COURT FILE NO.: CR-24-8 DATE: 20240530

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

His Majesty the King K. McGilly, for the Federal Crown Applicant

- and -

Alexa Davis J. Stevenson, counsel for the Defendant Respondent

HEARD: May 30, 2024

REASONS FOR JUDGMENT

M. BORDIN, J. (ORALLY)

[ 1 ] Ms. Davis is charged with possessing fentanyl for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act (“CDSA”) and with possessing proceeds of crime not exceeding five thousand dollars pursuant to section 354(1) of the Criminal Code of Canada. The alleged offences occurred on March 5, 2023.

[ 2 ] Ms. Davis plead not guilty to both charges.

[ 3 ] The charge of willfully obstructing a peace officer contrary to section 129(a) of the Criminal Code of Canada has been withdrawn.

[ 4 ] According to the Agreed Statement of Facts submitted by the parties, the only issue for determination is whether Ms. Davis was in possession of 23 grams of fentanyl for the purpose of trafficking rather than for personal use.

Agreed Facts

[ 5 ] The Crown called one witness, Officer Carissa Chapman. Ms. Davis was the only witness for the defence.

[ 6 ] The parties tendered an Agreed Statement of Facts which was marked as Exhibit 2. The following summary of facts is taken from the Agreed Statement of Facts.

[ 7 ] Ms. Davis was arrested on March 5, 2023, when police responded to a female, agreed to be Ms. Davis, rolling on the ground and who appeared to be under the influence. A surety revocation warrant existed for her arrest and Ms. Davis was arrested, given her rights to counsel and cautioned. She was transported to the Six Nations police station.

[ 8 ] Ms. Davis was found in possession of multiple unused needles, a burned spoon and a purple cell phone. She also had $220.00 in Canadian currency with her. Following a search of Ms. Davis, a needle was removed from her underwear and two zip lock bags were retrieved from her bra area. A search of the bags revealed a needle and three smaller wrapped baggies of white powder and purple rock substances and burned tin foil. Further inspection revealed the three smaller wrapped baggies contained purple, pink and blue fentanyl.

[ 9 ] The following were the substances seized from Ms. Davis: a) 3.8 grams of blue fentanyl b) 14.9 grams of dark blue fentanyl c) 1.4g of dark blue fentanyl d) 1.9 grams of dark blue fentanyl and e) 1g of light pink fentanyl In total there was 23 grams of fentanyl.

[ 10 ] Five Certificates of Analyst from Health Canada were marked as Exhibit 1A through 1E. The certificates disclose that each of the five packages of fentanyl contained other substances including other controlled substances and non-controlled substances as set out in the certificates. A quantitative analysis was not conducted and therefore there is no evidence as to the percentage of fentanyl contained in the substances. There is no evidence linking the five certificates of analyst with the specific five quantities of fentanyl seized. However, each of the certificates contains a different combination of substances, notwithstanding two of the substances are described as blue fentanyl, and two of them are described as dark blue fentanyl.

The Crown’s Burden

[ 11 ] An accused is presumed innocent until the trier of fact, weighing all the evidence, makes a determination at the end of the trial that the Crown has proven its case beyond a reasonable doubt. The standard of proof of beyond a reasonable doubt is intertwined with the presumption of innocence. The onus is on the Crown to prove beyond a reasonable doubt, that Ms. Davis committed the offences with which she is charged. There's no onus on Ms. Davis to call or lead evidence or to disprove the charges.

[ 12 ] Triers of fact are not to examine facts piecemeal but rather by applying a standard of proof to each one. Except in rare situations, like those in which the Crown’s entire burden is carried by a single fact, it is an error to proceed in that fashion. Pieces of evidence must not be considered in isolation, but cumulatively in an effort to decide whether, on the evidence as a whole, guilt is established beyond a reasonable doubt. It is the cumulative effect of that evidence that matters. See R. v Pham, 2019 ONCA 338, 377 C.C.C. (3d) 64, at para 22.

[ 13 ] I am guided by the three-part test in R. v. W.(D.), [1991] 1 S.C.R. 742, where the court set out a suggested formula for assessing credibility in the context of the criminal standard of proof: a. If I believe the evidence of the accused, I must acquit. b. If I do not believe the testimony of the accused but I am left in reasonable doubt by it, I must acquit. c. Even if I am not left in doubt by the evidence of the accused, I must ask myself whether, based on the evidence that I do accept, I am convinced beyond a reasonable doubt of the guilt of the accused.

[ 14 ] The evidence of the accused in the W.(D.) formulation applies not just to the accused’s testimony, but to exculpatory evidence led by the accused or arising out of the Crown’s evidence. I am not to choose between the evidence of the accused and the Crown’s evidence. I am to assess the totality of the evidence. I can accept all, some or none of the evidence of a witness.

Circumstantial Evidence

[ 15 ] The Crown concedes its case is a circumstantial case. The only case to which the Crown referred was R. v. Villaroman, 2016 SCC 33.

[ 16 ] In a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits. The inferences that may be drawn from this observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense: Villaroman, para. 30.

[ 17 ] In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: Villaroman, at para. 35. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all the evidence. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt: Villaroman, at para. 35.

[ 18 ] A reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by the mere fact that it arises from a lack of evidence: Villaroman, at para. 36.

[ 19 ] As noted in para. 37 of Villaroman, when assessing circumstantial evidence, the trier of fact should consider other plausible theories and other reasonable possibilities which are inconsistent with guilt. Further, the Crown may need to negative reasonable possibilities but does not need to negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

[ 20 ] The line between a plausible theory and speculation is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty: Villaroman, at para. 38.

[ 21 ] To justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative: Villaroman, at para. 41.

[ 22 ] A trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable. Alternative inferences must be reasonable, not just possible: Villaroman, at para. 42.

The Crown’s Position

[ 23 ] The Crown’s position is that the only reasonable conclusion to be drawn from the evidence is that Ms. Davis was a user and a trafficker. The Crown says that the suggestion that Ms. Davis had in her possession the quantity and nature of the drugs found on her person only for personal use is conjecture and fanciful.

[ 24 ] The Crown says that I should reject Ms. Davis’ evidence that she had the fentanyl only for personal use, based on common sense and human experience informed by the expert evidence of Officer Chapman. The Crown submits that Ms. Davis’s evidence of what she paid for the fentanyl makes no sense given her evidence of what she said 28 grams of fentanyl would cost.

[ 25 ] The Crown relies on the amount of fentanyl, the packaging and different colours and make-up of the fentanyl and the $220 in cash found on Ms. Davis as indicia of trafficking. The Crown concedes that there were no scales found but indicates that Officer Chapman’s evidence was that experienced dealers can eyeball amounts.

Ms. Davis’ Position

[ 26 ] Ms. Davis acknowledges purchasing the substance which she does not deny is fentanyl. She acknowledges she was in possession of the fentanyl. She says that her evidence that it was for personal use should be accepted by this court. She notes her evidence of being an addict is supported by the agreed statement of facts which indicates she was found rolling on the ground and appeared to be under the influence. Alternatively, she submits that her evidence gives rise to a reasonable doubt because on the evidence, personal use of the fentanyl is a reasonable explanation for the quantity of the fentanyl in her possession.

[ 27 ] While acknowledging that the quantity and the packaging of the fentanyl are indicia of trafficking, Ms. Davis points to the undisputed evidence of personal use – the spoon, needles and foil. She points to the lack of any other indicia of trafficking. Ms. Davis submits that there is insufficient evidence with respect to the cash found on her person, including no evidence regarding the denominations, for it to be of any assistance to the court.

[ 28 ] Ms. Davis submits that the expert evidence does not rise to the level of establishing guilt beyond a reasonable doubt.

The Possession for the Purpose of Trafficking Charge

[ 29 ] Fentanyl is a controlled substance under Schedule I of the CDSA.

[ 30 ] Pursuant to section 4(3)(a) of the Criminal Code a person has something in her possession when she has it in her personal possession.

[ 31 ] The evidence establishes beyond a reasonable doubt three of the elements of possession for the purpose of trafficking, namely, Ms. Davis was in possession of a controlled substance which was fentanyl, and which she knew was fentanyl. Ms. Davis readily admitted that at the time of her arrest she had been using fentanyl for about 10 years. She admitted that she purchased the fentanyl. The fentanyl was on her person, in her bra area. As set out in the agreed statement of facts, she acknowledged to the police that she had fentanyl.

[ 32 ] The only issue on the possession for the purpose of trafficking charge is whether Ms. Davis possessed the fentanyl for the purpose of trafficking or for her own use.

[ 33 ] “Traffic” means to sell, administer, give, transfer, transport, send, or deliver something to someone.

[ 34 ] To “sell” includes to offer or expose for sale, to have a thing in your possession for sale, and to distribute. To “transport” means to carry a substance in order to distribute it to others. It does not matter whether money or anything else of value actually changes hands, as long as the accused possessed the fentanyl and provided it, or offered to provide it to someone else.

[ 35 ] The Crown does not have to prove that Ms. Davis actually sold, delivered, distributed or otherwise made the fentanyl available to other persons. The Crown must prove beyond a reasonable doubt, that she had the fentanyl for the purpose of making it available in some manner to others.

[ 36 ] Purpose is a state of mind. In particular, the state of mind of the accused: R. v Ghotra 2016 ONSC 1324, [2016] O.J. No. 957.

[ 37 ] As noted by Justice Hill in R v Gordon, 2018 ONSC 1297, at paragraph 65, whether a prohibited substance is possessed for the purpose of trafficking calls for a fact specific inquiry into all relevant circumstances. While in one case, a certain quantity of drugs may not be possessed for the purpose of trafficking, in another case a lesser amount may suffice for trafficking. In some instances, the evidence supporting a possession for the purpose of trafficking inference may be quite overwhelming, while in other cases a lesser matrix of circumstantial evidence may nevertheless amount to compelling proof.

Ms. Davis’s Evidence

[ 38 ] Ms. Davis testified that on the day of her arrest she was kicked out of her parents home and was homeless. She was not working and had not been working since at least September 2022. She was in receipt of public assistance. Ms. Davis readily admitted that she had been using fentanyl for about 10 years and she was an addict. She admits she was in possession of the needles and spoon because she was an addict. She testified she had the fentanyl on her because she needed the drugs and she had been kicked out of her parents house that day.

[ 39 ] Ms. Davis’s evidence that she was an addict and a user was not challenged. I accept this evidence.

[ 40 ] Ms. Davis testified that she purchased 28 grams of fentanyl three days before her arrest. She says she acquired the fentanyl in the separate baggies and packages because that is what was available. She testified she came into money because she received a tax refund. She testified she paid $600 for an ounce (28 grams) of fentanyl.

[ 41 ] Ms. Davis says the $220 that was found in her possession was what she had left of the tax refund.

[ 42 ] Her evidence as to who she purchased the fentanyl from was not clear. She said she purchased it from more than one person but then said she bought it from one person but not who she usually purchased the drugs from.

[ 43 ] Ms. Davis testified that at the time of her arrest she would use about 2 grams of fentanyl per day, maybe more.

[ 44 ] Ms. Davis was very quickly able to provide the cost of the usual quantities of fentanyl which are sold, namely, a gram, 1.75 grams, an eighth of an ounce (or 3.5 grams), 7 grams, 14 grams and 28 grams of fentanyl. In fact, at times she corrected the Crown’s suggestion as to the cost of some of those quantities. She was obviously very well versed in the cost of fentanyl.

[ 45 ] Ms. Davis testified that 1/8th of an ounce cost about $500 to $600. A full ounce, or 28 grams, purchased in bulk, was usually about $2000. When confronted in cross-examination with the difference between the $600 she said she paid for 28 grams and the cost of 28 grams according to her evidence, she insisted she paid $600.00 and that the figure she provided of $2000 for 28 grams was the “street value”. She then testified that she was wrong when she said it costs $2000.00 for 28 grams.

[ 46 ] When she was questioned again about the cost of the various amounts of fentanyl, including the costs for 1/4 of an ounce or 7 grams, she said she doesn't normally buy in bulk and that she would pay the going rate. She repeatedly insisted she paid $600 for 28 grams of fentanyl. When again confronted with the discrepancy between what she paid and what she said was the cost for an ounce of fentanyl she agreed that it did not add up. Ms. Davis did not assert any other form of payment for the fentanyl.

[ 47 ] However, in re-examination, Ms. Davis testified that in addition to the $600.00, she also provided sexual services in exchange for the fentanyl. This was the first time she mentioned this despite being questioned several times about what she paid for 28 grams of fentanyl. In re-examination, when questioned about her evidence regarding the difference between what she paid for 28 grams of fentanyl and the prices for various amounts of fentanyl that she testified about, she said she was going off what the officer had testified to earlier. However, Officer Chapman did not give evidence with respect to the cost of the various quantities of fentanyl which Ms. Davis was asked about. Officer Chapman only testified to the cost of 0.1 grams of fentanyl and guessed at the cost of 28 grams. Officer Chapman’s evidence about these quantities does not correlate to the prices given by Ms. Davis.

[ 48 ] Ms. Davis’s evidence demonstrated a facility with the pricing of fentanyl, even in quantities that she testified she does not buy. It suggests someone involved in trafficking. When the contradiction in the prices became apparent, she sought to explain it in several different ways. I find it difficult to accept her evidence that the 23 grams found on her possession was for her sole personal use.

Officer Chapman’s Evidence

[ 49 ] As the accused did not object, Officer Chapman was qualified as an expert in fentanyl, the affects of fentanyl, the manner of use of fentanyl, paraphernalia used for fentanyl consumption, rates of use of fentanyl, distribution of fentanyl, packaging of fentanyl, weight as it relates to the distribution of fentanyl, and the cost of fentanyl.

[ 50 ] Officer Chapman had prepared a report, but it was not tendered as evidence. Officer Chapman’s experience was canvassed in evidence. Although Officer Chapman has never provided a report or expert testimony on behalf of the defence, I found her to be fair and balanced in her testimony.

[ 51 ] Officer Chapman has been an OPP officer for over 11 years. She has been involved in over 40 investigations into trafficking of cocaine and crack cocaine, 15 or more investigations into the trafficking of methamphetamine, and 10 investigations into the trafficking of opioids including seven involving fentanyl. She is now working on larger scale investigations into the trafficking and importation of cocaine, fentanyl, and guns.

[ 52 ] There was essentially no evidence from Officer Chapman as to the extent to which she was involved with users of any kind in her investigations. Rather, her evidence implied that she had experience with users, but precisely what that experience was, was not provided. Officer Chapman did not testify to conducting or participating in undercover purchases of fentanyl. She did not indicate that she had informants who were users.

[ 53 ] Officer Chapman testified that for single or individual use, fentanyl is usually packaged for sale in quantities of around 1 gram. However, the quantities are often not precise. She testified it is not uncommon for actual weights not to align with the quantity sold, for example 1 gram may actually contain more or less than a gram.

[ 54 ] Officer Chapman testified that a gram a fentanyl would cost between $140 and $400 on the high side although prices could fluctuate below and above that amount. In her experience, the price is usually between $140.00 to $300.00. She testified that fentanyl is cheaper if purchased in bulk. She was not certain of the cost of 28 grams of fentanyl but guessed it would be $2500 to $3000 based on the per gram price.

[ 55 ] Officer Chapman testified that most heavy users of fentanyl use half a gram to two grams in a day. Twenty-three grams of fentanyl would therefore last between 11 and 46 days if for personal use for a heavy user.

[ 56 ] Officer Chapman testified that often colour coding systems are used for fentanyl to let the dealer know what other substances are mixed in with the fentanyl. She said that some users have different preferences and the mix of substances with fentanyl caters to those preferences.

[ 57 ] Officer Chapman had not been told that Ms. Davis had been found rolling around on the ground and likely under the influence. She agreed that this was evidence of use which would be a factor that she would consider in her assessment. Officer Chapman agreed that a trafficker would not usually get so high because it would put them at risk of something happening to them or their drugs.

[ 58 ] Officer Chapman testified that the smaller quantities of fentanyl found on Ms. Davis ranging from 1 gram to 1.8 gram could be for personal use or could have been packaged to sell. She agreed that the presentation of smaller bags of fentanyl within larger bags was consistent with both trafficking and personal use.

[ 59 ] Officer Chapman agreed that the makeup of the fentanyl as indicated in the certificates of analyst is consistent with the cutting that is done by a dealer to bulk up the quantity but diminish potency of the fentanyl. She was of the view that she did not have sufficient evidence with respect to the details of the cash for it to assist in her analysis.

[ 60 ] Officer Chapman agreed it was possible that an addict with money who goes to a dealer could purchase the drugs already packaged in the manner found on Ms. Davis and that sometimes a user takes whatever they can get.

[ 61 ] Officer Chapman agreed that buying fentanyl in bulk is cheaper than buying it in points or a gram. However, it was her view that there was too much risk for a user in buying in bulk and carrying a large quantity because they could be robbed. She agreed that there is also risk with making repeated trips to purchase small quantities of drugs.

[ 62 ] Officer Chapman was of the view that the amount and the nature of the fentanyl found on Ms. Davis could have been for the purpose of trafficking and for personal use. She agreed there was indicia of personal use such as the foil, spoon and needles.

[ 63 ] Officer Chapman opined that the quantity of fentanyl and the manner in which it was packaged and the different makeup of the fentanyl, together with the drug paraphernalia lead her to conclude that Ms. Davis was a user and a trafficker. However, she did not testify as to the level of certainty which she applied.

[ 64 ] Officer Chapman testified that users often pay for their habit by selling drugs. Her experience is that most, but not all users buy roughly every other day. Her evidence was that she has not encountered a heavy user carrying 23 grams of fentanyl. There was no objection to Officer Chapman’s evidence about what users do. However, the trial judge is the gatekeeper for expert evidence. In my view, this evidence about what a user does exceeds the scope of the evidence for which the expert was qualified to give evidence. This evidence is the equivalent of an opinion on the guilt of Ms. Davis. In addition, based on Officer Chapman’s lack of evidence as to her experience with users of fentanyl, the basis of her evidence and its reliability cannot be determined. The evidence is highly prejudicial to the accused and because its reliability is unknown, its probative value is very limited. I find this evidence to be inadmissible. In coming to this conclusion, I have had the benefit of the cases on the scope and admissibility of expert evidence reviewed by Justice Spies in R. v. Pico, 2016 ONSC 1470.

[ 65 ] Even if I were to admit this evidence, its weight is very limited as a result of the lack of evidence with respect to Officer Chapman’s experience with users of fentanyl and the lack of a basis for her opinion on such issues.

Absence of Other Indicia of Trafficking

[ 66 ] There was no evidence with respect to the contents of the cell phone or calls or texts being sent to the phone. There were no scales, empty baggies, or plastic for wrapping fentanyl pieced off of the larger quantities found on or with Ms. Davis. There is no evidence of Ms. Davis engaging in activity consistent with trafficking. Officer Chapman agreed this is more indicative of use than trafficking.

[ 67 ] The limited evidence of the cash found on Ms. Davis could be consistent with trafficking or with funds for personal purposes. In short, it is inconclusive.

[ 68 ] While it is not necessary that all or any of these indicia be present for there to be trafficking, at a minimum, this lack of the indicia of trafficking is a neutral factor and does not point to trafficking.

Analysis on Trafficking Charge

[ 69 ] Ms. Davis submitted a number of cases in which courts have come to the conclusion that the evidence did not establish trafficking beyond a reasonable doubt. Ms. Davis acknowledged that the cases turn on their particular facts and the existence of or lack of evidence of indicia of trafficking, the quantity of drugs and the credibility of witnesses.

[ 70 ] There is clear indicia and evidence that Ms. Davis personally used at least some of the fentanyl in her possession and that she was a user.

[ 71 ] The expert evidence as to the daily quantity of fentanyl that a heavy user could consume of 2 grams per day, is consistent with Ms. Davis’s evidence that she consumed 2 grams or more per day. Given her unchallenged evidence of long-standing substance use, together with the expert evidence, I find no reason not to accept that Ms. Davis was using two grams of fentanyl per day.

[ 72 ] The unchallenged expert evidence and the math demonstrates that 23 grams of fentanyl would last 11 days. It is not outside the realm of possibility that a user could have an 11-day supply in their possession, particularly in light of Ms. Davis’s unchallenged evidence that she had come into some money, had been kicked out of her parents house that day, and that she took everything with her, including her drugs.

[ 73 ] The evidence was that there are risks with a user being in possession of that quantity of fentanyl but that there are also risks of a user purchasing only a daily supply necessitating constant returns to a supplier. The risk of being caught and criminal consequences for a user or trafficker in possession of 23 grams of fentanyl would appear to be similar. Moreover, the evidence also supports a conclusion that if money is available to a user, buying in bulk allows a user to purchase more fentanyl for less money.

[ 74 ] Officer Chapman's evidence does not rule out the possibility of personal use. She stated the evidence indicates both use and trafficking. She comes to the conclusion that it was for both. However, I have no evidence of the standard of proof which officer Chapman applied in her assessment.

[ 75 ] In my view, it is likely that Ms. Davis had the fentanyl for personal use and for trafficking. However, “likely” is not the standard. The Crown must establish the purpose of trafficking beyond a reasonable doubt.

[ 76 ] Notwithstanding that I have not accepted Ms. Davis’s evidence that the fentanyl in her possession was for her personal use, when I consider all the evidence, including the evidence of Ms. Davis that I do not reject, the evidence of officer Chapman, the indicia of personal use, the lack of indicia of trafficking, the limited indicia of trafficking, and that the quantity of fentanyl and the nature of the packaging is not necessarily inconsistent with personal use, a reasonable inference other than guilt exists.

[ 77 ] Ms. Davis’s personal use of the fentanyl is not in dispute. Indeed, the Crown's position is that she is both a user and a trafficker. The possibility that the fentanyl in Ms. Davis’s possession was for her personal use is a reasonable one on the evidence. The crown has not negatived this reasonable possibility. As a result, the Crown’s evidence does not meet the standard of proof of beyond a reasonable doubt. Put another way, I am left with a reasonable doubt that Ms. Davis possessed the fentanyl for the purpose of trafficking.

[ 78 ] I note that even if I had admitted the excluded evidence of Officer Chapman, it would not change my conclusion, because the evidence is based on Officer’s Chapman’s experience, which is limited to seven investigations involving fentanyl, and her experience could not possibly cover all the possibilities of the behaviours of users of fentanyl. Further, her evidence leaves open the reasonable possibility that a user with funds could purchase in bulk for various reasons. Finally, as noted, Officer Chapman’s evidence also confirmed that there were many indicia of personal use.

The possession of the proceeds of crime charge

[ 79 ] The possession of the proceeds of crime charge

[ 80 ] The second count against Ms. Davis is possession of the proceeds of crime not exceeding $5,000. The Crown must prove each of the following essential elements beyond a reasonable doubt: a. that Ms. Davis was in possession of cash; b. that the cash was obtained by or derived from crime; and c. Ms. Davis knew that the money had been obtained by crime.

[ 81 ] Given the lack of evidence with respect to the cash, Ms. Davis’s evidence of the source of the cash, and that the Crown has not established beyond a reasonable doubt that Ms. Davis was trafficking, I find that the Crown has not proved beyond a reasonable doubt that the cash found on Ms. Davis was obtained by or derived from crime.

Result

[ 82 ] In the result, I find Ms. Davis not guilty on the second count of possession of the proceeds of crime not exceeding $5000. I find Ms. Davis not guilty on count 1, possession for the purpose of trafficking.

M. Bordin, J.

Released: May 30, 2024