His Majesty The King v. Frank Duquette and Amy Pineo-Fisher, 2024 ONSC 5892

Court File No.: CR-23-3606 (Chatham) Date: 2024-11-08 Ontario Superior Court of Justice

BETWEEN:

HIS MAJESTY THE KING – and – Frank Duquette and Amy Pineo-Fisher Accused

Counsel: Mason Herberholz, for the Federal Prosecutor Patricia Brown, for the Accused, Frank Duquette Nicholas Cake, for the Accused, Amy Pineo-Fisher

Heard: September 10, 12, 13, and 23, 2024

REASONS FOR JUDGMENT

DUBÉ J.

A. Introduction

[1] On July 22, 2021, Police Constable Kyle Bakker (“PC Bakker”) of the Chatham-Kent Police Service (“CKPS”) conducted a traffic stop in the municipality of Chatham-Kent for a silver Kia with an obstructed license plate.

[2] The driver was the accused, Amy Pineo-Fisher (“Pineo-Fisher”). The accused Frank Duquette (“Duquette”) was sitting in the front passenger seat. A third individual, Trisha Nahmabin (“Nahmabin”), was sitting in the back seat.

[3] Pineo-Fisher was the vehicle’s registered owner.

[4] During the traffic stop, PC Bakker observed, in plain view, an orange cap covering the needle of a syringe and suspected illicit drugs inside an unzipped pouch of a backpack that was on the passenger floor of the vehicle at or between Duquette’s feet. PC Bakker placed Duquette under arrest for possession of a Schedule I substance contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”).

[5] During the investigation, PC Bakker discovered that Duquette and Pineo-Fisher were not allowed to associate with each other pursuant to an undertaking. Both were then placed under arrest for failing to comply with that undertaking.

[6] A search of the backpack led to the discovery of a large quantity of methamphetamine and fentanyl. As a result, all three passengers were arrested for possession for the purpose of trafficking a Schedule I substance, namely methamphetamine and fentanyl.

[7] The total fentanyl seized amounted to 26.5 grams. The total powdered methamphetamine seized amounted to 49.4 grams and 0.95 millilitres in liquid form. Seized later from Duquette was $745 in Canadian currency.

[8] As a result of the investigation, Duquette and Pineo-Fisher were charged with two counts of possession for the purpose of trafficking in a Schedule I substance, namely methamphetamine and fentanyl, all contrary to the CDSA.

[9] The backseat passenger, Nahmabin, was ultimately released from custody with no charges.

[10] The defence admitted the following evidence on this blended voir dire/trial:

a) Jurisdiction. b) Identity. c) Substance. d) The continuity of the substances was initially an issue, specifically the fentanyl. The evidence demonstrated however that of the 26.5 grams of suspected fentanyl seized by the police, 23.3 grams were proven by Health Canada certificates to be fentanyl. e) MTO documents including that Pineo-Fisher owned the Kia.

[11] The applicant, Duquette, brought an application alleging breaches of his ss. 8, 9, 10(a) and 10(b) rights under the Canadian Charter of Rights and Freedoms (“Charter”).

[12] Four CKPS Police Constables testified at the blended voir dire/trial: PC Jeff Teetzel, PC Jason Williams, PC Bakker, and PC Eric Kuczko.

[13] Neither accused elected to testify at the trial.

[14] At the conclusion of the trial, I dismissed all charges against the co-accused Pineo-Fisher. For brief oral reasons provided, I found that the Crown had failed to prove beyond a reasonable doubt that Pineo-Fisher had knowledge of the illicit substances that were discovered by the police in a backpack located at or between Duquette’s feet.

[15] For similar reasons, I have concluded that the Crown has failed to prove beyond a reasonable doubt that the accused Duquette knowingly possessed the methamphetamine and fentanyl. For this reason, I do not need to consider the applicant’s Charter application as my assessment of the testimony of PC Bakker is dispositive of this issue.

B. The Evidence

PC Kyle Bakker

[16] PC Bakker has been with the CKPS for approximately three years. At 3:04 p.m. on July 22, 2021, he was on general patrol driving his cruiser down Gillard Street in Wallaceburg, Ontario. At this time, he observed a silver Kia parked on the side of the road facing the wrong direction. He considered this odd, although not illegal, as he had never seen a vehicle parked in this area before. He observed no occupants in the vehicle.

[17] He continued down the road some distance before turning his cruiser around to investigate the matter further. By the time he arrived back at the scene, the vehicle had left but was located a short distance away. PC Bakker pursued the vehicle and noticed that the rear license plate was covered and obstructed. Since this was an infraction under the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”), he proceeded to stop the vehicle and initiated an HTA investigation.

[18] PC Bakker attended the driver’s side of the vehicle and observed Pineo-Fisher in the driver’s seat, Duquette in the front passenger’s seat, and Nahmabin in the rear seat. He requested and received vehicle related paperwork from Pineo-Fisher and then attended the passenger’s side of the vehicle and ran the plates through the radio.

[19] During the investigation, PC Bakker testified that he did not recall several key parts of the alleged interactions that he may have had with the occupants of the vehicle. For instance, PC Bakker did not specifically recall the following:

a) Whether Pineo-Fisher ever asked him why she was stopped. b) Whether he told to Pineo-Fisher that the reason he stopped the vehicle was because he had observed her leave from a known drug house – PC Bakker later admitted that it was possible that he did say this to her. c) Whether he told Pineo-Fisher or any of the occupants that the reason he stopped the vehicle was because it had obstructed plates. d) If he ever had a conversation with Duquette – although PC Bakker did state that he “would have” directed Duquette to exit the vehicle at some point. e) If he ever had a conversation with Nahmabin during the investigation or if he ever confirmed her identification. f) When or how he was informed of Duquette’s name. g) How Duquette’s legs were positioned in the front passenger area. h) How many total compartments, pockets or zippers were on the backpack. i) Whether Pineo-Fisher did something that caught his attention – which would have caused him to leave the passenger side of the vehicle and have a second conversation with her on the driver’s side. j) When during the investigation he removed the backpack from the vehicle. k) If he had observed either Duquette or Pineo-Fisher earlier that day or interacted with them before the vehicle stop. l) If he had any further interactions with Duquette after he was transported to the CKPS headquarters. m) If he conducted a search of the vehicle. n) How he eventually obtained the cell phone that was seized from Duquette.

[20] As PC Bakker was waiting for the results of a Canadian Police Information Centre query, he testified that from where he was “standing on the side of the passenger side” he looked in the passenger side window and observed a “large” grey Adidas backpack at Duquette’s feet. From that position, he observed a large compartment in the backpack that was zipped closed and another smaller compartment that was unzipped and open. “Inside” the “small compartment”, he observed an orange tip or cap covering the needle of what he believed to be “a syringe”, although he could not see the whole syringe. He also observed a clear bag containing “kind of a clear substance”.

[21] At about this time, PC Bakker received information from dispatch that Pineo-Fisher and Duquette were both subject to undertakings with conditions not to associate.

[22] PC Bakker subsequently removed Duquette from the vehicle and at 3:10 p.m. arrested him for possession of a controlled substance contrary to the CDSA and failure to comply with an undertaking. He provided Duquette with his s. 10(b) rights (i.e., right to counsel or “RTC”), handcuffed him, and sat him down on a nearby curb.

[23] At 3:11 p.m., PC Bakker attended the driver’s side of the vehicle and arrested Pineo-Fisher. He subsequently provided Pineo-Fisher with her RTC and placed her in the rear of his cruiser.

[24] After seizing the backpack, PC Bakker “pulled out” three syringes and a baggie of suspected methamphetamine from the small compartment. PC Bakker searched the bag further and discovered a quantity of illicit substances that was concealed within the larger compartment of the backpack. The items seized from the backpack included the following:

a) Three syringes with .25, .35 and .35 millilitres of what was later determined to be methamphetamine from the small compartment. b) A cracker box containing a large bag with 47.1 grams of methamphetamine and a Tupperware container with 23 grams of fentanyl from the large compartment. c) A small bag of methamphetamine weighing .2 grams. d) A small bag of fentanyl containing 3.2 grams. e) A small bag of methamphetamine containing 2.1 grams.

[25] No photographs were taken of the obstructed license plate.

[26] No photographs were taken of the backpack, and PC Bakker did not know what he did with it after the search was completed.

[27] No items were fingerprinted or subjected to DNA testing.

[28] The backpack contained nothing to suggest that it belonged to any specific person including any one of the three occupants who were in the vehicle at the time of the stop.

[29] At 3:17 p.m., PC Bakker provided Duquette with his RTC based on the new charges of possession for the purpose of trafficking methamphetamine and fentanyl.

[30] Eventually other officers arrived, and all three individuals were transported to the CKPS Headquarters.

[31] A further search resulted in the discovery of cell phones from both Duquette and Pineo-Fisher as well as $745 in Canadian currency from Duquette’s person.

[32] At the station, PC Bakker issued an HTA citation to Pineo-Fisher for obstructed plates.

C. Position of the Parties

The Position of the Defence

[33] The defence argues that no direct evidence and insufficient circumstantial evidence exists to demonstrate beyond a reasonable doubt that Duquette knew the illicit substances were in the backpack. First, it is not known when the bag was placed in the vehicle, who owned the bag, or whether the accused was in a position to observe what PC Bakker allegedly observed in the small compartment of the backpack. Finally, most of the illicit substances were hidden out of sight inside the bag.

[34] Accordingly, the defence submits that the Crown has failed to demonstrate knowledge and therefore possession of the drugs and on that basis he ought to be acquitted of all charges.

The Federal Prosecutor’s Position

[35] The Federal Prosecutor asserts that the evidence demonstrates that the accused had knowledge and control and therefore possession of the illicit drugs. The backpack was at his feet, right in front of him, with the orange syringe cap and baggie containing a clear substance in plain view and readily visible from a compartment that was unzipped and open. Further, $745 was also discovered on his person. When the evidence is considered in its totality, the only inference is that the accused Duquette knew of and had control over the illicit substances contained within the backpack at his feet.

[36] According, the Crown asserts that the accused should be found guilty on all counts in the indictment.

D. Legal Principles

1) The Standard of Proof

[37] To convict a person accused of a crime, the Crown must prove every element of each offence charged beyond a reasonable doubt. In accordance with the guidance provided by the Supreme Court of Canada in R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 39, I instruct myself on the criminal standard of proof.

2) The Distinction Between Credibility and Reliability

[38] The credibility and reliability of a witness are two distinct concepts. Simply, credibility relates to whether a witness was telling the truth, and reliability is whether a witness, although apparently honest, provides the court with inaccurate evidence: see R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 17.

[39] With all the above in mind, I will now consider the evidence of the witnesses.

E. Analysis

[40] When personal possession is alleged, the knowledge element consists of two components. An accused must be aware that they have physical custody of the thing alleged. And an accused must be aware of what that thing is. These elements of knowledge must co-exist with an act of control: see R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 45.

[41] The vehicle owned by Pineo-Fisher was observed by PC Bakker parked on the side of the road and unoccupied a short time before he initiated an HTA stop. After the stop and during the HTA investigation, he observed a backpack at the feet of Duquette - the front seat passenger. It is unknown how long that backpack was in the vehicle before the stop. It may have been in the vehicle at the feet of Duquette for only a brief period (ie. someone may have placed it there shortly after PC Bakker first observed the vehicle on the side of the road), or it could have been placed there well before that time. It is also unknown who may have placed the backpack in the vehicle. I may have have been placed there by Pineo-Fisher or Duquette, or even Nahmabin.

[42] All that I know is that the backpack, which could have belonged to anyone, was in Pineo-Fisher’s vehicle for an unknown period of time before the police observed it at Duquette’s feet. Because it was at the feet of Duquette is, in these circumstances, of no significance. An entirely possible scenario is that Pineo-Fisher placed the backpack on the passenger seat floor of her vehicle well before Duquette was an occupant – and that Duquette may have first entered the vehicle just before the police stop.

[43] Of significance is the fact that Duquette may not have been in a position where he could have observed the illicit items in the small open compartment of the backpack. PC Bakker testified that he observed in plain view the orange cap of what he believed to be a syringe and a baggie containing a clear substance. But PC Bakker was in a very different position from Duquette. PC Bakker was standing upright and looking down at the backpack from the side of the vehicle. Duquette, on the other hand, was in a seated position with the backpack located in front of him and at or between his feet. The evidence is that the items observed by PC Bakker were located inside a small compartment of the backpack, while the other substances were concealed elsewhere, out of sight, inside the backpack.

[44] Based on the evidence, I have no idea how deep inside the small open compartment the items were situated, the size of the opening to the compartment, and finally, but most importantly, in what direction the opening of this compartment was facing. The opening of this compartment could very well have been facing away from Duquette and towards where PC Bakker was standing at the side of the vehicle. Again, I do not have enough evidence to satisfy myself that Duquette was in a position to observe any of the items that were located inside this small compartment.

[45] The testimony of PC Bakker also raises real concerns with respect to the reliability of his evidence, including his observations of the backpack. I have already outlined those areas where PC Bakker did not recall what he did or said during the investigation. While I do not fault PC Bakker for having little to no recollection as it relates to some of these areas, his poor memory regarding significant parts of the investigation, including those areas having material importance to the investigation as a whole, cannot be ignored.

[46] For instance, PC Bakker did not recall, and in fact admitted, that he may have told Pineo-Fisher that the reason he stopped the vehicle was because he observed her leaving from a known drug house. In my view, this is such an important area that there is no reason why PC Bakker would not have recollected whether he said this to Pineo-Fisher even years after the event. While this one area in and of itself is troubling, when it is coupled with his failure to recollect a significant number of other details central to the very nature of the HTA/drug investigation, I am left with serious concerns regarding the overall reliability of PC Bakker’s testimony, including his initial observations regarding the backpack at or between Duquette’s feet.

[47] Lastly, the fact that Duquette had $745 in Canadian currency on his person does not, in and of itself, assist with respect to establishing the knowledge component of possession by Duquette in respect to the drugs found in the backpack.

[48] In sum, I am not satisfied beyond a reasonable doubt, based on all the evidence, including that of PC Bakker, that the accused had both knowledge and control and therefore possession of the illicit substances found in the backpack.

F. Conclusion

[49] Accordingly, I find the accused not guilty on counts one and two as set out in the indictment.

Brian D. Dubé Justice Released: November 8, 2024