Drug possession appeal based on police expert witness

Law360 Canada (January 19, 2024, 12:49 PM EST) --

John Hill

It seemed to be just another day for Benjamin MacAdam as he stopped by a house in the northwestern Ontario Township of Nipigon and drove his truck to a nearby Tim Hortons a few minutes later. When he returned to his truck, he was approached by police. The house he had briefly visited had been under surveillance because police believed it to be occupied by a drug dealer.

The police arrested MacAdam, read him his rights, and asked if a search of his truck incidental to arrest would result in the discovery of drugs. MacAdam volunteered that the police would find “a couple of ounces” of cocaine. When the vehicle was searched, one hundred and twelve grams of cocaine was located. That was the equivalent of 4.2 ounces of cocaine.

MacAdam was charged with possession for the purpose of trafficking. On March 17, 2021, he was convicted in the Ontario Court of Justice, which imposed a sentence of six months incarceration, two years probation, and ancillary DNA and weapons prohibition orders.

MacAdam appealed. The Ontario Court of Appeal decided to quash the conviction on Jan. 10, 2023 (R. v. MacAdam 2024 ONCA 13).

The Toronto-based criminal defence team of Anthony Moustacalis and Aidan Seymour-Butler successfully argued that the trial judge had misapprehended the police expert called at trial. The expert at trial was a police officer who had conducted numerous investigations as a member of a drug enforcement unit. He testified that the quantity of drugs seized was indicative of trafficking. Yet the prosecution had no evidence that MacAdam had sold any material.

The expert at trial conceded that there may be exceptions that a person holding such quantities of a drug could possess the substance for personal use rather than for resale. For example, if a person lived in a remote area or if the person in possession of the drugs could get a better deal by buying in bulk or if the person was a heavy user and needed excessive quantities for pain relief, would it not be consistent that a person could have a large amount and still not be a trafficker?

The trial judge discounted those arguments, noting that the facts supporting the hypothetical situations advanced were not in evidence. The trial judge accepted the expert's first conclusion that the large quantity found in the MacAdam truck proved he was a drug trafficker.

The Court of Appeal found such reasoning to be in error. In cases where the evidence of guilt is circumstantial, inferences inconsistent with guilt do not have to be based on proven facts. It is the logic and experience of the expert when applied to the evidence on hand that is crucial, not speculation (R. v. Villaroman 2016 SCC 33).

In this case, the police expert had conceded that in certain circumstances, possession of a large quantity might not be consistent with trafficking. The Court of Appeal decision rested on the view that the defence counsel had discounted the expert opinion sufficiently, and it would be dangerous to convict. The court held: “In our view, the meagre evidence connecting the appellant with trafficking, coupled with the expert’s statement that the amount could be consistent with the personal use of a heavy user living in a remote area without ready access to dealers, ought to have raised a reasonable doubt as to trafficking.”

The Court of Appeal apparently recognized that the trial judge had effectively reversed the onus to convict the accused person. The onus, of course, remained with the prosecution to demonstrate that MacAdam had trafficked in cocaine.  When this was not in evidence and exceptions to the expert’s opinion could be demonstrated, the conviction was rightfully quashed.

The ends of justice could be served by substituting the six-month custodial sentence for the one month MacAdam had already served. His probation had been completed without incident. Noting that MacAdam had continued efforts at rehabilitation, he was gainfully employed, and he was abstaining from drugs, the proper charge would be simple possession.  The ancillary orders were also quashed.

Finding a person in possession of a massive cache of drugs, especially when an investigation into drug trafficking is ongoing, allows many people to jump to the conclusion that the accused person must be guilty. MacAdam had the trafficking conviction set aside not because of some loophole or technicality but rather by operation of the standard that to convict, every element of an offence must be proven beyond a reasonable doubt. The Court of Appeal must be applauded for relying on these principles.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

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