R. v. Trudel, 2022 ONSC 1969

R. v. Trudel, 2022 ONSC 1969

COURT FILE NO.: 18-G5479 DATE: 29/03/2022

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – JACQUES TRUDEL

Counsel: Genevieve McInnes and Jessica Hanna for the Crown Biagio Del Greco for Jacques Trudel

HEARD: November 12, 15-17, 22-25, 2021 and January 19, 2022

VERDICT

Justice Sally Gomery

1Jacques Trudel was arrested following an attempted takedown and high-speed police chase of a Chevy Impala on the evening of October 9, 2018. During the chase, two plastic tubs containing just over two kilograms of crystal methamphetamine were thrown from the rear window of the Impala. Mr. Trudel was sitting in the front passenger seat of the car at the time. His cousin, Guy Trudel, was driving. [1] A third man, Christopher Francoeur, was sitting in the backseat. When Mr. Trudel was apprehended and arrested as he fled on foot a short time later, he had 15.5 Dilaudid (hydromorphone) pills and $5,660 in cash on his person.

2The three men were jointly charged with trafficking of crystal methamphetamine, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the “CDSA”). Mr. Trudel was also charged with possession of a controlled substance, contrary to s. 4(1) of the CDSA, and possession of proceeds of trafficking, contrary to s.354(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”), based on the pills and the cash he had when he was arrested. Guy Trudel was also charged with operating a motor vehicle in a manner dangerous to the public, contrary to s. 249(1)(a) of the Code.

3The Crown’s case is based on the physical evidence seized after the chase and the observations of police officers during the surveillance and pursuit of Mr. Trudel, his cousin, and Mr. Francoeur on October 1, 2 and 9, 2018, and video taken during the surveillance.

4Mid-way through the trial, the charges against Guy Trudel and Mr. Francoeur were resolved. Mr. Franceour pleaded guilty and was sentenced by another judge. Guy Trudel obtained a stay after pleading guilty to unrelated pending charges. This leaves only the three drug charges against Mr. Trudel.

5The central issue in this case is whether Mr. Trudel knew about and had control of the tubs of crystal meth in the backseat of the Impala before they were thrown out, such that he had constructive possession of the drugs or is liable as a party to Mr. Francoeur’s possession of them. Mr. Trudel concedes that the other elements of the trafficking offence are made out. He did not challenge any of the evidence with respect to the charge of possession of the Dilaudid pills and agrees that, if I find him guilty of the trafficking charge, I will also find him guilty of the charge of possession of the proceeds of trafficking.

6I will proceed by first reviewing the overarching legal principles and the evidence at trial. I will then set out what the Crown must prove and consider specific arguments raised by the defence before finally determining whether the Crown has proved its case.

OVERARCHING LEGAL PRINCIPLES

7Mr. Trudel is of course presumed innocent of any charge unless the Crown has proved, beyond a reasonable doubt, that he is guilty.

8A reasonable doubt is a doubt based on reason and common sense that is “logically connected to the evidence or the absence of evidence”; R. v. Villaroman, 2016 SCC 33, at para. 28. A reasonable doubt is not an “imaginary or frivolous” doubt. The Crown does not have to present proof to an absolute certainty.

9The trial judge should consider the evidence as a whole, rather than in a piecemeal fashion: R. v. Awad, 2021 ONCA 285. The requirement of proof beyond a reasonable doubt applies to each element or essential ingredient of the offence charged, not to each piece of evidence: R v Faucher, 2020 SKCA 27 at para 53; R v Arp, 1998 SCC 769, [1998] 3 SCR 339 at paras 64–75; and R. v. Pham, 2005 ONCA 44671, [2005] O.J. No. 5127 (ONCA), at para. 30.

10When assessing circumstantial evidence, I should be careful not to draw speculative inferences, or inferences for the purpose of covering gaps in the evidence. In considering whether to accept an inference, I should consider other plausible theories and reasonable possibilities, even if there is no evidence led to support them; Villaroman, at paras. 30, 36. These theories must, however, be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. The Crown does not have to disprove irrational or fanciful conjectures that would be consistent with the accused’s innocence; Villaroman, at para. 37.

11In a case based primarily on circumstantial evidence, an inference of guilt must be the only reasonable inference that the evidence permits: Villaroman, at para. 30.

THE EVIDENCE

12At trial, the Crown called the evidence of Ottawa and Kingston police officers who participated in an investigation of possible drug trafficking by Mr. Trudel, which resulted in surveillance of Mr. Trudel on October 1 and 2, 2018, and surveillance culminating in an attempted takedown of the Impala, its pursuit through Kingston, and the arrest of Mr. Trudel and his two associates on October 9, 2018. The Sergeant also called the expert evidence of Sergeant Doug Hill.

October 1, 2018

13In March and August 2018, Detective Dannick Payment received information that gave rise to a drug investigation of Mr. Trudel. On September 12, 2018, Detective Jason Lehman observed Mr. Trudel driving a maroon Chevy Impala with Ontario license plate CEAC 850 on Hwy 417 driving East. He followed him to 1888 King Street, a house in Limoges. Mr. Trudel was alone in the car.

14On October 1, 2018, surveillance of Mr. Trudel was initiated. Four Ottawa Police Service officers with the drug unit — Detectives Payment, Timothy Renwick, and Mireille Binet, and Sergeant Seth Curtis — followed Mr. Trudel as he drove around that day. The observations of each officer, and of the team as a whole, were recorded on a surveillance report by Sergeant Curtis as they were made. The defence admitted the accuracy of most of the entries describing the Impala’s route on this day, and on the two other days the surveillance took place. The defence took the position that the remaining entries could be relied upon only insofar as they were consistent with other evidence that I found reliable.

15During the trial, it emerged that Sergeant Curtis had failed to disclose some information to the defence. As a result, the Crown and the defence agreed that I should disregard his testimony, but that I could rely on his transcription of the observations of his fellow officers to the extent that they were consistent with their testimony.

16Based on the evidence of Detectives Renwick, Payment and Binet, and the non-controversial entries in the October 1 surveillance report, Mr. Trudel and Mr. Francoeur drove that day from 1888 King Street in Limoges in a maroon Impala. This is the same Impala used by Mr. Trudel and his associates on all three days of the surveillance and on September 12. They visited a drugstore, a bank, and a liquor store. Mr. Trudel was driving, and Mr. Francoeur was in the front passenger seat.

17The officers who observed Mr. Trudel and Mr. Francoeur on October 1, 2018, acknowledged that the men did nothing suspicious that day.

October 2, 2018

18The same four officers conducted surveillance of Mr. Trudel and Mr. Francoeur again on October 2, 2018. Sergeant Curtis once again acted as scribe. I have again disregarded his evidence about his observations that day but, in assessing the evidence of the other three officers, have taken into account his entries of their observations and the observations of the team as a whole.

The trip to Kingston

19At 8h59, Mr. Trudel and Mr. Francoeur got into the Impala at 1888 King Street in Limoges and began driving west along Hwy 417, then south on Hwy 416, then westbound on Hwy 401. Although the initial observations were made by Sergeant Curtis, whose evidence I have excluded, other officers testified that Mr. Trudel was driving, and Mr. Francoeur was in the front passenger seat consistently throughout the day.

20A short time after the Impala started driving west on Hwy 401, Mr. Trudel exited the highway, took a county road southbound, then got back on Hwy 401 going east. He continued travelling east for a couple of exits, exited Hwy 401 again, took another secondary highway north, and then took a ramp back onto Hwy 401 west once again. In summary, Mr. Trudel u-turned twice.

21At 11h35, Mr. Trudel took the Division Street exit into Kingston. The surveillance team lost sight of the Impala but then relocated it five minutes later parked on Alfred Street.

22At this point, the surveillance team requested the assistance of the Kingston Police. Five Kingston police officers took over the surveillance at 11h50. The officers involved were Detectives Pat Benoit, Preston Scott, Neil Mandigo and Jason Sauve, and Sergeant Clement Nesanayagam. [2]

23Detective Benoit observed Mr. Trudel leaving a residence on Alfred Street and getting into the driver’s seat in the Impala at 11h58. There were two other people in the car with him: a man in the front passenger seat, and a woman in the backseat. I infer that the front passenger was Mr. Francoeur. The woman’s identity is unknown.

24Mr. Trudel, Mr. Francoeur and the woman drove in the Impala to another residence, which they visited for about ten minutes. They then drove to an Econolodge hotel parking lot. Detective Mandigo testified that Mr. Trudel removed a large duffle bag from the rear seat of the Impala and entered the hotel with the woman. Mr. Francoeur remained in the car. Mr. Trudel and the woman left the hotel about ten minutes later and got back into the Impala with Mr. Francoeur. They drove to a bar but discovered it was closed. Mr. Trudel then drove them to a restaurant, where they remained for just under an hour. After they left the restaurant, Mr. Trudel drove the Impala back to the Econolodge. He dropped the woman off at the hotel and drove away with Mr. Francoeur.

25After Mr. Trudel had dropped the woman off, Kingston police officers attempted to follow the Impala but lost sight of it after a few minutes. Detective Scott testified that Mr. Trudel took a circuitous, looping route through residential areas. According to him, there were no construction or traffic conditions that would explain why Mr. Trudel chose this route instead of direct routes back to Hwy 401.

26Detective Scott was the officer who recorded observations from Kingston Police officers on October 2. The defence questioned the reliability of his evidence, in part because in the report he twice referred to Mr. Trudel as “JS” rather than “JT”. He admitted that these were embarrassing typographical errors that he failed to correct before signing off on the report. These errors do not lead me to conclude that Detective Scott was careless in giving his evidence, or that his recollection was flawed. His description of the Impala’s route through the streets of Kingston was impressive, given its complexity and that he did not appear to be referring to notes as he gave his evidence.

27At 14h30, the Kingston police gave up any further attempt to find the Impala and let the Ottawa surveillance team know that they could no longer find it. The Impala was eventually located by the Ottawa team as it drove back to Ottawa.

Observations in Ottawa

28Just after 16h00, Mr. Trudel exited the highway into downtown Ottawa. A few minutes later, Detective Payment observed the Impala pull over to the side of the road and pick up an unidentified man waiting at the intersection. The man got into the rear passenger side of the car. The Impala drove about 200 metres down the street, then pulled over and parked for a minute. The unidentified man got out of the car, and the Impala drove off. A couple of minutes later, the car pulled over on another residential street and picked up an unidentified woman who, again, appeared to be waiting there. She got into the back seat of the car for about 40 seconds, then left. Mr. Trudel then made a u-turn and drove the Impala back down the street.

29Detective Payment testified that he had a clear view of these two interactions but admitted that he could not see what was going on inside the Impala. His descriptions of the individuals involved were quite detailed. I find his evidence about these interactions credible.

30The surveillance team lost sight of the Impala right after these interactions. According to Detective Renwick, Mr. Trudel “blew” through a right on a red light on Rideau Street and drove away at a speed of about 80 km/hour. I accept this evidence. According to the October 2 surveillance report, he also observed the Impala running a red light a short time earlier. At trial, however, he acknowledged that he did not recall this.

October 9, 2018

31Detectives Payment, Renwick, and Binet and Sergeant Curtis again conducted surveillance of Mr. Trudel on October 9, 2018. They were joined by Detectives Jason Lehman and Wes Cory. Each officers drove in separate vehicles. The officer recording the team’s observations was Detective Lehman, the lead investigator. Detective Renwick had a video camera which he used to record six video clips tendered as evidence.

32The Ottawa Police Service had by this time placed a GPS tracker on the Impala. Just after 7h00 on October 9, they received a signal that the Impala was moving. It was located on Hwy 416. It proceeded south to Hwy 401, where it headed west towards Kingston and Toronto.

Observations at the Mallorytown rest stop

33At 10h19, the Impala stopped for about ten minutes at a rest stop near Mallorytown. When members of the surveillance team arrived, they saw Mr. Trudel and Mr. Francoeur get out of the Impala and go inside the rest stop. Detective Renwick testified that, when Mr. Trudel returned a few minutes later, he reached into the front passenger seat and removed two bags, which he then put into the Impala’s trunk. I accept this evidence, which is consistent with video taken by Detecitve Renwick of these actions.

34The video in fact provides details beyond Detective Renwick’s recollection. Mr. Trudel is seen returning to the Impala. He opens the front driver’s side door, then goes to the back of the car and opens the trunk. A man later identified as his cousin, Guy Trudel, gets out of the front passenger seat and joins Mr. Trudel at the back of the Impala. Mr. Trudel opens the trunk and spends about 20 seconds moving things around, including a wiper fluid container. He is reaching towards the very bottom or back of the trunk. Mr. Trudel walks back to the front of the car and retrieves something from the front seat, using the front passenger door. Mr. Trudel spends at least another 35 seconds putting the bags into the trunk, again reaching far to its back or depths. His cousin assists him for a few seconds, but otherwise stands by the trunk, looking around the surrounding parking lot. Mr. Trudel also looks up and around the parking lot a couple of times.

35The video camera is blocked for about 15 seconds. When Mr. Trudel is seen again, he is closing the trunk. He goes back to the front of the vehicle and again opens the driver’s side door. He has a brief discussion with his cousin, after which he walks around the back of the Impala, removes his sweatshirt, open up the rear passenger door and puts it inside, and gets in the front passenger seat. Guy Trudel gets into the driver’s seat.

36Detective Cory observed Mr. Francoeur buying coffee in the rest stop before returning to the Impala and getting into it using the rear passenger door. This was captured on a second video clip. The Impala then got back onto Hwy 401 westbound.

Activities in Mississauga

37At 13h46, the Impala pulled into the front of the Studio 6 Motel on Brittania Road. Mr. Trudel got out of the car and went into the motel office. Detective Cory observed that, when he exited the office three minutes later, he was holding a piece of paper. Mr. Trudel got back into the front passenger seat of the Impala and his cousin drove around it to the back of the motel. Detective Cory’s observations are consistent with video clip taken during this time.

38The Impala parked at the back of the motel. All three men disembarked from the car. Mr. Trudel retrieved a brown paper bag from the trunk. The three men then went into the motel through the rear door. They re-emerged seven minutes later and got back into the Impala at 13h59, in the same seats they took when they left the Mallorytown rest stop.

39I infer, from the above evidence, that Mr. Trudel paid for a room in the motel and checked in when they arrived there, and that the three men briefly visited the room before leaving again in the Impala. Based on Detective Payment’s evidence, they did not bring anything into the room at the time except for the unknown contents of a brown paper bag carried by Mr. Trudel.

40The Impala was driven to the Square One mall. Mr. Trudel, his cousin, and Mr. Francoeur got out and went inside together. There was no observation that any of the men were carrying anything when they entered the mall. Detective Lehman testified that, if he had observed any of the men carrying a bag into the mall, he would have noted it. When they exited it about 20 minutes later, Detective Renwick observed that Guy Trudel was carrying a black backpack. He placed it in the backseat, then returned to the driver’s seat. Mr. Francoeur again got into the backseat and Mr. Trudel returned to the front passenger seat. The men’s exit from the mall was captured on video. The officers’ testimony is consistent with the video footage.

41The Impala then drove to a liquor store. Mr. Trudel and Mr. Francoeur went inside and exited two minutes later. Detective Binet recalled that one of them was carrying a bag. She described it as a brown paper bag, the size that would fit a single bottle of wine. She recalled green lettering on the bag but not a specific logo.

42At 14h57, the Impala returned to the Studio 6 Motel and parked again in the rear parking lot. Detective Renwick testified that Mr. Trudel got out of the car holding a brown bag. Detective Cory testified that the bag carried by Mr. Trudel at this point was a skinny brown LCBO bag, the type suitable for one bottle. I infer that this was the same LCBO bag seen by Detective Binet when they left the liquor store.

43According to both Detectives Cory and Renwick, Mr. Francoeur got out with the black backpack, which he carried to the rear of the Impala. Detective Renwick testified that he observed Mr. Trudel removing an object from the trunk and putting it in the backpack carried by Mr. Francoeur. He could not see what the object was. Detective Cory observed Mr. Trudel digging deep around in the trunk but did not see him remove anything or place it in the backpack.

44The defence challenged some of Detective Renwick’s evidence. I generally found him to be a credible witness. I accept his evidence that Mr. Trudel removed something from the trunk and put it in the backpack carried by Mr. Francoeur. Detective Renwick testified that he was about 30 yards away from the Impala but was looking through binoculars. Detective Cory said that he had a clear line of sight but was driving slowly through the rear parking lot of the motel while observing Mr. Trudel at this point. This would explain why he was unable to see Mr. Trudel’s actions as clearly as Detective Renwick.

45Mr. Trudel and the other two men then went into the motel, with Mr. Francoeur carrying the backpack.

46At 15h56, Detective Cory observed Mr. Francoeur smoking a cigarette outside the motel’s rear entrance. This was noted on the surveillance report. On videotape, Mr. Francoeur is seen chatting with another unidentified man, who is also smoking and checking his phone. This was not noted on the surveillance report. I do not find that this omission undermines the reliability of the evidence of the surveillance team, as there was nothing suspicious about the interaction.

47In cross-examination, the officers involved in the surveillance admitted that they did not know what Mr. Trudel, his cousin and Mr. Francoeur did while they were inside the motel, whether they remained together, or whether one or more of them may have left the premises through the front door while the officers were watching the rear door. They also admitted that they did not hear anything the men were saying to each other during the surveillance.

48At 17h25, about two and a half hours after they went in, Mr. Trudel, Guy Trudel and Mr. Francoeur exited the motel through its rear door. Detective Payment observed that Mr. Francoeur was carrying what appeared to be the same black backpack that Guy Trudel had been carrying earlier. He said that the bag now appeared to be weighted with some unknown contents. He recalled that Mr. Francoeur was also carrying a paper bag. Although the surveillance report indicates that he described it as an LCBO bag, at trial he said he did not remember this. Mr. Trudel, his cousin, and Mr. Francoeur got back into the Impala, occupying the same seats they had throughout the day.

49The men’s departure from the motel was captured on video. Mr. Francoeur is carrying a black backpack on his shoulder that appears to be the same backpack that Guy Trudel carried out of the Square One Mall and that Mr. Francoeur carried into the motel after Mr. Trudel put something inside it. Based on its shape, it does not appear to be empty. Mr. Francoeur is carrying a paper bag in his left hand. There are no markings visible on the bag seen in the videotape.

The attempted takedown

50The surveillance team followed the Impala as it drove back along Hwy 401, towards Kingston. Detective Renwick, the “road boss” at this stage of the surveillance, decided that, if the Impala stopped in Kingston, the team would attempt to apprehend its occupants. He contacted the Kingston Police for assistance. As a result, Kingston Police officers Scott, Mandigo, Sauve and Parslow positioned their vehicles around the end of exit ramps into the town.

51At 20h51, the Impala left Hwy 401 using the Division Street exit. Members of the Ottawa surveillance team attempted to block it from proceeding further when the Impala reached the stop sign at the end of the ramp, where it intersects Division Street. Detective Renwick’s vehicle stopped in front of the Impala, Detective Cory’s vehicle stopped behind it, Detective Payment’s vehicle stopped alongside the Impala to the left, and Sergeant Curtis’ vehicles stopped alongside it to the right. The officers in the other two Ottawa police vehicles, Detectives Lehman and Binet, stopped further up the ramp to prevent other cars exiting the highway from continuing forward to the intersection.

52Detectives Lehman, Renwick, Cory, and Payment testified that, as soon as they stopped their vehicles, they turned on their flashing red and blue lights. Detective Payment said that they waited until the last second to do this, to retain the element of surprise. Detective Binet stated that she also turned her lights on, but this would have been only after the vehicles around the Impala had done so.

53Two Kingston Police officers also testified that the lights on the unmarked Ottawa police vehicles were on and flashing during the takedown. Detective Scott testified that he was surprised to see these lights because unmarked vehicles used by the Kingston Police are not equipped with them. Detective Sauve, who saw the Impala come off the exit ramp from his vantage point parked about 250 metres to the north, likewise testified that he was surprised to see flashing lights on the OPS vehicles as they blocked the Impala. They both testified that the lights were clearly visible.

54Once the Impala appeared to be blocked, Detective Payment got out of his vehicle. He had put on a police takedown vest while driving down the exit ramp. The vest was black with white letters spelling “POLICE” on the front and back and equipped with a firearm and handcuffs. Detective Payment had his gun drawn and recalled that he was initially holding it in both hands.

55Detective Payment testified that he sprinted around the back of his vehicle and approached the driver’s side of the Impala. He saw that the driver’s side window was a quarter of the way open. He banged on it with the butt of his firearm, which was at that point in his right hand. He did this to get the attention of the people inside the car. He said that he yelled: “Police, stop the car, you’re all under arrest”. He testified that he may have yelled other word but remembers saying these words distinctly. He thought that he reached for the door handle.

56According to Detective Payment, he could see the front seat of the vehicle clearly. Mr. Trudel looked around at him, made eye contact and seemed to be very surprised by his presence. He testified that Mr. Trudel looked like “a deer in the headlights”. Mr. Trudel then motioned with his hands and yelled: “Go, go, go”. Guy Trudel reacted by driving the Impala through a gap between Detective Renwick’s car in front and Sergeant Curtis’ car to the right, and then turning south onto Division Street at high speed. By the time Detective Payment got back into his vehicle, the Impala was far down the street, and he did not attempt to pursue it.

57In cross-examination, defence counsel suggested to Detective Payment that Mr. Trudel might have been putting his hands up and saying “whoa, whoa, whoa” rather than “go, go, go”. Detective Payment rejected this suggestion. Detective Payment’s evidence that the driver’s side window was partially open and that he had a good view into the car was not contradicted. He did not have any doubt about the words and gestures he observed.

58The defence also challenged Detective Payment’s recollection of how long he was standing alongside the Impala before it drove off. During earlier testimony in September 2020, Detective Payment said it was “very very quick; I was there for a second or two, maybe”. Detective Payment said that he may have been describing how long it took for him to make eye contact with Mr. Trudel, not the entire length of time he was standing beside the Impala. He maintained his estimate that 10 to 15 seconds elapsed. Given all of the actions that Detective Payment said he took — running up between the vehicles, banging on the window, yelling, observing Mr. Trudel’s reaction and words, and reaching for the door handle — I accept Detective Payment’s estimate of the time that elapsed. It is not plausible that all of this could have occurred in a second or two. Detective Payment’s estimate is also consistent with the accounts of other officers involved in the takedown.

59There were other instances when Detective Payment acknowledged that he did not remember specific details. For example, he admitted that he did not recall whether there was any street lighting on the exit ramp on October 9, and that it was possible that he told the occupants of the Impala to put their hands up. His candor on these points made his evidence more credible.

60Although the attempted takedown happened quickly and the situation was stressful, I do not doubt Detective Payment’s overall recollection of the event, or his specific recollection of Mr. Trudel’s words and gestures. Although he did not take notes about his observations until a few hours later, I accept his evidence on these issues.

61Detective Cory corroborated most of Detective Payment’s account. He saw Detective Payment get out of his vehicle, which was stopped alongside the left side of the Impala. He pointed his gun towards the Impala and told its occupants that they were being stopped by the police and must get out of their car. Detective Cory said he heard Detective Payment shout because he was himself getting out of his vehicle at the time. Detective Payment then went around the back of his vehicle and approached the driver’s door of the Impala. Detective Cory did not recall that Detective Payment banged on the window before reaching for the door handle. He did, however, recall that Detective Payment was right beside the Impala when it took off.

62Detective Renwick testified that the Impala was able to snake around to the right of his car because he had failed to back up his vehicle sufficiently and Sergeant Curtis’ vehicle had not been able to pull fully alongside the Impala to the right because there was a road sign on the shoulder.

63Every officer involved agreed that the attempted takedown happened very quickly. Detective Cory estimated that 30 to 45 seconds passed from the initiation of the takedown and activation of the vehicles’ police lights, and the moment that the Impala took off. He did not even have time to fully get out of his vehicle before the Impala sped off. Detective Binet was not even sure that her vehicle ever came to a complete stop before the Impala drove off. Detective Payment recalled that no more than 15 seconds elapsed between the time he got out of his vehicle and his yelled instructions to the Impala’s occupants, and that he was only at the driver’s window of the Impala for five to ten seconds before it took off. He agreed that the takedown was intended to take the car’s occupants by surprise, in the interests of safety and preservation of the evidence. Detective Renwick similarly testified that the attempted takedown happened with as little warning as possible.

The pursuit of the Impala

64After evading the takedown, the Impala continued at high speed down Division Street towards downtown Kingston. Detectives Lehman, Renwick and Binet pursued it. They were joined by Kingston Police officers Scott, Mandigo, Sauve and Benoit. Based on the evidence, Detective Scott’s vehicle was the closest behind the Impala. He lost sight of it when he stopped to retrieve objects thrown from it around the top of an overpass going over railway tracks north of John Counter Boulevard. The other officers all gave up the pursuit somewhere north of the train track overpass.

65Detective Scott testified that he had been parked at the bottom of another exit ramp off Hwy 401 just west of the Division Street exit. When the Impala failed to use that exit, he drove onto the highway to join the other unmarked police vehicles tailing it. He exited at Division Street. When he saw that the takedown had failed, he drove onto the left shoulder of the ramp, around the Ottawa police vehicles stopped short of the T-intersection, to continue following the Impala.

66Detective Scott testified that the Impala drove over the curb to the right of the end of the exit ramp, then south down Division Street at about 80 km/hour. He recalled that the Impala ran a red light at the intersection of Division Street and First Canada Avenue. The Impala was initially in the far right-hand lane but moved to the centre lane around this intersection.

67In cross-examination, defence counsel pointed out that, in the notes he took that day, Detective Scott did not record that the Impala ran a red light or that he had to stop at the light before continuing his pursuit. Detective Scott said that he was unaware, when he was making these notes, that Guy Trudel was charged with a driving offence. He focused, in his notes, on the drugs being thrown out of the window, because he understood this was a drug case. He noted that he was not asked, prior to trial, whether the Impala ran a red light or whether he had to slow down on account of a red light. I accept this explanation. I do not find that Detective Scott’s failure to record every one of his observations about the pursuit of the Impala undermines the reliability of his evidence at trial, or that he was reconstructing details after the fact.

68Detective Scott’s estimate of the Impala’s speed is consistent with the Detective Sauve’s evidence. Detective Mandigo, on the other hand, testified that the Impala was going much faster, at least 110 km/hour. I do not accept this estimate. Detective Mandigo gave a significantly lower estimate at the preliminary inquiry. I find that the Impala was going around 80 km/hour. This was still 30 km/hour above the speed limit, according to Detective Scott.

69Detective Scott’s recollection that the Impala ran a red light is consistent with the evidence of Detectives Renwick, Mandigo, Sauve and Benoit. Detective Lehman said something different. He recalled that the Impala went through two red lights as it sped down Division Street. I do not accept this evidence, as it is unsupported by the evidence of any other officer. I also found another aspect of Detective Lehman’s account of the chase lacked credibility. He denied that he ever lost sight of the Impala as it evaded the takedown. I do not believe this, because the defence produced photographic evidence of bushes and trees on the right-hand side of the exit ramp that would have obscured the line of sight from where they were stopped when the Impala took off. This was acknowledged by Detective Binet when she was confronted with these images. Detective Lehman’s refusal to admit this led me to discount his evidence about the takedown generally.

70Detectives Sauve and Mandigo testified that the Impala nearly collided with a truck when it ran the red light. Detective Sauve recalled that he thought there might be a fatality. Detective Mandigo stated that the Impala almost hit a truck that was travelling northbound on Division Street, as the truck was attempting to turn left. Although I rejected Detective Mandigo’s estimate of the Impala’s speed, I accept his evidence on this point as it is consistent with Detective Sauve’s testimony, which I found reliable.

The retrieval of two tubs of crystal methamphetamine

71As the Impala crested the hill over the railway tracks, Detective Scott testified that he saw an arm reach out of the rear window of the Impala with a plastic bag. The bag was caught in the wind, and he saw two objects fall to the ground. As Detective Scott acknowledged at trial, he was more than 200 metres behind the Impala at this point. He had been closer earlier in the chase but had to slow down to go through the red light at First Canada Avenue, to ensure that he did not hit anyone.

72Detective Scott acknowledged in cross-examination that the distance between his vehicle and the Impala may have been greater than he originally suggested. He also admitted that he could not see inside it at any point. There were, however, no other vehicles between his vehicle and the Impala. Detective Scott was directly behind it, as he had moved into the centre lane when the Impala had switched lanes.

73Detective Scott swerved to avoid one of the objects thrown from the Impala. As he did so, he said that his headlights illuminated what he believed were shards of crystal methamphetamine. He said he recognized the distinctive look of the drug because he had served with the Mississauga police for twelve years and had gained significant experience in drug investigations before joining the Kingston Police in 2017. He conceded, however, that he was not absolutely sure what the tubs contained at that point. He saw a second container on the ground with a blue lid as he drove past the vicinity where the objects had been thrown from the Impala.

74Detective Scott parked his car in the parking lot of a store at the corner of Division Street and the next intersecting street, John Counter Boulevard. This was a couple of hundred metres down the road. He ran back up to the top of the overpass to retrieve the items. He was trying to ensure that a car did not drive over them. The Impala continued down Division Street with no police vehicles in pursuit.

75Just north of the crest of the hill, Detective Scott found a plastic tub with a blue lid holding a plastic bag containing about a kilogram of crystal methamphetamine. He found it close to the centre line of the road. The plastic tub was damaged but the drugs inside it had not spilled out because there was tape around the container.

76In cross-examination, Detective Scott conceded that his evidence on a couple of points had changed. At the preliminary inquiry, he admitted that he could not see the skin colour of the person whose arm reached out from the rear window of the Impala. At trial, he said he thought the person was white. In my view, this was a reconstruction rather than an actual memory. As already mentioned, Detective Scott also acknowledged that he had underestimated the distance between his vehicle and the Impala in his testimony at the preliminary inquiry. He was somewhat defensive about this.

77Notwithstanding the concessions that Detective Scott had to make on these two points, his evidence was fundamentally credible. He gave straightforward and detailed accounts of his observations. He generally acknowledged what he did not recall or what he was unable to observe. For example, he admitted that he may have lost sight of the Impala for a second during the October 9 pursuit, when he looked left before pursuing it onto Division Street. He also admitted that he never saw what was happening inside the car.

78Detective Scott was the only officer who saw containers of drugs being thrown from the Impala on October 9, 2018. His testimony that there were no other vehicles between him, and the Impala was uncontradicted. His evidence about seeing an arm reach out of the car was likewise not challenged. The retrieval of two tubs of drugs on the street a minute or two after the Impala drove by supports his account. In fact, at the end of the trial, the defence conceded that the two containers of crystal meth retrieved a few minutes later were ejected from the rear window of the Impala. Detective Scott’s other evidence about events that day — the Impala’s speed during the pursuit down Division Street, its disregard for a red light, the flashing lights on the OPS vehicles, the conduct by Mr. Trudel and his two compatriots just before they were arrested — was plausible, due both to its internal consistency and its consistency with the evidence of other witnesses and the physical evidence.

79After briefly assisting with traffic control, Detective Parslow drove his car south on Division Street at 20h53, about two minutes after the attempted takedown. He did not see the Impala, but he heard on the radio that objects had been thrown from it. When he crested the bridge over the railway tracks, he saw an item in the southbound lane. He stopped, got out, and retrieved a plastic container with a red lid. He brought it back to his vehicle, intending to continue southbound. He drove only a few meters before seeing Detective Scott picking up a second container. He gave him the container he had retrieved. None of Detective Parslow’s account was successfully challenged in cross-examination.

80Detective Scott testified that the two plastic containers that he, and Detective Parslow found were those produced into evidence as exhibits 4A and 4B. He recognized the container with the blue lid, in particular because one of its corners was missing. These containers contained just over two kilograms of crystal methamphetamine. This evidence was unchallenged.

The arrest of the three men and seizure of further evidence

81Presumably by using the tracker on the Impala, the Ottawa Police Services surveillance team located the car within minutes. It was parked in a church parking lot at the north end of Max Jackson Park. No one was inside. On hearing this information, Detectives Mandigo and Scott both drove to Oak Street, which runs parallel to the southern border of the park.

82When he pulled onto Oak Street, Detective Scott saw three men running out of the park and slowing down to a fast walk. They then split up. Two went west on Oak Street but walked on different sides of the street. The third man went down Victoria Street, which runs south from Oak Street. Detective Scott pulled up alongside the third man, who turned out to be Guy Trudel. Detective Scott arrested him for possession of drugs for the purpose of trafficking.

83Detective Mandigo saw two men running along west on Oak Street, one on south side and one on north, and a third man going south on Victoria Street. He radioed to let his colleagues know he had spotted three men. He apprehended Mr. Francoeur and arrested him for possession for the purpose of trafficking. He conceded in cross-examination that he did not know if the three men ran through the park before he spotted them just south of it.

84Sergeant Nesanayagam was not involved in the attempted takedown of the Impala and the pursuit down Division Street. When he learned that the Impala had been located at Max Jackson Park, he drove to Oak Street and pulled up behind Detective Mandigo’s vehicle. He said that he saw an older man “in a full sprint” from the park, in front of his vehicle. This turned out to be Mr. Trudel.

85Sergeant Nesanayagam had his police vest on. He got out of his vehicle and ordered Mr. Trudel to stop. Mr. Trudel continued to run west on Oak Street. Sergeant Nesanayagam chased him on foot, repeatedly shouting “police, stop”. He caught up with him fairly quickly, grabbed his arms, forced him face down on the ground, and handcuffed him. He did a pat-down for weapons. Another Kingston Police officer, Pat Thomassin, arrived and he did a more thorough search. He located cash in Mr. Trudel’s pants pockets and a ziplock bag with white pills.

86Sergeant Nesanayagam was not cross-examined on any of his evidence.

87I find, based on the evidence of Detective Scott and Sergeant Nesanayagam, that Mr. Trudel, his cousin, and Mr. Francoeur ran south through Max Jackson Park after parking the Impala at its north end, and that they then split up.

88Detective Benoit testified that three officers and a police dog searched the area to the west of Division Street, around the railway tracks. This corresponded to the area where the two tubs of crystal meth had been retrieved. No other evidence was found.

89Detectives Binet and Mandigo searched the Impala and seized, among other things, a black and grey backpack on the backseat, empty and unzipped. I find that the backpack found in the Impala is the same backpack that Guy Trudel carried out of the mall earlier that day, that Mr. Francoeur carried in and out of the motel, and into which Mr. Trudel placed something. I make this finding based on the evidence of officers who observed the backpack earlier that day and my own comparison of the backpack produced at trial with the backpack seen on the videotape taken outside the mall in Mississauga and the Studio 6 Motel.

90On arrest, Mr. Trudel was found to have $5,660 in Canadian currency and 15.5 hydromorphone pills in his possession. Neither his cousin nor Mr. Francoeur were found to have large amounts of cash or any drugs.

91The paper bag that Mr. Francoeur carried into the Impala from the Studio motel 6 was not found in the car or in the possession of the three men when they were arrested. This means that, at some point between the time Detective Scott lost sight of the car on Division Street and the arrest, the bag was discarded.

92After assisting with Guy Trudel’s arrest, Detective Cory went to where the Impala was parked. He and Sergeant Curtis then walked south through Max Jackson Park twice. They found a brown LCBO bag along a fence line on the eastern perimeter, about 100 metres from the Impala. According to Detective Cory, the bag contained a scale and small plastic baggies. The bigger bag was rolled shut, so that it could be carried. Detective Cory looked inside the bag but did not search through it before turning it over to Detective Renwick. Based on Detective Renwick’s testimony, the large LCBO bag also contained a smaller LCBO bag, like the type seen by Detectives Binet and Cory earlier that day.

93The Crown has asked me to infer that the bag found by Detective Cory in the park was the same paper bag that Mr. Francoeur was seen carrying out of the motel and into the Impala earlier that day. He or one of the other two men would have had the opportunity to discard it as they ran through the park. I cannot make this inference.

94First of all, there is no way of knowing how long the paper bag found by Detective Cory was in the park before he discovered it. It is a public park that has multiple entrances.

95Second, Detective Payment did not recall that the bag he saw Mr. Francoeur carrying back out to the Impala had any lettering on it. No lettering is visible on the videotape of the three men’s departure from the motel. Detectives Binet and Cory each acknowledged that the smaller LCBO bag inside the bigger bag has a generic appearance, so they do not know if it was the same items they saw the men carrying earlier that day.

96Finally, given that no police officers were following the Impala between the time Detective Scott lost sight of it and the time it was parked at Max Jackson Park, the larger bag that the men were seen carrying earlier that day could have been discarded before they reached the park. If they did so, the Kingston police would not necessarily have found it, because they confined their search for additional physical evidence to the area around the overpass on Division Street and the park.

97For all of these reasons, I cannot infer that the bag found in the park, and the drug paraphernalia inside of it, was discarded by Mr. Trudel and his compatriots as they ran through the park.

Evidence of Sergeant Doug Hill

98Sergeant Doug Hill was qualified as an expert on the use, production, distribution, pricing, trafficking, and packaging of controlled substances; on the practices and habits of drug users and traffickers; and on the proceeds of crime. Sergeant Hill has been a police officer with the Ottawa Police Service for almost 20 years and has been with the Drug Unit since 2009. He has been involved in 499 drug investigations or seizures of controlled substances, including over 20 relating to methamphetamines. He has been qualified as an expert and testified in twelve criminal proceedings since 2013.

99Sergeant Hill described the devastating effect of methamphetamines on those who are addicted to it. He testified that a heavy user of crystal methamphetamine might consume one or two grams per day. In this case, the police seized 2024.7 grams of crystal methamphetamine, which would supply a heavy user for almost three years.

100A kilogram of crystal meth would sell for between $12,000 and $18,000. The price would depend on the source of the drug. Drugs are cheaper at points of entry. Most methamphetamine made outside of Canada comes in at Pearson Airport.

101A street level dealer interacts directly with buyers and typically sells very small quantities. There are mid-level traffickers who supply the street dealers, and then “top tier, wholesale” sellers who supply them. A person purchasing a kilogram of methamphetamine would be considered a wholesale seller. The packaging of the drugs seized in this case, in two separate tubs each weighing about one kilo each, is standard packaging for wholesale methamphetamines.

102Drug dealers typically use cash in their purchases and sales as it avoids tracking through bank records and questions about transactions. Drug sales can occur in a myriad of places and contexts. Those involved are usually concerned about security (the seller wants to make sure that the buyer will not try to steal the drugs or sell him out); and avoiding detection by the police or public. Sergeant Hill testified that drug traffickers may use other means to avoid detection, including evasive manoeuvres to avoid being followed.

103A street level drug sale generally takes seconds or minutes. Wholesale transactions may take longer. A wholesale seller would generally not sell to a stranger. Further vetting might also take place prior to or at the purchase. The parties might negotiate terms, including price and delivery. The product might have to be sampled or tested before the sale takes place.

104Finally, Sergeant Hill expressed the view that the hydromorphone found in Mr. Trudel’s pocket when he was arrested was likely for personal use. He based this opinion on how the pills were packaged, the dosage for each pill, and the fact that one of the pills was cut in half.

105Sergeant Hill’s testimony on the above issues was uncontested. His evidence was clear and cogent, and I have taken it into account in assessing the evidence about Mr. Trudel’s activities and potential explanations for them. I rely on it, in particular, to find that possession of the over two kilograms of methamphetamines is sufficient to establish that the purpose of the possession was for trafficking. The defence concedes this point.

106There was one area of Sergeant Hill’s evidence that I found less helpful. In cross-examination, he was asked whether a single observed incident of a suspected drug transaction could give grounds for an arrest. He stated that it would depend on what was known before the event was observed and what the police actually saw. He went on to say, however, that a single suspected transaction would not give rise to reasonable and probable cause. I found this aspect of his testimony unclear. In any event, the assessment of what can be inferred from evidence of a single suspected drug transaction is the province of the court, not of an expert witness.

Physical evidence and admissions

107The Crown produced into evidence some of the items seized on October 9: the black backpack found in the Impala; the two plastic containers retrieved on Division Street; and the LCBO bag containing scales, plastic baggies and a smaller LCBO bag found in Maxwell Jackson Park. The Crown produced photos of the other physical evidence seized on October 9.

108The defence admitted that the substance in the plastic containers on October 9 was 2024.7 grams of crystal methamphetamine, and that Mr. Trudel had 15.5 hydromorphone pills and $5,660 in cash when he was arrested. It also admitted that Mr. Trudel was accurately identified by surveillance officers and that he was in the front passenger seat of the Impala when he was observed by police on October 9, while Guy Trudel was in the driver’s seat and Mr. Francoeur was in the rear passenger seat.

109The Crown and the defence agreed that there were two identifiable fingerprints found on one of the plastic tubs, but that these fingerprints did not belong to Mr. Trudel, Guy Trudel or Mr. Francoeur.

110The other piece of physical evidence on which the Crown relied were the seven video clips recorded by Detective Renwick during the October 9, 2018, surveillance, and still photographs from those video clips. The defence raised various issues with respect to this evidence. During his cross-examination, defence counsel suggested that Detective Renwick may have failed to produce all relevant video footage. Detective Renwick testified that, whenever his video camera is turned on and then off, this automatically generates a new numbered clip. The clips produced in evidence bear numbers ranging from 469 to 485, which implies a total of 17 video clips. Defence counsel challenged Detective Renwick to explain why, in light of this, he had only disclosed seven clips. He explained that he routinely deletes clips that contain no relevant content, such as clips that were generated when he was testing the camera to make sure that it was in focus, or when he accidentally turned the camcorder on, or when he filmed video of people who were not suspects. Detective Renwick testified that this is common practice, because there is only so much storage space on the camcorder. He has never consulted with a crown attorney about this.

111I accept this explanation as plausible. I generally found Detective Renwick to be a credible witness. The defence did not persuade me, through this line of questioning, that Detective Renwick destroyed any relevant video footage.

112Detective Renwick was also asked why he signed off on the October 9 surveillance report, which listed only four video clips. Detective Renwick stated that he would not have been sure, when he initialed the page, how many clips he had taken. He acknowledged that it would have been better for all of the video clips to be listed in the report, and for him to have corrected the mistake. He denied, however, that his failure to amend the list of video clips before signing the report implies that he has a cavalier attitude more generally to reporting. I do not find that the omission of three of the videos on the list in the report suggests either negligence or some critical oversight. It does not undermine Detective Renwick’s evidence as a whole, nor does it imply that the clips produced were unreliable or incomplete.

WHAT THE CROWN MUST PROVE

113Section 5(2) of the CDSA states that: “No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III, IV or V.” Methamphetamines are a Schedule 1 substance.

114As mentioned at the outset, the defence concedes that the Crown has proved all of the elements of the drug trafficking charge against Mr. Trudel except for constructive possession or party liability for Mr. Francoeur’s possession for the purpose of trafficking.

115Section 4(3) of the Criminal Code sets out the criteria for constructive and joint possession, as follows:

For the purposes of this Act,

(a) a person has anything in possession when he … knowingly (i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

116To establish constructive possession under s. 4(3)(a), the Crown must prove that Mr. Trudel knew about the crystal methamphetamine in the Impala before it was thrown out, and that he had “some measure of control over them”: R. v. Pham, at para. 15.

117In its recent decision in R. v. Choudhury, 2021 ONCA 560, at para. 19, the Ontario Court of Appeal summarized the principles with respect to constructive possession in a prosecution based on circumstantial evidence, as follows:

• Constructive possession is established when an accused does not have physical custody of an object but knowingly has it in the actual possession or custody of another person or has it in any place for their own or another’s use or benefit: Criminal Code, s. 4(3)(a); R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 17; and R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 47.
• Knowledge and control are essential elements of constructive possession, which is established when the Crown proves beyond a reasonable doubt that the accused: (i) has knowledge of the character of the object said to be possessed; (ii) knowingly puts or keeps the object in a particular place, whether or not the place belongs to or is occupied by the accused; and (iii) intends to have the object in the place for the use or benefit of the accused or another person: Morelli, at paras. 15, 17; Lights, at paras. 44, 47.
• Tenancy or occupancy of a place where an object is found does not create a presumption of possession: Lights, at para. 50; R. v. Watson, 2011 ONCA 437, at para. 13; R. v. Lincoln, 2012 ONCA 542, at paras. 2-3; and R. v. Bertucci (2002), 169 C.C.C. (3d) 453 (Ont. C.A.), at para. 18.
• When the Crown relies largely or wholly on circumstantial evidence to establish constructive possession, a conviction can be sustained only if the accused’s knowledge and control of the impugned objects is the only reasonable inference on the facts. The trier of fact must determine whether any other proposed way of looking at the case as a whole is reasonable enough to raise a doubt about the accused’s guilt, when assessed logically and in light of human experience and common sense: see R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 55-56; Lights, at para. 39; and R. v. Stennett, 2021 ONCA 258, at paras. 60-61.

118To establish joint possession under s. 4(3)(b), the Crown must prove that Mr. Trudel knew about the drugs, had a measure of control over them, and agreed that Mr. Francoeur should have them in his possession.

119Section 21(1) of the Code establishes that everyone is party to an offence who:

(a) actually commits it; (b) does or omits to do anything for the purpose of aiding any person to commit it; or (c) abets any person committing it.

120Section 21(2) provides that:

Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

121To prove that Mr. Trudel aided and abetted Mr. Francoeur in drug trafficking under s. 21(1) of the Code, the Crown must prove that Mr. Trudel “had knowledge that the principal intended to commit the offence and … aided and abetted him”; R v Barreau (1991), 9 BCAC 290, cited in R v Rahimi, 2015 SKCA 85, at para. 47; see also R. v. Huard, 2013 ONCA 650, at para. 62-63. A person can be guilty of aiding and abetting drug trafficking by another person even though they are never actually in possession of any drug; Rahimi, at para. 48. The aider must know that the principal intends to commit the crime, even if they do not know precisely how the crime will be committed; R v Briscoe, 2010 SCC 13, [2010] 1 SCR 411 at para. 17. They do not need to share the intent of the principal to commit the offence. They must simply take some action, or omit to take an action, that has the effect of aiding the principal in committing the offence of drug trafficking; Huard, at para. 62.

HAS THE CROWN PROVED ITS CASE?

122The Crown’s theory is that Mr. Trudel, his cousin, and Mr. Francoeur drove from Limoges to Mississauga on October 9, 2018, to purchase two kilograms of crystal methamphetamine for the purpose of trafficking. The purchase took place in a room at the Studio 6 Motel. When the three men left the motel, the methamphetamines were stored in a backpack that the men had purchased earlier that day. Mr. Trudel directed his cousin to evade a police takedown. During the ensuing chase, the men discarded the methamphetamines and drug paraphernalia, which were later recovered by police. Mr. Trudel’s possession of a large amount of cash on arrest is further evidence of his drug trafficking activities.

123The Crown points out that the court does not need to accept every aspect of the Crown’s theory in order to find Mr. Trudel guilty. The Crown relies, in particular, on Mr. Trudel’s control of the Impala’s contents during that day; his rental of a room at the motel in Mississauga; observations that the men were acting in concert; Mr. Trudel’s instruction to his cousin to elude police; his continued efforts to avoid arrest after the tubs were thrown out of the car; and the cash found on his person when he was arrested. The Crown contends that, pursuant to any plausible hypothesis about how the tubs of crystal methamphetamine came to be in the Impala before they were thrown out on October 9, there is no reasonable doubt that Mr. Trudel knew about them and could have prevented them from being transported in the car. According to the Crown, this measure of knowledge and control meets the test for constructive possession. In the alternative, Mr. Trudel must have known that Mr. Francoeur intended to traffic the methamphetamines and he assisted him by transporting Mr. Francoeur, with the drugs, in the Impala.

124Although the Crown argues that the evidence of what occurred on October 9, 2018, is sufficient to establish Mr. Trudel’s guilt, it says that the court may also take into consideration evidence of his earlier activities. It contends that Mr. Trudel and Mr. Francoeur’s observed activities on October 2, 2018 — a trip to Kingston involving short visits to various addresses, counter-surveillance driving and entry for a minute or two into the backseat of the Impala by two individuals in downtown Ottawa — are consistent with a joint drug trafficking venture.

125The defence contends that the inferences that the Crown asks the court to draw are unreasonable. I will deal with some specific arguments it has raised before going further.

Was the police testimony inherently unreliable?

126Defence counsel argued as a general proposition that the testimony of police officers engaged in surveillance could be viewed as inherently unreliable, for two reasons. He pointed out that eyewitness evidence “must always be received with a fair degree of skepticism, even from (and perhaps especially from) professional witnesses”. He furthermore contended that police officers are not neutral parties, because they may reconstruct their recollection of events to make it consistent with their belief that the accused is guilty of the crimes for which he has been arrested.

127I agree that eyewitness evidence, particularly identification evidence, must be treated cautiously. In this case, however, the officers involved in the surveillance made observations that were recorded contemporaneously, through surveillance reports, and near-contemporaneously, in each officer’s notes and investigation action reports. Some of the surveillance was also recorded. Any inconsistency between these contemporaneous records, the videotapes, and the officers’ evidence at trial was presumably highlighted in cross-examination.

128Moreover, because there were at least four officers involved in the surveillance effort at any given time, one witness’ recollection could be tested against the recollection of the others. For example, as already noted, Detective Lehman testified that the Impala ran two red lights after the attempted takedown on October 9. I rejected that evidence, in part because no other officer involved in the pursuit remembered the second red light. I similarly rejected Detective Mandigo’s evidence that the Impala was going 110 km/hour. Even if his evidence on this point had not changed over time, I would have rejected this estimate because it conflicted with the evidence of other officers.

129Finally, as in any case, the eyewitness evidence has been evaluated in light of the physical evidence, such as the battered plastic tub collected off Division Street by Detective Scott, and the backpack found in the Impala.

130I reject the argument that the testimony of police officers is inherently less reliable than that of other witnesses. There is no indication that any of the officers involved in this investigation (with the possible exception of Sergeant Curtis) behaved unprofessionally or in a biased way. They were not perfect witnesses, but then very few people are. The officers were, in my view, generally candid about what they did and did not remember, and they admitted when they may have been mistaken or less than rigorous. For example, when asked about his observations when the three men left the Studio 6 Motel on October 9, Detective Payment acknowledged that he could not remember whether the paper bag that Mr. Francoeur was carrying was an LCBO bag. He went so far as to say that, when he was recorded referring to it as an LCBO bag during the surveillance, this was possibly incorrect, because he could not remember, at this point, whether it had any markings. Detective Scott likewise made appropriate concessions when challenged in cross-examination. Both he, and Detective Renwick, admitted that they made sloppy (albeit trivial) errors in the surveillance reports. Other officers admitted when they could not recall observations recorded on the reports. These are hallmarks of honest, and therefore credible, witnesses.

131Given their role in the investigation, the officers involved would probably prefer that this prosecution result in a conviction. This does mean that I should assume they are willing to fabricate or embellish evidence to achieve that result, or that their recollections are by definition suspect.

Are there critical gaps in the Crown’s case?

132The defence argued that there were two types of fatal gaps in the Crown’s case. The first arose from the Crown’s failure to call the evidence of Mr. Francoeur, Guy Trudel, and the registered owner of the Impala. The second arose from the quality of the surveillance evidence.

133I reject the suggestion that any negative inference should be drawn from the Crown’s failure to call certain witnesses. Defence counsel initially denied that he was making this argument. Later, however, he argued that I should take into account the Crown’s failure to call Guy Trudel to testify as to whether his cousin said “go, go, go” during the attempted takedown.

134It is well-established that “the Crown is under no obligation to call a witness it considers unnecessary to the prosecution’s case”; R. v. Jolivet, 2000 SCC 29, [2000] 1 SCR 751, at paras. 14. In this particular case, the Crown led evidence, through Detective Payment, of his interaction with Mr. Trudel during the takedown. In electing not to call Guy Trudel or Mr. Francoeur as trial witnesses, it took the chance that I would find Detective Payment’s evidence unreliable. The Crown likewise elected not to call the registered owner of the Impala, to clarify the extent of Mr. Trudel’s control over the car. In doing so, it took the chance that I would reject the inference that he was in control of the Impala on October 9, 2018.

135These are strategic decisions that the Crown was entitled to make. The question I must resolve is whether the evidence that it did present was sufficient to meet the Crown’s burden, not whether there is other evidence that either party could have called.

136The defence characterized the police surveillance as short, sporadic, and limited. The surveillance took place over three, non-continuous days, and there were periods when the surveillance team lost sight of the Impala. No evidence of any suspicious activity was noted on one of the three days. Officers could only observe what Mr. Trudel, his cousin and Mr. Francoeur were doing, not what they were saying. No officers observed any drugs, money, drug paraphernalia, or hand to hand transfers.

137These limitations in the evidence do not make it inherently unreliable. They do, however, mean that I must take care in drawing inferences based upon it, and not fill gaps with speculative conclusions.

Does Mr. Trudel’s attempt to avoid arrest give rise to any permissible inference?

138The defence argued that I should not make any inference based on the evidence that Mr. Trudel directed his cousin to evade the attempted takedown on October 9, 2018, the high-speed chase down Division Street, or his flight on foot from the Impala after the methamphetamines were thrown from car. Defence counsel contended that Detective Payment’s account of Mr. Trudel’s words was unreliable and that, even if I concluded otherwise, I could not infer that Mr. Trudel knew about the methamphetamines in the Impala based on this conduct.

139I have already found that Detective Payment’s evidence about the takedown was reliable. Given that Detective Payment was wearing a clearly marked police vest and carrying a gun, given that the driver’s window was partially open and that he shouted that the car’s occupants were under arrest, and given the flashing red and blue lights on the unmarked vehicles surrounding the Impala, I find that Mr. Trudel must have realized that he was about to be placed under arrest. I find that, on realizing this, Mr. Trudel told his cousin to “go, go, go”. This led to the Impala’s flight down Division Street at high speed, during which it went through a red light.

140I further find, based on the evidence of Detectives Scott, Mandigo and Sergeant Nesanayagam, that Mr. Trudel, his cousin and Mr. Francoeur tried to evade identification as the occupants of the Impala by abandoning the car, running through Max Jackson Park, and then splitting up.

141The question is whether any of this conduct is relevant to the issue of Mr. Trudel’s guilt on the trafficking charge. Where an accused’s flight from police is equally consistent with two crimes, it cannot be evidence of the more serious offence: R. v. Arcangioli, 1994 SCC 107, [1994] 1 SCR 129. Mr. Trudel was carrying 15.5 Dilaudid pills and $5,660 in cash when he was arrested. The defence argues that I therefore cannot infer that he was trying to evade police because he knew that there was two kilograms of methamphetamines in the car.

142I agree that Mr. Trudel’s flight from police does not prove that he knew about the drugs in the car. It does not matter that the quantity of Dilaudid in Mr. Trudel’s pocket might not attract a significant penalty. On Detective Payment’s evidence, Mr. Trudel was shocked to realize that there was a police officer at the window of the Impala. His direction to his cousin was, by definition, impulsive. His knowledge that he could be arrested for the Dilaudid is an innocent explanation for this. Although he might have had more time to reflect by the time the Impala reached Max Jackson Park, I likewise cannot infer knowledge of the crystal methamphetamine based on Mr. Trudel’s continued attempt to evade arrest on foot, after the car was abandoned.

143This does not, however, mean that Mr. Trudel’s instruction to his cousin to “go, go, go” during the attempted takedown is irrelevant to issues other than his knowledge that drugs were in the car. It could be relevant to the issue of Mr. Trudel’s control of the drugs, if I conclude on other evidence that he knew about the crystal methamphetamines in the backseat of the Impala before they were thrown out of the car.

Can the court place any weight on evidence of Mr. Trudel’s activities on October 2, 2018?

144The defence argues that the evidence of Mr. Trudel and Mr. Francoeur’s activities on October 2, 2018, can only be used if it establishes a pattern of drug trafficking or a joint drug trafficking enterprise by the two men that continued on October 9, 2018. If I were to simply conclude that Mr. Trudel, alone or with Mr. Francoeur, sold drugs on October 2, that would not be probative to the issue of possession on another day. If I were to rely on that evidence, I would effectively be inferring guilt on the trafficking offence based on a suspicion that Mr. Trudel was involved in a different offence at an earlier date, or that he had a propensity to sell drugs. The defence also takes the position that the evidence of drug sales or drug activity by Mr. Trudel and Mr. Francoeur on October 2 is not as strong as the Crown suggests.

145Some of Mr. Trudel and Mr. Francoeur’s activities are consistent with drug trafficking. Mr. Trudel’s driving manoeuvres in Kingston, and the brief interactions with two individuals in the backseat of the Impala on its return to Ottawa, are particularly suggestive of drug sales. I agree with the defence, however, that the activities do not establish a pattern of drug trafficking over any period of time, or a common drug trafficking enterprise that was continued on October 9.

146The Crown relies on R. v. Pham and R. v. Awad on this issue. They are readily distinguishable. R. v. Awad involved 23 days of surveillance during which the accused was seen “frequently engaged in various activities consistent with drug trafficking, such as short meetings on streets, in public parking lots, or in the parking lot of the garage next to the [accused]’s residence, hand-to-hand transactions, and counter-surveillance manoeuvres”: Awad, at para. 2. This led the trial judge to conclude that the accused was running a large drug operation, a fact relevant to the finding that he was in possession of cocaine found underneath the seat of the car he was occupying when he was arrested. The drug investigation in R. v. Pham was based on the observations of one of the accused’s neighbours, who saw several people approach the accused’s apartment door, money being slipped inside, and baggies containing a white substance being slipped back. Surveillance by police based on the neighbour’s information was conducted over a further ten days, during which time known drug users attended the accused’s apartment. When the apartment was raided, the police found drugs inside. In this context, the evidence of the prior drug transactions was relevant and probative.

147By contrast, based on the evidence in this case, I could at most infer that, prior to October 9, 2018, either Mr. Trudel or Mr. Francoeur, or both, sold an indeterminate amount of an indeterminate drug to two unidentified persons on a single day. Even this would be a questionable inference. But even if I made it, it would not assist me in determining whether Mr. Trudel had knowledge of the crystal meth in the Impala on October 9.

148Once again, however, the evidence arising from the surveillance of Mr. Trudel prior to October 9 is not completely irrelevant. It establishes that Mr. Trudel had the care and control of the maroon Impala on at least three earlier days: September 12, October 1, and October 2, 2018, and it establishes that he and Mr. Francoeur knew each other well enough to take a day trip together out of town.

Based on the evidence as a whole, has the Crown established Mr. Trudel’s knowledge and control?

149The analysis starts with the defence’s concession that the two tubs containing two kilograms of crystal methamphetamines were in the Impala before they were tossed from the rear window of the car during the high-speed chase on October 9, 2018, and that such a quantity of methamphetamines is only consistent with an intent to traffic. The question therefore is whether Mr. Trudel knew the drugs were in the car before they were thrown out, and whether he exercised a measure of control over them.

150In order to determine whether Mr. Trudel knew about the drugs in the car prior to this moment, it is useful to start by asking when they were brought into the car.

151There are two possible scenarios. Either the crystal methamphetamine was in the car from the time the Impala left Limoges to drive to Mississauga, or the drugs were brought into the car at some point during the trip.

152In the first scenario, I do not find it plausible that Mr. Trudel was unaware of the drugs. This scenario presumes that the drugs remained in the Impala when it was stopped at the Mallorytown rest stop, because Mr. Francoeur was not carrying anything with him when he went inside to buy coffee. If he had surreptitiously brought drugs worth between $24,000 and $36,000 with him on the trip to Mississauga and did not want Mr. Trudel or his cousin to know about them, he would not have left them unattended in the car. Based on the evidence that I have accepted as reliable, Mr. Trudel would very likely have seen them had he done so. The drugs were in two plastic containers measuring 9” by 6” by 3”, with coloured lids. Mr. Trudel had unfettered access to every part of the Impala. During his time at the rest stop, he entered into or looked into the car from each of the front doors and the rear passenger door. He transferred something that was in the front seat to the trunk, spending over a minute in total, moving things around in the trunk and digging into its depths. This unfettered access and control of the contents of the Impala makes it unreasonable to infer that the drugs were in the car but undiscovered by him.

153This leaves the second scenario, whereby the two kilograms of crystal methamphetamines were acquired sometime later that day and brought into the car. The Impala was under surveillance whenever it halted from the time it left the Mallorytown rest stop. None of the men was observed carrying anything into the car when they got back into it after exiting the Studio 6 Motel for the first time, just after they checked in. Guy Trudel was carrying a black backpack when they left the Square One Mall twenty minutes after going inside. Based on the evidence of Sergeant Hill and common sense, it is implausible that the purchase of a large and valuable quantity of drugs was negotiated during the three men’s brief visit to the mall.

154This leaves as the only possibility that, if the drugs were not in the car from the very beginning, they were brought into the car by Mr. Francoeur when he, and the other two men, checked out of the Studio 6 Motel at 17h25. Based on the videotape of him when left the hotel, the contents of the paper bag he was carrying were not bulky or heavy enough to contain two plastic containers of drugs. This means that the drugs must have been in the black backpack, which did appear to be weighted down when Mr. Francoeur was carrying it out of the motel, as Detective Renwick testified.

155The question I must then ask is as follows: based on the totality of the relevant evidence, is there any reasonable possibility that Mr. Trudel did not know about the drugs in the backpack?

156The defence pointed out that the surveillance team did not accompany the men into the motel. Defence counsel therefore argued that we cannot be absolutely certain that Mr. Francoeur remained with Mr. Trudel and his cousin during the two and a half hours they remained in the motel. He could have been in another room acquiring the drugs, or he could have left the motel altogether through the front door. The defence argues that these potential scenarios give rise to the possibility that Mr. Francoeur came into possession of the two tubs of crystal methamphetamines and carried them into the car, all without Mr. Trudel's knowledge.

157Based on the evidence as a whole, this scenario is hypothetically possible but implausible.

158Mr. Trudel, his cousin, and Mr. Francoeur appeared to be acting in concert on the trip to Mississauga. The earlier surveillance establishes that Mr. Trudel and Mr. Francoeur knew each other well enough to take a day trip to Kingston and Ottawa together. The three men made the five-and-a-half hour drive together from Limoges to Mississauga. They went together to the mall to acquire then backpack, and then visited a LCBO together. They entered and exited the motel together, twice. They got back into the Impala together for another long drive back towards Kingston. All of this is consistent with a common venture or a common purpose.

159Mr. Trudel had a lead role in the venture in several ways.

160Mr. Trudel exercised control over the contents of the Impala in a way that the other two men did not. While Mr. Francoeur was inside buying coffee at the rest stop, Mr. Trudel rearranged items in the trunk, reaching deep into it, and moved things from the interior of the car to the trunk. He retrieved two plastic bags from the front seat, and then spent considerable time storing them in the trunk. I infer, from the testimony of the officers who saw him doing this and the videotape taken at the time, that Mr. Trudel was attempting to conceal something in the trunk. He paused and looked around the parking lot as he did this. I do not infer a sinister intent from any of this. I do, however, infer that Mr. Trudel was exercising control over access to the contents of the car. Mr. Trudel dug deep inside the trunk again before the men entered the Studio 6 Motel for a second time. Neither of the other two men were rummaging in the trunk or the body of the Impala or moving things around within it at any point that day.

161Mr. Trudel also controlled what the men brought into the motel room. He carried a paper bag that he retrieved from the trunk of the car when the three men went inside for the first time. When they returned to the motel later that afternoon, he carried a small LCBO bag inside. As just mentioned, he also transferred an object from inside the trunk of the Impala to the backpack before Mr. Francoeur carried it inside. Neither of the other two men carried anything inside the motel, or at least nothing larger than what was in their pockets or in the backpack, the contents of which were visible to Mr. Trudel when he put an object inside it.

162Mr. Trudel had a unique role in other ways. Although he was not driving the Impala after it left Mallorytown, he had driven it on three previous days over the preceding month. He went into the motel office alone to check in.

163The backpack was not in the exclusive possession of any one of the three men before it was brought into the motel just before 15h00. Guy Trudel carried it when the men left the mall. Mr. Francoeur carried it from the Impala into the motel. Mr. Trudel was never seen carrying it, but he put something inside it.

164As stated in Villaroman, at para. 42: “Circumstantial evidence does not have to totally exclude other conceivable inferences. The trier of fact should not act on alternative interpretations that it considers to be unreasonable. Alternative inferences must be reasonable, not just possible”.

165On the totality of the evidence, it defies reasonableness and common sense to suppose that, without revealing to Mr. Trudel what he was doing, Mr. Francoeur:

• separated from Mr. Trudel and his cousin for the first and only time that day once they were inside the motel, providing them with some pretext for doing so while keeping the backpack they had just acquired together;
• either met up with someone who had a room there, rented his own room for a meeting, or got transportation from the front of the motel to another secure location;
• independently purchased two kilograms of crystal methamphetamine using $24,000 to $36,000 in cash or equivalent consideration that he somehow carried on his person unseen into the motel; and
• stored the drugs in the backpack without Mr. Trudel or his cousin asking about its contents after they met back up, allowing him to surreptitiously bring them into the Impala.

166This hypothesis is the kind of fanciful conjecture rejected in Villaroman. The evidence as a whole, when assessed logically and in light of human experience and common sense, does not give rise to any reasonable doubt that Mr. Trudel knew about the two containers of crystal methamphetamine that Mr. Francoeur carried into the Impala at 17h25 on October 9, 2018.

167It is similarly implausible to believe that Mr. Trudel did not either make the decision to transport the methamphetamines, or consent to let Mr. Francoeur transport them in the Impala. Mr. Francoeur was never observed driving the car or exercising access to the trunk or front seat. Mr. Trudel had the exclusive operation of the Impala on previous occasions when he was observed driving it, including two days when he drove around with Mr. Francoeur. Guy Trudel was in the driver’s seat when it left the Mallorytown rest stop on October 9, but it was Mr. Trudel alone who exercised access to every part of the interior of the Impala, and control over what objects remained in it and how they were stored within the vehicle.

168If there were any lingering doubt about Mr. Trudel’s control of the car, it was dispelled by his instruction to his cousin to evade the police takedown, and his cousin’s immediate compliance with this instruction, with the risk of a serious car accident and injury during the ensuing high-speed chase.

169I conclude that the only reasonable inference, on the whole of the evidence, is that Mr. Trudel had the ability to direct what would happen to the Impala and its contents. As a result, he had control over the drugs so long as they were stored inside of it.

170On the totality of the evidence, I find that the Crown has proved, beyond any reasonable doubt, that Mr. Trudel was in possession or joint possession, with Mr. Francoeur, of the two kilograms of crystal methamphetamine that was thrown from the Impala on October 9, 2018.

DISPOSITION

171Mr. Trudel, please stand.

172I find you guilty of the charges of trafficking of a controlled substance, crystal methamphetamine, contrary to s. 5(2) of the Controlled Drugs and Substances Act; possession of a controlled substance, hydromorphone, contrary to s. 4(1) of the CDSA; and possession of proceeds of trafficking, contrary to s.354(1)(a) of the Criminal Code.

Justice Sally Gomery

Released: March 30, 2022

Footnotes

1To avoid confusion, I will refer only to the accused Jacques Trudel as “Mr. Trudel”. I will refer to Guy Trudel using his full name or identify him as Mr.Trudel’s cousin.

2Neil Mandigo has since left the Kingston Police. I will nonetheless refer to him as “Detective Mandigo” in these reasons since that was his rank in October 2018.