Court File and Parties

COURT FILE NO.: CR-22-90000611-0000 DATE: 2023-08-11 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – Anderson Nop

Counsel: Sarah Virani and Diana Lumba, for the Crown Gabriel Gross-Stein, for Anderson Nop

HEARD: June 5, 6 and 9, 2023

PINTO J.

Overview

[1] This 3-day judge-alone trial concerned the question of whether the defendant Mr. Nop possessed a quantity of 100 pills, which contained fentanyl, for the purposes of trafficking. The Crown alleges that Mr. Nop, who has a previous criminal record, was trafficking the fentanyl pills while also trafficking cocaine. Each of the pills was embossed with the label “TEC” and was visually indistinguishable from Percocet, a well-known brand-name prescription painkiller medication that mixes Oxycodone and Acetaminophen.

[2] Mr. Nop testified that a few hours before his arrest he had purchased the pills from his supplier genuinely believing them to be Percocet. He testified that at the time he was heavily dependent on Percocet having developed an addiction to painkillers due to a workplace injury. While he admitted to trafficking cocaine to pay for his Percocet addiction, he denied knowing that the 100 pills contained fentanyl or possessing them for the purpose of trafficking. For the reasons that follow, I am left in reasonable doubt as to whether Mr. Nop knew that the pills contained fentanyl and was trafficking them. Mr. Nop is therefore acquitted on the trafficking fentanyl charge, but is convicted of simple possession of fentanyl and trafficking cocaine. He is also guilty of possession of property with a value not exceeding $5,000, specifically $810 in cash, that was the proceeds of crime.

Facts

[3] Mr. Nop is charged with three offences:

(a) Possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act (CDSA);

(b) Possession of fentanyl for the purpose of trafficking, contrary to s. 5(2) of the CDSA; and

(c) Possession of property with a value not exceeding $5,000 that was the proceeds of crime, contrary to s. 355(b) of the Criminal Code.

[4] Mr. Nop was arrested on February 10, 2021, at 3:57 p.m. outside his parent’s house in Toronto. He was arrested by officers of the Toronto Police Service (TPS) on an outstanding warrant from the Barrie Police Service for driving related charges.

[5] At the time of his arrest, Mr. Nop was wearing a black Jansport satchel that contained the following:

(a) A total of 36.81 grams of powder and crack cocaine (b) A digital scale (c) Small clear Ziploc baggies (d) A small black knife (e) A lighter (f) $810 in Canadian currency

Mr. Nop also had three cell phones in his possession.

[6] Incidental to Mr. Nop’s arrest, the police also searched the vehicle that he was driving. They found the following items in the centre console of the vehicle, all of which Mr. Nop admits to possessing:

(a) 57.55 grams of fentanyl in 100 white round pills marked “TEC” on one side in a clear Ziploc baggie; (b) A white pill bottle labelled Teva-Oxycocet 5 mg/325 mg with the name on the prescription ripped off. It contained cotton balls; and (c) An Ontario drivers licence bearing Mr. Nop’s name and date of birth.

Crown’s Case

[7] The Crown called a single witness, Sergeant Rajan Bhogal, a member of the TPS since 2007. The Crown offered Sgt. Bhogal to provide expert opinion evidence on the consumption, sale, pricing and distribution of fentanyl, cocaine and opioids.

[8] Sgt. Bhogal has been involved in hundreds of drug investigations and has been qualified previously as an expert in drugs. He was a member of the Organized Crime Enforcement – Toronto Drug Squad between January 2015 and June 2022. He was promoted to the rank of Sergeant with 12 Division, Primary Response Unit, in June 2022. After reviewing Sgt. Bhogal’s curriculum vitae and examining his experience and qualifications, I accepted him as an expert as proposed by the Crown and accepted by the Defence.

[9] Sgt. Bhogal’s overall conclusion was that Mr. Nop possessed the controlled substances (cocaine, fentanyl) for the purpose of trafficking. He based his conclusion on five factors:

(a) Drug quantities (b) Multiple drugs including cutting agents (c) No indicia of personal use (d) Digital Scale (e) Proceeds of crime

[10] As Mr. Nop admitted that he possessed the cocaine (powdered cocaine, crack cocaine) for the purpose of trafficking, the focus of the trial and Sgt. Bhogal’s testimony was on the 100 pills that contained fentanyl and whether the pills were for personal use or trafficking.

[11] Sgt. Bhogal testified that over the last 5 or 6 years there has been a huge increase in the trafficking of fentanyl. Fentanyl, a potent synthetic opioid drug, has overtaken heroin in Toronto. It can be snorted, injected or smoked. Fentanyl comes in many colours and forms: powder, pills, and rock form. Fentanyl in pill form is sometimes deliberately mislabeled as Percocet as a drug dealer’s method of disguise.

[12] Sgt. Bhogal testified that a single fentanyl pill can sell at the street level for roughly $100, in which case the 100 pills found in Mr. Nop’s possession would have a street value of $10,000.

[13] The Sergeant acknowledged that although the weight of the pills was 57 grams and that the pills contained a controlled substance, namely fentanyl, the potency of the fentanyl was not established. Accordingly, it would be inaccurate without further investigation to describe the pills as 57 grams of fentanyl.

[14] Sgt. Bhogal testified that pricing of fentanyl can depend on several factors such as the purity of the drugs, quantities sold (wholesale or bulk pricing), seller/buyer relationship, geographical area, supply and demand.

[15] He testified that the quantities of drugs in Mr. Nop’s possession, the fact that multiple drugs including cutting agents (for the cocaine) were found, the absence of indicia of personal use, the presence of the digital scale and $810 in cash (proceeds of crime), all led him to conclude that Mr. Nop possessed the drugs, including fentanyl, for the purpose of trafficking and not for personal consumption.

[16] In cross-examination, the Sergeant conceded that:

(a) There would be no way for an observer to distinguish the 100 white pills labelled “TEC”, a mark associated with Percocet, from pills containing fentanyl. (b) It is reasonably possible that a user could have purchased or been in possession of 50 to 100 pills of an Oxycodone product such as Percocet for personal use. (c) He could not distinguish whether the $810 in cash found in Mr. Nop’s possession came from the sale of the cocaine versus the pills containing fentanyl. (d) The scale found would typically be used to weigh drugs in a powder format, and not be used in respect of weighing pills, as the pills were already in a pre-packaged form. (e) It is reasonably possible, albeit not typical, that someone would be trafficking cocaine but only using Oxycodone (i.e. Percocet). (f) There is a huge variation in the pricing of pills containing Oxycodone and a bottle of 100 pills could be purchased for $500 depending on the dosage. (g) A high dose Oxy pill can sell for $70 to $90 a pill.

[17] Sgt. Bhogal testified that he is not sure why any user would be walking around with 100 pills unless he had just bought them.

Defence Case

[18] The Defence presented three witnesses: Mr. Nop; his spouse Danielle Fulfit; and Stephen Vater, Mr. Nop’s employer at the time of his arrest.

Anderson Nop

[19] Mr. Nop, 34, was born in Toronto to parents of Cambodian origin who came to Canada in 1980. He graduated from high school when he was 19 and attended George Brown College for an electrician program.

[20] He lives with his spouse, Ms. Fulfit, and they have been together for 12 years. Together, they have 4 children. At the time of Mr. Nop’s arrest in 2021, he lived in an apartment building on Weston Road in Toronto.

[21] Mr. Nop has been working in fire protection, installation, retro-fitting and construction for the last 6 years. He is presently working on getting his “red ticket.” He is self-employed in his own business, which is a subcontractor to another business, NEWFire Protection, owned by his former employer, Stephen Vater.

[22] Mr. Nop has a criminal record as follows:

(a) On October 27, 2008, he was convicted of possession of a CDSA Schedule II substance and given a 6-month conditional sentence. (b) On January 26, 2010, he was convicted of aggravated assault and possession of a prohibited or restricted firearm and given a 30-month sentence to be served concurrently. (c) On September 13, 2017, he was convicted on two counts of possession of a CDSA Schedule I substance and given a 220-day sentence to be served concurrently.

[23] Mr. Nop was paroled on November 29, 2017 since he received credit for the equivalent of 145 days of pre-sentence custody. This reduced the 220 days sentence that he was required to serve.

[24] Mr. Nop testified that he hurt his back carrying heavy pipes at work in April 2019. The next couple of days he was in pain. His family doctor, Dr. Dennis Kim, indicated that Mr. Nop had sprained his back and prescribed muscle relaxants. A record of appointment with Dr. Kim dated April 24, 2019, was entered at trial which indicated that Mr. Nop was diagnosed with “[u]pper back pain ... [and] [u]nable to sleep due to pain.” He was prescribed Naproxen, a painkiller and Flexeril, a muscle relaxant. Mr. Nop testified that he filled these two prescriptions at a pharmacy on April 24, 2019. He testified that he took the medication for two weeks. It helped him sleep, but he was still experiencing back pain.

[25] He testified that a construction worker on site - “Sam” - had back pain and a prescription for Percocet. Sam offered him a Percocet pill and it did wonders. He does not know Sam’s last name.

[26] He testified that at a subsequent medical appointment for his spouse or child, he asked his doctor for opioids but his doctor refused to prescribe opioids so he just continued getting Percocets from Sam. In a month’s time, he went from using one pill a day to a couple per day. The Percocets consisted of 5 mg of Oxycodone. Within 6 months, he went from using 10 pills a week to 30. He would buy the pills from once a week to twice per month. He always purchased the pills from Sam.

[27] He testified that he never sought an opioid prescription from another doctor after Dr. Kim refused to prescribe him opioids, because he was already getting the pills from Sam. He purchased the pills once or twice a week on a day that he was not working, and they would last him a week or two.

[28] He testified that, during the COVID-19 pandemic, when people were just home, he started using more pills and started spiraling out of control. As his habit was becoming more expensive, he started selling cocaine to support his Percocet habit. When he bought 10 pills a week, it cost $50, then it went to 30 pills a week, so $150 a week. His work money was going to paying bills, so he sold cocaine so that his family would not know he was supporting a drug habit. He knew from his past experience that trafficking in cocaine was a fast way to make money.

[29] He testified that he never sold fentanyl and never sold the “oxy” or Percocet pills that he purchased.

[30] He stated that, at the time he was arrested, he was consuming “at least 10 to 20 pills” of Percocet a day. His usual pattern was to take around 4 pills at four different times in the day: before work when he woke up; at lunch time; at around 6:00 p.m.; and before he went to bed. He estimated that he would consume a minimum of 15 pills a day.

[31] He testified that he was not working on February 10, 2021. He consumed 4 Percocet pills, which were the last of his pills, at noon, and then at 2:00 p.m. he went to purchase more from Sam. He paid $500 for the 100 pills, which was the usual price. He never asked Sam for assurance that the pills being provided did not contain fentanyl. He admits that, at the time, he was using and selling cocaine.

[32] He testified that he kept his drug dealing material (the cocaine, cutting agent and baggies) in a satchel, but the 100 pills were for personal use and located in the centre console of the vehicle near an empty pill bottle. He claimed that when he obtained the pills from Sam, the pills were already in the baggie, and he was going to put the new pills in the pill bottle.

[33] He testified that after he was arrested, he stopped using Percocet and did so without professional assistance. After his arrest, he was in custody at the Barrie Police Station for a couple of days and had no access to Percocet. He testified that he was vomiting, had diarrhea, and could not sleep but had to “soldier through it.”

[34] He acknowledged that, at the height of his Percocet use, he was consuming them on the job site.

Stephen Vater

[35] Mr. Vater, 53, is the owner of NEWFire Protection, a business that installs sprinklers and fire protection equipment. He has known Mr. Nop for about 10 years. At the time of Mr. Nop’s arrest, he was an employee of Mr. Vater and an apprentice at NEWFire. At the time of trial, Mr. Vater provides work to Mr. Nop’s contracting business and acts as one of his sureties.

[36] As of 2020-21, Mr. Vater saw Mr. Nop on a daily basis. Mr. Vater testified that the first time he saw Mr. Nop take pills was one or two months before the onset of Covid in March 2020. He testified that Mr. Nop was taking pills “3, 4, 5 times a day.” He saw Mr. Nop take them during lunch breaks every day. Mr. Nop advised him that he had injured himself on one of his own jobs and was taking the pills due to pain. He did not know where Mr. Nop was getting the pills from, but knew that Mr. Nop was taking too many. Mr. Vater recognized the pills as “percs” (i.e. Percocets) due to the “TEC” on them, and because he had a dental procedure 5 or 10 years ago where he had used Percocet as a painkiller.

[37] Mr. Vater testified that, around 6 months before Mr. Nop’s arrest, Mr. Nop admitted to Mr. Vater that he was taking 20 to 30 pills a day and Mr. Vater advised Mr. Nop to get help. Mr. Vater knew that Mr. Nop smoked weed and took pills but, prior to his arrest, never knew that Mr. Nop trafficked cocaine. Mr. Vater testified that Mr. Nop told him that he started taking 1 to 2 pills a day but then went to 20 to 30. The pills that Mr. Vater saw Mr. Nop take were white and had TEC embossed on them. Mr. Nop obtained the pills from a blue pill bottle that had no label(s) on it.

[38] Mr. Vater testified that when he confronted Mr. Nop about how many pills he was taking, Mr. Nop said that he was going to get off them and Mr. Vater took him at his word.

[39] Mr. Vater has continued to work with Mr. Nop since the latter was charged and is not aware of any complaints from clients.

[40] Mr. Vater acknowledged that, as Mr. Nop’s employer, he had responsibilities and was concerned about his own liability. He testified that he advised Mr. Nop that he may not get compensation if he was on pills. When he saw Mr. Nop consume pills, he did not notice any effect on Mr. Nop, who seemed normal.

[41] Mr. Vater testified that Mr. Nop never mentioned “Sam” and Mr. Vater was not aware of any individual named Sam. In or around 2020-21, Mr. Vater had around 15 employees but now has 2 or 3 employees as he has scaled back. Mr. Vater confirmed that he did not notice any other employees taking pills.

Danielle Fulfit

[42] Danielle Fulfit, Mr. Nop’s spouse, is also one of Mr. Nop’s sureties. At the time of Mr. Nop’s arrest, she was doing residential house cleaning but is not working now due to health issues.

[43] She testified that there was a time in April 2019 when Mr. Nop came back from work and went to lay down. He had severe pain in his back. She made an appointment with a physician for Mr. Nop on April 24, 2019. She attended the medical appointment where Mr. Nop was prescribed an anti-inflammatory and a muscle relaxant. She did not attend with Mr. Nop to have the prescription filled. She does not know whether Mr. Nop subsequently asked the physician for a Percocet prescription but was refused.

[44] She testified that she knew that Mr. Nop was taking medication several times a day but did not know the severity of his condition. The pills were in a medicine container. It was not until Mr. Nop was arrested that she understood that he was taking non-prescribed medication. She saw Mr. Nop taking pills for about 2 years. After Mr. Nop’s arrest, she did not see Mr. Nop take pills again.

[45] She testified that she could see “a few in his hand at a time” and that he would take the pills from a prescription bottle that was on his person. At the beginning, Mr. Nop was consuming pills from a medicine container that was orange. The bottle had a label, but she did not know what the label said.

[46] Over time, she saw Mr. Nop consume Percocets which she described as white round pills with TEC labelled on them. She knew these were Percocets based on Mr. Nop telling her this. She assumed that, because Mr. Nop was working, he was buying them from “whomever he was buying them from.” She acknowledged that, at some point, she knew that Mr. Nop was not buying the pills from a pharmacy, but Mr. Nop never mentioned the individual who he was purchasing the pills from.

[47] At no point did she ask Mr. Nop if the pills that Dr. Kim prescribed were still working for him.

[48] She testified that she often saw Mr. Nop carry a satchel, which she described as a man’s purse or “murse”, but she never opened the satchel.

[49] Over time, she suspected that what Mr. Nop was consuming was not legitimate or prescribed medication. She testified that Mr. Nop was spending more time away from home and the quantity of pills he was taking increased. When she raised concerns with Mr. Nop, he would say that he was on pain medication and she replied that he should not be on it for too long. She became more concerned close to the time of Mr. Nop’s arrest that he had a drug problem since he had no facial expression, had no pigment in his skin tone, was gray looking, and was genuinely emotionless.

[50] After Mr. Nop’s release on bail, she described him as irritable and agitated and unable to sleep. Then he fell asleep for a few days. She advised Mr. Nop that she would not stand for his drug use and is not aware of him using any drugs since his arrest. She never heard any mention of fentanyl other than in connection with Mr. Nop’s criminal charges. Mr. Nop’s reaction to being charged was to thank God that he did not take the pills as he could have died.

Crown Position

[51] The Crown submits that it has proven Mr. Nop’s guilt on the trafficking fentanyl charge beyond a reasonable doubt.

[52] The Crown submits that, on its case alone, based on the agreed facts and the expert opinion of Sgt. Bhogal, the combination of several factors including the large quantity of pills containing fentanyl found in Mr. Nop’s possession point to him being a trafficker rather than a user.

[53] The Crown also submits as follows.

[54] Mr. Nop is an admitted and experienced drug dealer. Here, he has admitted to trafficking in powder and crack cocaine. He has a previous criminal record including for possession of a controlled substance (cocaine).

[55] Mr. Nop was trafficking in fentanyl pills disguised as Percocets to evade detection.

[56] As per W.D. and Villaroman, the only reasonable inference to draw from the totality of the evidence is that Mr. Nop was trafficking the pills containing fentanyl and was not only a user of Percocet.

[57] The Defence evidence should be rejected as it is implausible and defies logic.

[58] Mr. Nop’s narrative concerning getting his pills from Sam is implausible. Mr. Nop could not provide Sam’s last name. It defies common sense that the first time that Mr. Nop learned that the pills contained fentanyl was when he was arrested.

[59] Had Mr. Nop actually asked for and been refused an opioid prescription from Dr. Kim, he could have simply asked another physician for an opioid prescription and obtained the pills for free rather than obtaining 100 pills for $500 twice a month, as he claimed.

[60] While it is correct that the court did not hear any evidence of when the pills that Mr. Nop was purchasing became laced with fentanyl, the court did hear the expert evidence of Sgt. Bhogal that fentanyl is a far more powerful opioid than Percocet. It would be a logical inference that, had Mr. Nop been ingesting pills laced with fentanyl rather than just Percocet, he would have had a different and significant reaction, yet Mr. Nop’s evidence was that he was regularly consuming from 15 to 20 pills a day for months before his arrest and never got sick. It is too coincidental that the first time that the pills were laced with fentanyl was when Mr. Nop was arrested. The far more likely scenario is that Mr. Nop was not a user and was, in fact, trafficking pills laced with fentanyl disguised as Percocet.

[61] It also defies logic that Mr. Nop would not have confronted Sam, his long time and exclusive supplier, after finding out that Sam had supplied him with fentanyl laced pills rather than Percocets. This is even more surprising given Mr. Nop’s testimony that he believed that he could have died from using the fentanyl laced pills. Leaving aside the medical danger that Sam put Mr. Nop in, he also placed Mr. Nop in legal jeopardy, yet Mr. Nop’s evidence was that he never had any further dealings with Sam.

[62] The pill math does not add up. Mr. Nop testified that he was consuming about 16 pills a day (a minimum of 15 pills a day), which is equivalent to 112 pills a week, or 448 pills a month. He also testified that he purchased around 100 pills twice a month which would last a week or two, and he always bought in quantities of 100s. But that would mean a supply of 100 pills would last around 16 days. Mr. Nop’s evidence that he would restock twice a month would only get him to 200 pills, which is wholly incompatible with his claim that he consumed 448 pills per month. Faced with this inconsistency in cross-examination, Mr. Nop’s evidence pivoted to suggesting that he could have bought more than 100 pills and, as they were consumed, he just kept on buying more.

[63] The pricing of the pills does not add up. It would make no sense that pills that contain fentanyl which could be sold for as much as $100 a pill would be sold by Sam for $5 a pill to Mr. Nop. Given that Mr. Nop was found in possession of 100 pills, and given Mr. Nop’s testimony that he paid $500 for those pills, this suggests that Sam sold pills that could be worth as much as $10,000 for $500, which would be a loss of $9,500 for Sam. This does not make sense.

[64] Mr. Nop’s evidence was that he was arrested before he had an opportunity to move the 100 pills that were in a translucent baggie into the empty pill container found in the centre console of the car he was driving upon arrest. Yet Mr. Nop’s evidence that he wished to hide the pills by moving them to a bottle is not consistent with his evidence that he openly consumed pills in front of his employer Mr. Vater and his spouse. The better inference is that there was a bottle beside the pills because Mr. Nop wished to evade detection, which is consistent with trafficking. The presence of multiple pill bottles in Mr. Nop’s possession, including the 3 pill bottles found in the satchel, is also consistent with the characterization of Mr. Nop as a trafficker rather than a mere user.

[65] The evidence of Mr. Vater and Ms. Fulfit, that they saw Mr. Nop regularly consuming pills, is not incompatible with him being a trafficker of the pills. For example, Mr. Nop admitted to being both a user and trafficker of cocaine.

[66] Mr. Nop is familiar with the drug scene and admitted that he knew there was a risk of the pills containing fentanyl. Yet he also claimed that he somehow knew that Sam only provided him Percocet pills and was shocked when it turned out that that the 100 pills contained fentanyl. Once again, Mr. Nop’s evidence does not make sense.

[67] Mr. Vater testified that Mr. Nop told him that he was taking 20 to 30 pills per day, yet Mr. Nop’s evidence at trial was that he was taking 15 to 20 pills a day. This is a substantial difference.

[68] In cross, Mr. Vater testified that the first time he saw Mr. Nop take pills was a month or two before March 2020, the onset of COVID. This is inconsistent with Mr. Nop’s evidence which was that he started taking pills in April 2019 and then, within 6 months, increased his intake to about 30 pills a week (which would be roughly 4 pills a day).

[69] Mr. Vater also testified that he saw Mr. Nop taking pills 4 or 5 times a day. This contradicts Mr. Nop’s own evidence that he took the pills at four points in the day: after he woke up, at lunch, in the evening and then just before bed. Assuming Mr. Vater was not spending 24 hours a day with Mr. Nop, it is difficult to understand how Mr. Vater could observe Mr. Nop taking pills in the early morning, at dinner time or at night.

[70] The Crown also submits that there are significant problems with Ms. Fulfitt’s evidence. By her testimony, she made an appointment for Mr. Nop after his workplace injury in April 2019, yet it was only close to the arrest date some 22 months later that she realized that he had drug problem. The Crown submits that Ms. Fulfitt, Mr. Nop’s spouse and his surety, was not being truthful and was strongly motivated to protect Mr. Nop.

Defence Position

[71] The Defence submits that Mr. Nop’s should be found not guilty of Count 2 - trafficking fentanyl - but guilty of the lesser and included offence of simple possession of fentanyl. The Defence relies on W.D. and submits that the evidence raises a reasonable doubt that Mr. Nop knew that the 100 pills contained fentanyl and were not Percocets. Mr. Nop pleads guilty to Count #1, possession of cocaine for the purpose of trafficking, and guilty to Count #4, the proceeds of crime charge.

[72] The Defence submits that if the Court accepts Mr. Nop’s evidence, an acquittal must follow. If the Court does not accept Mr. Nop’s evidence, but is left in a reasonable doubt as to his guilt, an acquittal must also follow. Finally, and most critically, even on the Crown evidence alone, given Sgt. Bhogal’s evidence and the agreed facts, a reasonable inference other than trafficking fentanyl is available therefore an acquittal on Count 2 must follow.

[73] The Defence submits, leaving aside the Defence evidence, that this case turns on the expert Sgt. Bhogal’s testimony that it may be unlikely, but is still a reasonable possibility that the 100 pills found in Mr. Nop’s possession were for personal use. This is based on Sgt. Bhogal’s evidence that: (a) the 100 pill that were later found to contain fentanyl are visually indistinguishable from 100 pills of Percocet; (b) it is a reasonable possibility for a user of Percocet who has recently re-stocked to have purchased and be in possession of 50 to 100 pills; and (c) given the wide discrepancy in pricing of Oxycodone related pills, it is also a reasonable possibility for a user to purchase 100 pills of Percocets for $500.

[74] The Defence acknowledges that the W.D. test applies to the evidence as a whole and not to any individual pieces of evidence, but it submits that if the Crown cannot prove that Mr. Nop knew that the pills were not Percocets, it cannot prove his guilt beyond a reasonable doubt.

[75] The Defence also submits that Mr. Nop and the defence witnesses’ narrative is consistent and ought to be believed. Mr. Nop testified and presented evidence of filling out a prescription related to back pain; he testified about how he quickly became addicted to Percocets and started to traffic cocaine to support his Percocet habit; and Mr. Vater and Ms. Fulfit testified that they saw Mr. Nop ingest “handful of pills” several times of day. The Defence submits that any inconsistencies in quantities of pills and timing are not so significant as to force the court to reject the Defence evidence.

[76] The Defence urges the Court to proceed with great caution in drawing any inference that, because Mr. Nop testified that he did not become ill from ingesting the pills, that it must be case – and therefore all too coincidental – that the first time the pills were laced with fentanyl was on the occasion of Mr. Nop’s arrest. The Defence submits that the Court heard no evidence about the actual potency of the pills that Mr. Nop had been ingesting or what effect if any, pills laced with varying potencies of fentanyl would have on a user of Percocet and cocaine.

[77] Finally, the Defence submits that the fact that the 100 pills was found in the open, and in the centre console of the vehicle is critical, as it is evident that Mr. Nop kept the drugs that he was trafficking, namely the cocaine, in a different location which was the satchel with the drug paraphernalia.

Discussion

[78] I do not accept Mr. Nop’s evidence. While I accept that Mr. Nop experienced a workplace injury in April 2019 and that he obtained and filled a prescription for a painkiller, Naproxen, and muscle relaxant, Flexeril, I do not accept that he was being entirely truthful about Sam, his supposed supplier of Percocet, or the quantities and timing of the pills that he ingested.

[79] Mr. Nop testified that he met a work contact, Sam, who gave him a Percocet pill which worked wonders. Then, he tried to get Dr. Kim to fill a Percocet prescription but Dr. Kim refused. Mr. Nop testified that the refusal occurred at an appointment not for himself, but when he was attending a medical appointment of his spouse or for a child. Mr. Nop testified that he made no other efforts to seek a Percocet prescription from another physician, and simply continued to purchase the Percocets from Sam until the day that he was arrested on February 10, 2021. Mr. Nop’s testimony does not accord with common sense that he would make more of a concerted effort to obtain a legitimate prescription for an effective pain killer.

[80] Mr. Nop remained vague about Sam, claiming that he did not know his last name, despite his being highly dependent on this supplier for a period of 22 months. Mr. Vater had never heard of Sam. Mr. Nop testified that he simply met Sam on a work site and within 6 months Sam went from providing him from just a few pills to 30 a week. I find it significant that a round number of 100 pills was found when Mr. Nop was arrested. Mr. Nop testified that he had completely run out of pills before he went at noon on February 10, 2021, to purchase the 100 pills for $500 from Sam. Mr. Nop was arrested at 3:57 p.m. which is almost 4 hours later including over a lunch period. Mr. Nop’s evidence was that he took 4 pills at a time, at 4 points in a 24-hour period including over lunch. Assuming Mr. Nop was truly a user, I would have expected the number of pills found to be something other than 100. I also find it difficult to believe that an addict would let his supply completely run out before restocking.

[81] I also find it difficult to believe that, despite apparently being addicted to Percocets, Mr. Nop physically overcame his serious addiction after a few short days in custody in Barrie. Relatedly, I am skeptical of Mr. Nop’s claim that there were no dealings whatsoever between Sam and him after his arrest.

[82] I also agree with the Crown that Mr. Nop’s math does not add up. For most of his testimony, he claimed that he only restocked the pills twice a month always buying 100 pills at a time, which would amount to 200 pills a month. Yet this contradicts his evidence that he ingested around 16 pills a day, which would amount to 448 pills a month – actually 480 pills a month for months with 30 days.

[83] For Mr. Vater, I accept that he saw Mr. Nop taking white, rounded pills marked with TEC several times a day. I find that Mr. Vater embellished his evidence by exaggerating how many times a day he saw Mr. Nop taking pills which led Mr. Vater to suggest that he saw Mr. Nop taking pills “3, 4 or 5 times a day” which is inconsistent with Mr. Nop’s evidence of when he took the pills. Also, Mr. Vater’s evidence that Mr. Nop told him that he was taking 20 to 30 pills a day is significantly more than the 15 to 20 pills per day Mr. Nop claimed. Overall, I accept that Mr. Vater actually saw Mr. Nop take a handful of pills that looked like Percocets on several occasions and that Mr. Vater believed that Mr. Nop was overdoing the pills. But, having around 15 employees, Mr. Vater was not particularly focused on his own liability as employer, or Mr. Nop’s apparent addiction to Percocet. In sum, I do not put much weight on Mr. Vater’s testimony about when Mr. Nop was taking the pills, or the amount of pills, but I accept as true that Mr. Vater saw Mr. Nop take pills that looked like Percocets.

[84] For Ms. Fulfit, I find that she too actually observed Mr. Nop ingesting pills. I found part of her testimony contradictory in the sense that, at one point she claimed that it was not until after Mr. Nop was arrested that she understood that he was taking non-prescribed medication, yet at a different point she testified that she knew that Mr. Nop was not getting the pills from a legitimate source. Ms. Fulfit and Mr. Nop have been together for 12 years. They co-parent 4 children. Ms. Fulfil has developed a serious health impairment in recent years. I find that she is highly financially dependent on Mr. Nop. I find, based on her testimony that in all likelihood she knew that Mr. Nop was trafficking in drugs in addition to being a user. However, I am not in a position to say that she truly knew the extent to which Mr. Nop was trafficking in cocaine and/or fentanyl, or to what extent he was using such drugs. I find that Ms. Fulfit remained wilfully blind as to Ms. Nop’s drug activity.

[85] Still, based on the evidence of Mr. Nop, Mr. Vater and Mr. Fulfit that I do accept, I find it a reasonable possibility that Mr. Nop was addicted to painkillers, probably Percocets, and I find it a reasonable possibility that he was using some or all of the 100 pills for his personal use.

[86] While I find it a greater probability that Mr. Nop was not just a user but also a trafficker of pills, I am not satisfied that the Crown has established the trafficking beyond a reasonable doubt. While the quantity of the pills, 100, and the fact that Mr. Nop is an admitted trafficker of cocaine lead me to believe that it is more likely than not that Mr. Nop was also trafficking the pills, because of the evidence that he was a user of Percocet pills and Sgt. Bhogal’s evidence, as explained below, I am left in a state of reasonable doubt as to whether Mr. Nop was trafficking the pills.

[87] To complete the W.D. analysis, let me state that, even if I had not been left in reasonable doubt by the evidence of the accused, I would not be convinced beyond a reasonable doubt by the Crown’s evidence. I agree with the Defence submission that, by virtue of Sgt. Bhogal’s evidence, there is an available reasonable inference other than Mr. Nop’s guilt as a trafficker, namely the reasonable possibility that he was only a user of the 100 pills that were visually indistinguishable from Percocets but that contained fentanyl. Sgt. Bhogal testified that it was a reasonable possibility that:

(a) a user could have purchased or been in possession of 50 to 100 pills of an Oxycodone product such as Percocet for personal use; (b) the $810 in cash came from the sale of the cocaine as opposed to the pills containing fentanyl; (c) someone could be trafficking cocaine but only using Oxycodone (i.e. Percocet); and (d) given the huge variation in the pricing of pills containing Oxycodone, a bottle of 100 pills could be purchased for $500 depending on the dosage.

[88] Given Sgt. Bhogal’s evidence, since there is another reasonable inference other than Mr. Nop’s guilt as a trafficker, I cannot convict him of trafficking.

[89] I am also influenced by the location of the 100 pills being separate from the satchel containing the cocaine and other drug paraphernalia. While the centre console location of the pills does not preclude the pills being used for trafficking, the location is consistent with Mr. Nop’s narrative that he frequently needed to access the pills. If the street value of the pills was much higher than $500, say closer to $10,000, I also question why Mr. Nop would leave drugs of such a high value out in the open and in a translucent baggie.

[90] No evidence was presented to me about the potency of the pills or on the likely effects of ingesting pills laced with fentanyl. Although it is true that fentanyl is a far more powerful opioid than Percocet, I have no way of knowing the composition and potency of the pills that Mr. Nop was ingesting all along, or closer to the date of his arrest. I reject the suggestion that I can draw an inference from Mr. Nop’s evidence, that he did not become sick from the pills supplied to him by Sam, to the conclusion that he must have never been taking pills in the first place.

[91] Finally, while I am skeptical of Mr. Nop’s evidence of how he recovered so quickly from a Percocet addiction, I did not have sufficient evidence from an expert or otherwise about what withdrawal from Percocets would look like, and I should not speculate.

[92] In the circumstances, I am not satisfied beyond a reasonable doubt that the pills containing fentanyl were possessed by Mr. Nop for the purpose of trafficking.

[93] Accordingly, Mr. Nop is found guilty of possession of cocaine for the purpose of trafficking, guilty of the lesser and included offence of possession of fentanyl, and guilty of possession of property with a value not exceeding $5,000, specifically $810 in cash, that was the proceeds of crime.

A.M. Pinto J. Date: August 11, 2023