COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Chair, 2015 ONCA 868

DATE: 20151209

DOCKET: C59667

Doherty, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen Ex Rel. the Regional
    Municipality of York

Appellant

and

Wai-On A. Chair

Respondent

Hans J. Saamen, for the appellant

Arvin Ross, for the respondent

Heard: December 8, 2015

On appeal from the order of Justice W. Gorewich of the Ontario
    Court of Justice, dated August 8, 2014, setting aside a conviction and ordering
    a new trial.

APPEAL BOOK ENDORSEMENT

[1]

The parties acknowledge that the law as stated in
R. v. Bigioni
,
    [1988] O.J. No. 2220 stands.  We agree.  Nothing in the subsequent case law
    should be taken as diminishing that authority.

[2]

In this case, there was evidence that the officer tested the device
    before and after its use in accordance with the procedure set out in the
    manual.  There was also evidence that the officer was a qualified operator.
    The trial judge accepted the evidence.  As indicated in
Bigioni
, that
    evidence was sufficient to evidence of a
prima facie
case.

[3]

The appeal judge, therefore, erred in finding that the Justice of the
    Peace erred in law by making a finding on the facts that he was not entitled to
    make.  The appeal must be allowed on that basis.

[4]

We do not reach the broader question posed by the appellant.  In our
    view, the record does not permit the kind of examination necessary to a
    determination of whether the court should create a presumption of accuracy in
    respect of the readings registered by radar guns.

[5]

Appeal allowed and conviction restored.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Duncan, 2015 ONCA 928

DATE: 20151231

DOCKET: C56046 & C55993

Weiler, Tulloch and van Rensburg JJ.A.

C56046

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Duncan

Appellant

C55993

AND BETWEEN

Her Majesty the Queen

Respondent

and

Karen Stevenson

Appellant

Ingrid Grant, for the appellant Duncan

Richard Litkowski, for the appellant Stevenson

Milica Potrebic, for the respondent

Heard: June 3, 2015

On appeal from the convictions entered by Justice Joseph
    Fragomeni of the Superior Court of Justice, sitting with a jury, on November
    25, 2011, and from the sentence imposed on June 18, 2012, with reasons reported
    at 2012 ONSC 2609, [2012] O.J. No. 2966.

Tulloch J.A.:

A.

Background

[1]

Following an eight-week trial with four other co-accused, including the
    appellant Stevenson, the appellant Duncan was convicted of numerous offences
    related to trafficking in drugs and firearms. The appellant Stevenson was
    convicted of one count of conspiracy to possess the proceeds of crime.

[2]

A significant amount of the Crowns evidence in this case arose from
    intercepted conversations between the appellant Duncan and his associates. The
    Crown alleged that Duncan was the ringleader of the group.

[3]

Duncan faced numerous counts with some overlap in terms of both the
    nature of the offences and the incidents giving rise to certain charges.  There
    were a total of 16 counts on the indictment, reflecting 8 incidents of criminal
    activity.

[4]

Counts 1, 2, 4, and 5 related to the importation of approximately 4
    kilograms of cocaine from Panama by three couriers on March 16, 2009 and May
    25, 2009. Duncan was charged with:

·

Count 1: Importing cocaine on March 16, 2009

·

Count 2: Conspiracy to import cocaine between January 1, 2009 and
    March 16, 2009

·

Count 4: Importing cocaine on May 25, 2009

·

Count 5: Conspiracy to import cocaine between January 1, 2009 and
    May 25, 2009

[5]

Duncan was also convicted for his role in setting up a transaction for a
    large amount of marijuana on June 2, 2009. This incident led to count 6:
    conspiracy to traffic marijuana.

[6]

On June 11, 2009, the police intercepted numerous calls by Duncan and
    his associates which led them to believe that Duncan was packaging ecstasy and
    marijuana to be sent to his sister, Debbie Duncan, in Atlanta, Georgia. The
    police believed some of these calls originated from the apartment of Duncans
    girlfriend and co-accused, Joanna Ross, at 780 Eglinton Avenue West in Toronto.
    Police surveillance and expert testimony on the location of cell phone use and
    cell site information supported this theory. Four counts relate to this event:

·

Count 7: Possession of ecstasy for the purpose of exporting

·

Count 8: Conspiracy to export ecstasy

·

Count 9: Possession of marijuana for the purpose of exporting

·

Count 10: Conspiracy to export marijuana

[7]

Three days later, on June 14, 2009, Ross, the appellant Stevenson, and
    two other women were stopped at the border while returning to Canada from
    Buffalo, New York. Ross had US$16,000 on her person. The women travelled to
    Buffalo at Duncans request to pick up money being brought there from Atlanta.
    Duncan, Ross, and Stevenson were charged with count 12: conspiracy to possess
    the proceeds of crime.

[8]

Count 12 was Stevensons only conviction. She has since served her
    18-month conditional sentence.

[9]

Duncan was also convicted of two firearms offences. The convictions were
    based on two intercepted conversations between Duncan and an unknown male on
    June 18, 2009. The Crown successfully argued that the men were arranging for
    the transfer of a 9 millimetre firearm. Duncan was convicted of:

·

Count 13: Trafficking a firearm by offer

·

Count 14: Conspiracy to possess an unauthorized firearm

[10]

Duncan
    received a global sentence of 22 years imprisonment, adjusted to 15 years to
    account for the principle of totality. He also received the equivalent of 6
    years credit for pre-sentence custody.

B.

Grounds of Appeal

[11]

The
    appellants appeal their convictions. Duncan also appeals his sentence.

[12]

Duncans
    first ground of appeal is that the trial judge erred in his final instructions
    to the jury. He argues that the trial judge: (i) failed to relate the evidence
    to the legal instructions or set out the position of the defence; (ii) provided
    inadequate instructions on the charge of conspiracy to possess an unauthorized
    firearm and misdirected the jury on the burden of proof on that count; and
    (iii) provided inadequate, misleading, and prejudicial instructions to the jury
    on the expert cell tower evidence.

[13]

Second,
    Duncan submits that the verdicts on the firearm charges were unreasonable
    because the Crown failed to call evidence to prove he was not authorized to
    possess or transfer a firearm.

[14]

Finally,
    Duncan argues that the trial judge erred in dismissing his constitutional
    challenge to the mandatory minimum sentence for trafficking a firearm under s.
    99(2) of the
Criminal Code
, R.S.C. 1985, c. C-46, and that the overall
    sentence was unduly harsh and excessive.

[15]

The
    appellant Stevenson argues that the trial judge erred in his instruction to the
    jury on the offence of conspiracy to possess the proceeds of crime.

[16]

For
    the reasons set out below, I am of the opinion that the trial judge erred only
    in his instructions to the jury on the firearm offences. I would therefore allow
    the appeal in relation to counts 13 and 14 and, subject to the discretion of the
    Crown, order a new trial on these two counts only.

[17]

I
    would otherwise dismiss the balance of the conviction appeal. As the firearm
    convictions are set aside, I would allow the sentence appeal and impose a
    sentence of 14 years imprisonment, less pre-sentence credit.

[18]

I
    would dismiss Stevensons appeal of her conviction for conspiracy to possess
    the proceeds of crime.

C.

Discussion

The Jury Instruction

[19]

I
    begin with the ground of appeal common to both appellants  the jury
    instruction. It is also the one on which this entire appeal is ultimately
    decided. First, I summarize the positions of the parties on appeal. I discuss
    the law applicable to appellate review of jury instructions. The facts relevant
    to each group of counts and an analysis of the sufficiency of the instructions
    given on those counts are then set out.

(1)

The Positions of the Parties

[20]

Both
    appellants challenge the adequacy of the trial judges instructions on the
    basis that he: (i) failed to sufficiently instruct the jury on the law; (ii)
    failed to properly summarize and review the evidence as it related to each
    issue to be decided; and (iii) failed to adequately present the parties
    positions.

[21]

Duncan
    asserts that the trial judge failed to set out what specific factual
    determinations the jury would have to make or which evidence or wiretaps were
    potentially relevant on which issues. He submits that though the trial judge
    summarized and quoted evidence in broad strokes relevant to each overall count,
    the judge failed to direct the evidence review to any particular issue to be
    decided. Duncan argues that the trial judge followed the same approach on every
    count, resulting in a generally inadequate charge.

[22]

For
    count 14, conspiracy to possess an unauthorized firearm, Duncan argues that the
    trial judge failed to explain the elements of unauthorized possession of a
    firearm or set out what a conspiracy to commit the offence of possession would
    entail. In terms of the conspiracy, he argues that the trial judge never
    directed the jury to issues they would need to decide in order to be convinced
    beyond a reasonable doubt of the object of the conspiracy and that Duncan and
    the unknown male reached an agreement meant to be taken seriously. The jurors
    would have been left to navigate through the evidence and figure out, on their
    own, the legal and factual issues to be determined.

[23]

The
    appellant Stevenson argues that the trial judges instruction on count 12,
    conspiracy to possess the proceeds of crime, was inadequate in that it did not
    sufficiently instruct the jury on the law of conspiracy. Stevenson further
    argues that she was disadvantaged by the trial judges increasingly abbreviated
    instructions on conspiracy as he moved through the charge. She also submits
    that the trial judge failed to summarize the evidence relevant to her
    participation and failed to fairly present the position of the defence to the
    jury.

[24]

The
    Crown argues that the trial judge delivered comprehensive instructions to the
    jury over three days, reviewing all 16 counts in the indictment individually
    and explaining the essential elements of the offences and the relevant evidence
    for each. The instructions included a summary of the positions taken by the
    Crown and each accused at trial.

[25]

The
    Crown also points out that the trial judge provided all counsel with an
    opportunity to comment on the charge before he began the review of the
    positions of the parties for the jury. Only one defence counsel had any
    comments, and stated that the directions were comprehensive.

[26]

The
    Crown concedes that, on the count of conspiracy to possess an unauthorized
    firearm, the trial judge did not fully instruct the jury on the essential
    elements of the unlawful object of the conspiracy  the unauthorized possession
    of a firearm  but argues that this was not a relevant legal issue for the jury
    to consider.

(2)

The Applicable Law

[27]

A
    functional approach must be taken when assessing the adequacy of a jury charge.
    The question to be determined is whether the alleged deficiencies, compared to
    the acceptable legal instruction, caused a serious concern about the jurys
    verdict:
R. v. Jacquard
, [1997] 1 S.C.R. 314.

[28]

As
    this court set out in
R. v. MacKinnon
(1999), 43 O.R. (3d) 378 (C.A.),
    at p. 386, the functional approach requires consideration of whether, by the
    end of the instructions, the jury understood:

·

the factual issues which had to be resolved,

·

the law to be applied to those issues and the evidence,

·

the position of the parties, and

·

the evidence relevant to the positions of the parties on the
    various issues.

See also
Azoulay v. R.
, [1952] 2 S.C.R. 495.

[29]

There
    is no prescriptive formula or incantation that must be adhered to. Rather, as
    Doherty J.A. explained in
MacKinnon
, the trial judge should provide
    references to the evidence which are sufficient, in the context of the case and
    the entirety of the charge, to alert the jury to the parts of the evidence that
    are significant to particular issues and the positions taken by the parties on
    those issues. The trial judge should not simply put evidence in bulk to the
    jury, leaving it to them to determine the relationship between the evidence and
    the issues that must be decided: see
Jacquard
, at para. 13;
R. v.
    Royz,
2009 SCC 13, [2009] 1 S.C.R. 423, at para. 2.

[30]

However,
    considerable discretion is afforded to a trial judge to choose the method of
    reviewing the evidence and relating the evidence to the issues:
R. v. John
,
    [1971] S.C.R. 781, at pp. 792-793. That evidence could have been more complete,
    better expressed, or articulated differently is not a basis for finding a trial
    judges instructions to be inadequate. The instructions are adequate if the
    evidence is put to the jury in a way that allows the jury to fully appreciate
    the issues and the defences advanced:
R. v. Daley
, [2007] 3 S.C.R.
    523, at para. 57.

[31]

It
    is also important to note that counsel is expected to assist the trial judge by
    offering comments on the content of a jury instruction, raising objections, and
    providing assistance, particularly at the pre-charge conference. Failure to
    assist, as well as failure to object, may be indicative of the seriousness of
    the error that is later alleged:
Daley
, at para. 58;
Royz
, at
    para. 3;
Jacquard
, at para. 38.

(3)

Counts 1, 2, 4 and 5: Importation of Cocaine; Conspiracy to Import
    Cocaine

Facts

[32]

On
    March 16, 2009, Holly Harris and John Blair Curran arrived at Pearson
    International Airport from Panama. Their luggage contained about two kilograms
    of cocaine in shampoo and toiletry bottles. Harris and Curran were arrested for
    importing cocaine.

[33]

On
    May 25, 2009, Leonide Roussy arrived on a flight from Panama with 1.8 kilograms
    of cocaine hidden in toiletry bottles. He was arrested for importing cocaine.

[34]

The
    Crowns theory was that these importations had taken place at the behest of
    Duncan, relying on wiretap intercepts and text communications to establish
    Duncans role in arranging the importations. The appellant argued that, in both
    incidents, the parties either acted independently or at the direction of
    individuals other than Duncan.

Analysis

[35]

On
    appeal, the appellant argues that the trial judge failed to articulate the live
    issue in relation to these incidents  was Duncan responsible for the
    importations? The appellant also argues that the trial judge did not point to
    evidence that was relevant to this issue. Instead, the appellant suggests that
    the trial judge gave a confusing jumble of summary and quotations of the
    evidence.

[36]

I
    disagree. The trial judge reviewed the essential parts of the evidence and
    related it to the issues so that the jury could appreciate the value and effect
    of the evidence.

[37]

The
    trial judge first set out the essential elements of the offence of importing a
    controlled substance, then broke down each essential element into a question.

[38]

The
    trial judge directed his review of the evidence to the key issue of whether the
    appellant imported a substance into Canada. This included a thorough review of
    the evidence of various Canadian Border Service Agency and police officers,
    intercepted phone calls, and texts. The trial judge did not review every call,
    but he read the content of several intercepted calls and referred the jury to
    other calls to review.

[39]

After
    providing the evidence review, the trial judge re-iterated the key issue on
    count 1:

The real issue for you to determine on the count is whether
    Andrew Duncan was responsible for bringing the cocaine into Canada by utilizing
    Harris and Curran as couriers and that he intended to do this.

[40]

It
    cannot be said that the trial judge failed to provide the jury with the
    defences position that, in both incidents, the couriers were either working
    independently, at the behest of Duncans associate Junior Wright, or for either
    Leonide Roussy, his son Dennis Roussy, or both.

[41]

In
    this regard, the instructions on count 1 must be read with the instructions on
    count 4. There, the trial judge reviewed the evidence called by Duncan,
    including the evidence of a travel agent that established that Leonide Roussy
    paid for a ticket to Panama in the relevant time period and evidence from
    Dennis Roussy that both he and his father had previously travelled to Panama
    and had business interests in that country. He also reviewed the evidence from
    Dennis Roussy that he had been convicted of importing 10.8 kilograms of
    cocaine, was sentenced to six years in prison, and was unwilling to testify at
    his fathers preliminary hearing.

[42]

Moreover,
    the trial judge specifically re-stated the appellants position that it was
    Dennis Roussy or Wright who was the king pin of the operation in his summary
    of the parties positions at the end of the charge to the jury.

[43]

Turning
    to the conspiracy charges arising from these two incidents, the appellant does
    not contest, as a general matter, the adequacy of the trial judges
    instructions to the jury on the charge of conspiracy. Rather, the appellant
    argues that the trial judge failed to relate the evidence to the issues to be
    decided.

[44]

On
    count 2, the conspiracy charge related to the March 16, 2009 seizure, the evidence
    connecting the appellant to the parties importing cocaine consisted primarily
    of the intercepted calls after the incident. The key issue, from the
    appellants perspective, was whether the evidence established that he conspired
    with the couriers to import the cocaine, or just took an interest in their
    legal troubles after the fact.

[45]

The
    trial judge did, in fact, highlight this issue. He did so by directing the
    jury, in the evidence review for count 1, to a conversation between the
    appellant and a co-accused, Megan Staats. In this conversation the appellant
    discussed reviewing the disclosure related to Harris, one of the women arrested
    in relation to the seizure of cocaine at the airport. He was dismayed that
    Harris had essentially confessed to the police. The trial judge also noted the
    appellants comment: now look at what Im involved in now. Look at this shit.

[46]

These
    calls were reviewed among other calls, giving them context within the evidence.
    The interpretation of these calls was crucial to the issue of the appellants
    involvement in a conspiracy and was fairly and fully put to the jury.

[47]

With
    respect to count 5, the appellant argued that there was no evidence of an
    agreement between himself and Leonide Roussy, and rather that the agreement was
    between Leonide Roussy and his son and/or Wright. Given the review of the
    evidence conducted by the trial judge that I have already discussed, the
    evidence relevant to the issue of whether or not there was an agreement was
    fairly pointed out for the jury.

(4)

Count 6: Conspiracy to Traffic Cannabis

Facts

[48]

On
    June 2, 2009, communications between Duncan and other individuals were
    intercepted in which Duncan discussed a transaction involving buds and
    chron, monetary denominations for the transaction, and a hotel room number.
    It was admitted that the coded language in the calls refers to marijuana.
    Duncan was observed by police at a hotel following these conversations. This
    formed the basis for the charge of conspiracy to traffic marijuana.

[49]

As
    with count 5, the appellant argued on count 6 that there was insufficient
    evidence to establish an agreement to traffic marijuana.

Analysis

[50]

After
    first reminding the jury of the elements of the offence of conspiracy and
    reviewing the essential elements of trafficking in a controlled substance, the
    trial judge went on to address each element of the conspiracy charge. He
    reviewed the evidence with the jury that was relevant to each element,
    including the evidence of two surveillance officers, numerous calls between the
    appellant and others, and an agreed statement of facts on the nomenclature
    related to marijuana.

[51]

He
    went on to review specific evidence going to the issue of the common unlawful
    object and listed calls relevant to the question of whether the appellant was
    a member of the conspiracy. The charge on this count was appropriate.

(5)

Counts 7-10: Possession of Ecstasy for the Purpose of Exporting;
    Conspiracy to Export Ecstasy; Possession of Cannabis for the Purpose of
    Exporting; Conspiracy to Export Cannabis

Facts

[52]

On
    June 11, 2009, the police intercepted numerous calls by Duncan and his
    associates which led them to believe that Duncan was packaging ecstasy and
    marijuana to be sent to his sister, Debbie Duncan, in Atlanta.

[53]

In
    some of these calls, Duncan and others spoke of things by referring to weight
    and colours. In a conversation with his sister, they discussed the green one,
    dirty yellow, and pink one. They discussed a shipment being sent by Duncan,
    and the colours that were liked or disliked in the past. Duncan also told his
    sister what to do with the chronic in the shipment. In another conversation,
    Duncan told a co-accused that he was getting this stuff ready for my buddy to
    come pick it up, to go see Debbie. The Crown submitted that the obvious
    inference was that Duncan was in possession of drugs and was exporting them to
    Debbie Duncan in Atlanta.

[54]

On
    that same day, one of Duncans associates, Junior Wright, inadvertently or
    unknowingly caused his phone to pocket dial another person. The pocket call
    recorded several partial phrases, some of which were alleged to have been
    spoken by Duncan and related to the weight of pills, wrapping, and packing the
    marijuana in the shipment.

[55]

It
    was the Crowns theory that the audio captured by the pocket call and two other
    calls came from the apartment of Joanna Ross, who lived at 780 Eglinton Avenue
    West in Toronto. Ross testified that Duncan had lived with her at 780 Eglinton
    for a time, but had moved out prior to their arrests.

[56]

When
    police searched Debbie Duncans Atlanta home, they found approximately 5000
    different coloured ecstasy pills, scales, and a significant amount of U.S.
    currency. Drugs, including ecstasy, were also found in Ross apartment after
    her arrest.

[57]

Telephone
    records indicated that various calls on June 11, 2009, including the pocket
    call, were handled by a particular cell tower  sector three of the tower
    located at Eglinton and Old Forest Hill Road. Surveillance confirmed that
    Duncan, Ross, and Wrights vehicles were all parked at 780 Eglinton on that
    date.

[58]

At
    trial, the Crown called Kristi Jackson, an employee of Rogers Communications, as
    an expert on the location of cell phone use and cell site information. She
    testified that calls made from Ross address would normally go to the sector
    three tower at Eglinton and Old Forest Hill Road, but that the calls in
    question could have come from anywhere within the towers catchment area.

Analysis

[59]

The
    evidence on these charges consisted of intercepted calls, observations made by
    surveillance officers, Kristi Jacksons expert evidence, Joanna Ross
    testimony, the search conducted on the appellants sisters home in Atlanta,
    and the drugs located in Ross apartment after her arrest.

[60]

When
    viewed as a whole, the charge on these counts properly relates the evidence to
    the essential elements of the various offences. The key issue on the possession
    counts was whether there was sufficient evidence to establish that the
    appellant was ever in possession of either ecstasy or marijuana. The trial
    judge broke down the evidence related to this issue. He also reviewed the calls
    that went to each discrete issue on the conspiracy charges in counts 8 and 10.
    The judges instruction was sufficient to give the jury a full appreciation of
    the questions to be answered and the evidence relevant to each issue.

[61]

As
    noted earlier, the Crown relied on Kristi Jacksons expert evidence as part of
    its theory that the pocket call from Wrights phone was made from within
    Ross apartment at 780 Eglinton. There were two further calls that the Crown
    alleged came from this location.

[62]

The
    appellant, Duncan, takes issue with the trial judges summary of the experts
    evidence. Specifically, he suggests that the trial judge failed to instruct the
    jury that the calls could have come from anywhere within a large catchment
    area. There was no dispute that 780 Eglinton was within the catchment area, but
    the size of the catchment area was largely undefined. He argues that the trial
    judge should have alerted the jury to this fact and highlighted that this
    evidence was circumstantial and not proof that the calls were, in fact, made
    from 780 Eglinton.

[63]

Duncan
    also argues that the trial judges reference to the calls as the 780 calls
    presumes that the calls came from 780 Eglinton and may have unfairly impacted
    the jurys assessment of the evidence on this issue.  I disagree.

[64]

The
    trial judge called attention to a number of aspects of Kristi Jacksons
    evidence that made its limits clear. This included the fact that she could not
    opine on who made the calls or if the calls originated from 780 Eglinton. The
    trial judge summarized defence counsels questions and the experts answers
    about the radius of the cell tower. This highlighted that she could not provide
    information on the dimensions of sector three or confirm that the calls came
    from 780 Eglinton.

[65]

The
    trial judge made additional references to the limits of Jacksons evidence, in
    summarizing Ross position for the jury. The trial judge stated:

The Crown also contends that the tab 53 wiretap emanated from
    Joanna Ross apartment and the Crown relies on the evidence of Ms. Jackson from
    Rogers. But all Ms. Jackson could say was that if the calls were made from 780
    Eglinton Avenue West they would go to sector three of the Gardiner cell tower.
    She was not able to provide information regarding the dimensions of the sector
    three boundary or where the next nearest cell tower was located.

[66]

The
    short-hand reference to the three calls in question as the 780 calls, when
    put in the context of the charge on Kristi Jacksons evidence, did not suggest
    to the jury that they should assume the calls originated from 780 Eglinton.
    Rather, the instructions are clear that it was for the jury to determine
    whether or not the evidence as a whole established that the calls in fact came
    from 780 Eglinton.

[67]

In
    other words, and as the trial judge advised the jury,
if
the calls originated
    from 780 Eglinton, then in all likelihood the cell tower at Eglinton and Old
    Forest Road would handle the calls, given that it was the closest cell tower to
    that address. The repeated use of the word if in relation to the call
    location makes this clear.

[68]

While
    referring to the calls as the 780 calls was not the best way of describing
    the calls in question, in the context of the entire charge, this shorthand does
    not give rise to a reversible error.

(6)

Count 12: Conspiracy to Possess the Proceeds of Crime

Facts

[69]

On
    June 14, 2009, the appellant Karen Stevenson, Joanna Ross, and two other women
    travelled to Buffalo, New York at Duncans request to pick up money being
    brought from Atlanta. The evidence at trial established that Ross had US$16,000
    on her person when crossing the border into Canada. Her travelling companion
    also had a substantial sum of money on her person. The funds were seized.
    Duncan sent texts bemoaning the loss of the money after it had been seized.

[70]

Ross
    testified that she believed the money was being smuggled over the border to
    avoid paying taxes. She thought it was going to fund an Ice Cream Concert (a
    large hip-hop event) organized by Duncan and to repay a debt owed to her. Ross
    testified that Duncan had various legitimate business interests as a concert
    promoter, club owner, and clothing store owner.

[71]

Stevenson
    was not found in possession of any funds. She was acquitted of the charge of
    possession of proceeds of crime on a directed verdict. At trial, the Crown
    relied on intercepted telephone conversations between Stevenson and Duncan as
    evidence of her role in the conspiracy. Duncan, Stevenson, and Ross were each
    convicted of conspiracy to possess the proceeds of crime.

Analysis

[72]

The
    adequacy of the instructions on count 12 must be evaluated with the
    instructions provided on count 11, possession of the proceeds of crime.

[73]

The
    trial judge identified that whether the currency in question was obtained by
    crime was one of the essential issues on this count. Based on the evidence and
    the positions of the parties, this was the most important and contentious
    issue.

[74]

During
    the review of the evidence for count 11, the trial judge specified the relevant
    calls and again read excerpts of the wiretap transcripts that were relevant to
    this issue. His recitation of the evidence mentioned the Ice Cream Concert,
    concert money and club money. He also directed the jurys attention to the
    flyer for the Ice Cream Concert as part of the evidence the jury should
    consider on the issue of whether the funds were obtained by crime.

[75]

The
    trial judge incorporated this into the charge on count 12 by telling the jury
    to consider the evidence reviewed for count 11 in addition to other calls. I do
    not agree with Duncans assertion that, in reciting the evidence, the trial
    judge did not articulate what the moneys alternative, legal sources might have
    been.

[76]

I
    also do not accept the appellant Stevensons argument that the evidence review
    was inadequate. The trial judge referred the jury to the calls relevant to
    Stevenson. The content of these calls had just been reviewed in the
    instructions on count 11. He reminded the jury that there was no evidence that
    Stevenson was in possession of any currency, highlighting a difference between
    Stevenson and her co-accused, Ross. The judge also noted the lack of direct
    evidence connecting Stevenson to the proceeds of crime.

[77]

Stevenson
    argues that the more fulsome instructions on the elements of the offence of
    conspiracy provided for in an earlier count ought to have been repeated in the
    instructions on count 12, given that she only faced this charge.

[78]

I
    disagree. A detailed analysis of the elements of conspiracy had been provided
    numerous times. The trial judge stated at the outset that he was not going to
    conduct a detailed review of the elements of conspiracy for each and every
    count. Given that conspiracy featured in so many of the counts and the
    instructions were provided for all of them on the same day, I see no fault in
    the trial judges approach.

[79]

Moreover,
    if trial counsel wished to have the jury re-instructed on the elements of
    conspiracy in a more detailed fashion on count 12, counsel should have raised
    it. No concern was raised with the adequacy of the charge as to the elements of
    conspiracy, or on count 12 specifically.

[80]

Finally,
    Stevenson argues that, by using the conjunctive and in reference to the three
    co-accused on this count, the trial judge conveyed an all-or-nothing
    approach, namely that all three accused had to either be acquitted or convicted
    of the conspiracy to possess the proceeds of crime. I disagree.

[81]

The
    trial judge reiterated on several occasions that the determination of any of
    the accuseds membership in the conspiracy had to be determined based on
    his/her own words and acts, considered in the context of the words and acts of
    other alleged members of the conspiracy.

[82]

The
    trial judge then went on to refer individually to each accused and the evidence
    relevant to the question of their individual membership. The trial judge underscored
    the need for an individualized assessment in his concluding paragraphs,
    stating:

I want to repeat as well something that I did indicate to you
    earlier. That a finding from Andrew Duncans own words and acts or a finding
    from Joanna Ross own words or acts or a finding from Karen Stevensons own
    words or acts that he or she was probably a member of the conspiracy is not
    enough for you to find them guilty of conspiracy [] If you are not satisfied
    beyond a reasonable doubt that Karen Stevenson was a member of the conspiracy,
    you must find her not guilty of conspiracy to (commit) the indictable offence
    of Possession of Proceeds of Crime.

[83]

I
    therefore conclude that, on all the counts I have reviewed to this point, the
    trial judge appropriately parsed out the constituent elements of each offence
    and adequately related the evidence to the elements and the issues to be
    decided. In my view, he integrated his legal instruction with a focused
    evidentiary review in a manner that is consistent with D. Watt,
Watts
    Manual of Criminal Jury Instructions
(2nd ed.)

(Toronto: Carswell,
    2015). While the charge is not perfect, that is not the standard. Trial judges
    are given latitude to determine the manner and extent to which evidence is
    reviewed and related to the essential elements of the offences and available
    defences. On the counts discussed above, I am not prepared to say that the
    charge failed to provide sufficient instruction to allow the jury to fully
    appreciate the issues and the positions of the accused.

(7)

Counts 13 and 14: Trafficking a Firearm by Offer; Conspiracy to Possess
    an Unauthorized Firearm

Facts

[84]

The
    evidence related to the two firearm charges consisted of two intercepted
    telephone calls between the appellant Duncan and an unknown male (UM) on the
    evening of June 18, 2009.

[85]

These
    two calls and transcripts were evidence at trial. The relevant excerpts read as
    follows:

June 18, 2009 at 9:36 p.m.

UM1
:  Remember the uh one
    time when we came by you youyou gives us a black thing.

AD
:    Yeah.

UM1
:  How aboutyou pay
    me with that too.

(speaking simultaneously)

AD:
I dont have none

UM1
:  You have a next
    one?

AD
:    I dont have none
    lying around right now though.

UM1
:  So how about give
    me seven five and after you just bring one for me? (speaking simultaneously)

AD
:    UhwellumI could
    get one but it dont have a clip, you would have to find a

UM1
:  Doesnt matter, I
    will find it. You could get if for me tonight?

AD
:    No nottomorrow.

UM1
:  *So yoyou dont
    have noenoughnothing laying aroundI can hold on to?*

AD
:    Like what? A thing
    for thing?

UM1
:  Yeah.

AD
:    No, I buried
    mines.

AD:
Why what happened
    to yours? You sell it? (speaking simultaneously)

June 18, 2009, at 9:40 p.m.

AD:
Hello?

UM:
Yeah, sorry for bother you. Um, I gonna ask
    my friend, (stutters) what kind you want? What kinda clip (ph)? Nines? Big
    ones, small ones?

AD:
Yeah. Yeah, yeah.

UM:
Big one?

AD:
Yeah, the big one.

UM:
Alright. Alright.

[86]

At
    trial, there was an agreed statement of facts in relation to the firearm
    offences including that ting or thing is a common generic term used for
    firearms but can also be used as coded language to describe drugs, property,
    etc. It was agreed that the term clip can be used at times as slang language but
    is more commonly used as a layperson term to describe the detachable box
    cartridge magazine which holds ammunition and is inserted into a firearm. It
    was further agreed that nines is a slang term for a 9 millimetre firearm and
    that a 9 millimetre firearm would use a clip.

[87]

There
    was no evidence introduced at trial as to whether either Duncan or the UM was
    licenced to possess or transfer a firearm.

Analysis

[88]

The
    charge on counts 13 and 14 was deficient in a number of ways.

[89]

I
    turn first to count 13, trafficking a firearm by offer. Unlike all the other
    charges which preceded it on the indictment, count 13 stood alone and distinct.
    There were no other charges for which the instructions partially covered the
    instructions on this count, either on the elements of the offence or the
    applicable evidence.

[90]

The
    trial judge correctly set out the elements of the offence of trafficking a
    firearm by offer. However, unlike his approach on the first 12 counts, the
    trial judge did not break down the elements by essential questions nor did he
    precisely identify the factual and legal issues to be decided.

[91]

The
    trial judge did not review any of the evidence in the calls. He simply recited
    certain admissions the parties had made regarding nomenclature and referred the
    jury to the location of the two calls within the volumes of material. Without a
    review of at least some of the content of the two calls, and the context of
    these calls, it cannot be said that the trial judge instructed the jury on how
    to relate the evidence to the issues to be decided.

[92]

The
    trial judge fairly pointed out that one central issue for the jury to decide
    was whether the calls set out in Tabs 75 and 76 related to the transfer of a
    black 9mm firearm. But there was more for the jury to decide than this. Trafficking
    by offer requires that the offer be put forward in a serious manner and that
    the accused intends for the offer to be taken as genuine:
R. v. Ralph
,
    2011 ONSC 3558, [2011] O.J. No. 3156, at para. 48, citing
R. v. Murdock
(2003), 176 C.C.C. (3d) 232 (Ont. C.A.). This is a crucial element of the
    offence.

[93]

The
    jury should have been alerted to this important question and directed to
    evidence within the calls relevant to this determination, including the number
    of calls, the duration of the calls, the guarded manner of speaking, and the
    use of coded language. They should also have been directed to consider whether
    the calls clearly established one party to be the offeror. It should have
    been noted that no firearm was ever located, as this bears on the question of
    the seriousness of the offer, despite that the existence of a firearm is not an
    element of the offence.

[94]

The
    jury could very well reason that, as a matter of common sense, the men were
    discussing a firearm, but the seriousness of the offer to transfer the firearm
    was a separate question for the jury to decide. The jury should also have been
    instructed to consider whether the calls showed more than a discussion of
    something that might take place in the future.

[95]

It
    is apparent from the jurors questions that they were unclear about the
    applicable law and how the evidence applied to the question of offer. While
    the trial judge, in answering the questions, remedied the deficiencies in the
    legal instruction to some degree, the failure to relate the evidence to the
    issue left the jury without sufficient guidance on how to reason through the
    question of whether the appellant made an offer and whether that offer was
    serious.

[96]

I
    would also note that, while the trial judge indicated for the jury that an
    element of the offence includes proof that the appellant was not authorized to
    transfer a firearm, there was no discussion of what evidence related to this
    issue. Though defence counsel did request that the jury be instructed further
    on this point, the trial judge did not provide instruction or a review of the
    evidence on this issue.

[97]

For
    these reasons, the conviction on count 13 must be set aside.

[98]

I
    turn now to count 14, conspiracy to possess an unauthorized firearm. As noted
    earlier, the trial judge comprehensively reviewed the elements of conspiracy on
    several occasions. There is no error in his brief recitation of the elements of
    conspiracy in count 14. However, as he did with all the other conspiracy
    counts, the trial judge should have,  provided the jury with the essential
    elements of the offence of unauthorized possession of a firearm. This would
    have highlighted an important issue for the jury to decide  whether the
    evidence established a common unlawful object.

[99]

Like
    count 13, count 14 did not include a meaningful explanation of the factual or
    legal issues to be resolved, or a relation of the evidence to the issues. Given
    the appellants position that the phone call was just idle chatter between
    two people, the jury should have been directed to the fundamental issue and
    evidence relevant to its determination. They should have been directed to the
    question of whether there was sufficient evidence to establish a meeting of
    minds, a consensus to effect an unlawful purpose:
R. v. Cotroni
,
    [1979] 2 S.C.R. 256, at p. 277. With no review of the call transcripts, I
    cannot conclude that the jury appreciated the issues to be determined on this
    count or the value of the evidence contained in the calls and admissions.

[100]

I would also
    note that, while the trial judge correctly explained the burden of proof on a
    conspiracy charge throughout his instructions, he was invited by defence
    counsel to instruct the jury that the appellant bore the onus of proving he was
    licenced to possess a firearm in count 14. The trial judge unfortunately
    acceded to defence counsels request for the instruction.

[101]

Duncan was
    charged under s. 465(1)(c) of the
Criminal Code
of conspiring with
    others to commit the indictable offence of unauthorized possession of a firearm
    contrary to s. 91(1) of the
Criminal Code
. It is a convoluted charge.
    During a proceeding for an offence under s. 91, if any question arises as to
    whether a person is the holder of a licence, the reverse onus in s. 117.11 of
    the
Criminal Code
requires the accused to prove the existence of the licence.
    However, as I explain below, the reverse onus provision is not relevant when an
    accused is charged with conspiracy.

[102]

Conspiracy is a
    crime of intention:
United States of America v. Dynar
, [1997] 2 S.C.R.
    462, at para. 103. The essential elements of a conspiracy are an intention to
    agree, the completion of the agreement, and a common design to do something
    unlawful. The object of the agreement must be a crime. It is the Crowns burden
    to prove that the object of the agreement is unlawful. The reverse onus
    provided for in s. 117.11 does not change this.

[103]

In
Dynar
,

again at para. 103, the court explained that

[t]he factual
    element ‑‑ or
actus reus
‑‑ of the offence is
    satisfied by the establishment of the agreement to commit the predicate
    offence. This factual element does not have to correspond with the factual
    elements of the substantive offence. Authorization is a factual issue that arises
    in s. 91 prosecutions and triggers the procedure in s. 117.11. This procedure
    does not change the nature of the offence, which remains the unauthorized
    possession of a firearm. With a conspiracy charge, it is the Crown that must
    prove the unlawfulness of the object. In this case, that is the unauthorized
    possession of a firearm. The conspiracy charge does not incorporate the reverse
    onus.

[104]

The judge erred
    in his instruction on this point. Given the clear instructions on the burden of
    proof on a conspiracy throughout the jury charge, I would not have set aside
    the conviction on this count based on this error alone. However, in combination
    with deficiencies in the trial judges review of the evidence and failure to
    relate the evidence to any of the essential elements of the offence, I conclude
    that the conviction on this count must be set aside.

Sentence Appeal

[105]

In his reasons
    for sentence, the trial judge first determined the appropriate sentence for
    each count. The total was 22 years imprisonment for Duncans 12 offences. This
    included 3 years for the firearms convictions.

[106]

He then
    appropriately considered whether the combined sentence was unduly long or
    harsh, as he was required to do under s. 718.2(c) of the
Criminal Code
.
    The totality principle requires a judge who imposes consecutive sentences for
    multiple offences to ensure that the cumulative sentence does not exceed the
    overall culpability of the offender. The aggregate sentence must be just and
    appropriate:
R. v. M (C.A.)
, [1996] 1 S.C.R. 500, at para. 42.

[107]

This led the
    trial judge to reduce the sentence to 15 years. The 3 years for the firearm
    offences ran concurrently to the drug charges that made up the 15 year
    sentence. A credit for pre-sentence custody on a 2:1 basis, rounded up to six
    years, was subtracted from the 15 year sentence.

[108]

Without the
    firearm convictions, the cumulative sentence would have been 19 years for the
    10 drug offences. I would apply the totality principle to the 19-year total
    sentence and reduce it to 14 years, less the credit for pre-sentence custody.

[109]

The offences for
    which the appellant was convicted are serious and reflect a sophisticated and
    expansive network of drug trafficking. It is clear from the trial judges
    reasons on sentence that Duncans lead role in the importing, exporting, and
    distribution of drugs was particularly aggravating and drove the trial judge to
    impose a lengthy period of incarceration. The firearm-related charges factored
    in a minor way, particularly because no actual firearm was involved. An overall
    sentence of 14 years for the drug offences reflects the need for denunciation
    and general deterrence. It is also consistent with the principle of totality.

D.

Conclusion

[110]

For the reasons
    stated, with respect to the appellant Duncan, I would set aside the convictions
    on the charges of trafficking a firearm by offer and conspiracy to possess an
    unauthorized firearm, and order a new trial. It is within the discretion of the
    Crown to decide whether it is in the interests of justice to proceed with a new
    trial. I would dismiss the balance of the appeal on conviction. I would allow
    Duncans appeal on sentence and substitute a sentence of 14 years imprisonment.
    I would dismiss the appeal of the appellant Stevenson.

Released:

MT                                                  M.
    Tulloch J.A.

DEC 31, 2015                                  I agree
    K.M. Weiler J.A.

I
    agree K. van Rensburg J.A.


WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

486.4     (1)
Subject to subsection (2), the presiding judge
    or justice may make an order directing that any information that could identify
    the complainant or a witness shall not be published in any document or
    broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)   an offence under section 151, 152,
    153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173,
    210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    346 or 347,

(ii) an offence under section 144 (rape),
    145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in any of subparagraphs (a)(i) to (iii).

(2)
In proceedings in respect of the offences referred to
    in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)  at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the complainant of the
    right to make an application for the order; and

(b)  on application made by the
    complainant, the prosecutor or any such witness, make the order.

(3)
In proceedings in respect of an offence under section
    163.1, a judge or justice shall make an order directing that any information
    that could identify a witness who is under the age of eighteen years, or any
    person who is the subject of a representation, written material or a recording
    that constitutes child pornography within the meaning of that section, shall
    not be published in any document or broadcast or transmitted in any way.

(4)
An order made under this section does not apply in
    respect of the disclosure of information in the course of the administration of
    justice when it is not the purpose of the disclosure to make the information
    known in the community. 2005, c. 32, s. 15, c. 43, s. 8;2010, c. 3, s. 5;2012,
    c. 1, s. 29.

486.6     (1)
Every person who fails to comply with an order
    made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an
    offence punishable on summary conviction.

(2)
For greater certainty, an order referred to in subsection
    (1) applies to prohibit, in relation to proceedings taken against any person
    who fails to comply with the order, the publication in any document or the
    broadcasting or transmission in any way of information that could identify a
    victim, witness or justice system participant whose identity is protected by
    the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. F.T., 2015 ONCA 904

DATE:  20151221

DOCKET: C57846

Strathy C.J.O., Lauwers J.A. and Speyer J. (
ad
    hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

F.T.

Appellant

Timothy Breen, for the appellant

Melissa Adams, for the respondent

Heard: October 1, 2015

On appeal from the conviction entered on June 6, 2013 by
    Justice J.S. ONeil of the Superior Court of Justice, sitting with a jury.

Speyer J. (
ad hoc
):

[1]

The appellant is the
    father of four children. Two of his daughters, C.B. and R.G., allege that for
    many years they were sexually abused by their father. A jury found the
    appellant guilty of multiple sexual offences in respect to each of the two
    complainants. Additionally, the appellant was convicted of assaulting C.B.,
    causing her bodily harm.

A.

OVERVIEW

[2]

This is a case about
    allegations of historical physical and sexual abuse. A common theme in the
    evidence of each complainant is that the abuse occurred within a family home
    that featured an atmosphere of stern discipline and corporal punishment for
    misbehaviour. While the evidence of each complainant overlapped in certain
    respects, Crown counsel did not seek a similar act evidence ruling that would
    have permitted the allegations of one complainant to support or confirm the
    allegations of the other. The trial judges instructions to the jury proceeded
    on the footing of a single accused, charged with multiple offences, which
    required the jury to decide the case based solely on the evidence applicable to
    each count.

[3]

The appellant testified
    that the allegations of abuse were untrue. In support of the defence position,
    the appellants wife and two of the appellants other adult children gave evidence
    refuting specific details of C.B.s and R.G.s testimony. In a nutshell, and not
    untypical of so many sexual abuse cases, credibility was the central issue at
    this trial.

[4]

As the evidence evolved,
    this case posed a particular set of challenges for both counsel and the trial
    judge. I make the following two initial observations. First, the record of this
    trial is overburdened by evidence of the appellants bad character: specifically,
    evidence of the appellants violent behavior in instances unrelated to any
    charge on the indictment. That said, it is important to note that the extrinsic
    evidence of the appellants discreditable conduct was admitted without
    objection by the appellants trial counsel. Indeed, counsel consented to the
    admission of the evidence for strategic purposes. The trial judge was both
    alive to and concerned about the potential prejudicial effect of the bad
    character evidence. He promised to provide a proper limiting instruction. Unfortunately,
    the instruction provided was inadequate.

[5]

Second, absent a
    similar act ruling, especially on the particular facts of this case, it was of
    crucial importance that the jury be cautioned that the acceptance of one
    complainants evidence could not be used to bootstrap, bolster or confirm the
    evidence of another complainant.

[6]

The reasons that follow
    explain why a new trial is required. I will outline the facts only to the extent
    necessary to shed light on two issues that have merit.

B.

THE
    DISCREDITABLE CONDUCT ISSUE

(i)

THE NATURE OF THE ALLEGATIONS

[7]

In 2010, R.G. was 29
    years of age when she complained to the police that, between the years 1988 and
    2004, she was sexually abused by her father. The nature of R.G.s complaint ran
    the gamut from sexual touching in the early stages of the abuse and escalated
    over time to continuous acts of fellatio and sexual intercourse. The alleged
    abuse started when R.G. was 5 or 6 years old and stopped when she was 13. It stopped
    when R.G., in grade nine at the time, told her parents that she had been
    sexually intimate with her boyfriend. The appellants reaction to this news was
    to verbally disparage his daughter in the most derogatory manner. Thereafter,
    until she left home at the age of 16, there were no further instances of sexual
    misconduct.

[8]

C.B. is two years older
    than R.G. The allegations of C.B.s sexual abuse are similar in nature to those
    of her sister. They span a thirteen year period, from the time C.B. was in
    elementary school and living at home to occasions outside the family residence
    when C.B. was at university.

(ii)

THE ASSAULT CAUSING BODILY HARM CHARGE

[9]

This charge, the fifth
    count on the ten count indictment, relates to three different occasions of
    alleged physical abuse of C.B. over a one year period from May 1992 to May
    1993. These incidents involved injuries that required hospital treatment. C.B.s
    was treated for a broken wrist, an injured ankle and a fractured collar bone
    respectively. While the hospital records indicate the complainant reported
    innocent explanations for her injuries on each occasion, C.B.s trial evidence
    was that each of the injuries was the result of her fathers physical abuse: on
    two occasions she fell and injured herself after being pushed by her father,
    and on the third, the injury resulted from being struck by the appellant with
    the handle of a broom.

[10]

The
    appellant denied causing the injuries suffered by C.B. His evidence was
    supported by his wife and, in particular, by the testimony of the appellants
    daughter (the complainants sister) A.T. A.T. testified she caused C.B.s wrist
    fracture when she landed on C.B.s wrist while jumping on the bed. A.T. also
    testified she saw C.B. injure her ankle when jumping down a flight of stairs in
    the family home. The sharp conflict in the evidence was a matter for the jurys
    determination.

(iii)

THE EVIDENCE OF THE APPELLANTS ASSAULTIVE BEHAVIOR NOT COVERED BY THE
    INDICTMENT

[11]

The
    appellant was not charged with assaulting R.G. Nevertheless, evidence of the
    appellants violent behaviour played a featured role in respect to this
    complainants evidence. In the context of testifying that the appellant was a
    strict disciplinarian, R.G.s evidence was that she and her siblings were
    continuously assaulted by the appellant using his belt to strap their bare
    buttocks. Moreover, beyond the use of the belt, R.G. testified that she was
    disciplined by slaps to the face and pushing with sufficient force that she would
    fall to the floor. This complainant testified that the pushing episodes
    occurred on more than 50 occasions. Indeed, the complainant recounted a time
    when she was pushed down the stairs of her home and taken to the hospital for
    X-Rays.

[12]

During
    examination-in-chief of R.G., the trial judge expressed his concerns about the
    breadth of the evidence as to the appellants violent behavior that was not set
    out in any count in the indictment:

THE COURT:  Take a look, defence counsel and Crown counsel, at
    the first four counts of the indictment alleging offences by [F.T.] as against [R.G.],
    please,  and ask yourselves the question how much further you need to go with
    this line of questioning and we can do this very briefly.

MS. HEPBURN:     Yes, I was just going to ask this last
    question.

THE COURT:        Well, theres no allegation in the indictment
    that theres an assault out  out  the indictment with respect to charges
    involving [R.G.] are of a sexual nature.  Your questions are turning
vis-à-vis
[R.G.], not [C.B.], are turning to discipline of an injured nature that doesnt
    form the subject matter of the charge and thats what Im addressing and thats
    where we need to have a short discussion and, very briefly, I dont think the
    jury has to leave. How much further do you need to go at this?

MR. WILCOX:       Your Honour.

THE COURT:        I dont think that.

MR. WILCOX:       If I might, Im not opposed to my fiend
    eliciting

THE COURT:        But I might be

MR. WILCOX:       this evidence from this witness.

THE COURT:        but keep going.

MR. WILCOX:       That is to say it would not be objectionable
    on the basis that its disreputable conduct not within any of the counts of the
    indictment

THE COURT:        Right.

MR. WILCOX:       But I am not making that objection.  So, my
    friend is free to

THE COURT:        All right.

MR. WILCOX:       elicit that evidence.

THE COURT:        How much further do you need to go?
    Certainly, theres allegations of inappropriate and perhaps inappropriate and
vis-à-vis
the household in general, stern discipline, corporal
    discipline, but how much further down that road
vis-à-vis
[R.G.], do
    you need to go?  Just to help the jury, there is of course, an allegation of
    discipline in the 10 counts in this Court case, one of them involves [C.B.]
vis-à-vis
the broken clavicle which we heard about yesterday and you may be asking this
    witness questions about that.  You may not, I dont know, but youre turning
    now to corporal punishment, an injury, that doesnt form the subject matter of
    any of the charges
vis-à-vis
this witness.

[13]

At
    a later point in the trial, during Crown counsels persistent cross-examination
    of the appellants witnesses concerning the appellants use of his belt to
    discipline his children, the trial judges frustration seemed to reach the
    tipping point as captured by the following extract:

Its  its almost sounding like the jury is getting pushed to
    think if he can belt me, and I dont remember him belting the kids when he
    could sexually assault the daughters.  If you get to the belt, you can have
    fellatio, sexual intercourse in the presence of A.T. and others.  Am I being
    overly vigilant and concerned or should  should we have  or have we gone far
    enough with this belt questioning?  We need to guarantee everybody that steps
    into this room a fair trial.  Thats why Ive had the jury go out.  And I cant
    second guess myself.  I cant say, well I wonder if I should have said
    something?
Youve spent, whenever we started here, 20, 25, 26, 27 and a
    half, 30 minutes, mainly about the belt.  To me thats enough.  I am going to
    have to obviously give them a caution.  We will work that out later, but it
    just sounds to me that you are trying to develop a theory that a man who belts
    you and you dont see him belt the sisters is a man who will sexually assault
    the sisters.  Its as simple as that
, but maybe I am out to lunch.  Youve
    got to help me with this Crown Counsel. Where are you going with this
    persistent line of questioning on the belt and is it  you have made your
    point. [Emphasis added.]

(iv)

JURY INSTRUCTION ON THE ISSUE OF DISCREDITABLE CONDUCT

[14]

The
    jury instruction dealing with the discreditable conduct issue is as follows:

I would now like to speak to you about some of the evidence you
    heard in this case with respect to the use of the belt as a means of corporal
    punishment.

[F.T.] is not charged in this trial with assaulting any of his
    children, including [C.B.] and [R.G.] with a belt in any way, shape or fashion.
    Accordingly, he cannot be convicted of an offence relating to the use of a
    belt, if any.

For Defence counsel the belt evidence was important for you to
    consider when assessing [R.G.]s credibility and truthfulness in light of [R.G.]s
    assertion that she saw her father strike her siblings and herself on their bare
    genitals with a belt.

From Crown counsels perspective the belt evidence was
    important for you to consider as a factor as to why the complainants may not have
    come forward out of fear and as a factor in assessing the credibility of
    defence witnesses as whether the belt was used in discipline and who may have
    seen it used and as to whether the defence witnesses were consistent in their
    evidence relating to discipline with respect to the belt.

(v)

DISCUSSION

[15]

Limiting
    instructions in relation to evidence of extrinsic misconduct have three
    elements. The first describes the evidence under consideration, the second
    element is a positive instruction that advises of the permitted use of the
    evidence, and the third is a negative instruction cautioning the jury about the
    prohibited use of such evidence:
R. v. T. (J. A.)
, 2012 ONCA 177, 288
    C.C.C. (3d) 1, at para. 53.

[16]

The
    appellant submits that the trial judges jury instruction was deficient in two
    respects. The first deficiency pertains to the failure to tell the jury that
    propensity reasoning based solely on the appellants discreditable conduct is
    prohibited. I agree with this submission.

[17]

In
R. v. D. (L. E.)
, [1989] 2 S.C.R. 111, 50 C.C.C. (3d) 142, at pp.
    127-8, Sopinka J. noted the three dangers of bad character evidence. First, if
    the jury accepts the accused committed the prior bad acts, they may assume
    the accused is a bad person who is likely to be guilty of the crimes charged.
    Second, there is the potential for the jury to punish the accused for past
    misconduct by finding the accused guilty of the offence charged. Third, the
    jurys attention is deflected from the main purpose of their deliberations.

[18]

Given
    the seriousness of the allegations of criminal and disreputable conduct, the
    risk of prejudice to the appellant in this case was high, and a clear
    instruction as to the prohibited use of the bad character evidence was
    essential.  The trial judge clearly understood those dangers when he told
    counsel, it just sounds to me that you are trying to develop a theory that a
    man who belts you and you dont see him belt the sisters is a man who will
    sexually assault the sisters.

[19]

For
    reasons not apparent in the record, the trial judge failed to provide the
    cautionary instruction he promised. The jurors ought to have been told that
    they must not rely on the evidence on other counts of the indictment, or
    evidence of other uncharged criminal conduct, as proof that the appellant was
    the type of person likely to have committed the crimes charged: see
T. (J. A.)
,
    at para. 67.

C.

FAILURE TO PROVIDE ADEQUATE INSTRUCTIONS ON MULTIPLE COUNTS

[20]

The
    appellant has a second complaint about the adequacy of the jury charge. It
    again relates to the failure to provide an appropriate negative jury
    instruction.  He submits that the jury ought to have been told that a positive
    finding of credibility with respect to one complainant could not be used to
    support the credibility of the second. Again, I agree.

(i)

CONTEXT

[21]

Both
    complainants had a troubled history of mental health issues. A detailed canvass
    of this evidence is unnecessary. However, as a backdrop to the appellants
    submission, I make three observations with respect to R.G.s evidence.

[22]

First,
    R.G. was in a residential treatment centre in British Columbia when she made
    her complaint of abuse to the police. At trial, an important aspect of her
    testimony involved recovered memory of the incidents of abuse. The
    complainants evidence was that for a period of 13 years, from the time she
    left the family home in Sudbury at the age of 16, until her admission into the faith-based
    treatment centre at the age of 29, she had no recollections or memories of
    abuse. No expert evidence was called on the issue of recovered memory nor were therapeutic
    records filed as exhibits.

[23]

Second,
    when pressed by trial counsel to explain certain important inconsistencies
    between her statement to police and her trial testimony, R.G. explained that
    this was a function of her dissociative identity disorder. She testified that a
    characteristic of this disorder was to have alter identities or different personalities
    whom she named Amanda, Emily and Jessica. R.G. explained that it may have been
    one of her alters that experienced the events described in her statement to
    the police.

[24]

Third,
    very shortly after hearing the complainants explanation concerning the
    inconsistencies between her police statement and her evidence, in the absence
    of the jury, the trial judge suggested that Crown counsel re-evaluate the
    viability of the prosecution. A fair reading of the transcript indicates the
    trial judges serious concerns about the reliability of R.G.s evidence.

[25]

I
    make these observations to provide focus to appellate counsels argument as to
    the importance that the jury understand that one complainants evidence could
    not confirm the evidence of the other complainant. It is argued this was particularly
    essential in the circumstances of this case for the jury to understand that a
    positive finding of credibility of C.B.s evidence could not bolster the
    credibility of R.G.

(ii)

THE TRIAL JUDGES INSTRUCTIONS

[26]

The
    trial judge told the jury:

Each allegation is a separate charge. You must make a separate
    decision and give a separates verdict for each charge. The verdict may, but
    does not have to be the same on each charge. You must make your decision of
    each charge only on the basis of the evidence that relates to that charge and
    the legal principles that I tell you apply to your decision on that charge. You
    must not use evidence that relates only to one charge in making your decision
    on any other charge.

(iii)

DISCUSSION

[27]

A
    fuller limiting instruction was required. While the trial judges instruction
    was correct in so as far as it went, it was incomplete.  In addition to the
    caution prohibiting propensity reasoning, the jury should have been advised that
    they could not use the evidence of one complainant to support or confirm the
    evidence of another complainant: see
R. v. K.P
.
, 2009 ONCA 408,
    252 O.A.C. 10, at para. 7. This additional instruction complements and amplifies
    the admonishment that the jury consider the evidence on each count separately. While
    this is a case that was approached by counsel and the judge on the basis that
    similar act evidence did not apply, it is evident that the evidence of abuse of
    each complainant overlapped to a significant extent. In these circumstances, it
    was particularly important to displace a jurors normal inclination to reason
    that the several aspects of similar behavior attributed to the appellant, if
    accepted, tended to mutually corroborate the evidence of each complainant. That
    type of reasoning is prohibited and a caution that one complainants evidence
    could not confirm the evidence of the other was required.

D.

CONCLUSION

[28]

The
    failure to provide the jury with proper limiting instructions constitutes an
    error in law and necessitates the quashing of all convictions. As a new trial
    is required, it is unnecessary to address the appellants other grounds of
    appeal. The appeal is allowed, the conviction quashed and a new trial is
    ordered.

Released: December 21, 2015 GS

C.M.
    Speyer J. (
ad hoc
)

I
    agree G. R. Strathy C.J.O.

I
    agree P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Foreman, 2015 ONCA 884

DATE: 20151214

DOCKET: C57408

Feldman, Gillese and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Stephen Foreman

Appellant

Mark Halfyard and Breana Vandebeek, for the appellant

Jeremy Streeter, for the respondent

Heard: December 2, 2015

On appeal from the convictions entered on March 19, 2013,
    by Justice Mary Lou Benotto of the Superior Court of Justice, sitting without a
    jury.

Gillese J.A.:

OVERVIEW

[1]

Stephen Foreman (the appellant) was charged with drug and firearms
    offences. The charges arose from items seized by the police from the apartment of
    which he was the sole occupant. He was convicted of the offences of possession
    of cocaine and marijuana for the purpose of trafficking but acquitted of the
    firearms offences.

[2]

He appeals against conviction. His appeal hinges upon the decision of
    the application judge, under s. 24(2) of the
Charter
, to admit into
    evidence the firearms, drugs and money that the police located in his
    apartment.
[1]

[3]

The application judge correctly articulated the
Grant
[2]
test, considered the proper factors, and made no unreasonable findings. Consequently,
    her decision to admit the evidence is entitled to considerable deference:
R.
    v. Ansari
, 2015 ONCA 575, at para. 72. I would dismiss the appeal.

BACKGROUND

The Facts in Brief

[4]

On May 5, 2009, at approximately 5:30 p.m., the police received a 911
    call. The caller was a woman who lived in an apartment building. She reported
    that she had seen two suspicious-looking males going from unit to unit,
    checking the doors.

[5]

Two police officers were dispatched to respond to the high risk 911
    call. They had attended at the apartment building in the days leading up to the
    911 call. In the preceding month or two, there had been approximately four
    break and enters in the building.

[6]

The officers arrived at the apartment complex at approximately 5:36 p.m.
    They first searched floors 3 and 19, the floors on which the males were said to
    have been seen.  After finding nothing of significance, they decided to check
    the building, floor by floor, beginning on the top floor. They found nothing of
    concern on the top floor so descended to the floor below.  There they saw an
    apartment with its door completely smashed in and off its hinges. The paneling
    was ripped off from where the door attached to the hinges. The deadbolt lock
    was still engaged in the locked position.

[7]

The officers advised dispatch of the break-in at 5:40 p.m.  After
    listening for noises from the apartment, they announced their presence and entered
    it.  They cleared the apartment, looking for victims and suspects, but found no
    one. They decided to locate the occupant to let him or her know that the
    apartment had been broken into. To get the information necessary to find the
    occupant, one officer decided to look into the kitchen drawers. He thought it
    was common for people to have a junk drawer in the kitchen that would contain
    identifying information or documents such as mail, personal papers or
    medication. He opened a kitchen drawer but found only some utensils. He opened
    a second drawer and found a gun, drugs, and money.

[8]

At that point, the officer notified his supervisor. Other officers arrived
    very quickly. The apartment was secured and a search warrant obtained. The
    search turned up another gun, ammunition, a bulletproof vest, more drugs, and
    more money.

[9]

The appellant was arrested and charged with drug and firearms offences.

[10]

The
    appellant alleged a violation of his s. 8
Charter
rights and brought an
    application to exclude the evidence under s. 24(2).

The Application Judges Decision to
    Admit

[11]

The
    application judge found that the police entry into the apartment was justified
    but that the act of searching the two kitchen drawers was an unreasonable search
    and a breach of the appellants s. 8 rights.

[12]

The
    application judge then correctly articulated the test for exclusion of evidence
    under s. 24(2), as laid out in
R. v.
Grant
, 2009 SCC 32, [2009]
    2 S.C.R. 353. She referred to the three branches of the test:

1.

the seriousness of the
Charter
-infringing state conduct;

2.

the impact on the
Charter
-protected interests of the accused; and

3.

societys interest in an adjudication of the case on its merits.

[13]

On
    the first branch of the
Grant

test, the application judge found
    the
Charter
-infringing state conduct to be serious, but not egregious.
    She made the following findings in reaching this determination.

[14]

The
    application judge found that the officers had not acted with deliberate intent
    to ignore the appellants constitutional rights. She described the breach as
    neither flagrant nor abusive and the officers conduct as neither egregious nor
    a deliberate abuse of power. She concluded that the officer was not acting in
    bad faith when he searched the two kitchen drawers. Rather, his conduct was
    motivated by a desire to find tenant information so that the tenant could be
    notified of the break-in.

[15]

The
    application judge found that the officers were not aware of their obligations
    under the relevant police protocol. The protocol provides that when premises are
    found insecure, among other things, the officer should attempt to locate a
    person in charge of the building, such as security personnel or the superintendent.

[16]

The
    officers testified that they did not want to split up, with one staying at the
    apartment while the other attempted to find a building superintendent. The application
    judge accepted this as reasonable. She also accepted their evidence that they:
    did not know whether there was a building superintendent on site at the time;
    did not know how long it would take to find the building superintendent, if
    there was one; and, had concerns that the superintendents records might not be
    current.

[17]

The
    application judge described the state-infringing conduct in the following terms:

In the heat of the moment, responding to a 911 call in a
    building where there had been multiple break and enters, faced with a violent
    entry into an apartment and what appeared to be an aborted break and enter,
    they decided to search for tenant information in the kitchen, believing that
    personal papers, medications and other documents are often placed in a drawer
    in the kitchen. They did not search the bedroom and more private areas of the
    apartment. They did not search the computer. They did not turn the place upside
    down. They opened the kitchen drawer. As soon as they saw what was in the
    drawer, they notified their superior, secured the premises and proceeded to
    obtain a search warrant.

[18]

The
    application judge referred to these findings and the impact of the breach on
    the appellants
Charter
protected interests. She then noted the seriousness
    of the charges, the reliable nature of the evidence and the central role that
    the evidence played in the prosecution of the offences. After balancing the
    various considerations, the application judge concluded that the administration
    of justice would be best served by admission  not exclusion  of the evidence.

THE ISSUES

[19]

The
    appellant raises two grounds of appeal. He submits that the application judge
    erred:

1.

in finding that the officers conduct was an error in judgment and not
    bad faith; and

2.

by conflating the first two branches of the
Grant
analysis.

[20]

If
    the court finds that the application judge erred in her analysis, the appellant
    raises a third issue:

3.

in performing the requisite balancing under s. 24(2), ought this court to
    assess the seriousness of the offences taking into consideration that the appellant
    was acquitted of the firearms charges?

ANALYSIS

Did the application judge err in
    her assessment of the seriousness of the police misconduct
?

[21]

The
    appellant acknowledges that the police had the authority to enter his apartment
    under the doctrine of implied licence. However, he submits that the application
    judge erred in finding that the officers conduct was an error in judgment and
    not bad faith.

[22]

I
    do not accept this submission.

[23]

In
    the circumstances of this case, the seriousness of the police misconduct was
    the key issue before the application judge. Thus, her factual findings on the
    first branch were crucial. In my view, those findings are reasonable and well-grounded
    in the evidence.

[24]

The
    application judge did not minimize the police misconduct. She critically
    reviewed the evidence and found that the officers conduct fell short in a
    number of ways: they were only vaguely familiar with the relevant police protocol;
    they were not aware of their obligations when dealing with premises that had
    been broken into; and, there were other lawful avenues which they could have
    used to determine the occupants identity.

[25]

Nonetheless,
    the application judge did not find the officers misconduct to be egregious,
    flagrant or abusive. She rejected the defence submission that the search of the
    kitchen drawers was done to obtain evidence that the occupant was a drug dealer,
    knowing that they did not have sufficient evidence to obtain a search warrant. She
    accepted the officers testimony that his motive in opening the two kitchen
    drawers was to find information which would enable him to contact the occupant
    and advise of the break-in. She further found that the officers had not acted with
    a deliberate intent to ignore the appellants constitutional rights. In her
    words, their misguided response was made [i]n the heat of the moment,
    responding to a 911 call in a building where there had been multiple break and
    enters, and where there was obvious, violent entry into the appellants
    apartment.

[26]

The
    application judges findings in relation to the police misconduct are
    reasonable and available on the evidence. They are entitled to considerable deference:
Grant
, at para. 86;
Ansari
, at para. 72.

Did the application judge conflate
    the first two branches of the
Grant
analysis
?

[27]

The
    appellant submits that the application judge conflated the analysis under the
    first two branches of the
Grant
test and failed to properly consider
    the impact of the state misconduct on his
Charter
-
protected
    interests.

[28]

I
    do not accept this submission.

[29]

The
    application judge correctly set out the
Grant
test for the exclusion of
    evidence and identified the three lines of inquiry.  I acknowledge that her
    reasons do not fit perfectly under the three lines of inquiry.  When read as a
    whole, however, it is clear that she considered not only the officers misconduct
    but also the impact of that conduct on the appellants
Charter
-protected
    interests, and societys interest in an adjudication on the merits.

[30]

When
    the application judge set out the three branches of the
Grant
test, she
    stated that the second branch required her to assess the impact of the state
    misconduct on the appellants
Charter-
protected interests. She then
    stated that she had to determine to what extent the breach actually undermined
    those interests.  Later in her reasons, in the paragraph following her
    conclusion that the officers were not acting in bad faith although the breach
    of the appellants rights was serious, the application judge begins with the
    words, [a]s for the impact of the breach on the
Charter
-protected
    interests of the [appellant].

[31]

I
    accept that thereafter, the application judge went on to discuss again the police
    misconduct. But I do not accept that this means that she impermissibly
    conflated the first and second branches of the
Grant
test or that she
    ignored the impact of the police misconduct on the appellants
Charter
-
    protected interests. Her further discussion of the police misconduct, in my
    view, was to indicate that the impact on the appellants
Charter
rights
    did not outweigh the competing considerations in the final balance.

[32]

The
    application judge knew that the appellant was the sole occupant of the
    apartment and that he had a high privacy interest in it. In my view, she stated
    that the police acted lawfully in entering the apartment in order to make it clear
    that the appellants rights were not breached as a result of entry into his
    home. Rather, the breach consisted of the officer  who was lawfully in the
    premises  looking into the two kitchen drawers so that he could find
    information and locate the occupant to advise of the break-in. Her comments
    albeit in the context of the first branch  that the search was limited and did
    not extend to more private areas of the apartment or to the appellants
    computer, also show her awareness and consideration of the impact on the
    appellants rights.

[33]

While
    the application judge could have been clearer in her discussion of the second
    line of inquiry, she did not miss facts or misapprehend their significance. In
    conducting the final balancing, the application judge summarized why the
    evidence should be admitted, saying:

The search was not conducted in bad faith. While the breach was
    serious, the reliability of the evidence favours admissibility.

[34]

Her
    conclusion elaborates on how she carefully balanced the factors in coming to
    her decision:

In conclusion, although the breach of the accuseds rights was
    serious, it stemmed from what seems to have been an error in judgment by police
    in a highly charged situation. Weighing all of the relevant interests, in the
    circumstances of this case, I conclude that this is not one of those cases
    where the evidentiary fruits of the misconduct should be excluded. On
    balance, the exclusion of evidence would provide a remedy that is out of
    proportion to the wrong.

[35]

For
    these reasons, I would not give effect to the second ground of appeal.

Ought the Court to take the acquittals into consideration
?

[36]

The
    appellant says that if this court is persuaded that it ought to conduct its own
    s. 24(2) analysis, that analysis should take into consideration the appellants
    acquittals on the firearms charges. He says that a fresh consideration by this
    court puts it in a position akin to that which it is in when sentencing afresh.
    Thus, he maintains, the firearms offences are to be ignored, with the result
    that the seriousness of the offences is diminished.

[37]

I
    do not accept this submission. In my view, if this court found it necessary to
    engage in its own s. 24(2) analysis, I would consider the firearms charges. Put
    another way, in my view, the appellants acquittals on the firearms charges would
    be irrelevant to a s. 24(2) analysis undertaken by this court.  If appellate
    intervention were required in this case, this court would stand in the shoes of
    the application judge and should perform the analysis on the same basis as that
    of the application judge.

[38]

The
    decision to admit evidence under s. 24(2) is not about securing convictions. It
    is the long-term repute of the justice system which is the focus of a s. 24(2)
    analysis.  The application judge must consider the three lines of inquiry
    identified above to determine whether, on balance, admission or exclusion of
    the evidence obtained by a
Charter
breach would bring the administration
    of justice into disrepute:
Grant
, at paras. 84-85. Acquittals do not render
    the firearms charges less serious nor do they undermine societys interest in
    an adjudication of charges on their merits.  Either the evidence was
    admissible, based on a balancing of the
Grant
lines of inquiry, or it
    was not. An acquittal does not mean that the trial should not have taken place.
    That fact is irrelevant, even if it is this court that is deciding the s. 24(2)
    application.

DISPOSITION

[39]

For
    these reasons, I would dismiss the appeal.

Released: December 14, 2014 (K.F.)

E.E. Gillese J.A.

I agree. K. Feldman J.A.

I agree. David Watt J.A.

[1]
The ruling of the application judge, Justice Susan Himel, was made part of the
    trial record at the outset of the trial.

[2]

R. v. Grant
, 2009 SCC 32,
    [2009] 2 S.C.R. 353.