Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240110 DOCKET: C69671

Feldman, Miller and Coroza JJ.A.

BETWEEN

His Majesty the King Respondent

and

Benjamin MacAdam Appellant

Counsel: Anthony Moustacalis and Aidan Seymour-Butler, for the appellant Allyson Ratsoy and Mark Fernandes, for the respondent

Heard: November 29, 2023

On appeal from the conviction entered on March 17, 2021 and the sentence imposed on June 24, 2021 by Justice Ronald A. Minard of the Ontario Court of Justice.

Reasons for Decision

[1] A house in Nipigon was under police surveillance as part of an investigation into a suspected drug dealer. The appellant attended at the house for a few minutes. Police followed him as he left and drove his truck to a nearby Tim Hortons. He went into the Tim Hortons for about 10 minutes, then returned to his truck. Police then approached him, told him he was being placed under investigative detention, and read his rights. The appellant was told he was under investigation for possession of controlled substances for the purposes of trafficking.

[2] The appellant told the police he had “a couple of ounces” of cocaine in the console of his truck, but it was for personal use. When the truck was searched incidental to arrest, police found 112 grams of cocaine, which is approximately 4.2 ounces. Beyond the quantity of drugs seized, there were no indicia of trafficking present, such as debt lists, scales, or multiple cell phones. Neither was there any surveillance of the appellant engaging in suspicious behaviour consistent with drug trafficking.

[3] The appellant was convicted of possession for the purpose of trafficking, and sentenced to six months incarceration and two years of probation. On appeal, the appellant argued that the trial judge erred: (i) in admitting the expert evidence of a police officer who testified that the quantity of drugs seized was consistent with trafficking; and (ii) in misapprehending the evidence of the expert.

[4] We do not agree that the trial judge erred in accepting the expert evidence of the police officer. The officer was properly qualified with regards to his experience as an officer who had conducted numerous investigations as a member of the drug enforcement unit. We reject the appellant’s argument that the officer lacked specific expertise related to the particular locale of Nipigon. There was no foundation in the record to support a conclusion that there is anything unique to the drug culture of Nipigon as compared to any other small town in Ontario.

[5] We agree, however, with the appellant’s second ground of appeal. The case that the appellant was trafficking was based entirely on the quantity of drugs found in his possession. The police expert witness testified in chief that the amount was consistent with trafficking. His evidence was that a cocaine user could be expected to use between 1 and 3 grams of cocaine a day. On cross-examination, however, the defence put several hypotheticals to the expert, some of which were more factually complicated than others. One hypothetical involved a heavy cocaine user living in a remote location and using cocaine for the purpose of alleviation of pain. Another involved a heavy user living in a remote location. The expert agreed that, in these two scenarios, the quantity seized, which would equate to just over a month’s supply, could be consistent with personal use.

[6] The trial judge did not find that the expert’s agreement to the hypothetical raised a reasonable doubt that the appellant was trafficking. The trial judge explained that aside from living in a remote area, none of the key facts for the opinion – that the appellant was a heavy cocaine user, that he suffered from severe pain, that he had a good relationship with a seller willing to supply in bulk, and that he had an income capable of supporting significant drug use – were in evidence. Accordingly, he attached no significance to the expert’s evidence in this regard and found the appellant guilty.

[7] We agree with the appellant that the trial judge erred in finding that the Crown had discharged its burden of proof in this case. The evidence that the appellant was engaged in trafficking was thin – it consisted only in his possession of 4.2 ounces of cocaine and was unsupported by any other evidence. Although the trial judge made no error in finding that many of the facts underpinning some of the hypotheticals were not in evidence, the trial judge had to grapple with the expert’s agreement that the simplified hypothetical was consistent with possession for personal use.

[8] The expert’s testimony laid the foundation for a reasonable possibility inconsistent with guilt. Instead of explaining why the Crown had proven possession for the purpose of trafficking beyond a reasonable doubt when its own expert had conceded another reasonable possibility, the trial judge required the defence to establish the hypothetical scenario with proven facts. However, in circumstantial cases, inferences inconsistent with guilt do not have to be based on proven facts but must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation: see R. v. Villaroman, 2016 SCC 33 at para. 37. While the Crown did not have to negative every possible conjecture, it had to negative the opinion put in play by the expert.

[9] In our view, the meagre evidence connecting the appellant with trafficking, coupled with the expert’s statement that the amount could be consistent with the personal use of a heavy user living in a remote area without ready access to dealers, ought to have raised a reasonable doubt as to trafficking.

Disposition

[10] Accordingly, the conviction is quashed and a conviction for simple possession is substituted. The appellant has served one month of the six month custodial sentence imposed, and completed the two year period of probation. Taking into consideration the appellant’s efforts at rehabilitation over the past three years, including gainful employment and abstaining from drugs, we do not believe it to be in the interests of justice to reincarcerate. The appellant is sentenced to time served. The ancillary DNA and weapons prohibition orders are quashed.

"K. Feldman J.A."

"B.W. Miller J.A."

"S. Coroza J.A."