Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2022 04 04 COURT FILE No.: HAMILTON #20-3700

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

PETER ZENGER

Before Justice M.K. WENDL

Heard on: January 4, 6, and March 21, 2022 Reasons for Judgment released on: April 4, 2022

Counsel: J. Little, for the Federal Crown J. Stephenson, for Peter Zenger

WENDL J.:

[1] Peter Zenger is charged with possession for the purpose of trafficking in cocaine and morphine. He is also charged with having possession of Canadian currency under 5000 dollars knowing that it was derived from crime.

[2] The events relate to a traffic stop on old Guelph Road in Hamilton. The police contend Mr. Zenger was stunt driving. Upon arrest he was searched, and cocaine was found on his person, approximately 69 grams. Upon finding the cocaine, the police then searched his vehicle and located 127 morphine pills in the central console. Mr. Zenger argues that, based on his version of events, the police did not have grounds to arrest him for stunt driving and, therefore, search him incident to arrest. As a result, he is applying under section 8, 9 and 24(2) to have the evidence derived from the search, namely the cocaine and morphine, excluded from trial. He also argues, if the evidence is admitted at trial, that the drugs found in his possession were only for his personal consumption not for the purpose of trafficking.

[3] For the most part, this trial comes down to credibility. Mr. Zenger testified at both the trial and voir dire, in a blended fashion. However, it must be remembered that a credibility assessment as it relates to a Charter voir dire is different than at a trial. As Justice Felix stated in relation to assessing credibility on a Charter application:

At the outset, it is important to emphasize that this is an application -- not a trial. With respect to the assessment of credibility issues on the Charter application, the principles pronounced in W.(D). v. The Queen (1991), 63 C.C.C. (3d) 77 (S.C.C.) do not apply. The guilt or innocence of the applicant is not being determined and the criminal standard of proof does not apply: (See the reasoning in F.H. v. McDougall, 2008 SCC 53; R. v. Ram, 2014 ONCJ 788; R. v. Korzh, 2015 ONCJ 738; and R. v. Khan, 2012 ONCJ 130.

The evidentiary record produced by the applicant must persuade me on a balance of probabilities that his version of the events are to be preferred. Simple preference of the applicant's evidence is sufficient. [1]

[4] As regards the trial, this Court must apply the reasonable doubt standard with specific regard to the principles enunciated in W.D. Therefore, given the different burdens, the analyses must remain conceptually distinct, in my view.

CHARTER VOIR DIRE

[5] Officers Reid and Little testified on behalf of the Hamilton police. On the day in question, they were part of the ACTION team and were committed to doing Covid by-law enforcement in Dundas. They were driving in an unmarked vehicle along old Guelph Road to attend at their destination.

[6] Officer Reid testified that while checking her rear-view mirror, a pickup was driving extremely close to her so that she could not see the bumper, the licence plate or the occupant of the vehicle. According to Officer Reid, the vehicle appeared to be swerving outside of the lane as if to try and look around the police van. After a bit of this to and from of the Zenger vehicle, the accused finally pulled past the police van at a high rate of speed. While passing the vehicle Mr. Zenger gave the police van the finger. To catch up to the Zenger vehicle after it passed, Officer Reid indicated she had to go 120 km an hour. The posted speed limit on Old Guelph Road is 50 km an hour.

[7] Officer Little summarized his reasons for stopping the vehicle:

No problem. So, from the moment that I noticed the vehicle, the vehicle was aggressively behind our motor vehicle so much so, as I stated earlier, that I could not see the front number plate, let alone the headlights on it. That is dangerously close and that is tailgating. But with that being said, he was trying to – what I described it, that’s what I felt, it felt like he was trying to push our vehicle to go faster, to go faster to the speed that he wanted to drive. That coupled with the swerving and riding over the solid painted yellow line also very close behind us, which is in an aggressive manner, it was almost kind of an intimidation of back and forth, back and forth. And then when he started to pass our motor vehicle - passing a vehicle, yes, it did involve having to speed up, but that’s a continuous motion where you would pass the vehicle, move past them and keep going. He chose not to do that. Instead, he took a very rash movement left, accelerated hard to get up beside our vehicle, and then stayed in that lane almost kind of pacing our vehicle for a few seconds to give a very aggressive hand gesture, the middle finger. And that in itself, he’s now looking at Officer Reid in our vehicle, is not paying attention to the roadway, and he didn’t do a continuous motion to make that pass. He’s now sitting in that oncoming lane for seconds and then he continues on at a high rate of speed, makes a hard right turn back into our lane in an aggressive - it wasn’t a gradual back in, and took off a very high rate of speed. So, that in totality in my mind unequivocally I said “This is stunt driving, he’s going to kill someone, we need to stop this vehicle.”

[8] Mr. Zenger, on the other hand, indicates that he was 30-40 feet behind the van the whole time. He testified that the van would speed up and slow down and “brake checked” him. By the time they were on Old Guelph Rd, he got caught up to the van again after the second bend. The van then brake checked him, he then passed the van and gave them the middle finger. It was at this time that he realized they were police. He testified that he kept driving but had already slowed down because he knew he would be pulled over. Mr. Zenger expected to get a ticket for passing on a solid line. When he passed the van, he testified that he could not have been travelling at more than 70 kms per hour.

[9] The defence also contends that the police saw his Hell’s Angels support toque, while he was passing the police truck, which was an added feature to the stop.

[10] In comparing both events, I accept the evidence of Officers Reid and Little, it makes logical and consistent sense. I find it more likely and probable than the evidence of Mr. Zenger. The officers were driving in an unmarked van, they were going to Dundas to enforce Covid by-laws, they were not enforcing traffic concerns, they were on their way to a dedicated assignment. Stopping Mr. Zenger and arresting him for stunt driving required them to deviate from their prescribed duties. This required them to engage in risky driving behaviour since they had to speed up and catch up to Mr. Zenger in an on-coming lane pull up beside him and signal him to stop. The police vehicle, being unmarked, did not have the benefit of a siren or lights. It defies common sense that they did this because they were bored, as counsel contends, or simply because Mr. Zenger gave them the finger. Moreover, I do not accept the defence’s contention that the officers would have noticed NOMADS written on Mr. Zenger’s hat as he was speeding past them and giving them the finger. Both officers specifically deny any recollection of the writing on Mr. Zenger’s hat. I accept that, and, again, it simply makes sense. Since Mr. Zenger was speeding past them and giving them the finger, I find that the focus would not have been on Mr. Zenger’s hat even if it could be clearly seen.

[11] As for the discrepancies in the time estimates of the officers, they were minor and involved small amounts of time. It is not a reason to discount the evidence of either officer. As it relates to the discrepancies as to where Officer Little advised Mr. Zenger of his right to counsel, I accept that Mr. Zenger was not in the back of the police cruiser as officer Little described, but this is peripheral.

[12] Even though I accept the evidence of officers Reid and Little, this does not end the analysis. I must still determine if the requisite grounds for the arrest on the stunt-driving charge and subsequent search existed.

[13] The existence of reasonable grounds for an arrest, both as to objective grounds and the officer’s subjective belief, must be determined on the totality of the circumstances. A subjective belief in the existence of a set of facts can be reasonable even if the existence of those facts is not probable. In this context, reasonable relates to legitimate expectations that a fact exists, without being able to say that it is more likely than not. [2] An officer’s belief does not need to be correct in order to be reasonable; reasonable grounds can be based on an officer’s belief that certain facts exist, even if that belief turns out to be mistaken. [3]

[14] The reasonable grounds to believe standard requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities. [4] The meaning of the reasonable and probable grounds standard imports a standard of reasonable probability, which entails something less than proof beyond a reasonable doubt or a prima facie case, but something more substantial than reasonable suspicion, and much further along the spectrum than mere possibility or suspicion; the standard is said to be met at the point where credibly-based probability replaces suspicion. [5] The police are not required to establish a prima facie case for conviction in order to make a warrantless arrest. [6]

[15] O. Reg. 455/07, s. 3 defines stunt driving

Definition, “stunt”

3. For the purposes of section 172 of the Act, “stunt” includes any activity where one or more persons engage in any of the following driving behaviours:

4. Driving a motor vehicle in a manner that indicates an intention to lift some or all of its tires from the surface of the highway, including driving a motorcycle with only one wheel in contact with the ground, but not including the use of lift axles on commercial motor vehicles.

5. Driving a motor vehicle in a manner that indicates an intention to cause some or all of its tires to lose traction with the surface of the highway while turning.

6. Driving a motor vehicle in a manner that indicates an intention to spin it or cause it to circle, without maintaining control over it.

7. Driving two or more motor vehicles side by side or in proximity to each other, where one of the motor vehicles occupies a lane of traffic or other portion of the highway intended for use by oncoming traffic for a period of time that is longer than is reasonably required to pass another motor vehicle.

8. Driving a motor vehicle with a person in the trunk of the motor vehicle.

9. Driving a motor vehicle while the driver is not sitting in the driver’s seat.

10. Driving a motor vehicle at a rate of speed that is 40 kilometres per hour or more over the speed limit, if the speed limit is less than 80 kilometres per hour.

7.0.1 Driving a motor vehicle at a rate of speed that is 50 kilometres per hour or more over the speed limit, if the speed limit is 80 kilometres per hour or more.

7.1 Driving a motor vehicle at a rate of speed that is 150 kilometres per hour or more.

8. Driving a motor vehicle without due care and attention, without reasonable consideration for other persons using the highway or in a manner that may endanger any person by,

i. driving a motor vehicle in a manner that indicates an intention to prevent another vehicle from passing,

ii. stopping or slowing down a motor vehicle in a manner that indicates the driver’s sole intention in stopping or slowing down is to interfere with the movement of another vehicle by cutting off its passage on the highway or to cause another vehicle to stop or slow down in circumstances where the other vehicle would not ordinarily do so,

iii. driving a motor vehicle in a manner that indicates an intention to drive, without justification, as close as possible to another vehicle, pedestrian or fixed object on or near the highway, or

iv. making a left turn where,

(A) the driver is stopped at an intersection controlled by a traffic control signal system in response to a circular red indication;

(B) at least one vehicle facing the opposite direction is similarly stopped in response to a circular red indication; and

(C) the driver executes the left turn immediately before or after the system shows only a circular green indication in both directions and in a manner that indicates an intention to complete or attempt to complete the left turn before the vehicle facing the opposite direction is able to proceed straight through the intersection in response to the circular green indication facing that vehicle. O. Reg. 455/07, s. 3; O. Reg. 320/19, s. 1; O. Reg. 410/21, s. 1.

[16] Of relevance to our analysis is section 4, motor vehicle occupy a lane of traffic or other portion of the highway intended for use by oncoming traffic for a period of time that is longer than is reasonably required to pass, section 7, driving at a high rate of speed, and 8.iii, which is following too closely. Based on the evidence of officers Reid and Little I find that reasonable grounds existed, both subjectively and objectively. They both testified that Mr. Zenger tailed the van for a period of time, he drove past and hung beside them for a period of time to give them the finger and then sped past them at a high rate of speed. I will add that I find the assessment of high speed reasonable in the circumstances. Although the Officers did not have a radar gun, they would be able to make a reasonable assessment of the speed, which is objectively supported, based on their evidence as to how fast they were travelling and how fast they had to go to catch up to Mr. Zenger.

[17] I find no breach of Mr. Zenger’s section 9 rights for his initial detention. However, Officer Little, who initially searched Mr. Zenger, never stated the reason for searching Mr. Zenger’s person incident to the arrest. As the Supreme Court in Caslake:

This means that the police must be able to explain, within the purposes articulated in Cloutier, supra (protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose, why they searched. They do not need reasonable and probable grounds. However, they must have had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable. [7]

[18] Although the applicant bears the onus of proof on the balance of probabilities for the Charter breach, the Crown bears the onus of proof to show that the search was reasonable. Here, I do not know why officer Little searched Mr. Zenger. Again, as the Supreme Court said:

In my view, the police must have one of the purposes for a valid search incident to arrest in mind when the search is conducted. Further, the officer's belief that this purpose will be served by the search must be a reasonable one. [8]

[19] The reasonableness of a search incident to arrest is analyzed through the purpose of the Officer’s search and I do not know what it is. In the absence of evidence, it would be speculating to say that it was for the purpose of officer safety or an inventory search. Quite frankly, the purpose for searching someone incident to an arrest for stunt driving is not self-evident to this Court. Therefore, I must find a breach of Mr. Zenger’s section 8 right in relation to the search of his person. The only inference I can draw from the lack of evidence on the reason for the search incident to arrest is that Officer Little did not turn his attention to it and he did not have a valid purpose in mind. Since the search of Mr. Zenger’s person provided the grounds for the search of the vehicle, I find a breach of his section 8 rights in relation to the search of the vehicle as well.

[20] Having found a breach, I now turn to the Grant analysis. On the evidence I have, Officer Little simply did not turn his attention to the reasons for searching Mr. Zenger incident to arrest. Again, the reason for searching someone incident to arrest for stunt driving is not self-evident to this Court. In addition to that, the subjective purpose of the search delineates the scope of the search incident to arrest. Therefore, not only did Officer Little not have a valid reason in mind for his search incident to arrest of Mr. Zenger, he also did not turn his mind to the limits of his search. Viewed in the light of the purpose of section 8, to prevent unreasonable searches before they occur, the conduct must be considered on the more serious end of the spectrum, especially since the requirement for search incident to arrest is not overly onerous.

[21] On the second branch, I find that there is a minimal impact on the Charter protected interest of the accused. First, Mr. Zenger’s arrest was valid and the ziplock bag of cocaine was readily ascertainable. It did not involve a particularly intrusive search: [9]

So, I had him exit the truck, he exited, standing right at the truck bed, I went to go put the handcuffs on him – excuse me – and then search incident to arrest, yeah, began a search just outside of his jacket and the first thing that I came into contact on his right jacket – his right pocket was a large bag, a see-through, clear, Ziplock bag of what appeared to be cocaine.

[22] In relation to the search of the vehicle, again, as noted in Caslake, there is a limited privacy interest in the vehicle where the pill bottle was located. [10]

[23] Finally, the evidence is real and reliable. Also, exclusion of the evidence would effectively terminate the Crown’s prosecution. As the Supreme Court noted in Côté, excluding highly reliable evidence may more negatively affect the truth-seeking function of the criminal law process where the effect is to gut the prosecution's case, [11]

[24] In balancing all the factors, I admit the evidence of the cocaine and morphine to trial.

POSSESSION FOR THE PURPOSE

[25] The defence has conceded simple possession of the illicit substances if the Court ruled the evidence admissible. Consequently, the issue for trial is whether Mr. Zenger was in possession of those substances solely for his personal possession or in possession for the purpose of trafficking. The Crown called an expert in possession for the purpose of trafficking, his qualifications were conceded. The crux of his testimony supports the inference that Mr. Zenger was in possession of the morphine and cocaine for the purpose of trafficking. He testified that he has not experienced individuals purchasing at the ounce level for their own consumption. A typical cocaine user may consume as little as 0.5g per day, while a “heavy” user may consume up to 3.5g per day. He stated that an individual who fits under the category of “heavy” user is not the type of individual who can consistently maintain steady employment since cocaine is a stimulant which causes people to stay up for prolonged periods of time. Heavy use would ultimately impact the individual’s performance. Moreover, he testified that it is very uncommon for persons to use cocaine in excess of the range indicated. Significantly, he has not encountered anyone who is classified as an “average” user (0.5g per day) who ever purchased 69g of cocaine. He noted that the presence of morphine pills in combination with cocaine is an indicium of trafficking since sellers will possess more than one type of drug to maximize profits. The strength of the morphine pills being 100mg per pill is towards the upper end of opiate pills. The street value of the pills is approximately $30 per 10 pills. He also noted that it would be counter-intuitive to consume both cocaine and morphine as cocaine is a stimulant whereas morphine will bring an individual “down”. Furthermore, as the Crown noted, there is a complete absence of indicia of usage for cocaine upon arrest.

[26] As indicated above, Mr. Zenger testified on his own behalf at trial and, in contrast to the burden of proof on the voir dire, the principle of reasonable doubt applies. To this end, the Supreme Court laid down the analysis in W.D. It ensures that the “lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt” [12] and it prevents reversing the burden of proof. A reversal of the burden of proof occurs when the trier of fact rejects the evidence of the accused and thereby jumps to conviction simply because the accused has not proven their innocence. [13] Ultimately, the purpose of W.D. is to keep the fundamental question of the trial in view: “the paramount question remains whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused”. [14]

[27] The W.D. formula is not a magical incantation. [15] It does not require that I analyze the evidence in any particular order. [16] While mere reference to it will not save its evident misapplication [17], it is a useful anchor to any credibility analysis:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[28] I reject the testimony of Mr. Zenger at trial, and it does not raise a reasonable doubt.

[29] First, he was vague and evasive when it came to his purchase of the cocaine. The defence concedes that he was vague but posits that the Court should accept this vagueness given the “concern buyers have regarding drug dealers.” I disagree, the defendant is effectively inviting the Court to assume a different standard of credibility to purchasers of illicit narcotics. Moreover, the defence is inviting the Court to assume some kind of judicial notice as to the behavior of drug purchasers in relation to their dealers and I am not clear exactly as to what that is. The purchase of the cocaine and the consumption of it by Mr. Zenger is a core issue of this trial. The defence argues that I should not take into account his vague testimony in assessing his credibility for some vague reason relating to the relationship of drug dealers and buyers. Mr. Zenger has no onus to prove his innocence, but if he does take the stand, again, which he does not have to, he can expect the same analytical standard as other witnesses.

[30] In relation to the possession of the morphine, I agree with the Crown, the evidence defies logic. Mr. Zenger’s testimony was that the package of 127, 100 mg, morphine pills, found in his vehicle, were sent to him from Alberta, because they were left there in his residence in 2016 and 2017. Then for some reason, some person in 2020, 3-4 years later, chose to mail it him. The story strains credulity.

[31] Moreover, by his own evidence he did not consume morphine, he switched to oxycontin and then hydromorphone.

Well, I started at the regular morphines in the beginning and then, you know, they didn’t work, then it went to the oxycontin, all through those milligrams, 10, 20, 40 to 80 milligrams, and he dosed me eight a day, two pills four times a day; that’s a massive dose. They took that off the market and that’s when I went to the hydromorphine [sic] which, again, is a huge dose. That was the last prescriptions that I had. And then as I mentioned, I didn’t get anymore prescriptions after that point and my medical stuff, they could only go back to 2016 and some of ’17 and I said, “I really need my whole thing,” and they said that I’d have to pay for a software company to retrieve it because the file goes back that far.

[32] This was corroborated by the prescription print out he provided to the Court from T. Michael Pharmacy here in Hamilton from 2016-2017. It reveals no prescription filled out for morphine in 2016 and 2017, specifically when he is supposedly living in Alberta. Mr. Zenger further confirms in examination in chief that it was the only pharmacy he received prescriptions for opiates from back then:

Q. Is that the pharmacy you generally attend to?

A. Well, that is the pharmacy that I always attended, but they’re not there anymore. They’re way down in the east end, because I had to find them. And they moved out of the east end. It’s the only pharmacy I went to, but I haven’t been because I’m not on the opiates anymore.

[33] When it was put to Mr. Zenger that the morphine was not on the printout, he explains that he got the morphine pills before 2016.

Q: And the morphine, then, would have to precede the March 23rd, 2016.

A: Of course it would have preceded that, much preceded that, because that was the beginning. And that was the beginning of that 14-year ride.

[34] However, even based on this testimony, I do not accept that he was in possession of the morphine pills lawfully. According to him, he would have received the morphine at the beginning of the 14-year ride and, given his earlier testimony, he then switched to OxyContin, which was then taken off the market, and then to hydromorphone. By his own testimony I find he would not have been in possession of morphine in 2016 when he was in Alberta. As he stated, he used morphine at the beginning of his opiate consumption and 2016-2017 was the end of it. Moreover, I can also conclude that any morphine he was prescribed was much earlier than 2016, since again, he testified he consumed oxycontin for a period, in between hydromorphone and morphine, and in 2016 the printout does not reveal any purchase of oxycontin. Put another way, it might make sense that he had oxycontin with him in Alberta, since it was the drug he used prior to hydromorphone, it makes no sense that he would take morphine with him.

[35] Mr. Zenger’s evidence as a whole was not credible. He was vague and evasive about the purchase of cocaine and there was a major contradiction about the consumption of morphine within a story itself. His evidence about receiving a package from Alberta, around 3 years after leaving a residence, strained believability. For the most part, it seemed like he was making up his evidence as he went along.

[36] I accept the Crown’s expert evidence as outlined above and I find that based on the sheer amount of narcotics, the two different types of narcotics and the consumption habits of regular users, Mr. Zenger is guilty of possession for the purpose in both morphine and cocaine.

[37] However, on the charge of possession of proceeds of crime under 5000 dollars, I do have a reasonable doubt that the funds located on him were proceeds of crime. I accept that he has a good paying job and may have used that money to purchase the narcotics.

Released: April 4th, 2022 Signed: Justice M.K. Wendl

Footnotes:

[1] R. v. Stewart, [2019] O.J. No. 814 (ONCJ) [2] R. v. Loewen, 2011 SCC 21, [2011] 2 S.C.R. 167 [3] R. v. Protz, 2020 SKCA 115, at para. 39 [4] R. v. Kassar, 2017 ONSC 7436 at para 47 [5] Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 167 [6] R. v. Storrey, [1990] 1 S.C.R. 241 at pp. 250-51 [7] R. v. Caslake, 1998 1 SCR 51 at para 25 [8] Ibid at para 19 [9] Ibid at para 34 [10] Ibid [11] R. v. Côté (2011), 276 C.C.C. (3d) 42, 421 N.R. 112, 97 W.C.B. (2d) 17, 2011 SCC 46 (S.C.C.), at para. 47 [12] R. v. S. (J.H.) (2008), 2008 SCC 30, 231 C.C.C. (3d) 302 (S.C.C.). [13] Canadian Criminal Law Review, February, 2017 Doubt about Doubt: Coping with R. v. W. (D.) and Credibility Assessment David M. Paciocco [14] R. v. Y. (CL), 2008 SCC 2 at para. 6. [15] R. v. S. (W.D.), [1994] 3 S.C.R. 521. [16] R. v. Y. (CL), supra note 3, at para. 12. The full quote is as follows “I find it difficult to see how the sequence in which the trial judge set out her findings of credibility can be said to undermine her articulated and correct statement of the law, or demonstrate that she lost sight of a paramount legal principle like reasonable doubt.” [17] Ibid, at 32.