R. v. Broderick, 2020 ONSC 6399

COURT FILE NO.: CR19-90000739

DATE: 20201022

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JASON BRODERICK

Defendant

Amanda Webb and Eric Gilman, for the Crown

Jesse DiCecca, for the Defendant

HEARD: October 13 – 16, 2020

REASONS FOR JUDGMENT

SPIES J.

Introduction

1The Defendant Jason Broderick is charged with the following offences arising out of the execution of a search warrant at 200 Wellesley Street East, Unit 2721 (the “Apartment”) on January 29, 2019:

a) possession of fentanyl for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act (“CDSA”);

b) possession of methamphetamine for the purpose of trafficking, contrary to s. 5(2) of the CDSA;

c) possession of a restricted firearm, namely a Glock 17 – 9 mm handgun (the "Firearm"), while knowingly not being the holder of a licence or a registration certificate, contrary to s. 92(1) of the Criminal Code;

d) possession of the Firearm while being prohibited by reason of an order made under s. 110 of the Criminal Code contrary to s. 117.01(1) of the Criminal Code; and

e) breach of a probation order made by the Ontario Court of Justice, on April 4, 2018, prohibiting possession of any weapon(s) as defined by the Criminal Code, contrary to s. 733.1(1) of the Criminal Code.

2Mr. Broderick re-elected trial by judge alone and pleaded not guilty to all of the charges.

3In January 2019, members of 51 Division Major Crime Unit entered into a CDSA investigation of Mr. Broderick and as a result of the investigation, on January 29, 2019, at around 11:00 p.m., they executed a CDSA search warrant for the Apartment, which the Crown alleges is Mr. Broderick’s residence. During closing submissions, Mr. Broderick’s counsel, Mr. DiCecca admitted that the Apartment was his residence at the time. Mr. Broderick also admitted that certain quantities of fentanyl, methamphetamine and the Firearm were found during the search of the Apartment. With the cooperation of counsel, an Agreed Statement of Facts (“ASF”) was entered into which sets out the admissions in detail.

4I heard from the various police officers who participated in the search, who found the Firearm, the drugs, as well as scales and small zip lock baggies and who testified as to where those items were found, as well as a drug expert qualified to give opinion evidence. No ammunition for the Firearm or cash was found in the Apartment. In his defence, Mr. Broderick called one witness, T.F., who testified that apart from the fentanyl found on Mr. Broderick’s person when he was arrested, the other drugs and the Firearm found in the Apartment were hers and that she stashed them in the bedroom in the Apartment without Mr. Broderick’s knowledge.

The Issues

5There was no issue with the issuance or execution of the search warrant or the arrest of Mr. Broderick. During closing submissions, Mr. DiCecca conceded that the Crown has proven that Mr. Broderick is guilty of the included offence to Count 1 of possession of fentanyl, namely the 6.79 grams of fentanyl that was in his pants pocket at the time of his arrest. As a result of this admission and the admitted facts in the ASF, the issues before me are as follows:

a) was the fentanyl found in Mr. Broderick’s pants pocket in his possession for the purpose of trafficking;

b) was Mr. Broderick in possession of the other drugs and the Firearm found in the Apartment; namely did they belong to him; and

c) if so, was Mr. Broderick in possession of the other drugs for the purpose of trafficking?

The Evidence and Preliminary Findings of Fact

The Agreed Statement of Facts

6The ASF included admissions as to jurisdiction, identity and continuity of the drugs and the Firearm seized during the search. In addition, the following facts are admitted by Mr. Broderick:

Location	Substance (quantity)	Exhibit Number	Tested As/ Certificate Number
On Mr. Broderick upon arrest	Purple fentanyl in clear plastic baggie (6.79 g)	ON0067071	Fentanyl and heroin with acetaminophen, and non-controlled substances dimethyl sulphone, caffeine and diphenhydramine 18 34375 T
Dresser in bedroom	Fentanyl (18.35 g)	ON0067072 – 1.71 g P6562539 – 16.64 g	Fentanyl with acetaminophen, and non-controlled substances dimethyl sulphone, caffeine and orphenadrine 18 34376 T
Dresser in bedroom	Fentanyl (3.48 g)	ON0067073	Fentanyl with non-controlled substances dimethyl sulphone and caffeine 18 34377 T
Dresser in bedroom	Methamphetamine (2.45 g)	ON0067074	Methamphetamine 18 34333 T
Dresser in bedroom	Oxycontin1 (2 pills/1.15 g)	ON0067075	Oxycodone and acetaminophen 18 34263 T
Bedroom in Louis Vuitton satchel in shopping cart under clothing	Glock 17 KT054 with magazine	P441029

1. Nature of the substances located – The nature of the substances seized are included in the exhibit chart above (see 4).

2. Nature of the firearm – The Glock Model 17, .40 calibre centre fire semi-auto handgun located at 2721 – 200 Wellesley Street East on January 29, 2019, is a restricted firearm as defined in Section 84 of the Criminal Code. The firearm functioned correctly as a semi-auto handgun. It is a barrelled weapon from which any shot, bullet or other projectile can be discharged that is capable of causing serious bodily injury or death to a person as per section 2 of the Criminal Code.²

3. Knowledge of licence or authorization to possess a firearm – On January 29, 2019, Jason Broderick (date of birth March 18, 1982) knew that he did not possess a valid firearms acquisition certificate or licence, nor did he have a firearms registration certificate.

4. Photographs – The police took photographs of the items located inside 2721 – 200 Wellesley Street East and at the police division. The authenticity of these photographs is admitted.

5. Weapons prohibition – Jason Broderick was prohibited from possessing a firearm by reason of an order made under s. 110 of the Criminal Code.

6. Probation order – Jason Broderick was bound by a probation order made by the Ontario Court of Justice, 444 Yonge Street, Toronto, Ontario, on April 4, 2018, which included a condition namely “do not possess any weapon(s) as defined by the Criminal Code”.

The Surveillance Evidence

7Officer Sotelo’s evidence of observations that he made outside the Apartment on January 28 and 29, 2019 was unchallenged. He testified that from a nearby stairwell he made the following observations on January 28^th between 6:35 p.m. and about 7:10 p.m. and again between 10:10 p.m. and 11:17 p.m.:

a) at 6:57 p.m. a woman was let into the Apartment by an unknown person after several knocks on the door and she left the Apartment 10 minutes later;

b) at 10:34 p.m. a man was let into the Apartment by an unknown person, after knocking on the door and he left the Apartment three minutes later;

c) five minutes later, at 10:42 p.m., a woman was let into the Apartment by an unknown person after knocking on the door and she left the Apartment eight minutes later;

d) at 11:02 p.m. a man and a woman were observed knocking on the door of the Apartment. Officer Sotelo testified that he saw a man, whom he believed was Mr. Broderick, and who is admitted to have been Mr. Broderick, peak out from the door and look down the hallway and he then let the man and the woman into the Apartment. They left the Apartment 15 minutes later, at 11:17 p.m.;

e) on January 29, 2019 at 9:55 p.m. Officer Sotelo did a walk by the Apartment and he heard music coming from the Apartment;

f) at 10:21 p.m. Mr. Broderick exited the Apartment and locked the door with a key. At 10:26 p.m. a female was walking up and down the hallway outside the Apartment. Mr. Broderick exited the elevator, unlocked the door with a key and he and the female entered the Apartment together. This female was later identified as Daranyi Magtolna;

g) the search of the Apartment began at 11:24 p.m.

8Officer Sotelo described in general terms each of the men and women he observed who were let into the Apartment. Based on that evidence it appears that they were all different individuals.

The Evidence of the Search

9The Apartment has a bathroom and kitchen on either side of the hallway as you enter the Apartment. The hallway leads to a bedroom on the left, Mr. Broderick’s bedroom; and the living room area on the right. The various items that were seized were found in either the living room or the bedroom save for the fentanyl that was found on Mr. Broderick.

10Officer Gerry was the first officer into the Apartment, and he testified that he immediately observed Mr. Broderick standing in the hallway about 10 feet away. He detained and searched Mr. Broderick, incident to his detention. When Officer Gerry found a small zip lock clear plastic bag containing what appeared to be purple fentanyl/heroin in the rough shape of cubes in Mr. Broderick’s front pants pocket, he placed him under arrest for possession for the purpose of trafficking.

11Officer Sotelo located a woman who was sitting on the coach in the living room; the woman who had entered the apartment about an hour earlier. He detained and then arrested her. She advised Officer Sotelo that she was Taylor Gilbert but at the station she was identified as Daranyi Magtolna. A cell phone lying on the couch within reach of this woman was seized. I did not hear any evidence about this, or any other cell phone found in the Apartment.

12After arresting Mr. Broderick, Officer Gerry searched the bedroom along with Officer Shaw. He testified about a four-foot-high pile of men’s clothing that he found on the right side of the bedroom, against the wall. A lot of this clothing was new and still had the tags on it. Officer Gerry took some time searching this pile of clothing, examining each item, including any pockets. About halfway down this pile of clothing, Officer Gerry found a brown Louis Vuitton satchel (“Satchel”) at the top of a wire shopping basket/cart and inside the Satchel he found the Firearm. There does not appear to have been anything else in the Satchel. During cross-examination Officer Gerry admitted that he was not expecting to find a firearm and that at first sight he could not see the wire basket/cart or the Satchel. There is no dispute that the Satchel was not in plain view.

13Officer Shaw was the last officer to enter the Apartment and by the time he entered, both Mr. Broderick and Ms. Magtolna had been detained. He searched the dresser area in the bedroom, which had a lot of items on it. He testified that a silver and blue scale, which he determined was functional, and clear zip lock bag of small baggies on top of the dresser caught his attention. Officer Shaw also found a closed metallic silver eyeglasses case (the “Case”), which contained the fentanyl, methamphetamine and Oxycontin pills as set out in the ASF. Both of the bags of fentanyl were clear plastic and knotted at the top. The larger one contained purple chunks of fentanyl in the rough shape of cubes and the other contained grey uneven pieces of fentanyl. The two Oxycontin pills and the methamphetamine were in small clear zip lock baggies. In addition, he testified that a capped needle and small metal mixing bowls were found in this Case. Officer Shaw also took photographs of three pieces of mail, all addressed to Mr. Broderick at the address of the Apartment, that he found in the top drawer of the dresser, which of course confirms this was Mr. Broderick’s Apartment.

14Officer Jaksa searched the living room and kitchen. In the living room he located a scale in what he called a “Tupperware like” container with a “somewhat frosted” clear lid, on the top shelf of the bookcase behind the couch. He admitted that this scale was not in plain view and that the lid had to be removed to see it. In addition, he found two small scales and numerous small zip lock baggies in another Tupperware container of a similar description on top of a coffee table/ottoman in front of the couch. Given the description of the container I accept that the contents would not be visible but of course the container would be. Officer Jaksa did not determine if any of these three scales were functional. He testified that the Apartment was difficult to search as it was very cluttered and that a lot of items were on top of the ottoman.

15A fifth scale was in plain view on top of the ottoman, based on photographs taken before the search and it was seized by one of the officers, but I have no evidence it was functional.

The Evidence of the Drug Expert

16Detective Richard Duffus was tendered by the Crown to give expert opinion evidence on the street level distribution and sale of fentanyl, heroin and methamphetamine including the “chain and distribution, prices, quality, methods of use, strength, character, quantity, and packing of these drugs when sold, and practices, habits, and the modus operandi of the fentanyl, heroin and methamphetamine drug culture”. Mr. DiCecca conceded Detective Duffus as an expert as tendered and Ms. Webb presumed that I would simply accept him on that basis. As ultimately the decision as to whether a proposed witness is an expert and can give opinion evidence is a decision of the court, I asked that Detective Duffus’ qualifications be reviewed. Those qualifications are also important to the weight to be given to the evidence.

17Detective Duffus testified that he has been with the Toronto Police Service for 30 years, and that most of his experience has been with the Drug Squad. He has been involved in numerous drug investigations including undercover operations involving illicit drugs including fentanyl and heroin. He has also taken numerous drug training courses. He has been qualified to give expert opinion evidence on numerous occasions including with respect to fentanyl, heroin and methamphetamine. After hearing this evidence of Detective Duffus’ education, training and in particular his lengthy experience investigating drug offences, I accepted him as an expert to give opinion evidence on the topics identified by Ms. Webb. Mr. DiCecca did not suggest that the fact Detective Duffus is a police officer is of concern or that he was not fair and balanced in expressing his opinion. I agree. Although no objection was made to any of the evidence given by Detective Duffus, I have not relied on some aspects of his opinions, that have not impacted on my decision, for the reasons I will come to.

(i) Fentanyl

18Detective Duffus testified that in his experience a typical hit of fentanyl is .1 gram and that over the course of a day, an average user uses under a half gram. In his opinion, over the course of a day, a heavy user or addict would use just over a gram. Detective Duffus was asked how much fentanyl a user might have in his/her possession at any one time and he said that a user would typically have one package of a small amount and not more because of a fear of being caught by police or being robbed of a large amount. This evidence has some relevance to my assessment of the evidence of T.F., which I will come to, but if these were Mr. Broderick’s drugs, they were in his Apartment and so he would not have necessarily been afraid of being caught by police. In cross-examination Detective Duffus testified that in his opinion a little under a quarter ounce of fentanyl would last an average user a month and a heavy user two weeks.

19Detective Duffus testified that although smoking is the preferable way to use fentanyl, a user might have pipes. In addition, fentanyl is heated up on foil and the user breathes in the vapour/smoke. He said that fentanyl can also be injected if it is broken down.

20In terms of pricing in 2019, Detective Duffus testified that .1 of a gram would cost $20, .5 of a gram would cost $40 to $60, a gram would cost $80 to $110, one quarter ounce would be worth $350 to $425 if sold in bulk and $1,340 if sold in points, and an ounce (28.35 grams) would sell for between $1,400 and $1,700.

21Detective Duffus testified that fentanyl is typically sold at the point level i.e. .1 gram up to the ounce level. Street level traffickers will typically have under an ounce in their possession – usually a quarter or half ounce. In cross-examination he testified that it would typically be a quarter ounce and that a half ounce would be exceptional, but he admitted that a user could buy a quarter ounce from a street level dealer and that buying in bulk is cheaper. The savings would be roughly $1,000 because by the point the cost would be $1,300 versus a bulk purchase at $300 plus. I note these numbers are somewhat different than his evidence in chief, but the end result is about the same; a savings of about $1,000 if a quarter ounce is purchased in bulk. On the street Detective Duffus testified that fentanyl is sold in dime-sized zip lock bags, torn plastic or wrapped in paper.

(ii) Fentanyl/Heroin

22The amount of fentanyl/heroin in Mr. Broderick’s pants pocket of 6.79 grams equates to .24 of an ounce. Detective Duffus was asked about the fact that in this case there was fentanyl and heroin together. He testified that purple fentanyl is commonly mixed with heroin and that a user might ask for fentanyl and get a mixture of fentanyl and heroin. As for the opinion evidence I have summarized with respect to straight fentanyl, Detective Duffus testified that his opinion about a combination of fentanyl and heroin is the same except that in 2019, heroin was a little more expensive than fentanyl. The price of .1 gram was $20 to $40, a half gram was $100 to $140, a gram was $180 to $220 and an ounce was $2,800 to $3,200. I assume this was for just heroin and that a combination of fentanyl/heroin would be somewhat less.

(iii) Methamphetamine

23Detective Duffus testified that methamphetamine is typically smoked and sold by the point of a gram up to an ounce. In his opinion, an average user would use less than one gram in one day because the highs last a lot longer than fentanyl. In his opinion, an average user might possess under a gram at any one time. A heavy user might use over one gram a day and might have three grams in his/her possession but would not use that amount all in one day.

24In terms of pricing in 2019, .1 of a gram of methamphetamine would sell for between $10 to $15, 1 gram for $80 to $110 and one ounce for $800 to $1,200.

(iv) Hypothetical Questions

25Detective Duffus was asked various hypothetical questions based on the admitted facts of this case. He testified that in his opinion an individual found in possession of a quarter ounce of a combination of fentanyl/heroin in his pants pocket would be a low to mid-level street level dealer and that possession of this quantity of fentanyl is not consistent with personal use. In his opinion, even 60 to 70 points of fentanyl is quite excessive to have in one’s possession at one time and the maximum an end user would have is two grams of fentanyl. In his opinion, possession of 6.79 grams is also consistent with a user trafficker. When he was shown a picture of the fentanyl/heroin found in Mr. Broderick’s pocket, Detective Duffus testified that it was consistent with his experience with fentanyl. It allows for easy distribution since it is broken down into multiple pieces of different weights. In cross-examination Detective Duffus remained firm in his opinion that based only on the assumption that a person found in possession of close to a quarter ounce of a combination of fentanyl/heroin, that that person had that drug in his possession for the purpose of trafficking although he did admit that this quantity of fentanyl could be purchased from a street level dealer.

26When asked to add the other drugs in the Case, Detective Duffus, not surprisingly, testified that this strengthened his opinion. With respect to the two bags of fentanyl found in the Case, Detective Duffus testified that if the total of 21.83 grams (18.35 + 3.48) was sold in bulk it would sell for between $1,078 and $1,309. If sold in points, 218 points would be worth up to $4,360. Given this price differential, Detective Duffus testified that a trafficker would prefer to sell drugs by the point to make more money. In cross-examination however, he agreed that depends on the relationship but that selling in bulk to a user in this quantity was not something he has seen. In his experience the only people buying in bulk are addict traffickers - users do not buy in bulk. This was an aspect of Detective Duffus’ opinion that I did not rely upon as if I accepted it and found that the fentanyl in the Case belonged to Mr. Broderick, it would result in a finding that Mr. Broderick must have purchased this fentanyl for trafficking which is the ultimate issue I must determine.

27With respect to the fact that one needle was found with these drugs, Detective Duffus testified that it was possible that this would be in the possession of a user although it is not uncommon for a dealer to give needles to customers. In this case however, there is only one needle and Detective Duffus implied that if the needles were being given to customers there would be more than one. Based on the assumption that someone was found in possession of the drugs found in the Case, Detective Duffus opined that given the variety of drugs and packaging that this was consistent with possession for the purpose of trafficking.

28Detective Duffus was asked about the addition of the Firearm to the mix. Not surprisingly, he testified that in his experience firearms are used by traffickers because trafficking is a very dangerous business. A firearm can be used for intimidation or protection, given the chance of being robbed. Accordingly, the presence of a firearm would strengthen his opinion that the person who had it was a drug trafficker. As for the Satchel, Detective Duffus testified that it was notorious for traffickers to buy high-end items like this high-end bag and clothing. I did not rely on this aspect of Detective Duffus’ opinion as both men and women buy high-end items – this is not specific to the drug trade.

29Detective Duffus also testified that traffickers use scales to assist in the trade. Users in his experience do not carry scales. He stated that traffickers will have multiple scales although he did not say why they would need more than one. Similarly, clear plastic baggies are also tools used by drug traffickers to assist in the distribution of their product and in his opinion, users do not possess baggies like this. The presence of scales and baggies in someone’s possession would strengthen his opinion that the person was trafficking in drugs.

30Detective Duffus was asked to compare photos of the purple fentanyl/heroin found in Mr. Broderick’s possession and the purple fentanyl found in the Case. He testified that the fact one quantity of fentanyl also had heroin does not change his opinion and that based on the colour both drugs had fentanyl and that what they were held out to buyers would be what they were cut with. He testified that the same supplier could supply both types of fentanyl. In cross-examination he admitted that it is possible that they came from different suppliers but added that based on the colour and consistency it appears they came from the same supplier.

31Finally, with respect to the methamphetamine found in the Case, Detective Duffus testified that this quantity could be consistent with personal use.

32Detective Duffus testified that cash is used for trafficking drugs. There will be times when a trafficker will have large amount of cash and less drugs or more drugs and less cash. It depends on where they are in their distribution cycle. As for the fact that no cash was seized, Detective Duffus testified that this did not change his opinion – it could simply mean that the trafficker had not made any sales that day.

33Detective Duffus testified that in his experience, cell phones are the preferred method of communication between buyers and sellers of drugs and that it is common for street level dealers to have one. He was asked if his opinion would change if no cell phones were found connected to Mr. Broderick and Detective Duffus said it would not, given the other indicia of trafficking.

The Evidence of T.F.

34T.F.’s evidence took about one day, and her cross-examination was lengthy given the significance of her testimony. She is almost 34 and testified that she has known Mr. Broderick for eight to 10 years. She knew him when she was part of the drug culture in downtown Toronto. Initially she would just pass by him on the street and say hi and then they became friends and then they started to “hang out”. Although she clearly called Mr. Broderick a friend when she was first asked about her relationship, and at times later in her evidence, when she realized she said this, she insisted that he was not really her friend, that she did not have any friends from that time, that he was just someone she knew when she came downtown to use drugs and that they started “using together”. She did know where Mr. Broderick lived, and she testified that she had been to his Apartment quite a few times – as much as two times every other week over the past eight years. She testified that she had fallen asleep in his Apartment lots of times before and when she awoke, she never found that anything, including any of her drugs, was missing and so she trusted Mr. Broderick and did not think he would rob her even though he too was addicted to fentanyl. She denied that Mr. Broderick ever gave her drugs.

35Mr. Gilman reviewed T.F.’s background with respect to the use of drugs in detail and suffice it to say that she has used all manner of drugs, beginning when she was 18 although she did have periods when she was clean. Her drug use resulted in a criminal record of convictions in 2013-2014 for two sets of charges: assaulting a police officer, assault, failing to comply with recognizance, and theft and then trafficking in a Schedule I substance which she said was crack cocaine. At the time of giving evidence T.F. testified that she had been clean for just over a year and that she was taking the “12 Step” program to help with her recovery and it was going well.

36T.F. testified that in January 2019 she was living in Scarborough with her son and her mother and had been for some period of time - at least since 2018. At the beginning of 2019 T.F. admitted that she was struggling with her use of fentanyl and crystal meth. Although T.F. testified she came downtown to use drugs, she did say that in 2018 when she was starting to use fentanyl and crystal meth again after a period of being clean, that she would either come downtown to buy and use these drugs or she would buy them downtown “and leave”, which I presume meant that she might consume them at home although this was not clear. She did, however, say that she hid her drug use from her mother.

37T.F. was working reluctantly in the sex trade to pay for her drug habit as her only other source of income was payments from the Ontario Disability Support Program of about $1,500 per month. After paying her mother rent, she was left with about $1,000 a month to support herself and her son. She also testified that she would sometimes buy drugs with other users to get a better price. She denied ever being a drug dealer. When asked how many clients she had during the month of January 2019 she refused to pick a number and would only say it was at least three. T.F. testified that the amount of money she received depended and ranged from $80 to as much as $500.

38In the period before January 2019 T.F. testified that she could not say how much fentanyl she was using – possibly one to two points per day but she “really didn’t know”. She did agree it would have been less than a gram per day. However, she testified that she would buy as much as she could depending on how much money she had from the sex trade to get “more bang for a buck”.

39T.F. testified that the drugs in the Case and the Firearm belonged to her and that Mr. Broderick did not know she had “stashed” them in his bedroom in the Apartment. She said that the Firearm was given to her by her “ex” in December 2018 so that she could use it for protection. She described it as a Glock 9 black gun with no bullets in it – she said she had no experience with guns. T.F. also gave a detailed explanation for how she came into possession of the drugs and why she left the Case and the Firearm at Mr. Broderick’s Apartment, which I will come to, but before she gave that evidence she testified that the Case was a silver Channel glasses case and that she had two quantities of fentanyl, some crystal meth, two Percocet pills and a needle inside the Case. Later in her evidence T.F. testified that she was a “needle user,” in other words she used fentanyl with a needle. After describing the Firearm, the Case and its contents, T.F. was shown pictures of these items and confirmed that she recognized these items and that they belonged to her.

40With respect to the Firearm, T.F. testified that her ex did not show her how to use it and there was no discussion of ammunition. T.F. knew it had no bullets and her intention was to use it to hit someone or scare them if she needed to, although she was not walking the street and would go to hotels for her sex trade work. She had never had a gun before although she might have had a knife and she did have pepper spray which she had used before. She had had things happen to her before while with clients, but once she had the Firearm, she never had to pull it out. T.F. did admit that when her ex gave her the Firearm, she felt like he just wanted her to hold it for him although he gave the reason as wanting to protect her. Although she was not a gun person and did not like guns, she did not see the harm – only the benefit of having it. T.F. did admit that she should have seen this as a problem as this ex had given her a bike before and she was charged, presumably with theft, when she went to sell it, but she testified that when she was on drugs something that should be a red light would seem like a green light.

41T.F. testified that she never took the Firearm to her home and so she would leave it at a female friend’s house when she went home, or she was downtown but did not need it. She described hiding the Firearm in the front hall closet of a friend/acquaintance who she said was a hoarder and testified that she left it at other places too, but the person in question never knew that she did this. She would get the Firearm if she was downtown and going to a client that she did not know. Although she was afraid of the police stopping her, searching her and finding that she had the Firearm, she said that she would rather go to jail than be raped.

42T.F. testified that sometimes she kept the Firearm in a Louis Vuitton dark brown purse with beige checks that she bought at the beginning of January 2019 for $100 – she thought it could cost as much as $1,000 if new. I expect it was a copy, but based on the description and her subsequent identification of a photograph of the Satchel, she was clearly referring to the Satchel. T.F. testified that she was using it like a purse and at the beginning had all of her stuff in it. She said that she had another smaller purse as well and that she brought “something” with her when she came downtown and so she did not always have the Firearm in the Satchel. T.F. testified that she did not always even keep the Firearm in the Satchel or another bag when she hid it at another place, but she would hide it in a place where she did not expect it to be found. She did not want anyone to find the Firearm for fear they would trade it for drugs or sell it.

43T.F. testified that she came downtown the same day that she went to Mr. Broderick’s Apartment which based on the date of the search must have been January 28, 2019. She was not sure of the day and it is clear from her evidence that the only reason she was even able to approximate it was that she received a subpoena from Mr. DiCecca referencing the fact Mr. Broderick was facing charges arising from January 29, 2019. Based on all of the evidence I find that if I accept T.F.’s evidence, that she would have arrived downtown on January 28^th.

44T.F. testified that she stopped first at her friend’s house to pick up the Firearm. She then purchased the purple fentanyl, the crystal meth and the two Percocet pills from a dealer named Spanky. T.F. testified that she asked for a half ounce, which would be 14.18 grams and that she got “just over” that amount. T.F. testified that she did not recall what she paid for the fentanyl but said it was not more than $1,000. She did not weigh the drugs when she purchased them but did so at a friend’s place later. She remembered that the fentanyl weighed around 17.8 grams (it in fact weighed 18.35 grams at the time it was seized) and she admitted that she received more than she ordered. When Mr. Gilman put to her that Spanky was “pretty generous” she said that he was “not that generous”.

45T.F. testified that later that same day she purchased a “Ball” of fentanyl from a dealer named Joe. She testified that a Ball should weigh three and a half grams. She denied that on the street if you asked for a ball you might get as little as two to two- and one-half grams but did say it could be two and one half to three grams. She did not believe that Joe gave her any extra beyond what she asked for. When T.F. was asked why, given the quantity of fentanyl she had already purchased from Spanky, she testified that Joe’s was apparently good and so “why not?” and that the “more the merrier”. She admitted that as a result of these two purchases that she had more than one month’s supply of fentanyl but said that she always wanted more and that was “just how it is” and that she never knew if a girlfriend might call her, implying that she might sell some to a friend. She added that no drug addict would turn down extra grams.

46In general terms T.F. testified that a “Cuban” is seven grams and that she had purchased more fentanyl than that in the past, possibly with a girlfriend. She did admit that she had never bought more than an ounce or 20 grams of fentanyl. She bought her drugs from different people and had up to three different suppliers – she was not very loyal.

47In chief T.F. testified that she left Mr. Broderick’s Apartment in the morning at some point between 10:00 and 11:00 a.m. and then in cross-examination she said it was late morning around noon. She was consistent on the fact that she was at Mr. Broderick’s apartment for about 24 hours and given my finding that she came downtown and went to Mr. Broderick’s Apartment on January 28^th, she would have arrived at the Apartment late morning on January 28^th and left late morning on the 29^th. T.F. testified that when she got to Mr. Broderick’s Apartment, she got high first. She said that her appointment with her client on the 29^th was at 1 to 1:30 p.m. and she wanted to get something to eat first, so assuming that appointment time is correct it makes sense that she left his Apartment late morning.

48T.F. testified that she knew that the drugs in the Case and the Firearm were illegal. Nothing went through her mind as to why she left the Case and Firearm behind in the Apartment except that she did not need them. T.F. said that she put the Firearm in her purse – a reference to the Satchel and that she stashed it just inside the bedroom, in a metal shopping buggy in “millions of clothes” and a lot still had tags on them. She thought this was a good place as there were clothes everywhere. She did not hide it under the bed as someone could look there.

49T.F. testified that she did not tell Mr. Broderick that she left the Firearm in his bedroom. She said that he usually did not let people into his bedroom although she also testified that when other men and women came to visit him, they did not like her and so she would be in his bedroom when others came and that she could hang out anywhere in the Apartment. I note that at this point in her evidence T.F. also testified that she did not know if Mr. Broderick was seeing anyone, but later in her evidence she testified that a woman named Jasmine was Mr. Broderick’s girlfriend and she was at the Apartment for at least one hour – she denied it was only eight to 10 minutes. T.F. said that maybe someone else was there too, another female, but she did not know her name. She was not asked how long the other woman was there. She denied knowing others were at the Apartment while she was there – essentially denying knowledge of the three women and two men that Officer Sotelo observed going into the Apartment for anywhere from three to fifteen minutes when she would have been in the Apartment.

50T.F. testified that she knew Jasmine and this other woman to be drug users but denied that they came to the Apartment to buy drugs. She said that she assumed that they probably came to the Apartment to use drugs that they had brought with them, but she did not know because she did not hang out with them because she does not like “people” and “people” do not like her and in particular she did not like Jasmine. T.F. testified that while they were there she was in the bedroom or the bathroom. T.F. was not asked if she knew Mr. Broderick as someone who sold drugs.

51T.F. testified that she hid the Firearm first and that when she did Mr. Broderick was home. In chief T.F. testified that she thought he might have been in the shower, but in cross-examination she testified that she never said he was in the shower and only knew he was not in the bedroom when she hid the Firearm. She said it was very quick to hide it and Mr. Broderick did not know she had done so. She was also concerned that he would tell her that she could not leave it there. T.F. also testified that she was probably on the “nod,” going unconscious and that she probably woke up abruptly and realized she had to go. She did not know where she was at this point save that it was not the kitchen. She thought that maybe she was in Mr. Broderick’s bedroom putting makeup on, getting ready to leave. She then took a little of both the fentanyl and the crystal meth to take with her when she left in case she needed it. She did not say how much or from which supply of fentanyl.

52T.F. was cross-examined about why she left $1,000 worth of drugs that could be sold on the street for $4,000 lying on the dresser in Mr. Broderick’s bedroom. T.F. answered that sometimes the most obvious place was the best and that there was a lot of other stuff on top of the dresser. She added that she was going to be back in an hour, but on her own evidence she left at least an hour or more before she was even going to meet her client. T.F. testified that even if Mr. Broderick found her drugs, he probably would call her to ask if he could use some, or if he just used some it would not be that much. She said that she trusted Mr. Broderick per se but admitted that you should never trust an addict and she knew he was addicted to fentanyl. When pressed about the fact that Mr. Broderick did have people come to his Apartment to use drugs, suggesting they could steal the drugs in the Case, T.F. testified that she had been “messed up” and “jacked up” by the police, stating that they had robbed her of drugs and then let her go.

53In her evidence in chief T.F. testified that when she left Mr. Broderick’s Apartment, she went to see a client who was a “friend” and that she left the Firearm and the Case behind but ended up staying a little longer. In cross-examination she said this person was someone she had known since she was 18 and that she knew she would be safe with him, so she did not bring the Firearm. When asked why she did not have the Satchel with the Firearm with her she said that she did not know. She believed that she would be back to Mr. Broderick’s place shortly afterwards to shower and get high but testified that she and her client went to a hotel and she fell asleep and when she woke up it was still dark – she could not remember what time it was but stayed in the hotel until somewhere between 4:00 to 6:00 a.m.. T.F. testified that she then went straight to Mr. Broderick’s Apartment although she did not think that she arrived until 9:00 a.m. T.F. did not have a key to Mr. Broderick’s Apartment. She testified that if when she returned Mr. Broderick was not home that she would have called him and told him that she needed to meet him, suggesting that he had a cell phone and she had his number, but this was not followed up on.

54T.F. testified that when she returned to the Apartment the next day, which would have been January 30^th, it looked like the door had been broken into and she got nervous and left. She went to a friend who lived in the same building. In chief she testified that she went back to the Apartment within 24 hours thereafter and found that her drugs and the Firearm were gone. In cross-examination T.F. testified that the evening before that day she found out that the police had been to the Apartment and she had more courage to go back. She found the door to the Apartment open and saw that the whole Apartment was upside down. By this time, she needed to get some drugs and get high. Initially she felt bad for herself, but she said that probably after she got high, she realized what she had done and that she had “fucked up” her friend assuming Mr. Broderick was going to be charged unless the police had robbed him. T.F. testified that she called Mr. Broderick’s girlfriend who told her he was in jail and what he was charged with. She did not tell her that the drugs in the Case and the Firearm were hers.

55As for her reason for coming forward, and making these admissions, T.F. testified that as part of the 12-Step program she has to make a list of all of the people she has hurt directly or indirectly because of her drug use and then ask for forgiveness from each of them and from God. She said that is why she was at the trial and that it was the “right thing to do”. She had always wanted to do this but did not know how to or what the repercussions to her would be. T.F. testified that the first person she told was her sponsor of the 12-Step program in mid-April 2019. She said that she also told her sponsor that she was afraid of the repercussions. T.F. testified that her sponsor told her to have the courage to come forward and that she had to make amends, but she did not tell her to make amends.

56T.F. testified that she did decide to try to stay clean after this happened but that she did not do anything about Mr. Broderick until June or July 2020. She messaged Mr. Broderick’s girlfriend, Jessica, and asked for his lawyer’s name and found out that Mr. Broderick was at the Toronto South. T.F. testified that she had not spoken to Mr. Broderick since she left his Apartment, although she did send him a money order for $200 in June or July because she “felt bad” and this made her feel a little better. She thought that Mr. Broderick had been in jail for almost two years and she felt bad.

57By this summer T.F. had started a list of the people she needed to make amends to. She wrote to Mr. Broderick’s lawyer, I understand Mr. DiCecca, asking how she could make amends. He then emailed her and told her that he would have one of his colleagues contact her to take a statement on Zoom. She testified that Mr. DiCecca told her that he was not her lawyer and she did not give a statement to his colleague. She did not find out about this trial until she received a subpoena from Mr. DiCecca. Before that T.F. testified that she did not realize that she would be a witness as she had not spoken to anyone. She also testified that she did not see anything about the case, including all of the photos of the items found in the Apartment, until she came to court to testify.

Analysis

Was the fentanyl/heroin found in Mr. Broderick’s pocket in his possession for the purpose of trafficking?

58Given the admission from Mr. Broderick, that the 6.79 grams of fentanyl/heroin in his pocket was his, he had that quantity in his possession for the purpose of trafficking. On this issue, the thrust of Ms. Webb’s position is that the only reasonable inference to be drawn from the evidence of the near quarter ounce of fentanyl/heroin found in Mr. Broderick’s actual possession, given the quantity of the drug, the surveillance evidence and the indicia of trafficking, namely multiple scales and baggies, is that Mr. Broderick was in possession of that package of fentanyl/heroin for the purpose of trafficking. Mr. DiCecca argued to the contrary but was not able to explain on the evidence why Mr. Broderick would be in possession of multiple baggies.

59As I have said, during my deliberations I realized that some aspects of the opinion evidence of Detective Duffus were inadmissible. Although Mr. DiCecca did not object, as the trial judge I had to consider this issue once I realized there was a question of admissibility. I did not see the need to have counsel return to address this issue given the factual conclusions I have come to without relying on those portions of the opinion of Detective Duffus that concerned me. In particular, while deliberating I reviewed earlier drug decisions of mine including R. v. Pico, 2016 ONSC 1470 and cases I referred to in that case, where objections were taken to the evidence of the expert. In Pico I reviewed cases such as R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, and two cases from our Court of Appeal that had considered Sekhon: R. v. Solleveld, 2014 ONCA 418, where the defendants were convicted of fraud; R. v. Singh, 2014 ONCA 791, where the defendant was convicted of possession of cocaine for the purpose of trafficking and R. v. Jacobs, 2014 ABCA 172, 312 C.C.C. (3d) 45.

60My concerns with the opinion evidence of Detective Duffus relate primarily to his evidence about the quantity of the drugs found in the Case, that I will come to, but I also considered the admissibility of his opinions about the consumption patterns of a casual or heavy user of fentanyl and what weight, if any, I should give them given the Jacobs decision. As I did in Pico, however, given Detective Duffus’ expertise, I concluded that the Jacobs decision is distinguishable, bearing in mind that I should not find Detective Duffus’ opinions conclusive on the ultimate issues.

61As I have stated, in cross-examination Detective Duffus remained firm in his opinion that based only on the assumption that a person was found in possession of close to a quarter ounce of a combination of fentanyl/heroin, that that person had that drug in his possession for the purpose of trafficking, although he did admit that this quantity of fentanyl could be purchased from a street level dealer in one purchase and that buying in bulk would be cheaper. His reason for why a user would not be buying this quantity in bulk might have applied at the time Mr. Broderick acquired this fentanyl/heroin, but I have no evidence as to when and how he obtained the drugs. Certainly, he was not found on the street walking around with this quantity of drugs and so he would not necessarily be concerned about being caught. For that reason, I do not find, on the basis of Detective Duffus’ opinion alone, that it would be impossible for a heavy addicted user of fentanyl to be in possession of almost a quarter ounce and not be a trafficker.

62I do not know very much about Mr. Broderick’s drug use at the time of his arrest, but based on the evidence of T.F., which the Crown elicited and did not challenge, he was addicted to at least fentanyl. I do not know if he was a heavy user or not, but he certainly could be. On the evidence of T.F., accepting for the moment the evidence she gave as to the quantity of drugs she purchased, one reasonable inference, in my view, based only on the quantity of the fentanyl/heroin in Mr. Broderick’s possession, is that it was in his possession for personal use and that he was not an addict trafficker. That said, I find that the Crown has proven beyond a reasonable doubt that this quantity of fentanyl/heroin was in Mr. Broderick’s possession for the purpose of trafficking. The additional evidence I have relied upon to come to this conclusion, beyond the quantity of the fentanyl Mr. Broderick was in possession of, is as follows:

a) Officer Sotelo’s evidence of observations that he made outside the Apartment on January 28, 2019 that two different women and one man each went into the Apartment for a very short period of time ranging from three to 10 minutes, was unchallenged. In my view this evidence is consistent with Mr. Broderick dealing in drugs to these people. I did not hear from Detective Duffus on this subject but in my view, I can apply common sense and conclude that for such short periods of time, these people did not enter the Apartment, use drugs they brought and leave. The whole point of going to another user’s place to use drugs would presumably be to hang out for some time as T.F. put it. Although she did not admit to anyone being in the Apartment for such a short period of time, her reaction to the suggestion that Jasmine was in the Apartment for such a short period of time and her response that she was there for at least an hour supports this conclusion. I make no comment about the couple who went in for 15 minutes as for them using drugs they brought to the Apartment could be plausible;

b) Although the officers only tested one of the scales in the Apartment, the fact is that a scale was found on top of the dresser out in the open next to numerous clear plastic small zip lock baggies. Three scales were found along with baggies in two plastic containers in the living room and although I have no evidence as to whether they were working or not, the fact that two of them were in a single container with numerous baggies is very significant. In addition, there was a fifth scale in the open on the ottoman. There is no evidence of scales found in the kitchen where one might reasonably find a scale for cooking and baking and it is reasonable to infer that had there been they too would have been seized;

c) Finally, even Mr. DiCecca could not come up with an answer to my question during closing submissions as to why Mr. Broderick would have such a large number of small clear plastic zip lock baggies consistent with packaging drugs in his Apartment. He did not challenge Detective Duffus’ opinion that users would not possess a large number of baggies and I can think of no reason why they would if they were not addict traffickers. Anything a user might reasonably possess would be a baggie or two that drugs he/she purchased were sold in, but there would be no reason to keep those baggies and certainly not in the numbers Mr. Broderick had. In any event the baggies in his Apartment looked new, not used.

63I have considered the fact that there is no evidence before me that Mr. Broderick was in possession of a cell phone, which is common among drug traffickers who sometimes even have more than one cell phone. However, the evidence of T.F. suggested that she knew how to call Mr. Broderick had he not been home when she returned to the Apartment and that evidence was not challenged. In any event, it seems that if potential buyers were coming to Mr. Broderick’s Apartment to buy drugs, the absence of evidence of a cell phone does not change my view – it is a neutral factor. I have also considered the lack of cash found on Mr. Broderick or in the Apartment that could be proceeds of crime but as Detective Duffus said, that could simply mean that there had been no sales of drugs on the day of the search. The surveillance that day was limited but no short-time visitors to the Apartment were observed by Officer Sotelo the day of the search. Mr. Broderick could have given all of his money to whomever he purchased the drugs from. In my view the lack of cash is a neutral factor.

64For these reasons, despite the lack of evidence of a cell phone and proceeds of crime, given the quantity of the fentanyl/heroin, the surveillance evidence I have referred to and the numerous scales and baggies belonging to Mr. Broderick that were in his Apartment, I find that the only reasonable inference from this evidence is that the Crown has proven beyond a reasonable doubt that Mr. Broderick was in the possession of the fentanyl/heroin found in his pants pocket for the purpose of trafficking from his Apartment.

Was Mr. Broderick in possession of the other drugs and the Firearm found in the Apartment; namely did they belong to him?

65The first issue is whether Mr. Broderick was in possession of the other drugs found in the in the Case and the Firearm in the Apartment? Possession is defined in s. 4(3) of the Criminal Code and for the purpose of this aspect of the case as requiring proof of knowledge, consent and some measure of control over the drugs in the Case and the Firearm. There was no suggestion by the Crown that if T.F.’s evidence is true that Mr. Broderick was aware of the fact that she hid the Firearm and left the Case on the dresser in his bedroom. Her evidence that Mr. Broderick did not know about these items in his bedroom was not challenged. Rather the submissions of counsel turned on the reliability and credibility of the evidence of T.F. and whether or not the Case and the Firearm belonged to her.

66This question requires a consideration of the evidence of T.F.. I advised counsel that in my view even though Mr. Broderick did not testify, the principles from R. v. W.(D.) 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742apply to the evidence of T.F. because if her evidence is true then it is a complete defence to Counts 2-5 in the indictment. The Crown did not agree although Ms. Webb did submit that I need to be satisfied on all of the evidence that the Crown has proven its case beyond a reasonable doubt, which is of course trite law. Although this is not a jury case and I am not bound by the strict formulaic structure set out in W.(D.), given the position of the Crown I think it is important to set out briefly the authority from the Supreme Court of Canada and the Ontario Court of Appeal that confirms that W.(D.) applies in this case.

67The only authority from the Supreme Court of Canada on this point is R. v. Haroun, in Justice Sopinka’s dissent at paras. 14-15. The majority in that case (adopting the reasons of Deschamps J.A., dissenting at the Quebec Court of Appeal) do not appear to contradict this point. In addition, the Ontario Court of Appeal has consistently held that W.(D.) applies where the defendant does not testify. In R. v. Smits, the court found that:

[t]here is now no doubt that in light of this court’s decision in R. v. D. (B.), 2011 ONCA 51 (Ont. C.A.), at para. 114, that, even if an accused does not testify or call any evidence, where there are credibility findings on a vital issue to be made between conflicting evidence arising out of evidence favourable to the defence in the Crown's case, the trial judge must relate the concept of reasonable doubt to those credibility findings. (37)

68The paragraph from D.(B.) referenced in Smits is as follows:

114What I take from a review of all of these authorities is that the principles underlying W.(D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep. Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown’s case, the trial judge must relate the concept of reasonable doubt to those credibility findings. The trial judge must do so in a way that makes it clear to the jurors that it is not necessary for them to believe the defence evidence on that vital issue; rather, it is sufficient if – viewed in the context of all of the evidence – the conflicting evidence leaves them in a state of reasonable doubt as to the accused’s guilt: Challice. In that event, they must acquit. [Emphasis added]

69The Court of Appeal came to the same conclusion in R. v. F.E.E., 2011 ONCA 783 at para. 104; R. v. Cyr, 2012 ONCA 919 at para. 50; and R. v. Fogah, 2018 ONCA 564 at paras. 49-56.

70Accordingly, if I believe the evidence of T.F., I must acquit Mr. Broderick of Counts 2-5. Even if I find her evidence unbelievable, as Ms. Webb urged, if I find that her evidence raises a reasonable doubt I must acquit. Even if I am not left in doubt by T.F.’s evidence, then I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of Mr. Broderick’s guilt on Counts 2-5.

71I begin then with an assessment of T.F.’s evidence. I found serious issues with the credibility of T.F. and the reliability of her evidence, many of which were argued by Ms. Webb. The reasons for concerns about the reliability of her evidence are obvious and stem from the fact that at the time of the relevant evidence that she gave, she was addicted to and using fentanyl and crystal meth and by her own admission was often high. That certainly meant that her evidence about dates and times was not reliable and explains why she did not remember certain details. It does not explain, however, why she did not recall certain important details but remembered others nor some part of her evidence that is simply incredible. I found the following evidence, in no particular order, to be significant in this regard:

a) T.F. clearly called Mr. Broderick a friend when she was first asked about her relationship, and at times later in her evidence, but whenever she realized this, she insisted that he was not really her friend, he was just an acquaintance;

b) despite T.F.’s insistence that Mr. Broderick never stole from her the many times before when she fell asleep in his Apartment, and despite her taking time to hide the Firearm in the Satchel underneath a stack of clothing, she left the Case with at least $1,000 worth of drugs that could be sold on the street for $4,000, lying on top of the dresser in Mr. Broderick’s bedroom. T.F.’s answer that sometimes the most obvious place was the best, was ridiculous given the value of the drugs and given Mr. Broderick was at least a user. Furthermore, the Case was a shiny silver colour that certainly could have caught Mr. Broderick’s attention or one of the people whom she admitted would come to the Apartment from time to time, especially Jasmine who she said was a user and was his girlfriend. Officer Shaw testified that the scale on the dresser and the baggies immediately caught his attention, but the Case was fairly close to these items. Furthermore, although T.F. said that she was going to be back in an hour, on her own evidence she left at least an hour or more before she was even going to meet her client and she ended up staying out for almost 24 hours. I also found T.F.’s evidence even if Mr. Broderick found her drugs, he probably would call her to ask if he could use some or if he just went ahead and used some it would not be that much, given her evidence that she believed he was a fentanyl addict to be incredible;

c) T.F.’s evidence that she took all these steps to hide the Firearm, that she had not paid money for but then made a conscious decision to just leave the drugs where she did, made no sense;

d) T.F. was very evasive on how much money she earned from the sex trade to buy drugs and how much she paid for the drugs in the Case which seems surprising given that she was able to remember what drugs she purchased and the quantities she asked for and other details. Given her admission that the drugs in the Case cost at least $1,000 that seems like a lot of money for a woman in her financial circumstances who previously would buy larger quantities of drugs by pooling cash with other drug users although I do not have enough evidence to find that she did not have the money to buy these drugs;

e) T.F. admitted that she had bought about a month’s supply of drugs and if those drugs were in fact hers, she would have had to bring most of the fentanyl to her home where she lived with her son and her mother as she was staying downtown for only a few days. Although she was inconsistent on whether she would bring drugs to her home, it is hard to believe that she would have brought such a large quantity home especially given the known dangers of fentanyl should anyone find it, that she was hiding the fact that she was using drugs from her mother and presumably her son and presumably because of the danger involved, she was clear that she would not bring the Firearm home. I should add that I did not find the evidence of T.F. that she would hide the Firearm at various friends to be totally incredible as submitted by Ms. Webb;

f) T.F.’s evidence as to her purchase of fentanyl from Spanky is incredible. As T.F. admitted, it is not uncommon to get less than the quantity of drug ordered and yet she would have us believe that she asked for and presumably paid for a half ounce, which would be 14.18 grams and yet Spanky gave her, for free, at least 18.35 grams and possibly more if she used some of this fentanyl to get high at Mr. Broderick’s house and/or if she took some with her to her client. She gave no evidence about Spanky to suggest he would want to give her any extra drugs for free and in fact she testified that she was not loyal to her dealers. This “gift” of at least an extra 4.17 grams, or .15 of an ounce, based on the unchallenged evidence of Detective Duffus, would cost a couple of hundred dollars even if sold in bulk and be worth $300 or more if sold by the point. T.F. realized this problem with her evidence when she refused to admit that Spanky was “pretty generous”;

g) T.F.’s evidence that she then decided to buy another three and a half grams of fentanyl, a Ball, also makes no sense given her financial circumstances and the additional cost, the quantity she already had purchased, that she was only going to stay downtown for a few days and yet had at least a month’s supply of fentanyl as a result. She had more than enough fentanyl from the drugs she bought from Spanky;

h) Ms. Webb submitted that T.F.’s evidence that she bought this large quantity of drugs and yet was only a user is at odds with the opinion evidence of Detective Duffus. However, as I have said, there were aspects of the opinion evidence of Detective Duffus that in my view were inadmissible for the reasons I have already given. On this issue his evidence in cross-examination that selling in bulk to a user in the quantity of fentanyl found in the Case was not something he had ever seen and that the only people buying in bulk are addict traffickers and that users do not buy in bulk was not admissible despite the fact there was no objection, because if I had accepted that finding it would have been the functional equivalent of saying that if the drugs in the Case belonged to Mr. Broderick, he must have had these drugs in his possession for the purpose of trafficking, which would have been the ultimate issue I would have had to decide if I do not find the evidence of T.F. true or to raise a reasonable doubt;

i) There were internal inconsistencies in T.F.’s evidence. I found the most significant was that initially she testified that she did not know if Mr. Broderick was seeing anyone and later, she said that his girlfriend Jasmine was in the Apartment while she was there for at least one hour. She was also inconsistent on whether or not Mr. Broderick was a friend;

j) T.F.’s lack of knowledge of the three women and two men that Officer Sotelo observed going into the Apartment for anywhere from three to 15 minutes is impossible to believe as the Apartment is not that big. She must have at least heard them come in even if she did not hang out with them;

k) T.F.’s evidence that she would spend time in Mr. Broderick’s bathroom or his bedroom where he did not let people in makes no sense and her evidence that she did so because she did not like people, and they did not like her is totally incredible.

72For these reasons I do not believe the evidence of T.F. that the Firearm and the Case with the drugs belonged to her. I must, however, consider if her evidence raises a reasonable doubt. I begin with the fact that Detective Duffus opined that although he believed the purple fentanyl in Mr. Broderick’s pocket came from the same source as the purple fentanyl in the Case, that it was also possible these drugs came from different suppliers. Mr. DiCecca pointed out the differences in how the fentanyl was made and the additives. In any event, even if the two packages of fentanyl came from the same supplier, that would not mean that that supplier was Mr. Broderick.

73Mr. DiCecca’s main argument on this question was that there is no way T.F. would have been able to describe the Firearm, the Case and the drugs and other items it contained and where these items were hidden in Mr. Broderick’s bedroom, so accurately, given that she did not see the disclosure, did not meet with Mr. DiCecca’s colleague to give a statement and did not even know that she would be a witness or that there was going to be at trial until she was subpoenaed. In response to this Ms. Webb submitted that T.F. could have obtained this information from Jasmine, Mr. Broderick’s girlfriend but that suggestion was never put to T.F. when she was cross-examined. In any event, it seems hard to believe that Jasmine would have been able to give T.F. all of these details unless Mr. Broderick was part of it and T.F.’s evidence that she has not had any contact with him since she left his Apartment back on January 29^th was not challenged. In fact, T.F.’s evidence that she had not seen the disclosure or the photos, had not met Defence counsel to give a statement and that she did not see anything about the Case until she came to court to testify was not challenged at all. All T.F. has testified that she knew was the charges Mr. Broderick was facing and the minimal information that would have been in the subpoena. As Mr. DiCecca submitted, how did T.F. know these details? The only explanation for how T.F. knew these details and was able to give accurate descriptions of the Firearm and drugs in the Case and where she stashed them, on the evidence before me is that her evidence that they belonged to her is true.

74I have also considered the fact that there is no evidence of any motive or reason at all for T.F. to come to court and give this evidence if it is not true. I did not hear her say she had come forward out of the goodness of her heart as Mr. Gilman suggested to her at one point, but in any event, T.F. seemed acutely aware of the fact that the evidence she was giving meant she was admitting to being in possession of illegal drugs and a firearm. It seemed that this is why she refused to meet with Defence counsel when Mr. DiCecca told her he was not her lawyer. When the issue of her repercussions arose during the course of her evidence, she stated that she had received some legal advice that she should ask for certain protections. I advised her that she automatically had the protection of s. 13 of the Charter and invoked the protection of s. 5(2) of the Canada Evidence Act on her behalf. That seemed to reduce her obvious stress about giving evidence somewhat, although she was subjected to a detailed cross-examination for the better part of a day about her drug use and her sex trade work, prompting her at one point to exclaim that she felt like she was the criminal. Given her fears it seems unlikely that T.F. would comply with the subpoena and give this evidence and in fact she might have had a stronger motive to lie to avoid any obvious repercussions she was concerned about by her admissions although that was not put to her.

75I also considered T.F.’s evidence that she was coming forward and making these admissions so that she could make amends for not coming forward sooner and that this is something she needs to do as part of the 12-Step program she is in the process of completing in order to assist her in remaining clean and off drugs and found this evidence to be believable. There is no suggestion that she is not in fact completing this program or that these are not steps of the program.

76Also, as Mr. DiCecca submitted, given what T.F. had to endure during the giving of evidence and particularly the lengthy cross-examination as she was disclosing very personal and humiliating matters, it was obviously very painful and not something I would expect her to do when it was not true, to help Mr. Broderick, given the nature of her relationship with Mr. Broderick on the evidence before me.

77Finally, Mr. DiCecca submitted that this matter was to be tried in May of this year and it was adjourned because of the pandemic. The fact T.F. did not come forward before that trial date suggests that she has not come forward to give false evidence simply to help Mr. Broderick.

78For these reasons, despite the fact that I agree with Ms. Webb that T.F.’s evidence is unbelievable, her evidence does raise a reasonable doubt about whether or not the Firearm and the Case with the drugs was possessed by Mr. Broderick in the sense that they belonged to him or that he was aware that these items were in his Apartment. Accordingly, I find that the Crown has not proven Mr. Broderick is guilty of Counts 2-5. It is therefore not necessary to deal with the third issue.

Disposition

79Mr. Broderick, for the reasons I have given, I find you guilty of Count 1 - possession of fentanyl for the purpose of trafficking, contrary to s. 5(2) of the CDSA. I find you not guilty of Counts 2 to 5.

Footnotes

1. 1These two pills were in a small clear zip lock baggy.
2. 2If possession is made out, the other elements of the offences under sections 92(1) of the Criminal Code are admitted.