CITATION: R. v. Pico, 2016 ONSC 1470

COURT FILE NO.: CR15900003220000

DATE: 20160324

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

EDDY JIM AGUADA PICO

Defendant

Andrew Nisker, for the Crown

Bella Petrouchinova, for the Defendant

HEARD: February 22, 23, 24, 25, 2016

SPIES J.

Introduction

1Mr. Pico is charged with possession of methamphetamine for the purpose of trafficking on or about August 22, 2014, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”). He re-elected trial by judge alone and pleaded guilty to the included offence of possession and not guilty to the offence as charged. As a result, the sole issue before me is whether or not Mr. Pico was in possession of methamphetamine for the purpose of trafficking.

Admitted Facts

2Through the cooperation of counsel certain facts were agreed to including the following.

3On August 22, 2014, members of the Toronto Police Service were conducting surveillance of Mr. Pico in relation to a search warrant.

4The police followed Mr. Pico to a plaza where he entered two stores, one a supermarket and the other a Tim Horton’s. He was at the plaza for 19 minutes, from 4:07 p.m. to 4:26 p.m.

5Mr. Pico then continued to a Canadian Tire store nearby where he stayed for 10 minutes, from 4:35 p.m. to 4:45 p.m. When he exited the Canadian Tire store he was arrested.

6There is no evidence of what happened while Mr. Pico was in the stores.

7Mr. Pico was searched incident to arrest and the police located a soft black Oakley sunglasses case in his front right pants pocket. Inside that case were three baggies that contained crystal methamphetamine (“crystal meth”). The crystal meth and baggies are described as follows:

(a) A medium sized baggie containing 14.76 grams (0.521 ounces) of crystal meth;

(b) A small green baggie with Playboy logos on it containing 7.10 grams (0.25 ounces) of crystal meth; and

(c) A small clear bag with 9.72 grams (0.343 ounces) of crystal meth.

8Accordingly, the total amount of crystal meth found in Mr. Pico’s possession was 31.58 grams or 1.114 ounces.

9Mr. Pico was not in possession of any money, packaging, debt lists or a scale. He had in his possession one cellphone. No drug transaction was observed while he was under surveillance. Furthermore, the police did not observe Mr. Pico engage in any unlawful activity in the course of their surveillance.

10There were no agreed facts about the quality of the crystal meth. Mr. Nisker submitted that I could not speculate that the crystal meth in this case was of a low quality. He submitted that the certificate from Health Canada would state if any other substances were found and he referred to the evidence of Detective Margetson who believed the crystal meth in this case was of a high quality based on the size of the shards and the colour. In the end the issue of the quality of the crystal meth was not relevant to my decision so I make no finding in that regard.

Expert Evidence of Detective John Margetson

11Detective Margetson was tendered by Mr. Nisker to give expert opinion evidence in the areas of quantities and price, and the relationship between the two, undercover drug investigations, different methods of ingesting crystal meth, purchasing patterns, the physical appearance of crystal meth, his experience with people suffering from crystal meth addictions and those trafficking in crystal meth, drug indicia typically associated with crystal meth, drug packaging, the quantity and value of a typical hit, typical quantities sold on the street, how a bulk discount applies, risks associated with possession of the drug in general and street operations. He gave evidence; his report was not tendered.

12After Detective Margetson was examined on his qualifications by both Mr. Nisker and Ms. Petrouchinova, Ms. Petrouchinova advised that she accepted Detective Margetson’s qualifications in undercover investigations and indicia of trafficking but she objected to having him qualified to give opinion evidence on the issues of quantities and price of a typical hit and any evidence to do with users, consumption and purchasing patterns. It is her position, relying on R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, that such evidence is anecdotal, speculative and goes to the ultimate issue of whether or not Mr. Pico was in possession of crystal meth for the purpose of trafficking and is not admissible.

13In the course of submissions on this issue Ms. Petrouchinova suggested that she would be willing to hear all of the evidence of Detective Margetson and then make more specific arguments about what she considered to be inadmissible during her closing submissions. Accordingly, we proceeded on that basis and I heard the evidence of Detective Margetson, understanding that I would rule at the conclusion of the case as to whether or not any portions of his opinion were inadmissible. Before calling on Ms. Petrouchinova as to whether Mr. Pico elected to call evidence, I confirmed that she did not need a ruling prior to that election. Mr. Pico elected to call no evidence and so the only viva voce evidence was that of Detective Margetson.

Qualifications of Detective Margetson

14Detective Margetson has given extensive expert evidence in the areas of cocaine and heroin before the courts. Judges of this court have qualified him on three other occasions with respect to crystal meth, twice in 2013 and once in 2014. Ten of his 26 years as a police officer have included drug investigations as part of his mandate.

15Detective Margetson’s experience with crystal meth in particular began when he was with 51 Division, first as an Officer in Charge and then Team Supervisor from January 2007 to October 2011 and then as the Team Supervisor of the Major Crime Unit from June 2012 to September 2012. 51 Division is in an area that Detective Margetson described as a “hot spot” for crystal meth. Although in 2007 crystal meth was well-established in the drug culture, many officers were not familiar with it. Detective Margetson took it on himself to concentrate on investigating the trafficking of crystal meth.

16Detective Margetson testified that as a plainclothes officer he had been involved in several hundred drug investigations. Once he was with 51 Division, he was involved in investigating or obtaining information for about 100 drug investigations per year, on average, of which 20-30 would be undercover buys of crystal meth. Detective Margetson’s undercover team has bought crystal meth in amounts from a half gram to three to six ounces. In addition they would execute approximately 30-40 search warrants targeting crystal meth per year. On occasion when executing a search warrant Detective Margetson would encounter persons using crystal meth at the location to be searched.

17As a supervisor, Detective Margetson would decide if an undercover operation was viable and lawful and organize the team. He would supervise the undercover drug operations and wear the police protection kit, which allowed him to hear the conversation between the undercover officer and their target. Although this was to ensure the safety of the undercover officer, he was able to listen to their dealings and build his experience accordingly. He was also then responsible for overseeing the execution of search warrants, surveillance of drug trafficking and the seizures of drugs including checking the weights of any drugs seized.

18Detective Margetson testified that while at 51 Division he developed four continuous confidential sources specifically in the crystal meth subculture that taught him a lot about how this subculture worked. Two were from 51 Division and one was from north of Toronto and one from Scarborough. Although he had no sources from the Philippines, he did have a peripheral one from Southeast Asia. Detective Margetson testified that his sources gave him information continuously although two have died. When meeting with a source another officer is required to attend and since other officers in the Division had their own sources, Detective Margetson accompanied them, on occasion, when they were meeting their sources.

19Detective Margetson testified that he always wants to ensure that his sources are reliable as his reputation is at stake. He will rely on these sources when he prepares an information to obtain (ITO) a search warrant. Detective Margetson believes his confidential source information to be reliable because if it were not he would get “called out on it”. His undercover officers have to have a credible “backstory” in order to do deals and not be suspected of being police.

20Detective Margetson admitted, however, that for issues such as custom of the trade or usage levels he would not be proactive in checking out the accuracy of that information as it is not something that is included in an ITO. He would, however, look for consistency perhaps by going to the chat rooms frequented by users of crystal meth. He appreciates that this is not clinically based but in his view these are not areas where a source would mislead him. Furthermore, in the chat rooms there would be no conspiracy to mislead and these chat rooms have a reputation to maintain as well. If the information he gets from a source is consistent with what he sees on the chat room site then he believes that the person’s information has checked out.

21Detective Margetson also arranged to be added to the distribution list of emails coming from the RCMP that includes information from the United States DA and other services in Canada so he could see international drug reports and trends. He also frequented chat rooms frequented by users of crystal meth a minimum of once a week. This included three forums, erowie.org, drug-forums.com and bluelight.org, which contain chats concerning various drugs. Detective Margetson testified that he appreciated this information was not empirical or peer reviewed but that data is not available for drugs other than heroin. From these chat room forums he was able to confirm the accuracy of information he received from his sources as to what a typical dose would be for someone who wanted to try crystal meth as well as other consumption patterns. Although there are no clinical studies on crystal meth he would research the pharmacology of the drug as to why it is addictive.

22Detective Margetson was in Homicide from September 2012 through to October 2014 and during that time one investigation included crystal meth. In addition, during that time he kept in touch with his confidential sources and he provided helpful information from them to the detective who took over his job. He was not involved in drug investigations per se, however, during this period in time. He returned as the Team Supervisor of the Toronto Drug Squad in October 2014, a position he still holds.

23Detective Margetson admitted that at all times the investigative team deals with drug traffickers and not persons who only used drugs since they are looking to make a deal to buy crystal meth. He testified that the amount doesn’t matter since what they are after is a transaction where drugs are sold so they can arrest someone for trafficking. However, with respect to the persons that he has met who are part of the crystal meth subculture, he cannot recall anyone who was not addicted to crystal meth and also trafficking crystal meth to support their habit; a person he referred as an “addict trafficker”. He added that he has never come across a casual user of crystal meth which he attributed to the addictive quality of the drug. Although there might be variations all were what he considered to be heavy users. Detective Margetson testified that he is constantly on the lookout for information as to what constitutes a “hit” as that is necessary for a lot of his evidence as an expert.

24Detective Margetson testified that the other way he has obtained relevant information is that when persons are arrested for petty crimes such as shoplifting, he will debrief them and ask them about their drug use. Since this was not the reason for the arrest, he has found that these persons are willing to talk to him about this. Detective Margetson believes the information these persons provide him about crystal meth is reliable, as they have no motivation to lie. He does not offer these persons any money or other advantage in exchange for giving him information and he has found that a lot of people want to “tell their stories”. In relation to crystal meth, Detective Margetson has obtained information in this way more than 30 times.

25Detective Margetson also testified about the various courses he has taken. Crystal meth has been a component of many of those courses and he has lectured on this subject.

26Detective Margetson candidly admitted that there have been no clinical studies of crystal meth that he is aware of or for that matter any kind of study or empirical data concerning consumption patterns of crystal meth. There is no peer-reviewed literature on the subject of consumption patterns and trafficking patterns of crystal meth. He has not received any scientific training with respect to crystal meth in the areas of medicine toxicology, pharmacology or addiction.

27Detective Margetson testified that he does not consider himself a witness for the Crown or the defence and he acknowledged that he needs to be fair. He admitted that he, of his 52 times testifying as an expert, has only testified on behalf of the defence once but it was not in relation to crystal meth. He explained, however, that it is usually never necessary for the defence to call him. He has provided expert reports to the Crown where he has concluded that the evidence is not consistent with possession of a drug for the purpose of trafficking. In those cases that charge is not pursued and so he does not testify to that opinion.

Opinion of Detective Margetson

(a) Trafficking Patterns

28Detective Margetson testified that crystal meth is referred to as “T” or “Tina” as well as “ice”. It is sold by weight. At the “point level” it is sold in amounts less than a gram, referred to as a “point” or “points”; e.g., two points of a gram which equals 0.2 grams, or you could ask for a “half gram”. The next level is the three and a half grams, which is referred to as an “eight ball”, and after that in the amount of seven grams which is referred to as a “Cuban” or a “Q” or a “cutie”. Beyond that you could ask for a “half zip” or a “half O” which is 14 grams or half an ounce. There is no other jargon until purchasing an ounce which is referred to as an “OZ”, “OZip”, “Donut” or “Pack”.

29Detective Margetson testified that a buyer could ask for a “half zip” and the seller might only have 11 grams and sells the buyer what he has.

30In Detective Margetson’s opinion any time one of his undercover officers asked for more than an eight ball the officer was putting himself out as an addict trafficker or trafficker. Below that amount, if an undercover officer bought a “tester”, he was also portrayed as a dealer. The undercover officer would then try to move up to the multi-ounce level. In his experience the undercover officers have bought crystal meth in quantities between three and six ounces.

31Detective Margetson testified that the value of crystal meth can vary from one month to the next and depends on a lot of factors including supply and demand, the geographical location, purity, risk factors and the relationship between the buyer and seller. His opinion on price is intended to be an average, not absolute.

32According to Detective Margetson, when buying crystal meth it is common to be “shorted” and receive less than the represented weight. For example, if you order a Cuban which is to be seven grams it is not unusual to be shorted and only get 5.65 grams. As you go up in the amount bought, in Detective Margetson’s opinion, you will probably get a truer weight because the dealer will know that the buyer will not return if he is shorted. Buyers pay more attention to weight beyond the one gram level.

33With respect to the smallest bag of crystal meth in this case, which weighed 9.72 grams, Detective Margetson suggested it was possible that the amount of crystal meth in that bag could have started out higher but some of the crystal meth was taken out for personal use or sold. As already stated, there is no evidence of Mr. Pico actually selling any crystal meth.

34Given that two of the bags of crystal meth in this case contained more than standard weights, Detective Margetson testified that the amount of crystal meth that is sold to a buyer might be higher in weight than the standard weights, possibly attributed to the fact that the buyer was shorted a prior time and a dealer was making it up to the buyer. He did not say that this had ever happened in his experience, however, and so it appears this was speculation on his part.

35When he was asked about the medium-sized baggie in this case that contained 14.76 grams, 0.76 grams more than the equivalent to two Cubans, Detective Margetson agreed that that would represent a significant amount of cash lost if one was selling the additional amount in 0.1 of a gram amounts for $40 each.

36In Detective Margetson’s experience crystal meth for the most part is not sold on the street. You cannot just knock on someone’s door to buy the drug. Typically deals are made by phone and then a meeting place is set up, which is not the seller’s residence, but could be a stairwell in a random apartment building or a meeting in two cars. The amount of the crystal meth to be purchased and the price is negotiated over the phone so at the meeting a pre-packaged amount of crystal meth is handed over to the buyer in exchange for a predetermined amount of money. This allows the exchange to go quickly. The meetings are clandestine to avoid detection. Dealers will have stash houses so that they only have a small quantity of the drug on them at any point in time to avoid the consequences of not only robbery but more severe penalties if caught by police.

37According to Detective Margetson, the reason for this method of trade is that if the seller is going to be robbed the seller will only lose what the seller brought to the meeting. Furthermore, in his experience, a dealer’s customers will talk to the police so detection is also a concern. Detective Margetson agreed with the suggestion that the smartest thing to do is only transport the amount of crystal meth that is needed to each deal but if a trafficker is moving his “stash” or has gone to purchase from his supplier and is taking it home or to a stash house, then they would have those drugs on them. When asked about whether it would be typical for a trafficker to “dilly dally around”, Detective Margetson testified that he did have that experience when a trafficker was socializing with his buddies and so he would not agree that that is not possible but I note that appears to be only one case and that this behaviour is inconsistent with Detective Margetson’s evidence of how a typical dealer would operate.

38Detective Margetson agreed that scales, a second cellphone, money and debt lists are often indicia of trafficking in crystal meth. In cases where no cash is seized, Detective Margetson testified that this could be as a result of several scenarios. In some cases the dealer will have his money stashed somewhere else or there will be another person that holds the cash. It may also be the case that a dealer has gone to his drug supplier and dropped off cash in exchange for the amount of drug purchased and as a result have no cash on him. There may also be a stash location where a dealer may go to pick up preset bags of drugs for sale.

39Detective Margetson testified that generally, when police do an undercover buy in a large amount, the drug comes in one package. There are times, however, when they have received multiple packages that have been scaled out (i.e. weighed.) He agreed that the three bags of crystal meth seized in this case could have come from three different sources given the crystal meth was found in three packages with different packaging, but he would not agree that this fact suggested that they were, in fact, bought from two or three different places. He admitted, however, that he had not seen these amounts packaged so differently before.

(b) Consumption Patterns

40When Detective Margetson was being examined as to his qualifications by Mr. Nisker he acknowledged there is “quite a wide range” in a typical “hit” of crystal meth that depends on the user and whether they are going to feel a rush and their tolerance level and that it could range from 20 to 200 mg (0.02 to 0.2 grams) for a heavy user and could exceed that amount as well. Later in his evidence he testified that in his experience a typical hit is 0.1 of a gram (100 mg) although it can range up to 0.5 of a gram (500 mg) and that it depends on a number of factors including a person’s tolerance, weight and whether the person is taking other drugs at the same time. Detective Margetson also admitted that the amount of crystal meth used by a user can fluctuate over time. Someone may use more over two months and less for the next two months.

41Based on information from crystal meth addicts, Detective Margetson testified that they usually do not just use crystal meth once but rather tend to go on a “roll” over a two to three day period. A heavy user on a roll would use in the range of 1.5 to 3.5 grams of crystal meth over a weekend if that user were solely using it for themselves and no other stimulant was being used such as oxycodone to “bring them back a bit”. According to Detective Margetson this is not a hard and fast rule and one person might have an “extreme tolerance” and go a “bit higher”.

42Detective Margetson testified that the inference of trafficking in this case is based on the sheer amount of 31.5 grams in that even for a heavy user this quantity of crystal meth would permit 150 hits that averaged 200 mg (0.2 grams) each. In coming to this opinion he looked solely at the weight although he reiterated that there is nothing to prevent someone from buying this amount for their own use. Over a 24-hour period, someone might have 20 hits over the course of a three day weekend if you were “going hard” and using only crystal meth. Again, he questioned how you could support such a heavy addiction without selling as well.

43In cross-examination it was put to Detective Margetson that without more than the quantity of the drug he could only speculate as to the purpose for which someone had the drug in their possession. He responded that he could say what the quantity was “consistent with” based on the weight, custom of the trade and his experiences.

44Detective Margetson testified that he has never come across someone whom he believed was a “casual user” of crystal meth. Given the nature of the drug, everyone he has dealt with is what he characterized as a heavy user. He admitted that there might be a variation between one addict to another as to what being a heavy user means.

45Detective Margetson agreed that crystal meth is quite prevalent in the Philippines and the Philippine community in Toronto but I have no evidence that Mr. Pico is from the Philippines so did not find this evidence to be relevant.

(c) Pricing and Purchasing Patterns

46Detective Margetson testified that the price range for 0.1 gram of crystal meth is $10 to $20, the higher price being a price downtown where the drug has passed through more hands. The average price for 0.1 gram is $15. As the quantity increases the price decreases. The price for a gram ranges from $100 to $150. An eight ball ranges from $240 to $300 and a Cuban is sold for between $350 and $500, as you are starting to get a discount. A half ounce is sold in the range of $700-$800 and an ounce in the range of $1,500 to $1,700 although Detective Margetson testified that his undercover officers bought cheaper crystal meth in Burlington for $1,200 to $1,300 an ounce. At the ounce level the relationship between the buyer and seller also comes into play. The closer the buyer is to the “back end” the more the price comes down.

47Detective Margetson keeps a spreadsheet recording amounts they pay and this evidence is based on the averages from that information. He stated that an undercover officer will haggle over price but perhaps not as much as a real buyer and so it is reasonable to infer that if anything these prices are somewhat high.

48Detective Margetson testified that a user of crystal meth will generally buy enough for one day or at least not a long period of time. Detective Margetson agreed that a crystal meth user might stockpile the drug for two or three days but he had not seen any crystal meth user who had bigger “stashes” of the drug. Generally the traffickers who are also users are financially challenged and if a user was able to buy a large amount, then in his experience they would use a little and sell some at a profit to support their habit. Given the discount, if buying an ounce you could double your money.

49Detective Margetson did admit that there is nothing to prevent someone who has the money from going out to buy crystal meth for their own use in the gross amount found on Mr. Pico or for that matter a kilogram of the drug. Detective Margetson acknowledged that there would be quite a significant discount in price if buying the quantity of crystal meth found in Mr. Pico’s possession. However, Detective Margetson did not agree that it was logical for a committed crystal meth addict who had the financial resources, to buy $900 of the drug all at once versus buying it in smaller amounts and paying a lot more money. He said that what appears to be common sense does not apply when buying an illegal product in bulk. The risk of being caught is significant. There is also a danger in holding too much crystal meth at home because of home invasion robberies. In his experience “users talk”. He said that in his experience he is dealing with people who want to mitigate the risk. Detective Margetson gave an example of a wealthy user that he knew of who could afford to buy a couple of ounces of crystal meth at a time but that even he was selling to support his habit. He was constantly being robbed and eventually went from “riches to rags”.

50In the same vein it was suggested to Detective Margetson that since there is a risk with every drug transaction, that a heavy user of crystal meth might take the opportunity to buy a larger amount once rather than smaller amounts multiple times. Again, Detective Margetson did not agree. In his experience people stay away from holding large amounts because if they are robbed there is a larger loss and if caught there is a more significant penalty. He testified if caught with a “dime bag of crystal meth”, you would probably not get charged or go to jail. The risk is mitigated by picking up small amounts which have lower consequences if caught even though there is more opportunity to be caught. As already stated this is why dealers have stash houses.

51In Detective Margetson’s experience crystal meth is not being used out on the street or in a shelter. It is being consumed in homes, often in a social setting. It is also used during “raves”. He stated that a user would keep his crystal meth at home and that is likely where he would use it. If going out, he would take whatever he wanted of the crystal meth only and leave the rest behind to decrease the risk, if caught, of carrying more and I presume the risk of being robbed.

(d) Effects of Crystal Meth Addiction

52According to Detective Margetson, based on information he has received from his sources, the high from a hit that is in an amount that satisfies the user, will last from two to six hours. Since using crystal meth allows someone to stay up all night, a user could take a hit every six hours or so which would mean four hits per day.

53Detective Margetson testified that addiction to crystal meth affects one’s ability to make a living. A cycle forms where the user buys the drug and uses it and eventually the addiction takes over the person’s life. Detective Margetson was asked if someone who was a heavy crystal meth addict would be able to hold down a job. He acknowledged that early on in an addiction to crystal meth a person might be able to hold down a job but his experience is that anyone who is a heavy addict cannot remain employed. His sources were not working and were either trafficking or providing sexual favours or committing other crimes to support their habit. Detective Margetson admitted however, that some kinds of jobs allow for someone who is addicted to crystal meth to remain employed for a period of time. He had a recollection of people who worked at night such as cleaners using crystal meth to stay awake and also referred to roofing jobs. He was also aware of one case of a firefighter who was off on sick leave who was a heavy user of crystal meth and he knows of a successful singer from the Philippines who is addicted.

54I have some doubt as to whether or not Detective Margetson could give reliable opinion evidence on the issue of the effect of a crystal meth addiction on a person’s ability to work as he only had the information of what he was told by users and in this regard the scientific evidence of the impact of the drug on a person would be more reliable. Furthermore some of the examples Detective Margetson gave demonstrate that there are users of crystal meth who are holding down jobs. In any event, I found that this evidence has no relevance in this case as I do not know whether or not Mr. Pico is employed. He could have been a big lottery winner or living on an inheritance and still in the early stages of his addiction.

55Detective Margetson admitted knowing heavy users of crystal meth that were in “good shape” and that you could not tell by looking at them that they are drug addicts. For others, you could tell. He did not elaborate on that but I am aware of how crystal meth can destroy someone’s physical appearance. Again, although I question Detective Margetson’s ability to give evidence on this issue beyond his own observations as opposed to some scientific evidence, if it existed, this evidence is relevant because based on my observations of Mr. Pico, there are no outward signs that he is a user of crystal meth or any other drug. Based on his appearance, he may or may not be a user of crystal meth.

Analysis

The Positions of Counsel

56Mr. Nisker’s position is that the only reasonable inference to be drawn from the evidence is that Mr. Pico was in possession of 31.58 grams of crystal meth for the purpose of trafficking. He conceded that any evidence from Detective Margetson that expressed a conclusion on the ultimate issue should not be relied upon, although as I will come to I do not conclude that that would be fatal. He submitted, however, that I could make the following findings of fact if I accept the evidence of Detective Margetson:

(a) A typical crystal meth addict uses 0.1 to 0.2 grams per hit. An extreme dose would be 0.5 grams;

(b) The effect of crystal meth lasts up to four to six hours; and

(c) If sold at the 0.1 gram level, crystal meth would sell for between $10 and $20. If sold at the couple of grams level it would sell for $1,700-$1,800.

57Mr. Nisker accepted that there can be a “grey area” range of quantity of drug where personal use is still a possible inference. He suggested, for example, if in this case we were dealing only with an eight ball or a Cuban, the inference of use alone could be possible. He submitted that even five grams would be pushing what a user would ever have. He argued, based on his math and assuming hits of crystal meth of between 0.1 and 0.2 grams, that the quantity of crystal meth in Mr. Pico’s possession would last anywhere from 500 to 1,500 hours, or 9-21 weekends or 20-60 24-hour days or two-five months. He submitted that as a result the only reasonable inference is that Mr. Pico had this quantity of crystal meth in his possession for the purpose of trafficking.

58As already stated, Ms. Petrouchinova relies on the recent decision of the Supreme Court of Canada in Sekhon where the accused person was charged with importing cocaine and possession for the purposes of trafficking of 50 kg of cocaine. Mr. Sekhon was arrested when officers found the cocaine in a concealed compartment of his truck when he was stopped by border officers as he attempted to enter Canada from the United States. The key issue at trial was whether or not Mr. Sekhon knew about the cocaine. The court found that the trial judge had erred in permitting and relying on the evidence of a police officer qualified as an expert respecting the drug trade to testify that in his investigative experience he had never encountered a “blind”, namely a courier unaware of the cocaine in his or her possession. Ms. Petrouchinova submits that this is equivalent to the opinion evidence of Detective Margetson that this quantity of crystal meth must be for the purpose of trafficking and that that was Mr. Pico’s intention in possessing this quantity of crystal meth.

The Case Law

59Before 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.

60In 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).

61As Justice LeBel observed in his dissenting reasons (dissenting only on the issue of the application of the curative proviso), at para. 73:

A substantial body of case law supports the admission of evidence from experienced police officers on such subjects as the organization of the illegal drug trade, methods of transporting and selling drugs, methods for avoiding the detection of drugs, and drug jargon. [Citations omitted].

62LeBel J. described, at para. 77, the evidence of the expert that was not challenged on appeal more broadly as including the general background of cocaine importation schemes, including manufacturing sources and distribution chains, the primary importation routes, and points of entry into British Columbia from the United States, that importers commonly use off-road, four-wheel-drive vehicles to transport cocaine over land, that the cocaine is usually packaged in one-kilogram bricks when brought into Canada, the typical methods of concealment, the common methods of payment for cocaine shipments, the reasons why drug couriers are used, the common practices in courier recruitment, instructions that would typically be given to a drug courier, that the courier's fee is typically negotiated with reference to the nature and size of the shipment and the risks associated with cross-border transportation of cocaine, and in particular the risk of losing a shipment either because it is detected by the authorities or because it is stolen by a rival group.

63As for the evidence found to be inadmissible, Moldaver J.A. reviewed R. v. Mohan, 1994 CanLII 80 (SCC), [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).

64As LeBel J. stated, at para. 79, the evidence of the expert was equivalent to a statement that individuals in Mr. Sekhon’s position always know about the drugs and it was a short step from such evidence to an inference that Mr. Sekhon must have known about the cocaine. The evidence effectively amounted to an opinion that Mr. Sekhon possessed the mens rea for the offences with which he was charged, which was the ultimate issue in the trial.

65Justice Moldaver also referred to the dissenting reasons of Newbury J.A. of the court below that such evidence was “anecdotal” and highly prejudicial coming from a police expert. Moldaver J.A. observed, at para. 50, that:

This type of anecdotal evidence would appear to require the accused to somehow prove that, regardless of a particular expert’s past experience, the accused’s situation is different. Such a result is contrary to another fundamental tenet of our criminal justice system—that it is the Crown that bears the burden of proving the mens rea of an offence beyond a reasonable doubt. As the appellant points out, “such evidence would logically trigger a defence need to call evidence to refute such opinions…

66There are two cases from our Court of Appeal that have considered Sekhon that I am aware of: R. v. Solleveld, 2014 ONCA 418, where the accused were convicted of fraud, and R. v. Singh, 2014 ONCA 791, where the accused was convicted of possession of cocaine for the purpose of trafficking.

67In Solleveld, the Crown led evidence from a law professor who was qualified as an expert in international banking practices and “high yield” investment fraud. The court summarizes some of the evidence at paras. 8 and 9 and the examples given certainly seem analogous to the impugned evidence in Sekhon. For example, the expert opined that the appellants’ scheme purported to involve trading in letters of credit and that such trades were spoken of “[o]nly in the world in commercial fraud. There is no such thing in the real world”. When shown a particular document the expert testified he had seen such a document in virtually all of the high yield scams he had investigated and that a descriptor used by the appellants in several documents was a term typical of high yield investment frauds.

68On appeal it was argued that to the extent the expert testified that the documents and methods used by the appellants were typical of those used by fraudsters and indicated a fraudulent intent, it should not have been admitted in that it amounted to profiling and usurped the role of the jury to determine whether the appellants had the requisite intent for the offence of fraud. The court referred to Sekhon and concluded that the evidence met the four criteria set out in Mohan and concluded that the evidence did not depend for its relevance on the guilt or innocence of accused persons that the expert had encountered in the past but rather upon the expert’s knowledge of international banking and the types of documents that are properly and improperly used in the highly specialized sphere of activity (at para. 15).

69The court also found the impugned evidence did not tread near the “ultimate issue” for the jury in that it was generic evidence as to legitimate and illegitimate international banking practices and documents and steps were taken by the trial judge to insure the expert did not usurp the role of the jury. Reference was also made, at paras. 17-19, to the fact that the Supreme Court of Canada has repeatedly affirmed that the common law rule precluding expert evidence on the ultimate issue no longer applies in Canada: see R. v. B.(R.H.), 1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656.

70In Singh a large quantity of cocaine was found concealed in a load of electronic games contained in a commercial trailer driven by Mr. Singh. At trial the central issue was whether or not Mr. Singh knew the cocaine was in the trailer. Two written expert reports were admitted into evidence and their admissibility was not challenged at trial. On appeal the court found that elements of one of the expert reports raised obvious admissibility problems that the trial judge should have addressed.

71The expert report contained general opinions of the expert concerning the use of commercial vehicles by organized criminal groups to transport large amounts of contraband, particularly drugs, the role of drug couriers used by such groups to facilitate the transportation and delivery of contraband and what the expert described as “normal trucking industry practices” (at para. 17).

72Cronk J.A., speaking for the majority at para. 35, observed that although these general opinions addressed the “likely association” between an organized criminal group involved in the commercial transportation of contraband and the driver of a vehicle containing such contraband, as well as the “likely knowledge” by the driver of the presence of the contraband found in the vehicle and as such, inferentially at least, some of the statements concerning these matters came close to the expression of opinions on the appellant’s criminal culpability, the general statements did not include any explicit commentary on the appellant’s activities, or on his alleged knowledge of the cocaine discovered in his vehicle. She concluded, at para. 36, that as a result the expert’s opinions in this regard were admissible given his unchallenged and extensive qualifications to offer expert testimony on the overland transportation of illegal commodities.

73However, Cronk J.A. found, at para. 37, that the case-specific opinions on the accused’s alleged association with organized criminal elements, the accused’s knowledge of cocaine in his trailer and the accused’s credibility, strayed beyond the proper scope of expert evidence and were inadmissible and highly prejudicial to the appellant. The specific evidence found to be inadmissible is described at para. 24 and included:

a) The accused’s account of activities accounting for a four hour lapse of time was inconsistent with normal trucking practices and based on falsified log entries;

b) The driver [the accused] claimed the shipper placed a lock and a seal on the rear doors of trailer. However, at the time of inspection no lock was noted and the seal was different than the one placed by the shipper which is further evidence that trailer had been opened after being loaded with legitimate products;

c) Had the driver truly been unaware the trailer had been entered after being loaded, he would have expressed concerns immediately to border officials once he realized the lock was gone and seal was different. “He did not do so thus indicating he was aware that it had been entered”;

d) “It is my opinion that the driver, who was transporting a significant amount of contraband, has ties to an organized criminal group and had knowledge of the contraband aboard the trailer”; and

e) The driver arranged a legitimate load pickup with a purpose of having the appearance of normal transportation of cargo; or attempts to legitimize his real intent, which was the pick-up and transportation of the cocaine.

74With respect to these opinions, Justice Cronk found, at para. 39, that they concerned the “core, indeed the pivotal, questions before the trial judge”, namely whether on the whole of the evidence the Crown had established that Mr. Singh knew of the cocaine and whether his evidence denying such knowledge was credible. Referring to passages from Sekhon, Cronk J.A. found that these opinions were not necessary and in fact fell squarely within the trial judge’s expertise and domain.

75The other appellate decision that has considered Sekhon is R. v. Jacobs, 2014 ABCA 172, 312 C.C.C. (3d) 45. In that case the trial judge relied on expert evidence from a police officer who was qualified without objection on the issues of the use, packaging and distribution of cocaine, its pricing, the paraphernalia used in its consumption, consumption patterns, jargon including common street terminology relating to cocaine, practice and habits of traffickers and observed effects of cocaine. In this regard the expert gave evidence as to the amount a heavily addicted cocaine user would consume “at most”, that possession of both soft cocaine and crack cocaine indicated drug trafficking in that users typically prefer one form of the drug to another and that the packaging on the appellant’s cocaine was consistent with an intention to sell. The trial judge preferred the evidence of the expert over that of the appellant who testified that she was trying to avoid the risk of being caught posed by multiple encounters with drug dealers and that the soft cocaine was for herself and the hard cocaine for her companion.

76On appeal the criticisms of the reasonableness of the trial judge’s decision virtually all related to his reliance on the opinion evidence of the expert and particularly his opinion evidence regarding the consumption patterns of a casual user of cocaine. Although the expert in that case conceded it was possible, he said it was not typical that the appellant would possess two different sorts of cocaine for personal use. The expert conceded that 4.7 grams of cocaine was within the realm of what could be for personal use and that a casual user might purchase more cocaine at one time than they could use in a single evening but maintained that the circumstances of the case pointed to an intention to traffic.

77On appeal the court relied on Sekhon and concluded that the expert’s evidence regarding consumption patterns of casual users was of an exceedingly low quality given the lack of expertise of the expert on that subject and that it had no “discernable benefit”. The expert acknowledged that he relied on “information” received from other users, that there will be “anomalies” and that much of his opinion entailed speculation. The court found that taken together the weaknesses were fatal to the admissibility of the expert’s opinion (at para. 57).

78The court went on to find that even if the opinion was reliable, the trial judge did not know what it meant in absolute numbers and that the expert’s evidence of “10-15%” did not say “of what”. Even if that were known and the trial judge was satisfied it represented a sample size that supported the drawing of general inferences on a purely statistical basis, the trial judge did not know whether the appellant fit within the category of users with whom the expert had communicated over the years. The court concluded on this basis, at para. 57, that the evidence of the expert was of no probative value in determining whether the appellant possessed cocaine for personal use as opposed to trafficking. The court also expressed concern that the opinion of the expert was close to coming to an opinion on the ultimate issue in dispute (at para. 59). However, the court did find, at para. 66, that evidence relating to packaging, variety of drugs and quantity of drugs called for expert interpretation so that the trial judge could understand it in determining the question of whether the appellant's intention was to traffic or personally consume the cocaine which he possessed.

79For the reasons I will come to I find the Jacobs decision to be distinguishable given the qualifications and the reliability of the evidence of Detective Margetson.

80Sekhon has also been considered by a number of judges from this court. In R. v. Mulaj, 2014 ONSC 4405, Toscano Roccamo J. ruled on the admissibility of evidence from a police expert with respect to matters concerning patterns and rates of consumption and inferences to be drawn from the absence on the accused’s person of any tools for consumption. The defence argued that the evidence was not relevant or necessary and relied on Sekhon. After reviewing a number of cases and in particular Jacobs, Toscano Roccamo J. held that the contested evidence was not admissible. She found that the expert’s evidence in relation to the consumption patterns of crack cocaine was anecdotal in nature and somewhat dated as it was acquired over two years as part of a foot patrol in which he served nine years earlier. Again, given my views of the qualifications and the reliability of the evidence of Detective Margetson, this case is distinguishable.

81It is significant that in addition to concerns about qualifications, Justice Toscano Roccamo also noted that in her case the fact the amount of cocaine was only 4.3 grams limited the probative value of the expert’s evidence and given its proximity to the ultimate issue of mens rea, she was not persuaded that the evidence on this point was sufficiently probative or even necessary. She held, however, that the expert could give evidence about his actual observations of consumption by users so long as he did not seek to elevate his observations to suggest any “general rule of thumb that would have application from user to user” without more education or support from related fields of expertise (at para. 50).

82In R. v. Jackson, 2015 ONSC 3519, like the case at bar, the only issue was whether or not the accused was in possession of cocaine for the purpose of trafficking. Quigley J. considered the admissibility of proposed expert opinion evidence on a voir dire. It was proposed by the Crown that the expert, based on her experience as an undercover police officer on the Toronto Drug Squad, would give evidence relative to the quantities of drugs possessed by individuals, and whether particular quantities were likely possessed for personal consumption rather than for the purposes of trafficking. The expert evidence proposed in that case was that it would be “exceptionally unusual” for a street level purchaser to purchase up to a half ounce of crack cocaine (at para. 23).

83Based on the proposed evidence, Justice Quigley considered whether or not the Crown’s case, even at its highest, would permit him to conclude beyond a reasonable doubt that the purpose the accused held the drugs must be for trafficking in them. He noted the language used by the expert, which he observed suggested that there was a real and reasonable possibility of users purchasing such quantities (at para. 24) and concluded, at para. 27, that the amount of crack cocaine, 15.34 grams, was “not an egregious quantity, one which could never possibly be held for personal use. As such, there is more than one reasonable inference that can be drawn from the expert evidence, even if admitted.” As such, he found the accused guilty of only simple possession. Justice Quigley did not consider Sekhon although he did refer to both Mohan and Mulaj. Given the language of the expert report I find that this case is also distinguishable.

84In R. v. Aviles, 2015 ONSC 4580, Leach J. relied on the explanation given by the police officer as to the significance of certain evidence, whom she had qualified to give expert opinion evidence in support of the Crown’s position that the offender was in possession of controlled drugs for the purpose of trafficking. The evidence relied upon was as follows:

a) The presence of Phenacetin;

b) The presence of a digital scale;

c) The packaging of seized illegal drugs;

d) The quantity of drugs and their value which included the effects of each drug, common rates of consumption by drug users and user habits and the current street value of the various drugs found;

e) The presence of multiple cellular phones;

f) A fact a knife was found in the accused’s shoulder bag;

g) The location where the accused was arrested; and

h) The cash found in a seized wallet and in particular the currency denominations.

85I note that the evidence at subpara. (d) is the type of evidence that concerned Ms. Petrouchinova the most. Justice Leach found that the evidence that the officer gave that he had never encountered a user with four different drugs carried on them was not admissible as the corollary was that since the accused was found in possession of four different controlled substances, he was trafficking; in other words it went to the mens rea of the accused. She found this evidence raised concerns similar to those emphasized in Sekhon. Although she found this evidence might be necessary, it was not legally relevant in that while the officer may have encountered individuals in the past in possession of multiple drugs for the purpose of trafficking, their guilt in that regard should not be a factor in the independent determination of the guilt or innocence of Mr. Aviles (at para. 28).

86The authors of Drug Offences in Canada (MacFarlane, Frater and Michaelson) at s. 6:80.60.60, refer to a decision which I found helpful and alerted counsel to: U.S. v. Gonzalez-Rodriguez, Doc. 09-40889 (5th Cir., September 22, 2010) (“Gonzalez”). In that case the court accepted, at p. 20, expert opinion evidence with respect to the “business model”, namely methods of operation unique to the drug business of running large quantities of methamphetamine across the border from Mexico to the USA, including evidence as to the largest quantity of methamphetamine produced in Mexico, that drug organizations use couriers to transport across the border, that drug organizations often transport drugs by hiding them in seemingly legitimate places, that the couriers do not normally handle drugs, that the courier probably wouldn’t load drugs into a truck, that the expert was not surprised not to find the accused’s fingerprints on the drugs and finally that the two blocked drain holes were to mask the odour of drugs.

87The expert in Gonzalez was not permitted to give evidence that drug couriers generally have no criminal history or that when conducting investigations, the first thing the officer wants to know is whether the truck was carrying a legitimate load. The court reasoned that this was not simply an explanation that drug organizations conceal drugs in legitimate places, but rather a suggestion that officers look for legitimate loads to identify couriers, i.e. the accused is a courier because he had a legitimate load. In addition, evidence about the falsification of log books was not permitted as it suggested that the accused must have known he was carrying drugs because he falsified the log book; this connection must be made by the jury. Finally, evidence that the majority of people arrested at immigration checkpoints are drug couriers was not permitted. In other words, evidence which amounted to the functional equivalent of an opinion on the guilt of the accused was not permitted (at p. 16).

Conclusion With Respect to the Opinion Evidence of Detective Margetson

88With these legal principles in mind, I turn to the question of whether or not the opinion evidence of Detective Margetson that Ms. Petrouchinova objects to is admissible. To be admissible it must meet the four criteria set out in Mohan as applied in Sekhon and the Court of Appeal cases I have referred to.

89First of all, there is no exclusionary rule that applies here. To the extent that Detective Margetson opined on the ultimate issue, namely whether or not this quantity of cocaine was for the purpose of trafficking, if his evidence otherwise meets the Mohan criteria then it is not fatal. However, the closer his expert opinion comes to rest on the ultimate issue in dispute, the more I must scrutinize its probative value against its prejudicial effect: see Solleveld, at paras. 17-20.

90Secondly, save for the evidence Ms. Petrouchinova submits offends the principle in Sekhon, she did not suggest that Detective Margetson was not a qualified expert. That said, although not part of Ms. Petrouchinova’s specific concerns, I found at times that although Detective Margetson was honestly reporting his belief, for example, in terms of the effects of a crystal meth addiction, since his evidence was based on observations of the addict traffickers he has come into contact with, in this area scientific studies would be more reliable. I have already made some comments in that regard as I reviewed his evidence where I questioned whether or not Detective Margetson truly had the expertise to opine on the issue.

91In addition, there are some limitations to be considered with respect to Detective Margetson’s evidence as he has never obtained information from anyone who is just a user of crystal meth. Detective Margetson agreed with Ms. Petrouchinova that drug investigators do not concern themselves with only drug users. His evidence suggests that all users are also traffickers but no doubt that is because from a policing perspective he is only interested in the trafficking of crystal meth. It cannot be said that such persons do not exist. This limitation in Detective Margetson’s experience is important in this case when the defence is that there is a reasonable inference that can be drawn from all of the evidence that Mr. Pico’s possession of the crystal meth was only for the purpose of personal use.

92Mr. Nisker submitted that Sekhon cannot stand for the general proposition that anecdotal evidence from police officers cannot be relied upon. I have considered the fact that essentially all of Detective Margetson’s evidence is “anecdotal” in that it is based on “incidental observations or reports” rather than systemic research (Canadian Oxford Dictionary, 2nd ed.), as that was one of the concerns mentioned in Sekhon. In fact that could be said of most of the expert evidence on drugs coming from police officers as their evidence is largely based on observations and they are not trained in science; in the case of crystal meth, there is no science. Although it is not clear what the court in Sekhon meant by the term “anecdotal” in my view it was not intended to suggest that all anecdotal evidence of this nature is problematic. Rather in my view the court must consider the reliability of the anecdotal evidence particularly because it is not based on systemic scientific research.

93In the case of Detective Margetson, first of all I have no concern about the fact that he is a police officer and that he was called by the Crown. I found him to be very fair and balanced in expressing his opinion. Ms. Petrouchinova did not submit otherwise.

94I accept the submission of Mr. Nisker, that at least for the most part Detective Margetson’s evidence is reliable. To the extent his opinion was based on information from his confidential sources, given the length of time he has dealt with them and his reliance on them for the preparation of ITOs, I find the information to be reliable. Although with respect to issues such as custom of the trade or usage levels he admitted he would not be proactive in checking out the accuracy of that information, I accept his evidence that he kept up with information on the chat rooms he referred to and that he looked for consistency to determine if information from an informant checked out. He also gave a reasonable explanation for why his other sources of information, such as debriefing persons arrested for minor non-drug crimes would be reliable. Overall I find that Detective Margetson fits into the kind of experienced police expert witness referred to by Justice LeBel in Sekhon.

95The question remains, however, to what extent if any the evidence of Detective Margetson is inadmissible because it is not necessary and/or not relevant. In this regard the most helpful test that I found in the cases referred to is to consider whether or not the evidence is of the nature of “business model” evidence as referred to in Gonzalez or whether or not the relevance of the evidence depends on the guilt or innocence of accused persons that Detective Margetson has encountered in the past: see Solleveld, at para. 16. In addition, I have considered whether or not some of the evidence would be too prejudicial in that it would require Mr. Pico to prove that, regardless of Detective Margetson’s past experience, his situation is different.

96With these considerations in mind, I find that the following evidence of Detective Margetson is inadmissible:

a) That he has never encountered a user of crystal meth who has a “stash” of crystal meth;

b) That there is no such thing as a “casual user” of crystal meth, i.e. that everyone addicted to crystal meth is a heavy user;

c) That a heavy user of crystal meth cannot hold down a job and, therefore, is financially challenged and will traffic as well to support his addiction; i.e., what he referred to as the “addict trafficker” (although, as I have already commented, even some of the examples Detective Margetson referred to suggest otherwise.)

97As Ms. Petrouchinova submitted, the evidence of Detective Margetson that in his 26 years as a police officer he has never encountered a crystal meth user with a stash of crystal meth goes to the ultimate issue. Stating that users of crystal meth do not have stashes, and given by his own admission Mr. Pico had a “stash” of crystal meth in his possession, is the functional equivalent of stating that Mr. Pico cannot be just a user of crystal meth but he must be a trafficker as well. As the court noted in Gonzalez, at p. 17, just because Mr. Pico might fit a generic addict trafficker profile does not mean he is a trafficker. Furthermore, Detective Margetson relied heavily on the fact that a heavy user would be, as he put it, “financially challenged” but there is no evidence that Mr. Pico is financial challenged and Detective Margetson himself gave examples where that was not the case.

98Finally, this evidence is extremely prejudicial to the defence because Ms. Petrouchinova would not be able to effectively explore or cross-examine on this issue to raise a doubt as to whether or not there were other users of crystal meth who did not traffic, other than those experienced by the Detective Margetson, particularly when he admitted that he did not deal with anyone who was only a user.

99Ms. Petrouchinova also queried Detective Margetson’s expertise in how long a hit of crystal meth will last. She queried where he said that this evidence came from. I believe he testified that this information came from his sources but as Ms. Petrouchinova submitted there are many variables including the purity of the drug, a person’s tolerance and whether or not the person is using other drugs. Nevertheless, as I will come to, I have found this evidence to be admissible.

100The evidence that Ms. Petrouchinova objects to most vociferously is the evidence from Detective Margetson on the amount of a typical hit and other evidence of consumption patterns. On the one hand I understand her argument that this evidence is tantamount to saying that because of the quantity of crystal meth found in this case Mr. Pico must have intended to traffic because of the period of time it would take a user to consume this quantity of crystal meth and Detective Margetson has never encountered a user with such a stash. However, having reviewed the evidence of Detective Margetson, he never put his opinion that high. His evidence was generic in the sense that it was what in his experience is typical. He said that the quantity of crystal meth in this case was “consistent with” someone who was trafficking and that trafficking was an inference that could be drawn from this quantity but he was fair to add that there is nothing to prevent someone from buying this amount for their own personal use and did not say that this would be impossible.

101Given 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. His evidence, however, is limited by the observations he has made and the experience he has accumulated over the years. Had Detective Margetson gone on to say that it was impossible for someone to purchase such a quantity of crystal meth and still be a user his evidence would have been inadmissible because it would have suggested that, therefore, Mr. Pico must be a trafficker. It would have been impossible for Ms. Petrouchinova to challenge this in cross-examination.

102In 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.

Has the Crown Proven Mr. Pico was in Possession of Crystal Meth for the Purpose of Trafficking?

103In light of these conclusions on the admissibility of the evidence of Detective Margetson I turn to the main issue of whether or not the Crown has proven beyond a reasonable doubt that Mr. Pico was in possession of crystal meth for the purpose of trafficking.

104Mr. Nisker submitted that there is no evidence that Mr. Pico is a user of crystal meth or that he is heavily addicted to crystal meth. No tools of ingestion such as a pipe or needles were found. There is no evidence of any peripheral indicators such as lack of work, a legitimate source of income, such as selling a car or winning the lottery, which would permit Mr. Pico to purchase such an amount of crystal meth. There is no evidence that Mr. Pico has ever been in rehabilitation as a result of using crystal meth. The only evidence in support of the fact that Mr. Pico might be a user is that Detective Margetson testified that in his experience traffickers are users as well.

105Mr. Nisker relies on the Court of Appeal’s decision of R. v. Pham (2005), 2005 CanLII 44671 (ON CA), 77 O.R. (3d) 401, aff’d 2006 SCC 26, 209 C.C.C. (3d) 351, in support of his proposition that drawing an inference that the crystal meth was in Mr. Pico’s possession for personal use amounts to impermissible speculation in this case because there is no evidence of use or addiction to crystal meth. In Pham, the central issue at trial was whether the appellant had knowledge and control of the cocaine found in a black cloth purse in a bathroom of an apartment. Defence counsel argued that another person left the apartment and returned with the drugs or that someone else brought them in.

106At para. 22, the majority of the court found that this argument was not made on the basis of any evidence but merely as a “speculative consideration.” The court approved of R. v. Jenner, 2005 MBCA 44, 195 C.C.C. (3d) 364, which in turn referred to an earlier decision of that court where the Manitoba Court of Appeal held that raising a question and inviting the court to speculate as to the answer does nothing to overcome the body of evidence which overwhelmingly points to guilt and that this was a question only the accused could answer but he chose not to testify. I note that in Pham there was a strong dissent from then Chief Justice McMurtry. In considering this submission I have reviewed as well a more recent case from our Court of Appeal on this point: R. v. Bui, 2014 ONCA 614.

107I appreciate that alternative inferences must be reasonable and rational and not based on just what might be possible, and that the Crown does not have to prove its case to the point of absolute certainty. However, I do not agree that it would be speculative to draw a reasonable inference on the evidence in this case that Mr. Pico is a user of crystal meth. The inference that Mr. Pico is likely a user of crystal meth is established by the evidence of Detective Margetson who was very clear than many people he has encountered who traffic in crystal meth are also heavy users of the drug. Furthermore, Mr. Pico has pleaded guilty to possession of crystal meth but not guilty to possession for the purpose of trafficking. Clearly Mr. Pico does not have to testify and give evidence that this drug was in his possession solely for personal use. There is an available inference that he is a user of crystal meth.

108This begs the question, however, of whether or not Mr. Pico is also a trafficker of crystal meth. The onus is on the Crown to establish that the crystal meth was in Mr. Pico’s possession only for the purpose of trafficking or at least that he was an addict trafficker at the time of his arrest.

109The strongest evidence the Crown has in this regard is of course the sheer quantity of crystal meth found in Mr. Pico’s possession and the evidence of Detective Margetson as to typical consumption patterns. As I have already noted, however, Detective Margetson fairly acknowledged that there is no reason why a person who had the financial resources could not buy this amount of crystal meth.

110In considering the evidence of Detective Margetson and the “math” provided to me by Mr. Nisker, assuming the accuracy of those calculations, they were based on hits of between 0.1 and 0.2 grams of crystal meth. However, the evidence of Detective Margetson was very clear that there can be a wide variation and that a heavy user might use as much as 0.5 grams per hit. On that basis instead of 150 hits this quantity of crystal meth would permit in the range of 75 hits. At 20 hits per weekend, if as Detective Margetson said, a person was “going hard,” this does not seem to be such an egregious amount.

111There is no evidence that Mr. Pico would not be able to afford to pay for 31.58 grams of crystal meth. Again he does not have to prove that he could. Detective Margetson acknowledged there would be a considerable discount in price if this amount were purchased. In his experience, in a place like Burlington, crystal meth would cost $1,200 to $1,300 an ounce. I can only assume based on his evidence that a purchase of 31.58 grams or 1.114 ounces would cost in the range of $1,500 or somewhat more, which is not an outrageous amount of money. The fact that the typical drug addict trafficker that Detective Margetson has encountered could not afford to purchase this amount does not mean that Mr. Pico could not. There certainly is a financial incentive to buy crystal meth in bulk. As for the risks involved that Detective Margetson spoke of, as I will come to, the fact that Mr. Pico was in possession of this quantity of crystal meth makes no sense from a risk perspective whether he is only a user or a trafficker or an addict trafficker.

112I turn then to the other evidence I do have. First of all, I have considered the differences in the packaging and the fact there were three packages of different weights. Ms. Petrouchinova submitted that this evidence is neutral or points away from trafficking. Mr. Nisker relied on the differences in the packaging and submitted that if Mr. Pico was a user the only logical explanation is that he purchased the crystal meth the day he was arrested as otherwise he would not have all of it on his person as he would have kept it in a safe place. He also argued that the crystal meth was not packaged as if Mr. Pico had just purchased it.

113As I will come to, the fact that Mr. Pico had this quantity in his possession at all is puzzling whether he is a trafficker or a user or both. In terms of the fact there were three packages I agree this evidence is at least neutral. The smallest package was quite different in that it had playboy logos on it but it could have been purchased that way or have been ready to be sold that way, subject to the question about its weight.

114The conclusion that the nature of the packaging is at least neutral is strengthened when one considers the unusual weights of the three packages as compared to the typical weights for sale on the street and the practice of a dealer “shorting” on the weight. Given the evidence of Detective Margetson that a buyer is usually shorted, I find it is unlikely that these packages were prepared for the purpose of a particular sale.

115Mr. Nisker submitted that the half ounce package and the smallest package were ready to go. I disagree. The medium sized baggie contained 14.76 grams (0.521 ounces) of crystal meth, more than a “half Zip”, and the smallest package weighed 7.10 grams, more than a Cuban. Although 7.10 grams does work out to an even quarter-ounce of crystal meth, these weights are without the packaging and not at all consistent with the degree of shorting that Detective Margetson testified to. It is important to note, however, that this logic works both ways. I accept Mr. Nisker’s submission that the weights of the packages are not consistent with the typical weights one would expect Mr. Pico to buy, based on the evidence of Detective Margetson.

116With respect to this issue of the weight of the packages, I have also considered that there are possible explanations for the discrepancies that Detective Margetson gave including that the drug could have been sold to Mr. Pico in a larger weight to make up a shortage on another occasion or that he had it for sale in this quantity for that reason. Again it is impossible to say whether Mr. Pico’s possession was as a result of a purchase of the drug or for sale.

117Mr. Nisker submitted that the reason for the unusual weights of the packages was that Mr. Pico was trafficking and slowly going down in weight as he was selling. Mr. Nisker also relies on the fact that it was a Friday afternoon before a weekend when people typically want to party. However, I find this to be unlikely. If Mr. Pico was selling amounts of crystal meth from these bags it makes no sense that he would be carrying all three bags around and that the weights of two of the bags would be high. None of the bags were ready for sale in what Detective Margetson suggested was a typical weight for sale of crystal meth. Furthermore, even assuming Mr. Pico was selling small amounts at the point level, he had no packaging in his possession. In addition, selling this way on the street would be inconsistent with the way Detective Margetson suggested that crystal meth is typically sold by prearranged deals.

118With respect to the lack of cash on Mr. Pico, Ms. Petrouchinova submitted that this points away from trafficking or at the very least is neutral. I agree that it is neutral. Mr. Pico could have given all of his cash to whomever he purchased the drugs from. If he were selling as Mr. Nisker suggested, one would expect cash although Detective Margetson testified someone else could hold the cash.

119Ms. Petrouchinova also relies on the fact that there was no scale, no second telephone and no debt list which points away from trafficking. Mr. Pico was arrested with a cell phone and there is no evidence of any data from that phone to suggest criminal activity. At the very least the absence of these indicia of trafficking is neutral.

120The fact Mr. Pico had such a large quantity of crystal meth in his possession is very puzzling and does not fit a theory of either possession for personal use or trafficking. Detective Margetson was very clear that a dealer would minimize risk and not walk around with a large quantity of crystal meth as he could be robbed or caught by police and face a more severe sentence. His evidence that a typical dealer would only have the amount of crystal meth in his possession that had been pre-arranged, and exchange it for cash, makes sense. Similarly it makes no sense for Mr. Pico as a user to have this quantity in his possession rather than at least most of it in a safe place. It is highly unlikely a user would leave his home with this amount and be out on the street as it is much more than the amount he might consume over that weekend if he was going somewhere to party. Again, just like a dealer, he could be robbed or caught by police. As Mr. Nisker observed it would be expected that a heavy user would be aware of the risks involved in walking around with a large quantity of crystal meth.

121What makes this even more puzzling is that Mr. Pico was out in the middle of the day. As Ms. Petrouchinova submitted, this behaviour points away from trafficking. Regardless of the one example Detective Margetson recalled of a trafficker hanging out with his buddies, he was very clear that a trafficker would be risk conscious and would only carry a prepackaged amount for a quick pre-arranged sale. In this case based on the surveillance, Mr. Pico must have had the crystal meth on his person while he was shopping and in Tim Horton’s, presumably getting a coffee; certainly not what one would expect of either a user or a trafficker or both given the evidence of Detective Margetson.

122Ms. Petrouchinova pointed out that there is no evidence that Mr. Pico has a fixed address and submitted that he could be moving his stash of crystal meth from one place to another and that as such there is no reason to say that he must have just bought the crystal meth. I am not prepared to go that far as the evidence is clear that Mr. Pico had the means to purchase a significant amount of crystal meth – it would be speculating to consider that he had been given this amount or was holding it for someone else. Given the evidence of risk it is likely that he was moving the crystal meth from one place to another. That could well be from a supplier to a safe place but that still begs the question of whether or not he is just a user or a trafficker or both.

123In 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. As for why this amount was in his possession during the day given the risks involved will remain a mystery. For these reasons however, I am not satisfied that the Crown has proven beyond a reasonable doubt that the only reasonable answer to this mystery is that Mr. Pico was in possession of this crystal meth for the purpose of trafficking.

Disposition

124Mr. Pico would you please stand.

125For the reasons I have given I find you not guilty of possession of methamphetamine for the purpose of trafficking as set out in Count #1. However, I do find you guilty of the included offence of possession of methamphetamine given your admission that you had three bags of crystal meth in your possession at the time of your arrest totaling 31.58 grams.