



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Potts, 2018 ONCA 294

DATE: 20180323

DOCKET: C61600 and C63295

Watt, Brown and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeffrey Brian Potts and Tracy Lee Robinson

Appellants

Paul Calarco, for the appellant, Jeffrey Potts

Colin Wood, for the appellant, Tracy Robinson

Meaghan Hourigan, for the respondent

Heard: November 2, 2017

On appeal from the conviction entered on August 14, 2015
    and the sentences imposed on January 21, 2016 by Justice Thomas A. Bielby of
    the Superior Court of Justice, sitting with a jury.

By the Court:

[1]

Jeffrey Brian Potts and Tracy Lee Robinson (the appellants) were found
    guilty by a jury of importing 7.86 kilograms of cocaine into Canada on their
    return from Jamaica. Each was sentenced to a term of imprisonment of 6.5 years
    after receiving credit for pre-disposition custody and stringent terms of pre-trial
    release.

[2]

Jeffrey Brian Potts appeals both conviction and sentence. Tracy Lee
    Robinson appeals her sentence only.

[3]

At the conclusion of the appellants oral arguments, we dismissed the
    appeals. We said that we would later provide our reasons for having done so.
    These are our reasons.

The Background Facts

[4]

A brief overview of the evidence admitted at trial is sufficient to set
    the grounds of appeal in their appropriate environment. Further details are
    provided where necessary in our discussion of the appellants submissions.

The Trip to Jamaica

[5]

The appellants, strangers to one another, travelled to Jamaica together.
    Potts was 59, Robinson 28. Each indicated on a customs declaration card that
    the trip was personal, not business-related. Potts advised border officials that
    he and Robinson were friends. Their tickets had been purchased less than one
    week prior to departure. The purchaser, a third party, paid for the tickets in
    cash.

Potts Version of Events

[6]

Jeffrey Brian Potts testified at trial. Tracy Lee Robinson did not
    testify.

[7]

Potts explained that the trip had been arranged by a business associate,
    a woman whom he had known for many years. A previous trip to pursue a business
    venture had failed to materialize. But this time the plan came together. Potts
    asked his wife to accompany him, but she declined. The trip organizer asked
    Potts whether he was willing to have another person go with him. Potts agreed.
    The other person turned out to be Ms. Robinson.

[8]

The woman who arranged and paid for the trip asked Potts to take a bag
    of clothing with him to give to her ex-husband, one of the men whom Potts and
    Robinson were to meet in Jamaica. Because the suitcase in which the clothes had
    been packed was expensive, the woman asked Potts to bring the suitcase back
    with him when he returned. Potts agreed.

[9]

The woman met Potts and Robinson at the airport in Toronto. There she
    provided them with their tickets and the bag they were to give to her husband.
    Robinson had two other bags with her.

The Bag
    Exchange

[10]

Potts
    delivered the bags to a man in a group he and Robinson met at the hotel in
    Jamaica. The man was to deliver the bag to the ex-husband of the woman who had
    purchased the tickets. The man took the three bags to a vehicle, emptied them
    out and returned them to Potts. Potts did not check the bags when the man
    brought them back.

The Return to
    Canada

[11]

Potts
    and Robinson returned to Canada on the same flight. They had three bags. Robinson
    told Potts that only one bag belonged to her. Potts disagreed, but put his name
    on the extra bag. At the airport in Toronto, Potts processed his return through
    an Automated Border Clearance Machine. Robinson was unable to do so. Both were
    referred to secondary inspection.

Secondary
    Inspection

[12]

At
    secondary, an official summoned Robinson to appear for a bag inspection. Potts
    told the official that he and Robinson were travelling together. He offered to
    come forward. Potts answered the officials questions about their trip.

[13]

The
    officer who inspected and x-rayed the third bag, one with Robinsons name on
    it, noticed that different coloured thread was visible on the lining of the
    bag. Upon further inspection, the officer discovered that each bag contained an
    insert.

The Drugs

[14]

The
    inserts in each of the three bags contained 2.5 to 2.6 kilograms of cocaine.
    Further investigation yielded no fingerprints on the inserts and no drugs on
    the clothing in the bags or on other parts of the bags. One of the two bags bearing
    Potts name contained mens clothing, the other womens clothing.

[15]

Subsequent
    analysis determined that the cocaine in the inserts was of 57 percent purity.

The Arrest and Searches

[16]

The
    appellants were arrested, searched incident to arrest and turned over to the
    RCMP. When Robinson was told about the finding of drugs in the suitcases, she
    asked how much was in there? Potts said nothing.

the appeal from conviction (Potts)

[17]

Potts
    appeals his conviction. He advances five grounds of appeal. Each, save one,
    focuses upon what are said to be errors or omissions in the charge to the jury.
    None attracted an objection at trial.
While not
    dispositive, the absence of any objection affords some indication that counsel,
    ever mindful of Potts interest and of any potential prejudice to his claim of
    lack of knowledge, did not consider the error or omission prejudicial:
R.
    v. Daley
, 2007 SCC 53, [2007] S.C.R. 53, at
    para. 58.

Ground # 1: Instructions on the Mental Element in
    Importing

[18]

Potts
    says that the trial judge failed to properly instruct the jury on the mental
    element in importing. The issue, Potts contends, should have been framed as
    whether Potts
knowingly
imported a substance, not simply as whether
    Potts imported a substance, an issue that was not in dispute. This error, Potts
    submits, was compounded by the trial judges instructions on wilful blindness
    and his reference to the common sense inference of intention.

[19]

We
    reject this claim of error.

[20]

The
    trial judge separated out in point form the essential elements of the offence
    of importing a controlled substance, in this case, cocaine. He then converted
    each essential element, which he explained, into a question for the jury to consider.
    The first two questions were:

Did Mr. Potts and/or Ms. Robinson import a substance into
    Canada?

Was the substance cocaine?

As the trial judge explained, neither of these two
    issues was controversial.

[21]

The
    trial judge then turned to what he termed as the real issue in this trial,
    that of knowledge of the nature of the substance and that it was hidden in the
    suitcases. Put in question form:

Did Mr. Potts and/or Ms. Robinson know that a controlled
    substance, in this case cocaine, was in the suitcases that they brought into
    Canada from Jamaica?

What followed after the question were instructions
    about proof of knowledge by reliance on circumstantial evidence (including a
Hodges
formulation); actual knowledge and wilful blindness; inferences from words
    and conduct from each appellant; and the verdict consequences of the findings
    available to the jury on the issue.

[22]

In
    later portions of his charge, the trial judge reviewed at length the testimony
    of the appellant Potts denying knowledge of the cocaine in the suitcases.
    Thereafter he read to the jury a summary of the defence positions prepared by
    trial counsel.

[23]

Several
    reasons persuade us that this approach to charging the jury does not provide
    grounds for appellate intervention.

[24]

First,
    the standard of review. An appellate court adopts a functional approach when
    reviewing the adequacy of a jury instruction:
R. v. Jacquard
, [1997] 1
    S.C.R. 314, at p. 335;
R. v. Gopie
, 2017 ONCA 728, 356 C.C.C. (3d) 36,
    at para. 59. Substance controls, not form. In this case, the trial judges
    charge focused the jurys attention on the central issue at trial: Potts knowledge
    of the cocaine in the suitcases. The instruction given on this issue adequately
    equipped the jury to decide this question. It is of no moment that this was the
    third issue discussed by the trial judge, rather than the first.

[25]

Second,
    inherent in Potts submissions is an assertion that final instructions must
    follow a particular order, failing which they are deficient. But as we have
    said, substance controls, not form. Provided that the information necessary for
    the jury to perform its task is covered, the order in which the trial judge chooses
    to set out the essentials lies within his sound discretion. Perhaps in some
    cases the order chosen may be prejudicial to an accused. But that is not this
    case.

[26]

Third,
    although the trial judge could have reformulated the first question as Potts
    suggests to read:

Did Mr. Potts and/or Ms. Robinson
knowingly
import a
    substance into Canada?

it does not follow that his failure to do so reflects
    misdirection, let alone prejudicial misdirection. Indeed, the manner chosen
    enabled the trial judge to focus exclusively on the single critical issue in
    the case  knowledge.

[27]

Finally,
    trial counsel, who had ample opportunity to make submissions about the content
    of the charge before it was delivered, did not seek the instruction now said to
    be essential or complain of its absence, either before the instructions were
    given or at any time thereafter.

Ground # 2: Limiting Instructions on Statement of
    Co-Accused

[28]

Potts
    contends that the trial judge erred in failing to instruct the jury, in express
    terms, that the statement of Robinson when advised of the discovery of the
    cocaine in the suitcases  how much was in there?  could not be used as
    evidence in the case against him. The evidence at trial did not show that Potts
    and Robinson were together at the time of Robinsons statement. In the absence
    of evidence from which the jury could find Potts adopted Robinsons statement,
    a limiting instruction was mandatory.

[29]

We
    do not give effect to this ground of appeal.

[30]

At
    the outset, we acknowledge that the trial judge should have given mid-trial and
    final instructions that explained the permitted and prohibited use of Robinsons
    out-of-court statement when advised of the discovery of the cocaine. That said,
    we are not persuaded that the omission caused any substantial prejudice to
    Potts.

[31]

First,
    this was not a case, as are many, in which Robinsons statement implicated
    Potts by attributing some words or conduct to him. In such cases, the risk of
    prejudice is that, left untutored about use of the evidence, the jurors will
    take what one accused says about another accuseds conduct as evidence of that
    conduct. But that is not what happened here. This was Ms. Robinson asking a
    question. No more. No less.

[32]

Second,
    in closing addresses no counsel invited the jury to consider Robinsons
    statement in determining whether the case against Potts had been proven beyond
    a reasonable doubt. Nor was any equivalent suggestion made in the trial judges
    final instructions.

[33]

Third,
    although he did not instruct the jury to confine their consideration of
    Robinsons statement to the case against her, the trial judge did make it clear
    that:

i.

each accused was a separate individual who could not be found guilty
    unless the
evidence relating to him or her
proves his or her guilt of
    that offence beyond a reasonable doubt;

ii.

each accused was entitled to separate consideration;

iii.

each accused was entitled to have his or her case decided on the basis
    of
his or her conduct
and
state of mind
and from the evidence
    that may apply to him or her; and

iv.

the findings in relation to both accused may be the same or different
    (emphasis added).

[34]

Finally, trial counsel for the
    appellant did not ask for a limiting instruction in connection with Robinsons
    remark, nor object to the failure of the trial judge to give specific mid-trial
    and final instructions on the issue.

Ground # 3: The Right to
    Silence

[35]

This
    ground of appeal relates to something said by an RCMP witness who gave evidence
    about his interaction with the appellants after they had been arrested, cautioned
    and advised of their
Charter
rights. The officer explained that Potts did
    not want to give a statement to the police.

[36]

The
    appellant says that the trial judge should have instructed the jury expressly
    that Potts had the right to remain silent and was not required to speak to or
    cooperate with the police in their investigation. The trial judges failure to
    do so, the appellant says, was prejudicial error and may have led the jury to
    conclude that Potts had a reason not to speak to the police and from that draw
    an inference of guilt. The effect of the omission was exacerbated by the trial
    judges repetition of this evidence in his charge.

[37]

In
    our view, this ground of appeal fails.

[38]

First,
    the trial judge was not asked at any point by any counsel to provide an
    instruction on this issue. No request was made for its inclusion at the pre-charge
    conference. And no objection was taken when nothing was said about it in the
    charge.

[39]

Second,
    unlike in some cases, Potts silence was not a focal point of the trial. He was
    not cross-examined on it, for example, by counsel for Robinson. Crown counsel
    said nothing of it in her closing address to the jury. Only trial counsel for Potts
    referred to it in her opening address to the jury in which she reminded jurors
    of the right to silence.

[40]

Third,
    the charge to the jury and the opening remarks of counsel for Potts made it
    clear that the onus of proof was on the Crown and never shifted to the
    appellant, who was under no obligation to adduce evidence or to prove his
    innocence.

Ground # 4: The Expert Evidence

[41]

This
    ground of appeal challenges two aspects of the expert evidence admitted at
    trial. The complaints are that the expert was permitted to testify, or at least
    gave evidence, on the ultimate issue at trial  knowledge of the controlled
    substance in the suitcases  and contravened the prohibition against anecdotal
    evidence promulgated in
R. v. Sekhon
, 2014 SCC 15, [2014] 1 S.C.R.
    272. The appellant also says that the expert provided misleading evidence on
    the price of cocaine.

[42]

As
    we will explain, this ground of appeal fails. We begin with some background.

[43]

In
    this case, the Crown qualified a member of the RCMP to give expert opinion
    evidence about the nature and sources of cocaine and the methods by which it
    was distributed, including the hierarchy of drug organizations. This evidence
    was of a general nature, not specific to the circumstances of this case.

[44]

In
    cross-examination by counsel for Robinson (not Mr. Wood), the witness was asked
    about compensation for mules, those recruited to bring cocaine into Canada.
    The officer testified that:

i.

generally speaking, mules do not pack the drugs;

ii.

packing could take anywhere from one hour to several days;

iii.

as a general rule, mules may not be aware of the precise nature of the
    controlled substance in their bag, but would likely be aware, at some level,
    that something was in the bag for which they were responsible; and

iv.

providing someone with cocaine worth $300,000 without them being aware would
    be a very large risk; thus, mules are often told what to say when questioned by
    border officers.

[45]

In
    her closing argument, Potts trial counsel warned the jury against using expert
    opinion to resolve the ultimate issue at trial: whether Potts knew that the
    suitcases contained cocaine. Counsel for Potts then observed that [w]ithin
    [the expert] evidence  you may actually find some points that are helpful to
    Mr. Potts in assessing whether he  had knowledge of what was in the bags. Similarly,
    Robinson relied on the expert opinion evidence that mules do not pack the drugs
    they transport to support her position that she had no knowledge of the
    contents of the suitcases. For its part, the Crown invited the jury to consider
    the low likelihood of anyone entrusting a valuable commodity to strangers
    without knowledge on the couriers part of the content of the bags.

[46]

We
    now consider Potts objections on appeal to the admission of the expert
    evidence. First, the ultimate issue complaint.

[47]

It
    is worth recalling that no general rule precludes the introduction of expert
    opinion evidence on the ultimate issue in a criminal trial:
R. v. Mohan
,
    [1994] 2 S.C.R. 9, at pp. 24-25;
R. v. Bryan
(2003), 175 C.C.C. (3d)
    285 (Ont. C.A.), at paras. 16-17;
R. v. Lucas
, 2014 ONCA 561, 121 O.R.
    (3d) 303, at para. 271. Admission of such evidence must be determined on a
    case-by-case basis.

[48]

In
    our view, the complaint advanced in this case is not made out on the evidence
    adduced at trial. The RCMP witness was not asked and did not testify on the
    ultimate issue the jury was required to determine: whether either appellant
    knew that a controlled substance, cocaine, was in their suitcases on their
    return from Jamaica.

[49]

Second,
    the anecdotal evidence submission.

[50]

We
    do not accept that the expert opinion evidence received in this case falls foul
    of the rule laid down in
Sekhon.

[51]

Recall
    the evidence in
Sekhon
. A police officer qualified as an expert
    testified that in approximately 1000 investigations over more than three
    decades, he had never encountered a courier who did not know about the
    commodity they were importing.

[52]

The
Sekhon
court held that the evidence failed to meet the threshold
    requirements of relevance and necessity established by
Mohan
. The
    opinion lacked legal relevance because the guilt or innocence of accused whom
    the witness had encountered in the past was legally irrelevant to Sekhons
    guilt or innocence. Said differently, the testimony was of no probative value
    on the issue of whether Sekhon knew about the cocaine in a hidden compartment:
Sekhon
,
    at paras. 49-50.

[53]

In this case, the evidence to which objection is now taken
    lacks the indicia that attracted disapproval in
Sekhon.
What was said
    here, elicited in cross-examination by trial counsel for Robinson, did not
    condescend to specifics or invite the chain of reasoning condemned in
Sekhon
.
    Indeed, in
Sekhon
itself, evidence of the general nature given here
    seems to have passed without unfavourable comment:
Sekhon
, at paras. 35 and 41.

[54]

Further, in his final
    instructions to the jury, the trial judge emphasised the general nature of the
    expert opinion evidence and pointed out that it was not based on the evidence
    in this case but based on her [the experts] experience, training and
    education. At no time did the trial judge suggest to the jury that the expert
    evidence established or assisted in establishing knowledge on the part of
    either appellant.

[55]

A final point. Neither
    Potts nor Robinsons trial counsel objected to the introduction of the
    evidence, sought a limiting instruction on jury use of the evidence, or objected
    to the omission of such an instruction.

[56]

Third, the expert
    evidence about the price of cocaine.

[57]

The RCMP witness referenced
    the potential financial loss an organization would suffer if its cocaine imports
    were intercepted at the border. This evidence, the appellant submits, relied on
    the improper assumption that the cocaine could be sold under optimum
    conditions, with full and successful marketing. Consequently, the jury could
    have been misled as to the financial risks associated with using a blind
    courier.

[58]

We reject this submission. In our view, it was
    reasonable for the expert to assume that financial loss from intercepted
    cocaine imports includes both the costs of acquiring the cocaine and

lost profits that could have accrued from its sale.  Accordingly, we do
    not share Potts concern that the jury could have been misled on the potential
    financial risks accompanying the use of blind couriers. Further, Potts trial
    counsel did not request a corrective instruction on this aspect of the experts
    evidence or object to its inclusion in the charge.

Ground # 5: Character Evidence and the
W.(D.)
Instruction

[59]

The
    final ground of appeal against conviction also relates to an alleged fatal
    omission in the trial judges charge to the jury. The complaint is that, in
    providing an instruction tracking the decision in
R. v. W.(D.)
, [1991]
    1 S.C.R. 742, the trial judge erred by confining the subject-matter of the
    instruction to Potts testimony, rather than including within it the evidence
    of good character adduced on his behalf. In this case, the evidence of good
    character described the appellant as well-liked, charitable and honest.

[60]

At
    the outset, we acknowledge that the trial judge did not give any instruction
    about jury use of the evidence of good character adduced on behalf of Potts. 
    In other words, the judge did not instruct the jury that evidence of the
    appellants good character was relevant to:

i.

the unlikelihood that the appellant committed the offence charged; and

ii.

the credibility of the appellant as a witness in the proceedings.
[1]


In addition, as the appellant contends, the trial
    judge did not include the good character evidence in his
W.(D.)
instruction.

[61]

We
    agree it was an error for the trial judge not to have explained to the jury the
    permissible uses of the good character evidence. That said, we are satisfied
    this error was minor and did not create a risk of prejudice to Potts. We
    therefore agree with the Crown that this is an appropriate situation to apply
    the curative proviso:
Criminal Code
, s. 686(1)(b)(iii);
Sekhon
,
    at para. 53.  We have reached this conclusion for four reasons.

[62]

First,
    the evidence of Potts good character suffered from some significant
    weaknesses. One witness had not worked with Potts directly for at least seven
    years and had, at best, sporadic contact with him. The evidence of the second
    witness contradicted Potts own testimony about his education and revealed
    little knowledge about his business dealings.

[63]

Second,
    trial counsel for Potts referred to the good character evidence in her opening
    and closing addresses to the jury. She described it as very limited in its
    scope and explained that it would assist the jury in weighing all of the
    evidence whether or not this person is likely the sort of person to turn in his
    mid-life to committing various crimes. In this respect, it is worth recalling
    that a charge to the jury does not take place in isolation, but in the context
    of the trial as a whole.  Appellate review of the adequacy of a trial judges
    charge encompasses consideration of the addresses of counsel as they may fill
    gaps in the charge:
Daley
, at para. 58.

[64]

Third,
    on several occasions in his charge, the trial judge made it clear that the jury
    was to decide this case on the basis of their consideration of
all
of
    the evidence adduced at trial. By its terms, such an instruction would include
    the evidence of good character. This would not be lost on a present-day jury.

[65]

Finally,
    counsel for Potts did not request an instruction on the character evidence or
    object to the lack of such an instruction in the charge to the jury.

[66]

For
    these reasons, we dismissed Potts appeal from conviction.

The Appeals from Sentence

[67]

Both
    appellants appeal from equivalent sentences of imprisonment for 6.5 years
    imposed upon them after deduction of credit for brief periods in pre-trial
    custody and more lengthy periods under stringent terms of judicial interim
    release orders.

The Positions at Trial

[68]

At
    trial, Crown counsel sought penitentiary sentences of seven to eight years for
    both appellants. The Crown acknowledged that Potts and Robinson should receive
    credit for the lengthy period during which they were bound by stringent release
    terms.

[69]

Trial
    counsel for Potts sought a sentence towards the lower end of the relevant
    sentencing range with credit of five to six months for stringent release terms,
    resulting in a net sentence of five to six years.

[70]

Trial
    counsel for Ms. Robinson sought a sentence of imprisonment of three to four
    years, including credit for 16 months of house arrest.

The Reasons of the Trial Judge

[71]

The
    trial judge identified the range of sentence appropriate for first time
    offenders convicted after trial of importing in excess of one kilogram of
    cocaine as a penitentiary sentence of six to eight years. In his view, the
    predominant sentencing objectives were denunciation and deterrence.

[72]

The
    trial judge considered the appellants to be equal partners in the importing
    venture. He identified two mitigating factors common to both appellants. Each
    was a first offender. Each had been fully compliant with stringent terms of
    their pre-trial release. The trial judge also noted that Potts is a productive
    member of society, and that Robinson, the devoted mother of two children,
    upgraded her education while awaiting trial.

[73]

The
    trial judge took note of two aggravating factors common to both appellants: the
    gravity of the crime for which they had been convicted, and the fact that their
    only motivation for the offence was profit.

The Arguments on Appeal

[74]

In
    this court, Potts acknowledged that the trial judge correctly identified the
    range of sentence applicable to this case. But a range, as its name suggests,
    is not an inflexible structure into which every sentence must be slotted. Individual
    sentences outside the range may nonetheless be fit. And the special
    circumstances of this case warranted a sentence outside the range. Six decades
    of good citizenship. Steady work. Community service. In addition, the trial
    judge failed to adhere to the principle of restraint in imposing a first
    sentence of imprisonment.

[75]

Robinson
    points to three specific errors which she submits resulted in the imposition of
    an unfit sentence:

i.

attributing the entire quantity of cocaine  7.86 kilograms  to her, despite
    the conflict in the evidence about control of the third bag and without
    adhering to the principles from
R. v. Gardiner
, [1982] 2 S.C.R. 368;

ii.

finding the offence to be motivated by greed in the absence of any
    evidence to support such a finding; and

iii.

failing to consider as a mitigating factor the low purity of the
    cocaine.

[76]

The
    Crown begins with a reminder about the controlling sentencing objectives 
    denunciation and deterrence  and the narrow scope of review available on
    appeals from sentence. The sentences imposed fall squarely within the range of
    sentence applicable to the circumstances of this offence and the offenders who
    committed it. The sentencing judges reasons disclose no error of law, or of
    principle, let alone an error that had an impact on the sentence imposed.

[77]

The
    Crown says that the trial judges finding of a joint venture or equally shared
    interest was fully supported by the evidence adduced at trial and available to
    the trial judge on the basis of the jurys verdict under s. 724(2) of the
Criminal
    Code.
Whose name appeared on the baggage tags on the return to Canada was
    not dispositive of the nature and extent of participation in the importation.
    The trial judge did not rely on the amount of cocaine as an aggravating factor
    and was entitled to find financial gain as the underlying motive in light of
    the evidence of financial need introduced at trial. The claim of low purity was
    refuted by the expert evidence adduced at trial.

Discussion

[78]

In
    our view, the sentences imposed are fit. They sit comfortably within the range
    of sentence applicable for importing cocaine in amounts well in excess of one
    kilogram. This range includes first offenders. We are unable to detect any
    error of law or of principle in the reasons of the trial judge that had any
    impact on the sentences he imposed. Nor are the sentences demonstrably unfit.

[79]

On
    the evidence adduced at trial, it was open to the trial judge to find that the
    appellants were co-principals in this importing scheme. The extent of
    participation is not determined by whose name appears, or how many times, on
    baggage tags. Depending on the method of distribution, the amount of cocaine
    involved had a street value of between $353,000 and $628,000. The level of
    purity does not diminish the gravity of the offence, the moral blameworthiness
    of those who committed it, or the destruction it could have created on
    distribution.

[80]

Leave
    to appeal sentence is granted, but the appeals from sentence are dismissed.

conclusion

[81]

For
    these reasons, we dismissed the appeal from conviction and the appeals from
    sentence.

Released: DW Mar 23 2018

David Watt J.A.
David Brown J.A.
L.B. Roberts J.A.





[1]
See,
R. v. Elmosri
(1985), 23 C.C.C. (3d) 503 (Ont. C.A.), at pp.
    506-507;
R. v. Poirier
(2005), 193 C.C.C. (3d) 303 (Ont. C.A.), at para.
    15.


