CITATION: Her Majesty the Queen v. Bemister, 2016 ONSC 6620

COURT FILE NO.: CR15-134

DATE: 20161025

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

Elizabeth Barefoot, for the Federal Crown

• and -

Michael Bemister

Bernard Cugelman, for the Accused

Accused

HEARD: October 12, 13, 14 & 17, 2016

REASONS FOR JUDGMENT

Conlan J.

I. Introduction

1This case presents a cocktail of narcotics, proceeds of crime and weapons charges.

2Commencing on October 12, 2016 in Owen Sound, Mr. Bemister was tried before me, without a jury. The trial concluded on October 17, 2016. It lasted four days, including final submissions by counsel.

3The accused was originally facing eleven counts on the Indictment. After some pretrial rulings, guilty pleas and withdrawals, six charges remained.

4For the Crown, I heard from Mark Kielb (“Kielb”) who was at the relevant time employed by the Owen Sound Police Service (“OSPS”), Kathryn Elizabeth Cranny of the OSPS, civilian Jesse Watson, Spencer Knoll (“Knoll”) of the Ontario Provincial Police, Mike Holovaci (“Holovaci”) of the OSPS, Richard Craig Matheson (“Matheson”) of the OSPS, Perry Prescott who was at the time in question employed by the OSPS, and Carlo Obillos (“Obillos”) who worked at the OSPS between February 2014 and September 2016.

5By agreement, without the need for the officer to testify, the evidence of Brad Robertson of the OSPS was read in to the record

6The Defence did not call any evidence at trial.

7The theory of the Crown is that Mr. Bemister trafficked fentanyl to Jesse Watson (“Watson”) who, in turn, sold it to Knoll (acting undercover). It is further alleged that Mr. Bemister trafficked hydromorphone (pills) to Watson who was then arrested by the police and found to be in possession of that substance. Those transactions allegedly occurred on two consecutive days in mid-August 2013.

8It is further alleged that, in September 2013, upon the execution of a search warrant at the accused’s residence in Owen Sound, fentanyl was seized in a quantity above and beyond what Mr. Bemister was lawfully entitled to possess under prescription, as well as a large amount of Canadian cash (alleged to be proceeds of crime) and two prohibited weapons (commonly referred to as flick-knives).

9Of course, Mr. Bemister is presumed to be innocent of each and every charge that he was tried on. He has no burden to prove anything. That rests entirely with the Crown. The prosecution must prove, beyond a reasonable doubt, every essential element of each charge. At the end of the day, proof of probable or likely guilt is insufficient. For each offence, I must be sure of Mr. Bemister’s guilt before finding him so.

II. The Charges and Their Essential Elements

Counts 1 and 2 - Trafficking

10Mr. Bemister is charged with two counts of trafficking in fentanyl and hydromorphone, respectively. The formal charges read:

Michael Bemister stands charged that, on or about the 14th day of August, 2013 in the City of Owen Sound in the County of Grey in the Judicial Region of Central West, did traffic in a substance included in Schedule I to wit: Fentanyl, contrary to section 5(1) of the Controlled Drugs and Substances Act.

AND FURTHER THAT Michael Bemister stands charged that, on or about the 15th day of August, 2013 in the City of Owen Sound in the County of Grey in the Judicial Region of Central West, did traffic in a substance included in Schedule I to wit: Hydromorphone, contrary to section 5(1) of the Controlled Drugs and Substances Act.

11For the Court to find the accused guilty, the Crown must prove each of these essential elements beyond a reasonable doubt:

i. that Mr. Bemister trafficked in a substance;

ii. that the substance was fentanyl (count 1) or hydromorphone (count 2);

iii. that Mr. Bemister knew that the substance was fentanyl (count 1) or hydromorphone (count 2); and

iv. that Mr. Bemister intentionally trafficked in that substance.

12If the Crown has not satisfied the Court beyond a reasonable doubt of each of those essential elements, I must find the accused not guilty of trafficking.

13If the Crown has satisfied the Court beyond a reasonable doubt of each of those essential elements, I must find the accused guilty of trafficking.

14Of course, the verdicts need not be the same on counts 1 and 2.

15To “traffic” means to, among other things, sell or give something to someone. It does not matter whether money or anything else of value actually changes hands.

16“Substance” has its ordinary meaning.

17A controlled substance is any substance that a person cannot legally buy, sell or possess without government authorization. Fentanyl and hydromorphone are both controlled substances.

Count 3, as amended – Simple Possession

18Mr. Bemister is charged with simple possession of a controlled substance, fentanyl.

19The formal charge reads:

AND FURTHER THAT Michael Bemister stands charged that, on or about the 12th day of September, 2013 in the City of Owen Sound in the County of Grey in the Judicial Region of Central West, did possess a substance included in Schedule I to wit: Fentanyl contrary to section 4(1) of the Controlled Drugs and Substances Act.

20For the Court to find the accused guilty of simple possession of fentanyl, the Crown must prove each of these essential elements beyond a reasonable doubt:

i. that Mr. Bemister was in possession of a substance;

ii. that the substance was fentanyl; and

iii. that Mr. Bemister knew that the substance was fentanyl.

21If the Crown has not satisfied the Court beyond a reasonable doubt of each of those essential elements, I must find the accused not guilty of the charge.

22If the Crown has satisfied the Court beyond a reasonable doubt of each of those essential elements, I must find the accused guilty of the offence.

23A person who has actual physical control of a substance, as for example, by holding it in his hand, or keeping it in his pocket, has that substance in his possession.

24It is not necessary, however, that an accused actually have the substance on his person. For example, an accused may have knowledge of and some measure of control over, and thus possess, a substance that is in his residence.

Count 5 – Proceeds of Crime

25Mr. Bemister is charged with possession of proceeds of property obtained by crime. The formal charge reads:

AND FURTHER THAT Michael Bemister stands charged that, on or about the 12th day of September, 2013 at the City of Owen Sound in the County of Grey in the Judicial Region of Central West, did have in his possession proceeds of property, $4840 in Canadian currency, of a value not exceeding five thousand dollars knowing that all of the proceeds of the property was derived directly or indirectly by the commission in Canada of an offence punishable by indictment contrary to section 354(1)(a) of the Criminal Code.

26For the Court to find the accused guilty of possession of proceeds of property obtained by crime, the Crown must prove each of these essential elements beyond a reasonable doubt:

i. that Mr. Bemister was in possession of proceeds of property;

ii. that the proceeds of property were obtained by crime; and

iii. that Mr. Bemister knew that the proceeds of property had been obtained by crime.

27If the Crown has not satisfied the Court beyond a reasonable doubt of each of those essential elements, I must find the accused not guilty of the charge.

28If the Crown has satisfied the Court beyond a reasonable doubt of each of those essential elements, I must find the accused guilty of the offence.

29A person may have property in his possession in a number of different ways, including in his hand or in his pocket or in his residence.

30“Property” means anything of value that a person may own, including narcotics.

31“Proceeds of property” includes money arising out of or obtained by the sale or other disposition (trafficking) of property, such as narcotics.

32For property to be obtained by crime, it must have been acquired, in part at least, directly or indirectly, by the commission of a criminal offence, such as trafficking drugs.

Counts 10 and 11 – Prohibited Weapons

33Mr. Bemister is charged with two counts of unlawful possession of a prohibited weapon. The formal charges read:

AND FURTHER THAT Michael Bemister stands charged that, on or about the 12th day of September, 2013 at the City of Owen Sound in the County of Grey in the Judicial Region of Central West, did possess a prohibited weapon, to wit a flick knife without being the holder of a license under which he may possess it, contrary to section 91(2) of the Criminal Code.

AND FURTHER THAT Michael Bemister stands charged that, on or about the 12th day of September, 2013 at the City of Owen Sound in the County of Grey in the Judicial Region of Central West, did possess a prohibited weapon, to wit a flick knife without being the holder of a license under which he may possess it, contrary to section 91(2) of the Criminal Code.

34For the Court to find the accused guilty of unlawful possession of a prohibited weapon, the Crown must prove each of these essential elements beyond a reasonable doubt:

i. that the knife in question is a prohibited weapon;

ii. that Mr. Bemister was in possession of the knife in question;

iii. that Mr. Bemister knew that the knife in question was a prohibited weapon; and

iv. that Mr. Bemister did not have a licence under which he was permitted to possess the prohibited weapon.

35There were two knives seized by the police during the execution of the search warrant at Mr. Bemister’s Owen Sound residence in September 2013.

36Needless to say, the verdicts need not be the same on counts 10 and 11.

37If the Crown has not satisfied the Court beyond a reasonable doubt of each of those essential elements, I must find the accused not guilty of the charge in question.

38If the Crown has satisfied the Court beyond a reasonable doubt of each of those essential elements, I must find the accused guilty of the offence in question.

39As per subsection 84(1) of the Criminal Code, prohibited weapon means

(a) a knife that has a blade that opens automatically by gravity or centrifugal force or by hand pressure applied to a button, spring or other device in or attached to the handle of the knife, or

(b) any weapon, other than a firearm, that is prescribed to be a prohibited weapon.

40Only paragraph (a) is relevant here.

41A person may have a prohibited weapon in his possession in a number of different ways, including on his person or in his residence.

42Section 117.11 of the Criminal Code shifts the burden to the accused to prove that he was the holder of a licence to possess the prohibited weapon. There is no evidence of any such licence in this case. It is not an issue.

III. Analysis

Trafficking Narcotics – Counts 1 and 2

43On count 1, trafficking fentanyl, the case turns on two issues: (i) continuity (whether the substance sent for analysis by Holovaci in October 2014 and confirmed by Health Canada to be fentanyl was in fact the same thing that was provided by Watson to Knoll, and then to Kielb, on August 14, 2013), and (ii) whether Watson obtained the fentanyl that he gave to Knoll on August 14, 2013 from Mr. Bemister.

44On count 2, trafficking hydromorphone (Dilaudid pills), the key issue is whether Watson obtained the pills that were seized by the police on August 15, 2013, upon the arrest of Watson, from Mr. Bemister.

Continuity of the Fentanyl

45Continuity refers to the legal principle that there must be a proper chain of possession of the alleged narcotic from the time of the initial seizure through to analysis by Health Canada and beyond to trial.

46As I stated in a prior case involving importation of narcotics, although continuity of the police exhibits is certainly a consideration as to whether the trier of fact is persuaded of the accused’s guilt, continuity is not an essential element of a drug offence that the Crown must prove beyond a reasonable doubt. R. v. Douglas and Bryan, 2014 ONSC 2574, at paragraph 12.

47I agree with and adopt the following comments by Justice Leach at paragraph 86 of the decision in R. v. Aviles, [2015] O.J. No. 3978 (S.C.J.).

86Third, I think it must be remembered that proof of continuity is not a requirement of law. Gaps in continuity accordingly are not fatal to the Crown’s case unless those gaps are capable of giving rise to a reasonable doubt about the integrity of an exhibit, and in that regard, there must be something more than mere speculation or “fantasy of the mind” that the exhibit might have been interfered with. In the absence of evidence to support such speculation or theories, reasonable doubt based on suggested continuity problems does not arise. In that regard, see MacFarlane, Frater and Proulx, Drug Offences in Canada (3d ed.), at paragraphs 16.80 to 16.130, and authorities such as the following: R. v. Castell, [1973] O.J. No. 992 (C.A.); R v. Oracheski (1979), 1979 ALTASCAD 140, 48 C.C.C. (2d) 217 (Alta.C.A.); R. v. DeGraaf (1981), 1981 343 (BC CA), 60 C.C.C. (2d) 315 (B.C.C.A.); and R. v. Kalashnikoff, [2000] B.C.J. No. 440 (C.A.), leave to appeal refused, [2000] S.C.C.A. No. 129.

48I am satisfied that, based on the combined evidence of Knoll, Kielb, Holovaci and Obillos, the substance sold by Watson to Knoll on August 14, 2013 was the same thing that was retrieved from the property vault at OSPS on October 1, 2014, sent to Health Canada for analysis and confirmed to be fentanyl (see the Certificate of Analyst marked Exhibit 10 at trial).

49I accept the evidence of Knoll that, shortly after 12:22 p.m. on August 14, 2013, Watson gave to him what appeared to be a 75 mg patch of fentanyl. At 12:45 p.m., Knoll gave that item to Kielb in the undercover police vehicle.

50I accept the evidence of Kielb that he tagged that item, along with a small amount of suspected cannabis, with number 039172 and locked it in a secure box inside the intelligence office at the OSPS building. Only Kielb had a key to that box.

51I accept the evidence of Kielb that, once the project was completed (which we know from other evidence at trial was on August 22, 2013), the items in that lock box were transferred to the property vault area at the OSPS building.

52I accept the evidence of Kielb that, besides the item obtained by Knoll from Watson and the evidence seized from the accused’s residence on September 12, 2013, no other fentanyl was seized by the police during the course of the entire street project.

53I accept the evidence of Holovaci that he, on October 1, 2014, sampled for purposes of analysis what he believed to be the same fentanyl given by Watson to Knoll on August 14, 2013. The fact that Holovaci has no notes of that to reference tag number 039172 is problematic but for the evidence of Obillos.

54I accept the evidence of Obillos that, as the property vault manager at OSPS on the date in question, what he retrieved from the vault and gave to Holovaci was a bag containing tag number 039172 and the suspected fentanyl (Exhibit 24 at trial).

55Obillos corroborated the evidence of Kielb when he testified that a search of OSPS property vault computer records showed no other suspected fentanyl being logged between August 14, 2013 and October 1, 2014 besides what was obtained by Knoll from Watson and what was seized from Mr. Bemister’s residence.

56I have examined Exhibit 24. It is obvious that it contains that specific tag number - 039172. Further, it is obvious from what is recorded, in detail, on that tag that it refers to what was given to Knoll by Watson, and then given to Kielb by Knoll, on August 14, 2013.

57Ideally, the gymnastics that the Crown had to endure at trial to establish continuity would have been avoided. Kielb would have placed the items given to him by Knoll directly in to a Health Canada envelope once returning to the police station. And Exhibit 23 at trial, an excerpt from the police property log book, would have referred specifically to tag number 039172.

58Instead, there is no entry on Exhibit 23 that can be easily matched to what was given to Knoll by Watson, and then given to Kielb by Knoll. Rather, there is an entry on August 22, 2013, with a different incident number and a different tag number and initials for a different officer other than Kielb.

59Nevertheless, despite those imperfections, on the totality of the evidence, I am confident that what was sent for analysis on October 1, 2014 is what Watson gave to Knoll on August 14, 2013.

Did Watson get the Fentanyl from Mr. Bemister?

60Circumstantially, the Crown’s evidence is overwhelming on this question. It can only be inferred, reasonably, that the fentanyl that Watson gave to Knoll on August 14, 2013 was indeed obtained by Watson from the accused on that same day.

61The circumstantial evidence includes the following.

62First, it just so happens that Mr. Bemister had a prescription in August 2013 for 75 microgram fentanyl. That matches precisely what Watson gave to Knoll on August 14th.

63Second, it just so happens that the accused, in September 2013, had in his residence a relatively large quantity of 75 microgram fentanyl.

64Third, and most important, it just so happens that, on August 14, 2013, Watson was observed by Matheson to be in the company of Knoll; and then walk to Mr. Bemister’s residence at 1372 3rd Avenue East, apartment 2; and then return within a very short period of time to Knoll’s location. We know from Knoll’s evidence that Watson told him before going to that residence that he was getting the fentanyl from “Mike”, which matches the accused’s first name. And we know that, once Watson returned from Mike’s, he gave the fentanyl to Knoll.

65The Crown is not held to a standard of proof of absolute certainty. There is no requirement that the police actually see a hand-to-hand exchange between the accused and Watson, for example.

66There is no need to rely at all on the evidence of Watson, who is completely unreliable and incredible as a witness. His memory is terrible. His testimony was rambling, scattered, and at times unresponsive. He was nearly impossible to cross-examine. His criminal past and involvement in the drug subculture work against his trustworthiness. I do not place an iota of faith in his evidence.

67The evidence of the police alone, however, prove beyond a reasonable doubt that Watson left the company of Knoll near the Children’s Aid Society building, walked to the accused’s apartment, got the fentanyl from Mike as he had advertised to Knoll (who was Mr. Bemister), returned to Knoll within a fraction of time and then gave the fentanyl to Knoll.

68I am sure that Mr. Bemister trafficked fentanyl to Watson on August 14, 2013. Consequently, I find the accused guilty of that offence.

Did Watson get the Hydromorphone (the Dilaudid pills) from Mr. Bemister?

69I am not sure that the accused gave the pills to Watson that the latter was found by the police to be in possession of after being arrested on August 15, 2013.

70At the time, Watson told the police that he got the pills from “a guy”. He never said from whom, or when, or where.

71Unlike the situation with the fentanyl, there is no “Knoll” figure in the equation on August 15th to fill in the gaps.

72We have the following: (i) text messages between Watson and a telephone number believed to be that of the accused on August 14 and 15, 2013 that look suspicious but do not clearly refer to narcotics of any kind, never mind pills, (ii) Watson being seen by the police attending at the accused’s apartment not long before Watson was arrested and found to be in possession of the four pills, and (iii) evidence that Mr. Bemister, in August 2013, had a prescription for the same type of pills, including the same strength, that Watson had on his person when he was arrested by the police.

73Collectively, that evidence makes me very suspicious, however, that is not enough. Without the equivalent of a “Knoll” figure on August 15th, and in the absence of anything incriminating said by Watson about the accused at the time of his arrest, and in light of the fact that, according to Matheson, there was evidence that Watson was himself dealing narcotics similar to Dilaudid in August 2013, I have a reasonable doubt as to whether Watson got those pills that were seized from him on August 15th from Mr. Bemister.

74It follows that the accused must be acquitted of the charge of trafficking hydromorphone.

Possession of Fentanyl – Count 3 (as amended)

75The verdict on this count turns on whether Mr. Bemister had in his residence when it was searched by the police on September 12, 2013 too much fentanyl (more than what he was lawfully prescribed to possess).

76In short, I do not know the answer to that question.

77The police and the Crown have done a commendable job and have gone to great lengths to demonstrate that Mr. Bemister, as of September 12, 2013 when his residence was searched by the police, possessed more fentanyl than what his most recent prescription permitted – seven extra full patches. I accept that.

78But does that mean that the accused possessed too much fentanyl such that his otherwise lawful possession of that substance under prescription became unlawful?

79Maybe. Maybe not.

80If the accused had too many patches of fentanyl because he was acquiring it illegally, on the street for example, than yes I could conclude that the excess number of patches seized by the police on September 12th (not very many, I might add) were being possessed by the accused unlawfully.

81The same could be said if the accused had too many patches because he was deceiving the physicians and/or the pharmacies in to providing him, unknowingly, with duplicate prescriptions.

82These are just two examples of ways for the Crown to get to where it wants the Court to go.

83But what if Mr. Bemister had too many patches simply because he had leftover ones from a prior lawful prescription? Then I would have no confidence in finding anything illegal or even improper about the excess number of patches (again, not very many).

84Each of the above three scenarios is equally plausible. I could reasonably infer any one of them.

85In closing submissions, the Crown argued that perhaps the Court could find that Mr. Bemister has not proven that he had any lawful prescription for fentanyl at all. With respect, that would be contrary to the entire presentation of the case at trial and the theory of the Crown from the outset of the trial. There is no question that the police themselves were satisfied that the accused had a lawful prescription for fentanyl.

86The Crown also points to the partial pieces or strips of suspected fentanyl seized by the police from Mr. Bemister’s residence, in addition to the relatively small number of actual excess patches. The problem is that none of those pieces or strips were analyzed and proven to be fentanyl.

87In summary, I know that Mr. Bemister had multiple prescriptions for fentanyl leading up to September 12, 2013. I know that the most recent one permitted him to take two patches per day for 28 days. I know that, based on the police calculations which I accept, the accused had more patches of fentanyl at his residence on September 12th than he appeared to be permitted to possess according to the most recent prescription.

88What I do not know is whether Mr. Bemister had more patches of fentanyl than he had been lawfully prescribed at any time before September 12th.

89In closing submissions, the Crown argued that nobody goes to get more prescribed medication if the person already has some remaining. Respectfully, it would be unsafe to draw that conclusion. It is speculative. There is no evidence to support it. And further, in fact, it is contrary to what I think is common experience.

90I have a reasonable doubt as to whether Mr. Bemister unlawfully possessed fentanyl on September 12, 2013. Accordingly, he must be found not guilty of that charge.

Possession of Proceeds of Crime – Count 5

91The key issue here is whether the relatively large amount of cash ($4840.00) found by the police when searching the accused’s residence on September 12, 2013 was from trafficking narcotics, and thus, constitutes proceeds of crime.

92The Crown’s evidence is thin on this count. There is nothing reliable to suggest that Mr. Bemister was trafficking in narcotics beyond the one fentanyl transaction with Watson on August 14, 2013, which of course would not have generated proceeds that bear any connection to $4840.00 in cash.

93Nothing of an evidentiary value in terms of alleged trafficking communications was found on Mr. Bemister’s cell phone. The communications with Mr. Bemister’s cell phone that were found on Watson’s phone are limited in time and do not obviously involve narcotics.

94No debt list was found.

95The Crown points to the notebook seized by the police from Mr. Bemister’s residence, Exhibit 5 at trial, and the fact that the expenses outlined therein appear to exceed the income. Even accepting that observation as correct, it is a quantum leap to conclude that the cash was from what must have been numerous incidents of drug trafficking.

96I do not really believe that the money was to purchase a truck, which conclusion the Defence argues given the markings on the envelopes that contained the money and the contents of Exhibit 5 in terms of information about driving instructions (which information might have been recorded in the notebook by the accused in order to prepare for a driver’s licence test), however, I certainly cannot be sure that the accused amassed $4840.00 in cash from drug trafficking.

97Thus, on count 5, Mr. Bemister is acquitted.

Prohibited Weapons – Counts 10 and 11

98These charges turn on two issues: (i) whether either knife seized by the police from Mr. Bemister’s residence in September 2013 is a prohibited weapon within the definition at paragraph (a) of subsection 84(1) of the Criminal Code, specifically, whether it has a blade that opens automatically by gravity or centrifugal force or by hand pressure applied to a button, spring or other device in or attached to the handle of the knife, and (ii) if so, whether Mr. Bemister knew that.

99In closing submissions, the Crown conceded that an acquittal must be entered on one of the two prohibited weapons charges because only one of the two knives seized by the police from Mr. Bemister’s residence in September 2013 opened automatically by gravity or centrifugal force when demonstrated by Holovaci during his testimony at trial.

100Thus, on count 10, I find the accused not guilty.

101On count 11, Holovaci, an experienced police officer of considerable size, was able to flick the knife hard and downwards in the Courtroom, exposing the blade.

102I am satisfied that the said knife is a prohibited weapon.

103But I am not satisfied that Mr. Bemister knew that the knife could be opened in that manner.

104The Crown points to the collection of swords throughout the accused’s residence. I am not certain how that is relevant except to invite the Court to find that the accused is a connoisseur of weapons and, thus, is more likely to have known that the knife could be opened automatically by gravity or centrifugal force. I decline to accept that invitation. I think that it is too much of a stretch.

105I adopt the following comments of Justice Durno, sitting as a Summary Conviction Appeal Court, at paragraph 26 of the decision in R. v. Catroppa, 2003 CarswellOnt 3689 (S.C.J.).

26 The necessary knowledge of the characteristics which make the knife a prohibited weapon may be inferred from the possession, not must be inferred from possession, absent the accused meeting an evidentiary burden. All of the evidence must be examined. Here the appellant’s friend testified he opened the knife manually. The knife can be opened manually. An examination of the knife reveals no button or other mechanism on the handle to suggest it has the capacity to open be a flick of the wrist.

106In that case, the conviction entered in the Court below was quashed and a new trial ordered.

107In our case, there is insufficient evidence to infer that Mr. Bemister knew the characteristics that made the knife in question a prohibited weapon. I do not know how long he had it. I do not know if or how he used it. I do not know if he said anything to the police about it. I do not know anything, really, except that the knife was found in his apartment, could be opened manually and, in the case of Holovaci, could be opened automatically by flicking it.

108I find the accused not guilty of possession of a prohibited weapon, count 11.

IV. Conclusion

109For all of the above reasons, on the charges that were tried, the verdicts are as follows.

Count 1 – trafficking fentanyl - guilty.

Count 2 – trafficking hydromorphone – not guilty.

Count 3, as amended – simple possession of fentanyl – not guilty.

Count 5 – possession of proceeds of crime – not guilty.

Counts 10 and 11 – possession of prohibited weapons – not guilty.

Conlan J.