Court File and Parties

COURT FILE NO.: CR-19-716

DATE: 20210607

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty The Queen

– and –

Gary Elliott

Defendant

Counsel:

Andrew Nisker, for the Crown

Kirsten Van Drunen, for the Defendant

HEARD: March 22-24, 2021

Garson J. (Delivered Orally)

REASONS FOR JUDGMENT

Introduction

[1] Gary Elliott, the defendant, stands charged with a single count of possession of methamphetamine (“meth”) for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 [“CDSA”].

[2] The charge arises from the warrantless arrest of the defendant on January 28, 2019 and the search of his vehicle incident to that arrest. The search yielded 9 ounces of meth in a triple-bagged chip bag, partially secured under a toboggan in the truck bed of the defendant’s pick-up truck.

[3] The defendant brings a Charter motion and seeks the exclusion of the meth seized from his truck bed. He relies on an alleged breach of both his section 8 and 9 Charter rights. Specifically, he argues that police lacked the requisite objective grounds to arrest him.

[4] On consent, the parties agreed that the trial would proceed before me in a blended fashion, with the Crown calling its evidence on both the Charter application and the trial together and the defence cross-examining the police witnesses on both issues.

[5] These reasons explain both my ruling on the Charter application and my decision on the trial proper.

Admissions

[6] The defendant made a series of admissions at the beginning of the proceedings including:

the date, identity, and jurisdiction;
that the 1998 GMC pick-up truck, bearing license plate number AN63311 (the subject of the search in this case) was legally registered to the defendant at the time of the search;
the nature and continuity of the drugs seized, and the admissibility of photos taken by police;
that the amount of meth seized was 9 ounces or 251 grams and was of a sufficient quantity to meet the threshold for proving possession for the purposes of trafficking; and
that Detective Constable (“D/C”) Sid Friederichsen’s redacted expert report was admissible without the need to call the report writer.

Evidence for the Crown

[7] The Crown called three police witnesses. Their evidence is not in dispute for the most part. I will now review their evidence.

Police investigation of Kody Johnson (“KJ”)

[8] D/C David Lewis, a 20-year member of the OPP assigned to the Huron-Perth Community Street Crimes Unit in 2018, was investigating Kody Johnson (“KJ”), a Mitchell, Ontario resident, in December 2018. KJ was suspected to be a meth trafficker.

[9] D/C Millar, a 6-year member of the OPP, and D/C Hurley, a 12-year member of the OPP, assisted D/C Lewis in his investigation.

[10] On December 5, 2018, D/C Lewis obtained a transmission data recorder warrant (“TDR”) for KJ’s cellphone. This permitted the officer to see who KJ would communicate with by text or by calls.

[11] On December 17, 2018, D/C Lewis noted that KJ communicated with a person from a number registered to the defendant. After the defendant’s address was linked to one shown on the police records management services (“RMS”) database and after a criminal records check showed the defendant having a 2002 conviction for drug trafficking, the defendant became a person of interest in the KJ investigation.

[12] Additional TDR data and RMS database inquiries on December 20, 2018 identified Douglas Noble (“DN”), residing in Hamilton, Ontario, as a suspected meth dealer, based on:

his communications with KJ;
his prior record for drug trafficking; and
a series of (then) current allegations by police in Hamilton that a large volume of meth, fentanyl, heroin, and oxycodone was being trafficked.

[13] TDR data showed KJ’s cell to be in the area of DN’s address in Hamilton on both December 10 and December 20, 2018 for less than one hour on each occasion. Police monitored KJ’s return to Mitchell on December 20, 2018 and observed him retrieve a backpack from the trunk of his vehicle and enter his apartment building through the back door.

[14] KJ had, earlier that day, been in communication with JB, whom police were aware of from prior meth investigations. Shortly after KJ’s return, JB attended and entered KJ’s building through the same back door. He left a short time later. Although police could not observe where JB attended within the apartment building, D/C Lewis believed he attended to meet with KJ.

[15] TDR data also confirmed that KJ attended at the Sunrise Mall (“the mall”) in Kitchener, Ontario on December 28, 2018. This mall is located at the first exit off the highway travelling west from Goderich, Ontario when entering Kitchener. The TDR data revealed several communications between KJ and DN between December 5 and December 31, 2018.

[16] Based on these observations, D/C Lewis believed that DN was an upper-level drug dealer and was supplying drugs to KJ, who was a street-level dealer. Police further believed that KJ’s trips to Hamilton were to acquire drugs from DN.

Events of January 15, 2019

[17] On January 15, 2019, D/C Lewis, based on suspicion arising from KJ’s communications with DN and the likelihood of a meeting occurring between KJ and DN, set up observation on Highway 6, south of the 401, looking for DN to drive by. TDR and tracking data confirmed that DN drove by that location in a green pick-up truck. DN’s green pick-up truck was later confirmed as registered to him. D/C Lewis, who believed DN was driving, followed the green pick-up truck, which headed towards the mall in Kitchener, possibly so that DN could meet KJ for a drug transaction.

[18] Both DN and D/C Lewis arrived at the mall at 10:20 p.m. D/C Lewis observed, from about 50 feet and with the assistance of street light illumination, DN’s truck parked next to a white pick-up truck. DN exited his truck, walked to the back of his truck, retrieved a small object from a dark duffle bag, and then pushed the bag back into the back of the truck. DN then entered the front passenger side of the white truck, where he remained for approximately 5 minutes. He then exited the white truck, returned to his truck, and, within a few minutes, left the parking lot in his truck.

[19] D/C Lewis was able to recognize DN based on an earlier photo. Although D/C Lewis could not see inside the white truck to identify its driver, he did observe a lone male of smaller stature (similar to that of the defendant) inside that truck and behind its steering wheel.

[20] D/C Lewis was later able to confirm that the white pick-up truck was registered to the defendant at an address on Wise Line in Goderich.

[21] Based on these observations, D/C Lewis believed that he had observed a drug transaction. Although D/C Lewis believed he had ample grounds to arrest the defendant that evening, he chose not to do so as not to prejudice the ongoing investigation into KJ.

[22] D/C Hurley, who had also been involved in the investigation into KJ, attended at the mall parking lot that evening, arriving at 10:25 p.m. He observed, from about 25 to 30 feet, DN’s pick-up truck parked in a quiet part of the parking lot beside a white GMC Sierra pick-up truck, both of which were parked in front of a closed business. D/C Hurley ran the plate on the white pick-up, which was registered to the defendant.

[23] D/C Hurley observed someone in the passenger seat of the defendant’s truck. Based on a conversation he had with his partner, D/C Lewis, D/C Hurley believed that what was taking place at that time was a drug transaction. This was based on:

The knowledge that DN was likely already supplying meth to KJ;
the location of the mall being known as a location for suspected drug transactions;
DN’s history and alleged trafficking; and
the distances DN and the defendant both travelled for a short meeting in a secluded area of the mall parking lot late in the evening, with neither party observed to be attending the few open businesses.

[24] D/C Millar, rely upon information conveyed to him by D/C Lewis, applied for and received a TDR and tracking warrant for the defendant’s cellphone and vehicle on January 17, 2019. That same day, he had also driven by the defendant’s home and observed a white GMC pick-up truck parked in the driveway beside the residence.

Events of January 23, 2019

[25] On January 23, 2019, D/C Lewis set up surveillance on KJ. Police followed him throughout Huron and Perth Counties, to Kitchener-Waterloo, and then to DN’s address in Hamilton, where KJ, DN, his girlfriend, and a third-party male stayed for about 30 minutes. Police then followed the group back to Perth County, where, on the instruction of D/C Lewis, their vehicle was stopped on Highway 119 and D/C Millar arrested KJ for possession of meth for the purposes of trafficking.

[26] D/C Millar’s search of KJ’s vehicle incident to arrest yielded 9 ounces of meth. The meth was in a Ziploc freezer bag, which was inside an empty milk bag, which was itself inside the trunk of the vehicle.

Events of January 28, 2019

[27] On January 28, 2019, D/C Lewis received information from D/C Millar that D/C Millar had just driven by the defendant’s vehicle along Highway 7/8. D/C Lewis confirmed this location by checking the TDR and tracking data.

[28] D/C Lewis then checked the data for DN’s cellphone, which showed him travelling from Hamilton to Kitchener. D/C Lewis shared this information with D/C Millar. D/C Lewis also contacted D/C Hurley and told him to be available in uniform for the defendant’s possible arrest, an arrest that would depend on how events unfolded.

[29] By this point, D/C Millar had formed the belief, based on information that he had received, that DN was a meth supplier. As indicated, D/C Millar had, earlier that day, passed the defendant’s vehicle, which was travelling westbound on Highway 7/8. D/C Millar then turned around and began following the defendant’s vehicle. D/C Millar believed that both DN and the defendant were headed to the mall in Kitchener to meet to conduct a drug transaction.

[30] D/C Millar followed the defendant’s vehicle to the mall where he observed, from a distance of approximately 50 to 70 metres away, the defendant’s vehicle parked beside a green pick-up truck in an area of the parking lot not frequently used by members of the public.

[31] D/C Millar observed an older male exiting the green pick-up truck, opening the back door of the truck, retrieving a grey coloured package, and then walking towards the defendant’s vehicle. The older male returned to his truck a short time later without the package in his hands. The package was roughly the same size as the package previously seized from KJ the week prior.

[32] The defendant then moved his vehicle to a different area of the parking lot and was observed to be leaning into and rummaging through his backseat for a few minutes before departing the mall.

[33] D/C Millar believed this was a drug transaction. His grounds for this belief included:

that the defendant was observed meeting with DN, a known drug dealer, at a location known for drug transactions involving DN;
that the defendant repeatedly communicated with DN prior to the meeting at the mall; and
that the meeting occurred in a secluded area of the mall and in a town that was at least an hour away from where both the defendant and DN resided.

[34] Based on this information, which D/C Lewis received from D/C Millar, D/C Lewis instructed D/C Hurley to stop the defendant’s vehicle in Perth County and arrest him for possession of meth for the purposes of trafficking.

[35] D/C Hurley set up his marked cruiser at Line 26 near Highway 112 and waited until the defendant’s vehicle passed. He stopped the vehicle and arrested the defendant without incident.

[36] He conducted a search of the vehicle incident to arrest. He climbed into the box or bed in the back of the pick-up truck, where he observed a toboggan, some strewn garbage, and some firewood. A Cheetos chip bag was also seen sticking out from underneath the toboggan; inside the chip bag was a grey grocery bag.

[37] D/C Hurley recalled that, when earlier arresting KJ, police located meth in KJ’s trunk, after he had met with DN, in a clear Ziploc bag, which was inside a grocery bag, which was itself inside an empty milk bag. This caused D/C Hurley to pay particular attention to the grocery bag inside the empty chip bag.

[38] Upon closer inspection, D/C Hurley observed a clear Ziploc freezer bag inside the grocery bag. The Ziploc bag seemed to contain a similar amount of meth to what was earlier seized from KJ’s vehicle upon arrest.

[39] D/C Lewis arrived on scene shortly after the defendant’s arrest at 4:10 p.m. Due to snow and wind conditions that day, the defendant’s vehicle was towed to a nearby detachment for safety reasons.

[40] D/C Lewis searched the vehicle and photographed his findings. Before these photographs were taken, D/C Hurley did his best to place the Cheetos chip bag back where he initially found it.

[41] A judicially authorised search of the defendant’s residence on January 29, 2019 revealed 3-4 Cheetos chip bags in a hutch drawer (and a 5^th bag in another drawer) in the dining room on the main level of the defendant’s residence. These chip bags were identical to the chip bag which contained the 9 ounces of meth.

[42] In cross examination, D/C Lewis acknowledged that he was unaware what substance the defendant was convicted of trafficking in 2002. D/C Lewis accepted that it could have been marijuana.

[43] D/C Lewis agreed that January 15, 2019 was the first time he observed the defendant’s truck and, although they could also confirm that his phone was in his truck, police could not say whether the defendant himself was present.

[44] In cross-examination, D/C Millar agreed that he could not see what occurred when the driver of the green pick-up truck attended in between his vehicle and the defendant’s vehicle. He stated that the size of the grey package which was transferred between the parties was approximately the size of a standard house brick. D/C Millar stated that, based on his observations that day and the information he earlier received, he believed that reasonable grounds existed to arrest the defendant. D/C Millar also stated that he shared this belief with D/C Lewis.

[45] In cross-examination, D/C Hurley agreed that he became aware of someone falsely using his name as the registered name for their cellphone. He believed the person doing this was KJ and that this arose after he gave his business card to James Warner, someone who associated with KJ and who he believed passed it on to KJ.

[46] D/C Hurley agreed that, when he made his January 15, 2019 observations of the two pick-up trucks parked at the mall in the evening, many stores in the area were closed, with only a pizza place being open. D/C Hurley stated that he saw the two trucks parked together for about 15 minutes, but also accepted that, since he arrived after they were already parked, they could have been together longer. D/C Hurley stated that, when the defendant’s pick-up truck left the mall that evening, the vehicle headed east and away from the defendant’s residence in Goderich.

[47] D/C Hurley also acknowledged, when questioned about his observations on January 28, 2019, that the back of the defendant’s pick-up truck was pretty disorganized, that it contained some garbage, that the chip bag was not secured or safely locked in the tool box but that was partially out in the open and, therefore, exposed to the elements on that snowy and windy day.

Evidence for the Defence

[48] The defendant chose not to testify on the Charter application but did testify at the trial proper.

[49] He explained that, in late December 2018, Jimmy Warner (“JW”), someone he met through his uncle, David Stoll (“DS”), asked if he could store a few new, expensive snowmobiles on the defendant’s three-acre property, which the defendant rented. He agreed.

[50] He quickly noticed that it was strange that these snowmobiles were not being used in the winter and became uncomfortable about storing them as he now suspected they may be stolen. Repeated calls to, and messages left for, JW were unreturned.

[51] He next contacted JW’s uncle, who gave him JW’s brothers phone number. He then contacted JW’s brother, DN. DN agreed to meet the defendant at the mall, the halfway point between their homes.

[52] The first meeting with DN took place on January 15, 2019. After a quick meet and greet in the parking lot at the mall, DN agreed to help move the snowmobiles off of the defendant’s property. The defendant left without buying anything at the mall and headed back to his home.

[53] A second in-person meeting took place a week or two later at the mall parking lot by a Walmart because nothing had happened with moving the snow machines. The defendant, who didn’t want to offend DN or his brother, thought it was a good idea to meet in person again.

[54] At this second meeting, the defendant recalled that DN had snowmobiles in the back of his pick-up. DN, after a short and quick meeting, again assured the defendant that the snowmobiles would be removed. DN came up to the defendant’s vehicle driver’s window to discuss the matter. Before leaving, the defendant removed some garbage from the backseat of his vehicle.

[55] The defendant recalled DN telling him that JW was at a farm close to the defendant earlier that day. The defendant wondered why he had just wasted his time driving to Kitchener when JW would have been close to his home and never returned any of the defendant’s calls. A conversation with JW would have resolved all of this. In fact, the defendant was at that same farm earlier that day and remembered talking about going snowmobiling with someone at the property and couldn’t understand how this could happen if the machines remained stored on his property.

[56] The defendant denied knowledge of the package of meth found in the bed of his pick-up truck. He did not know how it got there. He did not place it there. He admitted to using meth a few times in the past but denied ever selling meth.

Cross-examination of the Defendant

[57] In cross-examination, the defendant could not recall the exact date JW first stored the snowmobiles at his property but insisted that they were there before January 15, 2019.

[58] He wasn’t sure how he contacted DN but believed it was by text message. He confirmed it was his idea to meet DN in person because this was the kind of discussion that should not take place over the phone. It did not seem odd to the defendant that both he and DN should each drive for over an hour in winter to have a short 10-minute conversation.

[59] Although he initially believed he spoke to DS in person to get DN’s contact information, he later agreed that it was possible that DS was in custody when this conversation took place.

[60] When he was shown photographs taken by police of his seized vehicle and the front passenger seat with a phone, a flashlight, and a pair of glasses, he suggested that it could be someone else’s phone and sunglasses and that he didn’t recognize the flashlight. He said he wasn’t even sure whose truck it was.

[61] He denied knowing DN before January 15, 2019 or being in contact with DN before that day. He agreed that he knew KJ, had met him a few times, recalled talking to, and possibly texting KJ, but couldn’t recall being hired to work for KJ or to drive for KJ.

[62] When he was asked about the Cheetos chip bags found at his property, which were identical to the one found in his truck, which contained meth, he explained that a friend that works at a chip place gave him access to many bags of expired chips that he used to feed his chickens.

Reply

[63] In reply, and on consent, the Crown filed a 1-page statement that provides:

the LG cell phone seized from the front passenger seat of the defendant’s truck belongs to the defendant and has the phone number 519-525-0311.
this cell phone was searched by the police and a summary of the extraction report was created. This is to be made an exhibit. The contents of the extraction report are not to be used for the truth of its contents but to show the dates of phone calls and text messages between that phone and number listed for DN, identified as “Doug” in the phone contact list.
DS was in jail at Elgin Middlesex Detention Centre from October 4, 2018 to January 15, 2019. There is a record of the defendant visiting DS on November 22, 2018 at 17:30.
the 2014 Yamaha snowmobile (vehicle identification number: 4UF8JR003ET000318) that was seized from the defendant’s house on January 30, 2019 was reported stolen on January 24, 2019. The police reviewed video surveillance and spoke to the victim and confirmed that it was stolen between 12:07 a.m. and 12:45 a.m. on January 23, 2019.
there was regular communication between DN’s phone number and the phone number registered to “John Hurley” before and after January 15, 2019.

Positions of the Parties on the Charter Application

[64] The Crown argues that the observations of January 15 and 28, 2019 are more than enough to provide the reasonable grounds for the police to arrest the defendant. Once the arrest is found to be lawful, it follows that the search incident to arrest is lawful.

[65] The defence concedes that, while the police certainly had reasons to be suspicious, the grounds fall short of the reasonable standard.

Positions of the Parties at Trial

[66] The parties agree that, based on admissions and concessions made by the defendant, the main issue for trial is whether the defendant had knowledge that the substance found inside the chip bag in the back of his truck was a sizeable quantity of meth.

[67] The Crown urges me to reject the defendant’s explanation as far-fetched and unworthy of belief. They strongly reject any suggestion that the defendant is somehow an innocent dupe or an unsuspecting drug mule who was used to transport drugs between DN and his brother or other Huron County associates. The Crown argues that the defendant’s story flies in the face of credible police observations that tell a clear and compelling story of drug dealing by the defendant.

[68] The defence relies on the insecure nature of the location where the drugs were found, the lack of exclusive access by the defendant to the truck, and the other available and reasonable inferences that the drugs were placed in the defendant’s truck without his knowledge for pickup by a Huron County associate of DN later that day. The defence agrees with the Crown that DN is likely responsible for the placement of both 9-ounce meth packages found by police on January 23, 2019 in KJ’s vehicle and on January 28, 2019 in the defendant’s vehicle.

The Law on the Charter Application

Arrest

[69] Section 9 of the Charter provides that everyone has the right to not be arbitrarily detained or arrested.

[70] An unlawful arrest is also an arbitrary arrest: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 [Grant] at paras. 53 to 57.

[71] Section 495(1)(a) of the Criminal Code provides:

A peace officer may arrest without warrant

(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence…

[72] In R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at para. 17, Corey J. sets out the test for when an officer has grounds to make an arrest:

… the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they are not required to establish a prima facie case for conviction before making the arrest.

[73] Therefore, subjective grounds for arrest must also be assessed objectively to determine whether such grounds are sufficient. The “reasonable grounds” standard under s. 495 of the Criminal Code requires more than mere suspicion but does not rise to the level of proof on a balance of probabilities: Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100 at para. 114.

[74] In determining whether reasonable and probable grounds exist, the totality of the circumstances must be considered. Observations made by experienced officers may take on a different meaning than similar observations made by a member of the general public: R. v. Lawes, 2007 ONCA 10 at para. 4; R. v. Juan, 2007 BCCA 351, 158 C.R.R. (2d) 56 at para. 27.

[75] The law does not require the same kind of inquiry when making an arrest that it requires on an application for a search warrant: R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743 (C.A.), leave to appeal to SCC refused, [1998] 1 S.C.R. ix (note); R. v. Palmer, 2014 ONSC 5839, 319 C.R.R. (2d) 343 at para. 21.

Search and seizure

[76] Section 8 of the Charter provides for the right to be secure against unreasonable search and seizure.

[77] In order to establish that a search incident to arrest was lawful, the Crown must also establish, on a balance of probabilities, that the underlying arrest was lawful.

[78] To justify a warrantless search, the Crown must show, on a balance of probabilities, that the search was authorized by law, was reasonable, and was carried out in a reasonable manner: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265 at p. 278.

[79] Police are permitted to afford some weight to a person’s criminal record, provided that, standing alone, that criminal record is not sufficient reasonable grounds for arrest: R. v. MacDonald, 2012 ONCA 244, 290 O.A.C. 21 at para.22.

The Law on the Trial

Presumption of Innocence and Burden of Proof

[80] The defendant is presumed innocent of the charge unless and until the Crown establishes his guilt beyond a reasonable doubt. This is a heavy burden on the Crown that never shifts.

[81] Proof beyond a reasonable doubt is not equal to proof of probable or likely guilt. It requires that I be sure that the defendant committed the alleged offence. The standard of proof applies to each of the elements of the offence, not to every piece of circumstantial evidence, and requires that I determine if the evidence as a whole establishes proof beyond a reasonable doubt.

Possession

[82] Section 2 of the CDSA adopts the definition of possession found in s. 4(3) of the Criminal Code. In addition to having personal possession of an item, s. 4(3)(a)(ii) provides that a person can constructively possess an item when they knowingly have it in a place for their use or benefit. Constructive possession requires proof of knowledge and some measure of control over the item: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253.

[83] The element of knowledge may be established by circumstantial evidence, which can be sufficient to infer the requisite knowledge: R. v. Pham (2005), 2005 CanLII 44671 (ON CA), 77 O.R. (3d) 401 (C.A.), aff’d 2006 SCC 26, [2006] 1 S.C.R. 940.

Circumstantial Case

[84] This is a circumstantial case and, as such, guilt must be the only reasonable conclusion from the evidence I accept: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 at para. 55.

W. (D.) Instruction

[85] The defendant testified. Accordingly, I have instructed myself as follows, in accordance with the Supreme Court of Canada’s instructions in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742:

if I believe the evidence of the defendant, I must acquit;
if I disbelieve the evidence of the defendant but am still left with a reasonable doubt, I must acquit; and
if I disbelieve the evidence of the defendant and am not left with a reasonable doubt, I must still be convinced beyond a reasonable doubt on the basis of the evidence that I do accept before I can convict.

Credibility

[86] I next turn to credibility findings. I start with the officers. They testified in a straightforward and clear manner. I was particularly impressed with the thorough and detailed evidence of D/C Lewis. I accept their evidence.

[87] I was far less impressed with the evidence of the defendant. His answers were unclear, inconsistent, evasive, and ambiguous. Specifically, his reluctance to admit the obvious – that the cellphone and glasses on the front seat of his truck, as per the police photographs shown to him, were his or even likely his – went to the core of his credibility.

[88] The Crown’s reply evidence, which was uncontested and agreed to, made clear that the defendant’s assertions about when and how often he contacted DN, where and when he spoke to his uncle, and when he came into possession of both snowmobiles were all false.

[89] His entire story defied common sense. Additional concerns I have with the version of events testified to by the defendant include:

Why travel a combined distance of more than 2 hours each on 2 separate occasions, in the winter, during at least one snow event, and, on one occasion, late at night to have a short 10-minute conversation with the brother of someone who is storing suspected stolen property at your farm property?
Why park in a quiet and low-traffic section of the parking lot of the mall, on one occasion in the late evening when most stores are closed, when meeting with someone who you have repeatedly communicated with in advance of the meeting and who is a suspected drug dealer?

[90] Simply put, the defendant’s version of events makes no sense. It is completely and entirely unworthy of belief. It is void of reason or rational thinking or behaviour. I do not believe any of it. I reject his explanation in its entirety.

Discussion

Charter - Was The Arrest Lawful?

[91] I begin with the Charter analysis and whether the defendant’s arrest was lawful.

[92] There are two branches for the reasonable grounds test under s. 495 of the Criminal Code. First, the arresting officer must subjectively believe that reasonable grounds exist and, second, a reasonable person placed in the position of the officer must also conclude that such grounds exist.

[93] As is often the case, the first branch is almost always satisfied provided the police indicate their belief and the grounds for such belief. They have done so. The defence concedes this branch. The focus shifts to whether that belief withstands objective scrutiny.

[94] This is not a high threshold and must be examined in the totality of the circumstances known to police.

[95] On the credible evidence before me, I have little difficulty concluding that the reasonable person test is satisfied. Specifically, police knew by the time of the defendant’s arrest that:

the defendant had a dated criminal record for drug trafficking;
the defendant’s suspected supplier, DN, also a suspected supplier to others in Huron County, had a related criminal record and was currently released on allegations of drug trafficking in Schedule I substances, including meth;
5 days earlier, police arrested KJ, who also had a criminal record for drug offences, on his return from a short meeting with DN and, as a result, located 9 ounces of meth in the back of KJ’s truck;
the defendant met DN on 2 occasions, both short meetings, both in remote areas of the mall parking lot, and both at a location roughly midway between Hamilton and Goderich and at least an hour each way from the defendant’s home by car;
the meetings were both similar in nature; and
the similarity of the packaging, including the type and size of Ziploc bag, and the amount of meth seized from KJ on January 23, 2019 and then from the defendant on January 28, 2019 after both came from short meetings with DN.

[96] It is not surprising that, late at night on January 28, 2019, and from a healthy distance, police could not observe a hand-to-hand transaction.

[97] I do note, however, that, notwithstanding that police could not positively identify the defendant as the driver of his registered vehicle on January 15, 2019, it is entirely reasonable to infer that he was. His own testimony confirmed such an earlier meeting.

[98] It is also equally reasonable to infer that DN was the driver of the green pick-up truck on December 15, 2018. D/C Lewis testified he recognized him from an earlier photo.

[99] In my views there were ample grounds, viewed objectively, for police to believe that the defendant was in possession of meth for the purposes of trafficking on January 28, 2019.

[100] The Crown has clearly satisfied its burden to prove that the arrest of the defendant was lawful. As properly conceded to by the defendant, if the arrest was lawful, the search incident to the arrest was also lawful.

Section 24(2) Charter

[101] Notwithstanding my finding of a lawful arrest and lawful seizure incident to arrest, I nonetheless, for completeness, will conduct a brief s. 24(2) analysis.

[102] I turn to the three factors outlined in Grant:

the seriousness of the Charter infringing conduct;
the impact of the breach on the Charter protected interests of the applicant; and
society’s interest in the adjudication of the matter on the merits.

Seriousness of State Conduct

[103] The defendant concedes that police acted in good faith. Police had ample grounds for arrest compiled over a fairly lengthy period of time. This factor strongly favours admission.

Impact of Breach

[104] The impact of any breach on the defendant’s Charter rights was minor. He was in his motor vehicle with an open flatbed. His vehicle had a reduced expectation of privacy relative to his house. The drugs were triple-bagged, were in an open discarded chip bag, and were partially lodged under a toboggan. The open flatbed portion of the truck was not locked or secured. The chip bag, or at least a portion of the bag, was in plain view. These drugs had an extremely high likelihood of being discovered later at the police detachment. This factor also favours admission.

Societal Interest in Adjudication

[105] The drugs are real evidence, reliable and demonstrative evidence, and inherently objective evidence, which, if excluded, would gut the prosecution and take a heavy toll on the truth- seeking function of a trial. Society has a strong interest in seeing serious drug trafficking allegations dealt with on the merits. Specifically, meth is a dangerous drug that poses real dangers on our streets and in our communities. This factor strongly favours admission.

Balancing and Conclusion

[106] There is little balancing required here as all three factors favour admission of the seized meth. The police conduct was neither reckless nor high-handed. Meth is an insidiously dangerous and addictive substance. The exclusion of the 9 ounces of meth seized in these circumstances would bring the administration of justice into disrepute.

[107] For the above reasons, the drugs seized by police from the defendant’s truck bed on January 28, 2019 shall be admissible at trial.

[108] The Charter application is dismissed.

Discussion - Trial

[109] Having concluded that the drugs seized are admissible, I next turn to my discussion regarding the evidence at trial.

[110] The starting point for my analysis is a restatement of the fact that this is a circumstantial case. The meth was not located in the hands of, or personally possessed by, the defendant. The defence properly concedes the element of control. This means that, because of earlier admissions, the remaining issue for determination is whether the defendant had knowledge that the meth was in his truck bed.

[111] This knowledge may be established by circumstantial evidence. I need not repeat all of the evidence, as summarised in the Charter analysis section of these reasons. I do, however, adopt that evidence for the purposes of the trial discussion. Specifically, I consider and adopt the following:

the defendant was seen meeting with DN, a suspected drug trafficker, on two separate occasions, at a location that police suspected DN used for drug transactions, both for short durations and both at quiet and low-traffic areas of the mall parking lot;
these meetings required both the defendant and DN to drive at least one hour from their home during the winter months and in at least one snow event and these meetings were subject to repeated communications between the parties in advance of the meetings;
the specific size, sort, and brand of chip bag that contained the drugs was also found in abundance at the defendant’s residence; and
the police had observed a similar pattern of behaviour by DN in conducting suspected drug transactions at the mall and in supplying suspected drug traffickers from Huron county.

[112] I pause to consider the alternative theory offered by the defence. The defence urges me to accept that the evidence in this case is reasonably consistent with the defendant having been duped into being an unsuspecting mule for DN to either his brother or another associate who would be attending a farm near the defendant later that same day that the defendant intended to visit.

[113] As earlier indicated, I disbelieve and entirely reject the defendant’s evidence that this was a meeting (or a series of meetings) to discuss DN’s brother’s snow machines. That’s nonsense. This was a meeting to transact 9 ounces of meth from DN to the defendant. As earlier observed, this alternative theory is woefully lacking in common sense and is unreasonable for many reasons, including:

it is reasonable to infer that a drug dealer would not entrust a large quantity of drugs, worth tens of thousands of dollars, to a person who was not aware of the nature of the contents of the package containing the drugs: R. v. Sandhu, 2017 ONCA 709 at para. 4, citing R. v. Bains, 2015 ONCA 677, 127 O.R. (3d) 545 at para. 157, leave to appeal to SCC refused, [2015] S.C.C.A. No. 478.
it defies reason, rationality, experience, and common sense that, instead of simply attending at the nearby farm property – where JW was potentially present - and simply speaking with JW directly or with one of his associates, the defendant would drive 2 hours each on 2 different occasions to meet JW’s brother, a suspected drug dealer, at a suspected drug transaction location, in a low traffic area of a mall, in the winter, at least once at night.

[114] The defendant’s evidence was a complete fabrication. It was contradicted on almost every material aspect. When and where he spoke to his uncle, KJ, DN, and JW. When at least one snowmobile came into his possession. Whether the vehicle and cell phone depicted in the photos were his.

[115] There is simply no credible evidence of a reasonable and plausible alternative theory. The Crown has disproven the defence’s theory that the defendant had no knowledge of these drugs and was an unsuspecting mule.

[116] The defendant drove to Kitchener on January 28, 2019 for one reason—to make a meth purchase from DN. He was observed by police, followed back to Perth County, and arrested.

[117] The circumstantial evidence in this case is overwhelming.

[118] There is no plausible, credible, consistent, or reasonable alternate explanation offered by the defendant for the litany of overwhelming and inculpatory facts.

[119] When I view the circumstantial evidence before me in its totality, I can reach no other conclusion than that the defendant had knowledge of and control over the 9 ounces of meth found by police in their lawful search of his truck. The Crown has proven this essential element of the offence beyond a reasonable doubt.

[120] Given the concessions by the defendant and the conclusions in the expert report filed, I am also satisfied that the quantities of meth involved, 9 ounces, provide sufficient proof of the defendant’s intent to traffic the meth.

[121] For the above reasons, I find the defendant guilty of possession of meth for the purposes of trafficking.

Justice M.A. Garson

Released: June 7, 2021