Ontario Court of Justice

Date: 2016-02-12

Court File No.: Peterborough 14-2071

Between:

HER MAJESTY THE QUEEN

— AND —

KYLE SEARS

Before: Justice S. W. Konyer

Heard on: February 8-9, 2016

Reasons for Judgment released on: February 12, 2016

Counsel:

• Mr. M. DiCarlo — counsel for the Crown
• Mr. D. McFadden — counsel for the accused Kyle Sears

KONYER J.:

Overview of Charges and Pleas

[1] Kyle Sears was tried before me on four charges stemming from his arrest by members of the Peterborough Police Service on October 20, 2014. At the start of his trial he entered guilty pleas to simple possession of oxycontin and cocaine. He pled not guilty to being in possession of money which was proceeds of crime. At the conclusion of the trial, Crown counsel informed me that he is not seeking a conviction on this charge. Mr. Sears is also charged with possession of fentanyl for the purpose of trafficking, and pled guilty to the lesser offence of simple possession. The Crown did not accept his plea, so the real issue before me at this trial is whether the Crown has proven beyond reasonable doubt that Mr. Sears possessed the fentanyl found on his person for the purpose of trafficking.

The Crown's Case: Circumstantial Evidence

[2] The case against Mr. Sears on this issue is circumstantial. There is no direct evidence that he possessed the fentanyl for the purpose of trafficking, but the Crown asks me to draw an inference that this was the case from all of the circumstances, most importantly the quantity of fentanyl found on Mr. Sears. The Crown argues that the only reasonable inference from the sheer quantity and value of the drugs found concealed on Mr. Sears is that he possessed them with the intent to traffic.

Legal Principles: Circumstantial Evidence and Reasonable Doubt

[3] In a circumstantial case, I can convict only if the only reasonable inference available from the proven facts is guilt. If there are other reasonable inferences available from the proven facts, then the Crown will not have proven the guilt of Mr. Sears beyond reasonable doubt. Where the only issue is whether the Crown has proven beyond reasonable doubt that drugs in the possession of an accused person were possessed for the purpose of trafficking, I must acquit if possession for personal use is a reasonably available inference from the totality of the circumstantial evidence: see R. v. Jackson, 2015 ONSC 3519, at para. 28.

[4] In order to determine what inferences are reasonably available in this case, it is necessary to review the facts in some detail.

Facts: The Police Investigation and Arrest

[5] On October 20, 2014, the police conducted surveillance on a pickup truck in which Mr. Sears was the front seat passenger. The truck was followed from Peterborough to the parking lot of an apartment building in Vaughan, where an unknown male was picked up. The truck was driven to a rear corner of the parking lot, where it remained parked for about 10 minutes. The unknown male then exited the truck, which left and began heading back towards Peterborough. The police lost sight of the truck near Oshawa, and regained sight of it sometime later on Highway 115. The truck was then followed back to Peterborough where it was stopped by other officers operating a marked cruiser. Mr. Sears and the driver were both arrested and searched, as was the truck itself. No issue was taken at trial with respect to the validity of the arrest or the search.

Evidence: Items Seized

[6] In the truck, police found a cigarette package on the dashboard in front of the passenger seat which contained $60 cash and a partial fentanyl patch. They also found an envelope containing $400 in cash on the console of the truck. On Mr. Sears, they found a single oxycontin pill and approximately 2 grams of cocaine inside the front pocket of his shorts. During the course of a further search of his person at the police station, they found a plastic bag containing 23 full patches of fentanyl wrapped in aluminum foil, which was concealed in the waistband of his shorts. A container of aluminum foil was found in a compartment on the passenger side door of the pickup. Each of the fentanyl packages weighed 100 micrograms, except for the partially used patch in the cigarette package, which weighed less.

Expert Evidence: Fentanyl Characteristics and Distribution

[7] I heard expert evidence from Cst. Ivan Skin of the Sarnia Police Service, who was qualified as an expert in the consumption, value and distribution of fentanyl. He has extensive experience as an investigator in fentanyl prosecutions, and has taught courses at the Ontario Police College for several years about fentanyl use and distribution. Fentanyl is an extremely powerful opioid which can be lawfully prescribed for severe pain management, but which has also become a highly sought after street drug due to its intoxicating effects. It is distributed by medical professionals in patches, in the form of opaque squares approximately 3 inches in size. These are covered with a backing. When the backing is removed, a gel is exposed. The patches are meant to be affixed to the skin, where the fentanyl contained within the gel is slowly absorbed through the skin into the bloodstream.

Expert Evidence: Street Use and Consumption Methods

[8] Street users who acquire fentanyl patches consume the fentanyl in a number of different ways in order to get a more rapid high. The patches can be chewed, smoked by melting the patch on a piece of foil and inhaling the smoke, or by injection if the melted fentanyl is drawn into a syringe and then injected directly into the bloodstream. Fentanyl is highly addictive. Because it is such a powerful opioid, there is a significant risk of overdosing. Typically, users graduate to fentanyl use from other less powerful opioids such as morphine or oxycontin. Experienced users develop an increased tolerance to fentanyl, and are able to consume higher amounts of the drug. Since it is so highly addictive, users crave more, and the effects of fentanyl withdrawal are extremely unpleasant. A vicious cycle is created, where the more fentanyl one consumes, the more one craves.

Expert Evidence: Street Value and Acquisition

[9] Fentanyl is also very expensive. Because it is not lawfully available except with a prescription, street users must acquire the drug illegally. This can be done by purchasing patches or portions of patches from someone with a valid prescription. Because it has such a high street value, many people shop for doctors who are known to more readily prescribe fentanyl. Again, because of its street value, there is also a lucrative market for stolen fentanyl, and thefts from lawful users, pharmacies and hospitals have become a frequent occurrence.

Expert Evidence: Pricing and User-Dealers

[10] The street value of a full 100 microgram fentanyl patch, according to Cst. Skin, is between $300 and $400. This price is consistent across Ontario. Often, the patches are cut up and sold in quarters or fifths for $100 per strip. Fentanyl is also available in less powerful patches, containing 25, 50 or 75 micrograms per patch, which are also cut up and sold in similar strips. According to Cst. Skin, whose evidence I accept, the street value of the 24 patches found on Mr. Sears would be anywhere between $9,600 to $12,000 if those patches were cut into quarters or fifths and sold for $100 per strip. The officer agreed that someone purchasing fentanyl in bulk would likely receive a discount on the price per patch below the usual price of $300 to $400 per patch.

[11] The officer also testified that it is common for users of this highly addictive drug to become involved as low-level distributors in order to make money or acquire product to satisfy their own addiction. These are known as user-dealers. The Crown theory is that Mr. Sears is one such individual.

Defence Evidence: Mr. Sears' Testimony

[12] Mr. Sears testified in his own defence, and said that he purchased the fentanyl found on his person and in the cigarette package from the male at the Vaughan apartment building for his own personal use. If I believe his evidence, or if it raises a reasonable doubt in my mind when assessed in the context of all of the evidence I heard at trial, then I must find him not guilty of possession for the purpose of trafficking. Even if his evidence is not believed and does not raise a reasonable doubt, I must still consider whether the Crown has proven beyond reasonable doubt that he possessed the fentanyl found for the purpose of trafficking on the basis of the evidence that I do accept.

Defence Evidence: Mr. Sears' Addiction History

[13] Mr. Sears testified that he has a long-standing addiction to opioids. He has used oxycontin for many years, and began using fentanyl in recent years when it became widely available. He developed a tolerance to fentanyl, and began using more and more, up to 3 to 4 full 100 microgram patches per day prior to his arrest. He was employed sporadically, mostly at low-paying menial jobs, and did not have the money to fund his habit. As a result, he acquired fentanyl in a variety of ways. He said that he would occasionally be given a strip, or portion of a patch by other users who had a surplus. He would buy fentanyl when he had money from a job. He would scam friends and acquaintances for money when he could. When he could not get money for fentanyl, he would be forced to go without, and would suffer from withdrawal. If possible, he would use other opioids like oxycontin to alleviate his cravings. He would make sporadic efforts to engage in treatment for his addiction when all else failed and he could not get any drugs. He denied that he ever acted as what Cst. Skin termed a user-dealer, or an addict who supplied fentanyl to other users in exchange for a share of the product. He agreed that the normal street price for fentanyl was consistent with the evidence of Cst. Skin.

Defence Evidence: Financial Impossibility of Funding Habit

[14] Mr. Sears agrees that the street price in Peterborough for a full 100 microgram fentanyl patch was between $300 and $400 at the time of his arrest. Therefore his addiction was costing somewhere between a minimum of $900 (for 3 patches at $300 each) and a maximum of $1,600 (for 4 patches at $400 each) on a daily basis if he purchased his fentanyl on the street. Mr. Sears agrees that he did not have anywhere near the financial means to maintain such a habit.

Defence Evidence: The Loan from Jasmine Tobin

[15] On October 20, 2014, Mr. Sears said that he asked his friend Jasmine Tobin for a loan. He told her that he needed the money for a first and last month rent deposit, because he had been kicked out of his father's residence. This was a plausible story, as Mr. Sears' and his father had a history of conflict arising from Mr. Sears' addiction and associated behaviour. Ms. Tobin, who also testified, explained that she had received a financial settlement for an old injury in July, 2014 of two hundred thousand dollars. This money was simply deposited into her bank account and was not managed in any way. She herself had a severe addiction to fentanyl at the time, and was also consuming 3 to 4 full 100 microgram patches daily. Unlike Mr. Sears and most other addicts, Ms. Tobin had the means to fund her addiction, at least until her settlement money ran out, which took about six months.

[16] In October 2014, however, Ms. Tobin still had plenty of her settlement money remaining. She explained that she would regularly withdraw thousands of dollars to pay for the fentanyl she consumed. Accordingly, she kept an abundance of cash at her residence. On October 20, Mr. Sears, who had been a friend for about six months, showed up at her home and asked for a loan to help him obtain an apartment. She gave him $3,000 cash to obtain the apartment and to pay for expenses until he established himself. Mr. Sears told her that he would soon be starting a construction job and would pay her back. Ms. Tobin knew that he also had a severe fentanyl addiction like her own, and agreed that addicts frequently resort to dishonest behaviour to acquire money to fund their addictions.

[17] Ms. Tobin said that she normally paid $400 per patch for fentanyl. She did not purchase fentanyl directly with dealers herself, but purchased from "friends" who she described as "very habitual users". She denied ever giving fentanyl to Mr. Sears, or receiving fentanyl from him.

Defence Evidence: The Purchase from "Donny"

[18] Mr. Sears testified that he knew of a source of cheap fentanyl in Vaughan. He had previously been given a number for someone known only to him as "D" or "Donny" by his ex-girlfriend. He had purchased fentanyl from "Donny" previously on 3 or 4 occasions for $120 per 100 microgram patch, a significant discount from the street price in Peterborough. Once he had the cash from Ms. Tobin on October 20, Mr. Sears contacted "Donny" to make a further purchase. At "Donny's" price, the $3,000 from Ms. Tobin would be enough to purchase 25 patches.

Defence Evidence: The Trip to Vaughan

[19] Mr. Sears then contacted an acquaintance, Luke Madge, to give him a ride to Vaughan. He knew Mr. Madge's girlfriend "from around", and knew Mr. Madge "somewhat". Mr. Madge agreed to drive him to and from Vaughan. There was no arrangement for financial compensation. Mr. Madge did not know the purpose of the trip according to Mr. Sears, but when he figured it out he apparently expressed an interest in wanting to buy fentanyl himself.

Defence Evidence: The Wrapping and Consumption

[20] Mr. Sears purchased 25 fentanyl patches from "Donny" for the $3,000 he had borrowed from Ms. Tobin. The patches were not contained in any packaging, but did have the backing on them. Mr. Sears wrapped 23 of the 25 patches in the aluminum foil later found in the truck in order to preserve them in good condition until he needed them. The remaining two patches were not wrapped, as Mr. Sears intended to smoke them on the return trip to Peterborough. In fact, he ended up consuming one full patch and part of a second, the remainder of which was found by police in his cigarette pack.

Defence Evidence: Personal Use Claim

[21] Mr. Sears testified that he purchased and possessed the fentanyl from "Donny" for personal use only. He agreed that he could make significant profit on the fentanyl if he sold it on the street in Peterborough, but he explained that this would make no sense because he would only need to use any profits to acquire more fentanyl for his addiction. He denied selling or giving any fentanyl to Mr. Madge, the driver, and he denied the suggestion that he was a user-dealer sent by Ms. Tobin to purchase fentanyl on her behalf in exchange for a share of the product.

Defence Evidence: Other Items Seized

[22] Mr. Sears also explained that the oxycontin pill and cocaine found in his pocket were substances he used as poor substitutes to ward off the effects of fentanyl withdrawal when he was unable to acquire his drug of choice. He was never asked to explain the $60 cash found in the cigarette pack, but he did explain the $400 cash found in an envelope on the console of the truck. Mr. Sears says that he stopped at his mother's apartment in Oshawa on the way home from Vaughan. He had been storing some property at her apartment, and had recently asked her to sell his mattress. She had apparently done so, and Mr. Sears stopped to pick up the money from the sale of the mattress, which was the $400 found in the envelope on the truck console. Mr. Sears' mother testified and confirmed this sequence of events.

Summary of Defence Case

[23] In essence then, Mr. Sears' evidence is that he scammed a friend for $3,000, which he used to buy as much fentanyl as he could at the reduced price he could get from his supplier. He was able to purchase enough fentanyl to last him for about a week at the rate he was using at the time. All of the fentanyl which he purchased that day was for personal use. The money found in the truck is not proceeds of crime, but rather proceeds from the sale of property which he happened to pick up on his way back from making the fentanyl purchase.

Court's Assessment: Suspicious Inferences

[24] One inference available from these facts is that Mr. Sears is not being entirely truthful, that his arrangement with Ms. Tobin was not a loan, but rather her fronting him drug money. One could reasonably infer that the driver of the pickup truck, Mr. Madge, was not offering his time and expenses for nothing, but that he too was being compensated in a similar manner. Both Mr. Sears and Mr. Madge were fentanyl users and the sort of people that Ms. Tobin generally used to acquire her own fentanyl while insulating herself from "real" dealers. One could reasonably infer that he acquired the $400 cash found in the truck from the sale of the missing patch of fentanyl during a stop in Oshawa, rather than from the sale of a mattress by his mother.

Court's Assessment: Strong Suspicions

[25] I strongly suspect that Ms. Tobin often preyed upon the vulnerability of people like Mr. Sears and Mr. Madge to acquire the fentanyl she needed. I suspect she fronted, rather than loaned the $3,000 to Mr. Sears. I suspect that both Mr. Sears and Mr. Madge were promised a share of the fentanyl once it was delivered to Ms. Tobin. I suspect that either Mr. Sears or Mr. Madge sold a patch in Oshawa for $400 on the way back to Peterborough. In short, I strongly suspect that Mr. Sears was in possession of the fentanyl hidden in his cigarettes and shorts for the purpose of delivering most of it to Ms. Tobin, which would constitute trafficking.

Court's Assessment: Credibility Concerns

[26] I have real concerns about the testimony of Mr. Sears and the other defence witnesses. I think it unlikely that Ms. Tobin loaned him $3,000 to turn his life around in circumstances where any reasonable person would appreciate that the prospects for repayment were remote. I think it unlikely that Mr. Madge drove him to Vaughan and back for nothing. I think it unlikely that his mother happened to sell a mattress for $400 and to have the money waiting for him to pick up on his return from Vaughan. I do accept that Mr. Sears was severely addicted to fentanyl at the time. If his mother had $400 waiting for him to pick up, and she was located in between his home in Peterborough and his supplier in Vaughan, it would have made more sense for him to pick up the money on the way to Vaughan, since this amount would have translated into another 4 patches, supply for an additional day of Mr. Sears' habit.

Court's Assessment: Credible Elements

[27] On the other hand, there is a good deal of Mr. Sears' testimony which I do believe. I believe that he had a severe addiction to fentanyl in October 2014. I believe that he consumed large amounts of this highly addictive substance when he could get his hands on it. The uncontradicted evidence before me is that Mr. Sears could have consumed 25 fentanyl patches himself in a week or so. Ms. Tobin's testimony about her own use was consistent on this point. I also believe that Mr. Sears lied, cheated and scammed friends, family and acquaintances in order to get money to feed his addiction. He has a modest criminal record with some convictions for crimes of dishonesty, which is consistent with the lifestyle Mr. Sears described.

Court's Analysis: Reasonable Doubt

[28] At the end of the day, I do not believe Mr. Sears' evidence that he possessed the 24 patches of fentanyl found by police for personal use. At the same time, I cannot reject his explanation as being incapable of belief. Though unlikely, the circumstantial evidence is not inconsistent with his claim that he scammed cash from Ms. Tobin and persuaded Mr. Madge to give him a ride to Vaughan in order to buy as much fentanyl as he could get at the discounted rate he obtained from "Donny". There is no evidence that Mr. Sears attempted to sell any of the fentanyl, or that he possessed a debt list or paraphernalia from which I could draw an inference that he possessed these patches for resale. Unlikely though it may be, the inference that he possessed a week's worth of fentanyl for personal use is an inference that is reasonably available on the circumstantial evidence before me.

Verdict

[29] Accordingly, I have a reasonable doubt that Mr. Sears possessed the fentanyl for the purpose of trafficking, and he is found guilty only of the lesser and included offence of simple possession of fentanyl on count 1. He is found not guilty of possession of proceeds of crime, which is count 2. He is found guilty on counts 3 and 4 for possession of the cocaine and oxycontin found in his pockets.

Released: February 12, 2016

Signed: Justice S. W. Konyer