Ontario Court of Justice
Date: 2017-02-28 Court File No.: Newmarket 16-00896
Between:
Her Majesty the Queen
— and —
Duy Andy Nguyen
Before: Justice Joseph F. Kenkel
Judgment
Heard: February 27, 28, 2017 Delivered: February 28, 2017
Counsel:
- Mr. A. Nadi — counsel for the Crown
- Ms. J. Hue — counsel for the defendant
KENKEL J.:
Introduction
[1] Police responded to a call from a cab driver about an intoxicated passenger. They found the accused laughing and wandering near the road without any shoes on in early February. Police arrested the accused for an unrelated offence involving an alleged dispute with the cab driver. A search of the accused incident to arrest showed the accused was in possession of 111 grams of Ketamine.
[2] The fact of possession and the nature of the substance are conceded. The sole issue at trial is whether the Crown has proved that the accused possessed the Ketamine for the purpose of trafficking as alleged.
[3] The Crown's case is based on the weight of the Ketamine found with expert evidence showing that the amount is consistent with trafficking. The defence submits that the absence of other indicia of trafficking beyond weight leaves open the reasonable possibility that the Ketamine was for personal use only.
The Evidence
[4] The circumstantial evidence shows the accused was a user of Ketamine, in a significant amount on that occasion. His condition when he was found showed substantial intoxication. There was a white powder residue around his nose. He was taken to hospital by the police as a result of his condition.
[5] Other than the amount of the drug there were no other indicia of trafficking. There were no scales, large sums of money, no cellphone, debt list, extra packaging. He was not observed to be involved in any prior drug transaction and there's no evidence he was coming or going to a place linked to drug trafficking. The drugs were in six Ziploc bags, with five in weights that could relate to sales, but both a seller and a purchaser might have possession of Ketamine in that form. There was no extra packaging that would indicate possible further distribution.
[6] The amount of Ketamine is significant. The officer who testified as a drug expert testified that Ketamine is typically sold in small amounts ranging from 0.5 grams to 3.5 grams. The 3.5 gram amount would represent a maximum daily consumption for a typical regular user. The total amount of Ketamine in this case would cost $3315 at the highest possible rate if sold by the ounce. That estimate was based on a one-time high point in the past. It would be $1400 at the lower end of the price scale which would be closer to the typical price point. It would cost a maximum of $5500 if purchased by the gram. This amount would represent more than a month's supply even for a regular user. The drug analysis confirmed the presence of Ketamine but did not state the purity. The officer testified that this amount of Ketamine in this context was consistent with trafficking and inconsistent with typical personal use even at the heaviest level.
[7] In cross-examination the expert was asked if it was possible that someone could purchase Ketamine at the multi-ounce level for personal consumption. He didn't think that was the case here but he agreed it was possible. Later he was asked twice whether he thought it was possible that the Ketamine in this case was for personal use and both times he agreed it was possible.
Analysis
[8] The Crown's expert Constable Lidstone included in his report an acknowledgment that he understood the duty of an expert witness to be fair, objective and non-partisan. His testimony was detailed, well explained and reflected his independence from the case. I find he was a credible witness and I accept his testimony.
[9] The Crown submits that on the whole of the evidence no reasonable doubt remains. While the expert witness allowed for the possibility that the Ketamine in this case might have been possessed for personal use, the Crown submits that's not a reasonable possibility considering all of the evidence and in any event the court is not bound by the expert's conclusion on the ultimate issue.
[10] The defence submits that the purity of the Ketamine is unknown so it's possible this drug was of lesser quality such that the amount would provide far fewer effective doses than is typical. The defence notes that the Crown's case rests on the fact of the amount and the officer's expert testimony. That expert testimony includes the officer's agreement that it's possible that this amount could be purchased and possessed for personal use.
[11] When assessing circumstantial evidence, the court must include consideration of plausible theories and reasonable explanations which are inconsistent with guilt – R v. Villaroman, 2016 SCC 33, at para. 37. To support a conviction, the circumstantial evidence must be such that it excludes any other reasonable alternative. The Crown need not negative mere speculation, but reasonable possibilities based on logic and experience must be considered – Villaroman at paras. 35-43.
[12] The defence submission regarding lack of evidence of purity in my view falls into the category of speculation. There's nothing in the evidence to support the suggestion that the purity of this drug was so far off typical street standards that it would lead to a substantially different rate of consumption. That's unlikely generally, and even less likely here given the apparent ounce-level purchase.
[13] The officer's response to the possibility of personal possession was a factual one based on his experience and expertise. His opinion on the ultimate issue was to the contrary. He concluded that the accused possessed the Ketamine for the purpose of trafficking, but when asked whether personal possession at this higher amount was possible he fairly answered yes based on his experience in drug investigations at every level and Ketamine investigations specifically.
[14] The expert's evidence shows there is a significant financial advantage to purchasing Ketamine at the ounce level as opposed to the more typical single dose or single day level. Presumably there is also lesser risk involved in one larger transaction as compared to numerous smaller transactions.
[15] The Crown submits that the officer's acknowledgement that personal use was possible was along the lines of "anything is possible" and does not show a reasonable possibility in the circumstances of this case. That wasn't the context of his answers. The subject was raised three times and not once did he attach such a caveat. His answers were based on logic and his experience. If the Crown was concerned about ambiguity on this point then the matter should have been addressed in re-examination.
[16] Considering all of the evidence, I find the Crown has proved it's likely that the accused possessed the Ketamine for the purpose of trafficking as alleged but I agree with the defence that it's also reasonably possible that he possessed it for his personal use.
Conclusion
[17] A reasonable doubt remains. The accused is found not guilty of possession for the purpose of trafficking but guilty of the included offence of possession of a controlled substance.
Released: February 28, 2017
Justice Joseph F. Kenkel