Court File and Parties
COURT FILE NO.: CR-23-90000430 DATE: 20241122
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HIS MAJESTY THE KING – and – SPIRO RUSHA
Counsel: C. Kalantzis, for the Crown J. Randall Barrs for Mr. Rusha
HEARD: June 10, 2024
R. MAXWELL J.
Reasons for Trial Judgment
[1] The accused, Spiro Rusha is charged with multiple counts of possession of controlled substances for the purpose of trafficking contrary to s. 5(4) of the Controlled Drugs and Substances Act, and two counts of possession of proceeds of crime, contrary to s. 355 of the Criminal Code.
[2] Mr. Rusha entered pleas of not guilty and had a trial before me.
[3] The Crown’s case consisted of an Agreed Statement of Facts and the evidence of Detective Constable Moxham who was qualified as an expert (on an uncontested basis) in the sale, pricing, quality, methods of use, quantity, preparation, and packaging of fentanyl, cocaine, benzimidazole, alprazolam, oxycodone, MDMA, and psilocybin as well as in the practices, habits, sale, methodology and modis operandi related to possession and trafficking of substances.
[4] The Defence called Mr. Rusha.
[5] Pursuant to the Agreed Statement of Facts, the following facts are not in dispute. On September 20, 2022, members of the Toronto Police Service 55 Division Major Crime Unit obtained a CDSA search warrant for Mr. Rusha's apartment at 402-65 Gamble Ave. Toronto following a confidential source-based investigation.
[6] In connection with the investigation, Mr. Rusha was located with unknown males at a gas station on Broadview Ave. at 1:55 PM. Detective Rahim placed Mr. Rusha under arrest for possession of a controlled substance for the purpose of trafficking.
[7] Mr. Rusha was searched incident to his arrest. After one of the unknown males was found to be in possession of a butcher’s knife down his pants, Mr. Rusha was more thoroughly searched. Detective Constable Zamir located a black sock in the front of Mr. Rusha's pants. Mr. Rusha accused the police of planting the sock on him.
[8] Inside the black sock, police located 3 clear plastic wrapped baggies tied in a knot. Inside were small chunks of pink suspected fentanyl. There was also a tinted plastic bag tied in a knot containing tablets.
[9] Mr. Rusha was also found to be in possession of a Burberry satchel which he was wearing at the time of his arrest. Inside the Burberry satchel, police located a small cutter, two iPhone cell phones, marijuana packaging containing a small amount of marijuana, a small black wallet, Belmont cigarettes, and rolling paper.
[10] Mr. Rusha was also found to be in possession of $615 in cash at the time of his arrest.
[11] At 2:11 PM, a search warrant was executed at Mr. Rusha’s home at 402-65 Gamble Ave. Officers Rahim, Hill, Zamir, Baboulas, and Di Pasquale executed the search.
[12] A search of Mr. Rusha’s bedroom resulted in police locating several different controlled substances, bundles of cash, scales, and identification in Mr. Rusha’s name. Specifically, police located:
- A Correctional Service Canada card in the name of Mr. Rusha on a dresser;
- Inside of a grey shoe box in the corner of the bedroom on a shelf police located a pair of blue shoes as well as a freezer Ziploc bag that contained cocaine and a black plastic bag tied in a knot that contained psilocybin; a black sock was also found inside the right shoe that contained a clear plastic Ziploc sandwich bag that contained suspected cocaine;
- An empty Foodsaver vacuum seal bag with “Cake Batter 250” written on it in black marker;
- Three clear plastic bags tied in a knot that contained pink chunks of fentanyl inside a black pouch inside the top drawer of the dresser;
- In a dresser drawer, a large clear plastic bag tied in a knot that contained pills and a yellow pill bottle and blue latex gloves, one clear plastic bag tied in a knot that continued a dark grey rock of suspected fentanyl and a clear plastic bag with white round pills;
- In a second dresser drawer, a wallet with two Ontario Health cards not in Mr. Rusha’s name;
- In the bottom drawer, a digital scale; a second digital scale was also located in the bedroom;
- A Honeywell lock box under the bed which contained a significant amount and nearby, miscellaneous documents in the name of Spiro Rusha.
[13] The suspected controlled substances were weighed. Samples of the suspected controlled substances were sent to Health Canada for analysis. The following are the results of the drug analysis:
- 21.37 grams of fentanyl;
- 53.94 grams of cocaine;
- 5.7 grams of benzamidizole, of which there were 5 tablets pressed as Percocet, 6 tablets pressed as 8mg Dilaudid, 4 tablets pressed as Oxycodone 80, more tablets pressed as Oxycodone 80, and 4 tablets pressed as Oxycodone 30;
- 2.3 grams of alprazolam (Xanax) (8 tablets);
- 4.72 grams of oxycodone (8 tablets);
- 2.09 grams of MDMA; and,
- 3.47 grams of psilocybin.
[14] Police also located a lock box located under Mr. Rusha’s bed in the bedroom. It contained 11 bundles of cash totaling $26,200, broken down as following:
- 146 $5 bills for a total of $730;
- 28 $10 bills for a total of $280;
- 1057 $20 bills for a total of $21,140;
- 61 $50 for a total of $3,050;
- 10 $100 bills for a total of $1000.
[15] It is conceded that Mr. Rusha was in possession of all of the controlled substances located on his person and in his bedroom. It is also conceded that Mr. Rusha was in possession of cash located in the lock box totaling $26,200 and the cash located on his person incident to his arrest, totaling $615.
[16] The issues in dispute are whether Mr. Rusha possessed the controlled substances for the purpose of trafficking and secondly, whether the monies located were proceeds of crime.
Position of the Parties
[17] The Crown’s case is circumstantial. The Crown submits that the only reasonable inference to draw from the totality of the evidence is that Mr. Rusha possessed the controlled substances for the purpose of trafficking. The Crown further submits that on the totality of the evidence, the only reasonable inference to draw is that the monies located on Mr. Rusha’s person and in his bedroom were proceeds of crime. The Crown submits that Mr. Rusha’s evidence should be rejected on the basis that he was not a credible or reliable witness.
[18] The Defence argues that the evidence of Mr. Rusha that he possessed the controlled substances for his personal use after suffering a serious injury and not for purposes of trafficking should be accepted. The Defence submits that I should accept Mr. Rusha’s explanation that the monies found in his possession were earnings from his work as a roofer and not proceeds of crime. The Defence further submits that Mr. Rusha’a evidence, at the very least, raises possible inferences inconsistent with guilt.
[19] The Defence position is that the Crown’s evidence does not establish Mr. Rusha’s guilt beyond a reasonable doubt because it lacks evidence of strong indicia of trafficking, DC Moxam’s evidence relied on generalities that do not apply in this case. Further, the Defence submits that DC Moxam accepted hypothetical scenarios put to him on cross-examination, which could support inferences inconsistent with guilt, as being “possible”. The Defence submits that the Crown has failed to establish Mr. Rusha’s guilt beyond a reasonable doubt.
[20] For the reasons set out in this judgment, when the evidence is looked at in its totality, and having considered and rejected other innocent explanations raised by Mr. Rusha, I find that the only reasonable inference to draw is that Mr. Rusha possessed the controlled substances for purposes of trafficking.
[21] Further, I am satisfied beyond a reasonable doubt, that when looked at in the context of the rest of the evidence, including Mr. Rusha’s explanations, the only reasonable inference to draw is that the cash currency located in Mr. Rusha’s room was proceeds of crime exceeding $5000 and further, that the cash currency found on his person upon his arrest was proceeds of crime not exceeding $5000.
[22] I therefore find Mr. Rusha guilty on all counts. These are my reasons.
The Applicable Law
[23] Because Mr. Rusha testified, in determining whether the Crown has proved the allegations beyond a reasonable doubt, I must apply the principles set out in R. v. W.(D.), [1991] 1 S.C.R. 742. First, if I believe Mr. Rusha’s evidence, I must acquit. Second, if I do not believe his testimony, but I am left in reasonable doubt by it, I must acquit. Third, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced of the accused’s guilt beyond a reasonable doubt.
[24] In assessing whether or not to believe Mr. Rusha’s evidence, I do not consider his evidence in isolation, as though the Crown had led no evidence. Rather, I must assess the accused’s evidence in light of all of the evidence. As the Court of Appeal for Ontario stated in R. v. Hoohing, 2007 ONCA 577, 74 W.C.B. (2d) 676, at para. 15:
The evidence of any witness, including an accused, may be believable standing on its own, but when other evidence is given that is contradictory, or casts doubt on the accuracy or reliability of the witnesses’ evidence, that evidence may no longer be believable, or in the case of an accused, may no longer raise a reasonable doubt.
[25] To prove beyond a reasonable doubt that Mr. Rusha possessed the controlled substances for the purpose of trafficking, and to prove that he possessed proceeds of crime, the Crown relies on circumstantial evidence. The Court of Appeal for Ontario summarized the proper approach to circumstantial evidence in R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at paras. 36-37:
When the Crown’s case consists wholly or substantially of circumstantial evidence, the standard of proof requires the trier of fact be satisfied beyond a reasonable doubt that the accused’s guilt is the only reasonable inference to be drawn from the evidence as a whole: R. v. Villaroman, [2016] 1 S.C.R. 1000, at para. 20.
[26] As noted in Villaroman, at para. 30, where proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, a trier of fact must be careful about too readily drawing inferences of guilt. An inference of guilt drawn from circumstantial evidence should be the only reasonable inference that the evidence permits. The mischief of inference-drawing from circumstantial evidence arises where the trier of fact may conclude prematurely that an accused is guilty without considering whether there are “reasonable alternative inferences”.
[27] To determine if the circumstantial evidence meets the required standard of proof, the trier of fact must keep in mind that it is the evidence, assessed as a whole, that must meet this standard of proof, not each individual piece of evidence that is but a link in the chain of proof: R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at paras. 81-82; R. v. Morin, [1988] 2 S.C.R. 345, at pp. 360-61; Côté v. The King (1941), [1941] S.C.R. 279, 77 C.C.C. 75 (S.C.C.), at p. 76. See also R. v. Uhrig, 2012 ONCA 470, at para. 13; R. v. Hudson, 2021 ONCA 772, 158 O.R. (3d) 589, at para. 70.
[28] Specifically, the Court should not approach circumstantial evidence on a “piece-meal” basis, as the Court of Appeal for Ontario noted in R. v. Smith, 2016 ONCA 25. At paras. 81-21, the Court stated:
The second principle assumes particular significance when, as here, arguments are advanced that individual items of circumstantial evidence are explicable on bases other than guilt. It is essential to keep in mind that it is the cumulative effect of all the evidence that must satisfy the criminal standard of proof, not each individual item which is merely a link in the chain of proof: R. v. Morin, [1988] 2 S.C.R. 345, at p. 361; R. v. Uhrig, 2012 ONCA 470, at para. 13.
Often, individual items of evidence adduced by the Crown examined separately lack a very strong probative value. But it is all the evidence that a trier of fact is to consider. Each item is considered in relation to the others and to the evidence as a whole. And it is all the evidence taken together, often greater than the sum of individual pieces, that is to be considered and may afford a basis for a finding of guilt: Uhrig, at para. 13. See also: Côté v. The King (1941), [1941] S.C.R. 279, 77 C.C.C. 75 (S.C.C.), at p. 76.
Assessment of the Evidence
[29] Mr. Rusha testified that in January of 2019, he sustained life-threatening injuries after being shot in the stomach/midsection three times. He was hospitalized for three months. He testified that while he was in the hospital, he was administered fentanyl and hydromorphone on a regular basis through an IV. Once he was sufficiently stabilized, he was released from the hospital with one refill for prescription hydromorphone. He testified that he was not given any further pain killers upon his release from the hospital in mid-March 2020.
[30] Mr. Rusha testified that because he did not receive any medication to manage his pain after his discharge from the hospital, he turned to street drugs to manage pain and nerve damage. He testified that he began purchasing various controlled substances on the street. He purchased opioids from the street, including fentanyl and combined the opioids with cocaine, which he had started to use at parties during high school. He testified that fentanyl offered temporary relief from his pain. He testified that he bought “all sorts” of opioids including Percocets, “oxys” as well as Xanax for anxiety. He became addicted to fentanyl.
[31] From mid to late 2020 until November of 2021, Mr. Rusha was in custody for a conviction for aggravated assault. He received a sentence of 2 years in custody and was granted a release after serving 2/3 of his sentence. While in custody, he received suboxone, an opioid blocker and Tylenol 3 to control his pain.
[32] Six months after his release from custody, Mr. Rusha was re-arrested for breaching his parole after a routine urine test revealed the presence of fentanyl. He spent a further month in custody and was released in late December 2021.
[33] Mr. Rusha testified that he was unable to access programming to assist him with his drug dependency upon his release because of long waitlists related to the Covid-19 pandemic. He returned to using fentanyl and cocaine.
[34] Mr. Rusha testified that there were many drug users in his neighborhood and he came to know one person who sold drugs in the neighborhood named Matt, who he also knew by the name “Trinny” (he will be referred to hereinafter as “Matt”). Matt had been in his neighborhood for a long time. Mr. Rusha testified that he bought his drugs (in particular, all the controlled substances which form the basis of the charge). from Matt. He typically would meet Matt to purchase drugs once a week, but the frequency varied.
[35] Mr. Rusha testified that once his addiction took hold, he was using 1 ½ - 2 grams of fentanyl per day. He stated that he used a scale to make sure he was not taking too much. He kept a Narcan kit and spray to administer on himself in case he overdosed. He testified that he also did research online about Narcan. He presented an undated photo of a Naloxone kit in his bedroom and a printout from the internet with information about how to acquire a Naloxone kit. Both were marked as exhibits on the trial.
[36] He testified that the morning of his arrest, he met Matt, who told him he had “good stuff” on him and could give him a good deal. Mr. Rusha testified that Matt also told him he had some other pills he could try. Mr. Rusha testified that he took $1000 in cash from his safe at home. He did not know who much money he would need, but hoped he would get a good deal.
[37] He met Matt and paid him a bit less than $400 for 6-7 mg of fentanyl. He testified that Matt gave him the fentanyl in three small baggies. He also bought an assortment of pills, MDMA, and psilocybin from Matt that day. Mr. Rusha testified that he bought the pills, MDMA, and psilocybin for his mental health issues. He struggled with his mental health and understood the substances he purchased included “uppers” and “downers”. He testified that he paid less than $50 for all of the pills, psilocybin, and MDMA. He testified that he would have purchased more fentanyl from Matt if he had more to sell him at a good price.
[38] Mr. Rusha testified that he put everything he purchased from Matt in a sock. He had $615 in cash on his person at the time of his arrest because that is what remained after he made the purchase from Matt. Mr. Rusha testified that the fentanyl and pills he purchased from Matt that day were all for personal use. He stated that this quantity of fentanyl would have lasted him approximately 2 days. His normal practice was to either snort the fentanyl or smoke it by burning it on tinfoil.
[39] Mr. Rusha testified that the people with him at the gas station at the time of his arrest were friends from the neighborhood. He testified that was not aware that one of his friends had a butcher knife down the front of his pants. When asked why he claimed to the police that they had planted the sock containing the drugs located down his pants, he testified that he knew he had just purchased drugs from Matt and was “in shock” that he had been stopped by the police.
[40] Of the 14-15 grams of fentanyl located in his bedroom, Mr. Rusha testified that he paid Matt approximately $700 for the fentanyl, about a week before his arrest. That quantity he stated would last him about a week.
[41] Of the 53 grams of cocaine located in his bedroom, he testified that he had also purchased the cocaine from Matt a week earlier for $1800 and that he had used a couple of grams from the purchase, which is why it weighed just under 2 ounces.
[42] When asked why he was accumulating controlled substances in his home rather than just using what he bought, he testified that he purchased when he saw opportunities to buy and because he was using fentanyl heavily, he tried to “stock up” to avoid meeting Matt every day or every other day. He testified that he purchased different types of opioids from Matt because he was “trying to chase my high” and that the various pills helped with his mental health, as MDMA was “more of an upper”, and psylocibin produced a euphoric feeling.
[43] He testified that the $26,400 in cash located inside a box in his bedroom was money earned from his work as a roofer. He stated that he made all deposits for his company, SR Roofing, into a business account. Mr. Rusha testified that the deposits noted in the bank records were deposits from business income, which sometimes came as cash payments and sometimes came as cheque payments. He further testified that he regularly withdrew money from the account to keep at home to support household expenses and to buy drugs. He testified that he withdrew the money in cash for “financial privacy”. He kept the money in a lockbox under his bed in bundles of $1000. He testified that he has obsessive compulsive tendencies and likes to keep his money organized in bundles of $1000.
[44] To explain why there were were a large number of $5 and $10 bills bundled together in the lockbox, he testified that one day in the spring, he went to an ATM to withdraw $1000 and the ATM machine expelled $1000 in $5 and $10 bills.
[45] Mr. Rusha’s bank statements from TD Canada Trust for the time period of March 8, 2022 to May 22, 2024 were introduced as an exhibit on the trial. The records reflect frequent cash withdrawals as well as deposits. Records from his personal TD Canada Trust bank account where he made withdrawals of $16,000-$18,000 in 2022 were also marked as an exhibit on the trial.
[46] He denied that any of the money on his person at the time of his arrest or stored in his bedroom were proceeds from crime, namely, drug trafficking. He denied ever selling drugs.
[47] I did not find Mr. Rusha to be a credible or reliable witness. His evidence in examination in chief was vague in detail and self-serving. He was led through much of his examination in chief. It was only under cross-examination, when Mr. Rusha was pressed about various aspects of his evidence, particularly for details about how he came to be in possession of the controlled substances and cash, that details emerged. However, under cross-examination, the details proved to be inconsistent with evidence he gave on examination in chief, or at earlier points in cross-examination. At other times, his evidence was highly implausible.
[48] By way of example, I will address Mr. Rusha’s evidence about “Matt”, the dealer he testified supplied him with the controlled substances for a “good deal”. In examination in chief, he provided only the most basic information about “Matt”, as a dealer he knew sold drugs in his area who he met through his friend Tasso. When he was cross-examined for details of how he knew “Matt”, he stated that Tasso introduced him to Matt after he (Mr. Rusha) was released from the penitentiary in 2021. When it was suggested to Mr. Rusha that this evidence was contradictory of his earlier evidence that Matt had been his dealer from 2019 until 2022, Mr. Rusha testified that Tasso must have introduced him to Matt after his release from the hospital in 2019, not after his release from the penitentiary. When it was suggested to him that this also does not make sense because he testified that he met Tasso a few times before his incarceration and then saw him more after he was released from the penitentiary, Mr. Rusha offered various explanations for the inconsistencies, including that he tried to suppress his memories, that he was anxious while testifying, that he did not understand the question, and finally that he was mistaken in his evidence about meeting Matt for the first time after he was released from the penitentiary.
[49] As another example, Mr. Rusha offered almost no evidence in examination in chief about why he was still in possession of the fentanyl he purchased from Matt on September 22nd when he was arrested at the gas station. In cross-examination, he initially testified that he met Matt in the early morning to purchase the fentanyl and that the transaction occurred just outside of his apartment building. He testified that he had not used any fentanyl that morning and was “itching to use”. When it was pointed out to Mr. Rusha that he was arrested at the gas station hours later with the fentanyl, unused and still secreted in the sock down his pants, he changed his evidence and testified that he woke up at 10am and must have meet Matt at around 12pm. He testified that he then had a coffee at a coffee shop, and then went to meet his friends at the gas station. When it was further suggested to Mr. Rusha that it does not make sense that he would go for a coffee and meet his friends before going to his apartment to drop off the fentanyl, he testified it was just a “quick coffee” and he already had pre-arranged plans to meet his friends at the gas station. When asked if he had used fentanyl in the morning before meeting with Matt, Mr. Rusha indicated he “didn’t have a chance to sniff or smoke” that day. When it was suggested that, based on his evidence that he used fentanyl every 1-2 hours and was heavily addicted, he could not have gone the entire day without using, he revised his evidence and said he did not know whether he used drugs in the morning, or what drugs he might have used.
[50] Beyond being inconsistent and convoluted, the narrative is very implausible. It does not make sense that Mr. Rusha, rather than returning to his apartment to either use the fentanyl (if it was for personal use) or leave it in his home (as he testified he was embarrassed and hiding his drug use from his friends and family) would have kept it on his person for hours, secreted in a sock inside his pants, while he went for a coffee and met his friends at the gas station, if it really was for personal use. It also do not make sense that he did not use any of the fentanyl that he claimed he was “itching” to use.
[51] Similarly, Mr. Rusha’s evidence about why he had $615 on her person at the time of his arrest also did not ring true. If Matt called him that day offering to sell him drugs and he met Matt to purchase drugs that day, common sense dictates that he would have had an idea of how much Matt would sell him and at what price. It makes no sense that he would show up to buy fentanyl from Matt with $1000 of cash on his person, on the off chance that Matt might have as much as $1000 worth of fentanyl or other drugs to sell him, as a user.
[52] Further, Mr. Rusha’s evidence that he purchased 6-7 grams of fentanyl from Matt for $400 (as the explanation for why he had $615 on her person at the time of his arrest) is well outside of the typical price range for users buying fentanyl by the gram and is not believable.
[53] I will discuss the evidence of DC Moxam in greater detail later in these reasons, but I found DC Moxam’s evidence to be detailed and his expertise in the sale and distribution of controlled substances to be well-supported by his extensive experience as a police officer working in drug investigations. He testified that in September of 2022, fentanyl was selling for approximately $180-220 per gram when purchased at the gram level. I accept his evidence on this point. Taking the lower dollar value of that range, the quantity of fentanyl Mr. Rusha allegedly purchased from Matt that day would be expected to cost between $1080 (assuming he bought 6 grams) and $1260 (assuming he bought 7 grams).
[54] I do not accept the Defence argument that because the purchase price for an “8 ball” or one ounce (28 grams) of fentanyl was between $1000 and $2000 in 2022 (as DC Moxam testified), it is plausible that Mr. Rusha bought a ¼ ounce (7mg) for $400. I accept DC Moxam’s evidence that that prices vary when the denomination of drugs varies. In other words, simply because an ounce of fentanyl (sold as an ounce or “8-ball”) could be purchased for as little as $1000, does not mean that 7 grams of fentanyl would cost ¼ of the amount to purchase an 8-ball. Buying in grams (as Mr. Rusha testified he did that day, acquiring 7 grams provided to him in three little baggies) would cost more.
[55] It is very implausible, absent some compelling reason arising out of the evidence, that a drug dealer would sell a user fentanyl by the gram heavily discounted from the average price for mid-level drug sales. Mr. Rusha’s evidence offered no plausible explanation for why Matt would give him such discounted rates for fentanyl. Matt was simply a person he knew to be a dealer in the area.
[56] It follows then that I also do not accept Mr. Rusha’s evidence that the reason he was buying fentanyl from Matt well in excess of what he needed to meet his daily use and why the fentanyl was accumulating in his home, was because Matt gave him “good deals”.
[57] Moreover, in a pattern similar to other parts of his testimony, Mr. Rusha gave very simplistic evidence in examination in chief about his purchase of the 14-15 gram of fentanyl found in his home during the search warrant. He testified simply that he purchased it from Matt about a week before his arrest for $700. In cross-examination, he testified that this quantity would last him for one week. Given that this entire amount of fentanyl was located during the search warrant, it suggests Mr. Rusha did not use any of it after he purchased it. The photographs of the fentanyl from the bedroom which were filed as exhibits on the trial also suggest that the packages were not opened. This is another example of Mr. Rusha’s evidence being incapable of withstanding closer scrutiny for reliability and truthfulness.
[58] Mr. Rusha’s evidence that he had 53 grams of cocaine in his bedroom for personal use was also not credible. His primary explanation for why he had approximately 2 ounces of cocaine in his bedroom was that Matt offered him a good price of $1800. However, this would again mark a very sharp discount on the typical price of cocaine at the ounce level. DC Moxam testified that on average, the price of one ounce of cocaine ranges from $1700 to $2000, such that 53.94 grams of cocaine should have cost Mr. Rusha between $3264 and $3840. If Mr. Rusha was paying the average price per gram, the cost of 53.94 grams of cocaine would have been $5394.
[59] There is no plausible explanation on the evidence for why Matt would sell Mr. Rusha two ounces of cocaine for half the price he would otherwise get from a customer, if selling by the ounce.
[60] Other than Mr. Rusha’s evidence that it was the price of the cocaine that prompted him to buy two ounces, there is no explanation for why he needed this quantity of cocaine. Even if he used some quantity of cocaine to manage his mental health, the amount he had is not consistent with his own narrative that he used cocaine intermittently, along with other drugs, for his mood, but that he was addicted to fentanyl.
[61] Turning to the monies located in Mr. Rusha’s bedroom, I do not accept that Mr. Rusha was withdrawing such large amounts of cash from his personal and business bank accounts just to leave in a storage box at home. I do not accept the implausible evidence that he received a very large number of $5 and $10 bills during an ATM transaction in which he withdrew $1000 to explain why he had a very large number of $5 and $10 bills in his storage box. This evidence is implausible on its face.
[62] Moreover, as DC Moxam testified, street level sales of fentanyl and other substances often involve customers paying with small denominations like $5, $10 and $20. DC Moxam testified that mid-level drug dealers often sell to people who pay for “points” of fentanyl in small denominations like $5 and $10. I accept his evidence on these points. It assists in evaluating (and discounting) the credibility of Mr. Rusha’s explanation for the denominations and number of bills in his storage box.
[63] When it was put to Mr. Rusha on cross-examination that his explanation for why he had such a large amount of cash in his room, he testified that he withdrew money with the intention of buying a $15,000 truck for his company. I have doubts about the credibility of his evidence on this point, which only came up in cross-examination.
[64] I also do not accept his evidence that he kept large amounts cash in his home for household expenses, to buy drugs, or for financial privacy. While it would be reasonable for Mr. Rusha to keep some quantity of cash in his home for sundries, emergencies, or to support his mother and father, or to buy drugs, it is entirely implausible that Mr. Rusha kept such a significant surplus of money in his bedroom for any of those reasons. It is particularly implausible when viewed against the fact that Mr. Rusha maintained both a personal and business bank account and was prolific in his use of his accounts to make transactions, as reflected in the bank records which were filed on the trial. The money in the bank was very accessible to him for these purposes.
[65] Therefore, overall, I found Mr. Rusha’s evidence lacked credibility and I do not accept it.
Has The Crown Established Possession of Controlled Substances for the Purpose of Trafficking and Possession of Proceeds of Crime Beyond a Reasonable Doubt?
[66] In my view, the evidence that the controlled substances located on Mr. Rusha upon his arrest and in his home on September 20, 2022 were possessed for the purpose of trafficking is highly compelling. I am satisfied that the only reasonable inference, when the evidence is looked at as a whole and cumulatively, is that Mr. Rusha possessed the controlled substances for the purpose of trafficking.
[67] First, the quantity of fentanyl seized supports an inference that the possession was for the purpose of trafficking. I accept that Mr. Rusha was injured in a shooting and may suffer from chronic pain. I cannot exclude the possibility that he is a fentanyl user and uses fentanyl to manage his pain. However, the amount of fentanyl Mr. Rusha had in his home well exceeded what he used on a daily, or even weekly basis. For reasons I have already set out, I have rejected Mr. Rusha’s explanations for why he had the quantities of fentanyl and his evidence that the fentanyl located in his home and upon his arrest was for his personal use.
[68] As I will address below, DC Moxam’s evidence about the habits and practices of drug users further supports a conclusion that the quantity of fentanyl seized in this case is consistent with drug trafficking.
[69] Second, there was no paraphernalia related to personal drug consumption located on Mr. Rusha at the time of his arrest or at his home. If Mr. Rusha was using drugs as heavily as he claimed, and possessed all the controlled substances only for personal use, it is not believable that there would be no indicators of personal use on his person or at his home.
[70] Third, Mr. Rusha’s possession of fentanyl was done in combination with being in possessing of significant quantities of other drugs, including a large amount of cocaine, various other opioids including oxycodone, Dilaudid, and Percocet, as well as alprazolam (Xanax), MDMA, and psylocybin. The combination of different drugs lends significant support to the inference that Mr. Rusha possessed the controlled substances for the purposes of trafficking. DC Moxam’s opinion evidence supports this conclusion.
[71] Fourth, the controlled substances were located in combination with substantial amounts of cash, a further indication of drug trafficking. For the reasons I have outlined above, I do not accept Mr. Rusha’s explanation for why he had $615 on his person at the time of the arrest, nor do I accept his explanation for why he had over $26,000 in stacked cash, organized by denomination, in a storage box in his bedroom. The quantity of cash seized, and the manner it was stored, are both indicative of a drug trafficker’s business.
[72] Fifth, were further indicia consistent with trafficking, including the fact that Mr. Rusha had two cell phones and a cutter in his possession when he was arrested. Two scales were located in his home during the search warrant.
[73] I recognize that certain indicia of trafficking are not present in this case, such as debt lists, cutting agents, evidence of packaging, or other indicia. I accept that the more indicia consistent with trafficking that exist, the stronger the inference is that controlled substances are possessed for the purpose of trafficking.
[74] However, it does not follow that the absence of certain indicia necessarily undermines compelling evidence that is consistent with trafficking. In this case, the quantity of controlled substances in two different locations, the significant amounts of cash both on Mr. Rusha’s person and in his home, the way the cash was stacked and stored in his home, the number of different controlled substances seized, and the lack of anything on Mr. Rusha or in his home suggestive of personal use are all pieces of circumstantial evidence which strongly support the inference that the possession was for trafficking.
[75] It is against this backdrop of factual findings that I consider the opinion evidence of DC Moxam that, based on his experience in drug investigations, the quantity of fentanyl seized was not consistent with personal use and that there is a strong inference that the fentanyl possessed was for the purpose of sale based on the weight alone.
[76] DC Moxam has been a police officer with Toronto Police Service since 2006 and has worked in the drug squad of the Toronto Police Service and the Niagara Police Service since 2014. Through his time with the drug squad, as well as in uniform capacity, he has experience in investigating suspected drug trafficking from street level trafficking in smaller quantities to larger scale operations. He has been qualified as an expert over 30 times in both the Ontario Court of Justice and the Superior Court of Justice.
[77] He authored a report concerning the investigation, which was marked as an exhibit on the trial. He adopted the conclusions from his report in his viva voce evidence at trial.
[78] Detective Constable Moxham’s evidence was detailed, well explained, and reflected his independence from the case. He acknowledged that he understood the duty of an expert witness to be fair, objective and non-partisan. I find he was a credible witness and I accept his testimony.
[79] I accept his evidence that fentanyl sold to users is most commonly bought by the “point”, which is 0.1 grams and represents one “hit” or one dose. He testified that it is common to buy a “point” of fentanyl for $20. It would be common for users to purchase “points” of fentanyl for dollar denominations of $5, $10, and $20 bills.
[80] Depending on the user, the quality, and the potency of the fentanyl, a typical fentanyl user a fentanyl user uses by the “point”, or a dose at a time, with an average daily use around 1 gram. He testified that a very heavy user could use up to 3.5 grams of fentanyl in a day, but that would be an extreme outlier.
[81] Based on his experience buying fentanyl in an undercover capacity from dealers, he typically buys multiple points to gram level up to half of an “eight ball”, or 1.75 grams. He testified that anything over these amounts would not be typical and suggests the buyer is a trafficker because of the cost associated to buy in larger quantities.
[82] He explained that, in his experience, a typical user would not go above an “eight ball” because of the cost as well as the risk of possessing that quantity of drugs at one time (potential for loss, robbery by other users, police detection). In his experience, users typically buy smaller amounts as they go, rather than “wholesale” buying to save money, due to the risk of carrying or possessing a large amount of drugs at any given time.
[83] Finally, I accept his evidence that in September of 2022, fentanyl was selling for approximately $180-220 per gram, putting the value of the 21.37 grams of fentanyl located in this case between $3,846 and $4,701. He testified that this is average pricing for fentanyl sold by the gram.
[84] 21.37g of fentanyl, the amount seized in this case, represents approximately 213 “hits” or doses of fentanyl with a resale value of $4260 if sold by the “point” for $20 per “point”.
[85] In my view, DC Moxam’s evidence provides compelling support, given my other factual findings, that Mr. Rusha possessed the fentanyl for purposes of trafficking, not for personal use.
[86] Further, I accept DC Moxam’s evidence that the quantity of cocaine located in Mr. Rusha’s bedroom alone is inconsistent with personal use and that there is a strong inference that the cocaine was possessed for future sale on the weight alone. I have already rejected Mr. Rusha’s evidence that he bought two ounces of cocaine for personal use because it was a good price.
[87] DC Moxam quite fairly acknowledged that the quantity of psilocybin, oxycodone, Percocet, Dilaudid, alprazolam (Xanax), and MDMA, based on their individual amounts, were each consistent with personal use, when examined alone. However, I find that when viewed in combination with the fentanyl, cocaine, and money located in Mr. Rusha’s bedroom, the only reasonable inference is that all of the substances were possessed for the purpose of sale.
[88] The Defence suggests that Mr. Rusha’s evidence raises at least a plausible inference that he was collecting fentanyl and other controlled substances for personal use based on a hypothetical scenario put to DC Moxam. The hypothetical scenario put to DC Moxham was that someone with chronic pain who has a good relationship with a dealer might accumulate quantities of controlled substances in excess of what would be needed for immediate use because he was getting good prices, he had the financial means to purchase larger quantities, and he wanted to reduce his number of meetings with the dealer. While DC Moxham could not exclude the possibility that, based on these factual assumption, someone might accumulate drugs for personal use, but testified it is improbable.
[89] The Defence relies on the decision of R. v. MacAdams, 2024 ONCA 13. In MacAdams, the accused was found to be in possession of 4.2 ounces of cocaine. Other than the quantity of cocaine seized, there was no indicia of trafficking. A police officer who was qualified to give expert testimony at the trial testified that the amount possessed was consistent with trafficking. However, he also accepted hypothetical scenarios put to him on cross-examination that a person living in a remote community who takes cocaine for pain management could be in possession of this quantity (about a one-month supply for a heavy user) for personal use.
[90] The Court of Appeal concluded that the expert’s evidence laid the foundation for a reasonable possibility inconsistent with guilt. The Court held, at para. 9, that the meagre evidence connecting the appellant to trafficking, coupled with the expert’s statement that the amount could be consistent with personal use of a heavy user living in a remote area without ready access to dealers, ought to have raised a reasonable doubt as to trafficking.
[91] However, the present case is factually distinguishable from MacAdams. Mr. Rusha did not live in a remote community with limited access to drug dealers. He lived in a downtown Toronto neighborhood that had, on his own evidence, a drug dealer presence. He did not have trouble accessing Matt. On his own evidence, he typically met him on a weekly basis, most often by simply going to a bar in the neighborhood where he knew Matt to be. They also communicated with each other on the phone. Further, the amounts he possessed, and the variety of controlled substances located make this case distinguishable from MacAdams and the conclusion that there was “…meagre evidence connecting the appellant to trafficking”.
[92] While facts related to alternative possibilities inconsistent with guilt do not need to be based on proven facts, the explanations or inferences must be reasonable, rationale, and cannot be based on conjecture: R. v. Tetrault, 2018 ABCA 397, at para. 32. In MacAdams, the hypothetical scenario put to the expert was undisputed facts about the appellant’s personal circumstances – he was a person living in a remote community, he suffered from chronic pain, and he had minimal access to drug dealers. On that basis, the expert accepted that someone in these circumstances might buy controlled substances in quantities larger than what would be necessary for immediate use.
Conclusion
[93] In my view, when looking at the evidence as a whole, Mr. Rusha’s evidence does not raise reasonable inferences inconsistent with guilt, nor does his evidence leave me in reasonable doubt.
[94] In this case, the Defence has approached the evidence in a piecemeal fashion, offering explanations for individual pieces of evidence that are inconsistent with guilt. However, this is inconsistent with the approach set out by the Court of Appeal for Ontario in Smith. The individual pieces of evidence must be looked at together and the evidence considered as a whole. Moreover, the explanations offered were not credible.
[95] I am satisfied that the evidence, when looked at cumulatively, establishes beyond a reasonable doubt, that Mr. Rusha possessed all the controlled substances for the purpose of trafficking and that most, if not all, of the money located in the investigation was proceeds from drug trafficking.
[96] For these reasons, I find Mr. Rusha guilty on all counts.
R. Maxwell J.