) ) HER MAJESTY THE QUEEN – v. –, 2017 ONSC 4390

CITATION : R. v.

Odbert, 2017 ONSC 4390 COURT FILE NO.: 15-541 DATE: 2017/07/18 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – MICHAEL ODBERT Defendant ) ) ) ) ) ) ) ) Frances Brennan, for the Crown John Sipos, for the Defendant ) ) HEARD: May 25, and September 6, 13 and 14, 2016 Justice i.f. leach (ORALLY) Overview [ 1 ] By way of overview, the accused, Michael Odbert, is charged with one count of possessing a controlled substance, (methamphetamine), for the purpose of trafficking, contrary to s.5(2) of the Controlled Drugs and Substances Act , (“the CDSA”). [ 2 ] The charge stems from events said to have taken place in the City of Stratford and nearby communities on September 18 and 19, 2014.

Evidence in that regard is outlined in greater detail below.

In broad terms, however, the Crown says: • that on September 18, 2014, members of the Stratford Police Street Crimes Unit (“SCU”), acting on information provided by the Woodstock police, began following the accused as he drove his vehicle in Stratford that evening; • that various considerations, including information provided by the Woodstock police, observations made during the course of surveillance that evening and into the early morning hours of September 19, 2014, inferences drawn from those observations, information that became available while that surveillance progressed, and prior knowledge of the accused and his companion, led the officer in charge of the surveillance operation to believe there were reasonable and probable grounds to arrest the accused and his companion for possession of methamphetamine for the purpose of trafficking; • that the accused and his companion accordingly were stopped and arrested for that offence, at the direction of the officer in charge of the surveillance, as the two men were travelling back into Stratford; • that a search incident to arrest disclosed the presence of 16.4 grams of methamphetamine hidden in the sole of the accused’s left running shoe; and • that the quantity of methamphetamine found in the possession of the accused, and lack of indicia of personal use, indicate possession of that substance for the purpose of trafficking, as opposed to possession for personal use. [ 3 ] When the proceeding before me began on May 25, 2016, a number of verbally confirmed admissions were made in relation to time, date, jurisdiction and the identity of the accused, as well as the nature and quantity of the methamphetamine admittedly found in his shoe.

At the same time, there was a further admission that the methamphetamine found in the accused’s shoe was in the possession of the accused, in the sense that the accused had knowledge and control over that 16.4 grams of methamphetamine. [ 4 ] For reasons noted below, the matter then was adjourned for over three months. [ 5 ] When the proceeding resumed before me on September 13, 2014, the above admissions were confirmed, detailed and supplemented, (e.g., by agreement on observations made by members of the SCU during the surveillance carried out on September 18 and 19, 2014), in a written document, filed as an exhibit, outlining further admissions made pursuant to s.655 of the Criminal Code of Canada . [ 6 ] It also was formally admitted that, at the time of his arrest, the accused was found to be in possession of $315.50, with $280.00 of that amount in his wallet, and the remaining $35.50 in a pants pocket. [ 7 ] Beyond that, the defence put the Crown to satisfaction of its onus of proving all essential elements of the charged offence beyond a reasonable doubt, including possession of the 16.4 grams of methamphetamine for the purpose of trafficking.

[ 8 ] However, by way of an appropriate formal application, the defence also submitted that the methamphetamine seized during the aforesaid search of the accused was obtained by the police pursuant to alleged contraventions of Mr Odbert’s right to be free from unreasonable search and seizure, (pursuant to

section 8 of the Canadian Charter of Rights and Freedoms or “the Charter ”), and/or his right not to be arbitrarily detained, (pursuant to

section 9 of the Charter), in circumstances where the said methamphetamine accordingly should be excluded from evidence pursuant to s.24(2) of the Charter . [ 9 ] The parties agreed that the matter should be addressed by way of a “blended” voir dire and trial proceeding. Procedural History [ 10 ] Before moving on to a consideration of the evidence, I pause to note and explain a number of procedural developments, (including the extended mid-hearing adjournment noted above), that effectively delayed progress of this matter.

In particular: • When the blended proceeding commenced before me on May 25, 2016, there were two defendants; i.e., Matthew Riordan, (Mr Odbert’s aforesaid companion on September 18 and 19, 2014), and the accused. Following the arraignment of both men and the entering of “not guilty” pleas, the proceeding opened with a number of formal admissions, (including the initial ones noted above), being summarized by the Crown. It was anticipated that the admissions would help to “streamline” the proceeding; e.g., by reducing the number of required witnesses.

However, it then transpired that there was a misunderstanding between the parties concerning the extent of the admissions being made by Mr Odbert.

In particular, when counsel for the accused confirmed that possession “for the purpose of trafficking” was not being admitted by the accused, (contrary to Crown counsel’s understanding of the situation), Crown counsel indicated that further Crown witnesses would be necessary, counsel for the accused indicated that the nature of anticipated cross- examination would change significantly, and all concerned agreed that the matter would require further Crown disclosure that could not be effected in short order.

In the result, continuation of the trial was adjourned, on consent, to the first day of the next available trial sitting, in September of 2016, for scheduling of the anticipated continuation and completion of the blended proceeding within that trial sitting. • When the matter came back before me on September 5, 2016, I was advised by counsel that a resolution was anticipated in relation to the charge against Mr Riordan, while the accused wished to proceed with the blended hearing of his trial and Charter application.

Mr Riordan entered a plea that day, after which his matter proceeded in a separate and distinct manner.

The blended hearing of the accused’s trial and Charter application were adjourned for hearing later in that trial sitting, on September 13 and 14, 2017. • The adjourned blended hearing of the accused’s trial and Charter application then resumed on September 13, 2017, and concluded the following day, at which time I reserved my decision and adjourned the matter to the trial sitting commencing February 13, 2017, with the intention of rendering my decision during that trial sitting. • When that proved impossible, the matter was adjourned to the next trial sitting in May of 2017, (my next scheduled attendance in Stratford), but that entire sitting then was devoted to another criminal matter. • This matter necessarily then was adjourned to today, (my next attendance in Stratford), for rendering of my decision in relation Mr Odbert. [ 11 ] With that explanation, I now move on to that decision, starting with some general comments about the evidence and my approach to that evidence.

Evidence – General comments [ 12 ] During the blended proceeding before me, the Crown presented, in addition to a number of exhibits, (including the aforesaid written outline of s.655 admissions, as well as agreed photographs of the shoes of the accused and the packet of Methamphetamine found therein), testimony from two witnesses, both of whom are members of the SCU: Detective Jason Clarke, (the officer in charge of the relevant surveillance operation, who directed the arrest of the accused), and Detective Jeff Serf, (who was qualified as an expert to provide opinion evidence relating to the pricing, packaging and sale of methamphetamine).

Copies of the curriculum vitae of Detective Serf, and a written outline of his anticipated expert opinion evidence, were tendered as additional exhibits. [ 13 ] In addition to subjecting the Crown’s witnesses to cross-examination, the defence elected to present testimony from the accused, through whom further exhibits were introduced, (relating to matters concerning Mr Odbert’s employment, finances and participation in substance abuse treatment programs), and whom Crown counsel then cross-examined.

Mr Odbert’s testimony included emphatic assertions that the methamphetamine admittedly found in his possession was intended only for personal use. [ 14 ] I will have more to say about the aforesaid witnesses, testimony and exhibits during the course of these reasons, but think it appropriate to make some further general comments and observations now, before proceeding with further review of the evidence. [ 15 ] First, although the majority of evidence presented was led by the Crown, I have in mind throughout my entire reasons and analysis that proper determination of cases is not achieved by simply counting witnesses, or having regard to the length of their testimony, as quality of evidence may very well prevail over quantity.

As the trier of fact, I therefore am entitled, for example, to prefer the testimony of just one witness, rather than a number of others, depending on my assessment of the evidence. [ 16 ] Second, I also have in mind, throughout my entire reasons and analysis, the presumption of innocence and the burden of proof upon the Crown. In particular, according to the constitutional guarantee in s.11(

d) of the Charter of Rights , Mr Odbert is presumed to be innocent, and that presumption of innocence remains with him throughout this matter, from beginning to end, unless and until the Crown establishes his guilt with respect to the alleged offence beyond a reasonable doubt. That is a heavy burden and, in relation to elements of

the charge against Mr Odbert that are not admitted, never shifts. In particular, Mr Odbert has no obligation whatsoever to establish hisinnocence. [17] Third, although the Crown has the overall onus at trial to establish Mr Odbert’s guilt beyond a reasonable doubt, in relation tothe alleged offence, I nevertheless also bear in mind that, insofar as Mr Odbert’s Charter application is concerned, Mr Odbert has theonus of proving, on a balance of probabilities, that there has been a constitutional infringement and that evidence obtained by anyinfringement should be excluded. See R. v.

Sadikov, 2014 ONCA 72 , [2014] O.J. No. 376 (C.A.), at paragraph 35. [18] Fourth, as Mr Odbert chose to testify on his own behalf in this case, I am mindful of the principles underscored by R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, wherein the Supreme Court of Canada emphasized that reasonable doubt may arise invarious ways; ways that are not restricted to acceptance of exculpatory testimony given by an accused.

For example, in this particularcase: • It would not be appropriate to decide this case by simply determining whether I believe or disbelieve the testimony of Mr Odbert,including his assertions that the methamphetamine admittedly found in his possession was not for the purpose of trafficking. • I instead have to consider all the admissible evidence, and decide whether I have been satisfied beyond a reasonable doubt that allthe essential elements of the crime charged have been established. • Certainly, for example, if evidence of the relevant methamphetamine is admissible, but I believe and accept Mr Odbert’stestimony that he did not possess it for the purpose of trafficking, then I obviously must acquit him of the particular offence charged,(i.e., possession of methamphetamine for the purpose of trafficking), although he still may be guilty of the lesser and included offence ofsimply possessing methamphetamine. • However, even if I do not believe and accept Mr Odbert’s testimony, I must still acquit him of the offence charged if his testimonyraises a reasonable doubt in my mind; e.g., as to whether he possessed the relevant methamphetamine, (if admissible), for the purpose oftrafficking. • Moreover, even if I do not believe Mr Odbert’s testimony, and his testimony does not leave me with a reasonable doubt as towhether the methamphetamine in his possession was for the purpose of trafficking, I must still ask myself whether, having regard to theevidence I do accept, and looking at the case in its totality, I am convinced that he is guilty of the offence charged beyond a reasonabledoubt; i.e., because all the essential elements of the offence, including possession for the purpose of trafficking, have been establishedbeyond a reasonable doubt. [19] Finally, by way of general comments, I am mindful that “a reasonable doubt” is not an imaginary or frivolous doubt.

Nor is ita doubt based upon sympathy or prejudice. Rather, it is a doubt based on reason and common sense, logically derived from the evidenceor absence of evidence. See R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, at paragraph 39. [20] With the above preliminary observations, I turn now to a more detailed review of the underlying evidence.

Evidence – General facts – Charter application and possession [21] While I will have more to say about certain aspects of that evidence later in my reasons, the following findings, whichincorporate the admissions noted above, form the basic context of my further analysis: • The SCU is a designated unit, within the Stratford Police Service, tasked with the investigation of matters relating to controlledsubstances in the city of Stratford. One of the narcotics most frequently encountered by the SCU is methamphetamine.

It poses one ofthe most significant narcotics-related problems within the city of Stratford, and is involved in 70 to 80 percent of the cases investigatedby the SCU. • Detective Clarke is an experienced and senior officer within the SCU. The past seven of his 13 years as a police officer have beenspent within that unit.

He was unable to quantify the precise number of methamphetamine cases in which he personally was involved,except to say that it was “well over one hundred”. • On September 18, 2014: o Detective Clarke was working as the officer in charge of SCU investigations when, shortly after 6pm, he received a telephone callfrom Sergeant Becks, (a member of the Woodstock police service), with whom Detective Clarke had worked on many different previousoccasions.

Sergeant Becks informed Detective Clarke that she had information received from a confidential informant (“CI”) that day,indicating that the accused might be delivering methamphetamine to the city of Woodstock that evening.

However, Sergeant Becks alsoindicated that the Woodstock police were occupied with other matters preventing their travel to Stratford, and accordingly asked if theSCU would be able to provide assistance in locating and providing surveillance in relation to the accused. o At the time of her initial call, Sergeant Becks did not provide Detective Clarke with any indication that the Woodstock police hadinformation that the accused would be going to a more specific destination within Woodstock, (although Detective Clarke learned later inthe evening that the Woodstock police had such information).

Nor were any details provided concerning the accused’s intended meansor route of travel, whether he would be traveling alone or with others, the quantity or value of the methamphetamine he was thought to bedelivering, or the precise time of any such delivery that evening. o At the time of that call from Sergeant Becks, Detective Clarke was aware of an ongoing investigation relating to the accused, as the

Stratford surveillance team had been asked by the Woodstock police to conduct prior surveillance in relation to the accused.

In particular, on a previous date, (which Detective Clarke thought to have been on or about September 11, 2014, and definitely within 2-3 weeks of the call received from Sergeant Becks, although Detective Clarke was on vacation at the time preventing his direct participation), Woodstock police had followed Mr Odbert within Woodstock, and then from Woodstock into Stratford, where members of the SCU then had joined in the surveillance, following the accused to a number of different locations and apartment buildings within Stratford, in order to assist with identification of possible targets for further investigation by the SCU.

Apart from having followed the accused from Woodstock to Stratford on the day in question, Detective Clarke was not otherwise aware of what the Woodstock police, as opposed to the SCU, had observed that day. o At the time of the call from Sergeant Becks requesting assistance, Detective Clarke nevertheless was aware that the Woodstock police also had engaged in other prior surveillance relating to the accused, on unknown dates, during which the accused had been followed from Woodstock to the Knights Inn motel in Kitchener.

In that regard, Detective Clarke did not have any information indicating specifically what else may have been observed by the Woodstock police surveillance team, once the accused had arrived at the Knights Inn. However, Detective Clarke independently knew that the Knights Inn was a very popular destination for Stratford street level methamphetamine traffickers to obtain methamphetamine.

In that regard, Detective Clarke had been to the Knights Inn on numerous occasions during his years with the SCU, and between 2009 and 2015, the SCU had stopped and arrested numerous individuals, on their way back to Stratford after being followed to the Knights Inn, who were found to be in possession of methamphetamine.

Detective Clarke also had been involved in undercover operations in the summer of 2014, during which an undercover officer was sent into the Knights Inn, where he was able to purchase methamphetamine. o At the time of the call from Sergeant Becks requesting assistance, and even without efforts that evening to check the CI registry of the SCU, (a log maintained by the SCU to keep track of CIs providing information about other drug traffickers and users in the community), Detective Clarke also was aware of information supplied by a CI to the SCU in early 2014, indicating that there was a male drug trafficker in Stratford who was dealing in methamphetamine and living with the accused, and that the accused occasionally would drive that other male to and from the Knights Inn in Kitchener so that the male could purchase methamphetamine there.

Detective Clarke was not personally handling the CI who supplied that information, and accordingly did not know how the relevant CI came to learn the information, or the relevant CI’s reputation for reliability. However, he was made aware of the information through the contemporaneous circulation of a written “CI report”, routinely provided to all members of the SCU to keep them apprised of available information within the unit to facilitate performance of its responsibilities.

Detective Clarke also had reviewed the information again when the SCU had been asked to provide surveillance assistance to the Woodstock police in the weeks before September 18, 2014, as noted above. o As the SCU surveillance team was available at the time of Sergeant Beck’s call on September 18th, Detective Clarke informed Sergeant Becks that the SCU would assist as requested.

He then instructed members of the SCU surveillance team to assemble and locate the accused. o Although certain members of the surveillance team were handlers of the local CIs who had supplied some of the above information already known to Detective Clarke, and other officer handlers not participating in the surveillance probably were available by telephone, it was not thought necessary at the time to access the CI registry or make renewed contacts with the relevant CIs prior to or during the surveillance to make inquiries as to whether any of them had further or updated information concerning the accused or others.

In particular, Detective Clarke thought current observations by the surveillance team would provide a sufficient and immediately confirmed indication of any events taking place that evening. o At 6:30pm, (according to Detective Clarke’s contemporaneous notes), or 6:44pm, (according to the formal admissions in this trial), members of the SCU took up surveillance positions near 705 Devon Street, in the city of Stratford; a home the SCU believed to be the current residence of the accused. o At 8:23pm, members of the SCU, including Detective Clarke, observed the accused leave the Devon Street home in his vehicle; i.e., a maroon Impala, bearing plate no.

BSMV574. The surveillance team thereafter followed the accused’s visible movements for the rest of the night, up until the time of his arrest. Throughout the course of the surveillance, the accused’s vehicle was driven by the accused. o From the Devon Street home, the accused drove to a pizza restaurant located in an area near the intersection of Ontario and Nile streets, in the city of Stratford, where the accused stopped for approximately 1-2 minutes to pick up a male later identified as Matthew Riordan.

The two men then travelled east in the vehicle, along roads known as Perth County “line 33” and Highway 59, towards the city of Woodstock. o At 9:19pm, the vehicle stopped, for approximately two minutes, at a small gas station or garage business located on line 33, between the communities of Tavistock and Woodstock. The accused and Mr Riordan both exited the vehicle, and were observed using their respective mobile phones. o At 9:21pm, both men re-entered the vehicle, with the accused once again driving. The vehicle continued east to Woodstock, with members of the SCU following its progress.

As members of the SCU surveillance unit and the accused’s target vehicle approached Woodstock, Detective Clarke was on the telephone with Sergeant Becks to provide updates on their location, and co-ordinate arrangements to have Woodstock police join in the surveillance.

At that time, Detective Clarke was advised that the Woodstock police intended to arrest the accused if they were able to reach him before his arrival at a particular destination, still not specified to Detective Clarke. o When the accused’s vehicle entered Woodstock, the SCU observed the accused pull into and circle around a parking lot, (located on a street whose name Detective Clarke could not recall), before then immediately exiting the parking lot and driving on. o At 9:35pm, the vehicle stopped at a small two-story apartment building located at 742 Pavey Street in the city of Woodstock, (approximately one block away from the aforesaid parking lot).

The accused and Mr Riordan both exited the vehicle, and entered the multi-unit apartment building.

o The accused and Mr Riordan then remained in the Pavey Street apartment building for approximately 10 minutes, without Detective Clarke having any knowledge or information of the particular apartment unit the two men were attending, their actions within the building, or the persons with whom the two men may have been meeting. During those 10 minutes, the SCU and the Woodstock police continued to communicate, share information, and co-ordinate surveillance arrangements and intentions.

In particular, as the Woodstock police took up stations around the building, and members of the SCU remained in the area, Detective Clarke learned from the Woodstock police that 742 Pavey Street had been the accused’s specific and expected methamphetamine delivery destination that evening, according to the information received by the Woodstock police. o Detective Clarke testified, and I accept, that in his mind, events up until that point, on the evening in question, had confirmed the accuracy of information supplied by the CI to the Woodstock police; i.e., in terms of the accused traveling from Stratford to Woodstock that evening, and proceeding to a specified address in Woodstock.

However, Detective Clarke also acknowledged that he nevertheless still knew nothing about the general reliability of the CI who had supplied the information, how or when the CI had come by his or her information, whether the information relayed by the CI was first or second hand, or whether the CI in question was registered as an informant with the Woodstock police. o At 9:45pm, the accused and Mr Riordan exited the apartment building together, and got back into the same vehicle with the accused once again driving.

At that point, the two surveillance teams decided that the SCU would continue to follow the accused, (as he was “a Stratford guy”), while the Woodstock police would continue to monitor the Pavey Street apartment building. o Leaving the Pavey Street apartment building and the city of Woodstock in their vehicle, the accused and Mr Riordan then travelled westbound on Highway 401, past exits leading to Stratford, with members of the SCU following and continuing to make observations. o At 10:24pm, the accused’s vehicle left Highway 401 using the exit at Westchester Bourne Road, passed south over Highway 401, and stopped at a “Husky” truck stop or gas station, (which also has a variety store and attached restaurant), located just off Highway 401 near its eastbound lanes.

The accused drove up to the gas pumps at that Husky station, and both he and Mr Riordan exited the vehicle. While the defendant pumped gas into his vehicle, Mr Riordan entered the store/restaurant. Through the extensive windows of the store and restaurant, Detective Clarke could see that both were empty of customers apart from Mr Riordan, who was wandering through both businesses apparently looking “all around” for someone while continually checking his cellphone.

Detective Clarke therefore instructed other members of the SCU to pay close attention to the Husky station’s parking lot, because a meeting with someone else seemed to be anticipated. o Shortly thereafter, at approximately 10:30pm, Mr Riordan exited the store and walked through and across the Husky station parking lot to meet with another man standing outside a parked pickup truck.

A check of that vehicle’s licence plate confirmed that it belonged to Ray Burton, a man who had lived in Stratford before moving away a number of years earlier. o Mr Riordan and the man then entered the cab of the pickup truck to continue their meeting until approximately 10:37pm. During that time, movements within the pickup truck could not be seen clearly by Detective Clarke and members of the SCU.

However, they could observe the movements of Mr Odbert, who pumped and apparently paid for his gas, (by entering the station’s store without the other two men), before returning to his vehicle to wait for Mr Riordan. o When Mr Riordan’s interaction with the other man in the pickup truck came to an end, Mr Riordan exited the pick-up and got back into the accused’s vehicle, with the accused once again driving. o Detective Clarke testified, and I accept, that he believed Mr Riordan and the man in the pick-up truck had engaged in a drug-related transaction.

In that regard, Detective Clarke acknowledged that he was unable to see into the pick-up truck, or see whether Mr Riordan had anything in his hands when he got out of the pick-up truck.

However, while engaged in surveillance operations over his many years with the SCU, (and its previous incarnation as the Stratford drug unit), Detective Clarke personally had witnessed hundreds of similar instances of parties deliberately meeting at a public location, entering a vehicle for a relatively brief period out of public view, and quickly parting ways, for the purpose of either purchasing/selling drugs or paying money owed for drugs. On its own, the observed activity of Mr Riordan and the other male therefore were highly indicative of a “quick exchange” drug transaction.

In this particular case, however, Detective Clarke’s inference was buttressed by Mr Riordan being known, to Detective Clarke and the SCU, as a person involved in the trafficking of methamphetamine. In particular, Mr Riordan had been arrested on numerous occasions when he was found to be in possession of methamphetamine. Mr Riordan also had sold methamphetamine to undercover officers working with the SCU.

Detective Clarke’s inference that there had been a drug transaction in the pickup truck also was buttressed by his personal familiarity with Mr Burton, who previously had been involved in the drug culture of Stratford, (although Detective Clarke had no memory or recollection that night of Mr Burton having any drug-related convictions).

While Detective Clarke believed that he had just witnessed a drug transaction, no arrests were directed or made at that point, and the SCU surveillance team continued to focus on the accused and Mr Riordan while letting the other man go. o At 10:38pm, the accused and Mr Riordan left the Husky gas station, and proceeded east on Highway 401 towards the city of Kitchener, passing exits leading to Stratford and Woodstock.

Based on the aforesaid indications Detective Clarke and the SCU had received about the accused attending at the Knights Inn during previous surveillance operations, confidential informant information described above indicating that the accused occasionally would drive a male occupant of his residence to pick up methamphetamine from the Knights Inn, and additional confidential informant information received by the SCU indicating that Mr Riordan obtained his supply of methamphetamine through visits to the Knights Inn, Detective Clarke and the surveillance team formed a belief that the accused and Mr Riordan probably were heading to that Kitchener destination to obtain more methamphetamine. o The accused and Mr Riordan did indeed then proceed directly to the Knights Inn, on Weber Avenue in Kitchener.

Arriving there at 11:33pm, the accused and Mr Riordan drove into the motel’s parking lot, before both got out of the accused’s vehicle and entered the building. For their part, Detective Clarke and other members of the SCU surveillance team took up positions around the Knights Inn to “contain” the location and make observations from a distance.

They did so because experience had made them aware that those engaged in illicit activities at the Knights Inn, (including traffic in methamphetamine and other illicit drugs, as well as prostitution), usually were very “surveillance conscious”, and made a regular practice of checking for police monitoring.

• On September 19, 2014: o At 12:31am, the accused exited the Knights Inn and walked to a nearby Tim Horton’s restaurant located on the same street, meeting momentarily with an unknown male near a “Wimpy’s” restaurant. As he made his way back to the Knights Inn, the accused was looking into vehicles parked near the Tim Horton’s restaurant.

Detective Clarke inferred, from such actions and his previously described awareness of the “surveillance conscious” clientele of the Knights Inn, that the accused was checking to see whether the police might have anyone in the area carrying out surveillance in relation to the accused or others. When the accused returned to the Knights Inn, the SCU surveillance team continued to “contain” the location. o At 1:20am, the accused again walked from the Knights Inn to the same Tim Horton’s restaurant, where he made a purchase before returning to the Knights Inn.

He did not appear to be looking into parked vehicles while walking to or from the Tim Horton’s restaurant on that occasion. o Apart from the two described visits by the accused to the nearby Tim Horton’s restaurant, the accused and Mr Riordan remained at the Knights Inn for approximately two hours. During that time, the police were unable to make any observations of what rooms the two men may have entered, and whom they may have met. No transactions of any kind were observed.

However, based on the information and experience described above, (which had led Detective Clarke to believe that the two men had gone to the Knights Inn to obtain methamphetamine), and additional information obtained through police investigations carried out in relation to the Knights Inn during the summer of 2014, Detective Clarke and the SCU surveillance team believed that Mr Riordan and Mr Odbert were obtaining methamphetamine from Lorena Howse and/or Brian Allen; i.e., the two individuals known to be dealing methamphetamine from the Knights Inn, (although neither Ms Howse nor Mr Allen were seen by members of the SCU during their “containment” surveillance of the Knights Inn on this particular occasion).

In that regard, Detective Clarke testified, and I accept, that the longer meeting at the Knights Inn was consistent with the more extended type of meeting that typically would take place between higher level suppliers, (such as Ms Howse and Mr Allen), and those lower down the trafficking chain who would be purchasing supply; e.g., as such transactions usually took place in a less public and more secure location, with time being needed to weigh out desired quantities of supply, (which the higher level source frequently would not know in advance), and time being spent for socialization between the higher level suppliers and their downstream purchasers.

Moreover, based on Detective Clarke’s experience, those engaging in such purchasers from higher level suppliers often deliberately linger, as a tactic to avoid the sort of “quick exchange” movements, (such as those seen at the Husky gas station), which police frequently view as highly indicative of drug trafficking activity. o At 1:27am, the accused and Mr Riordan both exited the Knights Inn, and got back into the same vehicle. They proceeded to travel west, on Highway 7/8, directly towards the city of Stratford.

During the course of that drive, Detective Clarke formed the belief that the accused and Mr Riordan had picked up additional methamphetamine, and were heading “home”. At that point, Detective Clarke made a determination that he had reasonable grounds to arrest both the accused and Mr Riordan for possession of a controlled substance, believed to be methamphetamine, which they both were believed to be transporting back to the city of Stratford that night.

Detective Clarke therefore contacted uniformed police officers in Stratford to stop the accused’s vehicle, on its arrival in Stratford, and to arrest the accused and Mr Riordan for possession of a controlled substance believed to be methamphetamine.

In that regard, Detective Clarke emphasized, and I accept, (even though his notes necessarily made after the fact were not as detailed as they ideally might have been), that he based his determination not on any one particular consideration, but on his experienced assessment of the totality of information received and observations made up until that point, detailed above but including the following: ▪ information that Stratford’s street dealers in methamphetamine were traveling to and from the Knights Inn in Kitchener to obtain methamphetamine, mainly from Ms Howse and Mr Allen; ▪ information that the accused had been assisting in drug trafficking, by driving a Stratford trafficker in methamphetamine, living in the same residence as the accused, to and from the Knights Inn to pick up supplies of methamphetamine; ▪ information that the accused had been followed to the Knights Inn during earlier surveillance operations; ▪ information that Mr Riordan also visited the Knights Inn to pick up his supplies of methamphetamine; ▪ information that the accused was the target of an ongoing investigation by the Woodstock police for delivering methamphetamine to their city from Stratford; ▪ CI indications that the accused would be travelling from Stratford to a specific address in Woodstock to deliver methamphetamine on the evening of September 14, 2014, and surveillance observations confirming the accuracy of the CI’s indications concerning the accused’s time of travel and destination; and ▪ observations consistent with what Detective Clarke believed to be at least three separate drug-related transactions that evening; i.e., delivery of methamphetamine from Stratford to the Pavey Street apartment building in Woodstock; the “pick-up truck” meeting at the Husky gas station to sell drugs and/or collect money owed in relation to drugs; and attendance at the Knights Inn to obtain more methamphetamine. o In cross-examination, Detective Clarke acknowledged that, in his view, it was the observation of what he perceived to be three drug transactions that drove matters over the line, in terms of this belief that there were sufficient grounds to allow an arrest.

In my view, however, that indication was in no way inconsistent with Detective Clarke’s emphasis that he relied on the totality of the circumstances and information available to him, outlined above, in making his determination. In particular, I think Detective Clarke made it abundantly clear that his

interpretation of the observations made that evening was being influenced by the other knowledge and information available to him, including but not limited to information supplied by confidential informants. o Having said that, Detective Clarke candidly acknowledged that, in making his determination, he was relying in part on information supplied by CIs whom he personally did not handle, and whose reputation for reliability he personally did not know, was not able to confirm personally, and/or did not personally investigate during the course of the surveillance operation that evening, (e.g., through accessing the SCU’s registry of CI information or otherwise).

Nor did he know whether the information supplied by the relevant CIs

was first or second hand information.

Detective Clarke similarly acknowledged that he had not made efforts to see whether any further and/or more recent information had been supplied by those CIs in relation to the accused and/or Mr Riordan. o At 1:56am, after the vehicle carrying the accused and Mr Riordan had re-entered Stratford, it was stopped by uniformed officers of the Stratford police, acting in accordance with Detective Clarke’s instructions, and the accused and Mr Riordan both were arrested. o During the course of searches incident to arrest, police officers located 16.4 grams of methamphetamine in the sole of the accused’s left running shoe.

An additional 7.4 grams of methamphetamine were located in a pocket of Mr Riordan’s trousers. o Apart from the aforesaid quantities of methamphetamine, and possibly the currency admittedly found in the accused’s possession, there was no evidence that any other drug-related or potentially drug-related items, (such as a debt list, scales or packaging material), were found in the vehicle or on the persons of the accused or Mr Riordan.

To the contrary, at the time of the abortive commencement of the hearing before me, on May 25, 2016, Crown counsel indicated and confirmed that no such items had been found when the two men were arrested. [ 22 ] Again, the above findings constitute the basic framework of my analysis. [ 23 ] They are based primarily on the admissions outlined above, and the testimony of Detective Clarke.

In that regard: • Detective Clarke’s testimony concerning the above matters inherently was not affected by the additional expert opinion testimony of Detective Serf, whose evidence was focused on a suggested additional inference to be drawn from the above facts; i.e., in relation to possible possession for the purpose of trafficking. • In my view, the testimony from the accused did not contradict, in any material way, Detective Clarke’s testimony as to what the police observed on September 18 and 19, 2017, nor Detective Clarke’s testimony as to the knowledge, information and grounds upon which the detective relied in directing the arrest of the accused and Mr Riordan.

Mr Odbert’s testimony instead focused on offering additional information and explanations for what the police were observing on the evening in question, including an explanation as to why the circumstances did not involve his possession of methamphetamine for the purpose of trafficking. Indeed, defence counsel indicated at the outset of Mr Odbert’s testimony that he was being called as a witness to address the issue of possession for purposes of trafficking. • In my view, Detective Clarke’s testimony also was not shaken, in any material way, by cross-examination.

Without limiting the generality of the foregoing, I am mindful that, in cross-examination, Detective Clarke acknowledged his view that it was the observation of what he perceived to be three drug transactions, during the course of police surveillance on September 18 and 19, 2014, that drove matters over the line, in terms of this belief that there were sufficient grounds to allow an arrest. Again, in my view, that indication was in no way inconsistent with Detective Clarke’s emphasis that he relied on the totality of the circumstances and information available to him, outlined above, in making his determination.

In particular, as already indicated, I think Detective Clarke made it abundantly clear in the course of his testimony that his

interpretation of the observations made that evening was being influenced by the other knowledge and information available to him, including his knowledge and awareness of information previously supplied by confidential informants. He clearly did not base his

interpretation of events, and his determination of whether there were grounds to arrest the accused and Mr Riordan, simply on what was being observed. [ 24 ] As for the expert testimony provided by Detective Serf, opining that the evidence suggested possession of methamphetamine for the purpose of trafficking, his assertions and acknowledgments during cross-examination included the following: • A primary factor on which he relied, in forming his opinion, was the quantity of methamphetamine found in Mr Odbert’s possession.

It was far more than any amount Detective Serf personally had ever seen or heard purchased for personal use.

In that regard, Detective Serf emphasized that, based on his experience, (albeit admittedly limited to five years as a police officer and 20 months working with the SCU), most methamphetamine users live on the lower economic end of the spectrum, without jobs, and therefore tend to have limited access to funds with which to purchase large quantities of methamphetamine at any one time. (Detective Serf admittedly was not aware of Mr Odbert’s financial circumstances or employment status at the time of his arrest.) In Detective Serf’s experience, most users also were focused on using the methamphetamine they acquire very quickly, in order to achieve the “high” they desire.

Moreover, many users are known to each other, leading to a fear of having their supplies of methamphetamine taken by others through robbery, thereby providing a further incentive to keep the amount of methamphetamine in current possession to a minimum. In the result, Detective Serf’s experience suggested that most users would purchase only the amount of methamphetamine required to satisfy their daily need, (often 0.5 grams to a gram), before focusing after use on acquiring the next amount to satisfy their daily need.

Such needs depend on individual tolerance, acquired through length of use, but generally range from a low of 0.5 grams to 2 or 3 grams for users at the “very top end”, with 3.5 grams being the largest individual user purchase Detective Serf had “heard about”. • Another factor relied upon by Detective Serf in the formation of his opinion was the absence, at the time of Mr Odbert’s arrest, of any indicia of personal methamphetamine use, such as a pipe or other objects frequently employed to smoke, inject or ingest the substance.

In Detective Serf’s experience, a lot of methamphetamine users have such items in their possession when they are arrested, whereas those arrested in possession of large amounts of the drug, (indicative of trafficking for the reasons outlined above), do not. • Detective Serf acknowledged that Mr Odbert was not found in possession of a “debt list”; i.e., a list of names and corresponding amounts of money owed by those who have received supplies of a drug without immediate payment, which therefore indicates trafficking activity.

However, Detective Serf felt the absence of such a list was not a “hindrance” to his opinion that Mr Odbert was in possession of methamphetamine for the purpose of trafficking.

In particular, Detective Serf has found that many of those trafficking in narcotics have become more knowledgeable about police reliance on debt lists as an indicator of trafficking, and therefore now take care to keep such information secured at home or on a password-protected phone. • Detective Serf also felt that his opinion was not “voided” by the absence, at the time Mr Odbert was arrested and searched, of any measuring devices or packaging material, such as scales or baggies.

In particular, while the presence of such items may be indicative of trafficking, the reality is that there also are intervals between the time lower level traffickers obtain their undivided quantities of product

from those “higher up” the chain of supply, and the time lower level traffickers then take steps to subdivide and package their drugs for resale, (in order to facilitate quick transactions that minimize the risks of detection).

The latter activities frequently are done at home, or in some other secure place, such that traffickers frequently do not have measuring or packaging devices on their person when they go to purchase their drug supplies from others. • As for the amount of currency found in Mr Odbert’s possession at the time of his arrest, (i.e., $315.50), that effectively was viewed as a somewhat neutral factor by Detective Serf.

In particular, as trafficking in narcotics is a “cash business”, the amount of currency in the possession of a trafficker will vary inversely with the amount of drugs they have managed to sell once their supply has been acquired.

In the case of Mr Odbert, Detective Serf felt the evidence was consistent with Mr Odbert having recently acquired a supply of drugs for resale, with $315 remaining after his purchase. • On the whole, Detective Serf felt the quantity of methamphetamine found in Mr Odbert’s possession suggested that he was a “low level” or “street” trafficker in methamphetamine; i.e., someone typically “just above a user”, but not yet a “a large quantity distributor”, who normally would sell methamphetamine in quantities ranging from 3.5 to 7 grams, depending on how much money they had at the time of their purchase and their own client base. [ 25 ] As for the testimony provided by the accused, Mr Odbert, his assertions and clarifications or acknowledgements supplied in cross-examination included the following: • He was 52 at the time of the hearing before me, making him approximately 50 at the time of the events bringing him before the court. • He provided a very extended and detailed history of substance abuse, consequential life difficulties, and attempts at rehabilitation that were not always successful.

In particular: o Mr Odbert said he began drinking alcohol and using narcotics at a very early age, (approximately 14), as a means of coping with serious and prolonged abuse, inflicted by his father, on Mr Odbert and other members of his immediate family.

Substance abuse that began with the consumption of readily accessible alcohol, marihuana and “magic mushrooms”, before high school, progressed thereafter to include consumption of much harder narcotics, including LSD or “acid”, almost daily thereafter. o Not surprisingly, (if Mr Odbert’s account of his extended substance abuse is accurate), his school performance and attendance suffered accordingly, to the point where he was obliged to repeat grade 7, failed to graduate from high school with his peers, and obtained his high school equivalency only through later efforts to update his credits.

He says that, during his high school years, he also frequently was in trouble with the law, and actually was being released from custody intermittently to attend school. o Mr Odbert said that he was able to fund his prolonged and increasingly expensive drug habits and addictions by obtaining lucrative employment with FRAM, (a manufacturer with a production facility in Stratford), while still a teenager attending grades 10, 11 and 12 in high school.

Moreover, he was able to obtain all the narcotics he wanted and needed through others at work, and adopted a pattern of purchasing them weekly, on the same day he received his weekly pay. o Mr Odbert says that, following high school, he continued working, including extended employment with Hendrickson, (another manufacturer operating in Stratford), which began in or around 1993 and lasted approximately 20 years.

Mr Odbert said that, during that time, he continued to devote most of his income, apart from that needed to make minimum mortgage and car payments, to maximizing his weekly purchase of illicit drugs through his workplace. Moreover, according to Mr Odbert, those drugs came to include “everything but opiates”. In particular, Mr Odbert said that, in addition to consumption of marihuana, magic mushrooms, and “hundreds and hundreds of hits of LSD”, he quickly became addicted to cocaine after being introduced to it at a party.

He thereafter regularly consumed substantial amounts of cocaine, (e.g., up to 3.5 grams or an “eight ball” per night), over the course of many years, until his “nose was wrecked” and effectively prevented further use of that particular narcotic, (as Mr Odbert was not an IV user).

At or about the same time, however, methamphetamine became readily available in Stratford, at approximately half the cost of cocaine and, according to Mr Odbert, he thereafter switched his addiction to that narcotic after discovering that it gave him a euphoric high, with a greater “punch” than cocaine, while still allowing him to function at work.

He says that methamphetamine thereafter became his principal and very substantial addiction, for at least 10-15 years, and that, although his use of the narcotic increased on week-ends, not a day went by without his using it. o Mr Odbert’s testimony included details of his weekly drug purchases, during which he simultaneously would purchase as much narcotics as possible to get him through the week.

In that regard, he provided details of price and quantity, and information indicating that his habit of purchasing drugs in large quantities on a weekly basis effectively was reinforced by frequently pooling funds with co- workers to purchase greater quantities of drugs, (e.g., up to 28 grams or an ounce), at discounted prices. o Over nearly the same 20 year period, (from approximately 1994 to 2014), Mr Odbert lived in the same neighbourhood of Stratford, purchasing a home on Whitlock Street.

It was not a pleasant neighbourhood, and Mr Odbert’s financial circumstances required him to take in boarders, many of whom were described as a “bad group of people”. o Notwithstanding his prolonged and daily use of narcotics, Mr Odbert was able to hang on to steady and lucrative employment for many years.

In that regard, he says that he generally was a good worker, (apart from times when he was overcome by his addictions), and that he was able to “mask” his drug dependency well for many years, as his use of certain drugs ironically increased his work performance at times, leading to promotion. o However, Mr Odbert’s struggles with alcohol and substance abuse continued, leading to periodic efforts at rehabilitation through the assistance of the Homewood health and addiction treatment centre, (“Homewood”), located in Guelph, Ontario.

In particular: ▪ In or about 2005, following numerous convictions for impaired driving, Mr Odbert proactively approached his employer, on the advice and recommendation of a friend, and asked for assistance to attend Homewood for addiction treatment.

▪ During his ensuing first stay at Homewood, Mr Odbert was made to realize that his problems included not only a serious addiction to alcohol, but to cocaine as well. ▪ Unfortunately, that initial Homewood stay and follow up treatment, including participation in Narcotics Anonymous, did not prevent Mr Odbert from resuming his addictive behaviour, and he was sent to Homewood again in 2012 to address problems with alcohol and methamphetamine dependency.

A full psychiatric assessment confirmed that Mr Odbert’s addictions were related to feelings of low self- worth and PTSD, apparently resulting from his experience with abuse. ▪ Documentary evidence, including treatment and discharge summaries, was filed to confirm the involvement of Homewood in Mr Odbert’s attempts at treatment for his addictions. o Mr Odbert says that, notwithstanding such efforts, and approximately 18-24 months of generally remaining “clean”, he relapsed into his addiction to methamphetamine in 2013, with devastating consequences.

In particular, according to Mr Odbert, in August of 2013 he finally lost his employment at Hendrikson because of an addiction relapse, which rendered him unable to perform his work duties, in turn leading to a growing problem of significant and noticed absenteeism without timely production of appropriate explanatory notes from a physician. At that point, the employer already had sent Mr Odbert to rehabilitation programs twice, without lasting success.

Mr Odbert says he therefore was terminated after conclusion of a grievance process initiated by his union, albeit with a severance package, finalized in October of 2013. Details of the package were confirmed by minutes of settlement filed as an exhibit, but included a monetary settlement, (one week’s pay for each year of employment), a letter of reference, and a further limited period of benefits. o Mr Odbert described the period following his loss of employment, from the fall of 2013 to the spring of 2014, as a very challenging “long winter”.

In particular: ▪ He says he used the funds from his severance package to pay off debts, but his employment income had come to an end. ▪ Moreover, his loss of employment at Hendrikson made it more difficult for Mr Odbert to locate suitable boarders through his workplace, and that in turn led to further difficulties.

In particular, boarders obtained through services such as Kijiji frequently turned out to have employment and substance abuse issues of their own, causing Mr Odbert to have not only financial and eviction problems, (including requests for police assistance after his property was vandalized by boarders who refused to leave), but further exposure to Stratford’s drug culture. ▪ At or about the same time, his long term partner split up with him, and he lost his primary means of transportation, (a motorcycle), through mechanical problems he was unable to address. ▪ Mr Odbert testified that all of these simultaneous problems proved overwhelming, and his relapse into use of crystal methamphetamine became even more pronounced as he started to descend down that path. ▪ According to Mr Odbert, he reached a point where his bank account was substantially in overdraft, and he eventually felt obliged to sell his house on Whitlock Street.

That was done through a real estate agent in June of 2014, (as confirmed by an agreement of purchase and sale entered as an exhibit), which resulted in net sale proceeds of approximately $26,000, (as confirmed by bank statements entered as exhibits). Mr Odbert says the house sale also was done with a view to ending his exposure to problematic boarders, with their own drug problems, and severing his ties with neighbourhood associations that, in his view, kept pulling him back into active addiction.

He says he was contemplating a move away from Stratford, and pursuit of a fresh start elsewhere. ▪ Notwithstanding such aspirations, Mr Odbert says his problems with methamphetamine addiction continued. In particular, Mr Odbert says the type of methamphetamine then readily available in Stratford, from numerous sources, (including a number of locations between his residence and the corner store), was far more powerful than that to which he originally became addicted.

Moreover, Mr Odbert says he was obliged to purchase increasing quantities of it, as his “wrecked nose” made it necessary for him to smoke the drug, in order to achieve the same high. Mr Odbert says that, towards the summer of 2014, his average weekly purchases were as much as a quarter ounce, (approximately 7 grams), to half an ounce, (approximately 14 grams), with the purchase price fluctuating according to supply and demand, but 14 grams costing an average of 700 to 900 dollars.

In that regard, Mr Odbert said that he had come to the point where he usually was purchasing half an ounce of methamphetamine at a time, for his personal use.

However, Mr Odbert further testified that, “towards the end”, he also was resorting to more frequent purchases because others would access and use his intended weekly supply, leaving him with insufficient amounts to “make it” through the week. ▪ In the course of that continued and intensive purchase and use of methamphetamine, Mr Odbert said he admittedly made some further terrible choices, and “nothing panned out” in terms of his attempts to start a new life.

In particular, he said the net sale proceeds from the sale of his home were quickly depleted by payment of bills, his making of loans to others that were not repaid, his expenditures incurred in relation to failed attempts to secure new employment and transportation, and his continued purchases of substantial quantities of methamphetamine. ▪ Mr Odbert testified that, by September of 2014, his addition to methamphetamine was extremely strong, he was in full “adult care mode”, and he woke up each day hoping he would “no longer be on the planet”.

As he no longer had a home of his own, he generally was using the home of his mother, (located at the Devon Street address mentioned above), as his principal residence.

However, Mr Odbert nevertheless often spent time elsewhere, as he was experiencing a “very bad relapse” in his use of methamphetamine, was in “active addiction”, and neither he nor his mother wanted her to see him in that state. • After providing that detailed background information, Mr Odbert went on to give his explanation for the movements admittedly observed by the police on September 18 and 19, 2014, and the circumstances which, he says, resulted in the discovery of the 16.4 grams of methamphetamine admittedly hidden in his shoe.

In that regard: o Mr Odbert said the incident arose out of his interactions with Lorena Howse, which in turn led to his interaction with Mr Riordan. o As far as Ms Howse is concerned, Mr Odbert said one of his boarders introduced Ms Howse to him as a person in need of

transportation between Stratford and Kitchener, to visit her children. In particular, at a time when Mr Odbert was unemployed, in financial duress, and desperate for money, Ms Howse offered to pay him $60.00 for each such trip, which effectively meant a $40.00 profit for Mr Odbert on each such occasion, after paying for gas.

According to Mr Odbert, he therefore began driving Ms Howse to the Knights Inn in Kitchener at least once a week, dropping her there and picking her up on Sundays for the return trip to Stratford. o Mr Odbert testified that, in the course of such drives, Ms Howse learned that he was using methamphetamine, and he began obtaining his drugs through her.

By September of 2014, Mr Odbert had stopped obtaining methamphetamine from others in Stratford, and was getting his supplies primarily through Ms Howse. o He also said that, when he came into money upon the sale of his house, Ms Howse was one of those to whom he lent money, in response to a “cock and bull story” Ms Howse told to gain his sympathy, and which he foolishly believed. (In that regard, Mr Odbert emphasized that he was passive and pliant when using methamphetamine, which made him too trusting, and willing to go along with requests from others far too easily.) In particular, Mr Odbert testified that he loaned Ms Howse the sum of $2,000; a transaction said to correspond with a similar cash withdrawal entry documented in the bank records filed as defence exhibits.

Mr Odbert went on to say that, although he then repeatedly asked Ms Howse to repay the loan, as he continued to drive her to and from the Knights Inn in Kitchener, she repeatedly failed to comply. He says that, on occasion, she would respond by offering him methamphetamine in lieu of cash, and recalled a particular occasion on which she supplied him with an “eight ball”, (i.e., an eighth of an ounce of methamphetamine), in partial repayment of the loan.

However, although he accepted the drugs to feed his addiction, Mr Odbert found such “barter” repayment problematic, as Ms Howse was controlling the value assigned to the drugs she was giving him. Moreover, Ms Howse frequently would have neither money nor drugs to give him, effectively forcing Mr Odbert to use more of his own money to purchase methamphetamine from Ms Howse or her companions. o According to Mr Odbert, as his finances dwindled, his relationship with Ms Howse became more strained and problematic.

He says that he did not want to be around her, and was receiving threats from her boyfriend, but that he also did not want to walk away from the money he was owed, Ms Howse was able to supply methamphetamine to feed his addiction, and Mr Odbert also had come to fear getting “beaten up” by associates of Ms Howse if he stopped complying with her requests. For all such reasons, he generally felt it was in his “best interests” to keep doing what she wanted. o According to Mr Odbert, he was travelling from Stratford to the Knights Inn, on September 18, 2014, because Ms Howse was going to repay the money she owed him.

He said that he had spoken with Ms Howse directly, a short time before, during one of their drives, when he told her he could not afford to continue doing what he had been doing without repayment of his loan, and that he wanted to be “squared up” with her. He knew that she recently had been arrested for trafficking, which in his mind increased the urgency of her repaying him as soon as possible.

According to Mr Odbert, they accordingly then had agreed on the best time for him to come and retrieve the balance of his money from Ms Howse in Kitchener, which led to his driving from Stratford to Kitchener that evening.

He said that, at the time, he had only the money later found on his person to his name, and he therefore was somewhat desperate for repayment of the remaining money owed to him by Ms Howse. (His assertions in that regard were corroborated to some extent by the bank documents filed as exhibits, which seemed to confirm that Mr Odbert had parted with all of the net sale proceeds from his house in less than 3 months.

At the time, he still had not found employment, and he was not receiving any income or benefits.) o Mr Odbert testified that, at the same time, he also had been asked directly or indirectly by Ms Howse to bring Mr Riordan along with him from Stratford to Kitchener, for reasons unknown. In that regard, Mr Odbert acknowledged in his testimony that he had met Mr Riordan before, on 2-3 earlier occasions, including an occasion when Ms Howse had asked for Mr Odbert’s assistance in getting Mr Riordan out of her residence by driving him home.

Mr Odbert claimed that he did not know the precise relationship between Ms Howse and Mr Riordan, but Ms Howse had described Mr Riordan as being “family” in some way. In any event, according to Mr Odbert, he had no idea what the “deal was”, in terms of why he was being asked by Ms Howse to also drive Mr Riordan to Kitchener on the evening of September 18, 2014, apart from speculation that Mr Riordan perhaps owed Ms Howse some money, which he would give to Ms Howse before she then gave it to Mr Odbert, in satisfaction of her outstanding loan.

Mr Odbert claimed that he personally did not trust Mr Riordan or like being around Mr Riordan, as he understood Mr Riordan to be a “disreputable character”. (Indeed, he claimed that, when Mr Riordan got into the vehicle that evening, he was holding a plastic owl he admittedly had just stolen from someone’s nearby porch.) However, based on past experience, Mr Odbert thought it more likely that Ms Howse would do what he wanted, (in terms of repaying her loan), if Mr Odbert agreed to do what she wanted.

Conversely, Mr Odbert thought a refusal to do what Ms Howse wanted would make repayment of her loan more unlikely, which in turn would make it more difficult for Mr Odbert to obtain the drugs he needed. o Mr Odbert says that he consumed methamphetamine before leaving on the drive from Stratford to Kitchener, and was therefore “paranoid and sweating” when, shortly after leaving his mother’s house that evening, and driving approximately two blocks, he was pulled over by Officer Hartley of the Stratford police and given three tickets, which he subsequently “fought” in court: i.e., one ticket for use of a handheld device while driving, and two more for not having insurance documentation and a driver’s licence with updated address information, in the wake of his house sale and relocation.

Mr Odbert expressed surprise that Detective Clarke had not included any mention of that traffic stop in his account of the SCU surveillance conducted that evening. (Following Mr Odbert’s testimony, Crown counsel made further inquiries before deciding whether to call reply evidence, and was able to confirm that the earlier traffic stop had indeed taken place as described by Mr Odbert.

In the circumstances, the Crown agreed to a formal admission in that regard, indicating that there would be no need for the officer who conducted the traffic stop to be called as a witness.) o After picking up Mr Riordan in downtown Stratford, Mr Odbert claimed that the first stop made at the Pavey Street address in Woodstock, on the night of September 18, 2014, was for an entirely benign reason.

In particular, he says that was a stop made at the residence of his friend “Kim”, in order to check in on her, (as she was dealing with some unspecified issue), and to see whether he could spend the night there on his way back from Kitchener, as he frequently did so when he was “using” to avoid contact with his mother. In that regard, Mr Odbert indicated that Kim also was addicted to methamphetamine, and he previously had seen and shared in the use of methamphetamine at Kim’s residence in the past.

Indeed, that was a reason why he frequently asked to stay there, as he regarded it as a place of safety where he likely could use or share in the use of methamphetamine supplied by others. On the night of September 18, 2014, however, Mr Odbert says it turned out to be a relatively short visit to Kim’s residence, as he could tell very quickly that Kim was upset about something and in “no frame of mind” to permit any overnight stay.

o In cross-examination, Mr Odbert acknowledged that gas was valuable to him, that Woodstock was off the most direct route between Stratford and Kitchener, and that he admittedly could have called Kim, instead of attending in person at her residence. However, he emphasized that he also wanted to see her, to see how she was coping with unspecified issues. Moreover, he says that he was upset and angered about previous use of his cellphone in the car that evening, having just received multiple tickets for doing so.

He readily conceded that much of what he did in that regard may not have been sensible or rational, but attributed that to his drug consumption at the time. He firmly denied having gone to the Pavey Street address to deliver methamphetamine. o According to Mr Odbert, he then intended to proceed with Mr Riordan directly to the Knights Inn in Kitchener, but Mr Riordan began saying, approximately two blocks from the entrance ramps to Highway 401, that he needed to make a stop at the Husky gas station on Highway 401, west of Woodstock.

Mr Odbert claims he was angered by and initially resisted the request, emphasizing that the suggested stop was in the wrong direction vis-à-vis the Knights Inn, but he relented and drove to the Husky station when Mr Riordan offered to buy him gas if he agreed to go. o Mr Odbert testified that, once at the Husky station, he focused on pumping gas rather than Mr Riordan, although he did see Mr Riordan leave the store and walk towards a vehicle, and wondered what Mr Riordan was doing.

Mr Odbert said that, by the time he finished pumping and paying for his gas, washing his windshield, and checking his oil, Mr Riordan still had not returned to the vehicle, so Mr Odbert went looking for him, driving over in the direction he had gone. Seeing him in a white pick-up truck with an unknown male, Mr Odbert pulled up, asked whether Mr Riordan was coming with him, and that is said to have prompted Riordan to immediately get back in Mr Odbert’s car for their departure to Kitchener.

According to Mr Odbert, that was the sum total of his entire knowledge of why the men had gone to the Husky stop, and what had happened there from his perspective. He acknowledged that, at the time, it crossed his mind that Mr Riordan could have been engaged in a drug deal, but he also knew that Mr Riordan dealt in stolen goods. However, Mr Odbert emphasized that he did not know what the two men actually were doing.

In that regard, he said he did not want to know, (as he really wanted nothing to do with either man or their business), but also was in what he called an “I don’t care mode”, because of the amount of drugs he was using. o Mr Odbert said he and Mr Riordan then proceeded to the Knights Inn, as originally planned, with his intended purpose still being retrieval of the money owed to him by Ms Howse. On arrival, he said he found Ms Howse in a room with a number of other persons Mr Odbert described as “scary people”; i.e., a bunch of people who had “just got out of prison” and “didn’t mind killing people”.

In the circumstances, he says he felt uncomfortable about pressing Ms Howse directly for money, and he instead was “sat down” and invited to smoke drugs with the group who was there. He says he did so, becoming “more high” than he already was. o Mr Odbert testified that, during his ensuing time at the Knights Inn, he indulged in drugs, along with numerous other people using a huge smoking device with several hoses leading from it. He says “grams and grams” of methamphetamine repeatedly were fed into the device, and he became “stoned”.

He recalled leaving the motel to purchase coffee for himself and others in the motel room from the nearby Tim Horton restaurant, and acknowledged that he was looking around and into vehicles while he did so, but denied that he was engaged in any form of “counter-surveillance”.

He claimed that he was instead simply focused on his own safety and security, as “very bad dudes hung out” in that area, leading to “a couple of fights” around the Knights Inn a week earlier, and he simply wanted to ensure that he got to the Tim Horton restaurant and back “in one piece”. o Mr Odbert claimed that, at some point before leaving the motel for the drive back to Stratford, Ms Howse addressed his demands for repayment of the loaned money. In particular, he followed her away from the group, at her request, only to find that she once again just had drugs, and no money to give him.

At that point, according to Mr Odbert, Ms Howse gave him more methamphetamine in lieu of cash; i.e., the 16.4 grams of methamphetamine later found in his shoe. In that regard, Mr Odbert said the drugs were not measured before being presented to him, (and he did not ask for the drugs to be weighed as he knew it would displease Ms Howse), but he had a memory, despite being “pretty barbequed at the time”, of their supposedly having a value of $900.

In particular, Mr Odbert recalled thinking it was unfair that Ms Howse effectively would receive a credit for $900 towards repayment of her loan, (i.e., the price at which Ms Howse would have sold the drugs to him), when she herself probably could obtain such drugs from her supplier for only $600. He could not recall if Ms Howse communicated, in any way, what she thought the remaining balance of his loan would be. However, he testified that he nevertheless accepted the drugs, in lieu of a cash payment, as that would at least supply him with methamphetamine for the coming week.

In particular, it seemed to him that the quantity of drugs being given to him was approximately half an ounce; an amount that would feed his then habit of consuming 2-3 grams a day of the substance. Mr Odbert acknowledged being quite aware that Ms Howse supplied drugs to others for resale, but emphatically denied that she had ever supplied him with drugs for that purpose, on the night of September 18, 2014, or on any other occasion.

He said the two of them had never had any such discussions. o Mr Odbert testified that he had no clear memory of why he put the methamphetamine in his shoe, as he was “stoned out of his mind” by then.

However, he generally felt the drugs were now his, he knew that he would not be using them on his way home, (as he was already “high”), and his shoe seemed like a safe place for them. o Mr Odbert testified that, because of his drug consumption before arriving at the Knights Inn, and his almost two hours of further drug consumption while there, he has only vague memories of leaving, although he does recall getting angry again with Mr Riordan because he, (Mr Riordan), wanted to stay for several more hours while Mr Odbert wanted to leave. o However, Mr Odbert specifically denied that he had any plans to share or sell the drugs supplied to him by Ms Howse.

He similarly denied that he was picking up the methamphetamine for anyone in Stratford. He acknowledged having shared methamphetamine with others in the past, if they were in his house, (and that friends in turn had shared methamphetamine with him), but he no longer trusted anyone in Stratford and was trying to end his associations there. He was emphatic that he had never sold methamphetamine or any other drugs to anyone, that he had no intention of doing so on this occasion, and that he never had been willing to do that to make Ms Howse happy.

He claimed that, when he left the Knights Inn, his plan was simply to “get rid of” Mr Riordan, whose presence in the car gave him a “bad vibe”, sneak into his mother’s house without her seeing him and registering her disapproval, and thereafter use the drugs for his personal consumption. In broader terms, Mr Odbert emphasized that, at the time, he was desperate and reckless, in terms of his survival, without caring much about what happened to him, and that he frankly did not plan on surviving the month.

It was only his arrest on the morning of September 19, 2014, and his subsequent attendance at a new “detoxification” facility almost immediately thereafter, which ended his downward spiral.

[26] With the above evidence in mind, I turn first to the issues raised by the Charter application brought by the accused. Charter analysis [27] As noted above, that application seeks to exclude evidence of the methamphetamine found in the possession of the accused;i.e., on the basis it was discovered and seized through alleged contraventions of Mr Odbert’s right to be free from unreasonable searchand seizure, (pursuant to

section 8 of the Charter), and/or his right not to be arbitrarily detained, (pursuant to

section 9 of the Charter), incircumstances warranting its exclusion pursuant to s.24(2) of the Charter. [28] I think it self-evidently necessary and appropriate to address and decide those Charter issues before moving on to aconsideration of whether the Crown has proven all essential elements of the offence charged beyond a reasonable doubt. [29] Certainly, if evidence of the relevant methamphetamine is excluded, there obviously will be no possibility of provingpossession of that controlled substance by the accused, let alone possession for the purpose of trafficking. [30] However, before turning to a more detailed assessment of the parties’ positions and arguments, in relation to the accused’sCharter application, I pause to note a number of general principles relevant to the application of sections 8 and 9 of the Charter, in orderto provide a general framework for that analysis.

GENERAL PRINCIPLES – SECTIONS 8 AND 9 OF THE CHARTER [31] In that regard, our Supreme Court has emphasized that detention and search issues should be kept analytically distinct,because they stem from different police powers and must respect different Charter rights. See R. v. MacKenzie, 2013 SCC 50 ,[2013] 3 S.C.R. 250, at paragraph 36. [32] In relation to

section 8 of the Charter, general principles and considerations include the following: •

Section 8 of the Charter guarantees a broad and general right to be secure from unreasonable searches and seizures, which extendsat least so far as to protect the right of privacy from unjustified state intrusion. Its purpose requires that unjustified searches beprevented. It may not be reasonable in every instance to insist on a prior authorization order to validate governmental intrusions uponindividuals’ expectations of privacy. For example, exigent circumstances may require immediate action for the safety of police and/or tosecure and protect evidence.

However, prior authorization, where feasible, is a precondition for a valid search and seizure. It follows,(as noted above), that warrantless searches are ordinarily inconsistent with

section 8 of the Charter, and prima facie unreasonable undersection 8. A party seeking to justify a warrantless search bears the onus of rebutting the presumption of unreasonableness. See Canadav. Southam Inc., (SCC), [1984] 2 S.C.R. 145; and R. v. Feeney, (SCC), [1997] 2 S.C.R. 13, atparagraph 52. • In that regard, a warrantless search will respect

section 8 if the search is authorized by law, and both the law and the manner inwhich the search is conducted are reasonable. See R. v. Feeney, supra, at paragraph 46. • However, the long-standing common law power of “search incident to arrest” is an exception to the general rule that a searchconducted without prior authorization is presumptively unreasonable. That common law power is regarded as “eminently sensible”, and“essential for the protection of police officers carrying out their all too often dangerous duties”. See: R. v. Stillman, (SCC), [1997] 1 S.C.R. 607, at paragraph 33; R v.

Golden (2001), 2001 SCC 83 , 159 C.C.C. (3d) 449 (S.C.C.), at p.488; and R.v. Blazevic, [2010] O.J. No. 67 (S.C.J.) at paragraph 80. • In particular, at common law, after making a lawful arrest, a police officer has the right to search the person arrested and take fromhis person any property reasonably believed to be connected with the offence charged, or which might be used as evidence against theperson arrested on the charge, or any weapon or instrument that might enable the arrested person to commit

an act of violence or effecthis escape. See R. v. Rao, (ON CA), [1984] O.J. No. 3180 (C.A.), at paragraph 38. • That automatic right of police officers to sea

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