R. v. Zanolli, 2020 BCPC 308

Citation: R. v. Zanolli 2020 BCPC 308 Date: 20201023 File No: 40633-2-C Registry: Port Alberni IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RICCO NORMAN JUSTIN ZANOLLI ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.E. SAUNDERS Counsel for the Crown: J. Farenholtz Counsel for the Defendant: D. McKay Place of Hearing: Nanaimo , B.C. Date of Judgment: October 23, 2020

[ 1 ] THE COURT: Thank you, Mr. McKay, and we have Mr. Zanolli appearing by video today, and I am here to give my reasons for judgment in the matter on Information 40633-2-C, Port Alberni Registry. I will read my reasons into the record as I have not been able to get them typed up because we do not have any assistant at the moment. I will order a transcript at the conclusion of my reasons. Introduction [ 2 ] Ricco Norman Justin Zanolli, hereafter Mr.

Zanolli, is charged by indictment on Information 40633-2-C that between the 11th and 13th of June, 2018, inclusive, in Port Alberni, British Columbia, did unlawfully possess a controlled substance, to wit, fentanyl, for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act. He pleaded not guilty to the charges and the matter proceeded to trial commencing on June the 10th, 2019, for three days. Crown concluded its case, at which time, defence requested an adjournment to October 28th, 2019, for continuation, but requested a further adjournment at that time.

The trial was adjourned to November the 13th for a fix date for continuation of three days. [ 3 ] The trial was scheduled for three days from January the 21st, 22nd, and 23rd of 2020, and on January the 22nd, Mr. Zanolli discharged his counsel after he had concluded his own evidence and part of the examination in chief of Dr. Clelland called by the defence. After that, the matter was adjourned each week until early March 2020 to inquire about what progress Mr. Zanolli had made about finding and retaining new counsel. [ 4 ] Mr.

Zanolli retained his new counsel in April of 2020 and the matter came before the court on September the 28th, 2020, for a Charter application pursuant to ss. 7, 11(

b) and (

e) on the issue of the breach of the accused's Charter rights for bail and delay which concluded on that day. Defence counsel did not call any further evidence on behalf of Mr. Zanolli and both he and the Crown concluded their submissions on September the 29th, 2020. The Background [ 5 ] The Crown's case is that Mr. Zanolli was residing in Port Alberni in early 2018 with his girlfriend when a report was made to the RCMP of a domestic dispute in the home and they attended. Mr. Zanolli was not present, but a further report was made of a male, who turned out to be Mr.

Zanolli, running across a field in the general vicinity whom they pursued and finally arrested and transported to cells. When he was subsequently searched, a large quantity of drugs was found in his possession which was tested and found to be 50.1 grams of fentanyl and a bag of cannabis resin. He was also found to be in possession of a glass pipe, five cellphones, SIM cards, and charger, and cash totalling $15,360 in bundles of $100, $50, and $20 bills giving rise to the charges before the court. [ 6 ] It is the Crown's contention that the drugs, cash, and cellphones were for the purpose of trafficking.

When he realized he was going to be arrested and detained due to his serious record and recent release from a lengthy jail term for trafficking, manufacturing, and exporting drugs, Crown's submission is that he secreted the drugs on his person so that he could continue to traffic in custody. [ 7 ] Mr. Zanolli maintains that the drugs were for his personal use and the cash source was from his "prison money," and money given to him by friends and family, and the five phones and SIM cards were for backup. [ 8 ] There is no issue as to Mr.

Zanolli's arrest, jurisdiction, actual possession, knowledge and control. [ 9 ] The issue is whether the fentanyl was in his possession for the purpose of trafficking or personal use which Mr. Zanolli admits.

The Crown Evidence [ 10 ] Crown called Constables Kenny, Gynp, Carroll, Watch Commander Brady Mathison, now retired, Corporal Racz, and Sergeant Seabrook. [ 11 ] Constable Kenny and other officers responded to the domestic disturbance callout on June the 11th, 2018, and observed a male exit a building, walk into the residence, and then leave the property crossing the neighbour's yard and entering a field close by where he was arrested on an outstanding warrant.

He was searched at the scene and a small bag of drugs was found in his sweatpants pocket. [ 12 ] He had a backpack in his possession and was transported to cells where he was searched incidental to arrest. A glass pipe with residue and a bag of little white rocks was found in his possession weighing 10.91 grams (exhibit 1); and a bag weighing 0.27 grams (exhibit 2); five cellphones, a charger, (exhibit 3); and cash amounting to $15,020 in the backpack and $340 inside a wallet in the backpack for a total of $15,360 in cash.

The cash was in bundles of $5,000 in elastic bands, each made up of $100, $50, and $20 bills. [ 13 ] Constable Gynp testified that he had been at the cellblock on June 13th and had attended to Mr. Zanolli who he believed had ingested a quantity of drugs and he transported him to the West Coast General Hospital for assessment. An X-ray indicated there were a number of obstructions in his system. Back at cells, Mr. Zanolli was advised of the risk to his health and he passed a bowel movement and he handed over a round egg-shaped capsule which Mr.

Zanolli said was heroin, (exhibit 6), and weighed 35.1 grams. [ 14 ] Retired police member Brady Mathison testified that he was watch commander at the time of Mr. Zanolli's arrest. On June the 13th, he received a call from a guard, Jim Nelson, at 5:06 a.m., that Mr. Zanolli was lying on the bunk in Cell 5 with his face to the wall and appeared to be snorting something up his nose. Mr. Zanolli was asked to stand, which he did hesitantly and was escorted to another cell. Mr. Mathison entered Cell 5 and found a pink substance on the concrete and on the edge of the vinyl-covered mattress which he cleaned up.

It was weighed later totalling 3.91 grams which he suspected was fentanyl as it was pink. [ 15 ] He asked another guard to search Mr. Zanolli as he did not know where the substance had come from. When asked, Mr. Zanolli reached behind into his pants and pulled out a blue latex glove and he started ripping the tip of the glove with his teeth and appeared to

be trying to swallow it. So they tried to stop him ingesting it and some of the powder fell on the floor. Mr. Zanolli was then taken to Cell 6 as Cells 4 and 5 were contaminated. Mr. Mathison seized 3.91 grams of pink powder from Cell 5 and 10.35 grams of pink powder, both suspected to be fentanyl, from Cell 4. Exhibit 7 shows powder and the ripped glove. [ 16 ] Constable Carroll was exhibit custodian and file coordinator and prepared the exhibit flowcharts, (exhibit 8), and photographs, (exhibit 9). The total quantities of drugs found on Mr.

Zanolli amounted to 50.01 grams of fentanyl and caffeine in white and pink pebble form and powder, and cannabis resin weighing 23 grams, (exhibit 10). The markings on the glass pipe were consistent with it being a drug pipe in his experience. [ 17 ] Corporal Racz confirmed that there had been an unendorsed warrant for the arrest of Mr. Zanolli on June the 11th, 2018, and he was involved in detaining him on that warrant.

He had a backpack which was searched incidental to arrest and contained a large sum of money in bundles consisting of $100, $50, and $20 notes, five cellphones and SIM cards, and a drug pipe. [ 18 ] He described the events at cells on June 13th when he found a condom on Mr. Zanolli and a bag with powder on the mattress and another bag of white powder located in his jeans, which he estimated to be about the size of a D cell battery, and the torn finger of a latex glove. Another bag was found in the pant leg of his jeans which he was wearing at cells.

The Expert Evidence [ 19 ] Sergeant Seabrook was qualified as an expert in the areas of use, price, packaging, distribution, and methods of mixing fentanyl (exhibit 11) specifically in the methods of distribution and packaging of fentanyl, heroin, and methamphetamines in the Port Alberni area in June of 2018 in relation to drug trafficking. [ 20 ] He confirmed that there had been five seizures from Mr. Zanolli totalling just over 50 grams. In his view, that was a lot of fentanyl as the amounts typically used for personal use at that time were half a gram.

The quantity found which he referred to as counterfeit heroin, namely fentanyl mixed with caffeine to add bulk, would generate a significant number of doses. [ 21 ] There was also a difference in the types of fentanyl found, namely, some pink and pebbled to mimic heroin and the white powdered type which is intended to mimic heroin in a different form. [ 22 ] Furthermore, a kilogram of heroin costs approximately $60,000 to $80,000 whereas one kilogram of pure fentanyl directly from China costs $12,000.

It can theoretically create 10 kilograms of counterfeit heroin which could potentially be turned into a profit of $600,000. [ 23 ] Two milligrams of fentanyl which is tantamount to two grams of sands, roughly, can potentially be a fatal overdose. [ 24 ] He described how fentanyl is being mixed with other drugs to increase the potency of poor grade heroin or adding additives to plain fentanyl using a Magic Bullet kitchenware utensil which does not mix the drugs properly and leads to an uneven distribution so that a user could ingest a very high concentration of pure fentanyl and accidentally overdose because the drug is not mixed properly or consistently. [ 25 ] Pink fentanyl appears to be the form of fentanyl causing the most fatal overdoses and street users avoid it and use white.

At street level, less than one gram was the usual dose at the time and 50 grams of fentanyl, even mixed with caffeine, was a very large amount and not consistent with personal use. It would amount to a 50-day supply for a heavy user, but unlikely to occur as it would mean the user would never sleep and that usage would be unsustainable. [ 26 ] He opined that the drugs found on Mr. Zanolli would be worth roughly $10,000. Mr. Zanolli had over $15,000 in his possession, which he stated was not unusual for a drug trafficker, particularly when bundled in separate denominations.

These funds are used to reload and a smaller sum is put in a different place for personal use to keep it separate. [ 27 ] The bundles of cash found on Mr. Zanolli are consistent with opioid sales as are the denominations, for instance, only 22 $100 bills, but 258 $20 bills which are used to purchase per point.

The multiple cellphones and SIM cards are consistent with trafficking to communicate with customers and arrange sales and reload, so five phones is consistent with trafficking. [ 28 ] The biggest use of fentanyl he has ever known about is 1.75 grams per day which is, as he says, "an awful lot." [ 29 ] In cross-examination, Sergeant Seabrook concluded that, based on the evidence, his experience, and the large seizure of the fentanyl was highly consistent with possession for the purpose of trafficking and inconsistent with personal use because of:

a) the total quantity of the fentanyl, namely, 50 grams;

b) there were five seizures in different quantities found in different places;

c) the denominations and bundles of cash found;

d) the value of the drugs seized;

e) the colouring of the fentanyl;

f) the packaging and consistency; and

g) that there were five separate bags with different forms of fentanyl. [ 30 ] In his experience, a personal user would not buy two ounces of an opioid. In Port Alberni in 2018, the cost of two ounces of counterfeited heroin would cost about $6,000 and unlikely that a user would take such a large of quantity of cash out onto the street to a

low-level street dealer, looking to purchase a large amount of drugs, as the street dealers do not typically deal in ounce quantities. [ 31 ] Furthermore, his concern was that mixing fentanyl with other substances such as caffeine makes it more difficult to find the hot spots as fentanyl does not mix consistently no matter how it is blended. It is done to add weight to have more to sell per gram.

It increases quantity to increase the saleability, but does not dilute the potency. [ 32 ] Fentanyl comes in different forms and, in some cases such as this, the powdered form on the skin can be dangerous for first responders attending overdose emergencies.

It can be ingested many different ways such as eating it, smoking, snorting, injecting, or through the skin which can result in accidental overdose. [ 33 ] In his opinion, the use of one gram per day for a heavy user would not be sustainable for 50 days as a user would have to take a break for two or three days at a time after that kind of heavy day use. [ 34 ] He explained that adding caffeine to the fentanyl does not add to the potency, but adds mass to increase the weight.

Diluting the fentanyl with caffeine cannot be done evenly, so there are pockets of pure fentanyl and pure caffeine after blending as they do not mix and exist as hot spots which can cause fatal overdose. The contamination is being done by the dealer at the ounce or higher quantity. He stated that a heavy user could use one gram per day over 24 hours. Two milligrams (roughly two grains of sand or salt) for a casual user could be a fatal overdose. [ 35 ] He believed that if Mr. Zanolli had managed to get the drugs into the provincial jail, they would be worth considerably more in prison than on the street.

The Evidence By and On Behalf of Mr. Zanolli [ 36 ] Mr. Zanolli testified and confirmed his lengthy CPIC criminal record, (exhibit 12), that:

a) he had a conviction for possession of a scheduled substance for trafficking in 2008;

b) he had been sentenced in White Horse in January 2012 to consecutive and concurrent sentences resulting in a 10-year global sentence for numerous offences including commission of an offence for a criminal organization, laundering proceeds of crime for a criminal organization, trafficking in a

Schedule I substance, possession of a

Schedule I substance for the purpose of trafficking, laundering proceeds of crime, discharge firearm with intent, possession of firearm contrary to prohibition order, extortion, assault causing bodily harm, uttering threats, arson with disregard for human life;

c) assault peace officer in 2013; a. aggravated assault, which he states was assault causing bodily, harm in 2017; and

d) two breaches of recognizance in 2018 and 2019. [ 37 ] He was placed on a s. 810.2 peace bond in January of 2018 which he breached and was given six days in prison. He stopped reporting in about April of 2018. He is also awaiting trial in the Supreme Court in Nanaimo for aggravated assault arising out of an altercation in his residence. [ 38 ] On June of 2018, he was arrested some distance from the residence on an alleged domestic violence call and found in possession of cash, drugs, and other items.

He was found with fentanyl in his possession and charged with possession for the purpose of trafficking between June the 11th and 13 th , 2018. [ 39 ] Mr. Zanolli stated that the drugs in his possession were for personal use due to his opioid addiction which he developed after he was stabbed 65 times in the federal institution. He visited Dr. Clelland in Port Alberni in April of 2018 to get help with his opioid management. She was going to be called as his witness. He saw Dr.

Clelland on April the 20th and 27th of 2018 and used fentanyl every couple of hours at that time and could not get opioids from his own doctor. He got his fentanyl from dealers in Vancouver at the time. [ 40 ] He testified that the cash in his possession at the time of his arrest was generated from friends while he was in prison in 2017 and from his grandmother's estate totalling $52,000 which he invested in the stock market. He had difficulty dealing with his financial advisor and his father was not helping, either, as he did not understand the technology of the stock market. Mr.

Zanolli stated he did not want to discuss the issue further as it was a "personal matter," as he described it. [ 41 ] He then transferred some of the money to friends to deal with as he knew he would get it back when he came out of prison. He also invested in gray dispensaries at the time.

He transferred most of the funds to his friend in Surrey, Frank Chartrand, roughly $14,000, and his father transferred the remaining funds to another friend, Bridget Anett, while he was in the Edmonton Penitentiary, which she then transferred to his friend in Kelowna and then back to Frank Chartrand. [ 42 ] He took physical possession of the funds from Frank. He had $1,100 from his prison account. His father gave him a Visa debit card with $5,000 when he got to Port Alberni, so he had around $20,000 in his possession in January of 2018.

He lent Rochelle Lafontaine $8,000 which she gave back to him and another friend gave him $3,000 during his trip to Victoria. He disputed that the way the cash was banded together was for the purpose of trafficking and gave the explanation that it was to ensure he could see if anyone had tampered with the bundles. [ 43 ] He also disputed having the various packages of fentanyl in his possession for trafficking.

He knew he would likely be arrested and taken into custody to Wilkinson Road and did not discard the drugs in the field before his arrest because of fear of being sick if he did not have the fentanyl, although he did hide 21 grams of cocaine in his residence before running away. He said he could not go for more than a few hours without opiates.

[ 44 ] He confirmed he was previously a high level drug trafficker, but he no longer sold drugs. [ 45 ] He went with his girlfriend to see Dr. Clelland, he says, and she prescribed him with Kadian for opiate management. He saw her on two occasions. At the time, he says he was using around four grams of fentanyl a day and he obtained his own fentanyl from the Mainland and increased it to five grams per day after he stopped seeing Dr. Clelland. [ 46 ] The supply found in his possession, he says, was for about two weeks only.

He switched to pure fentanyl and he could drop the price from $2,000 or $3,000 an ounce to about $500 an ounce or $100 or $200 per day. [ 47 ] The fentanyl he had in his possession on June the 11th he had obtained a few days before because he had a warrant out for his arrest so he did not want to fly to Vancouver, and he obtained two ounces of fentanyl from someone at a parking lot near Tigh-Na-Mara in Parksville for $3,000.

He "pebbed" the fentanyl to get rid of hot spots and would use red food colouring to turn the fentanyl pink. [ 48 ] He testified he was using five to seven grams of fentanyl per day when he was arrested in June and it would only take nine days to consume 50 grams of fentanyl. [ 49 ] In cross-examination, Mr. Zanolli testified in considerable detail about his prior drug trafficking history. He described himself as a high level drug dealer and that he had been selling kilos of cocaine across the country by transporting it in false compartments.

He was making between $100,000 and $200,000 per month in drug dealing and he had a lot of experience in the area. [ 50 ] He started using opioids in prison when he was sentenced to the global 10- year term and he is familiar with drug dealing in prison which happens, in his words, "all around and in every prison." He had it given to him or would buy heroin.

He learned about fentanyl when he got out in January of 2018 and, at that time, he was not heavily addicted to opioids and was not using any drugs for the first two or three months, so his system was clean. [ 51 ] Then he started using fentanyl at the end of March and increased it to one- and-a-half grams per day and was also using cocaine each day.

He got his fentanyl from fentanyl traffickers on the Mainland and would pay $2,000 for an ounce of pure fentanyl and he had a friend teach him how to process it by adding three ounces of caffeine to one ounce of fentanyl. [ 52 ] He asserted he knew people who consumed 10 to 14 grams a day of carfentanil which is about 1,000 times stronger than fentanyl. His own fentanyl, after being mixed, would be 25 to 30 percent pure fentanyl. He also disputed that fentanyl can be absorbed through the skin. He described in considerable detail about how he would mix the fentanyl.

He disputed Sergeant Seabrook's evidence that there are hot spots of caffeine which cannot break down. The white "stuff" that was found within cells he had not mixed yet and the pink had been "pressed with acetone." [ 53 ] In cross-examination, he stated he quickly acquired $20,000 in cash on his release and told the "disability or welfare people" that it was an inheritance and they advised him to leave it out of his claim and said they were not really interested in it as he was applying for disability, not welfare.

He obtained a further $10,000 a few days after that so he had about $30,000 by the first week of February. [ 54 ] When questioned about his knowledge of the dial-a-dope operation, he stated that, as a high level drug dealer, he did not use that method because when he was selling cocaine, he would not see anyone who was using or dealing with users as he "sold to people who sold to people who sold to people that sold the stuff." When he was convicted for cocaine, it was seven grams and a small-time operation as he bought a quarter pound of coke at a time and would meet with people who were selling drugs for him and used cellphones for their contact.

He was supplying five people beneath him. [ 55 ] He made about three or four purchases of fentanyl at around $2,000 per ounce and started using in March.

He was buying cocaine and had bought an ounce of cocaine for $1,200 just before he was arrested and was using a gram to a gram and a half to an eight-ball each day. [ 56 ] He confirmed he had gone to Vancouver in the months after his release to buy fentanyl about six or seven times at an average of $2,000 per trip and the suppliers would give him cocaine for free as they thought he was trafficking. [ 57 ] Frank Chartrand gave him $14,000 when he got out of jail, but he has not been able to contact him to come to court or provide a letter in his support regarding the funds. [ 58 ] He has not spoken to Rochelle Fontaine for about a year and has tried calling her for the trial with “no luck” either. [ 59 ] He was adamant that the "stuff" he had would never have been found in Port Alberni as it was never sold in Port Alberni.

He bought white fentanyl from Victoria, which had not been processed or cut, and explained at some length how cocaine and fentanyl are mixed. He said that the white "pebs" of fentanyl are very dangerous and the pink "pebs" safer. [ 60 ] He conceded, as well, that he would have been able to sell the fentanyl in prison, even though he was not planning to sell it, but could have given about 20 grams to people and would have given out the "shatter," (the cannabis oil), to protect himself. He was considered one of the people of importance in the prison because he knows prison law and is called a “rainrep”. [ 61 ] Mr.

Zanolli was cross-examined at length about fentanyl and carfentanil and gave detailed information about fentanyl as to the forms it takes, how it is processed, how it is ingested, what it sells for on the street, what it can be mixed with, the costing of larger quantities, and expanded on his knowledge of how drugs can be used to "piece people off" as a safety precaution in prison. [ 62 ] He confirmed he had been consuming five to seven grams of fentanyl daily at the time of his arrest on June the 11th, 2018. [ 63 ] Dr.

Margaret Clelland testified for the defence and counsel initially wished to tender her as a medical doctor with a speciality in opiate addiction management. Crown objected on the basis that she is not an expert so she testified as a medical doctor and the treatment she provided Mr. Zanolli, (exhibit 13 CV of Margaret Clelland).

[64] She was treating Mr. Zanolli's girlfriend in early 2018 and he came with her to the office on the 20th and the 27th of April, 2018.He was given a low dose of Kadian and given a urine test which tested positive for fentanyl, morphine, cocaine, and methamphetamine.Mr. Zanolli did not get his bloodwork done which was required to determine how much Kadian the person is taking and the amount ofheroin and fentanyl, and to determine the ongoing dosage of Kadian required to manage the withdrawal. [65] Mr. Zanolli discharged his counsel at that stage and continued with the examination himself. Dr.

Clelland disputed that she was anexpert in the area of the effects of opiates. She said she would have recalled if he had told her he was using four grams of fentanyl perday as there were people who claimed to use one and a half grams per day which she stated "converts to an awful lot of Kadian." [66] She prepared a report dated July 19th, 2018, (exhibit 14), which showed his urine screen for April the 20th and the 27th withcocaine, methadone, morphine, fentanyl, and methamphetamine with no indication of the quantity of each drug indicated. He did notattend at the lab for his bloodwork as required by Dr.

Clelland and did not return after the two April visits. [67] She referred to the report of Dr. Longman, Exhibit 15, which she had been provided. He was the doctor who dealt with Mr. Zanolliwhen he was brought in by the RCMP after his arrest in June 2018 and found to have fever, chills, anxiety, rapid breathing, and had saidhe had been using four grams of fentanyl-heroin per day as recently as 20 hours earlier.

The urine drug screen the previous date testedcocaine positive, but there was no mention of fentanyl or morphine or methamphetamine or Buprenorphine. [68] In her experience, most people who she deals with buy their fentanyl every day or every second day and the cost is around $20 to$25 so they pawn or steal or are in the sex trade to pay for it. [69] In cross-examination, she stated that Mr. Zanolli had self-reported in April he was using a lot of fentanyl and that his urine testcame back as 7 points so she had no actual knowledge of how much and what Mr.

Zanolli was taking at the time he saw her. [70] At the conclusion of Dr. Clelland's evidence, Mr. Zanolli asked to reopen the Crown's case as he intended to represent himself andwished to recall all the Crown witnesses to cross-examine them all again. After submissions from Crown and Mr. Zanolli, thatapplication was denied. [71] Mr. Zanolli then called his father, Alcide Zanolli, to testify. Mr. Zanolli asked him to confirm he was at court at an earlier date totestify and was not going into the finances as he wanted to get another lawyer. Mr.

Zanolli, Sr. testified that he was at court in June 2018or 2019 and was told to go home. In answer to the Crown's question regarding his personal knowledge of Mr. Zanolli's drug trafficking,he was interrupted by the accused who stated he did not ask his father to be a witness for his finances. Mr. Zanolli, Sr. stated that he didnot know he was back trafficking drugs when he came out of jail and had only seen him once for dinner before his arrest. The Applicable Legal Principles Defence Submissions [72] Counsel for Mr. Zanolli referenced R. v.

Galye, 2019 BCSC 808, in assessing and analyzing the evidence in support of hissubmissions that the court should find Mr. Zanolli had the fentanyl in his possession for personal consumption based on the followingreasons:

a) the volume of the drugs;

b) there were no scales or scoresheets;

c) the cash found in his possession was legitimate and for personal use as he was a heavy user of fentanyl which he bought in bulk;

d) in cells he had used some of the fentanyl for a quick high;

e) he was injured while in federal custody where he sustained an injury and needed painkillers so he bought fentanyl in bulk andcould control the purity levels for himself;

f) he knew how to deal with "hot spots" and described the process in depth so he was aware of how to manage his addiction;

g) he was a high level user and the amount of fentanyl found in his possession at the time was a two-week supply;

h) he enrolled in a program to deal with his withdrawal in April 2018 which was disrupted because there was a warrant out for hisarrest at the time;

i) the cash in his possession was in bundles so that Mr. Zanolli could tell if someone had interfered with it;

j) the five cellphones and SIM cards were not working according to Mr. Zanolli and he needed at least one that worked;

k) the glass pipe indicated use, not trafficking. [73] Furthermore, counsel submitted that Mr. Zanolli explained that the fentanyl was for his personal use, which was an admissionagainst his own interest, and he was unshaken in cross-examination. He was arrested in 2018 arising out of a domestic dispute so he wasnot on the police radar for trafficking at the time. Applying the principles of R. v. Galye, the court, in counsel's closing submission,should find Mr. Zanolli guilty of possession of the fentanyl for his own use and not trafficking as charged.

The Crown Submissions [74] The Crown cited and relied on R. v. Galye; R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742; R. v. Twohey, 2009 BCCA428; R. v. Villaroman, 2016 SCC 33; R. v. Delage, 2018 BCCA 200, in support of his submission that Mr. Zanolli ought to be found

guilty as charged. [ 75 ] Crown contends the court should find beyond a reasonable doubt that Mr. Zanolli was drug trafficking in fentanyl in June of 2018 due to the totality of the evidence that:

a) he was released from federal prison after serving a 10-year sentence for offences including drug trafficking in late January 2018.

b) he breached his recognizance soon after and moved to Port Alberni where he commenced reporting on probation.

c) in April 2018, he was arrested for aggravated assault.

d) in June 2018, the RCMP attended at a residence in response to a call of domestic violence and arrested Mr. Zanolli who had fled before they arrived and was subsequently arrested in a field close by with over $15,000 cash located in his possession, five cellphones, SIM cards in a plastic bag, and a total of 50.1 grams of fentanyl in different varieties and packaging and colours found in five packages in his possession and a bag of cannabis resin. [ 76 ] Crown's submission is that Mr.

Zanolli acknowledged his extensive criminal record, (exhibit 12), confirmed the various drugs secreted on his person were for his personal use as a result of his opiate habit, confirmed that if he was in custody, he could sell some of it or give it away which amounts to trafficking. [ 77 ] On an application of the W.(D.) principles, Crown submits that on the first two parts of the analytical framework Mr. Zanolli's evidence cannot be believed nor is there a reasonable doubt raised by that evidence including the evidence of Dr. Clelland (which did not support his evidence, in any event).

On the third part of the analysis, the Crown contends the court should find on the totality of the evidence that he had fentanyl, cash, cellphones, and SIM cards in his possession for trafficking, and not personal use, and that there are no other reasonable inferences that can be drawn, that he was trafficking before he was arrested and had the fentanyl and shatter in his possession at the time of his arrest in order to sell or give away in prison. By his own admission, he stated that he could have sold the fentanyl in prison had he chosen to.

The Application and Analysis of the Legal Principles [ 78 ] The issue before the court is whether or not Mr. Zanolli was in possession of the fentanyl for the purpose of trafficking or personal use. The definition of "traffic" under s. 2(1)(

a) of the Controlled Drugs and Substances Act , 1996, c. 19, is "to sell, administer, give, transfer, transport, send or deliver the substance." Circumstantial Evidence and Proof of Trafficking [ 79 ] Where an accused has testified, as in this instance, the court has to apply the three-part analytic framework in R. v. W.(D.) that if he is believed or if there is a reasonable doubt raised by his evidence, he must be found not guilty.

If he is not believed and the court is not left with a reasonable doubt raised by the defence evidence, the court still has to consider the totality of the evidence and must be satisfied beyond a reasonable doubt that the accused is guilty and, in this instance, of possession for the purpose of trafficking. [ 80 ] Mr. Zanolli has testified that he had the fentanyl and cannabis in his possession for personal use. Crown contends it was for trafficking. This is a circumstantial case. [ 81 ] The court must apply the W.(D.) criteria to determine whether Mr.

Zanolli ought to be found in possession for the purpose of trafficking in fentanyl or for personal use. The principles set out in Villaroman , the leading case of the Supreme Court of Canada on circumstantial evidence, apply in assessing the circumstantial evidence in this case. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt, which is doubt based on reason and common sense and logically based on the evidence or lack thereof, ( see R. v.

Delege in which R v Villaroman is cited), that the evidence as a whole must exclude all reasonable inferences other than guilt. [ 82 ] The test in R. v. W.(D.) is threefold, is Mr. Zanolli credible and, if not, does his evidence and the evidence given on his behalf by Dr. Clelland give rise to a reasonable doubt? Even if it is not believed and does not give rise to a reasonable doubt, on the totality of the evidence, the court must be satisfied beyond a reasonable doubt that the possession of the fentanyl was for the purpose of trafficking and not personal use. [ 83 ] As stated in R. v.

Dinardo , 2008 SCC 24 , the court must consider in cases which turn on inferences and credibility such as this, whether Mr. Zanolli's evidence in the context of the circumstantial evidence as a whole, raises a reasonable doubt as to his guilt. [ 84 ] In determining the credibility of Mr. Zanolli's evidence, the court can consider and apply the principles set out in R. v. Parchment , 2015 BCCA 417 . Mr.

Parchment despite his youth, had an unenviable history of criminal behaviour and offences of drug trafficking, violence, and dishonesty, and was likely to be less than candid in his testimony, so his evidence had to be approached with caution and, in order to be accepted, there had to be some corroborating evidence. These factors mirror Mr. Zanolli's circumstances. [ 85 ] Applying the criteria set out in R. v. W.(D.) and R. v. Villaroman , in assessing Mr.

Zanolli's evidence that he had the fentanyl in his possession for his personal use, it was not credible nor does his evidence give rise to a reasonable doubt for the following reasons:

a) Mr. Zanolli knew he was going to be arrested and detained so he fled his home in June 2018 when the police were on their way and took a backpack, extra pants, cash, five cellphones, SIM cards, and a pipe when he left. He secreted fentanyl in and on his body and in the backpack. He had cash in denominations of $100, $50, and $20 in bundles secured with elastic bands totalling $15,020 and $340 cash in a wallet in the backpack.

b) he testified he had the cannabis resin with him in order to sell or give away, to "piece it off," in prison.

c) he acknowledged he had previous convictions for trafficking and had recently come out of jail after a 10-year term for trafficking and other offences in January of 2018.

d) he confirmed and knew a lot about trafficking in prison as he had known about it when he was serving his sentence and that trafficking goes on in all the prisons. He was recognized as a prison lawyer because he knew so much about the court system and inmates would seek his help when he was incarcerated so he was an important figure.

e) he had cash in bundles because he had received funds from various friends after he was released in January of 2018, but none of these individuals testified or verified that occurred and his explanation was convoluted and not credible as was his explanation why the cash was in bundles of $5,000 made up of $100, $50, and $20 bills. His father did not make reference to giving him any funds when he testified and stated that he had only seen him once after his release from prison for dinner and made no reference to giving him a credit card.

f) the urine screen when he was taken to hospital after his arrest in June of 2018 did not show any fentanyl in his system and, presumably, there would have been such evidence as his system showed some fentanyl when he provided a urine test to Dr. Clelland in April of 2018 when he told her he was using less. Had he been consuming such a large quantity of fentanyl of five to seven grams a day, as he said, for the two months prior to his arrest, it is reasonable to assume that there would have been some indication of its presence in his urine screen in June of 2018.

g) Mr. Zanolli could not explain why he had five cellphones in his possession or SIM cards other than he took them all in case some did not work and he would have at least one in working condition.

h) he said that he was using five to seven grams of fentanyl per day when he was arrested to account for the large quantity found in different bags in his possession, but he did not explain why the fentanyl was in different forms, some pink, some white, some "pebbed," other than indicating that he changed the fentanyl which he bought in Victoria on one occasion and on six or seven occasions in Vancouver when he flew over on Harbour Air to purchase it and return to Port Alberni.

i) Dr. Clelland only saw him on two occasions and could not corroborate that he had a fentanyl addiction of five to seven grams per day at the time he came to see her in April. [ 86 ] On an application of the third part of the W.(D.) test, as stated in R v Villaroman , in the context of drawing inferences from circumstantial evidence, the court has to consider "whether the circumstantial evidence viewed logically and in light of the human experience is reasonably capable of supporting an inference other than the accused is guilty" and is inconsistent with any other rational conclusion. [ 87 ] As set out in R. v.

Twohey , the Court of Appeal held that trial judges are not expected to disregard their common sense and, while there is a very high degree of proof required, it does not require certainty, but must be reasonable and supported by the evidence. [ 88 ] The totality of the evidence taken as a whole proves Mr. Zanolli's guilt of possession for the purpose of trafficking in fentanyl beyond a reasonable doubt and is inconsistent with any other rational conclusion, see R. v. Villaroman , paragraph 35 , and is supported by the Crown expert and evidence for the reasons set out below:

a) Mr. Zanolli admitted that drugs are sold in prisons everywhere and he was an important person in the prison system due to his knowledge of prison law and had only been out for a few months before entering into that world of drug activity again. In the short time he was out of custody, he gained a very extensive knowledge of fentanyl and its different forms and how to make those changes himself.

b) despite his assertion that he was using five to seven grams of fentanyl per day at the time of his arrest, there was no presence in his screen at the hospital when he was transported there by police in June of 2018, which contradicts that assertion.

c) consistent with trafficking and the only reasonable evidence that can be drawn on the facts -- [ 89 ] THE ACCUSED: I don't have - - [ 90 ] THE COURT: --is that he had a considerable amount of fentanyl in different bags in his possession which he hid in and on his body to avoid detection by the police so he could get it into the prison to sell.

d) his explanation about the cash in his possession and why it was bound in different bundles consistent with trafficking was not credible and there were no witnesses to corroborate his evidence how he had obtained such a large amount of cash when he was not employed at the time and had his rent and other expenses to pay for out of his income assistance of roughly $900 per month. The only reasonable inference to draw is that the cash came from the traffic of fentanyl soon after he was released in late January of 2018.his evidence of frequent and large drug purchases of over e) $25,000 in Vancouver over the period of a few months are consistent with trafficking.

f) Dr. Clelland's evidence that five to seven grams of fentanyl per day for personal use is unsustainable.

g) the emergency room report and screen at the hospital after his suspected overdose in cells following his arrest which did not show any fentanyl in his system contradicting his evidence that he had been using five to seven grams for at least two months prior to his arrest in June. [ 91 ] The expert qualified by the court, Sergeant Seabrook, gave credible and reliable evidence the court can rely on that: I. the amount of fentanyl found of over 50 grams was inconsistent with personal use and highly consistent with

trafficking as a typical amount for users is less than two grams per day. II. fifty grams would have provided over 500 single-point doses. III. users do not carry two types of fentanyl or in that quantity. IV. trafficking is a cash-based enterprise and is the most credible explanation for the large amount of cash found in bundles on Mr. Zanolli when he was arrested and in the denominations found, predominately $50 or $20 bills for small amounts of fentanyl typically purchased by users.

V. the phones and SIM cards were highly consistent with trafficking to make calls to customers; VI. the large amount of cocaine Mr. Zanolli was purchasing every two weeks for $1,200 and had hidden in his home prior to arrest support the inference that he was trafficking in cocaine and fentanyl for some time before his arrest. VII. the total value of the fentanyl he had secreted on his person and in his possession had a value of between $10,000 and $25,000 if sold in prison. VIII. the fentanyl was consistent with counterfeit heroin and had caffeine mixed in to add bulk.

IX. fentanyl and heroin was being trafficked in Port Alberni at the time of Mr. Zanolli's release. X. Sergeant Seabrook's experience that the largest amount of fentanyl used for personal use was 1.7 grams a day which would represent 17 doses whereas the 50 grams seized from Mr. Zanolli would represent a 50-day supply using one gram a day and would be unsustainable for 50 days consecutively as the body could not sustain that level of use. [ 92 ] Furthermore, the hospital report in emergency on June the 13th, 2018, when Mr.

Zanolli was taken there from cells shows no fentanyl detected in his system which contradicts his assertion he was a heavy user at the time. Mr. Zanolli's evidence regarding his use of seven grams per day, the equivalent of 70 daily doses, is not credible as he stated he was clean until March of 2018 when he started using and was up to seven grams per day by mid-June. Both Sergeant Seabrook and Dr. Clelland testified that the most they had ever heard of for a user was 1.5 to 1.7 grams per day and that anything greater than that would result in the body shutting down. [ 93 ] Mr.

Zanolli travelled to Vancouver on a number of occasions to buy fentanyl and flew by Harbour Air each time and bought over $25,000 worth of fentanyl during that time and when he was there, by his own admission, he was given free cocaine on occasion as the dealer thought he was a dealer himself. [ 94 ] Mr. Zanolli confirmed that he had bought and sold drugs in prison in the past and is familiar with the prison system so he secreted the drugs on his person for his personal use when he realized he could not avoid arrest and detention.

The issue is simply whether he intended to use the fentanyl for himself or sell it in prison. [ 95 ] The only rational conclusion to draw on the totality of the evidence and for the reasons set out above is that once incarcerated again, as he knew he would be, Mr. Zanolli would continue to traffic fentanyl as he had been doing since his release in January 2018 by selling it in prison. [ 96 ] For these reasons, Mr. Zanolli is found guilty as c harged. (REASONS FOR JUDGMENT CONCLUDED)