R. v. Main, 2019 BCPC 241

Citation: R. v. Main 2019 BCPC 241 Date: 20191021 File No: 99525-2 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAVID WILLIAM MAIN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.P. McQUILLAN Counsel for the Crown: M. Khan Counsel for the Defendant: G. Jose Place of Hearing: Port Coquitlam , B.C. Date of Hearing: September 9, 10, 11, 2019 Date of Judgment: October 21, 2019

[ 1 ] David William Main has pleaded not guilty to the following two counts: a. Possessing the controlled substances fentanyl, carfentanil and U-4700 on January 3, 2018 for the purposes of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act (“ CDSA ”). b. Possessing the controlled substance of methamphetamine on January 3, 2018 for the purpose trafficking, contrary to section 5(2) of the CDSA . [ 2 ] Mr. Main admits that he possessed these controlled substances on January 3, 2018. However, he disputes that he possessed the drugs for the purpose of trafficking.

The sole issue to be determined by the Court therefore, is whether the Crown has proven beyond a reasonable doubt that Mr. Main possessed these drugs for the purpose of trafficking. Evidence of the Crown [ 3 ] The Crown led its evidence through three police officers. Two of those officers participated in the detention and arrest of Mr. Main.

A third officer, was qualified as an expert in the areas of trafficking in controlled substances, including personal consumption rates, distribution, pricing and packaging of heroin, fentanyl, carfentanil, U-4700 and methamphetamine. [ 4 ] Coquitlam RCMP officer Constable Brett Niezen was the officer who arrested Mr. Main. He testified that on January 3, 2018, he was tasked with responding to a report received from security personnel at the Hard Rock Casino in Coquitlam, B.C. The report alleged that a person named David Main had attempted to use a prisoner’s identification card to collect gambling winnings.

Security staff had contacted the RCMP about the individual and indicated that they were aware of him having an outstanding warrant for his arrest. It was not entirely clear how the security staff would be aware of an outstanding warrant, although Constable Niezen speculated that it was through the casino’s police liaison. [ 5 ] Before attending at the casino, Constable Niezen queried Mr. Main’s name on the police database known as Prime. There he observed a mugshot of Mr. Main. He also learned from the Prime database that earlier that day, Mr.

Main had used his prisoner’s identification card, along with an affidavit, in order to claim winnings at the Elements Casino in Surrey. Police had been notified of that incident and attended at Elements but Mr. Main had left before they arrived. Prime indicated that he had claimed $7000 in winnings from Elements. Constable Niezen also confirmed that in fact Mr. Main did have an outstanding warrant for his arrest. [ 6 ] When Constable Niezen arrived at the Hard Rock Casino, he was met by another officer, Constable Nelson, who had arrived in another police car.

They entered the casino together and were met by security staff who escorted them towards Mr. Main who was playing a slot machine. Constable Niezen also recognized Mr. Main from the photograph of him he had just seen on Prime. He then identified himself as a police officer and asked the individual if he was David Main. Mr. Main initially responded that his name was “Greg”. Constable Niezen challenged him on the name he gave and Mr. Main then admitted to his correct name.

He was then advised that he was under arrest at approximately 5:20 PM and was advised of his Charter rights and rights to counsel. [ 7 ] Constable Niezen handcuffed Mr. Main and walked him outside the casino to his police car. He then conducted a search of Mr. Main incidental to his arrest. The search led to the discovery of a collapsible baton in his right jacket pocket. His left breast pocket contained a number of bags and a pill bottle, which Constable Niezen believed to contain heroin.

Inside his left pants pocket was found a stack of $100 bills and a “cash out voucher” from the Hard Rock Casino indicating a stored value of $4181.00. As a result of the discovery of these items, Mr. Main was then re-arrested and cautioned for possessing controlled substances for the purpose of trafficking. [ 8 ] The drugs that were seized from Mr. Main were found in one pill bottle and two separate plastic bags. The pill bottle in turn held 16 small baggies containing what Constable Niezen believed to be heroin but which testing subsequently confirmed to be a combination of fentanyl, carfentanil and U-4700.

The total weight of the 16 bags was 4.52 grams, including the baggies. (Parenthetically, I note that carfentanil and U-4700 are analogues of fentanyl, albeit of different potencies. For ease of reference I will refer to the combination of those drugs as fentanyl even though each is technically unique.) [ 9 ] One of the two larger bags contained a bulk amount of methamphetamine which had a total weight of 11.46 grams. The other larger bag held six smaller baggies containing methamphetamine, which weighed a total of 9.95 grams, after being removed from the baggies.

Thus the total amount of methamphetamine seized from Mr. Main was 21.41 grams. [ 10 ] The amount of cash found on Mr. Main’s person was $11,338.10, which was comprised of 111 - $100 bills, 10 - $20 bills and an assortment of smaller bills and change. [ 11 ] Constable Nelson took a secondary role in the arrest of Mr. Main. However, after the arrest and seizure of drugs from Mr. Main, he transported him to the detachment. He did not observe any signs of intoxication, impairment or symptoms of drug withdrawal from Mr.

Nelson during the approximately 30 minutes he was dealing with him. [ 12 ] Sergeant Luke Rettie testified for the Crown after having been qualified as an expert. He had no involvement with this investigation other than being asked to provide his opinion as to whether the drugs possessed by Mr. Main were possessed for the purpose of trafficking. He was presented with a hypothetical situation which mirrored the circumstances of Mr. Main’s arrest, including the same quantities of drugs, packaged in the same manner, together with an absence of cell phones, scales, empty bags or indicia of drug use.

In his opinion, such facts would lead to no other reasonable conclusion than that the drugs were possessed for the purpose of trafficking. [ 13 ] Sergeant Rettie testified that the amount of fentanyl consumed by an average user in a day is one to two points. A point is 0.1 gram. A heavy fentanyl user could use upwards of 5 points in a day but anything more than 5 points in a day would be relatively rare. Consumption of ten points, or one gram, in a day would be extreme and Sergeant Rettie has not personally encountered such high usage

levels, although he concedes that it could be possible. [ 14 ] Fentanyl is typically trafficked at the street level in quantities of one point or 0.25 gram. Sergeant Rettie stated that a drug user could use that amount and then repeat the same dose a few hours later after the effects of the first dose diminished. It is generally consumed by smoking it which has an immediate effect. Another common method of consumption is by injection. That requires the user to mix the fentanyl with water in a spoon and then heat it up with a lighter before injecting it with a syringe.

Both methods of consumption require the use of a lighter. Smoking requires tin foil or a pipe. Injection will typically require a spoon and often steel wool or cotton balls to act as a filter for injecting. The effects of a single dose lasts between an hour and several hours. [ 15 ] Sergeant Rettie opined that possessing 4.95 grams of fentanyl would be unlikely to be for personal use. Possessing such a large amount for personal use could only be suggestive of an extremely heavy user.

Such a heavy user would have great difficulty doing such things as holding down a job, driving a vehicle and maintaining relationships. [ 16 ] Fentanyl is a depressant, and its use will often cause the user to have to sit down or lie down.

Withdrawing from fentanyl use causes debilitating symptoms, such as nausea, constipation, pain, and generally having difficulties functioning. [ 17 ] The fact that the fentanyl was packaged in 16 small baggies supported Sergeant Rettie’s view that it was possessed for the purpose of trafficking, as each bag would have weighed approximately 0.30 gram, which is slightly more than a commonly sold quantity of 0.25 gram.

He said that the additional weight could be accounted for by the weight of the empty bag. [ 18 ] Sergeant Rettie also said that it would be highly unusual for a fentanyl user to purchase that many pre-packaged single use bags of fentanyl for his own use, for a number of reasons. Firstly, drug users typically purchase only enough for one or perhaps two doses at a time. After they use that amount they then purchase another dose or two. Since fentanyl is so readily accessible, it is simple to make subsequent purchases when the drug user needs another fix.

Secondly, it is risky for drug users to purchase larger amounts at one time because that carries with it the risk of being robbed of a larger amount of money or drugs, or of having a larger quantity of drugs seized by the police should they be apprehended. Sergeant Rettie estimated street value of the fentanyl possessed by Mr. Main as being $640, assuming each of the 16 bags was sold as 0.25 gram for $40 each.

Thirdly, if a user was to purchase a larger or bulk amount, it would typically be sold without being individually packaged, as a discount can be found in purchasing larger amounts prior to it being weighed and packaged into single use bags. [ 19 ] Turning to the methamphetamine, Sergeant Rettie testified that a heavy user may consume 0.5 to 1.0 gram in a day. It is typically sold to users at the point or two point quantity. It is most commonly consumed by smoking it in a pipe, although it may also be injected or snorted.

He expects that heavy users would carry with them a pipe and a lighter or, if injecting, a spoon and a syringe. [ 20 ] Methamphetamine is a stimulant and, after consuming it, users become energized, lively and animated, the opposite effect of opiate use. They often speak quickly and show signs of sweating. They will have difficulties sleeping and sometimes do not sleep for days at a time while using.

An addict withdrawing from methamphetamine use will experience nausea and pain, similar to withdrawal from opiates. [ 21 ] As with fentanyl, Sergeant Rettie testified that users of methamphetamine will typically purchase it in small amounts and then purchase more when ready to use again. The same rationale for the frequent purchasing patterns of fentanyl user applies equally to methamphetamine users. [ 22 ] The street price of methamphetamine is $50 to $80 per gram. Accordingly the 21.4 grams found in Mr. Main’s possession had a street value of $1000 to $1600.

If sold at the bulk amount in which it was found, it would be worth approximately $1000. In Sergeant Rettie’s opinion it would be very unlikely for a methamphetamine user to possess such a significant quantity for his own use as a user would generally not carry more than he intended to consume in a day. [ 23 ] Mr. Main was not in possession of any drug paraphernalia associated with consuming either fentanyl or methamphetamine at the time of his arrest.

Sergeant Rettie said that this absence suggests that he was not a heavy consumer of those drugs, and that he likely had not recently consumed and was not about to consume in the short period ahead. Nor did Mr. Main exhibit any signs upon his arrest of being intoxicated by drugs, or suffering from any obvious symptoms of withdrawal. [ 24 ] Sergeant Rettie also testified that possessing such a large quantity of two very different kinds of drugs, being opiates and methamphetamine, supported his view that both drugs were possessed for the purpose of trafficking.

His experience is that while drug users will sometimes cycle through different drugs, they will typically use one type of drug, or category of drug, at a time and that it is rare for users to use both a stimulant such as methamphetamine, and a depressant such as fentanyl at the same time. Using the two at the same time would result in each counteracting the effect of the other and drug users will more typically seek out more of the same drug for the same high. He said that only about 10% of the drug users that he has interacted with have been such polysubstance users.

He is not aware of drug users taking opiates to slow down their heart rate from the methamphetamine. [ 25 ] In cross-examination, Sergeant Rettie conceded that drugs should be weighed without their packaging in order to determine the correct weight of the drugs. In this case, that was not done with the fentanyl which was weighed while inside the baggies. Sergeant Rettie could not recall the weight of a small empty baggie, although he guessed that it was less than 0.5 gram.

He believed however, that the empty baggies would likely have weighed less than 3.0 grams in total, although it is possible that each empty bag could have weighed 0.2 gram, for a total empty baggie weight of 3.2 grams. [ 26 ] Sergeant Rettie estimated from observing a photograph of the 16 bags of fentanyl that each likely contained approximately 0.2 to 0.25 gram. He did not believe that the bags contained the smaller street level quantity of one point.

He also felt that the photograph of the baggies supported his view that they all contained similar amounts as fentanyl is sometimes compressed in a hard ball and in other bags is spread out in a powder. I must confess however, that based solely on a view of the photo of the 16 bags, it is difficult for me to conclude with any certainty that all of the bags contained the same quantity as the quantities actually appear to be quite variable. [ 27 ] In cross-examination, Sergeant Rettie maintained that both fentanyl and methamphetamine users generally consume the amount

that they have for the day, or a portion of the day, and then go out and purchase more, even if they have more money accessible to them to buy a larger amount at one time. He says that heavy drug users are not logical and spend much of their time either high or acquiring drugs for their next hit. They avoid purchasing larger amounts due to a fear of being robbed or having a larger quantity of drugs seized by the police.

However, he acknowledged that making frequent purchases rather than fewer large purchases may itself increase the risk of being robbed or having drugs seized due to the increased risk of interactions with the police. He conceded that robberies of drug users are likely not common. He also acknowledged that drug users are often used to taking risks as many of them regularly commit petty crimes, with the attendant risks, in order to feed their addiction. [ 28 ] Sergeant Rettie agreed that drug user purchase patterns are individualized, although there are common themes.

His experience from acting as an undercover agent is that when he has purchased larger quantities of drugs from dealers, he has felt it necessary to give the dealer a reason why he was purchasing a larger amount, such as having a party or plans to re-sell the drugs himself. In his capacity as an undercover agent, he has himself purchased larger quantities of drugs such as an “8 ball” (3.5 grams), and up to an ounce.

He said that when he has purchased an 8 ball, it has sometimes come in multiple baggies, rather than in bulk. [ 29 ] He also acknowledged that while drug users typically carry their consumption implements of choice, up to 30% of users will leave their paraphernalia at home. [ 30 ] Constable Rettie said that the typical profile of a heavy drug user is someone who is homeless, has no job and little cash available to purchase larger quantities of drugs.

However, he has also observed drug users who have a home, a car and a job but even such users still tend to purchase drugs in the same manner, by making daily purchases. He acknowledges however, that he has never encountered an individual drug user who has purchased larger quantities of drugs as a result of coming into a windfall as asserted by Mr. Main in this case. Defence Evidence [ 31 ] Mr. Main testified in his defence.

He admits to possessing the drugs seized from him upon his arrest but says that they were for his personal consumption and were not possessed for the purpose of trafficking. [ 32 ] He stated that a month before his arrest, he had won a $7230.00 slot machine jackpot at the Elements Casino in Surrey, B.C. That occurred on December 4, 2017. However, because his wallet had been recently stolen he had no acceptable identification, which was required for him to be able to claim the winnings at that time.

He was allowed 30 days to claim the winnings and endeavoured to obtain an official BC ID card so that he could do so. However, he then learned that he would first have to obtain his birth certificate before applying for a BCID card and that process would likely take too long to allow him to claim the winnings within 30 days. He said that he then spoke to an employee of Elements and was advised that a statutory declaration may be sufficient to claim his winnings. [ 33 ] Mr. Main then attended at a Notary Public on January 3, 2018 with his friend Colleen Groven. The Notary drafted a statutory declaration for Ms.

Groven in which she declared that she personally knows Mr. Main and that he is the person identified in an attached inmate identification card and associated document from the Ministry of Public Safety and Solicitor General. After completing the statutory declaration with the Notary, Mr. Main and Ms. Groven left to attend at Elements to collect his winnings. They went to the security kiosk at the casino and, upon production of the statutory declaration, Mr. Main was provided with his winnings in cash.

He said that the cash consisted of mostly $100 bills but also included some smaller bills. [ 34 ] Upon receiving the winnings, Mr. Main and Ms. Groven left the casino in Ms. Groven’s vehicle. They then drove to a 7-11 in Surrey to fill up with gas. Mr. Main then went into the store to pay cash for the gas and buy cigarettes. When he came out of the store, he saw one of his regular drug dealers outside of the store, where he regularly positions himself to sell drugs. He asked the dealer for “side” (methamphetamine) and “down” (heroin), and told him he would purchase all that the dealer had.

The dealer told him that he had an ounce of methamphetamine and a half ball (1.75 grams) of down. He believed that the “down” was heroin although he was also aware that heroin is often mixed with fentanyl. Mr. Main told the dealer that he would take all of it. The dealer initially gave him a price of $1000 and Mr. Main negotiated him down to an agreed upon price of $800. [ 35 ] Mr. Main then received the drugs from the dealer, which he looked briefly at and then placed in his jacket pocket.

He felt that he gotten a good deal as normally an ounce of methamphetamine costs $700 to $800 and a half ball of heroin costs about $200. This was a large quantity of drugs that Mr. Main intended to smoke over the next few days. He said that his practice was to not just buy what he needed for the day but rather for a longer period of use, if he had the money to do so. He expressed the view that purchasing multiple times creates a greater risk of being caught by the police than making fewer purchases of larger amounts. It also allows for the discount of larger quantities.

This was however, the first time that he had received a windfall and spent such a large amount on drugs. [ 36 ] Mr. Main testified that the six smaller bags of methamphetamine were supposed to be half balls, or 1.75 grams each for a total of 10.5 grams. That is slightly more than the actual weight of those drugs which was later determined to be 9.95 grams. The 16 bags which he believed to be heroin was presented to him by the dealer as being a half ball, or 1.75 grams.

He believed that each of the bags was packaged as one point bags, with the total of all 16 bags therefore being 1.6 grams, slightly less than a half ball. [ 37 ] Mr. Main testified that he is 51 years old and weighed 250 pounds at the time. He has been a user of hard drugs for the past 10 years and describes himself as being a heavy user for the three or four years prior to his arrest. At the time of his arrest, he says that he was using drugs daily, which consisted of mostly methamphetamine and heroin, and sometimes cocaine.

His practice was to smoke methamphetamine with heroin, which he says makes the effects of heroin last longer. He said that he has been consuming drugs in that way for years. At the time of his arrest, he said that when he had money, he would typically smoke half a gram of heroin and two to three grams of methamphetamine in a day. [ 38 ] On the day of his arrest, Mr. Main said that he had consumed drugs just before Ms. Groven picked him up to take him to the Notary in the early afternoon. After he purchased the drugs from the dealer at 7-11, he did not take any of the drugs as he said that Ms.

Groven thought that he was clean and he did not want her to know otherwise. He and Ms. Groven then drove to the Hard Rock Casino in Coquitlam.

[39] Upon arriving at the Hard Rock Casino, Mr. Main went to the dollar slot machines, and specifically a slot machine that was afavourite of his. He put $200 in the machine and he soon won a jackpot of approximately $3500. An attendant came by to give him hismoney and re-set the machine. He then won another jackpot of approximately $1550, which was also paid out to him in cash. Hecontinued playing the slot machine until he noticed police officers approaching him. He says that he then pressed the button on the slotmachine which released a cash out voucher for his winnings in the amount of $4180.00.

He was then arrested in the manner indicated byConstable Niezen. The cash out voucher indicates a time of 17:19, which is consistent with the time of his arrest indicated by policeofficers. [40] Mr. Main testified that he had been in the casino playing the slot machine for about 30-40 minutes before he was arrested andduring that time, he was on an unprecedented winning streak. During that period, he had won a $3500 cash pay-out, a $1550 cash pay-outand had accumulated a further $4180 in winnings that could be cashed out with the voucher. Thus his total winnings over that shortperiod was over $9000.

He said that the cash in his possession on that date consisted of the $7200 in winnings received from Elementsthat day plus the $5050 in cash winnings he had been paid out at the Hard Rock Casino just before his arrest, less the $800 he had spenton drugs and approximately $120 he spent on gas and cigarettes. [41] Mr. Main said that he was carrying a baton that day as he knew that he was going to be carrying a large amount of cash as aresult of his winnings at Elements Casino. [42] In cross-examination, Mr. Main testified that he last worked full time about three years ago.

After that he received employmentinsurance benefits in the amount of $900 per month for a period, although that ended in January 2018, around the time of this offence. Atthat point he concedes that the costs of his drug habit exceeded his income. He said that he made up the difference by shoplifting, whichwas often Lego sets that he exchanged with dealers for drugs. He was also selling his personal belongings for extra cash.

He admits thathe was willing to be dishonest to feed his addiction. [43] When he was arrested, he said that he initially lied about his name as he was aware that there was a warrant for his arrest and hedid not want to lose the cash and drugs that were in his possession. Analysis [44] In every criminal prosecution, the Crown at all times bears the burden of proving every element of the offence, beyond areasonable doubt. In R. v.

Lifchus, (SCC), [1997] 3 S.C.R. 320 at para. 36, the Supreme Court of Canada provided thefollowing guidance on what constitutes proof beyond a reasonable doubt: 1) [T]he burden of proof rests on the prosecution throughout the trial and never shifts to the accused; 2) a reasonable doubt is not a doubt based upon sympathy or prejudice but rather is based upon reason and common sense; 3) a reasonable doubt is logically connected to the evidence or absence of evidence; 4) a reasonable doubt does not involve proof to an absolute certainty; and proof beyond a reasonable doubt is not proof beyond anydoubt; and 5) a reasonable doubt is not an imaginary or frivolous doubt.

Furthermore, proof beyond a reasonable doubt requires more than proof thatthe accused is probably guilty. [45] Where an accused person testifies in his defence, a trial does not become simply a credibility contest and the outcome is not tobe determined solely by whom the Court is more inclined to believe. Indeed the Court must apply the principles set out by the SupremeCourt of Canada in R. v. W. (D.) (SCC), [1991] 1 S.C.R. 742, at para 758 as follows: First, if I believe the evidence of the accused, obviously I must acquit.

Second, if I do not believe the testimony of the accused but I am left in reasonable doubt by it, I must acquit. Third, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I doaccept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

These principles are in place to ensure that the burden of proof never shifts to the accused to discharge. [46] In the present case, the Crown says that the expert evidence of Sergeant Rettie establishes beyond a reasonable doubt that Mr.Main possessed both the fentanyl and the methamphetamine for the purpose of trafficking. The Crown says that I should not believe thetestimony of Mr. Main because he has motivations to lie. [47] Mr. Main says that there are a number of problems with the Crown’s case. Firstly, it is far from clear as to what is the amountof fentanyl that Mr. Main was found to possess.

The lack of evidence as to the weight of the empty bags allows for the possibility thatthe bags weigh as much as 3.2 grams (if each baggie weighs 0.2 gram) to 1.6 grams (if each baggie weighs 0.1 gram). Those rangeswould leave a net fentanyl weight of 1.32 to 2.92 grams, not the 4.52 initially asserted by the Crown. Even these amounts are somewhatspeculative given the absence of evidence as to the baggie weights. [48] Mr.

Main also says that Sergeant’s Rettie’s observations that the photograph of the 16 bags of fentanyl appear to each containtwo points of fentanyl is further speculation and it is equally plausible that each bag contained one point as asserted by Mr. Main. [49] Mr. Main also says that Sergeant Rettie remained unreasonably attached to his opinion that drug users will only purchaseenough drugs for one use at a time, irrespective of their particular circumstances.

He postulates that such a view would result in amethamphetamine user who purchases 20 grams of methamphetamine in 0.25 gram bags having to make 80 separate purchases, with all

of the attendant risks. He says that would make no sense for a heavy drug user such as himself who has come upon a windfall by way of his gambling winnings. Sergeant Rettie has himself purchased such larger quantities many times as an undercover officer. Mr. Main suggests that I find Sergeant Rettie is biased, given his resistance to acknowledging the possibility of a drug user buying in such large quantities, despite him having done so himself. [ 50 ] Mr.

Main also says that the absence of other indicia of drug trafficking such as observations of suspicious transactions, score sheets, cell phones or scales militate against a conclusion of trafficking. [ 51 ] Mr. Main relies on two cases of the British Columbia Supreme Court. The first case is R. v. Bhatti 2018 BCSC 1657 . That case involved an individual charged with possessing methamphetamine and heroin/fentanyl for the purpose of trafficking. On the date of his arrest, he was pulled over in a vehicle on an allegation of breaching his undertaking.

An initial search of his vehicle disclosed a number of articles of drug paraphernalia, including a cooking spoon, a lighter, a digital scale, a syringe and syringe wrappers. A subsequent search of his person revealed two baggies of heroin and fentanyl weighing a total of 6.69 grams, and a baggie containing 8.26 grams of methamphetamine. He also possessed $1,750 in cash consisting primarily of $20 bills, all of which were in crisp, pristine condition. [ 52 ] Mr. Bhatti testified that he had been a drug addict for 20 years.

He said that he uses a combination of heroin and methamphetamine to balance and counteract each other and to avoid an overdose. He said that his habit was to consume one to 1.5 grams of heroin each day which he mixed with methamphetamine on a 1:2 ratio. He said that he possessed the $1750 because it had been given to him by his mother the day before. He testified that his parents were sick of him going to jail for crimes to support his habit and would often help him out with money for that purpose.

He did not have a bank account and the money was in crisp bills, as his mother had withdrawn it from the bank in that condition. He said that he typically bought his drugs in a large quantity from a trafficker each month and would spend $1800 to $2400 for an ounce of heroin which would last him a little over a month. He also bought his methamphetamine by the ounce or half an ounce at a time.

His evidence was largely unchallenged on cross-examination. [ 53 ] The Court concluded that it was possible that the amount of drugs in his possession could have been used for personal use, particularly if using the methamphetamine to level out the effects of the heroin. Personal use paraphernalia was found in his vehicle and the explanation of cash in pristine quality, while not corroborated, was not refuted.

All of those factors combined raised a reasonable doubt about his possessing the drugs for the purpose of trafficking and as such, he was acquitted of possession for the purpose of trafficking but found guilty of simple possession. [ 54 ] The other case relied on by Mr. Main is R. v. Daniels 2019 BCSC 253 . In that case, Mr. Daniels was arrested while driving a vehicle in which three baggies containing approximately 29 grams of methamphetamine were found. The vehicle also contained two glass pipes and a portable digital scale.

The police expert testified that this quantity of methamphetamine was possessed for the purpose of trafficking. However, on cross-examination, he conceded that it is possible that an individual may purchase an ounce of methamphetamine in bulk for personal use. [ 55 ] Mr. Daniels testified that he was a heavy drug user and that his use had escalated to 1.75 grams per day, even though he had only relapsed into using it several months earlier. Despite his addiction, he was still able to work full time and hide his addiction. He was working 10 hours per day and six days per week and being paid $2500 every two weeks.

He stated that on the day of his arrest, he had picked up his supply of methamphetamine from a dealer, for which he paid $550 for an ounce, and which he expected would last him for two weeks. He said he purchased in that higher quantity in order to get a better deal and was not planning to sell the drugs.

Ultimately, while the Court had difficulties with some of the defendant’s assertions, such as consuming 1.75 grams of methamphetamine per day while working six days per week for several months, she concluded that she was left with reasonable doubt given his use of the drugs and his explanation for his practice of purchasing drugs in such large quantities. Accordingly he was acquitted of possession for the purpose of trafficking but found guilty of simple possession. [ 56 ] In the case before me, I agree that the Crown’s case has shortcomings. I remain uncertain as to the amount of fentanyl that Mr.

Main possessed. It could be as little as 1.32 grams or perhaps even less, depending on the weight of the empty baggies. In a heavy user, this amount could constitute less than a day and a half of use, according to the testimony of Sergeant Rettie. [ 57 ] The quantity of methamphetamine is unquestionably a large amount. Even at Mr. Main’s professed high consumption rate of two grams per day, this amount is the equivalent of more than 10 days of use. However, given that Mr.

Main had come into the windfall of significant gambling winnings, his explanation that he purchased all that his dealer had is not unreasonable. [ 58 ] Although Mr. Main did not possess any drug using paraphernalia at the time of his arrest, he was not challenged on cross- examination as to his drug use or his assertions of being a heavy drug user. As well, Sergeant Rettie stated that some drug users leave their drug paraphernalia at home, which Mr.

Main may well have done. [ 59 ] While Sergeant Rettie expressed the view that poly drug users are relatively rare, I did not understand his evidence to preclude the possibility of someone using both opiates and methamphetamine at the same time as asserted by Mr. Main. The same profile of drug use was accepted by the Court in the Bhatti case. Again, Mr. Main was not challenged in cross-examination on his asserted pattern of using both drugs at the same time. [ 60 ] There was also an absence of other indicia of drug trafficking in this case, beyond the large quantities and mode of packaging.

There were no score sheets, cell phones or scales found on Mr. Main. He was not found in an area associated with drug trafficking, but rather was actively engaged using a slot machine, where he had been for some time. I must assess reasonable doubt by also including a consideration of any such absence of evidence: R. v. Villaroman 2016 SCC 33 at para 36 . [ 61 ] While I accept that typically drug users will purchase only the amount that they intend to use in the very short term, exceptions to that proposition exist.

In the unusual circumstances of this case, it is difficult to exclude the real possibility that, at least on this occasion, Mr. Main is an exception to the typical pattern given his receipt of a significant amount of money earlier that day. [ 62 ] The Crown does not allege that the cash found in Mr. Main’s possession was in any way related to trafficking. Nor does it suggest that his explanation of how he came to be in possession of such a large quantity of cash is a fabrication. Indeed, Mr. Main’s

explanation of his possession of the cash is corroborated by a number of facts, such as the existence of the statutory declaration, the call to the police from Elements Casino earlier the same day to report Mr. Main using a prisoner’s card there, and the cash being largely in crisp $100 denomination notes. Under the circumstances of a habituated drug user coming into possession of $7200, which is not contested by the Crown, I find it quite conceivable that he would buy a large quantity of drugs with the money, rather than buy a single use amount as the Crown suggests. [ 63 ] I do have reservations about Mr.

Main’s purported drug consumption level given the fact that he showed no signs of either drug intoxication or drug withdrawal during his encounter with the police at the Hard Rock Casino and at the police station after his arrest. This was so despite his having consumed drugs earlier in the afternoon, prior to attending at the Notary. However, that is only one of the constellation of facts that I must consider. [ 64 ] Returning to the various steps set out in the R. v. W(

D) analysis, while I find that I am unable to entirely accept the evidence of Mr. Main, his testimony, along with the rest of the evidence in this case leaves me with reasonable doubt as to his guilt on the charge of possessing for the purpose of trafficking. [ 65 ] Please stand, Mr. Main. [ 66 ] Accordingly, on the totality of the evidence before me, I find you not guilty of the two counts of possession for the purpose of trafficking.

I do however, find you guilty of one count of possession of fentanyl, carfentanil and U-4700, and one count of possession of methamphetamine, both of which are contrary to s. 4(1) of the CDSA . The Honourable Judge R.P. McQuillan Provincial Court of British Columbia