Reasons for Judgment

Court File No.: CR-24-90000223-0000
Date: 2025-04-17
Ontario Superior Court of Justice

Between:
His Majesty the King
and
Richard Ray Smith

Applicant Counsel: Jacqueline Porter
Respondent Counsel: Elijah White

Heard: March 3, 4, 5, 6, 7 and 10, 2025
Judge: J.T. Akbarali

Overview

[1] The defendant, Richard Smith, is charged with possession of a controlled substance (fentanyl) for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act (the “CDSA”). He is also charged under s. 355(b) of the Criminal Code of Canada (the “Code”) with possession of property or proceeds of property that was obtained or derived directly or indirectly as a result of the commission of an indictable offence contrary to s. 354(1)(a) of the Code.

[2] Mr. Smith has pleaded not guilty to both counts. The defence theory is that Mr. Smith possessed fentanyl for personal use.

[3] For the reasons set out below, I find Mr. Smith not guilty of the counts with which he has been charged. I find him guilty of the lesser included offence of possession of a Schedule 1 substance, contrary to s. 4(1) of the CDSA.

Brief Factual Background

[4] On December 22, 2022, four officers from the major crime unit at 52 Division of Toronto Police Services mounted a police surveillance operation around the area of Yonge Dundas Square in Toronto, including the area around a supervised injection site located at 277 Victoria Street.

[5] As the operation unfolded, certain officers made observations that led to Mr. Smith, who was outside the supervised injection site, being identified as a target of the surveillance. Shortly thereafter, the officer in charge of the operation called for his arrest.

[6] Just before Mr. Smith was arrested, an officer observed that Mr. Smith was holding an open plastic baggie-type package containing white powder. After the arrest, the baggie was found on the ground at Mr. Smith’s feet. It was seized by police. The powder was later analyzed and determined to be 1.65 grams of methamphetamine.

[7] A search incident to arrest led to the discovery of three plastic packages on Mr. Smith’s person, each containing a substance that was later analyzed and determined to be fentanyl. Of those three plastic packages, one knotted package contained a single rock weighing 0.55 g. A second knotted package contained about forty rocks of fentanyl with a total weight of 4.88 g, or roughly 0.12 g per rock. A third package that was twisted shut contained four larger rocks with a combined weight of 7.21 g. In total, Mr. Smith possessed 12.64 g of fentanyl. All three of the fentanyl packages were contained in a paper towel that had been crumpled up around the packages, to make a single golf-ball sized package. The golf-ball sized package was found in between layers of pants that Mr. Smith was wearing.

[8] Other items located during the search included a kitchen knife, coyote spray, and a scale.

[9] Mr. Smith was also found to be carrying currency. Specifically, he had a bundle of cash, secured with an elastic band, comprised of 34 $5 bills, three $10 bills, and one USD $50 bill. He also had loose cash comprised of four $5 bills, two $20 bills and one USD $50 bill. In total, police records reflect that the cash found on the search totaled $280 CAD and $51 USD, although there is no evidence of a $1 USD bill apart from the total amount that was recorded to have been counted.

[10] There is some discrepancy about other items which may or may not have been found during the search. Mr. Smith testified that he had a glass pipe and lighter with him, which were found by the police, but he does not know what happened to them. The police have no record of having seized or processed those items.

[11] In addition, a scrunched-up paper receipt containing 0.1 g of a substance later analyzed and determined to be cocaine was processed by police in connection with the investigation of Mr. Smith. However, there is no evidence as to where it was found or who found it. Other than the fact that it was processed with the other items known to be found on Mr. Smith during the search incident to arrest, there is no evidence linking the cocaine to him.

[12] As a result of the investigation, the Crown laid charges of possession of a controlled substance (fentanyl) for the purpose of trafficking, and possession of proceeds of crime (that is, the currency, which is alleged to be proceeds of drug trafficking). Both the Crown and Mr. Smith agree that the second charge, possession of proceeds of crime, rises or falls based on the conclusions I reach with respect to the possession for the purposes of trafficking charge.

Applicable Legal Principles

The Presumption of Innocence and Standard of Proof

[13] Mr. Smith is presumed to be innocent unless and until the Crown has proven his guilt beyond a reasonable doubt. The onus lies with the Crown throughout.

[14] Proof beyond a reasonable doubt requires more than a conclusion that Mr. Smith is likely guilty, or probably guilty, but it does not require proof beyond all doubt. However, proof beyond a reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities.

[15] A reasonable doubt is not a doubt based on sympathy or prejudice, nor is a frivolous doubt. A reasonable doubt is based on reason or common sense that is logically connected to the evidence or the absence of evidence.

W.D. Analysis

[16] In assessing whether the Crown has discharged its burden to prove Mr. Smith’s guilt beyond a reasonable doubt, I must apply the analysis set out by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742 (“W.D.”) at p. 758:

• First, if I believe Mr. Smith’s evidence, I must acquit him;
• Second, if I do not believe Mr. Smith’s evidence, but I am left in reasonable doubt by it, I must acquit him;
• Third, even if I am not left in doubt by Mr. Smith’s evidence, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of Mr. Smith’s guilt.

[17] In deciding whether Mr. Smith’s evidence leaves me with a reasonable doubt, I cannot consider his testimony in isolation from the rest of the case: W.D., at p. 757.

Circumstantial Evidence

[18] In this case, the Crown’s evidence is circumstantial. The Supreme Court of Canada articulated principles relevant to cases involving circumstantial reasoning in R. v. Villaroman, 2016 SCC 33. These were summarized by Fairburn J. (as she then was) in R. v. Gill, 2017 ONSC 3558, at paras. 9-13 as follows:

…In R. v. Villaroman, 2016 SCC 33, Cromwell J. reviewed the correct approach to circumstantial evidence and the inference drawing process. Where one or more element of an offence relies largely or exclusively on circumstantial evidence, “an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits”: Villaroman, at para. 30. Staying focussed on the question of whether circumstantial evidence admits of other reasonable alternative inferences, ensures that the trier of fact does not “fill in the blanks” or “jump to conclusions” too quickly: Villaroman, paras. 29-30.

While previous cases speak in terms of other “rational” inferences, the unanimous Villaroman court settled upon the term “reasonable”: see, R. v. Griffin, 2009 SCC 28, at para. 33, Villaroman, at paras. 32-34. As Cromwell J. noted in Villaroman, while “reasonable” and “rational” inferences carry the same meaning, and it is not in error to speak in terms of “rational inferences”, the use of the term “reasonable” guards against any confusion that may arise from the use of “reasonable doubt” and “rational inference”.

Inferences consistent with innocence do not have to arise from proven facts: Villaroman, at para. 35. As Fish J. observed in R. v. Khela, 2009 SCC 4, at para. 58, the defence does not have to “‘prove’ certain facts in order for the jury to draw an inference of innocence from them”. To make this a requirement for finding alternative rational inferences would be to reverse the burden of proof. Ultimately, the court must consider the “range of reasonable inferences that can be drawn” from the circumstantial evidence. As in Villaroman, at para. 35, “[i]f there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.”

A theory alternative to guilt is not “speculative” simply because there is no affirmative evidence supporting the theory. A “theory alternative to guilt” can arise from a lack of evidence: Villaroman, at para. 36. Gaps in the evidence can result in inferences other than guilt, but they must be “reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense”: Villaroman, at paras. 36-38.

Reasonable possibilities and theories inconsistent with guilt must be considered, but this does not require the Crown to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: Villaroman, at para. 37, adopting R. v. Bagshaw, [1972] S.C.R. 2, at p. 8. Other reasonable inferences must find support in logic and experience and not rest on speculation. As noted by Cromwell J., at para. 38, 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”.

[19] Alternative inferences to guilt must be reasonable, not just possible: Villaroman, at para. 42.

[20] In R. v. Abshir, 2023 ONSC 4297, at para. 13, Nakatsuru J. discussed the requirement that circumstantial evidence be looked at in a cumulative fashion:

Importantly, proof beyond a reasonable doubt does not apply to each piece of circumstantial evidence: “facts are not to be examined separately and in isolation with reference to the criminal standard”: R. v. Morin, [1988] 2 S.C.R. 345, at p. 362. Instead, there is a duty on the trier of fact to assess the evidence in a cumulative fashion: “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. Smith, 2016 ONCA 25, at para. 81. See also Morin, at p. 361; R. v. Khalid, 2022 ONCA 501, at para. 23; R. v. Lights, 2020 ONCA 128, at para. 37. As noted in Smith, at para. 82:

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… [Citations omitted.]

Assessing Credibility

[21] In R. v. Kruk, 2024 SCC 7, at paras. 72-73, the Supreme Court of Canada set out the following guidance with respect to assessing the testimonial credibility of witnesses:

It is widely recognized that testimonial assessment requires triers of fact to rely on common-sense assumptions about the evidence. In R. v. Delmas, 2020 ABCA 152, at para. 31, aff’d 2020 SCC 39, the Alberta Court of Appeal observed that triers of fact may rely on reason and common sense, life experience, and logic in assessing credibility. In R. v. R.R., 2018 ABCA 287, the same court held that triers of fact “must invariably fall back on their common sense, and their acquired knowledge about human behaviour in assessing the credibility and reliability of witnesses” (para. 6). Finally, in R. v. S.(R.D.), [1997] 3 S.C.R. 484, this Court considered that the life experience of trial judges — though of course not a substitute for evidence, and subject to appropriately circumscribed limits — “is an important ingredient in the ability to understand human behaviour, to weigh the evidence, and to determine credibility”, and assists with a “myriad of decisions arising during the course of most trials” (para. 13). Reasoning about how people generally tend to behave, and how things tend to happen, is not only permissible, it is often a necessary component of a complete testimonial assessment.

In turn, common-sense assumptions necessarily underlie all credibility and reliability assessments. Credibility can only be assessed against a general understanding of “the way things can and do happen”; it is by applying common sense and generalizing based on their accumulated knowledge about human behaviour that trial judges assess whether a narrative is plausible or “inherently improbable” (R. v. Kiss, 2018 ONCA 184, at para. 31; R. v. Adebogun, 2021 SKCA 136, at para. 24; R. v. Kontzamanis, 2011 BCCA 184, at para. 38). Common sense underpins well-established principles guiding credibility assessment — including the now-universal idea that witnesses who are inconsistent are less likely to be telling the truth — and assists in assessing the scope and impact of particular inconsistencies. Reliability also requires reference to common-sense assumptions about how witnesses perceive, remember, and relay information, invoking generalizations about how individuals tend to present information that they are remembering accurately and completely, as opposed to matters about which they are unsure or mistaken. A trial judge may, for example, infer that a witness was credible yet unreliable because they appeared sincere but displayed indicia that tend to suggest an unclear or uncertain memory (e.g., equivocation, phrases such as “hmm . . . let me see”, long pauses, or failure to provide much detail).

[22] In R. v. Filion at para. 27, the court set out factors that may assist in assessing the reliability and credibility of a witness’s testimony, including:

• Does the witness seem honest? Is there any particular reason why the witness should not be telling the truth or that his/her evidence would not be reliable?
• Does the witness have an interest in the outcome of the case, or any reason to give evidence that is more favourable to one side than to the other?
• Does the witness seem to have a good memory? Does any inability or difficulty that the witness has in remembering events seem genuine, or does it seem made up as an excuse to avoid answering questions?
• Does the witnesses’ testimony seem reasonable and consistent as she/he gives it? Is it similar to or different from what other witnesses say about the same events? Did the witness say or do so something different on an earlier occasion?
• Do any inconsistencies in the witness’ evidence make the main points of the testimony more or less believable and reliable? Is the inconsistency about something important, or a minor detail? Does it seem like an honest mistake? Is it a deliberate lie? Is the inconsistency because the witness said something different, or because she/he failed to mention something? Is there any explanation for it? Does it make sense?
• The manner in which a witness testifies may be a factor, and it may not, depending on other variables with respect to a particular witness.

[The judgment continues with detailed findings of fact, credibility assessments, analysis of the evidence, and application of the law, as set out in the original reasons above.]

Disposition

[119] In conclusion, I make the following disposition:

a. Mr. Smith is found not guilty of the charge that he unlawfully did, at the City of Toronto, in the Province of Ontario, on or about the 10th day of December in the year 2022, have possession of a controlled substance for the purpose of trafficking, contrary to s. 5(2) of the CDSA;

b. Mr. Smith is found guilty of the lesser included offence of possession of a Schedule 1 substance, contrary to s. 4(1) of the CDSA;

c. Mr. Smith is found not guilty of the charge that he unlawfully did, at the City of Toronto, in the Province of Ontario, on or about the 10th day of December in the year 2022, possess property or proceeds of property of a value not exceeding five thousand dollars in Canadian currency, knowing that all or part of the property or proceeds was obtained or derived directly or indirectly as a result of the commission in Canada of an offence punishable by indictment, contrary to s. 354(1)(a) of the Code and did thereby commit an offence contrary to s. 355(b) of the Code.

J.T. Akbarali
Released: April 17, 2025