R. v. Bain, 2017 ONSC 6262

CITATION: R. v. Bain, 2017 ONSC 6262

COURT FILE NO.: 11700/14

DATE: 2017/11/06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JESSE BAIN

Defendant

F. Brennan, for the Federal Crown

R. Farrington, for the Defendant

HEARD: September 26 and 27, 2017

JUSTICE A.K. MITCHELL (orally)

Overview

[1] The defendant was charged under s. 5(2) of the Controlled Drugs and Substances Act (“CDSA”) with one count of possession of cocaine for the purpose of trafficking and one count of possession of marijuana for the purpose of trafficking. He was further charged with two counts of unlicensed possession of a prohibited weapon contrary to s. 91(3) of the Criminal Code of Canada (the “Code”).

[2] At the commencement of trial, Mr. Bain was arraigned and thereafter pled guilty to count 1 on the Provincial indictment and pled guilty to the lesser and included offence of possession of cocaine in count 1 on the Federal indictment but not guilty to the charge of possession of that cocaine for the purpose of trafficking.

[3] The trial proceeded with respect only to the issue of whether the cocaine which Mr. Bain admitted to having in his possession was possessed for the purpose of trafficking.

The Evidence

(i) Agreed Facts

[4] Pursuant to s. 655 of the Code, the parties tendered an agreed statement of facts. The following are the undisputed facts of this case:

(a) Officers arrested the defendant at his residence located at 308 Trafalgar Street London, Ontario in the early morning hours of December 12, 2013 with respect to unrelated allegations.

(b) Following the defendant’s arrest, Detective Constable Tennant sought judicial authorization for a warrant to search the residence for firearms and ammunition pursuant to s. 487 of the Code. The warrant was signed at 12:25 PM on December 12, 2013.

(c) At 1:05 PM on December 12, 2013, members of the London Police Service Guns and Drugs Unit executed the warrant. The officers located various weapons, pieces of ammunition, cocaine, and marijuana as follows:

(i) Inside an upper kitchen cabinet to the right of the sink, Detective Carson located:

1. a silver cardboard box containing green dime baggies with powder cocaine. Within those baggies, Detective Carson found:

• 5 g of cocaine in five separate small Ziploc baggies containing 1 g each; and

• 9 g of cocaine in 18 small Ziploc baggies containing 0.5 g each.

2. A blue plate with cocaine residue.

3. An “Equal” digital scale with cocaine residue. This scale was operable.

4. 0.5 g and 1 g weights for the scale.

(ii) Detective Carson also located a large Ziploc bag in the kitchen freezer labelled “1 pound”, later found to contain 378 g of marijuana.

(iii) In the living room, Detective Carson searched within a lidded wooden box that was on top of the coffee table. Inside this box, was found the following items:

1. black “brass knuckles”;

2. a black-handled “Scorpion” flick knife that opened by way of centrifugal force;

3. a “Smith and Wesson” 12 gauge knife;

4. an “iPhone” image digital scale with white powder residue; and

5. several new, unused, green dime bags (located inside a larger green baggie) that were similar in appearance to the dime bags containing the weighed cocaine found in the kitchen.

(iv) On top of the bookshelf in the living room, a bundle of $525.00 in Canadian currency was found. The money was bound by an elastic and leaning against a toque with the word “Bains” sewn into it.

(v) An authentic appearance “Walther Nighthawk’ .177 calibre pellet gun with scope and light was located on top of the bookshelf situated along the back wall of the living room.

(vi) In the bedroom closet, officers found a locked safe. Inside the safe, they found one round each of 22 and 32 calibre ammunition.

(vii) On top of the bedroom dresser, police located a black canvas ammunition belt. Inside the ammunition belt, was found 20 rounds of 270 calibre ammunition. Officers also located one round of 12 gauge shotgun ammunition.

(viii) A “Samsung” cell phone was also found on top of the bedroom dresser.

(ix) A Rogers bill dated July 16, 2013, a Change of Address Confirmation for Driver’s License dated June 13, 2013, and a letter from Centurion Property Associates dated August 27, 2013 were all located in a document folder in the bedroom of the residence. All of these documents listed the defendant’s address as 1459 Trafalgar Street, Unit 308, London, Ontario.

(d) The defendant did not have a license to possess the brass knuckles or the flick knife, both of which meet the definition of a prohibited weapon under s. 84(1) of the Code.

(e) Samples of the cocaine and marijuana seized were sent to Health Canada for analysis. The Certificates of Analysis confirmed that the substances seized were in fact cocaine and marijuana; and

(f) The total street value of the 14 grams of cocaine seized in this investigation was $1400.

(ii) Crown’s Case

[5] The Crown called one witness - Detective Constable Barbara Martin. Detective Martin is a member of the London Police Services Drugs and Guns Unit. With the consent of the defendant, Detective Martin was qualified as an expert in controlled drugs and substances and in particular was qualified to provide expert opinion evidence as to whether the cocaine seized from Mr. Bain’s apartment was possessed for personal use or for trafficking. Specifically, Detective Martin was qualified and permitted to opine on:

(a) the quantities in which controlled drugs and substances are sold;

(b) the valuation of controlled drugs and substances; and

(c) the indicia of trafficking including methods of trafficking in street drugs.

[6] Detective Martin opined that the following evidence is inconsistent with personal cocaine use; however, is consistent with trafficking in cocaine:

• Possession of an electronic scale. Drug dealers use scales to weigh their drugs for commercial sale. In this case, two scales were seized.

• Possession of packaging, which was located in the living room, which matched the packaging that the cocaine was located in and found in the kitchen. The small Ziploc bags are consistent with material used to package cocaine and are often referred to as dime bags.

• Possession of 14 g of cocaine is consistent with the weight of drugs commonly seized from gram level drug dealers. In this instance, 5×1 g packages of cocaine and 18×0.5 g bags were located.

• The presence of brass knuckles and a flick knife located together with dime bags and a digital scale in a lidded wooden box in the living room. Dealers often meet their customers in close quarters and keep weapons close by to protect them and their product.

• The presence of an ammunition belt with 20 rounds of 270 calibre ammunition, a 12 gauge shotgun shell, a 22 calibre round, a 32 calibre round and an authentic looking .177 calibre pellet handgun inside the residence. The existence of ammunition and a pellet handgun is a common trait with drug trafficking. In Detective Martin’s experience, pellet guns have been used as a means of intimidation and protection when individuals keep drugs inside their residence. They are realistic in appearance and are possessed to instill fear and power if the need was to arise. The ammunition itself is not a threat, but having various types of ammunition indicates the possibility of accessibility to firearms. In her experience with drug investigations, Detective Martin was of the opinion that drugs and firearms (ammunition) often go hand-in-hand.

[7] Detective Martin opined that the cocaine seized in this investigation was destined for commercial sale. She further opined that the amount of cocaine seized from the residence was indicative of a low level dealer of cocaine. In anticipation of the evidence of Mr. Bain, Detective Martin provided the opinion that traffickers usually keep their drugs on their person or in their residence to ensure they maintain complete control over their assets.

[8] During cross-examination, Detective Martin admitted that the brass knuckles and flick knife were not found in plain view rather were in a lidded box. Furthermore, she agreed that it would be common for a user of cocaine to spread the cocaine on a flat surface such as a plate to facilitate inhaling the drug and for cocaine residue to be left on the flat surface after inhaling.

[9] Furthermore, Detective Martin agreed that both users and traffickers of cocaine would keep their drugs close to them and within their control whether that be on their person or in their residence. She agreed that it was common for traffickers to keep their drugs, money and weapons in a safe. Mr. Bain’s safe contained only ammunition. And the cocaine was found in a cupboard in the kitchen.

(iii) The Defendant’s Case

[10] In defence of this charge, the accused testified that although he is a frequent purchaser and user of marijuana, he denies ever purchasing, using or selling cocaine. He claims the cocaine and related items seized from his apartment belonged to another individual and were left in his apartment during the evening of December 10, 2013.

[11] The defendant testified as follows:

(a) At the time of his arrest on December 12, 2013 he had lived in the apartment for approximately one year. He lived alone and leased the apartment from Centurion Properties for $550 per month. He was working full-time (seven days a week) as a supervisor at Jiffy Lube and part-time as a doorman at two nightclubs in downtown London.

(b) After finishing work for the day and going to the gym, he returned home at approximately 7 PM on December 10, 2013. He invited his friend, Kyle McNeil, who resided in the same apartment building, and his best friend Aaron Francis who resided in Woodstock, to his apartment to pre-drink before going downtown to the bars later that evening.

(c) Mr. Francis and Mr. McNeil arrived separately at approximately 9 pm. Mr. Francis brought a friend with him, Cody Fieldhouse. He did not know Mr. Fieldhouse. Two females arrived with Mr. McNeil. He had met these women before although they were not well known to him.

(d) He provided alcohol to his guests when they arrived. He offered his guests some of his marijuana which he kept in the freezer and which they smoked using a couple of decorative water bongs he owned and kept on the bookshelf in the living room.

(e) Mr. Fieldhouse asked him if he could bring out his cocaine and use it. He readily obliged him and provided him with a plate from the kitchen cupboard.

(f) He poured himself a drink and went into the living room, smoked marijuana and then proceeded to retire to his bedroom to get ready for the evening. He estimates that his guests were in his apartment for approximately 2 to 2 ½ hours before leaving for Jack’s nightclub in downtown London. During this time he observed his guests moving from the bathroom to the living room to the kitchen as he was getting ready. He did not observe any of his guests snorting cocaine although he assumed they did.

(g) He estimated that he engaged with his guests for approximately a half hour and spent approximately 2 hours showering and getting ready to go out. During this latter time, he claimed he was unaware what his guests were doing.

(h) He and his guests were getting ready to leave around 10:30-11 p.m. on December 10th. He didn’t turn his mind to where Mr. Fieldhouse was as they were leaving and assumed that he took his cocaine with him to the bar. He had no discussions regarding the cocaine with Mr. Fieldhouse.

(i) While at Jack’s he played pool with Mr. Francis and Mr. McNeil. At some point towards the end of the evening he noticed that both Mr. Fieldhouse and Mr. Francis had left the bar although neither individual had spoken to him before leaving.

(j) He and Mr. McNeil left the bar together and returned to his apartment whereupon they discovered that Mr. Fieldhouse had left his backpack just inside the doorway. While he knew that Mr. Fieldhouse did not bring his backpack to the bar, he assumed that he had retrieved the backpack before returning to Woodstock.

(k) He proceeded to clean up the dirty glasses from the living room. Upon entering the kitchen he observed the blue plate earlier provided to Mr. Fieldhouse. It was sitting on the counter together with a rectangular silver box. Without opening the box, he placed that box in the cupboard assuming it contained Mr. Fieldhouse’s cocaine and returned the plate to the cupboard. He did not clean the plate of the cocaine residue.

(l) He texted Mr. Francis in the early morning hours of December 11, 2013 and told him that “Cody’s stuff” was at his apartment and asked when he was coming back to get it. He did not receive an immediate response to his text that day. Later that day, Mr. Francis texted advising he was unable to return that day.

(m) The cocaine and other items remained in the apartment until seized by police on December 12, 2013.

(n) Mr. Bain reviewed the list of items seized by police and gave the following additional information relating to these items:

(i) The brass knuckles were made in shop class in high school. He has a particular affinity for brass knuckles and sports a tattoo of brass knuckles on his chest;

(ii) The flick knife was given to him when he was a teenager by his father. He owns 4 knives which are not kept together. None of his knives has ever been used as a weapon.

(iii) He purchased the Smith and Wesson knife from a Snap-On-Tool truck that came by his place of employment. The handle of this knife resembles the butt of a shotgun.

(iv) As for the iPhone image digital scale found in the wooden box in the living room, he had no knowledge of this item, was not aware it was in the box, did not place it in the box and assumes it was Mr. Fieldhouse’s as he was back and forth between the kitchen and the living room on the night of December 10, 2013.

(v) As for the green dime bags found in the wooden box in the living room, he is not familiar with these bags, was not aware they were in the box, did not place these bags in the box and assumes they too belonged to Mr. Fieldhouse and were placed there by him.

(vi) The ammunition belt seized from the dresser in his bedroom was a gift from a friend. So too was the 12 gauge shotgun shell and the 22 and 32 calibre rounds located in the safe.

(vii) The safe was a gift from his father that was purchased for him when he was young. As a child, he kept his watch and valuable sports memorabilia in the safe.

(viii) The pellet gun was another gift from his father purchased for him 6 or 7 months prior to his arrest. He had never used the gun as a weapon nor had he taken it out of the apartment. He shot pellets at a phonebook for entertainment.

(ix) The $525 CDN found rolled up and secured with an elastic was money he planned to give to his mother to repay her for rent paid on his behalf for the month of December 2013. He had removed a $20 bill for taxi fare when he was arrested anticipating his release on bail later that day.

(x) After his release from jail and after he was charged with the cocaine related offences, he contacted Mr. Fieldhouse and told him to come to court and clear his name. Since that time, he has had no further contact with Mr. Fieldhouse. Once the trial date was set he tried to get a hold of Mr. Fieldhouse but was not successful. He has since learned he now resides in Saskatchewan.

(xi) When interacting with Mr. Fieldhouse on December 10, 2013, he had no knowledge that Mr. Fieldhouse sold cocaine. He only knew that he was a user and that he shared his cocaine with the other guests in his apartment.

Analysis

[12] The Crown submits there are two routes that lead to a finding of guilt. The first route involves dismissing outright the suggestion the cocaine and related items (scales, weights and dime baggies) are the property of anyone other than Mr. Bain. However, should I accept Mr. Bain’s evidence that the cocaine and related items are those of Cory Fieldhouse, Mr. Bain may be found guilty of trafficking in cocaine pursuant to s. 21 of the Code as having aided and abetted the sharing of cocaine by Mr. Fieldhouse with the other guests in Mr. Bain’s apartment on the evening of December 10, 2013.

[13] Because Mr. Bain chose to testify, I must analyze the evidence using the three-pronged approach established in the Supreme Court of Canada case of R. v. W.(D.)[^1]. This approach is as follows:

(a) The first stage of the analysis requires me to assess Mr. Bain’s evidence. If I believe his evidence denying that he traffics in cocaine I must acquit him of trafficking in cocaine whether by selling cocaine or aiding and abetting the sharing of cocaine by Mr. Fieldhouse.

(b) Second, even if I do not believe Mr. Bain’s denial of trafficking but his evidence in the context of the whole of the evidence leaves me with a reasonable doubt regarding his guilt, I must find him not guilty however this finding is subject to the Crown being able to prove beyond a reasonable doubt Mr. Bain’s guilt in aiding and abetting Mr. Fieldhouse’s trafficking by sharing of cocaine pursuant to s. 21 of the Code.

(c) Third and last, even if Mr. Bain’s evidence does not leave me with a reasonable doubt, I may only convict Mr. Bain if, on the evidence that I do accept, the Crown has proven beyond a reasonable doubt that he trafficked in cocaine directly or that he aided and abetted in the trafficking in cocaine by Mr. Fieldhouse.

[14] Simply put, Mr. Bain’s guilt or lack thereof depends on whether I believe Mr. Bain that the drugs and related items were those of Mr. Fieldhouse or whether Mr. Bain’s testimony leaves me with a reasonable doubt as to whether the cocaine and related items were his or the property of another individual.

[15] I do not believe Mr. Bain’s denial of trafficking nor does his evidence in the context of the evidence as a whole leave me with a reasonable doubt. Mr. Bain provided a fantastical account of how the cocaine came to be found in his apartment. His story was incredible, improbable and wholly unbelievable and, without corroboration, his story can achieve no higher level. Certainly not to a level which leaves me with a reasonable doubt.

[16] Mr. Bain‘s evidence does not lead to a reasonable inference that the cocaine was owned by anyone other than Mr. Bain. I come to this conclusion for the following reasons:

• Mr. Bain asks me to infer that it was reasonable for Mr. Fieldhouse and Mr. Francis to leave the bar and return to Woodstock without mentioning to Mr. Bain that Mr. Fieldhouse had left a significant amount of cocaine and other items in his apartment and without making arrangements to retrieve the drugs. The absence of any communication from Mr. Fieldhouse attempting to retrieve his significant amount of cocaine is telling.

• Mr. Bain is fastidious in his dress and the state of his apartment yet upon returning from the bar, Mr. Bain cleaned up the living room including washing dirty glasses yet returned the plate on which he knew Mr. Fieldhouse and possibly other guests had snorted cocaine, to the cupboard unwashed. It defies logic that he would not clean the plate of cocaine residue – a drug Mr. Bain claims to not use.

• A significant quantity of cocaine having a value of $1400 was left on the counter of the kitchen of Mr. Bain – a person unknown to Mr. Fieldhouse until that evening. The cocaine was left on the kitchen counter of an apartment to which Mr. Fieldhouse seemingly did not intend to return. The cocaine was left on the kitchen counter and not placed in his backpack which was sitting only feet away from the kitchen counter.

• Weights were claimed to have been left by Mr. Fieldhouse corresponding to the amounts of cocaine found in the baggies. It is not reasonable to infer Mr. Fieldhouse would bring weights to the apartment, let alone use weights to measure out his cocaine for personal use and for sharing with the other guests during the few hours spent in Mr. Bain’s apartment.

• Mr. Fieldhouse was using cocaine in the kitchen yet another digital scale and a number of unused dime bags were found in a closed wooden box on the table in the living room. Mr. Bain testified that these items were not his and he suggested that because Mr. Fieldhouse was back and forth between the kitchen and the living room at various times during the evening, a reasonable inference is that these items, like the weights, scale and dime bags in the kitchen, were those of Mr. Fieldhouse. This is not a reasonable inference. It again defies logic that Mr. Fieldhouse, a virtual stranger to Mr. Bain before that evening, would leave trafficking paraphernalia not only in the kitchen but also in a wooden box owned by Mr. Bain located in the living room - the same room in which Mr. Fieldhouse’s backpack was located mere feet away. As an aside, the backpack of Mr. Fieldhouse was not seized by police during the search of Mr. Bain’s living room.

• Mr. Bain testified that he kept items that were valuable to him in the safe yet he kept a set of brass knuckles which he made in shop class in high school and two knives - one of which was a gift from his father – in a wooden box on the coffee table in the living room together with dime bags and a scale. I am left to wonder why these items were not kept in the safe if they held special value for Mr. Bain.

• Mr. Bain claims to have spent only a half hour of the 2.5 hours his guests were present in his apartment with them. The majority of the time – approximately 2 hours – was spent showering and getting ready to go out. Mr. Bain asks me to find that he invited a number of individuals to his apartment before heading out for the night, yet did not get ready before they arrived. This finding also defies logic.

• No explanation was provided for Mr. Fieldhouse requiring weights, scales and dime bags for the purpose of personally consuming the cocaine. It is conceded the presence of these items suggest trafficking and not personal use or sharing of cocaine by Mr. Fieldhouse.

• No explanation was provided for not summonsing Mr. Francis as a witness at trial despite being the best friend of Mr. Bain both at the time of his arrest and at present. Mr. Francis is a critical witness. He was the individual who is alleged to have brought Mr. Fieldhouse to Mr. Bain’s apartment and the recipient of Mr. Bain’s e-mail sent on December 11, 2013 requesting that Mr. Fieldhouse retrieve his drugs and related paraphernalia.

• Furthermore, no explanation was provided for not summonsing Mr. McNeil as a witness at trial despite being the individual who with Mr. Bain discovered the backpack had been left behind by Mr. Fieldhouse.

• Mr. Fieldhouse was not summonsed. His involvement and in particular his ownership of the cocaine and related items was not mentioned to the police or the Crown at any time prior to trial. A third party suspect application was never brought by Mr. Bain.

• The e-mail sent to Aaron Francis was not tendered as evidence. The failure to provide any explanation for its absence is troubling. The only real evidence that was tendered for the purpose of corroborating Mr. Bain’s evidence related to the roll of money seized by police from a bookcase in the living room. However, this evidence served to discredit Mr. Bain. The cheques produced by Mr. Bain’s mother covered the period October 2012 through May 2013 and not the Fall of 2013. The letter from Centurion dated August 2013 suggests that by the summer of 2013, Mr. Bain was writing cheques on his own account and his mother was no longer paying his rent. There was no corroborative evidence that Mr. Bain’s mother paid rent on behalf of her son for which the roll of money seized by police totaling $525 was intended as repayment.

• Without something more than the testimony of Mr. Bain, there is nothing to suggest that Mr. Fieldhouse is anything other than a phantom.

[17] Turning now to the third and final step in the W.(D.) analysis. That is, has the Crown proven beyond a reasonable doubt that Mr. Bain was trafficking in the cocaine seized from his apartment on December 12, 2013? Defence counsel, attempted to discredit the testimony of Detective Martin on the basis of bias. I find that Detective Martin displayed no bias in either the preparation of her report or during her testimony. Inadvertence, not malice, is to blame for the incorrect calculation of value of the marijuana seized.

[18] Moreover, the defendant concedes that the quantity of cocaine and possession of scales, weights and dime bags are all indicative of trafficking in cocaine rather than personal consumption. Detective Martin’s evidence in this regard is not challenged.

[19] The Crown’s circumstantial case against Mr. Bain is based on real evidence and together with the expert evidence of Detective Martin satisfies me beyond a reasonable doubt of Mr. Bain’s guilt.

[20] I find that that the cocaine, scales, dime bags and weights found in Mr. Bain’s apartment on December 12, 2013 were the property of Mr. Bain and not just merely in his possession. The only reasonable inference which can be drawn from the evidence as a whole is that he was in possession of the 14 grams of cocaine for the purpose of trafficking.

Conclusion

[21] In the result, I find the accused, Jesse Bain, guilty of count 1 on the Federal indictment.

“Justice A. K. Mitchell”

Justice A.K. Mitchell

Released: November 6, 2017

[^1]: 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.