Court File and Parties

Court File No.: CR-22-33100794-00
Date: July 21, 2025
Court: Ontario Superior Court of Justice

Between:
His Majesty the King – and – Michael Miller

Appearances:

• Joshua Frost, for the Crown
• Alefia Ghadialyi, for the defence

Heard: May 26, 27, 28 and 29, 2025
Judge: S.T. Bale

Introduction

[1] Michael Miller was charged with operating a conveyance while his ability to operate it was impaired by alcohol, or a drug, or both, contrary to s. 320.14(1)(a) of the Criminal Code, and possession of fentanyl for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act.

[2] At the outset of trial, Mr. Miller pleaded guilty to the charge of operating a conveyance while impaired. In addition, he conceded that he was in possession of fentanyl, but denied that the possession was for the purpose of trafficking. Accordingly, the trial proceeded on the issue of whether Crown counsel could prove, beyond a reasonable doubt, that his possession of fentanyl was for the purpose of trafficking.

Admitted Facts

[3] On March 26, 2022, Peterborough O.P.P. received a report from a store clerk at a gas station and convenience store in Fraserville. She reported that a male in the store appeared to be intoxicated. He had purchased tin foil and a lighter.

[4] Police attended at the scene and pulled the male over as he drove away from the station. He was identified as Michael Miller.

[5] Mr. Miller provided a breath sample on an approved screening device which resulted in a reading of 0 mg. However, he was then given a standardized field sobriety test on which he performed poorly. He was arrested for impaired operation of a conveyance.

[6] Mr. Miller had a fanny pack secured over his shoulder and across his chest. It contained $1,756.10 in Canadian currency. His car was searched. Tin foil was found behind the driver’s seat. Several lighters and two cell phones were also found in the vehicle.

[7] Mr. Miller was taken to the Peterborough police station. While there, he was found to have illegal substances in his possession, including 18.1 grams of fentanyl, and four packages of benzodiazepine weighing .3 gm, 1.4 gm, 2.6 gm and 17 gm.

Crown Evidence

[8] Detective Staff Sergeant Gerrit Brouwer was qualified as an expert for the Crown.

[9] He said that the most common way of using fentanyl is to smoke it—heating it up on tin foil and then sucking the fumes through a straw. He said that a common dosage for users of fentanyl is one-tenth gram and that they often purchase between that amount and one-half gram. He said that they will typically not purchase more than a half gram at a time, because they recognize that if they have more, they will continue to consume and may die. However, he also said that the amounts a user may purchase can vary, based upon the user and their tolerance levels. On cross-examination, when asked what the highest per day ingestion of fentanyl was that he had seen, he said, “I couldn’t respond to that. I know certain users, heavy users, are using fentanyl multiple times a day. But I don’t know the quantity.” He also acknowledged that addicts may not have their health at the forefront of their minds.

[10] D.S. Brouwer said that unlike with cocaine users, it is not common for fentanyl addicts to support their habit by selling fentanyl, because they realize that if they have too much fentanyl in their possession, they are likely to overdose. He also said that traffickers don’t often use fentanyl themselves and that it is unusual for a fentanyl addict to support his addiction by trafficking.

[11] He said that benzodiazepines are often used as cutting agents because their effects are similar to those of fentanyl. Users will not recognize that the fentanyl has been diluted, and the dealers will maximize their profits. He said that it would not make sense for a user to possess benzodiazepines and fentanyl for personal use, because they would recognize that the effects they were getting were from benzodiazepines. This evidence would seem to be contradictory—would the users recognize the difference between the effects or not? He also said that it would make no sense to possess both for personal use, because benzodiazepines are deadly when mixed with fentanyl, and naloxone is not effective to reverse their effects. On cross-examination, he confirmed that in most cases, the user would have no idea that the fentanyl had been cut with benzodiazepines.

[12] D.S. Brouwer said that the finding cash of $1,756 “could be indicative of trafficking.” He said that possession of two cell phones was neither here nor there. He said that 18.1 gm is not a typical amount for a trafficker to have—“not a typical amount of a marketable substance.”

[13] When asked whether, in a typical investigation, there are one or two factors that would weigh more in concluding that the possession was for the purpose of trafficking, he said “some of the factors that are very essential would be cell phone communications or debt list, or monies being transferred or possessed. In a lot of cases, we have the privilege of having cell phone download evidence and we see e-transfers of cash in, you know, certain amounts that are equivalent to the pricing that we’re aware of.” He also said that weigh scales are essential to a trafficker’s business.

Defence Evidence

[14] Michael Miller testified that on the day of his arrest, he was homeless and living out of his car. He said that when he was pulled over by the police, he was just driving the roads and killing time. He had purchased the drugs in Oshawa. He paid $2,000 cash for them. He had withdrawn the cash from his Scotia bank account. He produced an ATM receipt showing a withdrawal of $4,000 the previous day, leaving a balance of $27,056.36.

[15] He said that his father had passed away, that he had been a full-time single parent, but that after his father’s death, he fell off the wagon, and his two children ended up going back with their grandmother and mother. He was going through a lot at the time, and didn’t care about much, so was “using” daily.

[16] He said that in February 2022, he received an inheritance of $70,000 from his father’s estate. He then purchased the car that he was driving when arrested and began using fentanyl heavily. He said that on the day in question, he thought that he had purchased two ounces (56 gm) of fentanyl. He said he did not realize that much of what he was given was benzodiazepine.

[17] Mr. Miller has a lengthy criminal record. The record was introduced into evidence by defence counsel. It includes convictions in 2001 for possession of marijuana, in 2007 for possession of a Schedule I substance, and in 2009 and 2011, possession of a Schedule I substance for the purpose of trafficking. In his evidence, he said that he believed the Schedule 1 substances to be cocaine.

[18] When asked what had changed between 2011 and 2022, Mr. Miller said:

[W]hen I was being a parent, um I, it put things in perspective for me how somebody is, everybody is somebody’s child and um how upset I would be if someone sold my kid drugs. So, I’d be a hypocrite if I was to do that. And my mom raised me to treat people how you want to be treated. And so, I don’t want somebody to do that to my kid. So being a parent, that really changed things.

[19] When questioned on cross-examination about the uneven packages of drugs, Mr. Miller said that he didn’t know “what was what”—he just got it and “was happy to get it and go.” He said he had an abundance of money and was being careless. He said: “I just wanted; I was just worried about getting high.” “I just wanted not to be in withdrawal.”

[20] With respect to the quantity he purchased, he said that the amounts slowly got larger and larger because he didn’t want to have to get it every single day. He wanted enough to last.

Analysis

[21] As in any criminal case without a jury, my task as the trier of fact is to determine whether the evidence establishes Mr. Miller’s guilt on the criminal standard of proof beyond a reasonable doubt. While I do not have to be absolutely certain of his guilt to find him guilty, the standard of reasonable doubt "falls much closer to absolute certainty than to proof on a balance of probabilities": R. v. Starr, 2000 SCC 40, at para. 242.

[22] Additional considerations apply in cases such as this one where the accused has testified on his own behalf. I must find Mr. Miller not guilty of possession of fentanyl for the purpose of trafficking, in any of the following situations:

First, if I believe his testimony that all the fentanyl in his possession was solely for personal use and not for the purpose of trafficking;

Second, if I do not affirmatively believe his denial that the fentanyl was in his possession for the purpose of trafficking, but his testimony and the other evidence which supports his denial leaves me with a reasonable doubt; or

Third, if I entirely reject his evidence as unbelievable, but am still not satisfied of his guilt beyond a reasonable doubt, based on the evidence that I do accept.

[23] Crown counsel argues that I should not find Mr. Miller to be a credible witness, for two reasons. First, he argues that I should use his criminal record to find that he was not credible. However, given that his most recent conviction was approximately 13 years before his arrest in this case, I do not find his record to be helpful in determining his credibility. Second, Crown counsel argues that Mr. Miller’s story made no sense. He says that his version of the events was “unequivocally bizarre and internally contradictory.” I disagree.

[24] Crown counsel argues that Mr. Miller was reluctant to admit that he had substance abuse issues earlier in his life. I did not sense such reluctance. He was confused by some of counsel’s questions and attempted to distinguish among periods of his life when he used marijuana, cocaine, oxycodone and fentanyl, but he did not deny that he had had substance abuse issues for many years. He said that he had first used opiates when he was 18 years old. He is now 47.

[25] Crown counsel argues that the idea that Mr. Miller “would not eyeball the drugs to see that it was the right amount”, that he would not have any questions about the weird packaging, and that he would not make basic enquiries about what he was handing $2,000 over for, defies any kind of human experience. Again, I disagree. I accept Mr. Miller’s evidence that he was prepared to accept what was offered to him because he trusted the person from whom he bought the drugs, and wanted to avoid withdrawal symptoms. D.S. Brouwer’s evidence was that it is difficult to distinguish between fentanyl and benzodiazepines and difficult to know the weight of drugs without using a scale. Mr. Miller admits that he was somewhat reckless because of his need for the drugs, and the money that he had available.

[26] In support of his position that Mr. Miller’s possession of the fentanyl was for the purpose of trafficking, Crown counsel relies primarily on the quantity of the drugs involved. D.S. Brouwer testified that 18.1 gm. of fentanyl is a substantial amount, considering that it would potentially be 181 doses of .1 gm each.

[27] The total weight of the drugs seized by the police was 39.4 gm. Mr. Miller testified that he thought it was all fentanyl. He said that at the time, he was using between five and seven grams per day. Assuming this to be true, the total seized would have lasted him six or eight days. However, even if Mr. Miller was exaggerating his usage rate, I do not think that the possibility that a fentanyl user with the necessary financial resources would buy what might for him be a several weeks’ supply can necessarily be dismissed out of hand.

[28] Crown counsel argues that I should not accept Mr. Miller’s evidence as to his usage rate in the face of D.S. Brouwer’s evidence of a typical addict’s usage rate and his evidence that users typically possess only small amounts, for fear of consuming too much. He argues that under the rule in Browne v. Dunn, if defence counsel intended to call evidence that Mr. Miller’s usage rate was far in excess of what Brouwer said was typical, she should have put that evidence to Brouwer on cross-examination. Crown counsel argues that I should take an adverse inference from the fact that she failed to do so.

[29] However, the rule is that if a cross-examiner intends to impeach the credibility of a witness by extrinsic evidence, he or she must give that witness notice of his or her intention: Sydney N. Lederman, Michelle K. Fuerst and Hamish C. Stewart, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 6th ed. (Lexis Nexis Canada), at ¶16.239. It was not necessary for defence counsel to tell D.S. Brouwer what Mr. Miller’s evidence would be as to his rate of usage. That evidence did not contradict Brouwer’s evidence as to an addict’s typical rate. She did ask him what the highest rate of fentanyl ingestion was that he had seen. His answer was, “I couldn’t respond to that. I know certain users, heavy users, are using fentanyl multiple times a day. But I don’t know the quantity.” That cross-examination was sufficient.

[30] Crown counsel also relies on D.S. Brouwer’s evidence that fentanyl users typically purchase less than a gram out of an abundance of caution for themselves, and because they don’t have the money to purchase more. In the circumstances of this case, I do not find that evidence to be helpful. Crown counsel concedes that Mr. Miller has a substance abuse disorder. Mr. Miller did have the money to purchase what he purchased, and did not exercise the caution which Brouwer says users typically do. Brouwer also said that it is unusual for someone to use fentanyl and to also sell it to support their use. But that is what Crown counsel argues is the case with Mr. Miller.

[31] Mr. Miller’s evidence that he was living out of his car at the time of his arrest was corroborated by P.C. MacDonald who testified that it had appeared to him that Miller was doing so. D.S. Brouwer testified that weigh scales and debt lists are essential for persons who traffic drugs. There were no scales in Mr. Miller’s car when police searched it. And no debt list.

[32] Crown counsel remarks on the odd amounts in which the drugs were packaged as somehow supportive of his position that Mr. Miller possessed them for the purpose of trafficking. However, that is how they were packaged, and not in the usual amounts D.S. Brouwer said drug traffickers traffic their drugs.

[33] While in a typical case possession of substantial amounts of cash together with drugs may be indicative of drug trafficking, in Mr. Miller’s case, the cash is otherwise explained. He withdrew it from his bank account, the day before he purchased the drugs. And, with a balance of more than $27,000 in his account, Miller does not fit the mold of an addict who traffics to support his addiction. While Crown counsel cross-examined him on his failure to produce documentary proof of his inheritance, I have no difficulty believing Mr. Miller’s evidence that he inherited $70,000 from his late father’s estate.

Conclusion

[34] It bears repeating that the criminal standard of proof, by design, places a very high burden on the prosecution. Having considered Mr. Miller’s evidence in the context of all the evidence given at trial, I am not satisfied that the Crown has met its heavy onus in this case. I am left with reasonable doubt as to whether the fentanyl was in Miller’s possession for the purpose of trafficking. Accordingly, I find him not guilty of possession of fentanyl for the purpose of trafficking, but guilty of the lesser and included offence of possession of fentanyl.

“S.T. Bale”
July 21, 2025

Reasons for Judgment

S.T. Bale
July 21, 2025