Court File and Parties
Oshawa Court File No.: CR-17-14650 Date: 2018-11-02 Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – Christopher Lee Allan, Defendant
Counsel: Nicholas Frid, for the Crown Jacquelin McLaughlin, for the Defendant
Heard: October 29-31, 2018
Reasons for Decision
DE SA J.:
Summary of Facts
[1] Mr. Christopher Lee Allan is charged with a number of offences including possession of fentanyl for the purpose of trafficking, possession of crystal meth for the purpose of trafficking, and possession of hydromorphone for the purpose of trafficking, all contrary to s. 5(2) of the Controlled Drugs and Substances Act.
[2] On June 27, 2017, the accused was arrested near the address of 4-308 Montrave Avenue for breach of recognizance and possession of stolen property. At the time of his arrest, police located a backpack between his feet. A search of the backpack revealed:
- Ziplock bags
- Digital scale
- 4.1 grams of fentanyl
- 16 grams of crystal methamphetamine
- 32 pills of hydromorphone
[3] There is no issue that the drugs located in the backpack belonged to Mr. Allan. Mr. Allan has also acknowledged in his testimony that he possessed the 16 grams of crystal methamphetamine for the purposes of trafficking. The only issue remaining is whether or not the fentanyl and hydromorphone were possessed by Mr. Allan for the purpose of trafficking.
Expert Evidence
[4] Detective Constable Mike Wesseling #3520 was called by the Crown as an expert on the trafficking of fentanyl, crystal methamphetamine, and hydromorphone. He also commented on pricing, drug paraphernalia and patterns of use. There was no issue taken with his expertise.
Fentanyl
[5] According to DC Wesseling, a single dose of fentanyl is typically used in the range of .01 -.05 grams. A typical user would purchase anywhere from .01 to 1 gram of fentanyl for personal use, with 1 gram being at the higher end of the spectrum.
[6] In his experience, 1 gram would sell for approximately $300 on the street. Accordingly, 4.1 grams would be valued in excess of $1200.
[7] In his view, given the large quantity seized in this case, the 4.1 grams of fentanyl would be more consistent with trafficking in the drug. It would not be consistent with personal use.
Crystal Methamphetamine
[8] According to DC Wesseling, a typical dosage of crystal meth for a user would be approximately .2 grams. On the street, a user would possess anywhere from ½ gram to 1 gram of crystal meth.
[9] Again, given the quantity possessed in this case, DC Wesserling testified that 16 grams would be more consistent with a quantity possessed for the purpose trafficking. The quantity of crystal meth in this case would be valued at around $1600.
Hydromorphone
[10] According to DC Wesseling, 32 pills would be consistent with a personal possession for a person who is in palliative care, or is managing pain.
[11] If the opioid of choice is unavailable, pills of this sort are often used as an alternative.
[12] However, given that the hydromorphone in this case was found together with the other drugs, DC Wesseling was of the opinion that the hydromorphone was also possessed for the purpose of trafficking. It would be unusual for a user to have both drugs in his possession for personal use. Similarly, the digital scale and baggies would suggest that the drugs, including the hydromorphone, were being sold.
Testimony of Christopher Allan
[13] Christopher Allan testified at trial. He testified that he has had substance abuse issues for over 25 years. He was 13 or 14 when he started using hash oil and marijuana. His addiction later extended to opioids and most recently fentanyl.
[14] Mr. Allan testified that he has been using fentanyl for 5 years, and has been using opioids from the age of 15.
[15] According to Mr. Allan, he can use up to 3 grams of fentanyl a day. The day before he was arrested, he purchased 7 grams of fentanyl. That quantity would typically last him 2 days. He was using a lot at the time as his wife had just passed away. According to Mr. Allan, he would use the fentanyl by heating it on foil and inhaling it.
[16] In the past, he had used 2-3 grams of crystal meth a day. However, the meth in his possession was purchased for sale. He purchased the meth the evening before. According to Mr. Allan, at the time he was selling the meth to finance his fentanyl habit.
[17] Mr. Allan testified that the hydromorphone was his emergency stash and again was for personal use. Mr. Allan testified that he would only use the hydromorphone if he didn’t have fentanyl. He couldn’t say how long he had the hydromorphone or when he purchased it.
[18] According to Mr. Allan, he didn’t spend anywhere near what the expert described for the drugs in his possession. He paid $400 for the 7 grams of fentanyl and $450 for the meth. He would sell meth for $60-$80 per gram. Generally speaking, he would only pay $6-$8 per pill for the hydromorphone.
[19] He would often trade his personal property for drugs. He traded his skidoos. He sold his car at the time to pay for drugs. He used to have a substantial amount of assets and tools. Mr. Allan testified that he once had close to $300,000 in assets. His evidence, however, was unclear as to the exact timing he had these assets.
Analysis
[20] The Crown takes the position that I should reject the evidence of Mr. Allan. His explanation makes no sense, particularly when considered in the context of the unchallenged expert evidence. The accused’s suggested “usage” is clearly contradicted by the expert’s evidence. The Crown also argues that the amount of drugs in his possession would cost far more than Mr. Allan suggests.
[21] Given the amount of drugs, the digital scale, baggies, and the fact that he had all three drugs together, it would make no sense that the accused had the fentanyl strictly for personal use. While he may have also been using the fentanyl, he was also clearly selling it.
[22] The Crown also argues that his explanation of his assets makes no sense. If he had $300,000 in assets available for sale/trade, there would be no reason for him to be selling crystal meth. His version of events is itself internally inconsistent and should be outright rejected. He is clearly trying to minimize his jeopardy by admitting to selling the meth and denying selling the fentanyl.
[23] I recognize the concerns raised by the Crown. I agree with the Crown that the evidence of Mr. Allan seems to be directly contradicted by the expert’s evidence in terms of usage. Given the numbers outlined by the expert, it would be impossible to ingest fentanyl at the rate described by the accused.
[24] However, the evidence is unclear as to the purity of the fentanyl in this case. The expert evidence did not comment on the potency of the drug when inhaled in the manner described by the accused. Finally, I have no clear evidence as to how long term usage may impact a user’s tolerance for the drug. These factors leave me with a certain measure of uncertainty regarding the expert’s evidence on the seminal issue.
[25] I also cannot say that I viewed the accused’s evidence as being calculated to reduce his possible jeopardy. He acknowledged selling crystal meth which clearly subjects him to substantial jeopardy. He also seemed quite candid about his circumstances, and was embarrassed about describing how he would use each drug. It was the Crown that questioned him on this point, and he only answered at my direction.
[26] Where there is defence evidence, including testimony from the accused as in this case, the court must not assume that its verdict can be based on a choice between the Crown’s evidence and the accused’s evidence. I must apply the rules set out in R. v. W.D., [1991] 1 S.C.R. 742, as follows:
- If I believe the evidence of the accused, I must acquit.
- If I do not believe the evidence of the accused, but I am left with a reasonable doubt by it, I must acquit.
- Even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence I accept, I am convinced beyond a reasonable doubt by the evidence of the accused’s guilt.
[27] In the circumstances here, I am not satisfied beyond a reasonable doubt that the fentanyl or hydromorphone were possessed by the accused for the purpose of trafficking.
[28] Accordingly, I convict the accused on count 3 of the indictment (possession of crystal meth for the purpose of trafficking). I will also convict him of the lesser included offences of possession of fentanyl and possession of hydromorphone. He is acquitted of the charges of possession of fentanyl for the purpose of trafficking and possession of hydromorphone for the purpose of trafficking.
[29] Count 1 on the indictment is withdrawn at the request of the Crown.
[30] I thank counsel for their able assistance on this matter.
Justice C.F. de Sa Released: November 2, 2018