Court File and Parties
Court File No.: 4811-998-15-15014171-00 Date: October 2, 2017 Ontario Court of Justice
Between: Her Majesty the Queen — and — Xing Hung Truong
Before: Justice David A. Fairgrieve
Heard on: February 10, April 6 and 19, May 18, 2017
Written Reasons for Judgment released on: October 2, 2017
Counsel:
- Kandia Aird, for the Crown
- Howard Crosner, for the accused, Mr. Truong
OVERVIEW
[1] Xing Hung Truong was charged in two separate counts with possession of heroin for the purpose of trafficking and possession of crack cocaine for the purpose of trafficking. The allegation was that Mr. Truong committed the offences, contrary to s. 5(2) of the Controlled Drugs and Substances Act, in Toronto on February 7, 2015, when police officers, executing a search warrant at someone else's residence, found him to be in possession of substantial quantities of both heroin and crack cocaine concealed in the waistband of his underwear.
[2] This case has had a tortuous procedural history, involving multiple changes of defence counsel, an earlier last-minute re-election by Mr. Truong as to the court in which his trial would proceed, and an inadequate estimate of the trial time required. After Mr. Truong re-elected to be tried in the Ontario Court of Justice, he pleaded not guilty on February 10, 2017, to each of the charges, but guilty of the included offences of simple possession of the heroin and the cocaine seized from him by the police. Counsel for the Crown, Ms. Aird, did not accept the pleas, and the trial proceeded on the two charges as originally framed.
[3] Mr. Crosner, then defence counsel, and the Crown agreed in their submissions that the only issue to be determined at trial was whether the Crown had proved beyond a reasonable doubt that Mr. Truong's admitted possession of the drugs was for the purpose of trafficking in the narcotic specified in the particular charge. It was accepted that each count had to be considered separately, and that, in theory, the accused could have had one drug for personal consumption and the other for the purpose of trafficking, but both counsel eventually conceded that the evidence did not actually warrant differing conclusions as to the two counts.
[4] On May 18, 2017, I found that the Crown had proved beyond a reasonable doubt that Mr. Truong possessed both the heroin and the crack cocaine for the purpose of trafficking in them. Since both Mr. Crosner and Ms. Aird agreed that the evidence warranted the conclusion that Mr. Truong was addicted to the narcotics, I was satisfied beyond a reasonable doubt, once the evidence also established the accused's dire financial circumstances at the time, that the only rational conclusion was that he intended to sell at least part of each of the drugs in order to support his addiction.
[5] Also on May 18, 2017, I indicated that written reasons would be provided to explain the conclusions I had reached. A pre-sentence report was ordered, but before the sentencing could proceed on July 19, 2017, notice was given that Mr. Crosner had withdrawn as counsel of record. Mr. Truong's new counsel, Mr. Randall Barrs, sought an adjournment of the sentencing and agreed to October 20, 2017, as the new sentencing date.
[6] These reasons are intended to explain why I concluded that the only reasonable inference available, based on the evidence which I accepted, was that the Crown had proved both offences charged beyond a reasonable doubt.
[7] The evidence at trial consisted of an Agreed Statement of Facts, supplemented by the relevant Certificates of Analyst (confirming that the substances seized were indeed heroin and cocaine). In addition, both parties called vive voce evidence.
[8] The Crown called a senior Toronto Police Drug Squad officer, Det. John Margetson, to give expert evidence concerning the street level distribution of both drugs. After some initial dispute, Mr. Crosner, counsel for the accused, admitted that Det. Margetson was qualified to give opinion evidence as to the sale, packaging and pricing of the two drugs, and also as to whether particular quantities and other hypothetical circumstances (which tracked the Agreed Statement of Facts) were consistent with personal use or possession for a commercial purpose. Det. Margetson's brief report, setting out his conclusions, was filed as an exhibit. Since the defence expert in addiction medicine, Dr. Bijan Pardis, ended up describing Det. Margetson's evidence as "very reliable information that was accurate," the officer's evidence concerning street level heroin and crack trafficking, at least in general, was ultimately not the source of significant dispute. Rather, the issue became whether the evidence, taken as a whole, proved beyond a reasonable doubt that the accused was a so-called "addict trafficker" and eliminated any reasonable doubt that there could be an "outlier" or exceptional circumstance that could have permitted Mr. Truong's possession of the drugs, in the absence of an intention to traffic in them.
[9] Mr. Truong testified in his own defence, at first asserting that the drugs seized from him were for his personal use only. He testified that he was heavily addicted to heroin at the time of his arrest, and that a financial windfall a couple of months earlier had allowed him to purchase the heroin and crack that the police had found inside the waistband of his underwear. In cross-examination, however, he testified (somewhat unexpectedly, it appeared) that he was going to smoke the drugs the night he was arrested and share them with his friend, one of the other people at the apartment he was visiting there.
[10] In addition, as stated, Dr. Bijan Pardis, an addiction medicine specialist, was called by the defence to give expert evidence concerning the diagnosis, symptoms and treatment relating generally to addictions involving heroin and crack, and also relating specifically to his diagnosis, testing and continuing counselling of his patient, Mr. Truong. While the Crown submitted that no weight should be given to Dr. Pardis's expressed opinion that the circumstances of his patient's possession of the two drugs was consistent with personal use and that any trafficking purpose was unlikely, I think it fair to say that much of Dr. Pardis's testimony ended up undermining the credibility of the accused and supporting the rejection of the accused's evidence denying any commercial purpose for his possession of the drugs.
[11] I concluded that, on the whole of the evidence, the only reasonable inference to be drawn was that Mr. Truong possessed both drugs for the purpose of trafficking in them. I specifically rejected the accused's assertion, given during his evidence-in-chief, that his own personal use was his only purpose for having the drugs in his possession. While the rejection of the accused's explanation did not in any way strengthen the Crown's case or make the inference sought by the Crown any more compelling, I was satisfied that the evidence on which the Crown relied permitted only one reasonable inference. Regardless of the precise extent of the accused's own use of heroin and crack at the time, about which there was a paucity of reliable evidence, I was nonetheless satisfied beyond a reasonable doubt that he possessed the drugs for the purpose of selling at least a portion of both.
[12] My conclusions in this regard must be explained by reference to those parts of the evidence I accepted, why I rejected the accused's testimony that he had the drugs for his personal use only, and why I concluded that the purpose to sell both drugs was the only reasonable inference that could be drawn in the circumstances.
THE EVIDENCE
The Agreed Statement of Facts
[13] The Agreed Statement of Facts, dated February 10, 2017, and filed as an exhibit, consisted, in its entirety, of the following:
On Saturday, February 7, 2015, at approximately 8:37 p.m., members of the Toronto Police Service executed a search warrant under the Criminal Code and the Controlled Drugs and Substances Act at 2000 Sheppard Ave. West, Unit 209, Toronto, Ontario.
The accused, Xing Hung Truong ("Truong") was located in the living room of Unit 209, where he was placed under arrest and handcuffed to the rear.
Truong did not reside at that address.
A subsequent pat-down search of the accused found Truong to be concealing a quantity of what appeared to be crack cocaine as well as a quantity of heroin in the waist band of his underwear.
The heroin and the crack cocaine were wrapped separately in cellophane.
A cell phone was seized.
A digital scale was found in the kitchen in plain view.
7a. No other indicia of personal use or of trafficking were found.
The accused was read his rights to counsel and transported to 31 Division where he was charged as follows:
- a. One count of possession of a substance included in Schedule I, namely crack cocaine, for the purpose of trafficking, contrary to s. 5(2) of the CDSA, and
- b. One count of possession of a substance included in Schedule I, namely heroin, for the purpose of trafficking, contrary to s. 5(2) of the CDSA.
The quantity of controlled substances seized are:
- a. Crack cocaine: 4.75 grams
- b. Heroin: 15.32 grams
[14] During the course of the oral evidence, a few additional facts that were not the subject of any dispute also emerged to supplement the Agreed Statement. It was agreed that Mr. Truong was not the target of the police investigation that had led to the search warrant that was executed. Three other men were also in the living room of the apartment when Mr. Truong was arrested, including the person who rented the apartment and who was the police target. Two cellphones, rather than one, had been seized, including an iPhone from Mr. Truong's pocket.
[15] The relevant Certificates of Analyst were filed, on consent, indicating that the two substances seized were analysed and found to contain cocaine and heroin.
The Evidence of Det. Margetson
[16] Det. Margetson, presented with a hypothetical situation essentially repeating the contents of the Agreed Statement of Facts, was asked his opinion as to whether those circumstances were consistent with possession for personal use or for the purpose of trafficking.
[17] With respect to the crack cocaine, Det. Margetson testified that 4.74 grams was an odd amount to be purchased. He testified that street level purchases for personal use would normally be a "20-piece" (roughly .1 gram bought for $20), one gram (for $80 to $100), an "8-ball" (usually 3.5 grams or somewhat less, due to "shorting" by the dealer) or a "cuban" (7 grams or a quarter-ounce). According to the officer's evidence, 4.74 grams of crack cocaine was substantially more than an 8-ball, but also substantially less than a cuban, leaving an inference that the person had "chipped" it, i.e., taken some out of a larger amount of crack cocaine. He testified that such an inference was not "absolute," but a relevant circumstance.
[18] Det. Margetson testified further that because crack cocaine is very addictive and "its customer base socially and economically challenged," the majority of users turn to some kind of criminality to support their habit. Addict traffickers are common, such that people will buy a larger amount of crack, consume some themselves and then sell part to their drug subculture acquaintances in order to finance their next purchase and maintain the cycle.
[19] According to the officer's evidence, while a person might purchase as much as perhaps a half gram to use himself, crack cocaine addicts do not generally store their drugs for later use. Since the effects of a "hit" may only last 15 minutes, the nature of the addiction is such that the person would likely keep using what is available during the course of the day.
[20] Det. Margetson testified that, from his experience and knowledge gained from other investigations and wiretaps, a purchase above the 8-ball (3.5 grams) level generally suggests that the person is "piecing off" or selling to others.
[21] The valuation of 4.74 grams of crack cocaine was subject to a number of variables, as explained in the brief report prepared by Det. Margetson and filed on consent. The report stated re "pricing" that "the value of the drug is dependent on several factors. Variants that dictate the price of the drug include risk factor, purity of drug, weights sold, seller/buyer relationship, supply/demand factors and location." While all except the weight were unknowns in the hypothetical situation presented to him, he testified that the "pricing" of the crack could be calculated as somewhere between, conservatively, $940 (47 "pieces" at $20 per .1 gram) and $400-$500 (at $80-$100 per gram). Both counsel agreed that the contents of Det. Margetson's report were not contentious, and that the officer's figures could be regarded as, in effect, additions to the Agreed Statement of Facts.
[22] In his report (Ex.4), the officer stated his opinion that "this amount of crack cocaine [i.e., 4.74 grams, worth between $400 and $940] is not usually consistent with personal use; however, it is consistent with street level trafficking…"
[23] With respect to heroin, Det. Margetson testified again that because of its addictive nature and the socio-economic challenges facing most of its users, street level heroin trafficking tended to involve heroin users caught up in the same pattern of acquiring the drug, consuming part of it, and then needing to sell part of it to obtain cash to purchase more heroin and maintain the cycle. The officer testified, however, that in addition to addict traffickers, there were also occasional "outliers," individuals who had come into larger sums of money from, for example, an inheritance, the sale of an asset, or perhaps a robbery, which allowed them, at least temporarily, to purchase a larger quantity of heroin.
[24] Generally, however, Det. Margetson testified, the heroin trade in Toronto involves people buying at the "point" level, i.e., 100 milligrams or .1 gram, usually 1 or 2 points at a time, and rarely exceeding 1 to 1.5 grams. With respect to the quantities of heroin generally seen at the street level, Det. Margetson testified that because heroin is such a potent drug, and because people involved in the subculture are well aware of the high penalties imposed for heroin trafficking, traffickers normally carry smaller amounts, usually below the 7-gram level, if not less. According to the officer's evidence, most street-level search warrants do not lead to the seizure of more than 2 or 3 grams of heroin.
[25] Det. Margetson testified that 15.32 grams of heroin referred to in the hypothetical was well above the amount a person would normally have for personal use, and, again, without ruling out an exceptional "outlier" possibility, the police have only seen such a quantity in cases involving a trafficker or addict trafficker.
[26] With respect to the valuation of that quantity of heroin, both counsel again agreed to the calculation the officer presented in his report. That placed the value at between, conservatively, if priced at $240 to $350 per gram, the quantity at which street level dealers generally acquire it, somewhere between $3,672 and $5,355, and, priced at the "point" level at $20-$40 per .1 gram, somewhere between $3,060 and $6,120.
[27] In his report, he stated that "this amount of heroin is not consistent with personal use; however, it is consistent with street level trafficking."
[28] In his oral testimony, Det. Margetson referred to the factors he took into account in reaching this conclusion. This again included the "odd amount" of heroin, 15.32 grams, more than a half-ounce (or 14 grams) a person might have been supplied with, but more likely consistent with the amount left after an addict trafficker had taken out a small amount for personal use from a larger quantity he had to sell.
[29] With respect to both drugs, Det. Margetson testified that the absence of instruments for personal use was a significant factor in determining the possessor's purpose. Crack cocaine, he stated, generally involves smoking or inhalation of the vaporized substance, normally requiring an instrument of some kind, like a crack pipe, glass tube or a ginseng tube with its bottom broken off, and often matchbooks or lighters used to keep vaporizing it would also be found. Heroin, the officer explained, can be consumed in a variety of ways. These include inhalation, sometimes involving a glass tube or simply a rolled-up piece of paper. It could also involve just a piece of tin foil to contain the powder to prevent it from blowing away, and allowing a "bump" of it to be put on the back of the user's hand. For intravenous use, a hypodermic needle, a spoon to heat it, and sometimes rubber bands to locate a vein, would be expected. The officer pointed to the absence of such instruments in the scenario presented to him. In cross-examination, he agreed that while the absence of paraphernalia can be regarded as neutral, so far as determining the possessor's purpose is concerned, in his experience, persons with strong addictions to either opioids or cocaine tend to carry with them the implements used to consume them, so they can ingest the drug as soon as they acquire it. From police experience in undercover purchases, a heavily addicted consumer would normally use the narcotic immediately after obtaining it.
[30] Concerning other aspects of the hypothetical arising from the Agreed Statement, Det. Margetson testified that a digital scale, like the one found in the kitchen of the apartment that was searched, can be associated with drug trafficking, but since there was nothing connecting it to a visitor possessing the drugs in the living room, it appeared to be of no significance. That a cellphone was seized from the person was also regarded as a neutral factor, since practically everyone has one these days. The officer did not consider the absence of any reference to money having been found to be of any significance either, given the different trafficking scenarios encountered by the police, where traffickers holding drugs often do not retain on their person the cash derived from their drug transactions.
[31] With respect to the manner in which the heroin and the crack were separately wrapped, Det. Margetson testified that most street level crack trafficking involves "chipping off" the piece being purchased from a larger amount, with simply a visual inspection by the buyer, rather than a separate, pre-weighed package of the drug. Because heroin is a light-weight powdery substance, a trafficker would usually put the amount being sold in a folded-up, innocuous piece of paper, such as a page from a magazine or lottery ticket.
[32] Det. Margetson further testified that he would associate someone in possession of 15 grams of heroin with street level trafficking, although the quantity is much greater than the gram or two dealers in some parts of Toronto would typically possess. Similarly, the officer testified, 4 grams of crack cocaine, while consistent with street level dealing, is still a lot of crack to be in the possession of even a trafficker.
[33] When asked what inferences he would draw from two different kinds of drugs being in the possession of the same person, Det. Margetson testified that "poly-drug operations" are becoming more common. The police are finding more people who, surprisingly, use both crack cocaine (a stimulant), and heroin (a depressant), with effects at either end of the spectrum. In cross-examination, he added that he had never encountered himself a person with a dependency on both heroin and crack cocaine, but that he would not rule out the possibility. According to the officer's evidence, however, the amounts involved, exceeding what people would normally have for personal use, adds to the inference that the person possessing them had them for the purpose of selling them.
The Accused's Evidence
[34] Mr. Truong testified that he was born in Toronto and was 21, almost 22, at the time of his arrest on February 7, 2015. He dropped out of high school after completing Grade 11. While his mother was in the Toronto area, he did not have any contact with his father. Mr. Truong testified that his last job was when he was 18, when he worked for a couple of weeks sorting oranges.
[35] With respect to his drug abuse, Mr. Truong testified that he started using marijuana when he was about 13. He testified that he also started smoking heroin when he was 17 or 18, using it occasionally, whenever it was available, "just for fun." He testified that heroin eventually became more of something he needed, and he continued to use it until shortly after his arrest. At that time, he testified, he was using, by inhaling rather than injecting, a gram or a gram and a half of heroin every day.
[36] Mr Truong testified as well that he first started smoking crack cocaine a little after he tried heroin. At the time he was arrested, he testified, he was using about half a gram of crack cocaine per day.
[37] Mr. Truong agreed with defence counsel's suggestion that his use of drugs was "quite expensive." At the time of his arrest, he stated, he was living on welfare. In cross-examination, the accused provided further details concerning his personal circumstances when he was arrested. He testified that at the time, he was living with his grandparents in a townhouse in Scarborough. He said he sometimes paid as much as $150 to his grandmother towards the monthly rent, but that some months he did not have any money to give her. The $380 a month he received from social assistance was his only income. With respect to his expenses, he did not know how much he spent on food, perhaps $200 a month. Apart from maybe $40 a month for his cellphone and bus fare, he did not have any other bills to pay.
[38] In his evidence-in-chief, in answer to defence counsel's question as to where he got the money to pay for the drugs he had when he was arrested, Mr. Truong testified at first that 3 or 4 months earlier, he and a friend won some money playing poker online. A few minutes later, he testified that it was "a couple of months" before his arrest that he had won the money. According to his testimony, he and his friend had each given $50 to a third person, "Sean", who joined a tournament on a website called PokerStars.com. He testified that this person he "invested in" used his account on the website to win US$13,000, which was then split three ways. He testified that he received his share of the winnings, C$ 6,000 in cash, from this person at a bank, and that he used this money to purchase the drugs the police seized from him.
[39] Mr. Truong went on to explain that "Sean," whom he described as the police target, continued to win more money on the poker website after Mr. Truong and his friend had taken their share of the money from the tournament winnings. According to the accused, he had taken a photograph on his iPhone, seized by the police when he was arrested, of this person's laptop screen showing that person's winnings on his PokerStars.com account of, he testified, $20,000 or $40,000, or as much as $60,000.
[40] Mr. Truong testified that he did not think at the time he was arrested that the quantities he had in his possession were as much as 4.75 grams of crack and 15.32 grams of heroin (the amounts accepted in the Agreed Statement of Facts), but he testified that he did have the drugs in two separate packages wrapped in Saran wrap. Defence counsel then asked the accused if he had the drugs "for [his] personal consumption or not," which elicited from his client a nod of his head, which I verbalized for the record, but I suggested that given the unclear nature of the question, defence counsel should clarify the response, but also avoid asking leading questions concerning the crucial factual issue in the case.
[41] According to the accused's testimony, the crack he had when arrested (4.75 grams) would have lasted him about a week, using half a gram per day. He testified that the heroin (15.32 grams) would have lasted him about a week and a half, while repeating that he consumed 1 to 1.5 grams of heroin a day.
[42] Mr. Truong testified that he had paid $1200 for the heroin in his possession and $200 or $300 for the crack cocaine, having purchased them "less than 24 hours" before his arrest, although he could not recall how much, if any, he used after getting them, before he was arrested.
[43] In cross-examination, Mr. Truong was asked several questions about the circumstances surrounding his arrest on February 7, 2015. Cross-examination by the Crown included the following:
Q. Let's turn now to February 7, 2015… there were three other people with you, correct?
A. Yes.
Q. And those were your friends, correct?
A. One of them.
Q. And you were going to share your drugs…
The Court: One of the three was your friend?
A. The person I lived with.
Q. And you were going to smoke drugs with your friend, correct?
A. We were playing games.
Q. And you were going to smoke drugs with your friend, correct?
A. Yes.
Q. So you were going to share the drugs that you had with your friend, correct?
A. Yes.
Q. All right, so I'm going to put to you, Mr. Truong, that your intention that day was to sell the drugs that you had in your possession.
A. No.
Q. And that's why you had crack and heroin, because you were going to sell those drugs to make more money?
A. No.
Q. And I suggest to you that's why you had those drugs with you on February 7, 2015 - you were going to sell those drugs for a significant profit?
A. Nah.
Q. But do you agree that you were going to, in any event, share those drugs with your friends?
A. I was smoking with them [ sic ].
Q. Again, do you agree that you were going to share those drugs with your friend?
A. Share the drugs, okay, yeah.
The Evidence of Dr. Bijan Pardis
[44] Dr. Pardis was conceded by the Crown to be an expert in the area of addiction medicine, qualified to give opinion evidence concerning the diagnosis, symptoms, associated behaviour, treatment, and outcomes of treating addiction. While he was no longer a fully-licensed family physician, he remained licensed by the College of Physicians and Surgeons of Ontario to practice within what he described as the "specific domain" of addiction medicine. Dr. Pardis testified that during his 20 years practicing addiction medicine, he had treated about 5,000 patients. The report he prepared, dated November 10, 2016, concerning his patient, Xing Truong, was filed, on consent, as an exhibit.
[45] According to his report, Dr. Pardis first saw Mr. Truong on July 25, 2016 [almost 18 months after his arrest]. The report set out, under the heading "History of Substance Use," what Mr. Truong had reported to him at that time. In point form, it included the following:
- he started smoking cannabis at the age of 12, and by July 2016, had a regular habit, smoking up to 3 joints per day;
- from the age of 19, he "resumed" using heroin via inhalation on an occasional basis, about half a gram on each occasion, and later on a daily basis;
- he used cocaine via inhalation on an occasional basis "for the last several years," about a quarter gram on each occasion
[46] Initial urine testing conducted by Dr. Pardis detected only cannabis and its metabolites. His report stated that Mr. Truong's diagnosis was poly-substance addiction, which (apart from cannabis use) had been "in remission following a self-directed detoxification," so no "pharmacotherapy" was indicated. As of the date of the report (November 2016), weekly urine testing showed no drug use, with no testing done for cannabis.
[47] Under the heading "Recommendation & Opinion," Dr. Pardis's report concluded as follows:
As drug addiction is in general a chronic and relapsing condition, it is recommended that [Mr. Truong] continues his weekly urine monitoring and monthly addiction counselling at least until end of 2017 for relapse prevention. I believe the amount of drugs seized by the police in February 2015 [reported by Mr. Truong to have been about 13 grams of heroin and 2 grams of cocaine] represents a supply of a few weeks for his personal consumption while in active addictive disease. In fact, he reported that he had been using about half a gram of heroin daily, so the 13 grams would have been a supply of about 26 days for him. The likelihood of significant diversion and traffic is very low.
[48] In his oral testimony, Dr. Pardis also stated that addiction is a very complex medical condition with physical or biological, social and psychological dimensions, and is a chronic and relapsing condition. Cannabis, he testified, is a "gate drug" which can lead to other drug abuse, involving either a stimulant like cocaine, for those looking for high energy, or a relaxing substance like heroin, an opiate, for those who are more anxious and looking for relaxation. The use of an opiate like heroin can cause neural adaptation, such that brain cells become used to the presence of opiates in large amounts and tolerance develops. When opiates are no longer available, painful and very uncomfortable withdrawal symptoms can develop, alleviated only by the further use of an opiate. Tolerance develops only gradually over an extended period of time, before which the opiate would have a toxicity, including the depression of the centre of the brain and the nervous system, such that an overdose could stop a person's breathing.
[49] Dr. Pardis testified that because of the tolerance phenomenon, opiate consumption increases over time, but as a general rule, a quarter of a gram to half a gram would represent the average daily consumption of a typical heroin addict, although there could be significant variations.
[50] Dr. Pardis testified that given the variability of the purity of heroin and whether the supplier mixed it with other substances, one cannot simply look at the quantity of heroin in a person's possession and determine whether the person is an addict. Rather, since addiction medicine is a domain of psychiatry, the assessment of whether a person is an addict is mainly based on the historical information provided by the patient, and any confirmation by the urine toxicology reports. Moreover, Dr. Pardis testified, given the variables involved, it is not possible to say what quantities of heroin an addict would normally keep in his possession at any given time.
[51] Dr. Pardis testified that his comments concerning heroin addiction are equally applicable to cocaine, except that cocaine does not involve any feeling of satiety. As a consequence, persons in possession of a stimulant like cocaine "usually use as much as they can," with no possibility of an overdose.
[52] With respect to Mr. Truong, Dr. Pardis testified that since his patient reported that he had stopped using drugs other than cannabis about two months before coming to see him in 2016, his urine testing did not provide any direct evidence that he had had any dependency on heroin or cocaine. Dr. Pardis regarded Mr. Truong's reporting, though, starting with marijuana and then occasional, gradually more regular, use of cocaine and heroin as generally consistent with what the majority of his patients had experienced. Given his age and the relatively short period of substance use, Dr. Pardis accepted that he had not developed a huge tolerance, "so he was able to detoxify himself and stop using all drugs without going through too much pain," which would have been much more difficult for an older person with a higher tolerance to have achieved. Dr. Pardis regarded Mr. Truong's self-report to him as plausible.
[53] When asked specifically about 15.32 grams of heroin, the amount the police seized from his patient on February 7, 2015, Dr. Pardis testified that at the beginning of an addiction, with a person using perhaps 100 milligrams of heroin a day, which he regarded as "the extreme low," the quantity would provide a supply for 150 days, or about 5 months' worth. At the other extreme, with substantial tolerance having developed, an addict could use as much as 2 grams a day, so that the quantity would last only 7 or 8 days, According to the scientific research, however, Dr. Pardis testified, the average dose for a regular heroin user was found to be in the range of 200 to 400 milligrams a day; if one used 300 milligrams a day as an average (rather than the half gram Mr. Truong had told him), the quantity would represent a 7-week supply for the average user.
[54] When asked by defence counsel if, in his experience, his patients would normally have 15 grams in their possession, Dr. Pardis answered as follows:
There are so many variables in that. The officer who provided the testimony was giving very reliable information that was accurate, but he also mentioned the drug outliers… people who [deviate] from the average… They are in extreme situations. … This depends on the financial means of the… user. If the person has the financial means, they usual prefer to buy a larger quantity [because] 1. It is cheaper; 2. It reduces the risk of being caught… because the interaction with dealers exposes them to… law enforcement authorities.
[55] When asked how long 4.75 grams of crack would last the average user, Dr. Pardis testified that it was much more difficult to determine, given the absence of any "satiety phenomenon" or physical withdrawal symptoms. Based on his experience, however, a cocaine addict who used it every day might usually use a quarter gram to half a gram a day, so the quantity seized could reasonably be estimated to last a couple of weeks. Dr. Pardis repeated that whether a person would normally keep such a quantity for personal use would depend on the person's financial means.
[56] Dr. Pardis, who was not present in the courtroom when Mr. Truong gave evidence concerning the frequency and quantities of his heroin and cocaine use at the time of his arrest, nor his evidence that he stopped using the substances altogether a couple of months afterwards, testified, apparently based on the accused's self-reporting to him in July 2016, that Mr. Truong fit the profile of a young individual at the beginning of an addiction career, using "harsher drugs" only on an occasional basis and probably in smaller amounts than average. Based on what Mr. Truong told him, and given the absence of any evidence from the urine tests of any drug use (apart from cannabis, for which testing was not conducted), Dr. Pardis concluded that his addiction regarding heroin and cocaine had been in remission basically since May 2016.
[57] In cross-examination by the Crown, Dr. Pardis agreed that if Mr. Truong had claimed that he used one gram of heroin a day (the low end of what he testified to), he would be regarded as "an extremely heavy user" with a "heavy addiction." Dr. Pardis agreed that it would be very difficult for such a person to stop "cold turkey" by "self- detoxification," adding that it would be "difficult and uncommon, but not impossible." Dr. Pardis testified further that a person could not be such a heavy user, consuming one gram of heroin a day, almost twice the average usage, and achieve self-detoxification, although, in re-examination, he repeated that if a heavy user did stop "cold turkey," it would produce "lots of discomfort" and observable withdrawal symptoms, but Dr. Pardis did not explicitly rule out the possibility of such an event having occurred.
ANALYSIS
[58] It bears repetition that, given the presumption of innocence, before Mr. Truong could be found guilty of either offence charged, it was the Crown that had the burden of proving beyond a reasonable doubt that he possessed the heroin and crack cocaine for the purpose of trafficking in the particular narcotic. It was not a question of whether such a purpose would merely be the "strongest" inference (as Det. Margetson framed his opinion), but, rather, whether the Crown had proved beyond a reasonable doubt that his guilt was the only rational conclusion based on the entirety of the evidence. In the context of this case, that meant that the Crown had to eliminate any reasonable doubt that Mr. Truong had the heroin and cocaine merely for personal use, and to establish beyond a reasonable doubt that he intended to "traffic" in the drugs, within the meaning of s. 2(1) of the Controlled Drugs and Substances Act.
[59] Since Mr. Truong gave evidence, at least initially, asserting that personal use was his only purpose in possessing the drugs, his credibility was clearly an important issue in this case. Given the need to determine which evidence should be accepted as reliable, the case called for the application of the principles stated by the Supreme Court of Canada in R. v. W.(D.), 63 C.C.C. (3d) 397 at p. 409 (S.C.C.), and explained again in R. v. Dinardo, 231 C.C.C. (3d) 177 at para. 23 (S.C.C.), and R. v. J.H.S., 231 C.C.C. (3d) 302 at para. 13 (S.C.C.).
[60] Given the presumption of innocence, the doctrine of reasonable doubt applied to the credibility issue that arose in this case. If the accused's evidence-in-chief that he had no intent to traffic in the substances was either believed or left the Court in a state of reasonable doubt, then the law required that he be found not guilty of the charges. A third possibility, however, also had to be considered. Even if the relevant defence evidence was completely rejected, the accused could still only be found guilty if it could be said that the evidence on which the Crown relied was accepted as proof beyond a reasonable doubt of the facts that had to be established to make out the elements of the offence. There was clearly nothing illogical about rejecting the accused's original denial that he intended to traffic in the substances, but still not being satisfied by the other evidence of the accused's guilt beyond a reasonable doubt.
[61] As Watt J.A. observed in R. v. Wadforth, 247 C.C.C. (3d) 466 at para. 5 (Ont. C.A.),
The formula in W.(D.) is not a magic incantation, its chant essential to appellate approval and its absence a ticket to a new trial. Its underlying message is that the burden of proof resides with the prosecution, must rise to the level of proof beyond a reasonable doubt in connection with each essential element of the offence, and absent statutory reversal, does not travel to the person charged, even if his or her explanation is not believed.
[62] In this case, making the necessary assessment of the accused's credibility as a witness and the reliability of his evidence, I did reject Mr. Truong's evidence, given by him initially, that he possessed all of the heroin and crack cocaine only for his own personal consumption.
[63] There were many reasons, in my view, that required the rejection of the accused's evidence as to the purpose for which he possessed the drugs.
[64] His testimony concerning his windfall online poker winnings months prior to his arrest, seemed not only far-fetched on its face, but was unsupported by any other evidence. Mr. Truong provided no details as to when, where and how he collected the cash he claimed to have won, although it should also be observed that he was not asked by the Crown in cross-examination to answer any questions about it. His inconsistent evidence as to exactly how many months had elapsed between his alleged windfall and his arrest was likewise not the subject of questioning, but it is impossible to reconcile his evidence concerning the timing of his gambling windfall and the money he claimed to have still had available to purchase heroin and cocaine, as he testified he had, the day he was arrested.
[65] The accused's evidence failed to explain, simply as a matter of arithmetic, how, if his addictions to heroin and cocaine at the time were as severe as he claimed, and his daily use of the substances so heavy, he would still have been in a position on February 7, 2015, to have purchased and possessed what was admitted by defence counsel to be thousands of dollars' worth of drugs. According to the accused's own evidence, he was using hundreds of dollars' worth of heroin and crack per day, quite apart from the marijuana he used on a daily basis. Even given the imprecision inherent in calculating the value of particular quantities, and acknowledging the variables that can affect pricing that were not disclosed by any evidence here, the accused's testimony that he had paid about $1400 the day of his arrest to buy the drugs seized remained inconsistent not only with Det. Margetson's evidence as to their value, but with his own testimony as to how his addiction would have already exhausted any funds he had to supplement his monthly welfare cheque.
[66] Moreover, there were also numerous serious inconsistencies between Mr. Truong's evidence at trial and his statements made to Dr. Pardis in July 2016. As was the case in R. v. Burns, [1994] 1 S.C.R. 656, the accused's earlier statements were not admitted for the truth of their contents, but were led, in this case by the defence, in support of the diagnosis made by Dr. Pardis and his opinion concerning the nature of Mr. Truong's addictions and drug possession at the relevant time. That the accused made inconsistent statements at different times, however, was clearly relevant to both the assessment of his credibility generally and to the reliability of his evidence at trial concerning the crucial issue, his purpose for possessing the drugs.
[67] The accused told Dr. Pardis that his use of heroin was limited to half a gram per day, more than an average amount for a typical addict; Mr. Truong testified that at the time of his arrest, he had been using 1 to 1.5 grams of heroin on a daily basis. Mr. Truong told Dr. Pardis that he continued using heroin periodically until he stopped a couple of months before July 2016; the accused gave evidence at trial that he stopped using heroin shortly after his arrest in February 2015. Mr. Truong told Dr. Pardis he had used about a quarter of a gram of crack cocaine on an occasional basis for several years; the accused testified at trial that at the time of his arrest, he was using half a gram of crack per day. Given the inconsistencies, in my view, it was impossible to regard Mr. Truong as a credible witness who testified truthfully.
[68] I did not believe the accused's evidence-in-chief that he possessed the drugs only for personal use, nor did his initial denial of any trafficking purpose leave me in a reasonable doubt that it might be true. It is important to point out, however, that the rejection of the accused's evidence in this regard did not strengthen the Crown's case. Given the burden of proof, the onus remained on the Crown to prove all of the essential elements of each offence beyond a reasonable doubt. Findings of fact could only be based on evidence that was accepted by the court and on the inferences reasonably drawn from them. As already stated, a finding of guilt could only be made if it was the only rational conclusion that was available on the whole of the evidence.
[69] As with the evidence of any witness, it is trite to say, a court could accept all, part or none of an accused's testimony. In the case of Mr. Truong's evidence, while I rejected his evidence-in-chief as to personal use being his only purpose for possessing the drugs, and while I rejected his evidence concerning his poker windfall some months prior to his arrest, I did believe his evidence, given in cross-examination, that $380 a month from social assistance was his only lawful source of income at the time. The real question in this case, it seemed to me, was whether the Crown had proved beyond a reasonable doubt that Mr Truong was a so-called "addict trafficker" at the time of his arrest in relation to heroin and crack, intending to sell at least some of the drugs he possessed in order to finance his own drug addiction. Both parties agreed that the evidence had established that Mr. Truong was an addict at the time of his arrest, imprecise and uncertain though the nature and extent of his addictions might have been, at least so far as disclosed by reliable evidence actually called at trial. I was unable to see how the accused could possibly have afforded the heroin and cocaine in his possession, or why he would have had them unless he intended, at least in part, to have sold them to support his own addiction.
[70] The Crown's case initially proceeded on the basis that the only reasonable inference available from the evidence it called was that Mr. Truong had the drugs in order to sell some of them. Its position was essentially based on the quantity of the drugs, their value, normal patterns of consumption by addicts and street level dealing, and the absence of any evidence to support any speculative "outlier" explanation that would have been consistent with possession for personal use.
[71] Mr. Truong attempted to provide that "outlier" explanation by testifying as to his poker windfall that, he claimed, allowed him to purchase the drugs later seized by the police. Dr. Pardis testified, as well, that the quantities of heroin and cocaine possessed by Mr. Truong did not, in themselves, preclude personal use, so long as the person possessing them had the financial means to acquire them. As already repeated, the rejection of Mr. Truong's testimony concerning his online poker winnings did not make the case against him any stronger. The acceptance of the accused's evidence, however, that his only lawful income was limited to his $380 monthly welfare cheque clearly did strengthen the Crown's case. Indeed, in my view, it made it insurmountable.
[72] The trial became slightly more complicated, it seemed to me, by the reddish herring introduced by the accused's evidence in cross-examination that he was going to smoke drugs at the apartment the night the search warrant was executed, and that he was going to share the drugs with his unnamed friend present there. As a result of this admission, the Crown adopted what she described a "fall-back position." The Crown argued that even if the evidence left a reasonable doubt about his intent to sell some of the drugs he had, Mr. Truong should still be found guilty of the "possession for the purpose of trafficking" counts, because he admitted an intention to share them with his friend.
[73] There is no doubt that if a finding were made that Mr. Truong's evidence in that regard was true, it would justify a finding of a trafficking purpose, within the meaning of s. 2(1). I agree with the reasons given by B.A. Allen J. in R. v. Banovac, 2016 ONSC 3579, cited by Ms. Aird, that it is settled law that since "give" or "transfer" come within the statutory definition of "traffic," there is no requirement that money be exchanged or that there be anything more than a gift. It is a considerably less serious allegation than the Crown's primary position, but technically still sufficient to make out the charges as framed.
[74] The problem, it seemed to me, with the Crown's fall-back position, however, was that Mr. Truong's evidence that he meant to share his drugs with a friend the night he was arrested would have to be believed. The accused's apparent admission would have to be accepted as proof of his state of mind, his actual purpose, at the relevant time. Since there was nothing disclosed in the Agreed Statement of Facts or by any other confirmatory evidence, the accused's mere agreement with the Crown's suggestion, standing alone, would have to be accepted as proof beyond a reasonable doubt of the accused's trafficking purpose, albeit in a non-commercial way.
[75] While Mr. Truong's evidence in this regard could possibly have been true, I am not prepared to make a finding beyond a reasonable doubt that it was. I suspect that Mr. Truong understood in a general way that his defence to the charges was to deny any commercial purpose and that he perceived Ms. Aird's suggestion as consistent with his position, without necessarily appreciating its technical implications. I have already indicated my concerns about the honesty of Mr. Truong as a witness and the truthfulness of much his evidence. He did not appear to be a sophisticated person and seemed unconcerned by a number of internal inconsistencies and weaknesses in other parts of his evidence. He appeared to be quite suggestible and unforthcoming, having to be led at points during his examination-in-chief. There is no evidence as to who the friend was at the apartment where the search warrant was executed and what drug use, if any, he might have chosen to engage in. It was agreed that the police found no drug paraphernalia or implements usually employed in the inhalation of heroin or the smoking of crack cocaine, nor was Mr. Truong asked to be more specific in identifying the particular drug he intended to share. It might very well be that Mr. Truong was generous by nature, despite his limited means, but I am not satisfied that that was the case. In my view, the accused's admission was too vague and unreliable to permit a finding beyond a reasonable doubt that an intent to share either the heroin or the crack cocaine with his friend was indeed his purpose at the time.
[76] In my view, however, the rejection of the Crown's "fall-back" position did not relieve the Court of its responsibility to determine whether it has been proved beyond a reasonable doubt that Mr. Truong possessed both the heroin and crack for the purpose of selling at least part of the drugs.
[77] While much of the evidence called at trial focussed on the testimony and brief written reports prepared by the two expert witnesses called by the Crown and the defence, it ultimately became apparent that the differing opinions given by Det. Margetson and Dr. Pardis were limited in nature, and that their differing conclusions reflected the information, or absence of information, each had been provided with. It became clear that the hypothetical situation presented to Det. Margetson made no reference to the financial means of the hypothetical possessor of heroin and crack cocaine he was asked to consider. It was equally obvious that Dr. Pardis knew nothing of Mr. Truong's financial situation, so that his evidence concerning how many days or weeks the quantities of heroin and crack seized might have lasted his patient, based only on Mr. Truong's self-reporting of his personal use (inconsistent with his own evidence at trial), was of no particular assistance in determining whether Mr. Truong could have afforded to possess them, without having to resort to selling at least part of them. That he might have been willing to give some away as well, in the end, did not strike me as determinative of the crucial issue.
[78] What distinguishes this case from R. v. Pico, 2016 ONSC 1470, the judgment of N.J. Spies J. cited by Mr. Crosner, in my view, is that whereas there was no evidence there that the accused would not have been able to afford to pay for the quantity of crystal meth found in his possession, the evidence in Mr. Truong's case is that he could not possibly have afforded to purchase the heroin and crack cocaine without having to engage in the activities of a so-called "addict trafficker."
[79] In R. v. Toole, 2017 ONCA 305, the Court of Appeal (Simmons, van Rensburg and Miller JJ.A.) found that a trial judge had erred in law by completely deferring to the evidence of a police expert that possession of five fentanyl patches was inconsistent with personal use. The Court of Appeal found that the trial judge's reasons revealed that he effectively abdicated to the expert witness his role in determining whether the accused was guilty of the offence of possession for the purpose of trafficking. Instead, the trial judge in that case demonstrated his unquestioning acceptance of, and reliance on, the police officer's bald opinion that the quantity of fentanyl alone signified that it could not be for personal consumption, even for an addict.
[80] In this case, Det. Margetson did not express any such "bald opinion" that the quantities of heroin and crack cocaine themselves necessarily precluded the possibility of personal use. It was also significant, I think, that Dr. Pardis testified that he regarded the officer's evidence as reliable and accurate. At the same time, however, it was clear that the officer's evidence was generalized in nature, framed in terms of what is typical concerning quantities of heroin and crack cocaine possessed by users, and the usual expectations, based on police experience rather than scientific research, concerning street level narcotics trafficking. Det. Margetson appeared to frame his conclusion in terms of consistency with a trafficking purpose and inconsistency with personal consumption, but always subject to the caveat that an exceptional circumstance, or an "outlier" explanation, not included in the hypothetical scenario presented to him, would not be beyond the realm of possibility.
[81] Similarly, when Dr. Pardis stated his opinion that the amounts of heroin and cocaine the accused told him had been seized from him - somewhat less than the undisputed quantities actually found - were consistent with possession for personal use, it was apparent that Dr. Pardis failed to consider, as already stated, his patient's economic circumstances, about which he knew nothing. It was apparent, I think, that rather making a critical or skeptical assessment of the information his patient provided, Dr. Pardis simply regarded it as sufficiently plausible to justify his basing his professional opinion on it.
[82] It was not Dr. Pardis's role to attempt to reconcile differing versions of the extent of Mr. Truong's heroin and crack addictions provided by the accused at different times. It was also not for Dr. Pardis to assess the accused's claim in his evidence, not even heard by the witness, of self-detoxification at a much earlier time and from a much heavier addiction than he admitted to the doctor, although the likelihood of such a successful remission from the addictions reported by the accused would have been greatly reduced. Similarly, it was not required of Dr. Pardis to make any inquiry or take into account Mr. Truong's financial resources in determining whether his opinion that his patient's possession of the heroin and crack was for personal use, remained valid even after his patient testified that his only lawful income was $380 a month from his welfare cheque. All of these issues, however, required the Court's consideration and determination.
[83] I was satisfied that the only rational conclusion was that Mr. Truong's financial means made it impossible for him to have purchased the heroin and crack he had in his possession, without there also having been an intention on his part to sell at least part of the drugs for gain. It was agreed that the drugs were worth thousands of dollars, even using conservative figures applicable to wholesale pricing. How he would have managed to avoid the higher retail prices generally charged to consumers was simply not an area explored in the evidence. The inescapable conclusion, I was satisfied beyond a reasonable doubt, was that Mr. Truong possessed the drugs in order to sell them at a profit in order to fund his continuing use of marijuana and any other drug he might have been abusing at the time.
[84] Despite the many questions left unasked and unanswered in this case, I nonetheless accepted the Crown's position that the evidence required the conclusion that the accused was indeed an "addict trafficker," possessing both the heroin and crack cocaine for the purpose of engaging in commercial trafficking, in addition to whatever use of the drugs he might have made himself.
[85] The only available finding, in my view, was that the Crown had proved both offences charged beyond a reasonable doubt.
Released: October 2, 2017
Signed: Justice David A. Fairgrieve