Her Majesty the Queen v. Hillier

[Indexed as: R. v. Hillier]

Ontario Reports Court of Appeal for Ontario Feldman, Tulloch and Nordheimer JJ.A. March 24, 2021 155 O.R. (3d) 214 | 2021 ONCA 180

Case Summary

Charter of Rights and Freedoms — Right to fair trial — Full answer and defence

Accused admitting to possession of drugs upon being apprehended under warrant — More drugs and other items found in police cruiser after accused taken to police station — Police destroying some items without fingerprinting or photographing them — Trial judge dismissing accused's application for stay for breach of right to fair trial — Accused's appeal from convictions for possession for purpose of trafficking allowed in part — Destruction of items was negligent and impaired accused's right to make full answer and defence — Evidence of drugs found in cruiser excluded, resulting in three counts of possession for the purpose of trafficking being set aside --- Canadian Charter of Rights and Freedoms, ss. 7, 11(d).

Charter of Rights and Freedoms — Remedies — Exclusion of evidence

Accused admitting to possession of drugs upon being apprehended under warrant — More drugs and other items found in police cruiser after accused taken to police station — Police destroying some items without fingerprinting or photographing them — Destruction of items was negligent and impaired accused's right to make full answer and defence — Not a rare and clear case warranting a stay — Evidence of drugs found in cruiser excluded, resulting in three counts of possession for the purpose of trafficking being set aside — Canadian Charter of Rights and Freedoms, ss. 7, 11(d).

Criminal law — Drug offences — Possession for purpose of trafficking

Accused admitting to possession of small amount of drugs upon being apprehended under warrant but testifying he was addict and drugs were for his own use — Crown leading no evidence to rebut accused's evidence regarding purpose of possession — Drugs found on accused in quantity was not inconsistent with trafficking, but as trial judge made no finding regarding purpose of possession, conviction reduced to simple possession.

Police set up surveillance to locate the accused and arrest him on a warrant for driving under suspension. The accused fled when uninformed constable approached him. The constable gave chase and grounded the accused in a pool of water. The accused was cuffed and before he was searched, he told the constable that he had drugs in his sock, which turned out to be a pill bottle containing about five grams of fentanyl mixed with other substances. Two other officers arrived on the scene and continued the search, which resulted in the seizure of two cell phones, two lighters, and some currency. The accused was charged with possession of fentanyl for the purpose of trafficking. He claimed that as he was being transported to the police station in the cruiser, he saw a black cloth bag in a puddle of water at his feet which he was able to pick up and open. He discovered inside a white ball wrapped in plastic which he concealed in his mouth because he was scared to be caught with it. The ball was established to be about 28 grams of a mixture of heroin, fentanyl, methamphetamine, and other substances. The accused acknowledged an addiction to heroin and fentanyl and claimed that when he was arrested, he possessed only the drugs he admitted to before the search and that they were for his personal use. Items found by police in the back seat of the cruiser included a black, water-damaged pouch containing oxycodone pills, plus methamphetamine both in a vial and spilled across the seat. The two officers who continued the search of the accused at his arrest gave differing evidence as to how the substances were discovered and as to their inspection of the cruiser before commencing their shift, but both testified that the accused was the first person in the rear of the cruiser that day. The seized items were turned over to the exhibit officer, who decided to destroy some coins, the pouch, drug packaging, and a vial of suspected cannabis oil. None of the destroyed items were photographed or tested for fingerprints. The accused submitted that the destroyed evidence was relevant and highly probative, and its loss prejudiced his right to a fair trial. However, the trial judge dismissed the accused's application for a stay or exclusion of evidence based on violations of his rights under ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms. The judge convicted the accused on five counts of possession of prohibited substances for the purpose of trafficking and two counts of breach of probation. The accused appealed.

Held, the appeal should be allowed in part.

The trial judge erred in dismissing the application regarding the destruction of the evidence. The trial judge did not properly analyze the significance of the destroyed items to the majority of the offences charged. How the drugs came to be in the backseat of the cruiser was a critical factual issue and the fabric pouch was central to its resolution. The three officers involved with the pouch all gave different descriptions of it, including its size. It was the apparent source of the drugs and other items found in the back seat of the cruiser and in the accused's mouth. It was problematic how the pouch could have been on the accused's person and yet not be found in a search. Being able to see the pouch would have assisted in determining the likelihood that it could have been hidden on the accused. That determination would, in turn, have had an impact on the evaluation of the accused's evidence regarding what happened. The destruction of the items was the result of unacceptable negligence on the part of the police and impaired the accused's right to make full answer and defence.

Excluding the evidence found in the cruiser was the appropriate remedy. It was not one of those rare and clear cases where a stay was appropriate. The exclusion of the evidence resulted in three of the convictions being set aside as there was no other evidence in relation to those charges. The exclusion did not affect the convictions arising out of the drugs found on the accused at the time of his arrest. The accused did not dispute that he possessed those drugs, but contended that they were for personal use and not for trafficking. The trial judge never resolved that issue and the Crown did not lead evidence on that point. In the absence of a finding that the quantity of drugs was consistent with possession for the purpose of trafficking, a conviction for simple possession was substituted.

Cited Cases

• R. v. Grant, [2009] 2 S.C.R. 353, apld
• R. v. La, [1997] 2 S.C.R. 680, folld

Other cases referred to

• R. v. Bero, 2000 ONCA 16956
• R. v. Hersi, 2019 ONCA 94
• R. v. M. (J.), 2021 ONCA 150
• R. v. McGuffie (2016), 2016 ONCA 365

Statutes referred to

• Canadian Charter of Rights and Freedoms, ss. 7, 11(d), 24(2)
• Provincial Offences Act, R.S.O. 1990, c. P.33 [as am.]

APPEAL from conviction for possession of prohibited substances for the purpose of trafficking and breach of probation.

Counsel: Ryan Heighton, for appellant. Amanda Hauk, for respondent.

The judgment of the court was delivered by

NORDHEIMER J.A. : —

[1] Richard Hillier appeals from his convictions on five counts of possession of prohibited substances for the purposes of trafficking and two counts of breach of probation. He also seeks leave to appeal the total sentence imposed of eight years imprisonment.

Background

[2] On February 21, 2019, Constable Gill of the Waterloo Regional Police Service set up surveillance in an attempt to locate the appellant and effect his arrest on a Provincial Offences Act, R.S.O. 1990, c. P.33 ("POA") warrant for driving under suspension in 2017.

[3] The appellant was observed walking up the street. He was approached by Constable Gill, who was in uniform. The appellant ran. Constable Gill gave chase. After about 100 metres, he grounded the appellant on his stomach in a pool of water. As they fell to the ground, the appellant grabbed his waistband. He refused to surrender his hands. After a struggle and numerous demands, Constable Gill gained control, cuffed the appellant to the rear, and sat him up. The appellant was sopping wet. Prior to conducting a field search, the appellant told Constable Gill he had something in his sock: 5.53 grams of what was later analyzed as a mix of fentanyl and six other substances in a prescription pill bottle.

[4] Two other officers arrived on scene -- Constables Burke and Robb. Constable Burke continued the search of the appellant. Constable Burke described the search as a safety search, not an invasive search. He seized, and subsequently turned over to Constable Gill, two cell phones, two lighters, and an amount of Canadian currency. The appellant was then charged with possession of fentanyl for the purpose of trafficking. The appellant's shoulder bag was also searched. No drugs were found therein but multiple non-functional cell phones and packs of cigarettes were located.

[5] The appellant was transported from the scene by Constables Burke and Robb. Prior to entering the rear of the cruiser, the appellant complained of shoulder pain. Constable Burke offered to double-cuff the appellant to take the pressure off his shoulders. This involved linking two sets of handcuffs to one another, extending the length. The appellant accepted this offer and was placed in the back of the cruiser. The cruiser did not have any cameras that might monitor the rear seats.

[6] The officers departed the scene at 11:55 a.m. They first drove to police headquarters to pick up the POA warrant at 12:13 p.m. They then arrived at Waterloo Regional Police Service Central Division at 12:26 p.m.

[7] Upon arrival at Central Division, the evidence of the officers differed on what occurred. Constable Robb testified that he opened the back door of the cruiser and observed multiple "dime bags" scattered on the floor at the feet of the appellant. Constable Burke testified that it was he who opened the door of the cruiser. In either event, after removing the appellant from the cruiser, a "bulge" was noticed in the appellant's mouth. It was later established that the bulge was a ball wrapped in plastic containing 28.18 grams of a blend of heroin, fentanyl, methamphetamine, and other substances, similar to that found in the pill bottle in the appellant's sock.

[8] The appellant was taken to booking. Constable Robb went back to the cruiser to search the area and take an inventory of anything located. He testified that he found a black pouch on the "right rear passenger side" of the cruiser (at the footwell), with oxycodone pills, which were observed to be "water-damaged and mushy", as a result of the pouch being water damaged.

[9] Constable Robb also found: (a) A gold pill container filled with suspected hydromorphone (tested as oxycodone) in the black pouch. (b) A vial of suspected cocaine (later tested as methamphetamine). (c) The ball of suspected heroin (later tested as heroin/fentanyl/methamphetamine) initially located in the appellant's mouth. (d) Methamphetamine on the rear driver's side seat (spilled across the seat and in the footwell on the driver's side) and in the rear passenger side footwell. (e) A bag with multiple dime baggies inside, 69 unused baggies in the black pouch, and multiple baggies with residue, found both in the black pouch and loose in the cruiser.

[10] The two officers also gave differing evidence regarding their inspection of the cruiser, prior to commencing their shift. Constable Robb testified that an inspection of the cruiser, including the rear footwell, was completed at the beginning of his shift by both himself and Constable Burke, and that no flashlight was used. Constable Robb also said that, just before the appellant entered the cruiser, he examined the footwell to make sure it was free of contraband. Constable Burke testified that his practice is to crouch down to check the footwell in his vehicle inspection, including using a flashlight. He did not note that he conducted this specific check on that day, but he testified that he always conducts the check in the same way. Constable Burke could not recall if Constable Robb assisted with or conducted checks of the cruiser that day. Constable Burke also testified that, as a matter of redundancy, he examines the space again before anyone is placed in the rear. He noted "as the doors open, I look in to make sure nothing is there and then ask the person to get in". Both officers testified that the appellant was the first person in the rear of the cruiser that day.

[11] Constable Atchison was the designated exhibit officer in this matter. The items that were initially seized by police were turned over to Constable Atchison by both Constable Gill and Constable Burke shortly after seizure. The seized currency was placed in a temporary locker, pending examination by the asset forfeiture officer. No photos were taken of the items before they were seized from the cruiser.

[12] The substances seized were weighed and tested: 5.53 grams of heroin/fentanyl/methamphetamine mixed with other substances was seized from the person of the appellant upon arrest. The following were seized from the police cruiser: 9.96 grams of methamphetamine, 28.18 grams of heroin/fentanyl/methamphetamine mixed with other substances, 1.46 grams of methamphetamine, and 12.9 grams of oxycodone pills (damp).

[13] Constable Atchison made the decision to destroy a number of items of evidence during processing: (a) Coins ($9.70 Canadian currency), because he believed them to be "covered in a substance that [he] knew was an illicit substance". (b) The "purse" containing the coins, which he indicated was an "oversight on [his] part". (c) All of the drug packaging, which was not described with any specificity in the officer's notes or in viva voce evidence. (d) A vial of suspected cannabis oil, which was not sent to Health Canada for testing. According to Constable Atchison, these items were discarded because they were a biohazard. Constable Atchison also testified he did not see the significance in keeping them.

[14] None of the seized items were tested for fingerprints, nor were identification photos taken before the items were destroyed. Constable Gill would have been responsible for this decision, but could provide "no reason", stating "I just didn't do it". Photos were not taken of the remaining exhibits until requested by the Crown shortly before trial.

[15] The appellant testified in his own defence. He said that he was an addict, at the time, suffering from heroin and fentanyl addiction, having used for a month and a half straight at the time of his arrest. He indicated that, at the time, he was using "maybe a quarter of a gram a day", and that he would purchase enough to last for two weeks, approximately 4 to 5 grams.

[16] The appellant acknowledged being arrested as described by the police and being searched. He was wearing a shoulder bag, which had no drugs in it. He acknowledged having a bottle in his sock, with 4.5 to 5 grams, which he had purchased that same day, but no other drugs.

[17] The appellant testified that, at the time of his arrest, he was wearing fitted jeans, a skin-tight shirt, a loose-fitting button-up shirt over top, and a small nylon jacket.

[18] The appellant further testified that he volunteered to the arresting officer that there were drugs in his sock (he indicated that it was heroin). He also detailed multiple searches of his pockets at the roadside, which turned up quantities of money and two cell phones. He described the police going into every single pocket more than once, going as far as ripping his back jeans pocket.

[19] The appellant testified that he was leaning forward when sitting in the cruiser because it relieved pressure on an injured shoulder. He testified that when leaning forward, he could see something shiny in the space at his feet. He kicked it with his foot, and he found a bag. He was able to reach it, pick it up, and unzip it. When he did, certain items fell out. There was a white ball wrapped in white plastic. He concealed it in his mouth because he was scared to be caught with it. He testified that "I don't even know what's in the rest of the bag and I thought well, now, this is going to get pinned on me, whatever, I just -- I don't know." He indicated in cross-examination "[i]f I had knowledge that that was an ounce of fentanyl, I would not have put that in my mouth. I'm better off putting a gun in my mouth and pulling the trigger when I know there's four bullets and pull it four times."

[20] The appellant described the bag that he found as black cloth, six to eight inches wide, by three inches high. He testified that it was in a puddle of water at his feet and was wet. He said that he opened it out of curiosity or "stupidity", and said, "I don't know. Maybe I should have just kicked it back under the seat."

The Trial Decision

[21] The appellant brought an application for a stay of the charges based on asserted violations of his rights under ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms. He submitted that the evidence which had been destroyed was relevant and highly probative and its loss prejudiced his right to a fair trial. As an alternative to a stay, the appellant sought the exclusion of the evidence found in the cruiser.

[22] The trial judge dismissed the application. He rejected the appellant's argument that the loss of the black pouch and the packaging material prejudiced the appellant's right to make full answer and defence, since it meant that those items could not be tested for fingerprints. The trial judge said:

I disagree. In my decades of practicing law and sitting on the bench, I have yet to see a case where packaging material would have been fingerprinted in any scenario resembling this.

[23] The trial judge also rejected that the black pouch itself was relevant. He said:

Similarly, the exact size of the fabric pouch is not central to the determination of the issues. It was a small fabric pouch, capable of being folded.

[24] In terms of the destruction of this evidence, the trial judge accepted Constable Atchison's explanation that he did not feel that the items were, to use the words of the trial judge, "of significant relevance".

[25] On the merits, the trial judge rejected challenges to the officers' evidence. He also found the appellant's evidence did not stand up to scrutiny. On these points, the trial judge said:

Given that the contraband was present in the back of the cruiser and in Mr. Hillier's mouth when they arrived at Central Division, the only logical inference is that Mr. Hillier was in possession of the contraband when he was placed in the cruiser.

With respect to Mr. Hillier's evidence, it simply does not hold up to scrutiny. I do not believe his evidence, nor is his evidence capable of raising a reasonable doubt.

[26] The trial judge found that the prosecution had proven the offences beyond a reasonable doubt and convicted the appellant on all counts.

Analysis

[27] In my view, the trial judge erred in dismissing the appellant's application regarding the destruction of the evidence. The law on this issue is set out in the Supreme Court of Canada's decision in R. v. La, [1997] 2 S.C.R. 680, where, in discussing the consequences where evidence is lost, Sopinka J. said, at para. 20:

This obligation to explain arises out of the duty of the Crown and the police to preserve the fruits of the investigation. The right of disclosure would be a hollow one if the Crown were not required to preserve evidence that is known to be relevant. Yet despite the best efforts of the Crown to preserve evidence, owing to the frailties of human nature, evidence will occasionally be lost. The principle in Stinchcombe (No. 2), supra, recognizes this unfortunate fact. Where the Crown's explanation satisfies the trial judge that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached.

[28] When evidence is lost, the Crown must explain how the evidence was lost. When considering the Crown's explanation, Sopinka J. said, at para. 21:

In order to determine whether the explanation of the Crown is satisfactory, the Court should analyse the circumstances surrounding the loss of the evidence. The main consideration is whether the Crown or the police (as the case may be) took reasonable steps in the circumstances to preserve the evidence for disclosure. One circumstance that must be considered is the relevance that the evidence was perceived to have at the time. The police cannot be expected to preserve everything that comes into their hands on the off-chance that it will be relevant in the future. In addition, even the loss of relevant evidence will not result in a breach of the duty to disclose if the conduct of the police is reasonable. But as the relevance of the evidence increases, so does the degree of care for its preservation that is expected of the police.

[29] In this case, the police did not take reasonable steps to preserve the evidence. To the contrary, the police purposely destroyed the evidence and did so without taking any photographs of it. The officer who destroyed the evidence said that he did so because "[he] just didn't see the significance in keeping them". But the officer then fairly added, "If I could do it again, I would have kept the brown purse."

[30] The fact that the officer considered the items to be a biohazard did not justify their destruction. The police routinely handle all sorts of items that could be considered biohazards, but that fact does not justify their destruction. Drugs themselves are biohazards, but they must be retained in order to prove the offences charged. Indeed, the officer acknowledged that these items could have been saved until the court proceedings concluded.

[31] The trial judge did not properly analyze the significance of the items that were destroyed to the majority of the offences charged. How the drugs came to be in the backseat of the cruiser was a critical factual issue and the fabric pouch was central to its resolution. It is important on this point to realize that the three officers involved with the fabric pouch, all gave different descriptions of it:

• Constable Robb described it as a black pouch, similar in size to a "fanny pack", but could not recall how it opened, from where it opened, or how it fastened.
• Constable Burke described it as a small, black change purse, made out of a "felt-type material", "being what you would remember your grandmother to have in her purse that would keep her . . . grocery money in", with a clasp opening at the top, and just large enough to fit some change and a small amount of cash inside. He estimated its dimensions as three inches long by three inches tall and three quarters of an inch thick.
• Constable Atchison described it as "sort of being brown and sort of the size of a female's clutch purse . . . maybe eight inches sort of in a rectangular shape", though he did not recall the way it opened, and he inferred that it was cloth.

[32] It must be kept in mind, on this issue, that this pouch is the apparent source of the drugs, and other items, found in the back seat of the cruiser and in the appellant's mouth. It must also be kept in mind that the appellant was thoroughly searched at the scene of his arrest, such that a number of items were found including drugs, currency, and other items. It must be further kept in mind that the appellant was handcuffed to the rear from the time of his arrest until after he arrived at Central Division and was removed from the cruiser.

[33] In these circumstances, it is problematic how an item, like this fabric pouch, could have been on the appellant's person and yet not be found in the course of the search of the appellant. Indeed, it is hard to see how an item, described by at least one of the officers as being like a "fanny pack", could have been missed in such a search, especially when one considers what the appellant was wearing at the time: fitted jeans, a skin-tight shirt, a loose-fitting button-up shirt over top, and a small nylon jacket. It is also difficult to understand how the appellant could have retrieved this item from where it was apparently so well-hidden on his person, given he was handcuffed to the rear throughout his time in the cruiser.

[34] In order for the trial judge to properly consider the evidence on the issue of the drugs found in the rear of the cruiser, it cannot be refuted that being able to look at the fabric pouch would be of singular significance, especially in light of the differing descriptions given by the officers of the pouch. If the physical size of the pouch would lead to a conclusion that it could not realistically have been missed in a search of the appellant's person, then that fact would have to pose a serious question whether the pouch was actually in the possession of the appellant. It could certainly raise a reasonable doubt regarding that fact.

[35] Coupled with that reality is the additional fact that the officers involved gave differing accounts of how and when the cruiser was searched prior to the appellant's involvement. The two officers did not agree on who did the search or how it was done. Indeed, these same two officers could not even agree on who drove the cruiser on the day in question.

[36] Being able to see the pouch would certainly have assisted in determining the likelihood that it could have been hidden on the appellant. That determination would, in turn, have to have had an impact on the evaluation of the appellant's evidence regarding what happened. Again, it would have to factor into whether the appellant's evidence raised a reasonable doubt.

[37] While it is of less importance to this issue, I would add that the trial judge ought not to have taken what appears to be judicial notice, from his own experiences, of the likelihood of finding fingerprints on the items of concern. If the Crown wished to advance this argument, in an effort to lessen the significance of the destroyed evidence, it ought to have called proper expert evidence on the subject. It was not open to the trial judge to fill in that evidentiary gap from his own experiences -- evidence, I note, that counsel did not have any opportunity to challenge: see R. v. M. (J.), 2021 ONCA 150, at paras. 48-56.

[38] The respondent's effort to characterize the evidence as insignificant, and the actions of the officers as reasonable, is contradicted by the facts. Constable Atchison himself acknowledged, in hindsight, that the evidence ought to have been retained. In addition, the trial judge's acceptance of Constable Atchison's view at the time, that the items were not of significant relevance, is not the proper test to be applied. It is not the officer's personal view of the evidence that counts. As Doherty J.A. said in R. v. Hersi, 2019 ONCA 94, at para. 32:

It is, however, no part of the police function when considering whether material should be preserved for disclosure purposes to assess the potential significance beyond a consideration of relevance in the broadest sense. In my view, it is unacceptable that, almost 30 years after Stinchcombe, the [undercover officer] could operate under the belief that he need save only relevant material that he viewed as significant.

(Emphasis added)

[39] In my view, the destruction of these items was the result of unacceptable negligence on the part of the police. Their destruction impaired the right of the appellant to make full answer and defence, resulting in a breach of the appellant's rights under ss. 7 and 11(d) of the Charter.

Remedy

[40] What then is the appropriate remedy? A stay of proceedings is a remedy of last resort. The prosecution's failure to preserve evidence does not automatically entitle the accused to a stay of proceedings, even when that failure amounts to an abuse of process: R. v. Bero, 2000 ONCA 16956, at para. 42.

[41] I cannot conclude that this case is one of those rare and clear cases where a stay is appropriate. In fairness, the appellant does not press for that remedy. Rather, I consider the appropriate remedy, arising from the ss. 7 and 11(d) breaches, is to exclude the evidence found in the cruiser pursuant to s. 24(2) of the Charter.

[42] Applying the factors from R. v. Grant, [2009] 2 S.C.R. 353, I consider the destruction of this evidence to constitute a very serious infringement of the Crown's disclosure obligations. Indeed, it is difficult to understand how, in 2019, such a casual approach could be taken to the items that were destroyed, in light of their disclosure value. I also consider that the destruction of these items had a significant impact on the right of the appellant to make full answer and defence. In terms of responding to the charges arising from the items found in the back seat of the cruiser, the appellant was left with only his evidence on what happened. Access to the fabric pouch might have lent considerable support to what he says happened, or at least raised a doubt regarding it. Lastly, I accept that the exclusion of the evidence undercuts society's interest in the adjudication of the case on its merits but, when the first two factors strongly favour exclusion of the evidence, the third factor will rarely alter the balance in favour of admission: R. v. McGuffie (2016), 2016 ONCA 365, at para. 63.

[43] Given that exclusion, the convictions on counts 2, 4 and 5 must be set aside. As there is no other evidence in relation to those charges, acquittals must be entered.

[44] This result does not, however, affect the convictions for the offences that arose outside of the matters relating to the items found in the cruiser. The drugs found on the appellant at the time of his arrest are not impacted by these conclusions nor are the facts that underlie the breach of probation convictions.

[45] There is, however, a separate issue with respect to the drugs found on the appellant at the time of his arrest (count 1). The appellant did not dispute that he had possession of those drugs, but he contended that they were for personal use and not for the purpose of trafficking. The trial judge never resolved that issue, presumably as everyone became focussed on the issues respecting the drugs in the cruiser, which were admitted to be in quantities consistent with possession for the purpose of trafficking. Nevertheless, a finding on that issue is necessary in order to prove one of the essential elements of count 1, possession for the purpose of trafficking. Further, not only was there no express finding by the trial judge on this element, the Crown did not lead evidence on the point.

[46] In those circumstances, the conviction on count 1 must also be set aside. In its place, as the appellant requested, a conviction for simple possession is substituted.

Sentence Appeal

[47] Given my conclusions regarding the conviction appeals, I do not reach the sentence appeal.

Conclusion

[48] The appeal is allowed, the convictions on counts 2, 4 and 5 are set aside and acquittals are entered on those counts. With the agreement of the respondent, the conviction on count 3 is quashed. The conviction on count 1 is set aside and a conviction for simple possession is substituted. The convictions on counts 6 and 7 remain, as do the sentences imposed on those counts. The ancillary orders regarding weapons prohibition, DNA samples, and forfeiture also remain.

[49] That leaves this court to impose a proper sentence on the substituted conviction for simple possession on count 1. The parties shall file written submissions on the appropriate sentence to be imposed, including allowance for time already served. The appellant shall file his submissions within 15 days of the date of these reasons and the respondent shall file its submissions within ten days thereafter. No reply submissions are to be filed without leave.

Appeal allowed in part.

Notes

1. The "bulge" was described as "larger than a golf ball, smaller than a hardball".
2. The respondent conceded that the conviction on count 3 - possession for the purpose of trafficking cocaine - cannot stand. The substance, believed to be cocaine, tested as methamphetamine.