Court File and Parties

COURT FILE NO.: CR-18-002 DATE: 2020-05-04

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN D. Garson, for the Crown

• and -

RANDALL WILLIAM CREED K. Brindley, for the Accused Accused

HEARD: January 21, 22 and 23, 2020, at Kenora, Ontario Mr. Justice F.B. Fitzpatrick

Reasons For Judgment

[1] Mr. Creed is charged that on September 20, 2017, he unlawfully possessed, for the purposes of trafficking, Methamphetamine contrary to section 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c.19. He has pleaded not guilty to this charge.

[2] Mr. Creed testified on his own behalf. His explanation of events is in stark contrast to those of the three Crown witnesses who testified. The Crown also provided expert opinion evidence of an experienced police officer from the Thunder Bay Detachment of the Ontario Provincial Police. The expert evidence was of assistance to the Court.

[3] The matter focused on an alleged “stash” of Crystal Meth that was found by Kenora drug enforcement officers early in the evening of September 20, 2017. The drugs, in plastic baggies, were found hidden in the top of two rotted-out, wooden fence posts. The wooden fence posts were located at the rear of a parking lot of a local Kenora Travelodge. Immediately behind the fence was a wooded area. Black bears rummaging through a garbage bin in the parking lot played a small part in the narrative of the evidence before the Court. The facts are somewhat unusual.

Uncontroverted Background Evidence

[4] After hearing all the evidence of the witnesses and the submissions of counsel, I find that a number of facts relevant to the determination of this matter were not contested by either party.

[5] On September 20, 2017, Mr. Creed was living on a boat. It was docked on a lake near Kenora. Mr. Creed had not bathed for some days and needed a shower. He usually did this at his daughter’s home in Kenora. However, on September 20, 2017, Mr. Creed’s daughter had gone to Thunder Bay and her home was not available to him. Mr. Creed decided to rent a hotel room for the night. He went to a local Travelodge. He went early in the morning. The rooms were not ready, so he paid for the night and went away for some time.

[6] Mr. Creed returned to the Travelodge at about 11:00 in the morning. He had been asked to drive a friend around Kenora. Mr. Creed had use of a Jeep Liberty that was owned by his daughter but for which he paid the insurance. So, he treated the vehicle like it was his own. It was not in dispute that at all material times Mr. Creed was in possession of the Jeep. The friend was prepared to pay Mr. Creed $20 for the drive. Mr. Creed obliged him and drove him around town.

[7] Mr. Creed returned to the Travelodge at about 3:45 p.m. Mr. Creed parked his Jeep at the front of the Travelodge. He had arranged to meet a friend, Tyson Forrester, at the hotel. Mr. Creed owed Mr. Forrester $30. Mr. Forrester had come to collect. Unbeknownst to Mr. Creed, Mr. Forrester was a person of interest to the Kenora OPP drug squad. Mr. Forrester had been under surveillance that day by members of the drug squad. An OPP undercover officer had followed Mr. Forrester to the Travelodge and had seen him with Mr. Creed.

[8] Mr. Creed has a criminal record. It includes drug offences. The most recent conviction in 2012 involved cocaine. Mr. Creed’s criminal record was not made an exhibit at this trial. The Crown did not cross-examine Mr. Creed on his record. In any event, Mr. Creed’s actions around the Travelodge caught the interest of the undercover drug enforcement officers who had been tailing Mr. Forrester.

Uncontroverted Evidence about the Critical time

[9] The most relevant events and facts relayed in the evidence tendered by the parties, and from which the Crown seeks to prove that Mr. Creed is guilty, was gathered or occurred over the period 3:45 p.m. on September 20, 2017, until about 3:58 a.m. of September 21, 2017. This was the critical time for the Crown’s burden of proof. The parties contest significant aspects of the events that occurred then. They also contest the conclusions that I am to draw from the evidence. Still, there remains a narrative of essential uncontested facts. I relate that narrative below.

[10] At around 4:00 p.m., one of the drug enforcement officers witnessed Mr. Creed walk to the edge of the parking lot on the eastern side of the Travelodge. He went as far as the wooden fence just beyond the end of the parking lot pavement (“the First Fence Visit”). He then returned to the hotel carrying something. Mr. Creed then got in to his Jeep and drove away. He was not followed by the officers. Mr. Forrester also drove away in another vehicle at this time. He was followed by the officers.

[11] Ultimately, Mr. Forrester’s movements did not cause any reactions from the police that are relevant to these proceedings. However, the officers who testified had collectively formed the opinion that further surveillance of the rear eastern area of the Travelodge parking lot was warranted. Shortly after 4:00 p.m., the officers had a meeting at the local OPP Detachment and formulated a plan. They believed Mr. Creed had a drug stash near the Travelodge, but they did not know exactly where. None of the officers who testified observed the Travelodge parking lot from 4:10 p.m. to 5:18 p.m.

[12] The first officer to arrive back at the Travelodge was Detective Constable (“DC”) Davis. At 5:18 p.m., DC Davis parked his unmarked car beside the hotel’s garbage bin – at the northern end of the parking lot. From this location, he could see the rear entrance to the hotel as well as the wooded area toward which Mr. Creed had earlier walked and from where he had retrieved what another officer had thought looked like a baseball wrapped in plastic.

[13] DC Davis did not, at all material times, have a direct view of the fence line area that would become significant as the evening wore on. This is because at some point, not specifically referenced in the officer’s notes, a truck had backed into a spot beside the post where the drugs were later found. In fact, two trucks would park there: a panel truck to the north, closest to DC Davis’ location, and a type of dump truck, one space farther south from the panel truck. The fact that the trucks parked there had a bearing on the evidence because they blocked the view of certain witnesses. DC Davis testified that a total of three persons got out of the trucks around the time that they parked there. DC Davis did not contemporaneously note the time nor that the trucks had arrived. He testified that the truck drivers did not approach the wooden fence behind the parking lot.

[14] Following his departure from the hotel around 4:00 p.m., Mr. Creed was next observed returning to the rear parking lot at 6:19 p.m. This time, he was accompanied by a woman, later identified as Nancy Neufeld. At 7:01 p.m., Mr. Creed again left the hotel in the Jeep. This time by himself. He returned at 7:28 p.m. and parked in the same place as before. He exited and walked into the back of the hotel carrying something.

[15] At 7:56 p.m., Mr. Creed and Ms. Neufeld exited the back door of the hotel. Ms. Neufeld began cleaning the passenger area of the Jeep. Mr. Creed walked toward the eastern edge of the parking lot (the “Second Fence Visit”). He approached the same area as before when he had retrieved something resembling a baseball. This time, however, the trucks were in his path. Mr. Creed walked between them. DC Davis lost sight of him. Mr. Creed disappeared for about 30 seconds. He then re-emerged from between the trucks. He returned to the Jeep, got in, and he and Ms. Neufeld drove away.

[16] At 8:00 p.m., one of the officers attempted to search the area around the fence – near the trucks. As he headed there, someone in the parking lot yelled that he should watch out for bears. Apparently, black bears had been seen in the woods nearby. As he was alone and it being dusk, the officer concluded that a careful search could wait until a more opportune moment. Under cross-examination, he agreed that he did approach the fence at this time and that he was there for about 20 seconds and did not find anything unusual.

[17] At 8:25 p.m., Mr. Creed returned to the hotel, again, parking in the same place. He was by himself this time. At 8:48 p.m., Mr. Creed drove away from the hotel. Two officers from the drug enforcement team, Detective Sergeant (“DS”) Cowles and DC Babcock then decided that they could quickly search the fence line. They did so at 9:01 p.m. They located a bag of Crystal Meth hidden in the top of a rotted wooden fence post. The post was immediately behind the panel truck. In testimony, witnesses referred to this post as Post No. 1.

[18] The officers transferred the bag to DC Babcock’s car which was parked in the rear lot of the Travelodge. They quickly switched out the majority of the Crystal Meth for sugar. The continuity of the drugs was not contested. The Crown tendered an analyst certificate confirming that the substance that the officers had found in Post No. 1 was a Schedule 1 substance: Methamphetamine (N, a-dimethylbenzeneethanamine). No evidence to the contrary was tendered by the defence. I find that the substance which the officers found at Post No. 1 was Methamphetamine (N, a-dimethylbenzeneethanamine).

[19] The officers then returned the baggie, now mostly filled with sugar, to Post No. 1. They replaced it to its original location and covered it up with leaves attempting to restore the site to its original appearance.

[20] Mr. Creed returned to the Travelodge at 10:04 p.m. and again parked his Jeep where he had parked it on the four previous occasions. At 10:26 p.m., Mr. Creed exited the back of the hotel. By this time, DS Cowles had parked his unmarked SUV immediately beside the panel truck. The officer’s SUV was parked so close to the panel truck that it would have been difficult to exit from the driver’s side of the SUV. DS Cowles was in the rear hatch area of the SUV as Mr. Creed approached the area of Post No. 1.

[21] Mr. Creed first walked to his Jeep. He opened the driver side door and, then, turned and walked away toward the exact place where he had gone previously – at about 8:00 p.m. I style this episode, “the Arrest Visit.” Mr. Creed walked toward the fence line taking a line between the panel truck and the dump truck. As Mr. Creed entered the area at the rear of the two trucks, DS Cowles radioed other squad members to arrest him. DC Davis got to Mr. Creed first. He bellowed that Mr. Creed was under arrest. Mr. Creed was then handcuffed, read a caution and right to counsel, and transferred in a marked unit to the Kenora OPP Detachment. Mr. Creed was carrying car keys and a single marijuana cigarette when he was arrested. He had no cash, no other drugs, nor any drug paraphernalia on his person.

[22] Immediately following Mr. Creed’s arrest, officers did a more complete search of the fence line. They located another baggie filled with Crystal Meth in a rotted fence post immediately south of where they had found the first Meth baggie at Post No. 1. I refer to this area as Post No. 2. The Crown tendered an analyst certificate confirming that the substance which the officers found at Post No. 2 was a Schedule 1 substance: Methamphetamine (N, a-dimethylbenzeneethanamine). No contrary evidence was tendered by the defence. I find that the substance which the officers found at Post No. 2 was Methamphetamine (N, a-dimethylbenzeneethanamine). The defence conceded the continuity of the drugs which were found at Post No. 2.

[23] DC Davis then prepared the necessary information to obtain a search warrant for Mr. Creed’s Jeep and hotel room. Officers executed the warrant on the hotel room first. They found marijuana cigarettes, a marijuana grinder and a black backpack. The backpack contained women’s clothing as well as a number of baggies, many of which had green marijuana leaves embossed on them.

[24] The police then moved to execute the warrant on Mr. Creed’s Jeep. They found and seized a small green digital scale. They found and seized a larger silver coloured food scale. They found and seized a number of plastic sandwich baggies. Photographs of the Jeep were entered into evidence. A newish-looking, white softball can be seen in one of the photographs – in the back seat of the Jeep.

[25] I pause to comment on the expert opinion evidence tendered by the Crown. The expert was qualified and accepted by the Court to give opinion on the use, distribution, price and packaging of Methamphetamine in Northwestern Ontario. He was not a fact witness. This witness’s opinion assisted the Court and was not seriously challenged by the defence. That is not to say that all his testimony was accepted. In fact, on one key point, his evidence was not accepted. I explain why below.

[26] The expert’s evidence was important for two reasons. First, it established that baggies are frequently used in street-level sales transactions involving Crystal Meth. Second, it established the amounts in which street-level dealers typically deal: street-level dealers sell Meth in 0.1-gram increments called “Points.” Third, the expert also testified that Meth users may use more than one Point per day, depending on their habit and tolerance.

The Disputed Evidence about the Critical Time

[27] To be clear, Crown witnesses led specific evidence about what Mr. Creed did or did not do when he went to the vicinity of Posts 1 and 2 – the area where the Crystal Meth was found. Mr. Creed’s evidence controverted some of this evidence. Mr. Creed’s categorically denied that he had placed the Crystal Meth in the fence posts. Mr. Creed categorically denied that he knew that there was Crystal Meth hidden in the fence posts. In my view, the proper approach to resolving this matter is to weigh and analyze all the evidence in relation to Mr. Creed’s three visits to the locale where the police found the drugs. Since Mr. Creed testified, the W(D) principles apply to this matter: see R. v. W.(D.), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397 (“W.(D.)”). Both counsel agree to the applicability of the so called W.(D.) principles in this matter.

The Law

R v. W.(D.)

[28] W.(D.) involved a sexual assault. The central issue in the trial was the credibility of the complainant and the accused in circumstances where the accused had denied the alleged assault.

[29] At paragraphs 10-11 of the reasons, the Supreme Court of Canada set out the W.(D.) framework as follows:

The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Secondly, if they do not believe the accused’s evidence but still have a reasonable doubt as to his guilt after considering the accused’s evidence in the context of the evidence as a whole. See R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont. C.A.), approved by R. v. Morin, supra, at p. 357 [[1988] 2 S.C.R.].

Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[30] Pursuant to the first step of the W.(D.) formula, I must not consider the accused’s version of events in isolation – as if the Crown has led no evidence. The evidence that supports the accused must be assessed in the context of all the evidence.

[31] I must approach the second step as set out by Binnie J. who wrote for a unanimous court in R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at paras. 10-13:

The precise formulation of the W.(D.) questions has been criticized.

As to the second question, some jurors may wonder how, if they believe none of the evidence of the accused, such rejected evidence may nevertheless of itself raise a reasonable doubt. Of course, some elements of the evidence of an accused may raise a reasonable doubt, even though the bulk of it is rejected. Equally, the jury may simply conclude that they do not know whether to believe the accused’s testimony or not. In either circumstance the accused is entitled to an acquittal.

In light of these possible sources of difficulty, Wood J.A. in H. (C.W.) suggested in additional instruction:

I would add one more instruction in such cases, which logically ought to be second in the order, namely: “If, after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit”. [p.155]

In short, the W.(D.) questions should not have attributed to them a level of sanctity or immutable perfection that their author never claimed for them.

[32] W.(D.) clarifies that a criminal trial is not a credibility contest where the trier of fact must choose whether to believe one side or the other. Justice Cory stated, at para. 9, that:

It is incorrect to instruct a jury in a criminal case that, in order to render a verdict, they must decide whether they believe the defence evidence or the Crown’s evidence. Putting this either/or proposition to the jury excludes the third alternative; namely, that the jury, without believing the accused, after considering the accused’s evidence in the context of the evidence as a whole, may still have a reasonable doubt as to his guilt.

[33] The third step of the W.(D.) analysis is engaged where the totality of the defence evidence is rejected. This then leaves the evidence to be assessed on whether the Crown has discharged its burden of proof beyond a reasonable doubt.

[34] In R. v. Woolam, 2012 ONSC 2188, [2012] OJ No 3867, leave to appeal dismissed, 2013 ONCA 711, 110 W.C.B. (2d) 91, Durno J. reiterated, at para. 52, that:

W.(D.), does not mandate an examination of the evidence favouring the defence in isolation from the rest of the evidence. In assessing Crown or defence witnesses, the trier of fact must consider their evidence in the context of all of the evidence, including whether it was internally consistent, whether it was consistent with other evidence called, the witness' demeanour and whether their evidence accords with logic, common sense and human experience.

[35] Mr. Creed faces a single charge under section 5(2). Conviction under this section requires the Crown to prove, beyond a reasonable doubt, possession of a controlled substance plus the intent or purpose of physically making the narcotic available to others. Proof of possession requires the Crown to prove several elements beyond a reasonable doubt: physical contact, however brief, with the substance; control over the substance and knowledge of the nature of the substance.

The First Fence Visit

[36] Mr. Creed testified that as he was walking to his room, room number 207 in the Travelodge, he had occasion to glace out the window. He could see the rear parking lot. He noted that he saw what looked like a baseball up against a wooden fence at the rear of the lot. His granddaughter has a dog. The dog likes to play with baseballs. Mr. Creed thought that it would be good to go get the baseball, so that he could give it to his granddaughter. He testified that he walked to the fence and picked up the baseball. However, he also said that he saw a long piece of discoloured plastic lodged in the fence. Mr. Creed decided to grab the discoloured plastic as well. He took these items back across the parking lot. He testified that he put the discoloured piece of plastic in the garbage.

[37] DS Cowles testified that he had a clear view to Mr. Creed when Mr. Creed went toward the fence at this time. DS Cowles testified that he saw Mr. Creed retrieve something from the fence area. He noted a plastic bag in Mr. Creed’s hand that appeared to be the size of a baseball. Mr. Creed carried this bag across the parking lot and went back into the hotel.

[38] I prefer the evidence of DS Cowles on this point. I find that Mr. Creed had a bag in his hand. I do not believe the evidence of Mr. Creed in respect to why he went to the rear of the parking lot at this time. I find his testimony about grabbing a piece of plastic at the same time as he allegedly grabbed a baseball to be incongruous. Picking up a piece of plastic makes no sense if the object of the visit is to retrieve a baseball. Besides, it would have been an odd place to find a baseball. No playing field is nearby. Nearby are woods with bears in them.

[39] I find that Mr. Creed was not telling the truth about picking up a baseball when he went to the fence. He picked up a plastic bag that was the size of a baseball. I find that he fabricated the part of his account about the discoloured plastic to make his evidence match that of DS Cowles’ who said that he saw Mr. Creed carrying something plastic when he returned from the fence line. Overall, for other reasons I set out below, I do not believe all of Mr. Creed’s evidence of his reasons for the three visits.

The Second Fence Visit

[40] The evidence of the Crown witness on this point does not help the Crown to discharge its burden. The view to the fence line was blocked by the panel truck. On the other hand, I do not believe Mr. Creed’s testimony about why he decided to cross the parking lot to the very place where the drugs were located. Mr. Creed said that he went there because he was essentially shamed by another patron into concealing his public smoking of a marijuana joint. He testified that he had but ‘half a joint left’ when this happened. He left Ms. Neufeld at the car and then crossed the lot to between the trucks. He took 4 or 5 tokes before he went back to the car. This simply does not make sense.

[41] If Mr. Creed only needed thirty seconds to finish the joint, it seems incongruous that he would bother to walk across the lot and hide between the trucks to do this. Also, by this time darkness had fallen. While there was evidence of an overhead light near the doorway through which Mr. Creed had been entering and exiting the building, it seems that for the short time he needed to finish the joint, a walk across the parking lot was unnecessary. However, if Mr. Creed was checking on important items of personal property – like a drug stash – this visit makes sense.

The Arrest Visit

[42] Mr. Creed had returned to the hotel. He testified that he went to his room and tried to sleep. He could not sleep. He determined that he needed to smoke pot, like he did every other night before sleeping. He was not able to smoke in the room, as it was smoke free. About 25 minutes after re-entering his room, he went back outside and to the rear of the hotel. He said that he first went to his car to get a light for his joint. He did not light the joint because, coincidentally, at that exact time, he had an urgent need to urinate. In the interests of efficiency, he decided to go urinate on the grass – exactly in front of Post No. 1.

[43] Mr. Creed said that he walked over to the place between the trucks. He testified that it was so dark, he was holding his hands up to either side of his body to negotiate his way between the trucks. He carefully used his foot to seek out the concrete barrier, so he would not trip. He began to urinate. At that very moment, he heard footsteps and, then, a voice telling him he was under arrest. Mr. Creed pulled his track pants back into position, turned to face the arresting officer (DC Davis), and dropped his joint and car keys.

[44] DS Cowles testified to a different set of events. DS Cowles was alerted by DC Davis that Mr. Creed had left the hotel and was approaching the fence. DC Davis was in his original observation position, beside a garbage bin, a bin that was being intermittently raided by a mother black bear and her cub. DS Cowles testified that following the discovery of Meth in Post No. 1, he positioned himself to directly observe the fence post. I appreciate that he was looking through a tinted window. I appreciate that he was in a compartment of an SUV that is designed for storage and not for seating or passenger comfort. I appreciate that it was dark at the time that he was making his observations.

[45] DS Cowles observed Mr. Creed walk first to Fence Post No. 2. He then observed him walk back to Post No. 1. He observed Mr. Creed put his hands over top of the post. DS Cowles physically demonstrated in the witness box what he observed Mr. Creed’s hands doing over Post No. 1. I commented on this demonstration at the time. On reflection, a more apt description would be that Mr. Creed’s hands looked like someone playing a piano over top of Post No. 1.

[46] I prefer the evidence of DS Cowles to that of Mr. Creed concerning the Arrest visit. I believe Mr. Creed fabricated his account of needing to urinate in the area. It seems incongruous that a person who lived on a boat and who spent money to obtain washroom facilities, in the Travelodge for a night, would decide that it made more sense to urinate in public than to make a short walk back to his room to relieve himself. Also, as it was dark, it makes no sense that Mr. Creed would contort himself between two trucks, where common experience tells me any ambient light from the town would be blocked, if indeed he simply wanted to quickly urinate and get back to smoking his joint.

[47] I prefer the testimony of DS Cowles. I appreciate the defence argument that it was so dark that DS Cowles could not have seen what Mr. Creed did. I do not accept this argument for the following reasons. First, DS Cowles was very close to Post No. 1. Second, I rely on my experience that in urban areas, like Kenora, there is ambient light at night that allows visibility of more than a few feet – even in areas that do not have immediate sources of artificial light. Third, DS Cowles had expressly positioned himself to watch the very fence post that he says was approached by Mr. Creed. DS Cowles had found drugs there about two hours earlier. He was watching an express location. He wanted to see if anybody was going to return to the post to take possession of the drugs. It seems to me that if he could not see the area clearly, he would have moved to another position in order to ensure a clear view.

[48] For these reasons, I find that at or around 22:25 on September 20, 2017, Mr. Creed approached Fence Post No. 2. He then moved to Fence Post No. 1 where he put his hands over and on it in a manner that suggested an intention to retrieve something.

Analysis

[49] In my view, the only Crown evidence that Mr. Creed actually possessed a prohibited substance came from the testimony of DS Cowles. I find DS Cowles’ evidence credible and reliable. I find that on September 20, 2017, Mr. Creed acted in a fashion that indicated his intention to possess the plastic baggie of a controlled substance that was hidden by leaves in the top of Fence Post No. 1. Despite the circumstantial nature of the Crown’s evidence, there is no other reasonable explanation for Mr. Creed putting his hands over a rotted wooden fence post, at 10:30 at night, at the back of a parking lot of a hotel, other than to retrieve and possess what was there. I find because of the unusual location of the fence post relative to the hotel that Mr. Creed had knowingly placed the baggie of a controlled substance there at some prior time. I find that he knew that it was a controlled substance and that he had attempted to hide it from plain view by covering the bag with leaves. I find that he intended to have the baggie of Meth in that place for his benefit.

[50] I find that the evidence of the Crown proves beyond a reasonable doubt that on September 20, 2017, Mr. Creed was in possession of a Schedule 1 controlled substance: Methamphetamine (N, a-dimethylbenzeneethanamine). However that finding is not dispositive of the charge before the Court.

[51] Mr. Creed was not charged with possession contrary to section 4(2) of the CDSA. The sole count on the indictment before the court is a charge of trafficking a controlled substance contrary to section 5(2) of the CDSA. This requires the Crown to prove beyond a reasonable doubt both possession and the intent or purpose of physically making the narcotic available to others.

[52] In a trafficking case, it is important for the Crown to establish the precise amounts of controlled substances that are seized. This is because controlled substances can be possessed for personal use or they can be possessed for trafficking. This is a distinction with a difference. Possession is not an included offence of possession for the purpose of trafficking. In R. v. Drysdelle, [1978] CarswellNB 121, a decision of the New Brunswick Supreme Court – Appeal Division, the Court stated at para. 8:

It was submitted by counsel for the Attorney-General that the offence of possession contrary to s. 3(1) of the Act is not included in the offence of selling a narcotic contrary to s. 4(3). In support of this submission counsel cited R. v. Shewfelt (1972), 6 C.C.C.(2d) 304 (B.C.C.A.); 18 C.R.N.S. 185, a decision of the British Columbia Court of Appeal which held that trafficking as described in the Narcotic Control Act did not include the offence of possession, and the fact that the evidence might have disclosed the offence of possession did not make possession an included offence since the court charged trafficking simpliciter. Where the charge is that of selling, a species of trafficking, the same conclusion must be reached. The trial Judge in the instant case had no jurisdiction to convict the accused of possession as that charge was not laid.

[53] I find the logic of this decision persuasive. In my view, the Crown failed to prove beyond a reasonable doubt the precise weight of the controlled substances found in the two fence posts. The only evidence I had as to the amount, alleged to be 18.4 grams, came from the expert called by the Crown. This witness did not establish the basis for his conclusion. This witness never saw the drugs. His evidence was hearsay. Normally, hearsay evidence is allowed from an expert. However, in this case, I find the hearsay unreliable because no rational basis was given for why the expert thought the amount was what he said it was.

[54] The photographs of the two baggies filed in evidence where insufficient for me to make a finding of the quantity seized. I note that Exhibit 8 was a photograph of the baggie found in Post No. 2. An electrical outlet appears in the photograph. In Northwestern Ontario, commercial or residential parking lots commonly have these types of electrical outlets. They are designed to be used for block heaters for cars in winter. I have knowledge of the relative size of these outlets from my experience of living in this region.

[55] I can roughly gauge the size of the ball-shaped item shown in the photograph. The Crown proved this item to be a controlled substance. However, the photograph is insufficient for me to establish the exact quantity of the controlled substance contained in that balled-shaped item. The other photographs of the bags seized, Exhibits 23 and 24, do not show any scales that could help me, more precisely, identify the size of the bags. The bags look small. However, I cannot say how much is in them. In my view, the amounts shown in the photographs could be consistent with personal use.

[56] Also, I do not accept the Crown submission that other items found in Mr. Creed’s hotel room or his Jeep are indicia of Mr. Creed’s intention to traffic the substances seized. There were three types of items found that are usually associated with drug trafficking: a large quantity of plastic baggies, scales, and a glass pipe.

[57] There is no doubt that some of the baggies seized in the hotel room were for drug purposes. I find this because they had cannabis leaves embossed on the side. Absent evidence of another explanation, I am reasonably led to that conclusion. Mr. Creed was not charged with the possession of cannabis, now a legal substance in certain quantities. However, the source of the baggies is a problem for the Crown’s case. They were found in a black backpack. Women’s clothing was also found in the backpack. Mr. Creed testified that Ms. Neufeld, a woman, was staying with him in the hotel room at some time on September 20, 2017. Mr. Creed testified that the backpack and the packaging belonged to Ms. Neufeld. I believe this evidence because of the clothing that was admittedly found in the bag.

[58] There were plastic baggies found in Mr. Creed’s Jeep. There is no question that it is not illegal for a person to have large numbers of plastic baggies in their car. Any parent who owns a car and has toddlers would be unsurprised by the contents of the rear of Mr. Creed’s Jeep. Mr. Creed testified that he used the baggies to protect his personal items from getting wet when he lived on the boat. He also testified that he provides the baggies to his daughter who has young children. This seemed to be a reasonable explanation for why Mr. Creed had these baggies. There was no evidence of any residue of any type found in these bags. In my view, this evidence is equivocal as to Mr. Creed’s intention to traffic in a controlled substance.

[59] There was a large silver scale and a small green scale found in Mr. Creed’s Jeep. Mr. Creed testified that he had bought the silver scale, new, that day for his daughter. He did not adequately explain why it wasn’t still in the store packaging if it was a gift for her. However, the Crown did not prove that there was anything expressly drug related found on the scale – like drug residue.

[60] The small green scale has a different quality which I can understand in a Meth case. However, it was admitted by the Crown expert that drug users also keep scales to ensure that they are buying the quantities promised by their dealers. Mr. Creed testified that he regularly uses marijuana. I have no reason to doubt him on that point. He has a reason for having the green scale in his Jeep: for the purpose of weighing marijuana which he admits that he uses. This is an explanation that is equally consistent with a use for trafficking purposes. I therefore find that the scales seized by the police in the place they were seized could be reasonably explained for a use not related to drug trafficking.

[61] The police also seized a small glass pipe. The Crown police witnesses testified that the pipe appeared to have no residue and therefore could be said to be “unused.” The Crown expert witness testified that glass pipes of that type could be used for smoking Meth or could be used for smoking “shatter”, a form of marijuana. Mr. Creed testified that he owned the pipe and he intended to use it to smoke shatter. As the pipe was clearly unused, I have no ability to say one way or another to what specific use it was going to be put by Mr. Creed.

[62] Defence counsel submitted that it was important to note what was not found in Mr. Creed’s possession on September 20, 2017: cash. Mr. Creed had ten dollars on his person when he was arrested. No other cash was found in the areas searched by the police. Trafficking is a “for profit” business. We live in an increasingly cashless society. In my experience with other drug cases, finding large amounts of cash in the possession of a person, together with other evidence, is evidence consistent with a finding that a person is involved in drug trafficking.

[63] I must consider the whole of the evidence in determining if the Crown has proven, beyond a reasonable doubt, the elements necessary to demonstrate an intent to traffic the drugs that I have found to have been in Mr. Creed’s possession. I find that the evidence before me does not prove such an intention to the degree necessary to found a conviction under section 5(2). I am left with a reasonable doubt of whether that evidence demonstrates an intention to use the drugs personally or for the purposes of selling drugs to others.

[64] Mr. Creed testified that he did not know the drugs were there. I do not believe him. Mr. Creed testified that he does not use Meth. I do not know what to believe on that point. However, I find that the Crown has not proved the necessary elements of the offence before the Court beyond a reasonable doubt.

[65] Accordingly on the count before the court that Randall Creed, on or about the 20th day of September 2017, in the City of Kenora in the Northwest Region, unlawfully did, for the purposes of trafficking, possess a substance included in Schedule I of the Controlled Drugs and Substance Act, to wit, Methamphetamine contrary to Section 5(2) of the said Act, thereby committing an indictable offence under Section 5(3)(a) of the said Act: I find Mr. Randall Creed not guilty.

The Hon. Mr. Justice F.B. Fitzpatrick Released: May 4, 2020