Court Information

Court: Ontario Court of Justice

Date: October 18, 2017

Court File No.: Oshawa

Parties

Between:

Her Majesty the Queen

— And —

Bryan Lemieux

Judicial Officer and Counsel

Before: Justice B.M. Green

Heard on: August 25th and September 14th, 2017

Reasons for Judgment released on: October 18th, 2017

Counsel:

• Mr. G. Raven, counsel for the Federal Crown
• Mr. T. Smith, counsel for the Defendant Bryan Lemieux

A. Introduction

[1] Mr. Lemieux plead not guilty to three counts of trafficking in heroin and three counts of trafficking in fentanyl as a result of three separate drug transactions that took place in August of 2016 over a period of a couple of weeks. At the outset of the trial, the Crown advised that he will not be proceeding with any of the other Counts on the Information and they will all be withdrawn. Counsel for Mr. Lemieux advised that he will be conceding that his client is guilty of trafficking in heroin.

[2] The facts in this case are not in significant dispute. Mr. Lemieux acted as a middle man who unwittingly arranged for an undercover Officer to purchase heroin from a drug supplier. He admits that he was involved in the sale of heroin and he is guilty of trafficking in heroin but he disputes that he was knowingly or intentionally trafficking in fentanyl which is the central issue in this trial.

[3] There was one substance that was purchased during each of the three transactions that were set up with Mr. Lemieux's assistance. The substance was tested and contained two different controlled substances: heroin and fentanyl. The Federal Crown urges the Court to find that Mr. Lemieux was wilfully blind to the contents of the drugs that he was involved in selling and he should be convicted of trafficking in both controlled substances. Counsel for Mr. Lemieux submits that his client was not involved in the production of the drugs nor was he aware of the additives in the heroin and, as a result, he should only be found guilty of trafficking in drugs that he believed were heroin. Alternatively, he argues that there is no evidence of the quantity of the fentanyl in the substance or how it was tested so his client should be acquitted on the basis of a de minimus argument.

[4] While trafficking in heroin is a very serious crime, communities across Canada have been plagued with overdoses and deaths associated with the ingestion of fentanyl. As a Provincial Court Judge recently commented in R. v. Frazer, 2017 ABPC 116:

Fentanyl is a relatively new street drug. Trafficking in fentanyl is almost the equivalent of putting multiple bullets in the chambers of a revolver and playing Russian roulette. It is the most efficient killer of drug users on the market today. Its danger to users is greater than cocaine and heroin. The courts have historically treated sentencing in relation to illicit substances as an analysis of a continuum of dangerousness; the more dangerous or harmful the substance, the higher the sentence that could be expected to be imposed. Case in point, the law has long held that heroin was more dangerous than cocaine and merited a higher starting point. More and more cases are coming in relation to fentanyl sentencing and, based on the evidence presented, have determined that fentanyl is even more dangerous than heroin and accordingly the starting point might be higher than the starting point for heroin. The Court of Appeal has yet to set a starting point for fentanyl.

[5] Similarly, in R. v. Medeiros-Sousa, [2014] O.J. No. 4515 (Ont.C.J.), Justice Nelson had the benefit of expert evidence about the potency and associated potential for lethality of fentanyl and noted that:

Dr. Karen Woodall, a forensic toxicologist at the Centre of Forensic Sciences, testified about the nature of the drugs involved in Ms. Medeiros-Sousa's offences. Fentanyl is an opioid and acts like morphine to provide pain relief. When in patch form, fentanyl is designed to slowly release in order to control pain over a number of days. However, fentanyl patches can be abused by chewing, melting or otherwise consuming the contents of the patch so as to receive the immediate effect of the drug contained in the patch. Fentanyl is 10 to 20 times stronger than heroin. Misuse of even one patch of fentanyl can cause death. Dr. Woodall testified that there has been an increase of reported deaths from fentanyl; indeed, the reported deaths from fentanyl now outnumber deaths from heroin.

[6] This public health crisis across Canada is exacerbated by the fact that fentanyl can be added to other illicit drugs and users are unknowingly ingesting a potentially lethal cocktail of narcotics. In R. v. Johnson, [2017] B.C.J. No. 1712, Justice Gardner explained:

I have also been referred to the Court of Appeal decision in R. v. Smith, delivered March 10th of 2017 by our Court of Appeal and in that case the harmful effects of street drugs is also discussed. Reading from the reasons of Mr. Justice Harris at para. 48, he states:

I agree that it would helpful for this Court to identify a sentencing range for street-level dealing in fentanyl as a result of the public health crisis caused by unintentional overdosing by people who use drugs, particularly since typically they do not know that the drugs they are consuming contain fentanyl. As my colleague [Madam Justice Newbury] has clearly explained, fentanyl is a scourge. It poses intolerable risks of accidental overdosing because it is so much more powerful than morphine. Illegally manufactured fentanyl can be particularly and unpredictably potent, even tiny amounts of fentanyl mixed into other drugs such as cocaine or heroin may be fatal; often street drugs have fentanyl cut into them, and it is practically impossible for drug users to recognize whether the drugs they buy contain fentanyl. I endorse the sentencing range my colleague proposes in her judgment... namely, a range beginning at 18 months' imprisonment that might exceed 36 months.

At paragraph 49, Mr. Justice Harris continued with his findings:

In my opinion, these facts warrant recognizing a sentencing range for street-level dealing in fentanyl which is materially higher than the sentencing range applicable to other dangerous drugs such as heroin. The range for street-level dealing in those drugs seems to start in British Columbia at six-months' imprisonment. As matters stand today, other dangerous drugs do not kill as frequently, accidentally, or as unpredictably as fentanyl, but the risks posed by those drugs should not be minimized even by comparison with fentanyl. Heroin, crystal meth and cocaine can have devastating consequences. They may not kill as often as fentanyl, but very large numbers of accidental deaths are associated with their consumption (indeed the majority of accidental overdose fatalities involve a mixture of illicit drugs) and they destroy lives and wreak social havoc. The existing sentencing range for them is intended to reflect, amongst others, the sentencing principles of deterrence and denunciation. Recognizing a different and markedly higher sentencing range for street-level dealing in fentanyl turns on the enhanced risks associated with that activity and the individual responsibility of dealers given those risks and public knowledge of them.

[7] Considering the rising and alarming numbers of fentanyl related fatalities, Courts across Canada are being urged to hold individuals who traffic in this dangerous substance accountable and to mete out denunciatory and deterrent sentences to discourage the sale of this potentially deadly drug. Similarly, this Court is being asked to find that individuals who intentionally traffic in drugs that are mixed with fentanyl should be held accountable for trafficking in both substances.

[8] The issues to be decided are whether the Crown has presented sufficient evidence of the mental element required to prove beyond a reasonable doubt that Mr. Lemieux is guilty of separate counts of trafficking in heroin and fentanyl or, alternatively, whether the lack of any evidence of the quantity of fentanyl that was in the heroin should result in an acquittal.

B. Evidence

[9] The Crown called one witness, Detective Constable (DC) Smith, to provide the narrative of events leading up to Mr. Lemieux's arrest. Other than some issues with respect to whether the Officer could recall the specific wording of some of his exchanges with Mr. Lemieux, his evidence was not challenged in any significant respect.

[10] DC Smith was working in an undercover capacity with Durham Regional Police's drug enforcement unit. On August 2nd, 2016, he was made aware that their unit was targeting Mr. Pankaj Bedi for an investigation into allegations that he was actively trafficking in heroin. While Mr. Bedi was their primary target, Mr. Lemieux was known to associate with Mr. Bedi so he was a secondary target of their investigation.

[11] DC Smith's plan was simple. They knew the vehicle that Mr. Bedi drove and where Mr. Lemieux resided so they set up surveillance near Mr. Lemieux's residence. On August 3rd, they observed Mr. Bedi's car parking at Mr. Lemieux's residence. Both men were seen exiting the vehicle and DC Smith approached them. He called out Mr. Lemieux's name and engaged him in a pleasant casual conversation about a mutual acquaintance that he claimed they shared. He also told Mr. Lemieux that he thought that he owed him money so he offered to buy him drinks to make up for it. Although Mr. Lemieux was initially reluctant, it was not hard to convince him of this fictitious background story and the two men exchanged contact information. While DC Smith was talking to Mr. Lemieux, Mr. Bedi had turned his back and spoke on his cell phone showing no interest in engaging him in a conversation.

[12] DC Smith called the phone number that Mr. Lemieux had given him and confirmed it was actually his number. He spoke with Mr. Lemieux's girlfriend, Lisa, and Mr. Lemieux. He asked if they could meet up later that day but Mr. Lemieux said he was busy. The two men had contact the following day on August 4th and they agreed to meet up at a local bar with DC Smith and his girlfriend. DC Smith was working with another undercover female officer, DC Snow, who posed as his heroin addicted girlfriend. DC Smith, DC Snow and Mr. Lemieux met up at a bar that night. They engaged in friendly small talk but then DC Smith and DC Snow pretended to argue about her substance abuse. She indicated that she wanted to leave to go and buy some heroin and he tried to stop her because he was not comfortable with her buying heroin from unreliable dealers that may add other drugs like fentanyl.

[13] DC Smith handed DC Snow $100, told her not to go and see "those people" and she left the bar with the money. After she left, he began complaining to Mr. Lemieux that he was upset because she was using heroin and he was concerned that it may be laced with fentanyl. He was worried that this additive could kill her and he didn't want her getting that fentanyl "shit". He stated that, considering the way things were on the street and that he didn't know who she was buying her drugs from, he was concerned for her safety. The two men continued to engage in small talk. Eventually, they went outside for Mr. Lemieux to smoke and they began discussing DC Smith's girlfriend's heroin use again. Mr. Lemieux said that he could get heroin but his supplier or dealer did not come to Oshawa that late and he never met with new people because he was paranoid.

[14] Mr. Lemieux advised that he could meet with the supplier between 3 and 5 p.m. and get heroin from him. He told DC Smith the price for varying quantities of heroin and DC Smith said that he wanted to purchase 0.6 gram for $140 which he advised this Court is a standard purchase price for this quantity of heroin.

[15] DC Smith was not taking notes of the conversation with Mr. Lemieux as it unfolded but he wrote down the gist of the conversation to the best of his ability later on that evening. He recalled that he specifically asked Mr. Lemieux if the heroin was cut with fentanyl. Mr. Lemieux replied something like he can't be too sure and that DC Smith should "wean" her on it just to be safer. They discussed the colour of the heroin and Mr. Lemieux assured him that it was a really good brown color. He advised that he would call his supplier right away but the arrangements for the sale could not take place that night. The two men parted company.

[16] Mr. Lemieux and DC Smith continued to communicate via text and in person and set up meetings for the purchase of more heroin. Throughout all of their communications and meetings, the only time that they discussed or referred to the possibility of fentanyl being in the heroin was during the initial conversation outside of the bar. Other than this brief exchange about whether the heroin DC Smith was purchasing was cut with fentanyl, Mr. Lemieux discussed and negotiated the purchase of what he professed to be good quality heroin.

[17] DC Smith built up a rapport with Mr. Lemieux and his girlfriend, Lisa. On August 17th, DC Smith contacted Mr. Lemieux and asked if he wanted to get together again. DC Smith said that he was trying to stay away from his girlfriend that night so Mr. Lemieux asked if that meant that he didn't need any "shit" which DC Smith believed meant heroin. DC Smith asked him if he could get heroin that night and he replied that he could get some. Mr. Lemieux asked DC Smith if he could borrow a few bucks. DC Smith agreed to lend him $60 to $80. They discussed the price and quantity of the heroin that DC Smith was going to purchase from Mr. Lemieux's supplier and they made arrangements to meet at Mr. Lemieux's apartment.

[18] Mr. Lemieux advised DC Smith that he did not want the supplier to see him during these transactions so he asked DC Smith to wait in another room in his apartment while he met with the supplier. DC Smith gave Mr. Lemieux the money he had asked to borrow and money for the supplier. While they were waiting, DC Smith sat in the living room with Mr. Lemieux and his girlfriend Lisa talking primarily about their use of heroin and his situation with the supplier. Mr. Lemieux received a cell phone call and explained that it was the supplier so he left the room to meet with him while DC Smith stayed with Lisa. The Officer could hear a male voice but he could not see who the supplier was or hear their conversation. Mr. Lemieux returned with 3 plastic bags that DC Smith recognized from his experience to be heroin. He gave the heroin to DC Smith. Mr. Lemieux and Lisa retrieved a safe injection kit and set up to inject some heroin. They asked DC Smith if he wanted to inject but he declined. DC Smith said that he had to leave. As he left, they talked about when Mr. Lemieux would pay back the money and whether he could get larger quantities of heroin. He said that he could but he didn't want to because he didn't want to ruin people's lives.

[19] On August 23rd, DC Smith arranged another meeting with Mr. Lemieux to buy heroin from his supplier. They negotiated the price for a gram of heroin which was a larger quantity than the first purchase. Although they initially agreed that the price would be $220, Mr. Lemieux raised the price to $240 because he said that he tried it the day before and it was "extra potent" and it was really good. They discussed the $70 that DC Smith had lent him but Mr. Lemieux advised that he could only pay him back $20. DC Smith attended Mr. Lemieux's apartment and they hung out again in the living room talking and watching television until the supplier arrived at Mr. Lemieux's apartment. Once the supplier arrived, DC Smith stayed with Lisa while Mr. Lemieux met with the supplier. DC Smith was able to surreptitiously send a text to the other members of his team to let them know that the supplier had arrived. DC Smith could not see the supplier or hear their conversation but he heard another male voice. Mr. Lemieux returned to the room with the heroin and advised that he was able to get it for $220. He also had some for himself and advised that he would be doing it before he went to bed. They agreed to meet up another time for Mr. Lemieux to pay DC Smith back the money he owed him and DC Smith left the apartment.

[20] On August 29th, DC Smith had conversations with Mr. Lemieux about purchasing an even larger quantity of heroin, 3.5 grams. The following day, he advised DC Smith that his supplier said he could provide this quantity and they made arrangements to meet at Mr. Lemieux's apartment again. DC Smith brought $700 with him to make the drug buy. Mr. Lemieux asked DC Smith if he could provide him with a "chip" from the heroin he was buying as a tip for arranging the deal. DC Smith said that he couldn't do that since the whole amount was spoken for already. Once again, the supplier attended the apartment and provided the heroin while DC Smith waited in another room. Mr. Lemieux advised DC Smith that if their business continued, they would make the deals cheaper.

[21] During cross-examination, DC Smith agreed that he had developed a friendship with Mr. Lemieux. It was evident to DC Smith that Mr. Lemieux and his girlfriend were addicts. They both began to prepare to take the drugs as soon as they received some from the supplier and he even witnessed them doing the drugs in his presence on one occasion. Throughout all of DC Smith's observations of Mr. Lemieux, he did not have any heroin other than what was supplied to him by the unidentified dealer.

[22] Counsel reiterated with the Officer that their undercover ploy for asking Mr. Lemieux to help him get drugs was that he was seeking a more reliable source for his girlfriend's heroin supply to address his concerns with her safety and the quality of the heroin. Mr. Lemieux agreed to get him heroin from his supplier. In terms of the one brief discussion about whether Mr. Lemieux knew what his supplier cut the heroin with, DC Smith agreed that he did not make contemporaneous notes, he wrote his notes hours later and he was not able to repeat their conversation verbatim. His notes and his report were effectively a "recap" of their conversation to the best of his ability and he agreed that there were parts of their conversation that he could not recall. In particular, he could not recall the specific words that Mr. Lemieux used to respond to his query about whether the heroin was cut with fentanyl. DC Smith confirmed that all of their discussions were consistently about negotiating the purchase and sale of heroin not any other drugs.

[23] The drugs that were purchased on August 17th, 23rd and 30th were analyzed and the substance contained both heroin and fentanyl. The Certificates of Analysis that were filed as exhibits did not quantify how much of either drug was contained in the substance, the size of the sample analyzed, where the sample was obtained from (ie. surface scraping or a piece) or how sensitive the detection testing is for each substance.

C. Legal Analysis

i. Does the Crown have to prove that the accused intended to traffic in the narcotic specified in the information?

[24] There is no issue that Mr. Lemieux was trafficking in heroin. He acted as a middle man who negotiated the sale of heroin between the undercover officer and the drug supplier. The Supreme Court of Canada found in R. v. Greyeyes, [1997] S.C.J. No. 72 at para 32 that this conduct aids and abets the sale of narcotics:

Drug trafficking by its very nature is a business which involves and is dependent upon many "middle men". If the same exception which applies to purchasers were extended to agents for the purchaser, then the agents could escape culpability entirely. They should not. Quite simply there is no reason to extend the exception for purchasers to those who assist or encourage purchasers in an illegal sale. The activities of an agent for a purchaser or one who assists a purchaser to buy narcotics certainly come within the definition of "aiding" or "abetting" under s. 21(1) of the Code. By bringing together the source of supply and the prospective purchaser, these persons obviously assist in the sale of narcotics. Acting as a spokesperson for a purchaser has the effect of assisting both the purchaser and the vendor to complete the transaction. It follows that an agent for a purchaser or one who assists the purchaser to buy the drugs can properly be found guilty as a party to the offence of trafficking under s. 21(1) of the Code.

[25] While Mr. Lemieux admits that he facilitated the sale of heroin and he admits that the heroin contained an unquantified amount of fentanyl, his Counsel submitted that the Crown has not proven beyond a reasonable doubt that he is also guilty of trafficking in fentanyl.

[26] There are three distinct legal issues to address:

i. Does the Crown have to prove that the accused intended to traffic in each of the narcotics specified in the Information;

ii. If the Crown does not have to prove the intention to traffic in the specified narcotic, does the principle enunciated in Kienapple apply when the Crown is seeking convictions for separate counts for a single transactions of trafficking in a drug that had more than one substance in it; and

iii. In light of the lack of any evidence about the quantity of the fentanyl in the heroin or how it was analyzed, does the principle of de minimus non curat lex apply to potentially trace amounts of drugs?

[27] It is conceded that Mr. Lemieux intended to assist with the purchase and sale of heroin. In R. v. Greyeyes supra at paragraph 39, the Supreme Court defined the mental element of trafficking as follows:

Did the appellant intend to assist or encourage the sale? There can be no doubt that the appellant knew he was assisting in the illegal sale of narcotics, and that he intended to do so. His words and actions demonstrate that he deliberately set out to bring together the parties to the transaction and acted as the conduit for delivering the drugs from the seller to the buyer. The appellant may have been motivated solely by a desire to help the buyer, but what he intended to do was to facilitate the sale of narcotics, and this is a culpable intention. Since the appellant actually encouraged and assisted in the illegal sale of narcotics, and since he had the intention of doing so, he was guilty of trafficking as a party pursuant to s. 21(1)(b) and (c) of the Code.

[28] Mr. Lemieux is charged with three separate counts of trafficking in heroin and another three counts of trafficking in fentanyl for three transactions of arranging the purchase and sale of one illicit substance each time that contained two narcotics: heroin and fentanyl. The Crown is seeking convictions for both sets of counts (fentanyl and heroin trafficking) even though each of these illicit drugs was contained within one substance that was held out to be heroin.

[29] While there is no doubt that Mr. Lemieux intended to assist with the sale of heroin, the issue is whether or not there is any evidence that he intended to facilitate the sale of heroin with fentanyl in it and whether or not the Crown is obliged to prove that he knew or was wilfully blind to the additional contents in the heroin to be found guilty of trafficking in fentanyl.

[30] There are numerous binding decisions that have found that the Crown does not need to prove knowledge of the exact nature of the substance in question in order to secure a conviction for trafficking in a controlled substance. Rather, the Crown need only prove knowledge of the fact that the substance was a controlled substance. In R. v. Chan, [2003] O.J. No. 3233, the Ontario Court of Appeal found that:

The relevant authorities establish that the mens rea of the offence includes knowledge of the nature of the substance in the sense that an accused person must believe that it is a controlled substance. Further, s. 5(2) specifically requires that the accused person possess the controlled substance for the purpose of trafficking.

[31] Similarly, in R. v. Williams, 2009 ONCA 342, [2009] O.J. No. 1692 at para. 19, the Court of Appeal stated again that:

There is some support for this approach to the mens rea component of the s. 95(1) offence in the jurisprudence arising from drug-related prosecutions. In trafficking, importing or possession cases, it is not necessary for the Crown to demonstrate that the accused knew he or she possessed (or was importing or trafficking in) the very prescribed drug identified in the indictment provided the accused knew the drug was a narcotic - for example, the actual drug involved is cocaine whereas the accused believed it to be hashish, or is LSD but was believed to be mescaline: see R. v. Burgess, [1970] 2 O.R. 216; R. v. Blondin (1971), 2 C.C.C. (2d) 118, aff'd (1971), , [1971] S.C.J. No. 42, 4 C.C.C. (2d) 566; R. v. Custeau, [1972] 2 O.R. 250; R. v. Kundeus, [1976] 2 S.C.R. 272. In Burgess, at p. 217, Brooke J.A. said:

[We] are all of the opinion that in these circumstances where the evidence is clear and consistent only with the conclusion that the accused knew the substance that he had in his possession was indeed a drug the possession of which was contrary to the statute, the fact that he mistakenly believed the drug to be hashish rather than opium is of no moment. (emphasis mine)

[32] More recently, in R. v. Gill, [2017] O.J. No. 3258 (Ont.S.C.J.) at para. 21, Justice Fairburn found that:

This leaves the court to determine whether Ms. Gill knew that she was in possession of a controlled substance. The mens rea for the offence of possession for the purpose of trafficking includes knowledge of the nature of the substance, only in the sense that the accused must know that it was a controlled substance. The Crown does not have to prove that the accused had knowledge of the exact drug named in the indictment, as long as it is established she knew the drug was a controlled substance: R. v. Ukwuaba, 2015 ONSC 2953, at para. 102 (2); R. v. Burgess, [1970] 2 O.R. 216, at p. 217; R. v. Williams, 2009 ONCA 342, at para. 19. (emphasis mine)

[33] Finally, in R. v. Johnson, [2017] O.J. No. 796 (Ont.S.C.J.) at para. 18 to 22, Justice Code engaged in an extensive review of the law on this issue and found:

There is a long line of binding authority addressing this issue. It has consistently been held that an accused's honest belief that some other illegal drug was being trafficked, and not the drug alleged and proved to have been trafficked, is no defence.

The earliest authoritative pronouncement on this point was in R. v. Burgess, [1970] 3 C.C.C. 268 at 269-70. The accused was charged in an Information that pleaded the offence of "possession of a narcotic, to wit: opium, contrary to s. 3(1) of the Narcotic Control Act." His defence was that he honestly believed the drug was hashish, which was also prohibited under the same provision of the same Act. Brooke J.A. gave the judgment of the Court and stated:

My brothers and I are all of the opinion that in these circumstances, where the evidence is clear and consistent only with the conclusion that the accused knew the substance that he had in his possession was indeed a drug the possession of which was contrary to the statute, the fact that he mistakenly believed the drug to be hashish rather than opium is of no moment. [Emphasis added.]

One year later, in R. v. Blondin (1970), 2 C.C.C. (2d) 118, the British Columbia Court of Appeal reached the same conclusion. The Indictment pleaded the offence of importing "a narcotic, to wit: cannabis resin." The trial judge instructed the jury that the Crown had to prove that the accused knew that the substance hidden in a closed container was the specific narcotic cannabis resin, as pleaded. On a Crown appeal from the resulting acquittal, the Court of Appeal unanimously held that the instruction was erroneous. McFarlane J.A. stated that "the jury should have been instructed that the onus on the Crown was to prove beyond a reasonable doubt that the respondent knew the substance was a narcotic, although not necessarily cannabis resin." On further appeal, the Supreme Court unanimously agreed with the British Columbia Court of Appeal. See: R. v. Blondin (1971), 4 C.C.C. (2d) 566.

The Ontario Court of Appeal and the Supreme Court revisited the issue a number of years later and reached the same result. In R. v. Aiello (1978), 38 C.C.C. (2d) 485, the Indictment charged possession of "a narcotic, to wit: diacetylmorphine (heroin)" for the purpose of trafficking. The trial judge charged the jury that the Crown had to prove that the accused knew the packaged substance that he was transporting was heroin. On a Crown appeal from the resulting acquittal, Martin J.A. stated the following:

We are all of the view that the learned trial Judge fell into a serious error in instructing the jury that the Crown, in order to establish possession, was required to prove beyond a reasonable doubt that the respondent knew that the package contained heroin.

In our view, the trial Judge should have directed the jury that if they were satisfied beyond a reasonable doubt that the respondent assumed control of the package, knowing that it contained a drug, the trafficking in which was prohibited, or was wilfully blind to it being such a drug or was reckless as to whether it was such a prohibited drug, then the knowledge necessary to constitute the offence was established.

On further appeal, the Supreme Court unanimously agreed with Martin J.A. See: R. v. Aiello (1979), 46 C.C.C. (2d) 128.

Burgess, Blondin, and Aiello all dealt with charges relating to "a narcotic," prohibited under the old Narcotic Control Act, where the accused's alleged mistake was as to which particular "narcotic" he had possessed, imported, or trafficked. Johnson's alleged mistake in the case at bar is similar, because heroin and cocaine are both Schedule I substances and both are prohibited under s. 5 of the Controlled Drugs and Substances Act. It is, therefore, unnecessary to address the more controversial and much criticized decision in R. v. Kundeus (1975), 24 C.C.C. (2d) 276, which was decided after Burgess and Blondin and before Aiello. In that case, the Court went even further than in the other three cases and upheld a conviction where the accused had trafficked in LSD, but had apparently believed that the drug which he had sold to an undercover officer was mescaline. These two drugs were not prohibited or restricted at the time under the same statutory schedule and they were regulated quite differently. It is noteworthy that Laskin C.J.C.'s dissent in R. v. Kundeus, supra at 283-4, which forcefully disagreed with the majority, continued to hold that the two earlier cases of Burgess and Blondin were correctly decided because the actual drug, and the accused's mistaken belief concerning a different drug, were "both drugs being in the class of narcotics and caught by the same penal provision, namely s. 3 of the Narcotic Control Act," such that "the same offence is involved regardless of the narcotic." Also see: R. v. Williams (2009), 2009 ONCA 342, 244 C.C.C. (3d) 138 at paras. 19-23; Don Stuart, Canadian Criminal Law, 6th Ed. (2011 Thomson Reuters) at pp. 341-354; MacFarlane et al., Drug Offences in Canada, 4th Ed. (2015 Thomson Reuters) at pp. 29-1 to 29-15.

In light of the above authorities, I am of the view that Horkins J. erred in discharging Johnson on the separate count of trafficking heroin. Johnson's asserted belief that the drug he provided to the two women was cocaine, as set out in his statement to the police, was legally irrelevant because trafficking in either heroin or cocaine is equally prohibited under s. 5 of the C.D.S.A… (emphasis mine)

[34] Considering these legal authorities, it is evident that the Crown need only prove beyond a reasonable doubt that the Mr. Lemieux knew he was trafficking in a narcotic and he need not prove that he intended to traffic in the specific narcotics alleged in the Information that were found in the substance. It does not matter if Mr. Lemieux believed that he was only trafficking in heroin and the substance actually contained heroin and fentanyl in order to secure convictions for trafficking in either narcotic.

ii. Does the principle enunciated in Kienapple apply when the Crown is seeking two convictions for separate counts for a single transaction of trafficking in a drug that had more than one substance in it?

[35] Understandably, Courts have consistently held that an individual cannot avoid criminal culpability for trafficking in illicit drugs by claiming that they were not aware of the exact nature of the substance. Effectively, an accused cannot avoid accountability for trafficking in a narcotic by claiming that s/he believed the substance to be one narcotic and it was actually another narcotic. Whether or not that person possessed an honestly held belief in a state of facts, their actions were not innocent and should not negative the mens rea required for trafficking in a narcotic.

[36] This Court is being urged to go one step further and rely on this line of cases to find Mr. Lemieux guilty of both what he believed the narcotic to be and additionally whatever narcotic additives were in the substance whether or not he intended to traffic in this additive. While the crown need not prove that Mr. Lemieux intended to traffic in fentanyl to secure a conviction, it is important to address his mental culpability to decide whether there is any factual or legal distinction between these two counts.

[37] Mr. Lemieux did not produce the heroin nor did he directly supply the heroin. He acted as the middle man for the supplier and he got his own heroin from the same person. Mr. Lemieux negotiated and facilitated the sale of heroin. He provided a price that was consistent with the purchase price for heroin. The substance was actually heroin but it also contained fentanyl. There is no evidence about how much fentanyl was actually in the heroin. It could have been a negligible amount or a substantial amount. There is no expert evidence that the addition of fentanyl to heroin would have changed its appearance, colour, consistency or quality. The undercover officer witnessed Mr. Lemieux ingesting some of the heroin that was provided by the supplier. There is no evidence that, regardless of the amount of fentanyl in the heroin, Mr. Lemieux would have known that there was fentanyl in the heroin simply by ingesting it. There is no evidence about the prevalence of heroin being laced with fentanyl or why traffickers would add fentanyl to an already highly addictive and powerful drug like heroin.

[38] At the very highest, the only evidence that Mr. Lemieux had any knowledge that the substance he arranged to be sold to the undercover officer may have had fentanyl in it was one very brief exchange that occurred during their first meeting. The officer sought an assurance that Mr. Lemieux's supplier did not cut the heroin with fentanyl. Mr. Lemieux said something like he couldn't be too sure about fentanyl and that he should wean his girlfriend on it to be safer. The Officer was not sure what Mr. Lemieux's exact words were and he agreed that he did not recall everything that Mr. Lemieux said during this conversation. He also testified that after that exchange, Mr. Lemieux assured him about the superior quality of the heroin because of its colour. Similarly, at another meeting, Mr. Lemieux asked for a higher price for the heroin because of its superior quality. He advised that he had tried it himself and it was extra potent and really good.

[39] There is no evidence from which this Court can infer that Mr. Lemieux actually knew that the heroin he sold to DC Smith contained fentanyl. Quite the contrary, it is evident that he believed he was trafficking in heroin. Nevertheless, the Crown is relying on the doctrine of wilful blindness to establish that Mr. Lemieux possessed the mental element for trafficking specifically in fentanyl based on that brief exchange between the Officer and Mr. Lemieux and that he should have been aware of the risk that heroin is often laced with fentanyl.

[40] The Supreme Court explained the doctrine of wilful blindness in R. v. Briscoe, 2010 SCC 13, [2010] S.C.J. No. 13:

Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. See Sansregret v. The Queen, [1985] 1 S.C.R. 570, 18 C.C.C. (3d) 223, 17 D.L.R. (4th) 577 and R. v. Jorgensen, [1995] 4 S.C.R. 55, 102 C.C.C. (3d) 97, 129 D.L.R. (4th) 510. As Sopinka J. succinctly put it in Jorgensen (at para. 103), "[a] finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?"

Courts and commentators have consistently emphasized that wilful blindness is distinct from recklessness. The emphasis bears repeating. As the Court explained in Sansregret (at p. 584):

. . . while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused's fault in deliberately failing to inquire when he knows there is reason for inquiry.

It is important to keep the concepts of recklessness and wilful blindness separate. Glanville Williams explains the key restriction on the doctrine:

The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law. It is, at the same time, an unstable rule, because judges are apt to forget its very limited scope. A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realised its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness. It requires in effect a finding that the defendant intended to cheat the administration of justice. Any wider definition would make the doctrine of wilful blindness indistinguishable from the civil doctrine of negligence in not obtaining knowledge.

(Criminal Law: The General Part (2nd ed. 1961), at p. 159 (cited in Sansregret, at p. 586).)

Professor Don Stuart makes the useful observation that the expression "deliberate ignorance" seems more descriptive than "wilful blindness", as it connotes "an actual process of suppressing a suspicion". Properly understood in this way, "the concept of wilful blindness is of narrow scope and involves no departure from the subjective focus on the workings of the accused's mind" (Canadian Criminal Law: A Treatise (5th ed. 2007), at p. 241). While a failure to inquire may be evidence of recklessness or criminal negligence, as for example, where a failure to inquire is a marked departure from the conduct expected of a reasonable person, wilful blindness is not simply a failure to inquire but, to repeat Professor Stuart's words, "deliberate ignorance".

[41] More recently, in R. v. Pilgrim, [2017] O.J. No. 1923 (Ont.C.A.) at paras. 66 to 68, the Ontario Court of Appeal cautioned that there is a distinction between turning a blind eye in the colloquial sense and the doctrine of wilful blindness:

While Ms. Parent may have turned a blind eye to Mr. Pilgrim's marijuana trafficking, in the sense of condoning it or failing to prevent it, this was not the same thing as wilful blindness. Turning a blind eye is a colloquial expression; wilful blindness is a legal term of art. Wilful blindness is a recognized proxy or substitute for actual knowledge. It involves having a subjective suspicion about a fact, circumstance or situation, but deciding not to make inquiries, preferring to remain ignorant of the true state of affairs: see R. v. Sansregret, [1985] 1 S.C.R. 570; R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411; and Don Stuart, Canadian Criminal Law -- A Treatise, 7th ed. (Toronto: Carswell, 2014), at pp. 261-265.

There was no need to resort to this doctrine in relation to the sale of marijuana. Ms. Parent's suspicions were not aroused. She did not need to make further inquiries. She knew Mr. Pilgrim was selling marijuana; she just did not like it. Although it was never articulated, it would appear that the trial judge used his erroneous belief that Ms. Parent was wilfully blind to Mr. Pilgrim's marijuana trafficking as evidence of Ms. Parent's wilful blindness to Mr. Pilgrim's sale of oxycodone and/or Percocet. For reasons already stated, Ms. Parent was not wilfully blind to the sale of marijuana. It was not appropriate to transfer this apparent mental state about one drug to another, especially in the absence of a specific finding.

[42] It is important to emphasize that it is insufficient for the Crown to establish that Mr. Lemieux suspected a state of facts. Both Counsel conceded that evidence of recklessness is insufficient to prove the required mental state for trafficking. The only substitute for proof of actual knowledge is wilful blindness or a state of "deliberate ignorance" of a certain fact. The Crown must present evidence that the accused suspected a certain set of facts and chose not to make any inquires because he did not want his suspicions confirmed.

[43] The Officer clearly told Mr. Lemieux about his concerns that heroin can be laced with fentanyl. Mr. Lemieux was made aware of this risk by the Officer but he proceeded with negotiating the sale of heroin. His choice to persist in the sale of heroin in these circumstances was reckless. Mr. Lemieux's conduct, however, does not amount to having a subjective suspicion about the purity of the heroin he obtained from his supplier and deciding not to make inquiries preferring instead to remain ignorant about the quality of the heroin. Furthermore, while the Court can take judicial notice of the inherent dangers of fentanyl abuse and the media attention that has spotlighted the numbers of deaths attributed to fentanyl overdoses, the Court cannot take judicial notice of how frequently heroin is cut with fentanyl in Durham region. This particular fact is not notorious nor is it capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.

[44] The Crown did not introduce any expert or statistical evidence relating specifically to the prevalence of heroin being cut or combined with fentanyl. The Court does not have any evidence to support the Crown's submission that this is such a widespread problem that most people are aware of it in our communities. There is a gap in the evidence for the inferences the Crown seeks to draw about what Mr. Lemieux "should" have known about the prevalence of the combination of these drugs. Moreover, the Crown cannot rely on what Mr. Lemieux "should" have known to establish the mental element. The Crown is required to prove beyond a reasonable doubt what he did know or was wilfully blind to through either direct or circumstantial evidence.

[45] Mr. Lemieux's comments to DC Smith are insufficient evidence to find that he was wilfully blind to whether or not the heroin was cut with fentanyl. As a result, the Crown has not proven beyond a reasonable doubt that he intended to traffic in fentanyl.

[46] Despite the lack of intention to traffic in fentanyl, the crown is seeking convictions for both what Mr. Lemieux believed the narcotic to be and the additive that was in the narcotic. While it is clear that the Crown does not have to prove that Mr. Lemieux intended to traffic in the specific narcotic alleged in the information in order to secure a conviction for either count, it is unfair to seek convictions for both what he believed he was trafficking in and for an unknown quantity of a narcotic that was added to that substance in the absence of evidence of an intention to traffic in that specific substance. The Crown is seeking duplicate convictions for the same act.

[47] It is a fundamental principle of criminal law that an accused cannot be convicted of two or more offences committed by one single act with the same or substantially common elements. Please see the Supreme Court of Canada's decision in R. v. Kienapple (1975), 15 C.C.C. (2d) 524. The rationale for the principle that was enunciated in the Kienapple decision was also explained by the Supreme Court of Canada in R. v. Prince, [1986] S.C.J. No. 63:

These cases, amongst others, prior to the Court's decision in Kienapple, make it clear that the Canadian courts have long been concerned to see that multiple convictions are not, without good reason, heaped on an accused in respect of a single criminal delict.

[48] In R. v. R.K., [2005] O.J. No. 2434 at paras. 28 to 32, the Ontario Court of Appeal explained that this principle is derived from the Court's inherent power to prevent against abuses of its process. Citing the Prince decision, the Court noted that this rule is designed to "protect an individual from an undue exercise by the Crown of its power to prosecute and punish."

[49] In order to find that the principle in Kienapple applies to a matter, the Supreme Court of Canada in the Prince decision directed Courts to consider whether the two offences in issue have a sufficient factual and legal nexus:

At paragraph 20: In most cases, I believe, the factual nexus requirement will be satisfied by an affirmative answer to the question: Does the same act of the accused ground each of the charges? As Cote demonstrates, however, it will not always be easy to define when one act ends and another begins. Not only are there peculiar problems associated with continuing offences, but there exists the possibility of achieving different answers to this question according to the degree of generality at which an act is defined: see Klinck, supra, at p. 292, Leonoff and Deutscher, supra, at p. 261, and Sheppard, supra, at p. 638. Such difficulties will have to be resolved on an individual basis as cases arise, having regard to factors such as the remoteness or proximity of the events in time and place, the presence or absence of relevant intervening events (such as the robbery conviction in Cote), and whether the accused's actions were related to each other by a common objective. In the meantime, it would be a mistake to emphasize the difficulties. In many cases, including the present appeal, it will be clear whether or not the charges are founded upon the same act.

At paragraph 22: Once it has been established that there is a sufficient factual nexus between the charges, it remains to determine whether there is an adequate relationship between the offences themselves. The requirement of an adequate legal nexus is apparent from the use by the majority in Kienapple of the words "cause", "matter" or "delict" in lieu of "act" or "transaction" in defining the principle articulated in that case.

At paragraph 32: the requirement of sufficient proximity between offences will only be satisfied if there is no additional and distinguishing element that goes to guilt contained in the offence for which a conviction is sought to be precluded by the Kienapple principle.

[50] In terms of the legal nexus, the Ontario Court of Appeal in R. v. R.K, supra at para. 38, succinctly summarized the three factors set out in Prince that will defeat any claim that there is an adequate legal nexus:

First, where the offences are designed to protect different societal interests, convictions for both offences will not offend the Kienapple rule.

Second, where the offences allege personal violence against different victims, Kienapple will not foreclose convictions for offences relating to each victim.

Third, where the offences proscribe different consequences, the Kienapple rule will not bar multiple convictions.

[51] One final and important point when outlining the application of the Kienapple rule, is that it is subject to the dictates of Parliament. If the applicable statutory provision expressly or by clear implication provides for multiple convictions for offences arising out of the same delict, a Court must give effect to the legislative intention unless there is a successful Charter challenge to that provision.

[52] The factual delicts in this case are identical. The charges are based on the same act of trafficking in a controlled substance and the same mental element of intending to traffic in a controlled substance. It was one single act with the same mental element and the crown has not proven any additional mental element that Mr. Lemieux knowingly or was wilfully blind to trafficking in the more dangerous narcotic of fentanyl. Similarly, there are no additional or distinguishing elements such that the legal nexus is readily apparent. Each offence is designed to protect the same societal interest and the offences do not proscribe different consequences. Finally, there is no statutory provision in section 5 of the C.D.S.A. that specifically provides for multiple convictions arising out of the same delict.

[53] The principles enunciated in the Kienapple and Prince decision were intended to address this type of case where the Crown is overreaching and unfairly seeking multiple convictions for a single delict. In the unique circumstances of this case, there is a strong factual and legal nexus between each of these counts. Although trafficking in fentanyl is arguably the more serious charge, considering the Crown is unable to prove the quantity of fentanyl in the substance (which will be discussed in more detail), the counts on the Information with respect to trafficking in fentanyl will be stayed.

[54] In some respects, this analysis is academic. Although the counts of trafficking in fentanyl are stayed, the Crown has proven an aggravating factor for the sentencing that the heroin also contained fentanyl. Mr. Lemieux chose to traffic in a particularly potent narcotic knowing that there was some risk that street drugs can be laced with fentanyl. In R. v. Naccarato, [2017] B.C.J. No. 736 (B.C.S.C.) para. 37, the Court found that:

Here, Ms. Naccarato knew she was transporting heroin, but was not aware that the heroin had been laced with fentanyl. However, in my view, her lack of specific knowledge that the heroin contained fentanyl is not a mitigating factor. The Crown and defence agree and I have found that at the time of the offence, Ms. Naccarato was aware that heroin could be laced with fentanyl. Ms. Naccarato was aware she was transporting an illegal drug that could be adulterated with fentanyl. Her ignorance about whether or not the heroin contained fentanyl did nothing to ameliorate the risk of overdose to anyone who purchased the drugs. (emphasis mine)

[55] Similarly, in R. v. DeSousa, [2009] O.J. No. 325 (Ont.C.A.) para. 16 to 19:

In that regard, some clarification is needed to address the significance, if any, of couriers, like the respondent, who purposefully shut their eyes to the nature and quantity of the illicit substance they are importing.

The trial judge considered the respondent's wilful blindness to be a mitigating circumstance. With respect, we disagree. As a matter of principle and policy, we ought not to be sending a message to would-be-couriers that if they wear blinders, they will receive a lower sentence than if they actually learn the nature and quantity of the substance they are importing. In assessing degrees of moral blameworthiness, we see no meaningful distinction between the two.

In so concluding, we are not to be taken as departing from the principle enunciated by this court in R. v. H.(C.N.) (2002), 170 C.C.C. (3d) 253 - that where an offender takes reasonable steps to determine the nature of the drug and is duped by his co-conspirators, this will serve as a mitigating factor.

That, however, is not this case. The respondent was wilfully blind to the nature and quantity of the substance he was importing. Having kept himself in the dark, he cannot rely on his lack of knowledge as a mitigating factor.

[56] While Mr. Lemieux did not knowingly nor was he wilfully blind to the presence of fentanyl in the heroin, the Officer expressed concerns to him about the proliferation of fentanyl laced drugs on the streets and the dangers that it poses to users. Mr. Lemieux was aware that there was enough of a risk that this deadly drug may be present that he warned the Officer to "wean" his girlfriend on it just to be safe, his conduct was indisputably reckless. This recklessness will be an aggravating factor for the Court to consider during the sentencing hearing. This aggravating fact may however be attenuated by the lack of expert evidence explaining how the substance was tested and how much fentanyl was actually in the heroin.

iii. In light of the lack of any evidence about the quantity of the fentanyl in the heroin, does the principle of de minimus non curat lex apply to potentially trace amounts of drugs?

[57] Considering this Court's findings with respect to staying the charge of trafficking in fentanyl, it is not necessary to address whether or not the inability of the Crown to prove how much of the narcotic substance was heroin and how much was fentanyl raises the possibility of a de minimus defence. Nevertheless, it is an important to review the frailties of the Certificate of Analysis because the Crown is required to prove aggravating factors that he intends to rely on during the sentencing beyond a reasonable doubt.

[58] Counsel for Mr. Lemieux raised a number of legitimate concerns about the Certificates of Analysis that were filed as Exhibits. The Certificates were admitted for the truth of their contents and simply prove that an Analyst opened a sealed packet and removed "a sample" for analysis. That sample was examined and found to "contain" both heroin and fentanyl. The Certificate does not explain how much of the substance was examined or how the sample was obtained. Was the sample a piece that was removed or was the surface of the substance tested? How much fentanyl was contained in the sample? How sensitive is the testing process? If a person handled fentanyl and then handled heroin, could the fentanyl that was detected have been a minute amount that was transferred from one substance to the other as opposed to a cutting agent or an additive? Is any amount of fentanyl that is added to a substance or on the surface of the substance, even trace amounts, detectable?

[59] The Crown did not call expert evidence or provide an expert's report to address the obvious weaknesses with the Certificates of Analysis. It is equally plausible that the fentanyl found in the substance was a trace amount as it is that it was a more significant quantity. It is incumbent on the Crown to present fulsome evidence to address these deficiencies in the Certificates of Analysis. As such, the Crown will be significantly curtailed when relying on fentanyl being found in the heroin as an aggravating factor during the sentencing.

D. Conclusion

[60] There can be no doubt that trafficking in fentanyl is an extremely serious crime and demonstrates a wanton disregard for human life. It is poison and our Courts have a duty to address the societal interest in discouraging the production and distribution of dangerous narcotics. It is particularly egregious when fentanyl is added to other already dangerous substances like heroin and users are unknowingly ingesting potentially deadly cocktails. However, the serious nature of a crime and society's interest in vigorously prosecuting these cases does not alter this Court's unwavering duty to ensure that offenders are not found guilty of the same delict twice and to hold the Crown to its burden of proof in every case.

[61] Mr. Lemieux will be found guilty of three counts of trafficking in heroin on August 17th, 23rd and 30th, 2016. The three counts of trafficking in fentanyl will be stayed. At the request of the Crown, all other counts will be dismissed.

Released October 18th, 2017

Signed: Justice B.M. Green