



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kennedy, 2021 ONCA 378

DATE: 20210603

DOCKET: C67363

Simmons, Gillese and Huscroft
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bradley Kennedy

Appellant

Chris Rudnicki and Angela Chaisson, for
    the appellant

Victoria Rivers, for the respondent

Heard: May 25, 2021 by video
    conference

On appeal from the conviction entered on
    December 6, 2018, by Justice Robert W. Rogerson of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

This is an appeal against conviction for
    possession of methamphetamine (meth) for the purpose of trafficking. The
    appellant argues that the verdict is unreasonable, and that the trial judge
    erred in admitting and relying on anecdotal evidence of the police expert that
    he had never spoken with anyone who said they had picked up, for personal use,
    an amount of meth in excess of 3. 5 grams (the impugned testimony). Relying
    on
R. v. Sekhon
, 2014 SCC 15, [2014] 1 S.C.R. 272, the appellant
    argues that the impugned testimony was inadmissible because it was irrelevant,
    unnecessary, and more prejudicial than probative.

[2]

For the reasons that follow, the appeal is
    dismissed.

Background in Brief

[3]

The appellant left a drug house after purchasing
    a single bag of 28 grams of meth for $800. The residence was under police
    surveillance. After leaving the residence, the appellant got into a taxi. He was
    arrested shortly afterwards and taken to the police station. Shortly afterwards,
    the police found the bag of meth hidden between the seat cushions in the back
    of the police cruiser.

[4]

The appellant admitted possession of the drugs. The
    sole issue at trial was whether that possession was for the purpose of
    trafficking.

[5]

After reading in agreed facts, the Crown called
    a single witness  a police officer who was qualified as an expert in the areas
    of pricing and purchasing of crystal meth, and the consumption habits and use
    of crystal meth by people in the community. Defence counsel at trial conceded
    his expertise and that it met the preconditions for threshold admissibility 
    relevance and necessity. Trial counsel did not object to any aspect of the
    expert testimony.

[6]

The expert explained that meth is commonly sold
    by point, which is the equivalent of a tenth of a gram. The average cost of 0.1
    grams is ten to twenty dollars. The price range for 28 grams is between $800
    and $1,200. He testified that it was his opinion that the 28 grams of meth the
    appellant possessed was for the purpose of trafficking. When asked by the prosecutor
    why he was of that opinion, the expert gave the impugned testimony. He
    immediately added that there were many reasons why purchasers for personal use bought
    much smaller quantities. He gave three reasons. First, the cost of the drugs in
    issue in this case was around $1,000. A person struggling with addition does
    not generally have that amount of disposable income readily available. Second,
    buying such a quantity leaves the purchaser open to the risk of robbery and
    theft from other addicts. Third, the purchaser of a quantity of this sort is at
    greater risk of being caught by the police.

[7]

The appellant testified on his own behalf. He
    said he was going to use all of the meth himself and not share or sell any of
    it. He was 38 years old at the time and had previously been addicted to meth in
    his twenties. He had been clean for 14 years but relapsed about a year prior to
    his arrest. At the time of his arrest, the appellant was divorced, unemployed,
    addicted to meth, and subsisting on rental payments from tenants  also meth
    users  who shared what had been his family home. He claimed he could easily go
    through a gram of meth a day and could binge for several days at a time. He
    explained that although the tenants in his home were transient and rarely paid
    rent on time, the day before his arrest, for the first time, the tenants had
    paid the full $2,000 in rent. The appellant testified that the dealer had given
    him a pipe and syringe, but these were not found on his person when he was
    arrested.

[8]

The trial judge rejected the appellants
    testimony, finding it was fluid and inconsistent at the best of times. He
    noted discrepancies in the appellants testimony about how he got the money,
    where he got it from, and whether he got it in cash or partly from cheques. He
    found the appellants testimony to be internally and externally inconsistent.

[9]

The trial judge concluded by stating:

The ounce of methamphetamine, which is an
    extremely large amount, as the expert has indicated, and is certainly many
    times what a normal user would buy, is indicative of possession for the
    purposes.

Analysis

[10]

We do not accept that the police expert made a
Sekhon

error. He did not extrapolate from inadmissible anecdotes to impute guilt
    on the part of the Appellant. The expert simply explained that he had never
    encountered anyone who had purchased meth for personal use in quantities beyond
    3.5 grams. His opinion that the appellant possessed the meth for the purpose of
    trafficking was grounded in objective facts: the inherent risks a purchaser
    encounters in possessing such a large quantity, including possible theft from
    other addicts; the tenants in the appellants home were meth addicts; the
    appellants precarious financial situation; and, the significant cost of one
    ounce of meth in the appellants financial circumstances.

[11]

In any event, the trial judge appears not to
    have relied on the impugned evidence: his analysis makes no mention of it.
    Rather, he relied on the reasons the expert had given for why purchasers for
    personal consumption usually bought in much smaller quantities.

[12]

Nor do we accept that the verdict is
    unreasonable. Having rejected the appellants testimony as incredible, the
    trial judge concluded that no reasonable inference other than possession for
    the purpose was available on the evidence. On the appellants own evidence, as
    well as that of the expert, this was a significant quantity of meth. Although
    the appellant had not been under surveillance and the circumstances of his
    arrest lacked other indicia of trafficking, indicia of personal use were also
    lacking. In the absence of an explanation, the trial judge was entitled to draw
    an inference of guilt.

Disposition

[13]

Accordingly, the appeal is dismissed.

Janet Simmons J.A.

E.E. Gillese
    J.A.

Grant Huscroft
    J.A.


