



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 This charge was withdrawn against Ms.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.


