Court Information

COURT OF APPEAL FOR ONTARIO DATE: 20210603 DOCKET: C67363

Judges: Simmons, Gillese and Huscroft JJ.A.

Parties and Counsel

BETWEEN Her Majesty the Queen Respondent

and

Bradley Kennedy Appellant

Counsel: Chris Rudnicki and Angela Chaisson, for the appellant Victoria Rivers, for the respondent

Heard: May 25, 2021 by video conference

On appeal from the conviction entered on December 6, 2018, by Justice Robert W. Rogerson of the Ontario Court of Justice.

Reasons for Decision

[1] This is an appeal against conviction for possession of methamphetamine (“meth”) for the purpose of trafficking. The appellant argues that the verdict is unreasonable, and that the trial judge erred in admitting and relying on anecdotal evidence of the police expert that he had never spoken with anyone who said they had picked up, for personal use, an amount of meth in excess of 3.5 grams (the “impugned testimony”). Relying on R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, the appellant argues that the impugned testimony was inadmissible because it was irrelevant, unnecessary, and more prejudicial than probative.

[2] For the reasons that follow, the appeal is dismissed.

Background in Brief

[3] The appellant left a drug house after purchasing a single bag of 28 grams of meth for $800. The residence was under police surveillance. After leaving the residence, the appellant got into a taxi. He was arrested shortly afterwards and taken to the police station. Shortly afterwards, the police found the bag of meth hidden between the seat cushions in the back of the police cruiser.

[4] The appellant admitted possession of the drugs. The sole issue at trial was whether that possession was for the purpose of trafficking.

[5] After reading in agreed facts, the Crown called a single witness – a police officer who was qualified as an expert in the areas of pricing and purchasing of crystal meth, and the consumption habits and use of crystal meth by people in the community. Defence counsel at trial conceded his expertise and that it met the preconditions for threshold admissibility – relevance and necessity. Trial counsel did not object to any aspect of the expert testimony.

[6] The expert explained that meth is commonly sold by point, which is the equivalent of a tenth of a gram. The average cost of 0.1 grams is ten to twenty dollars. The price range for 28 grams is between $800 and $1,200. He testified that it was his opinion that the 28 grams of meth the appellant possessed was for the purpose of trafficking. When asked by the prosecutor why he was of that opinion, the expert gave the impugned testimony. He immediately added that there were many reasons why purchasers for personal use bought much smaller quantities. He gave three reasons. First, the cost of the drugs in issue in this case was around $1,000. A person struggling with addition does not generally have that amount of disposable income readily available. Second, buying such a quantity leaves the purchaser open to the risk of robbery and theft from other addicts. Third, the purchaser of a quantity of this sort is at greater risk of being caught by the police.

[7] The appellant testified on his own behalf. He said he was going to use all of the meth himself and not share or sell any of it. He was 38 years old at the time and had previously been addicted to meth in his twenties. He had been clean for 14 years but relapsed about a year prior to his arrest. At the time of his arrest, the appellant was divorced, unemployed, addicted to meth, and subsisting on rental payments from tenants – also meth users – who shared what had been his family home. He claimed he could easily go through a gram of meth a day and could binge for several days at a time. He explained that although the tenants in his home were transient and rarely paid rent on time, the day before his arrest, for the first time, the tenants had paid the full $2,000 in rent. The appellant testified that the dealer had given him a pipe and syringe, but these were not found on his person when he was arrested.

[8] The trial judge rejected the appellant’s testimony, finding it was “fluid and inconsistent at the best of times”. He noted discrepancies in the appellant’s testimony about how he got the money, where he got it from, and whether he got it in cash or partly from cheques. He found the appellant’s testimony to be “internally and externally inconsistent”.

[9] The trial judge concluded by stating:

“The ounce of methamphetamine, which is an extremely large amount, as the expert has indicated, and is certainly many times what a normal user would buy, is indicative of possession for the purposes”.

Analysis

[10] We do not accept that the police expert made a Sekhon error. He did not extrapolate from inadmissible anecdotes to impute guilt on the part of the Appellant. The expert simply explained that he had never encountered anyone who had purchased meth for personal use in quantities beyond 3.5 grams. His opinion that the appellant possessed the meth for the purpose of trafficking was grounded in objective facts: the inherent risks a purchaser encounters in possessing such a large quantity, including possible theft from other addicts; the tenants in the appellant’s home were meth addicts; the appellant’s precarious financial situation; and, the significant cost of one ounce of meth in the appellant’s financial circumstances.

[11] In any event, the trial judge appears not to have relied on the impugned evidence: his analysis makes no mention of it. Rather, he relied on the reasons the expert had given for why purchasers for personal consumption usually bought in much smaller quantities.

[12] Nor do we accept that the verdict is unreasonable. Having rejected the appellant’s testimony as incredible, the trial judge concluded that no reasonable inference other than “possession for the purpose” was available on the evidence. On the appellant’s own evidence, as well as that of the expert, this was a significant quantity of meth. Although the appellant had not been under surveillance and the circumstances of his arrest lacked other indicia of trafficking, indicia of personal use were also lacking. In the absence of an explanation, the trial judge was entitled to draw an inference of guilt.

Disposition

[13] Accordingly, the appeal is dismissed.

“Janet Simmons J.A.”

“E.E. Gillese J.A.”

“Grant Huscroft J.A.”