His Majesty The King v. Joseph Pauze, 2024 ONSC 4540

COURT FILE NO.: 8728/23 DATE: 2024-08-27 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – JOSEPH PAUZE Defendant

COUNSEL: B. Pritchard, for the Federal Crown K. Walker, for the Defendant

HEARD: May 27, August 6, 2024

VARPIO J.

REASONS FOR JUDGMENT

OVERVIEW

[1] On October 5, 2021, Mr. Joseph Pauze was driving a 2008 Lincoln that he had borrowed from a friend, Mr. Claude Corriveau. Mr. Pauze was driving near his home at 345 St. George’s Avenue when a police officer, A/Sgt. Derek Belanger, observed Mr. Pauze roll a stop sign.

[2] A/Sgt. Belanger followed Mr. Pauze to his residence.

[3] The officer and the accused had a discussion outside the vehicle where the accused admitted that he did not have a driver’s license. A/Sgt. Belanger arrested Mr. Pauze.

[4] Following a search, Mr. Pauze was found to be in possession of a small amount of crystal methamphetamine in his pocket and a cigarette pack containing approximately 20 grams of fentanyl.

[5] Mr. Pauze claims that the cigarette package was not his. Rather, he submits that the cigarette package must have belonged to Mr. Corriveau who is a known member of the drug subculture in Sault Ste. Marie, Ontario.

[6] The Crown submits that Mr. Pauze was always in possession of the cigarette pack in question and, as such, Mr. Pauze had possession of the narcotics in question and is guilty of all charges before the court.

[7] For the reasons, that follow, I hereby find Mr. Pauze guilty on all counts.

EVIDENCE

A/Sgt. Derek Belanger

[8] A/Sgt. Belanger testified that he has been a member of the Sault Ste. Marie Police Service (“SSMPS”) for 14 years. He formally worked as part of the drug unit and the biker enforcement unit. On October 5, 2021, he had returned to patrol work and was the relieving sergeant on general patrol. He was in a marked car, dressed in police uniform.

[9] At 12:35 p.m. that day, he observed the accused operate a 2008 Lincoln northbound on Alberta Avenue near the intersection of McNabb Street and St. George’s Avenue. The vehicle did not come to a stop at a stop sign, and the officer decided to initiate a traffic stop. The vehicle continued on and pulled into the parking lot at 345 St. George’s Avenue, which is a multi-unit apartment building.

[10] The officer activated his emergency lights. The accused exited the vehicle. The officer approached the accused who verbally identified himself as Joseph Pauze. Mr. Pauze told A/Sgt. Belanger that he did not have a driver’s license and that the vehicle belonged to Mr. Pauze’s friend, Mr. Claude Corriveau. A/Sgt. Belanger knew Mr. Corriveau as the latter has had significant drug-related dealings with the SSMPS. [1] Mr. Pauze told the officer that he had a sore back. A/Sgt. Belanger testified that Mr. Pauze was very cooperative.

[11] A/Sgt. Belanger arrested Mr. Pauze for driving under suspension and conducted a search incident to arrest. Mr. Pauze had a black cell phone and a pack of cigarettes in his hands. The pack of cigarettes was open and A/Sgt. Belanger observed small clear plastic baggies in the pack, which A/Sgt. Belanger believed to be consistent with participation in the drug trade. A/Sgt. Belanger searched Mr. Pauze and located a substance that he believed to be crystal methamphetamine in the accused’s pocket. [2] The crystal methamphetamine was in a clear plastic baggie.

[12] In the cigarette pack, A/Sgt. Belanger located three baggies. One baggie contained a purple substance that the officer believed to be fentanyl. The second baggie contained a substance that the officer believed to be marijuana. The third baggie contained a brown/green substance that he believed to be fentanyl.

[13] A/Sgt. Belanger located $390 on Mr. Pauze’s person.

[14] A/Sgt. Belanger called Det. Trevor Pluss to attend the scene because Det. Pluss is a part of the drug unit.

[15] Mr. Pauze was arrested for possession for the purposes of trafficking.

Sgt. Richard Crema

[16] Sgt. Crema has been a member of the SSMPS for 27 years. He is assigned to patrol where he supervises a shift.

[17] On October 5, 2021, he was on duty, working as a road supervisor in a fully marked car.

[18] Around 12:35 p.m., he attended the scene at 345 St. George’s Avenue to offer support. Upon arrival, Sgt. Crema observed A/Sgt. Belanger speaking with Mr. Pauze. A request was made for Mr. Pauze’s ownership and insurance, and Mr. Pauze made an indication to Sgt. Crema that the paperwork was either in the glove box, or in the centre console.

[19] Sgt. Crema looked in the centre console and he observed a digital scale with a white powdery substance on it. [3] He also observed small plastic baggies, about 1” X 1” square in size. The baggies were empty.

[20] Sgt. Crema knows Mr. Corriveau and knows Mr. Corriveau to be someone involved in the drug subculture. He knows Mr. Corriveau to have been convicted several times for drug-related offences and he knows that the 2008 Lincoln belongs to Mr. Corriveau.

Det. Trevor Pluss

[21] Det. Pluss testified that he has been an officer with the SSMPS for 10 years and is currently assigned to the drug unit.

[22] On October 5, 2021, Det. Pluss was working as a drug enforcement officer for the SSMPS. Around 1:00 p.m., he received a call from Sgt. Crema requesting Det. Pluss’ assistance. Det. Pluss attended at 345 St. George’s Avenue where he saw Sgt. Crema and A/Sgt. Belanger dealing with the accused. Det. Pluss took possession of narcotics from the officers including fentanyl (both green and purple), crystal methamphetamine and numerous “dime bags” that had the “Quebec flag” on them. He also took possession of a black scale and Canadian currency, which was later determined to be $390.

[23] When Det. Pluss returned to the police station, he weighed the seized narcotics. The crystal methamphetamine weighed 2.03 grams, the purple fentanyl weighed 7.52 grams and the green fentanyl weighed 12.7 grams.

Mr. Joseph Pauze

Examination in-Chief

[24] Mr. Pauze testified and was difficult to understand. He spoke with a low, gravelly voice and he indicated that his jaw had been broken and that he has a limited number of teeth. Mr. Pauze also mumbled such that he was asked to speak up on a couple of occasions. His testimony was difficult to follow because Mr. Pauze would state things out of order. Mr. Pauze walks with a limp because he lost a leg a few years ago.

[25] On October 5, 2021, Mr. Pauze borrowed Mr. Claude Corriveau’s car. Mr. Pauze did not own a car, and he needed to pick up his dog from the kennel club. Mr. Pauze did not remember when he picked up the vehicle on that day, but he remembered bicycling to Mr. Corriveau’s residence to get the car. He bicycled towards the underpass in the west end of Sault Ste. Marie to meet Mr. Corriveau. He picked up the car and then went to the beer store to get a 12-pack of beer. He went home to drop off the beer and get the dog’s tags.

[26] When he got to his residence, the police pulled in behind him. He was arrested. The police started looking through the car and they found something in the glove box or the centre console.

[27] Mr. Pauze admitted that he had crystal methamphetamine on his person when he was arrested by the police. He uses crystal methamphetamine. He did not have possession of the fentanyl. He does not use fentanyl. He does not like being around fentanyl. Mr. Pauze did not know that the scale was in the car. He did not use the scale to purchase the crystal methamphetamine. He simply purchased $20 worth of the narcotic for personal use.

[28] The $390 that was found on Mr. Pauze was his money for rent and disability. Mr. Pauze testified that he receives old age security and disability cheques, one of which is deposited directly into his bank account and the other he receives via physical cheque. He cashes the physical cheque and keeps the cash. He receives about $2000/month in total.

Cross-Examination

[29] Mr. Pauze identified the baggies with the fleur-de-lis as being from a local store called “The Other Guys”. That store sells baggies and all the members of Sault Ste. Marie’s drug subculture purchase their baggies at that store. Mr. Pauze testified that the baggies, the scale and the narcotics seized by police were not his.

[30] He was asked about where he purchased the crystal methamphetamine that he had on his person. Mr. Pauze refused to answer on the question until I ordered him so to do. He then testified that he received the crystal methamphetamine from someone named “Eddie”, who had been in court with Mr. Pauze a little while ago.

[31] Mr. Pauze denied having the cigarette package in his hand when he exited the vehicle. The cigarettes were in the car when Mr. Pauze got out of the vehicle. The police told him to pick up the pack of cigarettes from the car. He did so.

[32] Mr. Pauze testified that the scales and the baggies belonged to Mr. Corriveau. Mr. Pauze also testified that the fentanyl seized from the cigarette pack could be sold for $100/gram which is “big bucks”. When asked why Mr. Corriveau would leave fentanyl lying around in a pack of cigarettes, Mr. Pauze testified that Mr. Corriveau is “stupid” and that Mr. Corriveau has been caught with “blocks” of narcotics in his car. On October 5, 2021, Mr. Corriveau was “hammered”, by which I take it to mean that Mr. Pauze was indicating that Mr. Corriveau was impaired by drugs or alcohol.

[33] When he exited the car, Mr. Pauze testified that the police gave him the 12-pack and told him to bring it into his house. Mr. Pauze also offered that he had had a package of cigarettes on the day in question, but that he must have left his cigarettes at the beer store.

[34] Mr. Pauze has a criminal record that was not filed with the court.

A/Sgt. Belanger’s Reply Evidence

[35] A/Sgt. Belanger was re-called by the Crown in reply. The officer testified that Mr. Pauze exited the vehicle with a black cell phone and the pack of cigarettes in his hand.

[36] A/Sgt. Belanger testified that by the time he and Mr. Pauze began speaking, Mr. Pauze had already exited the vehicle.

[37] A/Sgt. Belanger did not search the vehicle. Mr. Pauze did not re-enter the vehicle after arrest, nor did A/Sgt. Belanger ask Mr. Pauze to retrieve anything from the vehicle.

[38] A/Sgt. Belanger does not recall Mr. Pauze having beer with him at the time of the incident.

POSITION OF THE PARTIES

[39] The Crown submits that I ought to find that Mr. Pauze had knowledge and control over the cigarette pack and that he was therefore in possession of the narcotics in question. I should also find that the scales, the baggies, the quantum of drugs seized and Mr. Pauze’s admissions are such that he is guilty of possession for the purpose of trafficking.

[40] Mr. Pauze submits that I ought to have a reasonable doubt that he was not in possession of the cigarette pack. Even if I am satisfied beyond a reasonable doubt that Mr. Pauze possessed the narcotics in question, I should only find Mr. Pauze guilty of simple possession.

ANALYSIS

The Burden of Proof

[41] R. v. W.(D.), [1991] 1 S.C.R. 742 is often quoted as representing the framework by which credibility is to be assessed when an accused person testifies. At para. 28 of W.(D.), the Supreme Court stated:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[42] The W.(D.) analysis was synthesized for trial judges sitting alone in R. v. Dinardo, 2008 SCC 24 at para. 23:

The majority rightly stated that there is nothing sacrosanct about the formula set out in W.(D.). Indeed, as Chamberland J.A. himself acknowledged in his dissenting reasons, the assessment of credibility will not always lend itself to the adoption of the three distinct steps suggested in W.(D.); it will depend on the context (para. 112). What matters is that the substance of the W.(D.) instruction be respected. In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt. In my view, the substantive concerns with the trial judge's decision in this case can better be dealt with under the rubric of the sufficiency of his reasons for judgment.

[43] As a corollary to this jurisprudence, the trier of fact must be certain that they do not engage in a “credibility contest” as per R. v. Hull, [2006] O.J. No. 3177 (Ont. C.A.), 2006 ONCA 26572 at para. 5:

W.(D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit a trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses. However, such authorities do not prohibit a trier of fact from assessing an accused's testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.

[44] In situations where an accused testifies and the accused’s evidence is tantamount to a confession that criminal activity occurred, the classic W.(D.) analysis may not suffice. As was stated in R. v. Ibrahim, 2019 ONCA 631 at para. 37:

The classic W.(D.) formulation will not always be appropriate; it depends on the context: R. v. Dinardo, [2008] 1 S.C.R. 788, 2008 SCC 24, at para. 23; R. v. J.H.S., [2008] 2 S.C.R. 152, 2008 SCC 30, at para. 13. For example, it may be inappropriate to give the instruction when the accused person's testimony, even if believed, does not negate criminal liability: R. v. McClenaghan, 258 C.C.C. (3d) 1178, 2010 ABCA 222, at para. 31, leave to appeal refused, [2010] S.C.C.A. No. 353. In other situations, the instruction must be modified. For example, in R. v. Thiara, 79 C.R. (6th) 259, 2010 BCCA 415, it was held that the trial judge did not err in modifying her W.(D.) instructions in light of the fact that the appellant's evidence was partially inculpatory and partially exculpatory.

Constructive and/or Actual Possession

[45] In R. v. Choudhury, [2021] O.J. No. 4228, 2021 ONCA 560, the Court of Appeal for Ontario synthesized the legal principles governing constructive possession at para 19 of its reasons:

The relevant legal principles on constructive possession are not in dispute:

• Constructive possession is established when an accused does not have physical custody of an object but knowingly has it in the actual possession or custody of another person or has it in any place for their own or another's use or benefit: Criminal Code, s. 4(3)(a); R. v. Morelli, [2010] 1 S.C.R. 253, 2010 SCC 8, at para. 17; and R. v. Lights, 149 O.R. (3d) 273, 2020 ONCA 128, at para. 47.

• Knowledge and control are essential elements of constructive possession, which is established when the Crown proves beyond a reasonable doubt that the accused: (i) has knowledge of the character of the object said to be possessed; (ii) knowingly puts or keeps the object in a particular place, whether or not the place belongs to or is occupied by the accused; and (iii) intends to have the object in the place for the use or benefit of the accused or another person: Morelli, at paras. 15, 17; Lights, at paras. 44, 47.

• Tenancy or occupancy of a place where an object is found does not create a presumption of possession: Lights, at para. 50; R. v. Watson, 2011 ONCA 437, at para. 13; R. v. Lincoln, 2012 ONCA 542, at paras. 2-3; and R. v. Bertucci (2002), 169 C.C.C. (3d) 453 (Ont. C.A.), 2002 ONCA 41779, at para. 18.

• When the Crown relies largely or wholly on circumstantial evidence to establish constructive possession, a conviction can be sustained only if the accused's knowledge and control of the impugned objects is the only reasonable inference on the facts. The trier of fact must determine whether any other proposed way of looking at the case as a whole is reasonable enough to raise a doubt about the accused's guilt, when assessed logically and in light of human experience and common sense: see R. v. Villaroman, [2016] 1 S.C.R. 1000, 2016 SCC 33, at paras. 55-56; Lights, at para. 39; and R. v. Stennett, 2021 ONCA 258, at paras. 60-61.

The Cigarette Package and the Narcotics

[46] The first issue to be resolved in this case is whether I am satisfied beyond a reasonable doubt that Mr. Pauze had the cigarette pack in his hand when he exited the vehicle.

[47] I am so satisfied.

[48] An analysis of the evidence demands that I reject Mr. Pauze’s evidence. First, Mr. Pauze was a difficult witness. He refused to provide the name of the person that sold him crystal methamphetamine and I am satisfied that Mr. Pauze was purposefully avoiding implicating this person in the trial. In other words, Mr. Pauze was not being truthful about this person’s identity and would only identify that individual as “Eddie” once he was pushed by me to do so. His testimony that Eddie had been in court with Mr. Pauze did not give me any comfort that this evidence was truthful since it appeared that Mr. Pauze was “making it up as he went along”.

[49] Second, the substance of Mr. Pauze’s evidence made little sense. Mr. Pauze indicated that the police gave him the beer, that the officer apparently told Mr. Pauze to put the beer in his house after the officer had detained Mr. Pauze for a traffic stop. Having detained Mr. Pauze in a traffic stop, Mr. Pauze would have me believe that the officers wanted Mr. Pauze to enter his residence to drop off some beer, which would seem to run contrary to the basic principles that enable police to detain individuals: see R. v. Mann, [2004] 3 S.C.R. 59. This is inherently unbelievable.

[50] Third, Mr. Pauze’s evidence about the cigarettes is also unworthy of belief because he again appeared to be “making it up as he went along”. Mr. Pauze offered in cross-examination that he had had his own package of cigarettes on the day in question, but that he left his package of cigarettes at the beer store. This is the kind of evidence that, if believable, ought to have been adduced in examination-in-chief. Instead, Mr. Pauze appeared to be offering evidence that he thought would make him look better.

[51] Fourth, Mr. Pauze would also have me believe that SSMPS officers that attended the scene ordered Mr. Pauze to pick up cigarettes from the floor of the car, and then those same officers arrested Mr. Pauze for being in possession of that cigarette pack. The evidence before me does not suggest that the officers had any animus as against Mr. Pauze. The evidence discloses no incentive on the officers’ part to order Mr. Pauze to pick up the cigarettes and effectively frame Mr. Pauze. As such, this evidence makes no sense.

[52] Finally, were I to have a reasonable doubt flowing from Mr. Pauze’s evidence, I would have to have a reasonable doubt that someone other than Mr. Pauze left a valuable and illegal product in a cigarette package in a car. This runs afoul of common sense. In R. v. Bains, 2015 ONCA 677, the Court of Appeal for Ontario stated at para. 157:

As with other offences, Crown counsel may prove the essential elements of constructive possession by direct evidence, by circumstantial evidence or by a combination of direct and circumstantial evidence. Where the subject matter of which an accused is alleged to be in possession is a controlled substance of significant value, it may be open to a trier of fact to infer not only knowledge of the nature of the subject, but also knowledge of the substance itself: R. v. Blondin (1970), 2 C.C.C. (2d) 118 (B.C.C.A.), at p. 121; R. v. Fredericks, [1999] O.J. No. 5549 (C.A.), at paras. 3-4; R. v. To; and R. v. Bryan, 2013 ONCA 97, at para. 11. It is a reasonable inference that such a valuable quantity of drugs would not be entrusted to anyone who did not know the nature of the contents of the bag or other container.

[53] In this case, Mr. Pauze’s evidence was that Mr. Corriveau was “stupid” and “hammered” such that Mr. Corriveau must have left the narcotics in the car. This explanation defies belief in so far as Mr. Corriveau was clearly involved in the drug trade and knew that the fentanyl was worth “big bucks”. It is therefore illogical that someone involved in the drug trade would leave valuable narcotics lying around in their car in a cigarette pack where that pack could be thrown away or otherwise destroyed even if they were “hammered”. This fact is especially apposite since Mr. Pauze was going to get his dog, which animal could easily have destroyed the cigarette package by chewing it.

[54] Therefore, the cumulative effect of all these considerations is such that I reject Mr. Pauze’s testimony outright. His evidence has no credibility in so far as Mr. Pauze’s evidence appeared to be tailored to suit his needs, and much of his evidence was illogical and defied common sense.

[55] A/Sgt Belanger’s evidence was clear with respect to what he observed, the decisions he made, and the bases for those decisions. He clearly recalled Mr. Pauze being outside the vehicle with the cigarette package and a cell phone in his hands when the pair began speaking with each other. A/Sgt. Belanger was unshaken on this, or any other point. I have no hesitation finding that the officer’s evidence was simple, credible, and entirely trustworthy.

[56] Therefore, I accept A/Sgt. Belanger’s testimony beyond a reasonable doubt that when he approached the motor vehicle, Mr. Pauze had already exited (or was in the process of exiting) the vehicle and that Mr. Pauze had both the cigarette package and the cell phone in his hands.

The Narcotics

[57] I am satisfied beyond a reasonable doubt that Mr. Pauze was knowingly in possession of the fentanyl contained within the cigarette pack. Any suggestion to the contrary makes no sense as per R. v. Bains. Indeed, the suggestion that Mr. Pauze did not know about the fentanyl in the cigarette pack would mean that someone other than Mr. Pauze put fentanyl worth “big bucks” into a cigarette pack that was in Mr. Pauze’s possession. As seen in the preceding paragraphs, such an inference is absurd.

[58] Mr. Pauze is therefore guilty of possessing the fentanyl.

Possession for the Purpose

[59] I find beyond a reasonable doubt that Mr. Pauze possessed the narcotics in question for the purposes of trafficking.

[60] First, and by Mr. Pauze’s own admission, he does not use fentanyl and the fentanyl found in his possession is worth “big bucks”. Accordingly, there is only one possible reason for Mr. Pauze to have the fentanyl: he was trafficking the narcotic.

[61] Second, given Mr. Pauze’s income as compared to the value of the fentanyl, the only reasonable inference is that Mr. Pauze possessed the fentanyl for the purpose of trafficking. There is no way Mr. Pauze had several months’ income worth of fentanyl for any use other than trafficking.

[62] Therefore, I find beyond a reasonable doubt that Mr. Pauze possessed the narcotics seized for the purposes of trafficking.

CONCLUSION

[63] Mr. Pauze is hereby found guilty of all counts before the court.

Varpio J. Released: August 27, 2024

Footnotes

[1] Mr. Corriveau’s criminal record was filed with the court. It contains several entries for drug-related offences.

[2] Mr. Pauze concedes the nature of the substances seized.

[3] In cross-examination, Sgt. Crema corrected his testimony. Sgt. Crema was not certain that the scale had white powdery substance upon same. Sgt. Crema believes that he may have mixed up this case for another.