R. v. Odbert, 2017 ONSC 4390

CITATION: R. v. Odbert, 2017 ONSC 4390

COURT FILE NO.: 15-541

DATE: 2017/07/18

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MICHAEL ODBERT

Defendant

COUNSEL:

Frances Brennan, for the Crown

John Sipos, for the Defendant

HEARD: May 25, and September 6, 13 and 14, 2016

REASONS FOR JUDGMENT

Justice I.F. Leach (ORALLY)

Overview

[1] By way of overview, the accused, Michael Odbert, is charged with one count of possessing a controlled substance, (methamphetamine), for the purpose of trafficking, contrary to s.5(2) of the Controlled Drugs and Substances Act, (“the CDSA”).

[2] The charge stems from events said to have taken place in the City of Stratford and nearby communities on September 18 and 19, 2014. Evidence in that regard is outlined in greater detail below. In broad terms, however, the Crown says:

• that on September 18, 2014, members of the Stratford Police Street Crimes Unit (“SCU”), acting on information provided by the Woodstock police, began following the accused as he drove his vehicle in Stratford that evening;
• that various considerations, including information provided by the Woodstock police, observations made during the course of surveillance that evening and into the early morning hours of September 19, 2014, inferences drawn from those observations, information that became available while that surveillance progressed, and prior knowledge of the accused and his companion, led the officer in charge of the surveillance operation to believe there were reasonable and probable grounds to arrest the accused and his companion for possession of methamphetamine for the purpose of trafficking;
• that the accused and his companion accordingly were stopped and arrested for that offence, at the direction of the officer in charge of the surveillance, as the two men were travelling back into Stratford;
• that a search incident to arrest disclosed the presence of 16.4 grams of methamphetamine hidden in the sole of the accused’s left running shoe; and
• that the quantity of methamphetamine found in the possession of the accused, and lack of indicia of personal use, indicate possession of that substance for the purpose of trafficking, as opposed to possession for personal use.

[3] When the proceeding before me began on May 25, 2016, a number of verbally confirmed admissions were made in relation to time, date, jurisdiction and the identity of the accused, as well as the nature and quantity of the methamphetamine admittedly found in his shoe. At the same time, there was a further admission that the methamphetamine found in the accused’s shoe was in the possession of the accused, in the sense that the accused had knowledge and control over that 16.4 grams of methamphetamine.

[4] For reasons noted below, the matter then was adjourned for over three months.

[5] When the proceeding resumed before me on September 13, 2014, the above admissions were confirmed, detailed and supplemented, (e.g., by agreement on observations made by members of the SCU during the surveillance carried out on September 18 and 19, 2014), in a written document, filed as an exhibit, outlining further admissions made pursuant to s.655 of the Criminal Code of Canada.

[6] It also was formally admitted that, at the time of his arrest, the accused was found to be in possession of $315.50, with $280.00 of that amount in his wallet, and the remaining $35.50 in a pants pocket.

[7] Beyond that, the defence put the Crown to satisfaction of its onus of proving all essential elements of the charged offence beyond a reasonable doubt, including possession of the 16.4 grams of methamphetamine for the purpose of trafficking.

[8] However, by way of an appropriate formal application, the defence also submitted that the methamphetamine seized during the aforesaid search of the accused was obtained by the police pursuant to alleged contraventions of Mr Odbert’s right to be free from unreasonable search and seizure, (pursuant to section 8 of the Canadian Charter of Rights and Freedoms or “the Charter”), and/or his right not to be arbitrarily detained, (pursuant to section 9 of the Charter), in circumstances where the said methamphetamine accordingly should be excluded from evidence pursuant to s.24(2) of the Charter.

[9] The parties agreed that the matter should be addressed by way of a “blended” voir dire and trial proceeding.

Procedural History

[10] Before moving on to a consideration of the evidence, I pause to note and explain a number of procedural developments, (including the extended mid-hearing adjournment noted above), that effectively delayed progress of this matter. In particular:

• When the blended proceeding commenced before me on May 25, 2016, there were two defendants; i.e., Matthew Riordan, (Mr Odbert’s aforesaid companion on September 18 and 19, 2014), and the accused. Following the arraignment of both men and the entering of “not guilty” pleas, the proceeding opened with a number of formal admissions, (including the initial ones noted above), being summarized by the Crown. It was anticipated that the admissions would help to “streamline” the proceeding; e.g., by reducing the number of required witnesses. However, it then transpired that there was a misunderstanding between the parties concerning the extent of the admissions being made by Mr Odbert. In particular, when counsel for the accused confirmed that possession “for the purpose of trafficking” was not being admitted by the accused, (contrary to Crown counsel’s understanding of the situation), Crown counsel indicated that further Crown witnesses would be necessary, counsel for the accused indicated that the nature of anticipated cross-examination would change significantly, and all concerned agreed that the matter would require further Crown disclosure that could not be effected in short order. In the result, continuation of the trial was adjourned, on consent, to the first day of the next available trial sitting, in September of 2016, for scheduling of the anticipated continuation and completion of the blended proceeding within that trial sitting.
• When the matter came back before me on September 5, 2016, I was advised by counsel that a resolution was anticipated in relation to the charge against Mr Riordan, while the accused wished to proceed with the blended hearing of his trial and Charter application. Mr Riordan entered a plea that day, after which his matter proceeded in a separate and distinct manner. The blended hearing of the accused’s trial and Charter application were adjourned for hearing later in that trial sitting, on September 13 and 14, 2017.
• The adjourned blended hearing of the accused’s trial and Charter application then resumed on September 13, 2017, and concluded the following day, at which time I reserved my decision and adjourned the matter to the trial sitting commencing February 13, 2017, with the intention of rendering my decision during that trial sitting.
• When that proved impossible, the matter was adjourned to the next trial sitting in May of 2017, (my next scheduled attendance in Stratford), but that entire sitting then was devoted to another criminal matter.
• This matter necessarily then was adjourned to today, (my next attendance in Stratford), for rendering of my decision in relation Mr Odbert.

[11] With that explanation, I now move on to that decision, starting with some general comments about the evidence and my approach to that evidence.

Evidence – General comments

[12] During the blended proceeding before me, the Crown presented, in addition to a number of exhibits, (including the aforesaid written outline of s.655 admissions, as well as agreed photographs of the shoes of the accused and the packet of Methamphetamine found therein), testimony from two witnesses, both of whom are members of the SCU: Detective Jason Clarke, (the officer in charge of the relevant surveillance operation, who directed the arrest of the accused), and Detective Jeff Serf, (who was qualified as an expert to provide opinion evidence relating to the pricing, packaging and sale of methamphetamine). Copies of the curriculum vitae of Detective Serf, and a written outline of his anticipated expert opinion evidence, were tendered as additional exhibits.

[13] In addition to subjecting the Crown’s witnesses to cross-examination, the defence elected to present testimony from the accused, through whom further exhibits were introduced, (relating to matters concerning Mr Odbert’s employment, finances and participation in substance abuse treatment programs), and whom Crown counsel then cross-examined. Mr Odbert’s testimony included emphatic assertions that the methamphetamine admittedly found in his possession was intended only for personal use.

[14] I will have more to say about the aforesaid witnesses, testimony and exhibits during the course of these reasons, but think it appropriate to make some further general comments and observations now, before proceeding with further review of the evidence.

[15] First, although the majority of evidence presented was led by the Crown, I have in mind throughout my entire reasons and analysis that proper determination of cases is not achieved by simply counting witnesses, or having regard to the length of their testimony, as quality of evidence may very well prevail over quantity. As the trier of fact, I therefore am entitled, for example, to prefer the testimony of just one witness, rather than a number of others, depending on my assessment of the evidence.

[16] Second, I also have in mind, throughout my entire reasons and analysis, the presumption of innocence and the burden of proof upon the Crown. In particular, according to the constitutional guarantee in s.11(d) of the Charter of Rights, Mr Odbert is presumed to be innocent, and that presumption of innocence remains with him throughout this matter, from beginning to end, unless and until the Crown establishes his guilt with respect to the alleged offence beyond a reasonable doubt. That is a heavy burden and, in relation to elements of the charge against Mr Odbert that are not admitted, never shifts. In particular, Mr Odbert has no obligation whatsoever to establish his innocence.

[17] Third, although the Crown has the overall onus at trial to establish Mr Odbert’s guilt beyond a reasonable doubt, in relation to the alleged offence, I nevertheless also bear in mind that, insofar as Mr Odbert’s Charter application is concerned, Mr Odbert has the onus of proving, on a balance of probabilities, that there has been a constitutional infringement and that evidence obtained by any infringement should be excluded. See R. v. Sadikov, 2014 ONCA 72, [2014] O.J. No. 376 (C.A.), at paragraph 35.

[18] Fourth, as Mr Odbert chose to testify on his own behalf in this case, I am mindful of the principles underscored by R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, wherein the Supreme Court of Canada emphasized that reasonable doubt may arise in various ways; ways that are not restricted to acceptance of exculpatory testimony given by an accused. For example, in this particular case:

• It would not be appropriate to decide this case by simply determining whether I believe or disbelieve the testimony of Mr Odbert, including his assertions that the methamphetamine admittedly found in his possession was not for the purpose of trafficking.
• I instead have to consider all the admissible evidence, and decide whether I have been satisfied beyond a reasonable doubt that all the essential elements of the crime charged have been established.
• Certainly, for example, if evidence of the relevant methamphetamine is admissible, but I believe and accept Mr Odbert’s testimony that he did not possess it for the purpose of trafficking, then I obviously must acquit him of the particular offence charged, (i.e., possession of methamphetamine for the purpose of trafficking), although he still may be guilty of the lesser and included offence of simply possessing methamphetamine.
• However, even if I do not believe and accept Mr Odbert’s testimony, I must still acquit him of the offence charged if his testimony raises a reasonable doubt in my mind; e.g., as to whether he possessed the relevant methamphetamine, (if admissible), for the purpose of trafficking.
• Moreover, even if I do not believe Mr Odbert’s testimony, and his testimony does not leave me with a reasonable doubt as to whether the methamphetamine in his possession was for the purpose of trafficking, I must still ask myself whether, having regard to the evidence I do accept, and looking at the case in its totality, I am convinced that he is guilty of the offence charged beyond a reasonable doubt; i.e., because all the essential elements of the offence, including possession for the purpose of trafficking, have been established beyond a reasonable doubt.

[19] Finally, by way of general comments, I am mindful that “a reasonable doubt” is not an imaginary or frivolous doubt. Nor is it a doubt based upon sympathy or prejudice. Rather, it is a doubt based on reason and common sense, logically derived from the evidence or absence of evidence. See R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at paragraph 39.

[20] With the above preliminary observations, I turn now to a more detailed review of the underlying evidence.

Evidence – General facts – [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) application and possession

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

• The SCU is a designated unit, within the Stratford Police Service, tasked with the investigation of matters relating to controlled substances in the city of Stratford. One of the narcotics most frequently encountered by the SCU is methamphetamine. It poses one of the most significant narcotics-related problems within the city of Stratford, and is involved in 70 to 80 percent of the cases investigated by the SCU.
• Detective Clarke is an experienced and senior officer within the SCU. The past seven of his 13 years as a police officer have been spent within that unit. He was unable to quantify the precise number of methamphetamine cases in which he personally was involved, except to say that it was “well over one hundred”.
• On September 18, 2014:
  • Detective Clarke was working as the officer in charge of SCU investigations when, shortly after 6pm, he received a telephone call from Sergeant Becks, (a member of the Woodstock police service), with whom Detective Clarke had worked on many different previous occasions. Sergeant Becks informed Detective Clarke that she had information received from a confidential informant (“CI”) that day, indicating that the accused might be delivering methamphetamine to the city of Woodstock that evening. However, Sergeant Becks also indicated that the Woodstock police were occupied with other matters preventing their travel to Stratford, and accordingly asked if the SCU would be able to provide assistance in locating and providing surveillance in relation to the accused.
  • At the time of her initial call, Sergeant Becks did not provide Detective Clarke with any indication that the Woodstock police had information that the accused would be going to a more specific destination within Woodstock, (although Detective Clarke learned later in the evening that the Woodstock police had such information). Nor were any details provided concerning the accused’s intended means or route of travel, whether he would be traveling alone or with others, the quantity or value of the methamphetamine he was thought to be delivering, or the precise time of any such delivery that evening.
  • At the time of that call from Sergeant Becks, Detective Clarke was aware of an ongoing investigation relating to the accused, as the Stratford surveillance team had been asked by the Woodstock police to conduct prior surveillance in relation to the accused. In particular, on a previous date, (which Detective Clarke thought to have been on or about September 11, 2014, and definitely within 2-3 weeks of the call received from Sergeant Becks, although Detective Clarke was on vacation at the time preventing his direct participation), Woodstock police had followed Mr Odbert within Woodstock, and then from Woodstock into Stratford, where members of the SCU then had joined in the surveillance, following the accused to a number of different locations and apartment buildings within Stratford, in order to assist with identification of possible targets for further investigation by the SCU. Apart from having followed the accused from Woodstock to Stratford on the day in question, Detective Clarke was not otherwise aware of what the Woodstock police, as opposed to the SCU, had observed that day.
  • At the time of the call from Sergeant Becks requesting assistance, Detective Clarke nevertheless was aware that the Woodstock police also had engaged in other prior surveillance relating to the accused, on unknown dates, during which the accused had been followed from Woodstock to the Knights Inn motel in Kitchener. In that regard, Detective Clarke did not have any information indicating specifically what else may have been observed by the Woodstock police surveillance team, once the accused had arrived at the Knights Inn. However, Detective Clarke independently knew that the Knights Inn was a very popular destination for Stratford street level methamphetamine traffickers to obtain methamphetamine. In that regard, Detective Clarke had been to the Knights Inn on numerous occasions during his years with the SCU, and between 2009 and 2015, the SCU had stopped and arrested numerous individuals, on their way back to Stratford after being followed to the Knights Inn, who were found to be in possession of methamphetamine. Detective Clarke also had been involved in undercover operations in the summer of 2014, during which an undercover officer was sent into the Knights Inn, where he was able to purchase methamphetamine.
  • At the time of the call from Sergeant Becks requesting assistance, and even without efforts that evening to check the CI registry of the SCU, (a log maintained by the SCU to keep track of CIs providing information about other drug traffickers and users in the community), Detective Clarke also was aware of information supplied by a CI to the SCU in early 2014, indicating that there was a male drug trafficker in Stratford who was dealing in methamphetamine and living with the accused, and that the accused occasionally would drive that other male to and from the Knights Inn in Kitchener so that the male could purchase methamphetamine there. Detective Clarke was not personally handling the CI who supplied that information, and accordingly did not know how the relevant CI came to learn the information, or the relevant CI’s reputation for reliability. However, he was made aware of the information through the contemporaneous circulation of a written “CI report”, routinely provided to all members of the SCU to keep them apprised of available information within the unit to facilitate performance of its responsibilities. Detective Clarke also had reviewed the information again when the SCU had been asked to provide surveillance assistance to the Woodstock police in the weeks before September 18, 2014, as noted above.
  • As the SCU surveillance team was available at the time of Sergeant Beck’s call on September 18th, Detective Clarke informed Sergeant Becks that the SCU would assist as requested. He then instructed members of the SCU surveillance team to assemble and locate the accused.
  • Although certain members of the surveillance team were handlers of the local CIs who had supplied some of the above information already known to Detective Clarke, and other officer handlers not participating in the surveillance probably were available by telephone, it was not thought necessary at the time to access the CI registry or make renewed contacts with the relevant CIs prior to or during the surveillance to make inquiries as to whether any of them had further or updated information concerning the accused or others. In particular, Detective Clarke thought current observations by the surveillance team would provide a sufficient and immediately confirmed indication of any events taking place that evening.
  • At 6:30pm, (according to Detective Clarke’s contemporaneous notes), or 6:44pm, (according to the formal admissions in this trial), members of the SCU took up surveillance positions near 705 Devon Street, in the city of Stratford; a home the SCU believed to be the current residence of the accused.
  • At 8:23pm, members of the SCU, including Detective Clarke, observed the accused leave the Devon Street home in his vehicle; i.e., a maroon Impala, bearing plate no. BSMV574. The surveillance team thereafter followed the accused’s visible movements for the rest of the night, up until the time of his arrest. Throughout the course of the surveillance, the accused’s vehicle was driven by the accused.
  • From the Devon Street home, the accused drove to a pizza restaurant located in an area near the intersection of Ontario and Nile streets, in the city of Stratford, where the accused stopped for approximately 1-2 minutes to pick up a male later identified as Matthew Riordan. The two men then travelled east in the vehicle, along roads known as Perth County “line 33” and Highway 59, towards the city of Woodstock.
  • At 9:19pm, the vehicle stopped, for approximately two minutes, at a small gas station or garage business located on line 33, between the communities of Tavistock and Woodstock. The accused and Mr Riordan both exited the vehicle, and were observed using their respective mobile phones.
  • At 9:21pm, both men re-entered the vehicle, with the accused once again driving. The vehicle continued east to Woodstock, with members of the SCU following its progress. As members of the SCU surveillance unit and the accused’s target vehicle approached Woodstock, Detective Clarke was on the telephone with Sergeant Becks to provide updates on their location, and co-ordinate arrangements to have Woodstock police join in the surveillance. At that time, Detective Clarke was advised that the Woodstock police intended to arrest the accused if they were able to reach him before his arrival at a particular destination, still not specified to Detective Clarke.
  • When the accused’s vehicle entered Woodstock, the SCU observed the accused pull into and circle around a parking lot, (located on a street whose name Detective Clarke could not recall), before then immediately exiting the parking lot and driving on.
  • At 9:35pm, the vehicle stopped at a small two-story apartment building located at 742 Pavey Street in the city of Woodstock, (approximately one block away from the aforesaid parking lot). The accused and Mr Riordan both exited the vehicle, and entered the multi-unit apartment building.
  • The accused and Mr Riordan then remained in the Pavey Street apartment building for approximately 10 minutes, without Detective Clarke having any knowledge or information of the particular apartment unit the two men were attending, their actions within the building, or the persons with whom the two men may have been meeting. During those 10 minutes, the SCU and the Woodstock police continued to communicate, share information, and co-ordinate surveillance arrangements and intentions. In particular, as the Woodstock police took up stations around the building, and members of the SCU remained in the area, Detective Clarke learned from the Woodstock police that 742 Pavey Street had been the accused’s specific and expected methamphetamine delivery destination that evening, according to the information received by the Woodstock police.
  • Detective Clarke testified, and I accept, that in his mind, events up until that point, on the evening in question, had confirmed the accuracy of information supplied by the CI to the Woodstock police; i.e., in terms of the accused traveling from Stratford to Woodstock that evening, and proceeding to a specified address in Woodstock. However, Detective Clarke also acknowledged that he nevertheless still knew nothing about the general reliability of the CI who had supplied the information, how or when the CI had come by his or her information, whether the information relayed by the CI was first or second hand, or whether the CI in question was registered as an informant with the Woodstock police.
  • At 9:45pm, the accused and Mr Riordan exited the apartment building together, and got back into the same vehicle with the accused once again driving. At that point, the two surveillance teams decided that the SCU would continue to follow the accused, (as he was “a Stratford guy”), while the Woodstock police would continue to monitor the Pavey Street apartment building.
  • Leaving the Pavey Street apartment building and the city of Woodstock in their vehicle, the accused and Mr Riordan then travelled westbound on Highway 401, past exits leading to Stratford, with members of the SCU following and continuing to make observations.
  • At 10:24pm, the accused’s vehicle left Highway 401 using the exit at Westchester Bourne Road, passed south over Highway 401, and stopped at a “Husky” truck stop or gas station, (which also has a variety store and attached restaurant), located just off Highway 401 near its eastbound lanes. The accused drove up to the gas pumps at that Husky station, and both he and Mr Riordan exited the vehicle. While the defendant pumped gas into his vehicle, Mr Riordan entered the store/restaurant. Through the extensive windows of the store and restaurant, Detective Clarke could see that both were empty of customers apart from Mr Riordan, who was wandering through both businesses apparently looking “all around” for someone while continually checking his cellphone. Detective Clarke therefore instructed other members of the SCU to pay close attention to the Husky station’s parking lot, because a meeting with someone else seemed to be anticipated.
  • Shortly thereafter, at approximately 10:30pm, Mr Riordan exited the store and walked through and across the Husky station parking lot to meet with another man standing outside a parked pickup truck. A check of that vehicle’s licence plate confirmed that it belonged to Ray Burton, a man who had lived in Stratford before moving away a number of years earlier.
  • Mr Riordan and the man then entered the cab of the pickup truck to continue their meeting until approximately 10:37pm. During that time, movements within the pickup truck could not be seen clearly by Detective Clarke and members of the SCU. However, they could observe the movements of Mr Odbert, who pumped and apparently paid for his gas, (by entering the station’s store without the other two men), before returning to his vehicle to wait for Mr Riordan.
  • When Mr Riordan’s interaction with the other man in the pickup truck came to an end, Mr Riordan exited the pick-up and got back into the accused’s vehicle, with the accused once again driving.
  • Detective Clarke testified, and I accept, that he believed Mr Riordan and the man in the pick-up truck had engaged in a drug-related transaction. In that regard, Detective Clarke acknowledged that he was unable to see into the pick-up truck, or see whether Mr Riordan had anything in his hands when he got out of the pick-up truck. However, while engaged in surveillance operations over his many years with the SCU, (and its previous incarnation as the Stratford drug unit), Detective Clarke personally had witnessed hundreds of similar instances of parties deliberately meeting at a public location, entering a vehicle for a relatively brief period out of public view, and quickly parting ways, for the purpose of either purchasing/selling drugs or paying money owed for drugs. On its own, the observed activity of Mr Riordan and the other male therefore were highly indicative of a “quick exchange” drug transaction. In this particular case, however, Detective Clarke’s inference was buttressed by Mr Riordan being known, to Detective Clarke and the SCU, as a person involved in the trafficking of methamphetamine. In particular, Mr Riordan had been arrested on numerous occasions when he was found to be in possession of methamphetamine. Mr Riordan also had sold methamphetamine to undercover officers working with the SCU. Detective Clarke’s inference that there had been a drug transaction in the pickup truck also was buttressed by his personal familiarity with Mr Burton, who previously had been involved in the drug culture of Stratford, (although Detective Clarke had no memory or recollection that night of Mr Burton having any drug-related convictions). While Detective Clarke believed that he had just witnessed a drug transaction, no arrests were directed or made at that point, and the SCU surveillance team continued to focus on the accused and Mr Riordan while letting the other man go.
  • At 10:38pm, the accused and Mr Riordan left the Husky gas station, and proceeded east on Highway 401 towards the city of Kitchener, passing exits leading to Stratford and Woodstock. Based on the aforesaid indications Detective Clarke and the SCU had received about the accused attending at the Knights Inn during previous surveillance operations, confidential informant information described above indicating that the accused occasionally would drive a male occupant of his residence to pick up methamphetamine from the Knights Inn, and additional confidential informant information received by the SCU indicating that Mr Riordan obtained his supply of methamphetamine through visits to the Knights Inn, Detective Clarke and the surveillance team formed a belief that the accused and Mr Riordan probably were heading to that Kitchener destination to obtain more methamphetamine.
  • The accused and Mr Riordan did indeed then proceed directly to the Knights Inn, on Weber Avenue in Kitchener. Arriving there at 11:33pm, the accused and Mr Riordan drove into the motel’s parking lot, before both got out of the accused’s vehicle and entered the building. For their part, Detective Clarke and other members of the SCU surveillance team took up positions around the Knights Inn to “contain” the location and make observations from a distance. They did so because experience had made them aware that those engaged in illicit activities at the Knights Inn, (including traffic in methamphetamine and other illicit drugs, as well as prostitution), usually were very “surveillance conscious”, and made a regular practice of checking for police monitoring.
• On September 19, 2014:
  • At 12:31am, the accused exited the Knights Inn and walked to a nearby Tim Horton’s restaurant located on the same street, meeting momentarily with an unknown male near a “Wimpy’s” restaurant. As he made his way back to the Knights Inn, the accused was looking into vehicles parked near the Tim Horton’s restaurant. Detective Clarke inferred, from such actions and his previously described awareness of the “surveillance conscious” clientele of the Knights Inn, that the accused was checking to see whether the police might have anyone in the area carrying out surveillance in relation to the accused or others. When the accused returned to the Knights Inn, the SCU surveillance team continued to “contain” the location.
  • At 1:20am, the accused again walked from the Knights Inn to the same Tim Horton’s restaurant, where he made a purchase before returning to the Knights Inn. He did not appear to be looking into parked vehicles while walking to or from the Tim Horton’s restaurant on that occasion.
  • Apart from the two described visits by the accused to the nearby Tim Horton’s restaurant, the accused and Mr Riordan remained at the Knights Inn for approximately two hours. During that time, the police were unable to make any observations of what rooms the two men may have entered, and whom they may have met. No transactions of any kind were observed. However, based on the information and experience described above, (which had led Detective Clarke to believe that the two men had gone to the Knights Inn to obtain methamphetamine), and additional information obtained through police investigations carried out in relation to the Knights Inn during the summer of 2014, Detective Clarke and the SCU surveillance team believed that Mr Riordan and Mr Odbert were obtaining methamphetamine from Lorena Howse and/or Brian Allen; i.e., the two individuals known to be dealing methamphetamine from the Knights Inn, (although neither Ms Howse nor Mr Allen were seen by members of the SCU during their “containment” surveillance of the Knights Inn on this particular occasion). In that regard, Detective Clarke testified, and I accept, that the longer meeting at the Knights Inn was consistent with the more extended type of meeting that typically would take place between higher level suppliers, (such as Ms Howse and Mr Allen), and those lower down the trafficking chain who would be purchasing supply; e.g., as such transactions usually took place in a less public and more secure location, with time being needed to weigh out desired quantities of supply, (which the higher level source frequently would not know in advance), and time being spent for socialization between the higher level suppliers and their downstream purchasers. Moreover, based on Detective Clarke’s experience, those engaging in such purchasers from higher level suppliers often deliberately linger, as a tactic to avoid the sort of “quick exchange” movements, (such as those seen at the Husky gas station), which police frequently view as highly indicative of drug trafficking activity.
  • At 1:27am, the accused and Mr Riordan both exited the Knights Inn, and got back into the same vehicle. They proceeded to travel west, on Highway 7/8, directly towards the city of Stratford. During the course of that drive, Detective Clarke formed the belief that the accused and Mr Riordan had picked up additional methamphetamine, and were heading “home”. At that point, Detective Clarke made a determination that he had reasonable grounds to arrest both the accused and Mr Riordan for possession of a controlled substance, believed to be methamphetamine, which they both were believed to be transporting back to the city of Stratford that night. Detective Clarke therefore contacted uniformed police officers in Stratford to stop the accused’s vehicle, on its arrival in Stratford, and to arrest the accused and Mr Riordan for possession of a controlled substance believed to be methamphetamine. In that regard, Detective Clarke emphasized, and I accept, (even though his notes necessarily made after the fact were not as detailed as they ideally might have been), that he based his determination not on any one particular consideration, but on his experienced assessment of the totality of information received and observations made up until that point, detailed above but including the following:
    • information that Stratford’s street dealers in methamphetamine were traveling to and from the Knights Inn in Kitchener to obtain methamphetamine, mainly from Ms Howse and Mr Allen;
    • information that the accused had been assisting in drug trafficking, by driving a Stratford trafficker in methamphetamine, living in the same residence as the accused, to and from the Knights Inn to pick up supplies of methamphetamine;
    • information that the accused had been followed to the Knights Inn during earlier surveillance operations;
    • information that Mr Riordan also visited the Knights Inn to pick up his supplies of methamphetamine;
    • information that the accused was the target of an ongoing investigation by the Woodstock police for delivering methamphetamine to their city from Stratford;
    • CI indications that the accused would be travelling from Stratford to a specific address in Woodstock to deliver methamphetamine on the evening of September 14, 2014, and surveillance observations confirming the accuracy of the CI’s indications concerning the accused’s time of travel and destination; and
    • observations consistent with what Detective Clarke believed to be at least three separate drug-related transactions that evening; i.e., delivery of methamphetamine from Stratford to the Pavey Street apartment building in Woodstock; the “pick-up truck” meeting at the Husky gas station to sell drugs and/or collect money owed in relation to drugs; and attendance at the Knights Inn to obtain more methamphetamine.
  • In cross-examination, Detective Clarke acknowledged that, in his view, it was the observation of what he perceived to be three drug transactions that drove matters over the line, in terms of this belief that there were sufficient grounds to allow an arrest. In my view, however, that indication was in no way inconsistent with Detective Clarke’s emphasis that he relied on the totality of the circumstances and information available to him, outlined above, in making his determination. In particular, I think Detective Clarke made it abundantly clear that his interpretation of the observations made that evening was being influenced by the other knowledge and information available to him, including but not limited to information supplied by confidential informants.
  • Having said that, Detective Clarke candidly acknowledged that, in making his determination, he was relying in part on information supplied by CIs whom he personally did not handle, and whose reputation for reliability he personally did not know, was not able to confirm personally, and/or did not personally investigate during the course of the surveillance operation that evening, (e.g., through accessing the SCU’s registry of CI information or otherwise). Nor did he know whether the information supplied by the relevant CIs was first or second hand information. Detective Clarke similarly acknowledged that he had not made efforts to see whether any further and/or more recent information had been supplied by those CIs in relation to the accused and/or Mr Riordan.
  • At 1:56am, after the vehicle carrying the accused and Mr Riordan had re-entered Stratford, it was stopped by uniformed officers of the Stratford police, acting in accordance with Detective Clarke’s instructions, and the accused and Mr Riordan both were arrested.
  • During the course of searches incident to arrest, police officers located 16.4 grams of methamphetamine in the sole of the accused’s left running shoe. An additional 7.4 grams of methamphetamine were located in a pocket of Mr Riordan’s trousers.
  • Apart from the aforesaid quantities of methamphetamine, and possibly the currency admittedly found in the accused’s possession, there was no evidence that any other drug-related or potentially drug-related items, (such as a debt list, scales or packaging material), were found in the vehicle or on the persons of the accused or Mr Riordan. To the contrary, at the time of the abortive commencement of the hearing before me, on May 25, 2016, Crown counsel indicated and confirmed that no such items had been found when the two men were arrested.

[22] Again, the above findings constitute the basic framework of my analysis.

[23] They are based primarily on the admissions outlined above, and the testimony of Detective Clarke. In that regard:

• Detective Clarke’s testimony concerning the above matters inherently was not affected by the additional expert opinion testimony of Detective Serf, whose evidence was focused on a suggested additional inference to be drawn from the above facts; i.e., in relation to possible possession for the purpose of trafficking.
• In my view, the testimony from the accused did not contradict, in any material way, Detective Clarke’s testimony as to what the police observed on September 18 and 19, 2017, nor Detective Clarke’s testimony as to the knowledge, information and grounds upon which the detective relied in directing the arrest of the accused and Mr Riordan. Mr Odbert’s testimony instead focused on offering additional information and explanations for what the police were observing on the evening in question, including an explanation as to why the circumstances did not involve his possession of methamphetamine for the purpose of trafficking. Indeed, defence counsel indicated at the outset of Mr Odbert’s testimony that he was being called as a witness to address the issue of possession for purposes of trafficking.
• In my view, Detective Clarke’s testimony also was not shaken, in any material way, by cross-examination. Without limiting the generality of the foregoing, I am mindful that, in cross-examination, Detective Clarke acknowledged his view that it was the observation of what he perceived to be three drug transactions, during the course of police surveillance on September 18 and 19, 2014, that drove matters over the line, in terms of this belief that there were sufficient grounds to allow an arrest. Again, in my view, that indication was in no way inconsistent with Detective Clarke’s emphasis that he relied on the totality of the circumstances and information available to him, outlined above, in making his determination. In particular, as already indicated, I think Detective Clarke made it abundantly clear in the course of his testimony that his interpretation of the observations made that evening was being influenced by the other knowledge and information available to him, including his knowledge and awareness of information previously supplied by confidential informants. He clearly did not base his interpretation of events, and his determination of whether there were grounds to arrest the accused and Mr Riordan, simply on what was being observed.

[24] As for the expert testimony provided by Detective Serf, opining that the evidence suggested possession of methamphetamine for the purpose of trafficking, his assertions and acknowledgments during cross-examination included the following:

• A primary factor on which he relied, in forming his opinion, was the quantity of methamphetamine found in Mr Odbert’s possession. It was far more than any amount Detective Serf personally had ever seen or heard purchased for personal use. In that regard, Detective Serf emphasized that, based on his experience, (albeit admittedly limited to five years as a police officer and 20 months working with the SCU), most methamphetamine users live on the lower economic end of the spectrum, without jobs, and therefore tend to have limited access to funds with which to purchase large quantities of methamphetamine at any one time. (Detective Serf admittedly was not aware of Mr Odbert’s financial circumstances or employment status at the time of his arrest.) In Detective Serf’s experience, most users also were focused on using the methamphetamine they acquire very quickly, in order to achieve the “high” they desire. Moreover, many users are known to each other, leading to a fear of having their supplies of methamphetamine taken by others through robbery, thereby providing a further incentive to keep the amount of methamphetamine in current possession to a minimum. In the result, Detective Serf’s experience suggested that most users would purchase only the amount of methamphetamine required to satisfy their daily need, (often 0.5 grams to a gram), before focusing after use on acquiring the next amount to satisfy their daily need. Such needs depend on individual tolerance, acquired through length of use, but generally range from a low of 0.5 grams to 2 or 3 grams for users at the “very top end”, with 3.5 grams being the largest individual user purchase Detective Serf had “heard about”.
• Another factor relied upon by Detective Serf in the formation of his opinion was the absence, at the time of Mr Odbert’s arrest, of any indicia of personal methamphetamine use, such as a pipe or other objects frequently employed to smoke, inject or ingest the substance. In Detective Serf’s experience, a lot of methamphetamine users have such items in their possession when they are arrested, whereas those arrested in possession of large amounts of the drug, (indicative of trafficking for the reasons outlined above), do not.
• Detective Serf acknowledged that Mr Odbert was not found in possession of a “debt list”; i.e., a list of names and corresponding amounts of money owed by those who have received supplies of a drug without immediate payment, which therefore indicates trafficking activity. However, Detective Serf felt the absence of such a list was not a “hindrance” to his opinion that Mr Odbert was in possession of methamphetamine for the purpose of trafficking. In particular, Detective Serf has found that many of those trafficking in narcotics have become more knowledgeable about police reliance on debt lists as an indicator of trafficking, and therefore now take care to keep such information secured at home or on a password-protected phone.
• Detective Serf also felt that his opinion was not “voided” by the absence, at the time Mr Odbert was arrested and searched, of any measuring devices or packaging material, such as scales or baggies. In particular, while the presence of such items may be indicative of trafficking, the reality is that there also are intervals between the time lower level traffickers obtain their undivided quantities of product from those “higher up” the chain of supply, and the time lower level traffickers then take steps to subdivide and package their drugs for resale, (in order to facilitate quick transactions that minimize the risks of detection). The latter activities frequently are done at home, or in some other secure place, such that traffickers frequently do not have measuring or packaging devices on their person when they go to purchase their drug supplies from others.
• As for the amount of currency found in Mr Odbert’s possession at the time of his arrest, (i.e., $315.50), that effectively was viewed as a somewhat neutral factor by Detective Serf. In particular, as trafficking in narcotics is a “cash business”, the amount of currency in the possession of a trafficker will vary inversely with the amount of drugs they have managed to sell once their supply has been acquired. In the case of Mr Odbert, Detective Serf felt the evidence was consistent with Mr Odbert having recently acquired a supply of drugs for resale, with $315 remaining after his purchase.
• On the whole, Detective Serf felt the quantity of methamphetamine found in Mr Odbert’s possession suggested that he was a “low level” or “street” trafficker in methamphetamine; i.e., someone typically “just above a user”, but not yet a “a large quantity distributor”, who normally would sell methamphetamine in quantities ranging from 3.5 to 7 grams, depending on how much money they had at the time of their purchase and their own client base.

[25] As for the testimony provided by the accused, Mr Odbert, his assertions and clarifications or acknowledgements supplied in cross-examination included the following:

• He was 52 at the time of the hearing before me, making him approximately 50 at the time of the events bringing him before the court.
• He provided a very extended and detailed history of substance abuse, consequential life difficulties, and attempts at rehabilitation that were not always successful. In particular:
  • Mr Odbert said he began drinking alcohol and using narcotics at a very early age, (approximately 14), as a means of coping with serious and prolonged abuse, inflicted by his father, on Mr Odbert and other members of his immediate family. Substance abuse that began with the consumption of readily accessible alcohol, marihuana and “magic mushrooms”, before high school, progressed thereafter to include consumption of much harder narcotics, including LSD or “acid”, almost daily thereafter.
  • Not surprisingly, (if Mr Odbert’s account of his extended substance abuse is accurate), his school performance and attendance suffered accordingly, to the point where he was obliged to repeat grade 7, failed to graduate from high school with his peers, and obtained his high school equivalency only through later efforts to update his credits. He says that, during his high school years, he also frequently was in trouble with the law, and actually was being released from custody intermittently to attend school.
  • Mr Odbert said that he was able to fund his prolonged and increasingly expensive drug habits and addictions by obtaining lucrative employment with FRAM, (a manufacturer with a production facility in Stratford), while still a teenager attending grades 10, 11 and 12 in high school. Moreover, he was able to obtain all the narcotics he wanted and needed through others at work, and adopted a pattern of purchasing them weekly, on the same day he received his weekly pay.
  • Mr Odbert says that, following high school, he continued working, including extended employment with Hendrickson, (another manufacturer operating in Stratford), which began in or around 1993 and lasted approximately 20 years. Mr Odbert said that, during that time, he continued to devote most of his income, apart from that needed to make minimum mortgage and car payments, to maximizing his weekly purchase of illicit drugs through his workplace. Moreover, according to Mr Odbert, those drugs came to include “everything but opiates”. In particular, Mr Odbert said that, in addition to consumption of marihuana, magic mushrooms, and “hundreds and hundreds of hits of LSD”, he quickly became addicted to cocaine after being introduced to it at a party. He thereafter regularly consumed substantial amounts of cocaine, (e.g., up to 3.5 grams or an “eight ball” per night), over the course of many years, until his “nose was wrecked” and effectively prevented further use of that particular narcotic, (as Mr Odbert was not an IV user). At or about the same time, however, methamphetamine became readily available in Stratford, at approximately half the cost of cocaine and, according to Mr Odbert, he thereafter switched his addiction to that narcotic after discovering that it gave him a euphoric high, with a greater “punch” than cocaine, while still allowing him to function at work. He says that methamphetamine thereafter became his principal and very substantial addiction, for at least 10-15 years, and that, although his use of the narcotic increased on week-ends, not a day went by without his using it.
  • Mr Odbert’s testimony included details of his weekly drug purchases, during which he simultaneously would purchase as much narcotics as possible to get him through the week. In that regard, he provided details of price and quantity, and information indicating that his habit of purchasing drugs in large quantities on a weekly basis effectively was reinforced by frequently pooling funds with co-workers to purchase greater quantities of drugs, (e.g., up to 28 grams or an ounce), at discounted prices.
  • Over nearly the same 20 year period, (from approximately 1994 to 2014), Mr Odbert lived in the same neighbourhood of Stratford, purchasing a home on Whitlock Street. It was not a pleasant neighbourhood, and Mr Odbert’s financial circumstances required him to take in boarders, many of whom were described as a “bad group of people”.
  • Notwithstanding his prolonged and daily use of narcotics, Mr Odbert was able to hang on to steady and lucrative employment for many years. In that regard, he says that he generally was a good worker, (apart from times when he was overcome by his addictions), and that he was able to “mask” his drug dependency well for many years, as his use of certain drugs ironically increased his work performance at times, leading to promotion.
  • However, Mr Odbert’s struggles with alcohol and substance abuse continued, leading to periodic efforts at rehabilitation through the assistance of the Homewood health and addiction treatment centre, (“Homewood”), located in Guelph, Ontario. In particular:
    • In or about 2005, following numerous convictions for impaired driving, Mr Odbert proactively approached his employer, on the advice and recommendation of a friend, and asked for assistance to attend Homewood for addiction treatment.
    • During his ensuing first stay at Homewood, Mr Odbert was made to realize that his problems included not only a serious addiction to alcohol, but to cocaine as well.
    • Unfortunately, that initial Homewood stay and follow up treatment, including participation in Narcotics Anonymous, did not prevent Mr Odbert from resuming his addictive behaviour, and he was sent to Homewood again in 2012 to address problems with alcohol and methamphetamine dependency. A full psychiatric assessment confirmed that Mr Odbert’s addictions were related to feelings of low self-worth and PTSD, apparently resulting from his experience with abuse.
    • Documentary evidence, including treatment and discharge summaries, was filed to confirm the involvement of Homewood in Mr Odbert’s attempts at treatment for his addictions.
  • Mr Odbert says that, notwithstanding such efforts, and approximately 18-24 months of generally remaining “clean”, he relapsed into his addiction to methamphetamine in 2013, with devastating consequences. In particular, according to Mr Odbert, in August of 2013 he finally lost his employment at Hendrikson because of an addiction relapse, which rendered him unable to perform his work duties, in turn leading to a growing problem of significant and noticed absenteeism without timely production of appropriate explanatory notes from a physician. At that point, the employer already had sent Mr Odbert to rehabilitation programs twice, without lasting success. Mr Odbert says he therefore was terminated after conclusion of a grievance process initiated by his union, albeit with a severance package, finalized in October of 2013. Details of the package were confirmed by minutes of settlement filed as an exhibit, but included a monetary settlement, (one week’s pay for each year of employment), a letter of reference, and a further limited period of benefits.
  • Mr Odbert described the period following his loss of employment, from the fall of 2013 to the spring of 2014, as a very challenging “long winter”. In particular:
    • He says he used the funds from his severance package to pay off debts, but his employment income had come to an end.
    • Moreover, his loss of employment at Hendrikson made it more difficult for Mr Odbert to locate suitable boarders through his workplace, and that in turn led to further difficulties. In particular, boarders obtained through services such as Kijiji frequently turned out to have employment and substance abuse issues of their own, causing Mr Odbert to have not only financial and eviction problems, (including requests for police assistance after his property was vandalized by boarders who refused to leave), but further exposure to Stratford’s drug culture.
    • At or about the same time, his long term partner split up with him, and he lost his primary means of transportation, (a motorcycle), through mechanical problems he was unable to address.
    • Mr Odbert testified that all of these simultaneous problems proved overwhelming, and his relapse into use of crystal methamphetamine became even more pronounced as he started to descend down that path.
    • According to Mr Odbert, he reached a point where his bank account was substantially in overdraft, and he eventually felt obliged to sell his house on Whitlock Street. That was done through a real estate agent in June of 2014, (as confirmed by an agreement of purchase and sale entered as an exhibit), which resulted in net sale proceeds of approximately $26,000, (as confirmed by bank statements entered as exhibits). Mr Odbert says the house sale also was done with a view to ending his exposure to problematic boarders, with their own drug problems, and severing his ties with neighbourhood associations that, in his view, kept pulling him back into active addiction. He says he was contemplating a move away from Stratford, and pursuit of a fresh start elsewhere.
    • Notwithstanding such aspirations, Mr Odbert says his problems with methamphetamine addiction continued. In particular, Mr Odbert says the type of methamphetamine then readily available in Stratford, from numerous sources, (including a number of locations between his residence and the corner store), was far more powerful than that to which he originally became addicted. Moreover, Mr Odbert says he was obliged to purchase increasing quantities of it, as his “wrecked nose” made it necessary for him to smoke the drug, in order to achieve the same high. Mr Odbert says that, towards the summer of 2014, his average weekly purchases were as much as a quarter ounce, (approximately 7 grams), to half an ounce, (approximately 14 grams), with the purchase price fluctuating according to supply and demand, but 14 grams costing an average of 700 to 900 dollars. In that regard, Mr Odbert said that he had come to the point where he usually was purchasing half an ounce of methamphetamine at a time, for his personal use. However, Mr Odbert further testified that, “towards the end”, he also was resorting to more frequent purchases because others would access and use his intended weekly supply, leaving him with insufficient amounts to “make it” through the week.
    • In the course of that continued and intensive purchase and use of methamphetamine, Mr Odbert said he admittedly made some further terrible choices, and “nothing panned out” in terms of his attempts to start a new life. In particular, he said the net sale proceeds from the sale of his home were quickly depleted by payment of bills, his making of loans to others that were not repaid, his expenditures incurred in relation to failed attempts to secure new employment and transportation, and his continued purchases of substantial quantities of methamphetamine.
    • Mr Odbert testified that, by September of 2014, his addition to methamphetamine was extremely strong, he was in full “adult care mode”, and he woke up each day hoping he would “no longer be on the planet”. As he no longer had a home of his own, he generally was using the home of his mother, (located at the Devon Street address mentioned above), as his principal residence. However, Mr Odbert nevertheless often spent time elsewhere, as he was experiencing a “very bad relapse” in his use of methamphetamine, was in “active addiction”, and neither he nor his mother wanted her to see him in that state.
• After providing that detailed background information, Mr Odbert went on to give his explanation for the movements admittedly observed by the police on September 18 and 19, 2014, and the circumstances which, he says, resulted in the discovery of the 16.4 grams of methamphetamine admittedly hidden in his shoe. In that regard:
  • Mr Odbert said the incident arose out of his interactions with Lorena Howse, which in turn led to his interaction with Mr Riordan.
  • As far as Ms Howse is concerned, Mr Odbert said one of his boarders introduced Ms Howse to him as a person in need of transportation between Stratford and Kitchener, to visit her children. In particular, at a time when Mr Odbert was unemployed, in financial duress, and desperate for money, Ms Howse offered to pay him $60.00 for each such trip, which effectively meant a $40.00 profit for Mr Odbert on each such occasion, after paying for gas. According to Mr Odbert, he therefore began driving Ms Howse to the Knights Inn in Kitchener at least once a week, dropping her there and picking her up on Sundays for the return trip to Stratford.
  • Mr Odbert testified that, in the course of such drives, Ms Howse learned that he was using methamphetamine, and he began obtaining his drugs through her. By September of 2014, Mr Odbert had stopped obtaining methamphetamine from others in Stratford, and was getting his supplies primarily through Ms Howse.
  • He also said that, when he came into money upon the sale of his house, Ms Howse was one of those to whom he lent money, in response to a “cock and bull story” Ms Howse told to gain his sympathy, and which he foolishly believed. (In that regard, Mr Odbert emphasized that he was passive and pliant when using methamphetamine, which made him too trusting, and willing to go along with requests from others far too easily.) In particular, Mr Odbert testified that he loaned Ms Howse the sum of $2,000; a transaction said to correspond with a similar cash withdrawal entry documented in the bank records filed as defence exhibits. Mr Odbert went on to say that, although he then repeatedly asked Ms Howse to repay the loan, as he continued to drive her to and from the Knights Inn in Kitchener, she repeatedly failed to comply. He says that, on occasion, she would respond by offering him methamphetamine in lieu of cash, and recalled a particular occasion on which she supplied him with an “eight ball”, (i.e., an eighth of an ounce of methamphetamine), in partial repayment of the loan. However, although he accepted the drugs to feed his addiction, Mr Odbert found such “barter” repayment problematic, as Ms Howse was controlling the value assigned to the drugs she was giving him. Moreover, Ms Howse frequently would have neither money nor drugs to give him, effectively forcing Mr Odbert to use more of his own money to purchase methamphetamine from Ms Howse or her companions.
  • According to Mr Odbert, as his finances dwindled, his relationship with Ms Howse became more strained and problematic. He says that he did not want to be around her, and was receiving threats from her boyfriend, but that he also did not want to walk away from the money he was owed, Ms Howse was able to supply methamphetamine to feed his addiction, and Mr Odbert also had come to fear getting “beaten up” by associates of Ms Howse if he stopped complying with her requests. For all such reasons, he generally felt it was in his “best interests” to keep doing what she wanted.
  • According to Mr Odbert, he was travelling from Stratford to the Knights Inn, on September 18, 2014, because Ms Howse was going to repay the money she owed him. He said that he had spoken with Ms Howse directly, a short time before, during one of their drives, when he told her he could not afford to continue doing what he had been doing without repayment of his loan, and that he wanted to be “squared up” with her. He knew that she recently had been arrested for trafficking, which in his mind increased the urgency of her repaying him as soon as possible. According to Mr Odbert, they accordingly then had agreed on the best time for him to come and retrieve the balance of his money from Ms Howse in Kitchener, which led to his driving from Stratford to Kitchener that evening. He said that, at the time, he had only the money later found on his person to his name, and he therefore was somewhat desperate for repayment of the remaining money owed to him by Ms Howse. (His assertions in that regard were corroborated to some extent by the bank documents filed as exhibits, which seemed to confirm that Mr Odbert had parted with all of the net sale proceeds from his house in less than 3 months. At the time, he still had not found employment, and he was not receiving any income or benefits.)
  • Mr Odbert testified that, at the same time, he also had been asked directly or indirectly by Ms Howse to bring Mr Riordan along with him from Stratford to Kitchener, for reasons unknown. In that regard, Mr Odbert acknowledged in his testimony that he had met Mr Riordan before, on 2-3 earlier occasions, including an occasion when Ms Howse had asked for Mr Odbert’s assistance in getting Mr Riordan out of her residence by driving him home. Mr Odbert claimed that he did not know the precise relationship between Ms Howse and Mr Riordan, but Ms Howse had described Mr Riordan as being “family” in some way. In any event, according to Mr Odbert, he had no idea what the “deal was”, in terms of why he was being asked by Ms Howse to also drive Mr Riordan to Kitchener on the evening of September 18, 2014, apart from speculation that Mr Riordan perhaps owed Ms Howse some money, which he would give to Ms Howse before she then gave it to Mr Odbert, in satisfaction of her outstanding loan. Mr Odbert claimed that he personally did not trust Mr Riordan or like being around Mr Riordan, as he understood Mr Riordan to be a “disreputable character”. (Indeed, he claimed that, when Mr Riordan got into the vehicle that evening, he was holding a plastic owl he admittedly had just stolen from someone’s nearby porch.) However, based on past experience, Mr Odbert thought it more likely that Ms Howse would do what he wanted, (in terms of repaying her loan), if Mr Odbert agreed to do what she wanted. Conversely, Mr Odbert thought a refusal to do what Ms Howse wanted would make repayment of her loan more unlikely, which in turn would make it more difficult for Mr Odbert to obtain the drugs he needed.
  • Mr Odbert says that he consumed methamphetamine before leaving on the drive from Stratford to Kitchener, and was therefore “paranoid and sweating” when, shortly after leaving his mother’s house that evening, and driving approximately two blocks, he was pulled over by Officer Hartley of the Stratford police and given three tickets, which he subsequently “fought” in court: i.e., one ticket for use of a handheld device while driving, and two more for not having insurance documentation and a driver’s licence with updated address information, in the wake of his house sale and relocation. Mr Odbert expressed surprise that Detective Clarke had not included any mention of that traffic stop in his account of the SCU surveillance conducted that evening. (Following Mr Odbert’s testimony, Crown counsel made further inquiries before deciding whether to call reply evidence, and was able to confirm that the earlier traffic stop had indeed taken place as described by Mr Odbert. In the circumstances, the Crown agreed to a formal admission in that regard, indicating that there would be no need for the officer who conducted the traffic stop to be called as a witness.)
  • After picking up Mr Riordan in downtown Stratford, Mr Odbert claimed that the first stop made at the Pavey Street address in Woodstock, on the night of September 18, 2014, was for an entirely benign reason. In particular, he says that was a stop made at the residence of his friend “Kim”, in order to check in on her, (as she was dealing with some unspecified issue), and to see whether he could spend the night there on his way back from Kitchener, as he frequently did so when he was “using” to avoid contact with his mother. In that regard, Mr Odbert indicated that Kim also was addicted to methamphetamine, and he previously had seen and shared in the use of methamphetamine at Kim’s residence in the past. Indeed, that was a reason why he frequently asked to stay there, as he regarded it as a place of safety where he likely could use or share in the use of methamphetamine supplied by others. On the night of September 18, 2014, however, Mr Odbert says it turned out to be a relatively short visit to Kim’s residence, as he could tell very quickly that Kim was upset about something and in “no frame of mind” to permit any overnight stay.
  • In cross-examination, Mr Odbert acknowledged that gas was valuable to him, that Woodstock was off the most direct route between Stratford and Kitchener, and that he admittedly could have called Kim, instead of attending in person at her residence. However, he emphasized that he also wanted to see her, to see how she was coping with unspecified issues. Moreover, he says that he was upset and angered about previous use of his cellphone in the car that evening, having just received multiple tickets for doing so. He readily conceded that much of what he did in that regard may not have been sensible or rational, but attributed that to his drug consumption at the time. He firmly denied having gone to the Pavey Street address to deliver methamphetamine.
  • According to Mr Odbert, he then intended to proceed with Mr Riordan directly to the Knights Inn in Kitchener, but Mr Riordan began saying, approximately two blocks from the entrance ramps to Highway 401, that he needed to make a stop at the Husky gas station on Highway 401, west of Woodstock. Mr Odbert claims he was angered by and initially resisted the request, emphasizing that the suggested stop was in the wrong direction vis-à-vis the Knights Inn, but he relented and drove to the Husky station when Mr Riordan offered to buy him gas if he agreed to go.
  • Mr Odbert testified that, once at the Husky station, he focused on pumping gas rather than Mr Riordan, although he did see Mr Riordan leave the store and walk towards a vehicle, and wondered what Mr Riordan was doing. Mr Odbert said that, by the time he finished pumping and paying for his gas, washing his windshield, and checking his oil, Mr Riordan still had not returned to the vehicle, so Mr Odbert went looking for him, driving over in the direction he had gone. Seeing him in a white pick-up truck with an unknown male, Mr Odbert pulled up, asked whether Mr Riordan was coming with him, and that is said to have prompted Riordan to immediately get back in Mr Odbert’s car for their departure to Kitchener. According to Mr Odbert, that was the sum total of his entire knowledge of why the men had gone to the Husky stop, and what had happened there from his perspective. He acknowledged that, at the time, it crossed his mind that Mr Riordan could have been engaged in a drug deal, but he also knew that Mr Riordan dealt in stolen goods. However, Mr Odbert emphasized that he did not know what the two men actually were doing. In that regard, he said he did not want to know, (as he really wanted nothing to do with either man or their business), but also was in what he called an “I don’t care mode”, because of the amount of drugs he was using.
  • Mr Odbert said he and Mr Riordan then proceeded to the Knights Inn, as originally planned, with his intended purpose still being retrieval of the money owed to him by Ms Howse. On arrival, he said he found Ms Howse in a room with a number of other persons Mr Odbert described as “scary people”; i.e., a bunch of people who had “just got out of prison” and “didn’t mind killing people”. In the circumstances, he says he felt uncomfortable about pressing Ms Howse directly for money, and he instead was “sat down” and invited to smoke drugs with the group who was there. He says he did so, becoming “more high” than he already was.
  • Mr Odbert testified that, during his ensuing time at the Knights Inn, he indulged in drugs, along with numerous other people using a huge smoking device with several hoses leading from it. He says “grams and grams” of methamphetamine repeatedly were fed into the device, and he became “stoned”. He recalled leaving the motel to purchase coffee for himself and others in the motel room from the nearby Tim Horton restaurant, and acknowledged that he was looking around and into vehicles while he did so, but denied that he was engaged in any form of “counter-surveillance”. He claimed that he was instead simply focused on his own safety and security, as “very bad dudes hung out” in that area, leading to “a couple of fights” around the Knights Inn a week earlier, and he simply wanted to ensure that he got to the Tim Horton restaurant and back “in one piece”.
  • Mr Odbert claimed that, at some point before leaving the motel for the drive back to Stratford, Ms Howse addressed his demands for repayment of the loaned money. In particular, he followed her away from the group, at her request, only to find that she once again just had drugs, and no money to give him. At that point, according to Mr Odbert, Ms Howse gave him more methamphetamine in lieu of cash; i.e., the 16.4 grams of methamphetamine later found in his shoe. In that regard, Mr Odbert said the drugs were not measured before being presented to him, (and he did not ask for the drugs to be weighed as he knew it would displease Ms Howse), but he had a memory, despite being “pretty barbequed at the time”, of their supposedly having a value of $900. In particular, Mr Odbert recalled thinking it was unfair that Ms Howse effectively would receive a credit for $900 towards repayment of her loan, (i.e., the price at which Ms Howse would have sold the drugs to him), when she herself probably could obtain such drugs from her supplier for only $600. He could not recall if Ms Howse communicated, in any way, what she thought the remaining balance of his loan would be. However, he testified that he nevertheless accepted the drugs, in lieu of a cash payment, as that would at least supply him with methamphetamine for the coming week. In particular, it seemed to him that the quantity of drugs being given to him was approximately half an ounce; an amount that would feed his then habit of consuming 2-3 grams a day of the substance. Mr Odbert acknowledged being quite aware that Ms Howse supplied drugs to others for resale, but emphatically denied that she had ever supplied him with drugs for that purpose, on the night of September 18, 2014, or on any other occasion. He said the two of them had never had any such discussions.
  • Mr Odbert testified that he had no clear memory of why he put the methamphetamine in his shoe, as he was “stoned out of his mind” by then. However, he generally felt the drugs were now his, he knew that he would not be using them on his way home, (as he was already “high”), and his shoe seemed like a safe place for them.
  • Mr Odbert testified that, because of his drug consumption before arriving at the Knights Inn, and his almost two hours of further drug consumption while there, he has only vague memories of leaving, although he does recall getting angry again with Mr Riordan because he, (Mr Riordan), wanted to stay for several more hours while Mr Odbert wanted to leave.
  • However, Mr Odbert specifically denied that he had any plans to share or sell the drugs supplied to him by Ms Howse. He similarly denied that he was picking up the methamphetamine for anyone in Stratford. He acknowledged having shared methamphetamine with others in the past, if they were in his house, (and that friends in turn had shared methamphetamine with him), but he no longer trusted anyone in Stratford and was trying to end his associations there. He was emphatic that he had never sold methamphetamine or any other drugs to anyone, that he had no intention of doing so on this occasion, and that he never had been willing to do that to make Ms Howse happy. He claimed that, when he left the Knights Inn, his plan was simply to “get rid of” Mr Riordan, whose presence in the car gave him a “bad vibe”, sneak into his mother’s house without her seeing him and registering her disapproval, and thereafter use the drugs for his personal consumption. In broader terms, Mr Odbert emphasized that, at the time, he was desperate and reckless, in terms of his survival, without caring much about what happened to him, and that he frankly did not plan on surviving the month. It was only his arrest on the morning of September 19, 2014, and his subsequent attendance at a new “detoxification” facility almost immediately thereafter, which ended his downward spiral.

[26] With the above evidence in mind, I turn first to the issues raised by the Charter application brought by the accused.

[Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) analysis

[27] As noted above, that application seeks to exclude evidence of the methamphetamine found in the possession of the accused; i.e., on the basis it was discovered and seized through alleged contraventions of Mr Odbert’s right to be free from unreasonable search and seizure, (pursuant to section 8 of the Charter), and/or his right not to be arbitrarily detained, (pursuant to section 9 of the Charter), in circumstances warranting its exclusion pursuant to s.24(2) of the Charter.

[28] I think it self-evidently necessary and appropriate to address and decide those Charter issues before moving on to a consideration of whether the Crown has proven all essential elements of the offence charged beyond a reasonable doubt.

[29] Certainly, if evidence of the relevant methamphetamine is excluded, there obviously will be no possibility of proving possession of that controlled substance by the accused, let alone possession for the purpose of trafficking.

[30] However, before turning to a more detailed assessment of the parties’ positions and arguments, in relation to the accused’s Charter application, I pause to note a number of general principles relevant to the application of sections 8 and 9 of the Charter, in order to provide a general framework for that analysis.

GENERAL PRINCIPLES – SECTIONS 8 AND 9 OF THE CHARTER

[31] In that regard, our Supreme Court has emphasized that detention and search issues should be kept analytically distinct, because they stem from different police powers and must respect different Charter rights. See R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at paragraph 36.

[32] In relation to section 8 of the Charter, general principles and considerations include the following:

• Section 8 of the Charter guarantees a broad and general right to be secure from unreasonable searches and seizures, which extends at least so far as to protect the right of privacy from unjustified state intrusion. Its purpose requires that unjustified searches be prevented. It may not be reasonable in every instance to insist on a prior authorization order to validate governmental intrusions upon individuals’ expectations of privacy. For example, exigent circumstances may require immediate action for the safety of police and/or to secure and protect evidence. However, prior authorization, where feasible, is a precondition for a valid search and seizure. It follows, (as noted above), that warrantless searches are ordinarily inconsistent with section 8 of the Charter, and prima facie unreasonable under section 8. A party seeking to justify a warrantless search bears the onus of rebutting the presumption of unreasonableness. See Canada v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145; and R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13, at paragraph 52.
• In that regard, a warrantless search will respect section 8 if the search is authorized by law, and both the law and the manner in which the search is conducted are reasonable. See R. v. Feeney, supra, at paragraph 46.
• However, the long-standing common law power of “search incident to arrest” is an exception to the general rule that a search conducted without prior authorization is presumptively unreasonable. That common law power is regarded as “eminently sensible”, and “essential for the protection of police officers carrying out their all too often dangerous duties”. See: R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607, at paragraph 33; R v. Golden (2001), 2001 SCC 83, 159 C.C.C. (3d) 449 (S.C.C.), at p.488; and R. v. Blazevic, [2010] O.J. No. 67 (S.C.J.) at paragraph 80.
• In particular, at common law, after making a lawful arrest, a police officer has the right to search the person arrested and take from his person any property reasonably believed to be connected with the offence charged, or which might be used as evidence against the person arrested on the charge, or any weapon or instrument that might enable the arrested person to commit an act of violence or effect his escape. See R. v. Rao, 1984 CanLII 2184 (ON CA), [1984] O.J. No. 3180 (C.A.), at paragraph 38.
• That automatic right of police officers to search incident to lawful arrest, and seize anything in the arrested person’s possession or immediate surroundings to guarantee the safety of the police and the accused, prevent the prisoner’s escape, or provide evidence against him, arises at common law but has survived introduction of the Charter. That common law right must nevertheless be exercised in a manner consistent with the fundamental values enshrined in the Constitution. To that end:
  • The search must be for a valid objective in pursuit of the ends of criminal justice, (such as the discovery of an object that may be a threat to the safety of the police, the accused or public, or that may facilitate escape or act as evidence against the accused). Such searches, made incidentally to arrest and justified, are not limited by necessity.
  • The purpose of the search must not be unrelated to the objectives of the proper administration of justice, (which would be the case, for example, if the purpose of the search was to intimidate, ridicule or pressure the accused in order to obtain admissions).
  • The search also must not be conducted in an abusive or unreasonable fashion. In particular, the use of physical or psychological constraint should be proportionate to the objectives sought and the other circumstances of the situation. See Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158, at paragraphs 49, 56, and 61-62.
• Moreover, if the law on which the Crown is relying for authorization is the common law doctrine of search incident to arrest, then the limits of that doctrine must be respected. The most important of those limits is that the search must be truly incidental to the arrest. This means that the police must be able to explain, within the purposes articulated in Cloutier v. Langlois, supra, (i.e., protecting the police, protecting the evidence, and discovering evidence), or by reference to some other valid purpose, why they searched. They do not need reasonable and probable grounds. However, they must have had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable. See Cloutier v. Langlois, supra, at paragraph 59; and R v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at paragraphs 19-20 and 25.
• If a search is carried out incident to an arrest that is found to be unlawful, the search will be unreasonable and therefore constitute a breach of an individual’s section 8 right to be free from unreasonable search and seizure. See: R. v. Iaboni, [2003] O.J. No. 3805 (O.C.J.), at paragraphs 51 and 71; R v. Mohamad (2004), 2004 CanLII 9378 (ON CA), 69 O.R. (3d) 481 (C.A.), at paragraph 28; R v. Cunsolo, [2008] O.J. No. 3743 (S.C.J.), at paragraph 102; and R. v. Williams, [2008] O.J. No. 4404 (S.C.J.), at paragraph 34.

[33] Applicable general principles relating to section 9 of the Charter include the following:

• While section 9 provides that everyone has the right “not to be arbitrarily detained”, it is well recognized that a lawful detention is not “arbitrary” within the meaning of that provision. See: R. v. Mann, 2004 SCC 52, [2004] S.C.J. No. 49, at paragraph 20; and R. v. Clayton, 2007 SCC 32, [2007] S.C.J. No. 32, at paragraphs 20-21. On the other hand, an “arbitrary” detention includes an unlawful arrest and the detention that follows upon an unlawful arrest. See: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paragraphs 55 and 57; and R. v. Jarrett, [2011] O.J. No. 5330 (S.C.J.), at paragraphs 16 and 18.
• Although it generally has been recognized that the onus is on an accused to demonstrate that his or her detention was unlawful, the onus is on the Crown to show that the objective facts rise to the level supporting a lawful detention. See R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paragraph 45, and R. v. Amare, 2014 ONSC 4119, [2014] O.J. No. 5225 (S.C.J.), at paragraph 83(3).
• A police officer may lawfully arrest an individual without a warrant if the officer has subjective and objective grounds to make the arrest. In particular, the Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest, (which requires the officer to have an honest belief, supported by objective facts, that the suspect committed the offence). However, those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they do not require proof beyond a reasonable doubt, a prima facie case for conviction, or even proof on a balance of probabilities, before making the arrest. See R. v. Storrey, [1990] 1. S.C.R. 241 at paragraph 17; R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254 at para. 51; R. v. Jacobson, 2006 CanLII 12292 (ON CA), [2006] O.J. No. 1527 (C.A.), at paragraph 22; R. v. Latimer, 1997 CanLII 405 (SCC), [1997] 1 S.C.R. 217, at paragraph 26; and R. v. Loewen, 2010 ABCA 255, [2010] A.J. No. 980 (C.A.), at paragraph 18, affirmed 2011 SCC 21, [2011] S.C.J. No. 100.
• Determining the existence of reasonable and probable grounds does not involve a mathematical assessment of facts and circumstances, but rather a common sense and non-technical approach. It necessarily is a qualitative standard, upon which reasonable people can differ in some cases. See: R. v. Campbell, 2010 ONCA 588, [2010] O.J. No. 3767 (C.A.), at paragraphs 52-54, affirmed 2011 SCC 32, [2011] S.C.J. No. 32; R. v. Chehil, supra, at paragraphs 29 and 62; and R. v. Amare, supra, at paragraph 83(7).
• The fact that an experienced police officer has an honest subjective belief, while not conclusive, is itself some evidence that the belief is objectively reasonable. See R v. Luong, 2010 BCCA 158, [2010] B.C.J. No. 918 (C.A.); R. v. Biccum, [2012] A.J. No. 234 (C.A.), at paragraph 21; R. v. Chehil, supra, at paragraph 47; R. v. Amare, supra, at paragraph 83(3).
• Determining whether reasonable and probable grounds exist is a fact-based exercise, which depends on all the circumstances of the case. The totality of the circumstances relied upon by the arresting officer, including the dynamics within which the officer acted, and his or her knowledge and experience, (which entitle the officer to draw inferences and make deductions drawing on that experience), will form the basis of the objective assessment as to whether there were reasonable and probable grounds for an arrest. In making that assessment in any given case, trial judges should not engage in after-the-fact dissection of an officer’s grounds, and individual facts and observations, considered in isolation. Trial judges also must appreciate that arrests often are made in a fast-moving, dynamic situation without the benefit of lengthy reflection. Moreover, what may appear innocent to the general public may have a very different meaning to a police officer experienced in drug-related matters. See: R. v. Lawes, 2007 ONCA 10, [2007] O.J. No. 50 (C.A.), at paragraph 4; R. v. Juan, 2007 BCCA 351, [2007] B.C.J. No. 1402 (C.A.), at paragraph 27; R v. Cunsolo, supra, at paragraph 68(6); R. v. Palmer, [2010] O.J. No. 4739 (S.C.J.), at paragraph 21; and R. v. Bush (2010), 2010 ONCA 554, 101 O.R. (3d) 641 (C.A.), at paragraphs 54 and 55.
• In assessing whether he or she has reasonable grounds, a police officer must take into account all available information, disregarding only such information as she or he has good reason to believe is unreliable. See R. v. Golub, 1997 CanLII 6316 (ON CA), [1997] O.J. No. 3097 (C.A.), at paragraph 21. However, the officer is not required to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations. See R. v. Chehil, supra, at paragraphs 34 and 67, and R. v. Amare, supra, at paragraph 83(11).
• Provided that the officer who directs that an arrest take place has reasonable and probable grounds, officers acting under his or her direction are deemed to be acting on those grounds. If a peace officer is relying on an order or direction from another officer, the undertaking of an independent assessment as to whether a suspect should be arrested is not necessary. See R. v. Debot, [1989] S.C.J. No. 188, at paragraph 49-50; R. v. Cunsolo, supra, at paragraph 68(9); and R. v. Amare, supra, at paragraph 83(14).

[34] In determining whether reasonable and probable grounds exist to carry out a search or effect an arrest, police officers not infrequently act upon hearsay information received from a confidential informant. General principles in that regard include the following:

• Hearsay statements of an informant can provide reasonable and probable grounds, although evidence of a tip from an informer, by itself, is insufficient. See R. v. Garofoli (1990), 1990 CanLII 52 (SCC), 60 C.C.C. (3d) 161 (S.C.C.), at p.191.
• In weighing such evidence relied upon by the police, (to establish reasonable and probable grounds and justify a warrantless search), reliability of a “tip” is to be assessed by recourse to “the totality of the circumstances”. Relevant considerations in that regard include whether the information was compelling, credible and corroborated. Weaknesses in one such area may, to some extent, be compensated by strengths in the other two. See: R. v. Debot, supra, at paragraph 53; and R. v. Garofoli, supra, at p.191.
• In determining whether such information is “compelling”, courts have regard to considerations such as: whether the information is current; whether it goes beyond “mere rumour or gossip”, and/or “bald conclusory statements”, to provide specific information and details; and the informant’s source of knowledge or basis for his or her assertions, (with first-hand or direct knowledge of the relevant facts being more compelling). The fewer the details, the greater the risk of innocent coincidence, a false tip, and reliance on rumour, gossip and speculation. Similarly, reliability of an informant’s information is diminished by an absence of any sense as to how the informant acquired his or her information. See: R. v. Debot, supra, at paragraph 54; R. v. Garofoli, supra, at p.191; R. v. Lewis (1998), 1998 CanLII 7116 (ON CA), 122 C.C.C. (3d) 481 (Ont.C.A.), a p.490; R. v. Sutherland (2001), 2000 CanLII 17034 (ON CA), 150 C.C.C. (3d) 231 (Ont.C.A.); R. v. Zammit (1993 (1993), 1993 CanLII 3424 (ON CA), 81 C.C.C. (3d) 112 (Ont.C.A.), at pp.120-121; and R. v. Amare, supra, at paragraph 84(2). A tip can be compelling even if it contains some inaccuracies. See R. v. Kesselring (2000), 2000 CanLII 2457 (ON CA), 145 C.C.C. (3d) 119 (C.A.), at p. 123.
• In determining whether such information is “credible”, courts have regard to considerations such as: whether the informant is anonymous or known and identified, (which exposes the informant to the jeopardy of being charged with public mischief or obstruction of justice for deliberately misleading the police); the basis on which the informant provides information, (with first-hand knowledge being more credible); whether any benefit was sought or promised or actually given in exchange for the information; whether the informant has any charges or investigation pending against him, and/or convictions for crimes of dishonesty such as perjury or obstruction of justice; and whether the informant is an “untried” and “untested” source or someone who has a track record of providing information to the police that has proved to be accurate, reliable and truthful in the past. See: R. v. Debot, supra, at paragraphs 54 and 59; and R. v. Amare, supra, at paragraphs 8-9 and 84(3).
• In determining whether such information is “corroborated”, courts have regard to considerations such as the results of police surveillance. It is not necessary for the police to confirm each detail in an informant’s tip, or to confirm the commission of the alleged crime itself. However, actual observations should conform sufficiently to the provided information to remove the possibility of innocent coincidence, and there should be confirmation of something material within the communicated information as opposed to routine or commonly available facts. Moreover, the level of verification required may be higher where the police rely on an informant whose credibility cannot be assessed or where fewer details are provided, and the risk of innocent coincidence is greater. See: R. v. Debot, supra, at paragraph 63; R. v. Caissey, 2007 ABCA 380, [2007] A.J. No. 1342 (C.A.), at paragraph 23, affirmed 2008 SCC 65, [2008] S.C.J. No. 66, at paragraph 2; and R. v. Amare, supra, at paragraph 84(4).
• Reputation alone will never provide reasonable grounds, but the past activities of a suspect are also not irrelevant, provided the reputation is related to the ostensible focus of the investigation, and its veracity is based on police familiarity with the suspect rather than hearsay, (in which case its veracity cannot be assumed). See R. v. Debot, supra, at paragraphs 56-58 and 63.

[35] With the above principles in mind, I now turn to an assessment of whether there have been breaches of the section 8 and/or 9 Charter rights of Mr Odbert in this case.

CHARTER BREACH ANALYSIS

[36] In my view, counsel correctly placed the primary focus on whether there were reasonable and probable grounds for Detective Clarke to direct the arrest of Mr Odbert, as that determination effectively forms the linchpin of each side’s further desired analysis. In particular:

• If such grounds existed, and it accordingly was a lawful arrest, there was no arbitrary detention giving rise to a section 9 breach, and a proper search of Mr Odbert’s person incident to arrest was lawful and reasonable, such that there was no breach of section 8 either. If so, there is no basis for the application of s.24(2) of the Charter.
• Conversely, if such grounds did not exist, the arrest was unlawful and therefore arbitrary, (giving rise to a section 9 breach), and the warrantless search incident to an unlawful arrest was in turn unlawful and unreasonable, (giving rise to a section 8 breach). If so, s.24(2) analysis is required to determine whether the drugs found during the unlawful search should be excluded.

[37] Given that reality, the logical starting point for my analysis is not section 8, but the question of whether or not there was a contravention of the section 9 Charter right of Mr Odbert to be free from arbitrary detention.

[38] As noted above, a detention will not be characterized as “arbitrary” if it is lawful, as it would be in the case of a lawful arrest; i.e., an arrest based on “reasonable and probable grounds” in the sense demanded by the authorities.

[39] In my view, at the relevant time, and having regard to the totality of the circumstances, there were reasonable and probable grounds, both subjectively and objectively, to arrest Mr Odbert for possession for the purpose of trafficking.

[40] In the course of his submissions, counsel for Mr Odbert agreed that, although the actual arrest was carried out by members of the SCU other than Detective Clarke, the proper focus for “reasonable and probable grounds” analysis was on Detective Clarke, insofar as he was the “primary officer” upon whose decision and direction the arresting officers were relying.

[41] In any event, I independently find that Detective Clarke is the proper focus in that regard, based on the authorities noted above. Again, see R. v. Debot, [1989] S.C.J. No. 188, at paragraph 49-50; R. v. Cunsolo, supra, at paragraph 68(9); and R. v. Amare, supra, at paragraph 83(14).

[42] Counsel for Mr Odbert did not dispute that Detective Clarke had an honest belief in the existence of reasonable and probable grounds for directing the arrest of Mr Odbert. To the contrary, defence counsel indicated, during the course of submissions, that Detective Clarke’s testimony as to the grounds upon which he relied was an honest recollection of what the detective believed and relied upon at the time.

[43] In any event, I independently accept Detective Clarke’s testimony in that regard, and find that he had an honest belief that Mr Odbert had committed the offence of possession for the purpose of trafficking, based on the information available to Detective Clarke at the time. Moreover, his belief in that regard was not simply based on a “hunch”. Rather, it was based on his interpretation of objective facts, which was informed by his training, knowledge and experience.

[44] The subjective component of “reasonable and probable grounds” required to effect a lawful arrest therefore was satisfied when Detective Clarke directed the arresting officers to apprehend Mr Odbert.

[45] As for the required objective component of “reasonable and probable grounds”, having regard to the totality of the circumstances, I find that the grounds relied upon by Detective Clarke in directing the arrest of Mr Odbert for possession for the purpose of trafficking also were justifiable from an objective point of view; i.e., in the sense that a reasonable person, placed in the position of Detective Clarke, and possessed of the same information, training, knowledge and experience, would conclude that there were indeed reasonable and probable grounds for the arrest.

[46] Without limiting the generality of the foregoing, my considerations in that regard include the following:

• In the course of submissions, defence counsel sequentially addressed the various considerations said to have been relied upon by Detective Clarke, noting suggested limitations and weaknesses in relation to each component. Such an approach may help to structure oral submissions, but as emphasized by the authorities noted above, it is a fundamental error of law for the court to engage in after-the fact dissection of an officer’s contemporaneous grounds, and the individual facts and observations, considered in isolation. The circumstances of this case underscore the need to bear that in mind. In particular, Detective Clarke emphasized, both in his testimony and his actions on the night in question, that he was approaching his determination of whether there were reasonable grounds to effect an arrest based on the totality of information available to him. In particular, throughout the relevant evening, he repeatedly delayed the direction of any arrest until he was satisfied that the cumulative effect of the information, observations and inferences available to him, (i.e., the “totality” of the circumstances), justified taking such action. Although a review of the matter necessarily requires mention of individual links in the suggested chain of Detective Clarke’s overall reasoning, it is the relative strength of that overall chain that counts.
• In this case, the relevant police investigation on the evening in question started with a tip from a confidential informant, relayed to Detective Clarke by the Woodstock police. In that regard:
  • There was no dispute that, from the perspective of Detective Clarke at least, there was no information provided to assess whether the information provided was credible. The detective was told nothing about such matters as whether the informant was anonymous or known and identified to the Woodstock police; whether any benefit was sought, promised or given for the relevant information; whether the informant was tried or tested, in terms of having an established track record for being accurate and reliable; or whether there were prior convictions or other reasons to call the honesty of the informant into question. I agree with defence counsel that, for all intents and purposes, the confidential informant information relayed by the Woodstock police and received by Detective Clarke effectively was akin to an anonymous tip, in respect of which a heightened degree of compelling information and/or corroboration was required. On the other hand, I also think it needs to be borne in mind that absence of information regarding credibility does not support an assumption of incredibility.
  • In terms of whether or not the initial information relayed by the Woodstock police was “compelling”, there certainly were desirable details missing from the information supplied that would have made it more compelling. For example, the tip did not include any indication that it was based on first hand observations or knowledge of the informant, and there was no information supplied as to Mr Odbert’s means of transport, whether he would be travelling alone or with companions, the quantity or value of the drugs Mr Odbert supposedly would be transporting, or the names of persons with whom he would be meeting, or the particular unit number within the apartment building on Pavey Street that Mr Odbert would be attending. Nor did the tip indicate Mr Odbert definitely would be transporting drugs that evening. (The tip simply indicated Mr Odbert might be doing that.) In my view, however, the tip also was far more than a “bald assertion” of trafficking by Mr Odbert. It specified the relevant narcotic; i.e., methamphetamine. It indicated that Mr Odbert would be making a delivery; i.e., as opposed to purchase or pick up. It specified not only a distant community destination, (i.e., Woodstock), but also a particular address within that community, (i.e., the Pavey Street apartment building, which Detective Clarke may not have known when he embarked on the surveillance operation, but had come to know by the time he directed the relevant arrest). Moreover, in my view, the tip also clearly included an indication that the possible delivery would be made that evening, as that was what prompted the request by the Woodstock police for urgent assistance that evening from the Stratford police. In short, I think there were compelling aspects to the information being supplied by the confidential informant.
  • In my view, observations made during the surveillance carried out by the SCU also supplied a substantial degree of corroboration for the initial information supplied by the confidential informant to the Woodstock police, relayed in turn to Detective Clarke. In particular, soon after the tip was relayed to the Stratford police, Mr Odbert did in fact travel a considerable distance from Stratford, to the particular specified address in Woodstock. To my mind, that extended journey at the predicted time to such a particular predicted destination largely negated the possibility of “innocent coincidence”. The only aspect of the tip not visible to the police, and therefore not corroborated by the police by the time of the arrest, was whether Mr Odbert had brought and delivered methamphetamine during the journey.
  • Considered in isolation, the information supplied by the confidential informant to the Woodstock police and relayed to Detective Clarke therefore had its limitations. Standing alone, it may not have furnished reasonable and probable grounds for an arrest. However, as a factor in the determination of grounds being formed by Detective Clarke, it also had value.
• At the time of the relevant arrest, Detective Clarke was in possession of additional information, (e.g., that Mr Odbert was residing with a male trafficking in methamphetamine whom Mr Odbert occasionally drove to Kitchener to purchase supplies of that drug, that the Woodstock police had an active investigation ongoing in relation to information that Mr Odbert was delivering methamphetamine to Woodstock from Stratford, and that Mr Riordan obtained his supplies of methamphetamine from the Knights Inn in Kitchener), that admittedly was not based on personal knowledge or observations, by Detective Clarke or other police officers, but derived from another confidential informant or informants whom Detective Clarke personally had not handled, and whose details and reputation for reliability Detective Clarke had not recently reviewed; e.g., by contemporaneous review of the CI registry maintained by the SCU. That information accordingly also had its limitations, in terms of Detective Clarke’s ability to make contemporaneous assessments of whether the information was credible, compelling and corroborated. However, I also think that, in accordance with the authorities noted above, the dynamic nature of the relevant surveillance operation needs to be kept in mind. In my view, defence counsel’s suggestion that Detective Clarke and his team had an obligation to carry out contemporaneous reviews of the CI registry, and perhaps even make urgent follow up inquiries of CIs handled by the SCU concerning Mr Odbert and/or Mr Riordan to determine if there were current indications of their whereabouts or intentions, would put far too high a burden on the police in the course of urgent and dynamic investigations, and perhaps jeopardize those investigations; e.g., by indirectly alerting targets to the likelihood of current police interest and/or ongoing surveillance operations. Once again, such CI information may not have warranted an arrest on its own, but it was not a worthless factor in Detective Clarke’s formation of grounds.
• At the time of the relevant arrest, Detective Clarke also was in possession of additional information, (e.g., that Mr Odbert had been followed in the course of recent surveillance operations to the Knights Inn in Kitchener, that Mr Odbert’s travel companion Riordan was a trafficker in methamphetamine who had sold that narcotic to undercover officers and been arrested several times in possession of methamphetamine, and that Stratford-related individuals such as Lorena Howse and Brian Allen had sold methamphetamine to undercover officers at the Knights Inn), that had been supplied to him not by CIs, but by fellow police officers based on their direct observations. In my view, Detective Clarke was entitled to regard such information as being inherently credible, reliable and corroborated, in possible contrast to CI-sourced information.
• At the time of the relevant arrest, Detective Clarke also was in possession of his own prior personal knowledge of certain matters that proved to be relevant, and in respect of which he required no external confirmation; e.g., that the registered owner of the vehicle in which Mr Riordan had his short and clandestine meeting at the Husky station was someone previously involved in the drug culture of Stratford; that the Knights Inn was a location being used by Stratford-related traffickers for the distribution of methamphetamine to those taking the drug back to Stratford; and that counter-surveillance activity such as the checking of nearby vehicles for police surveillance was commonly done by those engaging in such illicit activity at the Knights Inn. Detective Clarke certainly was entitled to bring that personal knowledge and experience to bear in making his determination as to whether there were reasonable and probable grounds for directing an arrest.
• By the time of the relevant arrest, Detective Clarke, as a member of the SCU surveillance team on the evening in question, also had observed three events which he believed to be consistent with drug transactions: i.e., the short stop at the Pavey Street address in Woodstock, (corroborating in large measure the compelling aspects of the CI information relayed by the Woodstock police of Mr Odbert delivering methamphetamine to that address that evening); the deliberate and off-route travel to the Husky station for a short and clandestine vehicle meeting, which even the defence conceded is quite consistent with a drug-related transaction; and the travel from Stratford to the distant Knights Inn location, consistent with an extended meeting with higher level traffickers there to obtain more methamphetamine, where Mr Odbert also was seen engaging in activity consistent with the sort of aforesaid counter-surveillance activities already familiar to Detective Clarke.
• Moreover, as a member of the surveillance team, Detective Clarke also had seen Mr Odbert just leave the Knights Inn, (a known place of methamphetamine supply by Stratford-related individuals, to lower level methamphetamine traffickers from Stratford, and where Mr Odbert was thought to take Stratford traffickers to pick up methamphetamine, according to CI information), and once again travelling in a vehicle with Mr Riordan, (an individual confirmed by other police officers to be a trafficker in methamphetamine, and thought to obtain his methamphetamine at the Knights Inn, according to CI information).
• It must also be remembered that all of the above was being viewed and interpreted through Detective Clarke, who was a trained, highly experienced and knowledgeable officer actively involved in the SCU. Based on the authorities noted above, the fact that Detective Clarke was such an officer, and held a subjective belief in the existence of reasonable and probable grounds for the arrest based on the totality of the circumstances outlined above, is in itself some additional evidence to support a conclusion that his subjective belief was objectively reasonable.

[47] For the above reasons, and bearing in mind the totality of the information and circumstances considered by that experienced police officer, on balance I find that the arresting officers effected a lawful arrest of Mr Odbert, at the direction of Detective Clarke, for possession for the purpose of trafficking, when Mr Odbert was physically detained.

[48] As there was a lawful arrest, and therefore a lawful detention, that detention of Mr Odbert cannot be regarded as arbitrary.

[49] Mr Odbert accordingly has not satisfied me, on a balance of probabilities, that there was any constitutional infringement of his section 9 Charter right not to be subjected to arbitrary detention and imprisonment.

[50] That still leaves, for formal determination, the question of whether there was a violation of Mr Odbert’s section 8 Charter right to be secure from unreasonable search and seizures.

[51] However, defence counsel did not seem to suggest that the search conducted incident to arrest was unlawful, apart from the possibility of its having been conducted in the wake of a section 9 breach. To the contrary, apart from questioning the lawfulness of the arrest, defence counsel acknowledged that nothing in the conduct of the police that evening was abusive.

[52] In any event, I independently find, that the search of Mr Odbert’s person, which led to the discovery of the 16.4 grams of methamphetamine, was a proper “search incident to arrest”. In particular:

a. Having lawfully arrested Mr Odbert on a charge of possession for the purpose of trafficking, the police were entitled to search Mr Odbert and take from his person any property reasonably believed to be connected with the offence charged, or which might be used as evidence against Mr Odbert on that charge. In my view, the 16.4 grams of methamphetamine found on his person clearly fall within that description.

b. In my opinion, the search was truly incidental to the arrest, and viewed objectively, the purpose of the search was not unrelated to the objectives of the proper administration of justice. I did not understand counsel for Mr Odbert to suggest otherwise, during the course of oral submissions.

c. In this case, there also was no evidence, (or indeed any suggestion, as I have mentioned), that the search was conducted in an abusive fashion, or in anything but a reasonable manner.

[53] As a valid and proper exercise of the common law power of “search incident to arrest”, the warrantless search of Mr Odbert’s person therefore was not presumptively unreasonable. To the contrary, it was reasonable, and therefore Charter compliant.

[54] In the result, Mr Odbert accordingly has not satisfied me, on a balance of probabilities, that there was any constitutional infringement of his section 8 Charter right to be free from unreasonable search and seizure.

CONSEQUENCE OF CHARTER BREACH DETERMINATION

[55] As I have found no breach of the section 8 or section 9 Charter rights of Mr Odbert, consideration of how s.24(2) of the Charter otherwise may have applied is unnecessary and inappropriate.

[56] In the absence of an established Charter breach, there is no basis for excluding evidence of the 16.4 grams of methamphetamine found on Mr Odbert’s person immediately after his arrest.

[57] With that finding in mind, I now return to consideration of whether the Crown has proven, beyond a reasonable doubt, all the essential elements of the offence with which he is charged.

Essential elements

[58] To prove simple possession of a controlled substance, the Crown must prove, beyond a reasonable doubt, the following essential elements of the offence:

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

[59] 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.

[60] In this case, it was not disputed that, if evidence of the methamphetamine found in Mr Odbert’s shoe at the time of his arrest was not excluded, there was no question that the accused knowingly was in possession of that controlled substance.

[61] In any event, I find that the first three essential elements of the s.5(2) offence have been established beyond a reasonable doubt, insofar as:

• the substance admittedly was found in Mr Odbert’s left shoe;
• the substance admittedly was methamphetamine; and
• Mr Odbert himself admitted, during the course of his testimony, that he knew the methamphetamine was there.

[62] At the very least, the Crown accordingly has proven, beyond a reasonable doubt, the lesser and included offence of possession of methamphetamine, (a substance included in Schedule 1 of the CDSA), contrary to s.4(1) of the CDSA.

[63] The remaining question for consideration and determination is whether the Crown also has proved, beyond a reasonable doubt, that Mr Odbert had the relevant 16.4 grams of methamphetamine in his possession for the purpose of trafficking.

[64] In that regard, I think it fair to say that the expert opinion evidence of Detective Serf, relied upon by the Crown, was driven primarily by the quantity of methamphetamine found in Mr Odbert’s possession, albeit with some reliance on the lack of indicia of personal use.

[65] The balance of Detective Serf’s opinion was largely dedicated to explaining why the lack of other indicia of trafficking, (such as a debt list, items relating to weighing or packaging, and/or substantial amounts of currency), did not necessarily negate a proper inference of trafficking.

[66] Certainly, the quantity of methamphetamine found in Mr Odbert’s possession is significantly beyond the quantity of methamphetamine frequently seen in this court in cases of simple possession, as opposed to possession for the purpose of trafficking.

[67] However, there are, I think, limitations to the expert opinion evidence of Detective Serf. For example:

• The detective premised his opinion, in part, on his experience that most methamphetamine users had limited financial means, without any means of obtaining substantial quantities of the drug at any one time, and consumed their supplies of the drug almost immediately. The opinion accordingly would be undermined in the case of a user with considerably more finance or assets, including debt owed by others, (which was the evidence of Mr Odbert, supported in part by his employment history, real estate history and banking documentation), or an established and habitual pattern of securing a supply of narcotics on a weekly basis and making it last until the next supply instalment, (which similarly was the testimony of Mr Odbert in outlining his extended drug history).
• It also seems to me that, just as there are explanations why lack of other common indicia of trafficking such as debt lists, packaging and currency do not negate the possibility of trafficking, the absence of indicia of personal use does not negate that possibility either. In that regard, I bear in mind that Mr Odbert was found in possession of the drugs while driving a vehicle between communities; an activity which, in my view, inherently reduces the likelihood of his personal use during travel in any event.
• While Detective Serf was properly qualified as an expert witness, (in the sense that his experience in methamphetamine and traffic in methamphetamine certainly exceeded mine as the trier of fact), he had been with the SCU and focusing on drugs for only 20 months at the time of giving his opinion. As noted by the defence, Detective Serf’s assertions about the quantity of methamphetamine found in Mr Odbert’s possession exceeding the limits of Detective Serf’s experience of quantities normally found for personal use needs to be considered with that in mind.

[68] Beyond the possible limitations to the Crown’s evidence in support of possession for the purpose of trafficking, I also obviously must consider the testimony of Mr Odbert.

[69] He provided an account of extended and substantial personal methamphetamine use consistent with the high levels of daily personal consumption described by Detective Serf in relation to heavy users with a developed tolerance for the drug.

[70] Moreover, the amount of methamphetamine found in Mr Odbert’s possession would be consistent with a week’s supply of such heavy daily use; i.e., at 2-3 grams per day.

[71] Mr Odbert also provided an account of how he came to have the 16.4 grams of methamphetamine, and what he intended to do with it, that may not have been “innocent”, but also suggested possession for personal use rather than trafficking.

[72] In my view, there were numerous aspects of Mr Odbert’s account that were implausible, and otherwise strained credulity. For example:

• As Mr Odbert himself acknowledged in cross-examination, it made little sense for someone in such professed financially desperate circumstances, and placing such a high value on gasoline for his vehicle, (as emphasized by Mr Odbert’s stated reason for his willingness to drive a significant distance off route and in the wrong direction, to the Husky gas station, in response to Mr Riordan’s alleged offer of free gasoline), to deliberately travel from Stratford to Kitchener by way of Woodstock without some compelling reason, and in my view, Mr Odbert did not offer one. In contrast to the expansive, candid and sometimes graphic details he offered in relation to other matters, Mr Odbert was noticeably circumspect when providing details of why he felt it necessary to personally visit and see his friend Kim, to see how she was coping with unspecified issues. Certainly, as far as asking about the possibility of an overnight stay, a text or telephone call would have sufficed. In that regard, I find Mr Odbert’s explanation about reticence to use his cellular phone, after being ticketed for using a handheld device while driving, far from convincing or plausible. It does not square at all with the police observations of Mr Odbert and Mr Riordan stopping briefly, between Stratford and Woodstock, (and therefore after the traffic stop resulting in his tickets), for both to get out of the vehicle and both use their cellular telephones. Nor does it explain why Mr Odbert could not similarly have called or texted his friend Kim from the Knights Inn. Moreover, if Mr Odbert was stopping briefly to see his friend Kim to inquire about an overnight stay and check on her progress with personal matters, and Mr Odbert truly found Mr Riordan as unfamiliar and off-putting as he repeatedly emphasized in his testimony, I find it odd that Mr Riordan clearly was permitted if not invited to join in the visit to the Pavey Street apartment building, instead of being asked to wait outside. In my view, such considerations lend strong support to Crown counsel’s submission that Mr Odbert’s stated explanation for the stop in Woodstock was a rather poor fabrication, after-the- fact, to provide an innocent explanation for what the police observed.
• In my view, there are similar improbabilities in relation to Mr Odbert’s assertions that the Husky stop was entirely unexpected, from his perspective, and that he had no knowledge whatsoever of the meeting that happened there. Clearly, the meeting Mr Riordan had there did not happen by chance and was not arranged after Mr Riordan got to the station, as Mr Riordan was seen to be looking for someone immediately on arrival. Mr Riordan therefore either arranged the meeting before joining Mr Odbert in Stratford, (which itself suggests he knew in advance Mr Odbert would agree to drive there, and/or makes it highly unlikely that Mr Riordan would have said nothing whatsoever of the desired destination all the way from Stratford, through the Woodstock stop, and right up until the time the vehicle was joining Highway 401, or that Mr Riordan would have offered no justification whatsoever for the distant out-of-the-way stop in efforts to persuade Mr Odbert to go there), or Mr Riordan arranged the meeting via telephone while en route to the Husky station after securing Mr Odbert’s agreement to drive there, (in which case Mr Odbert likely would have heard what Mr Riordan was saying in arranging the meeting unless that was done via texting). Either way, it seems likely to me that Mr Odbert would have known more about the meeting than he was willing to reveal.
• In my view, there are similar nonsensical aspects to Mr Odbert’s account of what happened and did not happen at the Knights Inn. These ranged from somewhat minor points, (e.g., why a person so allegedly desperate about finances and supposedly with only $315 to his name would have been making trips to buy coffee for others, and why a person professing to have such concerns about personal safety would be checking the interior of vehicles on one occasion while walking outside the Knights Inn but not another), to much more significant ones, (e.g., the professed lack of memory concerning Ms Howse saying anything to Mr Odbert about the precise weight, value or purpose of the substantial quantity of drugs she was giving him, even though some form of repayment of his loan supposedly was the primary reason for his attendance at the Knights Inn). I agree with Crown counsel that Mr Odbert’s professed lack of memory, owing to his alleged consumption of drugs that evening, frequently seemed to come to the fore when he was being pressed on difficult and significant points concerning what happened at the Knights Inn. In contrast, exculpatory aspects of what allegedly happened there were recalled in significant detail.
• There was, as well, Mr Odbert’s inability to explain how, having failed in his attempts to find new employment, having squandered the net sale proceeds from his home, and without further money, Mr Odbert intended to continue satisfying his professed insatiable need for methamphetamine after his supposed intended personal consumption of the drugs supplied to him by Ms Howse. When pressed on this in cross-examination, Mr Odbert claimed that his general intention was death rather than continued use. However, in light of Mr Odbert’s desperation for money and/or more methamphetamine, and his general inclination to do the bidding of Ms Howse, (a person who, to Mr Odbert’s knowledge, regularly supplied drugs to others for resale), the Crown’s suggestion of Mr Odbert agreeing to traffic in methamphetamine for Ms Howse, as his higher tier supplier, seems preferable to death and much more plausible to me.

[73] For all such reasons, I certainly stop short of saying I accept and believe all that Mr Odbert was telling me.

[74] However, having said all of the above:

• As implausible as it may have seemed at times, I thought Mr Odbert’s account also was internally consistent. During his examination-in-chief and cross-examination, it seemed to me that there were no glaring or significant inconsistencies.
• With exceptions such as those I have mentioned, Mr Odbert’s account was also replete with details, and offered without hesitation. Similarly, the answers given in cross-examination generally came very quickly, without Mr Odbert apparently taking any time for thought or reflection.
• In my view, Mr Odbert also provided his account in an emotional and generally compelling manner. That impression was reinforced by the somewhat humiliating and frequently self-deprecating nature of the account, which certainly did not portray Mr Odbert in any kind of flattering light.
• Mr Odbert’s account also was supported, in a number of respects, by contemporaneous and objective documentation. For example, the documentation from Homewood and his employer lends substantial support to Mr Odbert’s account of serious and uncontrollable addiction, including addiction to methamphetamine in the prelude to his arrest. So too does the bank documentation confirming rapid depletion of the net sale proceeds from his house, which is consistent with his professed expenditures relating to substantial consumption of methamphetamine and correspondingly poor choices, (as opposed to profitable trafficking activity). There is, in particular, the existence of a documented $2,000 cash withdrawal that corresponds to Mr Odbert’s professed loan to Ms Howse, as well as the approximate total value of the drugs found in his possession and the “eight ball” of methamphetamine supposedly supplied to Mr Odbert earlier by Ms Howse, as an initial partial repayment of the loan with drugs in lieu of cash. Of course, none of this rules out the possibility of a narrative belatedly manufactured and tailored to verifiable facts. However, such considerations inherently make the account more believable than a tale told without such support.

[75] Again, the amount of methamphetamine found in Mr Odbert’s possession is significantly beyond the quantity of methamphetamine frequently seen in this court in cases of simple possession. Moreover, for the reasons outlined earlier, Mr Odbert’s movements on the evening in question were highly suspicious, and there are numerous aspects of his account that strike me as highly implausible.

[76] If the matter was to be decided on the basis of probable or likely guilt, I frankly would be convicting Mr Odbert of possession for the purpose of trafficking.

[77] But of course, “probable guilt” or “likely guilt” clearly are not sufficient to warrant a criminal conviction.

[78] The proper focus is, instead, on whether the Crown has proven possession for the purpose of trafficking beyond a reasonable doubt.

[79] In the circumstances of this particular case, and for the reasons I have outlined, Mr Odbert’s testimony, along with the limitations of the Crown’s evidence concerning possession for the purpose of trafficking, has raised what I consider to be a reasonable doubt in my mind as to whether Mr Odbert had the relevant methamphetamine in his possession for the purpose of trafficking.

Conclusion

[80] For the reasons set out above, I find the accused Mr Odbert not guilty of the charged offence set forth in the single count of the indictment, relating to s.5(2) of the Controlled Drugs and Substances Act; i.e., possession of a substance included in Schedule I of that legislation, namely methamphetamine, for the purpose of trafficking.

[81] I nevertheless find the accused guilty of the lesser and included offence, set forth in s.4(1) of the Controlled Drugs and Substances Act, of possession of a substance included in Schedule I of that legislation, namely methamphetamine.

[82] The verdict should be noted and documented accordingly.

“Justice I.F. Leach”

Justice I.F. Leach

Released: July 18, 2017