R. v. Megan Diminie, 2025 ONSC 701

R. v. Megan Diminie, 2025 ONSC 701

COURT FILE NO.: CR-24-6472

DATE: January 31, 2025

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

MEGAN DIMINIE

Defendant

Xenia Proestos, for the Crown

Justin Guile, for the Defendant

HEARD: January 29 and 30, 2025

Justice Verner

1Megan Diminie stands charged with possession of fentantyl and possession of fentanyl for the purpose of trafficking. In her testimony, she admitted the elements of possession. The only contentious issue is whether she was possessing the drug for the purpose of trafficking.

THE CROWN’S EVIDENCE

2After 3 am on October 12, 2022, the police were contacted about a potential impaired driver. Officers Sutherland and Preston responded to the call and found a white 2009 BMW parked at the side of an offramp, coming off of Highway 401. The officers parked behind the white BMW and Sutherland approached the driver side door.

3As he approached, he believed that he saw the Accused, who was 34 years old at the time, and a male – who turned out to be Travis Langevin – asleep in the front seats of the vehicle. The Accused was behind the wheel and Langevin was in the passenger seat. Sutherland clarified that he could not say whether he actually saw them sleeping, only that his notes say that it looked like they were sleeping.

4Sutherland immediately noticed drug paraphernalia in the centre console between the two front seats. In particular, he noted burnt tin foil, which he associated with drug use. He immediately directed both the Accused and Langevin to step out of the vehicle one at a time, without touching anything. The Accused stepped out first and as she did, Sutherland noted Langevin fiddling with things around him. Sutherland repeated his direction to Langevin, that he was not to touch anything in the car.

5After both occupants were safely outside of the vehicle, Sutherland started his search. In the front seat he found, in addition to burnt tin foil, a jar with a pink substance inside. Later testing revealed that there was 0.3 grams of fentanyl and two cutting agents in that jar. Sutherland then located a duffle bag and a feminine purse on the floor in the back seat. There was nothing of interest in the duffle bag, but in the purse, Sutherland found a clear plastic bag containing a pink substance. Later testing revealed the clear plastic bag contained 57.4 grams of fentanyl (or two ounces), with the same two cutting agents that were found in the jar.

6Sutherland also testified at trial that he found the Accused’s identification in the purse. Although Sutherland’s trial evidence on this issue was inconsistent with his preliminary hearing testimony, the Accused admitted in her evidence that the purse belonged to her. It was therefore inconsequential whether her identification was or was not in that purse.

7The Crown called an expert, Detective Aiello, to assist with whether the Accused possessed the drugs for the purpose of trafficking. His testimony supported a finding that the quantity of fentanyl involved suggests that it was too much to have been bought for personal use, and that instead it was purchased to sell. Aiello testified that from his experience, users did not buy in bulk of that size, because it is too expensive to do so, it increases the risk or getting robbed, increases the legal jeopardy if caught with the drug, and it increases the risk of overdosing. However, he acknowledged that buying in bulk “significantly” reduces the price of the drug – to emphasize this point, he said that if the 57.4 grams of fentanyl was sold in street level amounts it could attract a total of over $23,000, whereas if that amount was sold in bulk, it may be purchased for just over $4,000. He also acknowledged that purchasing drugs may be risky and, buying in bulk, therefore reduces the number of times the buyer puts themselves in a risky position.

8According to Aiello, aside from the quantity, there were no other indicia of trafficking in this case. There were no scales, no debt lists, no currency, no collection of clean bags, no cutting agents, and no evidence of attempting to divide the fentanyl up. There were also no weapons in the vehicle. On the other hand, there were strong indicia of personal use including the burnt tin foil and the 0.3 grams found in a jar in the front seat of the vehicle. In addition, Aiello testified that Sutherland’s observations of the Accused and Langevin sleeping and/or drowsy in the front seat, were consistent with fentanyl consumption. In other words, the evidence suggests that the Accused and Langevin were smoking the fentanyl before Sutherland arrived.

DEFENCE EVIDENCE

9The Accused testified that up until early 2022, she was homeless, destitute and living out of a Cobourg shelter. She moved into her mother’s place, along with her boyfriend Travis Langevin, in the summer of 2022. They were both on social assistance at the time. She was receiving $1183 monthly. She paid her mother $400 a month in rent and her mother “helped her out with groceries”.

10At the time the Accused moved into her mother’s place, the Accused and Langevin were addicted to fentanyl. Each of them was smoking approximately one gram every day, which is – according to Aiello – what a very heavy user would consume daily. According to the Accused, she was spending $50 every day on fentanyl. She alluded to the fact that she was often ripped off by the sellers or subjected to violence during purchases. When she was pressed on whether she could afford to spend $50 every day on drugs, she noted that on some days, she could not afford to buy any and would have withdrawal symptoms. At times, she was hospitalized as a result.

11On October 11, 2022, the Accused and Langevin decided that instead of purchasing daily, they were going to purchase a month’s worth of fentanyl from a dealer the Accused had known for years, who lived in Toronto and went by the name Renee. They decided to buy in bulk to save money and to minimize the risks associated with purchasing daily. It is something the Accused had contemplated for a long period, but had never done before. In particular, the Accused and Langevin decided to buy two ounces of fentanyl to share between the two of them, which would last them a month. She was clear in her testimony that the two of them had no interest in sharing these drugs with anyone else.

12The Accused and Langevin met Renee at a Tim Hortons at Warden Avenue in Toronto in the early hours of October 12, 2022. She informed the court that they received fentanyl in a clear plastic bag. When asked if she could recall how much they paid for the drugs. She responded, “I believe I spent around $1000 and he spent around $400”. She was not questioned further about this amount. There were no other details provided about the exchange. For example, there is no evidence as to who handed Renee the money, who was handed the plastic bag containing the fentanyl and how the fentanyl got into the Accused’s purse. Indeed, the Accused testified that she did not know where the drugs were in her vehicle. She was not sure if the drugs were in the duffle bag or her purse.

13According to the Accused, after they purchased the drugs at the Tim Hortons early on October 12, 2022, they headed back home, and pulled over on the side of an offramp on the route home. The evidence suggests they smoked some fentanyl as they were parked there and then shortly thereafter Sutherland approached their vehicle.

14When asked how she and Langevin could afford to spend $1400 on drugs, she testified that she had just received her social assistance payment and that Langevin also contributed from his social assistance income. The Accused admitted that she did not budget money for rent and food that month. She explained that she was “sick” and focused on purchasing fentanyl at that moment and nothing else. She emphasized that she was at the lowest point in her life in the fall of 2022.

15After clarifying with the Accused that she had no savings around that period, including the summer and early fall of 2022, Crown counsel asked the Accused how she could afford her BMW in August of 2022 and the drugs in October. The Accused clearly believed that she had bought the BMW well before August of 2022, but after being shown a Ministry of Transportation (MTO) document, she allowed for the possibility that she was mistaken as to when she purchased it. She admitted that the drugs impacted her memory of that period of her life. Although she may have been mistaken as to the timing of her vehicle purchase, she was clear and consistent that she bought the car with her “Native Tax Exemption” funds. To the extent it is relevant, I am not convinced that the MTO document supports a finding that the vehicle was purchased in August 2022.

LEGAL PRINCIPLES

16The Accused stands charged with possession of fentanyl and possession of fentanyl for the purpose of trafficking. For both offences, the Crown must prove that the Accused had legal possession of the fentanyl, or in other words, that the Accused had knowledge of the presence of fentanyl in the car, that she consented to its presence, and that she had some measure of control over the substance: R. v. Terrence, 1983 CanLII 51 (SCC), [1983] 1 S.C.R. 357. The Accused admitted these elements of possession in her testimony. Based on her evidence, I find that the offence of possessing fentanyl has been proven beyond a reasonable doubt and she is therefore guilty of count one.

17As stated at the beginning of these reasons, the only contentious issue in this case is whether the Accused possessed the fentanyl for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act (CDSA). The section reads:

5 (2) No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III, IV or V.

18And the CDSA defines trafficking in s. 2, as follows:

"traffic" means, in respect of a substance included in any of Schedules I to V,

(a) to sell, administer, give, transfer, transport, send or deliver the substance,

(b) to sell an authorization to obtain the substance, or

(c) to offer to do anything mentioned in paragraph (a) or (b),

otherwise than under the authority of the regulations.

19According to the Accused’s testimony, she jointly purchased the drugs with Langevin. They jointly possessed the drugs and the two of them had the intention of consuming the drugs in their entirety. She testified that she had no intention to sell, give or transfer the drugs to anyone, nor did she possess it for the purpose of transporting it. The question is whether the court can rely on this evidence, or whether it raises a reasonable doubt: R. v. W. (D.) 1991 CanLII 93 (SCC), [1991], 1 S.C.R. 742.

20Crown counsel submits that the Accused’s testimony is completely unbelievable. She points out that the Accused’s testimony that Renee sold her two ounces of fentanyl for $1400, was incompatible with Aeillo’s testimony that that amount of fentanyl would have cost upwards of $4000. I agree with the Crown that it makes no sense that the Accused only paid $1400 for two ounces of fentanyl. The Accused’s evidence that she bought one gram of fentanyl daily for $50, was similarly incompatible with Aeillo’s testimony, which was that one gram of fentanyl cost $200 to $400. The Crown further submits that it would have been illogical for the Accused to have spent all of her money for the month of mid-October to mid-November on this one purchase of fentanyl, knowing that she would need money to live on for the month, unless she purchased the drugs for resale.

21There is no disputing the fact that the Accused’s evidence has its weaknesses. I agree with the Crown that the Accused’s evidence raises the question as to whether she had an unnamed source of income prior to October 12, 2024. However, there is no evidence that she was selling drugs prior to that date. Notably, there were no indicia of trafficking in her vehicle and she lived at her mother’s place. I further note that the Accused admittedly has significant memory issues as a result of her drug intake and she qualified the amounts she gave in her evidence, with words like “believe” and “around”. And as for her decisions being illogical, I am not convinced as I listened to the Accused’s testimony that logic or common sense dictated her decision-making in the early fall of 2022. It seems her addiction dictated many of her choices.

22On the other hand, there are reasons to believe the Accused. When the Crown suggested to the Accused that she purchased the drugs on October 12, 2022, to sell them and make money, the Accused was taken off guard by what should have been an anticipated question. In response, the Accused asked the Crown to rephrase the question as she was not sure what was being asked. After the question was clarified for the Accused, she responded that she had no intention to sell the drugs. From this question and from her testimony in general, it seemed as though her evidence was not rehearsed or practiced, or even greatly considered before she gave it. It seemed as though she was not sure of the relevance of several questions as she answered them. She was not a sophisticated witness, and yet she held up under cross-examination. For these reasons, it seemed as though she was simply trying to answer the questions that were put to her to the best of her ability, rather than answer them in a way that would necessarily assist her case.

23The Accused’s evidence, although it raised questions, was generally credible. With these strengths and weaknesses in mind, I consider her evidence in the context of the Crown’s case. As noted, the Crown’s case for possessing the drugs for the purpose of trafficking rested on the evidence of Aeillo. He noted that users did not tend to buy 57 grams of fentanyl at a time for several reasons, including the cost, the risk of getting robbed, the legal jeopardy if caught and the risk of overdosing. However, I am not convinced that these reasons - as they were presented by Aeillo - rendered it beyond reasonably possible that two users would buy one month’s worth of fentanyl from a buyer they could trust, when they were not living on the street. Aeillo further acknowledged that there were reasons why a user would in fact benefit from buying in bulk.

24In this case, the evidence showed that the Accused and Langevin were users and were excited about consuming the fentanyl they possessed. When this evidence is considered together Aeillo’s evidence, and with the Accused’s credible testimony that she did not intend to sell or transfer the drugs, I am left with a reasonable doubt as to whether the Accused possessed the drugs for personal consumption. Or put another way, I have a reasonable doubt that the fentanyl was possessed for the purpose of selling, giving, transferring or transporting it to someone or somewhere. I therefore find the Accused not guilty on count two.

25In summary, I find the Accused guilty of count one, but not guilty of count two.