DATE: May 16, 2023 COURT FILE No: 21-0268-04 ONTARIO COURT OF JUSTICE
B E T W E E N :
HIS MAJESTY THE KING
-AND-
CLAYTON FORREST
Before: Justice M. G. March
Heard on: February 23 & 27, 2023
Reasons for Judgment rendered: May 16, 2023
Counsel: Timothy McCann, Counsel for the Federal Crown Jennifer Ho and Kimberley Pegg, Counsel for Clayton Forrest
March, M.G., J. :
Introduction
[1] On August 3, 2022, the trial of Clayton Forrest (“Forrest”) began after he entered pleas of not guilty to offences alleged to have been committed on February 26, 2021, as follows:
a) that he did unlawfully possess for the purpose of trafficking methamphetamine, and
b) that he did unlawfully possess for the purpose of trafficking fentanyl,
both of which are contrary to section 5(2) of the Controlled Drugs and Substances Act (“the CDSA”).
[2] At the outset of trial, Forrest’s counsel brought an application seeking standing to challenge the Warrant to Search (“the Warrant”) executed at a residence located in Renfrew, Ontario, where Forrest was a “guest”.
[3] On August 4, 2022, I dismissed the application by way of written reasons. (see R. v Forrest, 2022 ONCJ 643).
[4] The trial then re-commenced before me on February 23, 2023. On consent of defence counsel, I granted an amendment sought by the Federal Crown to the count alleging possession for the purpose of trafficking in fentanyl to simple possession of that drug.
[5] The Federal Crown called five members of the Ontario Provincial Police (“OPP”) in its attempt to prove Forrest’s guilt beyond a reasonable doubt.
[6] Defence counsel called no evidence.
[7] The trial ended on February 27, 2023, after I heard oral submissions of Crown and defence counsel.
[8] The case for the Crown against Forrest is, for the most part, an entirely circumstantial one.
[9] It also rises or falls on the Crown’s ability to prove continuity beyond a reasonable doubt for samples of suspected drugs found within the residence, samples of which were then sent to Health Canada and analyzed scientifically by that agency to ascertain the nature of the substances.
[10] Assuming continuity is proven, the only manner by which the Crown can secure a conviction against Forrest is to persuade the Court beyond a reasonable doubt that the only reasonable inference which can be drawn in respect of the controlled drugs, methamphetamine and fentanyl, found in the residence searched by the OPP under authority of the Warrant were in Forrest’s possession, and in particular, the methamphetamine was possessed by him for the purpose of trafficking.
The Evidentiary Background
Det. Cst. Scott Wood:
[11] On the date the Warrant was executed at the residence, namely 136 Argyle St., Renfrew, ON, Detective Constable Wood (“Wood”) was acting in his capacity as a member of the Street Crime Unit of the Upper Ottawa Valley OPP.
[12] Wood arrived at the residence at 9:40 AM on February 26, 2021. Shortly thereafter, he participated in a search of the basement. However, as he put it, he had “limited dealings” with the persons located down there.
[13] In the middle of the room within the basement on a white rocking chair, he located three items:
a) a backpack,
b) documentary evidence belonging to a male, and
c) a small diary which contained entries that appeared to be a debt list.
[14] A portion of the basement, Wood explained, was arranged as a living area with a bed, table and chair.
[15] When presented with photographs of the white rocker with a backpack placed on the floor roughly a few feet away next to a stool, and a close-up of the backpack, Wood could not say that it was the same backpack he located on the rocker.
[16] The documentation, Wood testified, referred to a male by the name of Matthew Malcolm (“Malcolm”). Specifically, they were pay stubs issued in his name from an employer called Bonnechere Excavating.
[17] Within the small diary/day planner, Wood located an entry “May 1 - 2G - $160”.
[18] In addition to Malcolm, three other adults were present in the residence at the time the Warrant was executed, namely:
a) Megan Beckett (“Beckett”),
b) Forrest, and
c) Abigail Cliche (“Cliche”).
[19] Under cross-examination, Wood agreed that the basement area was sufficiently large to allow for multiple people to be present.
[20] The officer located the suspected debt list within the backpack. The record of employment/paystubs were also found inside.
[21] He conceded that he did not locate a name written anywhere on the green notebook with the debt list.
[22] Under the table was a clutch purse with $420 cash in it and identification for Cliche. Wood clarified that he did not find the clutch purse. He believed it was located by his fellow police officer, Detective Sgt. Hartwick (“Hartwick”).
[23] Wood explained that Hartwick counted the cash in front of Wood as a customary police practice whenever cash is discovered.
[24] Upon re-examination, Wood indicated that any of the items he seized from the basement of the residence were photographed and then handed over to Detective Constable Busschaert (“Busschaert”), who was acting as the Exhibit Officer.
Det. Cst. Yarmel:
[25] Detective Constable Yarmel (“Yarmel”) was the lead investigator for the execution of the Warrant at 136 Argyle St., Renfrew on February 26, 2021.
[26] He indicated that as he approached the residence on its west side on the morning of the search, he encountered one of its occupants, Malcolm, outside the residence.
[27] Yarmel added that he was the author of the Warrant. He knew Malcolm to be one of the main suspects he identified in the Information to Obtain (“ITO”) for the prior judicial authorization to enter and search the residence.
[28] Although he went inside the house, Yarmel did not himself participate in the search. He did nevertheless notice that the home was in disarray. By this, he meant it was in poor condition.
[29] He explained that there was access to the basement from the rear of the house. Specifically, one could go downstairs to the basement from the kitchen.
[30] Yarmel testified that the house itself was divided into two separate dwelling areas. One part belonged to Malcolm and his common-law spouse, Beckett. The other belonged to Beckett’s parents. Malcolm and Beckett occupied the unit at the back. Beckett’s parents were at the front. It was Yarmel’s understanding that Beckett’s father owned the house.
[31] Also present within the dwelling area belonging to Malcolm and Beckett were two other adults, Cliche and Forrest.
[32] Yarmel indicated that he knew Malcolm very well from previous dealings with him. It was Yarmel’s information that Malcolm was a user and dealer of illegal drugs.
[33] The officer knew as well that Beckett was Malcolm’s intimate partner. The two had children together, who were also located within their dwelling area.
[34] Yarmel testified that he was familiar with Cliche too. She was known to him to be a drug user.
[35] The officer also was aware that Forrest was located in the basement on the day in question. Yarmel had no prior dealings with Forrest. Nor was he aware that Forrest would be at the residence at the chosen time for the designated members of the OPP to search the home of Malcolm and Beckett.
[36] In addressing the issue of continuity of the items seized during the execution of the Warrant, Yarmel explained that the process followed by police was to put them in a “temporary vault”, which is essentially a locked filing cabinet. Normally the administrative sergeant for the OPP detachment would have access to the vault.
[37] If an officer wished to take a sample of one of the substances seized during the execution of a search warrant to be sent to Health Canada for analysis, requests would be made of the sergeant. In this police investigation involving Malcolm, Beckett, Cliche and Forrest, as the lead investigator, Yarmel made such requests of the sergeant, one Hayley Sarault (“Sarault”). Due to medical reasons, at the time of giving his evidence, Yarmel indicated that Sarault was on leave.
[38] Yarmel testified that on March 12, 2021, he requested Sarault send such samples of the substances seized during execution of the Warrant for scientific analysis prior to her going off duty. He noted that he utilized an incident number “RM 2102123” to associate the samples with Forrest and the other adults found in the residence on the day in question, February 26, 2021.
[39] Yarmel “assumed” that Sarault packaged the samples into five sealed drug envelopes with Health Canada numbers preprinted on them. On March 16, 2021, he confirmed that the samples were sent out to Health Canada. On March 17, 2021, he received acknowledgement from Health Canada that all such samples sent to that agency with predesignated identifying numbers on them were received via Purolator Courier in sealed, unopened packages.
[40] All identifying numbers for the samples sent by Sarault matched with what Yarmel was seeking to have analyzed.
[41] Five Certificates of Analyst indicating what drugs were contained in the samples sent by the Renfrew OPP for analysis by Health Canada were filed collectively as Exhibit No. 23 at trial.
[42] The analysis was conducted by Health Canada over the course of two days, May 31 and June 1, 2021, to identify the drug(s), if any, contained in each sample.
[43] Under cross-examination, Yarmel confirmed that in his ITO, he identified Malcolm and Beckett as the subjects in which police had an interest. Malcolm was the primary target. Forrest was not. Nor was Forrest ever observed in the past coming and going from Malcolm’s and Beckett’s residence.
[44] Yarmel acknowledged that the OPP had the subject residence under surveillance for a considerable time spanning October 2018 to January 2021. Over the course of that period, Malcolm Beckett and one Colin Campbell were frequently observed coming and going. However, Yarmel understood that it was only Malcolm and Beckett who lived there.
[45] On no other occasion except for February 26, 2021, when the Warrant was executed, did police ever observe Forrest at the residence. Nor did police have any knowledge of how long Forrest had been in the residence on the day in question.
[46] Yarmel indicated that there were multiple doors within the house with access to the rear unit dwelling area occupied by Malcolm and Beckett.
[47] The officer was not aware of the location of any documents seized by members of the OPP upon execution of the warrant on February 26, 2021, to suggest that Forrest lived at the subject residence.
[48] At the time of his arrest, Malcolm had $215 cash on his person. None of the other three individuals arrested had cash on them.
[49] Regarding his role in having samples of suspected drugs seized during execution of the Warrant at the residence sent to Health Canada for scientific analysis, Yarmel clarified that he did not personally send them himself. It was his colleague, Sarault, who packaged the samples to be delivered to Health Canada via courier. He was not aware of any notes made by Sarault regarding the procedure she followed in taking the samples of the items seized during execution of the Warrant and identifying them for Health Canada to conduct its analysis.
[50] Nor was Yarmel aware of any photographs taken by Sarault with packing slips as she performed the task of having the samples taken from the vault, placed in envelopes and sent to Health Canada. Indeed, it was Yarmel’s own name placed on the Purolator packing slip sent by the Renfrew OPP to Health Canada.
[51] Yarmel conceded that he relied upon Sarault to perform the task of taking the samples to determine what the seized substances were in fact following scientific analysis.
Det. Sgt. Mike Hartwick:
[52] Detective Sgt. Mike Hartwick (“Hartwick”) testified that he was in charge of the Community Street Crime Unit of the OPP for all of Renfrew County. In this role, he was responsible for the allocation of all resources in the execution of a search warrants at private residences.
[53] He testified that he participated in the search of 136 Argyle St., Renfrew on February 26, 2021. He understood that the targets of the drug investigation were Malcolm and Beckett. On this particular day, he assumed the role of photographer.
[54] Upon arrival at the residence that morning, he recalled that Malcolm was outside. Beckett was on the main level of their portion of the house with their two children. Forrest and Cliche were in the basement.
[55] Hartwick explained that customarily, when members of the OPP conduct a search of a private residence, they first ensure that all occupants are removed. Then photographs are taken of the interior. Next an individual officer is assigned to each room to search it. Items seized by those officers are then turned over to an Exhibit Officer.
[56] Hartwick stated that he had heard of Malcolm in police circles. He had never dealt with Beckett, Forrest or Cliche.
[57] During the search of Malcolm and Beckett’s dwelling area, Hartwick prepared a Photo Log Sheet. The document was set out in table form. It consisted of textual descriptions of what each of the 66 photos taken by Hartwick captured, as well as the time of day for each and its corresponding JPEG number. The Photo Log Sheet was made Exhibit No. 1 at Forrest’s trial.
[58] One of the photographs made Exhibit No. 3 at trial, and No. 26 in Hartwick’s Photo Log Sheet, was of the entire contents of a multi-coloured Roots backpack found on top of a bed in the basement. A key belonging to a Toyota vehicle was in it. As well, inside the front compartment of the backpack within a black cloth pouch with a drawstring, Hartwick located suspected powdered fentanyl and cocaine.
[59] There were also prescription drug containers in the backpack, and a Medical Report for a Canada Pension Plan Disability Benefit, which Hartwick photographed, and which were made respectively Exhibit Nos. 7 and 8 at Forrest’s trial. Two of the five pill containers had Forrest’s name on them. One was dated February 3, 2021.
[60] The Medical Report set out Forrest’s name in full, his date of birth, his address, his social insurance number and telephone number.
[61] Within a black nylon bag on top of a table near the bed, Hartwick also photographed and seized packaging material, and an operational electronic scale. There were also packaging materials and a black “Moto E”, prepaid cell phone box with suspected debt list entries written upon it. The list consisted of just two names, “Chad 80” and “Skys Bro 80”.
[62] On top of the bed on its left side, Hartwick located suspected purple fentanyl in a small, clear, plastic container with a lid.
[63] All items seized and photographed by Hartwick were turned over to the assigned OPP Exhibit Officer, Busschaert.
[64] Under cross-examination, Hartwick confirmed that there were other officers who were searching for items of interest to police in the basement in addition to him.
[65] The basement had distinct areas comprised of a utility room, a bathroom area and a bedroom area. It was large enough area for multiple people to be present.
[66] Hartwick explained that the Roots backpack had a larger, main compartment area as well as smaller compartment located at the front. The prescription drug containers, Hartwick clarified, were located in the main compartment of that backpack. The suspected cocaine and fentanyl were found in the smaller, front compartment.
[67] Hartwick confirmed that a “Moto E” prepaid cell phone was found in a black nylon bag on top of the table to the left side of the head of the bed contrary to what was stated in his Photo Sheet Log.
[68] The officer clarified that two bags of suspected illegal drugs were found in the front compartment of the Roots backpack, separate and apart from the main compartment, where Forrest’s Medical Record and prescription medications were located.
[69] Hartwick added that the suspected drugs seized from the basement were packaged. The packaging was not tested for fingerprints or traces of DNA. Nor were the backpacks and their contents. No ID or bank cards were found in the backpacks.
[70] Under re-examination, Hartwick was asked to address “a discrepancy” with respect to the Moto E cell phone and where it was located.
[71] He was shown another photo from his Photo Sheet Log, again No. 26 from it, and what was made Ex. No. 5 at trial. He reiterated that the photo consisted of the contents of the Roots knapsack found on top of the bed in the basement area.
[72] Hartwick’s evidence changed. He testified that the Moto E cell phone was within the Roots backpack in its main compartment area with the two names and associated monetary amounts written on its interior.
[73] Hartwick testified that he was able to distinguish between that Moto E cell phone and two others he photographed on a side table next to the bed in the basement with a spoon and the baby blue wallet, which photograph was made Exhibit 9 on the trial, and No. 32 of his Photo Sheet Log.
Det. Cst. Renee Busschaert:
[74] Busschaert testified on February 27, 2023 that she is a member of the Street Crime Unit of the OPP in Renfrew County.
[75] On February 26, 2021, she participated in the execution of the Warrant at 136 Argyle St., Renfrew. She acted as the Exhibit Officer. She explained that her role was to receive items seized by other officers and to process them.
[76] Essentially, Busschaert made notes regarding each item seized by the officers who conducted the search of the residence. She then used those fieldnotes to create an Exhibit Register. On the Register was a reference to Occurrence No. RM21021223. She explained that every criminal investigation file has its own occurrence number. The number is automatically generated whenever police create an Occurrence on their Records Management System.
[77] Busschaert was aware that Malcolm was located and arrested outside 137 Argyle Street. She also assisted in the search of two females found inside the residence, Beckett and Cliche. She did not know where each female was specifically located within.
[78] She also transferred Forrest to the custody of uniformed officers for transportation to the Renfrew OPP detachment.
[79] She designated as Exhibit 1D of the Register 14.6 g of suspected cocaine. She believed the drug was in a backpack on a bed in the basement. She did not see the actual backpack herself. She placed the substance in exhibit envelope 443161. She weighed the drug at the OPP detachment.
[80] Upon analysis by Health Canada, it was discovered that the substance was in fact methamphetamine.
[81] She explained that Exhibit 2D of the Register was what was believed to be 8.1 g of suspected fentanyl found in the backpack. She placed it in bag number 443160. Upon analysis by Health Canada of a sample of the substance, scientific analysis revealed that it was methamphetamine as opposed to fentanyl.
[82] Exhibit 3D consisted of 0.5 g of suspected purple fentanyl located in the backpack. She placed it in bag number 443159. Upon analysis, it was learned that the fentanyl was combined with benzodiazepine. It was given a Health Canada label no. ONO144573.
[83] Exhibit 4D was the five prescription bottles found in the backpack and believed to belong to Forrest, since two of them had his name on them. Busschaert placed them in bag number 443162 and designated them collectively as Exhibit 4D in her Register.
[84] Busschaert sent a representative sample from Exhibit 4D to Health Canada, which was a single tablet of suspected methamphetamine taken from the backpack found on the bed in the basement, to confirm the true nature of the drugs seized by officers during the execution of the Warrant.
[85] The officer redesignated the orange pill bottle with the label removed, which was believed to be methamphetamine tablets, as Exhibit 4D-1 and placed it in bag number 427656. Upon analysis by Health Canada, the nature of the substance was confirmed to indeed be methamphetamine.
[86] Other items found in the backpack on the bed included a digital scale, a Toyota key on a Protyre keychain and a Motorola cell phone. There was also packaging material and an Infinity digital scale with white residue on it found on the coffee table in the basement.
[87] The officer believed that the Toyota key was returned to Forrest, as were the prescription pill containers which had his name on them. She noted that there was a vehicle in the driveway of the residence searched. It was her “understanding” that Forrest had the key belonging to the Toyota. However, she did not know the make of the vehicle she saw in the driveway at 136 Argyle St. S., Renfrew.
[88] Busschaert denied any prior knowledge of any of the occupants of the residence searched by police on February 26, 2021.
[89] Regarding the chain of continuity for the items seized within the residence, Busschaert explained that her fellow officers conducting the search would hand items over to her; she would place them in numbered bags and tag them with a description.
[90] Once she had completed the preparation of her Exhibit Register, she secured all items in Temporary Vault No. 5 located at the Renfrew OPP detachment. She returned on March 2, 2021, four days after the execution of the warrant, to process sample submissions for subsequent analysis to be done by Health Canada. The samples she took were then returned to Temporary Vault No. 5. This would have been the last occasion upon which she handled the items.
[91] She clarified that each bag had its own number. The samples each had as well adhered to them a Health Canada label with a preprinted number. Accordingly, the bag number has a corresponding Health Canada number.
[92] Prior to testifying, Busschaert confirmed that she had reviewed five Certificates provided by Health Canada. The agency received sealed and unopened packages from the Renfrew OPP on March 17, 2021. The envelopes had identifying marks, initials and/or numbers. They also had Health Canada, predesignated numbers as well. Additionally, they set out the police Occurrence No.
[93] Busschaert’s evidence was clear. The Certificates specifically indicated the Health Canada label number, the investigating officer and the police Occurrence No.
[94] The officer explained as well that she did receive items from fellow officers when she attended in the basement of the residence.
[95] Busschaert wrote on Exhibit No. 6 at the trial, the photograph of the contents of the backpack found on the bed in the basement of the subject residence, what she determined were the weights of the two prepackaged bags of suspected illegal drugs, as well as the corresponding Exhibit Nos. she designated for them in her Register. Specifically, Ex.1D of the Register weighed 14.6 g. Ex. 2D of the Registrar weighed 8.1 g.
[96] She understood as well that the Motorola cell phone, which she designated in her Register as Exhibit 8P, came from the backpack found on the bed in the basement. She understood from her fellow officer, Hartwick, who turned over the seized items to her in the basement that there was a scale also found in the backpack. She understood as well that another scale and packaging materials were located on a coffee table near the bed in the basement.
[97] Busschaert had no recollection of seeing the items seized by police in the basement spread out on the bed to be photographed collectively as they were in what was made Exhibit 5 at the trial.
[98] All Certificates of Analyst received back from Health Canada were sent to Yarmel, not Busschaert.
[99] Under cross-examination, Busschaert made plain that she did not seize any of the items from within the residence. Other officers located them if they were of interest. She only processed them.
[100] Following execution of the Warrant, she brought all items back to the Renfrew OPP detachment where she placed them in Temporary Vault No. 5.
[101] She further clarified that she was not tasked with sending the substances to Health Canada. She had no first-hand knowledge of what exactly was sent to Health Canada for analysis.
[102] Although she did not make duty book notes regarding the items she received from her fellow officers who conducted the search of the residence, Busschaert explained that she detailed this information elsewhere in the Exhibit Register she was compiling.
[103] Additionally, she testified that the substance she listed as Exhibit 1D in her Register, which Hartwick suspected was cocaine, upon closer examination when she returned to the Renfrew OPP detachment on February 26, 21, and based upon her experience as a police officer, it looked to her more like crystal meth. That is why she identified it as such in her duty book.
[104] Busschaert confirmed that the last time she had any dealings with the seized drugs and paraphernalia was March 2, 2021. Each bag into which seized items were placed by her were assigned a unique number. She extracted from the larger finds of suspected drugs representative samples to which she would affix preprinted Health Canada numbers, and noted from which bag the samples came. The sample bag would then be given a new police identifier number.
[105] She indicated that she added to her Exhibit Register to show from which bag the sample was taken, the date it was taken, and the new Exhibit designation it received. For example, Ex. 1D on the Register, the suspected cocaine seized by Hartwick, which Busschaert believed to the contrary to be crystal meth, became Ex. 1D-1, once the sample was taken from the bulk amount seized at the time of the search.
[106] Only one pill of the six believed to be methamphetamine was sent to Health Canada for analysis to confirm its true nature. For this reason, she agreed that only one of the pills of the six seized by police could be confirmed to be methamphetamine.
[107] The pills were also contained in an unlabelled orange pill bottle. Busschaert agreed that she could not confirm that the pills belonged to Forrest, or anyone else.
[108] She conceded that another two of the five prescription pill bottles seized by police were not in Forrest’s name. Rather, they were made out in two other individuals’ names.
[109] Notwithstanding, in the Exhibit Register the items designated by her as “4D”, she attributed ownership of all five bottles to Forrest. He also confirmed that samples from a prescription bottle made out in the name of “Stephen Wallace” were not sent to Health Canada for scientific analysis.
[110] Busschaert testified that she was told by Hartwick that the 0.5 g of suspected purple fentanyl was located in a clear plastic container in the backpack on the bed in the basement. This item was designated by her as Exhibit No. 3D in her Register. She did not verify herself whether the container was indeed located within the backpack on the bed.
[111] The officer was referred to Certificate of Analyst No. 20 43310 T associated with Exhibit 3D of her Register. She confirmed that even though the drugs were scientifically determined to be fentanyl, benzodiazepine and caffeine, Health Canada did not indicate in what quantities each of the afore-mentioned drugs weighed individually.
[112] Busschaert testified that she went to the basement to receive the seized suspected drugs found there.
[113] She remembered returning to Forrest the Toyota key as well as the two bottles of prescription medication with his name labelled on them. There was a motor vehicle in the driveway at the time the warrant was executed; however, she could not recollect what type of vehicle it was. She could only indicate that the key was given to Forrest at the time he was released from police custody. She put it in his property while he was still in custody at the Renfrew OPP detachment along with the prescription pill bottles in his name.
[114] It was her “understanding” based on discussion she had with other officers who were executing the warrant that Forrest owned the vehicle in the driveway of the subject residence. She could not confirm that Forrest was the owner of the key.
[115] Under re-examination, Busschaert explained that all six pills suspected to be methamphetamine for which she chose only one as the representative sample to be sent to Health Canada looked the same. She therefore did not ask for all six to be scientifically analyzed.
Det. Cst. Paul Hicks:
[116] At the outset of providing his testimony, defence counsel conceded that Detective Constable Hicks (“Hicks”) was qualified to provide opinion evidence to the Court based on education, training and experience on the quantities of street drugs indicative of an intention to traffic in them. However, the defence disagreed with the opinion reached by Hicks.
[117] Hicks amended his opinion regarding what was believed initially by police to be the discovery of 8.1 g of fentanyl when he learned that the substance in fact turned out to be methamphetamine following scientific analysis conducted by Health Canada.
[118] Nevertheless, 0.5 g of fentanyl was found following execution of the Warrant. That quantity, Hicks conceded, was far more indicative of an amount intended for personal use as opposed to trafficking.
[119] Hicks explained that the conclusions he reached in respect of the other drugs found during the search of 136 Argyle St., Renfrew, ON was based upon his review of the Occurrence Reports made by police on February 26, 2021, the Property List compiled, and the Exhibit Register prepared by Busschaert.
[120] Of particular interest to Hicks were the two Motorola E cell phones found in the basement. One he understood to have been located in a backpack. The other was on a coffee table. One of the phones was searched, and information was taken from it. However, Hicks did not know specifically from which one the data had been extracted.
[121] There were as well two packages of unused, small Ziploc bags (i.e. “dime baggies”) on the coffee table in the basement. There was also an assortment of small Ziploc baggies in a black cooler bag on the table. There were sheets of tinfoil located in a black backpack.
[122] Hicks understood that the bulk of the suspected drugs were found in a backpack located on the bed in the basement. A debt list was found in the other backpack on a chair.
[123] Last, but not least, there were two sets of digital scales which factored into the opinion formed by Hicks as well.
[124] Candidly, Hicks testified that he did not understand why the drugs were located in one backpack, while other items including the debt list appeared to be found in another. Hicks was of the view notwithstanding that those items of interest to him collectively had all the trappings of trafficking in illegal drugs. Both backpacks were located in the basement. As he put it, “all of these things are somewhat tools of the trade for drug trafficking”. They were all found in the same general area within close proximity to one another.
[125] Hicks believed that the two separate bags of methamphetamine, one weighing 14.6 g, the other 8.1 g, must have been possessed for the purpose of trafficking. The bags could have been obtained from a supplier in that manner. Hicks speculated further that they could have been prepackaged in the two bags because somebody else was seeking those quantities, but he could not say for certain. Methamphetamine is commonly sold in 0.1 gram units. In his view, the total quantity pointed toward street-level trafficking in his experience.
[126] Under cross-examination, Hicks agreed that, in his Expert Evidence Report made Exhibit No. 19 at the trial, he made reference to the five prescription bottles found in a backpack. He did not specify which one was suspected to have contained methamphetamine. However, he recalled that they were contained in a bottle with no label.
[127] He acknowledged that there were three different quantities of methamphetamine totaling 23.9 g found within the subject residence. 14.6 g and 8.1 g in separate packages were in a backpack in the basement. Whereas 1.2 g were discovered upstairs in the kitchen.
[128] He did nevertheless concede that six pills found in one of the bottles would be consistent with personal use.
[129] He agreed that the breakdown of where the methamphetamine was found was 14.6 g and 8.1 g in one backpack in the basement, and 1.2 g upstairs.
[130] Loose powder methamphetamine, he explained, could be ingested, smoked or taken orally.
[131] He agreed that the 14.6 g bag of methamphetamine could possibly be possessed simply for personal use, as could the 8.1 g bag. However, to his mind, it was not probable based on the “significant quantity” of methamphetamine found by police.
[132] He conceded that he did not know if the methamphetamine was all packaged by the same person. Nor could he know if it was all owned by the same person, or if it belonged to different people.
[133] Hicks clarified that it was his understanding that one backpack was found on the bed in the basement. The other with the packaging material was located on a coffee table in the basement.
[134] His Report further indicated that four cell phones were seized within the residence. He observed that it is common for drug traffickers to have multiple cell phones. However, he conceded that four adults were found as well in the subject residence at the time the Warrant was executed. The multiple cell phones found in the basement did not necessarily belong to one person.
[135] He could not be 100% sure if the phone seized from the backpack found on the bed, or the one found on the coffee table, was the specific one forensically analyzed to determine the content of communications passing between the cell phone owner and others.
[136] He agreed that the Cellebrite Report contained exchanges of text messages between “Gingerbread Man” and “Splash”.
[137] The Report indicated that the phone belonged to either Gingerbread Man or one Skyler Eady. Hicks could not say whether they were one and the same person. Hicks would not concede that the phone could not have belonged to Forrest.
[138] The officer could not explain the seeming inconsistency in his Expert Evidence Report which at one point indicated that Forrest gave a statement to police saying the “fentanyl and methamphetamine was his”, and at another point, he denied ownership of any of the seized drugs, and denied using methamphetamine or fentanyl.
[139] Hicks acknowledged that the debt list was not found in the backpack on the bed. Rather, it was located on the chair in the basement.
[140] Hicks conceded that the $420 quantity of cash relied upon in his expert report as a basis for coming to his conclusion that Forrest possessed the methamphetamine for trafficking was taken from a blue clutch purse, which police believe belonged to Cliche. He acknowledged that Cliche, a female, was one of the occupants of the residence located in the basement at the time police entered to execute the Warrant.
[141] Hicks could not agree with defence counsel’s suggestion that the Ziploc bags located in the basement could be used for a purpose other than packaging illegal drugs. He pointed out that they were found on the coffee table in the basement along with a scale.
[142] He did nevertheless concede that he could not say which of the occupants within the subject residence had control over the drugs located in the basement.
[143] Under re-examination, Hicks stated that it was his understanding that the Cellebrite program extracts all material it can decrypt on the cell phone it is examining. It creates separate folders for the applications on the phone, and for whomever is logged into a particular application. The Cellebrite program then identifies that person as the user or owner. For example, an Instagram app being analyzed by Cellebrite would search the data to ascertain that Skyler Eady was the account holder for it.
Agreed Facts:
[144] By way of agreement between counsel, the Court was informed following execution of the Warrant that;
a) all charges against Cliche were withdrawn,
b) all charges against Beckett were withdrawn after she made a Statutory Declaration denying any knowledge or control over the items seized by police, and
c) Malcolm pleaded guilty to possession of a small quantity of methamphetamine.
The Position of the Crown
[145] The Federal Crown submitted that, at its root, its case against Forrest rested upon the circumstances under which he was found in the basement of 136 Argyle St., Renfrew, ON on February 26, 2021.
[146] The photographs taken of the contents of the Roots backpack made Exhibit No. 5 at the trial pointed to the inescapable conclusion that the owner was engaged in the trafficking of methamphetamine.
[147] Within the backpack police found five prescription pill bottles, two of which were made out in the name of Forrest. One of the bottles was prescribed as recently as February 3, 2021. Another of the bottles, which contained no label, had six methamphetamine pills inside it.
[148] The backpack also included a Medical Report for a Canada Pension Plan Disability Benefit and made Exhibit No. 8 at the trial. The Report was filled out in blue ink under the heading “Section 1 – Information about you”. It contained a nine digit, social insurance number. It indicated English as the preferred language. It set out “Clayton Michael Forrest” as the first, middle and last names of the applicant/patient. It provided a date of birth, a mailing address and a telephone number. Lastly, it indicated that the applicant’s/patient’s preferred time for having Service Canada contact him was in the morning.
[149] Additionally, in the backpack police found a key for a Toyota make vehicle, the cell phone “Moto E” and scales in the main pouch. In the outer pocket of the backpack, police seized two baggies of methamphetamine, one in the quantity of 14.6 g, the other 8.1 g. There was also 0.5 g of purple fentanyl seized from the bed near the backpack.
[150] Near the headboard of the bed, numerous dime baggies were found.
[151] The Federal Crown argued that in order to prove knowledge and control on the part of Forrest of the above-mentioned items, the most compelling evidence pointing to him was:
a) the document, the Medical Report, located within the backpack,
b) the five prescription pill bottles, two of which were made out in Forrest’s name, and
c) the drugs and the paraphernalia for its consumption contained therein.
[152] Common sense, the Federal Crown submitted, would dictate that Forrest knew and controlled what went into that backpack.
[153] Further, the Federal Crown had met the next hurdle of proving possession for the purpose of trafficking based on the quantity in which the methamphetamine was found. Outside the backpack or nearby on the coffee table were baggies and a debt list, albeit in a different backpack.
[154] The expert opinion of Hicks that the quantity was indicative of trafficking methamphetamine, the Federal Crown contended, ought to be accepted by the Court.
[155] The Federal Crown argued that Cliche, as the other occupant of the basement at the time the Warrant was executed and police entered the residence in question, had no connection to the Roots backpack. Ownership of it pointed only to Forrest.
[156] On the issue of continuity, the Federal Crown submitted that it does not have to prove each step along the chain to what was seized from the residence in question to what was ultimately tendered as evidence in Court.
[157] The inability of the Federal Crown to call Sarault as a witness at Forrest’s trial is not fatal to its case against him. The chain, the Crown argued, is linked through the evidence of Busschaert, who kept the Exhibit Register, and matched the drug envelopes submitted by Health Canada to the Certificates received back from that agency, as well as Yarmel’s evidence, who requested the samples of the items seized from the Temporary Vault No. 5 be sent to Health Canada for scientific analysis and determination of what the suspected substances were.
[158] The Certificates of Analyst then prove that the substances in question were both methamphetamine and fentanyl.
[159] In sum, the totality of the evidence proffered by the Crown proves beyond a reasonable doubt that Forrest possessed methamphetamine for the purpose of trafficking and possessed fentanyl.
The Position of the Defence
[160] Defence counsel submitted that the Crown has failed to prove continuity of the suspected illegal substances seized from the residence in question with the Certificates of Analysts tendered as evidence in Court. Contrary to the Crown’s contention, the failure to call Sarault as a witness at Forrest’s trial was fatal to its ability to make out its case against him.
[161] There was simply no evidence from Sarault. This created a significant gap in proving continuity. Busschaert, the officer who took the samples of the suspected drugs seized by her fellow officers conducting the search of the subject residence, which items were in turn handed over to her, could not make the link to show they were identical to the drugs obtained by Sarault from Temporary Vault No. 5 of the Renfrew OPP detachment, and which Sarault then packaged and sent to Health Canada for analysis. The integrity of the evidence had not been maintained. Continuity must be proven beyond a reasonable doubt.
[162] The lead investigator, Yarmel, could testify that samples were sent from the Renfrew OPP detachment regarding his investigation of the occupants of 136 Argyle St., Renfrew on February 26, 2021, the date the Warrant was executed. However, he was incapable of saying which samples were taken by Sarault from the vault at his request to be couriered to Health Canada for scientific analysis.
[163] Additionally, the defence emphasized that Malcolm and Beckett owned the residence in question, not Forrest. He was not associated with it. Nor was he known to be a tenant.
[164] Yarmel indicated that the residence had been under surveillance for an extensive period spanning October 2018 to January 2021. Malcolm, Beckett and Cliche were all known to police. On the other hand, Forrest was never seen coming or going from 136 Argyle St., Renfrew, ON. None of the officers who executed the Warrant were familiar with him.
[165] There was no evidence to suggest how long Forrest had been present in the subject residence prior to execution of the Warrant. Furthermore, Cliche was with him in the basement when police entered the residence.
[166] Defence counsel emphasized that the backpack is a movable object. There was no direct evidence to suggest who put what in the backpack located by police on the bed in the basement.
[167] Furthermore, Hartwick was unsure in his evidence that the 0.5 g amount of fentanyl, which he located, was found in the Roots backpack.
[168] Defence counsel emphasized that among the prescription bottles located within the Roots backpack were the names of two other individuals, Stephen Wallace and Catherine McNaughton. In addition, the prescription bottles were in a compartment separate from the area where the methamphetamine was found.
[169] No wallet was found within the Roots backpack indicating ownership of it.
[170] The key to the Toyota was not made out to be the vehicle seen by police in the driveway of 136 Argyle St., Renfrew.
[171] Of course, the pill bottles in Forrest’s name were left in his property bin at the detachment following his arrest; however, there was no evidence to suggest that the vehicle belonged to Forrest. The key was simply deposited in his bin under the assumption that it was part of his belongings.
[172] No cash or drugs were found on Forrest’s person at the time of his arrest.
[173] There was nothing to indicate that he was also known as “Gingerbread Man” or “Splash”, which the Cellebrite program determined were the two persons exchanging texts on the cell phone seized and analyzed by police.
[174] The debt list/notebook found by police in the basement of the residence in question was in a separate backpack from the Roots one, which the Crown was alleging belonged to Forrest.
[175] Police were not even familiar with Forrest at the time the Warrant was executed.
[176] The Crown’s case against Forrest was completely a circumstantial one. The only reasonable inference which could be drawn was not that Forrest was the owner of the Roots backpack. Other conceivable possibilities existed.
[177] Firstly, another individual such as Cliche could have put items belonging to Forrest into the Roots backpack because he asked her to do so, or someone else within 136 Argyle St. was asked to hold on to his prescription pills and his Medical Report. In addition, there were other individuals whose names were on the prescription bottles contained within the main compartment of the Roots backpack who could have owned it. Further, the other backpack found in the basement contained documentary evidence pertaining to Malcolm.
[178] Secondly, any other occupant within the subject residence could have placed items belonging to Forrest in the Roots bag simply to gather them, and to bring them into the residence.
[179] Thirdly, Forrest himself could have put the pills belonging to him as well as his Medical Report in the Roots backpack not knowing what else was in there.
[180] Defence counsel argued that police could have obtained fingerprints or DNA analysis to determine who had handled the baggies containing the methamphetamine and the fentanyl. However, they neglected to do so.
[181] Accordingly, upon a review of the totality of the evidence called at Forrest’s trial, the Crown has failed to prove beyond a reasonable doubt that he had knowledge and control of the illegal drugs found by police in the Roots backpack.
The Law
Continuity:
[182] In R. v Larsen (2001) BCSC 597, Romilly J. stated:
ii. The continuity issue
[61] Defence counsel submits the Crown has not proved the continuity of the exhibits. He submits the Crown has not led any evidence of the continuity of the swabs from Cathy’s throat, mouth and sweater from the time they were seized by the police in 1978 to the date the DNA profiling was conducted by Mr. O’Keefe. In order to deal with this defence it is helpful to canvass the way in which the courts have dealt with the continuity of drug exhibits in narcotics-related cases.
[62] It is important to appreciate what the Crown must prove in a narcotics-related case. In essence, the Crown must show beyond a reasonable doubt that the material seized from an accused was a prohibited substance. To that end, the Crown must prove that the substance dealt with by, or in the possession of, the accused is the same substance that is alleged in the information or indictment (and prohibited by law). Undoubtedly, then, continuity of possession of the substance from the accused to the law enforcement officer to the analyst is crucial. However, Canadian case law makes it clear that proof of continuity is not a legal requirement and that gaps in continuity are not fatal to the Crown's case unless they raise a reasonable doubt about the exhibit’s integrity. See R. v. Dawdy and Lamoureaux (1971), 4 C.C.C. (2d) 122 (Ont. C.A.); R. v. Oracheski (1979), 48 C.C.C. (2d) 217 (Alta C.A.), R. v. DeGraaf (1981), 60 C.C.C. (2d) 315 (B.C.C.A.); and R. v. Taylor (1988), 93 N.B.R. (2d) 246 (N.B.Q.B.). These cases establish there is no duty upon the Crown to show detailed continuity of the location and handling of the exhibits from the time of their seizure by law enforcement officers to their deposit with analysts.
[63] It should be observed that in each of the above-mentioned cases evidence was proffered by the Crown showing how the exhibit in question ultimately came into the possession of the analyst. In none of the cases did counsel for the accused present evidence that the substances were interfered with before they came to the hands of the analyst. So, there really was no question of contamination.
[64] Where the evidence respecting continuity prior to analysis is not continuous, and on the whole of the evidence there is a reasonable apprehension that the exhibit is not in the same condition as it was at the time of seizure, the courts have generally resolved any doubt on the issue in favour of the accused: R. v. Laborgne, [1924] 2 W.W.R. 610 (Man. Co. Ct.); Rapchalk v. Atlas Ass’ce Co. Ltd. (1967), 63 D.L.R. (2d) 612 (Sask. Q.B.). Nonetheless, such doubts must be based on reasonable grounds arising from the evidence: R. v. Kolkiczka, [1933] 1 W.W.R. 299 (Man. Co. Ct.); R. v. Castell (1973), 34 C.R.N.S. 199 (Ont. C.A.); R. v. Oracheski, supra; R. v. DeGraaf, supra. In Rapchalk, supra, a civil action by an insured against an insurer, the court found that evidence of a blood sample of the plaintiff was inadmissible because “[n]o one testified as to who handled the blood sample, or as to what, if anything, was done to it from the time if left Yorkton until the envelope with the broken seal came into the possession of [the analyst].” In the alternative, if the evidence was admissible, then its weight would “surely be negligible or non-existent.”
[65] In short, there is no specific requirement as to what evidence must be led or by whom to establish continuity. There is also no specific requirement that every person who may have had possession during the chain of transfer should himself or herself give evidence. If there is a gap in continuity and if the trier of fact is not satisfied beyond a reasonable doubt that substances taken from the accused were the substances analyzed, the evidence may still be admissible but the weight given to the exhibit and the evidence would be affected. The weaker the evidence regarding continuity and the stronger the evidence suggesting contamination, the lower the weight that should be given to the evidence or analysis thereof.
[183] Very recently, in R. v. Lowry (2023) BCCA 68, Larsen was cited with approval at para. 31 by the British Columbia Court of Appeal.
Circumstantial evidence:
[184] In Villaroman, Cromwell J., speaking for a unanimous full panel of the SCC explained how circumstantial evidence is to be regarded by a trier of fact in the following paragraphs:
[38] Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.
[39] I have found two particularly useful statements of this principle.
[40] The first is from an old Australian case, Martin v. Osborne (1936), 55 C.L.R. 367 (H.C.), at p. 375:
In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. [Emphasis added.]
[41] While this language is not appropriate for a jury instruction, I find the idea expressed in this passage — that to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative — a helpful way of describing the line between plausible theories and speculation.
[42] The second is from R. v. Dipnarine, 2014 ABCA 328, 584 A.R. 138, at paras. 22 and 24-25. The court stated that “[c]ircumstantial evidence does not have to totally exclude other conceivable inferences”; that the trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible.
[43] Where the line is to be drawn between speculation and reasonable inferences in a particular case cannot be described with greater clarity than it is in these passages.
Expert Evidence:
[185] In recent years, it has become commonplace for police officers to testify as experts in drug trafficking cases. Certain areas outside the scope of knowledge and human experience possessed by triers of fact, such as the pricing, packaging, sale weights and distribution mechanisms utilized for dealing in illegal substances require such testimony to assist in understanding the drug trade. Caution, of course, must be taken never to allow the expert witness to usurp the role of the trier of fact on the ultimate issue, namely - was the drug possessed for the purpose of trafficking? One such helpful case in addressing the appropriate role of the expert witness in this type of scenario is R. v. Pico 2016 ONSC 1470.
[186] In Pico, Spies J. was faced with deciding whether the quantity of methamphetamine, which the accused possessed, led Her Honour to draw what was the only reasonable inference available on the totality of the evidence - that he possessed it for the purpose of trafficking.
[187] At paras. 59 -60, Her Honour hearkened back to the Supreme Court of Canada’s decision in R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272 to remind herself of the guiding principles on the proper use of expert evidence. She stated:
[59] Before determining what opinion evidence I can rely upon from Detective Margetson, I must carefully consider the decision of Sekhon and the cases that have since considered it.
[60] In Sekhon, Moldaver J.A. speaking for the majority of the court, took no issue with the expert’s evidence that the trial judge heard on the customs and practices of the drug trade focusing on chains of distribution, distribution routes, means of transportation, methods of concealment, packaging, value, cost and profit margins (at para. 19).
[188] Further, she pointed out where the dangers begin to arise. She offered:
[63] As for the evidence found to be inadmissible, Moldaver J.A. reviewed R. v. Mohan, [1994] 2 S.C.R. 9, and R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, and concluded that the impugned evidence from the expert did not meet the Mohan criteria of relevance and necessity to the mens rea issue facing the trial judge, namely whether Mr. Sekhon himself knew about the cocaine. The evidence was not relevant because the guilt or innocence of accused persons that the expert had encountered in the past was legally irrelevant to the guilt or innocence of Mr. Sekhon and was not necessary as it was not beyond the knowledge and experience of the trial judge and was certainly not technical or scientific in nature (at para. 49).
[189] In applying the principles to the facts before her, Spies J. added:
[101] Given the way in which this evidence was given by Detective Margetson I find it to be both necessary and relevant and accordingly admissible. First of all, without his evidence I would have absolutely no idea what the significance is of the quantity of crystal meth found in Mr. Pico’s possession. The evidence of Detective Margetson as to typical consumption and purchase patterns is of assistance in this regard . . .
[102] In addition, the evidence of Detective Margetson as to what is typical is relevant in that it supports an inference that possession of the crystal meth in this case was for the purpose of trafficking. In a case where there are other indicia of trafficking as in Aviles this evidence could be particularly relevant. The question in this case, given the absence of other indicia of trafficking, is whether or not, as Mr. Nisker contends, an inference of trafficking is the only inference the evidence of Detective Margetson supports.
[190] Spies J. went on to find the accused not guilty of the offence of possession for the purpose of trafficking in methamphetamine. In coming to this conclusion, Her Honour explained:
[123] In summary, although an inference that can be reasonably drawn is that Mr. Pico had this crystal meth in his possession for the purpose of trafficking, it is also reasonable to infer that it was for personal use . . . For these reasons . . . , I am not satisfied that the Crown has proven beyond a reasonable doubt that the only reasonable [inference] is that Mr. Pico was in possession of this crystal meth for the purpose of trafficking.
Reasonable Doubt:
[191] The standard of proof beyond a reasonable doubt is an age-old principle of criminal law in Canada and virtually every other common law jurisdiction. Triers of fact must be ever conscious of the high burden of proof placed upon the Crown, if ever the accused’s right to be presumed innocent is to be rebutted.
[192] Recently, my colleague, Brochu J., in R. v. Hawryluk, (unreported), offered these helpful commentaries on the meaning of reasonable doubt:
[39] Like every person accused of a criminal offence, Mr. Hawryluk begins this trial presumed to be innocent of the offence with which he is charged. That presumption remains intact unless and until the Crown proves beyond a reasonable doubt that he is guilty. It is the Crown that bears the onus of proving the essential elements of the offence beyond a reasonable doubt. That onus never shifts to the accused.
[40] Intermingled with the presumption of innocence is the standard of proof required to displace that presumption. To secure a conviction in a criminal case, the Crown must establish each essential element of the charge against the accused beyond reasonable doubt. This standard of proof is very stringent. It is a standard far beyond the civil threshold of proof on a balance of probabilities.
[41] The expression “proof beyond a reasonable doubt" has no precise definition, but it is well understood. The Supreme Court of Canada outlined a suggested model jury charge in R. v. Lifchus, [1997] 3 S.C.R. 320. This is the definitive guide for criminal trial courts in Canada. It is worth setting out here verbatim:
The term "beyond a reasonable doubt" has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.
A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.
On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.
In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.
[42] Three years later, in R. v. Avetysan, [2000] 2 S.C.R. 745, the Supreme Court of Canada clarified at para. 13 that:
In situating the criminal standard of proof, “it falls much closer to absolute certainty than to proof on a balance of probabilities”: Starr, at para. 242, per Iacobucci J.
[193] I shall apply these above principles of law, of course, as I conduct my analysis of the evidence in this case.
Analysis
Continuity:
[194] Hartwick testified that he turned over suspected drugs found in the basement of 136 Argyle St. S. to Busschaert, who was acting as the Exhibit Officer for the execution of the Warrant.
[195] In performing her duties, Busschaert assigned identifying numbers specifically as follows:
a) Ex. 1D -14.6 g of white powder in a clear bag suspected to be cocaine and located upon a backpack on bed in basement. She placed the white powder in an envelope/bag number 443161. The Exhibit Register she kept made clear that Ex. 1D - 1 was the 2.3 g sample she removed from Ex.1D, to which she affixed a Health Canada label number ONO144576 on March 2.
b) Ex. 2D - 8.1 g of suspected fentanyl in a clear bag located in the backpack on bed in basement. She placed the substance in envelope/bag number 443160. The Exhibit Register she kept made clear that Ex. 2D - 1 was the 0.5 g sample she removed from Ex. 2D, to which she affixed a Health Canada label number ONO144574 on March 2.
c) Ex. 3D - 0.5 g of suspected purple fentanyl located in clear plastic container in backpack on bed in basement. She affixed as well to this substance a Health Canada Label No. ONO144573.
d) Ex. 4D - 5 prescription medication bottles located in backpack on bed in basement. In her testimony, Busschaert indicated that only one tablet from an orange unlabeled pill bottle containing suspected methamphetamine was included in what she designated as Ex. 4D -1 -1, the sample of the substance to which she had affixed Health Canada label ONO144577.
[196] All of the above listed items were placed in Temporary Vault No. 5. They were then ready to be couriered to Health Canada for scientific analysis.
[197] As Yarmel explained in giving his evidence, he requested on March 12, 2021 that Sarault, the administrative sergeant in charge of the vault, send the substances to Health Canada. Sarault did not take notes, nor photographs, of the process she followed to ensure the items were delivered intact to Health Canada.
[198] Due to medical leave, Sarault was unable to testify at Forrest’s trial. However, I am satisfied beyond a reasonable doubt that the integrity of the samples was maintained for the following reasons:
a) in giving her evidence, Busschaert confirmed she reviewed the five Certificates of Analyst received back from Health Canada by the Renfrew OPP in sealed and unopened packages.
b) one of the Certificates numbered 20 43310 T made reference to a package containing Health Canada label number ONO144573. The label was the one affixed by Busschaert to the suspected fentanyl she designated in her Register as Exhibit 3D.
c) Certificate No. 20 43310 T confirmed that the substance contained in the package labeled ONO144573, upon examination and analysis, was found to contain fentanyl.
d) Another one of the Certificates numbered 20 43306 T made reference to a package containing Health Canada label number ONO144574. That label was the one affixed by Busschaert to the substance which Hartwick believed was fentanyl, whereas Busschaert herself felt it was crystal meth, following her visual inspection of it.
e) Certificate No. 20 43306 T confirmed that the substance contained in the package labeled ONO144574, upon examination and analysis by Health Canada, was found to contain methamphetamine.
f) Another one of the Certificates numbered 20 43308 T made reference to a package containing suspected white powder cocaine. Health Canada label number ONO144576 was affixed by Busschaert to the substance. She designated it in her Exhibit Register as Exhibit 1D - 1- 1.
g) Certificate No. 20 43308 T confirmed that the substance contained in the package labeled ONO144576, upon examination and analysis, was found to contain methamphetamine, not cocaine.
h) Another one of the Certificates numbered 20 43309 T made reference to a package containing suspected methamphetamine. Health Canada label number ONO144577 was affixed by Busschaert to the substance. She designated it in her Exhibit Register as Exhibit 4D - 1 - 1.
i) Certificate No. 20 43309 T confirmed that the substance contained in the package labeled ONO144577, upon examination and analysis, was found to contain methamphetamine.
[199] All Certificates referred as well to Occurrence No. RM21021223 indicating that the substances analyzed by Health Canada came from 136 Argyle St., Renfrew, ON upon execution of the Warrant on February 26, 2021.
[200] The Certificates were returned to the attention of Yarmel as the lead investigator.
[201] Accordingly, I am satisfied beyond a reasonable doubt that the integrity of the exhibits has been maintained and tracked appropriately by the Renfrew OPP.
[202] In my view, Sarault did not have to testify in order to establish that the chain of continuity for the substances seized by officers executing the Warrant, and processed by Busschaert.
[203] Busschaert herself clearly packaged samples of the suspected drugs seized during the search. She noted the Health Canada labels in her Exhibit Register. The Certificates confirmed what the substances were in fact following scientific analysis.
[204] I can safely infer Sarault did exactly what Yarmel asked. She simply couriered the samples prepared by Busschaert to Health Canada. Yarmel received the Certificates back. The Health Canada labels made plain which samples were analyzed. The Certificates state specifically the drugs they contain.
[205] As a result, I am thoroughly convinced that the chain of continuity from seizure of the substances within 136 Argyle St. S, Renfrew to scientific analysis of them has been made out, and the integrity of the evidence has been thereby established.
Assessing the Circumstantial Evidence:
[206] It is irrefutable that the Medical Report setting out detailed particulars regarding Forrest was found in the Roots backpack at the time the police searched the basement of 136 Argyle St. S., Renfrew, ON
[207] Additionally, two prescription pill bottles also located in the backpack were prescribed to Forrest, one as recently as February 3, 2021, just some three weeks prior to execution of the Warrant on February 26, 2021.
[208] Items such as a Medical Report and recently prescribed pills are normally kept in a safe place. The owner of the items would want to know exactly where such items can be found when needed in future.
[209] The defence posited three alternative theories as innocent explanations for why such items as the Medical Report and prescription pills, along with the illegal drugs, may have found their way into the Roots backpack without implicating Forrest. I reject them for the following, enumerated reasons.
[210] Firstly, while it is possible that Forrest could have asked Cliche or one of the other occupants in the subject residence to hold onto his pills and Medical Report, it is unreasonable and highly improbable that any such person asked would put those items in the Roots backpack. This makes no sense. A cabinet or drawer might.
[211] Furthermore, there was no evidence to suggest what Forrest’s connection was to any of the other occupants of the residence. Only a trusted friend would be asked to hold onto a Medical Report or prescription pills.
[212] There was absolutely nothing in the evidence led at trial to point to a connection or relationship of that nature, which Forrest would have shared with one of the occupants located by police in the subject residence at the time the Warrant was executed.
[213] Secondly, the defence asks the Court to consider the possibility that someone simply gathered and brought the Medical Report and pills into the residence using the Roots backpack to contain them. While possible, that proposition is quite unreasonable.
[214] The Report and the pills could have been carried in one hand, most definitely in two. There would be no need to place them in a backpack. The items themselves were far from unwieldy.
[215] Assuming Forrest was a guest at 136 Argyle St. S., Renfrew, I can see no reason why he would ever ask one its other guests or occupants found in that residence at the time the Warrant was executed to have carried at an earlier point in time his Medical Report, which must have been located somewhere other than the backpack at the time the request was made, into the house. Again, this makes no sense.
[216] Thirdly, the notion that Forrest himself would have put his Medical Report and prescription pills in the Roots backpack, not knowing what else was in there, is absurd. A backpack is a place where personal items are commonly contained. The person who owns the backpack keeps in it his or her things, which he or she wishes to carry wherever he or she goes.
[217] I can deduce no reason why Forrest would place items such as a Medical Report and his prescription pills into a backpack, if he was ignorant as to what else was contained in it. While possible he could have done so, it is most unreasonable that he would have.
[218] The only reasonable inference I can draw as the trier of fact is that Forrest put his Medical Report and prescription pills in the Roots backpack himself, because he owned and controlled it. That backpack also included illegal drugs, even though they were found in a separate front compartment of the backpack.
Expert Evidence:
[219] Hicks indicated in his Expert Evidence Report that methamphetamine is typically sold on the street in units of 0.1 g. He was aware that a total of 22.7 g of methamphetamine was found in the Roots backpack in two separate prepackaged bags weighing 14.6 g and 8.1 g.
[220] A further amount of 1.2 g of methamphetamine was found upstairs in the space commonly occupied by Malcolm and Beckett.
[221] It was agreed by counsel that Malcolm pleaded guilty to possession of a small quantity of methamphetamine.
[222] In Hicks’ Report under the heading “Methamphetamine Use”, he stated that most users of methamphetamine follow a “buy-use-buy-use” format. They do not purchase and/or carry larger quantities for their own personal consumption.
[223] Under the heading “Methamphetamine Pricing”, Hicks opined that, “If the seized methamphetamine were sold in 0.1 g increments, the value of the 23.9 g of methamphetamine is estimated at $2390.00”.
[224] Subtracting the 1.2 g of methamphetamine found upstairs, the 22.7 g of methamphetamine found in the Roots backpack would net $2270.00 CDN, if sold at the 0.1 g level.
[225] On the significance of the digital scale Hicks believed was located in the backpack, Hicks indicated:
“A digital scale is used by the drug traffickers to weigh a quantity of a controlled substance in order to facilitate its sale, and to be packaged and/or sold to clients and/or other drug traffickers”.
[226] I cannot rely on Hartwick’s evidence that either a scale or debt list were found in the Roots backpack. His evidence did not indicate that either was found in it, notwithstanding Busschaert’s Exhibit Register recorded that a scale was (Ex. 6P of the Register). Under these circumstances, I can make no finding beyond a reasonable doubt that a scale was located in the Roots backpack.
[227] Having earlier determined that Forrest owned the Roots backpack, and that he knew and controlled what went into it, I cannot conclude that, based on the sheer quantity of methamphetamine Forrest had contained within it, he must have intended to traffic in methamphetamine.
[228] I can see many reasons why a methamphetamine user as opposed to trafficker would need a scale, even assuming for an instant there was one in the Roots backpack. Arguably, a methamphetamine user, as opposed to trafficker, may wish to weigh what he or she acquires, especially if buying in bulk. It would not necessarily run contrary to the far more common “buy-use-buy-use” format for consumption explained by Hicks, whose evidence I accept on this customary pattern of smaller quantity, methamphetamine acquisition by users only.
[229] Put simply, 22.7 g of methamphetamine for personal use does not seem out of the realm of reasonable probability by any means. Forrest was not on the radar for police, given what Yarmel testified was the length of time the subject residence had been under surveillance by the Renfrew OPP. Cliche could have been the trafficker, Malcolm as well. Forrest could well have been a buyer only on February 26, 2021.
[230] I place no emphasis on the pre-packaging materials (i.e. new and unused baggies) found on the coffee table in the basement, nor on the $420.00 cash found in the blue clutch purse, nor the extracted text exchange between Gingerbread Man, Splash and/or Skyler Eady, nor the total number of cell phones found within the residence, nor the bear spray which could have potentially been used as a weapon.
[231] Cliche was in the basement with Forrest at the time the Warrant was executed. She could well have been engaged in the trafficking of methamphetamine. $420.00 cash was found in a woman’s clutch purse in the basement of the subject residence. She could well have been living there and dealing in methamphetamine on the street level, 0.1 g scale.
[232] Forrest may not have paid for the methamphetamine in full. Indeed, the Crown theory suggested police believed the Toyota in the driveway of the subject residence belonged to Forrest. It is far from inconceivable that Forrest may have left cash in his vehicle. Equally, he could have acquired the drugs on credit.
[233] Insofar as the downloaded Cellebrite text exchanges are concerned, there was no evidence to suggest that Gingerbread Man or Splash had to be a pseudonym for Forrest. He is certainly not Skyler Eady.
[234] Hicks did not know from which specific phone the text exchanges between Gingerbread Man, Splash and/or Skyler Eady had been extracted. Without being able to identify the extraction as coming from a cell phone located in its box in the Roots bag, the text exchange has little to no value in pointing to Forrest.
[235] Indeed, Hartwick’s evidence initially indicated that the Moto E cell phone with the suspected debt list written on the interior of its cardboard container was located on the top of a table to the left side of the bed in the basement area. A black nylon bag on top of a table near the bed, according to Hartwick, also held an operational electronic scale. There were apparently packaging materials nearby as well.
[236] Although Hartwick’s evidence was to the effect during examination-in-chief and cross-examination that this is where the Moto E cell phone with the purported debt list was found (i.e. on the table to the left side of the bed), his evidence changed dramatically to the Moto E cell phone being located within the Roots backpack when he was re-examined.
[237] Given the inconsistency in Hartwick’s evidence, I can place no reliance upon it.
[238] The bear spray, of course, was found upstairs in the area normally occupied by Malcolm and Beckett. It has therefore no connection to Forrest. Furthermore, Malcolm was known to police as a user and trafficker in illegal drugs.
[239] I place zero weight on the “strong inference” drawn by Hicks in his Report that the methamphetamine seized by police was for the purpose of trafficking. I consider this conclusion he reached to be inadmissible evidence. It goes to the ‘ultimate issue’. To give it any consideration would usurp my role as the trier of fact.
[240] I am left with little to distinguish the facts as I have found them in this case from those as found by Spies J. in Pico. On the totality of the evidence before Her Honour, taking into account the lack of money, packaging, debt lists or scales located on the person of the accused at the time of his arrest and search, she was left in a state of reasonable doubt on the issue of whether the drug must have been possessed for the purpose of trafficking. Similarly, I have a reasonable doubt as well about whether Forrest must have possessed the methamphetamine for the purpose of trafficking.
[241] In the case before me, it is clear Forrest had no money on him when arrested by police in the basement of the subject residence. Nor were there packaging materials or scales in the Roots backpack, even if they were on a coffee table nearby. Cliche, of course, was in the vicinity as well. There were items of circumstantial evidence, such as the baby blue clutch purse left on a table, to suggest her connection to the basement of the subject residence as being her dwelling space more so than Forrest’s.
[242] Accordingly, while I am persuaded that the Roots backpack belonged to Forrest, including the two separate bags of methamphetamine contained within it, I am not anywhere near convinced that he must have possessed the methamphetamine for the purpose of trafficking.
Reasonable Doubt:
[243] Hartwick testified that he located the suspected fentanyl on top of the bed in the basement on its left side in a small clear plastic container with a lid.
[244] To the contrary, Busschaert, in her Exhibit Register, recorded that the suspected fentanyl, according to what she must have been told by Hartwick, was found in a backpack on the bed in the basement.
[245] There is a clear conflict in the evidence of both Hartwick and Busschaert as to where the suspected fentanyl was at the time the Warrant was executed, and the basement area of 136 Argyle St., Renfrew was searched. I have no basis for preferring the evidence of Busschaert over Hartwick, or vice versa.
[246] In light of the conflict in their evidence, I clearly must entertain a reasonable doubt as to where Hartwick did in fact find the suspected fentanyl. If it was sitting on the bed as opposed to being contained in the Roots backpack, the fentanyl may well have belonged to Cliche. She was present in the basement with Forrest at the time the Warrant was executed.
[247] I give no weight to the evidence of Wood, which implicated peripherally Malcolm and Cliche as possible drug users and/or traffickers.
[248] Forrest’s connection to the Roots bag was, of course, key to the conclusions I have reached about his ownership of it, and in turn, his knowledge and control over its contents including the two separate bags of methamphetamine.
Conclusion
[249] For the above reasons, I must find Forrest guilty of possessing methamphetamine, but not guilty for the purpose of trafficking in it.
[250] Further, I will find him not guilty of possession of the fentanyl.
DATED: May 16, 2023
March, M.G., J.