CITATION: Her Majesty the Queen v. Nuttall, 2016 ONSC 7777
COURT FILE NO.: CR-16-011-0000
DATE: 20161212
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Ms. Elizabeth Barefoot, for the Federal Crown
- and -
Druin Nuttall
Mr. Douglas Grace, for the Accused
Accused
HEARD: December 5, 6, 7 & 9, 2016
REASONS FOR JUDGMENT
Conlan J.
I. Introduction
The Charges
[1] The accused is charged with possession of cocaine for the purpose of trafficking. The formal charge, as amended, reads:
Druin Nuttall stands charged that, on or about the 15th day of October, 2015 at the County of Grey in the Judicial Region of Central West, did possess a substance included in Schedule I to wit: cocaine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act.
[2] I set out here the essential elements of that offence, each of which the Crown must prove beyond a reasonable doubt:
i. that Mr. Nuttall was in possession of a substance;
ii. that the substance was cocaine;
iii. that he knew that the substance was cocaine; and
iv. that he had possession of cocaine for the purpose of trafficking in it.
[3] Mr. Nuttall is also charged with two counts of simple possession of two different controlled substances. The formal charges read:
AND FURTHER THAT Druin Nuttall stands charged that, on or about the 16th day of October 2015 at the City of Owen Sound in the Judicial Region of Central West, did possess a substance included in Schedule 1 to wit; methamphetamine contrary to section 4(1) of the Controlled Drugs and Substances Act.
AND FURTHER THAT Druin Nuttall stands charged that, on or about the 16th day of October 2015 at the City of Owen Sound in the Judicial Region of Central West, did possess a substance included in Schedule 1 to wit; codeine contrary to section 4(1) of the Controlled Drugs and Substances Act.
[4] The Crown must prove each of these essential elements beyond a reasonable doubt:
i. that Mr. Nuttall was in possession of a substance;
ii. that the substance was methamphetamine (count 2) or codeine (count 3); and
iii. that he knew that the substance was methamphetamine/codeine.
An Overview of the Facts
[5] In the evening on October 15, 2015, after a few months of police investigation, Mr. Nuttall was stopped by the police while driving northbound on Highway 10, in Grey County (just north of the village of Markdale). He was the only occupant of the car, which vehicle was owned by his girlfriend.
[6] The accused was arrested for possession of cocaine for the purpose of trafficking.
[7] The authorities believed that Mr. Nuttall was picking up cocaine in the Toronto area and transporting it to Owen Sound for the purpose of trafficking in it.
[8] After the arrest at the roadside, Mr. Nuttall was then searched by the police and found to be in possession of, among other things, $440.00 in cash (twenty-two $20.00 bills).
[9] The car was also searched by the police. Inside a backpack was found 29.4 grams of cocaine. Three cellular telephones were also seized by the police.
[10] The police then searched the accused’s residence, which he shared with others. They seized some items with cocaine residue on them, other things believed to be indicative of drug trafficking (like a digital scale, for example), and a half-full bottle of liquid codeine.
[11] The police also searched the electronic devices that had been seized at the roadside. Photographs were taken of text messages that were on one of those cellular telephones.
The Trial
[12] Over three days of evidence in Owen Sound, for the Crown, I heard testimony from the following Ontario Provincial Police officers: Jeffrey Armstrong (a surveillance officer), Mark Johnston (the team’s supervisor), Jeff Dudley (an assisting officer), Mark Thompson (the arresting officer), Steve Whitehouse (the officer-in-charge of the investigation and the affiant of the search warrant application for the residence), and Heather Kowalsky (the property vault manager at the police station where the exhibits were kept).
[13] It should be noted that much of the evidence given by those officers related to the Defence Charter Application. A blended hearing was conducted as agreed to by counsel. This Court’s decision on the Charter Application was released previously.
[14] The Defence called no evidence at trial, although the audio-video recorded statement given by Mr. Nuttall to officers Thompson and Whitehouse, upon arrest, was played as part of the Crown’s case at trial.
[15] The voluntariness of that statement was admitted by the Defence.
The Presumption of Innocence
[16] Mr. Nuttall has no burden to prove anything – that rests entirely on the Crown.
[17] For each charge, the prosecution must prove each and every essential element beyond a reasonable doubt. That means more than probable or likely guilt. It means that the Court must be sure about the guilt of the accused before finding him so.
Instruction on the Evidence of the Accused
[18] As Mr. Nuttall’s interrogation statement was introduced as part of the Crown’s case at trial, and as that statement is exculpatory on the issue of whether Mr. Nuttall intended to traffic the cocaine that he admitted to possessing (that seized from the car), I must keep in mind the following.
[19] If I believe Mr. Nuttall when he told Thompson and Whitehouse that the cocaine seized from the car was for personal use (see, for example, page 16 of the transcript of the statement), I must find him not guilty on count 1 of the Indictment but guilty to the lesser and included offence of simple possession of cocaine.
[20] If I do not believe that evidence of Mr. Nuttall but find that it leaves me with a reasonable doubt as to whether he possessed the cocaine seized from the backpack in the car for the purpose of trafficking in it, I must acquit him of the charge as laid but find him guilty of simple possession of cocaine.
[21] If I completely reject that evidence of Mr. Nuttall, I may find him guilty on count 1 only if the rest of the evidence at trial that I do accept proves, beyond a reasonable doubt, that the 29 or so grams of cocaine were possessed by the accused for the purpose of trafficking in it (in this case, selling it to someone else).
II. Analysis
[22] With experienced Defence counsel, the beauty is that I can confine the analysis to the contentious issues only as raised in closing submissions.
[23] I will begin with the less serious charges – counts 2 and 3 on the Indictment. Both counsel spent very little time dealing with those two counts in their closing submissions at trial.
Simple Possession of Methamphetamine – Count 2
[24] It is undisputed that the police seized from the accused’s bedroom in the basement of the home, inside a dresser, a digital scale that was sent to Health Canada for analysis and found to contain three controlled substances including methamphetamine (see the Certificate of Analyst marked Exhibit 10 at trial).
[25] Continuity is not an issue raised by the Defence.
[26] The Defence does not argue against findings of knowledge and control of that scale on the part of Mr. Nuttall.
[27] The Defence makes two submissions.
[28] First, the Defence argues that there is no evidence that the accused was provided proper notice of the Crown’s intention to rely upon the Certificate of Analyst. That, it is submitted, is fatal to the charge. R. v. Bowles, [1974] O.J. No. 231 (C.A.), at paragraph 10.
[29] I do not accept that argument.
[30] Here, Mr. Grace candidly acknowledges that he, as counsel for Mr. Nuttall, had notice of the analysis and the Crown’s intention to rely upon it at trial. It is further acknowledged by the Defence that the issue of notice, or lack thereof, was not raised at any time during the trial until closing submissions.
[31] In those circumstances, in my view, it would be an injustice to dismiss the charge on the technical ground that actual evidence of what is undisputed notice was not filed during the trial. Besides, the matter could be easily cured by permitting the Crown to re-open its case in order to file proof of service of the requisite notice.
[32] In other words, although not filed, I cannot ignore that the “condition precedent” spoken about by the Court of Appeal for Ontario at paragraph 10 of the Bowles, supra decision was complied with vis a vis the accused and could be quickly complied with vis a vis the Court, without causing any prejudice to Mr. Nuttall.
[33] Second, it is submitted by the Defence that the minute amount of methamphetamine on the scale amounts to evidence only of prior but not current possession, and thus, the charge has not been made out. R. v. McBurney, [1975] B.C.J. No. 1060 (C.A.), at paragraph 3.
[34] Again, I disagree.
[35] In McBurney, supra, the Court acknowledged, at paragraphs 5 and 6, that the conclusion in that case might well have been different if the quantity of the substance, although very small, was at least measurable, or of some quantity, or more than a microscopic trace amount.
[36] In McBurney, supra, the cannabis leftover inside the pipe was described by the Court as “nothing, in reality” (paragraph 7).
[37] The same cannot be said for the methamphetamine in our case. It was enough to separate out from other substances on the digital scale, analyze and test positive. And it was not clearly indicative of leftover remnants of something consumed previously, as was the situation in McBurney, supra.
[38] Having dealt with the two issues raised by the Defence, I find Mr. Nuttall guilty of simple possession of methamphetamine.
Simple Possession of Codeine – Count 3
[39] It is undisputed that the police seized from the accused’s bedroom in the basement of the home, on top of the dresser, a half-full bottle of liquid that was sent to Health Canada for analysis and found to contain codeine (see the Certificate of Analyst marked Exhibit 11 at trial).
[40] Continuity is not an issue raised by the Defence.
[41] Again, the Defence does not argue against findings of knowledge and control of that item on the part of Mr. Nuttall.
[42] The Defence makes just one argument: can the Court be sure that the accused’s possession of that controlled substance was unlawful given that it appears to have been found by the police in a commercially-sold bottle with a prescription label that looks like it was ripped off?
[43] My answer to that question is yes.
[44] I agree with Ms. Barefoot that, as a regulated controlled substance, codeine in any form is illegal to possess without, for instance, a lawful prescription. I am not aware of Mr. Nuttall having been prescribed codeine.
[45] Consequently, I find Mr. Nuttall guilty of simple possession of codeine.
Possession of Cocaine for the Purpose of Trafficking – Count 1
[46] This charge was, by far, the focus of the evidence and of both counsel’s submissions at trial.
[47] After much reflection, I have concluded that the Crown’s case falls short of proof beyond a reasonable doubt that Mr. Nuttall’s purpose for possessing the 29 odd grams of cocaine seized from the car was to traffic in it, and thus, I find him not guilty on count 1 but guilty of the lesser and included offence of simple possession of cocaine.
[48] I agree with Ms. Barefoot that several things point in favour of a finding that Mr. Nuttall was dealing in cocaine and intended to traffic what was seized by the police from the backpack in the Honda Civic. Those factors include but are not limited to:
(i) the quantity – 29 grams of cocaine would never be consumed in one sitting (without death), and very likely not even over a few days;
(ii) the digital scale – something that could have been used by the accused to measure out quantities of cocaine for resale, which may have been why it tested positive for cocaine;
(iii) the baggies, especially where they were found (in the accused’s bedroom rather than the kitchen, for example);
(iv) the cash - $440.00 in twenty dollar bills seized from the accused at the roadside, combined with Mr. Nuttall’s relatively modest disability income;
(v) the multiple cell phones seized from the car – it seems odd to have more than one of them; and
(vi) the text messages, particularly those around the time of the stop of the car on the evening of the 15th of October, 2015.
[49] I also agree, however, with Mr. Grace that many of those things listed above are closer to neutral factors than they are in favour of trafficking. For instance, to take one of them, the quantity was not spread over several smaller increments and was not so large that it defies common sense to have been for personal use by a heavy consumer over some time.
[50] Further, I agree with Mr. Grace that many other considerations point away from a finding that the cocaine seized from the car was intended to be trafficked. Those factors include but are not limited to:
(i) the absence of any debt lists, which the police fully expected to find somewhere;
(ii) the absence of any money besides that found on the person of Mr. Nuttall at the roadside, which the police fully expected to find;
(iii) the absence of proof of any cutting agent;
(iv) the absence of any narcotics at all, besides residue and the liquid codeine, found at the residence; and
(v) the absence of any surveillance of Mr. Nuttall having conducted what appeared to be a drug transaction.
[51] Added to the mix is the statement of Mr. Nuttall to the police. The accused was steadfast, at the roadside and at the police station, in maintaining that the cocaine was for personal use. Neither Thompson nor Whitehouse challenged the accused on that assertion much, if at all, during the interrogation.
[52] I am aware that the Court may accept all, some or none of what a person says, including the accused, however, it is somewhat ironic that the police and the Crown want this Court to believe that the accused was telling the truth when he spoke voluntarily with the police but only with regard to the incriminating details, like his knowledge and control of the backpack which contained the cocaine.
[53] I had a good opportunity to observe the accused during the interrogation. He appeared somewhat dishevelled and edgy, much like he did in the Courtroom throughout the trial. I do not intend that to sound mean but rather to signal my suspicion that he is a heavy user, probably an addict, of cocaine.
[54] Frankly, I cannot say that I really believe the denials put forward by Mr. Nuttall during his police statement. But they do contribute to my reasonable doubt as to whether the accused intended to traffic the cocaine that was seized from his backpack.
[55] Ms. Barefoot is correct that the text messages, filed on a disc as trial Exhibit 16, are incriminating. They, together with the accused’s admissions about the two cell phones (the third was broken), go some distance to tying Mr. Nuttall to drug trafficking activity. They certainly are the primary source of my not acquitting Mr. Nuttall on the first branch of the W.(D.) analysis.
[56] Two things about the texts that were unsaid during closing submissions by counsel are worth observing, however.
[57] First, although many of the messages look like they are speaking about cocaine, much of the lingo throughout the texts could also be attributed to marihuana, and we know that Mr. Nuttall is a chronic consumer of pot, under a valid licence, and involved with some friends in running a medical marihuana lounge in the Toronto area.
[58] Second, although the Crown submits that the repeated text messages from “Rob L” around the time of the motor vehicle stop support the notion that Mr. Nuttall was en route from Toronto to home but was scheduled to stop to traffic some of the cocaine to that person, it is interesting that there was nothing found in the backpack that would have aided that trafficking, such as other baggies, a scale, and/or something to cut the chunk of cocaine with.
[59] In the end, I have to look at the whole puzzle. It is not appropriate to single out individual items of evidence and ask whether any one of them, alone, proves to the requisite criminal standard an intention to traffic the cocaine.
[60] On the totality of the evidence adduced at trial, including a consideration of the absence of evidence, I am more than just suspicious, especially given the text messages. I would go as far as to say that I think that Mr. Nuttall was probably dealing cocaine and was likely intending to do the same with what was discovered in his backpack.
[61] But I am just not sure of that.
[62] An intention to traffic is certainly one reasonable inference to be drawn from the proven facts, however, particularly given the accused’s statement and the absence of evidence summarized above, other reasonable inferences to be drawn are that Mr. Nuttall is a heavy marihuana user, a heavy cocaine user, is involved with other buddies in a marihuana lounge (which involvement takes him to and from Toronto regularly), and is generally someone immersed in the drug subculture but whose purpose for possessing the cocaine in the backpack was not to traffic in it.
[63] Accordingly, a finding of guilt on the lesser and included offence of simple possession of cocaine is the appropriate result.
III. Conclusion
[64] For all of the above reasons, the verdicts are as follows.
[65] Count 1 – not guilty of possession for the purpose of trafficking but guilty of simple possession of cocaine.
[66] Count 2 – guilty of simple possession of methamphetamine.
[67] Count 3 – guilty of simple possession of codeine.
[68] I thank both counsel for their assistance throughout the trial.
Conlan J.
Released: December 12, 2016
CITATION: Her Majesty the Queen v. Nuttall, 2016 ONSC 7777
COURT FILE NO.: CR-16-011-0000
DATE: 20161212
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
Druin Nuttall
Accused
REASONS FOR JUDGMENT
Conlan J.
Released: December 12, 2016