HIS MAJESTY THE KING - v. -, 2023 SKKB 91

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 91 Date: 2023 05 01 Docket: CRM-SA-00090-2022 Judicial Centre: Saskatoon BETWEEN: HIS MAJESTY THE KING - and - STEVEN ARTHUR COURTOREILLE and TRAVIS LERAT Counsel: Thomas M. Brannen for the Crown Meagan J. Bortis for the accused, Steven Arthur Courtoreille Landon G. Skvairson for the accused, Travis Lerat _____________________________________________________________________ JUDGMENT ELSON J.

May 1, 2023 ___________________________________________________________________________ Introduction [ 1 ] The charges in this case arise from an early morning police search of a vehicle parked on a street in Saskatoon’s west end. During the search, the attending officers found quantities of methamphetamine, hydromorphone and crack cocaine, along with a can of bear spray. There were three occupants in the vehicle at the time of the search.

Two of them were Steven Arthur Courtoreille [Courtoreille] and Travis Lerat [Lerat]. [ 2 ] Courtoreille and Lerat now stand jointly charged with the following three counts in the amended indictment before the Court: a. Count 1 - Unlawful possession of methamphetamine, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , SC 1996, c 19 [ CDSA ]; b. Count 2 - Unlawful possession of hydromorphone, contrary to s. 4(1) of the CDSA ; and c. Count 3 - Unlawful possession of cocaine, contrary to s. 4(1) of the CDSA .

Courtoreille faces an additional charge, Count 4, in relation to the bear spray. In respect of this item, he is charged with possession of a weapon for a purpose dangerous to the public peace, contrary to s. 88 of the Criminal Code , RSC 1985, c C-46 . [ 3 ] Neither co-accused admitted to possession of the seized quantities of methamphetamine and hydromorphone.

That said, neither co-accused voiced any serious challenge to the Crown’s assertion that the quantity of methamphetamine, along with the circumstances in which that substance was found, supported the conclusion that whoever possessed it did so for the purpose of trafficking. Instead, each co-accused’s response to Count 1 and Count 2 involved conflicting exculpatory defences in which they implicated each other – the so-called “cut-throat” defence. [ 4 ] The defences raised in this case oblige me to be mindful of the caution required in considering the testimony of one co-accused against another.

At the same time, I must also be mindful of the Court’s responsibility not to extend that caution to exculpatory testimony that a co-accused gives in his own defence. Evidence at Trial Crown Evidence [ 5 ] The evidence presented by the Crown in this case is not meaningfully disputed. For this reason, I have omitted reference to several details that do not directly pertain to the issues to be decided in this judgment. [ 6 ] The police investigation in this case arose from a call to the Saskatoon Police Service [SPS] at 4:18 AM on December 26, 2020.

The call alerted the SPS to a possible break-in at a home in the 300 block of Avenue N South. In the end, the call turned out to be a false alarm. While investigating the call, however, the attending officers’ attention turned to a Buick Regal [Buick] parked near the residence where the break-in was thought to have occurred.

There were three occupants in the Buick, along with another male standing outside the vehicle and speaking to the occupants through an open window on the driver’s side. [ 7 ] One of the first officers on the scene decided to investigate the matter, beginning with a conversation with the driver. It is agreed that Courtoreille was then seated in the driver’s seat while Lerat was in the front passenger seat. Courtoreille’s girlfriend, who I will identify as J.W., was seated in the Buick’s rear seat. [ 8 ] The officer recognized Courtoreille from previous experience and asked him to step out of the Buick.

As other officers arrived to assist in the investigation, it was learned that Courtoreille was the subject of an outstanding warrant. This prompted the officers’ decision to arrest him and search the Buick.

By that time, the officers had also carried out a vehicle check which revealed that the Buick was registered to another person but not reported stolen. [ 9 ] The search of the Buick and its three occupants revealed the following: a. a bottle of Crown Royal whiskey, found on the floor of the front seats; b. $300 in cash, seized from Courtoreille (in denominations of 2 x $50 and 10 x $20); c. a black Triton T3 digital scale, seized from Courtoreille; d. an LG touch screen cell phone, seized from Courtoreille; e. a white iPhone in a blue case, seized from J.W.; f. a digital scale with no obvious brand name, found wedged between the driver’s bucket seat and the front console; g. a can of bear spray wrapped in black tape, found on the front passenger seat leaning against the console; h. a Samsung touchscreen cell phone, seized from Lerat; i. $210 in cash, seized from Lerat (in denominations of 1 x $50 and 8 x $20); j. a bag of methamphetamine, along with a quantity of hydromorphone; k. a black bag with a Skullcandy logo, found “peeking out” from under the front passenger seat, which bag contained three other bags of methamphetamine; l. an empty box of baking soda, found in the glove compartment in front of the passenger seat; and m. a makeshift “bong” fabricated from a liqueur bottle.

There was no evidence that any of the materials seized were tested for fingerprints. [ 10 ] The discovery of the bear spray prompted police to arrest Lerat. Later, at the SPS station, officers conducted a search which they described as a “ CDSA search”. This search of Lerat’s person was carried out at 5:07 AM. During the search, five pills of Dilaudid were removed from the prisoner’s anus. [ 11 ] Excluding the alcohol, the amount of each substance seized was as follows: a. 191.01 grams of methamphetamine in a plastic bag; b. 56.15 grams of methamphetamine in a second plastic bag;

c. 8.09 grams of methamphetamine in a third plastic bag; d. 1.48 grams of crack cocaine in a plastic bag; e. 58 hydromorph pills; f. 5 Dilaudid pills. [ 12 ] As Crown counsel pointed out in his submissions, Dilaudid is a brand name for a form of hydromorphone. Defence Evidence [ 13 ] Both co-accused testified in their own defence. As mentioned in the Introduction, each co-accused denied possession of the methamphetamine and hydromorphone. In doing so, each sought to place blame on the other co-accused.

I will begin a description of their evidence with the testimony of Courtoreille, the first co-accused to testify. [ 14 ] Courtoreille’s testimony included a background narrative that gave some context to how he ended up at the Avenue N location that Boxing Day morning. This narrative included a discussion about his relationship with J.W. [ 15 ] Courtoreille testified that he had been involved in a relationship with J.W. during which she gave birth to two children, one of whom died shortly after birth in June 2020.

Following the loss of their child, the relationship between Courtoreille and J.W. became emotionally strained. Although they continued to see each other occasionally, they were essentially living apart, with Courtoreille primarily living a transient lifestyle. He testified that, despite the difficulties in the relationship with J.W., he was making efforts to improve it. [ 16 ] The Court also heard background evidence about Courtoreille’s drug use. He admitted to a multi-year addiction to crack cocaine since the early 2000s.

During this time, he also admitted to having purchased considerable amounts of crack cocaine, both before and during his relationship with J.W. As for J.W.’s drug use, Courtoreille testified that she used crystal methamphetamine [crystal meth], a drug he never used. Having said this, he admitted having purchased crystal meth for J.W. in the past. In cross- examination by Crown counsel, Courtoreille also freely admitted to his criminal record. [ 17 ] Courtoreille’s evidence also described how he came into possession of the Buick on December 26.

He told the Court that the vehicle belonged to a friend who would occasionally let him use it in return for him cleaning and detailing it. Courtoreille testified that he had cleaned and detailed the vehicle on Christmas Day and the owner permitted him to use it afterward. [ 18 ] Turning to the circumstances on the morning of December 26, Courtoreille said that he was with J.W. early that morning when she told him she wanted some crystal meth, and asked if he could arrange a purchase. He agreed and then telephoned and texted some dealers he knew.

One of the people he called or texted was Lerat, from whom he had previously purchased both crack cocaine and crystal meth. Courtoreille also told the Court that he had smoked crack cocaine with Lerat in the past. According to Courtoreille, Lerat told him they could meet around 4:00 AM outside the home of a woman they both knew. That woman lived in the 300 block of Avenue N South. [ 19 ] Courtoreille testified that he and J.W. drove to the appointed location that morning and parked behind another vehicle.

Almost immediately, Lerat exited the vehicle in front and climbed into the passenger seat of the Buick, while J.W. moved to the back seat. [ 20 ] Courtoreille testified that, when Lerat entered the Buick, he was carrying a black bag. He confirmed that the bag was identical to the black Skullcandy bag seized by the SPS. Courtoreille added that, at one point during their meeting, he saw Lerat remove a can of bear spray and a black scale from the bag. The scale was left on the centre console in the front seat of the Buick. Courtoreille confirmed that these items were also included in the items seized by police.

He further added that, at no time, did he handle or touch the black bag. [ 21 ] Shortly after Lerat entered the Buick, Courtoreille said he asked Lerat if he wanted to smoke some crack cocaine with him. He agreed and mentioned he had a “bong" in his car, which he then retrieved and brought back to the Buick. Courtoreille confirmed that the makeshift bong, seized by police, was the same one Lerat had retrieved from the other vehicle.

In answer to a specific question, Courtoreille told the Court that, in his experience, a bong would never be used for crystal meth. [ 22 ] Courtoreille testified that the SPS arrived shortly before he and Lerat could smoke any of his crack cocaine. This was also around the time that he was chatting with another acquaintance who showed up on the street. In answer to another specific question posed by his counsel, Courtoreille said that the arrival of the officers had attracted almost all his attention.

As a result, he did not see what Lerat did with the black bag or the bear spray. [ 23 ] Of the items seized by police that morning, Courtoreille admitted that the crack cocaine, the Triton T3 scale, the LG touch screen cell phone, the $300 cash and the bottle of whiskey belonged to him and were in his personal possession. The white iPhone in the blue case belonged to J.W. [ 24 ] Courtoreille further testified that the crack cocaine, the cell phone and the Triton T3 scale were all for his personal use.

When questioned about the scale, Courtoreille first told the Court that he forgot he had it when he met with Lerat. He went on to explain that he often used a scale when negotiating purchases of crack cocaine. He added that the price of crack cocaine had increased substantially, and he used the scale to ensure that he received the quantity he paid for. When challenged on this point in cross- examination, Courtoreille acknowledged that this practice impacted his relationship with some dealers.

Even so, without measuring, he felt he ran the risk of being shortchanged, something he thought was worse. [ 25 ] Turning to the $300 cash, Courtoreille testified that when he had money, it was not unusual for him to carry it

with him. He would use it to buy fuel when he used the Buick. He also believed he had money in his pocket for Christmas related purchases. Courtoreille also expected that he would have to pay for J.W.’s crystal meth, which he thought would amount to $40-$80 worth of product. As for the source of his money, Courtoreille told the Court that he had been receiving Canada Emergency Response Benefit [CERB] payments. [ 26 ] In cross-examination, Courtoreille insisted that the black scale, without a brand name did not belong to him. He reiterated his earlier evidence that Lerat had removed that scale from the bag.

As to how the scale fell between the driver’s seat and the console, Courtoreille couldn’t say. That said, he also insisted that he did not put it there. [ 27 ] In answer to specific questions, Courtoreille told the Court that he did not place the black bag under the car seat, but he also couldn’t explain how it got there. He added that there would not have been much room under the car seat, something he knew from the detailing work he had done on the Buick. [ 28 ] Courtoreille also faced questioning about the baking soda box found in the glove compartment.

He acknowledged that this was something he could not explain. That said, he also told the Court that, when detailing the car, he never opened the glove compartment. In his view, this was the owner's personal space and should be left alone. [ 29 ] Lerat was the last witness to testify in this trial. In direct examination, the essence of Lerat’s testimony was that his meeting with Courtoreille on the morning of December 26 was nothing more than coincidental. He explained that, after celebrating Christmas with his family at his home, he went with a friend to see the friend’s family in Warman.

Lerat described this other person interchangeably as his driver and as his best friend. After spending roughly five hours in Warman, the two men returned to Saskatoon where Lerat expected to be dropped off at his home in the Stonebridge neighbourhood. [ 30 ] Instead of going directly to his home, however, Lerat testified that his friend wanted to stop at the home of a woman who lived in the 300 block of Avenue N South.

From his evidence, I understood that both he and his friend knew this woman by name. [ 31 ] Lerat testified that, when he and his friend arrived at the woman’s residence, there was some delay in the friend going into the house. In hearing Lerat’s evidence on this, I confess to not fully understanding the reason for the delay. Whatever the reason, Lerat testified that he took the delay as an opportunity to visit with Courtoreille whom he had seen drive up and park behind his friend’s vehicle. He said he did not know Courtoreille would be there.

Even so, he exited his friend’s vehicle and climbed into the passenger seat of the Buick while J.W., whom he also knew, moved to the rear seat. [ 32 ] As to what was said or done in the Buick, Lerat denied that there was any discussion about a drug transaction. Rather, he said his conversation with Courtoreille was rather short. According to Lerat, they simply talked about the Buick and its owner, whom he understood wanted the vehicle back. This conversation was then followed by a short visit from another individual with whom Courtoreille chatted through the driver’s side door window.

Lerat testified that it was during this encounter that the police officers arrived at the scene and approached the Buick. [ 33 ] In answer to specific questions from his counsel, Lerat denied bringing methamphetamine, hydromorphone pills, bear spray or a scale into the Buick. He expressly denied that the purpose of the meeting with Courtoreille was to complete a drug sale. That said, he did admit to his own addiction to hydromorphone. Later, in cross-examination, he also admitted to having secreted hydromorphone pills in his anus. [ 34 ] The cross-examination of Lerat was revealing.

After restating that his encounter with Courtoreille that morning was coincidental, Lerat was confronted with the transcript of a video recorded statement he had given to investigating officers after his arrest, and for which voluntariness had been admitted. After reading the statement, he confirmed that the transcript accurately recorded his statement. He also agreed that he told police he had spoken with Courtoreille before the Avenue N meeting and that they agreed to meet at that location. Notably, Lerat did not deny the truth of the statement he had given to the police.

Indeed, he eventually agreed that he and Courtoreille must have pre-arranged their meeting at the Avenue N location. He explained the difference between his direct testimony and the statement by saying that he did not recall the events he had described to the officers. [ 35 ] Crown counsel also questioned Lerat about matters not mentioned in the statement. Firstly, Lerat agreed with counsel that his police statement said nothing about his friend wanting to visit a home at the Avenue N location.

Secondly, Lerat also agreed that his police statement said nothing about the reason for the pre-arranged meeting with Courtoreille. In this regard, it is notable that, while he denied that the reason for the meeting was to conclude a drug sale, Lerat did not disclose, either in direct or cross- examination, any other reason or purpose for the meeting. Applicable Law [ 36 ] Certain issues of law in this case are not meaningfully in dispute. The central issues are questions of fact related to the credibility and reliability of each co-accused’s testimony.

That said, there are certain issues that deserve mention, including the elements of the offences charged as well as the consideration of a co-accused’s exculpatory evidence that places responsibility for the criminal activity on another co-accused. Elements of Offences under the CDSA [ 37 ] The principal charges in the indictment are the first two counts, which respectively allege possession of methamphetamine for the purpose of trafficking and simple possession of hydromorphone.

For either or both co-accused to be found guilty of the methamphetamine trafficking charge, the Crown must prove, beyond a reasonable doubt, four essential elements. They are as follows: a. That the substance in question was a controlled substance, namely methamphetamine;

b. That one or both co-accused were in possession of the substance; c. That one or both co-accused knew the nature of the substance; d. That one or both co-accused possessed the substance for the purpose of trafficking. For the simple possession charges for hydromorphone and crack cocaine, only the first three essential elements need be proved beyond areasonable doubt. [38] In the present case, the sole essential element in dispute relates to possession of the methamphetamine andhydromorphone. As earlier mentioned, neither co-accused takes issue with the Crown’s contention about the other essential elements.

Inparticular, it is accepted that whoever possessed the methamphetamine and hydromorphone knew what the nature of the substances were. [39] The test for possession of a controlled drug or substance is reasonably well-known. In short, the Crown mustprove beyond a reasonable doubt that the co-accused possessed the substance at the time in question. The definition of “possession” in s.2 of the CDSA incorporates by reference the meaning stipulated in s. 4(3) of the Criminal Code.

Under this meaning, possession can takeone of three forms: (1) personal possession, also known as actual possession; (2) constructive possession; and/or (3) joint possession. [40] A person is in personal possession of a substance if he or she is aware that he or she has physical custody andcontrol of it. Control means that the person has some power or authority over the substance, irrespective of whether that power orauthority is exercised.

Personal possession also exists where the person has physical custody and control of a building or premises wherethat person knows the substance is kept. [41] A person is in constructive possession of a substance if, while having some measure of control over it, he or sheknowingly puts or keeps it in someone else’s possession or puts or keeps it in any place for his or her benefit, or for the benefit ofsomeone else. [42] More than one person can be in joint possession of a substance if each of them has the substance in his or herpossession with the knowledge and consent of others, each of whom has some measure of control over the substance.

However, mereindifference or doing nothing does not constitute consent. Assessment of Co-Accused Testimony in a “Cut-Throat” Defence [43] In this trial, the two co-accused each gave exculpatory evidence that purported to implicate the other co-accused.This circumstance obliges the Court to treat such evidence with care. It must assess the exculpatory evidence differently from theevidence that implicates the other co-accused.

I will explain. [44] Where a co-accused gives testimony that conflicts with the interests of the other co-accused, trial judges arerequired to instruct juries or themselves, when sitting without a jury, that such testimony, to the extent it may implicate the otherco-accused, should be considered with care. This caution is premised on the concern that the witness co-accused may be more interestedin protecting himself or herself than testifying truthfully. In this context, the non-witness co-accused is entitled to the benefit of factorsthat could diminish the credibility and force of testimony against him or her.

The caution has come to be known as an Oliver caution, drawn from the judgment of Doherty J.A. in R v Oliver (2005), (ON CA), 28 CR (6th) 298 (Ont CA) [Oliver]. It isakin to, but not identical to, the longstanding Vetrovec warning (see R v Vetrovec, (SCC), [1982] 1 SCR 811). [45] As important as the Oliver caution may be, it is important to note that it is not without limits. While it applieswhen assessing a co-accused’s testimony against another co-accused, it does not apply when assessing the capacity of that sametestimony to exculpate the co-accused who gave the testimony.

That aspect of the co-accused’s testimony must be considered in the samemanner as the trier of fact would consider any other form of exculpatory testimony given by an accused, such as described in authoritieslike R v W.(D,), (SCC), [1991] 1 SCR 742 [W.(D.)] and R v Ryon, 2019 ABCA 36, 371 CCC (3d) 225 [Ryon]. [46] I digress from this discussion simply to note that, while the judgment in Ryon expressed criticism of the three-question jury instruction in W.(D.), both authorities contain the same central premise.

This central premise, rooted in the presumption ofinnocence and the requirement of proof beyond a reasonable doubt, embodies four instructive points. Borrowing from language used inpara. 51 of Ryon, these instructive points are: a. The burden of proving guilt beyond a reasonable doubt remains with the Crown throughout, and that an accused person is neverrequired to prove his innocence or disprove any evidence led by the Crown; b. If the trier of fact believes exculpatory evidence presented on behalf of an accused, or is not confident it can accept the Crown’sversion of events, the trier of fact must acquit; c.

While the trier of fact should attempt to resolve conflicting evidence bearing on the guilt or innocence of an accused, a trial is not acredibility contest requiring the trier of fact to decide that one conflicting version is true. If, after careful consideration of all theevidence, the trier of fact is unable to decide whom to believe, it must acquit. d. Even if the trier of fact completely rejects the exculpatory evidence presented on behalf of an accused, it cannot simply assume thatthe evidence against that accused is true.

Rather, the trier of fact must carefully assess the evidence it does believe and decide whetherthat evidence persuades it beyond a reasonable doubt that the accused is guilty. [47] In Oliver, Doherty J.A. addressed the type of jury instruction that distinguishes the implicating and exculpatorycapacities of a co-accused’s testimony and serves to balance the rights of both co-accused. In doing so, he alluded to the then classic W.(D.) instruction. Referencing the facts of that case, and observing that the exercise is “case-specific”, he wrote the following atparas. 56-57:

56 The need to balance the fair trial rights of co-accused is a case-specific exercise. Morrison’s right to a fair trial included his right tohave his testimony as it applied to him considered free of any suggestion that it was inherently suspect because of Morrison’s status as anaccused. Oliver’s right to a fair trial included his right to have factors that could undermine the credibility of evidence implicating himbrought to the attention of the jury.

The respective and somewhat conflicting interests of Oliver and Morrison had to be balanced by thetrial judge in his instructions to the jury. 57 The impugned instruction achieved the appropriate balance. The trial judge told the jury that his “caution” should be borne in mindwhen considering Morrison’s evidence as it applied to Oliver’s involvement in the homicide. He immediately followed this “caution”with the classic reasonable doubt instruction from R. v. W. (D.) (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.).

Thatinstruction made it clear to the jury that when considering Morrison’s evidence as it related to the case against Morrison, the jury wasrequired to acquit if that evidence alone, or in combination with other evidence, left them with a reasonable doubt. [Emphasis added] [48] A more recent authority on this point is the judgment of the Alberta Court of Appeal in R v Whiskeyjack, 2022ABCA 76, 411 CCC (3d) 285 [Whiskeyjack]. In Whiskeyjack, the appellant and the co-accused faced second degree murder charges.During the trial, the appellant gave exculpatory testimony that purported to implicate the co-accused.

In his jury charge, the trial judgeinstructed the jury that it should consider the appellant’s testimony with “a great deal of caution” and that it should consider histestimony in deciding the case against himself and the co-accused. [49] On appeal, the appellant’s appeal was allowed and a new trial ordered. Relying on various authorities, includingOliver, the per curiam judgment concluded that the trial judge erred in failing to distinguish between the circumstances that required thecaution and those that did not.

In arriving at this conclusion, the Court also observed that the trial judge had incorrectly refused to limitthe caution during the pre-charge discussion with counsel. In this regard, paras. 10-12 deserve attention here: 10 It may be helpful to begin by clarifying the concern arising from this instruction. This was a joint trial. Of the two accused, only theappellant testified at the trial proper. He implicated his co-accused in the killing while asserting his non-involvement. The worry aboutthe appellant’s testimony in this case was that he may be falsely implicating his co-accused to escape liability himself.

That prospectrequired the appellant’s testimony be assessed with caution when considering the case against the co-accused. The jury should usually beadvised of that. But when such an instruction is given, the jury should also be told that no such concern applies when considering thecase against the appellant: See R v Ryan, 2014 ABCA 85 at para 24; R v Hoilett (1991), (ON CA), 3 OR (3d) 449 atpara 9, 46 OAC 168; R v Vassel, 2018 ONCA 721 at paras 136–70; R v Abdulle, 2020 ONCA 106 at para 78. Importantly, the trial judgedid not distinguish between these two positions.

In this way, he left the impression that the appellant’s testimony could be relied upon bythe jury in deciding the case against him but only after being assessed with “a great deal of caution”; in other words, only after beingsubjected to special scrutiny. 11 Of note, the appellant’s counsel raised this matter in a pre-charge discussion and asked that the trial judge specify that the cautionapplied only to the jury’s consideration of the case against the co-accused. The trial judge rejected that suggestion stating: I don’t agree with that.

The whole point of the accomplice warning is that he is one of two accused. I think we must approach all of hisevidence with caution: TRA(A) 591/27-29. 12 With respect, the trial judge was in error. The applicable caution, often referred to as an Oliver caution, is designed to protect the fairtrial rights of the co-accused. When appropriate, it requires an instruction telling the jury that the accused’s testimony incriminating a co-accused should be treated with caution in considering the case against the co-accused.

But when that instruction is given, the jury shouldalso be told that the caution does not apply to the case against the accused who gave that testimony: R v Oliver, (2005), (ON CA), 194 OAC 284 paras 57-60, 194 CCC (3d) 92. [Emphasis added] [50] Before concluding this review of the applicable law, I would be remiss if I did not include one last observation.The Oliver caution is not an instruction to ignore the capacity of co-accused testimony to implicate another co-accused.

It is simplydesigned to alert the trier of fact to the concern that a co-accused’s interest in avoiding a conviction may cause him or her to falselyimplicate another co-accused. Although somewhat akin to a Vetrovec warning, I do not discern it to have the same significance. Unlikethe circumstances that call for a Vetrovec warning, it is not “dangerous” for the trier of fact to rely on the unconfirmed evidence of a co-accused against another.

Rather, it is something the trier of fact must simply “bear in mind” when deciding how much or how little a co-accused’s testimony should be believed or relied upon in deciding the case against the other co-accused. See David Watt, Watt’sManual of Criminal Jury Instructions, 2d ed (Toronto: Thomson Reuters, 2015) (Final 24-D – Evidence of Accused (Joint Trial)footnote 2).

Analysis [51] At the outset of my analysis, and before considering the defence evidence, it is necessary to address theevidence presented by the Crown. [52] In my view, the Crown has made a compelling case that one or both co-accused possessed themethamphetamine and hydromorphone found in the Buick on the morning of December 26, 2020.

Simply put, three factors inform theCrown’s case, namely: (1) the presence of packaged quantities of the two substances, both inside and outside the black bag; (2) thepresence of notable amounts of cash in the possession of each co-accused; and (3) the presence of the scale found wedged between thedriver’s bucket seat and the front console. In the case against Courtoreille, these factors, coupled with his possession and control of theBuick, give rise to an arguably circumstantial case against him.

In the case against Lerat, his presence, as an apparent visitor in theBuick, is arguably consistent with a circumstantial case of joint possession of the two substances. Further, taken together, the threefactors raise a circumstantial case against one or other co-accused as the vendor in a possible drug sale.

[ 53 ] Turning to the defence evidence in this trial, consisting solely of each co-accused’s testimony, I will first consider it in the context of the W.(D.) / Ryon analysis, beginning with the testimony of Courtoreille. [ 54 ] There is little doubt that, in terms of his own responsibility for the presence of the methamphetamine and hydromorphone, Courtoreille’s testimony was exculpatory. More importantly, I found that it also amounted to a plausible explanation that was consistent not only with his innocence of Counts 1, 2 and 4, it was also consistent with the Crown’s evidence.

Moreover, I found it particularly notable that, when testifying, Courtoreille answered questions clearly, without hesitancy or evasion, both in direct and cross-examination. This was particularly evident when answering questions that did not reflect positively on his past, such as his history of drug use and the criminal record he freely admitted. It is equally noteworthy that there were no internal inconsistencies in his evidence. In sum, I found no reason to reject or disbelieve his evidence and the plausible explanation it conveyed. Indeed, I found his evidence entirely believable.

It follows that I am left with reasonable doubt about Courtoreille’s guilt with respect to three of the four charges he faces. As he freely admitted to the possession of crack cocaine, I must find him guilty of Count 3, as charged. [ 55 ] Turning to Lerat’s testimony, his evidence was similar to Courtoreille’s in that it was also exculpatory and consistent with the Crown’s evidence. That, however, was where the similarity ended. Overall, I found Lerat’s evidence highly questionable. His answers to questions asked of him, particularly in cross-examination, were rarely straightforward.

His memory of relevant events was selective, at best. Except for his denial of any knowledge about the methamphetamine and hydromorphone and his insistence that the stop at the Avenue N location was his friend’s idea, Lerat seemed uncertain about other important details – details a truthful accused would be expected to remember. [ 56 ] I found it particularly significant that Lerat’s direct examination evidence palpably differed from the voluntary statement he admitted giving to police shortly after his arrest.

Moreover, I found it notable that he could neither explain the inconsistency nor deny the truth of what he said in his statement. It is no less notable that, when Lerat finally seemed to accept that his police statement was probably true, he offered no reason or purpose for his pre-arranged meeting with Courtoreille. As far as Lerat’s evidence was concerned, it was a pre-arranged meeting, at 4:00 AM on a cold winter morning, that had no purpose or reason to take place. [ 57 ] In sum, I reject Lerat’s exculpatory evidence as I find it neither reliable nor credible.

The rejection of Lerat’s exculpatory evidence then obliges me to assess the trial evidence that I believe and decide whether it persuades me, beyond a reasonable doubt of Lerat’s guilt. [ 58 ] Aside from the Crown evidence, a significant part of the trial evidence came from Courtoreille, the co-accused. Unlike my assessment of the extent to which that testimony could exculpate or absolve the co-accused who gave it, I must now assess this testimony through a different lens.

Mindful of the Oliver caution, I must approach Courtoreille’s testimony with care and assess the likelihood that his testimony falsely implicates Lerat. [ 59 ] I have already commented on the believability of Courtoreille’s testimony and its capacity to raise a reasonable doubt of his guilt for Counts 1, 2 and 4. As I made these comments, I must say that I held something back on my true perspective of it. Not only do I find Courtoreille’s evidence plausible and sufficiently believable to raise a reasonable doubt about his guilt of Counts 1, 2 and 4, I can confidently say that I believe his testimony.

In saying this, I have borne in mind the Oliver caution. Even so, and for all the reasons stated earlier, I find that the clear and straightforward direction of Courtoreille’s testimony overcame any concern implicitly recognized in that caution. [ 60 ] Moreover, I find that, to a minor extent, Courtoreille’s evidence was confirmed by Lerat’s reluctant admission that the subject meeting between the two men was pre-arranged.

While this admission neither fully confirms the implicating nature of Courtoreille’s testimony nor addresses the meeting’s purpose, it adds credibility to it by dispelling Lerat’s initial testimony that the meeting arose merely by happenstance. [ 61 ] Accordingly, and taking into account all the trial evidence that I believe, including the testimony of Courtoreille, I am satisfied, beyond a reasonable doubt, that Lerat possessed both the methamphetamine and hydromorphone and possessed the former for the purpose of trafficking.

Conclusion [ 62 ] In the result, and with respect to the charges facing Travis Lerat, the Court finds him guilty of Counts 1 and 2, and not guilty of Count 3, as described in the amended indictment. [ 63 ] With respect to the charges facing Steven Arthur Courtoreille, the Court finds him guilty of Count 3, and not guilty of Counts 1, 2 and 4, as described in the amended indictment. J. R.W. ELSON