Court of Appeal for Ontario

Date: 2017-04-13 Docket: C60884

Judges: Simmons, van Rensburg and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

Randall Scott Toole Appellant

Counsel

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 The remaining breach of probation charges were withdrawn.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 appellant's 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 judge's 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 judge's reasons suggests that he effectively abdicated to the expert witness his role in determining whether the appellant was guilty of the offence. The trial judge's conclusions, at pages 16 and 17 of the transcript of his reasons, reveal an unquestioning acceptance of, and reliance on, the police officer's 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 Crown's 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 appellant's 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.