SUPREME COURT OF PRINCE EDWARD ISLAND Citation: R. v. O Halloran 2013 PESC 22 Date: 20131029 Docket: S2-GC-130 Registry: Summerside Her Majesty the Queen and Christopher Raymond O Halloran Before: The Honourable Justice Wayne D. Cheverie Appearances: Jonathan B. Greenan, solicitor for the Crown Christopher Montigny, solicitor for the accused Place and dates of trial - Summerside, Prince Edward Island June 4, 5 & October 18, 2013 Place and date of oral decision - Charlottetown, Prince Edward Island October 29, 2013
Page: 2 Criminal law - accused charged with trafficking and possession for the purpose of trafficking in Oxycodone contrary to Controlled Drugs and Substances Act - no evidence presented by the defence - accused found guilty of trafficking and not guilty of possession for the purpose of trafficking. CONSIDERED: Canadian Charter of Rights and Freedoms, s-s. 24(2); Canada Evidence Act, RSC 1985, c. C-5, s-s. 9(1). Cheverie J. (orally) Introduction [1] Christopher Raymond O Halloran stands charged that on or about Thursday, the 7 th day of September, 2012 at or near Summerside, Prince County, Province of Prince Edward Island; he did: And: Count 1: Traffic in a controlled substance, to wit: Oxycodone, contrary to sections 5(1) and 5(3)(a) of the Controlled Drugs and Substances Act, S.C. 1996, C. 19 and amendments thereto. Count 2: Unlawfully possess a substance included in Schedule 1, to wit: Oxycodone, for the purpose of trafficking, contrary to sections 5(2) and 5(3)(a) of the Controlled Drugs and Substances Act, S.C. 1996, C. 19 and amendments thereto. For reasons offered on September 23, 2013, I concluded O Halloran s s. 8 and s. 9 Charter rights had been violated and I went on to exclude all evidence seized from him pursuant to s-s. 24(2) of the Charter. [2] On October 18, 2013, the trial continued. With the express consent of counsel, the evidence of Cpl. Cook, Cst. Mintie, and Cst. Corish taken on the voir dire up to the time of O Halloran s unlawful arrest was incorporated into the trial proper. The Crown then continued its case by recalling Cpl. Cook, and then calling Justin Owen, who was the target of police surveillance on September 7, 2012.
Page: 3 [3] In his summation, counsel for O Halloran properly reminded the court of the basic principles of our criminal justice system, in particular, the presumption of innocence and the burden of proof. It is true that Mr. O Halloran is presumed innocent unless and until the Crown has proven his guilt beyond a reasonable doubt. He does not have to present evidence or prove anything. It is the Crown which bears the burden of proof from beginning to end. That burden of proof requires the Crown to prove each of the elements of each of the offences beyond a reasonable doubt. [4] As to the standard of proof required for conviction, I am mindful that a reasonable doubt is not a far fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. To the contrary, it is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence. [5] Probable guilt is not proof beyond a reasonable doubt. However, the Crown is not required to prove its case to absolute certainty. Our law does not require that because absolute certainty is a standard of proof that is impossibly high. Therefore, if at the end of the case, after considering all the evidence, I am sure Christopher Raymond O Halloran committed the offences charged, or any of them, I should find him guilty of those offences. [6] Turning now to Count #1 in the indictment - trafficking. In order to find O Halloran guilty of trafficking in Oxycodone, the Crown must prove the following essential elements beyond a reasonable doubt: (i) (ii) (iii) (iv) That O Halloran trafficked in a substance; That the substance was Oxycodone; That O Halloran knew that the substance was Oxycodone; and That O Halloran intentionally trafficked in Oxycodone. [7] O Halloran has the right to remain silent. He exercised his right in this case and did not testify. The defence called no evidence. Therefore, if O Halloran is to be found guilty of trafficking, in Count #1, I must be satisfied beyond a reasonable doubt that what remains of the Crown case after the Charter ruling establishes proof of each of the elements of the offence. [8] On September 7, 2012, Cst. Mintie was responsible for keeping Justin Owen in view and reporting his movements to the other members of the team. The evidence establishes that Owen was driving a red Grand Am motor vehicle on that date. Cst. Mintie testified he first observed this vehicle at 6:25 p.m. when it came off
Page: 4 Water Street in Summerside onto Read Drive, and went past the Esso at the intersection and into a vacant lot. He kept the vehicle under visual contact and approximately 15 minutes later, at 6:40 p.m., a white Ford Explorer pulled into the vacant lot and stopped next to the Owen vehicle, such that the driver s side of each vehicle was facing each other. [9] Cst. Mintie then described the movements of the Ford Explorer in the lot to the point where he clearly saw Justin Owen get out of the passenger side of the white Explorer and head to the driver side of his red Grand Am. Owen then left the vacant lot and headed back towards Summerside on Water Street, and on instructions from Cpl. Cook, Cst. Mintie and Cst. Corish stopped the white Ford Explorer in the parking lot of the Esso service station. Prior to placing the occupant of the Ford Explorer under arrest for possession for the purpose and trafficking in a controlled substance, Cst. Mintie testified he recognized him as Chris O Halloran, the accused in this case. I accept Cst. Mintie s evidence as an accurate depiction of the interaction between Justin Owen and Christopher O Halloran on September 7, 2012. [10] At the continuation of the trial on October 18, Crown counsel called Cpl. Cook back to the stand. He gave evidence concerning his arrest of Justin Owen. It was not necessary for him to repeat his experience as a police officer because he had testified on June 4, 2013 that he had been with the RCMP for over 17 years in four different provinces. He has experiences in four different drug units, including two street level drug units in British Columbia. He also worked as a drug investigator in Toronto, Ontario. By my calculations, Cpl. Cook has at least six or seven years experience in drug investigation and enforcement. [11] Cpl. Cook testified he followed Justin Owen from the Read Corner Esso intersection on September 7 th to his residence on St. Stephen Street in Summerside and arrested him at approximately 7 p.m. on that date for possession and possession for the purposes of trafficking. He seized Owen s cell phone at that time after Owen tried to stomp on it. His search of Owen incidental to arrest led him to seize 100 Oxycodone pills from Owen s left pocket together with ten other smaller pills. The search of Owen s vehicle turned up a straw with white residue on it, plus Oxycodone pills with a pill crusher, with two Endocet pills and six Oxycocet pills in them in the dash of the vehicle. Exhibit C-3 is the pill bottle seized from Owen which now has not quite 100 pills in it because some were sent off for analysis. Exhibit C-4 is the drug envelope and certificates of analysis on the substance in Exhibit C-3 which indicate the contents of the pill bottle were Oxycodone. It is conceded the certificates of analysis were properly served on the accused. [12] Exhibit C-5 is the cell phone seized from Owen on the date in question from which Cpl. Cook retrieved extensive text conversations, some of which appear in
Page: 5 Exhibit C-6 which is the photo sheet of the exhibits seized. Of particular note are the photos of the text messages that appear as numbers 15 and 16 in Exhibit C-6 where C-O sends a text to ME where he says he would meet that individual at Read s at 6:30. There is no doubt but that this exchange is between C-O (Christopher O Halloran) and Justin Owen. Another text exchange between these individuals has Owen asking O Halloran if he could stop by here for coffee asap. O Halloran responds in the affirmative. [13] I refer to this specific information at this point because Cpl. Cook was asked, in his experience, to comment on the reference to coffee in the text messages. He said that in Prince Edward Island, coffee refers to Percocets in the drug culture, and he says in other provinces it is used to refer to cocaine. [14] Cpl. Cook was not qualified as an expert in drug language. Nor was he examined extensively on his specified drug investigation and enforcement experience which would allow him to comment on the reference to coffee in the text messages. However, I find his testimony on this point reliable because, as will be seen, it was confirmed by Justin Owen who was not present in court to hear Cpl. Cook s testimony. [15] The Crown then proceeded to call Justin Owen. He is 29 years of age and is currently in jail for possession of Oxycodone for the purpose of trafficking. He confirmed he was arrested by Cpl. Cook and that he subsequently was sentenced to jail in March, 2013. He confirmed the 100 Oxycodone pills found in his pocket are those that appear as Exhibit C-3. He also confirmed Exhibit C-5 was his cell phone that was seized from him and that he used it to text O Halloran. He then identified O Halloran in court. [16] Owen testified he was arrested after leaving Read s Corner where he had gone to pay O Halloran for parts for his car. In particular, he said he paid O Halloran for tires. He said that was the only reason he was at Read s Corner on that evening. He did not receive anything from O Halloran at that time, but he did give him some money. He testified his meeting with O Halloran on that date was fairly brief. He confirmed the vehicle he was operating on that date was a red Grand Am, but denied he received the pills in Exhibit C-3 from O Halloran. He said he already had them in his possession before he met the accused on that date and that he got them someplace else. In short, he denies getting the pills from O Halloran, but he did give O Halloran money which he said was for tires. [17] Owen gave a statement to the police following his arrest on September 7, 2012 and after viewing that statement and hearing argument by counsel, I ruled Owen was adverse for the purpose of s-s. 9(1) of the Canada Evidence Act, RSC 1985,
Page: 6 c. C-5. He was then cross-examined by Crown counsel on his statement only. It is clear from the cross-examination by Crown counsel and questions by defence counsel that Owen was a drug addict at the time of his arrest. He confirmed he made no mention of tires in the statement he gave to the police. He confirmed the text messages that appear in Exhibit C-6 were between him and O Halloran, but he was going to see someone for coffee. He confirmed he has heard the word coffee used to refer to percs. At the time of his arrest he says he was using 15 to 20 percs a day at a cost of $8 a pill. He was snorting. This appears to be confirmed by the straw with the white residue and the pill crusher which were seized from his vehicle. He confirmed this was not his first arrest for drug violations. Defence counsel suggested to Owen that he was prepared to tell the police anything on the evening of September 7, 2012 in order to be released and Owen agreed with this statement. [18] My observation of Mr. Owen as he gave his statement to the police does not convey any semblance of pressure put upon him. Nor did he appear to be in any way agitated or anxious to move on. This wasn t his first arrest, so he knew the drill. [19] The inconsistencies between Mr. Owen s statement to the police and his sworn testimony in the court cast a shadow on his credibility. Defence counsel would suggest Owen told the police what they wanted to hear when he gave his statement so he could get out of there. There is evidence he actually consumed more drugs once he was released. Defence suggests Owen is telling the truth in court, but was not honest in his statement to the police. [20] Crown counsel suggests Owen s evidence in court is accurate except for his denial of purchasing drugs from O Halloran. The further suggestion is that when the evidence is looked at in its totality, the only reasonable conclusion is that a drug transaction had, in fact, taken place. [21] In my view, the evidence supports a finding that O Halloran and Owen were engaged in a transaction for Oxycodone pills on September 7, 2012. The evidence discloses, and the defence concedes, that the pills in Exhibit C-3 are Oxycodone, a Schedule I controlled substance under the Controlled Drugs and Substances Act. The evidence is clear Owen gave O Halloran money on that date. I believe him. However, in court he says the money was to pay O Halloran for tires he had purchased from him sometime earlier. That is a lie. [22] The suggestion that Owen drove to the vacant lot at the time suggested in his text messaging with O Halloran; that the vehicles met in the manner described by Cst. Mintie; that there was a brief exchange between O Halloran and Owen; that Owen was subsequently arrested shortly after the encounter in possession of Oxycodone pills in a bottle that he had not yet opened is inconsistent with an innocent
Page: 7 transaction for the payment of tires. The tire story is far fetched and suggested for the first time at trial. There is not one shred of evidence to support Owen s assertion. To the contrary, the only logical inference to draw from this set of facts is that Owen purchased drugs from O Halloran. [23] When Owen testified he was going to have coffee with O Halloran, I believe him. However, the coffee referred to is not the liquid variety for sale at Tim Horton s, but rather the Oxycodone which was sold to Owen by O Halloran for Owen s personal use and his subsequent resale to others. [24] On the whole of the evidence as it relates to Count #1, I am sure Christopher Raymond O Halloran intentionally sold Oxycodone pills, which he knew to be such, to Justin Owen on September 7, 2012. Therefore, I find O Halloran guilty of trafficking as charged. [25] Count #2 in the indictment alleges O Halloran was in possession of Oxycodone for the purpose of trafficking. The first essential element of that offence is that O Halloran must be shown beyond a reasonable doubt to be in possession of a substance that was determined to be Oxycodone. Although I have found that he did sell Oxycodone to Owen, and thus transferred that substance to Owen, there is no evidence before me to substantiate a charge of being in possession for the purposes of trafficking. Therefore I find him not guilty on Count #2. October 29, 2013 J.