SUPREME COURT OF Nova Scotia
Citation: R. v. Elms, 2020 NSSC 387
Date: 20201116
Docket: CRT. No. 480291
Registry: Truro
Between:
Her Majesty The Queen
v.
Roger Phillip Elms
Defendant
DECISION
| Judge: |
The Honourable Justice Jeffrey R. Hunt |
| Heard: |
September 8, 9 & 10, 2020, in Truro, Nova Scotia |
| Oral Decision: Written Release: |
November 16, 2020 January 28, 2021 |
| Counsel: |
Lee-Ann Conrod, Crown Counsel Jeffrey Lattie, Defence Counsel |
By the Court (orally):
Introduction
[1] Roger Elms is charged in a single count Indictment as follows:
Between the 3rd day of January, 2018 and the 6th day of January, 2018, both dates inclusive, at or near Truro, Colchester County, Nova Scotia, he did traffic in a substance included in Schedule I to wit: Hydromorphone, contrary to Section 5(1) of the Controlled Drugs and Substances Act.
[2] By way of background, Mr. Elms is an individual who up to January 2018 had a doctor’s prescription for hydromorphone. The allegation is that a prescription he filled on January 4, 2018 was trafficked to two other individuals within 24 hours of the prescription being filled.
[3] No one testified to seeing these pills being trafficked; accordingly, this is a circumstantial case. This will require a close examination of the evidence presented and consideration of the legal standard surrounding the proof of such a case. Central to the determination of this matter will be the assessment of whether Mr. Elms’ guilt, beyond any reasonable doubt, is the only rational conclusion to be drawn from the whole of the evidence (to adopt the language of R. v. Power, 2017 NSCA 85).
Structure of These Reasons
[4] These reasons will set out a summary of the evidence, followed by a discussion and application of the relevant law.
[5] Before providing a summary of evidence, I intend to give a statement of the core legal principles - including the presumption of innocence and proof beyond a reasonable doubt - which underpin this entire proceeding. I set these principles out at this stage of the decision because doing so assists me in keeping these in focus and central to the entire decision-making process.
Legal Principles
[6] The fundamental protection in every criminal trial is the presumption of innocence. This is the primary and irreducible foundation of our criminal justice system. It has to be appreciated that this principle is not a slogan to be quoted and then forgotten. It must remain at the core of the entire analysis to be conducted.
[7] To be presumed innocent until proven guilty by the evidence presented in court is the fundamental right of every person accused of criminal conduct. Running together with this presumption of innocence is the standard of proof against which the Crown evidence must be measured. To secure a conviction in a criminal case, the Crown must establish each essential element of the offence to the point of proof beyond a reasonable doubt.
[8] This standard has rightly been called an exacting one. It is a standard far higher than the civil threshold of proof, being a balance of probabilities. The law recognizes various standards of proof depending on the nature of the proceeding. The criminal standard towers above those other lesser standards.
[9] The Nova Scotia Court of Appeal and Supreme Court of Canada have provided clear direction on the issue of what is meant by proof beyond a reasonable doubt. They have instructed as follows:
- A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
- Even if it is believed the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances the Court must give the benefit of the doubt to the accused and acquit because the Crown has failed to prove the guilt of the accused beyond a reasonable doubt.
- On the other hand, it must be remembered that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.
- In short, if based on the evidence before the Court, you are sure that the accused committed the offence you should convict because this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.
- It has to be remembered that the burden of proof never shifts to the defendant. This is irrespective of whether the defendant himself gives evidence.
- In this case the Defendant did testify. This raises particular issues of analysis which the decision will address. But whether the accused testifies or not, at no time does the burden of proof shift to him and the resolution of the case does not turn on the Court picking which version of the evidence it prefers or finds more believable.
[10] On the issue of assessing the evidence of witnesses, the Court is aware of many cases which provide commentary with respect to the analysis of witness testimony. What we sometimes refer to as the “credibility” of a witness is really comprised of two distinct components of creditworthiness:
1. Honesty of recollection; and importantly,
2. Reliability of recollection.
[11] Honesty speaks to the sincerity and candour of a witness’s evidence while reliability relates more to such factors as the witness’s individual perception, memory and clarity. Both sides of the equation – honesty and reliability – impact the credit that can be afforded to testimony. A judge may accept all, none or some of a witness’s evidence depending on the findings. A judge may apply different weight to different portions of the evidence which he or she does choose to accept.
[12] A foundation for reasonable doubt can be found in any witness’s testimony. So too, a finding of guilt may be safely grounded on the evidence of a single witness if, of course, it is found sufficiently credible and persuasive to meet the exacting burden of proof. In assessing the credibility of testimony, I am aware of the factors which have been pointed to in prior decisions as helpful to this process. On this point, I have found R. v. Farrar, 2019 NSSC 46 to be instructive. In any written version of these reasons, I would incorporate this very helpful overview.
[13] Generally, in assessing the reliability and credibility of each witness's evidence, I have considered these factors:
a) honesty;
b) interest (but not their status in the proceeding);
c) accuracy and completeness of observations;
d) circumstances of the observations;
e) memory;
f) availability of other sources of information;
g) inherent reasonableness of the testimony;
h) internal consistency, including consistency with other evidence; and,
i) demeanour but with caution.
Evidence
[15] I want to note that in offering a summary of the evidence I am not attempting to produce a transcript or recite back all points covered in questioning. It is my intention to focus on central issues of relevance and elements necessary to put the Court’s conclusions in context. I have however considered and weighed all the testimony, and each of the exhibits, in reaching my determinations, even if each is not specifically set out and referred to here.
[16] This was not a particularly testimony heavy case. The Crown produced four witnesses and the Defence two, including the Defendant.
IT Evidence
[17] The first two Crown witnesses were officers concerned with forensic data extraction. The evidence of these officers, Cpl. Kevin MacDougall and Cst. Jason Baird, was limited to the narrow issue of electronic retrieval and analysis of the cell phone data in this matter. Their evidence was relatively straightforward and, as I understand it, was originally not going to be called by the Crown due to certain s. 655 admissions made by the Defence. As the commencement of trial neared, the Crown became concerned that defence counsel may have been attempting to limit, to some degree, the scope of the admissions. Crown then opted for the cautious approach of presenting these two witnesses. As events unfolded, defence counsel did not attempt to resile from the s. 655 admissions and their evidence was ultimately non-controversial.
Corporal Kevin MacDougall
[18] Cpl. MacDougall has been with the Technological Crime Unit of the RCMP for five years. Prior to joining the RCMP he had worked for some time as a network manager for an IT company.
[19] Cpl. MacDougall provided evidence on the steps he took in this investigation with respect to analyzing and extracting cell phone data. He provided specific evidence on his analysis of PE 13, this being the cell phone of Maggie McDowell.
Constable Jason Baird
[21] Cst. Baird gave evidence for the Crown. He is a digital analyst with the RCMP. His role in this matter, and consequently the scope of his evidence, was focused and limited to this extent.
[22] He was the analyst on the Apple iPhone which was PE3, Craig Peter-Paul’s phone seized on January 4, 2018. He described the process of data extraction and report production as it related to the phone.
[23] He testified as to the creation and contents of the reports which were produced for the lead investigator, Detective Constable Moody. This data and the forensic report were identified by the witness and admitted into evidence.
Detective Constable James Moody
[24] DC Moody is a 17-year veteran with the Truro Police Service currently in the Drug Enforcement Unit. He was the lead investigator in this matter. He testified that he was conducting a prescription drug trafficking investigation in the Town of Truro. This led on January 5, 2018 to a stop of an individual, Maggie McDowell, who was a target in that investigation. The consequent search of her vehicle, and a subsequent search warrant executed on her shared residence with Craig Peter-Paul, resulted in the seizure of items including cell phones and hydromorphone pills inside prescription bottles with partially obscured labels.
[25] The pills were as follows:
- 56 at 3 mg hydromorphone
- 39 at 6 mg hydromorphone
[26] The officer testified that, as a result of the investigation, including the seizure of the pill bottles, he began an investigation of Roger Elms. That investigation revealed that on the prior day, January 4, 2018, Mr. Elms had been dispensed prescription hydromorphone from the Sobeys Pharmacy in Truro in both 3 and 6 mg strengths. In each case it had been 56 pills.
[27] DC Moody obtained video from the pharmacy of the dispensing of the pills, as well as signed narcotic prescription dispensing receipts. All of this was also the subject of s. 655 admissions to which I will refer in discussing Mr. Elms evidence.
[28] The officer further gave evidence on the investigation as it related to the cell phones seized and the subsequent analysis and forensic reports obtained. These were explored in questioning in some detail.
[29] Det Cst. Moody was questioned on, and gave his account of, the course and development of the investigation.
[30] A voluntary cautioned statement of the Defendant was put in evidence. He was questioned by DC Moody on January 26, 2018. In the interview, Mr. Elms was confronted with what the officer had accumulated to that point in his investigation.
[31] Mr. Elms gave some varying accounts in that statement. While it was not unduly long, I do not intend to attempt to reproduce a transcript here. I will offer an overview and later in these reasons I will return to some components of it and offer the Court’s conclusions on its contents and how it fits into the overall analysis of this matter.
[32] In the statement, when Mr. Elms is told what the interview pertains to, he adopts a stance of surprise. His initial position appears to be that nothing untoward occurred with respect to his pills to his knowledge. He says in fact that he had taken them the morning of the interview (January 26). He later adds that the pill he had taken that morning had been the last pill in the bottle.
[33] In answer to the question when he last picked up his Hydromorphone pills, he initially says he last picked them up on December 27. He tells the officer he takes them three times a day and reiterates that he last took them “this morning”.
[34] When confronted with evidence of a documented pick-up on January 4, 2018, he initially seems to resist this suggestion, and then accepts it and seemingly begins to formulate his position around this fact.
[35] He suggests that someone may have obtained some empty pill bottles of his. Finally, when asked if he trafficked his pills, he denies this and speculates that they must have been stolen.
[36] Crucially he tells the officer the pills dispensed to him on January 4, 2018 were consumed by him and finished the morning of the interview.
[37] In the interview Moody offers to show Mr. Elms the pills and bottles seized by the police on January 5. Mr. Elms indicates he would be interested in seeing them. These are examined and discussed in the interview.
[38] At the conclusion of the interview Mr. Elms again restates that he had consumed his prescription which had been picked up in early January, finishing it on the morning of January 26.
[39] There was evidence that, subsequent to the interview, there was a consent search for the pill bottles which the Defendant had indicated he had finished that morning. They were not located.
[40] DC Moody gave further evidence respecting the search warrant obtained for the Defendant’s cell phone and the screen shots obtained as a result. Among the information obtained was confirmation of a phone call between the Elms cell phone and the McDowell cell phone on the morning of January 4.
[41] The Crown case outlined multiple instances when the retrieved text messages aligned with other unrefuted evidence such as the contents of the Prescription Monitoring Program report on Roger Elms. The Defence would argue, and I accept, that none of this material on its own is determinative. It simply becomes part of the whole of the evidence advanced on behalf of the Crown within the context of a circumstantial case.
[42] In cross-examination, the officer confirmed various points including that the seized pill bottles were not finger printed.
[43] Defence counsel also had the officer confirm that Mr. Elms had not been an initial target of the investigation. It was acknowledged that Mr. Elms had not been named in the investigation up to the point of the raid of January 5, 2018.
[44] Defence counsel had Cst. Moody acknowledge that there were no typical indicia of trafficking seized with Mr. Elms, such as score sheets. No money was seized from Roger Elms on January 26. The officer also confirmed that Mr. Elms was non-confrontational and courteous throughout the interaction.
Corporal David Lane
[45] Cpl. David Lane was called as an expert on behalf of the Crown. He was qualified on consent as an expert qualified to give opinion evidence with respect to the jargon, methods of avoiding police detection, use, availability, distribution, packaging, sale, price, value, and trafficking methods of hydromorphone.
[46] Cpl. Lane detailed his extensive background in drug investigations. There is no question that he has the required expertise to offer opinion evidence to the Court having been qualified approximately 60 times throughout the Maritime Provinces.
[47] In direct evidence Cpl. Lane detailed his review of the investigatory file and outlined his evidence on the means and methods of hydromorphone trafficking. He provided evidence on how prescription pills enter the illicit market.
[48] Cpl. Lane finally provided evidence on typical steps taken to hide illicit drug transactions through guarded or coded language and the removal or obscuring of prescription pill bottle labels.
[49] In cross-examination, Defence counsel had the witness confirm that in his experience prescription pills can and do get stolen.
Defence Evidence
[50] The Defence did elect to call evidence. These witnesses were Craig Peter-Paul and the Defendant himself.
Craig Peter-Paul
[51] Craig Peter-Paul appeared under subpoena. He is currently unemployed. He referenced some apparent medical issues he experiences. He confirmed that he is acquainted with the Defendant. He estimated he has known him for some years back to when they knew each other in Shubenacadie. When asked when he last had any dealings with Mr. Elms, his response was 2017.
[52] He confirmed that he was raided and arrested in January 2018 and charged with a narcotics offence. He indicated he was opposed to narcotics and was eight years sober himself from opioids. He had only just moved to Truro about two months prior to January 2018 from the community of Indian Brook. He moved here with his then girlfriend Maggie McDowell.
[53] When asked about his contact with Mr. Elms, prior to January 2018, he said he became re-acquainted with Mr. Elms when Maggie McDowell was doing delivery work with a local Truro delivery company, Dun-Rite Delivery and he was going with her and assisting her. This was a company that mostly did local deliveries of food or consumer goods. He indicated Mr. Elms was a customer they delivered to. Mr. Peter-Paul suggested that, when they were doing these deliveries, he became reacquainted with Mr. Elms who he had known previously through a mutual friend. He stated that he also had dealings with Mr. Elms over an ATV which required repair.
[54] In his evidence, Mr. Peter-Paul described many deliveries and contacts with Mr. Elms. He stated that Maggie McDowell was there more than him. I note in passing that this would be inconsistent with evidence of Mr. Elms who stated he had much more limited contact with McDowell.
[55] Defence counsel asked Mr. Peter-Paul whether he had ever taken or obtained drugs from Mr. Elms. He said he had not. Counsel asked if he had ever tried to do so. This he denied as well. Mr. Peter-Paul appeared willing to accept at least the possibility that Ms. McDowell might have stolen pills, but he denied he would have considered such a thing as he knew Roger needed his pills. He realized as well, he testified, that he could be blamed for taking the pills because of his drug history.
[56] He was shown a picture of the prescription pill bottles seized in this matter including one located immediately adjacent to the bed he was in when raided. He denied having seen it before and denied knowing how it got there. He said he would be surprised that Mr. Elms prescription was beside his bed and he would have no idea how it got there.
[57] In both direct and cross examination Mr. Peter-Paul was confronted with different text messages between himself and Maggie McDowell. These messages were proven to be between McDowell and Peter-Paul. They contain evidence of drug seeking efforts including such efforts directed at an individual known as Roger. Details align with when and how Roger Elms was receiving his prescription. Both counsel used aspects of the text messages in questioning and submissions. The admitted texts were not large in number and were admitted by virtue of a s. 655 Statement of Admissions. I was also satisfied that they would have been admissible under the principled exception to the hearsay rule.
[58] After having heard and reviewed the evidence of Mr. Peter-Paul, and having assessed it in light of all the testimony in the trial, I can say I have reached the following conclusions:
1. Mr. Peter-Paul was a poor witness when assessed from a credibility standpoint.
2. Why do I say this? Mr. Peter-Paul was not willing to accept even logical and obvious conclusions based in the evidence. He was quite obviously motivated by a desire to limit his own exposure to suggestions of criminality and by extension this extended to the Defendant. His denials lacked credibility.
3. I fully appreciate the limitations of what courts ought to take from demeanour evidence. While, in the past, demeanour evidence was seen to be important it has been recognized that it has very substantial limitations. We now appreciate that individuals are unique and will react differently to the stress and experience of being questioned in court.
4. Even applying demeanour evidence with real caution, Mr. Peter-Paul did not impress as someone attempting to provide full and frank testimony to the Court. When he was asked any probing question, he attempted to deflect. A clear example of this would be any question he was asked about his cell phone. I reject any suggestion that the phone seized from his bed was not his cell phone. Not only the location and circumstances of its seizure but also its contents make this abundantly clear.
5. I appreciate that Mr. Peter-Paul was under subpoena and has his own legal issues. Nothing he said in this proceeding can be used in that other proceeding by virtue of the Canada Evidence Act.
6. While I have reached these conclusions about Mr. Peter-Paul, I do remind myself that the defence does not have to prove anything in this case. As well, in a circumstantial case, all the evidence must be weighed in totality, with a view to assessing whether, taken as a whole, there are reasonable alternatives to guilt that may be drawn from it.
Roger Elms
[59] The Defendant gave evidence in his own case. He is currently 66 years old. He resides at 481 Young Street in Truro. He testified he is currently disabled. In the past he has been employed as a trucker. He has four children and is currently separated from his spouse.
[60] He gave evidence that he has had this prescription back to approximately the year 2000. He believes that he has been on pain medications for his back since as early as the age of 13.
[61] When asked if he knew Craig Peter-Paul and Maggie McDowell he stated that he did know Craig Peter-Paul from Shubenacadie, but he had only met McDowell twice.
[62] He testified that he dealt with Craig Peter-Paul over repairs that were possibly going to be carried out on an ATV owned by the Defendant. Peter-Paul came to his residence to look over the ATV.
[63] He met Maggie McDowell twice, he testified. Once as his place and once at the food bank. He said that the meeting at his place was when she came with Peter-Paul when he was there to look at the ATV. He estimated this had occurred two to three months before the arrest.
[64] Mr. Elms was asked by counsel if he had ever had an issue with persons attempting to get his prescription from the Sobeys Pharmacy. He stated this had occurred once. He said he could recall when this happened. He was asked when it may have been in relation to his arrest in January 2018, and he replied it was “...way before that”.
[65] The details he provided were that he received a phone call from the pharmacy saying a male had attempted to pick up his prescription. He says he was asked to look at video of this event, but he did not recognize the person. He stated that he asked the manager to call the police, but the police “...did not show”, was his evidence.
[66] He was asked if he ever had any other problems with people trying to access his prescriptions. He replied no. He was asked if, at his home, he ever had trouble with individuals attempting to take his prescription. His reply to this was no.
[67] He was asked where in his home he stored his medications. He stated this was in his front room by the computer stand.
[68] He was asked if it was his practice to lock the door to his residence. He indicated it was not, neither prior to the arrest nor at present.
[69] Mr. Elms was asked various questions about his cell phone. He claimed to have very limited knowledge of the phone. He thought he had only had it for a short time. It would have come from one of his daughters and been “programmed” by others due to his lack of familiarity or comfort with the technology.
[70] In direct evidence Mr. Elms acknowledged making a phone call to the McDowell cell phone on the day the pills were dispensed. He indicated he spoke to Peter-Paul about the ATV. In the police statement he had denied making a call to McDowell or Peter-Paul that day.
[71] Crown counsel asked Mr. Elms in direct about the interview he gave police. He confirmed that the officer asked him how McDowell and Peter-Paul had got his pills and he said he did not know. He was asked if it made sense that his pills were found in the possession of anyone else. He said it surprised him because his pills were always in his house and no one hardly goes in his house.
[72] Mr. Elms was asked a question about whether there was anything that stood out about “the day these pills went missing”. His response was “no”. The date associated with this in his mind was not identified in this question or answer.
[73] Counsel asked Mr. Elms why, when first questioned by the officer, he had said December 27 was the date he last picked up this hydromorphone. He said that was a date when he would have picked up some blister packs and puffers.
[74] In continued questioning, Mr. Elms provided his account of the day when he was taken by his brother-in-law to Sobeys for his pills. He describes picking these up, including apparently the Hydromorphone, and returning to his home with them. He described also travelling to New Glasgow and Masstown with his brother-in-law before later returning home. Later, close to 5 PM, he went to his sister’s home for supper.
[75] Mr. Elms in direct gave an account of being at his sister’s home on the evening of January 4 and receiving a phone call at that home from his neighbour, who he identified as Jake Schofield. This individual was not called. Mr. Elms account was that he learned on this call that the door to his home was open and there was a vehicle there. He recounts saying to the neighbour that he should try to keep them there and he would come as soon as he could. He says when he arrived there was a vehicle just pulling out of the yard. He was later asked if he could see it, but he responded no, it was too dark.
[76] He says the neighbour told him he had the licence plate. Mr. Elms testified that he called the police, but the police never responded or got back to him. He says he called them and spoke to someone in the front office.
[77] In subsequent questioning, Mr. Elms was asked questions that prompted him to indicate that he did receive a later visit from Truro Police Detectives who asked him about his hydromorphone prescription and took him to the police station for an interview. Mr. Elms appeared to conflate certain events which were proven to have taken place on January 26, the date of the police interview, with the events of January 5.
[78] It is essentially impossible to derive a coherent narrative from the account provided for this reason. It appears to jump around in time, glossing over timeframes and ignoring the shifting narrative.
[79] Mr. Elms denied that he had trafficked or allowed others to take his pills. He stated that it was surprise to him that someone else was in possession of his pills. He confirmed that, to his knowledge, nothing unusual had come to his attention with respect to those pills on the day he picked them up. He confirmed in another portion of his evidence that he required his pills for pain control and was prescribed to take them daily. Since the laying of the charge against him, he has lost his prescription.
[80] Mr. Elms made certain admissions as part of his case. These were in the form of a formal s. 655 statement which was exhibited. In summary this provided as follows:
1. Mr. Elms acknowledged that on January 4, 2018 between 12:27 PM and 12:31 PM he picked up two hydromorphone prescriptions from the Sobeys pharmacy on Prince Street in Truro. One prescription was for 56 capsules at 3 mg strength and the second for 56 capsules at 6 mg strength. There was video footage from the Sobeys depicting the pickup.
2. It was acknowledged by Mr. Elms that on January 5, 2018 police seized from the residence of Maggie McDowell and Craig Peter-Paul in Truro a bottle containing 56 capsules of hydromorphone at 3 mg strength. On the same day, a second seizure was made from a vehicle being driven by McDowell of a prescription bottle containing 39 capsules of hydromorphone at 6 mg strength.
3. Duplicates of the prescription labels, which were affixed to the bottles dispensed to Mr. Elms, were produced for the court and accepted to be accurate depictions. This admission was sought to permit comparison with the bottles seized from McDowell and Peter-Paul. The conclusion reached by the Court on this point will be addressed later in these reasons.
4. Certain other admissions were made as well. The Court will touch on these in other parts of these reasons as they are relevant.
[81] In cross-examination Mr. Elms did not do well. His account appeared to move around and on occasion he would resist suggestions until he had nowhere to retreat. The clearest example of this may be the first series of questions put to him where he initially appears to deny picking up the hydromorphone on January 4 and then gradually acknowledges the overwhelming evidence and admission of this, and eventually relents.
[82] Another example is found in the questioning pertaining to the phone calls he exchanged with McDowell or Peter-Paul. In cross, he gave answers inconsistent with his prior evidence.
[83] Mr. Elms was confronted in questioning with material inconsistencies in his shifting account. He attempted to develop a response, but his account was often difficult to follow. When asked in cross examination why he did not give the police the account he was giving in trial evidence with respect to persons entering his home on January 4, he stated this was because he forgot. This is a difficult response to credit, especially if his account of the police coming to him on January 5 is accurate. The alleged events would have occurred within the prior 24 hours, and to have forgotten them in this context is difficult to accept.
[84] There were inconsistencies as to whether the police responded or not and how many times; as to when or if he noticed the pills were missing; what he did or did not do in response; whether he spoke to McDowell or Peter-Paul on January 4; how many times he had called McDowell’s cell phone; whether he would have been able to take his pills on the 5 or not; who had driven him to pick up his pills on the 4; and, whether anything unusual had happened on the day he had picked up the pills or not. His initial statement, that he had personally consumed the entirety of the prescription, was never accounted for in any fashion.
[85] He did consistently deny that he had trafficked his prescription. He consistently maintained that he required his medications and would never have given them up.
[86] It is important that at this point I note the following:
- There is no burden on Mr. Elms. The fact that he testified does not shift any burden onto him.
[87] I will return to this point but having offered some critical comments on his evidence, I think it is important to underline this, in order to make clear there is no doubt in the Court’s mind on the issue. It makes sense at this point to turn to a consideration of how we must approach proof beyond a reasonable doubt in the context of a circumstantial case such as this one.
Law
Treatment of Circumstantial Evidence
[88] As noted earlier in this decision, the circumstances in this case require the consideration of the law respecting circumstantial evidence.
[89] Consequently, I must bear in mind the Supreme Court of Canada's direction in R. v. Villaroman, 2016 SCC 33 regarding how triers of fact must approach such cases (at para. 37):
When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt: [citations omitted]. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused": [citation omitted]. "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.
[90] Cases applying Villaroman indicate that the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused's guilt was the only reasonable conclusion available on the totality of the evidence. Circumstantial evidence does not have to totally exclude every other conceivable inference. The trier of fact must decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt. Put another way, the circumstantial evidence does not have to exclude entirely other conceivable inferences, but rather such alternatives must not raise a reasonable doubt.
[91] As the Nova Scotia Court of Appeal commented recently in R. v. Roberts, 2020 NSCA 20:
25 If reasonable inferences other than guilt can be drawn from circumstantial evidence the Crown has not met the standard of proof beyond a reasonable doubt. Reasonable doubt can be logically based on the evidence or lack of evidence, must be reasonable given that evidence or lack thereof, and assessed logically in light of human experience and common sense.
[92] Case law further develops the concept of how the Court must approach the weighing of “other plausible theories” and “other reasonable possibilities” which are inconsistent with guilt. It is recognized that the line between a “plausible theory” and “speculation” is not an easy one to draw. The fundamental question is whether the circumstantial evidence, assessed in light of human experience, excludes any other reasonable alternative. Put another way, the alternative inferences sought to be drawn must be reasonable and rational in the circumstances of the matter — not merely possible.
[93] At para 42 of Villaroman, Justice Cromwell comments on this point with a reference to R. v. Dipnarine, 2014 ABCA 328. He adopts that Court’s comments at paras 22, 24-25, as follows:
[22] Circumstantial evidence does not have to totally exclude other conceivable inferences . . .
[24] Alternative inferences must be reasonable and rational, not just possible . . .
[25] But the logic of the circumstantial evidence analysis is that if a trier of fact considers a postulated alternative interpretation of the circumstances taken as a whole to be unreasonable or irrational, the trier of fact is not bound to give effect to that alternative just because it is impossible to exclude it entirely. The law does not require such proof to absolute certainty . . .
[94] Other rational inferences need only be sufficient to raise a reasonable doubt. There is no onus on the accused to advance or develop alternative theories that may be equally rational inferences from the evidence as the theory of the Crown: R. v. Griffin, [2009] S.C.J. No. 28 at paras. 34 and 35.
[95] Nevertheless, a reasonable doubt must be a logical one, based on the evidence or on the absence of evidence: R. v. Lifchus, [1997] 3 S.C.R. 320.
[96] It is the cumulative weight of the facts that must prove the accused guilty beyond a reasonable doubt and not each individual fact examined separately: R. v. Morin (1988), 44 C.C.C. (3d) 193 (S.C.C.).
[97] The direction from the Supreme Court in R. v. Villaroman, supra is that conclusions, alternative to the guilt of the accused, need not be based on proven facts. In the past this has been the subject of confusion. Presumably for this reason Justice Cromwell, for the Court, addressed this in some detail:
35 At one time, it was said that in circumstantial cases, "conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts": see R. v. McIver, [1965] 2 O.R. 475 (C.A.), at p. 479, aff'd without discussion of this point [1966] S.C.R. 254. However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149, at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.
[98] The law as set out in Villaroman and those well-known principles enumerated by the Supreme Court of Canada in the case of R. v. W.D. operate together.
[99] Because the accused in this case has testified and has given an exculpatory version of events, case law is clear that the Court will assess all the evidence presented at trial under what has come to be known as the W.D. analysis (see: R. v. W.D. (1991), 3 C.R. (4th) 302 (S.C.C.). I adopt the recent restatement of these principles as provided by the Nova Scotia Court of Appeal in R. v. N.M, 2019 NSCA 4.
[100] In this case, Justice Bourgeois writing for the Court adopted a reframed statement of the WD factors as expanded by the Supreme Court of Canada in the case of R. v. JHS, 2008 SCC 30. The restatement she adopted was as follows:
23 First, if you believe the evidence of the accused, obviously you must acquit.
Secondly, if you do not know whether to believe the accused or a competing witness, you must acquit.
Thirdly, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit.
Fourthly, even if you are not left in doubt by the evidence of the accused, that is that his or her evidence is rejected, you must ask yourself whether, on the basis of the evidence that you accept you are convinced beyond reasonable doubt by that evidence of the guilt of the accused.
[101] In other words, the process I must follow is first to determine whether I believe the Defendant’s evidence or, if I do not believe it, whether it raises a reasonable doubt as to his guilt. If I am left in either of those states of belief by his evidence, I must acquit him. If I do not believe his evidence and it does not raise a reasonable doubt, I must go on to consider whether on the whole of the evidence, and considering the application of the Villaroman principles, the Crown has proven his guilt beyond a reasonable doubt.
Analysis
[102] First the Court must consider whether the denial and exculpatory evidence of the accused was accepted.
[103] As outlined above, the Court found Mr. Elm's evidence to be unsatisfactory in many respects. To be specific, I do not believe him on the following points:
1. As to the nature of his relationship with Craig Peter-Paul and Maggie McDowell – I reject his evidence that his relationship with them was limited to dealings over an ATV. I find that he did know both these individuals more than he acknowledged. I find that he knew they were seeking his narcotic prescription.
2. While his evidence on this point was quite difficult to follow - I reject any assertion that he did not realize his hydromorphone pills were no longer in his possession by January 5, 2018. I find as a fact that he knew they were no longer in his possession and this was not a surprise to him. His first inclination with the officer in the interview was to attempt to conceal this and indicate he had taken all the pills up to the morning of the interview on January 26.
3. His invitation to the officers to return with him on the day of the interview back to his home to see the pill bottles was simply him exhausting the last options he had. He knew the pills had not been there since January 4, but he had few options at that point other than to continue to maintain the account he was offering. A serious complication for his attempted account later arose when it became clear the police had evidence that the pill bottles and contents dispensed to him on the 4th had been in police possession since January 5. This was of course entirely inconsistent with the account he had given of having taken the pills as prescribed.
4. There is no question the pills and prescription bottles seized by the police on January 5 were the pills and bottles dispensed to Elms on January 4, 2018.
5. There was an unsuccessful or incomplete attempt to obscure the labels on the pill bottles. It has been proven that those were the subject pill bottles and contents.
6. I also believe that McDowell and Peter-Paul did apply sustained pressure to Mr. Elms, in order to secure the pills. This point may be relevant to some other stage of this proceeding but does not offer a defence at this stage.
[104] Case law directs that a defendant who gives evidence is entitled to know why his or her evidence may have been rejected. I would refer to the following:
1. When confronted with difficult topics for his defence, such as whether the hydromorphone pills were gone out of his possession after the 4th of January, Mr. Elms would often retreat to speaking in what I would have to refer to as circles.
2. While I appreciate that Mr. Elms does not have a great deal of formal education, and I accept he has reading and writing challenges, it is my conclusion that he actually had no difficulty understanding what was being asked of him. He simply wanted to avoid making damaging admissions. I did consider that I am sure Mr. Elms was nervous about the process and not comfortable giving evidence. In weighing his evidence, I did keep in mind these factors.
3. His evidence was internally inconsistent in material respects. His account was not consistent over time and sometimes appeared to move within the span of a few questions.
4. Mr. Elms was repeatedly evasive in cross examination. His answers often seemed intended to obscure rather than illuminate the situation.
5. The Defendant has attempted at various times to change his account in order to fit what he believed might be provable from time to time. For instance, for a time he attempted to maintain that he continued to take his hydromorphone pills from his prescription every day after January 5th. When this was proved to have been impossible, Mr. Elms would amend his account to reflect what he appeared to believe might be provable at that point.
6. Mr. Elm’s statement that he had forgotten the story about people illegally entering his house around the time he got the pills lacks any common sense or credibility. In the context of the situation he found himself in, claiming to have forgotten this is nonsensical. This is even without considering that, immediately upon this occurring, the pills would have then to have been missing which would have served to make this a truly notable event.
7. Mr. Elm’s explanations for his actions or inactions at various times did not make logical sense to the Court. No reasonable explanation was provided for how the pills came to be in the possession of McDowell and Peter-Paul. His attempt to suggest other alternatives did not make sense and I found them to be a self-serving contrivance.
8. I closely watched Mr. Elm’s evidence. Frankly, I have to observe that he appeared to be embarrassed by some of the twists and turns he had to commit in his evidence. I do not think that deception comes naturally to him. And it showed.
9. All of this leads the Court to the conclusion that the matter cannot be resolved on the basis that his evidence is accepted or raises a reasonable doubt in and of itself.
[105] Having rejected his account and concluding that it alone does not raise a reasonable doubt, it is important to clearly make the following point. The rejection of his account is not the end of the matter. There should be no question in this regard. The Court is not operating under the misapprehension that, having rejected the Defendant’s evidence, the inquiry is at an end. To proceed in that fashion would be to misplace the burden of proof onto the Defendant. The burden of proof is and remains on the Crown, even where the accused has testified and provided an account which is affirmatively rejected: See discussion in R. v. Vuradin, 2013 SCC 38.
[106] As discussed above, the entire balance of the evidence must be assessed to see whether it contains the basis for a reasonable doubt. This may be found in any evidence, or lack of evidence and in a circumstantial case, in the application of the Villaroman principles.
[107] In the context of this case, this requires an examination of whether the guilt of the accused is the only rational conclusion to be drawn from the whole of the evidence.
[108] As noted above in the discussion of the law as set out by Justice Cromwell, inferential reasoning is not limited in the sense of being based on proven facts, but rather may be drawn from a range of "other plausible theories" and "other reasonable possibilities" that may arise from the evidence, or a gap in the evidence. While the Crown need not negate every possible conjecture consistent with innocence, these alternate theories "must be based on logic and experience applied to the evidence or absence of evidence, not on speculation".
[109] The Court’s obligation is to assess the totality of the evidence with a view to evaluating all reasonable alternatives other than the guilt of the Accused. Primary among these is the theft scenario. I have considered all the evidence which could align with this alternative. I am obviously aware that the Defendant, in his statement, when it appeared he was becoming boxed in by the evidence being put in front of him by the officer, did say the pills must then have been stolen. Now of course this was after he had told the police he had continued to take the pills for the month of January, which, if true, would have been entirely inconsistent with the theft explanation. They could not have been both stolen, on the first day they were dispensed, and consumed by him throughout the balance of the month.
[110] I have weighed all elements that could be said to support the alternate theories. This includes the evidence of the Defendant and Craig Peter-Paul. I am aware of the equivocal answers given by Peter-Paul especially when he appeared to be speaking of possible actions carried out by McDowell. I have assessed the circumstances and assertions respecting the alleged unidentified vehicle from January 4.
[111] I have considered all the elements of evidence advanced with respect to possible alternate theories. These hypotheticals have been weighed together with all the evidence produced in the matter, including elements found to be not proven but still available for consideration as part of the overall and final assessment process in accordance with case law. I am aware it is the Crown’s burden to negate reasonable alternatives and not that of the accused to prove them.
[112] I am mindful, however, that this caselaw also cautions and directs that the theory must move from the realm of mere speculation to that of being reasonable and rational in all the circumstances before it will operate to raise a reasonable doubt (per Villaroman, paragraph 42).
[113] I have concluded that the theft scenario is unduly speculative and not supportable as a reasonable and rational hypothetical. The Crown has carried its burden of negating this as a reasonable and rational possibility in these circumstances.
[114] All the circumstances inconsistent with this alternative theory are simply too compelling and the alternative has been proven by the Crown to fall within the realm of mere conjecture or non-credible assertion. As the case law makes clear, identifying the line between reasonable possibility and mere conjecture is not easy to set out. I want to point to two recent Nova Scotia cases which the Court found to be very helpful in considering this issue. These are the Nova Scotia Court of Appeal decision in R. v. Lee, 2020 NSCA 16 and the decision of Judge Van der Hoek of the Nova Scotia Provincial Court in R. v. Maiholz, 2020 NSPC 30. Both these were instances of purely circumstantial evidence and the approach and analysis in both is helpful.
[115] To call this scenario a logical or reasonable one, in the circumstances presented in this case, would be to do a disservice to the circumstantial evidence standard.
[116] The only reasonable and non-speculative inference available is that the accused trafficked his hydromorphone pills. The theory that someone else took the product without his knowledge is not, in my view, plausible, is mere speculation, and, as a result, does not raise a reasonable doubt in all the circumstances.
[117] The Crown has therefore established that the guilt of the accused is the only rational conclusion to be drawn from the whole of the evidence.
[118] Accordingly, I enter a finding of guilty against the Defendant on the sole count in the Indictment.
[119] Counsel, can I assume there is a desire to seek a pre-sentence report?
J.