Court File and Parties
Ontario Court of Justice
Date: July 27, 2017
Court File No.: Newmarket 17-04015
Between:
Her Majesty the Queen
— and —
John Moore & David Abbott
Before: Justice David S. Rose
Heard: July 24 – 26, 2017
Reasons for Judgment Released: July 27, 2017
Counsel
- Mr. J. Arvizu — counsel for the PPSC
- Mr. P. Genua — counsel for the accused John Moore
- Mr. M. McKee — counsel for accused David Abbott
Reasons for Judgment
David S. Rose J.:
Introduction
[1] Mr. Moore and Mr. Abbott are both charged with trafficking fentanyl on March 15, 2016. Mr. Abbott alone is charged with possession of fentanyl for the purpose of trafficking on the same day. In submissions, Mr. Arvizu fairly conceded that the Crown had not proven the trafficking count against Mr. Abbott and invited a dismissal of that charge. I did so. These are my reasons for judgment on the remaining counts.
[2] The trial evidence incorporates evidence from the Charter Application relating to events which transpired after Mr. Abbott's arrest on March 15, 2016. Those facts are outlined in the Charter Application reasons released on July 20, 2017. I would summarize that evidence to be:
i) On March 15, 2016 Mr. David Abbott was seen to arrive at 263 Pharmacy Avenue in a Black Pontiac Grand Am at around 2:43 pm and enter it. 263 Pharmacy is a high rise apartment building. He left the building minutes later and was arrested getting into the Pontiac which was parked outside the building. Ms. Candace Abbott was the driver. The police surveillance only had Mr. Abbott exiting the Pontiac, entering the building and going back to the car.
ii) Mr. Abbott was arrested for possession of a substance either when he boarded the car, or shortly thereafter. On arrest he had 14.98 grams, or one-half ounce, of a powdered substance in his jacket. He also had a cell phone with him.
iii) Candace Abbott was the driver of the Pontiac which carried Mr. Abbott to 263 Pharmacy Avenue and was arrested in the Pontiac along with Mr. Abbott. There is no police evidence that Ms. Abbott ever entered the building on March 15, 2016.
iv) About 3pm, only minutes after Mr. Abbott's arrest Mr. Moore was seen leaving 263 Pharmacy Avenue with a dog. He was arrested by the police after identifying himself as John Moore. Two police officers said that Mr. Moore said he went by the name Sweets, although their evidence differed on precisely how he did that.
v) Mr. Moore had a key to an apartment unit on him. It was unit 1415 in 263 Pharmacy. He asked the police to put his dog in the apartment after he was arrested. They did so.
vi) Mr. Moore told the police that they could search his apartment because they would find nothing in it.
vii) The police entered apartment 1415 at 263 Pharmacy Avenue after receiving a search warrant after 9pm the night Mr. Moore was arrested.
[3] The half-ounce of powder tested as a mixture of fentanyl and caffeine in the amount of 99:1. In other words the half-ounce of powder was 1% fentanyl. The black LG 3 cell phone on Mr. Abbott's person when arrested was seized and the data extracted.
[4] In the trial proper I heard evidence that Cst. Silvester was posted outside the door of unit 1415 sometime between 3pm and 4pm on March 15. He waited there until the police arrived to execute the search warrant around 10pm. In his evidence no one entered the unit in that time.
[5] The police entered apartment 1415 at 10:20pm with the key found on Mr. Moore. They seized several items. The list includes:
i) packaging material;
ii) $2,636.00 in money;
iii) a digital scale;
iv) two plastic bags which were tested and found to have residue with a mixture of fentanyl and caffeine;
v) a cell phone contract for the number 647 767-7474;
vi) a Canada Post document with the name John Moore;
vii) a black cell phone and a letter from Canada Revenue Agency addressed to John Moore at 1415 - 263 Pharmacy Avenue.
[6] Both of the seized cell phones, ie the one from Mr. Abbott and the one found in the apartment, were analyzed. Extraction reports for both were filed in trial.
[7] The digital scale had residue on it but there was no evidence about the nature of that residue. The plastic bags with the fentanyl residue were found on top of a garbage can.
[8] Cst. Wyatt testified that the term "UTC" in the extraction reports referred to universal time. Eastern standard time is UTC minus 4 hours. In other words, if the UTC is 6pm in the extraction report, then the time in Toronto is 2pm. Wyatt also testified at the trial that when he spoke with Mr. Moore after his arrest he identified himself as Sweets. When Cst. Wyatt was searching apartment 1415 he located a cell phone contract in the name of James Bond in a dresser. It had a phone number of 647 767 7474. Mr. Genua admitted, on behalf of Mr. Moore, that that phone number had been found on Candace Abbott's phone when she was arrested on January 29, 2016 and that her phone had the name 'Sweets' as a contact.
[9] The extraction report from the LG3 phone had the following sequence of text messages on March 15, 2016:
To 647 709 0136 "Yo" 1:45 pm u there bro please
1:55 where are you bro
2:04 sweets u there
From 647 709 0136 2:24 Yaya
Hey what's up
To 647 709 0136 2:25 I need half o right now
From 647 709 0136 2:25 K come
To 647 709 0136 2:26 has 2 b fast
From 647 709 0136 2:27 Ya come
2:30 Where are u
To 647 709 0136 2:33 Im here
From 647 709 0136 2:34 Go to 11left
To 647 709 0136 2:41 Im at 11left
2:46 I goto go please hurrey
From 647 709 0136 2:53 One mim
K
[10] The text messages from the Sky mobile phone found in apartment 1415 includes, by way of sampling, references to Sweet:
From 647 627 4254 F Ruban January 31 2016 "Can I stop by for a 40 sweet" & "I'm here sweet"
From 604 3004962 F Peny January 31 2016 Hey Sweetie are you coming down
From 647 627 4254 F Ruban February 5, 2016 Sweet you have? Can I check you?
[11] In addition there are various messages which speak to being on "15" (message 477), "12 left" (message 552, 589, 604), "11 left" (message 334), "K7 right" (message 387), or "which floor" (message 339).
[12] The Crown called two expert witnesses. The first was Det. Cst. Selwood. He was qualified as an expert in the sale and distribution of fentanyl powder, methods of distribution, sale, packaging, price, language and methods of use for traffickers and users. Det. Selwood initially opined that a single dose of powdered fentanyl would be .01g of fentanyl in one dose, and that caffeine is a common cutting agent. Fentanyl is the most powerful of opioids, and ingesting it requires a previous tolerance to opioids. Initially he said that if the purity of the substance was 1% then 14.98 grams of fentanyl powder would yield 1500 doses, and was valued at $59,600. In cross-examination he varied that opinion to say that he did not know initially that the seizure from Mr. Abbott tested at 1% purity, and that the value was one percent of his initial figure, namely $596.00. He also moved from his initial view that 14.98 g of 1% powder fentanyl would be 1500 doses and testified by the end that such an amount would yield 15 doses. That is because one gram of the powder would contain .01g of fentanyl, which is a single dosage. His written report confirms this at page 3.
[13] The second Crown expert witness was Dr. Karen Woodall, a forensic toxicologist. I qualified her as an expert in the use, potency and toxicity of powdered fentanyl. Dr. Woodall was helpful in many respects, one of which was her candid limitation of her expertise. Fentanyl powder she explained is a completely illicit substance. There is no available prescription for it. Fentanyl patches, on the other hand, can be prescribed by a physician. For that reason she could testify about strengths of fentanyl patches, and what is available from a pharmacy. The strongest fentanyl patch is 17mg, and she is aware that such a dosage can be taken in 2 ie. 2 x17mg over a 3 day period. Fentanyl powder, on the other hand, can be ingested orally, by injection or snorted. Dr. Woodall's understanding about fentanyl abuse comes from death investigations. She was clear that she isn't a pain specialist and can't give an opinion about dosage amounts of fentanyl in the powder form, and prescription dosages cannot be translated into illicit dosages. Her opinion was that a dose is .1mg which is 1/1000 of a gram. This would be smaller than the dosage put into evidence by Det. Selwood by a factor of 10. Ultimately Dr. Woodall testified that 15g of 1% fentanyl seemed like a significant amount, but she drew the line at saying what a single dosage would be. She said that her expertise did not go that far.
[14] Mr. Moore did not call a defence. Mr. Abbott testified in his own defence.
[15] David Abbott is 57 years old. In March of 2016 he lived on Danforth Avenue in Toronto. He works in construction on a seasonal basis. He has been employed with a roofing company in Toronto for the last 5 years. He has never been on social assistance. Mr. Abbott testified to a substance abuse problem which has him now on the methadone program. This is part of his bail conditions. Mr. Abbott admitted to being addicted to opiates, and is now down to about 20mg of methadone per day from a high of 80mg per day. Mr. Abbott testified that he started using opiates 10 years ago because of a back injury. He had a doctor who prescribed opiates and then another one who retired. After his retirement he could not get another physician to prescribe opiates because, in his evidence, doctors don't want to give out narcotics. After he couldn't get a prescribed supply of pain killers he started using OxyContin and then fentanyl.
[16] On the day of his arrest Mr. Abbott was at 263 Pharmacy Avenue buying drugs. He was sick from withdrawal and bought the powder for $500.00. His habit was running at $100 per day, and the purchase was a week's supply and so he would save money, but he denied that it was for re-sale or trafficking.
[17] In cross-examination Mr. Abbott admitted to a criminal record that went back to 1992. He couldn't remember all of it, but agreed that he had a conviction in 1991 for assault and failing to comply, and 1992 for false pretences.
[18] He also admitted that his work history was patchy, with occasional stints doing drywall off and on. On the day of his arrest he was sick from withdrawal, and went to 263 Pharmacy to buy drugs for personal use. He'd been there before. The plan was to get the supply and go back to Georgina where his family was living. At that point he didn't have a doctor.
[19] Mr. Abbott testified that he had purchased drugs off the street perhaps 5 – 6 times. When he uses fentanyl he puts it in a drink, be it coffee juice or water. When he purchased fentanyl he doesn't really know what he is getting. He went on what he was told he was getting. The largest amount he got was a half-ounce.
[20] Mr. Abbott testified about where he usually bought drugs, and told me about buying fentanyl at various places. He testified about one plaza in particular, at Brimley and Eglinton in Toronto. He would take the bus or subway to buy his drugs. Dealers, he said, hang out in parking lots and he can tell who they are. And dealers can tell if a person is an addict going through withdrawal. He described the dealers as being normal, random guys of any height. The people who drove him there when he did get a drive were lots of different guys. The one person he described was Steve, who is now deceased. Steve was short, with long hair and skinny. He wasn't sure who else drove him other than his daughter Candace.
[21] Mr. Abbott testified that he had been to 263 Pharmacy Avenue only once before March 15. Someone had given him a phone number and he went to that building to buy fentanyl. They gave him a phone number and he knew that someone would come out to see him with drugs. The nick names he was given included bullet and pac man. Sweets on the other hand, was not a nick name of a person, but rather the name of fentanyl. On the day of his arrest he was texting someone named YO, but he wasn't sure that he was the one who was sending texts 2 – 18. They might have been from his daughter, but he couldn't remember. He wasn't sure. He admitted that the text messages on his phone were regarding the drug deal that day, but said that his daughter Candace was with him and that the phone stayed in the car. She was the one who texted the dealer. He admitted to going to the 11th floor to buy the drugs. The first time he bought drugs in that building it was in the lobby.
[22] Mr. Abbott testified that the text message "11 left" means the 11th floor of the apartment building. He agreed that messages 2 – 18 where his attempts to set up the purchase of fentanyl. He admitted to buying the half ounce of fentanyl powder for $500 from a man on the 11th floor. In cross-examination he said for the first time that his daughter was with him when he bought the drugs on the 11th floor. When it was put to him that he had his phone with him when he went to the 11th floor he said that he wasn't sure. He denied that it was Mr. Moore who sold him the drugs. Mr. Abbott testified that the man who sold him drugs on March 15 was black with long hair to the middle of his back wearing a t-shirt and jeans. He was muscular. He did not see what door he came out of.
Issues
[23] In submissions the issues were narrowed to two things: 1) Was Mr. Abbott's possession of the 15 grams of powdered fentanyl for the purpose of trafficking; and 2) Was it Mr. Moore who sold the fentanyl to Mr. Abbott on March 15, 2016.
[24] As with every criminal case, the standard is proof beyond a reasonable doubt. Mr. Genua properly reminded me of R. v. Lifchus, [1997] 3 S.C.R. 320, in submissions. The trafficking charge against Mr. Moore rests on circumstantial evidence. There is no dispute about that as between the Crown and Mr. Moore. When the evidence is circumstantial the standard of proof applies to the final evaluation of evidence, and not piecemeal to individual items of evidence, see R. v. Wu, 2017 ONCA 60. No other legal issues were identified in submissions.
Has the Crown Proven that Mr. Abbott's Possession of Fentanyl was for the Purpose of Trafficking?
[25] This issue turns to some extent on the credibility of Mr. Abbott. He testified that he purchased the powder for personal use, not for trafficking. He testified with some detail about how he takes methadone and his struggles to deal with his opioid habit.
[26] I would identify the following frailties in Mr. Abbott's evidence:
i) He has a criminal record for dishonesty and failing to abide by court orders, albeit a dated one. I would weight this at the minimal end.
ii) His evidence about being currently employed, even if seasonally in construction doing roofing and drywall work occasionally is at odds with being an opioid addict. His stated work is physically demanding, and he wanted me to believe that in the winter of 2016 he was both an opioid addict suffering from withdrawal sickness and still available to do heavy physical labour. I mention this because Mr. Moore said he wasn't on social assistance as I might expect for someone with a debilitating addiction. I don't believe that he was supporting himself from construction work in March 2016. This too is of minimal importance.
iii) Mr. Abbott struggled while attempting to explain text messages 2 – 18. He said that Sweets was not a person but a drug. That flies in the face of the messages themselves. The March 15 drug deal was initiated with three text messages in the span of only 19 minutes. "u there bro please", then "where are you bro please", and then notably "sweets u there". It is an overwhelming inference from this sequence that "sweets" is the "bro" Mr. Abbott was looking for. To testify that sweets is not a person is nonsensical. This is a significant frailty.
iv) Mr. Abbott tried to distance himself in evidence from the text messages themselves by saying that it may have been Candace who sent text messages 2- 18. He wasn't sure. This makes no sense inasmuch as it was Mr. Abbott who was the buyer with the money on his own evidence, and yet it was Candace who was setting up the deal. The text messages are in the first person, "I need a half o right now" and "im here" etc. That is consistent with him being the buyer. When Mr. Abbott realized the contradiction that the messages are consistent with him being the buyer who was arrested with the phone and the drugs, he introduced a new theory, that Candace was with him in the building and that the phone wasn't in fact seized from him as the evidence showed. There was no evidence from him about when he gave the phone to Candace, or really why he would have the money and receive the drugs but not have the phone used to set up the deal. His evidence on this point is cast against his admission that he himself had to go to the 11th floor, so he needed to be in contact with the seller while he was somewhere in the building. I find that his evidence that it may have been Candace sending the texts was a lie. It significantly undermines his credibility.
v) Mr. Abbott could provide virtually no description of the dealers who sold him drugs at the plaza at Eglinton and Brimley but had rather more of a description of the person who sold him drugs on March 15, 2016. He could only be specific about the last person who sold him fentanyl, and no others. I would give this frailty some minimal weight.
[27] Aside from Mr. Abbott's credibility this is a case where the reach of W.D. principles (R. v. W.D., [1991] 1 S.C.R. 742) extends beyond Mr. Abbott's testimony into the Crown's case. That is because I find some conflict in the Crown expert evidence about fentanyl. Det. Selwood's opinion was that the 15 gram seizure from Mr. Abbott was both 1500 doses, and could also be only 15. The first would be such a large amount as to be evidence of trafficking, but the second would be consistent with several days' supply for an addict. Conflicts in the Crown evidence attract W.D. analysis, see R. v. D. (B.), 2011 ONCA 51 at par. 40, as summarized by Paciocco JA in his February 2017 paper "Doubt about Doubt: Coping with R. v. W.D. and Credibility Assessments," 22 Can. Crim. L.Rev. 31.
[28] Given the frailties of his evidence I would accept only Mr. Abbott's admission that he is an opioid addict and that he sent the text messages on his phone to set up the purchase. His evidence about the identity of the dealer is wholly incredible. Aside from his admission of being an addict, and buying $500 worth of fentanyl the day of his arrest, I would place very little weight on anything he testified to which is not independently confirmed. When the evidence of Mr. Abbott, his text messages and the rest of the Crown evidence, including the experts is considered as a whole I find that there is no evidence about trafficking against him beyond the amount of the seizure. No debt lists, cash, scales, repackaging material or the like was found which can be tied to Mr. Abbott. The expert evidence casts real doubt that the 15 gram seizure was for trafficking. Put together, I accept that Mr. Abbott was an opioid addict in March of 2016 and purchased the drugs after setting up a deal with Sweets. I have a doubt about whether the drugs he purchased were for trafficking, and I find him not guilty of possession of fentanyl for the purpose of trafficking but guilty of the charge of simple possession of fentanyl. I considered whether the March 15 deal was initiated by text message 19 from boss brian saying "can u call plsss!!!!" only 7 minutes before the message to Sweets "u there bro please", but there is no contextual evidence on the point and it would be speculative to ascribe text 19 to messages 18 – 2.
Issue 2: The Trafficking Charge Against Mr. Moore
[29] The evidence that Mr. Moore was tied to apartment 1415 comes from the fact that he had the key to the unit when he was arrested, and was coming out of 263 Pharmacy at that time. He asked that his dog be put in that apartment. There is no evidence that any other person entered or left the unit. Documents found inside the apartment bear his name. There is no evidence in this trial of anyone else other than "James Bond" connected to apartment 1415. James Bond was the name on a cell phone contract found in the apartment. There are real individuals with that name, but it is also the name of one of the most famous fictional characters in history. That contract had an address of 526 Yonge Street, a home phone number of 999-999-9999 and an email address of noemail@wind.ca. Given the different address and generic quality to the contract I would place no weight on the James Bond contract as evidence of someone else occupying apartment 1415. Accordingly I find that Mr. Moore occupied apartment 1415 at 263 Pharmacy.
[30] The evidence that Mr. Moore is Sweets comes from his admission at arrest and the text messages on the phone found in apartment 1415 which had text messages going to Sweets. There is no contradictory evidence on the point, ie. that Sweets was someone else. I find that Mr. Moore went by the name of Sweets on March 15, 2016 and in the weeks previous to that time.
[31] Fentanyl residue was found in apartment 1415, from which I find that Mr. Moore was in possession of fentanyl at some point prior to his arrest. There is no evidence about precisely when the bags with fentanyl residue were put in the garbage, but the evidence that they were at the top of the garbage, and not the bottom suggests that it was fairly recent. This is forensic evidence tying him to the charge. The cash found in the apartment is further evidence which is consistent with the receipt of cash from Mr. Abbott after he bought the 14.98 gram package. The money seized was more than $500.00, from which I find that an amount of money at least as large as the transaction price was found in Mr. Moore's apartment.
[32] I have already rejected Mr. Abbott's evidence about the dealer on March 15, 2016 being a man with long black hair. I do not accept his denial that Mr. Moore was the dealer. This is a circumstantial case, and there is only one possible conclusion which can be made from all of the evidence, which is that Mr. Moore was the person named Sweets who sold Mr. Abbott the 14.98 gram package of powder on March 15, 2016 three floors below his apartment immediately prior to Mr. Abbott's arrest and then Mr. Moore's arrest. The Crown has proven the trafficking in fentanyl charge against Mr. Moore beyond a reasonable doubt and I have no difficulty whatsoever in finding Mr. Moore guilty of the Count 1 on the Information.
Released: July 27, 2017
Signed: Justice David S. Rose