R. v. Day, 2010 ONSC 6970

CITATION : R. v. Day, 2010 ONSC 6970 COURT FILE NO .:1-598613 DATE: 20101215 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN ) ) C. Shirtliff-Hinds , for the Crown ) - v. - ) ) ) BRENDAN DAY ) ) ) J. Randall Barrs, for the Defendant, Christopher Day ) ) HEARD: December 6-9, 2010 THORBURN J. I. The Charges [ 1 ] Mr. Day is charged with the following seven offences all of which allegedly took place on April 10, 2008:

a) trafficking cocaine; (Count #11)

b) possession of proceeds some or all of which were obtained as a result of the commission of an offence punishable by indictment; (Count #12)

c) possession of cocaine for the purpose of trafficking; (Count # 16)

d) possession of psilocybin (otherwise known as magic mushrooms) for the purpose of trafficking; (Count #17 ) and

e) three counts of possession of marijuana for the purposes of trafficking. (Counts #18 through 20) These are offences contrary to sections 5(1) and 5(2) of the Controlled Drugs and Substances Act . [ 2 ] At the commencement of trial, Mr. Day entered a plea of not guilty to all counts and elected to proceed by way of judge alone. [ 3 ] During the course of the trial, through his counsel and his own testimony, Mr. Day conceded that on April 10 th , 2008 he was in possession of: a) 3905.43 grams of marijuana for the purpose of trafficking; b) 27.37 grams of cocaine; and c) 385.64 grams of psilocybin.

Possession of marijuana for the purpose of trafficking is an indictable offence. As such, Mr. Day concedes his guilt on counts 12, 18, 19 and 20. [ 4 ] He denies that possession of the cocaine or psilocybin was for the purpose of trafficking. He claims therefore that he is not guilty of counts 11, 16 and 17. II. The Issues [ 5 ] The issues to be addressed in my reasons are,

a) Did Mr. Day traffic cocaine on April 10, 2008?

b) Was Mr. Day in possession of cocaine for the purposes of trafficking on April 10, 2008? and

c) Was Mr. Day in possession of psilocybin (otherwise known as magic mushrooms) for the purposes of trafficking on April 10, 2008? III. The Evidence A. Evidence Adduced by the Crown Background Evidence [ 6 ] An undercover police investigation was begun to determine the involvement of Daniele Regazzi in drug trafficking. A secondary target was also included in the investigation. The secondary target was located at 2515 Lakeshore boulevard on the third floor. At the time, Mr. Day lived at 2515 Lakeshore Boulevard, apartment #26.

Apartment #26 is on the third floor. [ 7 ] Officer Leduc was the undercover officer ordered to purchase drugs from Mr. Regazzi. The money used to pay for the drugs was police buy money. The serial numbers on the bills are recorded so that they may later be traced. [ 8 ] Officer Leduc purchased crack cocaine and then cocaine from Mr. Regazzi five times before April 10, 2008, in ever increasing amounts. The first purchase was for 1.2 grams of crack cocaine for $100. By the time of the fifth purchase on March 27 th , Officer Leduc purchased 28 grams of cocaine for $1,100.

Evidence Regarding the Day in Question [ 9 ] On April 10 th , Officer Leduc asked to buy one ounce of cocaine from Mr. Regazzi. Mr. Regazzi said he had to get it from his supplier. Officer Leduc and Mr. Regazzi drove in separate vehicles to 2515 Lakeshore Boulevard West. Mr. Regazzi entered 2515 Lakeshore Boulevard West apartment #26 and when he returned, he gave Officer Leduc one ounce of cocaine for which he paid $1,100. [ 10 ] Later that evening, several officers executed a search warrant at 2515 Lakeshore Boulevard West, apartment #26. Brendan Day, Sean Nelson and Holly Brown were in Mr.

Day’s apartment. [ 11 ] Mr. Day had $2,090 on his person. Of that sum, $1,050 was police buy money that had been paid by Officer Leduc to Mr.

Regazzi to pay for the cocaine on April 10, 2008. [ 12 ] Upon searching the apartment, police found:

a) a garbage bag filled with 28 Ziploc bags containing marijuana in a cupboard. The total weight of the 28 packages of marijuana was 3905.43 grams, b) 27.37 grams of cocaine in a Ziploc bag on the living room coffee table, c) 385.64 grams of psilocybin, d) $1,130 in a tin can,

e) two cellular telephones. (The telephone number of one of them was the same as the number for the secondary target given by Officer Leduc),

f) two small notebooks filled with numbers and names,

g) two scales to weigh quantities as small as 1 gram, located in the same drawer as some of the marijuana, and

h) a money counter. [ 13 ] Also on April 10, 2008, a search warrant was executed at Mr. Regazzi’s residence. Police discovered 146.72 grams of marijuana, 30.34 grams of powder cocaine, and 0.61 grams of ecstasy on Mr. Regazzi’s person, and a further 94.11 grams of marijuana and 66 pills of oxycocet in Mr. Regazzi’s apartment.

Expert Evidence Adduced by the Crown [ 14 ] Officer Ross was proferred by the Crown as an expert to assist in determining the street and bulk values of marijuana, cocaine and psilocybin and to provide his opinion as to what quantities can constitute trafficking. [ 15 ] Officer Ross has extensive experience as an undercover officer purchasing marijuana and cocaine. He has purchased psilocybin on two prior occasions.

He has also taken many courses, given lectures and testified on several prior occasions at the Superior Court of Justice and the Ontario Court of Justice on the subject of trafficking marijuana and cocaine. [ 16 ] The Defence did not challenge Officer Ross’ expertise in the area of trafficking marijuana and cocaine. Moreover, it is agreed that psilocybin is a rare commodity on the market.

As such, Officer Ross has more limited experience purchasing psilocybin. [ 17 ] I do not accept the submission made by Defence counsel that Officer Ross was biased by virtue of his being a police officer or by his awareness of the identity of some of the officers involved in this case. Officer Ross testified that he did not discuss the case with anyone and did not review any of the officers’ notes. [ 18 ] I allowed Officer Ross to give expert testimony on the issue of trafficking marijuana, cocaine and psilocybin.

His more limited expertise in trafficking psilocybin goes to the weight to be attributed to his testimony on that subject. (I note that Defence counsel took no issue when Officer Ross provided similar expert testimony at the Preliminary Inquiry and specifically consented to this expert testimony at the pre-trial.) [ 19 ] Officer Ross opined that the street price for one gram of marijuana is typically $10-$20 per gram and the bulk value is approximately $5,000 to $6,000 per kilogram.

He opined that the street price for one gram of cocaine is approximately $80 to $110 per gram or approximately $900 to $1400 per ounce. He opined that the street price for one ounce of psilocybin is approximately $150 to $200 and that it would cost between $2040 and $2720 to purchase the entire 385.64 seized. [ 20 ] Officer Ross testified that the amount of all three drugs found would be exceptionally large if used for personal use.

A number of factors come into play in determining how much would be purchased for personal use, such as the amounts normally consumed by an individual and the financial ability of individual to pay for large quantities. Such quantities are often associated with trafficking. B. Defence Evidence [ 21 ] Brendan Day chose to testify. He testified that before he began trafficking marijuana, he paid his supplier $10 per gram for

marijuana. [ 22 ] He estimates that from January to April 2008, he used one gram of cocaine on each of five occasions. He paid $200 per gram of cocaine. Mr. Day said that from January through April 2008 he used 7 to 14 grams of psilocybin on each of approximately five occasions. He paid $60 to $70 for 7 grams of psilocybin. [ 23 ] Mr. Day testified that he began trafficking marijuana in or around November 2007 as he was short of money. [ 24 ] Mr. Day does not contest the quantity of drugs found in his apartment on April 10, 2010 nor does he dispute that they were in his possession.

He testified that the twenty eight bags of marijuana found in his apartment were divided into approximately one ounce bags of different types and quality. The scales belonging to him were found near the coffee table where a small quantity of marijuana was found. Mr. Day said the scales used to weigh the marijuana were unsuitable for weighing cocaine but could not explain why. [ 25 ] The plastic bag with 27.37 grams of cocaine was also on the coffee table. The money counter was found in the bedroom closet in its original packaging. [ 26 ] Mr.

Day admitted that the blue memo book was a book where he kept track of monies owed by those who purchased marijuana from him. The amounts in the book are largely under $100. There is no record that Mr. Regazzi owed $1,200 for marijuana purchased from Mr. Day. Mr. Day said he did not need to record this debt as it was so large he would not forget it. [ 27 ] Mr. Day testified that Mr. Regazzi purchased marijuana from him approximately ten times prior to March 27, 2008. On each of March 27 th and April 10 th he purchased 6 ounces of marijuana. On March 27 th Mr.

Regazzi said he did not have the money to pay $1,200 for the six ounces of marijuana. It was agreed that he would pay for it at a later date. When Mr. Regazzi returned on April 10 th , 2008 to buy another 6 ounces of marijuana, he paid $1,200 for his April 10 th purchase of marijuana but said he still did not have sufficient funds to pay for the marijuana purchased on March 27, 2008. Instead he offered Mr. Day the 27.37 grams of cocaine. [ 28 ] Mr. Day testified that on the spur of the moment he decided to take the cocaine.

He says he had no intention to sell the cocaine but thought the price was advantageous. [ 29 ] Mr. Day testified that during the execution of the search warrant and later at the station, he was punched in the ribs and stomach by the police and told he would be further assaulted if he did not cooperate. Defence counsel suggests the alleged assault by police is relevant to this proceeding as notwithstanding the pressure he was under, Mr. Day maintained that he has never been involved in trafficking cocaine or psilocybin. [ 30 ] Mr. Nelson is a long time friend of Mr. Day.

He was in the apartment on April 10 th when Mr. Regazzi came to see Mr. Day and later during execution of the search warrant. Mr. Nelson testified that he never saw Mr. Day sell cocaine. Both he and Mr. Day used cocaine a few times at parties. He said he purchased marijuana from Mr. Day from time to time. [ 31 ] Mr. Nelson testified that on April 10 th he was at Mr. Day’s apartment to watch hockey. While he was there a person matching Mr. Regazzi’s description came to the apartment. Mr. Regazzi and Mr. Day talked for a while. Mr.

Nelson was not really paying attention to the conversation as he was watching the hockey game. Mr. Day gave Mr. Regazzi the bag of marijuana and then asked about the money owed to him. Mr. Regazzi threw something at Mr. Day and Mr. Nelson assumes it was cocaine because he was charged with possession of cocaine that day. [ 32 ] Mr. Nelson remained in the living room during execution of the search warrant and did not see or hear the alleged assault on Mr. Day in the bedroom during execution of the search warrant. IV. Positions of the Parties and Analysis of the Evidence [ 33 ] The Crown takes the position that,

a) the large quantities of cocaine and psilocybin found in Mr. Day’s apartment;

b) the paraphernalia often associated with drug trafficking (such as scales and a money counter);

c) the police buy money found on Mr. Day’s person; and

d) the fact that Mr. Regazzi went to Mr. Day’s apartment to get large quantities of cocaine on two occasions and returned with the cocaine, are telltale signs that Mr. Day trafficked cocaine on April 10 th 2008 and that he was in possession of cocaine and psilocybin for the purpose of trafficking. [ 34 ] The Crown further suggests that the Defence theory that Mr. Regazzi supplied Mr. Day with cocaine is not believable as no

cocaine was found in Mr. Regazzi’s apartment. [ 35 ] The Defence position is that Mr. Day is not guilty of trafficking cocaine on April 10, 2008 because:

a) there is no direct evidence to suggest Mr. Day sold cocaine to Mr. Regazzi on April 10 th 2008;

b) Mr. Day testified that there was no such exchange;

c) Mr. Regazzi was not called as a witness; and

d) Mr. Nelson claims to have heard Mr. Day ask about money owed to him. Mr. Regazzi then threw a bag at Mr. Day which was later determined to contain cocaine. [ 36 ] The fact that Mr. Regazzi entered the apartment, left and gave Officer Leduc the cocaine does not lead to the necessary conclusion that the cocaine was sold by Mr. Day to Mr. Regazzi. The Defence suggests that throughout the history of his transactions with Officer Leduc, Mr. Regazzi went to different locations: his own apartment, a convenience store and then Mr. Day’s apartment. The Defence suggests Mr. Regazzi came to Mr.

Day’s residence to make the police think he was not a major supplier of drugs but was a minor player who was being supplied drugs by someone else. [ 37 ] The Defence suggests that Mr. Day should be found not guilty of possession of cocaine and psilocybin for the purpose of trafficking because:

a) there is no evidence the money counter was ever used as it was in the original packaging;

b) the scales were found beside the marijuana and were used to traffic marijuana only; and

c) Mr. Day was an occasional user of cocaine and psilocybin and both were purchased for personal use in bulk to save money. [ 38 ] Finally the Defence suggests that Mr. Day was a credible witness whose evidence has been consistent throughout, even during the ordeal of his arrest. V. Analysis and Conclusion The Burden of Proof [ 39 ] The Crown is required to prove beyond a reasonable doubt that Mr. Day is guilty of the offences with which he has been charged.

An accused person is presumed innocent and the burden is on the Crown to prove each of the essential elements of the offence beyond a reasonable doubt. [1] Something less than absolute certainty is required, and something more than probable guilt is required, in order to convict. [2] [ 40 ] A finding of guilt in a criminal proceeding requires proof beyond a reasonable doubt of the act, the knowledge and the intention to commit the alleged offences.

However, it is not essential that there be direct evidence as, with any issue of fact in a criminal proceeding, it may be established by circumstantial evidence. [3] The Analysis to be Performed where an Accused Testifies [ 41 ] Where the accused chooses to testify, the following analysis of the evidence must be conducted: 1) the accused must be acquitted if his exculpatory evidence is believed; 2) if his exculpatory evidence is not believed but the court is left in reasonable doubt as to his guilt, he must be acquitted; 3) even if the court is not left in doubt by the exculpatory evidence of the accused, he should only be convicted if, on the basis of the evidence accepted, there is no reasonable doubt as to his guilt. [4]

The Definition of Trafficking and Possession for the Purposes of Trafficking [ 42 ]

Section 5 of the Controlled Drugs and Substance Act

(1996) C. 19, provides as follows:

(1) No person shall traffic in a substance included in

Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance.

(2) No person shall, for the purpose of trafficking, possess a substance included in

Schedule I, II, III or IV. [ 43 ] Cocaine is a

Schedule 1 substance and psilocybin is a

Schedule III substance. [ 44 ]

Section 2 of the Controlled Drugs and Substance Act defines “traffic” to include sell ing , giving , transfer ring , or offer ing to do so. [ 45 ] In section 4(3) of the Criminal Code R.S. 1985 c. C-46, possession is defined to include anything knowingly in one’s actual possession or control. In order to establish possession for the purpose of trafficking, the Crown must establish beyond a reasonable doubt that Mr. Day had the cocaine and or the psilocybin in his possession and the reason they were in his possession was for the purposing of trafficking. Trafficking Cocaine [ 46 ] Because Mr.

Day chose to testify, I must first determine whether I believe his evidence that he did not traffic cocaine by selling it to Mr. Regazzi on April 10 th, 2008. [ 47 ] I find the following aspects of Mr. Day’s evidence to be troubling:

a) he professed to be an occasional user of small amounts of cocaine. However, 27.37 grams of cocaine was found in Mr. Day’s apartment on April 10 th , a quantity Officer Ross testified is often associated with trafficking;

b) two scales were found that could measure small quantities of drugs. Mr. Day said the scales were unsuitable for measuring cocaine but was unable to explain why;

c) a drug “debt book” was found in Mr. Day’s apartment that contained names and numbers of customers. Mr. Day says it was a list of monies owed by his marijuana customers. There was no reference to monies owed by Mr. Regazzi; d) $1,100 of the $1,200 in police buy money given by Officer Leduc to Mr. Regazzi on April 10, 2008 for the purchase of cocaine was found on Mr. Day’s person. [ 48 ] This evidence is sufficiently troubling that I am not satisfied that Mr. Day’s evidence is believable. [ 49 ] I must therefore proceed to the second stage of the analysis. I must determine whether Mr.

Day’s evidence alone leaves me with a reasonable doubt as to his guilt. For the same reasons, it does not. [ 50 ] On the third and final stage of the analysis, I must determine whether the evidence that is accepted leaves me with a reasonable doubt as to his guilt. [ 51 ] While I am troubled by the facts outlined in paragraph 47 above, I am mindful of the high threshold to be met for a finding of guilt beyond a reasonable doubt. [ 52 ] Mr. Day’s evidence regarding the origin of the cocaine found in his apartment is corroborated by Mr. Nelson. Mr. Nelson confirmed that Mr. Day asked Mr. Regazzi about the money Mr.

Regazzi owed him and Mr. Regazzi then gave Mr. Day a bag of cocaine instead of paying him the remaining money he was owed. Mr. Nelson’s testimony was believable. [ 53 ] The evidence of Messrs. Day and Nelson coupled with the absence of any other direct evidence as to what took place in the apartment on April 10, 2008, leaves me with a reasonable doubt as to Mr. Day’s guilt on the charge of trafficking cocaine on April 10 th , 2008. Possession of Cocaine and/or Psilocybin for the Purposes of Trafficking [ 54 ] I must also determine whether Mr.

Day’s possession of cocaine and psilocybin was for the purposes of trafficking or only for his personal use. [ 55 ] Mr. Day says that:

a) he purchased large quantities so that he would save money by buying in bulk;

b) the scales found in the apartment were only for trafficking marijuana; and

c) the debt book was only used to record monies owed for marijuana he sold. [ 56 ] For the following reasons, I do not find Mr. Day’s evidence as to the proposed use of the cocaine and psilocybin in his possession to be believable or to create a reasonable doubt as to his guilt:

a) at the rate Mr. Day claimed he was using these drugs, it would take approximately 27 months to use the cocaine and up to 55 months to consume the psilocybin;

b) although Mr. Day claimed he was selling drugs to supplement his income he was nonetheless able to invest significant sums to purchase the cocaine and psilocybin; and

c) no plausible explanation was given to explain why Mr. Day believed the scales were not suitable for weighing cocaine. [ 57 ] One bag of cocaine was found in Mr. Day’s apartment on April 10 th . The only basis for the charge of possession of cocaine is the cocaine found on April 10 th . [ 58 ] Mr. Day and Mr. Nelson both testified that the bag of cocaine found on April 10 th was given to Mr. Day that day by Mr. Regazzi in exchange for money Mr. Regazzi owed for marijuana purchased. Mr. Regazzi did not testify. [ 59 ] Mr. Nelson and Mr. Day both testified that Mr.

Day never sold cocaine. [ 60 ] Although a considerable quantity of cocaine was found in Mr. Day’s apartment, it is not inconceivable that such an amount could be used for personal use. Moreover, the Defence evidence is that the cocaine was only brought to Mr. Day hours before his arrest and it is not clear that he had formed an intention to traffic cocaine. Finally, Mr. Regazzi did not testify and there is no evidence as to any discussion that may have taken place between them. [ 61 ] Taken together, this evidence creates a reasonable doubt as to whether Mr.

Day took possession of the cocaine on April 10 th for the purposes of trafficking. [ 62 ] I therefore find Mr. Day not guilty of possession of the cocaine for the purposes of trafficking but guilty of possession of 27.37 grams of cocaine on April 10, 2008. [ 63 ] I am however satisfied beyond a reasonable doubt that Mr. Day was in possession of psilocybin for the purposes of trafficking. Mr. Day’s evidence as set out at paragraphs 55 and 56 was troublesome. [ 64 ] Moreover, the quantity of psilocybin found in Mr.

Day’s apartment was large, so large that at the rate he says he was consuming psilocybin, it would take up to fifty five months to consume. According to Officer Ross, it would cost more than $2,000 to purchase this amount. Such large quantities of psilocybin are normally associated with trafficking. [ 65 ] I am therefore satisfied beyond a reasonable doubt that Mr. Day was in possession of psilocybin for the purposes of trafficking. [ 66 ] For the above reasons, I find Mr. Day:

a) not guilty of trafficking cocaine; (Count #11)

b) guilty of possession of proceeds some or all of which were obtained as a result of the commission of an offence punishable by indictment; (Count #12)

c) not guilty of possession of cocaine for the purpose of trafficking but guilty of possession of cocaine; (Count # 16)

d) guilty of possession of psilocybin for the purpose of trafficking; (Count #17 ) and

e) guilty of three counts of possession of marijuana for the purposes of trafficking. (Counts #18 through 20) ___________________________ THORBURN J. Released: December 15, 2010 CITATION : R. v. Day, 2010 ONSC 6970 COURT FILE NO .:1-598613 DATE: 20101215 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – BRENDAN DAY REASONS FOR JUDGMENT THORBURN J.

Released: December 15, 2010