Court File and Parties

COURT FILE NO.: CR-22-065 DATE: 2023-09-20

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – DAJOUR CAMPBELL Defendant

Counsel: Peter Kott for the Crown Jassi Vamadevan for Mr. Campbell

HEARD: June 26, 27, 29 and July 4, 2023

REASONS FOR JUDGMENT

C. Boswell J.

OVERVIEW

[1] Dajour Campbell and Keagan Prophete were committed to jointly stand trial in this court on an eleven-count indictment. Most of those counts are drug-related. Mr. Campbell and Mr. Prophete were jointly charged with possessing cocaine, heroin, fentanyl and Oxycodone. They were further jointly charged with possessing those same substances for the purpose of trafficking in them. Mr. Campbell was individually charged with three additional offences: public mischief, dangerous driving, and flight from police.

[2] The trial of the charged offences commenced on June 26, 2023. Evidence ended on June 29, 2023. At that time, Mr. Prophete’s counsel moved for a directed verdict on all counts against his client. The Crown did not oppose the relief. I found it was appropriate and entered acquittals on Counts one through eight as against Mr. Prophete.

[3] I subsequently heard closing submissions from the Federal Crown and counsel to Mr. Campbell. Crown counsel conceded that no evidence had been called in support of the public mischief charge (Count 9). He invited the court to enter an acquittal on that count and I do so now. The balance of the charges are contested.

[4] The charges arise from an attempted take-down of Mr. Prophete in Collingwood. The police believed he was travelling in a BMW vehicle in Collingwood. They attempted to stop the vehicle. The driver – alleged to have been Mr. Campbell – fled. The car was abandoned at a local car dealership, but not before a local citizen observed an item being thrown from the passenger-side window during the pursuit. The police located what they allege is the thrown item – a Nike tube sock – and found it contained controlled substances. They found further controlled substances in a small, oval bag located during a search of the rear of the car dealership where the BMW was found. A search of the BMW led to the seizure of further controlled substances.

[5] The central issues for trial were whether Mr. Campbell was the driver of the BMW and, if so, whether he had knowledge and control of the drugs found and seized by the police.

THE FACTUAL BACKGROUND

[6] Much of the evidence tendered by the Crown is not particularly contentious. The factual context to the offences can be briefly stated.

The Surveillance on Keagan Prophete

[7] For reasons best known to them, officers of the Ontario Provincial Police were conducting surveillance on Mr. Prophete on May 29, 2020. Detective Constable Brett Anderson was part of a surveillance team observing 12 Joseph St., Brampton, that morning. It was an address the police associated with Mr. Prophete.

[8] DC Anderson testified that he observed a black BMW sedan, bearing license plate CBCZ 031, attend at 12 Joseph Street and leave there at about 8:12 a.m. No one saw Mr. Prophete enter the BMW. In any event, the surveillance team followed the BMW as it departed Brampton and headed north to Collingwood. It stopped at a Tim Horton’s in Springwater Township and made its way through the drive-thru at about 9:38 a.m. This stop is of particular significance to the Crown’s case against Mr. Campbell. The Crown relies heavily on security camera recordings from the drive-thru area to identify Mr. Campbell as the driver of the BMW.

The Attempted Stop of the BMW

[9] Police Constable Greg Baker was a member of an OPP unit that specialized in tactics and rescue. On May 29, 2020 he was assisting the Collingwood street crime unit with the planned arrest of Mr. Prophete. He was driving with a number of other officers in an unmarked police van with emergency lighting.

[10] PC Baker testified that he received information regarding the location of a black BMW bearing license plate CBCZ 031, in which Mr. Prophete was suspected to be a passenger. He said they encountered the vehicle at 10:03 a.m. travelling westbound on Hume Street. It turned north onto Raglan Street. The police van followed at a distance of about 100 metres. At some point along Raglan Street, the BMW did a U-Turn and began to head south on Raglan, directly toward the police van.

[11] PC Baker said he engaged the emergency lighting of the police van. At that point, he said, the driver of the BMW turned hard to the left. PC Baker instructed the driver of the van to force the BMW off the road. The driver was successful in forcing the BMW into a ditch on the east side of Raglan Street, facing south. Nevertheless, the BMW managed to escape from the ditch and it headed southbound on Raglan Street.

The Object Thrown from the BMW

[12] Russell Asma had been out shopping with his wife in downtown Collingwood on the morning of Saturday, May 29, 2020. They were travelling home, heading eastbound on Hume Street. As he was passing through the intersection of Hume and Raglan, he observed a dark coloured sports car go through a stop sign and carry on through the intersection heading east. Raglan Street ends at Hume Street in “T” intersection. The dark car turned left through the intersection, after failing to heed the stop sign and entered traffic just behind Mr. Asma’s car.

[13] Mr. Asma testified that he saw something thrown out of the passenger side window of the dark car as it passed through the intersection. The object landed on the side of Hume Street. He described the object as white and about the size of a child’s small football. He agreed, under cross-examination, that he had described it at the preliminary hearing as a “conglomerate of rags, paper towels and garbage”.

[14] The dark car passed him and proceeded to zigzag through traffic heading east. It proceeded to travel through a red light at the next intersection. Mr. Asma was subsequently passed by a number of police vehicles with their lights flashing.

[15] A short time later, Mr. Asma noticed that a police officer had stopped and blocked a street with his car. He stopped and let the officer know what he had seen.

[16] Mr. Asma could not recall the name of the officer he spoke to. DC Anderson identified himself as that officer. And he said he notified the officer in charge – Acting Detective Sargent Gregory Lemcke – of that information.

[17] D/Sgt Lemcke testified that he attended the area of the intersection of Raglan and Hume at roughly 10:22 a.m. He located a white, Nike sock on the south side of the road. It was in the middle of the sidewalk. He seized it, as it appeared to him to contain controlled substances. He sealed it in a police bag and gave it to Detective Constable Allison Waddington for processing.

The Discovery of the BMW and the Backpack

[18] PC Baker testified that he next saw the BMW at about 10:30 a.m. in the parking lot of Blue Mountain Chrysler, which is located about one kilometre from the intersection of Raglan and Hume. I am not certain about who first observed the BMW there.

[19] PC Baker said that officers satisfied themselves that there were no occupants in the BMW, then began a canine search of the area. Nothing came of that search, so they began a search of the immediate area where the BMW was found. He said that during that search, at roughly 1:10 p.m., he was advised by two officers from his unit that they found something on the ground beside a dumpster located behind the dealership. He said he went to that location and observed a backpack and a small bag on the ground. He said he contacted DC Waddington to take possession. She arrived at 1:28 p.m. and did so.

[20] Under cross-examination, PC Baker agreed that his evidence at the preliminary hearing was that another officer had picked up the small case and handed it to him. In my view, nothing turns on this inconsistency.

The Search of the Seized Items

[21] DC Waddington testified that she was assigned to be the exhibits officer of the investigation. She was directed to attend at Blue Mountain Chrysler. She was shown a backpack and an oval case, which she seized. She was also given an evidence bag by Sgt. Lemcke that contained a white sock. The BMW vehicle was towed to the police detachment to be searched.

[22] DC Waddington searched the backpack, the oval bag, the sock and the BMW. She reported the following observations:

(i) The backpack found at the dealership contained only some loose marijuana leaves and some change;

(ii) The oval case contained: (a) A ziplock bag with 17 grams of white powder, confirmed to be cocaine; (b) White powder weighing 2.7 grams wrapped in plastic, confirmed to be cocaine; (c) White rock powder weighing 1.4 grams wrapped in plastic, confirmed to be cocaine; (d) White rock substance in a wrapper, weighing 3.3 grams, confirmed to be cocaine; and, (e) White rock substance in a wrapper, weighing 3.2 grams, confirmed to be cocaine;

(iii) The white sock contained: (a) A grey-brown-purple substance in a ziplock bag, weighing 18.2 grams, confirmed to be fentanyl; (b) A purple rock substance in a wrapper, weighing 3.2 grams, confirmed to be fentanyl; (c) A purple rock substance in a dime bag, weighing 3.4 grams, confirmed to be a combination of heroin and fentanyl; (d) A purple rock substance weighing 3.1 grams, confirmed to be fentanyl; (e) A purple substance in a wrapper weighing 1.8 grams, confirmed to be fentanyl; (f) Purple rock powder weighing 1.3 grams, confirmed to be fentanyl; and, (g) Purple rock powder in a wrapper weighing 1.3 grams, confirmed to be fentanyl;

(iv) The BMW was found to contain: (a) A temporary driver’s permit in the name of Mr. Campbell; (b) Three receipts for auto repairs, all made out to Mr. Campbell; and, (c) A blue backpack, located in the trunk;

(v) In turn, the blue backpack found in the trunk of the BMW was found to contain: (a) Digital scales; (b) Five dime bags with little hearts; (c) A prescription pill bottle in Mr. Campbell’s name, containing one pill marked “TEC”, suspected to be Percocet; and, (d) An envelope containing a plastic baggie with 108 white pills, also marked “TEC”, again suspected to be Percocets, but tested to be fentanyl.

The Testing of the Substances

[23] DC Waddington sent samples of all of the seized substances to Health Canada for testing. The Crown filed a series of Health Canada certificates confirming the nature of the substances submitted for testing. There is no serious dispute about the conclusions of Health Canada.

[24] Mr. Campbell was charged with possession of Oxycodone and possession of Oxycodone for the purpose of trafficking because the white tablets found in the trunk of the BMW were thought to be Percocets, which is a trade name for Oxycodone. Indeed, the parties filed an Agreed Statement of Fact that the 109 white tablets found in the trunk of the BMW resembled generic Percocet in their size, shape and markings.

[25] In any event, given that the tablets were found to be fentanyl, there is no evidence that Mr. Campbell possessed Oxycodone. In the result, acquittals will be entered on Counts seven and eight.

[26] With that overview in place, I will turn to a short description of the essential elements of the remaining charged offences and review some of the fundamental principles that govern my consideration of the evidence in this case. Then I will begin my analysis of the live issues.

THE ESSENTIAL ELEMENTS

Possession and Possession for the Purpose of Trafficking

[27] To establish Mr. Campbell’s guilt for the offence of possessing a controlled substance, the Crown must establish, to the reasonable doubt standard that:

(i) Mr. Campbell was in possession of a controlled substance; (ii) That the controlled substance was the substance identified in the indictment; and, (iii) Mr. Campbell knew the substance he possessed was a controlled substance.

[28] To establish Mr. Campbell’s guilt for the offence of possessing a controlled substance for the purpose of trafficking in it, the Crown must prove, to the reasonable doubt standard, all of the essential elements required to prove possession of a controlled substance plus the added element that Mr. Campbell’s possession was for the purpose of trafficking in the substance in question.

Dangerous Driving

[29] To establish Mr. Campbell’s guilt for the offence of dangerous driving, the Crown must prove, again to the reasonable doubt standard, that Mr. Campbell operated a vehicle in a manner that was dangerous to the public.

[30] The Supreme Court’s decision in R. v. Beatty, 2008 SCC 5 remains the controlling authority in relation to the essential elements of dangerous driving. The principles from Beatty were explained and applied by Cromwell J. in R. v. Roy, 2012 SCC 26, where he said, at para. 28:

The actus reus of the offence is driving in a manner dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably have been expected to be at that place (s. 249(1)(a) of the Criminal Code) [since repealed and replaced by s. 320.13]. The mens rea is that the degree of care exercised by the accused was a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances (Beatty, at para. 43). The care exhibited by the accused is assessed against the standard of care expected of a reasonably prudent driver in the circumstances. The offence will only be made out if the care exhibited by the accused constitutes a marked departure from that norm. While the distinction between a mere departure from the standard of care, which would justify civil liability, and a marked departure justifying criminal punishment is a matter of degree, the lack of care must be serious enough to merit punishment (para. 48).

Flight From Police

[31] Finally, to establish Mr. Campbell’s guilt for the offence of flight from the police, the Crown must prove, to the reasonable doubt standard, that:

(i) Mr. Campbell operated a motor vehicle; (ii) A peace officer pursued Mr. Campbell in a motor vehicle; (iii) Mr. Campbell knew he was being pursued by a police officer; (iv) Mr. Campbell failed to stop his vehicle as soon as reasonably possible in the circumstances; and, (v) Mr. Campbell had no reasonable excuse for his failure to stop.

See R. v. Kulchisky, 2007 ABCA 110, [2007] A.J. No. 323 (Alta. C.A.), at para. 4; R. v. McLean, 2016 ONCA 38, at para. 6; and R. v. Hadi, 2022 ONSC 2903, at para. 123.

THE LIVE ISSUES

[32] The Crown’s case against Mr. Campbell rests on the finding that he was the driver of the BMW on the occasion in issue. If he was not driving the vehicle when it fled from the police in Collingwood, the Crown will not be able to establish the essential elements of any of the charged offences. Accordingly, issue number one is:

(1) Was Mr. Campbell the driver of the BMW on May 29, 2020?

[33] Even if it is established that Mr. Campbell was the driver of the BMW, the Crown still has a good deal of work ahead of it. The balance of the live issues include:

(2) Did Mr. Campbell have knowledge and control of the controlled substances in issue? (3) If Mr. Campbell possessed the controlled substances in issue, was that possession for the purpose of trafficking? (4) Did Mr. Campbell drive the BMW in a manner that was dangerous to the public and did his driving reflect a marked departure from the standard of care that a reasonable person would observe in the circumstances? And, (5) Did Mr. Campbell knowingly flee from the police?

[34] I will consider the live issues in turn.

DISCUSSION

[35] In considering the live issues and assessing the evidence adduced in this case, I must be mindful of the following fundamental principles.

Fundamental Principles

The Presumption of Innocence

[36] The presumption of innocence is an organizing principle of the Canadian criminal justice system. Mr. Campbell is presumed innocent of the charged offences. The presumption of innocence is only displaced if I am satisfied that the Crown has proven a charged offence beyond a reasonable doubt.

The Burden and Standard of Proof

[37] The Crown has the sole burden of proving Mr. Campbell’s guilt with respect to each of the charged offences. Mr. Campbell has no obligation to prove anything and he had no obligation to testify.

[38] Mr. Campbell’s guilt must be established to the reasonable doubt standard before a conviction can be registered against him.

The Assessment of Evidence

[39] The evidence of each witness who testified must be considered from a common sense perspective, with an open mind and without sympathy, prejudice or bias. As the trier of fact, I may choose to believe and rely upon some, all, or none of any witness’s testimony.

[40] The Crown’s case against Mr. Campbell, on each of the charged offences, turns largely on circumstantial evidence. Where that is the case, a special instruction applies. I have self-instructed that when the Crown’s case consists wholly or substantially of circumstantial evidence, I am required to be satisfied beyond a reasonable doubt that Mr. Campbell’s guilt is the only reasonable inference to be drawn from the evidence as a whole. See R. v. Villaroman, 2016 SCC 33, at para. 20.

[41] It is the evidence, assessed as a whole, that must meet this standard of proof, not each individual piece of evidence that may amount to just one link in the chain of proof. See R. v. Lights, 2020 ONCA 128, at para. 37.

[42] Inferences consistent with innocence need not arise from proven facts. They may also arise from a lack of evidence. See Villaroman, at para. 35. Accordingly, a trier of fact must consider other plausible theories and reasonable possibilities inconsistent with guilt so long as these theories and possibilities are grounded on logic and experience. The Crown must negate these reasonable possibilities, but it need not negate every possible conjecture, no matter how irrational or fanciful, which might be consistent with an accused’s innocence. See Lights, at para. 38. The “only reasonable inference” criterion does not mean that guilt has to be the only possible inference. See R. v. Vernelus, 2022 SCC 53.

[43] With those principles in mind, I will turn now to a consideration of the live issues arising from the evidence and the positions taken by the parties in the litigation.

(1) Was Mr. Campbell the Driver of the BMW?

[44] None of the witnesses who testified offered eyewitness identification evidence based on their observations of the occupants of the BMW as the alleged offences were underway.

The Leaney Application

[45] The Crown entered into evidence the videorecordings from two security cameras covering the area around the drive-thru window of a Tim Horton’s restaurant visited by the BMW in issue at roughly 9:38 a.m. on May 29, 2020. The videorecordings offer a clear view of the face of the driver. The Crown sought to adduce the opinion of DC Andrew Cordeiro that Mr. Campbell was that driver, relying on the principles of R. v. Leaney (1989), 50 C.C.C. (3d) 289 (SCC) regarding the admissibility of lay recognition opinion evidence.

[46] In Leaney, the Supreme Court held that non-expert opinion evidence regarding the identification of a person recorded on a security camera may be admissible provided the witness has a prior acquaintance with the accused and is in a better position than the trier of fact to identify the perpetrator. See also R. v. Brown, [2006] O.J. No. 5077 (C.A.); R. v. Behre, 2012 ONCA 716; and R. v. Hudson, 2020 ONCA 507.

[47] When the Crown sought to tender DC Cordeiro’s opinion identification evidence, the court entered into a voir dire. It was immediately apparent to me that DC Cordeiro had very limited prior acquaintance with Mr. Campbell. Indeed, it was limited to the following:

(i) He conducted surveillance on the BMW in Collingwood on May 26, 2020. He observed the vehicle in a parking lot. The driver of the vehicle exited, locked the car door, turned and walked into a building. He said he was able to observe the driver for about one to two minutes. He described the driver as a Black male with “shorter dreadlocks"; and, (ii) Mr. Campbell was arrested for the index offences on June 3, 2020. DC Cordeiro was the arresting officer. Mr. Campbell attended at the Collingwood OPP detachment and turned himself in. DC Cordeiro provided him with his right to counsel and caution. The entire process took less than an hour. DC Cordeiro described Mr. Campbell as being in his “immediate proximity” during that time.

[48] DC Cordeiro did not offer any particular, distinguishing features that assisted him in identifying Mr. Campbell from the Tim Horton’s security images.

[49] In Hudson, the Court of Appeal re-affirmed the “prior acquaintance/better position” test articulated in Behre. They instructed, at para. 31, that “a trial judge should generally only permit a potential recognition witness to testify where the judge is satisfied, on a balance of probabilities, that the witness’s relationship with the accused affords him or her a level of familiarity that will enable the witness to provide valuable and otherwise unavailable identifying information.”

[50] In my view, DC Cordeiro’s limited interactions with Mr. Campbell do not support a positive finding on either the prior acquaintance or better position branches of the test. While he arguably had an articulated basis for his opinion evidence, I find that he was not able to provide valuable and otherwise unavailable identifying information.

[51] I find the circumstances of this case to be similar to those in R. v. Ogilvie, 2023 ONSC 4039, where Corthorn J. refused to permit the Crown to adduce recognition evidence from a police officer whose only prior contact with the accused was a 49-minute interview. Here, like there, I am, as the trial judge, in a better position to observe Mr. Campbell’s features and compare them to the Tim Horton’s security video. In the course of the trial I spent considerably more time in Mr. Campbell’s direct presence than DC Cordeiro ever has.

The Tim Horton’s Videorecordings

[52] Given the proliferation of video-recording devices such as security cameras, smartphones, doorbell cameras, dashcams, body-worn cameras, and the like, it is almost hard to imagine a time when the admissibility of videorecorded evidence for identification purposes was controversial. In R. v. Nikolovski, [1996] 3 S.C.R. 1197, the Supreme Court grappled with the question of whether a videorecording of a robbery could be adduced by the Crown as evidence of the identification of the perpetrator, without the need of an intermediary in the form of a human witness to aid in the identification.

[53] A majority of the Supreme Court concluded that, provided the recording is of sufficient clarity and quality that it would be reasonable for the trier of fact to identify the accused as the person in the tape beyond any reasonable doubt” then the trier of fact will be at liberty to find that the accused before the court is the person shown on the videotape. See Nikolovski, at para. 23.

[54] In this instance, the Tim Horton’s videorecordings are of excellent quality and clarity.

[55] In reviewing and considering the videorecording evidence as evidence of identification, I appreciate that I am placing myself in a position not unlike an eyewitness to the event. I must take a cautious approach to the evidence and I have reminded myself of the frailties of this type of identification evidence.

[56] In particular, I recognize that eyewitness identification evidence has a notorious history of unreliability. Apart from the general quality and clarity of the videorecording, I must take into account such factors as, amongst others:

• the length of time the subject is visible on the recording;
• the extent to which the subject can be observed in the recording – is his full face visible or only partially visible?
• the presence or absence of any distinctive features about the subject;
• the circumstances in which the subject can be seen;
• whether the subject’s appearance has changed since the time of the alleged offences; and,
• concerns about cross-racial identification. See, for instance, R. v. Mathias, 2018 ONSC 221, at paras. 88-89.

Findings on the Issue of Identification

[57] Exhibit six is a recording from a camera located inside the building, facing out through the drive-thru window. Exhibit seven is a recording from a camera located on the exterior of the wall outside the drive-through window. It captures the front windshields of vehicles as they move through the drive-thru area.

[58] I have carefully reviewed both recordings. Exhibit six is the less helpful of the two. The inside camera does not face straight out the drive-thru window. It is instead directed at the window from an angle, so that it captures vehicles as they approach the drive-thru window. Due to a number of obstructions, the face of the driver of the BWM is visible only very briefly. That said, it is possible to watch the recording on a frame-by-frame basis, so that the image of the driver’s face can be frozen. Even then, however, the driver’s side window is roughly two-thirds of the way up and it tends to obstruct the view of the driver’s face.

[59] Exhibit seven provides a much clearer view of the driver’s face. It is a lengthier view and, of course, can again be reviewed on a frame-by-frame basis. At one point the driver leans through the car window and points at something inside the drive-thru window. Moments later, he leans through again in order to pay for his order, either with a debit or credit card.

[60] I have been able to compare the images on the videorecording to my observations of Mr. Campbell in the courtroom, as well as to an image of Mr. Campbell on file with the Ministry of Transportation, that was marked as trial exhibit 8C.

[61] I am not sure about when Mr. Campbell’s MTO photograph was taken, but he appears in that photograph to be younger than the driver of the BMW. That said, he also appears younger than Mr. Campbell was when he appeared in court before me. Mr. Campbell’s skin tone in the MTO photograph also appears lighter than the skin tone of the driver of the BMW. But again, it also appears lighter than my observation of Mr. Campbell’s skin tone when he appeared in court before me.

[62] The driver of the BMW is wearing a head covering, which appears to be a toque. I am, in the result, unable to compare his hair with my observations of Mr. Campbell’s hair in the courtroom. He is also wearing glasses. Mr. Campbell is not wearing glasses in his MTO photograph nor was he wearing glasses in court. The glasses do not, however, significantly obstruct the view of the face of the BMW driver.

[63] Though I know from Mr. Campbell’s driver’s license that he is 175 cm tall (roughly 5” 9”), I am unable to compare his height or his build to the BMW driver given that he is seated in the car at all times.

[64] Having said all of that, I find that the driver of the BMW otherwise bears a strong resemblance to Mr. Campbell. The shape of his face, the shape of his nose and mouth, and his skin tone are all consistent with Mr. Campbell as I observed him in court. And the shape of his face, including his nose, mouth and the distance between his eyes, are all consistent with the MTO photograph of Mr. Campbell.

[65] I appreciate that these few individual characteristics are not, by themselves, especially compelling. But they are parts of a more compendious opinion that I have formed when comparing the appearance of the BMW driver, seen on the videorecordings, with Mr. Campbell as I observed him in the courtroom and in his MTO photograph. In my view, the driver of the BMW was Mr. Campbell.

[66] Having said that, on the basis of the videorecordings alone, I would not be able to identify the driver of the BMW as Mr. Campbell to the reasonable doubt standard. But this is not a case, like Nikolovski, where the videorecordings stand alone.

[67] While there is no admissible evidence about the registration of the vehicle, there was significant evidence seized from the vehicle that ties Mr. Campbell to it. In particular:

(i) A temporary driver’s permit in Mr. Campbell’s name; (ii) Three receipts for servicing the vehicle, all in Mr. Campbell’s name; and, (iii) A prescription pill bottle in Mr. Campbell’s name, located in a backpack in the trunk.

[68] Moreover, DC Cordeiro testified that he observed a male, whom he identified as Mr. Campbell, as he exited the same BMW in a parking lot in Collingwood on May 26, 2020. I put relatively little weight on this identification for a number of reasons, including (1) Mr. Prophete and not Mr. Campbell was the subject of the surveillance that day; (2) DC Codeiro had a limited opportunity to observe Mr. Campbell; (3) Mr. Campbell was not a person DC Cordeiro was familiar with at the time of his observations on May 26, 2020; and (4) DC Cordeiro made very limited notes about the description of the person he observed exiting the driver’s door of the BMW on this occasion.

[69] Despite the limited weight I attach to it, DC Cordeiro’s testimony is some evidence that tends to tie Mr. Campbell to the BMW.

[70] Based on my own observations from the videorecording, the circumstantial evidence of identity seized from the BMW, and DC Cordeiro’s observations of Mr. Campbell on May 26, 2020, I am satisfied, beyond a reasonable doubt, that Mr. Campbell was the driver of the vehicle on the occasion in question.

(2) Did Mr. Campbell have knowledge and control of the controlled substances in issue?

[71] Mr. Campbell is charged with possessing cocaine, heroin and fentanyl. There is no dispute that all three are controlled substances.

[72] The term “possession” is defined in s. 4(3) of the Criminal Code of Canada. That section identifies 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).

See R. v. Pham, [2005] O.J. No. 5127 at para 14.

[73] The Crown did not clarify in closing submissions whether it relies in this case on personal, constructive or joint possession. The Crown’s submissions were that the court should have no problem finding possession on the part of Mr. Campbell because (1) there is a clear link between Mr. Campbell and the car, where the fentanyl was located; (2) there is a clear link between the car and the drug-filled Nike sock found on the side of Hume Street; and (3) there is a strong link between the little bag filled with drugs and the abandoned BMW. That link arises due to, in the Crown’s submissions, the extreme improbability that an unrelated bag filled with drugs would be found in close proximity to an abandoned BMW that had only a short time earlier been the subject of a police chase.

[74] Regardless of the nature of possession, knowledge and control are essential elements that the Crown must prove.

[75] To establish personal possession, the Crown must prove that Mr. Campbell was aware that he had physical custody of the thing in question and he must be aware of what that thing is. At the same time he must have a measure of control over the thing. See R. v. Morelli, 2010 SCC 8, at para. 16.

[76] Constructive possession was described by Fish J., at para. 17 of Morelli, as follows:

Constructive possession is established where the accused did not have physical custody of the object in question, but did have it "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 use or benefit of himself or of another person" (Criminal Code, s. 4(3)(a)). Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his "use or benefit" or that of another person.

[77] Joint possession was described by Kozak J., sitting ad hoc on the Court of Appeal, in R. v. Pham, as above at para. 16:

In order to constitute joint possession pursuant to s. 4(3)(b) of the Code there must be knowledge, consent, and a measure of control on the part of the person deemed to be in possession …

[78] It is important to note that no presumption of knowledge and control arises from proof of occupancy. In other words, the fact that Mr. Campbell was an occupant of the BMW does not create a presumption of possession. See R. v. Lights, at para. 50.

[79] Moreover, “knowledge” is defined as “true belief” and includes both actual knowledge and wilful blindness. Wilful blindness arises where a person is aware of the need for some inquiry but declines to make that inquiry because they do not wish to know the truth. See R. v. Briscoe, 2010 SCC 13, at paras. 22-24.

[80] I will address the issues of knowledge and control with respect to substances found in three different locations.

The Pills in the Trunk

[81] First, I will focus on the tablets found in the trunk of the BMW.

[82] I am satisfied, based on the Health Canada Certificate, that the tablets located in the trunk of the BMW were fentanyl and that fentanyl is a controlled substance.

[83] There were 109 tablets in all, which is a significant number. In other words, it is not as though the police found one or two tablets on the floor under a seat where they may have accidentally fallen. Instead, they found 109 tablets in an envelope, located in a backpack. Someone clearly intentionally placed the tablets in that envelope.

[84] The backpack is firmly connected to Mr. Campbell. It contained a prescription pill bottle in his name. Moreover, it was in the trunk of a car that I have found Mr. Campbell to have been driving.

[85] There is no admissible evidence regarding the ownership and registration of the car. But there is evidence that suggests Mr. Campbell had more than a transient interest in the vehicle. Not only was he driving it on the day in question, but his temporary driver’s license from 2018 was found in the car, along with three separate receipts for repairs, all in his name.

[86] The repairs were significant. On April 2, 2018, Mr. Campbell appears to have spent almost $2,100 for new tie rods and sway bars, wheel alignment, front brakes (rotors and pads) and an oil change. On July 5, 2018, he replaced a tire. And on September 17, 2018, he spent roughly $900 on a new valve cover gasket, cam-adjuster gasket, ignition coil and new spark plugs. The fact that Mr. Campbell spent significant amounts of money repairing the BMW supports the conclusion that he was more than an occasional driver of it.

[87] It is always possible that someone other than Mr. Campbell placed the backpack containing the tablets into the trunk. There was, after all, a second occupant of the BMW on the day in question. Moreover, the evidentiary record does not permit me to conclude that Mr. Campbell had exclusive use of the BMW. But the notion that someone other than Mr. Campbell placed a backpack containing a prescription pill bottle in his name into the trunk of a car that he was driving and obviously had a history of control over is too fanciful to be worthy of any serious consideration.

[88] In the result, I am satisfied, beyond a reasonable doubt, that the only rational conclusions, on a consideration of the circumstantial evidence as a whole, are that Mr. Campbell knew of the presence of the tablets in the backpack found in the trunk of the car and that he had control over them. He placed them there for his benefit.

[89] I am not, I note, satisfied that Mr. Campbell knew the tablets were fentanyl. It is an agreed fact in this case that they appeared to be Percocets. But Percocets are also a controlled substance. It does not matter that an accused is mistaken about which controlled substance he possesses. See R. v. Williams, 2009 ONCA 342 at para. 19.

[90] There is no direct evidence that Mr. Campbell was familiar with the markings of Percocet tablets. But I am satisfied that someone who has 109 pills in an envelope in a backpack, which also contains digital scales and dime baggies, has a pretty good idea that those pills are a controlled substance, or is wilfully blind about what they are. I am satisfied that the Crown has established the knowledge element to the reasonable doubt standard.

[91] In the result, there will be a conviction, on count five, for possession of fentanyl.

[92] Before I move on, I wish to comment on the existence of after-the-fact conduct evidence that may arguably be relevant to the court’s consideration of the possession counts. In particular, flight from the police is often used to support an inference that the accused is aware that he has committed a criminal offence. In this case, it tends to support the inference that Mr. Campbell knew there were drugs in the car. But this case involves drugs in a sock, drugs in a backpack and drugs in a little, oval case. Flight from the police does not assist in determining Mr. Campbell’s knowledge of the presence of any particular drugs in the vehicle. And it does not support an inference that he knew about all of the drugs because he might have fled from police even if he only knew, for instance, about the pills in the trunk. In other words, I am of the view that the evidence of flight from the police is not helpful in assessing Mr. Campbell’s culpability for any of the charged offences.

[93] In any event, Crown counsel did not rely on after-the-fact conduct as evidence of knowledge and control with respect to any of the counts before the court. I have similarly not relied upon it in reaching any of my conclusions about whether Mr. Campbell had knowledge and control of any of the substances referred to in the Indictment.

The Substances in the Sock

[94] I am satisfied that the Nike sock containing fentanyl and heroin was the object Mr. Asma saw thrown from the passenger window of the BMW as it travelled through the intersection of Hume and Raglan Streets.

[95] Again, the evidence supporting the source of the sock is circumstantial. But it is compelling. The police attempted to pull over the BMW. The BMW sped off. A short distance later, a motorist observed an item thrown out of a window of the car. He was sufficiently concerned that he reported it to the police. The police promptly investigated and located the sock, containing what turned out to be significant amounts of fentanyl inside of it, at the very location where the motorist said he saw something tossed.

[96] It is a fact that there is far too much fentanyl on the streets of our communities. That said, it is still highly unusual, in my view, for there to be a sock full of fentanyl to be found laying by the side of the road. And a sock full of drugs is just the kind of thing that someone fleeing from the police might throw out the window.

[97] The only rational conclusion in the circumstances is that the sock containing fentanyl was thrown from the BMW.

[98] The fact that the sock was thrown from the BMW does not, however, inexorably lead to a finding of guilt in terms of the possession of the substances in the sock.

[99] My impression is that the police were of the view that Mr. Prophete was a drug dealer. And I think the Crown’s case against Mr. Campell was based largely on the notion that he was jointly involved with Mr. Prophete in that enterprise.

[100] The Crown’s case against Mr. Prophete fell apart, however, because they were not able to adduce any evidence that Mr. Prophete was an occupant of the BMW on the occasion in question.

[101] There is no evidence, in the circumstances, about who the passenger was in the BMW.

[102] The drug-filled sock was thrown from the passenger window. A reasonable inference is that the passenger did the throwing. But I can only really speculate about what, if anything, Mr. Campbell knew about the sock and its contents. It would have been different, of course, if Mr. Campbell had been the sole occupant of the BMW. But that is not the case.

[103] There is no evidence that Mr. Campbell was in actual possession of the drug-filled sock.

[104] For constructive possession to be established, there must be knowledge of the drug-filled sock which extends beyond mere quiescence, or indifference, and discloses some measure of control over it. See R. v. Corno, 2014 NBQB 103, at para. 11. In my view, the evidentiary record does not support a finding that Mr. Campbell was in constructive possession of the drugs in the sock.

[105] In his opening statement, Crown counsel indicated that the Crown’s position is that the occupants of the BMW were in joint possession of all of the drugs seized in this case. For the Crown to make out joint possession, they would have to prove to the reasonable doubt standard that Mr. Campbell knew of the other occupant’s possession of the drug-filled sock, consented to that possession and had some control over it.

[106] Though Mr. Campbell had some measure of control over who or what entered his car, I am unable to find, on this evidentiary record, that he knew about the drugs in the sock and that he consented to the possession of those drugs by the second occupant of the vehicle. Though the circumstances of this case suggest that his knowledge and consent is likely, the Crown’s case must be proven to the reasonable doubt standard.

[107] No conviction will be entered therefore, in relation to Mr. Campbell’s alleged possession of the substances in the Nike sock. The only heroin seized in this investigation was found in the Nike sock. In the result, Mr. Campbell is acquitted on Counts three and four.

The Substances in the Oval Bag

[108] I reach a similar conclusion with respect to the contents of the oval bag found in the back of the car dealership.

[109] I agree with Crown counsel’s submission that the backpack and smaller oval bag that contained some 27.6 grams of cocaine were abandoned behind the dealership by one of the occupants of the BMW.

[110] The BMW was under surveillance by the police because they thought a drug dealer was travelling in it. When they attempted to stop it by ramming it into a ditch, it took off. Someone threw a sock containing fentanyl out of a window of the car as it fled from the police. The car was abandoned about one kilometre away in the parking lot of a car dealership. A search of the rear of the dealership resulted in the location and seizure of a bag containing cocaine.

[111] In all of the circumstances, the only rational explanation is that one or the other of the occupants of the BMW abandoned the small bag of drugs in the rear of the dealership as they fled on foot.

[112] That said, it is impossible to say which of the occupants of the BWM did so. Again, there is insufficient evidence on which to make a finding, to the reasonable doubt standard, that Mr. Campbell had knowledge of the contents of the little bag and a measure of control over it. He may have. In fact, I suspect in all the circumstances that he did. But that is not the standard of proof necessary for a conviction.

[113] In the result, acquittals will be entered on Counts 1 and 2.

(3) If Mr. Campbell possessed the controlled substances in issue, was that possession for the purpose of trafficking?

[114] The only substance I have found Mr. Campbell to have been in possession of is the 109 fentanyl tablets. I am not satisfied that Mr. Campbell knew the tablets were fentanyl, but I am satisfied beyond a reasonable doubt that he knew they were a controlled substance.

[115] The Crown did not tender any expert evidence on the indicia of trafficking in opioids. That said, expert evidence is not necessary in every case. Here, the sheer number of pills, located in a backpack that also contained digital scales and dime baggies, satisfies me beyond a reasonable doubt that Mr. Campbell’s purpose for possessing the tablets was to traffic in them.

[116] In the result, there will be a conviction entered on Count six.

[117] I will move on to consider the driving offences.

(4) Did Mr. Campbell drive the BMW in a manner that was dangerous to the public and did his driving reflect a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances?

[118] Dangerous driving is a negligence-based offence. Earlier I set out its essential elements. The conduct element of the offence focuses on the nature of the driving and whether it is objectively dangerous in all the circumstances. The fault element of the offence reflects an objective mens rea. It also focuses on the manner of driving, but from a somewhat different perspective than the conduct element. A modified objective standard is used to assess whether the manner of driving attracts criminal fault. See R. v. Beatty, at para. 36.

[119] The dangerous manner of Mr. Campbell’s driving must be a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances as those of the accused. In this way liability for civil negligence can be separated from culpability for criminal conduct. As Justice Charron instructed in R. v. Beatty, at para. 36, “[i]t is only when there is a marked departure from the norm that objectively dangerous conduct demonstrates sufficient blameworthiness to support a finding of penal liability.”

[120] The police forced Mr. Campbell’s vehicle off the road on Raglan Street. In response, Mr. Campbell sped off. The particulars of his driving after he left the location of the police stop were provided by Mr. Asma.

[121] I found Mr. Asma to be an entirely credible and reliable witness. He has no “skin in the game”. He provided an independent and objective account of the circumstances as he observed them. He was in an excellent position to make the observations he made. And there are no significant inconsistencies – either internal or external – in his account. On the basis of his evidence, I find that:

(i) Mr. Campbell drove through the stop sign where Raglan Street connects with Hume Street; (ii) Mr. Campbell then zigzagged through traffic as he headed towards the next intersection; and, (iii) At the next intersection, Mr. Campbell proceeded to drive through a red light.

[122] No direct evidence was adduced as to the speed at which Mr. Campbell was travelling. Mr. Asma did say that several police vehicles passed him in pursuit of the BMW and that they were travelling at a high rate of speed. Given that the BMW was fleeing from the police, that it failed to stop at a stop sign or for a red light and that the police, who were travelling at a high rate of speed, did not catch up to it, I infer that the BMW was also travelling at a high rate of speed, though I am not able to be more precise than that.

[123] Mr. Campbell’s driving took place on one of the principal thoroughfares of Collingwood on a Saturday morning at just after 10:00 a.m. on a late spring day. There were numerous other motorists on the road.

[124] I am satisfied beyond a reasonable doubt that Mr. Campbell drove in a manner dangerous to the public, having regard to all the circumstances, as I have just outlined them. Fleeing from the police, travelling at a high rate of speed, weaving in and out of traffic and failing to adhere to a stop sign and a red light on one of the main thoroughfares through Collingwood, mid-morning on a Saturday, are factors that, when combined, created considerable danger to the public.

[125] I am, moreover, satisfied that Mr. Campbell’s driving, in the circumstances, was a marked departure from the standard of care that one would expect from a reasonably prudent driver in the circumstances. It was, quite frankly, outrageous behaviour.

[126] In the result, there will be a conviction on Count ten.

(5) Did Mr. Campbell knowingly flee from the police?

[127] The essential elements of the offence of fleeing from the police are easily made out in this case.

[128] There is no question that Mr. Campbell fled from the police. They tried to force him off the road by ramming his car. He took off. Multiple police cars pursued him. He knew he was being pursued so he abandoned his car and fled on foot. There is no reasonable excuse for his conduct.

[129] There will be a conviction entered on Count 11.

SUMMARY

[130] To summarize, for the reasons I have expressed, Mr. Campbell is convicted of the following offences:

(i) Count 5: possession of fentanyl; (ii) Count 6: possession of fentanyl for the purpose of trafficking; (iii) Count 10: dangerous driving; and, (iv) Count 11: flight from police.

[131] He is acquitted of Counts 1, 2, 3, 4, 7, 8, and 9.

C. Boswell J.

Released: September 20, 2023