COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Hudson, 2021 ONCA 772

DATE: 20211102

DOCKET:
C65962

Doherty, Watt, van Rensburg, Benotto and
    Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jacinda Hudson

Appellant

Maija Martin, David Reeve and Iman Amin, for the
    appellant

Sarah Shaikh, Chris Walsh and Jonathan Geiger, for the
    respondent

Emily Marrocco, for the intervener, Attorney General for
    Ontario

Owen Goddard and Rick Frank, for the intervener,
    Criminal Lawyers Association

Heard: February 23, 2021 by video conference

On appeal from
    the convictions entered by Justice Robert Charney of the Superior Court of
    Justice, sitting with a jury, on August 22, 2018.

Watt J.A.:

[1]

A package for the appellant. From China. Delivered to her home by Canada
    Post. At least, it looked like Canada Post.

[2]

The appellant was not home when the package arrived. Her ex-boyfriend
    was there. He accepted delivery and took the package into the house. He told
    the appellant about the package.

[3]

About an hour later, police officers arrived at the appellants home.
    They had a search warrant. They found the package from China. They arrested the
    appellants ex-boyfriend. When the appellant got home, they arrested her too.

[4]

A jury found the appellant guilty of importing fentanyl and possession
    of fentanyl for the purpose of trafficking. The trial judge imposed sentences
    of eight years on each conviction to be served concurrently.

[5]

The appellant appeals her convictions. These reasons respond to her
    claims of judicial error in the conduct of the trial and explain why I would
    allow the appeal, set aside the convictions, and order a new trial.

The Background Facts

[6]

A brief summary of the evidence received at trial will provide the
    background necessary to understand the issues raised on appeal and how I
    propose that they be decided.

The Package

[7]

On October 18, 2016, members of the Canada Border Services Agency (CBSA)
    in Richmond, British Columbia intercepted three packages addressed to three
    different persons at addresses in Southern Ontario. The sender or consignor of
    each package was the same  DigitalPartner UNIKO of Guangdong, China. The
    packages were said to contain digital cable valued at $10. All were sent by
    post.

The Contents of the Package

[8]

CBSA members opened each package. They found 323 grams of fentanyl in
    the package addressed to the appellant. The others contained similar amounts of
    fentanyl. The street value of the fentanyl in the package addressed to the
    appellant was $320,000.

[9]

Fentanyl is toxic. CBSA members delivered the package to the RCMP who removed
    the fentanyl from the package addressed to the appellant, replaced it with an
    inert substance, and then sent the package by plane so that it could be
    delivered to the appellant in Ontario.

The General Warrant

[10]

Police obtained a general warrant on November 1, 2016, authorizing the
    RCMP to conduct a controlled delivery of the package to the appellant or anyone
    acting on her behalf at her Ajax home.

The First Attempt at Delivery

[11]

At about 11:30 a.m. on November 4, 2016, an undercover police officer
    approached the appellants front door. The officer arrived in a Canada Post
    vehicle. He wore the uniform of a Canada Post delivery operator. He carried the
    package addressed to the appellant.

[12]

The officer rang the doorbell. He knocked on the door a couple of times.
    No one answered. He left. The appellant had left about an hour earlier. Her
    ex-boyfriend was in the house but did not get to the front door before the
    undercover officer had driven away. An immediate text exchange between the
    ex-boyfriend and later co-accused, Hazare Roman, and the appellant followed.

The Text Messages

[13]

As the undercover officer attempted delivery, Hazare Roman and the
    appellant exchanged texts. When Roman advised the appellant that Canada Post
    was at the door, the appellant told him Answer and sign. When Roman replied
    that Canada Post had left before he (Roman) could get downstairs to the door,
    the appellant asked whether Canada Post had left anything. Roman said No.

[14]

About 20 minutes later, the appellant exchanged text messages with her
    friend, Louisa Munro. As she had the previous day, Munro advised the appellant
    O said keep eyes peeled. The appellant told Munro that Canada Post had been
    at her house: Is it coming that way?. Munro said Ya. The appellant asked
    Like delivery? to which Munro responded IDK well talk when you here.

The Return Home

[15]

About 20 minutes after her text exchange with Louisa Munro, the
    appellant drove up to her house, slowed down, looked at her house, and drove
    on. Minutes later, she returned, got out of her car, walked to the house,
    opened the front door and stepped inside briefly. When she came back outside,
    she looked inside the mailbox, got in her car and drove away. At trial, she
    testified that she looked in the mailbox for a courier slip telling her where
    to pick up the package.

[16]

A few minutes later, the appellant told Hazare Roman that the package
    was important.

The Package Arrives

[17]

The undercover police officer, disguised as a Canada Post delivery
    person, returned at 12:50 p.m. the same day. He rang the doorbell and knocked.
    This time, Hazare Roman answered the door. When asked, Roman indicated that he
    would accept the parcel for the appellant. He took the package, printed Jacinda
    on the delivery bill, and signed with the appellants initials J.H..

The Appellant Gets Notice

[18]

Within minutes, Hazare Roman advised the appellant that he had her
    package. About 45 minutes later, the appellant told Roman Perfect Im OMW.

The Search and Arrest

[19]

About an hour after delivery of the package, the police arrived at the
    appellants home with a search warrant. The unopened package was on a front
    hall table near a photograph of the appellant and her children, a sunglass
    case, and 10 grams of cocaine. Three cellphones were on the bed in the master
    bedroom. The closet was full of only womens clothes. The police arrested
    Hazare Roman and, after she returned home, the appellant.

The Defence Case at Trial

[20]

At trial, the defence case consisted of the testimony of two witnesses.
    Louisa Munro testified first. The appellant was the final witness. Pared to its
    core, the defence was a denial of any involvement in importing fentanyl. The
    appellant was expecting a package from Louisa Munros mother in Nova Scotia
    containing books and childrens clothing, not fentanyl from China. The
    appellant also sought to adduce evidence that a known third party suspect, Raza
    Khan, the appellants former boyfriend and lessee of her home, was responsible
    for the importation. The application was dismissed. The dismissal is a ground
    of appeal.

[21]

Louisa Munro testified that her mother in Nova Scotia had collected
    several childrens books and other items she planned to send to the appellant.
    She thought that her mother would mail the package to the appellant. Their
    exchange of messages related to this package. Unexpectedly, Munros father drove
    to her home with the package after the appellants arrest. Munro had known the
    appellant for about five months before her arrest. Her mother had never
    previously sent a package to the appellant. Munros text reference to O, as
    in O said keep eyes peeled, was a mistype for I and referred to the
    package from her mother, not to a person O.

[22]

The appellant testified after Louisa Munro had given her evidence. The
    appellant said that she and Munro planned to go to a basketball game. Their
    text messages were about outfits to wear to the game. The Monday following her
    arrest, Munro gave her the package she had been expecting.

[23]

The appellant testified that, on the day of the controlled delivery,
    Roman was sleeping at her house. She called Munro to tell her that she was
    going to look for outfits to wear to the basketball game. Munro told the
    appellant about the package from her mother. When Roman explained that he had
    missed a delivery, the appellant believed that this was the package from
    Munros mother. She stopped off at home en route to Munros to see whether
    Canada Post had left a delivery slip after the first failed delivery. Later,
    Roman advised her of the arrival of the package. She did not hurry home to get
    it.

The Third Party Suspect Application

[24]

After the case for the Crown had closed, but prior to electing whether
    to call a defence, the appellant sought a ruling on an application to adduce evidence
    of a third party suspect, the appellants former boyfriend, Raza Khan.

[25]

Raza Khan testified on the third party suspect
voir dire
. He
    gave evidence about helping the appellant obtain her home in Ajax. He had lived
    with her on and off for about ten months, but did not live there with her at
    that time. The lease was in his name and she paid rent directly to him. He
    admitted having sold cocaine and fentanyl in the past and having previously
    ordered different kinds of drugs online, including fentanyl. He neither took
    responsibility for the fentanyl in the package sent to the appellant, nor did
    he deny any involvement. He said he could not remember whether he had ordered
    drugs delivered to the appellants home in the past. Nor did he recall whether
    he had a key to the appellants home where he had not lived for a couple of
    years.

The Grounds of Appeal

[26]

The appellant pursues several grounds of appeal. She contends that:

i.

the offence of importing is
    complete once controlled substances enter the country;

ii.

the conviction of importing fentanyl is unreasonable;

iii.

the conviction of possession of fentanyl for the purpose of trafficking
    is unreasonable;

iv.

the trial judge erred in failing to instruct the jury on circumstantial
    evidence, thus reversing the burden of proof;

v.

the trial judge erred in failing to instruct the jury on evidence of
    after-the-fact conduct;

vi.

the trial judge erred in permitting the jury to draw an adverse
    inference against the appellant because she was the last witness to testify;
    and

vii.

the
    trial judge erred in dismissing the appellants third party suspect
    application.

Ground #1: The Essential Elements of Importing

[27]

This ground of appeal focuses on the essential elements of importing, in
    particular, on when the physical element or
actus reus
of importing is
    complete. The same issue arises in the companion case of
R. v. Okojie
(C68428), the reasons in which are being released at the same time as these.

[28]

In this case, the error alleged in determining the endpoint of the physical
    element or
actus reus
of importing is said to have had two
    consequences at trial. The jury was misdirected on the essential elements of
    the offence and, as a result, rendered an unreasonable verdict on that count.

[29]

To settle the issue raised in its proper environment, it is helpful to
    recall some features of the evidence adduced at trial and what the trial judge
    told the jury about importing.

The Essential Background

[30]

The appellant was the addressee of a package sent by post from DigitalPartner
    UNIKO in Guangdong, China. The declaration on the package described its
    contents as a digital cable and its value as $10. The package arrived at the
    International Mail Centre in Richmond, British Columbia on October 18, 2016.
    The package was examined. It contained fentanyl. Due to the toxic nature of
    fentanyl, the controlled substance was removed, its nature confirmed by
    testing. Its street value was $320,000.

[31]

The package, absent the fentanyl, was forwarded by plane by the RCMP so
    that it could be delivered to the appellant at her Ajax residence. Prior to its
    delivery, the appellant exchanged texts with a friend, Louisa Munro, a person
    whom she had known for about five months, in which Munro said, O said keep eye
    out. The appellant responded, Ok sweet. The morning of the controlled
    delivery Munro sent another text: O said keep eyes peeled.

[32]

On November 4, 2016, about two weeks after the package had arrived in
    British Columbia, an undercover police officer, disguised as a Canada Post
    delivery person, attempted to deliver the package to the appellants home. The
    delivery, which was authorized by a general warrant, failed. The appellant was
    not home. Hazare Roman, an ex-boyfriend who was there, did not get to the door
    before the undercover officer left.

[33]

An exchange of text messages followed with the ex-boyfriend about the
    failed delivery and its importance to the appellant. The appellant returned
    home, checked her mailbox for a courier slip and went into her house searching
    for any sign of the package. She then left.

[34]

About an hour later, the disguised undercover officer returned. He
    delivered the package to the appellants ex-boyfriend who accepted it on her
    behalf. Before the appellant returned home after being told about the delivery
    of the package, police executed a search warrant at the appellants home. They
    found the package, unopened, on a table in the front hall. Police arrested the
    appellant when she returned home. She said nothing about an important package
    and denied expecting delivery of a package when questioned by police.

The Charge to the Jury

[35]

The trial judge distributed copies of his proposed instructions to the
    jury to counsel and discussed their content with them. Trial counsel for the
    appellant (not counsel on appeal) did not object to the instructions about
    importing either before or after they were delivered.

[36]

After posing the first question for the jurors to answer as Did Jacinda
    Hudson
import
a substance into Canada?, the trial judge explained:

To
import
something into Canada means to bring it into
    the country, or cause someone else to bring it in, from outside Canada.

This element is proven when the substance enters Canada. Crown
    counsel does
not
have to prove that Jacinda Hudson
actually

took delivery of the substance, or actually carried it in.

What is essential, however, is that Jacinda Hudson was the
    person responsible for bringing it into Canada. This is the real issue for you
    to decide with respect to this charge. [Emphasis added.]

[37]

Later, the trial judge framed the issue for the jury to decide in this
    way:

There is no dispute that the substance was imported into
    Canada. The real issue for you to decide is whether Ms. Hudson was the person
    responsible for bringing the substance into Canada. The Crown relies on the
    evidence that the package was addressed to Jacinda Hudson at 1 Pennefather
    Lane, and on the text messages set out above as evidence from which you can
    infer that Ms. Hudson was the person responsible for bringing the fentanyl into
    Canada.

After reviewing the positions of the parties, the trial
    judge concluded his instructions on this question:

If you are
not
satisfied beyond a reasonable doubt
    that Jacinda Hudson
imported
a substance into Canada, you must find
    Jacinda Hudson
not
guilty. Your deliberations would be over.

If you
are
satisfied beyond a reasonable doubt that
    Jacinda Hudson
imported
a substance into Canada, you must go on to the
    next question. [Emphasis added.]

The Arguments on Appeal

[38]

The appellant says that the term import has its plain meaning of to
    bring in or cause a controlled substance to be brought into the country. The
    fault element requires proof that an accused knew or was wilfully blind as to
    the presence of the controlled substance, albeit not the nature of the
    controlled substance actually imported. This requirement of knowledge or wilful
    blindness must precede the entry of the controlled substance for proof of the
    offence of importing to be established.

[39]

To establish the
actus reus
or physical element of importing,
    the appellant continues, the Crown must prove that the accused did some
    voluntary act to arrange the shipment or delivery of the controlled substance
    into Canada. Establishing the point at which the offence is complete is central
    since this determines whether the evidence establishes importing or some other offence
    under the
Controlled Drugs and Substances Act

(
CDSA
)
,
S.C. 1996, c. 19
.
It also satisfies the coincidence principle, the
    procedural requirement that the offence be committed in Canada, and whether the
    evidence adduced establishes the physical element or is simply evidence of after-the-fact
    conduct.

[40]

The decision in
Bell v. R
.,
[1983] 2 S.C.R. 471, is
    dispositive of when the offence of importing is complete. Importing is not a
    continuing offence. Its physical element or
actus reus
is complete
    when the controlled substance enters the country. In cases of personal carriage
    of the contraband, such as
Foster
, the physical element is complete
    when the carrier and contraband clears customs. But this case-specific finding
    cannot apply to controlled deliveries. This is because possession, which occurs
    in the controlled delivery cases, is not an essential element of the offence of
    importing. To extend the offence of importing until the controlled substance
    comes into the possession of the intended recipient is unsupportable in
    principle. The decisions in
Onyedinefu
,
2018 ONCA 795, and
Buttazzoni
,
2019 ONCA 645, were wrong to have done
    so and should not be followed.

[41]

The definition of importing  in particular, the outer boundary of its
    physical element  must also respect Parliaments intention to create separate
    offences to criminalize post-importing conduct, such as trafficking and
    possession for the purpose of trafficking. To expand the definition of
    importing to take in domestic transportation and control of controlled substances
    overrides Parliaments intention to distinguish among these offences. By parity
    of reasoning, disparity in the sentencing ranges applicable to importing and
    the other offences supports a similar conclusion.

[42]

The respondent says that no matter when the offence is considered
    complete, when the fentanyl arrived in British Columbia or when the intended
    recipient took possession of the package in Ontario, the appellant was guilty
    and properly convicted of importing. The charge to the jury made it clear that to
    find the appellant guilty of importing, the jury had to find that the appellant
    had knowledge of the importing and was
responsible
for bringing or
    causing the fentanyl to be brought into Canada. The jury found the appellant
    guilty on the basis of these instructions. In other words, the jury was
    satisfied that the appellant was a principal in the offence of importing.

[43]

The trial judge, the respondent urges, correctly outlined the elements
    of the offence of importing. To find the appellant guilty, the trial judge
    said, the jury had to be satisfied beyond a reasonable doubt that the appellant
    was responsible for the importing. When combined with the precise language of
    the
Bell
majority  to bring [a controlled substance] into the
    country, or cause someone else to bring it in from outside Canada, this
    combination provided a proper basis to ground a conviction. No further, or more
    specific instruction was sought or necessary.

[44]

The respondent points out that the failure of the trial judge to
    specifically instruct the jury about when the physical element or
actus
    reus
of importing was complete  an instruction not sought at trial  is
    of no real moment. The case was left to the jury on the basis that the
    appellant was responsible for bringing in the fentanyl or causing it to be
    brought into Canada. Evidence of the appellants subsequent conduct afforded
    cogent evidence of her earlier involvement in the importation. There was no
    misdirection or non-direction amounting to misdirection in the final
    instructions to the jury.

The Governing Principles

[45]

The principles that inform our decision on this ground of appeal have
    been examined at length in our reasons in the companion case of
Okojie
released concurrently. It is unnecessary to repeat that analysis here. For our
    purposes, it is enough to extract some basic principles against which to
    measure the adequacy of the instructions given at trial.

[46]

Like all true crimes, importing consists of a physical element and a
    fault element. Each element must be established by relevant, material and
    admissible evidence beyond a reasonable doubt. At some point, the two elements
    must coincide:
Okojie
, at para. 95.

[47]

The physical element in importing requires proof that an accused
    imported a substance. That substance must be included in the same Schedule
    under the
CDSA
as the substance alleged in the indictment. To import a
    substance means to bring a substance, or to cause a substance to be brought
    into Canada from abroad. This does not require that the accused actually
    carried the substance into Canada. Nor does it require that the accused be
    present when and where the substance enters Canada. The offence may be
    committed in part at more than one place in Canada. But in each case, there
    must be a nexus between the accused and the importation:
Okojie
, at
    paras. 64, 96, 99.

[48]

The physical element of importing is complete when the controlled
    substance enters the country. When a controlled substance enters the
    country depends, to some extent at least, on the manner in which the importing
    occurs. When the physical element of importing concludes is of importance in
    determining the criminal liability of a person charged with importing. This is
    so because if an accuseds only participation is
after
the offence has
    been completed, their liability for importing cannot be established. However,
    evidence of after-the-fact conduct, of things said and done, may help to
    establish antecedent participation in importing. The physical element ends when
    the controlled substance from abroad is no longer in the control of the
    appropriate authorities:
Okojie
, at paras. 113-14.

The Principles Applied

[49]

Although a fuller instruction could have been provided than what was
    given, I am not persuaded that what was said reflects prejudicial error. I
    reach this conclusion for essentially four reasons.

[50]

This case involved a controlled delivery. The contraband was shipped by
    mail. It came into Canada from China. The package was opened, its contents
    inspected, and found to contain fentanyl, a highly toxic controlled substance.
    The fentanyl was removed, the package forwarded, always in the control of the
    authorities, until it was delivered to the appellants home. The appellant was
    the addressee.

[51]

At trial there was evidence of communications to and responses by the
    appellant alerting her to an impending delivery. The jury was entitled to
    reject, perhaps even to find fabricated, the explanation advanced at trial by
    the appellant and Munro about the nature of the delivery. The jury could
    conclude from the appellants conduct between the failed first delivery and the
    second completed delivery that the urgency revealed had nothing to do with a
    parcel containing childrens books and clothing.

[52]

Second, the position of the appellant at trial. The position advanced by
    the appellant at trial was an outright denial of any involvement with the
    package that had contained the fentanyl. The only delivery with which she was involved
    had to do with a package said to originate in Nova Scotia. A package of
    childrens books and clothing. She did not dispute that the delivered package
    from China was imported. Rather, she simply denied any involvement in its
    importation. In these circumstances, it is difficult to see how an instruction
    that the physical element of importing ended on delivery would have benefited
    the appellant in light of the defence she advanced at trial.

[53]

Third, the terms of the instruction provided.

[54]

The instructions given on the physical element of importing are
    consistent with the meaning assigned to import by the majority in
Bell
.
    The trial judge instructed the jury that to find this element established, they
    had to be satisfied that the appellant was
responsible
for bringing
    fentanyl into Canada. The use of the term responsible adequately conveyed to
    the jury that, to find this element proven, the jury had to be satisfied beyond
    a reasonable doubt that the appellant was the person or at least one of the
    persons who caused the importing to take place. This is the functional
    equivalent of the
Bell
majoritys cause to be brought into the
    country.

[55]

Fourth, the position of counsel at trial.

[56]

The trial judge provided counsel with copies of his proposed charge well
    in advance of its delivery. Counsel had ample opportunity to make submissions
    about errors and omissions, and to suggest any additional instructions that
    should be included. Defence counsel took no objection to the instructions now
    said to have been deficient. Nor did counsel suggest that anything be added to
    better explain to the jury this essential element of importing.

Ground #2: Unreasonable Verdict on Importing

[57]

This is the first of two grounds of appeal that allege the jury reached
    an unreasonable verdict. In large measure, my conclusion on the first ground of
    appeal precludes success on this ground. This is because the complaint about
    unreasonableness is dependent on a submission concerning when importing is
    complete and that submission was rejected in not giving effect to the first
    ground of appeal.

[58]

It is unnecessary to repeat the evidentiary background rehearsed
    earlier. A convenient point of departure is the arguments advanced in this
    court.

The Arguments on Appeal

[59]

The appellant reminds us that a verdict is unreasonable if it is one
    that a properly instructed jury, acting judicially, could not have reached.
    Since the evidence in this case is entirely circumstantial, to find the
    appellant guilty of importing, the jury must have concluded that the
    appellants guilt was the only reasonable inference available from the evidence
    taken as a whole.

[60]

In this case, the appellant argues, the offence of importing was complete
    when the package entered British Columbia. This was the date the offence was
    alleged to have occurred in the indictment. The trial judge failed to properly
    define when the offence was complete. The principal evidence against the
    appellant, apart from being a person to whom the package was addressed, was
    text messages and other conduct that took place over two weeks later. In these
    circumstances, without a proper direction about when the offence was complete,
    the jury could not properly have concluded that the appellants guilt was the
    only reasonable inference available on the evidence considered as a whole.
    Another reasonable inference was available on the evidence  that the
    appellants only involvement with the package occurred after the importing was over
    and done with.

[61]

The respondent acknowledges the standard of review applicable generally
    to claims of unreasonable verdict and that governing unreasonableness claims
    when the case for the Crown consists entirely of circumstantial evidence. In
    deciding whether a verdict is unreasonable, we are entitled to conduct only a
    limited weighing of the evidence as a whole within the limits of appellate
    disadvantage. Provided the evidence, taken as a whole, is reasonably capable of
    supporting the verdict, the verdict must stand.

[62]

In this case, the cumulative effect of the evidence supports the verdict
    of the jury. Several items of evidence, taken together, support the inference
    that the appellant was awaiting a package from overseas and that she had agreed
    to receive it before it was mailed to Canada. Among the items of evidence:

·

the appellant was the addressee at her current home address;

·

the sender was in China;

·

the appellant directed Roman to accept the package on her behalf;

·

after the failed delivery, the appellant returned home, checked
    the mailbox and house and left quickly;

·

at the same time, the appellant constantly texted Roman about the
    package from Canada Post;

·

after the failed delivery, the appellant texted Roman That was
    an important package FK man;

·

the appellant was relieved when the package was delivered;

·

the appellant lied to the police that she was not expecting a
    package; and

·

the fentanyl in the package as shipped was valued at about
    $320,000.

The Governing Principles

[63]

The controlling principles spark no controversy.

[64]

First, unreasonable verdict.

[65]

A verdict is unreasonable if it is one that a properly instructed jury,
    acting judicially, could not reasonably have rendered:
R. v. W.H.
,
2013
    SCC 22
,
[2013] 2 S.C.R. 180, at para. 26;
R. v. Biniaris
, 2000
    SCC 15, [2000] 1 S.C.R. 381, at para. 36. We must conduct our review of a jury
    verdict within two well-established boundaries. We must accord due weight to
    the advantage of the jury as the trier of fact, present throughout the trial,
    ear and eyewitness to the evidence as it unspooled. This is an advantage denied
    us at one remove from the trial process. We must be resolute in our resistance
    to re-try the case and to label a verdict unreasonable simply because we have
    a reasonable doubt based on a lifeless printed record. But our review is not
    limited to an assessment of the sufficiency of the evidence adduced at trial to
    determine whether there was some evidence which, if believed by the jury,
    supports the conviction. We must review, analyze, and, within the limits of
    appellate disadvantage, weigh the evidence, and consider, through the lens of
    judicial experience, whether judicial fact-finding precludes the jurys
    conclusion:

W.H.
, at paras. 27-28.

[66]

Where the case for the Crown depends wholly or substantially on
    circumstantial evidence and a conviction is impeached as unreasonable on
    appeal, the issue for the appellate court is whether the trier of fact, acting
    judicially, could reasonably be satisfied that the appellants guilt was the
    only reasonable conclusion available on the totality of the evidence:
R. v.
    Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55.

[67]

Second, proof by circumstantial evidence.

[68]

Proof of an issue of fact, such as importing a controlled substance, may
    be established by direct evidence, by circumstantial evidence, by an admission
    of fact, or by some combination of these various means of proof. Where
    circumstantial evidence is involved, the inference-drawing process may involve
    any or all of three methods of reasoning:

·

prospectant (for example, motive);

·

concomitant (for example, skill, means, opportunity);

·

retrospectant (for example, after-the-fact conduct).

The fundamental inquiry is one of relevance, whether
    the claimed conclusion is a probable inference from the offered fact: John
    Henry Wigmore, revised by Peter Tillers,
Wigmore on Evidence
,
vol. 1A (Toronto: Little, Brown and Company, 1983) at § 43, pp. 1138-42.

[69]

The inference involved when evidence of after-the-fact conduct is
    received looks backward from the evidentiary fact offered to the act alleged.
    Evidence of after-the-fact conduct refers to evidence of things done and said
    by an accused after the offence charged was alleged to have been committed:
R.
    v. Calnen
, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 106,
per
Martin
    J. (dissenting, but not on this point). Although proof of an accuseds
    involvement in collection of imported items, such as controlled substances,
    does not prove, on its own, that the accused is the importer, that activity may
    be circumstantial evidence tending to prove that the accused was in fact the
    importer:
R. v. Toe
, [2010] SASC 39, 238 FLR 137 (South Australia
    S.C.), at para. 76.

[70]

The assessment of circumstantial evidence, whether by triers of fact at
    first instance or by an appellate court on a review for unreasonableness, does
    not involve an examination of individual items of circumstantial evidence in
    isolation and separately from the rest, adjudging them against the criminal
    standard of proof and rejecting them if they are found wanting, as surely they
    will be. No individual item of circumstantial evidence is ever likely to do so.
    They are the building blocks of proof, not the final product. It is commonplace
    that individual items of evidence adduced by the Crown examined separately and
    in isolation, have not a very strong probative value. But all the pieces have
    to be considered. Each one in relation to the whole. And it is the whole of
    them, taken together, whose cumulative force must be considered and may
    constitute a basis for conviction:
Coté v. The King

(1941), 77
    C.C.C. 75 (S.C.C.), at p. 76.

The Principles Applied

[71]

I would not give effect to this ground of appeal.

[72]

At the outset, the question to be answered is whether the jury, acting
    judicially, could reasonably have been satisfied that the appellants guilt was
    the only reasonable conclusion available on the totality of the evidence.
    Further, we must be mindful that the circumstantial evidence does not have to
    totally exclude other conceivable inferences and that a verdict is not
    unreasonable because the alternatives do not raise a doubt in the jurys mind.
    It remains fundamentally for the trier of fact to decide whether any proposed
    way of looking at the case is reasonable enough to raise a doubt:
Villaroman
,
    at paras. 55-56.

[73]

An integral component of the appellants assertion of unreasonableness
    is her complaint of inadequacy in the trial judges instruction about when the
    physical element of importing was complete. As explained earlier, that argument
    fails in this case. The instructions given and the verdict rendered make it
    clear that the jury was satisfied that the appellant was responsible for
    importing the fentanyl.

[74]

The appellant was the consignee of a package mailed from China. The
    package contained fentanyl. Its value was $320,000. The appellant exchanged
    text messages to be on the lookout for this package. She took steps to ensure
    that the package was accepted when delivered. It beggars belief that anyone
    would ship $320,000 worth of goods to an address thousands of miles away to
    anyone who was not a participant in the importation.

Ground #3: Unreasonable Verdict: Possession of Fentanyl for the Purpose of
    Trafficking

[75]

The appellant was also found guilty and convicted of possession of
    fentanyl for the purpose of trafficking on or about November 4, 2016. At no
    time did she have actual physical possession of the fentanyl. By November 4,
    2016 when the package was delivered, the fentanyl had been removed. She
    contends that her conviction was unreasonable. The focus of her submissions is
    twofold. First, the failure of the trial judge to instruct the jury on the
    included offence of attempting to possess fentanyl for the purpose of
    trafficking. Second, the absence of evidence of the appellants possession of
    the actual drug.

[76]

The background necessary to understand this ground of appeal may be
    briefly stated.

The Essential Background

[77]

The package containing the fentanyl sent from China was received at the
    International Mail Centre in Richmond, British Columbia. There, the package was
    opened, its contents examined. Testing confirmed that a substance found in the
    package was fentanyl. Because of its toxic nature, the fentanyl was removed
    from the package. Not even a control sample remained. The package was put back
    together and re-entered the mail system for a controlled delivery to the
    appellant in accordance with the terms of a general warrant.

[78]

The controlled delivery took place. The appellant directed her
    ex-boyfriend to take delivery of the package. He did so. When police arrived to
    execute a search of the appellants home, they found the package, unopened on a
    table in the front hall. The appellant arrived home shortly thereafter. It is
    common ground that there was no fentanyl in the package.

The Charge to the Jury

[79]

At the close of the case for the Crown, the appellant did not seek a
    directed verdict of acquittal. She did not seek a full acquittal to remove
    possession for the purpose of trafficking from consideration by the jury, or a
    partial directed verdict, removing the full offence, but leaving an attempt to
    possess fentanyl for the jurys assessment.

[80]

The trial judge provided copies of his proposed charge to counsel in advance
    of its delivery and invited submissions about any errors or omissions. Trial
    counsel did not seek an instruction on attempted possession for the purpose of
    trafficking or object to its absence.

[81]

In his charge to the jury, the trial judge explained the elements of
    both actual and constructive possession. He adverted to the fact that the
    police had removed the fentanyl from the package before it was received by the
    appellant. The trial judge explained that a person who knowingly has a
    substance in the actual possession or custody of somebody else, or in some
    place for the use or benefit of him or herself or somebody else, has that
    substance in his or her possession provided she has some element of control
    over that substance. He went on to instruct the jury that if the evidence
    satisfies you beyond a reasonable doubt that Ms. Hudson believed the package
    contained fentanyl, and was aware Mr. Roman had accepted that package on her
    behalf, and that Mr. Roman placed the package in her residence for her, this
    will meet the legal definition of possession. You can find that Ms. Hudson was
    in possession of the fentanyl. He told the jury that if they were not
    satisfied that the Crown had proven all the essential elements of the offence
    beyond a reasonable doubt they should find the appellant not guilty of
    possession of fentanyl for the purpose of trafficking.

The Arguments on Appeal

[82]

The appellant says that the trial judge erred in law in failing to
    instruct the jury on the included offence of attempt to possess fentanyl for
    the purpose of trafficking. There was an air of reality to the claim that what
    occurred here amounted to no more than an attempt. For the completed offence,
    an accused must have control over the controlled substance itself, coupled with
    knowledge of the controlled substance and an intention to traffic in it. Here, the
    appellant had no control over the actual drug which had been removed in its
    entirety from the shipped package.

[83]

In this case, the appellant contends, the charge to the jury ignored an
    essential element of the offence  possession of the controlled substance
    alleged. The appellant had no control over the fentanyl, even if she could be
    found to have possession of the package in which it had been contained. The
    failure to instruct the jury about the absence of evidence of this essential
    element of the offence  whether the appellant had any control over the
    fentanyl  should require entry of an acquittal on the count of possession of
    fentanyl for the purpose of trafficking. At worst, a new trial should be
    ordered on attempt to possess fentanyl for the purpose of trafficking.

[84]

The respondent urges rejection of this ground of appeal, an argument
    advanced for the first time in this court. That police removed the fentanyl, a
    highly toxic controlled substance, from the package prior to completion of
    delivery of the package does not preclude the appellants conviction of the
    full offence of possession for the purpose of trafficking.

[85]

According to the respondent, the appellant was in constructive
    possession of the fentanyl when the controlled substance was in the actual
    possession of the police. The possession component of the offence of possession
    for the purpose of trafficking may be established on any basis authorized by s.
    4(3) of the
Criminal Code
, R.S.C. 1985, c. C-46. Possession is not
    restricted to actual physical possession but includes constructive and joint
    possession.

[86]

The respondent says that when the fentanyl was mailed to the appellants
    home address from China, the controlled substance entered the actual possession
    or custody of the postal service for delivery purposes. The postal service
    maintained custody of the package and its contents for the exclusive benefit of
    the appellant as its addressee. The obligation and assurance of the postal
    service that it would deliver the package and its contents to the appellant at
    her address and to no one else established a sufficient level of control to
    establish her liability for possession. Actual delivery of the contents was not
    required.

[87]

This case involves a highly toxic controlled substance. Its removal, to
    avoid serious risk of harm or even death to any would-be recipient, should not
    shield the persons responsible for its shipment from criminal liability. At
    worst, the court should substitute a conviction for an attempt to possess
    fentanyl for the purpose of trafficking. The appellant agreed to receive the
    package, aware of and with the intention to possess its contents, and knowing
    that the purpose of its possession would be to traffic in those contents. The
    appellants liability crystallized once the package was mailed, or at the very
    least, when she returned home to recoup the package her ex-boyfriend had
    accepted on her behalf. The failure of the trial judge to instruct on the
    inchoate offence of attempt was a harmless error in the circumstances.

The Governing Principles

[88]

Section 4(3) of the
Criminal Code
defines what constitutes
    possession for the purposes of the
Criminal Code
. Section 2(1) of the
CDSA
exhaustively defines possession for
CDSA
purposes as meaning
    possession within the meaning of subsection 4(3) of the
Criminal Code
.
    And in s. 34(2) of the
Interpretation Act
, R.S.C. 1985, c. I-2, makes
    all
Criminal Code
provisions relating to indictable offences
    applicable to indictable offences created by other federal enactments, except
    to the extent that the enactment otherwise provides.

[89]

Under s. 4(3) of the
Criminal Code
, thus for the purposes of s.
    5(2) of the
CDSA
, possession includes personal possession,
    constructive possession, and joint possession. Thus, possession need not be
    personal or actual, but may be constructive, as for example under s.
    4(3)(a)(ii):
R. v. Morelli
, 2010 SCC 8, [2010] 1 S.C.R. 253, at para.
    15. Knowledge and control are essential elements common to both personal and
    constructive possession.

[90]

Constructive possession may be established where an accused does not
    have physical custody of the subject-matter in question, provided they have the
    subject-matter in the actual possession or custody of another person or in
    any place, whether or not that place belongs to or is occupied by him, for the
    use or benefit of himself or of another person. In other words, constructive
    possession is complete when an accused:

i.

has knowledge of the character of
    the object;

ii.

knowingly puts or keeps the object in a particular place, irrespective
    of whether the place belongs to the accused; and

iii.

intends the object be for anyones benefit, including that of the
    accused.

See,
Morelli
, at para. 17.

[91]

Some authorities have considered the impact of police intervention in
    shipments of contraband before those shipments reach the consignee. In
Bell
,
    where a small amount of contraband was left in the shipment, all members of the
    court considered that the police intervention was irrelevant to the appellants
    liability for importing:
Bell
, at pp. 482, 491.

[92]

In
R. v. Bremner
, 2007 NSCA 114, 229 C.C.C (3d) 513, the
    appellant appealed his conviction of possession of crack cocaine for the
    purpose of trafficking. The offence occurred when Bremner was in prison. The
    evidence demonstrated that the cocaine was part of a package Bremner had
    ordered his drug-dealing subordinates to smuggle into the prison where Bremner
    was housed. The Crown alleged that Bremner had sufficient control over his
    subordinates that he was in constructive possession of the drugs which were
    never delivered. The external source of the drugs was a police informer under
    police control.

[93]

The Nova Scotia Court of Appeal rejected an argument by Bremner that,
    since he had no control over the drugs, he could not be in possession of them,
    thus could not be found guilty of possession of cocaine for the purpose of
    trafficking. It followed, the appellant argued, that his conviction was
    unreasonable.

[94]

The court referred to the concept of joint police-offender control and
    concluded that a measure of control by one person (the police) does not necessarily
    exclude the control required to establish possession by another person (Bremner):
Bremner
, at para. 54, citing
R. v. Miller et al
(1984), 12
    C.C.C. (3d) 54 (B.C.C.A.), at p. 90. See also,
R. v. Harrison
(1982),
    67 C.C.C. (2d) 401 (Alta. C.A.), at p. 417.

[95]

In
R. v. Bonassin
, 2008 NLCA 40, 236 C.C.C. (3d) 562, police
    seized a computer from the office of a courier company under the authority of a
    search warrant. Concealed in the computer were cocaine and marijuana. Police
    extracted the drugs, inserted books of similar weight and had the courier
    company deliver the package to its original destination. Although the appellant
    was not the addressee, he was working at the delivery address and accepted the
    package. Shortly after the delivery, the appellant went out of the house. He
    had the package and a suitcase with him. He then returned to the house where
    police arrested him.

[96]

The appellant was charged with possession of cocaine and marijuana for
    the purpose of trafficking. At trial, the appellant testified that his only
    purpose for being at the residence was to purchase marijuana. He had no
    intention of taking the package with him. He was simply moving it out of the
    doorway so that he could leave the house. The trial judge disbelieved the
    appellants story and convicted him.

[97]

On appeal, the appellant argued that the trial judge erred in finding
    guilt established because the package that was actually delivered contained no
    drugs. The court was satisfied that the evidence disclosed that the appellant
    and addressee had agreed before the drugs were removed that he would accept the
    package. Thus, the appellant and addressee had knowledge of the drugs and
    exercised control over them until they were seized by police. They were in joint
    possession of the drugs in advance of delivery. Since joint possession was
    established, the majority considered it unnecessary to determine the effect of
    police removal of the drugs and delivery of an empty package.

[98]

A final point concerns the nature of offences of which possession is an
    essential element. In
Bell
, McIntyre J. described a continuing offence
    as an offence in which the conjunction of the
actus reus
and the
mens
    rea
, which makes the offence complete, does not, as well, terminate the
    offence. The conjunction of the two essential elements for the commission of
    the offence continues, leaving the accused in a state of criminality while the
    offence continues. McIntyre J. cited possession of goods knowing them to have
    been obtained by the commission of theft as an example of a continuing offence:
Bell
, at p. 488.

The Principles Applied

[99]

As I will explain, I would not give effect to this ground of appeal. I
    am satisfied that the appellant was in constructive or joint possession of the
    fentanyl, that her possession was not broken by police removal of the fentanyl,
    and the purpose of her possession was to traffic the controlled substance.

[100]

The package
    containing the fentanyl was sent by mail to the appellant. On the evidence, the
    appellant was expecting a package containing drugs, and she was the addressee of
    the package. In these circumstances, the appellant had joint possession of the
    package and its contents with the postal service before the drugs were removed.
    The indictment alleged possession for the purpose on or about November 4,
    2016. The on or about language is typical of criminal pleading and
    sufficiently expansive to include the date on which the package was opened and
    before its contents were removed: see
Bell
, at p. 485.

[101]

However, that
    the expansive on or about language in the count encompasses possession prior
    to removal of the fentanyl is not the end of the matter. I will explain why.

[102]

The indictment
    included three counts: importing, possession for the purpose, and simple
    possession. Each offence was alleged to have been committed on or about
    November 4, 2016. The controlled delivery occurred on November 4, 2016. At
    that time there was no fentanyl in the package.

[103]

In his
    instructions on importing, the trial judge emphasized that to find the
    appellant guilty, the jury had to find that she was responsible for bringing
    fentanyl into Canada from abroad. The jury was satisfied that she was
    responsible for the importation. That finding, in these circumstances, meant
    that the appellant was in possession of the fentanyl under ss. 4(3)(a)(i)(ii)
    or s. 4(3)(b) of the
Criminal Code
. Other evidence was available to
    establish that the amount imported was for the purpose of trafficking. This was
    sufficient to establish the appellants guilt of possession for the purpose and
    the impact, if any, of the actual delivery of the package without fentanyl on
    the appellants liability for possession for the purpose would not arise.

[104]

On the other
    hand, if the jury were to have had a reasonable doubt that the appellant was
    responsible for the importation of the fentanyl and to have found her not
    guilty of that offence, then they would have had to consider the impact of the
    removal of the fentanyl on her liability for possession for the purpose. Absent
    possession of the fentanyl, the appellant could not be convicted of the full
    offence of possession for the purpose of trafficking in it.

[105]

Since there is
    to be a new trial on the indictment, it will fall to counsel and the trial
    judge to consider this prospect and determine whether it will be necessary to
    instruct the jury on the availability of a verdict of attempted possession for
    the purpose of trafficking on the count charging the completed offence.

Ground #4: The Instruction on Circumstantial Evidence

[106]

The evidence on
    which the Crown relied to establish the appellants guilt was entirely
    circumstantial. This ground of appeal asserts that the charge to the jury
    failed to equip the jury with the tools necessary to evaluate this evidence in
    determining whether, taken as a whole, it satisfied the standard of proof
    necessary in such cases.

[107]

The only
    background necessary to evaluate this claim of error is a brief reference to
    the charge itself and the process leading up to its final form.

The Essential Background

[108]

The trial judge
    distributed drafts of his proposed instructions to counsel for review and
    discussion at pre-charge conferences. The first draft, distributed when Hazare
    Roman was a co-accused, included a specific instruction about the standard of
    proof required when the case against an accused rested entirely on
    circumstantial evidence. The instruction was expressly limited to the case
    against Hazare Roman.

[109]

When the second
    draft was circulated, Hazare Roman was no longer a co-accused. He had changed
    his plea and played no further part in the trial. The second draft pointed out
    the difference between direct and circumstantial evidence and provided a
    typical example explaining the difference between the two types of evidence.
    The instruction also advised the jury that it should consider both direct and
    circumstantial evidence in deliberating on its verdict and that the law treated
    each equally as a means of proof. The instruction about circumstantial evidence
    which had been included previously in relation to the former co-accused, Hazare
    Roman, was not included. Nor was any instruction in equivalent terms included
    about the case against the appellant.

[110]

The final
    version of the instructions included a passage describing the difference
    between direct and circumstantial evidence, illustrated by a commonplace
    example, and a direction that both kinds of evidence  direct and
    circumstantial  were treated equally by the law.

[111]

The charge also
    included instructions on the presumption of innocence, the burden and standard
    of proof, and a
W.(D.)
-compliant direction on the testimony of the
    appellant.

[112]

At no time
    during the pre-charge conference or after the charge had been delivered did defence
    counsel  or for that matter, Crown counsel  ever seek a circumstantial
    evidence-specific instruction on the standard of proof.

The Arguments on Appeal

[113]

The appellant
    says that where the case for the Crown consists entirely or substantially of
    circumstantial evidence, the standard of proof requires that the jury be
    satisfied beyond a reasonable doubt that the guilt of the accused is the only
    reasonable inference to be drawn from the evidence taken as a whole. The trier
    of fact must also understand that inferences inconsistent with guilt need not
    be based on proven facts but can arise from the absence of evidence.

[114]

In this case,
    the appellant submits, the trial judge failed to instruct the jury properly
    about the requirements of the standard of proof necessary in cases consisting
    entirely of circumstantial evidence. As a result of this omission, the
    presumption of innocence was undermined and the burden of proof reversed. The
    judge fell short of what
Villaroman
requires in two significant
    respects. First, he failed to tell the jury that inferences inconsistent with
    guilt need not arise from the evidence but may also emerge from the absence of
    evidence. Second, he omitted to tell the jury that even if they were satisfied
    that the Crown had negated the exculpatory explanation advanced by the
    appellant, they had to consider the whole of the evidence, including the
    testimony of the defence witnesses, to determine whether the appellants guilt
    had been proven beyond a reasonable doubt.

[115]

The appellant
    acknowledges that trial counsels failure to object to the omission of these
    instructions is a relevant factor for us to consider in our assessment of this ground
    of appeal. However, this failure is not fatal. This is so because a proper
    instruction on the onus and standard of proof is essential to a fair trial.

[116]

The respondent
    contends that no particular form of instruction is required to ensure jurors
    understand the onus and standard of proof in cases consisting entirely or
    substantially of circumstantial evidence. The essential requirement is that the
    jury understand that they must be satisfied beyond a reasonable doubt that
    guilt is the only reasonable inference that can be drawn from the evidence as a
    whole. That message was adequately conveyed to the jury in this case.

[117]

In this case,
    the respondent points out, the trial judge explained to the jury and
    illustrated by example the difference between direct and circumstantial
    evidence. He told them that both types of evidence count in assessing whether
    guilt has been proven beyond a reasonable doubt. From these instructions, the
    jury would understand that, since both direct and circumstantial evidence were
    equals as means of proof, both had to meet the standard of proof beyond a
    reasonable doubt before a finding of guilt could be made. In addition, the jury
    were told that a reasonable doubt could arise from the evidence or the absence
    of evidence. No distinction was drawn between circumstantial and direct
    evidence in this respect.

[118]

The appellant
    testified. She, together with her friend, Louisa Munro, provided an alternative
    explanation. They said that a different package was being delivered. From Nova
    Scotia, not from China. The jury rejected that explanation. No other
    explanation was advanced. None emerged from the evidence. No further
    instructions were necessary.

The Governing Principles

[119]

An instruction
    about circumstantial evidence alerts jurors to the dangers of the path of
    reasoning involved in drawing inferences from circumstantial evidence. The
    danger is the risk that jurors will fill in the blanks or jump to
    conclusions. As a result, it is generally helpful that the jury, in a case
    where proof of one or more essential elements of the offence depends
    exclusively or largely on circumstantial evidence, be cautioned about too
    readily drawing inferences of guilt. However, the message may be delivered in
    different ways. No particular language is required. Instructing the jury that
    an inference of guilt drawn from circumstantial evidence should be the only
    reasonable inference that the evidence permits is often a succinct and accurate
    way of helping the jury to guard against the risk of filling in the blanks by
    too quickly overlooking reasonable alternative explanations:
Villaroman
,
    at para. 30.

[120]

In cases such as
    this, where proof of guilt depends entirely or substantially on circumstantial
    evidence, a trial judge may assist the jury in understanding the risk of
    jumping to conclusions from the evidence in different ways. How this end is
    achieved in any particular case is left largely to the discretion of the
    presiding judge:
Villaroman
,
at para. 31. There are different
    ways in which to assist the jury. This includes instructing the jury in the
    traditional language of reasonable doubt and charging the jury in accordance
    with that language, then pointing out the contrary inferences advanced by the
    defence and the necessity of acquittal if any of the contrary inferences leave
    a reasonable doubt about the accuseds guilt:
R. v. Fleet
(1997), 36 O.R. (3d) 542 (C.A.), at para. 20;
R. v. Griffin
, 2009 SCC
    28, [2009] 2 S.C.R. 42, at para. 33;
Villaroman
, at paras. 18, 20.

The Principles Applied

[121]

In my respectful
    view, this ground of appeal cannot prevail despite the absence of an
    instruction in language typical of most instructions given in this province
    about the standard of proof required in cases involving circumstantial
    evidence.

[122]

To begin, we
    have long abandoned any legal requirement that a specific instruction be
    given on circumstantial evidence. No particular language is required. To be
    certain, telling the jury that an inference of guilt drawn from circumstantial
    evidence should be the only reasonable inference the evidence permits, as the
Villaroman
court noted, will often be a succinct and accurate way of helping the jury
    guard against the risk of filling in the blanks by too quickly overlooking
    reasonable alternative inferences:
Villaroman
, at para. 30. But, as
Villaroman
,
    and
Griffin
before it, emphasized, the
Hodge
s Case
(1838), 2 Lewin 227, 168 E.R. 1136,
formula  the
    historically provided special instruction on the application of the burden of
    proof in cases of circumstantial evidence  is not the only way:
Villaroman
,
    at para. 31;
Griffin
, at para. 33.

[123]

In this case,
    the trial judge instructed the jury about the differences between direct and
    circumstantial evidence. He illustrated the difference between the two types of
    evidence with a commonplace example that 21st-century jurors could not fail to
    understand. The judge explained that both types of evidence were available for
    the jury to consider in deciding the case and of equal value in making that
    decision. The judge instructed the jurors on their task: to decide what
    conclusions they would reach based upon the evidence, as a whole, both direct
    and circumstantial.

[124]

Earlier in his
    charge, the trial judge instructed the jury on the presumption of innocence and
    the burden and standard of proof. Among the specific instructions on reasonable
    doubt, was a direction that a reasonable doubt could arise not only from the
    evidence, but also from the absence or lack of evidence. The trial judge also
    included a
W.(D.)
instruction based on the appellants testimony that
    she had nothing to do with the package of fentanyl addressed to her and no
    knowledge that the package was being shipped to her. He told the jury that if
    they could not decide whom to believe, they must find the appellant not guilty.

[125]

In this case,
    the trial judge charged the jury in accordance with the traditional language of
    proof beyond a reasonable doubt. He made it clear that it was the evidence as a
    whole, both direct and circumstantial, that the jury was required to consider
    to decide whether the standard of proof beyond a reasonable doubt had been met.
    The trial judge also pointed out the alternative inference advanced by the
    defence on the basis of the appellants testimony  that she was expecting another
    package that had nothing to do with fentanyl. The charge contains repeated
    reference to the obligation of the Crown to prove each essential element of the
    offence beyond a reasonable doubt before the jury could find the appellant
    guilty of any offence.

[126]

The procedure
    followed by the trial judge in settling upon his final instructions provided
    counsel with ample opportunity to seek instructions of the nature now said to
    have been required. No such request was ever made. Not before the charge. And
    not after. This, despite inclusion of such an instruction in relation to the
    former co-accused.

[127]

I do not gainsay
    the value of what has become the traditional instruction which
Villaroman
characterizes as helpful. In cases such as this, where the case for the Crown,
    as a whole or on a particular essential element, consists exclusively or
    substantially of circumstantial evidence, the traditional instruction should be
    given. But, as the authorities have repeatedly said, no specific language is
    required. In this case, taking the charge as a whole, I am satisfied that the
    jury was properly instructed.

Ground #5: Instructions on After-the-Fact Conduct

[128]

The appellant
    next argues that the trial judge erred in his instructions on evidence of
    after-the-fact conduct. The error is said to arise because the trial judge
    mischaracterized evidence of after-the-fact conduct as evidence of the offence
    itself. This, coupled with a failure to properly define when the offence of
    importing was complete and to define the case as entirely circumstantial,
    resulted in a failure to properly instruct the jury on evidence of
    after-the-fact conduct.

The Background

[129]

The evidence
    which is said to have attracted an instruction that was not given has already
    been summarized and need not be repeated. It consists of things done and said
    by the appellant on being advised of the attempted delivery and the later
    completed delivery.

The Charge to the Jury

[130]

No specific
    instruction was sought or given on evidence of after-the-fact conduct.

The Arguments on Appeal

[131]

The appellant
    argues that the failure of the trial judge to properly instruct the jury on
    evidence of after-the-fact conduct is the result of two other errors in the
    charge. The failure to properly define when the offence of importing was
    complete. And the failure to characterize or define the case as one consisting
    entirely of circumstantial evidence. In combination, these errors led the trial
    judge to characterize what was evidence of after-the-fact conduct as evidence
    of the offence itself.

[132]

Where the case
    for the Crown consists of or includes evidence of after-the-fact conduct, it is
    incumbent on the trial judge to explain to the jury that this evidence should
    be approached cautiously. The jury should be instructed to determine first
    whether the accused engaged in the after-the-fact conduct, then whether the
    conduct related to the offence charged. And finally, to consider the conduct,
    together with all the other evidence, before deciding whether the accuseds
    guilt has been proven beyond a reasonable doubt.

[133]

In this case,
    the trial judge erred in failing to identify this evidence as evidence of
    after-the-fact conduct and instruct the jury in such a way as to protect
    against the dangers that they would jump too quickly from this conduct to
    guilt. This omission resulted in a further reversal of the burden of proof.

[134]

The respondent
    disputes the characterization of this evidence as evidence of after-the-fact
    conduct. Regardless of when the importing offence was complete, evidence of the
    text messages and related conduct was circumstantial evidence of the
    appellants involvement in the importing offence. Nor was it evidence of
    after-the-fact conduct in relation to the count charging possession of fentanyl
    for the purpose of trafficking. It afforded evidence of the appellants
    constructive possession of the package.

[135]

Even accepting
    the appellants characterization of the evidence as evidence of after-the-fact
    conduct, the respondent says, does not command a special caution. Evidence of
    after-the-fact conduct is not some special category of evidence. It is not
    subject to a specific instruction or caution. It is circumstantial evidence
    that invokes a particular chain of reasoning. No more. No less. No special
    instruction was necessary. None given. No harm. No foul.

The Governing Principles

[136]

Evidence of
    after-the-fact conduct encompasses evidence of what an accused said and did
    after the offence with which the accused is charged is alleged to have been
    committed. Its boundaries are co-extensive with the limits of human experience.
    It is not offence-specific, but rather is non-discriminatory in relation to
    offences and legal settings. Its proper legal treatment is highly context and
    fact-specific:
Calnen
, at para. 106,
per
Martin J. (dissenting,
    but not on this point).

[137]

Evidence of
    after-the-fact conduct is not some special category of evidence. It is
    circumstantial evidence. Nothing more. Nothing less. Granted, it invokes a
    chain of reasoning different from other circumstantial evidence
    retrospectant, rather than prospectant or concomitant. But that it does so does
    not alter its fundamental nature. And like other items of evidence received in
    a criminal trial, evidence of after-the-fact conduct is received if it is
    relevant, material, admissible under the applicable rules of evidence, and not
    excluded because its prejudicial effect exceeds its probative value:
Calnen
,
    at para. 107,
per
Martin J. (dissenting, but not on this point).

[138]

As with other
    forms of circumstantial evidence, evidence of after-the-fact conduct allows the
    trier of fact to draw inferences grounded in an accuseds words and conduct.
    There is nothing new or unique about this. To draw inferences, the trier of
    fact invokes logic, common sense, and human experience. As with all
    circumstantial evidence, evidence of after-the-fact conduct sponsors a range of
    inferences each of which must be reasonable according to the measuring stick of
    human experience. The inferences available depend on the nature of the conduct,
    the inference sought to be drawn from it, the positions of the parties, and the
    totality of the evidence. Evidence of after-the-fact conduct is not nullified
    simply because it may generate a range of inferences. For the most part, it is
    for the trier of fact to choose among those reasonable inferences which
    inference will be drawn:
Calnen
, at para. 112,
per
Martin J.
    (dissenting, but not on this point).

[139]

Evidence of
    after-the-fact conduct may give rise to imprecise reasoning. It may encourage
    triers of fact to jump to questionable conclusions. It may seem more probative
    than it is. And so it is that judges should instruct juries to take into
    account any alternative explanations advanced for the accuseds behaviour. And
    in some cases, further specific limiting instructions or cautions may be
    necessary to counteract any specific reasoning risks associated with the
    particular evidence:
Calnen
, at para. 118,
per
Martin J. (dissenting,
    but not on this point).

[140]

As a general
    rule, evidence of after-the-fact conduct does not require any specific caution about
    its use in proof of guilt:
R. v. White
, 2011 SCC 13, [2011] 1 S.C.R.
    433, at paras. 21-22;
R. v. Adamson
, 2018 ONCA 678, 364 C.C.C. (3d) 41,
    at para. 58. Evidence of after-the-fact words and conduct often comprises
    several individual incidents, whether of things said, done, or both. The
    evidence should be considered as a whole, not in a piecemeal fashion, and
    together with the rest of the evidence received at trial:
R. v. McLellan
,
    2018 ONCA 510, 362 C.C.C. (3d) 183, at para. 47.

The Principles Applied

[141]

For several
    reasons I am not persuaded that this ground of appeal is well founded.

[142]

To begin, the
    evidence to which the appellant points, of text messages and conduct prior to
    delivery of the package, is not evidence of after-the-fact conduct. The offence
    of importing was not complete until the actual delivery to Hazare Roman of the
    package, thus removing the package but not the fentanyl from the control of the
    authorities. Thus viewed, this evidence cannot reasonably be characterized as
    evidence of after-the-fact conduct. It is simply circumstantial evidence of
    things done and said which is relevant to a material issue at trial  whether
    the appellant caused the fentanyl to be brought into Canada. As such, no
    special caution was required. It was part of the evidence the jury was entitled
    to consider in deciding whether the evidence as a whole satisfied the standard
    of proof required.

[143]

Second, inherent
    in this submission of error is that evidence of after-the-fact conduct is some
    special category of evidence that requires some special caution to be included
    in jury instructions. This is not consistent with the prevailing authorities.
    Evidence of after-the-fact conduct is not some special category or species of
    evidence. It is circumstantial evidence. It does not command any particular
    form of instruction apart from a direction that jurors should take into account
    any alternative explanations for the accuseds behaviour. That was done here.

[144]

Third, while not
    dispositive, trial counsel did not seek any specific instruction about this
    evidence or any particular direction about circumstantial evidence and the
    standard of proof. This, despite ample opportunity to do so at various
    pre-charge conferences when proposed final instructions were being discussed.

[145]

Fourth, in this
    case there was no dispute about the behaviour in question. The texts were sent
    and received. The conduct between the failed and successful delivery well
    established. The only alternative explanation advanced  that the behaviour
    related to an entirely different package the appellant expected to receive and
    not a drug delivery  was put to the jury and plainly rejected by their
    verdict.

[146]

Finally, there
    was nothing in the nature of this evidence which required any specific caution,
    as for example may be necessary where the evidence consists of an accuseds
    demeanour, lies, refusal to participate in an investigation or extrinsic
    misconduct.

Ground 6: Adverse Inference from Order of Defence Witnesses

[147]

This ground of
    appeal arises out of a submission made by the trial Crown in his closing
    address to the jury and the trial judges response in his charge. The
    subject-matter is the order in which the defence witnesses testified at trial.
    To be more specific, the fact that the appellant testified as the second,
    rather than the first, defence witness.

The Background

[148]

Prior to the
    closing addresses, the trial Crown indicated in the absence of the jury that he
    proposed to invite the jury in his closing address to draw an adverse inference
    against the appellant because she testified after Louisa Munro had testified.
    Defence counsel objected. The trial judge decided that the Crown was entitled
    to advance this argument.

[149]

Since the
    defence called evidence, defence counsel addressed the jury first. In
    anticipation of what the Crown would later say, defence counsel explained in
    his closing address that counsel decided which witnesses to call and the order
    in which they would testify. He added that various reasons influenced the order
    in which witnesses testified, including the availability of the witness, and in
    some cases, the availability of the witness counsel.

[150]

In his closing
    address, Crown counsel (not counsel on appeal) told the jury that there was a
    convention that an accused who testifies in their own defence testifies first
    before any other defence witnesses give their evidence. The Crown explained
    that an accused had the right to be present at their trial. However, the fact
    that an accused heard the evidence of other witnesses, in this case including
    Munro, was a factor that should affect the weight the jury should assign to her
    evidence. The Crown submitted that the appellant was simply trying to parrot in
    her testimony what Munro had said in her evidence.

The Jury Instructions

[151]

In his charge to
    the jury, the trial judge said nothing about Crown counsels invitation to the
    jury to draw an adverse inference against the appellant from having testified
    second after having heard the evidence all other witnesses including Munro. The
    judge did tell the jury that there was no evidence why Munro brought a lawyer
    to court with her when she testified.

[152]

The trial judge
    also instructed the jury that the decision to call the appellant to testify
    last was a decision for counsel to make. There could be many reasons why
    counsel made that decision to call Munro first, none of which emerged from the
    evidence at trial. The jury were told to ignore the hypothetical reasons
    advanced by defence counsel in his closing address.

The Arguments on Appeal

[153]

The appellant
    begins with the uncontroversial. As the accused in a criminal trial, she was
    statutorily required and constitutionally entitled to be present at her trial. To
    see the witnesses testify. And to hear their evidence. It is legally wrong for
    a trial judge sitting as a trier of fact, to reject the testimony of an accused
    on the ground that it appeared to be tailored to testimony heard in court or
    structured to meet the case for the Crown. Equally inappropriate is a
    suggestion that an adverse inference can be drawn from the failure of an
    accused to testify before other defence witnesses.

[154]

It is well
    settled, the appellant says, that an accuseds choice and constitutional right
    to testify after hearing the evidence marshalled against them cannot be turned
    into an evidentiary trap, a basis upon which to reject their evidence or a
    makeweight to shore up the case for the Crown. What happened here, through the
    comments of the trial Crown and the absence of corrective direction by the
    trial judge, was that the jury were invited to be suspicious of the appellants
    testimony because of the place in the witness lineup in which she testified.
    What was needed, but lacking, was a clear direction that no adverse inference
    could be drawn from the order in which the appellant testified.

[155]

The respondent
    concedes that the trial judge erred in permitting the trial Crown to invite the
    jury to consider the timing of the appellants testimony in assessing her
    credibility. There should have been no mention of a convention that an
    accused testifies before other defence witnesses. It is inappropriate for
    either the Crown or the trial judge to suggest that the trier of fact draw an
    adverse credibility inference based on the order in which the accused
    testifies.

[156]

However, the
    respondent continues, an error such as this does not automatically lead to the
    conclusion that the trial was unfair. In this case, the comment of the trial
    Crown was made in the context of a submission that the appellant and Munro
    fabricated their evidence about a different expected package with benign
    contents. This was a permissible line of argument on the evidence adduced at
    trial. Trial fairness was not compromised.

The Governing Principles

[157]

The governing
    principles are well known.

[158]

First, the order
    of witnesses.

[159]

A trial judge
    has no authority to direct an accused to call witnesses in any particular order
    or to give evidence before any other witnesses:
R. v. Sabir
, 2018 ONCA
    912, O.R. (3d) 465, at para. 39. The order or sequence in which defence
    witnesses testify is for counsel or the accused to determine:
R. v. Smuk
(1971), 3 C.C.C. (2d) 457 (B.C.C.A), at p. 462.

[160]

Second, the
    evidentiary significance of an accuseds right to be present at trial and to
    determine the sequence of defence testimony. A person accused of a crime is
    statutorily required and constitutionally entitled to be present at their
    trial:
R. v. G.V.
, 2020 ONCA 291, 392 C.C.C. (3d) 14, at para. 24,
    citing
R. v. Laws
(1998), 128 C.C.C. (3d) 516 (Ont. C.A.), at para.
    79;
Criminal Code
, s. 650(1). And at their trial, an accused is
    entitled to make full answer and defence:
G.V.
, at para. 24.

[161]

To give proper
    effect to this obligation and their entitlements, additionally an accuseds
    right to a trial that is at once apparently and actually fair, it is legally
    wrong for the Crown or the trial judge to invite the jury to impugn or discount
    the credibility of the accused on the basis that they have tailored their
    evidence to the testimony heard in the courtroom:
G.V.
, at para. 25.
    Despite the logic in the suggestion that, as a person who gets full advance
    notice of the case for the Crown and testifies last, an accused is in a
    position to tailor their evidence to fit the case presented. However, the logic
    notwithstanding, no such inference can be invited or drawn without turning
    fundamental constitutional rights into a trap and exacting an evidentiary price
    for their exercise:
G.V.
, at para. 26, citing
R. v. White

(1999),
    42 O.R. (3d) 760 (C.A.), at para. 20.

The Principles Applied

[162]

As I will explain,
    I would accede to this ground of appeal.

[163]

The respondent
    acknowledges that the trial judge erred in permitting the trial Crown in his
    closing address to invite the jury to consider, in assessing the appellants
    credibility, that she testified last as a witness at trial. But the respondent
    says this error and the substance of the Crowns closing did not render the
    trial unfair. I reach a different conclusion about the effect of the error on
    the fairness of the trial.

[164]

In his closing
    address, the trial Crown told the jury that it was the convention in criminal
    trials that the accused testifies first before other defence witnesses. This is
    to ensure that the accuseds evidence is not tainted by hearing other defence
    witnesses before they (the accused) testify. The fact that, unlike other
    witnesses, the accused has the right to be present for the whole of their trial
    is another reason for the convention. The appellant heard Munros evidence. She
    knew what she had to say. This ought to affect the weight the jury should
    assign to the appellants evidence. The jury could not be sure that the
    appellant had not simply tried to parrot what Munro had said. As a result, the
    jury should be extra skeptical when reviewing the tale of the care package.

[165]

The trial judge
    permitted the Crown to advance this argument and Crown counsel did so. Despite
    objection, the trial judge took no corrective action.

[166]

It is common
    ground that Crown counsels reference to a convention that an accused testifies
    as the first defence witness is simply wrong. No such convention exists. The
    order of defence witnesses is for the defence to determine. It is not subject
    to bright-line rules. There is no set list. This erroneous statement of the law
    remained uncorrected.

[167]

The trial
    Crowns closing invited the jury to reject the appellants evidence because, as
    the accused who was present throughout the trial, she was in the unique
    position of having heard the storyline from Munro. This permitted her to parrot
    Munros version and made her evidence unworthy of belief.

[168]

The closing
    address of Crown counsel invited the jury to use the appellants statutory
    obligation to be present at her trial, as well her constitutional entitlement
    to make full answer and defence, as a basis for skepticism about and rejection of
    her testimony. This turned the appellants statutory obligation and fundamental
    constitutional rights into a trap and imposed an evidentiary penalty for their
    exercise.

[169]

Defence counsel,
    aware of this aspect of Crown counsels closing, attempted to blunt its impact.
    Required to address the jury before Crown counsel, defence counsel offered some
    possible explanations about why defence witnesses might testify in a particular
    order. The trial judge instructed the jury to ignore these explanations.

[170]

In this case,
    the errors in Crown counsels closing address were not corrected. The jury was
    never told that there was no legal convention about the order of defence
    witnesses, in particular, that if an accused chose to testify in their own
    defence, they had to testify first. Further, the jury was never instructed that
    the fact that the accused was present throughout the trial and heard all the
    evidence before testifying was not a factor for the jury to consider in
    assessing the weight to be assigned to her testimony.

[171]

In combination,
    these errors compromised the fairness of the appellants trial.

Ground #7: The Third Party Suspect Issue

[172]

The final ground
    of appeal originates in a failed attempt at trial to adduce evidence about a
    known third party suspect as the person who caused the fentanyl to be mailed
    into Canada. The trial judge rejected the application after conducting a
voir
    dire
at which the alleged third party suspect testified.

[173]

A brief
    reference to the application and the trial judges ruling will provide the
    background necessary for an evaluation of this claim of error.

The Essential Background

[174]

Raza Khan is a
    former boyfriend of the appellant. The lease for the appellants residence, where
    the package in which the fentanyl had been secreted was delivered, was in Raza
    Khans name. Although Khan did not live with the appellant at the relevant
    time, she paid her rent to him by electronic money transfer. He forwarded the
    payment to the landlord. The appellant testified she had the only key to the
    home. She was not asked whether she ever saw Raza Khan or whether he ever came
    to her home.

[175]

Raza Khan
    testified on a
voir dire
to determine whether the appellant would be
    permitted to adduce evidence in support of a third party or alternate suspect
    defence. He acknowledged that:

i.

he sold cocaine and fentanyl;

ii.

he had ordered drugs online;

iii.

the drugs ordered online were shipped or mailed; and

iv.

he has ordered drugs in the names of other persons, not his own.

[176]

Raza Khan has a
    significant criminal record including two convictions in 2009 for possession of
    Schedule I and II controlled substances for the purpose of trafficking. In each
    case, he was sentenced to brief terms of imprisonment, one of which took into
    account more than seven months of pre-trial custody.

[177]

Raza Khan said that
    he could not recall whether he had ordered drugs to be delivered to the
    appellants home or whether he had a key to her house. He was not asked whether
    he had previously ordered drugs in the appellants name.

The Rulings of the Trial Judge

[178]

The trial judge
    gave two brief oral rulings on the alternate or known third party suspect
    issue. The first was based on the appellants testimony, the second after Khan
    had testified on a
voir dire
.

[179]

In his first
    ruling, the trial judge recognized that the application involved a known third
    party or alternate suspect whom defence counsel wished to call as a witness.
    The trial judge underscored the burden on the defence to adduce evidence of a
    nexus between the third party and the alleged offence. In the absence of any
    such evidence to support the required nexus, the trial judge considered it
    necessary to hold a
voir dire
to hear the evidence of Raza Khan before
    finally ruling on the application.

[180]

After receiving
    the testimony of Raza Khan on the
voir dire
, the trial judge concluded
    that there was no air of reality to the third party or alternate suspect
    defence. In particular, there was no evidence that Khan had ever ordered drugs
    in the appellants name. Although Khan admitted having ordered drugs online,
    among them cocaine and fentanyl, and having had them mailed or shipped to other
    houses, he could not recall having ordered a delivery to the appellants home.
    Although there was evidence that Raza Khan had a propensity to commit the
    offence with which the appellant was charged, the record revealed no nexus
    between Khan and the offence charged. There was no air of reality to the
    proposed defence. The application was dismissed.

The Arguments on Appeal

[181]

The appellant
    accepts that to advance a third party or alternate suspect defence, the
    evidence relied upon in support must meet the air of reality standard.
    Appellate review of a decision on the issue applies a standard of correctness. The
    burden on an accused is evidentiary. What is required as an evidentiary
    threshold is any evidence on the basis of which a properly instructed jury,
    acting judicially, could acquit. If this burden is met, the trial judge must
    also be satisfied that the probative value of the evidence in support of the
    defence is not substantially outweighed by its prejudicial effect.

[182]

The appellant
    also acknowledges that there must be a sufficient connection between the third
    party or alternate suspect and the alleged offence to furnish the essential air
    of reality. This may be supplied by evidence that the third party had the
    opportunity, motive, or propensity to commit the offence. The disposition of a
    third party to commit the offence is probative and admissible provided there is
    other evidence connecting the suspect to the offence. Just because a third
    party does not admit culpability does not mean that there is no air of reality
    to the defence. Provided the inferences available from the evidence are capable
    of raising a reasonable doubt about the defence, the defence should be left to
    the jury.

[183]

Here, the
    appellant urges, there was an air of reality to the defence. The trial judge
    failed to consider the possibility that Raza Khan was lying on the
voir
    dire
. The judge also ignored the cumulative effect of several items of
    evidence. Raza Khan was the leaseholder of the appellants residence and
    collected the rent from her, sometimes at the residence. Raza Khan had lived at
    the residence with the appellant and may have received two keys. He was a convicted
    drug dealer who had ordered drugs online in the past and had trafficked in
    fentanyl. He had previously ordered drugs online in the names of others and
    only offered a tepid failure to recall when asked about ordering them delivered
    to the appellants home.

[184]

The respondent
    says that evidence about a third party or alternate suspect is not
prima
    facie
admissible. Here, the proposed third party suspect was Raza Khan.
    But the only evidence advanced in support was his criminal record, drug
    trafficking practices, and a limited connection to the appellants home. This
    does not satisfy the air of reality standard.

[185]

Evidence about
    an alternate suspect may only be admitted where there is a significant
    connection between the third party and the offence alleged. Absent this link,
    evidence about the third party is neither relevant nor material. To connect the
    alternate suspect to the crime, something more than evidence of bad character
    or of offence-specific propensity is required. Evidence of motive or
    opportunity may be sufficient, but speculative evidence will not do.

[186]

In this case,
    the respondent concludes, the trial judge applied the proper test. He
    considered the evidence. He made a finding that was open to him on the
    evidence. Nothing connected Raza Khan to the package, its order, or its
    delivery. The trial judges ruling was correct in law and fully supported by
    the evidence.

The Governing Principles

[187]

The principles
    governing introduction of evidence about a known alternate or third party
    suspect are not in dispute. The parties divide on the impact of their
    application in the circumstances of this case.

[188]

It is open to an
    accused charged with an offence to adduce evidence that tends to show that
    another person committed the offence with which the accused is charged. The
    evidence offered in support may be direct, or circumstantial, or a combination
    of both:
R. v. McMillan
(1975), 7 O.R. (2d) 750 (C.A.), at p. 167, affd
    [1977] 2 S.C.R. 824. The evidence must be relevant and of sufficient probative
    value to warrant its reception. As a result, courts have been disinclined to
    admit evidence about alternate or third party suspects unless the suspect is
    sufficiently connected by other circumstances with the crime charged to give
    the proposed evidence some probative value:
McMillan
, at p. 757;
R.
    v. Grandinetti
, 2005 SCC 5, [2005] 1 S.C.R. 27, at paras. 46-47.

[189]

Evidence of the
    disposition of a known alternate or third party suspect is admissible to
    establish commission of the offence charged by that person provided that person
    is connected to the offence by other evidence. Absent such a nexus, the
    disposition evidence would lack any probative value:
McMillan
, at p. 758;
R. v.  Murphy
, 2012 ONCA 573, 292 C.C.C. (3d) 122, at para.
    19.

[190]

To put the third
    party or alternate suspect issue in play at a criminal trial, the defence must
    show that there is some basis upon which a reasonable jury properly instructed,
    could acquit on the basis of the defence. Absent a sufficient connection
    between the third party and the offence, the defence will lack the required air
    of reality and fail
in limine
:
Grandinetti
, at para. 48.

[191]

The requirement
    to show some nexus or connection between the third party and the offence
    applies whether the proposed evidence is direct or circumstantial or a
    combination of both. However, where the defence proposes to call direct
    evidence from another who admits responsibility for the offence, that proposed
    evidence itself constitutes a sufficient nexus or connection:
Murphy
, at
    paras. 24-25.

[192]

Among the items
    of evidence that an accused may rely upon in support of an alternate or third
    party suspect defence is evidence of that persons disposition or propensity to
    commit offences of the nature charged. One method of establishing disposition
    is to adduce evidence of the third partys criminal record disclosing
    convictions of cognate offences. A single conviction may suffice:
R. v. Arcangioli
,
    [1994] 1 S.C.R. 129, at p. 141.

[193]

A final point
    concerns the principles governing the admissibility of defence evidence in a
    criminal trial. The exclusion of relevant, material, and otherwise admissible
    defence evidence may only be justified on the ground that the potential
    prejudice to the trial process of admitting the evidence substantially
    outweighs its probative value:
Murphy
, at para. 17, citing,
R. v.
    Seaboyer
, [1991] 2 S.C.R. 577, at pp. 611-12.

The Principles Applied

[194]

In my respectful
    view, the trial judge erred in failing to permit the defence to call Raza Khan
    as an alternate or third party suspect. Thus, I would give effect to this
    ground of appeal.

[195]

This case
    involves delivery of a package containing fentanyl from China to the appellant
    at her home in Ajax. The package was mailed, arrived in Canada in British
    Columbia where the fentanyl was removed and the package forwarded to the
    addressee.

[196]

For the proposed
    evidence to be admitted in this case, it must be relevant and of sufficient
    probative value to warrant its reception. And there must be a sufficient
    connection or nexus between the third party and the offence charged. The nexus
    may be established by direct or circumstantial evidence or combination of both.

[197]

Raza Khan
    testified on the
voir dire
. He did not admit that he had ever ordered
    drugs to the appellants address. He said he could not recall having done so,
    although he had ordered drugs online before and had them delivered to other
    addresses. Disbelief of his faulty memory explanation does not equate to an
    admission that he committed the offence.

[198]

On the other
    hand, I am satisfied that there was sufficient circumstantial evidence to put
    the alternate or third party suspect issue in play.

[199]

Raza Khan was an
    admitted and convicted trafficker. He acknowledged ordering drugs online from
    various sources. The drugs included fentanyl, the same controlled substance at
    issue here. He had ordered fentanyl online. He ordered that delivery of his
    online purchase be made to addresses other than his own to recipients other
    than himself. In other words, he had a disposition to do the very thing the
    appellant was alleged to have done here.

[200]

Raza Khan was
    also connected to the place of delivery and the recipient. He was the lessee of
    the property. He had lived there for several months with the appellant. He
    collected the rent money from her. And this is not a case in which, as his
    previous dealings show, he needed to be at the address at a specific time to
    order the fentanyl online and have the appellants name appear as addressee and
    the package delivered to her residence.

[201]

The cumulative
    effect of this evidence was sufficient to meet the evidentiary threshold to
    engage the alternate or third party suspect defence. The trial judge erred in
    ruling otherwise.

Disposition

[202]

The combined
    effect of the errors I have identified leads me to conclude that the
    convictions entered at trial cannot stand. I would allow the appeal, set aside
    the convictions, and order a new trial on both counts of the indictment.

Released: November 2, 2021 D.D."

David Watt J.A.

I agree. Doherty J.A.

I agree. K. van Rensburg
    J.A.

I agree, M.L. Benotto J.A.

I agree. I.V.B. Nordheimer
    J.A.