R. v Peterson, 2016 ONSC 2855

COURT FILE NO.: 14-511 DATE: 2016/05/09

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Frances Brennan, for the Crown

• and -

ALBERT PETERSON Self-representing

HEARD: February 17-18, 2016

LEACH J. (ORALLY)

[1] The accused, Albert Peterson, is charged with the following five drug-related offences:

• possession of cannabis marihuana for the purpose of trafficking, contrary to s.5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c.19, (“the CDSA”);
• possession of methylenedioxyamphetamine (MDA) for the purpose of trafficking, contrary to s. 5(2) of the CDSA;
• possession of methamphetamine for the purpose of trafficking, contrary to s.5(2) of the CDSA;
• possession of MDA, contrary to s.4(1) of the CDSA; and
• possession of methamphetamine, contrary to s.4(1) of the CDSA.

[2] The charges stem from execution of a Criminal Code warrant, on April 1, 2014, in relation to a residence located at 142 Grange Street, (and primarily the upper floor of that residence), here in the City of Stratford.

[3] At trial, the Crown led evidence from a civilian witness who lives on the lower floor of that residence, (Richard Campbell), two police officers involved in the execution of the search warrant on that residence, (Constable Robert Menzies and Detective Constable Gerald Schuurman), as well as another officer, (Detective Constable Terry Westlake), with expertise in the possession of controlled substances for the purpose of trafficking.

[4] With the exception of Detective Constable (“D.C.”) Westlake, all of the Crown’s witnesses were cross-examined, to varying degrees, by Mr Peterson. However, Mr Peterson chose not to cross-examine D.C. Westlake, as he expressly did not dispute that officer’s expert opinion that the relevant substances and items found, in what I subsequently will refer to as the “third bedroom” on the upper floor of 142 Grange Street, indicated possession of the substances for the purpose of trafficking.

[5] As was his right, Mr Peterson did not testify at trial, (and I draw no adverse inferences whatsoever from that). However, Mr Peterson did call his daughter, Grace Mooney, as a witness. She in turn was cross-examined by Crown counsel.

[6] Although the majority of evidence therefore was led by the Crown, I am mindful of the reality that quantity of evidence does not necessarily prevail over quality of evidence, and that I am entitled to prefer the evidence of even one witness to that of many contrary witnesses.

[7] I also have in mind, throughout my assessment of the evidence and analysis that follows, the presumption of innocence and the burden of proof that lies on the Crown.

[8] In particular, in this case, like all criminal cases with very few exceptions, the starting point for any analysis is the presumption of innocence and the burden of proof upon the Crown. According to the constitutional guarantee in s.11(d) of the Charter of Rights and Freedoms, Mr Peterson is presumed to be innocent. That presumption of innocence remains with him throughout the trial, from beginning to end, and unless and until the Crown establishes his guilt with respect to any and all of the alleged offences beyond a reasonable doubt. That is a heavy burden, and never shifts.

[9] With those introductory comments in mind, I turn now to a review of the underlying evidence in this case.

Evidence – General Facts

[10] While I will have more to say about certain aspects of that evidence later in my reasons, the following findings form the basic context of my further analysis:

• On the property known by its municipal address as 142 Grange Street, here in the City of Stratford, is a residence described as a “basic” two floor house, with an attached garage.
• Mr Campbell, (brother-in-law of the accused), moved into the house with his wife Lorraine, (the sister of the accused), and the couple’s children, approximately 6 or 7 years ago. Although the house previously had been divided into two separate residential units, (one on the ground floor and one on the upper floor), the Campbell family took steps to return the house to a single dwelling, with a lower floor and upper floor.
• In the months leading up to April 1, 2014, the upper floor was accessed by a staircase which ascended from an area immediately inside the front door of the house, and was separated from the lower areas of the home only by an interior door. The upstairs room configuration, (which I will describe in words, but which is more readily understood by reference to a diagram prepared at trial by Mr Campbell and marked as Exhibit 1, and a diagram prepared by Detective Constable Schuurman marked as Exhibit 2), included what originally were four bedrooms and a bathroom, connected by a hallway generally running from the front of the house towards the rear of the house. In particular:
  • As one reached the top of the staircase, an entrance immediately to the right led to a bedroom at the front of the house; (“the front bedroom”). That room apparently has always been used as a bedroom.
  • Almost directly across from the doorway to the front bedroom was an entrance to what I will call “the second bedroom”, which was situated towards the centre of the house, as one moved from the front of the building to the rear of the building. Although the second bedroom had at times been used as a “living room” for watching television, I accept the testimony of Mr Campbell that, in the months leading up to April 1, 2014, it once again was being used principally as a bedroom. During his regular visits to the upper floor of the house during that time, Mr Campbell could see that a futon bed was being left open and set up in the second room on a permanent basis, with a constant distribution of clothing making it clear that the area was being used as a bedroom.
  • Moving down the upstairs hallway to the rear of the house, one passed a small bathroom on the left.
  • As one reached the end of the upstairs hallway, towards the back of the house, an entrance to the left led to what I will call “the third bedroom”. That room also apparently has always been used as a bedroom. On April 1, 2014, it was furnished with a bunk bed and dresser, (positioned respectively in the northwest and southwest corners of the bedroom, against the west side wall of the house), and a large black leather armchair, (positioned against the north wall of the bedroom and house, near the bunk bed). The bedroom also had a large shelf, running along the room’s east wall, which separated the third bedroom from a kitchen.
  • Finally, as one reached the end of the upstairs hallway, towards the back of the house, an entrance to the right led to a fourth bedroom which had been turned into a kitchen area, (“the kitchen”), during the period when the upper and lower areas of the house had been separated into two distinct residential units. I accept the testimony of Mr Campbell, Constable Menzies, and Detective Constable (D.C.) Schuurman that the room remained a kitchen, (rather than a bedroom), up until April 1, 2014.
• In the months leading up to April 1, 2014, Mr and Mrs Campbell continued to live principally on the lower floor of the house, while the upstairs of the house was being accessed regularly, (via the home’s front door and stairwell), by three specific individuals: the Campbell’s adult son Ryan; Ryan’s friend Dylan Segal, (“Dylan”); and the accused. In particular:
  • Ryan occupied the front bedroom upstairs, where he was visited regularly by his father at least 1-2 times each week.
  • I accept the testimony of Richard Campbell that, during the months leading up to April 1, 2014, the second bedroom upstairs was being used as such by Dylan. During Richard Campbell’s regular visits with his son Ryan, Dylan usually was seen in that room, along with his clothing, and his actions in relation to the clothing and furnishings there made it clear to Richard Campbell that Dylan was using the area as his bedroom.
  • From October of 2013 to August of 2014, “because he needed a place to live”, was not working, but receiving government assistance, the accused maintained a residence at the home of his daughter Grace Mooney, at 22 Cobourg Lane in the City of Stratford, in respect of which he paid rent of $350.00 per month and contributed towards the purchase of groceries. However, Ms Mooney candidly indicated that her father was free to come and go from the house as he pleased, that Ms Mooney frequently was absent from her home while she was working, (at varied hours and putting in extra shifts), that she did not always go downstairs to “check in on” her father “to see whether he was sleeping in his bed or not”, that she accordingly could not say for sure how many nights he slept in her house, and that he possibly was away from the residence at 22 Cobourg Street for “more than a couple of days at a time” during the aforesaid eight month period. Moreover, during the months leading up to April 1, 2014, when Richard Campbell was not absent from home to work, (between approximately 4am to 3pm), he also would see the accused upstairs at 142 Grange Street, or coming from that area of the home, at least 4-5 times each week, with such observations usually occurring at irregular times between the hours of 5pm and 11:30pm. (In that regard, I note Ms Mooney’s confirmation that, as relatives of the Campbells, she and her father were welcome to come and go as they pleased vis-à-vis the downstairs and upstairs areas of 142 Grange Street, entering through the usually unlocked front door without knocking.) Mr Campbell also could tell from sounds of movement upstairs, (clearly audible downstairs because of the home’s age), that someone frequently was using the third bedroom as a bedroom. Mr Campbell believed that person to be the accused, based on Ryan’s known occupation of the front bedroom, Dylan’s known occupation of the second bedroom, and the noted comings and goings of the accused.
  • In the course of examination-in-chief and cross-examination, certain additional evidence was offered by Mr Campbell concerning statements allegedly made to him by his son Ryan, (who was not called as a witness at trial), and his wife Lorraine, (who unfortunately died from an illness, before trial, on December 30, 2014). These included alleged express indications from Ryan that he was living in the front bedroom of the upstairs while Dylan occupied the second bedroom and the accused the third bedroom, as well as alleged express indications from Lorraine that she was permitting the accused to stay in the third bedroom of the house during the months leading up to April 1, 2014, so that she could help her brother with accommodation while he hopefully would assist in deterring the presence upstairs of certain undesirable individuals. While no formal objection was taken to the admission of such evidence, I am sensitive to its hearsay nature, and generally prefer reliance on Mr Campbell’s testimony concerning his personal and direct observations, (both visual and auditory), which were tested by cross-examination. Having said that, I note that Mr Peterson’s himself apparently wanted me to consider and rely upon such hearsay statements attributed to his sister Lorraine, insofar as Mr Peterson elicited similar evidence during his examination-in-chief of his own daughter and witness, Grace Mooney. Moreover, in my view, the hearsay evidence of statements attributed to Lorraine Campbell, at least, bear the hallmarks of necessity, (insofar as Mrs Campbell sadly died before the trial and accordingly was unable to give evidence directly about such matters), and reliability, (insofar as Mrs Campbell seems to have made multiple, contemporaneous and consistent statements about these particular matters to both her husband and her niece, before the nature of Mr Peterson’s presence in the upstairs of 142 Grange Street became an issue, and without any discernible reason or motivation to distort the truth when speaking with her spouse and niece about such matters).
• During the months leading up to April 1, 2014, (and after the accused started to frequent the upstairs area of the house), Richard Campbell noted and was troubled by an increasing number of individuals paying relatively short visits, (approximately 10-15 minutes in length), to the upstairs area of the house. There frequently, (but not every night), would be at least 3-4 such visitors in the evening. Mr Campbell did not know who many of the visitors were, but considered a number of them to be unlikeable and untrustworthy.
• By April 1, 2014, the Stratford police had obtained information from a confidential informant, indicating that Methamphetamine, Marihuana and other prescription drugs were being trafficked in and from the house at 142 Grange Street by the accused and his nephew Ryan Campbell. Moreover, further investigation, (including surveillance and the arrest and search of persons leaving 142 Grange Street), had generated further information supporting such a conclusion, and the police obtained a warrant to search the premises. At the time, occupants of the house were thought to include Mr Peterson, and this was brought to the attention of officers who would be participating in execution of the search warrant. (It should be noted and emphasized that evidence in that regard, concerning circumstances leading to the police obtaining and executing the relevant search warrant, was provided only for context and narrative, to explain how and why the police came to enter and search the residence at 142 Grange Street on April 1, 2014. The constitutionality of the search was not raised in this proceeding, and Crown counsel expressly confirmed that no evidence relating to how and why the search warrant was obtained was being relied upon, in any way, to establish the essential elements of the charges set forth in the indictment. I accordingly place no such reliance on that evidence.)
• Early in the morning of April 1, 2014, Ms Mooney contacted her father, by text messaging, to speak with him about his paying her rent money that day. In response, the accused asked his daughter to come and meet with him on the second floor of 142 Grange Street, which she understood to be rented by her cousin Ryan Campbell and Ryan’s friend Dylan. (Ms Mooney’s evidence in that regard, and further evidence of her understanding that the accused was asked by his sister to attend at the upstairs of 142 Grange Street to assist with rent collection and deter the presence of undesirable visitors and activities, was inherently hearsay. Ms Mooney did not live at 142 Grange Street, was not an immediate party to any such rental arrangements, never saw her father collect rent or remove anyone from the upstairs area of 142 Grange Street, and claimed to have received all of her information in that regard during conversations with her deceased aunt, Lorraine Campbell. I accordingly am sensitive to the hearsay nature of such evidence. However, once again, neither party to this trial objected to the admission of such evidence. To the contrary, as noted above, both parties seemed to desire the admission of such evidence, and in my view there were considerations of necessity and reliability that would justify its receipt in any event.) Returning to the morning of April 1, 2014, Ms Mooney arrived at 142 Grange Street at approximately 9:30am, entered the front door of the house, and proceeded up the stairs. When she reached the second floor, she saw that there was “a whole bunch of people” in what she understood to be “the living room”; i.e., the room I have described above as “the second bedroom”, in which Ms Mooney could see the futon bed noted above. She looked into that room to search for her father, but he was not there. She nevertheless could see that the people in the second bedroom obviously were using drugs, by smoking the drugs with the assistance of bongs and pipes; an activity which Ms Mooney personally does not approve or condone, (although she was not surprised by her observations, as she had seen people smoking drugs in the upstairs of 142 Grange Street on earlier occasions). Returning to the events of Ms Mooney’s visit to the house on the morning of April 1, 2014, when she failed to locate her father in the second bedroom, she was approached at that point by her cousin Ryan, who informed Ms Mooney that her father was in “the back room”; i.e., what I have described as “the third bedroom”. Ms Mooney then quickly proceeded to that room, where she found her father sitting in the chair located there. She retrieved a soda pop from what I have called “the fourth bedroom” or “kitchen”, before returning to the third bedroom to sit on the lower bunk bed and visit with her father, who was still sitting in that bedroom’s chair, for approximately 90 minutes. Ms Mooney says that she visited with her father there, as the other areas of the upstairs had too much smoke and too many people, and she felt the people using drugs there were “pathetic”. Ms Mooney also says, and I accept, that when she sat on the lower bunk bed, during her visit, it did not look as it did at the time of Exhibit 3C; i.e., a photograph taken by the police later that day, which shows, inter alia, (and as described in more detail below), narcotics, a digital scale, various pill bottles, a debt list and a cellular phone lying out in plain sight on that lower bunk bed. Echoing her earlier indication that she does not condone the use of drugs, Ms Mooney emphasized that her life “does not consist of stuff like that”, that she does not hesitate to make her feelings in that regard “absolutely clear” to others, and that had she seen such items lying out in plain sight on the lower bunk bed, she would “honestly would have lost [her] mind, freaked out, and took off”, because the items obviously were associated with drug dealing.
• At approximately 11:10am, on the morning of April 1, 2014, the accused and Ms Mooney were joined in the third bedroom of 142 Grange Street by John Young, (whom Ms Mooney knew from high school, and also referred to as “Johnny Blaze). Just after Mr Young entered the third bedroom, Ms Mooney departed, no later than 11:15am, in order to go home and change before proceeding to her place of work. In doing so, she failed to take her father’s promised $350.00 of rent money with her, (although she had seen him place cash in the pocket of his sweater during their conversation, after starting to count it). In that regard, Ms Mooney indicated that she did not really have a pressing need for the rent money from her father, and that the two of them often let such financial arrangements between them “sit” for periods of time.
• At approximately 12:03pm, on April 1, 2014, the aforesaid search warrant was executed with the assistance of the police Emergency Response Unit, (or “ERU”), whose members included Constable Menzies. Members of the police Street Crimes Unit, (or “SCU”), specializing in the investigation of drugs and other street crime, were present but waited for the ERU to secure and clear the building before taking further steps to execute the warrant. In particular:
  • Execution of the warrant began by members of the ERU effecting a mechanical breach of the house’s front entrance, after which Constable Menzies proceeded directly to the third bedroom upstairs.
  • When Constable Menzies entered that third bedroom, the accused and John Young were seated inside. (Constable Menzies initially recalled that both men were sitting on the lower bunk bed, but acknowledged in cross-examination that one of the men might have been seated on the lower bunk bed while the other was seated on a nearby chair.)
  • Constable Menzies immediately placed both men under arrest and conducted an initial “safety” search of their persons, during which he may have removed a wallet from Mr Peterson’s pockets. However, Constable Menzies was adamant that he otherwise touched nothing in the third bedroom before leaving it for further investigation and processing by members of the SCU, after Mr Peterson and Mr Young had been taken into custody and removed from the premises.
  • Once the house had been cleared by the ERU, no one else had access to it, including the third bedroom, until Detective Constable (D.C.) Schuurman and Officer Peck then proceeded to search the entire house, with the assistance of a dog from the police canine unit.
• Within the third bedroom, D.C. Schuurman located, noted and documented various items, (the nature and discovery location of which were documented through the use of photographs and an exhibit list). The items included the following:
  • A large zip-lock bag, (found lying in plain view on the lower bunk bed), which contained three other zip-lock bags, each containing a quantity of marihuana. In particular, the three “interior” zip-lock bags respectively contained 3.3 grams, 8.2 grams and 9.5 grams of marihuana.
  • A similar zip-lock bag, containing 5.3 grams of marihuana, lying in plain sight on top of various items of clothing within a hamper sitting on top of the third bedroom’s dresser.
  • Within that same hamper, (but visible, located and photographed only after the removal of some clothing from the hamper), a glass pipe used to smoke drugs.
  • A number of additional plastic bags, lying on the lower bunk bed.
  • A calculator and two nearby notebooks, also lying in plain sight on the lower bunk. One of those notebooks contained entries that were consistent with what is commonly known in the drug culture vernacular as a “debt list”; i.e., a list of names, (including the names of various individuals whom D.C. Schuurman knew to be involved in Stratford’s drug culture), with numerical figures written beside each of those names.
  • A clear plastic pill bottle with a white lid, (also found in plain sight on the lower bunk bed, next to a cellular telephone), inside of which were six individual zip-lock bags, each containing a quantity of Methamphetamine. In particular, three of the bags contained 3.6 grams of that substance, while the remaining three bags respectively contained 3.7, 3.8 and 0.9 grams of Methamphetamine. A further similar zip-lock bag, containing an additional 3.6 grams of the same substance, was located below the lower bunk bed.
  • Another clear plastic pill bottle with no lid, (also found in plain sight on the lower bunk bed, although D.C. Schuurman indicated and acknowledged that he moved the bottle slightly from its original position when taking its photograph, so as to show its interior). Inside that clear plastic bottle were two separate zip-lock bags, one containing 0.9 grams of MDA, and the other containing 1.1 grams of that substance.
  • Two plastic pill bottles, each bearing a prescription label with the name of the accused, (Albert Peterson), both also found in plain sight on the lower bunk bed. In particular, one such bottle was found within inches of the zip-lock bag containing marihuana and less than a foot from the clear plastic bottle containing Methamphetamine, while the other was found almost if not actually touching the notebook and apparent “debt list”. (D.C. Schuurman photographed them in their original location, before then moving and repositioning them to take a photograph that would show the prescription labels, and name of the accused on each label.) One of the two bottles contained pills, (albeit apparently not of an illicit nature, as the Crown and its witnesses placed no reliance whatsoever on their presence in prosecuting the various drug-related charges against Mr Peterson). The other pill bottle bearing a prescription label with Mr Peterson’s name on it contained no pills, but additional folded zip-lock bags, (although the bags in turn apparently contained nothing at the time).
  • A wallet containing an Ontario driver’s licence belonging to the accused, lying on the lower bunk bed towards its southeast corner. (D.C. Schuurman indicated that he could not recall whether the wallet was open or closed on the bed when he found it, but that, if it was closed, he would have opened the wallet and pulled out the licence slightly, in a manner sufficient to take its photograph. He also noted that John Young’s wallet also was found on the bed.)
  • A knife with a plastic black handle and a long blade, found under the lower bunk bed.
  • Canadian currency totaling $398.10, (made up of 18 twenty dollar bills, 1 ten dollar bill, 5 five dollar bills, and 10 cents in change), the bills of which were protruding visibly in plain sight from the pocket of a sweater left lying on the front edge of the seat of the bedroom’s armchair, near to the lower bunk bed.
  • Three digital scales, the first of which, (silver/grey in colour), also was lying in plain sight on the lower bunk bed. The other two digital scales, (respectively black and white in colour), were located in a visible but somewhat less obvious location, on the shelf along the bedroom’s eastern wall.
  • A further supply of zip-lock “dime bags”, (commonly used to package drugs), located on the shelf along the bedroom’s eastern wall.
  • Another glass pipe used to smoke drugs, (and containing what appeared to be residue of Methamphetamine), located on that same shelf, lying in the open near a wrench. Two additional glass pipes used to smoke drugs, (one free of residue, and the other containing what appeared to be residue of Methamphetamine), also were located within a small blue recycling box or basket located on the same shelf.
  • A white pill bottle, located in plain sight on the same shelf along the eastern wall of the third bedroom, containing marihuana seeds. (D.C. Schuurman indicated and acknowledged that he handled that bottle and moved it “a little bit” to remove its lid, before then photographing the bottle and its contents, but it was originally located in the same place where it was photographed.)
  • An orange pill container, located on the same shelf, containing what was later confirmed to be cocaine residue, (albeit not in an amount sufficient to generate any recordable weight).
• I pause to note a number of additional points, in relation to these seized items. In particular:
  • First, at the outset of trial, the Crown indicated its initial intention to tender “certificate of analysis” evidence to verify and confirm the nature of the various substances discovered and seized in the third bedroom. However, the accused then made a formal admission that he was conceding that the relevant substances were what the Crown alleged them to be in the indictment. It should be noted that, at trial, and after expressly indicating that he was not sure of the proper formal name of the drug found within the pill bottle containing two bags holding 0.9 and 1.1 grams of the relevant substance, D.C. Schuurman indicated that he would refer to the relevant substance by the acronym “MDMA”. D.C. Schuurman continued to use that acronym throughout his testimony, and that was the acronym correspondingly then used by Crown counsel in her questions. “MDMA” also was the acronym used earlier by D.C. Schuurman in his preparation of the Exhibit List noting the items and substances found during the search of the third bedroom, which in turn appears to have prompted comments on “MDMA”, popularly known as “Ecstasy”, in the expert report prepared by D.C. Westlake after he had reviewed, inter alia, the search Exhibit List prepared by D.C. Schuurman. However, Counts 2 and 4 of the indictment, and the corresponding formal admission made in relation to those charges concerning the nature of the underlying substances found in the third bedroom, indicate that the formal substance in question was not methylenedioxymethamphetamine, (denoted by the acronym “MDMA”), but methylenedioxyamphetamine, (denoted by the acronym “MDA”, and repeatedly identified both by that acronym and the drug’s proper full formal name in Counts 2 and 4 of the indictment). In the circumstances, I have been guided herein by the text of Counts 2 and 4 the indictment, and the corresponding formal admission made at the outset of trial by Mr Peterson, rather than by what seems to have been inadvertent use of an inappropriate acronym by D.C. Schuurman, which prompted similar errors by others.
  • Second, at the outset of trial, the accused also formally conceded that there were no continuity issues, in relation to the evidence seized by the police and tendered at trial.
  • Third, I reject completely the suggestion advanced by the accused, during the course of cross-examination of D.C. Schuurman, that the relevant narcotics, drug-related paraphernalia and other possibly incriminating items actually were not located or positioned where they were said to have been found, in the third bedroom, but were instead placed and photographed by the police after steps were taken to stage and photograph a scene to ensure Mr Peterson’s conviction. In that regard, I accept D.C. Schuurman’s vehement denial of the suggestion, when it was put to him in cross-examination. In my view, the detective presented as an entirely credible witness, who candidly acknowledged and identified the specific and limited items he had moved slightly, including the provision of details concerning when, why and how he had done so. Moreover, apart from the indication from Ms Mooney that certain items were not visible on the lower bunk bed during her earlier visit to the third bedroom that morning, (which is equally consistent with those items being brought out by individuals other than the police, after her departure but before the arrival of the police), there really was no evidence whatsoever to support such a serious allegation of deliberate police misconduct, (i.e., elaborate staging of a scene to incriminate Mr Peterson), the success of which realistically would have depended on sustained collusion by at least three police officers; i.e., Constable Menzies, D.C. Schuurman and Officer Peck, any one of whom might have been called upon to testify as to the state of items in the third bedroom when the warrant was executed.
• In cross-examination, D.C. Schuurman acknowledged a memory of having also found a piece of paper in the third bedroom with Dylan Segal’s name on it, (although he could not recall the nature of the document, or anything else linking Mr Segal rather than Mr Peterson with the third bedroom). D.C. Schuurman also confirmed that additional drugs were found elsewhere in the house, but Mr Peterson faces no charges in that regard.
• Finally, on a more general note, I accept the testimony of Ms Mooney that her father, the accused, suffers from diabetes and arthritic pain which require the use of prescription medication, and that he generally makes a practice of keeping at least his medication for diabetes with him at all times.

Expert Evidence

[11] As noted above, I also heard testimony from D.C. Westlake, whose experience and expertise relating to the possession of controlled substances for the purpose of trafficking, and the drug subculture in Stratford and elsewhere, was both considerable and expressly acknowledged and admitted by Mr Peterson.

[12] I independently was satisfied, by D.C. Westlake’s curriculum vitae and testimony concerning his experience and qualifications, that he was qualified to provide expert opinion evidence in relation to such matters, pursuant to the criteria emphasized in R. v. Mohan, [1994] 2 S.C.R. 9.

[13] As also noted above, Mr Peterson also expressly indicated that he did not dispute D.C. Westlake’s opinion that the objects and substances found in the third bedroom indicated possession of the substances for the purpose of trafficking. (To be clear, Mr Peterson denied that he was a person in possession of the relevant substances, but did not dispute D.C. Westlake’s expert opinion that the objects and substances found in the third bedroom indicated that someone in possession of the substances would have had them in his or her possession for the purpose of trafficking.)

[14] In the circumstances, I will not spend a great deal of time recounting D.C. Westlake’s testimony in detail.

[15] For present purposes, I think it sufficient to note that D.C. Westlake based his opinion, concerning indicia of possession for the purpose of trafficking, on a multitude of factors that included the following:

• The presence of numerous zip-lock and “dime” bags, into which many of the drugs were segregated, as such packaging is commonly used by those trafficking in drugs, and there is no practical need for those who are strictly users to separate drugs of the same type into different packaging.
• The presence of different types of drugs, as drug users normally will stick to one type of drug of choice, while financially motivated drug traffickers often possess a variety of different types of drugs to diversify their client base and maximize profit from their trafficking activity.
• The presence of multiple digital scales, as such devices frequently are used by traffickers to ensure that a proper amount of product is sold, (thereby ensuring customer satisfaction and future drug sales, while simultaneously avoiding the supply of too much product, thereby limiting profit from trafficking).
• The presence of a debt list, (in this case bearing the names of individuals known to be drug users within the Stratford drug culture), as such lists often are employed by those trafficking in drugs to promote sales by “fronting” drug supply to those who become or remain addicted, (while being obliged to pay later for their narcotics), and to facilitate collection of drug debts.
• The presence of a weapon, (the long-handled knife found under the lower bunk bed in the third bedroom), commonly used by drug traffickers to intimidate customers, (who are thereby encouraged to pay their drug debts), and as a means of self-protection, (to deter theft of a trafficker’s drugs or drug-related currency).

[16] While D.C. Westlake also made reference to the cellular telephone, currency and drug-use items found in the third bedroom, these alone were somewhat neutral factors in terms of his opinion concerning possession for the purpose of trafficking. In particular:

• D.C. Westlake acknowledged that, while drug traffickers commonly use cellular phones to facilitate their trafficking activity, possession of such a device is not, by itself, indicative of possession for the purpose of trafficking given the prevalence of such devices in society.
• Similarly, while it is common to find amounts of currency in the possession of those engaging in the cash-based business of drug trafficking, the significance of a high or low amount of currency as an indication of drug trafficking is difficult to assess without knowing the stage of trafficking, (in relation to obtaining and selling a trafficker’s drug supply), at which a person may have been engaged when drugs and currency are discovered.
• Finally, items indicative of drug use, (such as the pipes found in the third bedroom), were consistent with personal drug use by low level traffickers.

[17] Again, Mr Peterson did not dispute D.C. Westlake’s resulting expert opinion that the drugs and items found in the third bedroom were indicative of possession of the relevant substances for the purpose of trafficking.

[18] However, I independently am satisfied, beyond a reasonable doubt, that whoever was in possession of the relevant substances had them in his or her possession for the purpose of trafficking.

[19] In that regard, I note for the sake of completeness that, in my view, D.C. Westlake’s references to “Ecstasy” or “MDMA”, (methylenedioxymethamphetamine), rather than “MDA”, (methylenedioxyamphetamine), owing to D.C. Schuurman’s inadvertent use of the incorrect acronym, really had no impact on D.C. Westlake’s expert opinion concerning possession for the purpose of trafficking. The above factors relied upon by D.C. Westlake in reaching his expert opinion did not turn on that distinction.

Further analysis

[20] With the above evidence, admissions and findings in mind, I now turn to consideration of whether the Crown has proven each essential element of the offences charged against Mr Peterson beyond a reasonable doubt.

ESSENTIAL ELEMENTS

[21] To prove simple possession of a controlled substance, (as alleged in Counts 4 and 5 of the indictment), the Crown must prove, beyond a reasonable doubt, the following essential elements of the offence:

i. that Mr Peterson was in possession of a substance; ii. that the substance in question was the relevant controlled substance identified in the indictment; and iii. that Mr Peterson knew that the substance was the relevant controlled substance identified in the indictment.

[22] To prove possession of a controlled substance for the purpose of trafficking in it, the Crown must prove, beyond a reasonable doubt, the same three aforesaid elements of simple possession of a controlled substance, and the further and fourth essential element that the possession in question was for the purpose of trafficking.

[23] Again, Mr Peterson formally has conceded that the substances underlying each count were what the Crown formally alleged them to have been, (a concession applicable to all five counts of the indictment). Pursuant to the CDSA and its Schedules, cannabis marijuana, methylenedioxyamphetamine (MDA), and Methamphetamine are all controlled substances. See, respectively, paragraph 1(2) of Schedule II, and paragraphs 19(8) and 18 of Schedule I, of the CDSA.

[24] Mr Peterson also has not disputed the Crown’s evidence that a person in possession of the various substances would have had them in his or her possession for the purpose of trafficking, (which I independently find to have been proven beyond a reasonable doubt).

[25] The remaining questions, in relation to each count of the indictment, are therefore whether the Crown has proven beyond a reasonable doubt that Mr Peterson was in possession of the relevant substance, and knew what the relevant substance was.

GENERAL PRINCIPLES

[26] Relevant legislative provisions include the following:

• pursuant to s.2(1) of the CDSA, “possession” in this context “means possession within the meaning of subsection 4(3) of the Criminal Code; and
• pursuant to s.4(3) of the Criminal Code, for the purposes of that legislation, a. a person has anything in possession when he has it in his personal possession or knowingly i. has it in the actual possession or custody of another person, or ii. has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and b. where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

[27] In relation to “possession” and “knowledge”, authorities relied upon by the Crown include R. v. Pham (2005), 2005 ONCA 848, 203 C.C.C. (3d) 326 (C.A.), and its confirmation that both knowledge and possession are facts which may be established not only by direct evidence but also by way of inference from circumstantial evidence.

[28] In particular, I note the Court of Appeal’s indication that, “in combination, the finding of narcotics in plain view in the common areas of the residence, the presence of a scale in a [room] apparently occupied by the [accused], and the [accused’s] apparent occupation of the premises may serve to found an inference of the requisite knowledge”; R. v. Pham, supra, at paragraph 17, citing with approval from R. v. Sparling, [1988] O.J. No. 107 (Ont.H.C.), at p.6, affirmed [1988] O.J. No. 1877 (C.A.).

[29] I also note the Court of Appeal’s indication that appropriate inferences may be drawn “from evidence that a prohibited drug is found in a room under the control of an accused and where there is also evidence from which an inference may properly be drawn that the accused was aware of the presence of the drug”; R. v. Pham, supra, at paragraph 18, citing with approval the Court’s earlier decision in R. v. Chambers, [1985] O.J. No. 143 (C.A.).

[30] While possible inferences of possession and knowledge from circumstantial evidence are outlined in R. v. Pham, supra, these self-evidently are not necessary inferences. In particular, the essential component of self-instruction on circumstantial evidence is that the trier of fact must be satisfied that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty: see R. v. Anderson-Wilson, 2010 ONSC 489, [2010] O.J. No. 377 (S.C.J.), citing R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, and R. v. Harris (2009), 244 C.C.C. (3d) 289 (S.C.C.).

[31] Having said that, I also am mindful throughout my analysis that, although individual items of circumstantial evidence may be explicable on bases other than guilt, it is essential to keep in mind that it is the cumulative effect of all the evidence that must be considered, and which must satisfy the standard of proof required of the Crown. Individual items of evidence are links in the chain of ultimate proof. They are not to be examined separately and in isolation, then cast aside if the ultimate inference sought from their accumulation does not follow from each individual item alone. It may be and very often is the case that items of evidence adduced by the Crown, examined separately, have not a very strong probative value. But all the evidence has to be considered, each item in relation to the others and to the evidence as a whole, and it is all of them taken together that may constitute a proper basis for conviction. See Cote v. The King (1941), [1941] S.C.R. 61, 77 C.C.C. 75 (S.C.C.); R. v. Morin, [1988] 2 S.C.R. 345; R. v. Uhrig, 2012 ONCA 470, [2012] O.J. No. 3011 (C.A.); and R. v. Bui, [2014] O.J. No. 4003 (C.A.).

[32] With these general principles in mind, I now turn to consideration of whether the Crown has proven requisite possession and knowledge in this case, beyond a reasonable doubt.

APPLICATION

[33] In my view, having regard to the totality of the circumstantial evidence, the Crown has proven, beyond a reasonable doubt, that the accused possessed the substances specified in the five counts of the indictment, and knew what those substances were.

[34] In relation to possession, my considerations in that regard include the following:

• Although Mr Peterson seemed to focus throughout the course of the trial on whether or not the Crown has proven beyond a reasonable doubt that he had “moved” to 142 Grange Street, that is not the determining factor in relation to whether or not Mr Peterson was in possession of the drugs underlying the several charges against him. As noted by Crown counsel, the Crown has no obligation to prove that 142 Grange Street was Mr Peterson’s exclusive residence. Indeed, as noted above, s.4(3) of the Criminal Code expressly emphasizes that possession may be established when a person knowingly has something “in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person”. [Emphasis added.] Moreover, to state the obvious, a person effectively may have control over a certain room, at a given time, regardless of whether or not it is his or her principal or exclusive residence.
• In my view, there are numerous strong indications, (made stronger still when considered in their totality), that this is not a case of Mr Peterson just happening to be in the wrong place at the wrong time, but that he instead exhibited considerable control over the third bedroom, in which the relevant drugs were found. My considerations in that regard include the following:
  • Richard Campbell impressed me as an extremely credible and reliable witness, without any discernible animosity towards Mr Peterson or other motivation to distort the truth, who focused on providing his evidence accurately without straying into exaggeration or speculation. (For example, Mr Campbell candidly acknowledged that he personally had never actually seen Mr Peterson in the third bedroom in the months leading up to April 1, 2014.) Richard Campbell nevertheless was firm in his testimony that Ryan Campbell, Dylan Segal and the accused were the only three specific individuals regularly accessing the upstairs of 142 Grange Street in the months leading up to April 1, 2014, and that, in relation to the three bedrooms upstairs still being used as such during that period, the first was being used as a bedroom by Ryan, the second was being used as a bedroom by Dylan, while the third bedroom nevertheless also frequently was being used as a bedroom, (based on what clearly and regularly could be heard from downstairs). In my view, by the process of elimination, buttressed by Richard Campbell’s regular sightings of Mr Peterson freely coming and going from the upstairs area at various times of the day, the only reasonable inference is that the third bedroom frequently was being used as such by Mr Peterson. This is entirely consistent with Ms Mooney’s candid indication that her father may have been absent from her house at 22 Cobourg Lane for days at a time during the same period.
  • The conclusion that Mr Peterson was spending considerable time in the upstairs of 142 Grange Street, in the months leading up to April 1, 2014, and had effective control over that area in significant ways, is reinforced by the statements made by Lorraine Campbell to her husband and niece that she had permitted, encouraged and supported that frequent presence by essentially giving Mr Campbell delegated authority to collect rent and eject undesirable persons from the upstairs area.
  • I also am struck by the fact that, on April 1, 2014, Ms Mooney was obliged to contact Mr Peterson by text at 9:30am, (as he was not at 22 Cobourg Lane but at 142 Grange Street, early in the day), and that his responding suggestion to address payment of the rent money for that month was not focused on payment when he returned to 22 Cobourg Lane, (despite the regular willingness of father and daughter to let such payments remain unaddressed for periods of time). Rather, Mr Peterson responded by inviting his daughter to meet with him in the upstairs area of 142 Grange Street, which to me suggests that he not only felt able to extend such invitations, but also did not plan on returning to 22 Cobourg Lane any time soon. Moreover, when Ms Mooney arrived at 142 Grange Street, her cousin Ryan indicated an expectation that Mr Peterson would be found in the third bedroom, and he was. Furthermore, Mr Peterson was found alone in that room, (suggesting that he had a right to be there without requiring the permission or presence of another upstairs resident), and similarly was able to entertain his daughter alone in that room without interruption from Ryan Campbell, Dylan Segal or anyone else for more than 90 minutes. When the interruption of the father-daughter visit eventually came, it came in the form of a person, (John Young), in respect of whom there was no evidence to suggest any kind of regular or sustained connection with the upstairs area of 142 Grange Street. Mr Peterson also was still in that third bedroom, entertaining a visit from Mr Young alone, when the police entered to execute the warrant shortly after noon on April 1, 2014, (suggesting that Mr Peterson had been in that third room for no less than 2-3 hours that morning). To me, all of this reinforces the impression and conclusion that Mr Peterson had effective control over the third bedroom as “his” space, in the upstairs of 142 Grange Street, at the time the warrant was executed.
• In addition to his general control and dominion over the third bedroom, in my view there also are significant indications that Mr Peterson participated in or at least condoned the placement and/or movement of many of the drug-related items found in the third bedroom by the police. My considerations in that regard include the following:
  • The evidence before me indicates that, unlike his daughter Ms Mooney, Mr Peterson is a person who, at the very least, condones the use of illicit drugs. In my view, that conclusion follows from the undisputed evidence that on April 1, 2014, numerous people obviously and openly were smoking drugs in the upstairs area of 142 Grange Street, filling the upstairs with associated smoke from that drug usage, but Mr Peterson was doing nothing to deter or end such conduct despite the delegated authority he had received from his sister to eject undesirable visitors from the premises, and Mr Peterson continued to do nothing whatsoever to address the situation even after his daughter expressly raised the obvious ongoing drug use in conversation with her father.
  • Given that the drug-related items found on the lower bunk bed of the third bedroom were not present or visible when Ms Mooney was visiting with her father, or when she left Mr Peterson and Mr Young alone in the third bedroom at approximately 11:10am to 11:15am, but clearly were present and visible on that lower bunk when Constable Menzies found Mr Peterson and Mr Young still alone in the third bedroom approximately 45-48 minutes later, the natural and inescapable inference is that the drug-related items were brought out and placed on the lower bunk bed during that intervening period of time, in the presence of Mr Peterson and Mr Young. Moreover, the third bedroom is clearly of a size that such actions could not and would not have escaped the attention of someone within that room, and as Ms Mooney indicated in her testimony, the objects plainly visible on the lower bunk bed, as depicted in Exhibit 3C, obviously were indicative of drug-dealing. Furthermore, in my view, someone remaining in that small room, while another person in the room brought such items out of concealment and placed them across the lower bunk bed, implicitly would be condoning such actions. Such realities engage the provisions of s.4(3)(b) of the Criminal Code, which emphasizes that, “where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them”.
  • Between Mr Young and Mr Peterson, the accused was the person with an obvious incentive to keep the drug-related items out of sight in the third bedroom until Ms Mooney’s anticipated visit on the morning of April 1, 2014, had come to an end. In particular:
    • Mr Young was merely a passing acquaintance of Ms Mooney from her days in high-school, and there was nothing to suggest that Ms Mooney’s opinion of Mr Young’s activities would be of any concern whatsoever to Mr Young.
    • In contrast, Mr Peterson almost certainly would have been aware of his daughter’s frequently stated condemnation of drug-related activity, and understandably would have been reluctant to leave such drug-related items on display when he knew his daughter was coming to see him at 142 Grange Street, or bring them out until after she had departed.
  • In my view, the position and nature of the objects on the lower bunk bed link their placement there with Mr Peterson. In particular, in that regard:
    • As emphasized by Crown counsel, pill bottles clearly belonging to Mr Peterson, (according to their prescription labels), were found on the lower bunk bed in very close proximity to illicit drugs and drug-related items, (including the digital scale and debt list).
    • I accept that the wallets of Mr Peterson and Mr Young likely were removed from the pockets of those gentlemen and left on the lower bunk bed by Constable Menzies during his initial safety search. Constable Menzies himself readily acknowledged such a possibility. However, I do not think the same can be said of prescription pill bottles belonging to Mr Peterson – especially when one of them clearly contained pills. The circumstances involved execution of a search warrant focused on drugs and drug-trafficking, and it seems to me that Constable Menzies therefore certainly would have noted and remembered finding and removing drugs of any kind from the pockets of those whom he was searching and arresting during execution of the warrant.
    • The natural and inescapable inference is that Mr Peterson himself was involved in placing his prescription pill bottles on the lower bunk bed, where they were found in close proximity to the other drug-related items located there at the time of the warrant’s execution. Moreover, the fact that one of those pill bottles bearing Mr Peterson’s prescription label contained no medication, but plastic baggies similar to those used to package other narcotics found in the room, indicates to me that placement of the prescription pill bottles on the lower bunk was not unrelated to placement of the other drug-related items on the lower bunk.
  • Finally, at the time of the warrant’s execution, Mr Peterson was found in very close proximity to not only all of the drugs and drug-related items found in plain sight on the lower bunk bed, but also in similar close proximity to the drugs and drug-related items in plain sight on the laundry hamper and wall shelf, in a room he frequently had been using as a bedroom, and where he had been for at least 2-3 hours that morning, in the upstairs area of a house where drug use was open and obvious. In the circumstances, it seems to me that Mr Peterson realistically must have been aware of those additional items in the third bedroom, but was content with their presence.

[35] For such reasons, I am persuaded beyond a reasonable doubt that Crown counsel has established that Mr Peterson was in possession of the relevant illicit substances underlying the charges in the indictment.

[36] In relation to the final essential element the Crown must establish, (i.e., Mr Peterson’s knowledge as to the nature of the relevant substances underlying the charges in the indictment), I note the following:

• While proof beyond a reasonable doubt of actual knowledge or awareness that the relevant substances were respectively Cannabis Marijuana, MDA or Methamphetamine would be sufficient, such proof is not necessary for the Crown to establish knowledge in the sense required.
• Nor is the Crown required to prove that Mr Peterson knew the technical terms for such substances.
• Instead, it is sufficient for the Crown to prove, beyond a reasonable doubt, that Mr Peterson was aware of the need to make an inquiry about the nature of the substances, but deliberately failed to do so because he did not want to know the truth about the nature of the substances.

[37] In my view, the Crown has established beyond a reasonable doubt that, at the very least, someone in Mr Peterson’s position would have been aware of the need to make such inquiries.

[38] Certainly, the illicit drug-dealing nature of the various items in plain sight on the lower bunk bed was obvious to Ms Mooney, and I think it would have been obvious to anyone in that third bedroom, with eyes to see, especially when such a person had been made aware of open and obvious drug use in the upstairs area of 142 Grange Street, and charged by his sister with responsibility for deterring undesirable activity in that area of the house.

[39] For similar reasons, a person charged with such authority, aware of drug use in the upstairs area of that house, and frequently using that third bedroom as a bedroom, would have known of the need to make an inquiry about the nature of the additional substances located in plain sight elsewhere in that bedroom.

[40] In the result, all essential elements of the offences charged in the indictment have been proven beyond a reasonable doubt.

Conclusion

[41] Stand up please Mr Peterson.

[42] For the reasons set out above, I find you guilty of all five counts set forth in the indictment. The verdicts will be noted and documented accordingly.

“Justice I. F. Leach”

JUSTICE I. F. LEACH Released: (Orally) May 9, 2016