ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 10-90000301
DATE: 20120621
BETWEEN:
HER MAJESTY THE QUEEN – and – ROY TONY DAVIS Defendant
H. Amarshi, for the Crown
E. Schofield, for the Defence
HEARD: June 11-15 and June 18 and 19, 2012
SPIES J.
Introduction
[1] Mr. Davis is charged with various drug offences and breach of probation orders in connection with his arrest on December 10, 2009, outside 841 Queen Street East (“841 Queen”). He re-elected trial by judge alone and pleaded not guilty to all of the charges.
[2] Mr. Davis was arrested by Officers Rahim and Shutt who, at the time, were with the Community Response Unit (“CRU”) of 55 Division for the Toronto Police Service (“TPS”). Before arresting Mr. Davis, Officer Rahim conducted a pat down search. He arrested Mr. Davis for possession of cocaine following that search. It is admitted that as a result of a further search incident to that arrest, Mr. Davis was found to have 7.01 grams of crack cocaine in his pants pocket.
[3] By reasons released June 15, 2012; my Ruling on the Defence Application to Exclude Evidence, [1] I dismissed Mr. Davis’ application for an order declaring that his rights under sections 8 , 9 , 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms were violated and that all evidence that was seized be excluded pursuant to section 24(2) of the Charter . The application had proceeded by way of a blended voir dire with the trial and the trial continued following my ruling. The Crown called an expert witness and two witnesses were called by the Defence.
[4] It is now not disputed that Mr. Davis is guilty of possession of crack cocaine as pleaded in count 1 of the Indictment. It is also admitted that at the time of his arrest Mr. Davis was on a probation order made by Justice Foster of the Ontario Court of Justice and that one of the conditions of that order was that he keep the peace and be of good behaviour. Possession of crack cocaine of course is a breach of that condition and Mr. Davis concedes that he was aware of this condition and that he understood it terms and meaning. Accordingly, Mr. Davis is also guilty of count 4. The Crown asked to withdraw count 5. That leaves count 2, possession for the purpose of trafficking and count 3, possession of proceeds of crime.
The Evidence
[5] The evidence of the two arresting officers and a manager of the government agency that runs 841 Queen was heard as part of the Defence application. That evidence is summarized in my ruling on that application and I do not intend to repeat it all here. I will, however, highlight the evidence that is important to the issues I must decide and summarize the additional evidence called by the Crown and the Defence after I ruled on the Charter motion.
The Arrest
[6] Mr. Davis was arrested coming out of 841 Queen, a government building which houses residents on three floors who are otherwise homeless or hard to house. Some residents have serious drug addiction issues. According to Mr. Speicher, who at the time in question was the Director of Housing for WoodGreen Community Services (“WoodGreen”), the government agency that manages 841 Queen, drug addiction problems were ongoing in this building. This evidence was confirmed by Vince Murphy who was a resident of 841 Queen at the time in question. He lived on the second floor and testified that as far as he knew, everyone on his floor was a drug user and most of the people in the building were.
[7] When Mr. Davis was arrested, the crack cocaine was found in one irregular shaped lump in a clear baggie in his right pants pocket. As the police continued to search Mr. Davis, they seized $132 from his left front pocket, $205 found in his wallet as well as a cell phone.
[8] Mr. Davis did not have any paraphernalia that might be used for selling drugs such as small baggies or a scale. He also did not have anything that could be used for smoking crack cocaine such as a pipe and/or lighter.
Video Surveillance of Mr. Davis at 841 Queen
[9] Ten video surveillance clips of the interior of 841 Queen, dated between December 1 and December 8, 2009, were played in court for Officer Rahim. Officer Rahim identified Mr. Davis as being in all of the clips shown in court and Mr. Schofield did not cross-examine Officer Rahim to challenge this observation. The observations I can make of Mr. Davis on these videos are relevant to the issues that I must determine. I will, however, disregard the evidence of the officers as to what they were told by Jessica Ostrum, the building manager, about Mr. Davis and Mr. Murphy and what the officers believed about Mr. Murphy and the other hearsay evidence they gave. That hearsay evidence was relevant to the Charter application but is not evidence I can rely on now.
[10] Based on the video clips that were shown in court, on these ten occasions, Mr. Davis is seen in the hallway of the building. He is seen knocking on the door of what Officer Rahim believed to be an apartment that belonged to Vince Murphy, sometimes leaving as no one answers, although only after waiting and pacing back and forth, and sometimes entering or leaving this apartment with Mr. Murphy after being in the apartment for just a few minutes or less. I accept the evidence of Officer Rahim that he was knocking on the door of Mr. Murphy’s apartment as Mr. Murphy was known to him and Mr. Murphy lived in the building. The officer’s evidence that Mr. Murphy was the person observed in the videos living in an apartment that Mr. Davis was attending, was not challenged.
[11] Officer Rahim testified about one video that he recalled seeing that was not part of the clips entered into evidence. He recalled Mr. Davis escorting people into Mr. Murphy’s apartment and those people appeared to him to be drug users based on people he had seen on the street and stopped and spoken to. His observations of this video were not challenged.
[12] Officer Rahim testified that the people Mr. Murphy was usually around were drug users and Mr. Davis did not look like a regular drug user. He did not know for certain that Mr. Davis was not a drug user but believed that he was not because he was younger, healthier and cleaner cut. In his experience most drug users are disheveled and not well.
Evidence of Officer John Birrell
[13] Officer Birrell gave evidence as an expert witness on various drug related issues including pricing and the modus operandi of traffickers in crack cocaine as well as buying patterns of users. Officer Birrell has been a Crown expert witness 35 times. He testified that on occasion he has given a report to the Crown opining that the amount of drugs seized is consistent with personal use. In those cases he has not had to testify as the Crown has not proceeded with the trafficking charges. Mr. Schofield conceded Officer Birrell’s expertise and did not challenge his evidence. Rather he relies on some of the answers given by Officer Birrell to support the Defence theory of this case. I found Officer Birrell to be a credible and reliable expert with extensive experience in the area of expertise for which he was tendered. I have no reason to doubt any of his opinion evidence.
[14] Although the questions Mr. Amarshi asked in order to illicit Officer Birrell’s opinion were quite properly asked using a hypothetical set of facts, essentially Officer Birrell was asked to assume certain facts that have been established in this case:
• the fact that Mr. Davis exited 841 Queen, and that this was a building for hard to house individuals;
• that Mr. Davis was in possession of 7.01 grams of crack cocaine, had $132 in cash in his left front pocket and $205 in cash in his wallet and a cell phone.
[15] Based on those assumed facts, which of course are the facts of this case, Officer Birrell gave the following opinion. In his opinion, although he was not familiar with 841 Queen per se , community housing buildings generally are hotspots for drug activity. One could expect to find users and dealers in those areas. He testified that a dealer will often find a user in the building who is willing to allow the dealer to deal from his apartment in exchange for a small quantity of cocaine. A lot of users will then know the apartment where they can go to buy crack cocaine. He described this as “quite common” and something that he “sees a lot on the street”. It is the theory of the Crown that this is what happened in this case and that Mr. Murphy was the one who let Mr. Davis, the dealer, use his apartment in exchange for some drugs.
[16] Officer Birrell had a lot to say about the 7 grams of crack cocaine which he testified is a substantial amount of crack cocaine. It is considered a quarter ounce on the street. Seven grams would also be considered two eight balls. In his opinion it is much more than you would “normally” find on a user.
[17] He testified that “normal usage” would be .05 to .15 of a gram of crack cocaine to smoke at one time; on average .1 of a gram for a “hit”. As such 7 grams would be enough for 70 single hits. A single hit of crack cocaine can be purchased for approximately $20 and is called a “20-piece”. The average size for a 20-piece is .1 of a gram or a little bigger. On this basis the sale of 7 grams would generate about $1,400 if sold at the 20-piece amount. To purchase wholesale however, it would cost approximately $400-$500 if purchased in bulk. This is a ballpark number: the price could be a little more or less depending on your relationship with the dealer. In his opinion, a person with 7 grams would be a low level street level dealer. Officer Birrell said that paying somewhere between $250 and $300 for a quarter ounce was pretty low. He said it was not impossible but he would expect to pay more.
[18] Officer Birrell also found the presence of cash to be significant. Users usually spend what they have to buy crack cocaine. He also found the fact that the money was found in two separate locations to be odd. In all the drug dealings he has done on the street he has never seen a drug dealer put money in his wallet. Officer Birrell did not put a lot of weight on the presence of a cell phone.
[19] Officer Birrell denied that it would be common for a dealer with this much crack cocaine to have a scale on his person. He testified that at the 20-piece level the quantity of crack cocaine is generally not weighed. Instead the amount is eyeballed by breaking off a piece. It’s only if someone is selling grams or eight balls that a scale would be used.
[20] Officer Birrell testified that it is quite common for users to have some sort of smoking device on their person such as a lighter and/or pipe. The fact none were present here is another factor that supports his opinion that this person was a dealer.
[21] Based on these facts, and for these reasons, Officer Birrell opined that the defendant was a low level street level dealer.
[22] Officer Birrell also gave opinion evidence about crack cocaine users. He has spoken to a few hundred or more users over the years. He has heard some users say that they use up to an eight ball of crack cocaine per day but he considered this bragging. In his opinion a heavy user would use in the range of a couple of grams per day and so 7 grams would last three to four days. For a casual user it would last one to two weeks. When asked if it was possible to use one gram of crack cocaine per hour, he said that was “pretty quick”. He had heard of people injecting crack cocaine but it had never been described to him. His opinion is based on what is “common”.
[23] In Officer Birrell’s opinion, typically a user would not have this much crack cocaine as it is more than they can afford. They also wouldn’t want to be arrested with this quantity as they would risk being arrested for possession for the purpose of trafficking. Although he was not asked this, obviously if a user had just bought this quantity of crack cocaine they would have it all in their possession. Although 7 grams would be more than a user would normally have in his possession, Officer Birrell said it was not impossible. He also said that a heavy user would not normally have this amount in his possession at one time. Officer Birrell agreed it would make sense for a heavy user to buy in bulk but then they would sell some for a profit to buy more since this quantity would be more than they would need in the short term. In other words, someone who is not a crack user buys and sells crack for a profit. A crack addict buys and sells for a profit in order to fund his addiction.
[24] On the Defence theory that Mr. Davis is a user who got some extra cash and was able to buy this kind of quantity of crack cocaine to get a bulk discount and pay a much cheaper price than buying in small amounts, Officer Birrell opined that such a user would likely still sell some of it to make a profit to feed their habit. He said it was “not normal” for a user to keep a large quantity of crack without selling some for a profit.
[25] Officer Birrell also commented that heavy users of crack cocaine cannot maintain themselves and tend to look disheveled. Some have burnt fingers from holding the pipe. Their teeth are also very dirty. He agreed with Mr. Schofield that users may intermingle when smoking crack cocaine.
[26] Officer Birrell testified he did not know if Mr. Davis was a crack addict. When asked if his opinion would change if the person in question was an addict, Officer Birrell said that in his opinion that person would still be selling some of the crack cocaine to feed their habit.
[27] Officer Birrell based his opinion on what is happening “normally on the street”. His opinion is based on what is normal or probable. When asked what he meant by “normal” and “common”, Officer Birrell said he was talking about the “large majority” of cases. In response to many of Mr. Schofield’s questions, he testified that anything is possible.
Analysis
Application of W.D.
[45] The first issue is whether or not the principles set out in the decision of the Supreme Court of Canada in R. v. W.(D.) apply, given that Mr. Davis did not testify. In this case, I have the evidence of Mr. Murphy and Ms. Davis who were called on behalf of the Defence, and the statement given by Mr. Davis to his mother admitting to being a user of crack cocaine.
[46] The principles of W.(D.) do apply in these circumstances; See R. v. B.D where the Court of Appeal concluded at para. 114 as follows:
What I take from a review of all of these authorities is that the principles underlying W.(D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep. Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown's case, the trial judge must relate the concept of reasonable doubt to those credibility findings. The trial judge must do so in a way that makes it clear to the jurors that it is not necessary for them to believe the defence evidence on that vital issue; rather, it is sufficient if - viewed in the context of all of the evidence - the conflicting evidence leaves them in a state of reasonable doubt as to the accused's guilt… In that event, they must acquit.
[47] For these reasons I conclude that the principles in W.(D.) apply to the Defence evidence. If any of the evidence favourable to Mr. Davis leaves me with a reasonable doubt then he must be acquitted. If that evidence does not leave me with a reasonable doubt, I must still assess whether the Crown has proven Mr. Davis’ guilt beyond a reasonable doubt. However, in assessing this evidence, I am entitled to consider it in the context of all of the other evidence.
Circumstantial nature of the Crown’s case
[52] The central issue in determining counts 1 and 3 is whether or not the Crown has established beyond a reasonable doubt that Mr. Davis had the crack cocaine in his possession for the purpose of trafficking. Since there is no evidence of Mr. Davis actually trafficking in crack cocaine, on the question of intent, the Crown’s case is entirely circumstantial.
[53] In a case like this, after assessing and weighing the evidence, I may only enter a verdict of guilty if there is no other reasonable inference that can be drawn from the evidence other than that indicating that Mr. Davis had the crack cocaine in his possession for the purpose of trafficking and that some or all of the money in his possession was from selling crack cocaine. If any of the Defence inferences raise at least a reasonable doubt about the Crown’s theory, Mr. Davis must be acquitted.
[63] Although in my view Mr. Davis very likely had the crack cocaine in his possession for the purpose of trafficking, I have concluded that the Defence has raised a reasonable doubt on the issue of why Mr. Davis might have had the crack cocaine and cash in his possession. A rational and reasonable inference that can be drawn from the evidence is that Mr. Davis was a crack cocaine addict, that he had just bought the crack cocaine found in his possession using some of the balance of the money he received from the sale of his car, that he purchased this quantity of crack cocaine for personal use in order to save some money and that he did not intend to sell any of it. Given my conclusion that this inference can also be drawn from the evidence, I am not able to render a verdict of guilty based on the circumstantial evidence. The fact Mr. Davis is probably or likely guilty is obviously not enough.
[64] For these reasons I find that the Crown has not proven that Mr. Davis is guilty of counts 1 and 3 beyond a reasonable doubt.
Disposition
[65] Mr. Davis would you please stand.
[66] For the reasons I have given, I find you guilty of counts 2 and 4. I find you not guilty of counts 1 and 3. Count 5 shall be marked withdrawn at the request of the Crown.
SPIES J.
Released: June 21, 2012