Court File and Parties

Ontario Court of Justice

Date: 4 July, 2016

Court File No.: 15-01978 Newmarket

Between:

Her Majesty the Queen

— and —

Janmark Jardenico

Judgment

Before: Justice Joseph F. Kenkel

Delivered: July 4, 2016

Counsel:

• Mr. Matthew Capotosto, counsel for the Crown
• Mr. David Heath, counsel for the defendant

KENKEL J.:

Introduction

[1] Mr. Jardenico was arrested for suspected impaired driving. Upon arrest the following items were found in his possession:

• 0.2 grams of Ketamine folded in paper and a red straw in his lower coat pocket
• A red straw
• 55 grams of Ketamine in an upper coat pocket in a single bag
• A Black ZTE cellular phone in his coat pocket
• $1402.65 in pocket

[2] Further items were found during a search of his vehicle:

• 75 grams of a white powder substance in a single zip lock bag with a white scoop
• Two baggies with 30 and 14 grams of marijuana in a cooler bag
• An Easy-E digital scale
• 2 additional cell phones

[3] The defence concedes that the Crown has proved the accused was in possession of Ketamine. The only point at issue – whether the Crown has proved that the Ketamine was possessed for the purpose of trafficking as alleged.

[4] To prove the accused's intent, the Crown's case is necessarily circumstantial. The burden is upon the Crown to prove beyond a reasonable doubt that the only rational inference that can be drawn from the whole of the evidence is that the accused possessed the ketamine for the purpose of trafficking. R. v. Griffin 2009 SCC 28 at para 33.

The Criminal Record and Evidence of Prior Trafficking

[5] In examination-in-chief the defence led evidence that the accused had one prior conviction for possession for the purpose of trafficking. The accused then went beyond acknowledging the fact of conviction and explained the circumstances, involving what he said were 1 to 3 vials of ketamine. He also said he'd trafficked in small amounts of ketamine after that in 2010 and 2011 although he was not charged or convicted in relation to those acts. In cross-examination he admitted the criminal record marked as Exhibit 7.

[6] I find the evidence of the accused's conviction for theft to be evidence of dishonesty and relevant to credibility. I find the accused's convictions for breaches of court orders to be evidence of dishonesty as breaches of binding promises made and relevant to credibility.

[7] It's not plain why the defence led the evidence of past trafficking. It went well beyond anticipating reference to one conviction which could not have been considered in assessing credibility. The accused minimized his involvement in that offence (1-3 vials). He said he "accepted" the charge when he pled guilty. He explained he'd trafficked in similar minor amounts on other occasions only to friends. His evidence appeared to assert that he was not the type of person to have bought a large amount of ketamine to engage in trafficking on that scale.

[8] The accused's evidence might have opened the door for a wider attack on his credibility but the Crown did not pursue it. Both parties properly avoided propensity reasoning in their submissions.

Circumstantial Evidence Relevant to the Allegation of Trafficking

[9] The Crown referred to the following circumstances as indicia of trafficking:

• The large amount of the ketamine – 55 grams
• The large amount of cash
• The scale found in the console of the car
• The fact that three cellular phones were found in the car
• The 44 grams of marijuana found in the car
• A bag of unknown white powder with a scoop that did not test as a drug

[10] The defence conceded that the circumstances lead to a suspicion of trafficking but pointed out that there's also indicia of personal use. The original impaired investigation, the discovery of ketamine and the straw, along with the observations of the accused including the white powder around his nose all reasonably lead to an inference that he used ketamine.

[11] The defence noted that indicia of trafficking seen in other cases are not present here including:

• Packaging materials
• Debt list

Expert Evidence

[12] Detective Constable Lidstone was qualified on consent of both parties to give opinion evidence with respect to the methodology of drug trafficking and the subculture, consumption, pricing, distribution and possession of ketamine in York Region.

[13] Detective Lidstone testified that the amount of ketamine found in this case was inconsistent with personal use. A typical dose would average 2/10ths of a gram, although a heavy user might increase that by up to half or 3/10ths of a gram. The .2 grams found on the accused along with a straw would be an example of the typical dose. The effects last 60 to 90 minutes per dose. In this case the circumstantial evidence suggests use through snorting or ingestion through the nasal cavity. A user snorting 2/10ths of a gram continuously would consume one gram every 5 to 7.5 hours. Even if the user snorted ketamine continuously 24 hours a day it would take 11.5 to 15 days straight to ingest the 55 grams of ketamine found in the accused's possession.

[14] Detective Lidstone testified that for regular ketamine users daily ketamine use varies from .5 to as much as 3 grams per day in a heavy user. Users typically buy in grams or portions of a gram. The 55 grams of ketamine found represents 275 typical doses. (55÷.2) Addicts typically have only small amounts of ketamine in their possession which they consume quickly.

[15] Electronic scales like the one found in the console of the car the accused was driving are often used in drug trafficking. Traffickers use scales to ensure they know the amounts of the expensive street drug they're buying and selling. It's not common for personal users to have scales as they purchase in small amounts which can be verified by observation. Those trafficking in drugs often use multiple cellphones to avoid detection. Where three are found one would typically be for personal use only, another to connect to suppliers and a third to connect to customers.

[16] The bag of white powder found in the back seat with a scoop did not test as a controlled substance. Detective Lidstone cautioned that he could not identify the substance with certainty as it was not tested further. He did explain that Ketamine traffickers use B12 and other similar white powders to "cut" ketamine prior to sale to increase their profits. The fact that white powder was discovered loose in a bag with no commercial markings and no apparent purpose in a car with drugs and other paraphernalia indicates that it could be a cutting agent for the 55 grams of ketamine.

Heavy User

[17] The accused testified that he's long been addicted to Ketamine. At the time of arrest he said he was a heavy user, consuming 7 grams per day. In cross-examination he added more. He testified that he would consume 3.5 grams while at work during the day, but either 3.5 or double that at night. His last estimate was then up to 10.5 grams per day. He admitted he's unsure of all of these estimates as he never weighed out any dose or portion.

[18] The accused testified that he paid $600 for the 55 grams which is well below the $700 the Crown's expert testified was the minimum for such an amount. However, even assuming Mr. Jardenico is correct that he was able to obtain 55 grams for $600, then the habit he described of 7 to 10 grams per day consumption (8.5 grams/day average) would mean the accused spent $600 every 6.5 days to feed his addiction. Rounding that up to $600/week and engaging every assumption favourable to the accused, the accused needed to spend at a rate equivalent to $31,200 (600 x 52) per year to pay for the daily drug consumption he described.

[19] The accused's evidence and documentary evidence shows his total annual salary at the time was $30,000 gross before deductions and taxes. From the net salary there's evidence that he paid $1400 in rent per month. He also had a car which was being repaired at the time of this offence. He was living on his own so had further food and clothing expenses.

[20] There's evidence that his salary would be augmented by tips, but the net income of even that augmented salary, less rent, car and other expenses, falls far short of the money the accused said he needed to spend on drugs daily. Further, the small increments the accused was paid in salary and tips, on the irregular basis he described over at most two weeks, would not have allowed him to save up the substantial monies needed to purchase ketamine in bulk even at the deep discount he claimed.

Half Concentration?

[21] The defence asked Detective Lidstone whether an addict's consumption of ketamine could double if he or she received ketamine that was half the purity that the addict was used to consuming. Doing the math, the expert's answer was, of course, yes.

[22] There's no evidence in this case that the ketamine Mr. Jardenico used regularly was half the normal purity. He attributed the large amount he possessed to his heavy use as an addict, not to faulty purchases.

[23] Mr. Jardenico was very unlikely to have purchased ketamine that was half the usual street concentration. On his evidence he has 15 years experience as a user and would not have been fooled by substandard product. His evidence that he trafficked in the past is also relevant on this point as he would have been aware of expected purity and the need to guard against inferior quality. He described an ongoing relationship with a dealer who gave him access to ketamine in large amounts. That's another circumstance that is inconsistent with purchasing a drug diluted 50% below expected street level. It's less likely that a drug purchased in a large amount would have already been diluted to half the expected level and Mr. Jardenico would not have continued a relationship with a dealer who repeatedly cheated him in that way.

The Car and Contents

[24] The accused's car was being repaired. He testified that the car he was driving at the time of arrest belonged to a friend, "Calvin". He described Calvin as a "really good friend" but he didn't know Calvin's last name nor did he identify him further. The accused testified that it was Calvin who left the marijuana, bag of white powder and two cellphones in the car although he said that Calvin was not a drug trafficker.

Analysis

[25] I accept the accused's evidence that he was a user of ketamine. His testimony on this point is supported by the circumstances indicating his drug use just prior to arrest. However, considering the evidence as a whole I find I cannot accept the accused's testimony that he was such a heavy user he possessed 55 grams of ketamine for his personal use.

[26] Constable Lidstone's evidence was detailed and straightforward. He was careful to note that the white powder didn't test as a drug and wasn't otherwise tested so he couldn't say that it was a cutting agent although in the circumstances that was one possibility. Constable Lidstone's expertise was not challenged in cross-examination. He assisted the defence with several hypotheticals but his overall evidence was not challenged. I find him to be a credible and reliable witness who gave detailed answers to questions put by both parties. I accept his evidence.

[27] Constable Lidstone's evidence as to the typical dose was consistent with the .2 gram single dose package found in the accused's pocket. The accused's evidence that he was able to buy 275 doses at one time for personal use was not credible and was inconsistent with his level of income.

[28] Given the range of prices set out by the expert that was not challenged by the defence other than the accused's evidence as to this one particular sale, I find that the total sale price for the 55 grams/two ounces was likely closer to $1000. Even at the very low purchase price he claimed, the heavy level of drug use Mr. Jardenico described would require an income in excess of his annual gross income leaving no money for taxes, rent or this other known expenses. He could not have saved enough money for 55 grams much less purchased such a large amount as a user with his claimed level of consumption and his personal income.

[29] Mr. Jardenico's income and expenses also make it highly unlikely that he would have both a large amount of cash and a large amount of ketamine on his person. If it were true that he'd made a special purchase of ketamine for personal use, it's highly unlikely he would still have $1400 left over.

[30] Mr. Jardenico's evidence as to his ketamine consumption was internally inconsistent. He ultimately described a level of personal use which far exceeds the .5 to 3 gram per day use described by PC Lidstone. It's not credible that the accused could be consuming Ketamine at that alarming rate and still somehow be functioning well in a management position at a busy restaurant job.

[31] The suggestion that Mr. Jardenico's high stated consumption was due to his purchasing Ketamine that was half the usual street concentration was without foundation in the evidence. Mr. Jardenico is an experienced user and wouldn't be fooled by inferior product. He was purchasing from a regular dealer in a large, bulk amount - both circumstances that make it even less likely that he was purchasing half strength ketamine at full rates.

[32] The accused's evidence as to "Calvin" and the contents of the car was vague and contradictory. He described Calvin and seemed to know many things about Calvin and his family. It's not credible that he would know all these things and be close enough that Calvin would lend him his car for days, but he wouldn't know Calvin's last name.

[33] Mr. Jardenico said Calvin didn't sell or use drugs but that's inconsistent with his evidence that the scales, white powder, marijuana and the two cellphones found in the car belonged to Calvin. Mr. Jardenico had the car for several days prior to arrest, but he testified that in that time Calvin never asked for his marijuana or his cellphones and that's why Jardenico didn't know they were in the car. If someone other than the accused had left those cellphones in the car they would likely have contacted the accused within hours to retrieve them. Cellphones today contain schedules, contacts, reminders and other important information. When they are misplaced people typically notice within a short time and then urgently search to find them. It's not credible that two phones would be left in the car without any inquiry over two days. The same applies to the 44 grams of marijuana which is illegal for most to possess and still has a value as a street drug. It's not likely to have been left in the car in the back seat for days without some inquiry by the owner.

[34] With respect to the electronic scale, the accused said he didn't notice the scale in the console of the vehicle. He didn't remember there being a scale in the car. His evidence on this point was contradicted by his admission in cross-examination that he put his lawyer's card in the console by the scale. At first he described the presence of the card as a coincidence as he and Calvin use the same lawyer. He then admitted he likely put it in the console as he always has his lawyer's card with him. As the driver of the car he could not have missed an electronic scale in the console area, particularly when he chose to place his lawyer's card there.

[35] The accused's evidence that the $1400 was saved for his rent money had some support in the limited banking records he produced. However, he paid his rent by post-dated cheques. His $30,000 income resulted in approximately $576 gross per week. He received some monies in tips but as he admitted the 20's that made up the 1400 were not from tips. He couldn't explain why he would choose to save money for rent in his pocket rather than the bank and why he would keep the full amount with him on his person rather than deposit it in the bank to cover the cheque he wrote. He admitted that didn't make sense and his explanation that the banks were closed isn't credible given the 24/7 access automated teller machines provide.

[36] I did not find the accused to be a credible witness. His testimony was vague, illogical and inconsistent on many points. His account of his drug consumption appeared tailored to explain the large amount found in his possession but was otherwise incredible. Considering the many problems with his testimony and his record for offences of dishonesty I find I'm unable to give his evidence any weight.

[37] Considering the large amount of ketamine found, Constable Lidstone's evidence as to the range of individual daily use of that drug and the cost of such use, the scales, phones, marijuana and bag of powder with scoop otherwise unexplained, the accused's income and personal circumstances, and all of the credible evidence I find that the Crown has proved beyond a reasonable doubt that the circumstances as a whole reasonably bear only one conclusion – the accused possessed the ketamine for the purpose of trafficking as alleged.

Conclusion

[38] I find that the Crown has proved the charge alleged beyond a reasonable doubt. There will be a finding of guilt.

Delivered July 4, 2016:

Justice Joseph F. Kenkel