COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pilgrim, 2017 ONCA 309

DATE: 20170419

DOCKET: C61208, C61132

MacFarland, Pardu and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ronald Joseph Pilgrim and Tammy Lynn Parent

Appellants

Sherif M. Foda, for the appellant Ronald Joseph Pilgrim

Heather Pringle, for the appellant Tammy Lynn Parent

Sarah Shaikh, for the respondent

Heard: March 2, 2017

On appeal from the convictions entered on March 16, 2015
    and from the sentence imposed on the appellant, Tammy Lynn Parent, on July 6,
    2015 by Justice Christopher Bondy of the Superior Court of Justice, sitting
    without a jury.

Trotter J.A.:

A.

introduction

[1]

Ronald Joseph Pilgrim
    and Tammy Lynn Parent, common law spouses, were convicted of two counts of
    possession of a controlled substance for the purpose of trafficking, contrary
    to s. 5(2) of the
Controlled Drugs and Substances Act
, S.C. 1996, c.
    19 (
CDSA
), and one count of simple possession of a controlled substance,
    contrary to s. 4. Mr. Pilgrim and was sentenced to 20 months imprisonment,
    while Ms. Parent was sentenced to 15 months.

[2]

Mr. Pilgrim and Ms.
    Parent appeal their convictions. Ms. Parent also appeals her sentence. For the
    following reasons, the appeals from conviction are allowed. It is not necessary
    to consider Ms. Parents sentence appeal.

B.

the facts

(1)

Introduction

[3]

This case arises from
    the execution of a search warrant on January 28, 2011 at the appellants home
    in the City of Windsor. The warrant authorized a search for marijuana. The
    police found marijuana, but they also discovered large quantities of oxycodone and
    Percocet pills; eight bottles of methadone; and a large quantity of cash.

[4]

Mr. Pilgrim had
    prescriptions for oxycodone and Percocet at the time. He did not have a
    methadone prescription. He did at the time of trial.

[5]

At the outset of the
    joint trial, Mr. Pilgrim pleaded guilty to possession of marijuana for the
    purpose of trafficking. This charge was withdrawn against Ms. Parent. The trial
    proceeded on three counts against both appellants: possession of oxycodone for
    the purpose of trafficking; possession of Percocet for the purpose of
    trafficking; and possession of methadone for the purpose of trafficking. On the
    last charge, Mr. Pilgrim pleaded guilty to simple possession, but disputed that
    it was for the purpose of trafficking. Ms. Parent denied possession of the
    methadone entirely.

[6]

The case against the
    appellants was entirely circumstantial. The Crown did not lead evidence of any
    drug transactions, nor did it adduce any expert evidence. The Crowns case
    rested on: (a) the quantity of the drugs found; (b) the place and manner of
    storage; (c) the presence of empty pill bottles in the home; and (d) the
    presence of cash in proximity to the drugs.

(2)

The Execution of the Search Warrant

[7]

When the warrant was
    executed, the police found four quantities of marijuana: two bags containing 212.9
    and 16.2 grams, respectively, in the freezer, 12.6 grams in a cup on top of the
    freezer, and 27.7 grams in a bag found on a hutch. They also found illegal
    cigarettes, which Mr. Pilgrim admitted to selling.

[8]

Tucked behind living
    room couch cushions, officers located a plastic bag containing 529 Percocet pills
    and an unlabeled prescription bottle containing 179 oxycodone pills.

[9]

The police found three
    digital scales in the kitchen. These scales may have been associated with Mr.
    Pilgrims sale of marijuana. In the refrigerator, the police found eight 100 ml
    bottles of methadone.

[10]

A
    total of $2,775 in Canadian currency and $22 in U.S. currency was seized. The
    police found: (a) a black and silver purse containing $225; (b) two envelopes
    marked Baby Bonus, each containing $1,000; (c) a TD Trust envelope containing
    $550; and (d) an unmarked envelope with the U.S. currency.

[11]

In
    an upstairs bedroom that did not appear to be used for sleeping, the police
    seized 11 empty pill bottles. Nine of them had their labels removed. The other
    two bore labels in the names of persons other than the appellants. Both
    prescriptions appeared to have been recently filled. The police did not contact
    these two people to ascertain why their pill bottles were in the appellants
    home.

(3)

Mr. Pilgrims Prescriptions

[12]

Since
    the age of 15, Mr. Pilgrim suffered from chronic pain as a result of spinal
    stenosis. In the year before his arrest, Mr. Pilgrim was prescribed many pain
    medications, including oxycodone, fentanyl, Lorazepam and Temazepam.

[13]

Dr.
    Haider Hasnain was Mr. Pilgrims doctor. Between 2009 and 2011, he regularly
    prescribed oxycodone and Percocet to Mr. Pilgrim. Between June 5, 2010 and
    February 23, 2011, he gave Mr. Pilgrim 13 prescriptions for 5 mg oxycodone
    pills, resulting in the dispensation of over 2,000 pills. In June of 2010,
    after Mr. Pilgrim had surgery, Dr. Hasnain quadrupled his prescription to 160
    pills every twenty days. Dr. Hasnain testified that he directed Mr. Pilgrim to
    continue taking pain medication until he got better.

[14]

Dr.
    Hasnain testified that he entered into contracts with all patients to whom he
    prescribed narcotics. He entered into one with Mr. Pilgrim. Among other things,
    the contract required secure storage for the drugs. Mr. Pilgrim was also required
    to undergo regular blood tests. In February of 2011, after his arrest, Mr.
    Pilgrim tested positive for methadone. Dr. Hasnain testified that methadone is
    used usually in people who are addicted to narcotics. Dr. Hasnain did not
    prescribe methadone to Mr. Pilgrim. He could not recall Mr. Pilgrim telling him
    he wished to reduce or stop taking his prescribed medication.

[15]

Gus
    Spanic, a pharmacist, testified that he filled Mr. Pilgrims prescriptions for
    pain medication since 2004. He identified various pill bottles seized from the
    appellants home. He testified that two of the large bottles did not come from
    his pharmacy and were the type of bottles used by distributors or wholesalers.

(4)

Mr. Pilgrims Testimony

[16]

Mr.
    Pilgrim was 43 years old at the time of trial. He lived with Ms. Parent, along
    with three children, ages five, seven and fourteen.

[17]

Mr.
    Pilgrim described his struggles with back and neck pain since he was a
    teenager. He testified that he had surgery on his neck in 2010. However, it did
    not alleviate the pain. The pain worsened. His prescriptions were increased
    dramatically.

[18]

Mr.
    Pilgrim felt groggy from his medication. He used the living room sectional
    couch as his bed because he had difficulty negotiating the stairs to the
    bedroom. He was able to sleep upright on the couch. Mr. Pilgrim testified that
    he spent all day, all night on the couch and if I went anywhere, it was
    usually to a doctors appointment. Ms. Parent sometimes slept on the couch
    with him.

[19]

Mr.
    Pilgrim explained that he kept the pills in the couch because he spent most of
    his time there. He removed them from the containers in which they were
    prescribed and put the oxycodone in a bigger container and the Percocet in a
    plastic bag. Mr. Pilgrim emptied the bottles so that he could give them to Ms.
    Parents father, who used them in his shed to store nuts, bolts, screws and
    nails. Mr. Pilgrim said a friend gave him one of the labelled pill bottles
    found by the police. He did not know the person whose name was on the other
    bottle. Mr. Pilgrim did not know how he acquired the larger distributor
    containers.

[20]

Mr.
    Pilgrim testified that all of the pills found by the police came from his own prescriptions.
    He testified that he was having a difficult time functioning at home because of
    the amount of medication he was taking. He said he was in and out of
    consciousness all the time. He asked Dr. Hasnain about coming off of his medication,
    but was told that he should wait until his recovery progressed further.

[21]

Mr.
    Pilgrim attempted to wean himself off of the pills by using methadone, which he
    started taking three to four months before his arrest. Dr. Hasnains evidence
    about Mr. Pilgrims blood tests (in para. 14 above) is consistent with Mr.
    Pilgrims evidence on this issue. At the time of his arrest, he purchased
    methadone from the street, at $15 per bottle.

[22]

Mr.
    Pilgrim admitted to selling marijuana from his home. He explained that he sold
    it to fund his own use of that drug. He denied selling any other drugs.

[23]

Mr.
    Pilgrim denied that any of the cash found in his home was from drug dealing. He
    explained that cash in the two Baby Bonus envelopes was from government childcare
    benefit cheques. He and Ms. Parent saved the money throughout the year for
    family holidays. Mr. Pilgrim said that they dipped into this money at Christmas
    in 2010. The money was replaced from Ms. Parents severance pay (discussed in
    para. 29, below).

[24]

In
    cross-examination, Mr. Pilgrim acknowledged that the drugs found in the home
    could do serious, if not fatal, harm to his children. He explained that he
    stored the drugs in the couch because that's where I [would] spend most of my
    time. It would not have been safer to store the pills in a cupboard because his
    14-year-old, who was already smoking marijuana, could easily access them.
    Similarly, his younger children could have pulled a chair to the counter and
    reached the drugs left in a cupboard. Stored in his couch, Mr. Pilgrim could
    monitor them at all times. Nevertheless, Mr. Pilgrim acknowledged that it was
    an error in judgment to store the pills in the manner that he did.  He was
    not worried about the methadone bottles because they had push down locked caps.
    He said that in any event he was required refrigerate the methadone.

(5)

Ms. Parents Testimony

[25]

Ms.
    Parent testified that she knew Mr. Pilgrim stored the oxycodone and Percocet
    pills in the couch. She said that Mr. Pilgrim was right there 95% of time.
    Although she was unaware of precisely how many pills had accumulated by the
    time police executed the search warrant, Ms. Parent thought that the pills
    found behind the couch cushions were all validly prescribed to Mr. Pilgrim and
    she did not believe he was selling them.

[26]

Ms.
    Parent also knew that methadone was stored in the house. She testified that Mr.
    Pilgrim was using methadone to wean himself off of the opiates he was
    prescribed.

[27]

Ms.
    Parent admitted to owning the purse tucked into the cushion of the couch. She
    kept it there habitually. She testified that, generally, she did not like to
    carry a purse.

[28]

Ms.
    Parent testified that the envelopes marked Baby Bonus contained money for the
    children. She put money in the envelopes to replace money the family had spent
    at Christmas. Ms. Parent explained that, because she owed money to VISA, she
    avoided putting money in her own bank account.

[29]

Prior
    to the execution of the warrant, Ms. Parent received $10,680 in severance pay from
    her former employer. This was paid out over time, ending on November 25, 2010.
    It was deposited into her mothers bank account in Belle River (approximately
    30 minutes from Windsor), again, for reasons related to VISA.

[30]

Ms.
    Parent withdrew $3,500 from her mothers account on January 14, 2011. This was
    consistent with a bank receipt. Ms. Parent testified that she put $1,000 in
    both Baby Bonus envelopes, $500 in another envelope, and $225 in her purse.
    She also spent some of the money on groceries and the children.

[31]

Ms.
    Parent was cross-examined about whether it would have made more sense to leave
    the money in a bank account, rather than stuffed into envelopes at home,
    especially when the intention was to save the money. Ms. Parent explained that,
    if the money were in the bank, she would be more likely to call her mother and
    ask, Hey, mom, will you take some money out for me, please? She denied that
    the money was from the sale of drugs.

[32]

Ms.
    Parent testified that she and her husband collected pill bottles for her
    father, who used them in his shed. She explained that her father previously used
    baby food jars for this purpose when their children were younger. Photos were
    produced of the fathers shed in Belle River, showing dozens of pill bottles re-purposed
    in the way that Mr. Pilgrim and Ms. Parent described.

[33]

Ms.
    Parent testified that, while she never
saw
her husband sell marijuana,
    she
knew
that he did. She did not approve of it. Asked why she would
    permit him to sell marijuana, Ms. Parent said: Well, hes his own person. I
    can tell him no until Im blue in the face. If hes going to do it, hes going
    to do it. Ms. Parent agreed that she turned a blind eye to the sale of
    marijuana. She denied that she turned a blind eye to the sale of the pills
    found in the house.

C.

The trial judges reasons

[34]

The
    trial judge approached the case as one of joint possession. On the evidence,
    there was no doubt that Mr. Pilgrim was in possession of the pills. He
    acknowledged that the pills were his and that they were all from his own
    prescriptions. That left two issues to be decided: was Ms. Parent also in possession
    of the pills or the methadone found in the house, and did the appellants possess
    those drugs for the purpose of trafficking?

(1)

Ms. Parents Possession

[35]

The
    trial judge applied s. 4(3)(b) of the
Criminal Code
, R.S.C. 1985, c.
    C-46, and found that Ms. Parent was in joint possession of the oxycodone and
    Percocet pills and the methadone. He reasoned that Ms. Parent knew what the pills
    and methadone were and where they were stored. She was not subject to any
    threats or coercion from Mr. Pilgrim. To the contrary, her evidence suggested
    she consented to both the presence of the drugs and their manner of storage
    consent she had the right to withhold given her possessory interest in the home
    she and Mr. Pilgrim shared.

(2)

Was the Appellants Possession for the Purpose of Trafficking?

[36]

The
    trial judge rejected both Mr. Pilgrims and Ms. Parents evidence that they did
    not possess the pills for the purposes of trafficking. He found ample indicia
    of trafficking. In particular, the trial judge relied on four categories of
    circumstantial evidence in rejecting the appellants evidence and finding that
    they possessed the pills for the purpose of trafficking:

·

The quantity of narcotics;

·

The empty pill bottles available for packaging;

·

The cash recovered from the couch; and

·

The place and manner of storage.

[37]

The
    trial judge found that Mr. Pilgrim was clearly aware of the significant volume
    of pills in his possession. He rejected Mr. Pilgrims evidence that he wanted
    to wean himself off of the oxycodone and Percocet pills. Mr. Pilgrim continued
    to refill his sizeable prescriptions. None of his doctors recalled Mr. Pilgrim
    asking them reduce the amount of pills he received. The trial judge found it
    inconceivable that Dr. Hasnain would have refused to reduce Mr. Pilgrims
    prescription had he been asked to do so.

[38]

The
    trial judge found that the empty pill bottles in the upstairs bedroom were indicative
    of trafficking because they could be used to package drugs for purchasers. Considering
    the evidence of the appellants about saving the bottles for Ms. Parents
    father, the trial judge said: I have no way of knowing with any certainty whether
    or not that is true, or whether it was a story concocted after the fact.

[39]

The
    trial judge also found that the empty pill bottles undermined the defence
    theory that Mr. Pilgrim lawfully possessed the pills. He stated:

Those empty pill bottles also speak to the defence proposition
    that the possession of the Percocet and OxyContin was lawful because Mr.
    Pilgrim had a prescription. I make two observations in this regard. The first
    is that it is not at all clear that the pills found behind the couch were the
    same as those that had been prescribed. The empty pill containers [belonging to
    neither Mr. Pilgrim nor Ms. Parent] discussed immediately above suggest an
    alternative conclusion. The second is that the lawfulness of possession is in
    part a state of mind of the possessor. If Mr. Pilgrim possesses prescription
    drugs for personal use, then I agree the possession was lawful. Once the
    possession is for another purpose, such as selling them to third parties, the
    possession is no longer lawful.

[40]

The
    trial judge rejected the appellants evidence about the source of the cash. He
    was doubtful of the manner in which the appellants said they organized their
    finances (
i.e.
, by keeping large amounts of cash in the house),
    especially given that those buying marijuana and cigarettes would be frequenting
    their home.

[41]

As
    described in detail below, the trial judge was very concerned about the manner
    in which the pills were stored in the house, and the danger that this posed to
    the children in the home.

[42]

Lastly,
    the trial judge found that Mr. Pilgrim possessed methadone for his own use, and
    not for trafficking. He made no specific finding about the purpose for which
    Ms. Parent possessed the methadone.

(3)

The Marijuana Trafficking Evidence

[43]

Even
    though the marijuana trafficking charge was withdrawn against Ms. Parent, the
    trial judge twice referred to Ms. Parents knowledge that Mr. Pilgrim was
    selling marijuana, particularly her evidence that she turned a blind eye to
    this activity. When reviewing Ms. Parents evidence, the trial judge concluded:

Given that characterization, I have no difficulty concluding
    that she was wilfully blind to the marijuana trafficking operation. Wilful
    blindness is the equivalent of actual knowledge. [Citation omitted.]

[44]

On
    the issue of the purpose for which the pills were possessed, the trial judge
    again referred to the sale of marijuana. He noted Mr. Pilgrims admission to
    selling the drug, and Ms. Parents admission that she was wilfully blind to
    that conduct.

D.

the positions of the parties

[45]

On
    behalf of Mr. Pilgrim, Mr. Foda argues that the trial judge erred in admitting
    evidence of discreditable conduct (
i.e.
, endangerment of the children)
    and then misusing it in his analysis. He also identifies various passages in
    the trial judges reasons that he says are flawed and reverse the burden of
    proof. Finally, Mr. Foda argues that one of the possession for the purpose of trafficking
    charges should be stayed, based on
R. v. Kienapple
, [1975] 1 S.C.R.
    729.

[46]

Ms.
    Parents main contention is that the verdicts are unreasonable. Ms. Pringle
    (for Ms. Parent) argues that the trial judge failed to give sufficient reasons
    for his findings that Ms. Parent had the
mens rea
for the offences for
    which she was convicted. She also submits that the trial judge erred in how he
    dealt with the evidence relating to the money found in the house.

[47]

In
    response, Ms. Shaikh argues that the trial judge did not err in admitting or using
    any of the evidence adduced at trial, and that his reasons were responsive to
    the cogent case against both appellants. She also contends that the verdicts
    against Ms. Parent were supported by the evidence. Finally, Ms. Shaikh argues
    that
Kienapple
does not apply.

E.

Analysis

(1)     The Appeal By Mr. Pilgrim

[48]

Mr.
    Foda argues that the trial judge erred in admitting evidence of the danger
    posed to the children by the stockpile of pills in the home, and that the trial
    judge misused this highly prejudicial evidence in finding his client guilty.

[49]

The
    issue arose during the Crowns examination of Dr. Hasnain. The Crown asked Dr.
    Hasnain what would happen if a child consumed the drugs found in the house.
    Defence counsel objected, questioning the relevance of the evidence. The Crown
    submitted that he anticipated that, if the accused testified, he would
    cross-examine them on the fact that there were children in the house. This, he
    said, would have some bearing on the issue of whether the drugs were stored for
    personal use, or for sale.  The defence argued that whether or not the safety
    of the children was compromised was not relevant to the purpose for which the
    drugs were possessed.

[50]

The
    trial judge agreed with the Crown. As he said in his ruling:

I see it as part of the narrative in explaining the mindset of
    whoevers drugs those were in storing them under the  the couch. It may be someone
    using them for pain management would store them      differently than someone
    using them for a sale and Im not saying Ive come to that conclusion  but I
    understand that to be what [the Crown] is saying and I think he is on fertile
    ground. So I am going to         allow it.

[51]

I
    pause to note that the ruling did not specifically address the issue of child
    safety, which was really the basis for the objection, as opposed to where the
    drugs were stored. Nevertheless, after the ruling, the questioning about child
    safety continued. The doctor was asked what would happen to a child who consumed
    not just
some
of the pills, but
all
of them at once (
i.e.
,
    529 Percocet pills and/or 179 oxycodone pills), a rather preposterous
    proposition. Not surprisingly, the doctor predicted fatality.

[52]

The
    Crown pursued the issue during Mr. Pilgrims cross-examination. He was asked
    many questions about the safety of his children. Ultimately, he was forced into
    submission, acknowledging that storing the pills behind the couch was an error
    in judgment.

[53]

The
    trial judge made repeated references to this evidence in his reasons. For
    example, he said the following when reviewing Dr. Hasnains evidence:

Dr. Hasnain testified that if one of Mr. Pilgrim and Ms.
    Parents children had consumed either the Percocet tablets or the 40 milligram OxyContin
    tablets that were stored behind the couch cushion, they would have died without
    medical intervention.
A younger child would die almost immediately if the
    entire quantity were ingested. I reiterate that there were three children that
    were living at the house aged 5, 7 and 14.

[54]

The
    trial judge returned to the danger of storing the pills in the couch when
    analyzing whether Mr. Pilgrim and Ms. Parent possessed the pills for the
    purpose of trafficking, stating:

I find any potential for convenience grossly disproportionate
    to the manner in which a responsible parent would store narcotics. I begin with
    the observation that Mr. Pilgrim acknowledged having signed a contract with
    respect to those narcotics. The contract required him to store those drugs
    safely. Mr. Pilgrim had not only stored those pills within easy reach of very
    small children, but he had also stored the Percocets in a plastic bag rather
    than a childproof container as is required by law. Mr. Pilgrim and Ms. Parent
    testified that their daughter, Asia, was already at the time using marijuana,
    and that they did not trust her. I find it impossible to believe that Asia
    would not have known that the Percocet and OxyContin pills were in the house,
    given that Mr. Pilgrim had taken so many pills for so many years.
It seems
    to me that any parent would be concerned that a 14 year old might experiment with
    the narcotics and become addicted. Similarly, Mr. Pilgrim and Ms. Parent had a 5
    year old and a 7seven year old child living in the house at the time. Mr.
    Pilgrim stated that he realized the pills could be fatal to the children.
[Emphasis
    added.]

[55]

It
    did not end there. In his Reasons for Sentence, the trial judge treated the exposure
    of the children to danger as a significant aggravating factor. This was a
    dominant theme in his reasons. Although the trial judge was reluctant to find
    this conduct to have been abuse of a person under 18 within section 718.2(a)(ii.1)
    of the
Criminal Code
, he nevertheless found the conduct deplorable
    in the extreme.

[56]

This
    characterization  conduct deplorable in the extreme  may well have been fair.
    This feature of the case was a significant aggravating factor on sentencing.
    But this only confirms the seriously prejudicial nature of this evidence at
    trial.

[57]

Relying
    on
R. v. Chambers
, [1990] 2 S.C.R. 1293, at pp. 1310-11,

Ms. Shaikh
    argues that this evidence was admissible and that the trial judge properly
    restricted its use to merely assessing Mr. Pilgrims credibility. See also
R.
    v. S.G.G.
, [1997] 2 S.C.R. 716, at para. 63. However, before evidence of
    this nature may be used for this limited purpose, it must be properly
    admissible as part of the narration of the relevant events: see
R. v.
    Teresinski
(1992), 70 C.C.C. (3d) 268 (Ont. C.A.), at p. 278, leave to
    appeal refused, [1992] S.C.C.A. No. 147. See also
R. v. Hogan
(1982),
    2 C.C.C. (3d) 557 (Ont. C.A.), at pp. 564-65;
R. v. Cameron
(1995), 22
    O.R. (3d) 65 (C.A.), at pp. 72-73; and
R. v. Sheriffe
, 2015 ONCA 880,
    333 C.C.C. (3d) 330, at para. 70, leave to appeal refused, [2016] S.C.C.A. No.
    299.

[58]

The
    danger posed to the appellants children was not part of the narration of the
    relevant events. It was not relevant to any material issue. It was not probative
    of whether the drugs were possessed for the purpose of trafficking, as opposed
    to personal use. Moreover, it was improperly admitted, based partly on the Crowns
    desire to cross-examine the appellants on this issue. Throughout the rest of
    the trial, the child endangerment claim developed into a serious allegation
    against Mr. Pilgrim, one that he was not charged with.
[1]

[59]

The
Chambers
line of cases does not provide a basis for the
admission
of evidence of discreditable conduct or bad character. It prescribes a specific
    and limited
use
for otherwise admissible evidence. A prosecutors
    desire to create fodder for cross-examination is not a legitimate path to
    admission. Admission of highly prejudicial evidence on this basis may actually
    have the effect of discouraging an accused person from testifying. Conversely,
    it may induce an accused person to testify just to explain irrelevant evidence
    that portrays him or her in an unfavourable light. Either way, it has real potential
    for unfairness. I cannot say that the admission of this evidence impacted on
    the decisions of the appellants to testify in this case. However, anticipated
    cross-examination was irrelevant to the decision to admit the evidence in the
    first place.

[60]

Even
    if it had been admissible as part of the narration of events, the potential
    dangers associated with this discreditable conduct evidence were acute, even in
    a trial by judge alone: see
R. v. Villeda
, 2011 ABCA 85,
269 C.C.C. (3d) 394,
at para. 18. It was essential that the
    trial judge clearly articulate the limited use he was permitted to make of this
    evidence  evaluating Mr. Pilgrims credibility  and restrict his assessment
    of that evidence to its limited use. I accept Ms. Shaikhs submission that the
    trial judge did not say he convicted Mr. Pilgrim because of this evidence of
    bad character. One could hardly imagine any judge making such a statement.

[61]

However,
    the trial judge made liberal use of this inadmissible evidence of conduct that he
    subsequently characterized as deplorable in the extreme. As discussed above,
    the trial judge found the place and manner in which the pills were stored
    indicative of an intent to traffic. The trial judge rejected Mr. Pilgrims
    explanation that he stored the pills behind the couch for convenience in part
    because it was grossly disproportionate to the manner in which a responsible
    parent would store narcotics and could be fatal to the children. As a matter
    of logic, experience and common sense, whether or not Mr. Pilgrims storage
    method put the children in danger does not shed any light on the purpose for
    which he possessed the drugs. The use of this inadmissible evidence crossed the
    line from its restricted use of assessing credibility to an impermissible
    circumstantial inference that Mr. Pilgrim possessed the pills for the purpose
    of trafficking, giving rise to serious concerns about both moral and reasoning
    prejudice: see
R. v. Handy
,

2002 SCC 56, [2002]
    2 S.C.R. 908; and

R. v. Aujla
, 2015 ONCA 350, 395 D.L.R.
    (4th) 244, at para. 162,
per
Laskin J.A. (dissenting), revd 2015 SCC
    50, [2015] 3 S.C.R. 325 (
substantially for the reasons of
    Laskin J.A.).

[62]

Accordingly,
    I would allow Mr. Pilgrims appeal and order a new trial on this basis. It is
    unnecessary to address Mr. Pilgrims other grounds of appeal.

(2)     The Appeal by Ms. Parent

(a)

The trial judge misused evidence of Ms. Parents apparent wilful
    blindness of marijuana trafficking

[63]

The
    case against Ms. Parent rested on a fairly delicate foundation. Although it was
    never explicitly articulated, the prosecutions theory of liability seemed to
    be that Ms. Parent was in joint possession of the pills and was wilfully blind
    to her husbands conversion of his prescribed pills to an unlawful purpose (
i.e.
,
    trafficking). With respect to the methadone, no theory was advanced, but it was
    implicitly suggested that Ms. Parent jointly possessed the methadone and knew
    that her husband obtained the methadone without a prescription.

[64]

In
    his reasons, the trial judge did not clearly articulate whether he found Ms.
    Parent guilty because: (a) she was involved in a joint enterprise with Mr.
    Pilgrim to sell drugs; or (b) whether she knew or was wilfully blind to the
    fact that Mr. Pilgrim was selling the drugs that he was supposed to restrict to
    personal use. From his reasons, it would appear that the trial judge favoured
    the latter approach to liability, one founded on knowledge or wilful blindness.

[65]

As
    I have already noted, on two occasions the trial judge found that Ms. Parent
    was wilfully blind to Mr. Pilgrims sale of marijuana. The trial judges use of
    the wilful blindness doctrine was inapt in the circumstances. Ms. Parent
    testified that she actually
knew
about the sale of marijuana. In cross-examination,
    she agreed with the Crowns suggestion that she turned a blind eye to this
    behaviour.

[66]

While
    Ms. Parent may have turned a blind eye to Mr. Pilgrims marijuana trafficking,
    in the sense of condoning it or failing to prevent it, this was not the same
    thing as wilful blindness. Turning a blind eye is a colloquial expression;
    wilful blindness is a legal term of art. Wilful blindness is a recognized proxy
    or substitute for actual knowledge. It involves having a subjective suspicion
    about a fact, circumstance or situation, but deciding not to make inquiries,
    preferring to remain ignorant of the true state of affairs: see
R. v.
    Sansregret
, [1985] 1 S.C.R. 570;
R. v. Briscoe
, 2010 SCC 13,
    [2010] 1 S.C.R. 411; and Don Stuart,
Canadian Criminal Law  A Treatise
,
    7th ed. (Toronto: Carswell, 2014), at pp. 261-265.

[67]

There
    was no need to resort to this doctrine in relation to the sale of marijuana.
    Ms. Parents suspicions were not aroused. She did not need to make further
    inquiries. She
knew
Mr. Pilgrim was selling marijuana; she just did
    not like it.

[68]

Although
    it was never articulated, it would appear that the trial judge used his
    erroneous belief that Ms. Parent was wilfully blind to Mr. Pilgrims marijuana
    trafficking as evidence of Ms. Parents wilful blindness to Mr. Pilgrims sale
    of oxycodone and/or Percocet. For reasons already stated, Ms. Parent was not
    wilfully blind to the sale of marijuana. It was not appropriate to transfer
    this apparent mental state about one drug to another, especially in the absence
    of a specific finding.

[69]

In
    her submissions on Ms. Parents liability, Ms. Shaikh points to comments made
    by the trial judge in his Reasons for Sentence. In rejecting a rehabilitation
    approach to sentencing Ms. Parent, one that involved a conditional sentence
    with an emphasis on counselling, the trial judge stated: I conclude that Ms.
    Parent was an active partner in this drug trafficking business. She either did
    it for greed, or to assist her husband with his addiction. In either case, she
    did not see the need for counselling at that time. This was the first time
    that the trial judge made this finding. It is inconsistent with an approach to
    Ms. Parents liability predicated on wilful blindness. I am not prepared to
    treat this characterization on sentencing as a clarification of the trial
    judges approach to Ms. Parents liability at trial.

[70]

On
    this basis alone, Ms. Parent is entitled to a new trial. However, I would
    decide this case on a broader basis.

(b)

There was no evidence capable of supporting Ms. Parents
mens rea
for possession

[71]

Applying
    the definition of joint possession in s. 4(3)(b) of the
Criminal Code
,
    which is applicable to ss. 4 and 5(2) of the
CDSA
,

there can be
    little doubt that Ms. Parent was in possession of all of the items in question,
    in the sense that she was aware of the nature of the pills and that she
    exercised control over the area where they were kept. The trial judge cited
R.
    v. Chambers
(1985), 20 C.C.C. (3d) 440 (Ont. C.A.), and concluded that
    proof of these circumstances established Ms. Parents possession under s. 4 of
    the
CDSA
, leaving only the question of whether the drugs were
    possessed for the purpose of trafficking. Contrary to defence counsels
    submissions at trial that her client was not in possession of the drugs found
    in the home, the trial judge did not err in reaching this conclusion.

[72]

However,
    standing alone, this finding was necessary, but not sufficient, to establish
    Ms. Parents guilt. Under the
CDSA
, it is not always the case that the
    possession of narcotics will be unlawful. As s. 4(1) of the
CDSA

provides:

4(1)
Except as authorized under the regulations, no
    person shall possess a substance included in Schedule I, II or III.

[73]

The
    regulations create exemptions from liability in certain circumstances.

[74]

The
    role of exemptions was addressed in
Canada (Attorney General v. P.H.S.
    Community Services Society
, 2011 SCC 44, [2011] 3 S.C.R. 134, a case that
    dealt with the legality of a safe injection site. The Chief Justice explained
    the overarching legislative framework at para. 20:

The federal
CDSA
is the federal governments response
    to the problem of illegal drug use across Canada. By way of the
CDSA
,
    the federal government has chosen an approach that favours a blanket
    prohibition on possession and trafficking in illegal drugs. At the same time,
    Parliament has recognized that there are good reasons to allow the use of
    illegal substances in certain circumstances. T
he federal
    Minister of Health can issue exemptions for medical and scientific purposes
    under s. 56 of the
CDSA
. Section 55 of
    the
CDSA
allows for the Governor in
    Council to make regulations for the medical, scientific and industrial use of
    illegal substances. In this manner, Parliament has attempted to balance the two
    competing interests of public safety and public health.

[75]

In
R. v. Verma
(1996), 31 O.R. (3d) 622 (C.A.), this court considered the
    interaction of the now repealed
Narcotic Control Act
, R.S.C. 1985, c.
    N-1 (
NCA
) and the regulations passed pursuant to that Act. As Finlayson
    J.A. said at p. 628:

This scheme legitimizes the drug-related activities of many
    professionals, including doctors, by providing a controlled framework through
    which narcotics may be manufactured, stored, sold, distributed, prescribed and
    otherwise dealt with.

[76]

Under
    the
CDSA
, the
Narcotic Control Regulations
,
    C.R.C., c. 1041 (the Regulations) operate in the same way. Of significance to
    this case is s. 3, which provides:

3 (1)

A
    person is authorized to have a narcotic in his or her possession where the
    person has obtained the narcotic under these Regulations
, in the course of
    activities performed in connection with the enforcement or administration of an
    Act or regulation, or from a person who is exempt under section 56 of the Act
    from the application of subsection 5(1) of the Act with respect to that
    narcotic, and the person

(d)
has obtained the narcotic, other than
    diacetylmorphine (heroin), for his or her own use

(i)      from a practitioner,

(ii)      pursuant to a prescription that
    is not issued or obtained in contravention of these Regulations,

(iii)     from a pharmacist pursuant to
    section 36
, or

(iv)     pursuant to a cannabis medical
    document that is not provided or obtained in contravention of the
Access
    to Cannabis for Medical Purposes Regulations
;

(2)
A person
    is authorized to have a narcotic in his possession where the person is acting
    as the agent for any person referred to in paragraphs (1)(a) to (e), (h) or
    (i).
[Emphasis added.]

[77]

The
    Regulations apply in a straightforward manner to Mr. Pilgrim. As the trial
    judge recognized in the passage reproduced above (at para. 39), as long as Mr.
    Pilgrim possessed his prescribed drugs in a manner consistent with the Regulations
    (
i.e.
, for his or her own use), he was exempt from liability: see
R.
    v. Pilkington
, 2013 MBQB 79, 290 Man. R. (2d) 109, at paras. 31-33. When
    this lawful use changes, legal problems arise. In this case, the alleged change
    of use  an intention to sell  made his possession unlawful under s. 4 of the
CDSA
,
    and simultaneously fulfilled the requirements of possession for the purpose of
    trafficking under s. 5(2)
.

[78]

What
    is Ms. Parents status in this scheme? Without a similar exemption, Ms. Parent
    is also at risk of liability, simply having knowledge of the nature of the
    drugs and exercising a measure of control over them, even though they were
    lawfully prescribed to her common law husband. Chief Justice McLachlin made the
    same point in
PHS Community Services Society
in relation to staff at
    safe injection sites who discharged their duties without a ministerial or
    regulatory exemption (at para. 89): the staff responsible for the centre many
    be in possession of the drugs brought in by their clients. They have
    knowledge of the presence of drugs, and consent to their presence in the
    facility over which they have control.

[79]

The
    Regulations do not provide a specific exemption for someone in Ms. Parents
    position  one who cohabits with a person who has obtained a narcotic for his
    or her personal use under a valid prescription, in accordance with s.
    3(1)(d)(ii). This scenario must be ubiquitous across the country. Yet, no one
    would suggest criminalizing spouses, roommates, or friends who are aware of the
    presence of prescribed Schedule I, II or III drugs, and who exercise some
    control over the place where they are kept. No one would think of charging a
    spouse who manually handles a container in which prescribed pills are kept (
i.e.
,
    by moving it from a bathroom vanity to a medicine cabinet). Similarly,
    criminality does not spring to mind when a husband, wife, partner or roommate
    takes a pill, along with a glass of water, to someone resting in bed or on a
    couch.
[2]

[80]

As
    the trial judge recognized, Mr. Pilgrim would lose his regulatory shield if he
    dealt with the drugs beyond the scope of possession contemplated by s. 3(1) of
    the Regulations  beyond personal use. In principle, charged with being in
    joint possession of these very same drugs, as the Crown contended in this case,
    Ms. Parent should be found liable for possession under s. 4 only if she knew that
    Mr. Pilgrim was using the drugs for a purpose other than personal use.  Absent
    this knowledge, Ms. Parent does not have the necessary
mens rea
to be
    found in joint possession of Mr. Pilgrims prescription drugs: see
Beaver
    v. The Queen
, [1957] S.C.R. 531.

[81]

Ms.
    Parent believed that the drugs in the home were obtained by virtue of valid
    prescriptions and that they were for Mr. Pilgrims personal use only. Because
    Ms. Parent believed that Mr. Pilgrim possessed the pills for personal use,
    given the operation of the Regulations, she could not be found guilty of
    possession under ss. 4 or 5(2) of the
CDSA
, despite satisfying the
    knowledge, consent and control requirements of s. 4(3)(b) of the
Criminal
    Code
.

[82]

In
    short, there was a complete lack of evidence on the
mens rea
necessary
    to establish Ms. Parents liability for both simple possession (s. 4) and
    possession for the purpose of trafficking (s. 5(2)) in relation to the Percocet
    and oxycodone pills. There was no evidence that Ms. Parent knew that Mr.
    Pilgrim was stockpiling his prescription drugs and/or obtaining similar drugs
    from others, for the purpose of trafficking.

[83]

I
    apply the same analysis to the methadone charge. The path to guilt was clear in
    relation to Mr. Pilgrim  he did not have a prescription. The Crown at trial
    seemed to realize that, in the circumstances of this case, in order to prove
    Ms. Parent guilty, it needed to establish more than the simple requirements of
    s. 4(3) of the
Criminal Code
. The Crown suggested that Ms. Parent knew
    that Mr. Pilgrim obtained the methadone off the street. However, there was in fact
    no evidence that she knew that the methadone was purchased off the street, as
    opposed to it being derived from Mr. Pilgrims considerable portfolio of
    prescriptions.

[84]

The
    only evidence that came close to establishing this knowledge is found in the
    following excerpt from Ms. Parents cross-examination:

Q.:     Did you
    know what your husband, as he says, was using the methadone to try to wean
    himself off of the OxyContins?

A.:     Yes.

Q.:     And you
    never thought to tell him to go to the methadone clinic or go see a doctor to
    try [to] get a prescription instead of spending $15 a day on the street buying
    methadone?

A.:     He was trying to wean himself off. And, when he     spoke
    to his doctor about coming off the       medication, his doctor told him it
    wasn't a good  idea, because of his surgery and because he was   looking at
    another surgery coming.

[85]

In
    her last answer, Ms. Parent did not acknowledge the Crowns suggestion, buried
    in the preceding question, that she knew that the appellant did not have a
    prescription for methadone. No follow up questions were asked.

F.

conclusion

[86]

Mr.
    Pilgrims appeal is allowed. I would set aside the convictions and order a new
    trial. Ms. Parents appeal is allowed. Because the verdicts against her were
    unreasonable and unsupported by the evidence, I would set aside the convictions
    and enter acquittals.

Released:

APR 19 2017                                    G.T.
    Trotter J.A.

GP                                                  I
    agree J. MacFarland J.A.

I
    agree G. Pardu J.A.

[1]

Ms. Parent did not pursue this as a ground of appeal even
    though this evidence reflected the same way on her. In two of the passages
    referred to in paras. 53-54 above, the trial judge referred to Ms. Parent as
    well as Mr. Pilgrim.

[2]
Although possible that the person in this second example is acting as the
    [prescription holders] agent under s. 3(2) of the Regulations, it would be an
    equally unfortunate result if this person was forced to rely on the law of
    agency to avoid a criminal conviction.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rosenberg, 2017 ONCA 313

DATE: 20170413

DOCKET: C62902

Laskin, Watt and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bradley Rosenberg

Appellant

Bradley Rosenberg, appearing in person

Brian Snell, duty counsel

Susan Magotiaux, for the respondent

Heard: April 10, 2017

On appeal from the sentence imposed on October 14, 2016
    by Justice
James J.
Keaney of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals his sentence of two years less a day for
    defrauding three victims. Duty counsel makes two mains submissions:

(1)

The trial judge failed to give effect to the evidence of remorse; and

(2)

The trial judge jumped the Crowns position, which was for an 18-month
    sentence, without affording defence counsel an opportunity to make further
    submissions.

[2]

On duty counsels first point we agree with the Crown that it was open
    to the trial judge to reject the evidence of remorse, and instead rely on the
    evidence of police officer Horner. Horners opinion was to some extent
    supported by the 2010 report of the psychologist.

[3]

On duty counsels second point, we agree that the trial judge should have
    given defence counsel an opportunity to make further submissions on the proposed
    sentence of 18 months suggested by the Crown.

[4]

Nonetheless, the sentence of two years less a day was fit, and perhaps
    even lenient. These were serious frauds with serious consequences, especially
    for the female victim. Although the appellant pleaded guilty, he did so only
    after the victims were forced to testify at the preliminary inquiry. And when
    he committed these frauds the appellant was on probation for previous frauds.

[5]

Accordingly, though leave to appeal sentence is granted, the
    sentence appeal is dismissed. The appellant shall have 120 days following
    release from custody to pay the victim surcharge fine. Finally we recommend
    that the appellant be returned to Central North as quickly as possible so that
    he can observe the Passover and attend his parole hearing.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ryan, 2017 ONCA 334

DATE: 20170426

DOCKET: C56327

MacPherson, Simmons and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

James Ryan

Appellant

Marianne Salih, for the appellant

Jennifer McKee, for the respondent

Heard: April 18, 2017

On appeal from the sentence imposed by Justice Sandra
    Chapnik of the Superior Court of Justice on October 31, 2012.

By the Court:

[1]

Following an altercation on a subway platform in which
    he stabbed the victim six times, the appellant, who was 20 years old at the
    time of the offences, was convicted of aggravated assault, weapons dangerous
    and breach of probation.

[2]

The trial judge sentenced the appellant to four
    years and one day imprisonment for the aggravated assault and weapons dangerous
    charges and to six months imprisonment consecutive for the breach of probation
    charge, which, after giving credit for pre-sentence custody, yielded a total
    determinate sentence of time served plus one day, concurrent. The trial judge
    also imposed a long-term offender (LTO) designation and made a seven-year
    supervision order.

[3]

The appellant appeals from the LTO designation
    and raises three issues on appeal.

[4]

First, the appellant argues that the trial judge
    provided insufficient reasons for her decision because she failed to articulate
    how she interpreted the phrase substantial risk that the offender will
    reoffend in s. 753.1(1)(b) of the
Criminal Code
. The appellant contends
    that the trial judge identified conflicting decisions concerning the
    interpretation of that phrase but failed to determine which authority applied.

[5]

Second, the appellant argues that to the extent
    the trial judge articulated a test to determine if the appellant posed a
    substantial risk to reoffend, she wrongly identified s. 753.1(2)(b)(i) of the
Criminal
    Code
, which applies only to sexual offenders, as the governing provision
    and, in any event, misapplied the test set out in that section.

[6]

Third, the appellant argues that the trial judge
    erred by failing to consider her discretion under s. 753.1(1) of the
Criminal
    Code
not to make an LTO designation even if the statutory criteria were
    satisfied.

[7]

We would not accept these submissions.

[8]

Despite the appellant's young age, he had a
    significant youth record and, in addition, on October 4, 2008 and January 17,
    2010, had committed offences as an adult that involved stabbing another person
    following minimal provocation. As noted above, during the course of the January
    2010 offence the appellant stabbed the victim six times.

[9]

Further, at the sentencing hearing, Dr. Klassen
    provided uncontradicted threat assessment evidence (both through a report and
    oral evidence) in which he opined that the appellant is likely at a moderately
    high risk of violent re-offence and that absent significant intervention the
    appellant presents a probability of violent re-offence. Dr. Klassen stated that
    on the basis of actuarial assessment and his clinical history the appellant
    presents a substantial risk to the community and while there is a reasonable
    possibility of eventual control of the risk in the community he expected the
    appellant would likely struggle at least initially, with supervision.

[10]

Having regard to the evidence presented at the
    hearing, we are satisfied that the appellant meets the requirement of
    presenting a substantial risk to reoffend, even if that requirement is viewed
    as "a high threshold" involving a substantial risk of causing serious
    harm to individuals.

[11]

Further, while the trial judge's identification
    of s. 753.1(2)(b)(i) as the applicable section was erroneous, on the record
    before her, the trial judges findings that the appellant meets the requirement
    of presenting a substantial risk to reoffend; that a traditional period of
    incarceration would not protect the public; and that no reasonable possibility
    of eventual control in the community exists unless the appellant is placed on a
    long-term supervision order; are unassailable. These findings also meet any
    concern that the trial judge failed to consider her discretion not to make an
    order. The trial judges reasons make it abundantly clear that an order was
    required in order to protect the public

[12]

The appeal is therefore dismissed.

J.C. MacPherson
    J.A.

Janet Simmons
    J.A.

David Brown
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sinclair, 2017 ONCA 287

DATE: 20170407

DOCKET: C60625

Feldman, Rouleau, and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Venese Sinclair

Appellant

Najma Jamaldin, for the appellant

Christopher Walsh, for the respondent

Heard: March 9, 2017

On appeal from the conviction
entered on April 14, 2015 by Justice K. Barnes of the
    Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

The appellant appeals her conviction for importing cocaine into Canada.

[2]

The appellant returned home to Canada after visiting a friend in
    Trinidad and Tobago. She carried in her luggage eight tins, which she told
    Canada Border Security officers contained juice. She was subject to routine
    questioning and search of her luggage, and made various statements to the
    officers. Upon x-ray inspection by the officers, it was discovered that the
    tins contained liquid cocaine.  The appellant was arrested.

[3]

The appellant brought a pre-trial application before the trial judge to
    exclude the various statements that she made to the border officers. The trial
    judge dismissed her application and admitted the statements into evidence at
    her trial. Following the jurys guilty verdict, she received a six-year
    custodial sentence.

[4]

The appellant submits that the trial judge: (a) misstated the test for
    detention; (b) misapprehended the evidence as to when she was detained and when
    her section 7 and 10(
b
) Charter rights were engaged. Her initial
    position was that she was detained from the moment of her arrival at the
    airport border, arguing that the border officers had a sufficiently strong
    particularized suspicion that she was committing a drug offence because she was
    the subject of a drug look-out. That position was not pressed in oral argument.
     In the alternative, she submits that she was detained after the officers
    opened her luggage and discovered the tins. In either event, she maintains that
    all of her statements to the border officers after her detention should have
    been excluded from the evidence at trial, and that the trial judge erred in
    failing to exclude them.

[5]

We do not accept these submissions.

[6]

As the trial judge correctly noted at para. 50 of his reasons, travellers
    seeking admission to Canada are not subject to detention engaging their section
    7 and 10(
b
)
Charter
rights simply because they are required
    under the
Customs Act
to answer routine questions or submit to routine
    searches. Indeed, as this court stated in
R. v. Jones
, (2006) 81 O.R.
    (3d) 481, at para. 40, given the duties that border officers must discharge to
    protect Canadian borders under the
Customs Act
, in a general sense,
    everyone who is questioned at the border and whose luggage is examined is the
    target of an investigation. It is also well-established in the case law that a
    person arriving at the border can reasonably expect that luggage will be put
    through a routine search:
Jones
, at para. 30.  This may include
    x-raying or ion scanning:
R. v. Darlington
, 2011 ONSC 2776, [2011]
    O.J. No. 4168, at para. 75, referencing
Kelly v. Palazzo
(2008), 89
    O.R. (3d) 111 (C.A.), at para. 53, leave to appeal refused [2008] S.C.C.A. No. 152.

[7]

Referencing this courts decision in
Jones
, at paras. 40-42, the
    trial judge also properly observed that there reaches a point, however, where
    routine questioning and searches become a detention and Charter rights are
    engaged.  As this court noted in
Jones
, at para. 42:

[T]he extent to which the border authorities suspect an
    individual of having committed a particular offence will impact on whether that
    individual is or is not detained when subject to routine questioning. For
    example, if the border authorities have decided, because of some sufficiently
    strong particularized suspicion, to go beyond routine questioning of a person
    and to engage in a more intrusive form of inquiry, it may well be that the
    individual is detained when subject to that routine questioning: see
Jacoy
    v. The Queen
, [1988] 2 S.C.R. 548.

[8]

The appellant argues that the border officers went beyond routine
    questioning and searches once they opened her luggage and saw the tins because
    it was then that they had a sufficiently strong particularized suspicion to
    warrant a more intrusive form of inquiry, namely the x-ray examination of the
    tins.  According to the appellant, the trial judge erred in failing to find
    that the appellant was detained at that point.

[9]

We disagree. The trial judge carefully reviewed the evidence concerning
    the appellants interactions with border officers and set out his conclusions
    on the issue of detention at para. 57 of his reasons, as follows:

In the present case, upon an objective review of all the
    circumstances of the interaction between Officer Rodgers and Ms. Sinclair, I
    conclude that Officer Rodgers had a sufficiently strong particularized
    suspicion to warrant a more intrusive form of inquiry after she showed Ms.
    Sinclair the x-ray images and Ms. Sinclair asked, Whats in it?  At this
    point, on the basis of her sufficiently strong particularized suspicion,
    Officer Rodgers decided to conduct a more intrusive inquiry.

[10]

The
    trial judge found that it was at this point that the appellant was detained. There
    is no dispute that the appellant made no further statements to border officers.

[11]

We
    see no error in the trial judges analysis. It was open to him on the record to
    find that the questioning and searches carried out to the point where the x-ray
    images of the tins appeared, and the appellant asked her question, were routine.
    As a result, there was no error in the trial judges admission at trial of the
    appellants statements to border officers prior to that point. There is no
    basis to interfere.

[12]

Following
    the hearing of the appeal, appellants counsel asked to submit additional case
    law for our review:
R. v. Morgan
, [2017] O.J. No. 262 (S.C.J.). It
    does not change the outcome of this appeal.

[13]

Accordingly,
    the appeal is dismissed.

K.
    Feldman J.A.

Paul
    Rouleau J.A.

L.B.
    Roberts J.A.


WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

486.4(1)       Subject to subsection (2),
    the presiding judge or justice may make an order directing that any information
    that could identify the victim or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)      any of the following offences;

(i)       an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25, s.
    22(2), effective December 6, 2014 (Act, s. 49).

(b)      two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in paragraph (a).

(2)      In proceedings in respect of the
    offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)      at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)      on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)      In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)      An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.
    13, s. 18..

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Speers, 2017 ONCA 333

DATE: 20170426

DOCKET: C53889

LaForme, Epstein and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Richard Speers

Appellant

Richard Speers, acting in person

Brian Snell, appearing as duty counsel

Michael Fawcett, for the respondent

Heard: April 3, 2017

On appeal from the conviction entered by Justice Elizabeth
    Quinlan of the Superior Court of Justice, sitting with a jury, on February 17,
    2011.

Epstein J.A.:

[1]

Following a four-day jury trial,
    the appellant, Richard Speers, was convicted of one count of sexual assault. He
    admitted having engaged in sexual touching with the complainant, M.H., on the
    night in question. The only issue for the jury to decide was whether M.H. had consented
    to the sexual activity. M.H. testified. Mr. Speers did not. Three other witnesses
    testified. Although all interacted with M.H. soon after the admitted sexual
    touching, none were in a position to provide any direct evidence on the
    question of consent. Thus, the case essentially came down to M.H.s testimony,
    and the attempts by the defence to attack her credibility during
    cross-examination.

[2]

The argument on appeal focused on
    the jury charge. Duty counsel on behalf of Mr. Speers takes the position that
    the charge to the jury was unfair as it was unbalanced. The trial judge
    summarized the Crowns position over two pages.
The summary focused on
    the Crowns case, and not the frailties exposed during cross-examination.

[3]

The Crowns position is that, in
    the context of this case, particularly given Mr. Speers called no evidence, the
    charge provided the jury with the tools needed to determine the issue of
    consent.

[4]

For the reasons that follow, I
    would dismiss the appeal.

Closing Submissions & Jury Charge

i.

Closing submissions

[5]

As I discuss below, the jury charge should be considered together with
    the parties closing submissions in considering whether the jury was adequately
    instructed on the positions of the parties. As the charge is alleged to be
    unbalanced in favour of the Crown, there is no need to summarize the Crowns
    closing address.

[6]

Defence counsel at trial submitted that the pivotal issue for the jury
    was M.H.s credibility. Cross-examination had revealed M.H. to be dishonest and
    showed that she had embellished, exaggerated, and simply made things up during
    her testimony. Defence counsel pointed to several alleged examples of M.H.s
    wavering in her testimony during cross-examination. It was not believable,
    counsel submitted, that M.H. had thought Mr. Speers weird and tried to avoid
    him before the incident, as she claimed, given the history of their
    interactions. The evidence of the three other witnesses merely showed that
    something had happened in M.H.s room that night that had upset her. They
    provided no evidence that her being upset was because of a sexual assault.

[7]

Finally, defence counsel argued that the photos of the room indicated
    that it was a near physical impossibility for the sexual assault to have occurred
    as described by M.H. Considering M.H.s serious drug addiction and criminal
    record, she was simply not a credible or reliable witness. Based on all the
    evidence, the Crown had not established beyond a reasonable doubt that M.H. had
    been sexually assaulted that night.

ii.

Charge to the jury

[8]

The charge, as a whole, is slightly more than 42 transcript pages long.

[9]

Considering the admission that there had been sexual touching, the trial
    judge charged the jury that in order for there to be a conviction, the Crown
    was required to prove two things beyond a reasonable doubt: 1) that M.H. did
    not consent to the touching; and 2) that Mr. Speers knew that M.H. did not
    consent to the touching.

[10]

At page 29, in discussing the issue of whether M.H. had consented, the
    trial judge summarized M.H.s evidence concerning the issue of consent, as
    follows:

The evidence of M.H. is that on the night in question she had a
    few drinks with Mr. Speers and his friend Chris. Chris left at nine or ten p.m.
    M.H. had enough, and said she was going to bed. Mr. Speers tried to get her to
    stay up, but she did not want to be with him alone. She went to sleep. At
    around midnight she could feel something. She woke up. She saw Mr. Speers
    holding a beer and wearing a red robe. He had his hand in her pants and his
    fingers in her vagina. She said What the fuck are you doing? Get the hell out
    of my room. M.H. testified that she did not consent to the sexual encounter.

[11]

The trial judge charged the jury
    that if they had a reasonable doubt whether M.H. had consented, they must find
    Mr. Speers not guilty. On the other hand, were the jury satisfied beyond a
    reasonable doubt that M.H. had not consented, they must turn to the second
    question  whether Mr. Speers had known that M.H. had not consented. At page 32,
    the trial judge instructed the jury with respect to M.H.s evidence, as
    follows:

The evidence of M.H. is that on the night in question she only
    had a drink to be nice and civil. She was only out in the kitchen area when
    Chris was there. At no time did Richard Speers come into her room to drink beer
    with her. As soon as Chris left, she went to bed because she did not want to be
    alone with Mr. Speers. M.H. went to sleep and woke up to find Mr. Speers
    fingers inside her vagina.

[12]

At this point, at page 33, the trial judge noted that it is Richard
    Speers position that M.H. consented to the sexual activity with him that forms
    the basis of the charge. However, the trial judge did not mention any of the
    arguments defence counsel had advanced in her closing address. The trial judge
    merely noted that the burden was on the Crown to prove beyond a reasonable
    doubt that M.H. had not consented. The trial judge continued to discuss
    consent. At page 34, the trial judge repeated word-for-word the summary of M.H.s
    evidence that she had given at page 29 (see above).

[13]

The trial judge then provided the position of the parties. The following
    five paragraphs are what the trial judge said about the Crowns theory of the
    case:

The Crowns position is that a sexual assault took place. The
    only issue in this case is whether M.H. consented to the accused, Richard
    Speers, touching her vagina. The DNA report that has been filed on consent
    confirms the presence of M.H.s DNA on the accuseds right middle finger. The
    evidence of the sexual assault is the uncontradicted testimony of M.H. Although
    many suggestions were made to her in cross-examination, she did not agree with
    any of those scenarios.

The Crowns position is that it was very clear that M.H. did
    not consent. She had gone to bed because she did not want to be alone with the
    accused. She was in her own room asleep. She woke up because she could feel the
    accuseds fingers inside her vagina. The words she spoke upon waking further
    clearly communicated the absence of any consent. The accuseds reaction by
    repeatedly saying Im sorry and leaving, confirmed that she did not let him
    touch her, and he went ahead and touched her anyway, and he knew that he had
    done wrong. The apology shows that he had done something he felt sorry for, the
    unwanted sexual contact.

Although M.H. had a criminal record, and had at one brief time
    in her life been a user of heroin, these facts alone do not diminish her
    credibility. You can find her to be a reliable witness because she was very
    clear and sincere when she gave her evidence in court. She was obviously still
    distraught about what the accused did to her.

The Crowns position is that her distress and upset was also
    clear on the night that the accused sexually assaulted her. She became sick to her
    stomach. She was observed by her roommate Barry Donnell [sic] to be distressed,
    worried and in tears. M.H. called her aunt, Cynthia Palmer, who said that M.H.
    seemed very distraught and it took a few minutes for her to calm down enough to
    say what had happened. She said she had a tone in her voice that she had never
    heard in her nieces voice before. She sounded very upset and scared.

Constable Sarah Frith arrived shortly after the events in
    question. She observed M.H. to be crying hard. M.H. was wearing a zip-up
    sweater but it was undone. The officer said that M.H.s hands were shaking too
    much to do the zipper up, and so the officer helped her do up the sweater.
    Those observations further serve to confirm that what happened was exactly as M.H.
    told the court. She had been sexually assaulted by the accused.

[14]

The trial judge then summarized the defences theory of the case in the
    following two paragraphs:

The defence takes the position that the alleged sexual assault
    could not have taken place as described by the complainant.

The defence takes the position that the complainant is not
    credible and should not be believed. As such, the Crown has failed to prove its
    case beyond a reasonable doubt and Mr. Speers should be acquitted.

[15]

I note that neither counsel objected
    to the charge.

ANALYSIS

Applicable Legal Principles

[16]

There is considerable jurisprudence from this court on the question of
    unbalanced jury charges. Sharpe J.A. in
R. v. Mahalingan

(2006),
    80 O.R. (3d) 35 (C.A.), at para. 15, acknowledged that there is no simple
    template that can be uniformly applied when instructing a jury and no simple
    formula by which an appellate court can assess the adequacy of a jury charge.
    In
R. v. MacKinnon
(1999), 43 O.R. (3d) 378 (C.A.),
Doherty
J.A
.
explained that what matters is that by the end of the instruction, the
    jury must understand:

1.

the factual
    issues which had to be resolved;

2.

the law to be
    applied to those issues and the evidence;

3.

the positions of
    the parties; and

4.

the evidence
    relevant to the positions taken by the parties on the various issues.

[17]

It is clear that the issue is really a holistic one: is the jury
    sufficiently informed about the case as put forward by the defence?

Principles Applied

i.

Evidence relevant to the positions taken by the parties

[18]

The appellant argues that in this case the charge was deficient in
    relation to the third and fourth factors in
MacKinnon
.

[19]

I deal first with the fourth factor  the evidence relevant to the
    positions taken by the parties on the various issues. At first glance, this
    case might appear to have much in common with
R. v. Li

(2004),
    183 C.C.C. (3d) 48 (Ont. C.A.). There, Borins J.A. held that the trial judge
    had failed to charge the jury in accordance with the fourth requirement from
MacKinnon
.
    Borins J.A. made the following comments, at para. 42:

Having chosen to review the Crown's evidence in substantial
    detail, the trial judge was obliged to provide a similar review of the defence
    evidence in order to maintain an appropriate balance. A trial judge's duty to
    give a jury balanced instructions is based on the need to ensure trial
    fairness. In my view, the trial judge's failure to place the appellant's
    defence and the evidence capable of supporting it before the jury, undermined
    the defence and materially prejudiced the appellant.

[20]

However, in
Li

the accused had testified, and an expert
    witness had also testified on his behalf on the key issue of whether the
    touching had been sexual or medical in nature. Here, Mr. Speers did not
    testify. As previously noted, the three independent witnesses could not provide
    direct evidence on the key issue of consent. Insomuch as they testified that M.H.
    was upset after the incident, their evidence would tend to support her
    accusation, and not his defence. The fact that Mr. Speers did not testify or
    lead evidence distinguishes this case from many of the authorities on
    unbalanced jury charges.

[21]

However, a similar situation is found in
R. v. Belic
, 2011 ONCA
    671, another case in which the appellant neither testified nor led evidence at
    trial. There, the appellant submitted that the trial charge was unfair,
    unbalanced, and prejudicial because the trial judge had emphasized evidence
    favouring the Crown. In rejecting this submission, the court noted, at para.
    22, that: in a case where the accused does not testify and calls no evidence,
    it is almost inevitable that the judge's summary of the evidence as it relates
    to each issue will focus on the evidence led by the Crown.

[22]

Likewise, in
R. v. Zebedee

(2006), 81 O.R. (3d) 583
    (C.A.), the various appellants submitted that in terms of the review of the
    evidence, the charge consisted of a summary of the evidence called by the Crown
    in chief, and failed to review the deficiencies and frailties they had exposed
    during cross-examination. Writing together, LaForme and Moldaver JJ.A. stated,
    at para. 100:

The appellants are correct that the overview of the evidence
    was essentially a summary of the evidence led by the Crown in chief. But that
    is precisely what it was meant to be. The trial judge was not, at this
    juncture, explaining the position of the parties. He was merely alerting the
    jury to the events giving rise to the counts under consideration. That would
    have been apparent to the jury. In our view, there was nothing untoward or
    improper about the format used by the trial judge

[23]

Similar comments were provided by Watt J.A. in
R. v. Stubbs
,
    2013 ONCA 514, 300 C.C.C. (3d) 181, at para 139:

In some cases, evidence that tends to show an accused committed
    an offence far exceeds the evidence to the contrary. A balanced charge does not
    require a trial judge to ignore evidence that implicates an accused. Nor is a
    trial judge obliged to spin a web of exculpatory inferences, turning each piece
    of circumstantial evidence every which way to reveal its every possible inference.
    This proposition is all the more applicable where the defence position appears
    to be that the cumulative effect of all the evidence falls short of proof
    beyond a reasonable doubt. [Citation omitted.]

[24]

In my view, the reasoning of Watt J.A. in
Stubbs
applies here. Mr.
    Speers did not lead any evidence. This was a case where the only issue was
    consent and only one of the parties involved in the admitted sexual touching
    provided evidence on what had occurred. The facts that M.H. was a drug addict
    and had a criminal record, while relevant to her credibility, were not direct
    evidence about whether she had consented to the sexual touching.

[25]

As I see it, the trial judge fulfilled her obligations to the jury in
    summarizing the evidence. I therefore turn to the third factor in
MacKinnon
 the position of the parties.

ii.

The
    position of the parties

[26]

In her instructions, the trial judge spent about four times as long
    providing the Crowns theory of the case as she did providing the defences
    theory of the case. However, according to
R. v. Nelson
, 2014 ONCA 853,
    318 C.C.C. (3d) 476, at para. 47, there is no requirement that the trial judge
    spend the same amount of time reviewing the position of both sides. It is
    sufficient if the substance of the defence position is put to the jury.

[27]

I note that the entire jury charge took less than an hour, and was delivered
    following counsels closing addresses. As stated by Watt J.A. in
Stubbs
,
    at para. 137: it is fundamental that a jury charge does not take place in
    isolation, but in the context of the trial as a whole. Appellate review of the
    adequacy of a jury charge encompasses the closing addresses of counsel. Those
    addresses may fill in some of the gaps, especially of evidentiary references,
    left in the charge.

[28]

In
Zebedee
, LaForme and Moldaver JJ.A acknowledged that the
    trial judge had devoted little time to the position of the appellants in the
    charge to the jury. However, they held that the charge was sufficiently
    detailed in the context of the case, considering the closing address, and that
    fact that the case was not particularly complicated. They stated, at paras.
    105-109:

First, although there were five
    accused and multiple counts, overall, the case was not complicated. Essentially
    it boiled down to the jury's assessment of the complainants' evidence. There
    was virtually no technical evidence and what little there was was easily
    understandable.

Second, the positions of the Crown and defence were
    straightforward and uncomplicated. Indeed, in the charge proper, the trial judge
    spent almost as little time on the Crown's position as he did on the defence.
    The recharge, however, was devoted almost entirely to the defence.

Be that as it may, we cannot stress enough the right, if not
    the duty of trial judges to take a functional approach to jury charges. Yes,
    the trial judge could have provided the jury with more details about the
    defence position, but in the face of five "united front" closing
    addresses by the defence, one could be forgiven for asking: "What would
    have been the point?" By the end of those addresses, we have no doubt that
    the jury could have rhymed off the position of the appellants in their sleep.

In sum, we wish to emphasize that this ground of appeal cannot
    and should not be approached on a "one-size-fits-all" basis. What
    will be adequate in one case may not be in another. Trial judges however, are
    in the best position to gauge how much or how little is required. On appellate
    review, their assessment of the matter should be afforded considerable deference.

[29]

In my view the case most useful in considering this issue is
R. v.
    Pomeroy
, 2008 ONCA 521, 91 O.R. (3d) 261. In
Pomeroy
, the
    appellant had not testified at trial, and essentially relied on the Crown not
    having proven its case beyond a reasonable doubt. In finding the charge to the
    jury sufficient, Weiler J.A. made the following comments, at paras. 115-117:

Appellate courts must adopt a functional approach to reviewing
    jury charges. The purpose of such review is to ensure that juries are properly
     not perfectly  instructed. In conducting an appellate review, the Supreme
    Court emphasizes in
Daley
at para. 57:

The extent to which the evidence must be reviewed "will
    depend on each particular case. The test is one of fairness. The accused is
    entitled to a fair trial and to make full answer and defence. So long as the
    evidence is put to the jury in a manner that will allow it to fully appreciate
    the issues and the defence presented, the charge will be adequate".

The functional approach also requires the appellate court not
    to divorce the jury charge from the greater context of the trial. The comments
    of counsel during their addresses, including comments on legal issues should
    also be considered in assessing whether the charge is adequate: see
Daley
at para. 58. Here, despite its facial imbalance, the trial judge's charge to
    the jury, when considered together with the closing addresses of counsel,
    provided the jury with an appreciation of the factual issues to be resolved,
    the evidence relating to the issues, the proper law to be applied, and the
    positions of the parties.

Conclusion

[30]

As noted in
Zebedee
, the decision of the trial judge on how
    best to structure the jury charge is entitled to deference. Here, as in
Pomeroy
,
    despite its facial imbalance, the trial judge's charge to the jury, when
    considered together with counsels closing submissions, provided the jury with
    an appreciation of the factual issues to be resolved, the evidence relating to
    the issues, the proper law to be applied, and the positions of the parties.

DISPOSITION

[31]

I would therefore dismiss the appeal.

Released: April 26, 2017
    (GE)

Gloria Epstein J.A.

I agree. H.S. LaForme J.A.

I agree. Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Toole, 2017 ONCA 305

DATE: 20170413

DOCKET: C60884

Simmons, van Rensburg and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Randall Scott Toole

Appellant

Matthew R. Gourlay, for the appellant

Kevin Wilson, for the respondent

Heard: December 5, 2016

On appeal from the convictions entered by Justice John A.
    Desotti of the Superior Court of Justice on January 15, 2015 and from the
    sentence imposed on January 21, 2015.

ENDORSEMENT

[1]

The appellant appeals his conviction for
    possession for the purpose of trafficking fentanyl, and he seeks leave to
    appeal his sentence of 48 months imprisonment.

[2]

Following surveillance, on October 18, 2013,
    police obtained and executed a search warrant at the appellant's home. They
    found five 100 microgram fentanyl patches, 27 codeine pills, some marijuana and
    hashish and two glass pipes with methamphetamine residue. They charged the
    appellant with possession for the purpose of trafficking fentanyl, possession
    for the purpose of trafficking codeine, possession of cannabis resin,
    possession of methamphetamine and five counts of breach of probation.

[3]

The appellant pleaded guilty to one count of
    breach of probation and to possession of fentanyl, codeine, methamphetamine and
    cannabis resin. While the Crown accepted his plea of guilty to possession of
    codeine, it did not accept his plea to possession of fentanyl. The remaining
    breach of probation charges were withdrawn.

[4]

The appellant was convicted after trial of
    possession of fentanyl for the purpose of trafficking.

[5]

After the trial judge delivered his reasons, the
    appellant pleaded guilty to a separate set of six additional charges, all in
    relation to events that occurred on July 11, 2014: two counts of possession for
    the purpose of trafficking (fentanyl and hydromorphone), possession of a stun
    gun and three counts of breach of recognizance.

[6]

The trial judge sentenced the appellant to a
    global sentence of 48 months imprisonment less ten months credit for
    pre-sentence custody. He imposed the sentence in relation to the possession for
    the purpose of trafficking fentanyl count that went to trial; in relation to
    all other counts, he imposed concurrent sentences of one year imprisonment for
    each offence.

[7]

The appellant appeals the conviction for
    possession for the purpose of trafficking fentanyl that went to trial and seeks
    leave to appeal his sentence.

[8]

The appellant raises two issues on his
    conviction appeal.

[9]

First, the appellant argues that the trial
    judge's reliance on the opinion evidence of a police officer, that the
    appellant's possession of five fentanyl patches was inconsistent with personal
    use, resulted in an unreasonable verdict. In particular, the appellant asserts
    that, contrary to the position taken by defence at trial, the officer ought not
    to have been permitted to offer an opinion on whether the quantity of fentanyl
    in the appellants possession was for the purpose of trafficking. He also contends
    that the trial judge erred in completely deferring to the opinion of the
    expert.

[10]

Second, the appellant contends that, in
    rejecting his evidence that the fentanyl was for his personal consumption, the
    trial judge applied a heightened standard of scrutiny and reversed the burden
    of proof.

[11]

In our view, the argument with respect to the trial judges reliance on
    the expert witness opinion has merit. While the evidence of the police expert
    witness was not inadmissible simply because he offered an opinion on what could
    be characterized as the ultimate issue (see, for example,
R. v. Burns
,
    [1994] 1 S.C.R. 656 at para. 26 and
R. v. Solleveld
, 2014 ONCA 214,
    120 O.R. (3d) 678 at para. 18), a review of the trial judges reasons suggests
    that he effectively abdicated to the expert witness his role in determining
    whether the appellant was guilty of the offence. The trial judges conclusions,
    at pages 16 and 17 of the transcript of his reasons, reveal an unquestioning
    acceptance of, and reliance on, the police officers bald opinion that the
    quantity of fentanyl alone signified that it could not be for personal
    consumption, even for an addict.

[12]

This is not a case for application of the
proviso
in s.
    686(1)(b)(iii) of the
Criminal Code
. The Crowns case was not overwhelming;
    indeed, there was little by way of other circumstantial evidence in this case
    to indicate trafficking.

[13]

Crown counsel, in oral submissions, asked that, in the event this court
    set aside the conviction for possession for the purpose of trafficking, we
    substitute a conviction for simple possession, rather than sending the matter
    back for a new trial. In accordance with s. 686(1)(b)(i) of the
Criminal
    Code
, we therefore dismiss the conviction appeal and substitute a
    conviction for simple possession of fentanyl, the offence to which the
    appellant pleaded guilty at the outset of the trial.

[14]

When an appeal is dismissed under s. 686(1)(b)(i), in accordance with s.
    686(3) the court of appeal may either affirm the sentence passed by the trial
    court, impose a sentence warranted in law or remit the matter of sentencing to
    the trial court.

[15]

Here the sentence of 48 months (less ten months for pre-sentence
    custody) was a global sentence in respect of a significant number of offences,
    including two counts of possession for the purpose of trafficking of drugs,
    including fentanyl.

[16]

However, the trial judge imposed the full term of the global sentence
    only in relation to the first count of possession of fentanyl for the purpose
    of trafficking.  On the remaining counts, including the other two possession
    for the purpose of trafficking counts, he imposed one year concurrent
    sentences. Those one year sentences were not appealed by the Crown.

[17]

In these circumstances, this court must determine an appropriate
    sentence for the substituted conviction for simple possession of fentanyl. In
    the absence of a Crown appeal of the sentences imposed for the other possession
    for the purpose of trafficking counts, this court cannot, as requested by the
    Crown, affirm the 48 month global sentence on the basis that the other
    convictions would have supported the sentence imposed. As Bennett J.A. noted in
R. v. Ivanic
, 2011 BCCA 158, 304 B.C.A.C. 44, at para. 10, the term
    global sentence is simply another way of expressing the totality principle.
    The imposition of a global sentence does not afford jurisdiction to
    effectively resentence the appellant for conduct which is not the subject of an
    appeal before this court.

[18]

It is not argued that a 48 month sentence would be an appropriate
    disposition for a count of simple possession of fentanyl. Nor are we of the
    view that such a sentence would be suitable.

[19]

While the appellant had a significant criminal record, the trial judge
    accepted that the offences were connected to his addiction to drugs, and stated
    that the sentence should be tempered in light of the appellants indication that
    he seems to see the light.

[20]

Procedurally, when this court substitutes a conviction under s.
    686(1)(b)(i) and resentences under s. 686(3), the sentence commences on the day
    that it is imposed:
R. v. Robinson
, 2014 ONCA 176, 317 O.A.C. 245, at
    paras. 16-18;
R. v. Roks
, 2011 ONCA 618, 284 C.C.C. (3d) 510, at
    paras. 24-25. Different approaches have been taken to determining how the
    sentence should be implemented:
Robinson
, at para. 18.

[21]

Including the time credited by the trial judge for pre-disposition
    custody, the appellant has already served over three years of his sentence. In
    the circumstances any sentence we impose for simple possession of fentanyl
    would be less than the time he has already served.

[22]

We therefore dismiss the appeal pursuant to s. 686(1)(b)(i), substitute
    a conviction for simple possession of fentanyl, and impose a sentence of one
    day of imprisonment (in addition to the time already served) in relation to
    that offence.

Janet Simmons J.A.

K. van Rensburg J.A.

B.W. Miller J.A.