COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kler, 2017 ONCA 64

DATE: 20170125

DOCKET: C57285

Cronk, Juriansz and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Harvishal Singh Kler

Respondent

Julianna A. Greenspan and
    Bradley J. Greenshields, for the appellant

Brendan Gluckman, for the
    respondent

Heard: May 2, 2016

On appeal from the convictions entered by Justice
    Fletcher Dawson of the Superior Court of Justice, sitting with a jury, on April
    19, 2013, and from the sentences imposed on June 24, 2013.

Watt J.A.:

[1]

A jury found Harvishal Singh Kler guilty of conspiracy to import and
    importing heroin. The trial judge imposed concurrent sentences of 16 years in
    the penitentiary, less pre-disposition credit of 4 months.

[2]

Harvishal Singh Kler appeals his convictions on several grounds. He also
    seeks leave to appeal the sentences imposed upon him.

[3]

These reasons explain why I would dismiss the appeal from conviction and
    would grant leave to appeal sentence, but dismiss the appeal from sentence.

THE BACKGROUND FACTS

[4]

The indictment on which Kler was charged and tried jointly with Manjit
    Singh Dhanoa alleged a conspiracy over a three-month period in mid-2007. The
    conspiracy terminated with the arrival and discovery of the heroin in Canada on
    July 23, 2007. The two couriers, Guriqbal Thind and Harket Singh Khattra, were
    arrested that day when they returned to the airport to pick up their luggage.
    The heroin had been imported from India via Japan.

[5]

The allegations of the Crown were that the conspirators were five in
    number. Each had a specific role. Dhanoa was the leader. Kler and Bakshish Ghai
    represented the second tier. Their task was to recruit the couriers. Thind and
    Khattra, both young men with unblemished records, were the couriers.

[6]

Among the several participants, Khattra and Ghai pleaded guilty on
    different occasions. Khattra, whose sentence involved a joint submission for five
    and one-half years, testified as a Crown witness at the joint trial of Kler and
    Dhanoa. Ghai received a sentence of 14 years. He was in the courthouse during
    the joint trial of Kler and Dhanoa, but not called as a witness by either the
    Crown or defence. In a separate trial, Thind was acquitted.

[7]

An overview of the evidence adduced at trial is of service in
    understanding the nature of the case for the Crown. To the extent further
    detail is required to understand or determine a ground of appeal, it will be
    added in connection with the ground.

The Case for the Crown

[8]

The case for the Crown consisted of several components.

[9]

Khattra, one of the couriers, testified as a witness for the Crown. He
    had pleaded guilty for a jointly recommended sentence and agreed to testify for
    the Crown. His counsel had approached the Crown with a proposal that he would
    testify for the Crown for an agreed-upon sentence. Khattra provided a
KGB
statement.

[10]

In addition, the Crown adduced evidence of a post-arrest statement made
    by Kler, which the Crown urged amounted to an admission of his membership in
    the conspiracy. The Crown tendered travel histories of Khattra, Thind, Dhanoa,
    Ghai and Kler, as well as cellphone and phone toll records showing contacts
    among and between the principals. In addition, the Crown elicited evidence that
    tended to show association among the principals before Khattra and Thind left
    Canada to pick up the heroin.

[11]

In its attempt to establish the guilt of Kler and Dhanoa, the Crown also
    relied upon the co-conspirators exception to the hearsay rule to complete its
    proof.

Khattra Changes Sides

[12]

Khattra and Thind were arrested together on July 23, 2007, when they
    returned to the airport to pick up their suitcases. They had changed their
    original reservations to return on an earlier flight, but their luggage
    remained on the flight they had originally booked which had landed late in
    Toronto.

[13]

Khattra was a 21-year-old who lived with his parents. He was completing
    his electricians apprenticeship at Humber College. His then counsel first
    approached the police about providing a statement to them eight months after Khattra's
    arrest, in April 2008. Prior to providing the statement, Khattra knew that the
    Crown would be seeking a sentence of 16 years in the penitentiary in the event
    of his conviction after trial. He also knew that if he provided evidence for
    the Crown against others charged with the same offences, he would receive a
    reduced sentence, although he had not been promised a specific reduction.

[14]

Initially, Khattra provided investigators with telephone numbers for
    Dhanoa and Ghai, neither of whom had been arrested at that time. He did not
    provide a number for Kler. A short time later, Khattra gave a videotaped
KGB
statement in which he identified Kler as a participant in the scheme and later picked
    out his (Klers) photograph in a line up.

[15]

Khattra testified at the preliminary inquiry about ten months before he pleaded
    guilty and subsequently received his agreed upon sentence. Later, he testified
    at two trials, including the joint trial of Kler and Dhanoa. By then, he had
    been paroled, and had his parole revoked as a result of a charge of an
    alcohol-driving offence. He would be eligible for parole again a year later.

The Prior Relationships

[16]

Khattra and Ghai had attended the same high school. They had played
    soccer with Thind a few years prior. Khattra and Kler knew each other through
    mutual friends. Thind, Ghai and Kler were friends. Ghai, Kler and Dhanoa
    socialized at Dhanoa's family business.

The Recruitment of Couriers

[17]

Ghai recruited Khattra to become a courier. He asked Khattra whether he
    had a clean record and wanted to make some easy money. Ghai vaguely described a
    trip to India, bringing back some "stuff" and getting paid $10,000. Khattra
    agreed with the proposal.

[18]

Ghai told Khattra that Kler recruited Thind to become the second
    courier.

[19]

A couple of days after Khattra's initial discussion with Ghai, Khattra met
    with Dhanoa at Ghai's house. Ghai explained that he and his cousin were
    traveling to India that day. Dhanoa arrived with four suitcases. Ghai showed
    the suitcases to Khattra, including opening one to show Khattra its secret
    compartment. Khattra asked what would be placed in the secret compartments, and
    Ghai responded with a word that Khattra did not recognize. Khattra testified
    that he only learned what heroin was after his eventual arrest. Ghai told
    Khattra that both the trip and the suitcases were safe.

[20]

A few days later, Dhanoa and Khattra met at a Tim Hortons. Dhanoa told
    Khattra to take the battery and SIM card out of his phone during their
    conversation, and gave Khattra instructions about what was involved in the trip
    to India. Dhanoa gave Khattra $500 and explained that he (Khattra) would
    receive full payment of $10,000 for his part. Dhanoa promised Khattra that he
    (Dhanoa) would obtain a lawyer for Khattra if one were required, but that
    Khattra would have to work for Dhanoa to repay the cost of the lawyer. Dhanoa
    also told Khattra that he would need to get a visa for his travel to India.

[21]

About a week later, Khattra and Dhanoa met again. Dhanoa gave Khattra
    another $500 and told him where to get a visa for India. Khattra obtained a
    visa, date stamped June 4, 2007. After picking up his passport with the visa,
    Khattra called Dhanoa, who told Khattra that his travel partner was writing his
    high school exams.

The Meeting at the 410 Plaza

[22]

Ghai called Khattra at home and asked Khattra to drive him to a plaza
    near the intersection of Highway 410 and Queen Street in Brampton. Thind and
    Kler also attended the meeting. On the way to the plaza, Ghai told Khattra that
    Kler had recruited Thind. At the meeting with Dhanoa at the plaza, each man
    received $500 from Dhanoa. Ghai and Dhanoa explained how the travellers were to
    deal with customs. Dhanoa told Khattra that he (Khattra) and Thind would be
    travelling together.

[23]

Dhanoa left on his own and Khattra drove the rest of the men home after
    the meeting. En route, Kler mentioned a trip he had taken with his wife who got
    scared when they reached customs. Khattra thought that the point of the story
    was to let them know that what they were going to do was safe and that they
    would not get caught.

The Ticket Purchase

[24]

Dhanoa and Khattra went to a travel agency where Dhanoa ordered two
    tickets for India routed through Narita, Japan. Two days later, Dhanoa gave
    Khattra cash to pay for the tickets.

The Airport Hotels

[25]

On June 23, 2007, Ghai, Khattra and Thind checked into a Holiday Inn
    near Pearson Airport. Thind left the hotel to pick up his belongings. He
    returned with some clothes and a laptop computer. Shortly after Thind's return,
    Kler arrived at the hotel. The group hung out together but nothing was said
    about drugs.

[26]

On June 24, 2007, Ghai spoke to Dhanoa. The group left the Holiday Inn
    and checked into the Monte Carlo Inn across the road. That evening, Dhanoa
    arrived at the hotel in a van. His wife and mother were with him. Khattra,
    Thind, Ghai and Kler picked up some suitcases from Dhanoa's van. Ghai gave
    Khattra and Thind $1,000 each that he (Ghai) had received from Dhanoa.

[27]

Ghai said that he had brought back the suitcases from India recently. He
    pointed out the false bottoms to those present, including Kler. No one said
    anything about the impending trip or why the suitcases were being packed with clothes.
    Kler repeated his story about him and his wife passing safely through customs
    despite his wife's nervousness. He then left the hotel before a cab arrived to
    take Khattra and Thind and their suitcases to the airport.

The Airport and Transfer Instructions

[28]

Ghai went to the airport with Khattra and Thind. Ghai told them that the
    suitcase exchange would take place at a hotel in Narita, Japan.

The Suitcase Exchange

[29]

A "Russian" couple came to the hotel room Khattra and Thind
    occupied at the Holiday Inn in Narita. Khattra and Thind emptied the suitcases
    they had brought with them. The "Russian" couple provided them with
    new suitcases without false bottoms.

[30]

Thind and Khattra spent ten days in Japan. They flew to New Delhi on
    July 5, 2007, where they split up. Each returned to the village or area where
    other members of his family or relatives lived.

The Visitors

[31]

Two men with long beards and wearing turbans visited Khattra. They gave
    him some money. The men said that they had to see the "other guy".
    Khattra gave the men some items Dhanoa had given to him in Canada to fill up
    the suitcases with false bottoms.

[32]

Khattra and Thind reunited around July 12, 2007 at Khattras familys
    house.

More Visitors

[33]

Two other men, each with a long beard and wearing a turban, visited
    Khattra and Thind, drove them to a nearby city and checked them into a hotel.
    The men told Khattra and Thind to take enough clothes out of their suitcases
    for two days. The men then took the balance of Khattra's and Thind's belongings
    and the suitcases and left with a promise that they (the two bearded men) would
    pack the suitcases for Thind and Khattra.

[34]

In due course, the two bearded men returned with five suitcases. They
    drove Khattra and Thind to the airport. En route, the two men asked Khattra
    whether he knew "Prince" and "Lincoln". Khattra knew Kler
    as "Prince" and Ghai as "Lincoln".

The Return Flight and Luggage
    Delay

[35]

On instructions from one of the two bearded men, Khattra and Thind asked
    the airline in India to send their luggage directly to Toronto. Khattra and
    Thind then flew back to Japan. After they arrived, Khattra and Thind decided to
    change their original reservations and return on an earlier flight. Their
    luggage remained on the flight they had originally booked. That flight was
    delayed, and along with it, the return of their suitcases. After arriving at
    Pearson Airport on July 21, 2007, Khattra and Thind developed their cover story
    for customs officials while waiting in the line to speak to an officer: they
    were cousins who had been visiting their family in Japan and India.

[36]

Khattra and Thind cleared customs. They took a taxi to a hotel in Vaughan
    to await notice that their luggage had arrived. The next day, Khattra called
    Dhanoa and advised him about the delay in the return of their suitcases. They
    met at a Walmart in Brampton. Dhanoa gave each of them $400 and provided
    Khattra with a new prepaid cellphone.

The Arrests

[37]

After the meeting with Dhanoa, Thind and Khattra took a taxi to the
    airport to pick up their suitcases. They were arrested there in the early
    morning hours of July 23, 2007 and taken into police custody.

The Defence Case

[38]

Neither Kler nor Dhanoa testified.

[39]

Dhanoa called Thind's mother as a defence witness. She explained that
    her son had planned a trip to India in June 2007. She had given her son money
    to buy his ticket.  She had seen him pack for the trip. He called her from
    India. When Thind returned home, his father picked him up at the airport. He
    had no luggage.

[40]

Dhanoa also called his estranged wife and his mother to testify as
    defence witnesses. His wife acknowledged that both Ghai and Kler were friends
    of Dhanoa. She denied having been at the Monte Carlo Inn with her husband and
    having dropped off any suitcases there for the others. Dhanoa's mother also
    confirmed her son's friendship with Kler.

THE APPEAL FROM CONVICTION

[41]

Kler (the appellant) advances six grounds of appeal against conviction.
    Some relate to alleged errors in the reception of evidence. Others have to do
    with alleged errors or omissions in final instructions to the jury. Still
    others relate to both.

[42]

We did not call on the Crown to answer several claims of error advanced
    by the appellant. These reasons focus on those on which we did invite a
    response from Crown counsel.

The Grounds of Appeal

[43]

I would paraphrase the grounds of appeal as allegations that the trial
    judge erred:

i.

in admitting, under the co-conspirators' exception to the hearsay rule,
    Khattra's claim that Ghai said the appellant recruited Thind, and in
    instructing the jury that that statement could be used at steps 2 and 3 of the
    analysis described in
R. v. Carter
, [1982] 1 S.C.R. 938;

ii.

in admitting the hearsay statement of Ghai despite its failure to
    satisfy the necessity requirement of the principled approach to hearsay;

iii.

in admitting the appellant's post-arrest utterances, despite a breach of
    the implementation component of s. 10(b) of the
Charter of Rights and
    Freedoms
;

iv.

in failing to instruct the jury that they could not use the appellant's
    post-arrest utterances in making their decision unless they rejected the
    alternative inference that he had acquired the relevant information as a result
    of his knowledge of the investigation and arrest of others;

v.

in failing to instruct the jury on the use of the appellant's travel history
    as evidence of post-offence conduct; and

vi.

in illustrating as potentially confirmatory of the testimony of the
Vetrovec
witness, Khattra, evidence that lacked confirmatory capacity and failing to
    relate material inconsistencies in that evidence to the jury.

Ground #1: The Hearsay Evidence and the Co-conspirators'
    Exception

[44]

This ground of appeal implicates not only a traditional hearsay
    exception, but also the principled approach to the admission of hearsay. The
    traditional co-conspirators' exception permits the reception and trier of facts
    use of evidence of acts and declarations of co-conspirators in furtherance of
    the common design in completing proof of an individual's participation in the
    conspiracy. But the traditional exception may give way where the evidence
    admitted under its sponsorship fails to satisfy the necessity and reliability
    conditions of the principled approach.

[45]

A further issue advanced by the appellant assumes the evidence was
    properly admitted but questions the correctness of the trial judge's
    instructions to the jury about its use in proof of the appellant's guilt.

[46]

After a brief refresher on the evidentiary milieu in which the issue
    arises, I will turn to the positions advanced by the parties at trial and on
    appeal, then canvass the governing principles before applying them to determine
    the result.

The Essential Background

[47]

Khattra testified that before he and Thind flew to Japan and from there
    to India, Ghai, Dhanoa, Thind and the appellant were together at a hotel near
    the airport. Before he and Thind got their instructions about how to deal with customs
    officers, Ghai said that the appellant had recruited Thind as a courier.
    Khattra had been recruited by Ghai.

[48]

The evidence of this statement was admitted at trial under the
    co-conspirators' exception to the hearsay rule. Trial counsel for the appellant
    did not object to its reception on this basis. The trial judge later instructed
    the jury that it could use this evidence in deciding whether the Crown had
    proven beyond a reasonable doubt that the appellant was a member of the
    conspiracy charged, having first decided, from the appellant's own words and
    conduct, that he was probably a member of that conspiracy. In other words, the
    use of the evidence was limited to the third step of
Carter
. Trial
    counsel did not object to the trial judge's instructions to the jury about how
    they could use this evidence.

[49]

At the time this evidence was introduced, Ghai was in the courthouse. He
    had pleaded guilty and been sentenced.  The trial Crown indicated that, despite
    Ghai's availability, he (Ghai) would not be called as a witness for the Crown.

The Positions of the Parties at Trial

[50]

As I have already said, trial counsel for the appellant did not object
    to the admissibility of Khattra's evidence about Ghai's statement that Kler had
    recruited Thind, under the co-conspirators' exception to the hearsay rule.
    Further, trial counsel expressed no concern about jury instructions permitting
    its use to complete the Crown's proof of guilt at step 3 of
Carter
.

[51]

Trial counsel did not invite the trial judge to hold a
voir dire
to determine whether the application of the principled approach to hearsay
    should result in the exclusion of the evidence admitted under the
    co-conspirators' exception because the evidence failed to satisfy the twin
    requirements of necessity and reliability demanded by the principled approach.
    In particular, trial counsel for the appellant did not contend that the
    necessity requirement could not be met because Ghai was available to be called
    as a witness.

The Arguments on Appeal

[52]

The appellant says that the trial judge was wrong to admit Khattra's
    repetition of Ghai's statement under the co-conspirators' exception to the
    hearsay rule as a declaration in furtherance of the conspiracy. This evidence
    was only admissible for a non-hearsay purpose to prove the conspiracy at step 1
    of
Carter
and to prove Ghai's probable membership in the conspiracy at
    step 2 of
Carter
.

[53]

It follows, the appellant continues, that the trial judge should have
    expressly instructed the jury that this evidence was not admissible against the
    appellant either at step 2 or at step 3 of
Carter
. In addition, the
    evidence admitted at trial gave no indication of the source of Ghai's knowledge
    about the appellant's alleged recruitment of Thind.

[54]

The appellant advances a second argument. He says that when, as here,
    concerns arise about the necessity and reliability of hearsay evidence admitted
    under a traditional exception, that evidence must be tested against the
    requirements of the principled approach. Admittedly, it will be a rare day when
    evidence admissible under a traditional exception will fail to satisfy the twin
    requirements of necessity and reliability under the principled approach. That
    said, such an exception may occur where the original declarant is available as
    a witness, but not called by the party who seeks to introduce the hearsay.

[55]

Here, the appellant continues, Ghai was available to give evidence. He
    was at the courthouse. The Crown could have called him as a witness. The Crown
    adduced no evidence that Ghai would be uncooperative. Indeed, all indications
    were to the contrary. Ghai had pleaded guilty and had been sentenced. What was
    more likely than not was that Ghai would be cooperative, assigning himself a
    minimal role and laying blame at the appellant's doorstep.

[56]

The respondent supports the conclusion of the trial judge. The evidence,
    the respondent says, was a declaration of a probable conspirator in furtherance
    of the conspiracy. It was properly admitted under the co-conspirators'
    exception to the hearsay rule and its evidentiary use properly explained to the
    jury.

[57]

As a matter of general principle, the respondent submits, the decision
    in
R. v. Mapara
, 2005 SCC 23, [2005] 1 S.C.R. 358, makes it clear that
    the co-conspirators' exception satisfies the necessity and reliability
    requirements of the principled approach. Steps one and two of
Carter
provide circumstantial indicators of reliability attesting to a common
    enterprise including the accused, thus enhancing the general reliability of
    statements made in the pursuit of that enterprise as it is ongoing. The
    "in furtherance" requirement in step 3 of
Carter
provides a
    guarantee of reliability in more immediate circumstances.

[58]

The respondent says that concerns about the witness' veracity are not a
    factor at the admissibility stage, rather circumstances for the trier of fact
    to consider when assessing the adequacy of the state's proof. The absence of
    evidence of the source of the hearsay declarant Ghai's knowledge that Kler
    recruited Thind is of no real moment. There is a degree of implied or assumed knowledge
    inherent in virtually all co-conspirators' statements. And what is more is that
Mapara
authorizes the reception of double hearsay.

[59]

The respondent accepts that existing hearsay exceptions are subject to
    the superintendence of the principled approach. It is open to the appellant to
    argue that this is the "rare case" in which evidence admissible under
    the co-conspirators' exception should be excluded because it has failed to
    satisfy the necessity and reliability requirements of the principled approach.

[60]

The problem for the appellant here, the respondent argues, is that the
    onus of establishing the "rare case" exception settles on the
    appellant. This request was not made and this argument not advanced at trial.
    There was no suggestion that the presence of Ghai in the precincts of the
    courthouse meant that the necessity requirement could not be satisfied. After
    all, there is no bright line rule that availability of the co-conspirator
    declarant negates necessity. Each case is different. The appellant never
    invoked the "rare exception" and cannot be heard to enlist its
    assistance now.

The Governing Principles

[61]

This ground of appeal requires consideration not only of the listed co-conspirators'
    exception to the hearsay rule and the
Carter
regime governing its use
    in jury deliberations, but also the impact of the principled approach on the
    exception in this case.

[62]

The parties share common ground about the essential elements of
    conspiracy, the
Carter
regime and the availability of the
    co-conspirators' exception to complete proof, not only for the preliminary
    crime of conspiracy, but also for substantive offences said to be the product
    of a joint venture.

The Co-conspirators' Exception

[63]

The co-conspirators' exception to the hearsay rule permits statements
    made by a person engaged in an unlawful conspiracy to be received as admissions
    against all those acting in concert if the declarations were made while the
    conspiracy was ongoing and were made towards the accomplishment of the common
    object:
Mapara
, at para. 8.

[64]

From the statement of the rule, we learn several things.

[65]

First, not every statement made by a fellow conspirator can be enlisted
    in proof of another conspirator's membership in the conspiracy:
R. v. Yumnu
,
    2010 ONCA 637, 260 C.C.C. (3d) 421, affirmed, 2012 SCC 73, [2012] 3 S.C.R. 777,
    at para. 341. The statement must be made by a "person engaged in an
    unlawful conspiracy". And as we shall see, for these purposes, a person is
    "engaged in an unlawful conspiracy" if his or her own acts or
    statements establish his or her probable membership in it.

[66]

Second, a matter of timing, or better said "contemporaneity".
    The statement must be made by the conspirator "while the conspiracy was
    ongoing":
Mapara
, at para. 8;
Carter
, at p. 947. That
    said, on some occasions, statements made after the offence object of the
    conspiracy has been committed may be admissible under this exception:
Yumnu
,
    at para. 341;
R. v. Sauvé
(2004), 182 C.C.C. (3d) 321 (Ont. C.A.),
    leave to appeal refused, [2005] 1 S.C.R. xv, at paras. 115-18.

[67]

Third, the statement of the co-conspirator must be made "in
    furtherance of" the offence object of the conspiracy, that is to say, for
    the purpose of achieving its goal:
R. v. Puddicombe
, 2013 ONCA 506,
    299 C.C.C. (3d) 503, leave to appeal refused, [2013] S.C.C.A. No. 496, at para.
    116. Provided there is evidence capable of sustaining a finding that a
    statement of a co-conspirator was "in furtherance" of the common
    offence object, the ultimate decision about whether the statement is "in
    furtherance" is for the jury:
Puddicombe
, at para. 116. See also
R.
    v. Mota
(1979), 46 C.C.C. (2d) 273 (Ont. C.A.), at pp. 282-83.

[68]

A final point concerns the scope of the co-conspirators' exception.
    Here, we are concerned with a specific statement, but the exception extends
    beyond statements to acts done by co-conspirators during the currency of the
    conspiracy in furtherance of its objects: see e.g.
R. v. Garofoli
(1988), 41 C.C.C. (3d) 97 (Ont. C.A.), at pp. 135-36, reversed on other
    grounds, [1990] 2 S.C.R. 1421;
R. v. Baron
(1976), 31 C.C.C. (2d) 525
    (Ont. C.A.), at p. 533.

The Co-conspirators' Exception and the
    Principled Approach

[69]

Despite the ascendency of the principled approach to the admissibility
    of hearsay, the traditional or category exceptions remain presumptively in
    place, including the co-conspirators' exception to the hearsay rule:
Mapara
,
    at para. 15.

[70]

A hearsay exception, such as the co-conspirators' exception, can be
    challenged to determine whether it is supported by the indicia of necessity and
    reliability, required by the principled approach. If necessary, the traditional
    exception may be modified to bring it in line with the principled approach:
Mapara
,
    at para. 15.

[71]

In
Mapara
, the co-conspirators' exception to the hearsay rule
    was challenged as failing to accord with the fundamental criteria that underlie
    the exceptions to the hearsay rule and are the twin requirements of the
    principled approach  necessity and reliability. The Court concluded that the
    co-conspirators' exception met the necessity and reliability requirements of
    the principled approach. The continued vitality of the co-conspirators' exception
    was affirmed:
Mapara
, at para. 31.

[72]

The
Mapara
court found the indicium of
necessity
established because of the combined effect of:

i.

the non-compellability of a co-accused declarant, Wasfi, who's case was
    severed from that of Mapara at the end of the case for the Crown;

ii.

the undesirability of separate trials for alleged co-conspirators; and

iii.

the evidentiary value of contemporaneous declarations made in
    furtherance of an alleged conspiracy.

See
Mapara
, at para.
18;
R.
    v. Chang
(2003), 173 C.C.C. (3d) 397 (Ont. C.A.), at
    para. 105.

[73]

The Court in
Mapara
found the
reliability
requirement
    met because the conditions imposed by
Carter
on the use of evidence
    admitted under the co-conspirators' exception provided sufficient
    circumstantial guarantees of trustworthiness necessary to permit the evidence
    to be received:

i.

proof of the conspiracy alleged beyond a reasonable doubt;

ii.

probable participation in the conspiracy by the accused based on his or
    her own words and conduct; and

iii.

the requirement that the acts and declarations of other likely
    conspirators be in furtherance of the conspiracy to be available in proof of an
    individual member's guilt.

See
Mapara
, at paras. 22-26.

[74]

It does not always follow, however, that evidence that falls within the
    co-conspirators' exception (which we have seen meets the requirements of the
    principled approach) will be received at trial. The indicia of necessity and
    reliability, while generally satisfied under the exception and the regime in
Carter
,
    may be lacking in the particular circumstances of the case:
Mapara
, at
    para. 15.

[75]

Two brief points should be made about the specific challenge just
    mentioned. First, the
Mapara
court characterized the exception as
    available in "rare cases". And second, the onus falls upon the party
    seeking exclusion to establish that the evidence, admissible under the co-conspirators'
    exception, does not meet the requirements of necessity and reliability and,
    thus, should be excluded:
Mapara
, at paras. 15, 37;
R. v. Starr
,
    2000 SCC 40, [2000] 2 S.C.R. 144, at para. 214.

[76]

Something should also be said about the requirements of necessity and
    reliability.

[77]

First, necessity. This indicium refers to the availability of the
    evidence, not the availability of the hearsay declarant as a witness:
R. v.
    N.Y.
, 2012 ONCA 745, 294 C.C.C. (3d) 313, at para. 78. The factors
    mentioned in
Mapara
, adopting paragraph 105 of this court's decision
    in
Chang
, do not foreclose other means of establishing necessity:
N.Y.
,
    at para. 78. This court has declined to adopt a bright line rule that the
    physical availability of the declarant puts paid to any claim of necessity:
N.Y.
,
    at paras. 75-76.

[78]

Second, reliability refers to threshold reliability, not ultimate
    reliability, which is a determination to be made by the jury. Indicia of
    reliability are found in the
Carter
rule for a conspiracy proved
    beyond a reasonable doubt, membership of the accused in it on a balance of
    probabilities and the rule that any statements made in furtherance of the
    conspiracy are admitted to complete the proof against an individual accused.

[79]

A final point. It is difficult to conclude that evidence falling under
    the
Carter
rule would lack the indicia of necessity and reliability
    required for the admission of hearsay under the principled approach. Apart from
    the most exceptional cases, the argument is exhausted where the traditional
    exception is found to be compliant with the principled approach:
Mapara
,
    at para. 34.

The Carter Regime

[80]

In
Carter
, the Supreme Court of Canada set out a series of three
    steps to be included in a charge to the jury where the co-conspirators'
    exception to the hearsay rule is invoked to establish the guilt of individual
    accused
.
McIntyre J. described the instructions at p. 947:

In charging the jury on this question, the trial judge should
    instruct them to consider whether on all the evidence they are satisfied beyond
    a reasonable doubt that the conspiracy charged in the indictment existed. If
    they are not satisfied, then the accused charged with participation in the
    conspiracy must be acquitted. If, however, they conclude that a conspiracy as
    alleged did exist, they must then review the evidence and decide whether, on
    the basis of the evidence directly receivable against the accused, a
    probability is raised that he was a member of the conspiracy. If this
    conclusion is reached, they then become entitled to apply hearsay exception and
    consider evidence of the acts and declarations performed and made by the co
‑
conspirators in furtherance
    of the objects of the conspiracy as evidence against the accused on the issue
    of his guilt. This evidence, taken with the other evidence, may be sufficient
    to satisfy the jury beyond a reasonable doubt that the accused was a member of
    the conspiracy and that he is accordingly guilty.

See also
R. v. Barrow
, [1987] 2 S.C.R. 694, at
    p. 740 [McIntyre J., dissenting].

[81]

The
Carter
regime permits, but limits, access by the trier of
    fact to the acts and declarations of likely conspirators in furtherance of the
    offence object of the conspiracy to prove the guilt of other likely
    conspirators. Access to this body of evidence is only permitted at step 3,
    provided the trier of fact has first been satisfied beyond a reasonable doubt
    of the existence of the conspiracy charged and then satisfied, from an
    individual conspirator's own words and conduct, that she or he is probably a
    member of the conspiracy.

[82]

What
Carter
mandates is a two-step process in proof of an
    individual accused's participation in a conspiracy that has been proven beyond
    a reasonable doubt.

[83]

The initial step  step 2 of
Carter
 involves a determination
    of probable or likely membership on a restricted evidentiary basis  the words
    and conduct of an individual accused:
Carter
, at p. 947;
Mapara
,
    at para. 22;
Chang
, at para. 59.

[84]

The next step  which is step 3 of
Carter
 involves a
    determination of
actual
membership or participation in the conspiracy by
    an individual accused. It is at this stage that the trier of fact may consider
    the acts and declarations of other likely conspirators in determining the guilt
    of an individual accused:
Carter
, at p. 947;
Mapara
, at para.
    26;
Chang
, at para. 59.

The Principles Applied

[85]

For several reasons that I will develop, I would not give effect to this
    ground of appeal. I will consider first the admissibility of Khattra's
    statement that the appellant recruited Thind under the co-conspirators'
    exception to the hearsay rule. I will then examine the impact of the principled
    approach on the admissibility of this evidence and conclude with an assessment
    of the jury instructions about its use.

[86]

At trial, no serious controversy emerged about the existence of a
    conspiracy, or that its object was to import heroin. No one suggested that
    Khattra and Ghai were not members of that conspiracy. The critical issue for
    the jury to decide in connection with the appellant was whether the Crown had
    proven beyond a reasonable doubt that he was a member of that conspiracy and a
    party to the importation of the heroin by Khattra and Thind.

[87]

First, I am satisfied that the statement in issue was admissible under
    the co-conspirators' exception to the hearsay rule.

[88]

The hearsay declarant (Ghai) and recipient/witness (Khattra) were both
    members of the conspiracy at the time of Ghai's statement that Khattra reported
    in his testimony at trial. The statement was made while the conspiracy was
    ongoing. Although the statement attributed to Ghai has a narrative aspect about
    it, when considered in the context of instructions to the couriers about how
    they were to act at customs on their return, there was evidence upon which the
    jury could find that the statement was in furtherance of the object of the
    conspiracy.

[89]

The fact that the statement as repeated by Khattra is double hearsay
    Khattra reporting what Ghai said about the appellant's recruitment of Thind
    does not require its rejection under the co-conspirators' exception. Recall
    that
Mapara
also involved double hearsay, yet the evidence was
    admitted under the co-conspirators' exception.

[90]

A final point about admissibility under the co-conspirators' exception.
    Trial counsel for the appellant did not object to the introduction of this
    evidence for want of compliance with the requirements of the exception.

[91]

Second, I am satisfied that subjecting the evidence admitted under the
    co-conspirators' exception to the principled approach as required by
Mapara
does not render the evidence inadmissible.

[92]

As a matter of general principle, the co-conspirators' exception meets
    the necessity and reliability requirements of the principled approach. The
    Supreme Court of Canada said so in
Mapara
.

[93]

The
Mapara
court acknowledged that there may be "rare
    cases" in which evidence admissible under the co-conspirators' exception
    may nonetheless fall short of satisfying the necessity and reliability
    touchstones of the principled approach. Here, the appellant says the necessity
    requirement was not met and the declarant was unreliable.

[94]

The appellant's claim consists of too little advanced too late. As
Mapara
makes clear, those who seek exclusion under the principled approach of evidence
    admissible under the co-conspirators' exception bear the burden of doing so.
    The place to satisfy that burden is when the evidence is tendered for reception
    at trial. No such argument was advanced in this case. And the claim put forward
    for the first time on appeal lacks purchase. That Ghai was in the courthouse
    during the appellant's trial does not move the yardsticks on necessity.
    Presence is a factor, not a disqualifier. It is the availability of evidence of
    equivalent value that is crucial, not the availability of the witness. To the
    extent the appellant contests satisfaction of the reliability requirement, his
    complaints relate to ultimate, not to threshold reliability, thus are
    unavailing at the admissibility stage.

[95]

Third, I would not give effect to any claim that the trial judge failed
    to properly instruct the jury about the use it could make of the evidence
    admitted under the co-conspirators' exception.

[96]

Evidence admitted under the co-conspirators' exception has two uses
    under the
Carter
regime. As non-hearsay, the acts and declarations of
    the co-conspirators are relevant to prove the existence of the unlawful
    agreement alleged in the indictment. To be admissible for this purpose, the
    acts and declarations would not require the sponsorship of the co-conspirators'
    exception because the evidence is not tendered for a hearsay purpose. As hearsay
    admitted under the co-conspirators' exception, the evidence is admissible at
    step 3 of the
Carter
regime, essentially, to advance proof of likely
    membership established at step 2 to proof of actual membership at step 3.

[97]

The fault the appellant finds with the trial judge's instructions are
    not that he misdirected the jury about the use of this evidence at steps 1 and
    3 of
Carter.
The complaint is one of omission, of something the judge
    failed to say: he did not tell the jury that it could not use this evidence at
    step 2 to find that the appellant was probably or likely a member of the
    conspiracy.

[98]

The appellant is right. The trial judge did not expressly instruct the
    jury that this evidence was not available for use in deciding whether the
    appellant was probably a member of the conspiracy. But I have no doubt that the
    jury got the message. The trial judge made it clear at step 2 that probable
    membership could
only
be established on the basis of the appellant's
own
words and conduct. Only his own. By necessary implication, this excluded the
    words or conduct of anyone else, including Khattra. This, I am entirely
    confident, a contemporary Canadian jury would understand.

[99]

The natural extension of the appellant's argument, as it seems to me,
    would have the trial judge list for the jury the acts and declarations of the
    other co-conspirators when addressing the probable membership of each at step
    2, then instruct them
not
to consider this evidence on the issue of
    probable membership. Including a list of evidence not to consider seems
    unlikely to help jurors understand what they are entitled to consider.

[100]

As I have said,
    I would reject this ground of appeal.

Ground #2: The Travel Histories and Altered
    Passport

[101]

This ground of
    appeal has to do with what the trial judge told the jury about how they could
    use evidence of the travel history of the appellant. The ground does not
    contest the admissibility of the evidence, only the manner in which it was left
    to the jury to consider in reaching their verdict.

[102]

A brief summary
    of the evidence in issue will furnish the essential background for the
    discussion that follows.

The Passport and Traveller History

[103]

The appellant's
    passport was filed as an exhibit at trial. During Crown counsels (not Mr.
    Gluckman) examination of a witness from the Canada Border Services Agency, the
    witness noticed that some pages were missing from the passport, apparently
    removed despite the stitching that bound the pages together between the outside
    covers of the document.

[104]

An admission of
    fact made at trial established that the appellant had surrendered his passport
    to the RCMP about ten days after his arrest on November 5, 2008.

[105]

The trial Crown
    also filed the ICES Traveller History of the appellant, Dhanoa, Khattra, Thind
    and Ghai. These are records maintained by the Canada Border Services Agency and
    show a traveller's contact with officials at various ports of entry. Among
    other things, the documents show entry at Pearson Airport by Dhanoa on March 24,
    2007 and by the appellant, the following day.

[106]

No evidence was
    given about where, when or by whom the missing pages were removed from the
    appellant's passport.

The Positions of the Parties at Trial

[107]

During the
    pre-charge conference, trial counsel for the appellant raised the issue of the
    trial judge's reference to the missing pages of the passport in his draft
    charge. Counsel was concerned that the reference could make the missing pages
    "a lot more suspicious" than he (counsel) suggested they were. The
    trial judge advised counsel that his reference was simply "a passing
    comment of circumstantial evidence", thereby minimizing its impact on the
    jury's deliberations. The judge pointed out that a more focused reference (as
    evidence of post-offence conduct) could be much more harmful to the defence.

[108]

In the end,
    trial counsel for the appellant was content to leave the reference as drafted.
    Counsel did not seek any instruction about the missing or removed pages as
    evidence of post-offence conduct or suggest their inclusion as an item of
    evidence relevant to step 2 of
Carter
.

[109]

Similarly, the
    trial Crown did not seek an instruction on post-offence conduct in connection
    with the missing pages of the appellant's passport, or ask that the evidence be
    included at step 2 of
Carter
.

The Charge to the Jury

[110]

The trial judge
    did not include an instruction on evidence of post-offence conduct in relation
    to the missing passport pages or refer to them as an item of evidence the
    jurors were entitled to consider on the issue of the appellant's probable
    membership in the conspiracy.

[111]

In his charge,
    the trial judge referred to the evidence of the travel histories of the alleged
    conspirators as potentially confirmatory of the evidence of Khattra, which was
    subject to a
Vetrovec
caution: see
Vetrovec v. R,
[1982] 1
    S.C.R. 811. He also included a reference to the travel histories (but not to
    the missing passport pages) of the appellant, Dhanoa and Ghai in summarizing
    the position of the Crown.

[112]

Trial counsel
    for the appellant did not object to the closing address of the Crown, or to the
    manner in  which the travel histories and the trial judge's comment In
    evaluating Mr. Kler's travel history keep in mind that there are some pages
    missing from his passport were left to the jury.

The Arguments on Appeal

[113]

The appellant
    makes four points in support of this ground of appeal.

[114]

First, the
    appellant says that the trial judge failed to provide any meaningful assistance
    to the jury about this evidence and, in particular, failed to alert the jury
    about the dangers associated with placing reliance on evidence of post-offence
    conduct  the missing pages of the passport.

[115]

Second, the
    appellant contends, the trial judge misstated the evidence about the
    appellant's trip with his wife when she became nervous as they approached customs.
    There was no evidence about the place from which they were returning. The trial
    judge's mention of "India" in this connection was gravely prejudicial
    in light of the evidence about the source country from which the heroin seized
    in this case had originated.

[116]

Third, and with
    the principal focus on the evidence about the passport's missing pages, the
    appellant submits that the trial judge erred in failing to advise the jury of
    the permissible and prohibited uses of this evidence.

[117]

Finally, the
    appellant argues, the trial judge was wrong to leave the evidence as relevant
    to step 2 of
Carter
. For it to be admissible on the issue of probable
    membership, the evidence had to bring home removal of the pages to the
    appellant, which it failed to do.

[118]

The respondent
    rejects the suggestion that any instruction on post-offence conduct was
    required in this case. The trial judge recognized the significant prejudice that
    could ensue to the appellant if he were to give a post-offence conduct
    instruction in connection with the missing pages in the passport. To avoid this
    potential prejudice, and with the express concurrence of trial counsel for the
    appellant, the trial judge took a minimalist approach, limiting his reference
    to a "passing comment" about the missing pages, shorn of any
    reference to the appellant's complicity in their removal. The travel history
    was left as evidence the jury could consider as confirming the testimony of the
Vetrovec
witness, Khattra. This was proper and attracted no objection
    from defence counsel.

[119]

Further, the
    respondent says that the travel history of the appellant, including the
    proximity of his return to that of Dhanoa, was a relevant item of
    circumstantial evidence, irrespective of the missing passport pages. There was
    no misdirection in connection with this evidence.

[120]

The respondent
    submits that no one at trial suggested a post-offence conduct instruction was
    required in connection with the evidence about the missing passport pages. The
    Crown did not seek it. The defence did not want it. The trial judge considered
    it unduly prejudicial. Even if such an instruction had been given, the trial
    judge would have been wrong, as the appellant now seems to contend, to instruct
    the jury that before invoking this evidence to assist in their decision, the
    jury had to be satisfied beyond a reasonable doubt that the appellant removed
    the pages. Such an instruction, the respondent says, would be legally wrong.

[121]

In connection
    with the trial judge's reference to "India" as the place from which
    Kler and his wife were returning, the respondent says the error caused no
    prejudice. The point of the appellant's story was to show the couriers that
    things stored in hidden compartments of suitcases could pass through customs
    undetected, even if one of the returning passengers was nervous. The country of
    origin was of no moment to the story. Further, the trial judge reminded jurors
    that it was their recollection of the evidence that counted  not his or that
    of counsel. And trial counsel did not object to the erroneous reference that is
    now said to have been so prejudicial.

The Governing Principles

[122]

The principles
    that control the decision on this ground of appeal are familiar and not in need
    of repetition. A few brief points about relevance and evidence of post-offence
    conduct will suffice.

[123]

Relevance is not
    an inherent characteristic of any item of evidence. It exists as a relation
    between an item of evidence and a proposition of fact that the party
    introducing the evidence proposes to establish by its introduction. Relevance
    is relative and contextual. It is a matter of everyday experience and common
    sense and is assessed in the context of the entire case and the positions of
    counsel:
R. v. Luciano
, 2011 ONCA 89, 267 C.C.C. (3d) 16, at paras. 204-6.

[124]

An individual
    item of evidence may give rise to more than one inference. That it does so does
    not render it irrelevant, or call for its exclusion on the basis of some rule of
    admissibility. Individual items of evidence are not to be subjected to
    piecemeal evaluation, or rejected as irrelevant or inadmissible because they
    fail to satisfy the criminal standard of proof. It is the whole of the
    evidence, often greater than the sum of its individual parts, that is subjected
    to the criminal standard of proof.

[125]

Whether the
    descriptive used is post-offence conduct or after-the-fact conduct, the
    designation tells us that what is involved is evidence of things done or said
    after an offence has been committed: not before and not at the same time, but
    after. This is circumstantial evidence to which no special rule attaches:
R.
    v. White
, 2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 31, 105, 185.

[126]

As with
    circumstantial evidence generally, jury instructions about the use of evidence
    of post-offence conduct must
not
invite the jury to apply the criminal
    standard of proof to the individual items of evidence:
R. v. White
,
    [1998] 2 S.C.R. 72, at paras. 42-49.

[127]

The courts eschew
    a list or category approach to determine whether things done or said after an
    offence has been committed may be relied upon as evidence of post-offence
    conduct. It all comes down to relevance. Examples of relevant evidence abound,
    among them, evidence than an accused destroyed or attempted to destroy objects
    that tended to link him or her to the commission of the offence charged. See e.g.
R. v. Vant
, 2015 ONCA 481, 324 C.C.C. (3d) 109, at para. 129.

The Principles Applied

[128]

I would not give
    effect to this ground of appeal, the principal focus of which is on the evidence
    of the missing passport pages, and to a lesser extent on the travel histories
    of the alleged conspirators, including that of the appellant.

[129]

Evidence of the
    missing passport pages was not tendered as evidence of post-offence conduct,
    and thus did not oblige the trial judge to provide jury instructions that would
    have been appropriate in such a case. Indeed, the complaint of prejudicial
    error for the failure of the trial judge to instruct the jury on evidence of
    post-offence conduct, raised for the first time in this court, is somewhat
    puzzling. Such an instruction would have scarcely assisted the appellant's
    cause. It would not take seven league boots to infer the identity of the person
    responsible for the destruction was the passport holder, an admitted traveller
    and the person from whom the passport, in its adulterated state, was recovered.

[130]

The trial
    judge's reference to "India" in his summary of the evidence was wrong
    and unfortunate. But the suggestion that it caused irreparable prejudice in
    light of the source of the heroin in this case cannot withstand scrutiny when
    the charge is considered as a whole, together with the lack of any objection
    from trial counsel.

[131]

The instructions
    of the trial judge made it clear that his evidentiary references reflected his
    recollection of the evidence, could contain mistakes, and were not binding on
    the jury who were required by their oath or affirmation to rely on their own
    individual and collective recollections of the evidence. Trial counsel had a
    copy of the draft charge in advance of its delivery. He said nothing. He heard
    the charge delivered. He said nothing. It is a reasonable inference that, as an
    eye and ear witness to the trial proceedings, the reference to
    "India" was not so significant as to require correction.

[132]

Nor am I
    persuaded that the instructions about the travel history of the appellant and
    others reflect error. The evidence does not lack relevance. Its reception contravenes
    no rule of admissibility. And the only use of the evidence the judge invited
    the jury to make  as confirmatory of the testimony of the
Vetrovec
witness, Khattra  was not beyond its reach.

Ground #3: The Post-Arrest Statement

[133]

At trial, the
    appellant challenged the admissibility of his responses to brief questions
    about his knowledge of the alleged co-conspirators posed by investigators in a
    holding cell at Pearson Airport within an hour of his arrest. The appellant
    contended that the responses were involuntary and the product of a breach of
    the implementation component of s. 10(b) of the
Charter
. He also
    submitted that the trial judge erred in his instructions to the jury about the
    use of this evidence in reaching a verdict.

[134]

In his
    submissions to the trial judge, trial counsel abandoned the argument on
    voluntariness, but maintained his s. 10(b) claim and invited the trial judge to
    exclude the responses as evidence under s. 24(2) of the
Charter
.

[135]

The trial judge
    considered the entire interaction between the appellant and investigators. He
    concluded that, despite some ambivalence in some responses to repeated
    investigative queries about whether he wished to call a lawyer, the appellant
    made no such request until after he had answered the officers' questions. The
    judge expressed his conclusion in these terms:

I am not persuaded by this argument. It seems to me that Mr.
    Kler's position that he did not want to speak to a lawyer was consistently
    advanced until 4:42 p.m. when he expressed a desire to speak to counsel, which
    Constable Moreland immediately facilitated. That reconciles completely with
    Constable Todosijevic's impression that in the police car, Mr. Kler was stating
    that he wanted to speak to his father to arrange for a lawyer and not in the
    sense of arranging to have Mr. Kler speak to a lawyer for the purpose of
    obtaining advance immediately after his arrest. On balance, I am not convinced
    the facts are as Mr. Kler says they are. He has not discharged his onus of
    demonstrating a violation of his Section 10(b)
Charter
rights.

On a balance of probabilities, I find the pertinent facts
    relating to the resolution of the section 10(b) issue are as described by
    Constable Moreland and Constable Todosijevic.

The application is dismissed. The challenged conversation is
    admissible against Mr. Kler.

[136]

The appellant
    says that the trial judge erred in failing to find a breach of the
    implementation component of s. 10(b) of the
Charter
. On his own
    findings, the appellant submits, the trial judge should have concluded that an
    infringement occurred when the police failed to call the appellant's father
    who, the appellant claimed, would arrange for a lawyer. Further, investigators
    failed to advise the appellant that he need not respond to any of their queries
    until he had the opportunity to contact counsel.

[137]

In addition, if
    the responses were properly received in evidence, the appellant claims that the
    trial judge was wrong not to instruct the jury to consider alternate
    explanations for the appellant's knowledge of other co-conspirators, such as
    prior contact with them and information about their prior arrests.

[138]

I would not give
    effect to this ground of appeal.

[139]

The trial judge
    well understood the claim of constitutional infringement advanced by the appellant.
    He considered the evidence as a whole, applied the proper legal principles and
    reached a conclusion on the evidence that was reasonably available to him. The
    issue he was required to decide involves what is essentially a finding of fact.
    Like other findings of fact, his conclusion is entitled to deference on appeal.
    He did not err in law or make any palpable and overriding errors of fact.

[140]

It may well be
    that another judge might have decided the issue differently. But that is not
    enough for us to conclude that the trial judge was wrong in his analysis of the
    issue or in the conclusion he reached.

[141]

The complaint
    about the trial judge's instruction to the jury concerning the use of this
    evidence also falls on barren ground. The jury was adequately instructed on the
    factors they should consider in assigning weight to the various items of
    evidence adduced at trial. It is worthy of notice that the principal source of
    the alternative explanation for the appellant's admission  the appellant
    himself  did not testify at trial.

Ground #4: The
Vetrovec
Instruction

[142]

The final ground
    of appeal against conviction takes aim at the adequacy of the trial judge's
Vetrovec
caution in connection with the evidence of Khattra. The complaints are
    threefold:

i.

the instruction was not tailored to the facts in the sense of outlining
    for the jury the specific reliability concerns in connection with Khattra's
    evidence in respect of the case against the appellant;

ii.

the trial judge failed to point out that there was no evidence capable
    of providing confirmation about the meeting at the 410 plaza and at the airport
    hotels, the two most significant inculpatory features of Khattra's evidence
    against the appellant; and

iii.

the travel histories, especially those of the appellant and Dhanoa, were
    not capable of being confirmatory since they lacked the necessary implicative
    quality required of confirmatory evidence.

[143]

We did not find
    it necessary to hear submissions from the respondent on this ground of appeal.

[144]

The
Vetrovec
caution identified Khattra's testimony as evidence that was subject to special
    scrutiny. The jury was told that it was dangerous to convict on Khattra's
    evidence. The trial judge undertook an extensive review of the frailties
    associated with Khattra's testimony, in particular, its myriad inconsistencies
    and chameleon-like quality as the narrative developed over time. He also
    pointed out Khattra's self-interest and the substantial benefit he had received
    on sentence. The jury could not have been left in any doubt about the reasons
    why Khattra's evidence should be subject to special scrutiny.

[145]

The extent to
    which a trial judge illustrates potentially confirmatory evidence in connection
    with a
Vetrovec
witness is largely a matter of judicial discretion.
    Unlike potentially corroborative evidence under the former accomplice rule,
    references to potentially confirmatory evidence are illustrative, not
    exhaustive. And unlike under the former rule, confirmatory evidence need not
    implicate the accused in a material particular in the offence charged.

[146]

In this case,
    the charge (albeit in connection with the defence position) pointed out that
    there was no confirmation of Khattra's evidence about the 410 plaza or airport
    hotels meetings. Nothing left as potentially confirmatory lacked that quality.
    Recall as well that trial counsel was provided with a draft copy of the charge
    in advance of delivery and registered no objection to the caution or the
    evidence left as potentially confirmatory.

[147]

For these
    reasons, this ground of appeal fails and with it the appeal from conviction.

THE APPEAL FROM SENTENCE

[148]

The appellant
    also seeks leave to appeal and, if leave is granted, appeals the sentence of 16
    years less credit for pre-disposition custody.

[149]

The appellant
    says that the trial judge's sentencing decision is flawed by findings of fact
    that are unreasonable and not supported by the evidence. There was no evidence
    that the appellant had previously travelled to India, much less that he did so
    in connection with the importation of drugs. The only evidence that he
    recruited Thind was inadmissible hearsay, double hearsay, from Khattra.

[150]

The appellant
    also advances a disparity argument. Ghai, whose role extended well beyond the
    recruitment of Khattra, was sentenced to 14 years in penitentiary on a plea of
    guilty. The more appropriate range for the appellant and his involvement was
    the lower end of a range of 12-14 years.

[151]

The respondent
    contends that the sentence imposed is proportionate to the gravity of the
    offence  importation of 26 pounds of heroin  and the moral blameworthiness of
    the appellant. In reaching his conclusion, the respondent says, the trial judge
    considered the applicable sentencing objectives, the relevant sentencing
    principles, as well as the aggravating and mitigating factors. There is no
    basis upon which to interfere.

[152]

The respondent
    accepts that there is no direct evidence that the appellant travelled to India,
    or that he did so in connection with the importation of drugs. That said, the
    appellant's travel history, association with Dhanoa and his anecdotal reference
    to his wife becoming nervous during an earlier trip  suggestive of the
    appellant himself smuggling items into Canada  and Khattras evidence that the
    men who packed the suitcases in India asked if he knew the appellant would tend
    to support a similar conclusion. In any event, such a finding played no part in
    the sentencing decision. The trial judge located the appellant in the
    organizational hierarchy as a recruiter of the courier, Thind, and sentenced
    him on that basis, distinguishing his involvement from that of Ghai.

[153]

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

[154]

It is
    well-settled that, except where a sentencing judge makes an error of law or an
    error in principle that has an impact on the sentence imposed, an appellate
    court may not vary the sentence unless it is demonstrably unfit.

[155]

It is beyond
    controversy that the predominant sentencing objectives in preliminary or
    inchoate crimes that have as their object the importation of significant quantities
    of very dangerous drugs, as well as the substantive crime of importing, are
    denunciation and deterrence. The cost of apprehension must well exceed the
    financial reward achieved when undetected.

[156]

Even if we were
    to accept that the trial judge erred in his reference to the appellant's travel
    to and from India for drug importation purposes, a consideration of the reasons
    for sentence as a whole reveals that the appellant was sentenced for his role
    in recruiting a courier, not for some higher or more culpable level of
    involvement. Ghai pleaded guilty, a factor that greatly influenced the
    sentencing decision in his case. The appellant cannot claim the benefit of such
    mitigation.

[157]

The sentence
    imposed is consistent with precedent. It reflects no error in law or in
    principle. I see no basis upon which we are entitled to interfere.

CONCLUSION

[158]

For
    these reasons, I would dismiss the appeals from conviction and sentence.

Released:    January 25,
    2017 ("DW")

"David Watt
    J.A."

"I agree. E.A.
    Cronk J.A."

"I agree. R.G.
    Juriansz J.A."


COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Mansingh, 2017 ONCA 68

DATE: 20170126

DOCKET: C61448

Doherty, Blair and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jordan Mansingh

Appellant

Mark Halfyard and Breana Vandebeek, for the appellant

M. Adams, for the respondent

Heard:  January 19, 2017

On appeal from the convictions entered by a jury presided
    over by Justice Goldstein of the Superior Court of Justice, dated October 2, 2015,
    and on sentences imposed on December 18, 2015.

By-the-Court:

[1]

The appellant
    was convicted of several gun-related charges.  All of the charges arose out of
    a single incident.

[2]

The Crown
    alleged that the appellant discarded a loaded handgun as he ran from the
    police.  Officers involved in the chase testified that the appellant appeared
    to have a gun as he ran from them and appeared to drop the gun shortly before
    he was tackled.  According to the police, the gun was found very near where the
    appellant was tackled and he still had a magazine for the weapon in his hand.

[3]

The appellant
    testified.  He acknowledged running from the police.  When he saw them he was
    on his way to deliver some marihuana to a friend.  The appellant denied having
    a gun and indicated that he had dropped his cell phone immediately before being
    tackled by the police.  The defence called two witnesses in addition to the
    appellant.  One witness, Ryan Haye, testified that the gun belonged to him and
    that he had put it in the location where the police found it.  The second
    witness testified that he was with Mr. Haye when he left the gun in the
    location where the police eventually found it.

[4]

The jury
    convicted on all counts save one, and the trial judge imposed an effective
    sentence of 43 months.  The appellant appeals convictions and sentence.

I

The Conviction Appeal

[5]

In his factum, the appellant advanced four grounds of appeal against
    conviction.  Counsel argued three of those grounds.  We will address only the
    three grounds advanced in oral argument.

The Jury Selection Issue

[6]

The appellant chose to challenge for cause on the basis of potential
    racial bias.  He initially sought an order excluding the panel during the
    selection process and an order allowing for rotating triers during the
    selection process.

[7]

In a dialogue with counsel before the jury selection process started,
    the trial judge indicated that it was his practice to require static triers if
    the jury panel was to be excluded during the selection process.  He
    acknowledged that other judges took a different view and permitted rotating
    triers.  The trial judge invited counsel to make submissions in support of the
    position that rotating triers could be used.

[8]

Counsel for the defence replied that his main application was to
    exclude the panel.  He added, I actually like static triers.  Counsel and the
    trial judge proceeded to discuss the steps that could be taken to vet the
    static triers to ensure that they were up to their task.

[9]

After the trial judge indicated that the triers could be vetted, defence
    counsel said, then I think that would accommodate my biggest concerns.  The
    Crown indicated that she was agreeable to the use of static triers.  The trial
    judge said, Well I think we put that issue to bed for the moment.

[10]

The jury selection proceeded with the panel excluded.  Prospective
    jurors were challenged for cause based on race.  Static triers decided the
    outcome of those challenges.

[11]

On appeal, counsel submits that defence counsel did not bring an
    application under s. 640(2.1) of the
Criminal Code
at trial.
    Consequently, the trial judge could not use static triers to determine the challenge
    for cause.  The improper use of static triers meant that the court was not
    properly constituted and the verdicts must be quashed:
R. v. Noureddine
,
    2015 ONCA 770.

[12]

This case is distinguishable from
Noureddin
e and is governed by
R. v. Grant
, 2016 ONCA 639, at paras. 50-51.  At trial, defence
    counsel made it clear that he wanted prospective jurors excluded during the
    challenge process.  He was happy to use properly vetted static triers as long
    as the panel was excluded.  As stated in
Grant
, substance must
    supersede form.  Counsel got what he wanted and, in substance, if not in form,
    made the requisite application under s. 640(2.1).  This ground fails.

II

the trial judges comment on the defence counsels opening

[13]

The appellant ran from the police.  In his opening to the jury, counsel
    told the jury that the accuseds actions had to be assessed in the context of
    the community in which he lived.  Counsel observed that the applicant lived in
    a high-crime, heavily-policed neighbourhood.  He indicated to the jury that the
    police often acted arbitrarily and without regard to the rights of the
    individuals with whom they interacted.

[14]

After counsel completed his opening, the trial judge instructed the jury
    to focus on the specifics of the case and not the broader societal concerns
    referred to by counsel.  The trial judge told the jury to disregard counsels
    comments about those broader issues of police practice.

[15]

The trial judge cannot be criticized for telling the jury to focus on
    the specific events and issues in the case and not on broader societal
    concerns.  However, in a jury trial, a trial judge must try to avoid comments
    that may cast counsel in a bad light in the eyes of the jury.  Sometimes such
    comments are necessary to the proper conduct of the trial.  Here, the trial
    judge raised his concerns with counsel and gave his instructions to the jury
    only after hearing submissions from both counsel.

[16]

It may be that the trial judge could have stopped his instruction to
    the jury after properly cautioning the jury to focus exclusively on the
    specifics of the case.  However, there is no realistic possibility that the
    trial judges further instruction to disregard parts of counsels opening
    address that went beyond the specifics of the case could have prejudiced the
    appellant or compromised the fairness of the trial.  The sentence, which is the
    focal point of this ground of appeal, was the single, hardly inflammatory
    comment made by the trial judge in the course of conducting the trial in an
    entirely fair and even-handed manner.  We reject this ground of appeal.

III

the
W.D.
INSTRUCTION

[17]

The trial judge gave the usual
W.D.
instruction.  Counsel
    submits that the jury would have understood this instruction as applicable only
    to the accuseds evidence and not the exculpatory evidence from the other
    defence witnesses, and particularly the evidence from two witnesses indicating
    that Mr. Haye had placed the gun where it was found by the police.  Counsel
    referred to
R. v. B.D.
, 2011 ONCA 51, at para. 114 and
R. v. Dayes
,
    2013 ONCA 614, at para. 55.

[18]

The adequacy of a jury instruction is measured by reference to the
    conduct of the trial and the specific issues raised in a trial.  Factually,
    this was a single issue case.  Did the appellant throw the gun away when he was
    running from the police?

[19]

The trial judge made it clear to the jury that if they had a reasonable
    doubt on all of the evidence, which clearly included the defence evidence
    other than the accuseds testimony, it must acquit the accused.  It may be that
    the trial judge could have said more.  There would have been nothing wrong had
    the trial judge given an instruction like that now urged by the appellant.  However,
    the failure to say something that could have been said is not necessarily an
    error.

[20]

In light of the simple and single factual issue on which these verdicts
    turned, and the positions of the parties, we have no doubt that the jury
    understood that it was required to consider all of the evidence and, if on all of
    that evidence it had a reasonable doubt as to whether it was the accused who
    placed the gun where the police found it, they were obligated to acquit.  We
    would not give effect to this ground of appeal.

IV

the sentence appeal

[21]

The trial judge imposed an effective sentence of 43 months.  While
    acknowledging that a penitentiary term was necessary, counsel submits that the
    trial judge erred in finding the appellant was engaged in commercial drug
    activity at the time he was in possession of the loaded firearm.  The trial
    judge treated this as a significantly aggravating factor.  The appellant accepted
    that he was trafficking in marihuana in the technical sense in that he was
    carrying marihuana to a friend.  He denied that he was a drug dealer.

[22]

The trial judge found that the appellant was engaged in commercial drug
    trafficking, albeit at a low level.  That finding was open on the evidence.
    The appellant was in possession of a large amount of cash and a loaded
    handgun.  Both indicate that the appellant was in the business of selling drugs
    and was not merely delivering the drugs to a friend as a favour.

[23]

Counsel also submits that the trial judge failed to give adequate weight
    to the appellants status of a young first offender.

[24]

The trial judge was alive to the appellants age, the absence of a
    criminal record and his relatively positive prospects.  However, this court,
    and more importantly the Supreme Court of Canada, have repeatedly indicated
    that the kind of offences committed by the appellant require the imposition of substantial
    jail terms even if the offender is young and has no criminal record:  see
R.
    v. Nur
, 2015 SCC 15.  Cases from this court, referred to by the trial
    judge, support the position that the sentence imposed was within the established
    range for this kind of offence even when committed by a relatively young first
    offender.  We observe, as did the trial judge, that the appellant not only fled
    from the police while armed with a loaded handgun, a very dangerous activity, he
    also threw that loaded weapon away in a place where it could easily have been
    found by a young child.

[25]

The trial judge did not err in principle in the sentence he imposed.
    The sentence is not manifestly unfit.  We cannot interfere.

V

conclusion

[26]

As indicated at the end of oral argument, the appeal from conviction and
    the appeal from sentence are dismissed.

Released: DD  JAN 26 2017

Doherty J.A.

R.A. Blair J.A.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Marini, 2017 ONCA 46

DATE: 20170119

DOCKET: C59342

Weiler, Pepall and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ronald Marini

Appellant

Melanie J. Webb, for the appellant

Luke Schwalm, for the respondent

Heard: January 12, 2017

On appeal from the conviction entered on January 16, 2014
    and the sentence imposed on February 14, 2014 by Justice Edward E. Gareau of
    the Superior Court of Justice, sitting without a jury.

By the Court:

A.

Overview

[1]

Three break-ins in three Subway restaurants in Sault St. Marie took
    place in the span of five days on July 11, 12 and 15, 2012. The appellant was
    tried and found guilty in relation to the July 15, 2012 break-in although no
    theft was committed because the perpetrator was unable to access the safe. The
    Crowns similar fact evidence application in relation to the July 11 and 12
    break-ins, in which the safe was broken into and money stolen, was allowed and
    the appellant was also found guilty in relation to these break-ins

[2]

The appellant appeals his conviction on one count of break and enter
    with intent to commit an indictable offence therein (s. 348(1)(a)); two counts
    of break and enter and commit an indictable offence therein (s. 348 (1)(b));
    and three counts of possession of break-in instruments (s. 351(1)), all
    contrary to the
Criminal Code,
R.S.C. 1985, c. C-46.

[3]

Because we are in agreement with the appellants submissions that the
    trial judge erred with respect to the use he made of the appellants criminal
    record and that his evaluation of the evidence is flawed in material respects,
    it follows that the convictions must be set aside and a new trial ordered.

[4]

Having regard to our decision, it is unnecessary for us to consider the
    appellants appeal from his sentence of 3.5 years plus 76 days pre-trial
    custody.

B.

Facts

[5]

The three Subway restaurants broken into were each equipped with video
    surveillance cameras. The trial judge made the following findings of fact:

·

July
    11 break-in  153 Great Northern Road:
The side door window to the
    restaurant was smashed and entry was gained at 1:50 a.m. A person wearing a
    black balaclava over his or her face and a black jacket entered the restaurant.
    The perpetrator stole $1,556 from the safe.

·

July
    12 break-in  216 Second Line, West:
Entry was gained through the back
    door at 4:27 a.m. A person wearing a black balaclava over his or her face and a
    black jacket entered the restaurant. The perpetrator stole $2,107 from the
    safe.

·

July
    15 break-in  421 Bay Street:
A window in the front of the store was
    smashed and entry was gained at 1:59 a.m. A person wearing a black balaclava
    over his or her face and a black jacket entered the restaurant. An attempt was
    made to enter the safe, but was unsuccessful.

[6]

Lacey Dalton was a witness to the events of July 15. She saw the
    perpetrator leave the Subway restaurant after the break and enter had taken
    place. She was driving home from work when she noticed that the window of the
    Subway on 421 Bay Street was smashed. She stopped her car and was attempting to
    call the police when she observed a man run out of the Subway restaurant and
    get into a van. Dalton testified that the man was wearing a black mask that
    covered his entire face to his neck. Dalton followed the van into a dead end
    and then observed a man leaving the drivers side of the van, which she
    believes was left running with the lights on.

[7]

Dalton testified that a short time later (1 to 2 minutes), she observed
    a man without a mask go into the van and turn the van off (or the lights in the
    van off). She described the man as wearing a black t-shirt with grey on the
    sleeves, red shorts, running shoes, and a black hat. She described this man as
    having the same stature as the man she had seen leaving the van earlier. This
    man told her she should not be parking where she was as the lane was a
    passenger walkway. He left the scene after he exited the van.

[8]

Constable Vautour was dispatched in respect of the Subway break-in. He
    observed a male wearing red shorts crossing Gore Street. The male was sweaty
    and out of breath. The man identified himself as Ronald Marini (the appellant).
    The appellant was subsequently arrested. Constable Vautour was responsible for
    seizing the appellants clothing, and he noted that there appeared to be small
    shards of reflective glass on the top of the appellants baseball hat. A black
    bag containing burglary tools was located nearby in the direction from which
    the appellant had come.

[9]

Both Constable Vautour and Constable Kovacs (who was also involved in
    the appellants arrest) testified that on arrest, the appellant had a large
    cast on his right hand, from his fingers up to his elbow.

[10]

The police found an axe and a sledgehammer in the van, and observed
    broken glass inside the van. They also found a black balaclava on the ground
    beside the drivers side door. A swab was taken from outside the mouth area on
    the balaclava which matched the appellants DNA.

[11]

There were no witnesses to the other two incidents.

[12]

At trial, the appellant was self-represented. The appellant testified in
    his own defence. The trial judge had the assistance of
amicus
. The
    appellant denied being involved in any of the break-ins and denied being the
    person in the surveillance tapes. He testified that on the evening of July 14,
    2012, he went to a bar and stayed until approximately 1:50 a.m. on July 15,
    2012. He left the bar with the intention of walking to his sisters home. At
    about 2:00 a.m. he saw a person running to a side street off of Gore Street.
    The appellant testified that the man was wearing dark clothing and it looked
    like he was carrying something, like a bag. The appellant looked down the alley
    and saw a van and a car parked behind the van. He noticed that the van was rolling
    down the alleyway. The appellant testified that he opened the van and put it in
    park and turned the ignition off. He said he was sweating a lot because it
    was a hot and humid evening. He testified that he was at the wrong place at
    the wrong time.

[13]

The appellant acknowledged that his DNA was on the balaclava, but he
    denied that it was his balaclava and, prompted by some leading questions by
amicus
,
    explained that he must have touched or sat on the balaclava when he got into the
    seat of the van. He testified that he saw the balaclava fall to the ground as
    he was getting out of the van.

C.

the law

[14]

In R
. v. Morrisey,
(1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at
    p. 221, Doherty J.A. stated:

Where a trial judge is mistaken as to the substance of material
    parts of the evidence and those errors play an essential part in the reasoning
    process resulting in a conviction, then, in my view, the accuseds conviction
    is not based exclusively on the evidence and is not a true verdict.

At a later point in the same paragraph, he stated:

If an appellant can demonstrate that the conviction depends on
    a misapprehension of the evidence, then, in my view, it must follow that the
    appellant has not received a fair trial, and was a victim of a miscarriage of
    justice. This is so, even if the evidence, as actually adduced at trial, was
    capable of supporting a conviction.

[15]

As the Supreme Court of Canada observed after citing
Morrissey
in
R. v. Lohrer,
[2004] 3 S.C.R. 732, at para. 4:

Morrissey,
it should be emphasized, describes a
    stringent standard. The misapprehension of the evidence must go to the
    substance rather than to the detail. It must be material rather than peripheral
    to the reasoning of the trial judge. Once those hurdles are surmounted, there
    is the further hurdle (the test is expressed as conjunctive rather than
    disjunctive) that the errors identified must play an essential part not just in
    the narrative of the judgment but in the reasoning process resulting in
    conviction.

[16]

As we indicate below, that test is met in this case.

D.

applying the law to the trial judges reasoning process

[17]

The trial judge set out the principles in
R. v. W.(D.)
, [1991]
    1 S.C.R. 742 and concluded that several aspects of the appellants testimony
    strain belief. First, it was difficult to accept the appellants explanation
    for his DNA being on the balaclava, given that the swab sample was taken from
    the mouth area of the item. He concluded at para. 34 of his reasons, for the
    DNA sample to be taken from the mouth area, it follows logically that the
    person with his DNA sample on the balaclava must have been wearing the
    balaclava  his mouth must have come into contact with the balaclava. Having
    regard to the evidence that the DNA swab was only taken from the exterior of
    the balaclava and not the interior, and the lack of any evidence respecting
    transferability of the DNA, it could not form the basis for the trial judges
    rejection of the appellants evidence that he must have accidentally come into
    contact with the balaclava when he entered the van and sat on the seat, either
    by sitting on the balaclava or touching it with his hand.

[18]

When addressing the appellants explanation for being apprehended close
    to the van that was followed from the location of the last break-in, the trial
    judge said the following at para. 35 of his reasons:

I also have difficulty accepting Mr. Marini's evidence that he
    was just "being nosey" by being in the alleyway where the van was
    parked or that he was playing the role of good Samaritan by putting the van
    into park. Mr. Marini acknowledged a criminal record which is both lengthy
    and substantial. This record starts in 1980 with the last conviction being June
    21, 2013. The criminal record, entered as Exhibit 31, is replete with property
    offences, break and enters and possession of stolen property. I am cautious
    with respect to the use to be made of the criminal record of Mr. Marini. The
    record is not being considered for the suggestion that Mr. Marini is more
    likely to have committed the Bay Street break and enter because of his criminal
    past. Such an approach would be unacceptable and contrary to the law. I do not
    accept that and that is not why his criminal record is being considered.
The
    record is important to consider Mr. Marini's life experiences and whether given
    this criminal past and life circumstances, it makes sense for him to hang
    around what was obviously a crime scene, to help out and to provide assistance
    by putting the van in park and to speak to the police about the man he saw
    running carrying a bag.
In my view, it does not make sense. The sensible
    and logical thing for a person
with Mr. Marini's past
to do would be
    to get out of the area as fast as he could. I do not accept Mr. Marini's
    explanation that he was at the wrong place at the wrong time or a victim of
    circumstance. It does not make sense for Mr. Marini to be hanging around the
    Manilla Terrace or Gore Street area when he knows there has likely been a crime
    committed,
given his past criminal background and life experiences.
The sensible and logical thing for Mr. Marini to do would be to continue
    on his way, to his sister's on Adelaide Street as expediently as possible. [Emphasis
    added]

[19]

Essentially, the trial judge reasoned that, if the appellant were truly
    innocent and was in fact in the wrong place at the wrong time, his decision to
    remain was undermined by his criminal past and life experiences (
i.e.
,
    his criminal record). In other words, if innocent, someone with the appellants
    criminal record ought to have fled the scene.

[20]

As acknowledged by the trial judge in his reasons, the appellants
    criminal record could not be used as evidence of the appellants propensity to
    commit the offences with which he was charged. The trial judge could simply
    have used the appellants extensive criminal record, which included many
    entries for breaking and entering, in assessing his credibility and relied on
    it to reject his evidence. This use is permissible under s. 12(1) of the
Canada
    Evidence Act
, R.S.C., 1985, C-5 (
CEA
). In our opinion, however,
    the trial judges use of the appellants criminal record went well beyond the
    limited use permitted by the
CEA.
We are not persuaded that references
    made by the appellant in his evidence about his criminal past and having been
    to prison mitigated this error.

[21]

The trial judge also considered the fact that the appellant had a cast
    on his right arm from his fingers to his elbow at the time of the break-ins.
    But he rejected the appellants submission that as a result of his injury, he
    could not swing an axe or use any of the tools used in the break-ins. The trial
    judge referred to the still images taken from the video surveillance and noted
    that there was no picture showing the perpetrator holding a heavy object in his
    right hand. Rather, the photos showed that the heavier objects (such as the
    axe) were held in the perpetrators left hand, and the right hand held a
    crowbar.

[22]

The surveillance videos from both the July 11 and July 15, 2012
    incidents show the perpetrator holding a heavy object with his right hand
    higher on the shaft and using his right hand to pull the head back and to
    propel it forward with significant force. Thus, the trial judge ignored
    relevant evidence that he was required to consider before rejecting the
    appellants evidence.

[23]

The trial judge stated he accepted the evidence of Constables Vautour
    and Taylor that there were fine glass particles on the appellants hat and
    shirt. He rejected the appellants assertion that the hat had a metallic
    flair, and noted that this was contradicted by the actual hat, which was
    entered into evidence as an exhibit.

[24]

The respondent acknowledges that the trial judge misapprehended the
    evidence in saying that there were glass particles on the appellants shirt and
    running shoes. The constables made no observations of glass particles on his
    shirt or running shoes.

[25]

Crown counsel did state during the course of her remarks during the
    examination-in-chief of Detective Taylor that small white packets enclosed with
    the clothing exhibits contained glass particles found on the clothing. However,
    what Crown counsel says is not evidence. Detective Taylor did not have any
    personal knowledge of glass particles having been found on the clothing the
    appellant was wearing at the time of his arrest. No glass particles were found
    on the clothing or shoes seized when the appellant was arrested.

[26]

The only evidence regarding shards or flecks of glass on the appellants
    baseball cap came from Const. Vautour and he acknowledged that they were no
    longer on the hat. In response to the suggestion of
amicus
that he
    could not have known that what was on the appellants hat were glass particles,
    Const. Vautour stated, They were a reflective material, something that would
    make the light glint off them The trial judge used the absence of any
    reflective material on the hat in court against the appellant in assessing his
    credibility but not in assessing Const. Vautours.

[27]

More importantly, the surveillance evidence indicated that in all three
    break-ins, it was a balaclava, not a hat that was worn. No evidence was
    adduced, or theory advanced by the Crown as to how glass debris could have been
    transferred to the hat worn by the appellant at the time of his arrest. Even if
    it was open to the trial judge to accept that there was evidence of glass
    particles on the appellants baseball hat at the time of his arrest, the hat
    was not linked to the commission of the crimes and the evidence of the glass
    particles could not be used by the trial judge without connecting the hat to
    the crimes alleged.

[28]

The trial judges misuse of the appellants criminal record,
    standing alone, would warrant appellate intervention in this case. In addition,
    the cumulative effect of the trial judges mistakes in assessing the evidence
meet the stringent standard of being material to his
    reasoning and of going to the substance rather than the detail of his reasons.
Even
    although the evidence adduced at trial may have been capable of supporting the
    appellants conviction, the errors the trial judge made in assessing the
    evidence played an essential part in his reasoning process with the result that
    the convictions are not true verdicts in the sense of having been arrived at
    in accordance with the rule of law.

[29]

Accordingly, the appeal is allowed, the appellants convictions
    are set aside and a new trial is ordered on all counts.

Released: K.M.W. January 19, 2017

Karen M. Weiler
    J.A.

S.E. Pepall J.A.

G.T.
    Trotter J.A.