R. v. Hurdon, 2022 MBPC 7

CITATION: R. v. Hurdon , 2022 MBPC 7 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) S. Sisson for the Crown ) - and - ) ) Mark Hurdon ) ) W. Marks for the Accused Accused ) ) Reasons for Decision ) Delivered: January 28, 2022 C.A. DEVINE, P.J. INTRODUCTION [ 1 ] Mr.

Hurdon was arrested on June 25, 2020, on the charges of possession of fentanyl for the purpose of trafficking ( Controlled Drugs and Substances Act ( CDSA) s. 5(2)), possession of a stolen vehicle ( Criminal Code s. 354(1) (a)) and possession of cash that is, $1,575.00 in Canadian currency, that was believed to result from drug trafficking ( s. 354(1) (a)). He pleaded not guilty to those charges and a trial occurred. I have convicted Mr.

Hurdon of possession of fentanyl for the purpose of trafficking, the possession of property under $5,000.00 resulting from the sale of such drugs, as well as for simple possession of methamphetamine; I have acquitted him of the charge of possessing a stolen vehicle. The reasons for his conviction follow below. FACTS [ 2 ] An agreed statement of facts was filed at the commencement of the trial. The following facts are not in issue. [ 3 ] At approximately 2:25 p.m. on June 25, 2020, Winnipeg Police Service (WPS) officers observed a vehicle drive past their location and then quickly pull over and park.

Checks revealed the vehicle was stolen. Police conducted a traffic stop and arrested the driver and sole occupant for possession of the stolen vehicle. The driver initially identified himself as “Steven Wilkins”; his true identity was later revealed to be “Mark Hurdon”. The driver told the police he borrowed the vehicle from a friend and was not aware it was stolen. [ 4 ] He was wearing a small red Jordan bag or purse over his shoulder.

The bag was quite small: photographs filed in the trial showed that it was large enough only for a small plastic drug container, neatly folded cash and two cell phones to be tightly lined up inside. Police conducted a search of the bag incident to arrest and seized a small, hard plastic “Medi-Care” container.

Inside the “Medi- Care” container, there was a clear jewellery baggie containing 7.96 grams of rock fentanyl, a small, clear baggie containing .2 grams of rock fentanyl, a loose piece of fentanyl weighing .21 grams, and a small, clear baggie containing .09 grams of methamphetamine. [ 5 ] In addition to these products, the red Jordan bag contained $1,575.00 in Canadian currency, comprised of one $100.00 bill, twenty-six $50.00 bills, eight $20.00 bills, one $10.00 bill and one $5.00 bill. [ 6 ] Two cell phones filled the remaining space in the small bag. [ 7 ] Patrol Sergeant Adam Hourd was accepted by the Court as an expert in the pricing, packaging and distribution of fentanyl.

Both trial courts in Manitoba have accepted his expert opinion evidence with respect to cocaine and methamphetamine numerous times. He has served as an officer with the WPS for over 15 years and sees several dozen fentanyl users per year. During his service, he has worked for several years in the Organized Crime Unit, the Gang Response and Suppression Plan (GRASP) and the Clandestine Lab Unit. His roles have included work as an undercover officer, affiant, informant handler, and conductor of wire and text intercepts involving drug trafficking investigations.

He has received, and conducted, extensive training in drugs and drug trafficking, including fentanyl. He had been involved in approximately six fentanyl investigations at the time he testified. [ 8 ] The only witnesses in the trial were Sergeant Hourd and Mr. Hurdon. ISSUES

[9] Mr. Hurdon disputed knowledge that the vehicle was stolen, as well as his possession of drugs for the purpose of trafficking. He testified that he is a drug addict and that the recovered drugs were for his personal consumption. He claimed that the cash was not aresult of drug trafficking. [10] Because Mr. Hurdon testified, I have analyzed and weighed the credibility and reliability of the evidence according to themethodology recommended by the Supreme Court of Canada in R. v. W. (D.), (SCC), [1991] 1 SCR 742 and theManitoba Court of Appeal in R. v. Menow, 2013 MBCA 72.

EVIDENCE OF THE EXPERT [11] Sergeant Hourd’s ultimate opinion was that the fentanyl that was seized from Mr. Hurdon was for the purpose of trafficking. [12] He testified that he would typically see between five and 20 fentanyl users per day, or several dozen each year, in the CentralProcessing Unit (CPU) of police headquarters, where new arrestees are fingerprinted, photographed and sometimes interviewed. [13] Based on this experience, Sergeant Hourd testified that the 8.37 total grams of fentanyl that was seized from Mr.

Hurdonamounts to 83 standard doses, which is significantly more than he would typically expect a user to possess. [14] Sergeant Hourd testified that fentanyl users tend to oscillate between trying to get high or avoiding being “dope sick” from theeffects of withdrawal, which involve flu-like symptoms and are extremely unpleasant.

Typically, users will try to have enough fentanylto ensure they can avoid the ill effects of withdrawal. [15] He testified that although it is possible that a user who wants to avoid withdrawal and who comes into a large sum of moneymight buy a large quantity of fentanyl to reduce their costs, it is also the case that drug traffickers know that purchasing larger quantitiesexposes them to potential drug trafficking charges; they in fact know how much they can possess without resulting possession for thepurpose of trafficking charges.

On the basis of this knowledge, Sergeant Hourd explained that traffickers actually carry less product thanthey otherwise would in order to avoid more serious charges. He has seen traffickers follow this practice and confirmed its existence byspeaking to a dozen or more known traffickers about its operation in principle. Making an extra trip to reload is therefore worth it.

Sergeant Hourd further testified that carrying less product also reducers a trafficker’s exposure to robbery or theft. [16] Sergeant Hourd testified that the following evidence contributed to his opinion that the fentanyl found in this case was forresale: - the breakdown of the fentanyl was consistent with it being for an end-level user and for street-level distribution; - the total amount of the recovered fentanyl, 8.37 grams, was considered a “significant” quantity and is consistent with mid-levelstreet trafficking; - the total value of the recovered fentanyl would represent $3,300.00 at street level prices; - the presence of the cash, since selling fentanyl is a cash business; - the cash was neatly bundled by denomination with elastic bands, which is a common cash-holding practice for drug traffickers; - the $50.00 and $20.00 denominations were consistent with the prices of fentanyl on the street at the time, which was $40.00 to$50.00 a “point” or dose; - the small Jordan bag was over Mr.

Hurdon’s shoulder; - the bag contained the drugs, the cash and two cell phones that were neatly packed in a row; - the existence of two phones - it is typical for a drug dealer to have a personal phone and a work phone; - there was no suggestion that Mr. Hurdon was under the influence of drugs at the time; - there was no drug user paraphernalia in the bag, the vehicle, or on Mr. Hurdon’s person (such as a needle, spoon, gauze/filterpaper, pipe, tin foil, lighter); - Mr. Hurdon gave police officers a false name. [17] Counsel for Mr.

Hurdon suggested to Sergeant Hourd that driving a stolen vehicle is generally avoided by drug traffickers inorder to preclude police traffic stops that could lead to searches and arrests. Sergeant Hourd agreed. [18] Counsel for Mr. Hurdon also suggested that the absence of packaging materials, a scale, or messages on the cell phones shouldhave caused Sergeant Hourd concern that this was not trafficking. Sergeant Hourd agreed that these are often important indicia of drugtrafficking, but their absence did not lead him to believe the fentanyl in Mr. Hurdon’s possession was for personal consumption.

Hetestified that Mr. Hurdon could have been at an early stage of his day at the time he was arrested, that is, he may have just purchased thefentanyl and had not yet had the chance to repackage the product.

Also, he believed that an experienced trafficker and user would beable to judge the amount of fentanyl without weighing it. [19] The officer testified that his conclusion was ultimately based on the quantity of recovered fentanyl and the form of cash thatwas present at the time of arrest; “It’s much more than I’ve seen or heard of a user buying… it was the quantity and the cash that I’mrelying on.” [20] When defence counsel suggested to Sergeant Hourd that his opinion was based on his lack of experience in seeing users with

eight grams of fentanyl and, if he had seen many users buying larger quantities, he might have considered this as a possession rather than trafficking situation; the officer agreed that was a fair statement. When it was suggested to him on cross-examination that, “It’s possible this was for simple possession,” he answered, “It’s certainly possible; in my opinion though, and based on my experience, I’d say it was possession for the purpose of trafficking.” [ 21 ] Counsel for Mr.

Hurdon argued that the expert’s opinion evidence was inadmissible because it was primarily based on the fact that he had never seen a fentanyl user with this amount of fentanyl for personal use. He argued for its exclusion in the same fashion as the Supreme Court’s ruling in R. v. Sekhon , 2014 SCC 15 . In that case, the Supreme Court explained that anecdotal evidence from an expert is irrelevant and prejudicial. The issue to be decided was whether the accused knew that there was cocaine hidden in the vehicle he was driving.

The expert testified that, in the 1,000 drug trafficking cases he had been involved in, he was not aware of a single case where the drug courier was unaware that he was transporting drugs. The Supreme Court held that the expert’s opinion, based on his experience, was of no probative value and should have been excluded. [ 22 ] The impugned evidence in this case does not stand alone, as it more arguably did in Sekhon .

Sergeant Hourd testified about typical doses of fentanyl, the cost of fentanyl, common forms of use, typical quantities of purchase, and reasons as to why users do not purchase large quantities, even though doing so might be more economical. [ 23 ] I agree that Sergeant Hourd's particular statement that the 8.37 grams of fentanyl seized from Mr. Hurdon is much more than he has ever seen a user buying is anecdotal evidence that is not relevant to the overall decision I must make. Because this statement was submitted as expert opinion evidence, I recognize that it has the potential to be prejudicial.

Therefore, I am not relying on that statement; however, I do accept his other evidence. [ 24 ] Sergeant Hourd presented his evidence fairly, dispassionately, impartially, professionally, without argument, without bias, and credibly. He was believable. I accept his evidence, with the caveat that I am not admitting his opinion regarding the anecdotal evidence that he has never seen a user with eight grams of fentanyl. EVIDENCE OF MR. HURDON [ 25 ] Mr. Hurdon detailed his alcohol and drug history, up to and including his use and addiction to fentanyl.

He testified that he was using both methamphetamine and fentanyl at the time he was arrested. He considered himself to be addicted to fentanyl, but not methamphetamine, at least insofar as he did not become ill from withdrawal from methamphetamine. He testified that he did not feel ill effects whenever he did not have methamphetamine, but he felt very sick if he did not have fentanyl. As his use of fentanyl increased, he became increasingly tired and less motivated; he was sleeping a lot and was prone to nodding off.

He testified that he would use the methamphetamine to perk himself up from the effects of the fentanyl. [ 26 ] There is no evidence that he was nodding off or in any way under the influence of fentanyl or any drugs at the time of his arrest. [ 27 ] Prior to his arrest for these offences, Mr. Hurdon was in custody serving a sentence until early June, 2020. While he may have had access to some drugs while he was serving his sentence, it was not significant.

When he got out of jail, he had three cheques waiting for him: two Canada Emergency Response Benefit (CERB) cheques for $2,000.00 each, and his income tax refund for $1,175.00. He cashed the cheques at Money Mart on June 8, 2020; he filed copies of the receipts of the transactions to aid his memory at trial. Once the Money Mart fees were deducted from the cheques, he was left with $5,062.50. [ 28 ] Mr.

Hurdon purchased alcohol and some smaller quantities of methamphetamine and fentanyl using money he had when he left Milner Ridge Correctional Centre (MRCC) (between working in the kitchen and money his spouse left for him) before June 8, 2020. He then cashed the three cheques at Money Mart on June 8, 2020 and, from that money, he made three large purchases of fentanyl for a value between $1,200.00 and $1,500.00 each. He was not precise about the exact amounts of each purchase, which seems unusual, given that they were such significant amounts.

He testified that the day before he was arrested, he bought the eight grams of fentanyl for just over $1,300.00. On cross-examination he testified that it was about $1,400.00. He testified that he would have paid about $1,400.00 three times over the preceding three weeks. He testified as to the two different people he purchased the drugs from and who he would contact to buy “about a week’s worth” of drugs the day before he would run out.

He was paying about $1,400.00 to $1,500.00 for seven or eight grams of fentanyl. [ 29 ] He testified that he bought methamphetamine a few times as well, but would not commit to how much he purchased or exactly what he paid. He testified that he was using two to four grams “easily”, on a daily basis, at the peak of his methamphetamine addiction when he was arrested in June 2020. Later in his testimony, he testified that he was buying a minimum of 3½ grams every time he bought methamphetamine.

He further testified that he would buy up to 10 grams of methamphetamine because he “could use easily two grams a day, no problem.” As for the cost of the methamphetamine, he testified that he was paying approximately $200.00 for 3½ grams, but if he bought “six or seven grams or whatever, [he] would try to get that around three, $400.00 at the most.” He then testified he would buy 3½ to four grams every couple of days, or six or seven grams that would last “half a week”. [ 30 ] A conservative estimate is that Mr.

Hurdon spent between $600.00 and $800.00 a week on methamphetamine in the weeks leading up to his arrest, in addition to three fentanyl purchases of approximately $1,400.00 each. According to his evidence overall, Mr. Hurdon purchased a minimum of $2,000.00 of fentanyl and methamphetamine each week in the three weeks leading up to and including his arrest. From the time he cashed the cheques and obtained $5,062.00, he spent at least $6,000.00 on drug purchases. He did not have any other income or monies.

He also testified that he spent about $100.00 per week on groceries and he gave money to “Daric”, a man he met in jail, for the use of his vehicle, adding over $300.00 to the total of expenditures. In total, Mr. Hurdon’s testimony indicated expenses of $6,300.00, which is very conservative. When he was arrested, Mr. Hurdon also had $1,575.00 in cash. [ 31 ] Mr. Hurdon was not able to explain how he started with $5,062.00, and then made drug purchases of over $6,000.00, bought food and gas, and still had $1,575.00 remaining when he was arrested.

He backtracked on his methamphetamine use and he said he had some money when he got out of jail, but these attempts did not correct the mathematics and served only to reflect poorly on his credibility.

[ 32 ] He testified that part of the reason to make bigger buys was to hide his addiction from his partner and other friends. He testified that he did not want to be out buying everyday. Further to this logic, he wanted to have enough fentanyl to avoid withdrawal. [ 33 ] Mr. Hurdon has a lengthy criminal record, mostly in crimes of dishonesty, such as fraud, stolen identification and possessing stolen property. He testified that he used fraud to pay for his addictions. According to his testimony, his criminal record reflects only a small number of the fraudulent criminal activities he has engaged in.

He described in detail some of the types of fraud and fraudulent schemes he has engaged in to make money. [ 34 ] He testified that he had enough money for a few weeks and then he would have turned to fraud to make more money for his addiction. He explained that he took this approach because he was not someone who was able to easily get a job because of his record and keep that job because of his addictions. ANALYSIS OF THE EVIDENCE AND FINDINGS [ 35 ] Considering Mr.

Hurdon’s evidence in light of all of the evidence at trial, I have made the following findings. [ 36 ] He fraudulently applied for the CERB while he was in jail, which left two cheques for $2,000.00 each waiting for him upon his release. He also had a 2019 tax refund cheque. He did not take those cheques to a bank to cash them, but rather attended a Money Mart. Mr. Hurdon testified that he borrowed a vehicle (which was stolen) from Daric to do errands, including going to the bank. I do not believe him. Mr. Hurdon was not using the services of a bank.

He cashed his illegally obtained CERB cheques at the Money Mart. [ 37 ] It is more likely that Mr. Hurdon borrowed or rented the vehicle to use as transportation to assist with his fentanyl trafficking. [ 38 ] There was no drug paraphernalia found in the vehicle. Mr. Hurdon testified that he was ingesting fentanyl by placing the drugs on a piece of tin foil, burning it and inhaling the smoke with a straw or pen tube. He used methamphetamine by “glass bubbling” it, which he described as “a glass stem with a bubble at the end, with a smaller hole on top”.

Later, he graduated to using a “water bomb” which he smoked out of with a torch. His testimony indicates that he also “hot railed” the methamphetamine – which is essentially burning and melting the drug on a glass table and snorting it up through a glass tube. He testified that just before his arrest, his primary method of ingestion was the bomb method, with occasional instances of hot railing. He testified in direct examination that he had a piece of tin foil and a pen tube with some fentanyl on it in the console of the vehicle.

He became more specific on his cross-examination, describing two pieces of foil and: . . . I'd have a piece I'd -- actually I do recall, it was one to two pieces of tin foil and it was maybe about this big and bent in a way that it's on an angle and it's like a funnel type of way, so it's, like, pointed -- bent upward like this and you hang it on an angle and you smoke it and follow with your lighter and a straw, so it's -- it's called doing a snail trail or something when they call it -- but that's how I'd smoke my fentanyl. [ 39 ] Mr. Hurdon seemed to be concocting this evidence during his testimony.

The phrase “actually I do recall” is not usually how a heavy drug user describes how he uses a drug. I do not accept that he was testifying as a user, but more as a seller of fentanyl. [ 40 ] He testified that, to his knowledge, the police did not search the vehicle. He testified that he did not tell them he was a user and they could find his paraphernalia in the vehicle, simply because they did not ask. [ 41 ] I do not accept that explanation. Mr. Hurdon was a very talkative witness who had no difficulty explaining things, even when he was not asked.

If he wanted the police to believe he was a user, as opposed to a trafficker, in fentanyl, I believe he would have told them. I also reject his assumption that the police did not search the vehicle in a situation where they had just arrested him for possessing a significant quantity of fentanyl for the purpose of trafficking. [ 42 ] Mr. Hurdon also testified that he kept his drug use from his spouse. When questioned about how he would use at home then, he testified that he would go into the bathroom or to the vehicle.

He did not have a vehicle until the night before, when he essentially rented the vehicle from Daric. [ 43 ] He adamantly stated that he would not sell drugs to finance his addiction. And yet, he was convicted for possession for the purpose of trafficking methamphetamine in 2018. [ 44 ] Mr. Hurdon had an answer for everything. But, the explanations were lacking in veracity, as indicated above. [ 45 ] His evidence was not believable. [ 46 ] He was not a credible witness.

Even he admitted that he has a long history of lying and engaging in dishonest criminal activities to finance his drug addictions. [ 47 ] Considering all the evidence in the trial as a whole, I find that Mr. Hurdon possessed the fentanyl for the purpose of trafficking for all the reasons indicated above. Quite aside from Sergeant Hourd’s inadmissible opinion that 8.37 grams is too much product for a user to have, the amount of drugs, along with the cash found in Mr.

Hurdon’s possession, the absence of any evidence of drug use, the nicely contained drug selling kit in the Jordan bag, all satisfy me beyond a reasonable doubt that the purpose of having the fentanyl was for selling it. [ 48 ] At least some of the $1,575.00 cash seized was undoubtedly from the sale of fentanyl. He could not have purchased $6,000.00 worth of drugs and have any money remaining from the $5,000.00 he started with. [ 49 ] As for the vehicle, I am not satisfied beyond a reasonable doubt that Mr. Hurdon knew it was stolen. The overall facts of the case suggest that he did not know it was stolen.

The man he borrowed or rented it from, “Daric” told him it was his father’s vehicle. He received rides from the man in the past. Mr. Hurdon gave him some money for the use of the vehicle. I think that Mr. Hurdon would not

have intentionally used a stolen vehicle, particularly for the reasons argued in this trial – stolen vehicles attract unwanted policeattention. [50] This is not like the case of R. v. Nguyen, 2017 ONCJ 137, filed by the defence, where the Crown’s only evidence to support thepossession for the purpose of trafficking charge was the amount of recovered drugs. In that case, the defence argued that it was forpersonal use. The police found Nguyen extremely intoxicated, with white powder residue around his nose, so much so that he was takento the hospital because of his condition.

Those indicia of drug use were absent in Mr. Hurdon’s case. He did not appear intoxicated inany way and there was no drug use paraphernalia found. [51] In Nguyen, there were no other indicia of trafficking: no scales, no large sums of money, no cellphone, no debt list, and noextra packaging; he was also not observed to be involved in any prior drug transaction and there was no evidence that he was comingfrom or going to a place linked to drug trafficking. In Mr.

Hurdon’s case, there was a large sum of money, a “drug kit” consistent withselling that contained two cell phones, currency, mostly in $50.00 and $20.00 bills that were neatly folded in a fashion consistent withdrug selling, and a significant amount of fentanyl, enough for 83 doses. [52] The totality of the evidence found by the police is very strong circumstantial evidence of trafficking. [53] The theory that Mr. Hurdon offers in the alternative is that he was a heavy user of fentanyl who wanted to avoid the effects ofwithdrawal, so he bought his fentanyl in large quantities.

This has an appeal of rationality to it, until Mr. Hurdon’s story started tounravel and a growing number of inconsistencies were revealed. [54] Counsel for Mr. Hurdon testified that because Sergeant Hourd testified that it was “possible” that a user could possess 8.37grams for person use, this was a possibility that must lead to a finding of not guilty, according to R. v. Villaroman, 2016 SCC 33, theleading case with respect to circumstantial evidence.

I disagree. [55] Ultimately, I must be satisfied beyond a reasonable doubt that the only rational or reasonable inference that can be drawn fromthe circumstantial evidence is that the accused is guilty. Similar to the Nguyen case, I must consider any reasonable explanations oralternatives to the Crown’s theory that the fentanyl in this case was for the purpose of trafficking. Mr. Hurdon’s story is not reasonableand I cannot trust most of his testimony because he has such a history of dishonesty which was further demonstrated in this trial.

Therefore, the “possibility” of 8.37 grams being for personal use is a possibility, but is not a reasonable alternate explanation, in thecontext of the circumstances of this case. It cannot therefore raise a reasonable doubt. [56] Underlying the rule about the use of circumstantial evidence is a central tenet of Canadian law: that guilt must be establishedbeyond a reasonable doubt. The standard is always the same. A doubt is based on “reason and common sense”. It does not involveproof to an absolute certainty (R. v.

Lifchus, (SCC), [1997] 3 SCR 320). [57] The Crown has proven the charges of possession for the purpose of trafficking fentanyl and possession of property under$5,000.00 resulting from sale of the drugs beyond a reasonable doubt. Mr. Hurdon is convicted of those offences under s. 5(2) of theCDSA and s. 354(1)(

a) of the Criminal Code. I am not satisfied beyond a reasonable doubt that he knew the vehicle he was driving wasstolen, and so he is acquitted of the charge of possessing a stolen vehicle. He is also convicted of simple possession ofmethamphetamine pursuant to s. 4(1) of the CDSA, by agreement of counsel. “Original signed by:” C.A. DEVINE, P.J.