ONTARIO COURT OF JUSTICE
DATE: 2025 01 09
COURT FILE No.: Hamilton 998 23 47104499
BETWEEN:
HIS MAJESTY THE KING
— AND —
LARRY BOMBERRY
Reasons for Judgment
Before Justice Davin M.K. Garg
Heard on August 19-20, November 25, December 30, 2024
Reasons released on January 9, 2025
Gordon Akilie — agent for the Public Prosecution Service of Canada
Andrew Confente — counsel for the accused
Overview
[1] Larry Bomberry was arrested in an encampment while possessing over 62 grams of methamphetamine and $1,400 in cash. The evidence is thin that he was trafficking the methamphetamine at the time of his arrest. Can the Crown still prove that he possessed the drugs for the purpose of trafficking? That is the issue for me to resolve.
[2] I am satisfied that a trafficking purpose is the only reasonable inference in this case. The charge of possession for the purpose of trafficking does not require proof of actual trafficking. While Mr. Bomberry might not have been actively trafficking at the time of his arrest, the quantity of drugs and cash establish beyond a reasonable doubt that he possessed the drugs as part of an ongoing trafficking operation.
Background
[3] Mr. Bomberry visited the Woodlands Park in Hamilton one morning in July 2023. An encampment was setup in the park at the time. Mr. Bomberry ultimately entered a friend’s tent. He testified that he planned to use her tent to “do a bump” of his methamphetamine. But he was arrested by the police before he could snort the drugs.
[4] There is no dispute that Mr. Bomberry possessed 62.48 grams of methamphetamine.[1] I previously dismissed a defence application to exclude the drugs under sections 8 and 24(2) of the Charter. The evidence called by the Crown on the Charter application applied to the trial proper on the consent of the parties.
[5] Mr. Bomberry testified that he had purchased the methamphetamine about three days before his arrest. He purchased roughly two ounces (or 56 grams) worth. He paid $300. He purchased a greater quantity than normal because he knew the seller, who gave him a discount. He combined that purchase with a quantity of methamphetamine already in his possession.
[6] The Crown called a police officer who was qualified on consent to give expert opinion evidence about the conduct and indicia of trafficking methamphetamine, which included evidence on pricing, quantity, storage habits, consumption habits, and side effects on users.
Analysis of the Exculpatory Evidence
[7] The W.(D.) principles apply in this case. Mr. Bomberry testified and denied that he possessed the methamphetamine for the purpose of trafficking. He asserted that he only possessed the drugs for personal use. If I accept his account or am left in doubt by it, then I must acquit on that charge. Although the W.(D.) analysis refers to three steps, the overriding consideration is whether the evidence as a whole leaves me with any reasonable doubt about Mr. Bomberry’s guilt. The W.(D.) analysis ensures that my verdict is not based on a choice between the Crown evidence and the defence evidence: see R. v. A.J.K., 2022 ONCA 487 at para. 22. Exculpatory evidence is not limited to the defence case. It can arise from the Crown’s case as well: see R. v. B.D., 2011 ONCA 51 at para. 114.
[8] For the following three reasons, I reject Mr. Bomberry’s evidence and am not left in doubt by his evidence when it comes to his stated purpose for possessing the drugs.
[9] First, I find Mr. Bomberry’s evidence about the source of $1,481.75 in cash in his possession to be implausible. Mr. Bomberry received $350 a month from Ontario Works for basic needs. To supplement this income, Mr. Bomberry testified that he bought broken e-bikes, repaired them, and sold them. He testified that around the time of purchasing the drugs, he had just sold an e-bike or two for roughly $400 or $500. When Mr. Bomberry was reminded about the sum of cash in his possession, which surpassed the revenue from selling two e-bikes, he added that he had cashed cheques received when previous charges were “thrown out”. He initially said that he had received his last cheque a couple months before the arrest in the amount of $500 or $600. He shortened the timeframe in cross-examination. When asked how much of those funds he had remaining, Mr. Bomberry explained how he had invested the money in flipping e-bikes, which netted him roughly $300.
[10] I do not accept that Mr. Bomberry was making the claimed sums from repairing and flipping e-bikes. This is a situation where I required more detail about the nature of Mr. Bomberry’s enterprise to accept his testimony about it. I am mindful that Mr. Bomberry was answering the questions that were put to him: see R. v. R.C., 2008 ONCA 98 at para. 9. But the scenario that he presented does not accord with common sense without details lending credence to it: see R. v. Duong, 2014 ONCA 375 at para. 61. E-bikes are a relatively high-value item. Prospective customers might want to know some details about the provenance and reliability of an e-bike before purchasing one. Some level of skill would be required to change or repair electrical parts. I received scant details about how Mr. Bomberry obtained the broken e-bikes, how much he paid for them, how he went about fixing them, and how he found people to sell them to, beyond random people responding to ads on Kijiji. I received limited details about where Mr. Bomberry fixed the bikes, where he stored them, and what tools he used in his work. Without these details, I find it implausible that Mr. Bomberry had sold about $900 worth of e-bikes a few days before his arrest and continued to hold the proceeds. The explanation is too convenient.
[11] The financial calculation does not add up in any event. At its highest, selling the two e-bikes gave Mr. Bomberry $1,000. He netted about $300 after purchasing e-bikes with funds returned to him after previous charges were thrown out. The $1,300 still puts him short of the $1,481.75 found in his possession. The shortfall could have been made up through funds remaining from his Ontario Works or from other proceeds returned to him after charges fell through. But Mr. Bomberry clarified in cross-examination that he had not yet received his Ontario Works payment for that month. Plus he had expenses. In addition to his basic needs, Mr. Bomberry had recently paid $300 for the methamphetamine and an additional $300 or $350 for cocaine.[2] The methamphetamine was a recurring monthly expense. All the while, Mr. Bomberry says he was saving money to rent an apartment. I find that this income statement does not hold up to scrutiny.
[12] Second, I do not accept Mr. Bomberry’s explanation for why he was keeping all the cash and methamphetamine on him if he was only using the drugs for personal use. I appreciate that people experiencing homelessness or housing instability may need to keep their belongings on them for safekeeping. But Mr. Bomberry had stable housing. He had been living with his girlfriend and her family in a three-bedroom house for four years. It had various storage options, including his room, closets, and a basement, even if Mr. Bomberry did not enjoy complete privacy there or entirely trust the other occupants. Mr. Bomberry must have been keeping the e-bikes and repair tools somewhere—there was no suggestion that he was always carting them around with him. If a significant concern to Mr. Bomberry was the risk of losing his drugs or money, then it does not make sense that he would bring the items to an encampment, go inside a tent, and start chipping off a chunk from his stash. The tent was not private. Mr. Bomberry had left open the tent’s front door. An officer could see Mr. Bomberry and his drugs through a window.
[13] Third, Mr. Bomberry gave inconsistent evidence on his timeline for visiting the park that day. The inconsistency is significant given that Mr. Bomberry’s actions and intentions when visiting the park were a live issue in this case. In examination in-chief, Mr. Bomberry was clear that he attended the park around “ten to eleven”[3] after leaving a friend’s place. He attended the park because he was just passing through and happened to see a friend. Mr. Bomberry gave different evidence in cross-examination. He testified that he went to the park around 3am or 4am and stayed at the park until his arrest around 10am. I find that Mr. Bomberry became defensive when confronted on the inconsistency in a manner that undermined his credibility. For instance, I do not accept that he had been referring to his arrival at a specific location within the park during his examination in-chief.
[14] While I reject and am not left in doubt by Mr. Bomberry’s testimony that he possessed 62 grams of methamphetamine for entirely personal use, I accept that he was addicted to the drug and regularly consumed it. I also accept that Mr. Bomberry did not hold regular employment or earn a steady stream of income, aside from his Ontario Works payments.[4] I can accept some, none, or all of a witness’s evidence: see R. v. S.H., 2011 ONCA 215 at para. 8.
Villaroman Analysis
[15] The Crown bears the onus of proving each and every element of the offences charged beyond a reasonable doubt. Mr. Bomberry carries no onus to prove or disprove anything. He is presumed innocent of all charges. The burden of proof never shifts to the defence. It is not enough for me to believe that Mr. Bomberry is probably or likely guilty of an offence. In that situation, I would need to acquit. While the Crown is not required to prove its case to an absolute certainty, proof beyond a reasonable doubt falls much closer to an absolute certainty than the balance of probabilities. Reasonable doubt can arise from the evidence or from the absence of evidence.
[16] The Crown presents a circumstantial case to prove Mr. Bomberry’s purpose for possessing the drugs. I must conduct an analysis pursuant to the principles articulated in R. v. Villaroman, 2016 SCC 33. My assessment of the circumstantial evidence and the process of drawing inferences is guided by the Court of Appeal’s decision in R. v. Gibson, 2021 ONCA 530 at paras. 75-79. I must decide whether a trafficking purpose is the only reasonable conclusion on the cumulative effect of the evidence.
[17] I must consider other reasonable possibilities or plausible theories that are inconsistent with guilt to decide whether an inference of guilt is the only reasonable inference. Reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence. The possibility inconsistent with guilt that I must consider in this case is whether Mr. Bomberry possessed the drugs for personal use. “[I]t is for the trier of fact to determine whether any proposed alternative way of looking at the case as a whole is reasonable enough to raise a doubt about the guilt of the accused”: see R. v. Lights, 2020 ONCA 128 at para. 39.
[18] I remind myself that my rejection of Mr. Bomberry’s testimony does not add a brick to the Crown’s case. For example, rejecting Mr. Bomberry’s evidence about the source of cash in his possession simply means that I lack direct evidence about the source. It does not necessarily mean that the source was illicit. As defence counsel rightly emphasized, there was no onus on Mr. Bomberry to prove anything: see R. v. J.E., 2024 ONCA 801 at para. 20.
[19] Trafficking cases demand a fact-specific inquiry. Drug quantities insufficient to make out trafficking in one case might be sufficient in another: see R. v. Gordon, 2018 ONSC 1297 at para. 65.
[20] The Crown presented two routes of liability. The primary route is that Mr. Bomberry was trafficking, or intended to traffic methamphetamine, in the encampment that day. Both parties elicited evidence relevant to this issue, with the defence arguing that Mr. Bomberry lacked an ability to traffic drugs at the time of his arrest. The secondary route is that Mr. Bomberry possessed the drugs with the intention to traffic them, regardless of whether he was trafficking them in the encampment. I will elaborate on why I am satisfied that the Crown has met its onus on the secondary route of liability.
Trafficking in the Encampment
[21] I am not satisfied beyond a reasonable doubt that Mr. Bomberry was actively trafficking methamphetamine in the encampment. Through cross-examination of the expert, the defence aptly elicited the absence of factors that might be expected when a dealer is in the midst of trafficking methamphetamine at “points” of 0.1 grams. Both a user and trafficker seek a quick transaction. As the expert recognized, “in a tent setting at a park, as a dealer, you don’t want a lineup constantly in front of your tent because that’s going to draw more attention”. To enable quick transactions, the trafficker needs to have points ready for sale in individual bags. The trafficker would then receive $10 or $15 cash in return. But Mr. Bomberry was arrested without any individual bags, the methamphetamine was largely in one chunk, there is no indication that Mr. Bomberry could have weighed out individual amounts (e.g., he did not have a scale), and he had limited $5 and $10 bills in his possession. Mr. Bomberry also did not have any weapons or debt lists on him, and he only had one cell phone.
Ongoing Trafficking Operation
[22] To be found guilty of possessing methamphetamine for the purpose of trafficking, an accused need not be found in the act of trafficking. Parliament has made this clear by creating two separate offences in section 5 of the Controlled Drugs and Substances Act. Whereas subsection (1) makes it an offence to traffic a controlled substance, Mr. Bomberry is charged under subsection (2), which prohibits the possession of a controlled substance for the purpose of trafficking (also known colloquially as “P4P”). Even when an individual is charged under subsection (2), they must still have the necessary mens rea while possessing the drugs. The individual must intend to traffic the drugs at the time of possession, even if the trafficking will occur at some point in the future: see R. v. Rajczak-McGuigan, 2024 ONCJ 403 at para. 49.
[23] Defence counsel agreed with these legal principles but asserted that it would be speculative to conclude that Mr. Bomberry intended to traffic the methamphetamine. I took this argument to mean that the evidence was insufficient to prove a trafficking purpose as the only reasonable inference.
[24] I am satisfied beyond a reasonable doubt that a trafficking purpose is the only reasonable inference based on the entirety of the evidence that I accept. I draw this inference based on the quantity of drugs and cash in Mr. Bomberry’s possession, in conjunction with the parts of the expert’s evidence that I accept. I arrive at this conclusion after considering the aforementioned absence of evidence (e.g., Mr. Bomberry was not found with a weapon or multiple cell phones).
[25] Of significance, Mr. Bomberry had over $1,400 in cash. I accept his evidence that he received $350 a month from Ontario Works and did not otherwise have a steady income stream. Beyond that, I lack direct evidence that I accept to account for the cash in his possession. Mr. Bomberry bore no onus to explain the source of the cash. But an inference is available that he made the cash from selling the methamphetamine, given the absence of another plausible explanation for the cash. I accept the expert’s evidence that drug traffickers generally deal in cash and that a user-trafficker is unlikely to deposit the funds in a bank account. I also accept that a user of methamphetamine who lacks licit revenue streams tends to not have much money—yet Mr. Bomberry did have a significant amount of money. While the absence of small bills undermined the theory of Mr. Bomberry trafficking in the encampment, the larger bills in his possession do not undermine the existence of an ongoing trafficking operation.
[26] I further accept the expert’s evidence that the 62 grams of methamphetamine represented 620 doses at the point level. I accept that a typical user would consume two to three grams a day but would need to take a break at some point during the “come-down” period when the body is shutting down.[5] Putting aside any periods of non-consumption, the amount in Mr. Bomberry’s possession would have lasted 20 days if he consumed slightly more than three grams per day. This significant quantity tells against personal possession and supports that Mr. Bomberry was also trafficking the drug.
[27] I also accept the expert’s evidence that a mere user would be unlikely to carry the quantities of drugs and cash found on Mr. Bomberry due to the associated risks (e.g., theft, seizure by the police). I accept this evidence given that I also make a finding of fact that Mr. Bomberry had alternative storage arrangements available at his home. I accept the expert’s evidence notwithstanding the defence argument that Mr. Bomberry had attempted to conceal the drugs in a Naloxone kit.[6] Rather, I find that the kit acted as a convenient form of wallet, as confirmed by Mr. Bomberry in his testimony.
[28] Finally, I accept that a mere street level user would be unlikely to purchase at the ounce level given the nature of the trafficking hierarchy and the financial impediments to such a purchase. It is not contentious that Mr. Bomberry purchased at the ounce level. The packaging of the methamphetamine was consistent with a mid-level purchase (i.e., a sandwich bag) and inconsistent with a street level purchase (i.e., a dime bag). Mr. Bomberry also testified that he purchased the methamphetamine at the ounce level.
[29] I have outlined above the specific portions of the expert evidence that I relied on. I did not rely upon portions of the expert’s evidence that were premised on things he had never seen. Anecdotal evidence that an expert has never heard of something before does not carry probative value. Otherwise, the accused would bear an onus to call evidence to prove that something can occur: see R. v. Sekhon, 2014 SCC 15 at para. 50. In this case, for example, I put no weight on the expert’s evidence that he had never heard about a person consuming more than three grams of methamphetamine a day. Rather, I rely on his evidence that the usual consumption range is under three grams. The defence did not strongly push that Mr. Bomberry was consuming more than three grams per day—Mr. Bomberry’s own evidence was that he was consuming “like two to three grams a day roughly, if not more”.
[30] I find that this case is distinguishable from the Ontario Court of Appeal’s decision in R. v. MacAdam, 2024 ONCA 13. The Court described the evidence of trafficking as “thin” and “meagre” for an accused found in possession of 112 grams of cocaine. Each case must be examined on its individual facts. I have no evidence on how, if at all, 112 grams of cocaine compares to 62 grams of methamphetamine (the decision does not mention whether the cocaine was in powder or crack form). Importantly, Mr. Bomberry did not live in a remote location without ready access to dealers, which might call for stockpiling drugs. Mr. Bomberry also possessed significant cash, whereas no money is mentioned in the MacAdam decision. While the expert before me recognized the frailties in a theory that Mr. Bomberry was trafficking in the encampment, he held firm on his opinion overall.
[31] I have considered an argument that the absence of actual trafficking—or being in position to conduct actual trafficking—undermines the inference that Mr. Bomberry possessed the methamphetamine for the purpose of trafficking. As the argument goes, Mr. Bomberry was found somewhere that likely housed the prime clientele for point level dealing. If he was not positioned to sell drugs to this clientele when arrested, then I should doubt whether he intended to ever sell the drugs in his possession. I reject this argument. I cannot say whether people living in an encampment are the sole or even prime clientele to purchase points of methamphetamine. Even if they are, the people in the encampment were not leaving any time soon. Mr. Bomberry lived nearby. He had ample opportunity to sell drugs to them, even if the transactions would occur in the future. A person who possesses drugs for the purpose of trafficking need not be in a perpetual state of readiness to deal those drugs.
Conclusions
[32] I am satisfied beyond a reasonable doubt that Mr. Bomberry possessed the methamphetamine for the purpose of trafficking it. He had been trafficking, and he intended to continue trafficking, even if he was not trafficking at the moment of his arrest. An inference of possession for exclusively personal use is neither reasonably possible nor plausible in the circumstances. I am also satisfied beyond a reasonable doubt that Mr. Bomberry knew that some of the cash in his possession had been earned from trafficking methamphetamine.
Verdicts
[33] I find Mr. Bomberry guilty of possessing methamphetamine for the purpose of trafficking and possessing property obtained by crime. Guilty verdicts were previously entered for the simple possession of fentanyl, cocaine, and psilocybin.
Released: January 9, 2025
Signed: Justice Davin M.K. Garg
Footnotes
[1] The police also seized a further 10.81 grams of suspected methamphetamine. But since these substances were not certified as methamphetamine by Health Canada, I will limit my analysis to the confirmed 62.48 grams.
[2] The evidence is unclear on whether Mr. Bomberry also paid something for the psilocybin and fentanyl.
[3] It is unclear whether Mr. Bomberry meant he attended between 10am and 11am, or at 10:50am. The former interpretation is more likely. But nothing turns on the distinction.
[4] I do not consider the cheques from the police or the sale of e-bikes to represent steady income streams.
[5] This evidence fell within the “consumption habits” and “side effects” of the expert’s scope (see Exhibit 7).
[6] See Exhibit 6.