COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ajise, 2018 ONCA 494

DATE: 20180530

DOCKET: C57589

Sharpe, Pardu and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David Ajise

Appellant

R. Craig Bottomley, for the appellant

Xenia Proestos, for the respondent

Heard: March 21, 2018

On appeal from the conviction entered on June 14, 2013 and
    the sentence imposed on January 10, 2014 by Justice Thomas A. Bielby of the Superior
    Court of Justice, sitting with a jury.

Sharpe J.A.:

[1]

The appellant, a tax return preparer, was
    charged on a one count indictment with fraud over $5,000 for filing false
    claims of charitable donations on behalf of his clients. The appellant did not
    dispute that he had filed hundreds of claims for charitable deductions for
    donations of used goods to a registered charity called Tractors for Daily Bread
    (Tractors) and that he had been paid by his clients a percentage of the
    amounts claimed, usually between 10 and 15%. He testified, however, that he
    believed that the claims were valid and that they had been verified by
    Tractors.

[2]

After a twelve day jury trial, the appellant was
    convicted and sentenced to 30 months in custody.

[3]

The appellant submits that the trial judge erred
    in admitting the non-expert opinion evidence of a Canada Customs and Revenue
    Agency (C.C.R.A.) investigator, and further erred in his instruction to the
    jury on the
mens rea
component of fraud and the use that could be made
    of prior inconsistent statements. The appellant also seeks leave to appeal his
    sentence.

FACTS

[4]

In 2002, the appellant, at the time a recent
    immigrant from Nigeria, took an eight week tax preparation course and started
    his own tax preparation business. He met Mr. Eto Eto, the executive director of
    Tractors. Tractors stated purpose was to collect donations in cash and in used
    goods to alleviate poverty in Africa.

[5]

Eto referred tax clients to the appellant and
    allowed the appellant to carry on his tax preparation business at Tractors
    office. The appellant also met clients at coffee shops and in his car to
    prepare their tax returns.

[6]

The appellant carried on his tax preparation
    business for the taxation years 2003, 2004 and 2005 in the name of Datronix
    Solutions, an unincorporated entity. In 2006, he involved Ayodeji Salami in his
    tax preparation business. Salami obtained his own Efiler number but acted under
    the appellants instructions.

[7]

The Crown called eleven of the appellants
    clients, and one client of Salamis, as witnesses. They testified that the
    appellant suggested that they could reduce their income tax by making donations
    in cash and in kind to Tractors. The appellant asked them to pay him 10 to 15%
    of the amount of the donation to be claimed and also charged them a fee for
    preparing their return. Over the three year period between 2003 and 2005, the
    appellant submitted 27 tax returns on behalf of those clients claiming a total
    of $223,793 in charitable donations resulting in tax refunds of $58,138. The 10
    to 15% fee charged by the appellant was typically paid from the proceeds of the
    clients tax refund as the appellant would hold their cheques until they
    received their refunds. The clients testified that they did not think that they
    were doing anything illegal, but eleven of them admitted that they had made no
    donations in kind to Tractors. The evidence of the twelfth client was very
    vague about what he had donated. All of these witnesses testified that they had
    been reassessed and had to re-pay the C.C.R.A.

[8]

The Crown also called Seeta Maraj, a C.C.R.A.
    investigator. Maraj prepared a number of detailed spread-sheets summarizing
    information obtained from documents filed with the C.C.R.A., bank documents
    obtained pursuant to a production order and documents seized pursuant to search
    warrants executed at the Tractors premises and the residences of the appellant,
    Eto and Salami. The appellants clients tax returns were found on his
    computer. The charitable receipts issued by Tractors were found on Etos
    computer. The appellant made no objection when the spreadsheets and other
    documents were introduced in evidence.

[9]

While Marajs evidence was lengthy and the
    supporting documents were voluminous, the totality of that evidence may be
    summarized as follows. The spreadsheets itemized, name by name, the claims for
    charitable donations made in income tax returns filed by the appellant on
    behalf of clients for the taxation years 2003, 2004 and 2005, and by Salami for
    the taxation year 2005. A significant number of returns claim large amounts for
    charitable donations, averaging 20 to 30% of each clients reported income.
    C.C.R.A. records indicated that the total amount of charitable donations
    claimed by the appellants clients was $842,593 in 2003, $1,801,123 in 2004, and
    $1,830,712 in 2005. Salamis clients claimed $549,028 in 2005. The refunds paid
    on account of those claims were for approximately $1,400,000.

[10]

A spreadsheet found in Etos residence listed
    $766,030 in charitable donations for the appellants clients in 2003.
    Spreadsheets for the years 2004 and 2005 linked the claimed donations by each
    client with the cancelled cheques the appellant had received for making
    charitable claims. The total amount of charitable receipts claimed was
    $1,137,255 for 2004, and $1,226,766 for the appellant and $421,436 for Salami
    for 2005. The spreadsheets showed donation receipts for the appellants clients
    found on the Tractors computer, indicating claims for donations of $951,050 in
    2004 and $998,910 in 2005. One of the documents seized was an email from the
    appellant to Eto providing a four page list giving the names of clients and the
    amounts they had claimed for charitable donations to Tractors for the year
    2005.

[11]

By contrast, Tractors reported receiving gifts
    in the amounts of $700 for 2003, zero in 2004 and $200 in 2005.

[12]

The Crown also called Salami who testified that
    he assisted the appellant in his tax preparation business for the 2005 taxation
    year.

[13]

The appellant testified in his own defence. He
    swore that he did not know that the charitable claims he filed on behalf of his
    clients were false. He relied on Eto to verify the claims, to have the donated
    goods appraised and to ensure that proper charitable receipts were filed. He
    testified that he was shocked when the C.C.R.A. investigated his clients and
    only realized that the charitable donation claims were false when he saw that
    Tractors had reported little or no charitable donations.

[14]

The appellant conceded that he had received
    payments for 10 to 15% of the charitable donations claimed and that he had not
    reported those payments on his tax returns. The appellant testified that he had
    often held his clients cheques and only cashed them after the refund was paid.
    He denied that the payments he received from clients were for fraudulent
    charitable receipts and asserted that they were by way of commission for
    soliciting charitable donations.

ISSUES

[15]

The appellant appeals his conviction on three
    grounds:

1.

That the trial judge erred by admitting
    non-expert opinion evidence from a C.C.R.A. investigator and in his jury
    instruction relating to that evidence;

2.

That the trial erred in
    his instruction on
mens rea
; and

3.

That the trial judge
    erred in his instruction relating to prior inconsistent statements.

The appellant also seeks leave to appeal
    his sentence.

ANALYSIS

1.

Opinion evidence

[16]

The appellant argues that the trial judge erred
    by admitting what amounted to opinion evidence from Seeta Maraj, the C.C.R.A.
    investigator, who was not qualified as an expert. This argument focusses on the
    evidence relating to Exhibit 12, a spreadsheet headed Tax Evaded Calculation
    Ajise (Efiler D6458& E0300 & Salami (Efiler D5913) that gives totals
    for false donation claims in returns filed by the appellant for 2003, 2004
    and 2005, and Salami for 2005. Exhibit 12 was filed towards the end of Marajs
    evidence in chief. The appellants trial counsel did not object to its
    admissibility. Exhibit 12 identified false donation claims totalling $842,
    593 in 2003, $1,801,123 in 2004 and $2,379,740 ($1,830,712 by the appellant and
    $549,028 by Salami) in 2005. Exhibit 12 also stated that $241,678 in tax was
    evaded in 2003, $493,445 in 2004 and $678,043 ($521,335 for the appellant and
    $156,708 for Salami) in 2005. These figures were derived from what the C.C.R.A.
    files showed had been claimed by way of charitable donations on the returns
    filed by the appellant and Salami

[17]

Maraj was asked to explain how you know those
    donations were false. She explained she had compared the amounts shown by the
    C.C.R.A. records with the amounts shown on the spreadsheets she had prepared
    based on what was found on Etos computer and based on the cancelled cheques the
    appellant had received. These spreadsheets set out, client by client, the
    charitable claims the clients had made for donations to Tractors. The total
    amounts from those lists were somewhat less than shown on Exhibit 12: for 2003,
    $766,030 rather than $842,593; for 2004, $1,137,255 rather than $1,801,123; and
    for 2005, $1,226,766 rather than $1,830,712. She explained that while she had
    tracked cancelled cheques, some of the payments to the appellant could have
    been in cash. She testified that the amounts were close enough to lead her to
    believe that all of the donation claims were false. The appellant submits that
    this amounted to opinion evidence that should not have been admitted as Maraj
    was not qualified as an expert.

[18]

The appellant also takes issue with Marajs
    evidence that she believed that one of the lists found on Etos computer had
    been prepared by the appellant. When asked why she thought that, Maraj
    explained that the list had personal information about the clients as well as
    filing information that would not have been available to Eto.

[19]

No objection was made to any of this evidence
    and the appellants trial counsel began her cross-examination of Maraj by
    asking: You indicated to us today that your belief that the receipts were
    false were, in effect, based on a couple of different things. Is that right?
    Maraj replied that her belief was based on two facts. First, that Tractors
    charity returns reported little or no charitable donations. Second, that while
    there were discrepancies between the amounts shown on Exhibit 12 and the
    amounts derived from the spreadsheets she prepared, the differences were not sufficiently
    large to give rise to concern. The appellants trial counsel probed Maraj on
    the significance of the discrepancies but Maraj maintained her position that
    all the claims for charitable donations filed by the appellant were false.

[20]

The appellant also submits that Crown counsel repeatedly
    invited the jury in her closing address to rely on Marajs
findings
of false charitable donation claims (emphasis added).
    The prejudice to the appellant was compounded when the trial judge in his
    instructions to the jury referenced Marajs testimony that the returns filed by
    the appellant contained false donation claims in her
opinion
 (emphasis
    added). Further exception is taken to the instruction reminding the jury of
    Marajs belief that [the appellant] prepared one of the lists of the
    donations found on Etos computer, and that [the] minimal or nil donations
    reported by Tractors confirmed for Ms. Maraj her
conclusions
that claims were false.

[21]

The Crown argues that Marajs evidence was
    factual in nature and that there was no need to qualify her as an expert. The
    Crown also submits that as the appellants trial counsel did not object to the
    evidence impugned on appeal, the argument that it should be ruled inadmissible
    on appeal should not be entertained.

[22]

I am not persuaded that the admission or
    treatment of Marajs evidence at trial amounts to a reversible error for the
    following reasons.

[23]

First, Maraj is properly characterized by the Crown as a fact
    witness, called to explain how she had assembled and summarized a large volume
    of documentary evidence relating to the income tax returns filed by the
    appellant. It was only at the end of her evidence in chief, when Exhibit 12 was
    introduced, that she was asked to explain why she believed all the charitable
    claims filed by the appellants clients were false. When asked that question,
    she simply explained what the records showed. Maraj was doing nothing more than
    explaining her sources and her methodology in a way that would allow the jury to
    understand and to assess the numbers on Exhibit 12. The lists from Etos
    computer, the list on the appellants computer, and the compilation derived
    from the cancelled cheques demonstrated that a very large number of the
    appellants clients had submitted substantial claims for charitable donations
    to Tractors representing a disproportionate part of their income. The records
    showed that the appellant had been directly paid 10 to 15% of the amounts
    claimed by way of donation and that Tractors had reported receipt of virtually
    no charitable donations. While the total of the itemized, client by client
    lists of Tractors donations was less than the total showed by C.C.R.A. records
    for all returns filed by the appellant, Maraj testified that they were close
    enough to lead her to believe that all the charitable claims the appellant filed
    were false, which is why she included them in the false donation column on
    Exhibit 12. While it might have been preferable had Maraj not been asked to
    formulate her summary of the evidence she found in terms of her belief, and had
    the trial judge not referred to her opinion in his instructions, it remains
    that Marajs evidence was essentially factual in nature. It was entirely proper
    for her to explain to the jury the nature of the calculations she had made and
    the source data she used to compile Exhibit 12, which was an admissible
demonstrative
    aid designed to summarize the properly admitted evidence and to assist the
    jury in understanding the entire picture presented by voluminous documentary
    evidence:
R v. Scheel
(1979), 42 C.C.C. (2d) 31, at p. 34 (Ont.
    C.A.);
Kon Construction Ltd. v. Terranova Developments Ltd.
, 2015 ABCA
    249, 20 Alta L.R. (6th) 85, at para. 46. As with the summaries in
Scheel
,
    the usefulness of Exhibit 12 depended entirelyupon the acceptance by the jury
    of the proof of the facts upon which [it was] based:
Scheel
, at p. 34
    . The jury was in a position to assess for itself the worth of Marajs
    explanation for her calculations as they did not rest on or draw its force from
    any specialized or technical skill or knowledge: see
R. v. Hamilton
,
    2011 ONCA 399, 271 C.C.C. (3d) 208, at para. 277.

[24]

Maraj explained how she had compiled the
    spreadsheets and what her background sources were. Marajs calculations were
    explained and her reasons for labelling the donations false were fully
    explored by defence counsel and exposed in a way that could be assessed by the
    jury as a matter of logic and common sense. Even if not every dollar of the
    $5,023,456 shown on Exhibit 12 was nailed down as being a Tractors donation,
    it was open to a trier of fact to infer that false claims comprised a
    significant portion of that total. The background sources were available for
    the jurys consideration. In her closing address, Crown counsel encouraged the
    jury to consider those sources. The trial judge also referred to the background
    sources in reviewing the evidence during his charge to the jury. The jury was
    also instructed that they could accept all, some or none of the evidence.

[25]

Marajs statement that she believed that the
    appellant was the source of one of the lists found on Etos computer has to be
    read in context. The evidence showed that the appellant had sent lists to Eto
    and, as Maraj explained, the list at issue contained information to which the
    appellant was privy and Eto was not. The question was one of fact upon which a
    non-expert witness could properly express a view: see
R. v. Graat,

[1982]
    2 S.C.R. 819, at pp. 835-839.

[26]

Second, the appellant did not object to this
    evidence at trial. The Crown suggests that this could have been a tactical
    decision as the alternative might have been to face the direct evidence of more
    of the appellants clients. Related to the failure to object is the manner in
    which the appellants trial counsel cross-examined Maraj, effectively accepting
    and joining issue with the manner in which Marajs evidence had been led. The
    appellants trial counsel was content to allow Maraj to testify as to her
    belief and then to challenge that belief on cross-examination.

[27]

The lack of objection, the way Maraj was
    cross-examined and the use of Marajs evidence during closing submissions suggests
    that Marajs evidence was not impermissible opinion evidence prejudicial to the
    position of the appellant:
R. v. Daley,
2007
    SCC 53, [2007] 3 S.C.R. 53, at para. 58;
R. v. Potts
, 2018 ONCA 294, at paras. 17, 55.

[28]

The third and related reason that leads me to
    reject this argument is how Marajs evidence relates to the substance of the
    defence advanced by the appellant. The appellant did not seriously challenge
    the contention that his clients had made false charitable donations. His
    defence was that he believed that the donations were valid and that he had
    relied on Eto to verify the donations before authorizing charitable receipts.
    Marajs evidence went to the
actus reus
of the fraud  whether false
    claims were made and in what amount. The appellants defence was that he did
    not know that the claims were false and that he lacked the
mens rea
to
    commit fraud.

[29]

Indeed, defence counsels closing address
    demonstrates that the appellant may well have wanted Marajs evidence admitted.
    He relied upon this evidence to advance the proposition that he was an
    unwitting dupe in a fraudulent scheme. As defence counsel submitted in her closing
    submissions, if he had known about the fraud, he would have taken some steps to
    cover his tracks. According to counsel, the obvious nature of the fraud
    demonstrated that the appellant did not know he was unwittingly involved in a
    fraudulent scheme:

And David Ajise, this really smart guy, this mastermind behind this
    scheme risks all of the things Ive just mentioned to you, to engage in a
    fraudulent scheme and then he makes sure to make it as obvious as possible.
    Lets just make it as obvious as possible and leave a clear paper trail leading
    to me.

Youve heard the evidence  when hes submitting these  these tax
    returns on behalf of clients, hes using his own Efile in each of the years, to
    ensure that the Canada Revenue Agency can trace back each of these returns to
    him. Let  lets just engage in a fraudulent scheme, lets plan it, lets
    intend it, but then make it as obvious as possible, so the CRA can trace it all
    back to me.

If this was not a legitimate scheme, I put to you again that Mr.
    Ajise would have warned people or signaled to people that this was not
    legitimate  theres other ways of filing.  Why make it so obvious? It just
    doesnt make any sense.

Why send these
    spreadsheets to Mr. Eto Eto ? Well the point of the spreadsheets is because
    Mr. David Ajise genuinely believed that Mr. Eto was following on the donations.

[30]

The nature of the appellants defence
    distinguishes this case from the cases relied upon by the appellant;
R. v.
    Sekhon
, 2014 SCC 15, [2014] 1 S.C.R. 272 and
R. v. Lewis
, 2012
    ONCA 388, 284 C.C.C. (3d) 423.
Sekhon
was a drug importation case. The
    accused denied knowledge that the truck he was driving had a concealed
    compartment containing cocaine. The Supreme Court held that the trial judge
    erred by admitting the evidence of a police officer, who had been qualified as
    an expert, that he had never encountered a blind courier. The Court held that
    this was purely anecdotal evidence that lacked relevance and probative value
    and that did not qualify as expert evidence.
Lewis
was also a drug
    importation case where the accused denied knowledge of the drugs. A Border
    Services Inspector who had not been qualified as an expert testified that short
    notice ticketing and cash payment were strong indicators of a drug courier. This
    court held that there was danger that the jury would clothe the Inspectors
    evidence with an aura of authority that it did not deserve. In both cases, the
    impugned evidence went to the heart of the accuseds defence.

[31]

Sekhon
and
Lewis
both involved challenges to the evidence of inspectors and police officers
    testifying, in effect, that the accused is guilty and clothing that opinion
    with an aura of expertise. In both cases, the key issue was whether the accused
    knew that he was carrying drugs and in both cases, the impugned evidence denied
    the validity of that defence. Marajs evidence does not fall into that
    forbidden category. Her evidence was limited to the issue of whether false
    donation claims had been filed and, as I have found, she was entitled to give
    that evidence. She said nothing about the appellants defence of lack of
    knowledge that the claims were false and the risk posed by the improper
    evidence in
Sekhon
and
Lewis
was not present in this case.

[32]

Finally, I note
    that in her dissenting reasons, my colleague Pardu J.A. places considerable
    emphasis on the suggestion that to succeed on this ground, the respondent must
    rely on the
curative proviso
but is precluded from doing so as that argument was not explicitly
    made in either oral or written submissions. I agree that no explicit reference
    was made to s. 686(1)(b)(iii) of the
Criminal
    Code
. However, even
    assuming that resort to the proviso is required in this case, it is my view
    that the substance of the proviso point was raised. In her submissions before
    this court, Crown counsel placed considerable reliance upon the argument that the
    defence effectively conceded at trial that the donation claims were fraudulent
    and instead relied entirely on the appellants claim that he lacked knowledge
    of the fraud. On this basis, the Crown argued that even if the impugned
    evidence amounted to opinion evidence, it did not go to the only live issue at
    trial. The Crown also noted that Marajs impugned statements comprised a small
    portion of the evidence advanced during a multi-day trial, and were admitted
    without objection by defence counsel. In my view, these lines of argument
    amounted in substance to a submission that even if there was an error in
    admitting the evidence or in failing to conduct a
voir dire
,
    no substantial wrong or miscarriage of justice had occurred and the appeal
    should be dismissed on that account. As the substance of that point was
    addressed and fully argued before this court, the failure to specifically
    reference s. 686(1)(b)(iii) should not be fatal.

[33]

Accordingly, I would not give effect to this
    ground of appeal.

2.

Instruction on
mens rea

[34]

The appellant takes issue with the trial judges
    jury instruction on the
mens rea
required for fraud. The trial judge
    instructed the jury that if they were satisfied beyond a reasonable doubt that
    the government had suffered a deprivation caused by deceit, falsehood or other
    fraudulent means, they were to go to the next question:

[D]id [the appellant] intend to defraud the
    Government of Canada. This element relates to [the appellants] state of mind at
    the time he deprived the Government of Canada or allegedly deprived the
    Government of Canada of tax revenue by deceit, falsehood or other fraudulent
    means.

To prove this essential element Crown counsel
    must satisfy you beyond a reasonable doubt that [the appellant] meant to say
    and/or to do those things that amount to deceit, falsehood or other fraudulent
    means and that he knew that saying and/or doing them to put at risk the
    economic (financial) interests of the Government of Canada.
It does
    not matter whether [the appellant] thought that what they were saying and or
    doing was not dishonest or thought that neither the government nor or anyone
    else would suffer harm in the end as a result.
[Emphasis Added.]

[35]

The appellant takes issue with the italicized
    passage and argues that it effectively took away his defence of lack of
    knowledge that the charitable claims were false.

[36]

After the charge was delivered, the jury asked a
    question stating that as the appellant put so much trust in Mr. Eto they
    would like to have the last fifteen minutes of the appellants
    cross-examination played back. That request was granted. The portion of the
    cross-examination focused on how the fees were collected, recorded and divided
    with Eto and another individual, the due diligence required of a tax filer, and
    how the appellant had relied upon Eto to have donated goods appraised and
    proper receipts issued. The jurys question, according to the appellant, proved
    that they had been misled by the jury instructions as to the
mens
    rea
required for fraud.

[37]

The Crown points out that the judges
    instruction on state of mind tracks
Watts Manual of Criminal Jury
    Instructions
, 2d ed. (Toronto: Thomson
    Reuters Canada Limited, 2015),
and that the impugned passage is
    derived from the Supreme Court of Canadas decision in
R. v. Théroux
,
    [1993] 2 S.C.R. 5. The Crown further submits that when the instruction is read
    as a whole, it would have been clear to the jury that in order to convict the
    appellant, they had to be satisfied that he knew that the tax returns were
    false.

[38]

Théroux
, the
    source for the impugned passage, involved a developer who assured purchasers
    that their deposits were insured. This claim was false, the developers company
    went bankrupt, residences were not built, and there was no insurance to protect
    the purchasers who lost their deposits. The appellant was charged with fraud. McLachlin
    J. posed the issue to be resolved as follows, at p. 14:

There is no doubt that the appellant deliberately practised a
    deceitful act, constituting the
actus reus
of the offence of
    fraud.  The issue is whether the fact that he honestly believed that the
    projects would be completed negates the guilty mind or
mens rea
of the
    offence.  This requires this Court to examine the question of what
    constitutes the
mens rea
for the offence of fraud.

[39]

At p. 19, McLachlin J. applied to fraud the
    traditional criminal law principle that the mental state necessary to the
    offence must be determined by reference to the external acts which constitute
    the
actus
of the offence This means that the fact that the accused
    may have hoped the deprivation would not take place, or may have felt that
    there was nothing wrong with what he or she was doing, provides no defence.
    Once the
actus reus
is made out,
Théroux
holds that it need
    only be determined that an accused knowingly undertook the acts in question,
    aware that deprivation, or risk of deprivation, could follow as a likely
    consequence: see pp. 19-20.

[40]

The fact that the developer honestly believed at
    the time he made the representation that the houses would be built provided no
    defence. He had knowingly made a false statement to induce the buyers to enter
    contracts and provide their deposits and he therefore had the
mens rea
for
    fraud.

[41]

I agree with the appellant to this extent: on
    the facts of this case, it was not strictly necessary to include the impugned
    passage. Neither the Crown nor the defence suggested that the appellant hoped
    for an outcome that would not result in loss to the government. The instruction
    would have been adequate without the impugned passage.

[42]

However, for the following reasons, I do not
    agree that including this sentence deprived the appellant of his defence of
    mistaken belief.

[43]

I am satisfied that when the instruction is read
    as a whole, it was made apparent to the jury that they had to be satisfied
    beyond a reasonable doubt that the appellant knew that he was submitting false
    charitable donation claims. The jury were instructed that the Crown had to
    prove beyond a reasonable doubt that [the appellant] intended to defraud the
    government of Canada and to acquit if the Crown failed

to prove beyond a reasonable doubt that he intended to
    deprive the Government of Canada of tax revenue. The judge fairly outlined the
    appellants evidence that he believed that the donations were valid and the
    jury would have understood that any doubt on the point of the appellants
    knowledge of the falsity of the donations had to result in acquittal. A
R.
    v. W.(D.)
caution was given and the jury were instructed:

[I]f you believe [the appellants] evidence
    and accept it as true, that he did not intentionally defraud the Government of
    Canada, you must find him not guilty of the offence. Even if you do not believe
    his evidence, if it leaves you with a reasonable doubt about the crime as Ive
    defined it, you must find him not guilty of the offence.

[44]

I am not persuaded that the arguably
    unnecessary inclusion of the one sentence mandated by
Théroux
distorted or detracted from the essential point made clear by the balance of
    the instruction, namely, that the Crown had to prove beyond a reasonable doubt
    that the appellant knew that the charitable donation claims were false.

[45]

Second, the draft charge was vetted with
    counsel. Mid-way through the instruction and during a break, the appellants
    trial counsel expressed concern about the
mens rea
instruction, but
    did not object to the passage challenged on appeal. The trial judge considered
    her objection and agreed to add the following:

[T]he real issue to be determined is whether [the
    appellant] knowingly participated in the scheme, claiming for his clients
    donations he knew were not made and profiting from the scheme by taking a share
    of ten to 15 percent of the monies collected.

[46]

Counsel indicated that the addition satisfied
    her concerns on
mens rea
and made no further objection.

[47]

Accordingly, I would not give effect to this
    ground of appeal.

3.

Instruction on prior inconsistent
    statements

[48]

The appellant submits that the trial judge erred
    by failing to instruct the jury that if a witness adopted a prior inconsistent
    statement as true, the jury could use those prior inconsistent statements for
    their truth.

[49]

In my view, there is no merit to this ground of
    appeal for the simple reason that neither of the two Crown witnesses identified
    by the appellant adopted their prior inconsistent statements as true. Monique
    Robinson, one of the appellants former clients, had told investigators that
    goods were donated to Tractors, but testified at trial that she was mistaken as
    her husband had explained that the goods were given to a friend. Clive Williams,
    another former client of the appellants, told the investigator that he had
    donated old furniture to Tractors and while attempt was made to have him adopt
    that statement on cross examination, he did not do so.

4.

Sentence appeal

[50]

The trial judge gave detailed reasons for sentencing
    the appellant to 30 months in custody. He noted that the appellant has a family
    of three children, many positive references from his friends, church and
    community and that the appellant would face deportation without a right of
    appeal if sentenced to six months imprisonment or more. The appellant had a
    prior and dated conviction for fraud but had received a pardon for that
    offence. The trial judge reviewed the case law and determined that a sentence
    of 30 months custody was appropriate.

[51]

The sole ground for the sentence appeal is that
    even if the conviction is upheld on the basis of the evidence of the
    appellants clients, it is still open to this Court to find that the trial
    judge erred in relying on Marajs evidence to conclude that the amount involved
    in the fraud was in the $1 million range. The sentence should therefore be
    reduced to 6 months less a day.

[52]

It was only at the sentencing stage that the
    appellant raised any issue as to the fact that Maraj had not been qualified as
    an expert. The trial judge dismissed that objection, holding that it was not
    necessary to qualify her as an expert as she had simply [re]ported on her
    findings and her evidence as to the total amounts in issue was not seriously
    challenged. The trial judge added that there was no need to call all of the appellants
    clients who had claimed false donations, since [a] sampling was sufficient to
    prove the fraud and he was satisfied that it had a value of over $1 million.

[53]

It is not necessary to repeat here what has
    already been said in relation to the conviction appeal as to the magnitude of
    this fraud. Simply put, I am satisfied that the trial judge did not err in
    finding that when the
viva voce
evidence of the appellants clients is
    considered together with the documentary evidence, the Crown did prove fraud in
    the range of $1 million. Even if one were to reject the Crowns contention that
all
of the charitable donations claimed in returns filed by the
    appellant were false donations, the Crown established that the appellant
    submitted a very large volume of claims for charitable donations to Tractors on
    behalf of his clients and that the appellant had been paid 10 to 15% for each
    of those claimed donations.

[54]

Further, the trial judge took into account the
    immigration consequences of the sentence he imposed and a term of imprisonment
    of more than 6 months was very much in line with the principles enunciated by
    this Court in
R. v. Leo-Mensah,
2010 ONCA 139, 101 O.R. (3d) 366.

[55]

I would grant leave to appeal the sentence but
    dismiss the sentence appeal.

DISPOSITION

[56]

For these reasons, I would dismiss the appeal
    from conviction, grant leave to appeal sentence but dismiss the sentence
    appeal.

Robert
    J. Sharpe J.A.

I
    agree Fairburn J.A.

Pardu J.A. (Dissenting):

[57]

The appellant or his agent prepared and filed
    hundreds of tax returns in 2003, 2004 and 2005. The taxpayers claimed they had
    made charitable donations of $5,023,456 to Tractors for Daily Bread
    (Tractors). A Canada Customs and Revenue Agency (C.C.R.A.) investigator, Seeta
    Maraj, who was trained as a general accountant, testified that in her opinion
    all of the donation claims were false, resulting in tax evaded of
$1,413,166.
There was no ruling, however, allowing her to give
    opinion evidence. She based her opinion that the charitable donations were
    false on two essential bases:

1.

The Tractors charitable
    returns reported only nominal amounts of tax receipted gifts.

2.

The donations claimed by the taxpayers were
    disproportionately large compared to their incomes.

[58]

The differences between the returns filed by the
    appellant and those filed by Tractors do not in and of themselves lead to the
    inference that the appellant filed false returns. Either the appellant or
    Tractors or both could have filed false returns.

[59]

The appellants defence was that to his
    knowledge, the donation claims were valid, and that he did not know that
    charitable donations were not in fact made to Tractors, and did not know that
    the donation receipts issued by Tractors were false. There were some appraisals
    establishing the value of goods donated to Tractors.

[60]

Maraj had no personal knowledge as to whether
    the taxpayers had really donated money or goods to Tractors. She began her
    evidence by explaining charts that organized data she had retrieved from the
    tax returns prepared by the appellant, Tractors donation records, bank records
    of the appellant, and computer records. I agree that this was factual
    information not requiring a
voir dire
. Partway
    through her examination in chief, however, rather than eliciting the factual
    information collected, the Crown began to ask leading questions as to the
    nature of the donations:

First of all I
    just want to be clear, the  the amounts of   in total false donations
    claimed, as well as the total tax evaded due to false donations that you just
    mentioned.those amounts can be found at Tab 7 and 8 of the trial book.

[61]

This theme was repeated in many questions and
    answers that followed. In her examination in chief, Maraj went on to testify
    how she came to her opinion that the donations were false. She had interviewed
    several taxpayers who told her that they had not dealt with Tractors
    themselves. In cross examination, she explained that although there were some
    discrepancies between the donation amounts claimed and the amounts indicated on
    the spreadsheets she prepared as part of her investigation, the differences
    were not sufficiently large to give rise to concern. Marajs estimation of the
    total donation amounts claimed was off by roughly $600,000 but Maraj testified
    she could still conclude that the charitable donation claims were false, particularly
    given that the donations claimed were large in relation to the taxpayers
    reported net income for 2004, for example.

[62]

Crown counsel repeatedly invited the jury in her
    closing address to rely on Marajs
findings
of
    false charitable donation claims (emphasis added). In his instructions to the
    jury, the trial judge referenced Marajs
opinion
 and
belief
(emphasis added) and
    reminded the jury that the evidence confirmed Marajs
conclusions
(emphasis added) that the claims were false.

[63]

The
    opinion evidence of non-expert witnesses, or lay opinion evidence, is generally
    inadmissible. In
R. v. D. (D.)
, 2000 SCC 43, [2000] 2 S.C.R. 275, at
    para. 49, the Supreme Court of Canada summarized this long-standing
    exclusionary rule:

A basic tenet of our law is that
    the usual witness may not give opinion evidence, but testify only to facts
    within his knowledge, observation and experience. This is a commendable
    principle since it is the task of the fact finder, whether a jury or judge
    alone, to decide what secondary inferences are to be drawn from the facts
    proved.

[64]

While
    the history of the lay opinion evidence rule has been fraught with ambiguities,
    in Alan W. Bryant, Sidney N. Lederman & Michelle K. Fuersts,
The Law
    of Evidence in Canada
, 5th ed. (Toronto: LexisNexis, 2018), at p. 820, its
    receivability is described in these terms:

Courts now have greater freedom to
    receive lay witnesses opinions if: (1) the witness
has
    personal knowledge of the observed facts
; (2) the witness is in a better
    position than the trier of fact to draw the inference; (3) the witness has the
    necessary experiential capacity to draw the inference, that is, form the
    opinion; and (4) the opinion is a compendious mode of speaking and the witness
    could not as accurately, adequately and with reasonable facility describe the
    facts she or he is testifying about. But as such evidence approaches the
    central issues that the courts must decide, one can still expect an insistence
    that the witnesses stick to the primary facts and refrain from giving their
    inferences. It is always a matter of degree. As the testimony shades towards a
    legal conclusion, resistance to admissibility develops. [Emphasis added.]

[65]

Although the distinction between fact and opinion evidence may be
    tenuous,
in
R. v. Graat
, [1982] 2 S.C.R. 819, at paras. 51-52,
    the Supreme Court suggests that non-expert opinion evidence is inadmissible
    unless: (1) by permitting the lay witness to testify in the form of an opinion,
    the witness is able more accurately to express the facts he or she perceived or
    (2) the facts from which a witness received an impression were too evanescent
    in their nature to be recollected or too complicated to be separately and
    distinctly narrated.

[66]

The court stated, at para. 47, that
[e]xcept for the sake of
    convenience there is little, if any, virtue in any distinction resting on the
    tenuous, and frequently false, antithesis between fact and opinion. The line
    between fact and opinion is not clear.

[67]

Academics
    have made the same observation, for example, as described by S. Casey Hill,
    David M. Tanovich and Louis P. Strezos in
McWilliams Canadian Criminal
    Evidence,
5th ed. (Toronto: Thomson Reuters, 2017), at p. 12-9:

Whatever the distinctions in
    justification for the admission of a compendious statement of fact and opinion
    where the facts are too subtle or complicated to be narrated separately and
    distinctly, the lay witness exception to the opinion evidence exclusionary rule
    requires the witnesss personal or direct acquaintance with the particular
    subject-matter and therefore some assurance of competence in source of
    knowledge. As well, the witness must have incidentally drawn inferences from
    observed data necessarily expressible in only abbreviated or conclusory form as
    opposed to a narration of individual factual observations or perceptions.

[68]

In
Ganges Kangro Properties Ltd. v. Shepard,
2015 BCCA 522, 51 C.L.R.
    (4th) 1, at para. 76 the court makes clear that the compendious statement of
    facts exception is limited to inferences drawn by non-expert witnesses who have
    personally observed the facts from which their inferences are drawn.

[69]

In
    this case, Maraj (1) did not have personal knowledge of the observed facts
    rather, she was asked to formulate her summary of the evidence in terms of her
    belief; (2) was in no better position than the jury to draw inferences from the
    evidence of the 12 taxpayers who testified combined with the raw data she
    collected; (3) had the experiential capacity to draw the inference  however,
    this is precisely what made the statement increasingly prejudicial; and (4)
    could have described the facts without testifying to the central question at
    issue. I am not persuaded that the jurors would inevitably have come to a
    conclusion of guilt absent her evidence.

[70]

As
    pointed out by Strathy C.J.O. in
Meady v. Greyhound Canada Transportation
    Corp.
, 2015 ONCA 6,
329 O.A.C. 173, at para. 37:

There has been
    growing recognition of the responsibility of the trial judge to exercise a more
    robust gatekeeper role in the admission of expert evidence  see: Lisa
    Dufraimont, New Challenges for the Gatekeeper: The Evolving Law on Expert
    Evidence in Criminal Cases (2012) 58 C.L.Q. 531; and
Report of the
    Inquiry into Pediatric Forensic Pathology in Ontario
(Toronto:
    Queens Printer for Ontario, 2008), vol. 3, c. 18: Role of the Court. This
    observation holds true for both civil and criminal contexts. Although much of
    the discussion has focused on increasing scrutiny of threshold reliability at
    the gatekeeper stage, it is equally important to ensure the evidence is
    genuinely necessary.

[71]

Here, it is difficult to see how the opinion evidence was necessary,
    but for the Crowns failure to call anyone from Tractors.
The appellant
    testified he did not know that charitable donations were not made, and the
    Crown did not call the director of Tractors with whom the appellant dealt.
    Proof that the charitable donations were not made was essential to the Crowns
    case.

[72]

Marajs opinion that the charitable donations
    claimed were false was expert evidence that required a
voir dire
to determine its admissibility.

[73]

The trial judge erred in failing to conduct a
voir
    dire
to make this determination or else, in failing to
    exclude the evidence absent a ruling.

[74]

I acknowledge that defence counsel failed to
    object to the admission of the evidence. On this record, however, I cannot
    conclude that defence counsels failure to object amounted to recognition that
    the evidence would likely be admitted following a
voir dire
, was inadvertent, or tactical. If there was agreement, that should
    have been noted for the record. I also agree that by the end of the trial,
    defence counsel focused on the mental element of the offence, knowledge.

[75]

As indicated earlier, I agree that the jury
    could have drawn inferences about fraud, in respect of the returns filed by the
    appellant on behalf of the taxpayers who testified, from the summarized raw
    data submitted, together with the evidence of those taxpayers, without Marajs opinion
    evidence. However, I am not certain that they would have done so without the
    weight of the opinion evidence and the resulting affirmation that all 442 tax
    returns contained false charitable donation receipts.

[76]

Had the trial judge admitted Marajs evidence as
    opinion evidence, he would have instructed the jury as to the significance of
    factual assumptions underlying her opinion, notably, the assumption that
    Tractors returns were correct.  The jury was concerned about this issue, and
    asked a question about the trust the appellant placed in Tractors.

[77]

The majority relies upon the absence of any
    substantial wrong or miscarriage of justice to dismiss the appeal, in the event
    the judge erred in admitting this evidence.

[78]

I would not apply the proviso for two reasons.

[79]

The Crown did not invoke the proviso in
    either its factum or in oral argument. The proviso is embodied in s. 686 (1)
    (a) (ii) and s. 686 (1) (b) (iii) of the
Criminal Code,
R.S.C.,
    1985, c. C-46
for errors of law. Even if a trial judge has
    made a wrong decision on a question of law, the court may dismiss an appeal if
    it is of the opinion that no substantial wrong or miscarriage of justice has
    occurred.

[80]

This court has held that it should not invoke
    the proviso on its own motion:
R. v. P.G.
,
    2017 ONCA 351,

138 O.R. (3d) 343
, at paras. 13-15. The Crowns oral and written argument on appeal
    was that Marajs opinions amounted to factual evidence for which a
voir
    dire
was not required, and that no error was committed by
    the trial judge in admitting this evidence without a
voir dire
.  I would not infer from this argument that the Crowns position
    was also that even if there was an error, no substantial wrong or miscarriage
    of justice resulted, particularly since the Crown did not address an essential
    element of the test for application of the proviso, whether the jury verdict
    would have necessarily been the same, absent the legal error:
R. v.
    Mahoney,
[1982] 1 S.C.R. 834, at para. 17.

[81]

Secondly, I am not satisfied that the verdict
    would have necessarily been the same, but for the error in admitting the
    opinion evidence.  This test is applied strictly, as noted in
Mahoney
, at para. 18: [i]t is abundantly clear, in my view, that the
    discretion involved in its application is narrowly limited by statute to cases
    where the court of appeal has found an error or errors of law at trial, and its
    exercise depends upon the application of the strict legal test affirmed in the
authorities and firmly imbedded in the
    law.

[82]

The rigor of the test
    for application of the proviso was highlighted by Epstein J.A. in
R.
    v. Brown
,
2018 ONCA 481,
at paras. 75-76 as follows:

First, use of the curative proviso is appropriate where the
    error at first instance is harmless or trivial:
Sekhon
, at para. 53.
    The overriding question guiding this inquiry is whether the error on its face
    or in its effect was so minor, so irrelevant to the ultimate issue in the
    trial, or so clearly non-prejudicial, that any reasonable judge or jury could
    not possibly have rendered a different verdict if the error had not been made:
R. v. Van
, 2009 SCC 22, [2009] S.C.R. 22, at para. 35. When a case
    involves multiple errors at first instance, the cumulative impact of those
    errors can be relevant to determining whether the harmless or trivial test is
    satisfied:
R. v. Bomberry
, 2010 ONCA 542, 258 C.C.C. (3d) 117, at
    para. 79;
R. v. Hill
, 2015 ONCA 616, 23 C.R. (7th) 224, at para. 102.

The curative proviso may also be applied in cases involving
    more serious errors, where the evidence is so overwhelming that a reasonable
    and properly instructed jury would inevitably convict:
Sekhon
, at
    para. 53;
Van
, at para. 36. This inquiry does not turn on the gravity
    of the trial judges errors, but on the strength of the Crowns case.
    Overwhelming evidence has been described as a high standard, and
    substantially higher than the requirement that the Crown prove its case
    beyond a reasonable doubt at trial:
R. v. Trochym
, 2007 SCC 6,
    [2007] 1 S.C.R. 239, at para. 82. These onerous thresholds flow from the
    difficulties appellate courts inevitably face in evaluating the strength of
    the Crown's case retroactively, without the benefit of hearing the witnesses'
    testimony and experiencing the trial as it unfolded:
Van
, at para.
    36. Accordingly, any measure of doubt concerning the strength of the Crowns
    case should enure to the benefit of the appellant.

[83]

The consequences of a
    criminal conviction may be catastrophic. Where there is legal error, unless the
    court is satisfied that the verdict would necessarily have been the same, the
    proviso
cannot be applied to uphold the conviction.

[84]

Here, I am not convinced that the jury would
    have rendered the same verdict, absent the opinion evidence of Maraj. The
    appellants credibility in the eyes of the jury may have suffered when weighed
    against that of an apparent expert. It is arguable that the evidence was not
    necessary and would not have met the test for admissibility of expert opinion
    evidence.

[85]

I would accordingly allow the appeal and direct
    a new trial. I need not address the other arguments advanced on appeal.

Released:
    May 30, 2018

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Al Ubeidi, 2018 ONCA 463

DATE: 20180516

DOCKET: C62513

MacFarland, Watt and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Jimy Salman Al Ubeidi

Respondent

Howard Piafsky, for the appellant

Evan Weber, for the respondent

Heard and released orally: May 14, 2018

On appeal from the acquittal entered on July 18, 2016 by
    Justice Micheline A. Rawlins of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

This was a strong circumstantial case for the Crown. The trial judge
    concluded her reasons by stating:

I cannot find, absent forensic evidence connecting the accused
    to the illicit items in the safe, that the accused had the requisite knowledge
    of the presence of drugs. He will therefore be found not guilty.

[2]

This was a case of constructive possession. The trial judge seems not to
    have appreciated that in such a case there can be a conviction based on
    circumstantial evidence, and forensic evidence in such a case is not required.
    This is an error of law and in the circumstances, there must be a new trial.

[3]

The appeal is allowed, the acquittal is set aside and a new trial is ordered.

J. MacFarland J.A.

David Watt J.A.

David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brown, 2018 ONCA 481

DATE: 20180524

DOCKET: C60764

Epstein, Paciocco and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Meshach Brown

Appellant

Richard Litkowski and Jessica Zita, for the appellant

Shawn Porter, for the respondent

Heard: November 27, 2017

On appeal from the convictions
    entered on October 29, 2014, and the sentence imposed on December 18, 2014, by
    Justice Michael R. Dambrot of the Superior Court of Justice, sitting with a
    jury.

Epstein J.A.:

[1]

After a two-week trial by judge and jury, the appellant
    was convicted of various possession offences under the
Criminal Code
,
R.S.C. 1985, c. C-46
and the
Controlled
    Drugs and Substances Act
, S.C. 1996, c. 19. He was
    sentenced to nine years and three months imprisonment, after receiving three
    months credit for pre-trial custody.

[2]

The appellant appeals both conviction and
    sentence.

BACKGROUND

The Arrest, Search and Related Charges

[3]

In July 2011, two visitors to Toronto were robbed
    in their hotel room. Police made a number of arrests in connection with the
    robbery and obtained warrants for suspects who were identified but could not be
    located. The appellant was one of the suspects. In August 2012, police obtained
    a tracking warrant and assistance order for two cell phones they believed
    belonged to the appellant and traced them to a home in Brampton. Police set up
    surveillance on that location.

[4]

In September 2012, the appellant was observed
    briefly emerging from the residence under surveillance and then re-entering the
    premises. He was arrested later that day after leaving the house. Following the
    arrest, the police seized a cellphone from the appellant and performed a
    cursory examination of the device. Pending the issuance of a search warrant,
    the police entered and secured the residence. Once inside, they learned that it
    belonged to the appellants common law spouse, Melissa Edwards, who was also a
    suspect in the robbery.
[1]
The police then obtained a telewarrant to search Ms. Edwards house for
    evidence connected to the robbery. In the ITO the premises was identified as
    the residence of both the appellant and Ms. Edwards.

[5]

During the execution of the warrant, the police found the
    following items in Ms. Edwards bedroom: (i) a loaded TEC-9 machine pistol (the
    Gun) with a high capacity magazine containing eight 9mm rounds of ammunition;
    (ii) further ammunition; (iii) an ounce of crack cocaine; (iv) $750 in cash;
    (v) a digital scale; (vi) dime bags; (vii) several cell phones; (viii) a white
    T-shirt believed to have been worn by the appellant during the hotel robbery;
    and (ix) an Ontario health card in the appellants name with his photograph on
    it (collectively, the Disputed Items).

[6]

Pursuant to a second search warrant, issued a few months after
    the initial search, the police conducted a forensic examination of the
    appellants cell phone. The examination yielded four photographs of a firearm
    resembling the Gun
(the Photographs).

[7]

Based on the Disputed Items and the Photographs,
    the appellant was charged with various offences including possession of a
    loaded prohibited firearm without a license, with an overcapacity magazine, and
    with a defaced serial number, possession of cocaine for the purpose of trafficking,
    and possession of the proceeds of crime.

The Pre-trial Motions and Evidence at Trial

[8]

The appellant brought a number of pre-trial
    motions to exclude the Disputed Items and the Photographs.

[9]

The trial judge found that the manner of the police entry and
    freezing of Ms. Edwards home without a warrant breached s.
8 of the
Charter
. Specifically
, he concluded that there was no
    evidence demonstrating that the police knew the appellant actually resided in
    the home before conducting the search  all they knew was that the appellant
    had been in the premises for a three-hour period that day. This information, in
    the trial judges view, was insufficient to ground a reasonable belief that the
    appellants possessions, or any evidence connected to the robbery, would be
    found in the residence.

[10]

Further, the trial judge concluded that after excising the fruits
    of the warrantless search of the residence, the police had no basis to
believe
any
of
    the
robbers lived at the residence or that the appellant had a
    sufficient connection to the premises to ground a belief that any evidence
    connected to the robbery was there. Accordingly, the search of the
home
pursuant to the
warrant also violated s. 8. Both breaches stemmed from a single common cause
    the absence of sufficient evidence to justify the conclusion that the evidence
    sought was likely to be found at Ms. Edwards residence.

[11]

However, the trial judge declined to exclude the Disputed Items
    under s. 24(2). He found the officers conduct to have been exemplary and the
    errors that resulted in s. 8 violations flowed from exigent circumstances. He
    concluded that the Disputed Items were properly admissible after balancing the
    factors identified in
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353.

[12]

The trial judge next considered the appellants motion to exclude
    the Photographs  evidence upon which the Crown sought to rely in support of
    the Gun-related charges.

[13]

The trial judge first held that the cursory search of the cell
    phone upon arrest without a warrant was justified. He then concluded that the
    search of the appellants cell phone pursuant to the second warrant did not
    violate s. 8. He admitted the Photographs into evidence, reasoning that they
    were circumstantial evidence that could connect the appellant to the Gun. The
    trial judge found that any prejudicial effect of the Photographs would be
    ameliorated by the Crowns undertaking not to advance a propensity-based argument
    and the limiting instructions he undertook to provide.

[14]

The critical contested issue at trial was
    knowledge of the Gun.

[15]

The Crowns position was that the appellant knew of the presence of
    the Gun. The Crown relied on the fact that the ammunition found in a drawer in
    the bedroom was the same type as that found in the firearm. The Crown argued
    that common sense lead to the conclusion that the person who put the Gun in the
    room also put the ammunition in the room.

[16]

Alternatively,
    the Crown argued that, based on the testimony of Mr. Khamara Dalamba, the
    appellants brother, the appellant was wilfully blind to the fact that the bag
    contained the Gun. Specifically, Mr. Dalamba testified that the Gun was his and
    he had left it in Ms. Edwards residence without the appellants knowledge. He
    brought the Gun with him when he visited the appellant at Ms. Edwards home on
    September 5, 2012. He carried the Gun in a knapsack  the knapsack in which the
    police later discovered the Gun. Mr. Dalamba explained that he was a drug
    dealer and carried the Gun for personal protection, but left it at Ms. Edwards
    place that day because he was planning to see a girlfriend and did not want to
    bring it with him. Counsel for the appellant argued there was no air of reality
    to wilful blindness as a substitute for knowledge of the Gun. He also argued
    that an instruction on the test set out in
R. v. W.(D.)
, [1991] 1
    S.C.R. 742, was necessary in relation to Mr. Dalambas testimony.

[17]

The
    trial judge concluded that it was appropriate to leave wilful blindness with
    the jury, and that a
W.(D.)

instruction was not necessary
    because Mr. Dalambas testimony did not conflict with the Crowns case: even if
    the jury believed Mr. Dalamba, they could still convict the appellant on the
    basis of the appellants wilful blindness.

The Verdict

[18]

The jury convicted the appellant of the following charges:

·

possession of a prohibited firearm without a
    license (count 1);

·

possession of an over capacity magazine (count
    3);

·

possession of a firearm knowing that the serial
    number was defaced (count 4);

·

possession of cocaine for the purpose of
    trafficking (count 6); and

·

possession of proceeds of crime (count 8);

[19]

Following the jurys verdict, counsel for the Crown and the
    appellant consented to the evidence heard on the trial applying to a second
    indictment alleging three counts of possessing a firearm while prohibited from
    doing so contrary to s. 117.01 of the
Criminal Code
, and the trial judge found the appellant guilty on those counts
    (the Second Indictment Convictions).

[20]

The
    appellant appeals on a number of grounds in relation to admission of evidence
    resulting from the pre-trial rulings and alleged errors in the trial judges
    jury instruction.

ISSUES

A.

THE CONVICTION APPEAL

[21]

The issues raised in the conviction appeal fall
    into two broad categories: 1) the pre-trial rulings; and 2) the trial judges
    instructions to the jury.

[22]

After hearing the submissions of counsel for the
    appellant, the panel determined not to give effect to the arguments arising out
    of the trial judges pre-trial rulings and the Crown was not asked to respond
    to these arguments.

[23]

In accordance with this decision at the hearing,
    I would dismiss the appeal in relation to the challenged pre-trial rulings. I
    see no reason to interfere with the trial judges conclusions concerning the
    appellants s. 8 arguments or his s. 24(2) analysis. The trial judge considered
    the relevant factors and the appellant has identified no error in principle in
    his decisions.

[24]

This leaves the following issues for
    consideration:

1)

Did the trial judge err
    in his charge concerning the use the jury could make of the Photographs?

2)

Did the trial judge err
    by failing to provide the jury with a
W.(D.)
instruction in relation to the evidence of
    Mr. Dalamba?

3)

If there was an error,
    should this court apply the curative proviso under s. 686(1)(b)(iii) of the
Criminal Code

to sustain the
    conviction?

[25]

For the reasons that follow, I would allow the appeal with respect
    to the grounds arising out of the trial judges jury instructions, and set aside
    the convictions on counts 1, 3 and 4, outlined above, and the Second Indictment
    Convictions. I conclude the trial judge erred in failing to provide a limiting
    instruction to the jury on the use they could make of the Photographs, and in
    failing to give a necessary
W.(D.)

instruction
    with respect to the evidence of the appellants brother. I would also reject
    the Crowns argument that the curative proviso should be applied such that the
    convictions on those counts can nonetheless stand.

ANALYSIS

(1)

Did the trial judge err in his charge relating to the use the jury could
    make of the Photographs?

[26]

The appellant submits that the trial judge erred in failing to
    provide a limiting instruction on the use the jury could make of the
    Photographs. This issue must be considered against the backdrop of the trial
    judges rejection of the appellants argument that the Photographs should not
    be admitted into evidence on the basis that their prejudicial effect exceeded
    their probative value.
I will turn to that first.

(a)

The admissibility of the Photographs

[27]

At trial, defence counsel conceded that the Photographs found on the
    appellants cellphone depicted a firearm that was at least probably the same
    make or model of firearm as the one found in the bedroom, namely, a TEC-9 prohibited
    machine gun commonly associated with violent crime.
[2]

[28]

The Crown offered those Photographs as circumstantial evidence of
    the appellants possession of the Gun. While the Crown did not identify the
    precise circumstantial inference it was seeking to have the jury draw, the
    Photographs support only two possible inferences. The first is that the
    Photographs are of the actual gun that was found. The second is that because
    the appellant has an interest in guns similar to the one found, it was likely
    he came to possess such a gun. This latter inference invites impermissible
    general propensity reasoning, since the inference necessarily entails the
    conclusion that the appellant has shown himself to be the kind of person likely
    to possess such a gun.

[29]

The appellant resisted the admission of the Photographs on the basis
    that
their prejudicial effect outweighed their probative value. The
    appellant argued that the Photographs were prejudicial because they put the
    onus on the appellant to explain their origin, which was unclear, and that they
    had the potential to encourage the jury to engage in impermissible propensity
    reasoning. Further, the Photographs had limited probative value because there
    was no evidence of how they came to be stored on the appellants cell phone, or
    that the images of the firearm in the Photographs were actually images of the
    Gun.

[30]

The Crown argued that it had no intention of making a
    disposition-based argument. Against that background any prejudice from the
    Photographs was minimal.
In his discussions with counsel
    during argument the trial judge noted that
: [T]he Crown will not say
    that [the appellant is] the kind of person who likes guns and
I will tell
    the jury, obviously, you cant draw an inference that hes a gun lover and
    therefore on this occasion had a gun
. The purpose is the one that we know
    about (emphasis added).

[31]

The trial judge admitted the Photographs,
    finding that he did not see any prejudicial effect from their admission. He
    agreed with the Crown that the Photographs were circumstantial evidence that
    connected the appellant to the Gun and therefore had some probative value.
    Addressing the appellants concerns about propensity-based reasoning, the
trial judge stated, Of course the Crown cant put a disposition-type position
    to the jury, as a result of the finding of [the Photographs] and from what
    Crown counsel has said, I dont, I dont take, I dont imagine that that will
    be said to the jury, and in any event,
Ill give the jury appropriate
    direction about the use they can and cannot make of the [Photographs]
(emphasis
    added).

[32]

Before this court the appellant submits that the
    trial judge erred in his analysis of the balancing of the probative value and
    prejudicial effect of the Photographs. The prejudice, the appellant says, lay
    in the potential for propensity reasoning from pure bad character, and the
    probative value was low because the genesis of the Photographs was vague, at
    best.

[33]

The Crown argues on appeal that the Photographs
    did not constitute extrinsic evidence of misconduct. Further, because Crown
    counsel made it clear that she had no intention of advancing a
    disposition-based argument in her submissions to the jury, any prejudice
    occasioned by the admission of the Photographs was minimal or non-existent.

[34]

A trial judges balancing of probative value and prejudicial
    effect in connection with evidence of disreputable conduct is entitled to a
    high degree of deference on appeal:
R. v. Higginbottom
(2001), 150
    O.A.C. 79 (C.A.), at para. 9;
R. v. Samuels
,
2013 ONCA 551, 310
    O.A.C. 175, at para. 47.

[35]

In these circumstances I would not interfere
    with the trial judges decision to admit the Photographs into evidence. It was
    common ground that it was open to the jury to find that the images in the
    appellants cell phone were of the Gun. In such a case, they would be highly
    probative to the issue of possession. Any possible prejudicial effect could be
    minimized through the two controls identified by the trial judge  the Crowns
    undertaking not to make a propensity-based argument and the trial judges
    undertaking to provide a limiting instruction to the effect that the jury was
    not entitled to infer from the Photographs
that the appellant, as the
    type of person who has a picture of a gun on his phone, would be more likely to
    possess a gun.

[36]

The two undertakings provided were critical to the admissibility
    of the Photographs; without them the Photographs had the potential to be highly
    prejudicial to the appellant. This takes me to what happened at trial in
    relation to the undertakings.

(b)

The jury instructions relating to the
    Photographs

[37]

As promised, the
Crown did not invite the
    jury to engage in propensity reasoning. At no point did the Crown suggest that
    the appellant, by virtue of having the Photographs on his phone, was the type
    of person more likely to possess the Gun. Moreover, the Photographs did not
    play a prominent role in the Crowns case: Crown counsel made a solitary, brief
    reference to the Photographs in closing.

[38]

However, the appellant argues that the trial
    judge made two errors in his jury instructions in relation to the Photographs.
    First, he submits that the
trial judge overemphasized the similarity
    between the weapon depicted in the Photographs and the Gun. Second, the trial
    judge failed to provide the promised limiting instruction on the use the jury
    could make of the Photographs. The appellant submits that
the
    trial judges failure to do so amounts to a reversible error.

[39]

I
    agree with the Crown that the trial judge did not overemphasize the similarity
    between the firearm in the Photographs and the Gun. The trial judge specifically
    noted in his charge that the Photographs were images of the same
or similar
gun (emphasis added). However, as I outline below, I do not think this
    inoculates against the need for the limiting instructions that the trial judge
    himself promised to give.

[40]

The
    Crown conceded in oral argument that the trial judge failed to warn the jury against
    the dangers of disposition-based reasoning when considering the Photographs and
    that an instruction on this point would have been preferable. However, the Crown
    argues that a limiting instruction on this point was unnecessary because (i) the
    Photographs were not obviously extrinsic evidence, since they appeared to
    depict the very firearm seized from the appellants bedroom or a gun of a
    similar make and model; and (ii) they did not give rise to the traditional
    dangers of disposition-based evidence: the possession of the Photographs did
    not suggest the appellant was a bad person, give rise to the fear that the
    jury would seek to punish the appellant for past misconduct, or deflect the
    jury from the question posed in the case.
Significantly, the
    Crown
did not ask the jury to engage in impermissible propensity or
    disposition-based reasoning.

[41]

As I have already intimated, I do not agree with the Crown that
    the trial judges failure to provide that limiting instruction, which he
    undertook to provide, is quite so benign.

[42]

The ultimate probative value and prejudicial effect of the
    Photographs turned on the jurys factual findings: both parties accept that if
    the jury found that the Photographs were of the Gun, they would be highly
    probative to their determination of whether the appellant had knowledge of the
    Gun. In such a circumstance the Photographs would not be extrinsic character
    evidence  they would be relevant circumstantial evidence of possession, as the
    Crown submitted at trial. However, if the jury found that the firearm in the
    Photographs was not the Gun, then the Photographs had the potential to lead the
    jury to conclude that the appellant, as the type of person who looks at
    pictures of guns on his cell phone, was more likely to possess a prohibited gun
    associated with criminal violence.

[43]

All
    evidence of general propensity, disposition, or discreditable conduct is
    presumptively inadmissible:
R. v. Handy
,
2002 SCC 56, [2002] 2
    S.C.R. 908, at paras. 31-36;
R. v. Cloutier
, [1979] 2 S.C.R. 709, at p.
    731. Whether such evidence gains admission depends upon whether the probative
    value of the evidence in relation to a particular issue outweighs its potential
    prejudice:
Handy
,
at para. 55. Evidence that does no more than
    reveal the general, discreditable disposition of the accused will not meet this
    standard since proof of
general
disposition is a prohibited purpose
    (emphasis in original):
Handy
, at para. 72. Evidence revealing general
    propensity, disposition or general discreditable conduct must have some other
    probative purpose that outweighs the risk of prejudice it presents.

[44]

Even where evidence that shows an accuseds bad character or general
    propensity is admitted, it should be accompanied by a clear instruction to the
    jury that they cannot use that evidence in order to conclude that the accused
    is a bad person or is of a certain general disposition and is therefore more
    likely to have committed the offence charged:
R. v. Chambers
, [1990] 2
    S.C.R. 1293, at p. 1311. The jury needs to understand the purposes for which it
    can use such evidence in its deliberations: in certain circumstances it is
    necessary to instruct the jury not

to reach a conclusion based upon general
    propensity or bad character:
R. v. Chamot
,
2012 ONCA 903, 302
    O.A.C. 104
,
at para. 61;
R. v. Selles

(1997), 34 O.R.
    (3d) 332 (C.A.).

[45]

If the jury were to come to the conclusion that the Photographs
    were not of the Gun then it would follow that the appellant had images of
    another similar weapon in his cell phone. In my view, the jury needed to be
    instructed as to what use they
could

make of the Photographs in that event. The answer, of course, is none  if
    the jury concluded that the Photographs were not of the Gun, then the
    Photographs could only be relevant insofar as they were evidence of general
    propensity, and should accordingly not have been considered. The trial judge
    should have provided clear instructions that the Photographs were of no
    assistance if the jury were to conclude that the firearm images in the
    Photographs were not of the Gun, and provided express guidance on what use the
    jury could have made of the Photographs if they were uncertain of whether they
    depicted the Gun.

[46]

In my view, the combination of factors surrounding the admission
    of the Photographs and related references to the jury charge renders the
    failure to give the jury any guidance about the use they could make of this
    evidence serious. The ruling that the Photographs were admissible depended in
    part on the jurys receiving proper limiting instructions. The trial judge
    expressly undertook to provide such instructions, but did not do so. The
    potential prejudice was heightened because of the general similarity between
    the extrinsic misconduct and the offence before the court: possessing pictures
    of a gun and actually possessing a similar gun.

[47]

Finally, g
iven
    the potential prejudicial effect of the Photographs identified above, I am of
    the view that the positions taken by counsel were insufficient to temper the
    risk of the jurys engaging in propensity reasoning  the relevant concern
    relates to the effect of the evidence, and not necessarily the use the Crown
    put to it. Although Crown counsel did not rely on the Photographs in her
    submissions to the jury, neither did the Crown actively dissuade the jury from
    the impermissible line of reasoning I have just set out. More is required than
    for counsel to put the evidence out there and let the jury make of it what they
    will.

[48]

Although, as this court held in
R. v. Beausoleil
,

2011
    ONCA 471, 277 C.C.C. (3d) 50 (C.A.), at paras. 19-21, a failure to provide
    limiting instructions of this nature will not necessarily result in reversible
    error, here
there was a real risk that
the jury would
    use the evidence of the Photographs for an improper purpose. In such
    circumstances the trial judge must caution against the misuse of this evidence,
    and the trial judges failure to do so here was an error:
Chamot
,

at
    para. 62

[49]

I note that the appellants trial counsel did not object to the
    trial judges failing to charge on this point. A failure to object is a factor
    to be taken in to account when considering a non-direction to the jury, but it
    is not determinative of the analysis:

Chamot
, at para. 73;
Samuels
,
at para. 50. This failure does not impact my analysis above  particularly
    in the light of the significant risk that the jury could misuse the evidence
    absent a limiting instruction, and the trial judges undertaking to include
    such a limiting instruction in his charge.

[50]

For these reasons, subject to my analysis below of the Crowns
    reliance on the curative proviso, I find the failure to provide the jury with
    limiting instructions concerning the Photographs to be a reversible error.

(2)

Did the trial judge err by failing to provide
    the jury with a
W.(D.)
instruction in relation to the evidence of Mr.
    Dalamba?

[51]

Just as the appellants argument concerning the trial judges
    failure to give limiting instructions concerning the Photographs must be
    considered in the context of his earlier ruling allowing the Photographs into
    evidence, the argument that the trial judge erred by failing to give a
W.(D.)
instruction in relation to Mr. Dalambas evidence must be considered in the
    light of the trial judges decision to leave wilful blindness as a route to
    conviction. I turn now to this issue.

(a)

Wilful
    blindness as a route to conviction

[52]

The trial judge told counsel that he was not going to provide the
    jury with a
W.(D.)

instruction because even if the jury
    believed Mr. Dalamba, they could still convict the appellant based on wilful
    blindness. Specifically, he said to the appellants counsel:

You, in effect, urged the
W.(D.)
instruction on the jury
    in respect of the witness called by defence and while I appreciate that in some
    circumstances the
W.(D.)
instruction is appropriate for that, in that
    circumstance, what concerns me about this is that the jury could believe the
    evidence of the witness and still find the accused guilty on the basis of
    wilful blindness. I know you dont agree that wilful blindness should apply,
    but Ive already said Im going to give them wilful blindness. So, Im not
    gonna correct what I think is an error in your, jury charge, Im gonna leave
    that as it is, but Im not gonna give that instruction its not correct to say
    If you believe the evidence of the witness you must acquit the accused of that
    charge, because you still have the possibility, as I analyze it, of applying
    wilful blindness.

[53]

The trial judge then instructed the jury on the
    applicability of the doctrine of wilful blindness to counts 1 and 3 (possession
    of the Gun and possession of the magazine). He told the jury there was evidence
    from which they could infer that the appellant was wilfully blind about the
    contents of the knapsack in the closet: Mr. Dalamba testified (i) the appellant
    knew that he had left the knapsack in the closet; (ii) he had told the
    appellant that he was a drug dealer; and (iii) he had mentioned to the
    appellant that there were a couple people that [he, Mr. Dalamba] had problems
    with, including possibly mentioning that some of them were after him.

[54]

The appellant submits that the trial judge erred
    by leaving wilful blindness as a possible route to conviction on this evidence.
    The appellant argues there was no evidentiary basis for the suggestion that the
    appellant was presented with a set of circumstances that fixed him with an
    aroused suspicion that required him to make further inquiries. The
    combination of his knowledge of Mr. Dalambas drug dealing and that Mr. Dalamba
    told the appellant about some difficulties he was having with certain people is
    too tenuous to support a theory of wilful blindness.

[55]

The Crown argues there was an air of reality to
    wilful blindness as a substitute for the appellants actual knowledge of the
    Gun. Mr. Dalambas evidence, combined with the known association between drug
    dealing and weapons possession, meant that the appellant knew there was a need
    to inquire into the knapsacks contents but refrained from doing so in order to
    avoid being fixed with knowledge. In the alternative, the Crown submits that
    even if willful blindness should not have been left with the jury, the trial
    judges doing so occasioned no substantial wrong or miscarriage of justice in
    this case: because the jury convicted the appellant of the count 4  possession
    of a firearm with a defaced serial number (to which all parties agreed wilful
    blindness was not available)  then the jurys findings on counts 1 and 3 also
    cannot be explained by wilful blindness.

[56]

In my view, the trial judge erred in instructing
    the jury on wilful blindness. The Crowns argument that wilful blindness was
    made out by a duty to investigate the contents the bag that Mr. Dalamba left
    understates the threshold of knowledge required for willful blindness to be
    established. Willful blindness is not simply a failure to inquire, but
    deliberate ignorance involving an actual process of suppressing a
    suspicion:
R. v. Briscoe
,
2010 SCC 13, [2010] 1 S.C.R. 411, at para. 24, citing Don Stuart,
Canadian
    Criminal Law: A Treatise
, 5th ed. (Toronto: Carswell,
    2007), at p. 241. To be wilfully blind an accused must shut his eyes because
    he [knows] or strongly suspect[s] that looking [will] fix him with knowledge:
R.
    v Jorgensen
,
[1995] 4
    S.C.R. 55, at

para. 103.

[57]

The Supreme Court of Canada has endorsed an
    articulation of this standard requiring that the appellant realize the fact in
    question is probable, or, at least, possible above the average, and that the
    appellant suspected the fact; he realized its probability; but he refrained
    from obtaining the final confirmation because he wanted in the event to be able
    to deny knowledge:
Jorgensen
,
at para. 102, citing Glanville Williams,
Criminal Law:
    The General Part
(2nd ed. 1961), at pp. 157-59. This
    level of subjective suspicion must be high in order to substitute for
    knowledge; it must be that it can almost be said that the [appellant] actually
    knew the Gun was in the bag:
R. v. Farmer
,
2014 ONCA 823, 32 O.A.C. 175, at para. 26; Morris
    Manning, Peter Sankoff,
Criminal Law
, 5th ed.
    (Markham: LexisNexis, 2015), at p. 236.

[58]

That standard, in my view, was not made out on
    the facts here.

[59]

For wilful blindness to be made out it is not
    enough for the evidence to support the inference that there was reason for the
    appellant to suspect
something
untoward, or even that there was some unknown contraband in the
    knapsack. Wilful blindness has to replace knowledge
of the Gun
:
R.
    v. Malfara

(2006), 211 O.A.C. 200, at paras. 3-4;
R.
    v. Blondin

(1970), 2 C.C.C. (2d) 118 (B.C.C.A.),
    at pp. 121, 131-132;
R. v. Sauve and Stewart
,
    2016 ONSC 6896, at para. 44. The parties agreed there was no basis to support
    the appellants having a suspicion there was a firearm in the bag with a
    defaced serial number; for the same reasons, on the same standard there was no
    evidence of the appellants having an aroused suspicion of any firearm
at all
being in the knapsack  as opposed to simply drugs, other illegal items, or
    nothing at all. There must have been evidence to support a finding that the appellant
    had a strong subjective suspicion that the bag contained a gun but decided not
    to look to avoid confirming that suspicion.

[60]

In my view there is no evidentiary foundation
    for such a finding. It was therefore an error to leave wilful blindness as a
    route to conviction.

[61]

However, I see no substantial wrong or
    miscarriage of justice as a result of this error on the basis of the Crowns
    alternative submission:
Criminal Code
,
s. 686(1)(b)(iii).
    Since the jury found the appellant guilty of the charge of possessing a weapon
    knowing the serial number had been defaced (count 4), it is clear that the jury
    was satisfied that the appellant in fact had actual knowledge of the Gun. I
    would accordingly not give effect to this ground of appeal.

[62]

It is against this background that I turn to the
    trial judges refusal to provide a
W.(D.)
instruction in relation to Mr. Dalambas evidence.

(b)

Did the trial judge err by failing to provide a
W.(D.)

instruction
    with respect to Mr. Dalambas testimony?

[63]

The appellant argues that a modified
W.(D.)

instruction
    was necessary in respect of Mr. Dalambas evidence. He submits that the fact
    that wilful blindness was left as a route to guilt did not affect the necessity
    of a
W.(D.)

instruction in the circumstances. If the jury
    rejected the wilful blindness route (as they clearly did here by relying on the
    appellants actual knowledge of the gun) they could still rely on Mr. Dalambas
    evidence to acquit the appellant if Mr. Dalambas evidence raised a reasonable
    doubt about his knowledge.

[64]

The Crown submits that a
W.(D.)

instruction was
    not necessary because Mr. Dalambas testimony did not conflict with the Crowns
    case. The jury could accept Mr. Dalambas testimony, find possession and
    knowledge of the Guns presence, and convict on all counts. The issue at trial
    was not the Guns ownership, or how it came to be in the appellants room, but
    whether the appellant had knowledge and control of it. Mr. Dalambas testimony
    supports an inference of wilful blindness and does not refute an inference of
    actual knowledge. A
W.(D.)

instruction would have implied a
    conflict in the evidence where none existed.

[65]

I note that the trial judge did

include the following
    statement in the charge:

Individual items of evidence need not be proved beyond a
    reasonable doubt. Reasonable doubt may arise because you are unable to
    determine the credibility or believability of witnesses in relation to
    essential matters.

[66]

He also repeatedly instructed the jury to view the evidence as a
    whole in determining if they were left with a reasonable doubt.

[67]

However, in my view, a modified
W.(D.)

instruction
    was necessary in order to remind the jury, as Doherty J.A. explained in
R.
    v. Bucik
,
2011 ONCA 546, 283 O.A.C. 161, at para. 33, that Mr.
    Dalambas exculpatory evidence [could] be the source of a reasonable doubt
    even if [it was] not affirmatively believed, an idea that is arguably not the
    kind of common sense reasoning that jurors would apply in making credibility
    assessments in their day-to-day lives. This is the lesson from
W.(D.)
,
and is directly applicable here:
Bucik
,
at para. 33.

[68]

The requirement of a
W.(D.)

instruction applies
    where, on a vital issue, there are credibility findings to be made between
    conflicting evidence and the trial judge must relate the concept of reasonable
    doubt to those credibility findings:
R. v. B.D.
,
2011 ONCA 51,
    273 O.A.C. 241, at para. 114. The trial judge must make clear that it is not
    necessary for the jurors to believe the defence evidence on the issue in order
    to acquit; it is sufficient if viewed in the context of all of the evidence
    the conflicting evidence leaves them in a state of reasonable doubt as to the
    accuseds guilt:
B.D
.,
at para. 114.

[69]

The reason why a
W.(D.)

instruction was necessary
    in these circumstances is as follows. If the jury rejected wilful blindness, or
    if there was no evidentiary foundation for a finding of wilful blindness (both
    of which I have concluded above) then Mr. Dalambas evidence conflicted
    directly with the Crowns theory and was capable of raising a reasonable doubt,
    regardless of whether it was believed. Failing to provide the
W.(D.)

instruction on Mr. Dalambas evidence created the risk the jury would
    consider the evidence as the kind of either/or choice that Doherty J.A. warned
    of in
D.B.
,
particularly since Mr. Dalambas evidence was the
    appellants only explanation for how the Gun came to be in the bedroom.

It
    was entirely possible that Mr. Dalambas version of events would not be
    believed, but that it could nonetheless raise a reasonable doubt.

[70]

In
    any event, a
W.(D.)

instruction was clearly necessary with
    respect to count 4 (possession of a firearm with a defaced serial number),
    because wilful blindness was not relevant to that charge and Mr. Dalambas
    testimony directly conflicted with the Crowns theory of the case in relation
    to that charge.

[71]

I
    would therefore give effect to this ground of appeal.

(3)

Conclusion on the grounds of appeal

[72]

The
    errors I have identified  (1) the lack of limiting instructions on permissible
    uses of the Photographs; and (2) the absence of a
W.(D.)

instruction
    in relation to the testimony of Mr. Dalamba  left the jury with inadequate
    instructions concerning the gun-related charges: counts 1, 3 and 4. Subject to
    the application of the proviso, the convictions on these offences, and the
    Second Indictment Convictions, must be set aside.

THE APPLICATION OF THE CURATIVE PROVISO

[73]

The
    Crown submits that if any error is found on the above grounds of appeal, this
    court should apply the curative proviso to sustain the convictions. As outlined
    below, in my view it would not be appropriate to apply the proviso to the trial
    judges errors.

(1)

The principles to be applied

[74]

Section
    686(1)(b)(iii) of the
Criminal Code
allows an appellate court to
    dismiss an appeal notwithstanding a legal error in the decision below if the
    court is of the opinion that no substantial wrong or miscarriage of justice
    has occurred. The proviso, as interpreted by the Supreme Court, applies where
    there is no reasonable possibility that the verdict would have been different
    had the error in issue not been made:
R. v. Bevan
, [1993] 2 S.C.R.
    599 (S.C.C.), at p. 617
;
R. v. Khan
, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 28.
That test is
    satisfied in two situations.

[75]

First,
    use of the curative proviso is appropriate where the error at first instance is
    harmless or trivial:
Sekhon
,
at para. 53. The overriding
    question guiding this inquiry is whether the error on its face or in its
    effect was so minor, so irrelevant to the ultimate issue in the trial, or so
    clearly non-prejudicial, that any reasonable judge or jury could not possibly
    have rendered a different verdict if the error had not been made:
R. v.
    Van
, 2009 SCC 22, [2009] S.C.R. 22, at para. 35.

When
    a case involves multiple

errors at first instance, the cumulative

impact
    of those errors can be relevant to determining whether the harmless or
    trivial test is satisfied:
R. v. Bomberry
, 2010 ONCA
    542, 258 C.C.C. (3d) 117, at para. 79;
R. v. Hill
,
2015
    ONCA 616, 23 C.R. (7th) 224
, at para. 102.

[76]

The
    curative proviso may also be applied in cases involving more serious errors,
    where the evidence is so overwhelming that a reasonable and properly
    instructed jury would inevitably convict:
Sekhon
,
at para. 53;
Van
,
at para. 36. This inquiry does not turn on the gravity of the trial judges
    errors, but on the strength of the Crowns case. Overwhelming evidence has
    been described as a high standard, and substantially higher than the requirement
    that the Crown prove its case beyond a reasonable doubt at trial:
R. v.
    Trochym
, 2007 SCC 6, [2007] 1 S.C.R. 239, at para. 82. These onerous thresholds
    flow from the difficulties appellate courts inevitably face in evaluating the
    strength of the Crown's case retroactively, without the benefit of hearing the
    witnesses' testimony and experiencing the trial as it unfolded:
Van
,
    at para. 36. Accordingly, any measure of doubt concerning the strength of the
    Crowns case should enure to the benefit of the appellant.

[77]

The
    Crown bears the burden of establishing one, or both, of the preconditions to
    applying the proviso:
Van
, at para. 34
. The
    two preconditions are not assessed in conjunction with one another  the
    seriousness of a trial judges error(s) is not balanced against the strength of
    the Crowns case:
R. v. Sarrazin
, 2011 SCC 54, [2011]
    3 S.C.R. 505, at paras. 22-28
.

(2)

The application of the proviso to the trial judges errors

[78]

Appellate
    courts have applied the proviso to both limiting instruction and
W.(D.)

errors.

[79]

The
    proviso has been applied both where a failure to provide a limiting instruction
    amounted to a harmless error, such as in
R. v. B.(A.W.)
,
2015
    ONCA 185, 331 O.A.C. 243, and where there existed overwhelming evidence
    against an accused: see
R. v. R.(M.)

(2005), 195 C.C.C. (3d) 26
    (Ont. C.A.).

[80]

A
W.(D.)
error, by contrast, will rarely be characterized as harmless or
    trivial because it calls into question the jurys understanding of the
    fundamental concept of reasonable doubt:
R. v. Lifchus
, [1997] 3
    S.C.R. 320, at paras. 45-46. An accurate explanation of the requisite burden of
    proof is essential to ensuring a fair criminal trial:
Lifchus
, at
    para. 45.

[81]

This
    is not a categorical rule, however: see
B.D.
,
at paras 119-121.
    Courts may apply the proviso to a
W.(D.)

error based on either
    of the two preconditions described above. First, a
W.(D.)

error
    may be considered harmless where the balance of the trial judges
    instructions cleanse the instructions  of the errors effect:

R. v.
    Kristensen
, 2010 ABCA 37, 23 Alta L.R. (5th) 201, at
    para. 29.
Further, courts may also apply the proviso to overcome
W.(D.)

errors on the basis of overwhelming evidence. In
B.D.
, Blair
    J.A. applied the proviso notwithstanding a
W.(D.)

error,
    finding that there was overwhelming evidence of the accuseds guilt in the
    unusual circumstances that existed, established primarily by DNA records and
    strong eye-witness identification testimony.

[82]

However,
    in my view the facts of this case fall short of both the harmless error and
    the overwhelming evidence standard. The Crown has not met its burden of
    establishing either precondition to the application of the proviso.

[83]

The
    errors in issue in the instant case are not harmless or trivial. The
W.(D.)

error indicates the charge failed to properly instruct the jury on applying
    the reasonable doubt standard to key defence evidence. The trial judges
    references to reasonable doubt in the jury charge were insufficient to
    compensate for the lack of a
W.(D.)

charge  indeed, the trial
    judge did not simply fail to turn his mind to the
W.(D.)
issue, but
    consciously decided that an instruction of that nature was not necessary.

[84]

The
    limiting instruction error was also neither harmless nor trivial, as it
    resulted in significant prejudice to the appellant: as outlined above, the jury
    was left with evidence of extrinsic misconduct very similar

to the
    offence charged, and the trial judge himself recognized the need for a limiting
    instruction during pre-trial motions but failed to provide it. I am of the view
    that there is a reasonable possibility that the two errors, considered together,
    had an impact on the jurys verdict.

[85]

Similarly,
    as I see it, the Crowns case, while strong, does not meet the high bar of
    overwhelming evidence. I acknowledge that the presence of the bullets is
    evidence of possession. I also acknowledge that the bullets are not accounted
    for by any defence evidence, a relevant factor that favours upholding the
    appellants conviction:
R. v. George
,
2016 ONCA 464, 349 O.A.C.
    347, at para. 70. However, in my view this evidence is not so overwhelming that
    any reasonably instructed jury would convict. Mr. Dalambas testimony, if
    believed, provides a near-conclusive answer to the possession charge, and his
    credibility was a central issue at trial:
Bomberry
, at para. 79. As
    the defence noted at trial, Mr. Dalambas credibility was also bolstered by
    various factors.

[86]

Bearing
    in mind the Crowns heavy onus on this issue, and the Supreme Courts caution in
Van

about evaluating the strength of the Crowns case
    retroactively without the benefit of hearing witnesses, I cannot say that Mr.
    Dalambas testimony is incapable of raising a reasonable doubt in the minds of
    a properly instructed jury.

[87]

These
    two shortcomings in the trial judges instructions to the jury are collectively
    fatal to the convictions in relation to counts 1, 3 and 4, as well as the
    Second Indictment Convictions, which must be set aside. I would allow the
    conviction appeal to this extent.

B.

the sentence appeal

[88]

The appellant seeks leave to appeal his sentence
    of 9 years and 3 months, less 3 months credit for pre-trial custody. Of that
    global sentence, the appellant was sentenced to two years for possession of
    crack cocaine for the purpose of trafficking and one year for possession of the
    cash, to be served concurrently.

[89]

The appellant was sentenced on December 18, 2014.
    He did not apply for bail pending appeal. Consequently, he has already served
    more than the two years of his sentence remaining after the firearm convictions
    are set aside. His sentence appeal is therefore moot.

DISPOSITION

[90]

In the result, I would allow the conviction
    appeal in part by setting aside the convictions in relation to counts 1, 3 and
    4 as well as the Second Indictment Convictions, and order a new trial on those
    counts. I would otherwise dismiss the conviction appeal. I would dismiss the
    sentence appeal on the basis that it is moot.

Released: DMP MAY 24 2018

Gloria Epstein J.A.

I agree. David M. Paciocco J.A.

I agree. I.V.B. Nordheimer J.A.

[1]

Ms. Edwards was a co-accused with the appellant at trial and
    was convicted of the drug and proceeds charges, but not the firearms charges.
    Her convictions are not at issue on this appeal.

[2]

When pressed in oral argument, counsel for the Crown conceded
    that the type of gun in the Photographs is one often associated with violent
    crime.