COURT FILE NO.: CR-18-170 DATE: 20190617
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN A. Barefoot, for the Crown
- and -
TIFFANY SKYE JOHNSON J. Raftery for the Defendant Defendant
HEARD: May 23, 24, 29, 2019 at Owen Sound
REASONS FOR JUDGMENT
McSweeney J.
I. THE CHARGES
[1] Ms. Johnson was charged with three offences
[2] The indictment reads as follows:
COUNT 1: Tiffany Skye Johnson stands charged that on or about the 28th day of June in the year 2018 at the City of Owen Sound in the Central West Region did possess a substance included in Schedule I, to wit, Fentanyl for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act thereby committing an offence under section 5(3)(a) of the said Act.
COUNT 2: And further, that Tiffany Sky Johnson stands charged that on or about the 28th day of June in the year 2018 at the City of Owen Sound in the said Region did possess a substance included in Schedule I, to wit, Methamphetamine for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act thereby committing an offence section 5(3)(a) of the said Act.
COUNT 3: And further, that Tiffany Skye Johnson stands charged that on or about the 28th day of June in the year 2018 at the City of Owen Sound in the said Region did have in her possession proceeds of property, $1,117.55 of Canadian currency, of a value not exceeding five thousand dollars knowing that all of the proceeds of the property was derived directly or indirectly by the commission in Canada of an offence punishable by indictment contrary to section 354(1)(a) of the Criminal Code.
[3] At the start of trial Ms. Johnson pleaded guilty to Counts 2 and 3. She wished to enter a plea of Not guilty to Count # 1 but guilty to the included offence of simple possession of Fentanyl but the Crown did not accept that plea.
[4] I conducted a plea inquiry at that time. On May 24, 2019 I made a finding of guilt on Counts 2 and 3 for reasons released orally on the record.
[5] Ms. Johnson entered a plea of not guilty on count 1. Trial proceeded on May 23 and 24, 2019 on Count 1 only.
[6] Ms. Johnson admits that she possessed the Fentanyl. The only issue for trial was, therefore, whether that possession at the time was for the purpose of trafficking.
II. EVIDENCE: ADMISSIONS/AGREED FACTS
[7] Pursuant to s.655 of the Criminal Code of Canada, the following facts are admitted without the necessity of calling further evidence:
On April 25, 2018 Tiffany Johnson failed to appear at the Ontario Court of Justice, Walkerton and a first instance warrant was issued for her arrest.
On April 26, 2018 two warrants were issued for the arrest of Tiffany Johnson at the Ontario Court of Justice, Owen Sound, for breaching her Conditional Sentence Order.
On June 28, 2018 the Owen Sound Police Service received information that Tiffany Johnson was in the Owen Sound area.
At approximately 5:50 p.m. Owen Sound Police officers located the Tiffany Johnson as she arrived in a taxi to the Stone Tree Apartments in the Municipality of Meaford.
As Tiffany Johnson was exiting a van, officers observed her carrying a purple purse.
Tiffany Johnson attempted to discard the purse prior to arrest, however, police were able to retrieve it.
Tiffany Johnson was arrested at approximately 5:50 p.m. on the strength of the outstanding warrants mentioned above.
Upon arrest, Tiffany Johnson was asked if she was okay medically; she said she needed to use drugs again – otherwise she was okay.
A search of the purple purse (as detailed more extensively on the Police Exhibit Chart (hereinafter referred to as ‘PE’) which is admitted for the truth of its contents) revealed the following: a. A clear zip lock bag containing 45.9 grams of Methamphetamine (PE#1); b. A silver canister (PE#3(b)) containing 4.2 grams of rusty coloured Fentanyl (PE#3(b)(ii)) and .3 grams of purple Fentanyl/Methamphetamine (PE#3(b)(i)); c. A smaller clear zip lock baggie containing 3.2 grams of Methamphetamine (PE#8); d. A smaller clear zip lock baggie containing .5 grams of a white cocaine/Methamphetamine powder (PE#2); e. A functioning digital scale with residue on its weighing surface (PE#3(a)); f. Several unused and used clear zip lock baggies (PE#3(c)/PE#10); g. Several cut pieces of unused tin foil (PE#4/PE#10); and h. $846.55 in Canadian cash and coin currency in various denominations (PE#7).
Tiffany Johnson was transported to the Owen Sound Police Service and held in custody for a bail hearing on June 29, 2018.
Tiffany Johnson was further searched at the police station where an additional $271 in Canadian cash and coin currency (PE#12) in various denominations was located in her bra.
The total cash proceeds seized is $1,117.55 which Ms. Johnson admits were proceeds of crime derived from trafficking Methamphetamine.
Ms. Johnson admits that the Methamphetamine she possessed was for the purpose of trafficking (had knowledge of the nature of the substance, control over it, and intended to traffick it).
Ms. Johnson admits that she possessed Fentanyl (had knowledge of the nature of the substance and control over it).
Ms. Johnson admits that the photographs filed at trial were taken of the items seized from her upon arrest.
The total controlled drugs and substances seized from Tiffany Johnson were as follows: a. Fentanyl - 4.2 grams (PE#3(b)(ii)); b. Fentanyl/Methamphetamine - .3 gram (PE#3(b)(i)); c. Methamphetamine - 49.1 grams (PE#1 + PE#8); d. Methamphetamine/cocaine - .5 gram (PE#2); and e. Fentanyl weighed with tinfoil - .5 gram (PE#9).
[8] The Crown and defence each called one witness. Crown witness was O.P.P. D.C. Bohn. Ms. Johnson testified in her own defence.
III. EVIDENCE: EXHIBITS
[9] At the outset of trial the following were made exhibits on consent:
Exhibit No. 1: Crown Brief Synopsis Exhibit No. 2: Exhibit Chart Exhibit No. 3: Coloured Photos, Coloured Photos with Annotations Exhibit No. 4: C.V. of Det. Constable Curtis Bohn Exhibit No. 5: Expert Evidence Report of Curtis Bohn
Evidence of the Crown’s Witness:
[10] The Crown tendered D.C. Chris Bohn as expert. The Defence did not challenge Bohn’s qualifications to give opinion evidence nor the scope of the opinion evidence proposed by the Crown. I was satisfied as to the witness’ qualifications. The witness was qualified to give opinion evidence as to the use, pricing, sale and distribution of Fentanyl and Methamphetamine, including the modus operandi of such drug traffickers.
[11] D.C. Bohn’s report was filed on consent. D.C. Bohn prepared his report based solely on review of materials made exhibits in this case and on photographs of the items seized from Ms. Johnson’s purse. He did not speak with Ms. Johnson.
[12] With regard to his experience with Fentanyl, D.C. Bohn described having been part of several drug enforcement operations, in particular, he has been part of two major investigations into Fentanyl trafficking and sales. He described his experience in reading source debriefing reports from many confidential informants which were provided to him by handlers of the informants. Through the debriefing reports he has acquired information as to the price and methods of use and sale of Fentanyl.
[13] D.C. Bohn’s experience and training in Fentanyl started in 2014 because Fentanyl was “not on our radar” until that year. Fentanyl is a synthetic drug with similar traits to Heroin. It is a synthetic opioid, which originally had a medical origin and was used by prescription only. Fentanyl is 100 times more powerful than Morphine and 40 times more powerful than Heroin. Fentanyl can come in many forms. It is more of a rock than a powder. With respect to the upper limit that a user of Fentanyl could use in a day, D.C. Bohn testified that the highest use in his opinion, was consumption of one gram in a day. This upper limit of Fentanyl consumption was derived from an interview he conducted with a Carfentanil user. Carfentanil is 100 times more powerful than Fentanyl. That user described to him that she used Fentanyl to come down off Carfentanil and her upper limit use was one gram per day.
[14] With respect to dosage, D.C. Bohn testified that a dose of Fentanyl is typically at the “point level”, 0.1 grams being known as a “point”. In his experience if Fentanyl is sold in a larger quantities a price discount can apply; he gave the example of 0.1 gram being sold for $40 to $60, where as a whole gram, 10 times that quantity would generally be sold for $220 to $240.
[15] D.C. Bohn concluded that the amount of Fentanyl in Ms. Johnson’s purse at the time of her arrest was in and of itself a weight to indicate that its purpose was trafficking or future sales. In his opinion, the amount found was uncommon for what someone would have in their possession for personal use. D.C. Bohn also noted that other items in the purse such as the scale, packaging materials, baggies, and pre-cut tinfoil and the amount of currency seized are all consistent with an intention to traffick.
[16] D.C. Bohn also testified that the Narcan spray found in Ms. Johnson’s purse is Naloxone, which is an antidote drug that stops the effects of opioids on the body temporarily. It is used by Fentanyl users in the event of overdose.
[17] On cross-examination D.C. Bohn confirmed in his testimony regarding the upper limit of Fentanyl that a heavy user could use in a day was based solely on the debriefing of the woman who was a heavy user in Carfentanil addict. He confirmed that the circumstances in which he interviewed this particular woman was when she was in custody. He confirmed that it is unusual for a user to use as much as a gram in a day, but that in his opinion a very heavy user can do so, although for a less heavy user the consumption of a gram of Fentanyl in a day could be fatal.
[18] In cross examination D.C. Bohn:
- Confirmed that the amount of Methamphetamine (48 grams more or less, was approximately 480 does when sold at the point level);
- Confirmed that regular users do not want to run out of their drugs and may need to carry their drugs with them if they have no fixed address. However, he noted that the risks of being robbed or being arrested increase when a user carries a quantity of drugs on their person. He also confirmed that carrying quantities of cash and drugs is something a person without a home might do;
- Confirmed that a “ball” is slang for a street unit of measurement for drug weight. Specifically an 8-ball is an eighth of an ounce or 3.5 grams In his experience a ball may weigh somewhere between 2.7 to 3.8 grams typically. He confirmed that an 8-ball of Fentanyl could sell for $500 and that a quarter of an ounce, twice as much could possibly sell or be purchased from a dealer by a regular client for $950;
- With respect to consumption of Fentanyl, he described that Fentanyl can be taken intravenously or can be “smoked”. He confirmed that Ms. Johnson’s purse contained tinfoil which had apparently been used for smoking Fentanyl as it had burnt residue on it; and that the hollow pen in Ms. Johnson’s purse is of the type typically used to smoke Fentanyl.
Ms. Johnson’s Evidence:
[19] Ms. Johnson testified as follows regarding her background:
[20] Ms. Johnson was born in 1990 and was 29 years old at the time of her testimony. She described growing up “all over”, in many foster homes, and developing many addictions, including alcohol by the time she was 17; smoking crack at the age of 18; and starting to use opioids at the age of 19. She had been addicted to “doing opioids for ten years” at the time of her testimony. With respect to her opioid use, she started with Morphine and pills. She admitted she had a criminal record all of which offences related to drugs, such as breaching conditions and missing court.
[21] Ms. Johnson said that she could buy an 8-ball of Fentanyl for $500 and a quarter ounce of Fentanyl for $950. With respect to her Fentanyl use, Ms. Johnson testified that at the time of her arrest she was using Fentanyl “all day everyday”, as a “constant thing”.
[22] At the time of her arrest where she admitted that the money in her purse was obtained from selling Methamphetamine.
[23] Regarding the Methamphetamine in her purse, she described both selling and using it herself to get high.
[24] Regarding her use of Fentanyl, as follows:
[25] Ms. Johnson described starting to do Fentanyl about four years ago. She started by using Fentanyl patches. She described overdosing eight times and that she was “kind of lucky to be alive”. She testified that the Naloxone in her purse was “in case I OD’d”.
[26] Her evidence on cross-examination was as follows:
[27] Ms. Johnson confirmed that out of the first opioids she used starting at age 19 were Morphine and OxyContin in different strengths and that she supported her drug use for a significant period of time with drugs given to her by friends.
[28] She described being sober “at a few points” but that it was always the opioids that got her back into doing drugs.
[29] She described the last five years prior to her arrest as being years in which she “began to use Fentanyl” and “went way downhill from there”. In her downhill period she went from holding down jobs at fast food restaurants to losing those jobs and becoming homeless. At one point approximately when she started using Fentanyl patches she was engaged to somebody but she and he got “raided” by the police and “everything fell apart”. She confirmed that she always pleaded guilty to charges against her, while acknowledging that there was one time where she and her fiancé were both arrested and he “pled guilty to weed” and she pled guilty to charges involving Methamphetamine.
[30] At the time of her arrest in this case, Ms. Johnson testified that she had been living in Hanover, Ontario but had come to Owen Sound approximately two weeks earlier she had been staying with different friends on and off. She testified that she obtained the Fentanyl and Methamphetamine found in her purse the day before her arrest, early in the morning around 4:00 am. She testified that she bought both drugs from the same person and could arrange to “go to them or they come to me”. She obtained the drugs in Owen Sound.
[31] She testified/admitted that she obtained her drugs on credit at the time of her arrest.
[32] With respect to leaving her possessions with friends, she testified that although she left clothes with friends at different places, she did not trust anybody, including her friends.
[33] Regarding her own daily use of Methamphetamine and Fentanyl, she testified the amount of Methamphetamine she used depended on many factors. With respect to Fentanyl she testified that she could use in an average day between half a gram and half a ball of Fentanyl. In terms of the interaction between the drugs she described Methamphetamine as the “upper” and Fentanyl as the “downer” and that the amounts she used depended on what was going on around her.
[34] At the time of her arrest she testified that she was doing a lot of or mostly doing Fentanyl, and that “when I’m doing Fentanyl I don’t do a lot of meth” and that she also used drugs around other people because it is not fun to do drugs by yourself. She testified that she does not use Fentanyl intravenously but did smoke it using the tinfoil and the hollow pen found in her purse.
[35] Regarding the day before her arrest, Ms. Johnson admitted to using drugs with others and sharing the Fentanyl that she was smoking. On that occasion another user present overdosed and she left the gathering and went for help and got a neighbour to call 911.
[36] On re-direct she confirmed that she cannot trust anyone with anything with drugs or boyfriends and that in her experience sometimes when she “nods out” while taking Fentanyl, drugs or money may go missing.
IV. THE LAW
[37] Possession for the purpose of trafficking is established where the Crown establishes each of the following elements beyond a reasonable doubt:
[38] I must find Ms. Johnson not guilty of possessing Fentanyl, for the purpose of trafficking unless the Crown has all of the following essential elements of the offence beyond a reasonable doubt: b) The substance was a controlled substance; c) Ms. Johnson was in possession of the substance; d) Ms. Johnson knew the nature of the substance; and e) That she possessed the substance for the purpose of trafficking.
[39] In this case the agreed facts establish elements a), b) and c). There is only one issue for the Court to determine, whether Ms. Johnson possessed the Fentanyl for “the purpose of trafficking”. The burden is on the Crown to prove this element beyond a reasonable doubt.
[40] A significant factor in my assessment of the evidence is the credibility of the defendant, as it relates to the purpose for which she had the Fentanyl in her possession. Where the accused has testified I must follow the analytical approach to assessing credibility laid out by the Supreme Court of Canada in the decision R. v. W.(D.).
[41] The R. v. W.(D.) analysis will require me to consider three questions in turn:
- Do I believe the evidence of Ms. Johnson? If I do, I must obviously acquit her.
- If I do not believe Ms. Johnson, I must then ask myself whether, after considering her testimony, I am left with a reasonable doubt about her guilt? If the answer is “yes”, I must acquit her of the offence charged but find her guilty of the included offence of Possession of Fentanyl.
- Even if I am not left with a reasonable doubt by Ms Johnson’s evidence, I must go on to ask myself whether, on the basis of the evidence which I do accept, am I convinced beyond a reasonable doubt of her guilt? Only if this third question is answered “yes” will Ms. Johnson be found guilty of possession of Fentanyl for the purpose of trafficking.
V. ANALYSIS OF TESTIMONY
D.C. Bohn’s Evidence:
[42] D.C. Bohn gave his testimony in a clear manner. He was not defensive, was fair regarding the limitations of his experience with Fentanyl, and readily agreed on cross-examination with other scenarios put to him by the defence.
[43] With respect to his experience regarding Fentanyl in particular, he conceded that his opinion on the maximum Fentanyl dosage a person could take, was based on his interview with one specific drug user.
[44] I make the following findings on the basis of D.C. Bohn’s evidence: that the amount of Fentanyl in Ms. Johnson’s purse at the time of her arrest was consistent with an intent to traffick; that Fentanyl users often consume amounts in a “point” (i.e. 0.1) of a gram; that the Fentanyl was not packaged for sale; that the scale and the foil and baggies in her purse could have been used to package Fentanyl or Methamphetamine, or both, for sale; and that Naloxone nasal spray is used by Fentanyl users in an emergency to counteract the effects of Fentanyl overdose.
[45] With respect to D.C. Bohn’s evidence regarding the amount of Fentanyl a heavy user could use in a day, I give his opinion very little weight, as it is based on hearsay which by his own admission arose from a debrief of a single individual.
Ms. Johnson’s Evidence:
[46] As the trier of fact, I may accept all, part or none of any witness’ evidence, and I may accord different weight to different parts of the evidence that I have accepted: R. v. J.H., [2005] O.J. No.39 (C.A.) at paragraph 44.
[47] Ms. Johnson’s evidence was tested by a thorough cross-examination. During chief she appeared subdued but spoke clearly, made occasional eye contact and answered counsel’s questions at a volume which was captured on the record. In cross-examination, she spoke much more quietly, looked down and around frequently, and answered nonverbally, with a nod or a shake of the head such that the Crown had to ask her to speak up.
[48] I was able to observe Ms. Johnson’s manner of testifying during both her evidence in-chief and during cross-examination. She answered the questions put to her by her counsel.
[49] On cross-examination she answered the Crown’s questions openly and agreed with many of the propositions put to her. On some specific questions, for example about the specific quantity of drugs she consumed in a day, her answers were general and sometimes vague. She was open about her use and reliance on drugs as an opioid addict. She refused to name the person who supplied her with drugs.
VI. Positions of the Parties
[50] Counsel agreed that this is a fact-driven case. They agreed further that the applicable definition of “traffick” is broader than selling, as the relevant definition in the CDSA is “to sell, administer, give, transfer, transport, send, or deliver” the controlled substance.
[51] The ultimate question is whether I am left in a reasonable doubt as to Ms. Johnson’s guilt as to the purpose of her possession of the Fentanyl on the totality of the evidence.
The Crown’s Position:
[52] The Crown points to D.C. Bohn’s report and his conclusion that the amount of Fentanyl in Ms. Johnson’s purse, and the paraphernalia in the purse, are circumstances from which I can infer her intention to sell the Fentanyl. The Crown submits that evidence of sharing Fentanyl several hours before her arrest supports this conclusion. The Crown points to inconsistencies and evasive answers in parts of the testimony of Ms. Johnson, and takes the position that the totality of the evidence proves her intent to traffick beyond a reasonable doubt.
[53] While the parties did not seek a ruling on this issue, I should state clearly here that the evidence given by the accused of her recent prior sharing of Fentanyl, which the parties agreed is a form of trafficking, is presumptively inadmissible as it is discreditable conduct falling outside the frame of the indictment and can lead to propensity reasoning. In this case both counsel agreed that I should admit it simply as part of the narrative.
The Defence Position:
[54] The defence points to the candour with which Ms. Johnson admitted her prior drug use history, her involvement in the drug lifestyle, and her record of pleading guilty to drug related crimes, with the exception of this count. Counsel argues that the Court should give weight to Ms. Johnson’s explanations about how she came to possess the quantity of Fentanyl for personal use.
[55] In making my decision, I have considered the testimony of the witnesses, the exhibits filed and the agreed facts. As trier of fact I must now determine how much or how little weight to give that evidence to determine the issue of whether Ms. Johnson possessed the Fentanyl for the purpose of trafficking.
VII. FINDINGS
Does the evidence support a finding of the guilt of Ms. Johnson beyond a reasonable doubt?
[56] I have accepted the evidence of D.C. Bohn to find the facts set out above. Specifically I accept D.C. Bohn’s testimony on the following points: that the quantity of Fentanyl in Ms. Johnson’s purse was enough to traffick, it was not packaged for sale but had means to. The amount was enough for several doses. I do give little weight to his upper daily limit for a heavy user being a 1 gram dose for the reasons referenced earlier.
[57] I can, however, conclude, based on Ms. Johnson’s own testimony, that there was sufficient quantity, not packaged for sale, for several doses even for a heavy user with an established tolerance to Fentanyl. I do accept that the drugs were not packaged for sale but that Ms. Johnson had the means and the experience to package it for sale if she chose to do so.
[58] I have considered the evidence of Ms. Johnson. I accept her evidence regarding her history of drug addiction over approximately 10 years prior to her arrest on these charges. I also accept her description of her life during that period being focused primarily on obtaining and using drugs herself, first as a user only, and then as a dealer herself. This evidence is corroborated by her criminal record for several offences, all of which were drug related. It is also consistent with her statement to the police on arrest that she needed to use drugs again.
[59] I find that at the time of her arrest, Ms. Johnson was a heavy user of opioids, and that her addiction required that she not run out of Fentanyl. I have accepted her plea to possessing Methamphetamine for the purposes of trafficking, and also her plea to possessing money derived from the criminal activity of Methamphetamine sales. It is not disputed that her purse contained the scale and packaging materials to enable her to prepare both Methamphetamine and Fentanyl for sale.
[60] I must consider, however, Ms. Johnson’s testimony that while she used and sold Methamphetamine, she did not sell or traffick Fentanyl. In particular, I must consider her evidence and explanations given in response to the evidence relied on by the Crown to support an inference of trafficking.
[61] When asked about the amount of drugs she used on a daily basis at the time of her arrest, Ms. Johnson answered that it depended on several factors. She gave the example of using more Methamphetamine on a day when she had been up all night and needed to stay awake or to counteract the sleep-inducing effects of the Fentanyl in her body.
[62] She admitted to sharing Fentanyl shortly before her arrest. When asked if she had shared Fentanyl before, she admitted that she had, but that she did not usually share it as she did not like to “waste good drugs”.
[63] With respect to the Fentanyl in Ms. Johnson’s purse at the time of arrest, the little canister contained a purple piece of Fentanyl and several rust coloured pieces. Ms. Johnson’s explanation for the two colours was that the purple piece was the end of her last purchase of Fentanyl, and that when she was down to that amount she purchased more, as “I don’t ever let myself not have it, it’s not an option … the last thing you want to be is sick”. I accept her explanation in this respect. It is also consistent with D.C. Bohn’s evidence that “one thing that an addict of Fentanyl or Carfentanil does not want is to run out”.
Quantity:
[64] Ms. Johnson testified that she knew how to sell drugs and had previously sold Fentanyl, in patch form, several years earlier. She had not sold Fentanyl since that time, and had purchased the quantity in her purse for her personal use only.
[65] Ms. Johnson was questioned as to why she did not buy in smaller amounts. She agreed that there is a risk of being robbed or arrested if a person carries a larger amount of drugs on their person. Her explanation for purchasing the quantity is that she could not support her habit if she bought in small quantities, as Fentanyl is much cheaper if bought in larger amounts. This fact was corroborated by the testimony of the Crown expert, who agreed on cross-examination to the significant cost reduction for a purchaser if Fentanyl is bought in bulk.
[66] In the circumstances of this accused, her testimony regarding buying Fentanyl for her personal use in bulk is plausible. I reach this conclusion because she was a dealer of Methamphetamine and testified that she bought both Methamphetamine and Fentanyl from the same person. It would not be unreasonable to buy both in bulk in the same transaction if she had the money to do so. The funds in her possession at the time of arrest, over $1,100 cash, were consistent with an individual having the purchasing power required to make a bulk purchase of Fentanyl, or to repay her dealer if the drugs had been obtained on credit.
[67] Ms. Johnson testified that she did not use Fentanyl intravenously due to the risk of overdose. She testified that she had overdosed 8 times in her life and nearly died. It was her evidence that she used Fentanyl by heating and “smoking” it. When she was arrested her purse contained a hollow pen for “smoking”, and tinfoil with burnt Fentanyl residue consistent with it having been used to heat the Fentanyl prior to smoking. DC Bohn’s evidence confirmed that the burnt Fentanyl on the tinfoil, the Naloxone spray, and the hollow pen were all paraphernalia used for smoking Fentanyl in the manner described by Ms. Johnson.
[68] The evidence was unclear as to how much Fentanyl Ms. Johnson smoked on average each day or week. The expert evidence was that a regular user would use 0.1g (a “point”) at a time. DC Bohn also testified that heavier users, who had developed a tolerance for the drug, would use more. Ms. Johnson’s evidence, unchallenged on this point, was that she had been using Fentanyl for several years and was addicted to opioids. She described using “all day every day… a constant thing” when asked about her frequency of use.
[69] I find on all the evidence that Ms. Johnson’s use was likely significantly higher than 0.1g per day. She was not asked questioned about how long she anticipated the Fentanyl in her purse at the time of her arrest would last her. Without more precise evidence on these points, I am left to conclude that she had enough Fentanyl to feed her addiction for several days or potentially several weeks.
[70] In this regard I accept the evidence of the Crown’s experts that addicts do not usually carry days or weeks’ worth of personal drugs on their person. They tend to buy in small quantities, and if possessing more than that, to hide the drugs in a safe place to minimize the risk of theft or arrest.
[71] In response to questions as to why she carried her whole “stash” of Fentanyl with her, rather than hiding or storing it somewhere, Ms. Johnson testified that she had been “on the run” for a year at the time of her arrest and was moving between friends’ couches without a permanent place to stay. At the time of her arrest she had been living in Hanover, but had recently come to Owen Sound after a relationship break-up and had been there two weeks at the time of her arrest. I find that Ms. Johnson’s evidence in this regard provides a plausible explanation as to why she would carry what Fentanyl she possessed with her. Further on this point, Ms. Johnson testified that she did not have a safe place to leave her drugs – she was not able to trust people. She also testified that most of the people she was connected with, or at whose homes she left some clothes, also used drugs. It is a plausible explanation that she could leave her clothes, but not her Fentanyl, with these friends because she could not trust them with her drugs as they were also involved in a drug lifestyle.
VIII. ANALYSIS
Analysis of Ms. Johnson’s Evidence:
[72] I accept Ms. Johnson’s evidence that both Methamphetamine and Fentanyl are drugs she was using regularly at the time she was arrested. I further accept her evidence that after purchasing significant quantities of each the day before her arrest, she used some of each drug herself.
[73] The expert testimony and agreed facts and exhibits have satisfied me that Ms. Johnson had the quantity to traffick, as well as the ability to weigh and package Fentanyl for sale. Without other explanation, the circumstantial evidence and the expert testimony, would be sufficient for me to infer an intent to traffick.
[74] However, where the accused has testified, I must follow the analysis of the Supreme Court of Canada in R. v. W.(D.).
[75] Having considered Ms. Johnson’s evidence, as described above, I am left in a reasonable doubt as to whether she possessed the Fentanyl for the purpose of trafficking. Overall, I found her evidence credible and also consistent with other evidence, as referenced above. Her explanation for purchasing carrying the quantities of Fentanyl found in her possession was plausible, as was her description of her own opioid addiction which necessitated constant access to the drug. I accept her description of herself as “couch surfing” and unable to trust her host friends enough to leave her drugs with them instead of carrying them in her purse.
[76] Having considered all the evidence, including the report and testimony of the Crown’s witness, I am left in a reasonable doubt as to whether the Fentanyl in Ms. Johnson’s possession on her arrest was for the purpose of trafficking.
[77] Accordingly, I conclude that the Crown has failed to meet its burden of proof beyond a reasonable doubt.
IX. FINAL DISPOSITION
[78] Following from the findings above, on Count #1 I must acquit Ms. Johnson of possession of Fentanyl for the purpose of trafficking.
[79] I therefore convict Ms. Johnson on Count #1 of the lesser and included offence of possession.
McSweeney J.
Released: June 17, 2019