COURT FILE NO.: CR-18-094-00 DATE: 20190524 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – SHAMAR BOWEN SOARES Defendant/Respondent

COUNSEL: A. Meiners, for the Crown B. Sherwood, for the Defendant

HEARD: March 25-28 and April 1, 2019

DAWE J.

[ 1 ] On March 11, 2017 Shamar Bowen Soares was arrested by the Barrie Police while riding as a passenger in a vehicle with two other men. A strip search at the police station revealed that he had two bags concealed under his underwear, one containing a quantity of crack cocaine and the other containing a powdery substance that testing later revealed was a mixture of heroin and fentanyl.

[ 2 ] Mr. Bowen Soares stands charged on a six-count Indictment alleging various Controlled Drugs and Substances Act offences. Counts 1, 3 and 5 charge him respectively with simple possession of the heroin, cocaine and fentanyl, while Counts 2, 4, and 6 charge him with possessing these same drugs for the purpose of trafficking. It is common ground that each pair of counts should be understood as alternative charges relating to the same physical items, and that Counts 1, 3 and 5 are redundant since simple possession is already an included offence of possession for the purpose of trafficking.

[ 3 ] Mr. Bowen Soares re-elected to be tried before me without a jury, and entered pleas of not guilty to all charges. His primary defence is Charter based: he maintains that the police had insufficient grounds to lawfully arrest him and that his arrest and subsequent search incident to arrest accordingly infringed his ss. 8 and 9 Charter rights. He argues further that the seized evidence should be excluded under s. 24(2).

[ 4 ] If the seized drugs are not excluded, Mr. Bowen Soares’s position is that the Crown has not proved that he possessed any of them for the purpose of trafficking. A further issue that arises on the facts of this case is whether Mr. Bowen Soares can properly be found guilty of two separate offences for possessing a mixture of heroin and fentanyl, in the absence of proof that he knew that the mixture contained both substances.

I. The Evidence

A. The Barrie Police background investigation

[ 5 ] In mid-December, 2016 the Barrie Police received a confidential informant tip that drugs were being sold from a particular unit in a “geared to income” housing complex at 549 Yonge Street in south Barrie. Two officers attended the area at different times on December 20, 2016 and one saw a blue Hyundai with licence plate BYFE 877 parked outside. The car was registered to a numbered company in Scarborough.

[ 6 ] In January and February, 2017 the police received additional anonymous information about drug dealing at the same Yonge Street address. The new tip indicated that a person using the name “Jordan” was selling cocaine and heroin from that address, and reported that the same blue Hyundai observed by the police in December had been seen there.

[ 7 ] On February 1, 2017 the Barrie police received a call reporting a woman who was apparently passed out in a white Hyundai Elantra with licence plate BYFE 881. PC J. Breedon attended the scene and spoke with the woman, who identified herself as Jennifer Watts. Ms. Watts explained that she was waiting for her friend Jordan, whom she described as a young black male with long dreadlocks. She explained further that Jordan had leased the white Hyundai but had recently agreed to transfer the lease to her and purchase Ms. Watts’s own vehicle, a white Mazda 3 with licence BXDH 407. Ms. Watts gave PC Breedon a rental agreement for a different Hyundai with licence plate BYFE 877. This was the same car the police had seen parked at the Yonge Street address in December, 2016 and that had been referred to in the subsequent anonymous tips. The rental agreement for this vehicle was in Mr. Bowen Soares’s name. PC Breedon spoke by phone with a man who identified himself as Mr. Bowen Soares. The man confirmed the accuracy of what Ms. Watts had told the officer. Later that day members of the Barrie Police street crime unit saw the white Mazda parked at 150 Bayview Drive, which is also in south Barrie.

[ 8 ] On February 11, 2017 the Barrie police received a report that someone in a white Mazda with licence plate BXOH 407 had a black knapsack with drugs and possibly a gun. Since Ontario does not use the letter “O” on licence plates, the officers who investigated this report concluded that the plate number was probably BX D H 407, which is the licence of the Mazda Ms. Watts had told PC Breedon she was selling to her friend “Jordan”. The officers located that vehicle and saw a black male getting out but discontinued their investigation when they did not see any knapsack.

[ 9 ] A few weeks later, on February 27, 2017 the Barrie Police conducted a highway traffic stop of the white Mazda. Ms. Watts was driving, Mr. Bowen Soares was in the front passenger seat, and a third man named Christopher Gordon was in the rear seat. The police could smell marijuana and observed a Ziploc bag containing various forms of cannabis behind the driver’s seat. The three occupants of the car were arrested but Mr. Bowen Soares was released without charges. Ms. Watts and Mr. Gordon were taken to the police station where “complete searches” revealed that they both had large quantities of drugs concealed in their bodily orifices. Ms. Watts had heroin and powder and crack cocaine concealed in her vagina, while Mr. Gordon had powder and crack cocaine concealed in his rectum.

[ 10 ] On March 2, 2017 DC Brad Breedon conducted a file review. He was already aware of the information obtained from Ms. Watts and Mr. Bowen Soares by PC J. Breedon – who coincidentally is DC Brad Breedon’s brother – on February 1, 2017. During his March 2 file review DC Breedon learned about the February 11 report concerning the white Mazda, and about the February 27 drug arrests of Ms. Watts and Mr. Gordon while they were in Mr. Bowen Soares’s company. He also learned that Mr. Bowen Soares had been charged in Toronto with simple possession of various controlled substances, including crack cocaine, for which he had received a conditional discharge in April 2016. DC Breedon contacted the Toronto police and obtained from them Mr. Bowen Soares’s photograph.

[ 11 ] DC Breedon testified that he also reviewed information provided by “multiple human sources” in January and February, 2017 to the effect that “Jordan” was selling cocaine and heroin in Barrie and was re-upping his drug supply weekly in what the sources described as either Toronto or “the city”.

B. The March 3 and 4, 2017 surveillance and the March 5, 2017 occurrence report

[ 12 ] During the evening of March 3 and the afternoon of March 4 2017, a team of Barrie street crime officers set out to conduct surveillance on Mr. Bowen Soares in the south Barrie neighbourhood northwest of the intersection of Bayview Drive and Little Avenue, which was the area where the white Mazda (BXDH 407) had been seen on February 1, 2017. The neighbourhood consists of multi-unit low-rise buildings owned by the Barrie Municipal Non-Profit Housing Corporation. DC Breedon described it as an area well known to the police for complaints about drug dealing.

[ 13 ] On the evening of March 3 the police located the white Mazda parked outside 77 Carol Road, a block west of the Bayview Drive address where it had been seen on February 1. They saw a black Hyundai with licence plate BYFE 876 parked outside the Bayview Drive address. This vehicle was registered to the same Scarborough numbered company as the two other Hyundais previously associated with Mr. Bowen Soares and had a similar licence plate number: BYFE 876 for the black Hyundai, as compared with BYFE 877 for the blue Hyundai and BYFE 881 for the white Hyundai. The officers did not see either the Mazda or the Hyundai move that evening or observe Mr. Bowen Soares, and eventually discontinued their surveillance.

[ 14 ] The next afternoon the police returned to the neighbourhood to conduct further surveillance. The white Mazda was still parked at 77 Carol Road and did not seem to have moved since the previous evening. At around 3:30 p.m. officers saw the black Hyundai (BYFE 876) drive from Bayview Road to an address on Carol Road across the street from where the Mazda was parked. They saw Mr. Bowen Soares moving boxes and other containers into a ground floor unit in the building. After about 45 minutes he got back into the Hyundai. Before surveillance was discontinued officers observed him driving to several other locations in the neighbourhood, picking up and dropping off a female passenger, and walking towards a building at 100 Little Avenue, in between Bayview and Carol Roads.

[ 15 ] The next day, March 5, 2017 a woman who lived at 100 Little Avenue reported that she had been robbed and beaten over an $80 drug debt. The complainant said that “Jordan” had been present at the time of the robbery but had not been involved in the robbery itself, and added that a few days earlier she had seen Jordan and another man she knew as “Wiser” in possession of a handgun. The complainant made a further statement the next day that made no mention of “Jordan”. DC Breedon learned about these reports a few days afterwards, on March 8, 2017.

C. The March 11, 2017 trip to Brampton

[ 16 ] The Barrie police resumed surveillance of Mr. Bowen Soares on the afternoon of Saturday, March 11, 2017. At around 4:30 p.m. they saw him being driven in a white Acura from Carol Road to 100 Little Ave., where he went into a unit that according to DC Breedon, was “known for drug issues”. A short while later he came out and got back into the Acura, which drove to the Travelodge hotel at Bayfield and Coulter Streets. Mr. Bowen Soares and an unknown woman went inside the hotel for approximately nine minutes before driving away in the Acura. The police lost sight of the Acura for several minutes, but at 5:09 p.m. saw it parked back at the Travelodge, unoccupied.

[ 17 ] At 6:48 p.m. the surveillance team saw Mr. Bowen Soares leave the hotel through the front lobby with two other men, later identified as Ateef Arshi and Nathan Campbell. The three men got into a silver Jeep Compass registered to Mr. Arshi’s father. Mr. Arshi drove, with Mr. Campbell in the front passenger seat and Mr. Bowen Soares in the rear seat.

[ 18 ] The surveillance officers followed the Jeep as it drove south to Brampton along Highway 400, stopping briefly at an EnRoute service centre where the men got food. At 8:08 p.m. the Jeep arrived at the parking lot of an apartment building at 10 Knightsbridge Road in Bramalea. Mr. Bowen Soares left the Jeep and went to the building’s entrance, and when some other men came and unlocked the front door to go in he followed them inside. Mr. Bowen Soares came out again five minutes later, at which point Sgt. Luce described him over the radio to the rest of the surveillance team as having his “head on a swivel”, meaning that he was looking around in all directions and appeared to be “concerned about [his] environment”. This was different from how he had been acting previously. Mr. Bowen Soares kept his hands in his jacket pockets as he walked back to the Jeep.

[ 19 ] The Jeep then drove a short distance and parked in a lot near a Beer Store in the Bramalea City Centre. Sgt. Luce saw the interior vehicle lights come on briefly and noticed that the men in the front seat were turned towards the back seat and appeared to be looking in the area of Mr. Bowen Soares’s lap. After thirteen minutes, Mr. Arshi left the Jeep and went inside the Beer Store, returning a few minutes later with what looked like a box of beer. The Jeep then left the parking lot, drove back to Highway 400 and headed north in the direction of Barrie.

D. The decision to arrest the occupants of the Jeep

[ 20 ] When DC Breedon heard Sgt. Luce’s radio report describing his observations in the Bramalea City Centre parking lot he decided that the officers had sufficient grounds to arrest the occupants of the Jeep. In DC Breedon’s view, what the officers had observed to that point – namely, Mr. Bowen Soares travelling to Brampton, going into an apartment building for a few minutes and coming out seemingly on high alert and with his hands in his pockets, and then driving to another parking lot where he and his two companions spent thirteen minutes apparently focusing on something that Mr. Bowen Soares was holding – was, when viewed in combination, “totally consistent with what a drug trafficker would do”. Specifically, DC Breedon believed that Mr. Bowen Soares had picked up a quantity of drugs at the Knightsbridge Road apartment building and that he and his companions had proceeded to park in the Beer Store parking lot and divide the drugs between them. In DC Breedon’s view, this scenario accorded with the source information the police had received indicating that Jordan would resupply every week in Toronto, since in his experience Barrie residents often use the term “Toronto” to describe any place in the GTA, including Brampton.

[ 21 ] Even though DC Breedon believed that he now had grounds to arrest the Jeep occupants, the officers decided to hold off on making the arrests, in part because they were out of their jurisdiction and in part because they wanted to arrange tactical team support. Accordingly, they continued following the Jeep as it drove north on Highway 400 towards Barrie, while Sgt. Luce made arrangements to have Barrie tactical officers stop the Jeep and arrest the occupants once it arrived back in the city.

[ 22 ] Before the Jeep reached Barrie it exited Highway 400 at Highway 88 and drove to a Husky service centre near the exit ramp. The officers lost sight of Jeep for a time when it drove into a parking lot on the far side of the service centre building. When they saw it again it was parked next to a dark pickup truck. Two men were standing outside the truck smoking, but the officers did not see these men interacting with the men in the Jeep. After approximately six minutes both vehicles left the parking lot. The Jeep got back onto Highway 400 and continued heading north towards Barrie.

[ 23 ] Although DC Breedon thought the events at the Husky service station were “consistent with a drug transaction”, the investigators did not conduct any further investigation of the men in the truck and did not make a note of the truck’s licence plate number.

E. The arrests and searches

[ 24 ] Shortly before 10:00 p.m., the Jeep arrived in Barrie and exited Highway 400 at Essa Road. When it turned onto Fairview Road the tactical team executed the takedown. The three occupants of the Jeep were arrested and transported to the police station. When Mr. Bowen Soares was searched at the police station he was found to have concealed between his buttocks a bag that contained two other bags, one containing 7.42 grams of crack cocaine and the second containing 14.19 grams of a powdery substance that later testing revealed was a mixture that included both heroin and fentanyl, as well as caffeine and dimethylsulfide, which are both commonly used to “cut” heroin because they have a similar colour and texture. No evidence was adduced concerning the relative proportions of these various substances. Mr. Bowen Soares also had $430 in cash on his person.

[ 25 ] When Nathan Campbell was searched incident to arrest he was found to have a piece of torn white plastic stuck down his pants, containing 0.9 grams what appeared to be heroin and was later determined to also be a mixture of heroin and fentanyl. A complete search at the station revealed that Mr. Campbell also had second piece of torn white plastic concealed in his groin containing 1.01 grams of crack cocaine, as well as a bag of marijuana.

[ 26 ] When the Jeep was later searched the police found a torn white plastic bag in the front passenger seat area where Mr. Campbell had been sitting, along with a bag containing crack cocaine smoking paraphernalia and some hypodermic needles. They also found a digital scale in the rear footwell area under the front passenger seat, and four cell phones in various locations in the vehicle.

F. Drug opinion evidence

[ 27 ] Barrie Police PC Derek Kelk was called by the Crown to give expert opinion evidence about drug pricing, methods of use and indicia of trafficking. He explained that heroin is commonly “cut” by mixing it with other similar-looking powdery substances, including caffeine and dimethylsulfide, the latter of which is a dietary supplement. Fentanyl, which is considerably more powerful than heroin but is roughly the same price, is often added to low-quality heroin as a way of boosting its potency. In PC Kelk’s experience, “every bit of heroin seized in the past few years” in Barrie had also included fentanyl.

[ 28 ] In PC Kelk’s opinion, 14.19 grams of a heroin-fentanyl mixture would have a street value of between $3,000 and $5,000. It would provide a user with between 70 to 140 doses, which would be enough to last a heavy heroin user, who might consume as much as 2 grams a day, for between a week to two weeks. In PC Kelk’s experience it was unlikely that such a heavy user would have the financial resources to purchase such a large quantity of heroin for his or her own personal use. This led PC Kelk to form the opinion that Mr. Bowen Soares did not possess the 14.19 grams of the heroin-fentanyl mixture for his own personal use and instead had it for the purpose of trafficking.

[ 29 ] However, PC Kelk explained that he could not draw a similar conclusion regarding the 7.42 grams of crack cocaine found on Mr. Bowen Soares’s person, since in his experience crack cocaine users sometimes did possess comparable quantities for their own personal use. In his opinion, while Mr. Bowen Soares might have been intending to sell both the heroin and the crack cocaine, it was also reasonably possible that he was a crack cocaine user who was funding his cocaine habit through his heroin sales. Although this latter possibility was undermined to some degree by the absence of any crack-smoking paraphernalia on Mr. Bowen Soares’s person, PC Kelk ultimately could not be sure that Mr. Bowen Soares did not possess the crack cocaine found on his person for his own personal use.

II. Analysis

A. Charter issues: the lawfulness of the arrest and search of the accused

1. Overview

[ 30 ] Since the search of Mr. Bowen Soares that led to the drugs being found on his person was warrantless, it was presumptively unreasonable. It is the Crown’s burden to displace this presumption by establishing on a balance of probabilities that the police search was a lawful exercise of the common law search incident to arrest power. This in turn requires the Crown to establish that the arrest itself was lawful, which hinges on whether DC Breedon – who was the directing mind behind the arrests, even though they were actually carried out by other officers – had both subjective and objectively reasonable grounds to believe that Mr. Bowen Soares was in possession of illegal drugs. As Paciocco J.A. recently explained in R. v. Gerson-Foster, 2019 ONCA 405 at para. 75:

In order to avoid inconsistent outcomes on the same issue because of conflicting burdens, where the arrest the Crown is relying upon to justify the search incident to arrest is subject to an s. 9 challenge, the Crown will carry the burden on both of the overlapping ss. 8 and 9 claims and must prove that the arrest was legal: R. v. Lee, 2017 ONCA 654, 351 C.C.C. (3d) 187, at paras. 82- 83; R. v. Brown (1996), 47 C.R. (4th) 134 (Ont. C.A.); R. v. Besharah, 2010 SKCA 2, 251 C.C.C. (3d) 516, at paras. 32-35.

2. The confidential informant tips and the police investigation prior to March 11, 2017

[ 31 ] The police investigation of Mr. Bowen Soares was originally prompted by a December 2016 confidential informant tip claiming that drugs were being sold from a particular Yonge Street address. This original tip was then supplemented by further anonymous tips in January and February 2017 that apparently identified the drug dealer associated with this address as someone using the name “Jordan”. The police also apparently obtained further tips from “multiple human sources” indicating that “Jordan” was selling cocaine and heroin in Barrie and re-upping his drug supply every week in Toronto or “the city”.

[ 32 ] In his reasons for the Ontario Court of Appeal in R. v. Debot, infra, Martin J.A. explained:

[A] mere statement by the informant that he or she was told by a reliable informer that a certain person is carrying on a criminal activity or that drugs would be found at a certain place would be an insufficient basis for the granting of the warrant. The underlying circumstances disclosed by the informer for his or her conclusion must be set out, thus enabling the justice to satisfy himself or herself that there are reasonable grounds for believing what is alleged. I am of the view that such a mere conclusory statement made by an informer to a police officer would not constitute reasonable grounds for conducting a warrantless search or for making an arrest without warrant. Highly relevant to whether information supplied by an informer constitutes reasonable grounds to justify a warrantless search or an arrest without warrant are whether the informer's “tip” contains sufficient detail to ensure it is based on more than mere rumour or gossip, whether the informer discloses his or her source or means of knowledge and whether there are any indicia of his or her reliability, such as the supplying of reliable information in the past or confirmation of part of his or her story by police surveillance. I do not intend to imply that each of these relevant criteria must be present in every case, provided that the totality of the circumstances meets the standard of the necessary reasonable grounds for relief. [1]

On a further appeal to the Supreme Court of Canada, Wilson J., writing for the unanimous Court on this point, endorsed Martin J.A.’s analysis. She explained:

In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a "tip" originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.'s view that the “totality of the circumstances” must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two. [2]

[ 33 ] In the case at bar, the weight that can be assigned to the various informant tips received and relied on by the police is severely limited by the paucity of relevant information and detail. While DC Breedon testified that he reviewed police reports summarizing tips about “Jordan” from “multiple human sources”, he did not explain why he believed these tips originated from different people. It is not clear on the record before me whether DC Breedon affirmatively knew that the “multiple human sources” were not actually a single person providing multiple tips, or whether this was something he had merely assumed. It is also entirely unclear whether these tipsters were different persons from the anonymous sources who had apparently associated “Jordan” with the Yonge Street address, or from the original December 2016 tipster who first brought that address to the police’s attention. DC Breedon was evidently, and properly, trying to be very careful not to reveal information that might serve to identify the tipster or tipsters. While I do not fault him for that, I am not satisfied on the record before me that I can properly attach any cross-corroborative significance to the supposed multiplicity of confidential informants.

[ 34 ] The weight that can properly be assigned to the confidential informant tips is further reduced by the fact that the tips themselves, at least as they were described by DC Breedon in his testimony, are almost entirely devoid of detail. There is no indication that any of the tipsters – assuming there was in fact more than one – were past proven reliable, nor were their sources or means of knowledge disclosed. To adopt Martin J.A.’s language in Debot, it cannot be concluded from the content of the tips that they were “based on more than mere rumour or gossip”.

[ 35 ] However, the police did acquire a substantial body of independent evidence: (i) that Mr. Bowen Soares was using the name “Jordan”; (ii) that he was linked to the blue Hyundai that had apparently been mentioned by one of the anonymous tipsters as associated with the Yonge Street address; and (iii) that he was associated with a different low-income housing complex that was also in south Barrie. Even though the police never saw Mr. Bowen Soares attending the Yonge Street address, I am satisfied that the totality of these circumstances gave them reasonable grounds to conclude that he, and not some other person going by the unexceptional name “Jordan”, was the person who was the subject of the original tips.

[ 36 ] This, of course, does not necessarily mean that the tipster or tipsters were providing accurate information to the police about Jordan’s drug-dealing activities, rather than merely repeating gossip or rumour. In my view, the police investigation prior to March 11, 2017 did relatively little to add to their objective grounds to suspect Mr. Bowen Soares of drug dealing. Mr. Bowen Soares’s apparent practice of frequently swapping his leased cars was somewhat suspicious. However, the probative force of this evidence was offset to at least some extent by the fact that all of his leased vehicles were of the same make and model and had very similar licence plate numbers, which tends to undermine the inference that he was changing cars in an attempt to conceal his identity.

[ 37 ] The police surveillance on March 4, 2017 also suggested that Mr. Bowen Soares had access to several different buildings in the neighbourhood of low-income housing complexes, which was consistent with what DC Breedon would expect of a street level drug dealer operating in this milieu. However, it was apparent from DC Breedon’s testimony that he and his police colleagues consider the entire neighbourhood to be a hotbed of drug dealing activity and tend to view the actions of its residents, innocent or otherwise, through this lens. While it may very well be true that drug dealers in low-income housing complexes prefer to cycle their business through multiple units in the complex as a means of avoiding detection, I was left with a real concern about whether DC Breedon preconceptions would lead him to interpret almost any interaction between people in this particular neighbourhood as suspicious. Accordingly, I am not inclined to place much objective weight on this aspect of the officer’s evidence.

[ 38 ] I would also place very little weight on either the February 11, 2017 tip about someone in white Mazda with a similar licence plate number as having drugs and a gun, or on the report of the March 5, 2017 robbery allegation. The former tip was almost entirely unconfirmed, while the latter did little more than portray Mr. Bowen Soares as someone who associated with drug users and drug dealers. Likewise, DC Breedon’s discovery that Mr. Bowen Soares had been found guilty of various simple possession drug offences in Toronto for which he had received a conditional discharge in my view did virtually nothing to corroborate the tips portraying him as a drug dealer.

[ 39 ] However, the evidence regarding the February 27, 2017 drug arrests of Jennifer Watts and Christopher Gordon after they were stopped in a vehicle with Mr. Bowen Soares stands on a somewhat different footing. Ms. Watts and Mr. Gordon were both found to have large quantities of drugs hidden in their bodily orifices. The combination of the quantity of drugs and the manner of their concealment both strongly suggested that they were engaged in drug trafficking. Although Mr. Bowen Soares was not himself directly implicated in his companions’ activity or charged with any offences arising out of this incident, in my view this report goes somewhat further than mere evidence of his association with drug traffickers, insofar as it establishes that he was associating with them while they were actually in possession of large quantities of drugs. Even so, the weight that can be attached to this evidence remains limited.

[ 40 ] In summary, while I am satisfied that before March 11, 2017 the police had some objective grounds to suspect Mr. Bowen Soares of possible drug dealing, in my view their grounds for suspicion remained well short of reasonable grounds for arresting him at this point.

3. The March 11, 2017 police observations

[ 41 ] When the police resumed their surveillance of Mr. Bowen Soares on the afternoon of March 11, 2017, they first saw him go to a unit in the 100 Little Street building that was, according to DC Breedon, “known for drug issues”. In my view, the apparent notoriety of this particular unit in police circles adds virtually nothing to the strength of the police grounds to suspect Mr. Bowen Soares, having regard to the unknown age, source and reliability of the police belief that this unit was implicated in drug dealing. (See R. v. Simpson, 79 C.C.C. (3d) 482 at p. 504 (Ont. C.A.)). Likewise, there was nothing inherently suspicious about Mr. Bowen Soares and his female companion’s subsequent visit to the Travelodge.

[ 42 ] However, in my view the situation changed significantly once Mr. Bowen Soares left Barrie in the early evening with Mr. Arshi and Mr. Campbell in the Jeep Compass and drove to Brampton. After driving to Bramalea, which took over an hour, Mr. Bowen Soares went inside the Knightsbridge Road apartment building while the others waited in the Jeep. He came back out after five minutes with his “head on a swivel”, in Sgt. Luce’s phrasing. Mr. Bowen Soares and his companions then drove a short distance to a nearby mall parking lot where they sat for some thirteen minutes, apparently focusing their attention on something Mr. Bowen Soares was holding. Mr. Arshi finally left the vehicle and went into the Beer Store to make a purchase, and when he returned the Jeep left the parking lot and began the return trip to Barrie.

[ 43 ] While I agree with defence counsel, Ms. Sherwood, that each of these observations could have a potential innocent explanation when viewed in isolation, the existence of reasonable grounds depends on the totality of circumstances. In my view, the combined effect of all of these observations strongly supports the inference that Mr. Bowen Soares had made his brief visit to the Knightsbridge Road apartment building in order to pick up some item that was of great interest to him and his companions. Mr. Bowen Soares’s observed change in behaviour when he left the Knightsbridge Road building, taken together with his and his companions’ actions in immediately leaving that Knightsbridge parking lot and driving to another nearby parking lot before they spent the next thirteen minutes apparently inspecting the item Mr. Bowen Soares had just picked up, tends to suggest that they were concerned about being observed. The time they spent sitting in the Beer Store parking lot tends to suggest that there was something about the item that required their immediate and close attention. Finally – and, in my view, critically – the fact that they immediately began driving back to Barrie after leaving the Beer Store parking lot strongly suggests that the only real purpose of their trip to Brampton was to obtain the item in question.

[ 44 ] Even before factoring the confidential source tip or tips that Mr. Bowen Soares was a drug dealer who resupplied in “the city” into the analysis, I am satisfied that this combination of circumstances very strongly supported DC Breedon’s ultimate conclusion that the police had just witnessed Mr. Bowen Soares picking up drugs, which he and his companions had proceeded to weigh and separate between them. While I would not assign much weight to the confidential tip or tips concerning Mr. Bowen Soares’s alleged drug dealing standing alone, on the totality of circumstances I am satisfied that by the time the Jeep left Brampton and began heading back to Barrie the police had reasonable grounds to believe that Mr. Bowen Soares and the other men in the Jeep were in possession of controlled substances.

[ 45 ] In this regard, I should note that DC Breedon’s evidence was that he subjectively formed the belief that he had reasonable grounds to arrest as soon as he heard Sgt. Luce’s report describing what he had seen in the Beer Store parking lot. I am not certain that DC Breedon’s suspicions necessarily crystallized into objectively reasonable grounds at that precise point. He acknowledged that it was very significant to him that Mr. Bowen Soares had driven for over an hour from Barrie to the Knightsbridge Road apartment building, and that only Mr. Bowen Soares had gone inside. As he put it in his testimony:

It seemed so irregular and inconsistent to then take those two people that we haven’t seen over this … several week investigation, that we didn’t know about, to take them an hour away to an apartment building where only one person goes in, again, seems irregular. It was hard for me to come up with a reason why I would do something like that, or why I suspect someone would do that, other than you want to conceal where you’re buying your drugs from.

The force of this logic would have been significantly undermined if Mr. Bowen Soares and his companions, after leaving the Knightsbridge Road apartment building, had gone somewhere else or done something to suggest that they had some other reason for making the long drive to Brampton. However, it is unnecessary for me to decide whether the police would have been acting prematurely if they had moved in to arrest the Jeep occupants in the Beer Store parking lot, since they did not actually do so. Instead, they waited until the Jeep returned to Barrie. In my view, the fact that Mr. Bowen Soares and his companions immediately drove back to Barrie after the Knightsbridge Road apartment building visit and the trip to the Beer Store parking lot was a very significant factor that elevated the police suspicion to the level of reasonable grounds to arrest.

[ 46 ] Accordingly, I am satisfied that by the time the takedown and arrests actually occurred at around 10:00 p.m., DC Breedon had reasonable grounds to direct the other officers to arrest the occupants of the Jeep, and that the arrest of Mr. Bowen Soares and his subsequent search incident to arrest were accordingly lawful.

[ 47 ] For completeness, I should note that I have placed no weight in my analysis on the observations the police made at the Husky service station during the Jeep’s return trip to Barrie. Although DC Breedon characterized the Husky stop as “consistent with a drug transaction” with the men in the pickup truck, it is clear from his evidence that he had already decided even before this incident that the Jeep occupants would be arrested once they got back to Barrie. As discussed above, I am also satisfied that his grounds to direct these arrests were objectively reasonable, at least by the time the Jeep got back on the highway to Barrie. I am not satisfied that the Husky service station observations did much, if anything, to add to the grounds the police already had. Indeed, if the police really believed that the Jeep occupants had been engaging in a drug deal with the men in the truck, it is puzzling that they made no attempt to investigate these men further or even record the truck’s licence plate number. However, I am satisfied that by this point in the investigation they already had all the grounds they needed for the arrests and searches of the Jeep occupants.

[ 48 ] It follows from this that I am satisfied that the Crown has discharged its onus of establishing that Mr. Bowen Soares’s ss. 8 and 9 Charter rights were not breached. In these circumstances I believe it would be an empty and pointless exercise for me to purport to conduct a s. 24(2) exclusion analysis. [3] If I am wrong in my conclusion that there were no breaches of Mr. Bowen Soares’s Charter rights, it would in my view be preferable for a reviewing court to consider the Grant analysis afresh, unencumbered by my opinions.

B. Liability issues

[ 49 ] Mr. Bowen Soares concedes that if the seized drugs found concealed in his buttocks are admitted into evidence, the Crown has proved beyond a reasonable doubt that he had knowledge and control over the bags and their contents and knew that they contained controlled substances. However, he maintains that the Crown has not proved beyond a reasonable doubt that he possessed any of these substances for the purpose of trafficking. The question of whether Mr. Bowen Soares can properly be convicted of two separate possession offences for possessing a mixture of heroin and fentanyl presents some further complications that I will discuss below.

1. The crack cocaine charges

[ 50 ] I will first address the crack cocaine charges, Counts 3 and 4, since the analysis is considerably more straightforward, both legally and factually, than the analysis needed to address the remaining counts.

[ 51 ] The Crown’s drug expert, PC Kelk, after considering the quantity of the crack cocaine in Mr. Bowen Soares’s possession and the surrounding circumstances through the lens of his policing experience, fairly concluded that he could not be sure that Mr. Bowen Soares did not possess these drugs for personal use. His uncertainty leaves me with a reasonable doubt on this point: if he cannot be sure that Mr. Bowen Soares possessed the crack cocaine for the purpose of trafficking, I do not see how I can be sure of this, which I must be in order to find Mr. Bowen Soares guilty on the criminal standard of proof.

[ 52 ] I accordingly find Mr. Bowen Soares not guilty on the charge of possession of crack cocaine for the purpose of trafficking (Count 4). He did not dispute his guilt on the simple possession charge relating to the crack cocaine (Count 3) if the evidence was admitted, so a finding of guilt will therefore be registered on this count.

2. The heroin and fentanyl charges

a) Mr. Bowen Soares’s subjective knowledge

[ 53 ] The heroin and fentanyl charges – Counts 1 and 2 (heroin) and Counts 5 and 6 (fentanyl) – require a considerably more complicated analysis.

[ 54 ] It is common ground that these charges all relate to the bag containing the powdery substance which the police initially believed was heroin, but which subsequent testing revealed was actually a mixture of heroin, fentanyl and various cutting agents. As a starting point, I have no difficulty concluding that Mr. Bowen Soares knew that the bag contained heroin. However, I am not satisfied beyond a reasonable doubt that he knew that it also contained fentanyl.

[ 55 ] PC Kelk explained that fentanyl is a “very fine powder” that is used to boost the potency of poor-quality heroin in part because the resulting mixture still looks like heroin. As he put it, “if you mix [heroin] with something that looks different people will question why it looks that way”. The police officers who saw the substance seized from Mr. Bowen Soares all thought that it looked like heroin, and none purported to be able to tell from its appearance that it also contained fentanyl. While PC Kelk testified that in his experience “every bit” of the heroin seized in Barrie in recent years had been laced with fentanyl, he presumably knew this only because he was privy to the analysis reports the police had received from Health Canada. There is no evidence that Mr. Bowen Soares had any similar knowledge about the ubiquity of fentanyl in the Barrie heroin market, and there is no basis on which I can infer circumstantially beyond a reasonable doubt that he must have had this knowledge.

[ 56 ] Crown counsel argues that even in the absence of proof that Mr. Bowen Soares knew that the drugs in his possession included fentanyl, I can rely on the doctrine of wilful blindness to attribute to him the legal equivalent of actual knowledge. I cannot accept this submission. Wilful blindness is a subjective mental state. As McIntyre J. explained in Sansregret v. The Queen, [1985] 1 S.C.R. 570 at p. 584:

[W]ilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant.

In the case at bar, there is no evidence either that Mr. Bowen Soares subjectively perceived any need to make inquiries about whether the heroin he was purchasing included fentanyl, nor is there any evidence as to what inquiries he did make or what assurances he received from his supplier in response to any such inquiries. In this evidential vacuum I cannot find that the Crown has proved the elements of wilful blindness on the criminal standard.

b) The legal significance of Mr. Bowen Soares’s lack of proven knowledge of the fentanyl

[ 57 ] The next question that must be considered is whether the factual finding that the Crown has failed to prove that Mr. Bowen Soares knew he was in possession of fentanyl has any consequences for his criminal liability. As Crown counsel correctly points out, the specific drug particularized in a possession charge is ordinarily considered surplusage. Consequently, it is generally not fatal to the Crown’s case if one illegal drug is pleaded and the evidence at trial establishes that the accused actually possessed a different drug within the same CDSA Schedule. Similarly, it is ordinarily not a defence for the accused to mistakenly believe that the illegal substance he or she possessed was different from the one charged or proved.

[ 58 ] It follows that if Mr. Bowen Soares were charged only with one possession count in relation to the bag containing the heroin and fentanyl mixture, it would not matter if that count were particularized to specify heroin, fentanyl, a mixture of the two, or some different illegal drug altogether. Likewise, Mr. Bowen Soares’s subjective belief that he only possessed heroin would not afford him a defence even if the count had been particularized to name some other drug. That much is clear.

[ 59 ] However, the problem in this case is that Mr. Bowen Soares stands charged with two separate possession counts in relation to what everyone agrees was a single bag containing a mixture of drugs. If the Crown cannot prove that he subjectively knew that the bag actually contained two different types of drugs mixed together, it is far from clear that his act of possessing this single bag can properly be conceptualized as two separate criminal delicts.

[ 60 ] The problem, as I see it, can be illustrated with some hypotheticals. Consider first the following three scenarios:

• Scenario 1: the accused knowingly acquires two bags of drugs, one containing heroin and the second containing fentanyl;
• Scenario 2: the accused knowingly acquires two bags of drugs, one containing heroin and the second containing fentanyl, and proceeds to mix the contents of the two bags together;
• Scenario 3: the accused knowingly acquires a single bag that he or she knows contains a pre-mixed combination of heroin and fentanyl.

[ 61 ] In my view, there is no sound basis for distinguishing the culpability of these three defendants, who have all knowingly acquired possession of separate quantities of two different drugs. Whether the two drugs have been mixed together, and the timing of when the mixing occurred, seem to me to be wholly irrelevant to the moral and legal wrongfulness of the defendants’ conduct. In my view, all three can properly be conceptualized as having committed two distinct possession offences.

[ 62 ] However, now consider the following three further hypotheticals:

• Scenario 4: the accused knowingly acquires one bag of heroin, but without his or her knowledge the supplier secretly slips a second bag containing fentanyl into the accused’s coat pocket;
• Scenario 5: the accused knowingly acquires a bag of heroin, and at some point after he or she takes possession of this bag a third party surreptitiously adds some fentanyl to the heroin, without the accused’s knowledge;
• Scenario 6: the accused believes he or she is acquiring a bag containing only heroin, but unbeknownst to him or her fentanyl has already been mixed into the heroin before the accused takes possession of the bag.

[ 63 ] In my view, the accused in Scenario 4 plainly cannot be convicted of possessing both bags because his or her mistake of fact – his or her lack of awareness of the existence of the second bag – goes to one the essential elements of the mens rea of possession, namely, knowledge of the physical existence of the thing possessed. However, I can see no sound juristic reason for treating Scenarios 5 and 6 differently, at least in situations where the added quantity of fentanyl is so small that it did not noticeably change the appearance and volume of the drugs. As with the three hypotheticals considered previously, the question of whether the two drugs have been mixed together, and the particular timing of when the mixing occurs, seems to me to not be something that should be seen as having any meaningful bearing on the accused’s culpability, at least as measured by the number of separate delicts he or she is seen to have committed.

[ 64 ] In my view, it follows from this analysis that if the Crown cannot prove beyond a reasonable doubt that Mr. Bowen Soares knew that the bag he possessed contained a mixture of two different drugs – as I have found – he can only be properly found guilty of a single delict arising out of his possession of this bag. Since the nature of the drug pleaded is surplusage, it is in one sense immaterial whether he is found guilty of the charge that has been particularized as heroin or of the charge that has been particularized as fentanyl, as long as he is not found guilty on both counts. However, in the circumstances here – where I am satisfied that Mr. Bowen Soares knew about the heroin but am not satisfied that he knew about the fentanyl – the outcome that best reflects his true culpability, in my view, is to find him guilty on at least one of the counts that specifies heroin (that is, Counts 1 or 2) and find him not guilty on the two counts that specify fentanyl (that is, Counts 5 and 6).

[ 65 ] I should note that when faced with similar situations [4] some of my colleagues have recognized the same problem I have identified but have addressed it in a different way, namely, by finding the accused guilty of both possession counts, but then staying one of the two counts pursuant to the Kienapple principle. This brought them to the same end result that I have arrived at by taking a somewhat different analytic route. I should note that if I had not concluded that the path I have taken to reach this destination was available to me, I would have adopted my colleagues’ approach.

c) Did Mr. Bowen Soares possess heroin for the purpose of trafficking?

[ 66 ] The final question I must consider is whether Mr. Bowen Soares should be found guilty of possessing heroin for the purpose of trafficking (Count 2) or merely of simple possession of heroin.

[ 67 ] PC Kelk’s opinion was that it was very unlikely that a heroin user would have as much as 14.19 grams of the drug for his or her own personal use. Such an amount would represent only one or two week’s supply for a heavy user, but PC Kelk explained that in his experience heavy heroin users are usually in thrall to their addictions to such an extent that they generally lack the funds to purchase such a large quantity at one time, even if doing so would be cheaper for them in the long run.

[ 68 ] Although I accept PC Kelk’s evidence as far as it goes, he did not address or apparently consider the possibility of a more casual heroin user with greater financial resources purchasing heroin in bulk for his or her personal use. There may be good reasons why most casual users would not do so, since the cost savings would arguably be offset by a host of personal and legal dangers that are not faced by a shopper who purchases a six-month supply of paper towels at Costco. Nevertheless, I do not think that the possibility of a moderate heroin user buying in bulk what might for him or her represent a several month supply can necessarily be dismissed out of hand.

[ 69 ] However, while the quantity of heroin found in Mr. Bowen Soares’s possession may not in and of itself be conclusive evidence of a purpose to traffic on his part, all of the surrounding circumstances must be considered. In my view, his actions in travelling more than an hour to make the apparent drug buy tends to suggest a commercial motive. Even more critically, however, the circumstantial evidence very strongly suggests that after Mr. Bowen Soares acquired the heroin from the Knightsbridge Road apartment building and returned to the Jeep, he gave some of the drugs to Mr. Campbell, which Mr. Campbell wrapped in a piece of white plastic he tore from the bag that was later found in the front seat area where Mr. Campbell had been sitting. Since the act of giving heroin to Mr. Campbell would in and of itself constitute “trafficking”, I am satisfied beyond a reasonable doubt that Mr. Bowen Soares did possess heroin for the purpose of trafficking. Accordingly, a finding of guilt will be entered on Count 2. While as a matter of logic a finding of guilt must also be entered on Count 1 – the simple possession count – this is a formality since this latter charge must then be stayed pursuant to the Kienapple principle.

[ 70 ] In summary, I find Mr. Bowen Soares guilty on Counts 1, 2 and 3 – simple possession of heroin, possession of heroin for the purpose of trafficking, and simple possession of cocaine – but enter a stay on Count 1. I find him not guilty on Counts 4, 5 and 6 – possession of cocaine for the purpose of trafficking, simple possession of fentanyl, and possession of fentanyl for the purpose of trafficking – and enter acquittals on those counts.

Dawe J.

Released: May 24, 2019

[1] R. v. Debot, 30 C.C.C. (3d) 207 at p. 218-19 (Ont. C.A.) [2] R. v. Debot, [1989] 2 S.C.R. 1140, 52 C.C.C. (3d) 193 at p. 215. [3] See R. v. Paterson, 2017 SCC 15 at para. 42. [4] See R. v. Jenkins, 2018 ONSC 5078 and R. v. Bedi, 2019 ONSC 1612. Both decisions endorse the reasoning of Green J. in R. v. Lemieux, 2017 O.J. No. 5465 (C.J.), which was also followed by Burstein J. in R. v. Robinson, 2018 ONCJ 322