R. v. Toope, 2016 NSCA 32

Nova Scotia Court of Appeal Citation: R. v. Toope , 2016 NSCA 32 Date: 20160427 Docket: CAC 439325 Registry: Halifax Between: Jared Keith Toope Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Justice Hamilton Appeal Heard: January 19, 2016, in Halifax, Nova Scotia Subject: Criminal Law; Confessions; Unreasonable verdict

Summary: The appellant appeals his convictions for trafficking in hydromorphone pills and production of marijuana. His cellphone showed evidence of trafficking. The question was who authored those messages. Seven marijuana plants were found beside the garage of the home where he lived with his parents. Issues:

(1) Did the judge err in finding the appellant’s confessions to the police were voluntary?

(2) Did the judge err by misunderstanding the essential elements of the offence of production?

(3) Were the verdicts unreasonable or not supported by the evidence pursuant to s. 686(1) (a)(

i) of the Criminal Code ?

(4) Did the judge err in shifting the burden of proof to the defence? Result: Appeal dismissed. The judge did not err in finding the appellant’s confessions were voluntary, that the appellant was not coerced or induced by the police to confess. The issue of production was moot. The judge made no error in his findings of credibility or his treatment of the evidence, his verdicts were reasonable and supported by the evidence. The judge did not shift the burden of proof to the defence. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet.

The full court judgment consists of 16 pages. Nova Scotia Court of Appeal Citation: R. v. Toope , 2016 NSCA 32 Date: 20160427 Docket: CAC 439325 Registry: Halifax Between: Jared Keith Toope Appellant v. Her Majesty the Queen Respondent

Judges: Beveridge, Hamilton, Van den Eynden, JJ.A. Appeal Heard: January 19, 2016, in Halifax, Nova Scotia Held: Appeal dismissed, per reasons for judgment of Hamilton, J.A.; Beveridge and Van den Eynden, JJ.A. concurring Counsel: Michael K. Power, Q.C., for the appellant Rachel Furey, for the respondent Reasons for judgment: [ 1 ] The appellant appeals his convictions for possession of hydromorphone pills for the purpose of trafficking, production of marijuana and breach of his Probation Order. He argues Lenehan J., of the Nova Scotia Provincial Court, erred in finding his confessions were voluntary.

If we agree the judge erred in finding his confessions were voluntary, the appellant also argues the judge erred by misunderstanding the essential elements of the offence of production. The appellant also argues that the verdicts are unreasonable or not supported by the evidence and that the judge erred by shifting the burden of proof to the defence. [ 2 ] The appellant abandoned his sentence appeal at the hearing before us. [ 3 ] I would dismiss the appeal for the reasons that follow.

Background [ 4 ] On June 5, 2013, the South Shore Integrated Street Crime Enforcement Unit executed a search warrant at the appellant’s home, where he lived with his parents. The judge found that the appellant was arrested shortly after 11:00 a.m., outside his home. A cellphone, $1,000 cash, mostly of $20 denominations, and a marijuana joint were found on the appellant at that time. [ 5 ] The appellant was taken to the police station and the police then commenced their search of the residence.

They found in the appellant’s bedroom 97 orange hydromorphone 12 mg pills, loose marijuana seeds, $55 cash, 110 unused small ziplock baggies, drug paraphernalia, a handwritten note that the expert witness testified was a drug stock list with prices, a scale with marijuana residue, an imitation metal handgun, handwritten notes on a green notepad and a coffee grinder with marijuana residue. [ 6 ] The judge found that after conducting their search of the interior of the house, the police searched outside and, at approximately 12:15 p.m., seized seven marijuana plants, approximately 3-4 inches tall growing in plastic cups, located behind the garage. [ 7 ] At 2:28 p.m., the police began questioning the appellant at the police station.

The interview lasted just over an hour and was videotaped. During the interview, the appellant admitted ownership of the marijuana plants and the pills, but said that the pills were for his personal use. [ 8 ] Data (texts, instant messages and web history) from the appellant’s cellphone was extracted and entered as evidence. The phone had almost 6000 entries, over 2000 of which were text messages from late 2012 to the day of the search in June 2013. [ 9 ] The appellant’s then sometimes girlfriend, Damara Peterson, was subpoenaed to testify by the defence.

She gave evidence that she was addicted to hydromorphone pills, did not live with the appellant in the months prior to his arrest and had no involvement with the pills or plants. She was not asked if she authored any texts or instant messages originating from the appellant’s cellphone. [ 10 ] The appellant testified that: Ms.

Peterson lived with him from March 2013 to the evening before he was arrested; she was addicted to hydromorphone pills; the pills, plants and seeds were hers; she had access to his cellphone which he left at home when he attended school; she was the author of the messages dealing drugs and she set him up for the search and seizure. He gave evidence that he was not using pills at the time of his arrest. His mother supported his testimony. The Trial Judge’s Decision [ 11 ] The judge’s thorough 45 page decision is not reported.

In dealing with the voir dire on the voluntariness of the appellant’s confessions, he reviewed the testimony of the Crown witnesses, the appellant and his mother.

He considered the appellant’s arguments that the confessions were not voluntary because there was coercion and inducement by the police. [ 12 ] The judge found: there was no oppression, threats or promises; the appellant had an operating mind; and, considering the entire context of the interview, the appellant’s confessions were voluntary. [ 13 ] The judge accepted the evidence of the Crown’s expert witness, that possession of 97 hydromorphone pills without a prescription indicated they were not for personal use and that the words used in the data taken from the appellant’s cellphone indicated the negotiation of drug transactions for the type of pill found in the appellant’s bedroom.

[14] The judge also found that the texts negotiating drug transactions directed purchasers to pick up 12 mg hydromorphone pillsfrom the appellant’s home and stated that the only real issue to be determined was the identification of the person who authored thedrug-related messages on the appellant’s cellphone. [15] Recognizing that the rule of reasonable doubt applies to the issue of credibility, the judge referred to the test in R. v. W.(D.), (SCC), [1991] 1 SCR 742.

He stated that even if he accepted the appellant’s testimony he would find him guilty ofsimple possession of the pills, because the appellant testified that he knew the pills were in his bedroom and, being in his bedroom, hehad control over them. [16] The judge then indicated that he did not accept the appellant’s testimony, nor that of his mother. He did accept the evidence ofMs. Peterson, that she was addicted to hydromorphone pills, did not live with the appellant in the months prior to his arrest and that shehad no involvement with the pills or plants.

He rejected the appellant’s contradictory testimony and found that Ms.

Peterson did not havefree access to his cellphone as he described and that she was not the author of the drug-related texts. [17] Noting that the Crown had the burden to prove that the appellant was the author of the drug-related texts, he found the appellantwas the author of those texts because the texts directed purchasers to pick up pills at his home and because the word “aight”, meaning“all right”, was used in his personal messages as well as in the drug-related messages originating from his phone, and not in any messagesfrom others on his phone. [18] He found the appellant guilty on all three charges.

Issues [19] The appellant lists numerous issues in his Notice of Appeal and factum. I am satisfied the issues to be determined are: (

a) Did the judge err in finding the appellant’s confessions to the police were voluntary? (

b) Did the judge err by misunderstanding the essential elements of the offence of production? (

c) Were the verdicts unreasonable or not supported by the evidence pursuant to s. 686(1)(a)(

i) of the Criminal Code? (

d) Did the judge err in shifting the burden of proof to the defence? Standard of Review [20] Questions of law are reviewed for correctness. Factual findings are reviewed for palpable and overriding error. The judge’sapplication of the law to the facts is reviewed as a question of fact unless there is extricable legal error; Housen v. Nikolaisen, 2002 SCC235; R. v. C.J., 2011 NSCA 77, para 19.

Analysis Did the judge err in finding the appellant’s confessions to the police were voluntary? [21] The appellant does not suggest that he was improperly advised of his rights in connection with his statement to the policefollowing his arrest. His argument before the judge and this Court is that he was coerced and induced by the police into confessing thathe owned the plants and the pills, and that the pills were for his personal use. [22] In their written submissions to the judge on the voluntariness of the confessions, both counsel referred to the seminal case of R.v. Oickle, [2000] 2 SCC 3.

This decision is summarized in R. v. Waskewitch, [2000] S.J. No. 838 (Sask QB): [14] Recently the Supreme Court of Canada re-stated the law in Canada as it relates to the voluntariness of confessions. (See: R. v.Oickle, 2000 SCC 38 , 147 C.C.C. (3d) 321 (S.C.C.)) Iacobucci J., writing for the majority, stated that a trial judge should strainto understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession’svoluntariness. The relevant factors to be considered include threats or promises, oppression, the operating mind requirement and policetrickery.

An important consideration is whether the interrogators made a quid pro quo offer, either in the form of a threat or a promise.Oppressive conditions include depriving a detainee of food, clothing, water, sleep, medical attention, access to counsel, was confrontedwith fabricated evidence or was questioned aggressively for a prolonged period of time. The operating mind doctrine requires that theaccused knew what he was saying and that it might be used to his detriment. Police trickery, while going to voluntariness is looked atmore for the purpose of maintaining the integrity of the justice system.

When the methods employed by the police are so appalling as toshock the community, the statement should be excluded as being involuntary. [23] The nature of the legal test to be applied to determine if a confession is voluntary is a question of law, but applying it is aquestion of fact, or of mixed law and fact; R. v. Oickle. [24] The judge did not specifically refer to Oickle in his reasons, but they indicate he correctly followed the law outlined in it whenhe determined that the appellant’s confessions were voluntary. [25] The judge correctly outlined the appellant’s argument: Mr.

Toope in his evidence stated that his comments were not freely and voluntarily made. He was anxious, he felt pressured andintimidated by an assertion made by police that his parents might be charged with producing Marijuana if he did not accept responsibilityfor the plants found in the back of his parents’ property. Mr. Toope also said he believed his release from custody was connected to whether he cooperated with Corporal Wilcox. In support ofthese arguments Mr. Toope’s Mother testified that she was present in her yard when she heard police suggest to her son that … if he did

not take responsibility for the plants found she and her husband could be charged with production. Mr. Toope later corroborated that evidence when he took the stand. Mr. Toope has argued that any statement of admission by him was obtained as a result of coercion and implied inducement by Corporal Wilcox. The coercion once again was said to be the threat of charges being laid against Mr. Toope’s parents for production of the Marijuana plants if Mr. Toope did not take responsibility for those plants. The implied inducement was indicated to be the expectation that Mr.

Toope would receive his charge papers and be released once he gave an admission to Corporal Wilcox. [ 26 ] Considering the factors set out in Oickle , the judge specifically found that the process followed was not oppressive and that there were no threats or promises made by the police: The video of that interview process showed anything but an oppressive exercise. The demeanour of Corporal Wilcox was professional and respectful.

There were no threats or promises. [Emphasis added] [ 27 ] The judge found that the appellant had an operating mind and that, in the context of the whole interview, the police did not induce the appellant by drawing a connection between the success of the interview and the appellant’s release from custody: The officer was aware of Mr. Toope’s anxiety and offered a number of times to get water for Mr. Toope if he wanted any. Corporal Wilcox avoided drawing any connection between the success of the interview and possible release from custody, despite repeated efforts by Mr. Toope to do so.

Corporal Wilcox was aware that Mr. Toope was concerned that a finding of guilt in this matter could hurt his efforts to educate himself and gain employment in addictions counselling. But the police officer was careful not to draw any connection to the success of the interview with favourable treatment by the police authorities. Any possible connection was sought by Mr. Toope but not agreed to or encouraged by Corporal Wilcox. … Mr. Toope’s testimony on the Voir Dire was entirely self-serving and distorted, although supported in part by Ms.

Toope it was not supported by the video of the interview or the credible and consistent testimonies of the police, of the three police officers whose evidence corroborated each other. I did not find Ms. Toope’s evidence to be credible on the discussion about Marijuana plant ownership. There was nothing in the exchanges between Mr. Toope and Corporal Wilcox that would have or could have caused Mr. Toope to believe that he had no choice but to say whatever Corporal Wilcox wanted Mr. Toope to say. Nothing in the procedure followed, the words spoken or the actions taken by the police interfered with Mr.

Toope’s operating mind and the decisions he made to speak or remain silent. I am satisfied when the context of the interview of Mr. Toope is examined in its entirety that Corporal Wilcox did nothing to improperly induce Mr. Toope to make any admissions against his own interests. [Emphasis added] [ 28 ] The judge also found that the appellant was not coerced into making any confession. The appellant’s argument was that the coercion took place in his driveway at the time of his arrest, with the police saying that if he didn’t admit ownership of the plants, his parents would be charged.

The judge was satisfied there was no such conversation because the plants were not found by the police until after the appellant was taken to the police station: Detective Constable McPhee and Corporal Wilcox testified that Mr. Toope was arrested shortly after 11:00 am on June 5 th , 2013. He was shortly thereafter transported by Constable Pelly to Cookville Detachment of the RCMP and provided the opportunity to consult counsel. Corporal Wilcox denied that Mr. Toope was walked toward the rear of his parents’ property after the arrest.

Corporal Wilcox denied that he knew anything about Marijuana plants until shortly after noon on the 5 th of June. Constable Morrison confirmed that he was the officer who located those plants at approximately twelve-fifteen on that day. The plants were not found until after the interior of the house had been searched and well after Mr. Toope had been arrested and removed from the area. [Emphasis added] [ 29 ] I am satisfied the judge applied the correct legal test in determining that the appellant’s confessions were voluntary.

In reaching his conclusion, he considered the context of the interview in its entirety, as Oickle directs. He specifically referred to the factors Oickle directs be considered, and that were relevant to the case before him.

He made no palpable and overriding error in finding the plants were not found until after the appellant was taken to the police station and consequently that the appellant could not have been coerced by the police telling him his parents would be charged if he did not admit to owning the plants. [ 30 ] A review of the video of the interview confirms that he made no palpable and overriding error in finding that the police did not

induce the appellant to confess. He correctly found that during the interview the police did not suggest he would be released if headmitted ownership of the pills. [31] I would dismiss this ground of appeal. Did the judge err by misunderstanding the essential elements of the production offence? [32] At the hearing of this appeal, appellant’s counsel agreed it was not necessary for us to consider this issue if we are satisfied theappellant’s confessions were voluntary. As indicated in paragraph 29 above, I am satisfied the appellant’s confessions were voluntary.

Were the verdicts unreasonable or not supported by the evidence? [33] The appellant argues the verdicts are unreasonable or cannot be supported by the evidence, focussing on the judge’sassessments of credibility and treatment of the evidence. [34] In R. v. Bou-Daher, 2015 NSCA 97, Fichaud, JA, recently referred to the principles this Court is to apply when reviewing aconviction to determine if it is unreasonable or unsupported by the evidence: [30] R. v.

R.P., 2012 SCC 22 , [2012] 1 S.C.R. 746, Justice Deschamps for the majority discussed unreasonableness and theappeal court’s review of the evidence: [9] To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v. Yebes, (SCC),[1987] 2 S.C.R. 168, and R. v. Biniaris, 2000 SCC 15, at para. 36, determine whether the verdict is one that a properly instructed jury ora judge could reasonably have rendered.

The appellate court may also find a verdict unreasonable if the trial judge has drawn aninference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trial judge insupport of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejectedby the trial judge (R. v. Sinclair, 2011 SCC 40, at paras. 4, 16 and 19-21; R. v. Beaudry, 2007 SCC 5). [10] Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact.

A court ofappeal that reviews a trial court’s assessments of credibility in order to determine, for example, whether the verdict is reasonable cannotinterfere with those assessments unless it is established that they “cannot be supported on any reasonable view of the evidence” (R. v.Burke, (SCC), [1996] 1 S.C.R. 474, at para. 7). [35] I will first deal with the appellant’s argument concerning credibility. [36] Whether a witness is credible is a question of fact.

This Court is not to interfere with the judge’s assessment of credibility unlesshis findings “cannot be supported on any reasonable view of the evidence.” [37] The judge recognized the role of credibility in this case and much of his decision explains his credibility findings. He outlinedhis approach to credibility: …The second stage of analysis was to compare the testimony of each witness with all others and the physical evidence presented asexhibits on the trial. The purpose was to determine whether there was credible evidence from each individual witness.

The examination of the evidence wasnot a popularity contest. It was not an exercise of preferring one person’s testimony over another’s. The process involved a comparison of testimonies among all others for consistencies and inconsistencies. It also included scrutinizingexhibits in comparison with testimonies. There was of course an examination of individual testimony for internal consistency. The demeanour of the witnesses was considered but not determinative of credibility. The Crown witnesses were experienced policeofficers or experts who had testified in court previously.

They appeared comfortable while in the witness box. The Defence witnesses were ordinary citizens who had limited if any prior exposure to testifying in court. They appeared much lesscomfortable. Mr. Toope was particularly anxious but as we learned this was typical for him in public forums. Bearing these differences in mind it was important that the assessment of testimony focus on examining what each person said for itsconsistency or harmony with the preponderance of probabilities which would be reasonably expected given the surroundingcircumstances at the time or prior to the allegations.

That was the examination conducted in this case. I was also mindful that I could accept all, part or none of any witness’ testimony asbeing credible and/or trustworthy…. [38] The judge reviewed Ms. Peterson’s evidence in depth and some of the appellant’s testimony. He explained why he accepted herevidence: …The Defence chose to call Damara Peterson as part of the Defence case. She was compelled to testify under subpoena and then by Warrant when she failed to attend court as directed. It was clear to the Courtthat Ms. Peterson was not aware of what purpose she was to play in the Defence case.

She was presented with a number of Exhibits including photos and screen shots of text messages and text message printouts. Ms.Peterson was questioned about her relationship with Mr. Toope and the volatility of that.

Ms. Peterson was also shown several of the exhibits seized from Mr. Toope’s bedroom including the bag of orange Hydromorphone pills and the photos of the contraband Cannabis Marijuana plants. Ms. Peterson admitted familiarity with the type of pills and the type of plants but did not acknowledge any involvement with the actual exhibits. Ms. Peterson testified that she had been addicted to prescription pills like Hydromorphone and Dilaudid and struggled with that addiction. At the time of testifying she reported being clean except for the Methadone she was receiving in treatment.

It became clear to the Court during Direct Examination that Ms. Peterson was being presented by the Defence as the scapegoat in this matter. It evolved that Defence were attempting to set a foundation for the Court to view Ms. Peterson as vengeful, manipulative and conniving. It became absolutely clear the purpose for her testimony when Mr. Toope testified after Ms. Peterson. The theory offered through Mr. Toope’s evidence … was that Ms. Peterson set him up. She used his cell phone to make drug deals without his knowledge. She left Hydromorphone in his room when she left on June 4 th , 2013 following an argument.

She never contacted him afterward except in relation to her attending court when a subpoena was served on her. Mr. Toope suspected that Ms. Peterson was the source that the police relied upon to obtain their Search Warrant. None of that theory was ever put to Ms. Peterson by counsel. She was never asked and it was never suggested to her that she was responsible for the text messages related to the possible trafficking of Hydromorphone. And that she was engaged in the trafficking from the Toope residence. It was never put to her by counsel that the orange pills located in the wooden box in Mr.

Toope’s bedroom were hers. She was not asked by counsel if the Marijuana plants found in the Toope yard were brought there by her. In Cross-examination by Crown counsel she denied any involvement with the pills exhibited or the plants found. This Court finds it impossible to believe somebody so addicted to pills as Ms.

Peterson described herself at the time and as the text messages and instant messages exchange would lead one to believe finds it difficult that she would ever leave behind her supply, especially when one reviews her texts and instant messages about being so desperate to source even a couple of pills at a time. Furthermore if she was dealing she would never leave behind what works out to somewheres between two thousand and twenty-four hundred dollars street value of 12 milligram Hydromorphone pills, no matter how unpleasant the argument was on June 4 th , she would never leave that behind.

It would have been pills first, clothes second. Of that I am certain. The thing is Ms. Peterson did not come across in the witness box as either conniving or controlling as stated improperly by Defence counsel in his written summations. There was nothing in her testimony that displayed any vindictiveness on her part toward Mr. Toope. Although she admitted trying to get Mr. Toope to help her score some pills she denied that he ever did either sell or give her any illegal drug. If she was trying to set him up, that was her opportunity then and there on the stand to do some real serious damage.

And she did not do so. The impression actually on the Court was that Ms. Peterson was not prepared to say anything against Mr. Toope to incriminate him. She was not prepared to say or suggest that Mr. Toope had trafficked pills. Ms. Peterson was a Defence witness. She testified with the protection of

Section 13 of the Canadian Charter of Rights and Freedoms and

Section 5 of the Canada Evidence Act . Protection against the use of self-incriminating evidence. If she was to be made the scapegoat by Defence she had the right to respond to such allegations. And would have had that opportunity had she testified after Mr. Toope made the accusations. But that is not how Defence chose to present its case. Rather than present the Defence theory through the accused and attempt to corroborate that theory with subsequent testimony and evidence Mr. Toope elected to listen to what everybody else said and then try to pull it all together through his testimony.

Almost all of which by the way when it related to Ms. Peterson and her relationships and what she did was hearsay. Overall Ms. Peterson’s testimony was far more logically sound than either the testimony of Mr. Toope or his mother. [ 39 ] The judge found support for Ms. Peterson’s evidence, that she did not live with the appellant in the months prior to his arrest, in the content of certain text messages: But at no time does it appear that Ms. Peterson ever moved into the Toope residence. The instant message exchanges between Mr. Toope and Ms.

Peterson from March 16 th to the end of May, 2013 are inconsistent with the notion that they were spending most of their days together. There are clear indications that they were only getting together on occasion. Ms. Peterson spent two weeks in rehab. She had sex with Mr. Toope’s cousin apparently. They were trying to arrange drives to see each other from time to time. In late May it would seem that Ryan had entered the picture and Ms. Peterson was attempting to establish a relationship with him. I completely reject the evidence of both Jared Toope and Jeanette Toope [mother]with regards to Ms.

Peterson residing with them just prior to June of 2013. [ 40 ] The judge also explained that he rejected the evidence of the appellant’s mother because she lied about the police coercing her son in the driveway at the time of arrest, tailored her testimony to her son’s – giving rise to the possibility of collusion – and her dislike of Ms. Peterson due to Ms. Peterson’s earlier false allegations of domestic abuse against the appellant.

[ 41 ] As set out previously in the quotes in paragraphs 27 and 28, the judge rejected the appellant’s testimony that his confessions were coerced and induced. [ 42 ] As indicated in paragraph 16, the judge rejected the appellant’s testimony that Ms. Peterson was the author of the drug-related text messages. This was based in part on the contradictions between his evidence on direct and cross-examination with respect to whether he took his cellphone to school with him: Unfortunately, I did not find Mr. Toope to be a credible or trustworthy witness.

Assertions he made in his Direct testimony did not withstand scrutiny in Cross-examination such that he did not take his cell phone to school with him. It became clear in Cross-examination that Mr. Toope did often have his cell phone with him when he was at school. … I completely reject Jared Toope’s explanation for the test messages about drug transactions being authored by Ms. Peterson. She did not have the access to Mr. Toope’s iPhone that he described… [ 43 ] Having reviewed the whole of the record, I am satisfied the judge’s findings of credibility can be supported on a reasonable view of the evidence.

The evidence supports his finding that the appellant and his mother lied when they said the police coerced the appellant in his yard at the time of his arrest by saying they would charge his parents if he didn’t admit to ownership of the plants. The video of his interview at the police station supports the judge’s finding that his confessions were not induced. The evidence, including the content of the messages on his cellphone, supports his findings that Ms. Peterson did not live with the appellant in the months prior to his arrest, and did not have the access to his cellphone that he described.

The appellant’s evidence concerning his ownership of the plants and pills changed from his interview to trial. [ 44 ] The judge made no error in his determinations of credibility. [ 45 ] I will now deal with the judge’s treatment of the evidence. [ 46 ] The appellant argues that the verdict of possession for the purpose of trafficking is unreasonable because the judge erred in his treatment of the evidence.

He says the judge focussed too much on the text messages, the pills being in his bedroom and his having no prescription for them, to the exclusion of other evidence capable of raising a reasonable doubt. [ 47 ] He points to the following quote in support of his claim of uneven consideration of the evidence: … While there are other pieces of evidence that could assist in finding the Hydromorphone was possessed by Mr. Toope for the purpose of trafficking, they are not needed in these circumstances.

The presence of the digital scale, notes, cash and cutlery with residue would be equally consistent with personal use or sharing. They were also consistent with past usage by Mr. Toope. But those text exchanges, the presence of the drug, the lack of any prescription is enough. I’m satisfied beyond a reasonable doubt that the Crown has met its burden and I find Mr. Jared Keith Toope guilty of the first count on the Information. [ 48 ] It is entirely appropriate that the judge, after considering all of the evidence, pointed to the evidence he found most telling.

These words do not indicate he failed to consider the totality of the evidence in reaching his verdict. [ 49 ] I am not satisfied the judge erred in his treatment of the evidence. He specifically said that he considered each of the 52 exhibits, listened carefully to each witness, reviewed the transcripts of the testimony and the appellant’s interview at the police station and re-listened to some of the testimony. His detailed review of a great deal of the evidence in his reasons bears this out. [ 50 ] A trial judge is not required to deal with every piece of evidence in his reasons.

Here the judge indicated he did not intend to do so: It would take an entire day of court time to comment on all of the evidence presented at this trial. There’s no intention here of doing that. As indicated before it was all thoroughly examined and considered. [ 51 ] The appellant has not satisfied me that the verdict is unreasonable or unsupported by the evidence. With the credibility findings he properly made and his appropriate treatment of the evidence, the verdicts are ones that a properly instructed jury or a judge could reasonably have rendered.

No fact found or inference drawn is plainly contradicted by the evidence relied on or is incompatible with evidence that has not otherwise been contradicted or rejected. [ 52 ] I would dismiss this ground of appeal. Did the judge err in shifting the burden of proof to the defence? [ 53 ] The appellant points to the judge’s use of the words “impossible to believe” in the following excerpt to support his argument that the judge improperly placed the burden on him to prove Ms. Peterson’s possession of the pills: This Court finds it impossible to believe somebody so addicted to pills as Ms.

Peterson described herself at the time and as the text messages and instant messages exchange would lead one to believe finds it difficult that she would ever leave behind her supply, especially when one reviews her texts and instant messages about being so desperate to source even a couple of pills at a time. Furthermore if she was dealing she would never leave behind what works out to somewheres between two thousand and twenty-four hundred dollars street value of 12 milligram Hydromorphone pills, no matter how unpleasant the argument was on June 4 th , she would

never leave that behind. It would have been pills first, clothes second. Of that I am certain. The thing is Ms. Peterson did not come across in the witness box as either conniving or controlling as stated improperly by Defence counsel in his written summations. [Emphasis added] [ 54 ] The judge had earlier reminded himself that the burden of proof was always on the Crown: Mr. Toope has had the benefit of the presumption of innocence throughout these proceedings. The Crown has borne the responsibility of rebutting this presumption by presenting evidence to prove allegations beyond a reasonable doubt.

That burden on the Crown has applied to each essential element of the individual charges before this court. At no time has the onus shifted to Mr. Toope…. [ 55 ] In addition, the judge applied the rules set out in W.(D.) : … Mr. Toope testified that he was not involved in those text conversations. If he was to be believed, then he was not aware that Hydromorphone pills in his room were being trafficked and he would not be guilty of possession for the purpose. Even if he was not believed on that issue but his testimony and the rest of the evidence left this court with the possibility that somebody other than Mr.

Toope was using his phone and his location to make those drug deals then Mr. Toope would have to be found not guilty of possession for the purpose. [ 56 ] The judge rejected the appellant’s evidence that Ms. Peterson lived with him and had access to his cellphone when he was in school and found that Ms. Peterson did not author the drug-related texts.

The judge expressly recognized the burden was still on the Crown to prove beyond a reasonable doubt that the appellant was the author of the drug-related texts: I completely reject Jared Toope’s explanation for the text messages about drug transactions being authored by Ms. Peterson. She did not have the access to Mr. Toope’s iPhone that he described. Having found that it is still the responsibility of the Crown to prove … beyond a reasonable doubt that Mr.

Toope was the person using his iPhone to negotiate purchases or trades for Hydromorphone. [ 57 ] I am not satisfied that the words used by the judge – the Court finds it impossible to believe – indicate he reversed the onus of proof. In using these words, he is simply explaining some of his reasons for rejecting the defence theory that the pills belonged to Ms. Peterson, rather than the appellant. His reasons, read as a whole, strongly indicate he applied the proper burden. [ 58 ] I would dismiss this ground of appeal. Disposition [ 59 ] I would dismiss the appeal. Hamilton, J.A. Concurred in: Beveridge, J.A.

Van den Eynden, J.A.