COURT FILE NO.: CR-21-90000577-0000
DATE: 20220912
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
DAVID FRANCIS
Jennifer Lynch, for the Crown
Christian Steuart, for Mr. Francis
HEARD: April 19, 20, 22, 25, 26 & 28, June 6, and August 15, 2022
Garton J.
REASONS FOR JUDGMENT
[1] David Francis, age 48, is charged with the following offences:
i) Possession of crack cocaine, contrary to s. 4(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”) (Count 1);
ii) Possession of the proceeds of crime, contrary to s. 354(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”) (Count 2);
iii) Possession of crack cocaine for the purpose of trafficking, contrary to s. 5(2) of the CDSA (Count 3); and
iv) Possession of fentanyl for the purpose of trafficking, contrary to s. 5(2) of the CDSA (Count 4).
[2] The charges arose from the execution of a search warrant on July 20, 2020, at 25 Rathburn Road, which is a detached house in Etobicoke. The warrant also authorized the search of Mr. Francis’ vehicle – a 2006 Infiniti M35 (the “Infiniti”).
[3] Mr. Francis was arrested beside his car in the driveway at 25 Rathburn. During a pat down search, police located a small amount of crack cocaine in the front left pocket of his shorts. A search of the bedroom in the basement resulted in the seizure of 18.72 grams of crack cocaine, 0.79 grams of fentanyl, two digital scales, and packaging material. These items were in the clothes closet, along with some male clothing. A Louis Vuitton bag containing $4,130 was on the bedroom floor. Mr. Francis’ wallet, which contained seven $100 bills, was on a desk in the bedroom. Two items of mail, which were addressed to David D. Francis at 25 Rathburn Road, were also on the desk.
[4] Two people were in the house at the time of the search: Michael Sardella, who occupied one of the two bedrooms on the main floor, and Andrea Fidani, who occupied the other bedroom.
[5] The only drugs found in the house during the search were the drugs in the basement bedroom, where Mr. Francis’ wallet and mail were located. No drugs were found in the Infiniti.
[6] The main issue in this case is whether the Crown has proved the element of possession of the drugs beyond a reasonable doubt. It is well established that the law of possession requires proof of knowledge of the substance in question, as the mens rea of the offence, and control of the substance in question as the actus reus: see R. v. Beaver (1957), 1957 CanLII 14 (SCC), 118 C.C.C. 129 (S.C.C.); R. v. Terrence (1983), 1983 CanLII 51 (SCC), 4 C.C.C. (3d) 193 (S.C.C.).
[7] The position of the Crown is that Mr. Francis occupied the basement bedroom, where he kept or “stashed” crack cocaine and fentanyl for the purpose of trafficking. Crown counsel, Ms. Lynch, alleges that the money in the bag on the floor and the $700 in Mr. Francis’ wallet were the proceeds from his drug trafficking. She also alleges that at the time of his arrest, Mr. Francis was heading out to sell the crack cocaine in his pocket, and that the source of that drug was the crack cocaine in the closet of the basement bedroom.
[8] The Crown relies on circumstantial evidence to prove its case. Thus, the Crown must demonstrate that Mr. Francis’ possession of the drugs and money is the only reasonable inference available on the totality of the evidence: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55. Ms. Lynch submits that the cumulative effect of all the evidence is such that the Crown has met its burden and established beyond a reasonable doubt that Mr. Francis was in possession of the drugs and money in the basement bedroom.
[9] Counsel for Mr. Francis, Mr. Steuart, submits that there are other reasonable inferences that can be drawn from the evidence besides Mr. Francis’ possession of the contraband. Consequently, the Crown has failed to prove its case beyond a reasonable doubt. He submits, for example, that other people who may have had access to the bedroom, including the two “found-ins,” Mr. Sardella and Ms. Fidani, could have placed the drugs in the basement bedroom closet without Mr. Francis’ knowledge. He submits that another reasonable inference is that Mr. Sardella and Ms. Fidani, after seeing or hearing Mr. Francis’ arrest in the driveway and before the police entered the house to execute the warrant, could have quickly planted the drugs in the closet in order to implicate Mr. Francis and deflect suspicion of criminal activity away from themselves. Although Mr. Steuart acknowledged that there is a reasonable inference that Mr. Francis was occupying the basement bedroom on June 19-20, he submits that the evidence does not establish that he was a permanent resident: It is not known for how long he had occupied it prior to that date or for what duration he intended to occupy it.
[10] Should this court find that Mr. Francis was in possession of the crack cocaine and fentanyl in the closet, there is an issue as to whether his possession was for the purpose of trafficking. Mr. Steuart made no submissions with respect to this issue regarding the 18.72 grams of crack cocaine. However, he submits that the Crown has failed to establish that Mr. Francis’ possession of the fentanyl was for the purpose of trafficking, particularly in light of the small amount of the drug that was recovered.
The Evidence
[11] The Crown called as witnesses three police officers from the Toronto Drug Squad (“TDS”):
i) Sergeant Brian Nishikawa, who took custody of Mr. Francis following his arrest by officers from the Emergency Task Force (“ETF”);
ii) Sergeant Brandon Greaves, who searched the basement bedroom and seized the drugs, money, and other items found in that room; and
iii) Detective Matthew Greav, who was qualified as an expert witness regarding street-level distribution and the sale of crack cocaine and fentanyl. He opined on the issue as to whether the possession of the drugs was for the purpose of trafficking.
[12] No evidence was called on behalf of Mr. Francis.
Testimony of Sergeant Nishikawa
[13] The police obtained the search warrant for the Infiniti and 25 Rathburn Road on June 19, 2020, at 9:00 p.m.
[14] At 9:30 p.m., Sgt. Nishikawa attended a briefing in regard to the execution of the warrant. ETF officers were to conduct the initial execution of the warrant, followed by members of the TDS, which included Sgt. Nishikawa himself, Sgt. Greaves, and Detective Constables Joshi, Bhogal, and Morse.
[15] At 10:40 p.m., the TDS officers were set up to conduct surveillance on the house. There were no vehicles parked in the driveway at that time.
[16] At 10:51 p.m., Sgt. Nishikawa saw the Infiniti heading west on Rathburn before pulling into the driveway at 25 Rathburn. A large male exited the vehicle and walked to the west side of the house. Sergeant Nishikawa believed that this person was Mr. Francis, based on information he had received that Mr. Francis drove the Infiniti, and that he was six feet two inches tall with a heavy build. Following Mr. Francis’ arrest, Sgt. Nishikawa estimated Mr. Francis’ weight at 250 pounds. Identity is not in issue in this case.
[17] Six minutes later, at 10:57 p.m., Sgt. Nishikawa saw Mr. Francis walk back to his car and drive east on Rathburn. Sergeant Nishikawa did not follow him and remained at his observation post.
[18] Seven minutes later, at 11:04 p.m., the Infiniti returned to the driveway at 25 Rathburn Road. Mr. Francis exited the vehicle and again walked to the west side of the house.
[19] Sergeant Nishikawa testified that at 12:44 a.m. on June 20, the ETF officers moved in on the house and executed the warrant. Mr. Francis, who was beside the Infiniti at the time, was ordered to the ground and handcuffed by ETF officers.
[20] Sergeant Nishikawa reached the scene of the arrest within 20 seconds. He took custody of Mr. Francis and told him that he was under arrest for possession of a Schedule I drug for the purpose of trafficking. During a pat down search, Sgt. Nishikawa located a small piece of crack cocaine in the front left pocket of Mr. Francis’ shorts. He described the drug, which was later found to weigh 0.61 grams, as hard and about the size of a dime. It was in a clear ripped plastic bag. Sergeant Nishikawa advised Mr. Francis that he was also under arrest for simple possession of cocaine and then read him his rights to counsel.
[21] Sergeant Nishikawa waited for the ETF officers to clear the house, which took less than 10 minutes, and then took Mr. Francis into the living room to await the arrival of uniformed officers, who were to transport Mr. Francis to 11 Division. The two “found-ins” – Mr. Sardella and Ms. Fidani – had already been detained and were also in the living room. Sergeant Nishikawa was unaware of their location in the house when the ETF officers breached the back door and entered the home.
[22] After searching the Infiniti, with negative results, Sgt. Nishikawa searched the washroom and the two bedrooms on the main floor. The results of these searches were also negative. No drugs were seized.
[23] During his search of the two main-floor bedrooms, Sgt. Nishikawa completely emptied the clothes closets. He also searched under the beds and mattresses. He testified that both bedrooms were full of items and looked as though they were “lived in.” One of the bedrooms contained female clothing. Sergeant Nishikawa concluded that this room belonged to Ms. Fidani. The other bedroom contained male clothing and a lot of sports memorabilia. Sergeant Nishikawa recalled discussing the collection of memorabilia with Mr. Sardella. He concluded that this was Mr. Sardella’s bedroom and that the collection belonged to him.
Testimony of Sergeant Greaves
[24] Sergeant Greaves approached the scene as Sgt. Nishikawa took custody of Mr. Francis from the ETF officers in the driveway. Mr. Francis was standing beside the driver’s door of the Infiniti. Sergeant Greaves stood by until 12:51 a.m., when ETF officers told him that they had finished clearing the house. He then entered the residence through the back door and went down the stairs to the basement.
[25] Sergeant Greaves described an open area as he entered the basement. The only furniture in that space that he could recall was a couch and television. The first rooms that he searched were the bedroom and bathroom, which were on the west side of the basement.
[26] Sergeant Greaves believed that the door to the bedroom was open, as the ETF officers would have opened all the doors. He did not recall if there was a lock on the door.
[27] The furniture in the bedroom consisted of an air mattress, a desk, which was in a corner, and a table that was against a wall. Sergeant Greaves initially testified that the air mattress was on the floor, but later recalled that it was leaning against the wall. He explained that it may have been on the floor when he entered the room and that he stood it upright in order to search underneath it. It was his normal practice to flip up a mattress during the course of a search. He also testified that ETF officers may have leaned the mattress against the wall when they were clearing the house.
[28] On the floor near the mattress was a Louis Vuitton bag containing $4,130 in Canadian currency. The money, which Sgt. Greaves counted later on at the police station, consisted of the following denominations:
i) 10 $100 bills;
ii) 42 $50 bills;
iii) 46 $20 bills; and
iv) 11 $10 bills.
[29] There were no other items in this bag.
[30] Mr. Francis’ wallet, which was on the desk, contained $700, consisting of seven $100 dollar bills. The wallet also contained identification documents in Mr. Francis’ name, including his driver’s licence, Health Card, a Bank of Montreal card, an Esso Extra Privileges card, a Petro Canada card, and several other cards.
[31] Two pieces of mail from Toronto Employment & Social Services were also on the desk. Both envelopes were addressed to “David D. Francis” at 25 Rathburn Road, Etobicoke.
[32] Sergeant Greaves testified that there were various items of clothing strewn on the bedroom floor. There were several phones, a lap top, a slipper, and a bag containing noodles and other food. There was also a large duffel bag that contained a lot of clothing.
[33] The door to the clothes closet was open when Sgt. Greaves entered the bedroom. He did not recall if there was a lock on the closet door. The lower half of the closet contained a rod for hanging clothes. Male clothes, including collared shirts, were hanging from the rod. Sergeant Greaves did not check the size of the shirts, but testified that they would fit a man larger than himself.
[34] All the drugs that Sgt. Greaves located in the bedroom were on the shelf above the rod for hanging clothes. A large white chunk of crack cocaine, weighing 13.65 grams, was in plain view. The chunk was not in a bag or any packaging material. There were two digital scales to the right of it. Further to the right were two boxes of sandwich bags and a box of latex gloves: See photographs, exhibits 9(a) and (k).
[35] Sergeant Greaves testified that a red Solo cup was also on the shelf and to the left of the large chunk of crack cocaine. The cup is not visible in exhibit 9(a) as it was outside the frame of the photograph. Sergeant Greaves testified that he only realized that the cup contained drugs after he picked it up. He then put it back down on the shelf, but placed it where one of the scales had been. He explained that he had moved the scales and large chunk of crack cocaine after photographing them. He then put the cup on its side and photographed it: See exhibits 9(f) and (g). Inside the cup was a plastic bag containing smaller chunks of crack cocaine which, in total, weighed 5.07 grams. The bag was tied at the top. Later on, when Sgt. Greaves was processing the drug exhibits at the police station, he realized that the plastic bag containing the crack cocaine also contained small purple crumbs of fentanyl, which weighed 0.79 grams. The fentanyl was in its own plastic bag, which was open or untied at the top.
[36] The total weight of the crack cocaine in the closet was 18.72 grams.
[37] Sergeant Greaves did not find any keys in the bedroom. He did not recall seeing any photographs or memorabilia in the room. He agreed that given the fact that he could not recall if there was a lock on the bedroom door or the closet door, anyone in the house could potentially have accessed the closet. He testified that the kitchen on the main floor backs onto the corridor leading to the stairs to the basement. He agreed that it would take only a few seconds for a person to go down the stairs and into the basement bedroom.
[38] After completing his search of the bedroom, Sgt. Greaves searched the rest of the basement. He did not locate any other drugs.
Testimony of Detective Matthew Serrano
[39] Detective Serrano was qualified as an expert witness regarding the street-level distribution and sale of crack cocaine and fentanyl, including the characteristics, strength and quality of those drugs, methods of use, practices and habits, chains of distribution and packaging, and the pricing in 2020 of cocaine and fentanyl. Defence counsel conceded that Det. Serrano was qualified to give opinion evidence in these areas.
Crack Cocaine
[40] Detective Serrano testified that crack cocaine, in rock form, is often sold with no packaging. The seller simply chips off a piece of the drug from a larger piece. A seller may also place a piece of crack into anything that happens to be handy, such as a napkin. However, crack cocaine, when sold in quantities greater than an eighth of an ounce, is usually packaged.
[41] Crack cocaine is usually consumed by using a pipe and smoking it. The drug is melted and then inhaled. An average or consistent user could consume one to two grams of crack cocaine per day. A very heavy user could use as much as three grams daily. A user could potentially consume a greater quantity depending on the purity of the drug: Detective Serrano explained that crack cocaine is “dirtier” or less pure than powder cocaine.
Pricing for Crack Cocaine in 2020
[42] In terms of pricing, Det. Serrano testified that a “20-piece” of crack cocaine, which is supposed to weigh 0.2 grams, costs around $20. However, a buyer would be very lucky to actually get 0.2 grams. A 20-piece usually weighs less than that when sold on the street.
[43] A “40-piece,” which is 0.4 grams, sells for $30 to $50. Again, a buyer normally gets less than 0.4 grams when buying at the street level.
[44] The next level up in terms of pricing is the gram level. One gram of crack cocaine would sell for $80 to $100.
[45] An “8-ball,” which is an eighth of an ounce, would sell for $180 to $220 on the street. Its weight could vary from 1.75 to 3.5 grams.
[46] The most common quantities of crack cocaine sold on the street are the 20-piece, the 40-piece, and the 8-ball.
[47] The price range for a quarter of an ounce of crack cocaine (seven grams) is $420 to $470. Half an ounce (14 grams) would sell for $600 to $800. An ounce would sell for $1,300 to $1,600. The price for half a kilogram would be $22,000 to $27,000.
[48] Detective Serrano estimated the value of 18.72 grams of crack cocaine at $900 to $1,100. He arrived at these figures based on the dealer doing five sales at the 8-ball level. He testified that a dealer would likely prefer to sell at that level rather than selling smaller quantities, which would require a greater number of transactions, thereby increasing the risk of attracting the attention of the police.
[49] Detective Serrano testified that the amount of crack cocaine in this case – 18.72 grams – is higher than what is normally found for personal use. He had never seen that quantity of crack cocaine where it was intended for straight personal use, but acknowledged that such a scenario was not impossible. A consistent user of crack cocaine, who was consuming one to two grams per day, could go through 19 grams in a week and a half. However, the biggest factor in terms of how much crack a user will buy is their finances. Detective Serrano testified that he has dealt with users who say that they would smoke as much of the drug as possible but lack the funds to buy it in large quantities.
[50] Detective Serrano testified that breaking off a piece of crack cocaine from a bigger chunk of the drug would not necessarily leave much residue on a shelf or digital scale.
[51] Detective Serrano testified that dealers are concerned about avoiding detection not only from the police but also from competitors. Their main method to avoid detection is to have a clientele that they trust. They will also deal from certain locations, usually not their home. A dealer does not want clients to know where they keep their drugs for fear that they might give this information to their competitors or the police, or help themselves to the drugs. Break and enters are not uncommon at the street level. Nevertheless, street-level dealers vary a great deal in terms of how well they hide their inventory. Some leave it in the open or just carry it on them. Others hide it very well. A smart dealer who is living in a rooming house or group-living situation would be wise to hide their drugs so that no one steals them.
Fentanyl
[52] Fentanyl may be in a powder or rock form, and comes in many different colours. A dealer may dye their fentanyl a certain colour in an effort to establish their own trademark.
[53] Users may smoke or inject fentanyl. Some simply put the powder in their mouth or snort it. The amount of fentanyl consumed by an average user on a daily basis depends heavily on its purity. Users tend not to carry too much fentanyl on them because it is a very dangerous drug.
[54] Detective Serrano testified that a heavy user may consume about 1.5 grams of fentanyl per day. Some users have indicated that they smoke an 8-ball daily. However, in those cases, the purity of the drug is described as “awful.” Users on the street consume about 0.5 to 1 gram daily. In most instances, they are prevented from buying more because of their limited finances.
Chain of Distribution for Fentanyl
[55] Detective Serrano testified that the chain of distribution for fentanyl is similar to that of cocaine. He has dealt with dealers selling 10 kilograms of fentanyl at a time. He has also dealt with dealers selling less than half a gram. The quantities sold on the street vary from 0.2 to 1.5 grams.
[56] Fentanyl is sold by the “point.” A point is 0.1 grams, which would cost $20. However, 0.5 grams or 5 points sells for $60 to $80. One gram would sell for $180 to $220.
[57] When asked what 0.79 grams of fentanyl would sell for, Det. Serrano stated that this amount could easily be “stretched” or broken down into two sales, each for half a gram, based on the fact that buyers of half a gram of fentanyl at the street level usually get less than 0.5 grams. The 0.79 grams could also be “bulked up” to a gram by adding cocaine. Thus, 0.79 grams of fentanyl could probably be sold for somewhere between $120 to $160. Detective Serrano testified that it would make sense to sell the fentanyl in two “half-gram” transactions, as opposed to eight sales of 0.1 grams because the greater the number of sales, the greater the risk of attracting the attention of the police or competitors.
[58] Dealers often use Ziploc bags to package fentanyl in rock form. Powder fentanyl may be packaged in aluminum foil or Proline lottery tickets, which many dealers pick up for free at convenience stores.
[59] Detective Serrano testified that the presence of cash in close proximity to crack cocaine and/or fentanyl is of some significance, as the main method of payment for all drugs at the street level is cash. A high amount of cash and a low amount of narcotics may indicate that the seller has sold most of their supply and is about to buy more. On the other hand, a large amount of narcotics and a small amount of cash indicates that the seller may have just “re-supplied” themselves with drugs and has not yet made many sales.
[60] Detective Serrano was questioned as to what significance he would place on the presence of a digital scale in close proximity to crack cocaine and fentanyl. He testified that the presence of a scale is a good indicator that the drugs are going to be sold. It is a “great tool” for dealers as they are able to determine the exact weight of their supply and the amounts that they are selling. It is very rare to see a user with a scale. In the approximately 500 drug investigations in which he has been involved, Detective Serrano has never seen a user with a scale.
[61] Detective Serrano testified that the presence of multiple types of drugs in the same location is another sign of trafficking. He added, however, that it does not necessarily mean that all of the drugs are for sale. It is possible that the seller may be addicted to one of the drugs and is selling the other drug or drugs to support their habit. For example, a dealer could be selling crack cocaine in order to support an addiction to fentanyl. On the other hand, a lot of dealers keep a range of different drugs in order to meet their customers’ needs.
[62] Detective Serrano testified that an addicted trafficker may also sell a drug in order to support their addiction to the same drug. For example, the addicted trafficker may sell crack cocaine in order to support their addiction to crack cocaine. This is not an uncommon scenario at the street level.
[63] Detective Serrano testified that Ziploc bags may be used to package fentanyl. They are also used to package larger amounts of crack cocaine.
[64] When asked about the significance of the presence of latex gloves in close proximity to crack cocaine and fentanyl, Det. Serrano testified that fentanyl is significantly more potent than heroin or morphine and, depending on the form that it is in, is extremely dangerous. The only drug on the street that is more potent is carfentanil. Therefore, as a safety precaution, police officers always use gloves in handling exhibits containing fentanyl. He added that users are not too concerned about contamination from fentanyl because they are actually consuming it.
[65] Crown counsel asked Det. Serrano for his opinion based on a hypothetical scenario in which he found the following items: i)18.72 grams of crack cocaine along with 0.79 grams of fentanyl; ii) two digital scales; iii) Ziploc bags; and iv) approximately $5,000 in cash. Detective Serrano testified that in his opinion, possession of the crack cocaine would be for the purpose of trafficking. If the fentanyl were by itself, it is likely that it was intended for personal use, especially if the person in possession of it was an addict. He testified that 0.79 grams of fentanyl could be consumed by a heavy user in one day. The same amount would represent a two-day supply for a consistent user. However, taking into account the presence of the crack cocaine, the scales, the money, and the packaging, Det. Serrano was of the view that the fentanyl was intended to be sold.
[66] In cross-examination, Det. Serrano testified that even if the two scales, the money, and the packaging were taken out of the equation, he would “still lean” toward the conclusion that the fentanyl was intended to be sold because of the amount of crack cocaine that was with it. The cross-examination continued:
Q. Okay. Because of the amount of crack cocaine?
A. Correct.
Q. Yeah.
A. Again, if you just – if this was just about fentanyl, I would say no, this is more – this would be personal use, but in conjunction with the crack cocaine.
Q. Okay, but it’s also not inconsistent with the fentanyl being for personal use?
A. No.
Q. Yeah.
A. It could be –
Q. Yeah.
A. – just personal use.
Q. It could be either, really?
A. Correct.
[67] When asked if there was any significance to the fact that the fentanyl was in the same bag as the smaller chunks of crack cocaine, all of which were in the Solo cup, Det. Serrano stated that the size of the chunks of crack cocaine could indicate the level (on the chain of distribution) of the dealer: “Maybe that’s for packing, maybe that’s how they’re going to sell it.” Dealers will sometimes just hand a buyer a cup containing the crack cocaine because that action, to an outside observer, does not look suspicious.
[68] As for the fentanyl in the cup, Det. Serrano testified that it could be for personal use, adding that he did not know the “history of the individual.” He continued:
It’s also possible that it (the fentanyl) could have been for sale and maybe [the dealer was] at the end of their supply of the fentanyl. Or maybe one of the users is asking for both (referring to the crack cocaine and fentanyl). … But it’s also the low amount of it. It could just be personal if they’re feeding their addiction, depending on the level of the dealer.
Analysis and Findings
[69] Section 4(3) of the Criminal Code, as explained by the Court of Appeal in R. v. Pham, 2005 CanLII 44671, 203 C.C.C. (3d) 326, at para. 14; aff’d. 2006 SCC 26, [2006] 1 S.C.R. 940, creates three types of possession:
(i) personal possession as outlined in s. 4(3)(a);
(ii) constructive possession as set out in s. 4(3)(a)(i) and s. 4(3)(a)(ii); and
(iii) joint possession as defined in s. 4(3)(b).
[70] Knowledge and control are essential elements of all forms of possession: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 15.
Personal Possession (s. 4(3)(a))
[71] On an allegation of personal possession, the requirement of knowledge comprises two elements: First, the accused must be aware that he has physical custody of the thing in question, and second, he must also be aware of what that thing is. Both elements must co-exist with an act of control: Morelli, at para. 16.
[72] In the present case, Mr. Francis was found with 0.61 grams of crack cocaine on his person. The drug, which was in a clear plastic bag, was in the front left pocket of his shorts. Sergeant Nishikawa described it as hard and about the size of a dime. Applying the common sense inference that people are aware of what is in their pockets, I am satisfied that the Crown has established beyond a reasonable doubt that Mr. Francis knew that the plastic bag was in his pocket, that he knew that it contained crack cocaine, and that he had control over the drug. Mr. Francis is accordingly found guilty on Count 1 in the indictment.
Constructive Possession (s. 4(3)(a)(i)); s. 4(3)(a)(ii))
[73] With respect to the allegation that Mr. Francis was in possession of the crack cocaine and fentanyl in the closet for the purpose of trafficking – Counts 3 and 4 in the indictment, respectively – the Crown’s case rests on constructive possession. Constructive possession does not involve an accused having physical custody of the object in question. Constructive possession is established where an accused has the subject matter “in the actual possession or custody of another person” or “in any place, whether or not that place belongs to or is occupied by him, for the benefit of himself or of another person”; s. 4(3)(a) of the Code.
[74] To establish constructive possession, the Crown must prove beyond a reasonable doubt that an accused Morelli, at para. [17]
(i) knows the character of the object;
(ii) knowingly puts or keeps the object in a place; and
(iii) intends to have the object in the place for his own use or benefit or the use or benefit of some other person.
[75] In order to constitute constructive possession, there must be knowledge which extends beyond quiescent knowledge and discloses some measure of control over the item to be possessed: See R. v. Caldwell (1972), 1972 ALTASCAD 33, 7 C.C.C. (2d) 285 (Alberta Supreme Court, Appellate Division); R. v. Grey (1996), 28 O.R. (3d) 412 (C.A.).
[76] As with other offences, the Crown may prove the essential elements of constructive possession by direct evidence, by circumstantial evidence, or by a combination of direct and circumstantial evidence. In terms of the element of knowledge, the Court of Appeal in Pham, at para. 17, referred to the decision of Watt J. (as he then was) in R. v. Sparling, [1988] O.J. No. 07 (Ont. H.C.) at p.6:
There is no direct evidence of the applicant’s knowledge of the presence of narcotics in the residence. It is not essential that there be such evidence for as with any other issue of fact in a criminal proceeding, it may be established by circumstantial evidence. In combination, the finding of narcotics in plain view in the common areas of the residence, the presence of a scale in a bedroom apparently occupied by the applicant, and the applicant’s apparent occupation of the premises may serve to found an inference of requisite knowledge.
[77] The Court of Appeal in R. v. Sparling, [1988] O.J. No. 1877, upheld the above passage as being sufficient evidence to infer knowledge.
[78] In Re Chambers and the Queen (1985), 1985 CanLII 169 (ON CA), 20 C.C.C. (3d) 440 (Ont. C.A.), Martin J.A. noted that the court may draw “appropriate inferences from evidence that a prohibited drug is found in a room under the control of an accused and where there is also evidence from which an inference may properly be drawn that the accused was aware of the presence of the drug.”
[79] In R. v. Escoffery (1996), 1996 CanLII 35 (ON CA), 28 O.R. (3d) 417 (Ont. C.A.), the Court dealt with the issue of whether knowledge could be inferred from occupancy. The appellant was jointly charged with his girlfriend, Escoffery, with possession of crack cocaine for the purpose of trafficking. The cocaine was found by the police in an apartment where Escoffery had lived as a tenant for five years. The appellant intended to move in with her, and slept at the apartment three or four nights a week, but still maintained his own separate rented premises. In other words, he was an occasional occupant of premises controlled by his girlfriend.
[80] The drugs in Escoffery were well-hidden. Some were in a cassette player on a dresser and some were under a flower arrangement on a bedside table. A substantial amount of cash was found in Escoffery’s skirt hanging in the closet. A set of scales was found in a pouch belonging to the appellant, who offered an innocent explanation for the scales, which the trial judge accepted. A further relevant circumstance was that the door to the apartment was unlocked during the day and several people, both men and women, would “come in and out.”
[81] On these facts, the trial judge found both accused to be in joint possession. The Court of Appeal reversed the appellant’s conviction, holding that it was unreasonable to infer knowledge, when the drugs were hidden, from the mere fact of “regular occupancy.” At para. 22, Laskin J.A. stated:
I would not prescribe a firm rule for inferring knowledge from occupancy: R. v. LePage, 1995 CanLII 123 (SCC), [1995] 1 S.C.R. 654. In the present case no other evidence connected the appellant to the drugs, there was no direct evidence of knowledge, the drugs were hidden, the apartment was rented by the co-accused, other persons frequented the apartment and the appellant was not a permanent occupant. The circumstantial evidence does not therefore support a finding that the appellant had knowledge of the crack cocaine. Accordingly, the finding that the Crown had proved possession was unreasonable.
[82] As stated earlier, the Crown in the present case relies on circumstantial evidence to prove that Mr. Francis was in possession of the crack cocaine and fentanyl in the closet of the basement bedroom. As a result, the Crown must demonstrate that Mr. Francis’ possession of the drugs is the only reasonable inference available on the totality of the evidence. The evidence must be evaluated as a whole rather than as individual pieces. It is the cumulative effect of the relevant circumstances that must be assessed in determining whether the Crown has met its burden: R. v. Dodd, 2015 ONCA 286, at para. 59.
[83] In considering whether the Crown has established that Mr. Francis had knowledge and control of the crack cocaine and fentanyl in the closet, I take into account the following circumstances.
1. The Presence of Mr. Francis’ Wallet and Mail on the Desk in the Basement Bedroom
[84] The presence of Mr. Francis’ wallet on the desk in the bedroom is a strong piece of circumstantial evidence of his access to and control over that room.
[85] The wallet contained important personal documents, such as Mr. Francis’ driver’s licence and Health Card, a Bank of Montreal card and several other cards. It also contained a significant amount of money – $700 – composed of seven $100 bills. The presence of the wallet indicates that Mr. Francis had a level of confidence that his property was safe and secure in the bedroom and that he had a significant measure of control over the room. Given the contents of the wallet, it would make no sense for him to leave it lying around in a place over which he had no control, or where other people were free to wander in and out of the room.
[86] The presence of the wallet also suggests that Mr. Francis had been in the bedroom recently, and that he therefore had knowledge and control of what was in the room. One would normally not abandon one’s wallet for any significant period of time.
[87] It may be inferred that the mail from Employment & Social Services, which was also on the desk in the bedroom, was of some importance to Mr. Francis. Both letters, which were addressed to “David D. Francis” at 25 Rathburn Road, are evidence of his connection to the house and, inferentially, to the basement bedroom. Since both bedrooms on the main floor were occupied – one by Mr. Sardella and the other by Ms. Fidani – it logically follows that Mr. Francis occupied the basement bedroom, which was the only other bedroom in the house.
[88] In R. v. Emes, released June 26, 2001, the Ontario Court of Appeal cited with approval the reasoning of the trial judge in that case, who held that seized personal documents may constitute circumstantial evidence of an accused’s control over a premise. At para. 8, the Court quoted the following passage from the trial judge’s reasons:
Personal papers are, as a general rule, maintained in a location to which a person has access and control. When documents such as income tax forms, invoices, cancelled cheques, leases, insurance papers and the like are located in a residential premise it is surely a fair inference that the person identified in the documents is an occupant with a significant measure of control. This is a matter of logic and common sense.
[89] Similarly, in the present case, there is a fair inference from the presence of Mr. Francis’ wallet and mail in the bedroom that he was an occupant with a significant measure of control over the room.
[90] Mr. Steuart submits that the Crown has failed to prove that Mr. Francis was a permanent occupant of the basement bedroom. He conceded that there is a reasonable inference that Mr. Francis was occupying the room on the night of July 19-20, 2020, but submits that it is unknown for how long, if at all, he would have continued to occupy it. He noted that there is no evidence that Mr. Francis owned the house or was paying rent to live there. Other than Mr. Francis’ wallet and mail, the room did not contain items that one would normally expect to see in a person’s home, such as photographs, prescriptions, and other personal documents.
[91] Mr. Steuart also submits that the bedroom was sparsely furnished and did not appear to be a “proper” bedroom where someone would live on a permanent basis. He noted that the mattress was leaning up against the wall, which suggests that the room was not in regular use.
[92] I do not place much weight on the fact that the mattress was not lying on the floor. Sergeant Greaves did not have a specific recollection of leaning it against the wall, but testified that it is his normal practice during a search to flip a mattress in order to search underneath it. He also testified that ETF officers may well have lifted the mattress and leaned it against the wall.
[93] Although the bedroom did not contain a great deal of furniture, it was certainly serviceable as a bedroom. In addition to the mattress, there was a desk and a table. There was a bag filled with food, several phones, a lap-top, and a duffel bag containing clothes. There was also clothing on the floor and in the closet. As discussed later in these reasons, an inference may be drawn that the clothes in the closet belonged to Mr. Francis.
[94] Based on all the evidence, including the fact that his mailing address was 25 Rathburn, there can be no doubt that Mr. Francis was occupying the basement bedroom on the night of July 19-20, 2020, and that he attended and occupied it on a regular basis. There is no evidence of anyone else occupying that bedroom.
[95] I note that the Crown need not prove permanent occupancy in order to establish possession. The essential elements of possession are knowledge and control. Detective Serrano testified that drug dealers often stash or secrete their drugs in locations other than their own homes but over which they nevertheless have control. In these situations, they are in constructive possession of the drugs, as they have knowledge of the drugs and are knowingly keeping them in a place for their own use or benefit. That “place” might be lacking in personal items, such as photographs, as it is not functioning as the dealer’s main residence, but is serving another purpose.
2. The Presence of the Louis Vuitton bag containing $4,130
[96] The Louis Vuitton bag, which was lying on the bedroom floor near the mattress, contained over $4,000. There were no identification documents in the bag. However, its presence in the same room where Mr. Francis also left his wallet and mail is an additional indicator that he was an occupant with some measure of control – it is unlikely that a person would leave that amount of money lying around unless they had significant control over the premise.
3. The Male Clothing in the Closet
[97] The presence of male clothing in the closet of the basement bedroom is a further piece of circumstantial evidence indicating that Mr. Francis had knowledge and control of the drugs in the closet. Although Sgt. Greaves did not check the exact size of the clothes, he testified that they were too big to fit him properly. Sergeant Greaves does not have as large of a frame as Mr. Francis, who is six feet two inches tall, and weighs 250 pounds.
[98] Defence counsel submits that the male clothes may have belonged to Mr. Sardella and that he put them in the closet. However, that is unlikely, given the fact that Mr. Sardella had a clothes closet in his own bedroom on the main floor. There is no evidence as to Mr. Sardella’s height or weight, or whether he, like Mr. Francis, had a large build requiring larger-sized clothing.
4. The Value of the Drugs
[99] Detective Serrano estimated the value of 18.72 grams of crack cocaine at $900 to $1,100. He testified that the fentanyl could be sold for $120 to $160. It is reasonable to infer that a person dealing in drugs of this value would keep them in a place that is secure and a place over which they have control. In this case, the drugs were in the same room where Mr. Francis’ wallet, personal identification, and mail were located, as well as larger-sized clothing consistent with Mr. Francis’ build. The clothing was in the same closet where the drugs were located. These circumstances are consistent with Mr. Francis’ occupancy of the room and his knowledge and control of its contents, including the drugs in the closet.
5. Mr. Francis’ Comings and Goings to and from 25 Rathburn Road and the presence of crack cocaine in his pocket
[100] Sergeant Nishikawa testified about Mr. Francis’ comings and goings to and from 25 Rathburn on the night of July 19/20, 2020.
[101] On July 19, at 10:51 p.m., Mr. Francis drove into the driveway, parked his car, and walked to the west side of the house.
[102] Six minutes later, at 10:57 p.m., Mr. Francis walked back to his car and drove eastbound on Rathburn.
[103] Seven minutes later, at 11:04 p.m., Mr. Francis returned to 25 Rathburn. He again parked in the driveway and walked to the west side of the house.
[104] On June 20, at 12:44 a.m., Mr. Francis was beside or on his way to his car when he was arrested.
[105] The comings and goings of Mr. Francis to and from the house are consistent with the actions of someone who is dealing drugs and returning to the house to get more drugs for another deal. This inference is further strengthened by the fact that at 12:44 a.m., when Mr. Francis was arrested while on his way to his car, he was in possession of 0.61 grams of crack cocaine, which is an amount consistent with the quantities of crack cocaine sold at the street level. For example, based on Det. Serrano’s evidence, 0.61 grams could result in three “20-piece” sales or probably more, as buyers seldom actually receive 0.2 grams. Similarly, “40-piece” deals usually involve less than 0.4 grams.
[106] The crack cocaine in Mr. Francis’ pocket was the same kind of drug that was in the closet in the basement bedroom, which Mr. Francis was occupying that night. I also note that there is no evidence of crack cocaine or any other drug being found in any other part of the house during the execution of the search warrant. This supports the inference that the source of the crack cocaine in Mr. Francis’ pocket was the crack cocaine in the closet, which is a further circumstance indicating that Mr. Francis had knowledge and control of the drugs in that closet. The crack cocaine in Mr. Francis’ pocket was in a clear plastic bag, as were the chunks of crack cocaine in the Solo cup in the closet.
6. The Crack Cocaine was in Plain View When the Closet Door was Open
[107] When Sgt. Greaves entered the bedroom, the closet door was open, and the large unpackaged chunk of crack cocaine and two digital scales were in plain view on the shelf. If the door was open when Mr. Francis left the room, he clearly would have had knowledge of the crack cocaine. I bear in mind, however, that ETF officers may have opened the closet door when clearing the room.
[108] Defence counsel submits that Sgt. Greaves’ testimony was inconsistent and unreliable as to the location of the red Solo cup, which contained fentanyl and the smaller chunks of crack cocaine. He submits that the cup may not have been in the closet, but in some other place in the room. Sgt. Greaves was questioned in some detail about the location of the cup when he first saw it. Having carefully considered his evidence, I accept his testimony that the cup was on the same shelf where the large chunk of crack cocaine and scales were located, which is consistent with his recording of its location in his property report: See exhibit 10.
[109] Sergeant Greaves testified that the cup was to the left of the large chunk of crack cocaine. It was not immediately apparent to him that the cup contained drugs – in that sense, the drugs in the cup, unlike the large chunk of crack cocaine, were not in plain view. On the other hand, it cannot be said that they were particularly well-hidden. As soon as Sgt. Greaves picked up the cup, he saw the clear plastic bag containing the smaller chunks of crack cocaine. He then placed the cup on the shelf where one of the scales was initially situated, and photographed it.
[110] Assuming that the ETF officers opened the closet door and that it was closed when Mr. Francis last left the room, the circumstances nevertheless strongly support the inference that Mr. Francis had knowledge and control of the drugs. Those circumstances, as earlier reviewed, include i) the presence of larger-sized male clothing in the closet, suggesting that the clothes belonged to Mr. Francis and that he therefore had access to and control over the contents of the closet; ii) the fact that Mr. Francis could not have opened the closet door to retrieve his clothing without seeing the large chunk of crack cocaine and scales on the shelf; iii) the presence of white residue on the scales, indicating that the closet had been accessed and the scales used to weigh the drugs inside it; iv) the fact that Mr. Francis had crack cocaine in his pocket when he was arrested seconds after leaving the house; and v) the fact that there is no evidence that crack cocaine was found in any part of the house other than in the closet in the basement, which supports the inference that the crack cocaine in the closet was the source of the crack cocaine found in Mr. Francis’ personal possession.
[111] Mr. Steuart submits that given the lack of direct evidence connecting Mr. Francis to the drugs, such as fingerprint or DNA evidence on the shelf, scales, or packaging, and given that the drugs were inside the closet, there is an insufficient basis to find that Mr. Francis had knowledge of them. Mr. Steuart noted that in Escoffery, the drugs were hidden, the apartment was rented by the co-accused, other persons frequented the apartment, and the appellant was not a permanent occupant. The Court of Appeal found that these circumstances were insufficient to support a finding that the appellant had knowledge of the crack cocaine.
[112] The circumstances in the present case differ in several significant respects from the circumstances in Escoffery, one of which is the degree of concealment. In Escoffery, the drugs were completely out of view. Some were secreted in a cassette player sitting on a dresser. A smaller quantity was hidden under a flower arrangement on a bedside table. By contrast, in the present case, the large unpackaged chunk of crack cocaine was on the closet shelf and in plain view when the closet door was open. It is conceded by the defence that Mr. Francis was occupying the bedroom on the day in question. The presence of larger-sized clothing in the closet indicates that he had access to the closet and was aware of its contents. Given these circumstances, along with the presence of white residue on the scales and the fact that Mr. Francis was in possession of crack cocaine upon his arrest, it is reasonable to infer that he accessed the closet that night. Unlike Mr. Francis, the appellant in Escoffery was not found in personal possession of the same drug that was the subject matter of the charges in that case.
[113] There was also evidence in Escoffery that the apartment where the drugs were hidden was unlocked during the day and was being frequented by men and women coming in and out of it. In the present case, there is no evidence of people going in and out of 25 Rathburn Road. The police had the house under surveillance from 10:40 p.m. on June 19 to 12:44 a.m. on June 20. During those two hours, the only person seen going to and coming from the house was Mr. Francis, whose short trips were consistent with drug trafficking: he arrived at the house at 10:51 p.m. but remained there for only six minutes before leaving at 10:57 p.m. He returned seven minutes later. At 12:44 a.m., he left again and was on his way to his car when he was arrested with crack cocaine in his pocket.
[114] There is no evidence of either Mr. Sardella or Ms. Fidani engaging that night in activities suggestive of drug dealing, such as leaving the residence for short periods of time or receiving visitors at the house.
[115] Mr. Steuart submits that even if the Crown has established that Mr. Francis had knowledge of the drugs in the closet, it has not been established beyond a reasonable doubt that he had control of them. Mr. Steuart submits that in the absence of evidence as to whether the bedroom door or closet door were equipped with a lock, it is possible that Mr. Sardella, Ms. Fidani, or any visitors could have accessed the closet. He submits that in these circumstances, there is insufficient evidence that Mr. Francis had control over the drugs or the ability to grant or withhold consent for them to be there. In support of this submission, Mr. Steuart referred to the decision in R. v. Matusik, 2002 BCPC 690, 2002 Carswell BC 3931.
[116] The accused in Matusik was charged with possession of crack cocaine for the purpose of trafficking. The trial judge was satisfied that Matusik was residing in the house where the drugs were found and “perhaps” occupied the same room where the drugs were located. There was evidence that three other people were in that room on the day in question. There was no evidence with respect to the configuration of the room, how many beds were in it, or the circumstances of any residents who might be throughout the premises. There was evidence that the house was a crack house and in disarray as a result of the number of people going in and out of it. The trial judge was satisfied that Matusik knew of the existence of the drugs, but was not satisfied that the Crown had established the necessary element of control. Although Matusik may have known that others were dealing drugs from the house, the trial judge was not satisfied that it was necessarily within his control, given all of the other people who may have been living in the house or just visiting.
[117] Matusik is clearly distinguishable from the present case. Unlike Matusik, whom the trial judge found was “perhaps” occupying the room where the drugs were found, there is no question that Mr. Francis was occupying the basement bedroom on June 19-20. There was only one mattress, and no evidence that anyone else was occupying that room.
[118] In Matusik, there was evidence that the house where the drugs were found was a crack house, with any number of people dealing drugs from the house. This circumstance left the trial judge with a reasonable doubt in regard to the element of control. In the present case, the only other residents of 25 Rathburn Road were Mr. Sardella and Ms. Fidani. As stated earlier, there is no evidence of either of them engaging that night in activities suggestive of drug dealing, such as leaving the residence for short periods of time or receiving visitors at the house.
[119] It is evident from the trial judge’s reasons in Matusik that the accused in that case was not seen engaging in any activity consistent with drug dealing, nor was he found in personal possession of any drugs. In contrast, Mr. Francis’ comings and goings to and from the house are consistent with someone selling drugs and returning to the house to get more drugs for another deal – an inference buttressed by his personal possession of crack cocaine upon his arrest, which happened to be the same kind of drug that was in the closet of the room he was occupying that night. As discussed earlier, other indicia of Mr. Francis’ control over the room and the drugs in the closet include the presence of his wallet, his mail, the bag containing over $4,000 in cash, the larger-sized male clothing hanging in the closet, and the fact that the crack cocaine was in plain view when the closet door was open.
Whether Mr. Sardella and Ms. Fidani could have planted the drugs in the closet moments before the ETF officers entered the house
[120] Mr. Steuart submits that Mr. Sardella and Ms. Fidani would most likely have seen or heard the arrest of Mr. Francis in the driveway and therefore had sufficient time while he was being detained and advised of his rights to counsel to i) gather up the large chunk of crack cocaine, the Solo cup, the two scales, the two boxes of plastic bags, and the box of latex gloves; ii) run downstairs to the basement and plant these items in the closet in order to implicate Mr. Francis and deflect suspicion of criminal activity away from themselves; and iii) be back upstairs by the time the ETF officers entered the house through the back door. Mr. Steuart noted that according to Sgt. Greaves, it would take only a few seconds for someone to go down the stairs and into the bedroom. Mr. Steuart also submits that the contents of the closet were in disarray, which indicates that whoever put the drugs in the closet was in a hurry.
[121] In my view, the submission that Mr. Sardella and/or Ms. Fidani could have planted the drugs in the basement bedroom before the ETF officers entered the house is purely speculative. It presumes that Mr. Sardella and/or Ms. Fidani heard the arrest or saw it through a window. There is no evidence to that effect. Even if they became aware of the arrest, there is no evidence as to when they became aware of it – that is, whether it was at the beginning of the arrest, when Mr. Francis was ordered to the ground by ETF officers, or later on, after the pat down search and as he was being advised of his rights to counsel by Sgt. Nishikawa. It also presumes that after Mr. Francis was arrested, handcuffed, and transferred to the custody of Sgt. Nishikawa, members of the ETF team, rather than proceeding directly with the “dynamic” entry into the house, remained in the driveway as Sgt. Nishikawa conducted the pat down search and read Mr. Francis his rights to counsel.
[122] The Crown’s position that the ETF officers entered the house without delay after Mr. Francis’ arrest at 12:44 a.m., thereby making it unlikely that the two found-ins had time to plant the drugs in the basement, is supported by the fact that by 12:51 a.m., or just seven minutes later, the officers had managed to clear the house. This entailed going into every room, checking for the presence of any people, and detaining anyone whom they found. When Sgt. Greaves entered the house at 12:51 a.m., the ETF officers had already detained both Mr. Sardella and Ms. Fidani, and had seated them in the living room.
[123] I disagree with defence counsel’s submission that the drugs and other items on the closet shelf were in disarray and appeared to have been put there in a hurry. To the contrary, the items were arranged in a fairly orderly fashion. As seen in exhibit 9(a), the two digital scales were side-by-side and to the right of the large chunk of crack cocaine. The boxes of plastic sandwich bags and box of latex gloves were to the right of the scales and towards the back wall. Although the large chunk of crack cocaine was not in any packaging material, its unpackaged state is consistent, according to Det. Serrano, with the way dealers prepare smaller amounts of the drug for sale – they simply chip off a piece from a larger rock.
[124] For the above reasons, I find that the suggestion that Mr. Sardella and/or Ms. Fidani could have planted the drugs in the closet prior to the ETF officers entering the house falls far short of being a reasonable inference available on the totality of the evidence and, in fact, is mere speculation.
Conclusion re whether the Crown has established beyond a reasonable doubt that Mr. Francis was in possession the crack cocaine and fentanyl in the basement bedroom closet
[125] When all the evidence is considered as a whole, the only reasonable inference is that Mr. Francis had knowledge and control of the crack cocaine and fentanyl in the basement bedroom closet. The constellation of factors leading to this conclusion, as explained in these reasons, includes the presence of his wallet and mail in the bedroom, the presence of the bag containing over $4,000, the presence of larger-sized male clothing in the closet, the value of the drugs, the fact that the large chunk of crack cocaine was in plain view when the closet door was open, the comings and goings of Mr. Francis to and from the house that night, which were consistent with drug trafficking, and his possession of crack cocaine when arrested just after leaving the house at 12:44 a.m. on June 20, 2020. Having considered all of the evidence and the submissions of counsel, I am satisfied beyond a reasonable doubt that Mr. Francis was in possession of the crack cocaine and fentanyl in the closet.
Has the Crown established beyond a reasonable doubt that Mr. Francis’ possession of the crack cocaine in the closet was for the purpose of trafficking?
[126] Based on the expert testimony of Det. Serrano, there are a number of circumstances indicating that Mr. Francis possessed the crack cocaine for the purpose of trafficking.
[127] According to Det. Serrano, 18.72 grams of crack cocaine is a greater quantity than would normally be found for personal use. In fact, he testified that he had never seen that quantity of crack cocaine where it was intended strictly for personal use.
[128] Detective Serrano testified that crack cocaine is usually consumed by smoking it using a pipe. There is no evidence that there were any pipes present in the house at 25 Rathburn or in Mr. Francis’ personal possession.
[129] According to Det. Serrano, the presence of scales in close proximity to crack cocaine is a good indicator that the drug is intended to be sold. Detective Serrano described scales as being a “great tool” for dealers in terms of weighing their supply, as well as the amounts of the drugs that they are selling. In this case, there were two digital scales right beside the large chunk of crack cocaine on the shelf in the closet. The presence of white powder on the scales indicates that they had been used to weigh out certain quantities of the drug. In the hundreds of drug investigations in which Det. Serrano has been involved, he has never seen a user with a scale.
[130] The presence of a large amount of cash, both in Mr. Francis’ wallet ($700) and the Louis Vuitton bag ($4,130) is another indicator of trafficking since cash is the predominant method of payment for all drugs sold at the street level.
[131] A further indicator of trafficking is the presence of plastic sandwich bags, which dealers use to package crack cocaine. There were two boxes of sandwich bags on the shelf in the closet. Both the smaller chunks of crack cocaine in the closet and the 0.61 grams of crack cocaine in Mr. Francis’ pocket were in a plastic bag. Based on Det. Serrano’s testimony, the crack cocaine in Mr. Francis’ pocket could be broken down into at least three “20-pieces,” which are supposed to weigh 0.2 grams but seldom weigh that much. Similarly, the “40-piece” sold on the street usually weigh less than 0.4 grams.
[132] Based on the totality of the evidence, I am satisfied beyond a reasonable doubt that Mr. Francis was in possession of the 18.72 grams of crack cocaine in the bedroom closet for the purpose of trafficking. He is therefore found guilty on Count 3 in the indictment.
Has the Crown established beyond a reasonable doubt that Mr. Francis was in possession of the fentanyl in the closet for the purpose of trafficking?
[133] In his examination-in-chief, Det. Serrano testified that the fentanyl, on its own, was consistent with personal use. The amount of fentanyl – 0.79 grams – could be consumed by a heavy user in one day, and by a consistent user in two days. However, he was of the view that in this case, the fentanyl was intended to be sold by the fact that it was with the crack cocaine, scales, packaging and money. He also testified that even if the scales, packaging and money were taken out of the equation, and only the presence of the 18.72 grams of crack cocaine was taken into account, he would “still lean” toward the same conclusion – that is, that the fentanyl was intended to be sold.
[134] In cross-examination, Det. Serrano acknowledged that the fentanyl could be for personal use. In answer to questions posed by me, he allowed for three possible scenarios: i) the low amount of fentanyl could simply be the result of the dealer being close to the end of their supply; ii) a user was asking the dealer for both crack cocaine and fentanyl; or iii) the fentanyl could be for personal use if the dealer was feeding an addiction.
[135] Taking into account all of the evidence, including Det. Serrano’s testimony, I am not satisfied that the Crown has established beyond a reasonable doubt that Mr. Francis possessed the fentanyl for the purpose of trafficking. Although the evidence establishes that he probably possessed the drug for the purpose of trafficking, that level of proof falls short of the standard required for a criminal conviction. As a result, Mr. Francis is found not guilty on Count 4 of the indictment, but guilty of the lesser included offence of simple possession.
Has the Crown established beyond a reasonable doubt that Mr. Francis was in possession of the $700 in his wallet and the $4,130 in the Louis Vuitton bag knowing that all or part of it was derived from the commission of an indictable offence, that is, trafficking in a controlled substance, contrary to [s. 5(2)](https://www.canlii.org/en/ca/laws/stat/sc-1996-c-19/latest/sc-1996-c-19.html#sec5subsec2_smooth) of the [Controlled Drugs and Substances Act](https://www.canlii.org/en/ca/laws/stat/sc-1996-c-19/latest/sc-1996-c-19.html)?
[136] Detective Serrano testified that the main method of payment for all drugs at the street level is cash. The money was in the same room as the crack cocaine, scales, and packaging. The denominations of the bills are consistent with the sale of drugs at the street level. Based on the totality of the evidence, I find that the Crown has established beyond a reasonable doubt that Mr. Francis was in possession of the money in his wallet and the Louis Vuitton bag, and that he knew that it was the proceeds of crime, having been derived from illicit drug dealing contrary to the CDSA. Mr. Francis is accordingly found guilty on Count 2 in the indictment.
Conclusion
[137] Based on these reasons, Mr. Francis is found guilty on Count 1 (possession of cocaine), Count 2 (possession of the proceeds of crime), and Count 3 (possession of cocaine for the purpose of trafficking). On Count 4, Mr. Francis is found not guilty as charged, but guilty of the lesser and included offence of simple possession of fentanyl.
Garton J.
Released: September 12, 2022