknown person, and apparently not for sale in Canada, is questionable. There is no evidence that this product has been examined by Health Canada. [12] There is no evidence that this product is approved for sale within Canada. At trial, Defence counsel objected to hearsay evidence cautioned the Court about relying on hearsay evidence for the truth of its contents. The labelling on Exhibit 9, a foreign product, may not be accurate, truthful, or complete. In addition, the English-language labelling of this product purportedly produced in a Spanish-speaking country is also cause for caution. I am cautious about accepting that such a product is, what it purports to be, on the outside of the box.

[57] Fourth, there is no evidence as to the composition of the contents of Exhibit 9. The evidence of Dr. Woodall supports the finding that there exists an ability to test “coca tea”. This witness provided an article where such testing was performed. Neither party requested an adjournment for a forensic examination of the item. Neither party requested an adjournment to apply for the release of Exhibit 9 for testing. As outlined earlier in this judgment, given the late disclosure of Dr. Woodall’s evidence, the Court offered the Defence several opportunities for an adjournment to evaluate the expert evidence provided by the prosecution.

[58] Factually, I have no idea what is contained in Exhibit 9. I am safe in assuming that it is some sort of tea-type product because the defendant’s girlfriend testified that she prepared tea from Exhibit 9. She did not report any stimulant effect associated with consumption. [13] There is no reliable evidence that Exhibit 9 contains coca tea leaf. Having a witness read the outside of the box is not reliable evidence. Given the apparent foreign origin of the tea, the manner in which the defendant’s girlfriend came into possession of the tea, and the spectre of Spanish to English-language translation issues, I am cautious with the suggestion that the English words on the outside of the box are reliable or true.

[59] Once again, I must emphasize that the defendant has no burden, and reasonable doubt does not mandate an evidentiary record. Nevertheless, these considerations impact the strength of the evidence around Exhibit 9.

6. Does Exhibit 9 Contain Cocaine?

[60] The expert opinion evidence supports a finding that coca tea produced from the coca leaf plant contains concentrations of cocaine. During cross-examination both expert witnesses agreed that if Exhibit 9 was in fact “coca tea”, it would be expected to contain some level of cocaine. Notwithstanding this evidence, it is important to carefully evaluate the probative value of the expert opinion evidence on this issue.

[61] There is no evidence as to the concentration of coca leaf product or concentration of cocaine dwelling within Exhibit 9. The coca tea publication authored by Susan S. Mazor, and filed as an exhibit, documents a study using Delisse Enaco mate de coca tea bags from Peru. The study also cited other investigators who attempted to measure the concentration of cocaine in coca teas.

[62] As I understood the expert opinion evidence:

1. Neither witness opined as to the origin of Exhibit 9;
2. Neither witness opined as to the identity of the product contained with Exhibit 9; and,
3. Neither witness opined that Exhibit 9 contained a concentration of cocaine.

[63] Dr. Woodall, in particular, was exceedingly careful with the limits of her opinion in this regard during cross-examination. Dr. Woodall properly couched her answers with an important caveat – she assumed for the purpose of the question that Exhibit 9 was in fact coca tea and did in fact contain cocaine. Indeed, had Dr. Woodall testified that Exhibit 9 factually contained cocaine, I would have exercised my gatekeeper function to excise opinion evidence straying outside the proper boundaries of her expertise, experience, and opinion: Sekhon.

[64] Cross-examination suggesting to Dr. Woodall that Exhibit 9 was similar to the tea in the Mazor study, does not make it factually so. The Mazor study identified the brand of coca tea examined – it is not Exhibit 9. Dr. Woodall did not examine Exhibit 9, is not familiar with the product, and did not test it. There is no evidence of a generally accepted industry standard associated with the production of coca tea and concentrations of cocaine. Simply having the expert read the outside of a box, in these circumstances, does not establish the contents of Exhibit 9.

[65] Again, I must emphasize, there is no evidentiary burden on the defendant. Reasonable doubt may gain purchase in a multitude of ways and is not dependant on evidence or even inferences. But I am not prepared to speculate as to the composition of the contents of the Exhibit 9 even in aide of reasonable doubt or competing inferences. I am not prepared to speculate that Exhibit 9 is, what the label suggests. I am not prepared to speculate that Exhibit 9 resembles the items tested in the Mazor publication. I am not prepared to draw an inference that Exhibit 9 shares the attributes of the coca leaf teas studied in the Mazur publication.

[66] Even if I ignored theses reliability considerations, and simply accepted the Defence position that Exhibit 9 contains cocaine, there is no basis upon which I reasonably conclude that the defendant drank coca tea proximate in time to the acquisition of his urine sample.

7. No Evidence of Consumption Proximate to the Urinalysis

[67] There is no evidence that the defendant drank coca tea proximate in time to the acquisition of his urine sample on September 30, 2020. This is important given the expert opinion evidence that the defendant’s exposure to cocaine would have been approximately two to four days prior to the acquisition of his sample. The core issue at trial is not whether there was coca tea in the defendant’s girlfriend’s cupboard, or whether she and the defendant drank coca tea at some point in time. The core issue concerns the timing of consumption, the volume of consumption, and the proximity of the consumption to the capture of the defendant’s urine sample on September 30, 2020. These factors, according to the expert opinion evidence of Forensic Toxicologist Tse, are important contributors to the concentration of BZE in urine.

[68] The Defence called the defendant’s girlfriend to provide evidence about the coca tea. She testified that she enjoys a wide variety of tea. She listed the names of half a dozen varieties of tea residing in her cupboard. She explained that she makes tea for the defendant when she drinks tea. This occurs perhaps a couple of times a day. As it pertains to the consumption of coca tea, during direct-examination she testified:

Q. Can you tell me whether or not Greg drank that tea [Exhibit 9] in the end of September 2020. A. I wouldn’t know for sure. [14]

[69] During cross-examination she testified:

Q. Is this [Exhibit 9] something you allowed Greg . . . Mr. Walton to drink A. I made him some of those teas. I did not know it had anything to do with a drug. [15] Q. Did you actually see him taking this tea? A. I mean I made it for him. I don’t know exactly when … but… [16] Q. When was the last time? A. Oh I don’t know, I mean, like a month ago? I don’t know. [17]

[70] The defendant’s girlfriend did not testify as to the frequency of her personal consumption of the coca tea as compared to the multitude of other teas in her cupboard. As such, even a rough guess of the timing of the defendant’s consumption of coca tea is unavailable.

[71] The expert opinion evidence supports a finding that the defendant’s exposure to the ingestion of cocaine would have occurred within approximately two to four days of the urinalysis test. According to the Litigation Package, the urine was acquired on September 30, 3030 and tested on October 2, 2020 (two days later). Forensic Toxicologist Tse testified that it is possible for coca tea derived from the coca leaf to provide detectible levels of BZE a day or two after consumption. She further explained that if BZE is detected in urine, it means that within the previous two to four days, the person has been exposed to the drug cocaine. The concentration of BZE in urine depends on when the tea was consumed, how much tea was consumed, and when the urine was acquired. If the urine sample was obtained within a day or two of the consumption of the coca tea, a positive test could certainly be the result.

[72] Dr. Woodall testified that it is not possible to determine the exact timing of the defendant’s ingestion of cocaine, but based on the result, it would have been within a few days of the cocaine exposure. Further, she noted that the level of 318.61 ng/ml is well above the “cut-off” used by drug testing labs. The labs use a “cut-off” (e.g. 100 ng/ml) to mitigate the possibility that the exposure to cocaine was environment or casual (e.g., cocaine residue on money transferred to hands).

[73] The defendant’s girlfriend testified that she made coca tea for the defendant, but she did not testify that he consumed coca tea proximate in time to the acquisition of his urine sample on September 30th, 2020. Further, she could not address the volume of any consumption on the part of the defendant. There is no basis to conclude that the defendant consumed Exhibit 9 proximate in time to the acquisition of his urine sample on September 30, 2020.

8. The Origin of the Coca Tea Theory

[74] From the record at trial, it is clearly discernable that the coca tea theory was recently conceived. During submissions, Defence counsel acknowledged that the coca tea defence arose at trial.

[75] The Defence received an expert report from Dr. Karen Woodall on Tuesday February 23rd, 2021. This report included an article concerning coca tea. This article is filed as an exhibit along with Dr. Woodall’s report and CV.

[76] During direct-examination by Defence counsel, the defendant’s girlfriend testified that two days prior to her testimony (Wednesday February 24th, 2021), the defendant called her and asked her to how to spell the coca tea in her possession. The witness testified that prior to this request, she had no idea of the significance of the coca tea nor did she take notice of the ingredients. This witness secured the coca tea and provided it to Defence counsel at trial.

[77] A defence theory conceived with hours of trial may provoke concern at first impulse. But, upon further consideration of this issue, I find that a defendant is entitled to challenge prosecution’s case and advance any defence or any theory in aide of reasonable doubt. Just because a defence was recently conceived, does not make it unavailable or necessarily suspect. I address this issue given the duty to provide fulsome reasons and to assure the defendant that an adverse inference was not endorsed.

9. Absence of Evidence

[78] Earlier in this judgment I set out the proper mindset with respect to the evaluation of circumstantial evidence and reasonable doubt. It is important to stress this mindset. The defendant does not have any onus in a criminal trial. The defendant is not required to present evidence and/or testify. Finally, once again, it is important to emphasize that a reasonable doubt is not necessarily dependent on evidence or the weighing of competing inferences. To belabour the point -- reasonable doubt is based on “reason and common sense”, is not “imaginary or frivolous”, does not “involve proof to an absolute certainty”, and must be “logically connected to the evidence or absence of evidence:” (Villaroman, at paras. 28, 36 citing R. v. Lifchus, [1997] 3 S.C.R. 320).

[79] The defendant has peculiar information as it relates to the issue of whether or not he consumed Exhibit 9 proximate in time to the acquisition of his urine sample. The defendant’s girlfriend testified that the coca tea was available, but she could not testify as to the defendant’s consumption proximate in time to the acquisition of his urine sample. The defendant has chosen not to testify. There is no direct evidence from the defendant that he consumed Exhibit 9 proximate in time to the acquisition of his urine sample on September 30, 2020. Thus, there is a lack of evidence from the defendant on the central defence theory.

[80] What use, if any, may be made of this lack of evidence? While long quotes are most unwelcome in Court decisions, I must restate the wise guidance of the majority of the Supreme Court of Canada as stated by Sopinka J. in R. v. Noble, [1997] 1 S.C.R. 874 at paragraphs 77 to 82:

77 Some reference to the silence of the accused by the trier of fact may not offend the Charter principles discussed above: where in a trial by judge alone the trial judge is convinced of the guilt of the accused beyond a reasonable doubt, the silence of the accused may be referred to as evidence of the absence of an explanation which could raise a reasonable doubt. If the Crown has proved the case beyond a reasonable doubt, the accused need not testify, but if he doesn't, the Crown's case prevails and the accused will be convicted. It is only in this sense that the accused "need respond" once the Crown has proved its case beyond a reasonable doubt. Another permissible reference to the silence of the accused was alluded to by the Court of Appeal in this case. In its view, such a reference is permitted by a judge trying a case alone to indicate that he need not speculate about possible defences that might have been offered by the accused had he or she testified. As McEachern C.J.B.C. stated (at p. 171):

In other words, the court will not speculate that the accused may have some unstated defence, such as, in this case, that someone may have stolen his driver's licence.

78 Such treatment of the silence of the accused does not offend either the right to silence or the presumption of innocence. If silence is simply taken as assuring the trier of fact that it need not speculate about unspoken explanations, then belief in guilt beyond a reasonable doubt is not in part grounded on the silence of the accused, but rather is grounded on the evidence against him or her. The right to silence and its underlying rationale are respected, in that the communication or absence of communication is not used to build the case against the accused. The silence of the accused is not used as inculpatory evidence, which would be contrary to the right to silence, but simply is not used as exculpatory evidence. Moreover, the presumption of innocence is respected, in that it is not incumbent on the accused to defend him- or herself or face the possibility of conviction on the basis of his or her silence. Thus, a trier of fact may refer to the silence of the accused simply as evidence of the absence of an explanation which it must consider in reaching a verdict. On the other hand, if there exists in evidence a rational explanation or inference that is capable of raising a reasonable doubt about guilt, silence cannot be used to reject this explanation.

82 The third position which I have attempted to explain in my reasons simply recognizes the fact that the evidence of the Crown stands alone. It must be evaluated on this basis. Contradictions that have not been offered cannot be supplied. No inference of guilt is drawn from the silence of the accused. Rather, the silence of the accused fails to provide any basis for concluding otherwise, once the uncontradicted evidence points to guilt beyond a reasonable doubt.

[81] The Crown has proven the acquisition, testing, and results of the defendant’s urinalysis beyond a reasonable doubt. There is no issue with the acquisition of the defendant’s urine or continuity. The urinalysis was conducted with conspicuous attention to the applicable quality control standards and verified by two professionals. The testing result of 318.61 ng/ml is reliable and admissible. This result is more than three times the “cut-off” for the measure of the cocaine metabolite BZE. The prosecution’s case, premised upon circumstantial inference, is overwhelmingly strong.

[82] The defendant’s girlfriend did not testify that the defendant consumed Exhibit 9 proximate in time to the acquisition of his urine. As it pertains to the theory of the Defence, there is no evidence as to the timing of consumption, the volume consumed, or that consumption occurred proximate in time to the acquisition of the defendant’s urine sample. There is no direct evidence emanating from the defendant to weigh against the prosecution case. A criminal court may not reverse the onus on a defendant. The absence of evidence from the defendant on the issue of consumption is simply one factor I may consider, per both Villaroman and Noble, in the overall analysis.

10. Lack of Foundational Support for the Defence Theory in the Expert Opinion Evidence

[83] Reasonable doubt does not require support in evidence or inference. But there should be some foundational record to support the Defence theory of coca tea consumption. As explained in this judgment, there is no evidence that the defendant consumed Exhibit 9 proximate in time to the acquisition of his urine sample. As explained by the Supreme Court of Canada, “[e]ven admissible expert evidence cannot be given any weight without a proper factual foundation”: R. v. Gibson, 2008 SCC 16, at para. 58 [Gibson]. If there is no factual foundation, or the factual foundation is rejected, the probative value of the expert opinion evidence is diminished: (See Gibson, at paras. 18, 58; R. v. Boucher, 2005 SCC 72, at paras. 28-31). I find there to be a weak foundation for the expert opinion support for the Defence coca tea theory.

IV. Conclusion

[84] There is no burden on the Defence. A reasonable doubt may conceivably exist notwithstanding an evidentiary record or available inference. While a reasonable doubt is supportable notwithstanding the lack of a record, it is for the Court to assess the issue. While the notion of reasonable doubt or alternative theories are not required to have a foundation in the evidence, the record adduced in this case leaves untouched the issue of consumption.

[85] I have considered the evidence and the submissions of Defence counsel concerning the coca tea theory and I reject it as implausible: R. v. R.M., 2020 ONCA 231; R. v. Onyedinefu, 2018 ONCA 795, at para. 12. There is no plausible alternative theory to weigh against the strong prosecution case. Having regard to the criminal burden of proof and the guidance in Villaroman and W.(D)., I am not in a state of reasonable doubt. I am satisfied that the circumstantial inference of guilt is the only reasonable inference: Villaroman, at para. 30.

Released: March 19, 2021 Signed: “Justice M.S. Felix”

[1] This means that there is no evidence of a screened substance (e.g. cocaine metabolite) and assumes that the quality control person (the “verifier”) found all quality control standards have been met. [2] Defence counsel maintained the right to make submissions on weight. [3] See her five-page curriculum vitae at page 82 of the litigation package. [4] See page 4 of the litigation package. [5] See page 3 of the litigation package [6] I am aware of these circumstances because two days prior to the scheduled start of the trial I denied a Crown application for an adjournment of the trial dates for the purpose of acquiring an expert opinion report from Dr. Woodall. I denied the Crown application because the prosecution was not diligent with respect to obtaining the report. Thereafter, the Crown Attorney evidently obtained the report in an expeditious manner and arranged for Dr. Woodall to testify at the trial. [7] For Forensic Toxicologist Tse, the absorption, distribution, and elimination of drugs and the analysis of biological samples. For Dr. Woodall, the effects of alcohol and drugs in relation to concentrations achieved in biological samples, the methods of analysis for drugs and biological samples, the absorption, distribution, and elimination of drugs, and the effects of drugs on the human body. [8] Derived from the coca leaf plant and containing concentrations of cocaine [9] Derived from the coca leaf plant and containing concentrations of cocaine [10] See Exhibit 6 [11] I note that both expert witnesses reviewed the litigation package as well in preparation for their testimony as to the urinalysis results. [12] Or any other regulatory body. [13] I note that the Mazor study involved 5 participants and they did not report stimulant effects as well. What is unclear (and unexamined) from the Mazor study is whether regular consumption of coca tea blunts stimulant effects or whether consumption of coca tea has no stimulant effect no matter the consumer’s experience. [14] Digital Record, R. v. Greg Walton, Friday February 26, 2021 at 3:16:29 HRS [15] Digital Record, R. v. Greg Walton, Friday February 26, 2021 at 3:18:43 HRS [16] Digital Record, R. v. Greg Walton, Friday February 26, 2021 at 3:25:36 HRS [17] Digital Record, R. v. Greg Walton, Friday February 26, 2021 at 3:25:48 HRS