R. v. Kell, 2026 ONSC 3261

CITATION: R. v. Kell, 2026 ONSC 3261

COURT FILE NO.: CR-24-91102003-0000

DATE: 20260603

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

JASON KELL

Defendant

L. Jakobson and A. Ghosh, for the Crown

D. Guido and T. Brodie, for the Defendant

HEARD: June 3, 4, 5 and 6, 2025 March 23, April 7 and 9, 2026

REASONS FOR DECISION

MCKELVEY J.:

Introduction

1The accused, Jason Kell, is charged that on March 2, 2024 he did possess fentanyl for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act. In advance of his trial Mr. Kell brought an application under ss. 7, Section 8, s. 10(a), 12, s. 24(1) and s. 24(2) of the Charter of Rights and Freedoms. At the commencement of trial it was agreed by all parties that there would be a blended voir dire/trial on both his Charter application, together with the trial on his charge of possession of fentanyl for the purpose of trafficking.

2With respect to his Charter application, the following issues were raised by the accused:

1. Was the force used by the police in effecting the accused’s arrest justified?

2. Was the accused promptly notified of the reasons for his arrest?

3. Was the search of the accused incident to arrest lawful?

4. Was the accused’s s. 7 rights infringed by the lack of a police in car video?

5. If the accused’s Charter rights have been infringed, was the remedy of a stay of proceedings appropriate pursuant to s. 24(1) of the Charter?

6. If the accused’s Charter rights were infringed and a stay of proceedings is not ordered, should the evidence obtained as a result of the infringements be excluded pursuant to s. 24(2) of the Charter?

3During the course of the trial the Court heard from the following witnesses for the Crown:

1. Devan Horner – police officer

2. Tyler Von Engelbrechten – police officer

3. Michael Reiche – police officer

4. Dan Banks – police officer

5. Ryan Chalmers – police officer

6. Adam Hay – police officer

7. Mike Hatzes – police officer and expert re: fentanyl

4The defence called evidence from:

1. David Abbott – uncle of Jason Kell

2. Jason Kell

5In addition to evidence from the above-noted witnesses the Court also received an agreed statement of fact from the parties.

Evidence Called at Trial

6Officer Horner was the arresting officer. He testified that on March 2, 2024 he received a call for service to attend 17 The Queensway which is a community housing apartment building in Keswick. They were looking for a male, J.T. He was working that day with Detective Constable Von Engelbrechten. When they attended in the area in an unmarked police cruiser they observed Mr. Kell standing in front of 130 Connell Drive. Mr. Kell appeared to be talking to someone on his phone and was described as wearing a grey satchel style bag around the front of his chest. Mr. Kell was considered to be arrestable because on the 29th of February he had been observed breaching a recognizance.

7The two officers took up a position to observe Mr. Kell and to come up with an arrest plan. Shortly afterwards they saw Kenneth Acorn come out of 130 Connell and get into a Cadillac motor vehicle. Mr. Kell then got into the front passenger seat of the vehicle which then drove away.

8They were followed by the police officers who observed Mr. Acorn driving erratically. They subsequently lost track of the Cadillac. Later, however the vehicle was seen by another officer back at 130 Connell.

9The police officers created an arrest plan that once Mr. Acorn and Mr. Kell exited the residence they would block their vehicle in the driveway to prevent it from going mobile and that they would then proceed to take both Mr. Kell and Mr. Acorn into custody. Officer Horner was concerned about letting the Cadillac vehicle go mobile again for fear that it could put the community in harms way.

10Officer Hay took up a position where he could observe the residence. At 6:31 p.m. Officer Hay advised that Mr. Kell was leaving the residence together with Mr. Acorn. At that point Officers Horner and Von Engelbrechten in their Ford F-150 pulled up to the rear of the Cadillac and blocked it in. They had their lights and siren active. Mr. Acorn was apprehended by other team members. Officer Horner attended at the front passenger seat of the vehicle where Mr. Kell was sitting. Officer Horner described the arrest of Mr. Kell as follows:

I attended the passenger, front passenger seat of the vehicle. That’s where Mr. Kell was sitting. I told Mr. Kell that he’s under arrest and I attempted to take control of him. At that time, Mr. Kell immediately began resisting and pulling away from me. He was leaning back into the car and he was reaching with his hand in towards the satchel that he was wearing around his chest area. The car was full of construction type material in the back, like it was very messy. He was not listening to commands. I was telling him he was under arrest. He was not giving me his hand. He was not complying with the orders. Based on his history, what I know of him, the fact that he wasn’t listening, reaching away, he was reaching towards the satchel, caused me for some concern. In my experience you know satchel’s are often worn by people who are potentially concealing weapons.

11Later Officer Horner described two closed hand strikes to the face area of Mr. Kell as follows:

Eventually, I was, like I said, I couldn’t get control of his hand; he kept reaching towards the satchel and into the back seat. So, at that time I delivered two closed hand strikes to the general face area of Mr. Kell. The purpose of these strikes was to gain pain compliance and act as a distraction; I wanted him to stop reaching into the satchel and put his hands up so I can get control. So, I delivered two of those strikes. It wasn’t a hard punch by any means, but it did work. Mr. Kell put his hand up, kind of in front of his face at that time I was able to grab his hand and take control of his hand.

12Officer Horner then describes how he was able to pull Mr. Kell out of the vehicle and put him face down on the ground. He got his other hand behind his back and put him in handcuffs. He described the process of arresting Mr. Kell as being relatively quick, probably about a minute.

13Once Mr. Kell was out of the vehicle he started to complain about neck and back pain. As Officer Horner began to read his rights to counsel and caution he started to exhibit what looked like signs of a seizure. At that time Officer Horner instructed officers to call EMS. While waiting for EMS Officer Horner checked Mr. Kell’s vital signs and put him into a recovery position.

14Officer Horner initially did not advise Mr. Kell what he was under arrest for. His explanation for this is as follows,

No. As soon as identified myself as open the door, and identified as police, you’re under arrest, that’s when he immediately began leaning back in the seat reaching towards his satchel.

15Officer Horner stated that he did promptly advise Mr. Kell of the reason for his arrest once the arrest had been completed. His evidence on this point was as follows:

Question: To backtrack a little bit, you (indiscernible) you attempted to read rights to counsel and caution. At any point, did you attempt to tell Mr. Kell what he was under arrest for?

Answer: Yes, I did.

Question: When was that?

Answer: That was when I got him into handcuffs.

Question: Do you know whether or not he understood you?

Answer: He didn’t acknowledge whether he had understood or not, so I don’t know.

16Officer Horner testified that he followed up by asking Officer Banks to provide Mr. Kell with his rights once he was coherent and to further advise Mr. Kell about the reasons for his arrest which at this point included a charge regarding fentanyl. This occurred after Officer Horner was advised by Detective Constable Reiche that they found a considerable amount of fentanyl in the satchel of Mr. Kell.

17Officer Reiche assisted Officer Horner in the arrest. He saw Officer Horner attempting to effect the arrest on Mr. Kell. He then went over to the passenger side of the vehicle to assist him. He described what he observed as follows:

There wasn’t enough room for me to help through the passenger door and I heard Detective Constable Horner advised him that he was under arrest and that to give him his hands and to get out of the vehicle. I saw Mr. Kell not complying with those demands and then I saw him reach for a satchel that was around his neck. And I heard Detective Constable Horner saying stop reaching. So at that point, I got into the rear passenger seat of the Cadillac and I attempted to assist getting Mr. Kell out of the vehicle by attempting to push him out while Detective Constable was pulling him out. At that time, I saw Mr. Kell begin using his left arm through the centre of the vehicle to try and reach the rear of the vehicle. When I looked in the area of reach on the back driver’s seat, there was a large 12 inch blade with a wooden handle in the vicinity of where he was trying to grab and at that point I told him stop reaching and to get out of the vehicle and he continued to attempt to grab the (indiscernible) weapon. At that point, I tried to grab his arm but he kept pulling it away, so I then used two closed hand distraction to strikes to his shoulder and arm area, large muscle mass. And at that point we were able to pull and – he would – Detective Constable Horner pulled him out and I pushed him out from the rear.

18Officer Von Engelbrechten gave evidence that he observed Mr. Kell initially with Officer Horner in the police vehicle as they were passing by 130 Connell Drive. At that time Mr. Kell had his cell phone up to his ear and was wearing what appeared to be a black cross-body satchel.

19Officer Von Engelbrechten then described the arrest of Mr. Kell. He described driving his truck to block in the Cadillac. Once he believed there was no threat of the Cadillac being put in motion he went to assist in arresting Mr. Kell. He described the arrest as follows:

So I just stepped out of my police vehicle. I quickly checked that my partner was – everything was all right with him with Mr. Acorn to which he said it was. So then I walked directly to the driver’s front door of the Cadillac. And was in – sort of climbed in the driver’s seat there. At which point my partners DC Reiche and DC Horner were attempting to gain control of Mr. Kell and a struggle was ensuing. I assisted as Mr. Kell’s left arm appeared to be reaching towards something in the back seat or using the back seat area that hold onto or to restrain himself in there. So my objective and plan was to gain control of his left arm to ensure he wasn’t able to grab anything that could potentially be used as anything or to hold on to restrain himself in the vehicle any longer… so I put both of my hands on Mr. Kell’s left arm and initially I’m just trying to hold them in, like hold them in place so he’s not able to reach or grab anything further and then I am able to bring it back around through the centre console area and gain control of his left arm… so then once I had his left arm under control I couldn’t really because I was so focused in on that observed what was happening on the passenger side with my other partners but they were able to then, I guess, remove him out of the passenger front door onto the ground beside the vehicle… after that, once he was outside the vehicle, I proceeded back to assist my partner with Mr. Acorn

20The evidence of Mr. Kell about the arrest is at odds with that of the police officers who testified. Mr. Kell stated that he had just recently got out of jail on February 27, 2024. He was living in Bobcaygeon with his father as he had no money and no savings. On the day of his arrest Mr. Kell was in Keswick wanting to get back to Bobcaygeon. He called his mother who agreed to meet them at David Abbott’s house and to give him some money to return home. He arrived at his uncle Dave’s house at around 12:30 or 1:00 p.m. He went downstairs and helped his mother move her stuff from the Cadillac which was owned by Mr. Abbott’s daughter, Candace, into a truck. His mother gave him $20 for gas for Candace’s car. Mr. Acorn said he would drive Mr. Kell back home to Bobcaygeon in Candace’s car. Mr. Kell left Mr. Abbott’s house in Candace’s car. Mr. Acorn was driving and initially went to Keswick to the home on Connell Drive where he was subsequently arrested.

21Mr. Acorn met friends at the home on Connell Drive. Mr. Kell stated that he was smoking crystal meth to help his ADHD. Mr. Kell stated that he inadvertently took fentanyl which was given to him by Mr. Acorn. He stated that he had inadvertently taken fentanyl before which caused him to be very sick. On March 2 after inadvertently inhaling the fentanyl he vomited. He then went out to the Cadillac vehicle and fell asleep in the front seat. He described being “jammed” into the front seat with his knees against the dashboard. This was because of all of the bags that were in the back seat. The seat was as far back as it could go.

22Mr. Kell described hearing a noise as the front door of the Cadillac was opened. He recalled getting punched in the face, having been asleep in the car.

23Mr. Kell described being punched in the face 45 times. He tried to move over to the driver’s side of the car to get away from the punches. Initially he didn’t know who the people were who were punching him. There was a satchel hanging across the passenger seat. He could just see the strap which was hanging across the seat. His arm got hooked on the strap. Mr. Kell recalled being told to stop resisting but the police officers wouldn’t give him a chance to get out of the car. He recalled the strap of the satchel started to strangle him and the officers wrapped the strap around his neck at least twice and used that as leverage to pull him out of the car. The two officers on the passenger side of the vehicle slammed his head down onto the asphalt while his legs were still in the car. They had to cut the bag off around his neck. Mr. Kell then recalls losing consciousness. He ended up face down in handcuffs on the ground.

24Mr. Kell denied that he recognized the satchel. He observed that there was a label on the satchel suggesting that it was from the ironworkers union and he thought Mr. Acorn used to be an ironworker.

The Charter Application

25The first issue I need to address is whether the force used to effect the accused’s arrest was reasonable. The accused argues in this regard that the police breached his ss. 7 and 12 Charter rights. Section 7 of the Charter provides that everyone has the right to life, liberty and security of the person and that right not to be deprived thereof except in accordance with the principles of fundamental justice. Section 12 provides that everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

26Police are authorized by s. 25 of the Criminal Code to use force to effect a lawful arrest if they act on reasonable grounds, are justified in doing what they are required or authorized to do, and if they only use as much force as is necessary in the circumstances.

27In R. v. Nasogaluak, 2010 SCC 6, at para. 35, the Supreme Court discusses the police authority to use force pursuant to s. 25 of the Criminal Code and states that,

Police action should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances.

28There is clearly a substantial difference between the evidence of the police officers and that of the accused with respect to the degree of force used in his arrest

29I have concluded that the evidence of the police officers should be accepted over the evidence of the accused for the following reasons:

• In his cross-examination, Mr. Kell acknowledged that he was resisting his arrest. This is reflected in his evidence on cross-examination where he testified as follows:

Question: And then, you also heard them before that, around that time, an officer shouting, “He’s reaching for something”.

Answer: When they were hitting me, they said, “He’s reaching for something” when I was trying to get away and I was resisting, yeah, I remember them saying that, probably a minute or two into it.

[Emphasis added.]

• Later in his evidence also in cross-examination Mr. Kell testified as follows:

Question: Okay, and so your evidence is that your arm got stuck in this bag while it was strapped on the seat?

Answer: When I was resisting, trying to get away, yeah.

[Emphasis added.]

• Mr. Kell testified that he was not able to get out of the front seat of the Cadillac because his knees were wedged against the front dashboard. However, in reviewing the photographs of the Cadillac it is apparent that there was considerable room in the front passenger seat of the Cadillac. In his evidence Officer Hay confirmed that the photographs of the Cadillac were taken prior to the search of the Cadillac.

• Mr. Kell’s evidence that the satchel was hung across the passenger seat seems improbable. He stated that his arm became entangled with the satchel as he reached back behind the passenger seat. However, the strap would have been against the back of the seat so it seems unlikely that his arm would get caught up with the strap as he described in his evidence. I will comment further on this evidence later in these Reasons.

• On his own evidence Mr. Kell testified that he had consumed both crystal meth and fentanyl prior to his arrest and it seems possible that the ingestion of these drugs may have affected his memory of events on the day in question.

• Assuming that Mr. Kell was leaning away from Officer Horner during the scuffle it would make it very difficult for Officer Horner to wrap the strap of the satchel around Mr. Kell’s neck twice. This would essentially involve Officer Horner putting himself into the centre of the Cadillac which would have exposed him to being struck by Mr. Kell’s fists or potentially having Mr. Kell injure him using a weapon. It seems far more likely that Officer Horner as he described in his evidence, would be trying to get control of Mr. Kell’s arms in order to minimize the risk of an assault by Mr. Kell.

• I was very impressed with the evidence of Officer Horner. He was very calm in giving his evidence and his evidence was very detailed. There were no significant inconsistencies in giving his evidence. Officer Horner in his evidence had no difficulty in acknowledging facts which were not particularly favourable to his position. For example he acknowledged that he did not tell Mr. Kell the reason for his arrest until after the arrest had been completed. He was also candid in his evidence when he stated that when he initially saw the satchel on Mr. Kell, his recollection is that it was grey. This was clearly in error as the photographs clearly show the satchel was black in colour.

• Officer Horner’s evidence is also supported by the other police officers who gave evidence. The defence suggests that there may have been collusion amongst the police officers in giving their evidence. However, I have concluded that this is not the case. It makes no sense if there was collusion that Officer Horner would recall that the satchel was grey whereas officer Von Engelbrechten would correctly describe the colour of the satchel which he saw on Mr. Kell as black. I also found it significant to note that Officer Reiche was the only officer who claimed to have seen the 12 inch knife. This would be consistent with his position in the Cadillac. Officer Horner did not try to assert in any way that his actions were influenced by seeing a knife in the back seat.

30For the above reasons I am prepared to accept Officer Horner’s description of the arrest.

31Based on his description of the arrest I have concluded that Mr. Kell did in fact attempt to resist his arrest and that the force used by Officer Horner, together with the other officers was reasonably necessary in the circumstances. I accept Officer Horner’s evidence that the arrest itself was over in about a minute and that there were no excessive punches which were directed towards Mr. Kell other than as necessary to gain his control for purposes of the arrest.

32I turn now to the issue of whether there was a violation of s. 10(a) of the Charter in arresting Mr. Kell. Section 10(a) of the Charter provides that that everyone has the right on arrest or detention to be informed promptly of the reasons therefore.

33I accept the evidence of Officer Horner that he was not able to provide Mr. Kell with the reasons for his arrest because promptly after being advised that he was being arrested Mr. Kell resisted arrest and it was not practical to do so. I also accept Officer Horner’s evidence that once Mr. Kell was under control he was advised of the reasons for his arrest. It is not entirely clear whether Mr. Kell understood what Officer Horner was telling him because of a seizure which he experienced. However, Officer Horner reasonably gave instructions to another officer to follow-up and provide this advice to Mr. Kell.

34In the circumstances I find that there was no breach of s. 10(a) of the Charter. Mr. Kell was advised of the reason for his arrest as soon as was reasonably practical.

35I turn now to s. 8 and whether the search of the accused incident to arrest was reasonable. Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure. A valid search incident to arrest must meet three conditions: 1) the arrest itself must be lawful; 2) the search must be truly incidental to the arrest and that it was for a valid law-enforcement objective connected to the arrest; and 3) the search must be conducted reasonably.

36In the present case there is no issue that has been raised about the lawfulness of Mr. Kell’s arrest.

37The decision to search the satchel which was in Mr. Kell’s possession also appears to be reasonable. He was observed reaching for the satchel during the course of the arrest and police had a reasonable basis to believe that there could be a weapon in the satchel.

38In R. v. Aviles, 2017 ONCA 629, the Ontario Court of Appeal dealt with the search of a shoulder bag following the arrest of the accused. The Court found that the search of the bag was lawful. The Court noted that the search incident to arrest must be for a valid criminal justice objective, such as police or public safety or discovery of evidence. The purpose of the search must not be contrary to the proper administration of justice such as to intimidate, ridicule or pressure the accused into making admissions. The search must not be conducted in an abusive manner and the search must be truly incidental to the arrest. In finding that the search was reasonable the Court stated at paras. 31-33:

This case is wholly distinguishable from Kelsy. The circumstances in this case differ in four respects. First, the appellant was under arrest. As a result, there was no option for him to leave or take the bag away. Second, because of the arrest, the police had the power to search incident to arrest, if there was a basis to do so in accordance with Cloutier and Caslake: officer or public safety, preserving evidence, discovering evidence relevant to the offence for which the individual is being arrested. Third, because they would be taking the bag to the station, Sgt. Austin was concerned for officer safety and believed the bag should be checked for a loaded firearm. Fourth, the fact that the accused was being arrested for a violent offence informed the officer’s concern.

Although there was no report of a weapon as part of the assault, because the police had reasonable and probable grounds to believe that the appellant committed a violent offence, this was not a case like Kelsy where there was no basis for the officers to believe there could be a weapon in the bag. As a result, I do not agree that because the accused persons were all handcuffed there was no objectively reasonable concern of danger to the police from a loaded firearm in the shoulder bag.

In my view, the trial judge made no error in his conclusion that the officer had both a subjective and objectively reasonable basis to conduct a search of the bag incident to the appellant’s arrest in all the circumstances of this case, and that there was therefore no breach of the appellant’s s. 8 right against unreasonable search and seizure.

39I have reached a similar conclusion in the present case. In light of the struggle which occurred at the time of Mr. Kell’s arrest and the fact that while resisting his arrest he was seen reaching trying to get to the satchel, there were both subjective and objectively reasonable grounds to believe that there could be a weapon contained in the satchel which provided a reasonable basis to conduct a search of the satchel

40The issue raised by Mr. Kell is whether his rights have been infringed by the non-existence of any video evidence of the arrest. However, in the present case there is no evidence that any evidence has been lost or no longer in existence. The evidence of the police officers is that they did not have any video recording equipment either on their person or in their vehicle. Officer Horner and Officer Von Engelbrechten and were operating in an unmarked Ford F-150 during the investigation when they boxed in the Cadillac by pulling up behind it. I agree with the Crown’s position that the failure to create evidence cannot be equated, for constitutional purposes, with the failure to preserve evidence. There is no duty on the police to create evidence, especially when means of creating any video recording was not available to them.

41For the above reasons I am dismissing Mr. Kell’s Charter challenges.

Has the Crown proved the charges against Mr. Kell beyond a reasonable doubt?

42The Defendant is presumed innocent of the charges in the Indictment. This presumption of innocence stays with him throughout the trial and is only displaced if I am satisfied that the Crown has proven the charges beyond a reasonable doubt. The Crown has the sole obligation or burden of proving the charges against the Defendant. The Defendant does not have any obligation to prove anything.

43Proof beyond a reasonable doubt is a very high legal standard. A reasonable doubt is not an imaginary or a frivolous doubt. It is not a doubt based on sympathy or prejudice. Rather, it is a doubt based on reason and common sense. It is logically derived from the evidence or absence of evidence.

44While likely or even probable guilt is not enough, proof to a level of absolute certainty is not required, as that standard is impossibly high. However, while absolute certainty is an impossibly high standard, proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities.

45At trial Mr. Kell gave evidence and denied that he was in possession of the drugs found in the satchel and further denied that these drugs were for purposes of trafficking by him.

46As set out in R. v. W.(D.), if I believe his denial, I must acquit him. Even if I don’t believe his denial, but his evidence leaves me with a reasonable doubt, I must also acquit him. Lastly, even if I disbelieve his evidence in its entirety, I can only convict him if the remaining evidence which I accept convinces me of his guilt beyond a reasonable doubt.

47The W.(D.) analysis is not a rigid formula for the assessment of credibility. It is simply an example of an analytical framework that recognizes supremacy of the presumption of innocence and the burden of proof on the Crown.

48In applying the framework I must be guided by the following principles:

49In undertaking steps one and two of the W.(D.) framework, I must consider all of the evidence, not just the Defendant’s version of events in isolation.

50The second step of the W.(D.) analysis is important: (i) even if a defendant is disbelieved in part, parts of his testimony may be accepted and may raise a reasonable doubt; or (ii) I may simply conclude that I don’t know whether or not to believe the defendant’s testimony in which case the defendant is entitled to an acquittal.

51Even if the Defendant is entirely disbelieved, and I am not left with a reasonable doubt by his evidence, in order for there to be a finding of guilt I must still be persuaded beyond a reasonable doubt by the evidence that is accepted by me that the defendant is guilty.

52In terms of assessing the evidence, there is no magic formula that applies in determining whether a witness is telling the truth. Instead, the witness’s evidence is considered using a common sense approach that is not tainted by myth, stereotype or assumption. There are many factors that may be relevant in determining credibility. Some of the key factors include: whether the witness’s evidence is internally consistent, whether it is externally consistent with evidence from other witnesses or exhibits; whether inconsistencies in the evidence are about important or minor matters, what explanations are given for any inconsistencies and whether the inconsistencies suggest that the witness is lying. As well, the assessment of a witness’s evidence is not done on an all or nothing basis. It is open to me to accept some, none or all of any witness’s evidence. However, where the evidence comes from a defendant, the assessment of the evidence must be done in accordance with the principles of W.(D.). In other words, I must always remain cognizant of the fact that the defendant does not have to prove his innocence. As well, even if I do not accept the evidence, I must nonetheless consider whether it leaves me with a reasonable doubt.

53The law of possession is governed by s. 4(3) of the Criminal Code which provides as follows:

(a) a person has anything in possession when he has it in his personal possession or knowingly…

54In the present case the prosecution argues that the Defendant had the drugs in his personal possession.

55The law of personal possession was referenced in the case of R. v. York, 2005 BCCA 74. At para. 20 of the decision the Court states as follows:

I think the law can be summarized as follows. Personal possession is established where an accused person exercises physical control over a prohibited object with full knowledge of its character, however brief the physical contact may be, and where there is some evidence to show the accused person took custody of the object willingly with intent to deal with it in some prohibited manner.

56Mr. Kell denies that he was in possession of the satchel which contained the fentanyl at the time of his arrest. I reject his evidence in this regard. I further conclude that his evidence does not raise a reasonable doubt. Mr. Kell denies that he was in possession of the satchel which contained the fentanyl at the time of the time of his arrest. However, the evidence of Officer Horner and Officer Von Engelbrechten was that prior to Mr. Kell’s arrest they drove by the home at 130 Connell Drive and observed Mr. Kell with the satchel containing the fentanyl across his chest. As previously noted, I found the evidence of Officer Horner to be credible and reliable. There were no significant inconsistencies in giving his evidence and he had no difficulty in acknowledging facts which were not favourable to his position. Officer Horner’s evidence was also supported by the evidence of Officer Von Engelbrechten.

57I found the evidence of Mr. Kell to be lacking in credibility and his description of his arm getting wrapped up with the satchel which was wrapped around the seat to be improbable. If the satchel were wrapped around the passenger seat it seems unlikely his arm would have got caught up with the strap as he described his evidence. His arm could have been removed the same way it went in.

58I also found it significant that Mr. Kell testified he was not able to get out of the front seat of the Cadillac because his knees were wedged against the front dashboard. However, the photographs of the Cadillac showed that there was considerable room in the front passenger seat. When confronted about this in his cross-examination Mr. Kell testified that the photo of the Cadillac must have been taken after the vehicle had been searched and that the seat must have been moved back. He testified as follows:

Question: So sir, I’m going to suggest to you that, just like you testified in-chief, you put the seat back as far as you could.

Answer: That’s all that moved or whatever. That’s not where I got arrested. That is at their shop, after they searched the vehicle. That is not even the position that everything was in.

59The evidence of Officer Hay, however, appeared to differ in a significant way from that of Mr. Kell on this issue. Officer Hay suggested that the initial photos of the Cadillac vehicle were taken prior to the search. He testified as follows in his cross-examination:

Question: And then you also assisted as the (indiscernible) officer? You’re the officer that took photographs of the vehicle?

Answer: I was, yes.

Question: And your process to take photographs would be to take an initial photograph of the vehicle as is, is that right?

Answer: Yes.

Question: To preserve the – where everything would be, is that right?

Answer: Yes.

60I found Officer Hay to be a straightforward witness with no major inconsistencies in his evidence. I accept his evidence that his photograph of the Cadillac in question was taken prior to any search of the vehicle.

61I have considered Mr. Kell’s evidence that he was not wearing the satchel containing the fentanyl at any time prior to his arrest. In addition to the comments made previously, there are other factors which have convinced me that Mr. Kell’s evidence must be rejected and does not raise a reasonable doubt about the officer’s observations that he was in fact wearing the satchel prior to his arrest. In his evidence at trial Mr. Kell testified as follows:

Question: And Officer Reiche was one of the officers that told you to “stop reaching for the bag”, to “get out” and to “show your arms”, and he was grabbing your arms? Do you remember an officer saying that to you?

Answer: I remember my one arm got grabbed when it got tangled up in the strap, and they are telling me to get out of the car, and every time that they tried to pull me out, the strap was stopping me from getting out, so they would strike me and say, “Stop resisting”.

Question: The strap wasn’t stopping you from getting up. You were not getting out because….

Answer: No, the strap was stopping me. I was tangled up in it, Sir. Sorry, I apologize Ma’am.

Question: Because you knew that you were caught with the fentanyl strapped to your body that you had the entire day…

Answer: No.

Question: … and you kept reaching for it, and leaning out and not getting out of the car when the police attempted to arrest you.

Answer: No, that is not true at all.

Question: Now, at 4:37 p.m., on March 2, 2024, the police had made observations of you with the strap, that gray strap, the bag, sorry, with the fentanyl inside, strapped across your body; just as when they found you, at six o’clock or six-thirty.

Answer: No, I wasn’t wearing the bag.

Question: It was the same satchel. Officers observed you standing on the sidewalk; do you remember standing on the sidewalk with the satchel on you?

Answer: No, I remember standing on the sidewalk making a phone call, but I never had the satchel on me, no.

62Later in his evidence Mr. Kell testified that a police officer took the strap of the satchel from around the passenger seat where it was underneath his armpit and then wrapped it around his neck two to three times. This is reflected in his cross-examination where he stated,

Question: So, at that point, at some point, an officer then took the strap and wrapped it around your neck, two to three times?

Answer: And used that as leverage to pull me out, yes, you are correct.

Question: And your arm was still stuck on it at that point, right?

Answer: It sinched tight, yes.

Question: So your arm was sinched tight?

Answer: It went sinched tight around my arm and my neck. Every time it pulled it wouldn’t release; it got tighter and tighter every time they pulled.

63The difficulty with this evidence is that it does not provide any explanation as to how police were ultimately able to remove him from the vehicle. It is apparent that he would have still been contained in the vehicle by virtue of the fact that the strap was still around the back of the passenger seat.

64Mr. Kell attempts to explain this discrepancy in his evidence by suggesting that police “unhooked” the strap from the passenger seat. In his evidence he testified as follows:

Question: And then, at some point, an officer just goes crazy, and wraps it around your neck?

Answer: They got frustrated, yes, because they couldn’t get me out.

Question: Because you are still stuck in the car…

Answer: Uh-mmm.

Question: …with the – strapped in, right? And then he grabs…

Answer: What about the strapped in part.

Question: …the strap and wraps it around your neck and starts tugging on that.

Answer: He unhooks it from behind the seat, wraps it around once or twice, and pulls on it, and as he was pulling on that, as one of the other officers was pulling on my upper body, and they pulled me out of the car, and I went head first right into the ground. My feet were still sitting in the car.

65Mr. Kell’s evidence on this important issue appears to be inconsistent with his evidence that police took the strap and wrapped it around his neck two to three times and then were able to pull him out of the car.

66It is difficult to understand how the police would have been able to disengage the strap from the passenger seat given that it was allegedly cinched tight around Mr. Kell’s arm and around his neck. It is difficult to accept Mr. Kell’s evidence that after the strap had initially been wrapped around his neck two or three times, it wouldn’t release and got tighter and tighter every time they pulled. This makes it highly improbable that police could have disengaged the strap from the back of the seat. If, on the oner hand the police unhooked the strap from behind the seat before wrapping the strap around his arm and neck, then Mr. Kell’s evidence that the strap got tighter and tighter without the police being able to drag him out of the car doesn’t make sense.

67All of this leads me to conclude that Mr. Kell’s evidence about the events surrounding his arrest and his denial that he was wearing the satchel is not credible and I reject his evidence in this regard. I also conclude that his evidence does not raise a reasonable doubt.

68This, of course, raises the question of whether the Crown has proven on other grounds that Mr. Kell was in fact wearing the satchel prior to and at the time of his arrest. In this regard, I accept the evidence of Officer Horner that he observed Mr. Kell wearing the satchel when they drove by the home at 130 Connell Drive and observed Mr. Kell with the satchel containing the fentanyl across his chest. The evidence of Officer Horner in this regard was corroborated by Officer Von Engelbrechten. It was also corroborated by Officer Hay who testified that he observed Mr. Kell wearing the satchel around his shoulder at the time of his arrest. His evidence in this regard was as follows:

Question: And during the arrest, did you notice the clothing that he was wearing or anything on or around him?

Answer: He was wearing a satchel around his shoulder, under his arm.

Question: Do you do anything with the satchel?

Answer: I handed it to Officer Reiche.

69I find the evidence of Officers Horner, Von Engelbrechten and Hay to be credible for the reasons outlined previously. Officer Hay’s evidence at trial was as follows:

Question: You have no recollection of it being around his neck?

Answer: The satchel?

Question: Yes.

Answer: Yeah, it was over his shoulder, hanging down on a diagonal under his arm.

Question: Not around his neck?

Answer: Can I physically point, or?

Question: Yeah.

Answer: I would say the upper shoulder towards neck – I don’t know – which is where the strap would be, and then the satchel hung down on a diagonal.

70I accept the evidence of the officers that Mr. Kell was observed both prior to and at the time of his arrest wearing the satchel across his chest. The inference I draw is that he had the satchel attached to his body recognizing that its contents were very valuable and that they needed to be protected. The inference I draw is that he was aware that the satchel contained fentanyl.

71The conclusion I draw in the circumstances is that Mr. Kell was in possession of the fentanyl contained in the satchel and that the Crown has proven beyond a reasonable doubt that Mr. Kell is therefore guilty of fentanyl possession.

72The question which remains is whether Mr. Kell is also guilty of possession for the purpose of trafficking.

73The Crown called Michael Hatzes as a witness at trial. Michael Hatzes was qualified as an expert and is a Detective Constable with the York Regional Police. Officer Hatzes gave evidence that normally fentanyl is sold in a 1/10 to 1/20 mg quantity. A consumer might purchase in total 1 to 2 mg which would be 10 to 20 doses. In his experience a heavy duty user would not consume more than 1 g per day.

74Mr. Hatzes testified that with the quantity of fentanyl found in the satchel, the likely purpose was for drug trafficking. He testified as follows:

This does. So this quantity of 94.98 g, it’s a large quantity of fentanyl. It’s approximately depending on how it’s broken out but it’s over 949 doses of fentanyl and to me a person consuming this substance would be consuming one of those 949 doses and you would see it broken off for a piece of it. This to me is a sale that represents a drug trafficker, a drug supplier selling a large chunk of fentanyl, a trafficking quantity fentanyl to a drug trafficker who would then (indiscernible) with the substance, cut it down, break it down, mix it up and then break it down for further sale.

75There are some indicia of drug trafficking which are missing from the evidence of this case. For example there was no currency on Mr. Kell which would be a clear indication of trafficking. However, as noted by Mr. Hatzes in his evidence, the absence of currency being found with Mr. Kell does not eliminate the potential for trafficking. Rather it may simply indicate that a high-value of drugs had only recently been purchased.

76Another common indicia of trafficking is the presence of weapons like firearms, knuckles or knives. In the present case a firearm was identified on Mr. Acorn who was with Mr. Kell at the time of his arrest. There was also a large knife in the back of the Cadillac motor vehicle. However, neither of these items can be directly linked to Mr. Kell. However, the failure to find any weapons may again be an indication that the drugs had only recently been obtained.

77There were no scales that were found in the Cadillac. As noted by Mr. Hatzes, however, scales can add or detract from grounds depending on the situation. If the purchase was recent, it might simply mean that the drugs had not yet been packaged into quantities for sale.

78In cross-examination Mr. Hatzes was questioned about the possibility that the fentanyl could have been for the personal use of an individual. On cross-examination Mr. Hatzes appeared to discount this as a possibility due to the large amount of fentanyl found in this case. As part of his evidence on cross-examination he testified as follows:

Question: And it’s possible that a user may consume more depending on a number of factors. You wrote that?

Answer: Yes.

Question: And then you wrote that, however, I have not encountered a fentanyl user who consumes more than one gram of fentanyl per day?

Answer: That’s correct.

Question: So if I put a few hypotheticals to you....

The Court: I’m just looking for this in his report. Which page? Oh, under rate of consumption?

D. Guido: Right, Your Honour. The last paragraph on that. And I just basically just read out the first two sentences.

The Court: Okay. Yes. Thank you.

D. Guido: Thank you, Your Honour.

Question: So, if I may, can I put a few hypothetical situations to you?

Answer: Yes.

Question: Is that okay? So if there was a user who had a pre-existing opioid use disorder and that was continuous over many years, would that impact their usage?

Answer: I would say in that situation, most fentanyl users have pre-existing opioid use disorder. You wouldn't be able to [indiscernible].

Question: And if that user had a long history of fentanyl use and use daily, would that effect the amount that they consume per day?

Answer: [Indiscernible], yes.

Question: If they used fentanyl or smoked fentanyl for chronic pain, would that effect their usage per day? Are you able to speak to that?

Answer: It could, yes. Possibly.

Question: If they have been diagnosed with some sort of lung issue particularly chronic, obstructive, pulmonary disease, would that – are you able to have an opinion on whether that would affect their usage and their ability to consume the drug?

Answer: You said that the last example, hypothetical [indiscernible] using fentanyl, illicit fentanyl for medicinal purposes?

Question: Correct.

Answer: They may – a person may consume more fentanyl if they're using it, if they're attempting to use illicit fentanyl for medical purposes, they may consume more than [indiscernible]. However, there is a limit to that. [indiscernible] attempting to treat chronic pain with street fentanyl, yeah. When I say street fentanyl, I mean illicit fentanyl from the illicit market. There is a ceiling that you would then [indiscernible].

79In his evidence, Mr. Kell stated that he had accidentally taken some fentanyl prior to his arrest, which was inadvertent. His evidence was that he has had a negative reaction any time he has taken fentanyl and he does not consume it, except in past situations where he has accidentally consumed it. Thus, there is no reasonable expectation that the fentanyl found in the satchel was for the personal use of Mr. Kell. This evidence was supported at trial by David Abbot, Mr. Kell’s uncle, who testified that to the best of his knowledge Mr. Kell did not use fentanyl. This inevitably leads to the conclusion that the fentanyl found on Mr. Kell’s person must have been for the purpose of providing it to others.

80The defence also argues that Mr. Kell did not have the resources or ability to pay for the fentanyl which was found in the satchel. However, there was no evidence as to when the fentanyl was purchased or what the terms of the purchase were. In this scenario the evidence does not allow me to draw any conclusions as to who paid for the fentanyl found in Mr. Kells’ possession or what the terms of payment were. It does not rule out that Mr. Kell was, in fact, trafficking in fentanyl.

Conclusion

81I accept the evidence of Mr. Hatzes that the purpose for the possession of fentanyl must have been for trafficking and that therefore the Crown has proved beyond a reasonable doubt that Mr. Kell possessed the fentanyl in his possession for the purpose of trafficking.

Justice M. McKelvey

Released: June 3, 2026

CITATION: R. v. Kell, 2026 ONSC 3261