An Elliot Lake man who was passed out in a vehicle with 16.5 grams of fentanyl has been found not guilty of drug trafficking after a judge concluded his explanation was “plausible.”
During a two-day trial in June, David Jack Willett testified that the drug was for his own personal use and that he purchased it in bulk from a dealer in Sudbury so he didn't have to make frequent trips to the Nickel City.
"I have never trafficked fentanyl," he maintained.
In a decision released Aug. 3, Superior Court Justice Edward Gareau said he believes the 33-year-old self-admitted drug addict's evidence that he wasn't trafficking fentanyl on Sept. 20, 2020.
"At the very least" Willett's evidence leaves "the court in reasonable doubt" about his guilt, he said.
The judge found him not guilty of possession for the purpose of trafficking but guilty of the lesser included offence of simple possession. He also convicted Willett of possession of cocaine and fentanyl.
Gareau dismissed a charge of possession of property obtained by crime — $448 in cash he had when police arrested him.
When Willett was on the witness stand, he told the judge he was receiving $2,000 a month from the federal government's Canadian Emergency Response Benefit (CERB) program.
He testified that two days prior to Sept. 20, he bought 20 grams of fentanyl for $1,500 from his long-time dealer in Sudbury.
By the time he was arrested, the accused said he had consumed 3.5 grams of the drug, which left him with the 16.5 grams police found in the vehicle.
The cash was the balance of his CERB cheque, he told Gareau, explaining he used the scale to weigh the fentanyl so he wouldn't overdose.
Willett testified that at the time he was using fentanyl five times daily, consuming a total of 1.5 grams each day.
During a vigorous cross-examination by federal prosecutor Joe Chapman, the accused disagreed with the Crown's suggestion that if he was using as much fentanyl as he claimed he would be unable to function.
Willett responded that he would do the narcotic, pass out, then wake up and do it again.
He insisted that he was "just a user," the judge said, calling his evidence that he didn't go to Spruce Beach to do a drug deal, but rather to get high, "emphatic."
In his eight- page decision, Gareau said he also found the Willett’s explanation for the cash "plausible and reasonable."
During the trial, the court heard Ontario Provincial Police were called to the Elliot Lake beach about an unresponsive man in a vehicle. When officers arrived, paramedics were assisting Willett.
Three officers who testified at the trial said he appeared to be dazed, disoriented and under the influence of drugs.
One described him "as sweating and incoherent" and "unable to keep his head up."
A container with blue and white powder was in plain view.
Officers also discovered a scale, lighter, burn pipe, a large multi-coloured bong and a folding knife.
A small baggie in Willett's pocket contained cocaine and two foil wrappers in his wallet contained fentanyl.
The powder in the plastic container was determined to be 16.5 grams of fentanyl.
One of the officers, Det. Sgt. Roch Perrault, who has been involved in drug investigations for 15 years, concluded that the fentanyl in the container was for trafficking, not personal use.
Users typically have 3.5 grams of the drug, not the large amount Willett had, he said.
"No one would purchase that amount for personal consumption," he said during cross-examination by defence lawyer Ken Walker.
The officer disagreed with Walker's suggestion that his client bought in bulk to feed his addiction.
Perrault told the court 1.5 grams a day would be consistent with a heavy user, so 16.5 grams would be a great deal of fentanyl for an individual to have for personal use.
He acknowledged, as did the other officers, that Willett was known as "a local drug addict," but not on the radar as a trafficker.
When Willett testified, he admitted he has been addicted to percocet, morphine and fentanyl for 13 years.
Gareau said he found it hard to accept that Willett was at the beach to do a drug transaction because of "his heavily drugged state."
It's more likely that a person dealing drugs would want to be coherent, he said, concluding Willett was there to consume drugs rather than sell them.
He imposed a six-month jail sentence, which was jointly recommended by the Crown and defence, for the drug offences.
Fentanyl is a deadly drug killing many people in northern Ontario and there has to be a strong message to traffickers and others, Chapman said.
Willett was gainfully employed before he was recently taken into custody on other matters, Walker said.
"His condition was pretty good," the defence said. "He had made strides and was not consuming."
With the credit he received for his pre-sentence custody, Willett faced a further 44 days in jail.
Citing the need for general deterrence, Gareau said the message has to be sent to the public that "possession of these types of drugs will not be tolerated and will be dealt with in a serious manner when they come before the court."