Court File and Parties

Court File No.: Region of Niagara 998 21 S2639 Date: 2022-02-23 Ontario Court of Justice

Between: Her Majesty The Queen

— And — Arkadiusz Buksinski and Matthew Mcara

Before: Justice J. De Filippis

Heard on: February 10 & 11, 2022 Reasons for Sentence released on: February 23, 2022

Counsel: Mr. D. Anger, for the Crown Ms. A. McArthur, for Mr. Buksinski Mr. M. Evans, for Mr. Mcara

De Filippis, J.:

Introduction

[1] The defendants are charged, in two counts, as follows; that on June 16, 2021, at the City of Thorold, they possessed fentanyl and crystal methamphetamine for the purpose of trafficking. At the time of the events in question, they were inmates, and shared cell number 6, at the Niagara Detention Centre (NDC). A search of that cell by correctional officers resulted in the seizure of 14.5 grams of fentanyl and 18.7 grams of crystal methamphetamine.

[2] There is no dispute that the possession of these amounts of the drugs, in a detention facility, is for the purpose of trafficking. The Defence also waived proof of continuity and nature of the substances. I appreciate these concessions; they do not compromise the defence in any way and allow the court to use its time efficiently.

[3] I find Mr. Buksinski guilty. I find Mr. Mcara not guilty. These are my reasons.

Evidence

[4] Correctional Officer Conroy testified that three cells were selected by her superior for a random search in a particular unit at NDC. She arrived at cell number 6 at 8:15 am with her partner, Correctional Officer Cottage. Photographs of the cell were presented to me and described by this witness. The door to the cell has bars that enable a guard to look inside. Inside the small area is a bunk bed for two people, with a toilet and sink. At one end of the bed is a ladder, secured to the floor and attached to the two bunks, allowing a person access to the top bunk. Mr. Buksinski was asleep on the bottom bunk and Mr. Mcara was asleep on the top bunk.

[5] The door to the cell is unlocked by an exterior button that produces a loud buzz and click. This enables a person to manually open the door. According to Officer Conroy, as soon as she disengaged the door lock, Mr. Buksinski jumped up, grabbed a brown bag on the floor, and began dumping its contents in the toilet. In doing so, this defendant ignored the Officer’s command to stop what he was doing and flushed the bag itself in the toilet. She added that Mr. Mcara did not move from the top bunk during these events.

[6] Within seconds, the two officers grabbed Mr. Buksinski, brought him just outside the cell and pushed him up against a wall. Mr. Buksinski resisted as they did so. At this point, Mr. Mcara jumped down from his bunk. Officer Cottage shut the door and other officers, who quickly arrived, took control of Mr. Mcara.

[7] Officer Conroy testified that the brown bag grabbed by Mr. Buksinski had been on the floor at the base of the ladder and she noticed something white there. When she saw this white object, Mr. Mcara was still on the top bunk.

[8] Officer Cottage testified that after the door was opened, he followed Officer Conroy into the cell. He saw Mr. Buksinski at the toilet with his hands down holding a brown paper bag. He heard his partner tell the defendant to show his hands and step away from the toilet, however Mr. Buksinski did not comply; instead, he continued to shake the bag over the toilet with his head down.

[9] According to Officer Cottage, Mr. Mcara was on the top bunk, under a blanket. He awoke as the officers entered the cell and said, “what the fuck is going on?” and jumped off his bunk as Mr. Buksinski was taken out. The cell door was closed with Mr. Mcara confined inside. The officer testified that he did not see anything in Mr. Mcara’s hands and cannot say if he put anything on the floor. He added that debris was scattered on the floor.

[10] Other officers arrived on scene and removed Mr. Mcara from cell number 6. With this done, Correctional Officer Ridsdale entered the cell. She testified that among the debris on the floor was a white institutional bucket with a lid on it and a smaller cup. In the former, the officer saw three clear plastic bags; two contained a white substance and the third held a blue substance. In the smaller cup was a clear plastic bag with a white substance. These bags were eventually turned over to PC McKay, of the Niagara Regional Police, and submitted for analysis to the competent authority. As noted, the four bags contained a total of 18.7 grams of crystal methamphetamine and 14.5 grams of fentanyl.

[11] PC Moxham prepared a report explaining his opinion that the drugs seized in this case were possessed for the purpose of trafficking. That is not controversial. His testimony, however, is relevant to other issues in this case.

[12] The officer testified that the value of 14.5 g fentanyl in the community is between $3,000 and $4,500 when sold by the point, that is, 0.1 gram, and diluted by cutting agents to increase the yield. The value of 18.7 g crystal methamphetamine in the community when sold by the gram up to an “8-ball” is between $900 to $1400. The value of both drugs is enhanced in a custodial facility because of the reduced supply. The officer noted that drugs in jail can be sold for greater profit or traded for other goods and sexual favours.

Legal Principles

[13] The Crown carries the burden of proving guilt beyond a reasonable doubt. This fundamental principle of law means that if the defendant has called evidence, there must be an acquittal: (i) where the testimony is believed, (ii) where the testimony is not believed, but leaves the trier of fact in reasonable doubt, (iii) where testimony is not believed and does not leave a reasonable doubt, but the remaining evidence fails to convince, beyond reasonable doubt, that the defendant is guilty: R. v. W.D. (1991), 63 C.C.C. (3d) 397 (S.C.C.).

[14] Possession is defined in section 4 of the Criminal Code as follows:

(3) For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or knowingly

(i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

[15] In the case of manual handling of an object, possession is established if there is knowledge of what the object is, along with an act of control; R v Beaver, [1957] S.C.R. 531. Constructive possession is complete when a person has knowledge of the object, knowingly keeps it in a particular place and intends to have the object in that place for his use or benefit or that of another person; R v Morelli, [2010] 1 S.C.R. 253.

Submissions

[16] The Crown argues that both defendants were in joint possession of the drugs and adds that there is nothing to suggest that they were possessed by Mr. Mcara alone. In this regard, it is submitted that possession can be inferred from the value of the contraband in a jail, and it is unreasonable to conclude Mr. Mcara would leave this product so close to Mr. Buksinski. In any event, Mr. Buksinski’s actions in dumping the contents of a bag and then the bag itself in the toilet demonstrate knowledge of the drugs found near his bed. This inference is strengthened by the fact that this defendant refused to comply with demands to stop the destruction of evidence and resisted being removed from the cell.

[17] Counsel for Mr. Buksinski acknowledges that the defendant dumped contraband in the toilet upon arrival of the officers but argues that I cannot know, with requisite certainly, what it was; “it could have been tobacco, which is also banned in jail cells”. Counsel also points out that Mr. Mcara was alone in the cell while Mr. Buksinski was being removed and that he could have placed his drugs on the floor to remove suspicion from himself. Finally, it is submitted that the drugs could have been placed in this cell by a third party without the knowledge of either defendant.

[18] Counsel for Mr. Mcara, like his co-counsel, noted that this is not a case of personal possession as nothing was found on the person of either accused. As such, the law with respect to circumstantial evidence applies and the defendants cannot be convicted unless guilt is the only rational inference to be drawn from the evidence. It is submitted that this is not a case in which it can reasonably be concluded that a third party placed the drugs in this small cell; the only inferences that can be drawn is that the drugs were possessed Mr. Buksinski, Mr. Mcara, or jointly. Counsel suggests that Mr. Mcara’s presence in the cell is meaningless as he was confined there against his will. Officer Conroy testified that it is normal in the institution for inmates to keep personal items near their bunk, top or bottom, as the case may be. In this regard, counsel argues that there was insufficient time for Mr. Mcara to have moved drugs from the top bunk to the floor, near Mr. Buksinksi’s bunk without being noticed by the guards.

Conclusions

[19] There is no dispute that the person(s) who possessed the drugs in question did so for the purpose of trafficking. With respect to the issue of possession, the circumstantial and other evidence in this case is not controversial.

[20] When the cell door is unlocked, it buzzed and clicked in a manner that alerted Mr. Buksinski. He immediately jumped from his bed, grabbed a paper bag, from the floor, beside his bunk, and dumped it in the toilet. That the bag did not contain yesterday’s sandwich is obvious. Defence counsel is right to concede that it held contraband. However, in arguing that it could be tobacco, the concession falls far short of the mark.

[21] The only rational conclusion is that Mr. Buksinski dumped illicit drugs into the toilet. The parties agree that possessing something like tobacco is a less serious institutional offence, and not a criminal one. It makes no sense that Mr. Buksinski would aggravate this relatively minor institutional offence by failing to comply with a demand to stop and physically resisting the officers' attempts to remove him from the cell. His actions strengthen my conclusion that he possessed the drugs in the bucket and bowl. In this regard, I note the value of the drugs and the location in which they were found.

[22] The argument by counsel for Mr. Buksinski that a third party could have placed the drugs in the cell was not pursued with confidence. I am not surprised; it is a fantasy. These drugs were possessed by one of the two cell mates, or jointly by both. The value of the drugs is significant, especially in a prison setting. The location of the drugs, beside Mr. Buksinski’s bunk, is important, especially because the white bucket was observed there before Mr. Mcara moved from his bed. Indeed, Mr. Mcara was not seen carrying anything or attempting to destroy evidence and nothing of interest was found at his bunk.

[23] I have no doubt that Mr. Buksinski possessed the drugs in question. In this regard, I am not troubled by the fact that in attempting to destroy evidence, he left some behind. I am confident he was startled from sleep when the guards arrived and grabbed the first and easiest time to dispose so as to mitigate his jeopardy.

[24] It is probable that Mr. Mcara knew about Mr. Buksinski's drugs. The two men shared a small space. That probability is not enough to ground a finding of guilt. In any event, there is nothing to suggest he had control over the drugs.

[25] The Crown has met its onus of proof with respect to Mr. Buksinski. It has not done so with respect to Mr. Mcara. A conviction and acquittal will follow accordingly.

Released: February 23, 2022 Signed: Justice J. De Filippis