



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Toole, 2017 ONCA 305

DATE: 20170413

DOCKET: C60884

Simmons, van Rensburg and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Randall Scott Toole

Appellant

Matthew R. Gourlay, for the appellant

Kevin Wilson, for the respondent

Heard: December 5, 2016

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

ENDORSEMENT

[1]

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

[2]

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

[3]

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    breach of probation charges were withdrawn.

[4]

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

[5]

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

[6]

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

[7]

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

[8]

The appellant raises two issues on his
    conviction appeal.

[9]

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

[10]

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

[11]

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

[12]

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

[13]

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

[14]

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

[15]

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

[16]

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

[17]

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

[18]

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

[19]

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

[20]

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

[21]

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

[22]

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

Janet Simmons J.A.

K. van Rensburg J.A.

B.W. Miller J.A.


