R. v. Puleo and Foisy Date:, 2010 BCPC 317

Citation: R. v. Puleo and Foisy Date: 20101209 2010 BCPC 0462 File No: 81013-2C Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. REO PULEO and DAMIEN FOISY RULING ON COMMITTAL OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Crown: L. LeClair Counsel for Reo Puleo: J. Stowe Counsel for Damien Foisy : M. Bozic Place of Hearing: Port Coquitlam , B.C. Date of Hearing: April 26-29, July 19-21 and August 30, 2010 Date of Judgment: December 9, 2010

INTRODUCTION [ 1 ] The accused, Reo Puleo (“Mr. Puleo”) and Damien Foisy (“Mr. Foisy”) are before the court pursuant to a preliminary inquiry. They are charged jointly under Information 81013-2C with unlawful possession for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , R.S.C. 1996, c. 19, of three scheduled substances, viz : 1. Methamphetamine (N,α-dimethylbenzeneethanamine), colloquially known as “crystal meth” (count 1); 2. N-methyl-3, 4-methylenedioxyamphetamine (N, α-dimethyl-1, 3-benxodiolxole-5-ethanamine), colloquially known as “ecstasy” (count 2); and 3.

Benzoylmethylecgonine, colloquially known as cocaine (count 3). [ 2 ] Crown counsel, Mr. LeClair, seeks committal of Mr. Puleo and Mr. Foisy for trial on those three counts. He also seeks committal on two further counts for unlawful production of crystal meth (proposed count 4) and ecstasy (proposed count 5), contrary to s. 7(1) of the Controlled Drugs and Substances Act .

Section 2 of the Act defines production to mean, in respect of any scheduled substance, “manufacturing, synthesizing or using any means of altering the chemical or physical properties of the substance.” The Crown contends that the additional, production charges are “other indictable offence[s] in respect of the same transaction[s]” addressed in counts 1-3 for the purposes of ss. 535 and 548 of the Criminal Code , and that the evidence adduced at the preliminary inquiry justifies the endorsement on the Information, pursuant to s. 548(2) , of proposed counts 4 and 5 in the following terms: 4. [Mr. Puleo and Mr.

Foisy], on or about the 3 rd day of August, 2008, at or near the City of Coquitlam, in the Province of British Columbia, did unlawfully produce a controlled substance, to wit: Methamphetamine [Schedule I 18.], contrary to Section 7(1) of the Controlled Drugs and Substances Act ; and 5. [Mr. Puleo and Mr.

Foisy], on or about the 3 rd day of August, 2008, at or near the City of Coquitlam, in the Province of British Columbia, did unlawfully produce a controlled substance, to wit: N-methyl-3, 4-methylenedioxyamphetamine [Schedule III 1. (9)], contrary to Section 7(1) of the Controlled Drugs and Substances Act . [ 3 ] All of the offences for which the Crown seeks committal are alleged to have been committed at or near Coquitlam, B.C. on or about August 3, 2008—the date of execution of a search warrant of a private residence in that city (the “Subject Residence”) following a lengthy investigation. [ 4 ] Neither Mr.

Stowe, counsel for Mr. Puleo, nor Mr. Bozic, counsel for Mr. Foisy, contest committal of their clients on the three original counts of possession of the noted substances for the purposes of trafficking and, given the nature of the evidence that was led by the Crown at the preliminary inquiry, counsel’s concessions are justified and appropriate. Accordingly, I can and do now rule that Mr. Puleo and Mr.

Foisy be and the same are committed to stand trial on counts 1 to 3, inclusive, of Information 81013-2C. [ 5 ] Defence counsel do, however, oppose committal of either accused on the production charges that are found in the proposed new counts. Therefore, what follows in these reasons is concerned with the question of whether evidence has been adduced at the preliminary inquiry on the basis of which—if believed and unanswered—a reasonable trier of fact, properly instructed, could convict Mr. Puleo and Mr.

Foisy of unlawfully producing crystal meth (proposed count 4) and ecstasy (proposed count 5) “on or about the 3 rd of August 2008, at or near the City of Coquitlam, in the Province of British Columbia … contrary to Section 7(1) of the Controlled Drugs and Substances Act ”. THE DEFENCE ARGUMENTS AGAINST COMMITTAL [ 6 ] Mr. Stowe made submissions urging the court to decline to commit Mr. Puleo to stand trial on proposed counts 4 and 5 for production of crystal meth and ecstasy, respectively. Mr. Bozic, representing Mr. Foisy, adopted, and lightly supplemented, the submissions of Mr. Stowe. [ 7 ] Mr.

Stowe’s arguments against committal turn largely (though not exclusively) on a short, conclusory exchange he had with the Crown expert during the course of cross-examination. Following a voir dire on qualifications, Jason Robillo—a Health Canada chemist with considerable experience in clandestine drug lab investigations and “take downs”—was qualified as an expert in the production of crystal meth and ecstasy. The exchange of interest between Mr. Stowe and Mr.

Robillo (to which I shall sometimes refer as the “focal exchange”) was as follows: “Q But you can't say that production took place at [the Subject Residence], correct? A No, I can't.” Transcript , July 20, 2010, p. 73 [ 8 ] That exchange is the culmination of a series of prior exchanges in which Mr. Stowe pressed Mr.

Robillo to acknowledge that the bulk of the laboratory glassware, precursor chemicals and the like found at and seized from the Subject Residence were not set up or engaged in active production of crystal meth and/or ecstasy in the residence at the time of execution of the search warrant on August 3 rd . Mr.

Robillo gave that acknowledgement, just as he acknowledged that he could not say definitively that the residues of crystal meth and ecstasy that were found in laboratory glassware seized from the Subject Residence had been manufactured in the residence. [ 9 ] At para. 24 of his written submission, after referring to the focal exchange, Mr. Stowe put the central point of his argument (adopted by Mr. Bozic on behalf of Mr. Foisy) as follows:

“… Counsel for [Mr. Puleo] submits that Mr. Robillo’s acknowledgement that he could not say production took place at [the Subject Residence] precludes a finding that there is sufficient evidence to order [Mr. Puleo] to stand trial on charges of production of Methamphetamine or MDMA [ecstasy] under s. 548(1) (

a) of the Criminal Code .” [ 10 ] Mr. Stowe goes on to argue that, by dint of his qualifications as an expert, Mr. Robillo is the only witness called at the preliminary inquiry who could testify to the question of whether “production took place at [the Subject Residence]”, invoking the well- known case law that confines expert testimony to subject matter that is beyond the ken of the layperson. He says that, in the focal exchange, Mr.

Robillo has given direct evidence going to the essential elements of the offence of production that resolves the question of production in favour of the accused: the reply amounting, in effect, to a “full answer” to the Crown’s case on production. Mr. Stowe further contends that Mr. Robillo has furnished the court with a “ready-made inference” that only he is qualified to draw and that that inference is conclusive against production of methamphetamine and ecstasy at the Subject Residence. Accordingly—Mr.

Stowe’s argument goes—there is no admissible evidence contra that the court is competent to assess that could reasonably support a verdict of guilty on production of crystal meth or ecstasy at the Subject Residence against either Mr. Puleo or Mr. Foisy THE CROWN ARGUMENTS IN RESPONSE [ 11 ] Mr. LeClair, for the Crown, answers the arguments advanced by Mr. Stowe (with Mr. Bozic’s concurrence) with a number of points. I have summarised the main ones below. [ 12 ] Mr. LeClair first makes the point that while Mr. Robillo conceded, during cross-examination by Mr.

Stowe, that laboratory glassware found at and seized from the Subject Residence could have been used elsewhere and before and moved to the Subject Residence, there is no evidence before the court to support that hypothesis. [ 13 ] Mr. LeClair also places emphasis upon the evidence describing the multi-stage character of the manufacturing process for both crystal meth and ecstasy, noting that it takes place over a number of days during which there is ebb and flow in terms of the performance of active, hands-on production tasks.

He made particular mention of the final stage of production of crystal meth—a largely cosmetic stage that involves the use of acetone to purge the crystals of impurities that impart to them a yellowish-brown colouring. The evidence led at the preliminary inquiry included evidence of the presence of acetone at the Subject Premises as well as crystal meth that was yellow-brown in colour and had not been treated with acetone to remove the impurities responsible for that colouring. Mr.

LeClair’s point was that this was probative of the existence of production, at the Subject Residence, of crystal meth at least, that was incomplete and ongoing as of August 3, 2008. [ 14 ] Mr. LeClair draws the court’s attention to the fact that while Mr.

Robillo conceded on cross-examination that there were no reactions taking place in large vessels at the time of execution of the search warrant at the Subject Residence on August 3, 2008, there were at that time smaller-scale “experiments” occurring in smaller items of laboratory glassware located and seized at the Subject Residence on that date that he says constitute evidence of production of the substances in issue on a smaller scale.

ANALYSIS [ 15 ] Before embarking upon my analysis, I will instruct myself on the very narrow and circumscribed function that I am to discharge as the preliminary inquiry judge in this case. [ 16 ] Because this is not a trial, I am not called upon to determine questions of guilt or innocence. That responsibility falls to the judge before whom Mr. Puleo and Mr. Foisy will ultimately be tried. On the authority of United States of America v. Sheppard , 1976 CanLII 8 (SCC) , [1977] 2 S.C.R. 1067 and R. v.

Mezzo , 1986 CanLII 16 (SCC) , [1986] 1 S.C.R. 802, my limited jurisdiction permits me to do no more than determine, with respect to contentious, proposed counts 4 and 5, whether evidence has been adduced at the preliminary inquiry upon which—if believed and unanswered—a reasonable trier of fact, properly instructed, could convict Mr. Puleo and Mr.

Foisy of unlawfully producing crystal meth (proposed count 4) and ecstasy (proposed count 5) “on or about the 3 rd of August 2008, at or near the City of Coquitlam, in the Province of British Columbia … contrary to Section 7(1) of the Controlled Drugs and Substances Act ”. [ 17 ] For committal to be possible, there must be some evidence going to each of the essential elements of each of the offences making up the charges: Mezzo . As a preliminary inquiry judge, I can only engage in a very limited, qualitative weighing of the evidence adduced before me.

In determining whether there is “any” evidence regarding one or more essential elements of the offences charged, I may only consider whether evidence tendered by the Crown is of a sufficient quality that it is “capable of supporting a conviction”: R. v. Arcuri , 2001 SCC 54 (CanLII) , [2001] 2 S.C.R. 828 and R. v. Pascal , [1993] B.C.J. No. 2562 (S.C.) (QL) .

To the extent that the Crown’s case against the accused is circumstantial, I may only weigh the evidence “in the sense of assessing whether it is reasonably capable of supporting the inferences [of guilt] that the Crown asks the jury to draw”: Arcuri , at para 23 . Where competing inferences can be drawn from evidence led at this preliminary inquiry, for purposes of determining whether to commit the accused for trial, as a preliminary inquiry judge I am obliged to proceed on the basis of the inference that favours the Crown’s case against the accused so long as it is a reasonable inference: R. v.

Sazant , [2003] 3 S.C.R. 635 and R. v. Alexander , [2006] O.J. No. 3173 (S.C.J.) (QL) . [ 18 ] To the extent that defence submissions inviting the court to decline to commit are grounded in what transpired during cross- examination of Crown witnesses, as a preliminary inquiry judge I cannot usurp the trial judge’s function by assessing the Crown witnesses’ credibility or the weight that should be given to their testimony.

Indeed, I may only give consideration to evidence against the Crown adduced during cross-examination if it constitutes a “full answer” to the Crown’s evidence: Pascal . (I pause here to say that I do not consider that the expanded basis for considering cross-examination at a preliminary inquiry set out in the Manitoba case of R. v. Maldonado , [1999] M.J. No. 583 (P.C.) and urged upon me by Mr.

Stowe can be reconciled with the binding authority of the Supreme Court of British Columbia in Pascal or, indeed, with the references in the majority judgment in Sheppard to matters of credibility lying outside a preliminary inquiry judge’s “sphere”.) [ 19 ] Viewing the evidence of this case through the lens of the foregoing law, I begin by making the threshold observation that the Crown’s case for production against Mr. Puleo and Mr. Foisy under proposed counts 4 and 5 is a circumstantial one. When the search

warrant was executed at the Subject Residence on August 3, 2008, the accused were neither present at the residence and nor were they found to be actively engaged at that moment in the act of “manufacturing, synthesizing or using any means of altering the chemical or physical properties of” crystal meth or ecstasy. Any court that might be called upon by the Crown to convict Mr. Puleo and Mr. Foisy of production on proposed counts 4 and 5 will therefore have to do so on the basis of inferences drawn from facts proven by admissible evidence and not on the basis of direct evidence. Mr.

LeClair argues that, nevertheless, there is an ample body of evidence before this court at this preliminary inquiry, including physical evidence located at and seized from the Subject Residence, to support a reasonable inference that crystal meth and ecstasy were being produced by Mr. Puleo and Mr. Foisy at the Subject Residence around the time the search warrant was executed. [ 20 ] To the extent that defence counsel have raised the spectre of the production having possibly occurred earlier and elsewhere, Mr.

LeClair points to evidence of the limited “shelf life” of the substances in question and to the wording of the new charges that do not pinpoint the production precisely and exclusively at the Subject Residence or precisely and exclusively on August 3 rd . He says therefore that reasonable inferences of production of crystal meth and ecstasy by Mr. Puleo and Mr.

Foisy within the parameters defined by proposed counts 4 and 5 can be drawn from that body of evidence by a properly instructed trier of fact and that the accused should therefore be committed to trial on those proposed production counts, alongside counts 1-3, so that there can be a full inquiry into the merits of all of those charges against them in that forum. [ 21 ] The body of evidence placed before the court at the preliminary inquiry includes, inter alia , the following: (

a) quantities of glassware and other laboratory equipment of the kind, in the opinion of Mr. Robillo, that is associated with the production of those substances, located at and seized from the Subject Residence; (

b) quantities of precursor materials and reagents that, in the opinion of Mr. Robillo, are associated with the production of confirmed crystal meth and ecstasy, located at and seized from the Subject Residence; (

c) a list of ingredients that, in the opinion of Mr. Robillo, are employed in the manufacture and processing of crystal meth, located at and seized from the Subject Residence; (

d) quantities of substances that, in the opinion of Mr. Robillo, are crystal meth and ecstasy, located at and seized from the Subject Residence; (

e) a quantity (“a lot”) of the crystal meth found at and seized from the Subject Residence that was, in the opinion of Mr. Robillo, at an incomplete stage of manufacture where it had not been purged of discolouring impurities; (

f) a quantity of acetone found at and seized from the Subject Residence that, in the opinion of Mr. Robillo, is a chemical used for purging discolouring impurities during the course of production of crystal meth; (

g) the existence of “small experiments” in the production of crystal meth and/or ecstasy that were active at the time of execution of the search warrant; (

h) the testimony of a former tenant at the Subject Residence between May and August, 2008, inclusive, who was excluded from access to a room in the residence, for which only Mr. Puleo and Mr. Foisy had keys, where the largest pieces of laboratory glassware associated with production of crystal meth and ecstasy were kept; and (

i) evidence of Mr. Puleo’s and Mr. Foisy’s possession, knowledge and control of the Subject Residence and the crystal meth and ecstasy that were located and seized there (evidence that was led by the Crown in part to support the charges of possession for the purposes of trafficking of those scheduled substances for which committal is uncontested). [ 22 ] As the law I have canvassed earlier in this judgment confirms, the threshold for committal at a preliminary inquiry is a very low one indeed.

Paraphrasing language taken from the judgments of the Supreme Court of Canada in Mezzo and Arcuri , I am satisfied that, if unanswered, the evidence led at this preliminary inquiry (including that which I have summarised above) is reasonably capable of supporting the inferences that Mr. Puleo and Mr. Foisy were engaged in the production of crystal meth and ecstasy at the the Subject Residence when the search warrant was executed there on August 3, 2008.

A fortiori , I am satisfied that, if unanswered, the evidence tendered by the Crown at the preliminary inquiry is reasonably capable of supporting the inferences that Mr. Puleo and Mr. Foisy were engaged in the production of crystal meth and ecstasy “at or near the City of Coquitlam, in the province of British Columbia … on or about the 3 rd of August 2008”. [ 23 ] Mr.

Stowe’s arguments seem to depend in part upon a temporal and geographic pinpointing of active performance of production tasks that is not reflected in either the language of proposed counts 4 or 5 or the evidence concerning “production” as a process. Recall that the evidence is that the production process, as described by the Crown’s expert Mr.

Robillo, does not entail continuous, hands-on action by those producing the scheduled substances; rather, it involves periodic bursts of activity, interspersed with intervals where reagents are permitted to react, end-products are permitted to dry, end-products are cleaned and formatted (into tablets, for example), and so forth. Moreover, as Mr. LeClair has argued, even if it is possible to read into Mr.

Robillo’s testimony on cross- examination a concession that it is theoretically possible that the actual production of crystal meth and ecstasy that was located and seized from the Subject Residence took place earlier and elsewhere, there is no evidence before the court to support that bare hypothesis. Thus, the existence of a mere theoretical possibility of production earlier and elsewhere—especially viewed in the context of the somewhat elastic language of proposed counts 4 and 5—cannot ultimately come to bear upon the decision I must make, as a preliminary inquiry judge, as to whether or not Mr. Puleo and Mr.

Foisy should be committed on the production counts. [ 24 ] During a pressing cross-examination, Mr. Robillo was eventually brought around to agree that he couldn’t say that production took place at the Subject Residence. But his answer in that focal exchange must be seen in the light of his other contrary evidence— evidence that Mr. Stowe argued during his oral submissions was wholly “neutralised” by the focal exchange found at p. 73 of the Transcript for July 20, 2010.

[ 25 ] During his direct examination, Mr. Robillo’s testimony was to a different effect than that during the exchange to which Mr. Stowe attaches such great importance. For example, with respect to crystal meth, Mr. Robillo’s evidence-in-chief was as follows: “Q Mr. Robillo, when we left off, I was asking you about a recipe that you had located in the -- in amongst the exhibits that were seized at [the Subject Residence]. I just am going to begin the afternoon by asking, in your opinion was methamphetamine being produced at the -- A Yes. Q -- [Subject R]esidence?

A Yes.” Transcript , July 20, 2010, pp. 44-45 And with respect to ecstasy: “Q In terms of MDMA or Ecstasy, do you believe that that was being produced at the [Subject R]esidence? A Yes, I do.” Transcript , July 20, 2010, p. 56. [ 26 ] Given what he said in the foregoing passages from his evidence-in-chief, it is perhaps not surprising that when he was subjected to cross-examination, Mr. Robillo was slow to accede to Mr. Stowe’s suggestion that he could not say that production of the alleged substances had taken place at the Subject Residence.

I offer one such exchange by way of illustration. “Q There was no glassware set up in the production style phase, correct? A Correct. Q But it was your opinion, was it not, that based on residues that you found on some of the equipment and some other exhibits, that MDMA and methamphetamine had been produced at some point in time? A Yes. Q At some place? A At [the Subject Residence]. Q Well, hold on, we'll get to that. It had taken place at some point in time in the past, prior to the 3rd of August 2008, right?

A Right.” Transcript , July 20, 2010, p. 72 [ 27 ] The testimony in these three, last-quoted passages is not immediately and obviously reconcilable with Mr. Robillo’s later concession, during the focal exchange, that he “can’t say that production took place at [the Subject Residence]”. But it must be said that the questioning itself and the use of terminology within the cross-examination is not wholly free of ambiguity. It may be that Mr.

Robillo took the word “production” as it was being used in cross-examining counsel’s later questioning to connote something that was precisely pinpointed both temporally and geographically and active at the time of detection. However, it is not for me sitting as a preliminary inquiry judge to attempt to come to any final conclusions about whether or how Mr. Robillo’s answers on cross-examination can or might be reconciled with his other testimony. As the court stated in Arcuri , a preliminary inquiry judge does not draw factual inferences or assess credibility. A preliminary inquiry judge does not find facts.

Those tasks fall to the trial court. At most I can acknowledge that Mr. Robillo said different things at different times in his testimony on the subject of whether production of crystal meth and ecstasy occurred at the Subject Residence, and that some of what he said supports the inferences that the Crown wishes the court to draw about production. That constitutes, in my view: (a) “some evidence” of production coming from Mr.

Robillo which, alongside other evidence of production discussed above, is in the aggregate reasonably capable of supporting the inferences of guilt regarding production that the Crown will ask the trier of fact to draw against Mr. Puleo and Mr. Foisy; and (

b) a basis for a reasonable inference of production that is supportive of the Crown’s case against Mr. Puleo and Mr. Foisy On the authority of Sazand and Alexander , where there are competing inferences, I am duty bound to proceed, for purposes of determining questions of committal, on the basis of the inference that favours the Crown. [ 28 ] With respect, I cannot accept Mr. Stowe’s submission that Mr. Robillo’s answer during the focal exchange that occurred while he was under cross-examination had the effect of neutralising all of Mr. Robillo’s testimony. Viewed in the round Mr.

Robillo’s testimony admits of some nuances and subtleties and requires the careful consideration that only a trial judge can give it. The answer given during the focal exchange must be weighed and considered in context of the other, apparently conflicting, evidence that Mr. Robillo has given on the subject of whether production of crystal meth and ecstasy occurred at the Subject Residence. That kind of assessment lies almost exclusively within the province of the trial judge.

The answer given during the focal exchange does not, in my view, furnish the court with a conclusive, unequivocal, “ready-made” inference that production did not occur at the Subject Residence and, that being so, it does not stand as a full answer to the Crown’s case against Mr. Puleo and Mr. Foisy on production. Thus, as the decision of Campbell A.C.J.S.C. in Pascal makes clear, I cannot therefore look to that portion of Mr. Stowe’s cross-examination for the

purpose of determining that Mr. Puleo and Mr. Foisy should be committed to stand trial on the production charges: “The fact that Jones' testimony was somewhat eroded on cross-examination does not bear on the decision to commit him for trial, unless cross-examination provided an "answer" to the evidence. Ritchie J. in Sheppard, supra, at p. 430, disapproved Lord Parker's contention that ‘manifestly unreliable’ evidence or evidence ‘so discredited [by] cross-examination should bar committal’. This seems to implicitly acknowledge that cross-examination should not bear on the decision to commit.

The contention that cross-examination only affects the decision to commit if it provides full answer to the evidence adduced is supported in Mezzo , supra, at p. 839 .. .” ( Pascal at para. 22, emphasis added) [ 29 ] With regard to Mr. Stowe’s argument that, as an expert qualified to give opinion evidence regarding production of crystal meth and ecstasy, Mr. Robillo is the only witness qualified to testify as to whether crystal meth and ecstasy were being produced by Mr. Puleo and Mr.

Foisy as alleged in proposed counts 4 and 5, I will only say that the expert testimony supplies only the scientific pieces of a large array that consists as well of a good deal of other evidence, some of which I have summarised above, and all of which a properly instructed trier of fact would be permitted to consider. [ 30 ] I repeat that I am satisfied that the evidence placed before the court on this preliminary inquiry—in its totality, including the apparent inconsistencies pointed out by defence counsel—is evidence that, if believed, could reasonably support the inferences of guilt concerning production of crystal meth and ecstasy that the Crown wishes the trier of fact to draw against Mr.

Puleo and Mr. Foisy for the purposes of proposed counts 4 and 5. [ 31 ] Lastly, I wish to deal with Mr. Bozic’s argument that Mr. Robillo’s evidence of there being “small experiments” underway at the Subject Residence that were active and ongoing at the time of execution of the search warrant is insufficient to ground a reasonable inference of production of crystal meth and/or ecstasy. Mr. Bozic is right to say that the evidence given in this regard has its weaknesses but, bearing in mind Mr.

Robillo’s other evidence that the only substances being produced in the Subject Residence were crystal meth and ecstasy, I do not consider the Crown evidence regarding the “small experiments” to be so profoundly weak as to not be “reasonably capable of supporting the inferences [of guilt regarding production] that the Crown asks the jury to draw”: Arcuri at para. 23 . Having reached that conclusion, I understand the law to require that I leave the task of carrying out a more nuanced weighing and considering of the evidence concerning the “small experiments” to the trial judge.

CONCLUSIONS AND RULING [ 32 ] Earlier in these reasons I ruled that Mr. Puleo and Mr. Foisy are committed to stand trial on counts 1-3 of Information 81013- 2C, by consent. [ 33 ] As to proposed counts 4 and 5—the counts that allege production of crystal meth and ecstasy against both accused—I find that the Crown has tendered evidence against Mr. Puleo and Mr.

Foisy which, if unanswered and believed by a reasonable and properly instructed trier of fact, could support conviction of both accused on both new counts. [ 34 ] Therefore, I order pursuant to s. 548(2) of the Criminal Code that proposed counts 4 and 5 be endorsed on Information 81013- 2C in the terms set out in the Crown’s draft (reproduced early in these reasons) and I commit Mr. Puleo and Mr. Foisy to stand trial on counts 4 and 5 as well. [ 35 ] Order accordingly. ______________________ Thomas S. Woods, P.C.J.