Court of Appeal for Ontario

Date: 2017-04-19

Docket: C61208, C61132

Justices: MacFarland, Pardu and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Ronald Joseph Pilgrim and Tammy Lynn Parent Appellants

Counsel

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 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. Parent's 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 This charge was withdrawn against Ms.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 Crown's 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. Pilgrim's 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. Pilgrim's 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. Pilgrim's 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. Pilgrim's 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. Pilgrim's 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 doctor's 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. Parent's 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. Hasnain's evidence about Mr. Pilgrim's blood tests (in para. 14 above) is consistent with Mr. Pilgrim's 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. Parent's 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 to refrigerate the methadone.

(5) Ms. Parent's 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 the 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 mother's bank account in Belle River (approximately 30 minutes from Windsor), again, for reasons related to VISA.

[30] Ms. Parent withdrew $3,500 from her mother's 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 father's 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, he's his own person. I can tell him no until I'm blue in the face. If he's going to do it, he's 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 Judge's 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. Parent's 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. Pilgrim's and Ms. Parent's 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. Pilgrim's 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 to reduce the amount of pills he received. The trial judge found it inconceivable that Dr. Hasnain would have refused to reduce Mr. Pilgrim's 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. Parent's 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. Parent's knowledge that Mr. Pilgrim was selling marijuana, particularly her evidence that she turned a "blind eye" to this activity. When reviewing Ms. Parent's 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. Pilgrim's admission to selling the drug, and Ms. Parent's 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 judge's 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. Parent's 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 Crown's 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 whoever's 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 I'm not saying I've 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. Pilgrim's 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. Hasnain's evidence:

Dr. Hasnain testified that if one of Mr. Pilgrim and Ms. Parent's 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 7 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. Pilgrim's 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 Crown's 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 prosecutor's 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. Pilgrim's credibility – and restrict his assessment of that evidence to its limited use. I accept Ms. Shaikh's 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. Pilgrim's 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. Pilgrim's 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), rev'd 2015 SCC 50, [2015] 3 S.C.R. 325 ("… substantially for the reasons of Laskin J.A.").

[62] Accordingly, I would allow Mr. Pilgrim's appeal and order a new trial on this basis. It is unnecessary to address Mr. Pilgrim's other grounds of appeal.

(2) The Appeal by Ms. Parent

(a) The trial judge misused evidence of Ms. Parent's 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 prosecution's theory of liability seemed to be that Ms. Parent was in joint possession of the pills and was wilfully blind to her husband's 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. Pilgrim's sale of marijuana. The trial judge's 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 Crown's suggestion that she "turned a blind eye" to this behaviour.

[66] While Ms. Parent may have turned a blind eye to Mr. Pilgrim's 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. Parent's 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. Pilgrim's marijuana trafficking as evidence of Ms. Parent's wilful blindness to Mr. Pilgrim's 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. Parent's 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. Parent's liability predicated on wilful blindness. I am not prepared to treat this characterization on sentencing as a clarification of the trial judge's approach to Ms. Parent's 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. Parent's 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. Parent's 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 counsel's 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. Parent's 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 government's 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. The 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. Parent's 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. Parent's 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. Pilgrim's 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. Pilgrim's 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. Parent's 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. Pilgrim's considerable portfolio of prescriptions.

[84] The only evidence that came close to establishing this knowledge is found in the following excerpt from Ms. Parent's cross-examination:

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

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 Crown's 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. Pilgrim's appeal is allowed. I would set aside the convictions and order a new trial. Ms. Parent's 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: April 19, 2017

G.T. Trotter J.A.

I agree J. MacFarland J.A.

I agree G. Pardu J.A.

Footnotes

[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 holder's] 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.