Ontario Court of Justice
Date: 2025-04-15
Court File No.: Windsor 23-81104870
Between:
His Majesty the King
— AND —
Kevin Coulter
Before Justice S. G. Pratt
Heard on 9 December 2024
Reasons for Judgment released on 15 April 2025
Bahaar Chaudhry — Counsel for the Crown
Alyssa Jervis — Counsel for the Defendant
Reasons for Judgment
Pratt J.:
[1] On 9 December 2024, the Defendant Kevin Coulter pleaded guilty to two offences and not guilty to one offence. That third offence accuses him of possessing fentanyl for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act (“the Act”). A trial of an issue was held to determine if his admitted possession was for that purpose, or if he should be found guilty of simple possession contrary to s. 4(1) of the Act.
[2] Following the calling of evidence, the parties filed written submissions.
Facts
[3] On 23 October 2023, the Windsor Police Service began an investigation into stolen property. This investigation included conducting surveillance on the Defendant.
[4] On 25 October 2023 the Defendant was seen exiting 33-10200 Menard Street in Windsor. He was carrying a shoe box when he entered the passenger seat of a grey Cadillac. In the driver’s seat was a female believed to be Jennifer Conley. Ms. Conley is noteworthy because at the time, the Defendant was on a release condition prohibiting contact with her. He was also on a condition to remain in his residence or on the property of his residence at all times unless in the company of his surety. When the Cadillac left the Menard Street residence, the Defendant was not in the company of his surety.
[5] The vehicle was followed to a Tim Hortons at 7852 Wyandotte Street East. The Defendant exited the vehicle and, with a satchel slung over his shoulder, entered the restaurant.
[6] Believing the Defendant to be in breach of his release conditions, police arrested him. A search incident to arrest discovered the following:
(1) A pair of brass knuckles in his pocket.
(2) A 2”x3” baggie with 12.8g of suspected brown fentanyl, identified by police as Item A.
(3) A 2”x3” baggie with 8g of suspected white fentanyl, identified by police as Item B.
(4) 8g of suspected brown fentanyl wrapped in cellophane, identified by police as Item C.
(5) A 1”x1” baggie with 9.5 tablets of suspected 8mg Dilaudid, identified by police as Item D.
(6) $135 in Canadian currency, though the photograph of the money seized shows a total of $140.
[7] Samples of Items A, B, and D were sent to Health Canada for analysis. Item A was confirmed to be fentanyl. Item B was determined to be cocaine. Item D was confirmed to be hydromorphone, the chemical name of Dilaudid.
[8] I have no evidence that Item C was ever tested. It was conceded, however, that at the time of his arrest, the Defendant was in possession of 20.8g of fentanyl. This necessarily means it is conceded that Item C was, in fact, fentanyl.
The Trial of an Issue
[9] While pleas of guilt were entered on counts 1 and 3, the breach of a release order and possession of a prohibited weapon, a plea of not guilty was entered on count 4. The sole issue to be determined on that count was whether the Crown had proved beyond a reasonable doubt that the Defendant’s possession of the fentanyl was for the purpose of trafficking.
[10] In support of that contention, the Crown called PC Elena Revenberg. PC Revenberg was a member of the Windsor Police Drugs and Guns Enforcement Unit and testified to having significant experience dealing with the drug subculture. Following a voir dire into her qualifications, it was admitted she could provide expert evidence in the areas of pricing, quantity, rate of consumption, indicia of trafficking, distribution and methods of personal use and consumption with regard to fentanyl. She was so qualified.
[11] PC Revenberg’s report was filed as an exhibit. I have concerns about the report as presented.
[12] Firstly, the officer bases her opinion that the fentanyl in question was possessed for the purpose of trafficking on the facts she set out. Those facts include the seizure of 28.8g of fentanyl. That assertion is not borne out by the agreed statement of facts. The total admitted quantity of fentanyl is 20.8g. It would appear that the officer is including the 8g of suspected fentanyl (ultimately determined to be cocaine) in the total. The problem with that inclusion – apart from it being factually incorrect – is the Health Canada certificate of analysis confirming Item B to be cocaine is dated 8 December 2023 and the officer’s report is dated 5 July 2024. This implies the report was completed without reference to the certificate. I don’t immediately understand why a report would be completed without considering the results of Health Canada’s analysis of the actual substances.
[13] I do note that on page 4 of the report, at paragraph 14, an amount referring to the seized fentanyl is redacted and replaced with a handwritten “20.8”. This change is not signed or initialled, and it is not clear who made it. At paragraph 17 of the report, the amount of 28.8g is again mentioned.
[14] Secondly, the officer includes in the list of seized drugs 12.8g of crystal methamphetamine. Nowhere in the agreed statement of facts is crystal methamphetamine ever mentioned. I have no evidence this drug was ever found on the Defendant or is otherwise relevant to this case (aside from his own testimony in court), but it was included in the officer’s report. There are other portions of the report that have been redacted, so perhaps it is mentioned there. On the evidence I have, however, there is no other reference in the Crown’s case to crystal methamphetamine. This causes me to question the basis for the officer’s eventual opinion as stated.
[15] If the officer’s evidence was limited to her report, I would have difficulty placing significant weight on her opinion for the reasons I’ve noted. But that was not the only source of her evidence. She also testified.
[16] In her testimony, PC Revenberg was given a hypothetical situation where a person was in possession of 20.8g of fentanyl. She was asked if she could form an opinion regarding trafficking or personal use based on that amount. She opined such an amount would necessarily be for trafficking, saying that for even a heavy user, that represented about ten days’ worth of supply. In her experience, it would be very unusual for a person to carry ten days of drugs around with them as doing so would increase their liability if discovered by police and would increase their risk of being robbed by other users.
[17] The officer was then asked if the fentanyl being separated into two packages, one of 12.8g and the other of 8g, would change her opinion. She said it would not. The 12.8g package was just under half an ounce while the 8g package was just over a quarter of an ounce. Both those quantities are commonly used amounts in trafficking.
[18] She was then asked if the addition of 8g of cocaine and 9.5 tablets of Dilaudid would affect her opinion. Again, she said it would not. She noted that drug sellers often sell more than one type of drug, as in her words, buyers “want variety”.
[19] PC Revenberg was also asked about usage rates. She testified that moderate users of fentanyl might consume 0.5-1g per day, while chronic users might consume 1-2g per day. She acknowledged that a person’s tolerance would increase with continued use, and that a person coming to fentanyl after using other drugs would likely start with a higher tolerance than someone without such a history.
[20] Based on the officer’s estimates, if the Defendant is a high-end chronic user, the amount of fentanyl seized from him represents approximately ten days’ worth of product.
[21] Returning to PC Revenberg’s report, there is another disconnect between what she relied on and what is in the agreed statement of facts.
[22] In the report under “Synopsis of the Investigation”, the officer says the following, starting at paragraph 11:
- On Wednesday, October 25th, 2023, Windsor Police Target Base officers initiated an investigation into Kevin COULTER who was believed to be a suspect in a break and enter. Officers believed COULTER was in possession of stolen property as viewed on open source media. Officers were able to set up a purchase using an undercover online operator. Officers arranged a meeting location with COULTER using an officer in an undercover capacity.
- At 11:09 am, COULTER arrived at the location and officers placed COULTER under arrest for fail to comply with release order.
- Search incident to arrest officers located the confirmed stolen Nike running shoes, a pair of brass knuckles, a quantity of fentanyl and hydromorphone tablets, and $135 of Canadian currency on his person. COULTER was further charged with traffic in property obtained by crime not exceeding $5000, possession of a prohibited weapon, and possession of a schedule 1 substance for the purpose of trafficking.
[23] The fact that it was police who had arranged the Defendant’s attendance at Tim Hortons was not included in the agreed statement of facts. Likewise, the agreed statement did not include the fact that the Defendant in fact did have shoes in his possession when arrested. This corroborates his testimony that he was only at the Tim Hortons to sell shoes. Not including these facts in the agreed statement invites the inferences that he went to the restaurant on his own initiative, and that his claim of selling shoes was not borne out by the results of the search. These are important points that should have been included.
[24] The Defendant also testified. He admitted to being a heavy user of fentanyl. He said he was using “around a ball a day” at the time of his arrest. PC Revenberg defined a ball as being 3.5g. This would place the Defendant at nearly double the daily use of even the chronic user described by the officer.
[25] He said he had purchased an ounce of fentanyl the night before his arrest. He preferred to carry his drugs with him at all times as he didn’t want them to be stolen.
[26] The Defendant disputed the street values testified to by PC Revenberg. While she said a ball would cost $350-500 and an ounce $1,500-2,500, he said he would pay about $100 for a ball and rarely paid more than $400 for an ounce. The officer agreed prices had dropped in recent years, but the Defendant’s estimates would represent a decrease of more than 60% from her evidence. Given that her estimates come from multiple sources, including confidential informants and other officers, it seems unlikely her approximated values would be so inaccurate.
[27] The Defendant was asked about his consumption of crystal methamphetamine. His answers to these questions were internally inconsistent. He said he consumed less than 1g per day. He also said he typically purchased it an ounce at a time, i.e. 28g at once. He then said he would purchase it 2-3 times per month. Those numbers, respectfully, do not add up. Smoking less than 1g per day would mean a single ounce is more than enough for a month. Why would he then be buying 2-3 ounces a month?
[28] I also consider the Defendant’s evidence on his financial status. His only income, he said, was a $1,000 monthly payment from the Children’s Aid Society. He testified that he would buy 2-3 ounces of crystal methamphetamine per month at a cost he estimated to be $100 per ounce. He would also buy 2-3 ounces per month of fentanyl, which cost him between $200-300 each. Regarding his residence, he said he rented a five-bedroom house for $2,000 a month and had several roommates to help defray the cost. At one point in his testimony, he guessed that he personally paid $300-400 per month towards rent. Elsewhere, he said three people (presumably including the Defendant, but it wasn’t clear) each paid between $600-700 per month.
[29] In total then, according to the Defendant’s own testimony, his total monthly drug expenses were, at the low end, $600 per month, and at the high end, $1,200 per month. Rent, depending on which part of his testimony is accepted, was as low as $300 and as high as $700. His total monthly expenses, paid for by a single $1,000 CAS payment, were between $900-1,900. He did testify to making some money buying and selling bicycles on Facebook Marketplace, but could offer no detail about how much income this business generated. At best, the Defendant had $100 each month to buy food and other necessities. At worst, he was overdrawn by $900 every month with no explanation for how he was covering that overage.
[30] The focus of the Defendant’s evidence was his claim that the drugs in his possession at the time of his arrest were for his own personal use. He did not have them with the intention of trafficking.
[31] I have considered the Defendant’s evidence in accordance with the principles of R. v. W.D., [1991] 1 S.C.R. 742. Taking all of his evidence into account and assessing it against the totality of the evidence I have heard, I conclude that I do not believe him.
[32] In my view, the Defendant’s evidence was inconsistent on key points. His claim of how much crystal methamphetamine he consumed was not in line with the amount he said he would purchase. On his own evidence, he purchased double or triple the amount he personally needed every month.
[33] On the issue of his residence, his living arrangements changed throughout his testimony. His rent could have been $300, or it could have been more than double that. He did not provide a consistent response.
[34] Overall, one would think that a person whose only income is a single $1,000 payment would be more aware of how much he was paying for daily necessities. I also note that the Defendant was sufficiently price-conscious that he said he would buy drugs in bulk to take advantage of discounts but couldn’t say what he paid for food or rent. His inconsistent, incomplete answers prevent me from accepting his evidence that the drugs were all for personal use.
[35] Turning to the second prong of the W.D. test, I must consider if the Defendant’s evidence has left me with a reasonable doubt. This is a lower bar. I can disbelieve evidence but still be left with a reasonable doubt by it.
[36] Again, I must consider the defence evidence in the context of all the evidence I heard. No one witness or piece of evidence can be considered in a silo. I therefore assess the Defendant’s claim holistically to see if the evidence leaves me with a reasonable doubt.
[37] The Defendant was arrested in possession of four different controlled substances. He had a total of 20.8g of fentanyl, 8g of cocaine, and 9.5 tablets of Dilaudid. The fentanyl was separated into two packages. The cocaine and Dilaudid were similarly separately packaged. He also had a quantity of money on him, though it was not a large amount.
[38] I heard no evidence that the Defendant was a user of either cocaine or Dilaudid. He testified to using crystal methamphetamine and fentanyl, but nothing else. Why, then, was he carrying other controlled substances? To be clear, there is no burden on the Defendant to answer that question. It is a relevant question, however, when I consider the inferences available to be drawn from the evidence.
[39] The Defendant testified that he carried all his drugs on his person because he didn’t want to leave them somewhere that could have been insecure. Accepting that evidence does not preclude a finding that he was possessing the drugs for the purpose of trafficking. A dealer, just as much as a user, could choose to carry their inventory around with them. His assertion that he didn’t want to leave his stash at his residence does not weaken the Crown’s claim that he was intending to sell it.
[40] On that point, the amount and variety of drugs he was carrying militate in favour of a finding that he was looking to traffic the drugs he held. Even if I accept his claim of using 3.5g of fentanyl per day, which as I said would put him at nearly double the daily usage level of a chronic user in PC Revenberg’s opinion, that still means he had nearly six days’ worth in his possession. If his usage was closer to 2g a day, it would be ten days’ worth. On top of that he had a baggie of pills and just over a quarter ounce of cocaine.
[41] He was also carrying a weapon on arrest in the form of brass knuckles. Weapons, including brass knuckles, go hand-in-hand with the drug trade given the monetary value of the merchandise (see: R. v. Nair [2020] B.C.J. No. 1455 (P.C.), R. v. Learning [2017] B.C.J. No. 1777 (S.C.), R. v. Murphy [2010] O.J. No. 255 (S.C.J.), R. v. Farquharson [2013] O.J. No. 5868 (S.C.J.)).
[42] Taking all the evidence into account, I find the evidence of the Defendant does not leave me with a reasonable doubt on the issue of why he was in possession of the fentanyl.
[43] Finally, I turn to the third prong of the W.D. test. On the basis of the evidence I do accept, has the Crown proved the charged offence beyond a reasonable doubt?
[44] This stage of my analysis requires me to consider the nature and use of circumstantial evidence. I have no direct evidence that the Defendant was possessing the fentanyl for the purpose of trafficking; the Crown instead points to the surrounding circumstances to argue the Defendant’s guilt is the only reasonable inference available to be drawn.
[45] The Supreme Court of Canada reviewed circumstantial evidence in the case of R. v. Villaroman, 2016 SCC 33. Before a trier of fact can convict a defendant on the basis of circumstantial evidence, it must find that guilt is the only reasonable inference available to be drawn from the evidence. It does not have to be the only possible inference. The Crown is not required to negate every other possibility disclosed by the evidence. But it must be the only reasonable inference. If there is another such inference that points away from guilt, the Crown will have failed to meet its burden.
[46] The question to be answered at this stage is whether the Defendant possessing the fentanyl, in the arrangement and quantity admitted, for the purpose of trafficking is the only reasonable inference I can draw.
[47] That the drugs in the Defendant’s possession were for his own personal use is certainly an inference I can draw. But is it reasonable? In my view, it is not.
[48] The first reason for that conclusion is the sheer amount of fentanyl he was carrying. Even if I accept the Defendant’s evidence as to his usage level, this was nearly a week’s supply. On the more likely usage level testified to by PC Revenberg, it’s 10 days’ worth. I do not accept that a person, especially a person with their own residence, would carry that quantity around with them solely out of concern for its security. If the Defendant had no residence, or was living in shelters, I may have come to a different conclusion. But he wasn’t.
[49] The second reason is the packaging of the fentanyl in his possession. He testified to buying an ounce the previous evening. He was not, however, in possession of the 20.8g in one bag. There was 12.8g in one bag, and 8g in another. These amounts are significant as they are near to commonly sold amounts. This strongly supports the inference that they were packaged not for personal use, but for sale.
[50] The third reason is the variety of drugs the Defendant was carrying on arrest. In addition to a large quantity of fentanyl, he also had 8g of cocaine (again just about a quarter-ounce) and 9.5 tablets of Dilaudid. In his testimony about his own drug use, he never mentioned personally using either drug. So why did he have them? Again, there is no burden on him to offer an explanation. On the evidence I have, however, the only reasonable inference is that he possessed all the drugs, including the fentanyl, to sell them.
Result
[51] Considering all the evidence, I find the only reasonable inference available to be drawn is that the Defendant possessed the fentanyl in question for the purpose of trafficking it. The amount of fentanyl, its packaging, and the surrounding circumstances, all lead inexorably to this conclusion.
[52] It was argued that perhaps the Defendant’s willingness to share his drugs with others could also meet the definition of trafficking, and that therefore, possessing his drugs with the intention of sharing them could also satisfy s. 5(2) of the Act. In my view, I do not need to decide this point. The circumstances of his possession, as outlined, make out the offence without resort to this theory.
[53] The Defendant will be found guilty of possession of fentanyl for the purpose of trafficking.
[54] I conclude by repeating my concern about the deficiencies in PC Revenberg’s report as it was presented, and about the failure to mention the shoes in the agreed statement of facts.
[55] If changes are made to an expert’s report, as happened here, those changes should be signed by the expert and explained. A trier of fact should not have to piece together the basis for the expert’s opinion based on partially redacted information. And, if there is other evidence in the report not meant to be heard by the Court (for example, perhaps, the mention of crystal methamphetamine) redactions must be made of all mentions of it, not just most of them.
[56] Similarly, a trier of fact should not have to rely on the narrative of an expert report to provide important evidence missing from the agreed statement. When an agreed statement is filed, it should be a complete and comprehensive record of all relevant evidence that stands on its own. The trier of fact should not have to go looking elsewhere to supplement it.
[57] We will proceed to sentencing.
Released: 15 April 2025
Signed: Justice S. G. Pratt