Court File and Parties
Court File No.: CR-17-486 Date: 2018/09/05 Superior Court of Justice - Ontario
Between: Her Majesty the Queen v. Dennis James Edgar
Before: Justice A. Doyle
Counsel: Michael Mandelcorn, Counsel for the Crown Phil Casey, Counsel for the Accused
Heard: August 23 and 24, 2018 (at Kingston)
Decision
Overview
[1] Mr. Edgar is charged with the following:
On or about February 23, 2016, he did unlawfully possess a substance included in Schedule I, i.e. fentanyl, for the purpose of trafficking contrary to s. 5 (2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, (“CDSA”).
[2] He denies that he knew he was in possession of fentanyl and consequently he could not have had a purpose of trafficking. Possession is defined in s. 4(3) of the Criminal Code, R.S.C., 1985, c. C-46 (the “Code”) as including anything knowingly in one’s actual possession or control.
Facts
[3] The facts not in dispute are set out below.
[4] At the time of the alleged offence, Mr. Edgar was serving a penitentiary term at the medium security unit at Collins Bay. On February 22, 2016, he was placed in a dry cell as a result of a call received by the Acting Correctional Manager from a confidential informant who told her that Mr. Edgar had brought drugs into the prison. The Warden was notified and he determined that Mr. Edgar would be placed in the dry cell.
[5] A dry cell is an 8' by 8' windowless room located in the segregation unit which is used to contain inmates who have been suspected of being involved with the distribution of drugs. The inmates are kept on 24/7 observation through cameras that feed to monitors located at the observation post. The theory is that if the drugs are in a body cavity, at some point, those drugs will be expelled. Inmates are released from the dry cell after three bowel movements.
[6] The dry cell is in a secure hallway with a barrier door that is supposed to be locked at all times. It contains a concrete bed with a heavy mattress, a door with a window and a food slot but no other window. There is another locked door leading to a toilet which is only accessible if the inmate is escorted by an officer.
[7] After an inmate ends his stay in the dry cell, the following procedure is engaged by the service personnel: − the room is searched and inspected; − the room is cleaned by service personnel and sometimes by inmates provided they are escorted; − the mattress, security blanket and gown used by the previous inmate are removed; − the blanket and gown are replaced with clean intact ones; and − the new blanket is examined to ensure that there are no rips or tears.
[8] There are no other items in the dry cell.
[9] At the time of the alleged offence, most of the clean mattresses, gowns and blankets were kept in an interview room adjacent to the dry cell.
[10] This interview room is used by members of the public including lawyers, probation officers, counsellors, legal aid staff, nurses, doctors and correctional staff. Inmates are escorted there by an officer. If a confidential meeting is taking place, the door is closed and an officer waits outside the door.
[11] Meetings can also be held in the “courtroom” in the hallway.
[12] On February 23, 2016, while Mr. Edgar was using the toilet, an officer found the blanket in the dry cell to be tattered and ripped. He immediately placed it in a bin outside the cell and subsequently it was x-rayed.
[13] An object the size of a golf ball, wrapped in a condom and saran wrap, was found in the blanket. It contained 4.14 grams of fentanyl.
Issue
[14] The issue turns on the mental element of the offence. Is the Court convinced beyond a reasonable doubt that Mr. Edgar had actual knowledge of the possession of the drug and, if so, was he in possession for the purpose of trafficking?
Crown’s case
[15] The Crown called six witnesses outlining the procedure in the segregation area in accordance with Ministry standards. The procedure outlines the constant scrutiny and oversight of inmates in this area of the prison.
[16] Ms. Linda Coletta, the Acting Correctional Manager, received the call from a reliable confidential informant with information that Mr. Edgar had drugs.
[17] She confirmed the procedure in the segregated unit as indicated above and, according to the Commissioner’s directive, the footage from the Closed Circuit Television (CCTV) which is in operation 24/7 while an inmate is in the dry cell, is downloaded when charges are laid.
[18] Nigel Helmer is a Correctional Services Officer who has worked in the correctional system for 12 years. He was on duty on February 23, 2016 from 7:00 a.m. to 3:30 p.m. and observed the dry cell containing Mr. Edgar from the observation post.
[19] He confirmed that the segregation unit holds 43 inmates and each one is moved one at a time to the yard, showers, visits, health care interviews and is escorted by officers at all times.
[20] He confirmed that the interview room is also used for storage. There have been a few times that inmates cleaned the interview room but were escorted by an officer at all times.
[21] At the time of the alleged offence, most of the blankets, gowns and mattress were kept on a top shelf in the interview room. If there is no inmate, the mattress stays in the dry cell as it is large. They are now kept in a secure room.
[22] The blanket is heavy and does not rip easily. The usual procedure is that an officer inspects the dry cell before a new inmate arrives and retrieves the blanket and gown. He conducts a search of the area, checks the mattress and ensures that the blanket placed in the dry cell has no rips, bumps or tears. If so, it is returned to service personnel.
[23] He first saw Mr. Edgar on February 23, 2016 when he was monitoring him at his post. His job that day was to observe the monitor the whole day.
[24] He saw Mr. Edgar wave at the camera signalling his need to use the toilet. He found someone to take over the observation of the monitor and went to the dry cell with another officer. While the other officer escorted Mr. Edgar to the toilet, he searched the cell and found tears in the blanket. Due to the small torn pockets, he removed it and placed it the empty cart outside the dry cell in the unit. It was the only blanket in the bin.
[25] Mr. Edgar asked why he was taking the blanket. Mr. Helmer said it was in a deteriorated state and was providing him with a new one. When Mr. Edgar asked again, Mr. Helmer provided the same response.
[26] Mr. Helmer confirmed that he did not place the blanket and gown in the dry cell before the arrival of Mr. Edgar to the dry cell and is not aware if the proper procedures were followed on the 22nd.
[27] Sebastien Boulianne has been employed as a Correctional Officer for the past 11 years and was working in the segregation unit on February 23, 2016. He described the procedure that is implemented before the arrival of an inmate: the cell is inspected and the replacement of the blanket and gown is done and a strip search of the inmate is completed. An inspection includes inspecting the ledges, door frames and washrooms. He was not on duty when Mr. Edgar arrived.
[28] On February 23rd, 2016, he escorted Mr. Edgar to the toilet when officer Helmer was in his cell inspecting the blanket that was taken away and replaced with the new blanket.
[29] Ryan Blasko, an acting security intelligence officer, was on duty on the day that Mr. Edgar was brought to the dry cell. His task included reviewing the monitor in the security intelligence office. The monitor is used to watch the inmate’s movements while in the dry cell.
[30] He did confirm that once you enter the segregation unit from the barrier door, the first door on the left is the board room followed by the dry cell.
[31] The control barrier at the beginning of the hallway is controlled by officers and offenders are not permitted access to the dry cell. The barrier door is sometimes left open but most often it is closed.
[32] The interview room is used by nurses, probation officer, lawyers, cleaners and psychologists. Inmates are always accompanied by officers.
[33] Mr. Blasko described the blanket as heavily quilted, with tightly woven nylon providing the inmates with some comfort from the bed made of concrete slabs.
[34] He stated that food is never served in cellophane but rather in Styrofoam and on hard plastic trays.
[35] Before an inmate is placed in the dry cell, he is frisked, strip searched, the soles of his feet are examined, his mouth is inspected and he is asked to bend down and touch his toes while a visual inspection is done of his rectum.
[36] As the view in the monitor was blurry, Mr. Blasko went to the dry cell to clean the camera lens. While in the dry cell, he made a perfunctory review of the mattress, security gown and blanket. He did not inspect the items nor the room. There were no other items in the dry cell.
[37] At 13:39 on February 22nd, 2016 he observed Mr. Edgar manipulating the blanket as he sat on the bed, holding it up to his face and looking at the edge of it. This occurred for about ½ hour. He did not report this to anyone. Nothing unusual occurred during the time he was monitoring Mr. Edgar’s movements in the cell. He spent the majority of the afternoon looking at the monitor.
[38] On that same day, Mr. Edgar waved at the camera requesting to use the toilet and he was also observed making a kicking motion. Mr. Blasko stated that he observed something on the ground. When an inmate must go to the toilet, two officers are sent to the dry cell, one inspects the dry cell while the other officer escorts him to the toilet.
[39] An officer discovered some cellophane and four band aids in the dry cell. Mr. Blasko went down to the dry cell to speak to Mr. Edgar about it. Mr. Edgar told him that the band aids were for his index finger that had been injured by ice in a snow ball.
[40] No cuts were observed on the Mr. Edgar except some scabs but no dry blood. The items were logged and placed in an evidence bag.
[41] On February 23rd, 2016, while Mr. Edgar was using the toilet, an officer noted that the blanket was very tattered, contained holes and was worn especially along the edges.
[42] The blanket was removed from the dry cell and placed in a large bin outside the dry cell, and it was the only item in the bin. After obtaining permission from the warden, Mr. Blasko took the item to have it inspected.
[43] The size of the piece torn from the blanket was 2 inches in depth and it was used to conceal a 1.5 inch compressed latex condom. He retrieved a package in a condom wrapped with cellophane containing a solid piece of substance which was later determined to be an opiate using the Narcotics Identification Kit (NIK).
[44] Mr. Blasko took the photos while Shannon Thompson examined the specimen. The officers suspected that it was be fentanyl, as there had been deaths at the prison due to overdoses.
[45] The drug was placed in an evidence bag and was secured in a lock box. The total package weighed 7.7 grams, while the drug weighed 4.14 grams.
[46] He could not explain why the CCTV footage was not preserved in this case.
[47] Adam Crawford is a Correctional Services Officer since 2011 and was on duty on February 22, 2016 from 7 a.m. to 7 p.m. He is familiar with the procedure whereby the dry cell is cleared out and inspected before a new inmate is placed there. A visual is done and hands are used to search the cell for contraband. The blanket was stored in the interview room next door at the time.
[48] He confirmed that the blanket is typically examined before it is placed in the dry cell to ensure that it has not been tampered with and that there are no rips or tears.
[49] He was present on February 22, 2016 when Mr. Edgar needed a bowel movement. Prior to Mr. Edgar being permitted to use the toilet, Mr. Crawford inspected the toilet area. He observed the inmate and after he was finished, he secured the door to the toilet. He confirmed that the dry cell was under constant observation through a camera linked to a monitor at the observation post.
[50] The inmate also has a button he can press if he needs something. He found the saran wrap and band aids on the floor beside the bed and he would have searched the blanket. Saran wrap is removed from food before it is given to inmates.
[51] Shannon Thompson has been a Security Intelligent Officer for eight years and described Collins Bay as a multi-level unit with minimum, medium and maximum security. Most inmates are in the medium unit.
[52] After Mr. Edgar was placed in the cell, she went to speak to him but did not check anything in the dry cell.
[53] She assisted Mr. Blasko with the processing of the package found in the dry cell. She described it as a condom, smell of feces, with multiple layers of saran wrap and 4.14 grams of yellowish substance which tested positive. There was no feces residue and it was wet, moist and had a heavy odour and it was smaller than a golf ball.
[54] On consent, Officer Shannon Thompson was qualified as an expert on the “introduction of drugs inside the institution, how they come in, how they are distributed and the weight of drugs”.
[55] She adopted the report of Jean-Marc Burrelle, Security Intelligence Officer at Joyceville Institution minimum unit dated January 31, 2018 (exhibit 3). (“Expert report”)
[56] She explained that drugs come into the prison in different ways including “throw overs” which is the tossing of drugs over a fence from someone on the outside. Drugs can be brought in from members of the public while visiting an inmate or service providers, inmates returning from being on leave and recently from drones.
[57] She also explained that the distribution of drugs is not uncommon in the prison. Inmates are able to find diverse ways to bring in and distribute drugs within the institution by observing the routines and patterns of the institution and then devising schemes around them.
[58] Drugs can be distributed by flaps (which are flat squares of paper folded in an envelope). Drugs are usually sold by a tenth of a gram which is called a point and really only .5 to .8 of a gram.
[59] 4.14 grams of fentanyl would be broken down by the offender or someone else with a skill set would cut it down and mix with medication or protein powder and placed in flaps. There had been many overdoses in last couple of years and 20 inmates have died in Collins Bay.
[60] 4.14 grams of fentanyl is 41 points or doses. It would not be used for personal use but for distribution to other inmates. A point is valued at $100 to $115. She admitted that she did not know the dosage or concentration or its strength but the potency does not necessarily affect the number of points that can be sold.
Crown’s Position
[61] The Crown submits that although the Court does not have the CCTV footage of the coverage of the corridor and the dry cell unit, it does not have the testimony of the officer who took the blanket from the cell before Mr. Edgar’s arrival there and does not have the testimony of the officer who placed the new blanket into his cell. The Court also has the evidence of the procedure implemented in the segregation unit.
[62] There should be no adverse inference of the fact there was no CCTV footage or of the officer who cleaned the cell. It is also reasonable to infer that, based on the procedure that has been described by all the officers who testified at the trial, the blanket with tatters and rips would not have been placed in the cell in that condition. It is unlikely that the blanket that was retrieved would have made its way through the system and ended up in Mr. Edgar’s cell as damaged as it was.
[63] He asks the Court to consider that the inmates are under surveillance at all times, that the inmates were not permitted in the interview room where the blankets were stored at the time of this alleged offence without an escort and that the barrier door to the segregation unit corridor is typically locked. The officers were experienced officers who followed procedure and testified as to the routine.
[64] Any suggestions made by Mr. Edgar as to how the contraband and drugs were placed in the blanket are fanciful. Regarding the quantity of the drugs, the Crown submits that there is no air of reality that the 4.14 grams of fentanyl were for personal use.
Defence’s Position
[65] The defence has put forth some theories as to how it may have gotten there. Other members of the public, including inmates had access to the interview room where the blankets were kept in 2016. They are now stored elsewhere in a secured room. The defence surmises that perhaps the blanket was not removed from the cell before Mr. Edgar arrived.
[66] Crucial evidence is missing that should have been available to explain how the drugs found its way into the blanket in Mr. Edgar’s cell, i.e. CCTV footage, testimony observing him placing the drugs in the blanket, the testimony of the officer who replaced the blanket before Mr. Edgar was placed in the dry cell.
[67] The burden is not on Mr. Edgar to explain how the drugs were in his cell. The burden is on the Crown to prove the elements of the offence. The Defence submits that the Crown failed to prove that Mr. Edgar had knowledge of the possession of the fentanyl beyond a reasonable doubt.
Analysis
[68] The Crown is required to prove the offence beyond a reasonable doubt. Absolute certainty is not required but something more than probable guilt is required.
[69] The Crown has asked the Court to accept that the procedure as described by its six witnesses had been followed that day. It is an area that is heavily monitored with the inmate being under constant surveillance. In addition, the expert report outlines the procedures of a dry cell which includes that the dry cell will be thoroughly searched prior to the admitting of the inmate into the dry cell. The inmate is strip searched, a clean and searched security gown and security blanket are provided. Food items do not have plastic wrap. The food is visually inspected and anytime that the inmate is removed from the dry cell it must be searched before the inmate is returned to that cell.
[70] Most significantly in this case, a blanket is only placed in the cell if it is without tears or rips. It is described in the expert report as follows: − the blanket material is “resistant, not full proof therefore with some effort tears can be made over time in the material with teeth, fingernail or any other object the inmate may have in his body cavity at the time he is placed in the dry cell. For this reason, every time the inmate is removed from the cell it must be searched by a Correctional Officer to ensure the mattress, gown and blanket have not been tampered with”.
[71] When the inmate is on the toilet, he is told to keep his hands above the toilet in plain view of the Correctional Officer. He must be viewed the total time while he is on the toilet and the toilet paper is placed into a garbage can with a clear plastic bag.
[72] The officers thoroughly clean the toilet as necessary and this must be done at the end of the inmate’s stay before a new inmate is admitted.
[73] In theory, the above procedure provides a constant watch on the inmates and their activity. However, in this case, the Crown did not call the individual who removed the blanket and gown from the dry cell before Mr. Edgar took occupancy on February 22, 2016. The Court did not hear from the individual who placed the clean blanket and gown in the dry cell before Mr. Edgar’s arrival on that day.
[74] The Court heard the evidence of Blasko who had attended the dry cell to clean the lens of the camera before the arrival of Mr. Edgar but he was not there to inspect the cell to ensure it was clear of any debris. He only completed a perfunctory review of the items in there. He did not examine the blanket.
[75] The Court does not have the footage from the CCTV of the dry cell and the corridor in the segregated unit between the dry cell and officers’ control post. According to procedure this should have been downloaded. No explanation was provided.
[76] Mr. Blasko indicated that after the discovery of the fentanyl, he viewed some of the footage but did not see anything unusual or incriminating.
[77] The Crown has failed to prove beyond a reasonable doubt that Mr. Edgar actually knew or was aware that he was in possession of the fentanyl. The Court has also considered the following evidence: − Mr. Edgar was strip searched when he was moved to the dry cell which included a visual inspection of his rectum; − Mr. Edgar had no sharp objects; − The torn tattered blanket was not in evidence; − There was no footage of the 24/7 observation of Mr. Edgar; − There was no evidence that in fact the blanket from the previous inmate had been removed prior to Mr. Edgar’s arrival to the dry cell; − There was no evidence that a clean blanket had been placed in the dry cell; − If he was under constant observation, there was no evidence from anyone that they saw him “tearing, using a knife…” as described by the expert that would have been required to tear the blanket that was described as a heavy blanket with the same durability as blankets used by moving companies; − Mr. Blasko reviewed the tape after the incident and did not see anything unusual; − although, Ms. Thompson indicated that when she inspected the sample it smelled of feces, there were no feces found on the blanket, on Mr. Edgar or his clothing or anywhere else in the cell; and − according to protocol, Mr. Edgar was under 24/7 observation. No one was called to say that they had seen him rip, tear or manipulate the blanket. The purpose of a dry cell was to find the contraband and, in this case, they found it but there are some gaps in the continuity of the blanket that leaves the Court with reasonable doubt that the drug was planted there by Mr. Edgar.
[78] There was no evidence proffered by any officer that they noticed anything unusual on the CCTV or otherwise. Even Mr. Blasko who observed Mr. Edgar touching his blanket and moving it around with his hands, was not alerted by this, nor did he report this to anyone as being suspicious or worthy of explanation. There was no evidence led that any officer who saw Mr. Edgar biting, tearing the blanket or using any type of tool to rip it open.
[79] The Court accepts that there is a procedure followed by the security personnel but not all procedure is 100% followed, e.g. the barrier door is left unlocked at times. One officer indicated that food is at times served with cellophane on its sandwiches whereas Blasko said it is never served in cellophane.
[80] It is certainly suspicious as to how the fentanyl found its way into Mr. Edgar’s dry cell. However, criminal courts do not convict on suspicions.
[81] The Court has heard evidence of the epidemic with fentanyl at the time and the overdoses leading to deaths in the prison. This is a grave concern. The distribution of drugs in prisons is dangerous and provides for an unsafe environment. Fentanyl is a dangerous opiate with potent effect.
[82] But this case is about Mr. Edgar and the evidence against him on this particular charge, on this particular day, in this particular cell, with this particular blanket.
[83] Given the above findings, the Court has a reasonable doubt.
[84] Accordingly, the charge is dismissed.
Justice A. Doyle Released: 2018-09-05