COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dawkins, 2021 ONCA 113

DATE: 20210223

DOCKET: C66752

Fairburn A.C.J.O., Jamal and
    Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lincoln Lee Dawkins

Appellant

Brad Greenshields, for the appellant

Tanit Gilliam, for the respondent

Heard: October 30, 2020 by
    video conference

On appeal from the convictions entered by
    Justice Cynthia Petersen of the Superior Court of Justice, sitting with a jury,
    on November 23, 2018.

Fairburn A.C.J.O.:

A.    overview

[1]

On June 16, 2013, shortly after the arrival of a
    flight from St. Maarten to Toronto, two bricks of cocaine were found in a mens
    washroom located just before the primary inspection area at Toronto Pearson International
    Airport. The bricks appeared to have fallen from the ceiling above one of the
    washroom stalls. Another 16 bricks were found in the ceiling above that stall
    the following day. The cocaine weighed 17.3432 kilograms in total.

[2]

Both the appellant and Marvis Samuel had been
    passengers on the flight to Toronto from St. Maarten. Shortly after the flight arrived,
    video surveillance footage showed them entering and leaving the washroom where the
    cocaine was later discovered. They were moving in close succession. Four of the
    appellants and one of Mr. Samuels fingerprints were found on the packages of
    cocaine discovered in the washroom.

[3]

Both men were indicted on importing and conspiracy
    to import cocaine charges. Prior to their trial, Mr. Samuel pled guilty to the
    conspiracy count and was deported from Canada.

[4]

The appellant was eventually tried before a
    judge and jury. He was convicted on both counts and received a nine-year and six-month
    sentence on the importing count and the same concurrent sentence on the conspiracy
    count.

[5]

This is an appeal from convictions only. The
    appellants objections rest exclusively with the jury charge. I would group his
    objections into two overarching categories, both of which arise in the context
    of the trial judges jury instructions on the conspiracy count:

(a)
that the jury was erroneously instructed on the use they could make
    of Mr. Samuels guilty plea; and

(b)
that the jury was erroneously instructed on the use that could be
    made of the acts and declarations of alleged co-conspirators, including Mr.
    Samuels acts and declarations.

[6]

As I will explain, both of these errors were
    made. As I will further explain, despite these errors, this was an overwhelming
    Crown case on the importing count and, therefore, I would uphold the conviction
    for importing a controlled substance by applying the curative proviso under s.
    686(1)(b)(iii) of the
Criminal Code
, R.S.C. 1985, c. C-46.

B.   ISSUE ONE: USING
    THE SAMUEL GUILTY PLEA AS PROOF OF THE CONSPIRACY

(i)

Overview

[7]

The essence of a criminal conspiracy is an
    agreement to pursue an unlawful object. It is a preliminary crime where the
    Crown has to prove that there was a meeting of the minds between at least two
    people  the co-conspirators minds  to pursue an unlawful object:
United
    States of America v. Dynar
,

[1997] 2 S.C.R. 462, at para. 87;
Criminal
    Code
, s. 465(1). As Dickson J. (as he then was) helpfully explained over 40
    years ago now in
Papalia v. R.
,

[1979] 2 S.C.R. 256, at p. 276,
    the crime of conspiracy is well named, deriving as it does from the Latin words
con
and
spirare
, meaning to breathe together.

[8]

Therefore, proof of a conspiracy involves three
    essential components: (a) there was an agreement between two or more persons;
    (b) the purpose of that agreement was to pursue a common unlawful object; and
    (c) the accused was a member of that conspiracy, meaning that he or she had
    knowledge of the unlawful nature of the agreement and made a voluntary and
    intentional decision to join in the agreement to achieve the common unlawful
    object.

[9]

In this case, the jury was instructed to forgo consideration
    of the first two essential elements of conspiracy: whether there was an
    agreement between two or more persons; and, if so, whether the agreement was to
    pursue a common unlawful object. Instead, the jury was instructed that, because
    Mr. Samuel had pled guilty to conspiracy, they were required to accept as a
    proven fact that those two elements had been proven beyond a reasonable doubt.

[10]

The source of this instruction appears to have
    been an Agreed Statement of Facts, entered as the first exhibit at trial, which,
    for reasons that are not entirely clear, included reference to Mr. Samuels
    plea of guilt to conspiracy:

On June 8, 2015, Marvis Samuel pled guilty to
    conspiracy to importing cocaine, in the amount of 17.3432 kilograms, into
    Canada between June 1
st
and June 16
th
, 2013, both dates
    inclusive, contrary to s. 6(1) of the
Controlled Drugs and Substances Act
and s. 465(1)(c) of the
Criminal Code of
    Canada
.

[11]

The fact of Mr. Samuels guilty plea resulted in
    the trial judge instructing the jury that they must accept as fact the
    following things: (a) that there was a conspiracy between two or more people;
    (b) that the conspiracy was to import 17.3432 kilograms of cocaine into Canada;
    (c) that the conspiracy lasted between June 1 and 16, 2013; and (d) that Mr.
    Samuel was a member of that conspiracy. The impugned instruction reads as
    follows:

It is an agreed fact (Exhibit 1) that Mr.
    Samuel pled guilty to conspiracy to import 17.3432 kilograms of cocaine into
    Canada between June 1 and June 16, 2013.
The Crown
    therefore is not required to prove the first two essential elements of the
    conspiracy offence. You must accept as fact that there was a conspiracy between
    two or more persons to import cocaine into Canada between June 1 and June 16,
    2013. You must also accept as fact that Mr. Samuel was part of the conspiracy
.
    [Emphasis added.]

[12]

For the reasons that follow, I conclude this was
    an erroneous instruction.

(ii)

A Guilty Plea Does Not Form Proof of the
    Offence

[13]

A co-actors guilty plea is proof of nothing
    other than that the pleader was arraigned, pled guilty to the offence, and that
    there was some evidence to support that plea:
R. v.
Caesar
, 2016
    ONCA 599, 339 C.C.C. (3d) 354, at paras. 55, 59. It is an actual admission of
    guilt against the pleader only. To be clear, it establishes nothing in relation
    to alleged co-actors.

[14]

The crime of conspiracy is not exempt from this
    rule. It is well established that the guilty plea of one alleged co-conspirator
    cannot be used to establish the guilt of another. In a comment particularly
    apposite to this case, Watt J.A. said in
Tsekouras
: The pleas of
    guilty or convictions of other alleged co-conspirators are not admissible to
    prove the existence or fact of the conspiracy in the trial of another or other
    alleged co-conspirators:
R. v. Tsekouras
, 2017 ONCA 290, 353 C.C.C.
    (3d) 349, at para. 177, leave to appeal refused, [2017] S.C.C.A. No. 225. See
    also
R. v. Desgroseilliers

(1986), 13 O.A.C. 225 (C.A.), at
    para. 29, leave to appeal to S.C.C. refused (1986), 74 N.R. 320 (note).

[15]

While there are rare circumstances where the
    guilty plea of an alleged co-actor may be admissible in the trial of another, the
    fact of the guilty plea remains of limited use, admissible only to prove the
    fact of the arraignment and guilty plea:
Caesar
,

at paras. 59,
    62. Importantly, even in these rare circumstances, the guilty plea is not
    admissible to prove the facts underlying the plea. That is precisely how Mr.
    Samuels guilty plea was used in this case.

(iii)

The Erroneous Instruction and the Parties
    Positions

[16]

On appeal, the respondent fairly acknowledges that
    the co-accuseds guilty plea to conspiracy should not have determined that
    there was, in fact, a conspiracy. Despite this concession, the respondent
    argues that no harm was occasioned by that improper use of the plea because the
    balance of the Agreed Statement of Facts supported the fact of the existence of
    the conspiracy and Mr. Samuels involvement in the conspiracy. I do not agree.

[17]

Aside from the reference to the guilty plea, there
    is nothing in the agreed- upon facts that speak to a conspiracy. To the
    contrary, the agreed-upon facts support Mr. Samuels involvement in the crime
    of importation, specifically acknowledging that he imported the bricks of
    cocaine and stored them in the washroom ceiling.

[18]

While this issue may well beg the question as to
    why the Agreed Statement of Facts referred to the guilty plea, there is no good
    answer to that question. Importantly, at this stage, it does not matter. The
    fact is that the actual facts that were agreed upon, and placed before the
    jury, supported Mr. Samuels involvement in the crime of importing cocaine into
    Canada and they supported the fact that he pled guilty to a conspiracy. They
    did not support a conspiracy.

[19]

The respondent also points to two passages in
    the transcript that are said to demonstrate that the defence accepted as a fact
    that there was a conspiracy. Leaving aside whether an acknowledgment from
    counsel, contained in submissions outside of the jurys presence, could cure
    this defect, I do not accept that the passages of transcript are as clear as
    suggested on this point.

[20]

On two separate occasions, the trial judge asked
    counsel for input as to whether she (the trial judge) was right about the use
    to be made of Mr. Samuels guilty plea. I would emphasize at this juncture that
    the trial judge was right to alert counsel to this issue and request assistance
    on the point. Unfortunately, she did not receive the assistance she was owed:
R.
    v. Daley
, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 58.

[21]

Although it was undoubtedly a legal
    misunderstanding on the part of the trial Crown, she did not alert the trial
    judge to the error in the proposed instruction. Instead, she encouraged the trial
    judge to stay the course and, essentially, withdraw from the trier of fact
    consideration of the first two essential elements of conspiracy. As the trial
    Crown put it:

Mr. Samue[l] pled guilty to a conspiracy to
    import cocaine for that exact quantity on that exact time frame  the exact
    same  so to me, theres no question that there was a conspiracy in play and
    Mr. Samuel was a part of it, and yes, the question to be decided is [whether
    the appellant was a member of that conspiracy].

[22]

Unfortunately, defence counsel did not raise an
    objection. When the issue was first raised by the trial judge, defence counsel
    asked for an opportunity to consider the matter. Later that same day, when the
    trial judge raised the matter again, defence counsel noted that she had
    retrieved the Agreed Statement of Facts just to refresh [her] memory on the
    wording. There was a short exchange, ending with the trial judges suggestion
    that they would discuss the matter again in the morning, but unfortunately that
    did not happen.

[23]

Although the respondent does not suggest
    otherwise, it is also important to note that defence counsel did not
    acknowledge the existence of a conspiracy or the nature of that conspiracy in her
    closing submissions to the jury.

[24]

In the end, the record does not support the
    respondents suggestion that these matters were clearly acknowledged by the
    defence at trial.

(iv)

The Effect of the General Instructions About the
    Use to be Made of Guilty Pleas

[25]

The respondent contends that, even if the appellant
    did not acknowledge Mr. Samuels guilt in relation to the conspiracy, no
    prejudice resulted because the trial judge gave two general limiting
    instructions about what use could be made of guilty pleas. The respondent
    points to two passages in the charge that are said to have brought home to the
    jury that Mr. Samuels conviction could not be used by the jury in assessing
    whether the appellant was also guilty.

[26]

The first instruction resides early in the
    charge, at a point when the jury was being instructed on general legal principles.
    At that stage, the jury was told:

Mr. Samuels guilty plea has absolutely no
    bearing on whether [the appellant] is guilty. You must not think that because
    Mr. Samuel pleaded guilty, [the appellant] must be guilty too.

[27]

The second instruction came in the part of the
    charge where the trial judge was guiding the jury on the elements of the crime
    of importation of a controlled substance. At that stage, the jury was told
    that:

It is important to remember  that although
    [the appellant] and Mr. Samuel were both charged in respect of the bricks of
    cocaine that were found in the airport washroom, each is a separate individual
    who cannot be found guilty of any offence unless the evidence relating to him
    proves his guilt of that offence beyond a reasonable doubt. [The appellant] is
    entitled to separate consideration of the evidence that applies to him. He is
    entitled to have his case decided on the basis of his own conduct and his state
    of mind.

[28]

Both of these instructions were important. Both
    were correct in law. The jury needed to know that just because Mr. Samuel pled
    guilty, and was found guilty, it did not mean that the appellant was also
    guilty; they also needed to know that Mr. Samuel and the appellant were
    separate individuals and that the appellant could only be found guilty based
    upon the evidence relating to him.

[29]

The difficulty is that no sooner had these instructions
    been given than they were overtaken by the instruction to the jury that,
    because of Mr. Samuels guilty plea, they had to accept as proven that the
    first two elements of conspiracy had been made out. In other words, while the
    jury knew that the fact of Mr. Samuels guilty plea did not mean that the
    appellant was necessarily guilty of conspiracy, the fact of Mr. Samuels guilty
    plea was used as evidence against the appellant in proof of that charge.

(v)

Conclusion

[30]

While the respondent is right that, in the end,
    the defence did not contest the jury charge as delivered on this point, this
    was a serious error. While the failure to register a complaint will often
    signal the inconsequential nature of an error, particularly when viewed in the
    context of the broader trial, this is not one of those cases:
Daley
,
    at para. 58;
R. v. Jacquard
, [1997] 1 S.C.R. 314, at para. 38.

[31]

This is particularly true when one considers how
    the conspiracy count was framed on the indictment:
[the
    appellant]
, unlawfully did between the 1
st
day of J
[
une
]
, 2013 and the 16
th
day of J
[
une
]
, 2013, both dates inclusive,  conspire and agree together, with
    Marvis Anwah Samuel  to commit an indictable offence of importing a controlled
    substance into Canada, to wit: [cocaine]. Through the jury instructions given,
    every box on the conspiracy count was ticked, except for the appellants actual
    membership in the conspiracy. As I will now explain, respectfully, the jury was
    erroneously instructed on that issue as well.

C. ISSUE TWO: THE
    INSTRUCTION ON MEMBERSHIP  THE
CARTER

ERROR

(i)

Overview

[32]

The appellant argues that the trial judge erred
    in her instructions to the jury on how to approach their deliberative process
    involving the essential element of membership.

[33]

The jury was told that the conspiracy alleged
    by the Crown and to which Mr. Samuel pleaded guilty was from June 1 to June 16,
    2013. In determining whether the appellant was a member of
that
conspiracy, the trial judge instructed the jury as
    follows:

You may consider not only the things that [the
    appellant] said and did
but also what other known or
    probable members of the conspiracy said or did
. [Emphasis added.]

[34]

The appellant argues that this instruction was missing
    a fundamental element, arising from
R. v. Carter
, [1982] 1 S.C.R. 938.
    That element involves an intermediate step, requiring that the trier of fact
    first satisfy him or herself, based upon the accuseds own acts and
    declarations, that the accused is probably a member of the conspiracy. In my
    view, the jury charge fell short on this front.

(ii)

The
Carter
Instruction

[35]

The
Carter

instruction applies
    in any case involving an offence committed in furtherance of a common design
    where the Crown seeks to rely upon the acts and declarations of anyone else who
    formed part of that common design:
R. v. Satkunananthan

(2001),
    152 C.C.C. (3d) 321 (Ont. C.A.), at para. 98. In this case, the impugned
    instruction involving the common design involves the crime of conspiracy, and
    so I will use language to match that offence.

[36]

Acts and declarations are typically only
    admissible against the doer and maker:
R. v. Puddicombe
,

2013
    ONCA 506, 299 C.C.C. (3d) 543, at para. 85, leave to appeal refused,
[2013] S.C.C.A. No. 496
. Yet, in the context
    of a conspiracy, the acts and declarations by one member of the agreement may
    become admissible against other members of the same agreement, if those acts
    and declarations are done or made in pursuit of the same unlawful purpose while
    the conspiracy is still operative.

[37]

The
Carter

rule focusses upon
    the means by which the acts and declarations of one person can become
    admissible against another. This is true, whether those alleged co-conspirators
    stand as co-accused at trial or not. Indeed, it is true whether the alleged
    co-conspirators identities are known or not. Regardless, the acts and
    declarations of alleged co-conspirators are conditionally admissible at trial,
    leaving it up to the trier of fact to determine whether the evidence can be marshalled
    in aid of proving the accuseds membership in the conspiracy. Where the trier
    of fact is a jury, the proper approach to that determination requires precise,
    careful, and admittedly complex instructions.

[38]

In enters the
Carter

instruction.
    It is what Doherty J.A. referred to in
Puddicombe
,

at paras. 85-86,
    as a uniquely Canadian approach to the rule that [g]enerally, a declaration
    is admissible only against its maker and an act is admissible only against the
    doer of that act.

[39]

The
Carter

instruction involves
    three cascading steps, each one of which can bring the deliberative process in
    the context of a conspiracy case to an abrupt conclusion.

[40]

The first question is whether the trier of fact is
    satisfied beyond a reasonable doubt that the alleged conspiracy existed. At
    this stage, the trier of fact may consider all of the evidence, including what
    alleged conspirators have done and said in furtherance of the common unlawful object:
R. v. Yumnu
,

2010 ONCA 637, 260 C.C.C. (3d) 421 (
Yumnu
    (ONCA)
), at para. 338, affd 2012 SCC 73,
[2012]
    3 S.C.R. 777
.

[41]

If the answer to the first question is yes, then
    the trier of fact goes on to consider, based upon all of the evidence directly
    admissible against the accused, whether the accused is probably a member of that
    conspiracy. This determination is made on a civil standard of a balance of
    probabilities. It requires the trier of fact to consider the accuseds own
    words and conduct  the evidence directly admissible against him or her  as
    viewed against its proper context: see
R. v. Filiault

(1981),
    63 C.C.C. (2d) 321 (Ont. C.A.), at pp. 326-27, affd
[1984]
    1 S.C.R. 387
.

[42]

If the answer to the second question is yes,
    then the trier of fact goes on to consider whether the accuseds membership in
    the conspiracy has been proven beyond a reasonable doubt. This third step
    involves the conversion of probable membership into full membership or actual
    participation in the conspiracy:
Yumnu (ONCA)
,

at para. 340. Assuming
    that this stage is reached, the trier of fact will consider all of the
    evidence, including the acts and declarations of other alleged co-conspirators
    done and made in furtherance of the conspiracy while the conspiracy was ongoing
    in nature. See
Carter
,

at pp. 946-47;
R. v. Barrow
,

[1987] 2 S.C.R. 694, at p. 740;
R. v. Mapara
,

2005 SCC 23, [2005]
    1 S.C.R. 358, at para.
8;
R. v. Chang
(2003),
    173 C.C.C. (3d) 397 (Ont. C.A.), at para. 53.

(iii)

The

Objection on Appeal

[43]

The appellants complaint lies in the fact that
    the trial judge by-passed the first two elements from
Carter

and
    skipped directly to instructing the jury on the third prong. In other words,
    instead of instructing the jury to first consider whether there was a
    conspiracy and, if so, whether the appellant was probably a member, the trial
    judge told the jury that there was, in fact, a conspiracy and that, in
    determining if the appellant was a member, they could consider not only the
    things that [he] said and did
but also what other known or probable members of the conspiracy said or
    did
.

[44]

I have previously explained why it was an error
    to instruct the jury that they had to accept as a fact the existence of the
    conspiracy (issue one in these reasons and step one of
Carter
).
    Accordingly, I will now focus upon why it was an error to skip the second stage
    of
Carter
.

In my view, the charge erroneously deemed the
    appellant to be a probable member of Mr. Samuels conspiracy and, thereby, worked
    a serious unfairness to him.

(iv)

The Draft Charge was Correct on Stage Two and
    then it was Changed

[45]

I start with the observation that the draft jury
    charge, shared with counsel during the pre-charge stage of the trial, contained
    a correct
Carter

instruction on stage two. That draft tracked
    the specimen jury charge provided in David Watt,
Watts Manual of Criminal
    Jury Instructions
, 2nd ed. (Toronto: Carswell, 2015), at pp. 1089-95 (Final
    465).

[46]

The draft correctly explained to the jury that
    they were first to consider probable membership based upon what [the appellant]
    said and did. It then went on to explain that, if satisfied from [the
    appellants] own words and conduct that he was probably a member of the
    conspiracy, then they could move on to consider what Mr. Samuel or any other
    persons who were probably members of the conspiracy said and did while the
    conspiracy was ongoing and in furtherance of their agreement.

[47]

Unfortunately, the trial Crown convinced the
    trial judge that she need not instruct the jury on probable membership (step
    two of
Carter
)
.
The trial Crown said that it was unnecessary to
    do so because the
Carter

instruction was only required where
    the acts and declarations of other alleged conspirators were admitted for a
    hearsay purpose. While the trial Crown acknowledged that there was one text
    message communication that was admitted for its truth,
[1]
for the most part, the acts
    and declarations of the other alleged conspirators, including Mr. Samuel, were
    not being relied upon for their truth and, therefore, there was no bar to using
    them to prove the appellants membership in the conspiracy.

[48]

The trial judge accepted this submission and ultimately
    collapsed the instruction into the third stage of
Carter
.

Accordingly,
    the jury was invited,

from the outset, to consider the acts and
    declarations of other known or probable members of the conspiracy in
    determining whether the appellant was also a member of that conspiracy.

(v)

A
Carter
Instruction Does Not Only Concern Itself with Hearsay

[49]

While the
Carter
rule is often referred
    to as the co-conspirators exception to the hearsay rule  and it is that to be
    sure  it serves a broader purpose than just protecting the accused against
    hearsay.

[50]

As explained earlier, at its core, the crime of
    conspiracy is about at least two people agreeing to pursue an unlawful object.
    By virtue of their joint enterprise, the enterprise being the agreement to
    pursue the unlawful object, the principle of implied agency is triggered. By reason
    of their partnership in crime, co-conspirators become one anothers agents,
    vicariously owning each others acts and declarations made and spoken in
    pursuit of the unlawful object during the currency of the conspiracy. As noted
    in
Chang
, at para. 55, the historical rationale for this rule rests in
    the accepted fact that each party to the conspiracy implicitly authorize[s]
    the others to act and speak on his or her behalf in furtherance of the
    conspiracy; acts and declarations of one party could therefore be admitted as
    evidence against the others.

[51]

The principle of agency was explained by Martin
    J.A. in
R. v. Baron and Wertman
(1976)
, 73 D.L.R. (3d) 213 (Ont. C.A.), at pp. 231-32. His
    description, at p. 231, has withstood the test of time:

The governing rule of evidence is not in
    doubt, although its application in a particular case often raises questions of
    great difficulty. The rule is based upon a principle of agency. If A and B have
    agreed to achieve a common unlawful purpose, then by their agreement each has
    made the other his agent to achieve that purpose, with the result that the acts
    and declarations of A in furtherance of the common design are not only As acts
    and declarations but, in law, are also Bs acts and declarations. The rule of
    evidence is not limited to charges of conspiracy but applies to any offence
    which is the result of preconcert. [Citations omitted.]

[52]

The principle of agency is a powerful tool in
    the hands of the prosecution, one that cannot be resorted to lightly. Caution
    must be taken, lest an accused be convicted only on the basis of the acts and
    declarations of others. This is why there must be an initial showing of proof,
    based on the accuseds own connection to the alleged conspiracy, before the
    acts and declarations of alleged co-conspirators  as his agents  can be
    applied against him. Martin J.A. put it as follows in
Baron
,

at
    pp. 231-32:

It is clear that where the fact in issue to be
    proved is whether a conspiracy exists between A and B, As acts, or
    declarations implicating B cannot be used to prove that B was a party to the
    conspiracy, in the absence of some other evidence admissible against B to bring
    him within the conspiracy. [Citations omitted.]

[53]

It is the
Baron
judgment that laid the
    framework for the
Carter

test.

[54]

Contrary to the trial Crowns suggestion, which
    is further advanced by the respondent on appeal, the purpose of the
Carter

test

is not simply to ward off the use of hearsay evidence until
    such time as the accuseds probable membership in the conspiracy has been
    established. While it undoubtedly achieves that goal, the purpose of the
Carter

test is properly characterized as a much broader one. It is rooted in the
    concept of relevance.

[55]

It bears repeating what Doherty J.A. said in
Puddicombe
,

at para. 85: Generally, a declaration is admissible only against its maker
    and an act is admissible only against the doer of that act. Stated the other
    way, the declarations and acts of others are not generally admissible against an
    accused. Therefore, this is more than a hearsay rule. It is a rule that ensures
    that before we allow evidence that would not otherwise be admissible against an
    accused to become a tool in the prosecutors case against him, there must be proof
    of the accuseds probable membership in the conspiracy, based only on evidence
    that is directly admissible against the accused:
Carter
,

at
    p. 947;
R. v. Lucas
,

2014 ONCA 561, 313 C.C.C. (3d) 159, at
    para. 208, leave to appeal refused,
[2014] S.C.C.A. No.
    460
;
Puddicombe
,

at para. 99;
Yumnu
    (ONCA)
, at para. 340. At its core, this is a rule of fairness.

(vi)

The Effect of the Erroneous Instruction

[56]

In my view, the failure to instruct the jury on
    probable membership created a serious issue of fairness in this trial, one that
    only served to compound the initial erroneous instruction addressed under issue
    one of these reasons. The combined effect of those instructions was to leave
    the jury thinking that they had to accept that Mr. Samuel was a member of a conspiracy
    to import 17.3432 kilograms of cocaine into Canada and that his acts and
    declarations, as well as those of other probable members of the conspiracy,
    could be used in determining whether the appellant was also a member of that
    conspiracy. This was reinforced by the trial judge in the following
    instruction:

It is not necessary that [the appellant] be
    the person who actually did the act in furtherance of the conspiracy, or even
    that he understood it or knew about it. Similarly, it is not necessary that
    [the appellant] be the person who actually spoke the words in furtherance of
    the conspiracy, or even that he was there when they were spoken. A conspiracy
    is like a partnership in crime.
Each member is an agent
    or partner of every other member and is bound by and responsible for the words
    and conduct of every other member spoken or done while the conspiracy was
    ongoing and to further their unlawful scheme
. [Emphasis added.]

[57]

It was a short distance between those
    instructions and a finding of guilt.

[58]

The respondent takes the position that this case
    consisted primarily of evidence directly implicating the appellant. That is
    true. However, the real question is whether there was evidence that was not
    directly admissible against the appellant or, conversely, evidence that could
    only be summoned in aid of proof of membership upon the application of the
Carter

rule. There was. I will use a few examples to make this point.

[59]

First, even the trial Crown acknowledged that
    there was a critical text message string, located on the appellants and Mr.
    Samuels phones, that the trial Crown wished to rely upon for a hearsay
    purpose: the truth of its contents. While the trial Crowns position morphed
    somewhat over the course of the trial, at the end of the day, even as doing
    away with the
Carter

instruction was being advocated for, the
    trial Crown acknowledged that the following key text message exchange, sent and
    received while the appellant would have been waiting for the plane to depart
    St. Maarten, was admitted for a hearsay purpose. The appellants phone sent a
    message to Mr. Samuels phone, reading: Ok how much you have. The reply from Mr.
    Samuels phone was: 9. The trial Crown closed to the jury suggesting that
    what was being discussed in that text message was that Mr. Samuel was
    acknowledging he was carrying nine bricks of cocaine.

[60]

Second, the trial Crown also emphasized Mr.
    Samuels acts. For instance, the trial Crown pointed out the fact that Mr.
    Samuel was a resident of Antigua and that he had travelled to St. Maarten the day
    before the flight to Toronto. The trial Crown emphasized for the jury Mr.
    Samuels travel itinerary, including his Antigua to St. Maarten to Toronto to
    Montreal to Antigua turnaround. The trial Crown pointed to stamps on Mr.
    Samuels passport to demonstrate his date of arrival in St. Maarten. The trial Crown
    also pointed to the fact that one of Mr. Samuels fingerprints was on a brick
    of cocaine recovered from the mens washroom.

[61]

The trial Crown relied upon all of these pieces
    of evidence and more to suggest that the appellant was a member of Mr. Samuels
    conspiracy. Importantly, when relating the evidence to the legal issue of
    membership, the trial judge reviewed these pieces of evidence and more. This
    was not evidence directly admissible against the appellant. A
Carter

instruction was required.

(vii)

Significance of the Defence Position

[62]

The respondent emphasizes that even if the trial
    judge was wrong to collapse the
Carter

instruction by inviting
    the jury to commence their deliberations at the final stage, the defence
    acceded to that position at trial. Therefore, it does not fall to the appellant
    to complain about the instruction now.

[63]

The respondent is right that the appellant did
    not oppose the proposed manner of proceeding at trial. While defence counsel initially
    asked for some time to consider the matter, she later announced that she did
    not take issue with the jury being instructed to move directly to the final
    stage of
Carter
,

to make it easier for the jury.

[64]

While the parties positions at trial will often
    inform the seriousness of an error located on appeal, that will not always be
    the case. It is not the case here. The greater the error and the closer it
    resides to a central issue, the less likely a counsels position will inform
    the result. In the end, I have come to the conclusion that this jury was not
    properly equipped to decide the case on conspiracy:
R. v. Calnen
,

2019
    SCC 6,
[2019] 1 S.C.R. 301,
at
    para. 9.

[65]

Before embarking on the final section of these
    reasons, I make the following brief observation, all the while acknowledging
    the force of prosecutorial discretion. It is not uncommon to see prosecutions,
    such as this one, where the substantive crime is charged alongside a conspiracy
    count. This double-pronged approach can invite complexity and potential
    confusion into jury charges, both of which serve to threaten a clear-minded
    deliberative process. Complexity and confusion are impediments to achieving
    just results and stand in opposition to what we should be striving for in the
    criminal justice system. Where appropriate, it would behoove the prosecutorial
    authorities to seriously think about what is gained and what is lost by
    proceeding with a conspiracy count alongside the substantive crime: see generally
R. v. Rowe
,

2011 ONCA 753, 281 C.C.C. (3d) 42, at paras. 54-58;
R. v. Rodgerson
,

2015 SCC 38,
[2015] 2
    S.C.R. 760,
at paras. 45-46.

D. ISSUE THREE: The
    Application of the
Curative Proviso

[66]

The respondent argues that, if this court finds a
    reversible error in the jury charge on conspiracy, the
curative proviso
should be applied.

[67]

Section 686(1)(b)(iii) of the
Criminal Code
allows an appellate court to dismiss an appeal notwithstanding a legal error if
    no substantial wrong or miscarriage of justice occurred. The curative proviso
    only applies where there is no reasonable possibility that the verdict would
    have been different had the error at issue not been made:
R. v.
Bevan
,
    [1993] 2 S.C.R. 599, at p. 617.

[68]

There are two types of errors that can attract
    the application of the curative proviso. The first involves harmless or trivial
    errors, ones that could not have had an impact on the verdict:
R. v.
Van
,
    2009 SCC 22, [2009] 1 S.C.R. 716, at para. 35. That is not this case. Here, the
    errors were neither harmless nor trivial in nature.

[69]

The second category for applying the curative proviso
    results from situations involving serious errors, ones that would typically
    call out for a new trial or an acquittal, but where the case against the
    accused is so overwhelming in nature that any other verdict would have been
    impossible to obtain:
Van
, at para. 34. These cases must rise to the
    level where the evidence is so overwhelming that a trier of fact would
    inevitably convict:
R. v. S. (P.L.)
,

[1991] 1 S.C.R. 909, at
    p. 916;
R. v.
Trochym
, 2007 SCC 6, [2007] 1 S.C.R. 239, at
    para. 82;
Van
,

at para. 36;
R. v. R.V.
,

2019 SCC
    41, 378 C.C.C. (3d) 193, at para. 85. It is a high standard to be sure.

[70]

The difficulty with applying the curative proviso
    in situations such as these often arises from the difficulty that appellate
    courts face when evaluating the strength of the Crowns case in a necessarily
    retroactive fashion, deprived of the ability to hear the witnesses testify and
    experienc[e] the trial as it unfolded:
Van
, at para. 36.

[71]

As noted in
Van
, at para. 36, any
    possible doubt must inure to the benefit of the appellant. In other words, if
    there is any possibility that the jury could, having regard to the entirety of
    the evidence, be left with a reasonable doubt on the appellants testimony, the
    curative proviso cannot be mobilized to uphold a conviction:
R. v.
Bailey
,
    2016 ONCA 516, 339 C.C.C. (3d) 463, at para. 57.

[72]

The appellant asks that both of his convictions
    be set aside, and a new trial be ordered on both counts. I do not agree that this
    is an appropriate remedy.

[73]

First, I note that the entire appeal was argued
    with a singular focus on the conspiracy count. While during oral submissions in
    this court there was some discussion about the potential impact of the errors
    on the importing count, particularly given that it rested in an allegation
    involving a joint enterprise, I see no need to resolve that issue. The fact is
    that the conviction for importing should be upheld through an application of s.
    686(1)(b)(iii) of the
Criminal Code
.

[74]

Second, there was a sea of evidence pointing
    toward the appellants guilt on the importing offence, none of which rested on
    credibility findings. The appellant was caught on videotape entering the
    washroom where the cocaine was found. He was in there for a sufficient amount
    of time to hide the cocaine. Then, he was seen departing from the washroom.
    Four of his fingerprints were discovered on the packages of cocaine found on
    the floor and in the ceiling. When he was searched just a short while after the
    first two packages had been located, an empty knapsack was found in his carry-on
    luggage. That alone constituted what can only be described as a formidable
    overwhelming  Crown case on the importing count.

[75]

I would uphold the conviction for importing.

[76]

As it relates to the conspiracy count, things are
    more complicated. The appellant testified and explained away all of the
    communications on his cell phone. It was an elaborate explanation, involving,
    among other things, the work he was doing in St. Maarten, the fact that he fell
    for a woman while he was there, and his need for Viagra. It also involved an
    explanation as to the fact that some of the more incriminating text messages on
    his phone were actually sent to a friend of his, each one having an innocent
    meaning.

[77]

As for how Mr. Samuel came into possession of
    the appellants friends phone, this was as much a mystery to the appellant as
    it was to anyone else. The appellant did not know whether his friend and Mr.
    Samuel were acquainted or whether the friend may have given his phone or SIM
    chip card to Mr. Samuel.

[78]

However far-fetched that evidence may have been,
    it was up to the trier of fact to tackle questions of credibility. In the end,
    while the Crowns case on the conspiracy count is a powerful one, questions of
    credibility and the application of the
W.(D.)

standard were squarely
    in play:
R. v. W.(D.)
,
[1991] 1 S.C.R. 742
. Having regard to all of the evidence, I cannot say that a jury
    would inevitably convict.

E. DISPOSITION

[79]

I would dismiss the conviction appeal on the
    importing count. I would allow the conviction appeal on the conspiracy count.
    Therefore, the conviction on conspiracy is set aside, and a new trial is
    ordered on that count only.

Released: February 23, 2021 JMJ

Fairburn
    A.C.J.O.

I
    agree M. Jamal J.A.

I
    agree Coroza J.A.

[1]
Earlier in the trial, the trial Crown had acknowledged that there
    were a few text messages that were being admitted for their truth.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dawkins, 2021 ONCA 235

DATE: 20210414

DOCKET: C67433

Hourigan, Zarnett and Coroza
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tyrone Dawkins

Appellant

Mark C. Halfyard, for the appellant

Andrew Hotke, for the respondent

Heard: In writing

On appeal from the convictions entered
    on October 26, 2018, by Justice Richard E. Jennis of the Ontario Court of
    Justice.

REASONS FOR DECISION

Introduction

[1]

An officer of the Hamilton Police Service
    stopped the vehicle Tyrone Dawkins was driving and arrested him for driving while
    his licence was suspended. A search of the vehicle produced a loaded handgun
    under the drivers seat. Mr. Dawkins was re-arrested for possession of an
    unauthorized firearm.

[2]

Defence counsel argued that the traffic stop was
    unconstitutional because it breached ss. 8 and 9 of the
Canadian Charter of
    Rights and Freedoms
. Two weeks before the trial, Mr. Dawkins received updated
    disclosure that the stop was motivated, in part, by information from a
    confidential informant. The arresting officer, P.C. Cercone, had deliberately
    omitted this information from his notes, original will-say, and synopsis.

[3]

The matter proceeded as a single day
Charter
application and turned largely on the credibility of P.C. Cercone. Defence
    counsel at trial (not Mr. Halfyard) initially argued that the officers
    deliberate omission subverted the trial process, and that the trial judge
    should exercise his residual discretion to grant a stay of proceedings. However,
    after the parties had filed written submissions and the trial judge requested
    further oral submissions, defence counsel clarified that he was solely seeking
    a stay on the basis of a s. 9
Charter
breach and not in relation to the
    late disclosure or another reason related to trial fairness.

[4]

The trial judge ruled that the officer was
    credible and dismissed the defence application. He dedicated only one paragraph
    of his reasons to his credibility assessment of the officer. The defence
    subsequently conceded the Crown's case, and Mr. Dawkins was convicted of
    multiple firearms offences. The parties agreed on a joint sentencing
    submission, which the trial judge accepted. Mr. Dawkins was sentenced to 7.5
    years in custody, less 1.5 years pre-sentence credit.

[5]

On appeal, Mr. Dawkins argues that the trial
    judge provided insufficient reasons for finding that P.C. Cercone was credible.
    These reasons explain why we are not persuaded by that argument and accordingly
    dismiss the appeal.

Facts

[6]

On February 25, 2018, at approximately 11:49
    p.m., P.C. Cercone was conducting what he described as routine patrol of a
    location known to police as an illegal gambling establishment in Hamilton. He
    ran CPIC checks on the licence plates of some of the cars in the parking lot,
    including a grey Ford Escape.

[7]

At approximately 12:30 a.m. on February 26,
    2018, P.C. Cercone observed a male and a female exiting the establishment. The
    officer recognized the male as the appellant, Mr. Dawkins, from a police
    database photo. P.C. Cercone observed Mr. Dawkins and the woman enter the grey
    Ford Escape, which turned out to be registered to a different individual.

[8]

The delayed disclosure revealed that P.C.
    Cercone had information from a confidential source that Mr. Dawkins may be in
    possession of contraband. At trial, P.C. Cercone testified that he also had
    information that Mr. Dawkins was driving a silver SUV. P.C. Cercone ran a
    CPIC check on Mr. Dawkins before pulling him over and was aware that he was a
    suspended driver.

[9]

P.C. Cercone followed the vehicle after it
    exited the parking lot. Two minutes later, he stopped it and radioed for
    backup. P.C. Cercone told Mr. Dawkins that he stopped the vehicle because it
    was swerving. The officer later acknowledged that he lied to Mr. Dawkins about
    the reason for the stop to buy time for other officers to arrive at the scene.
    He thought that advising Mr. Dawkins of the real reason for the stop  i.e.,
    that P.C. Cercone suspected that Mr. Dawkins was driving while suspended
    would heighten his fear level and jeopardize officer safety. P.C. Cercone
    testified that he was aware that Mr. Dawkins had prior firearms-related
    convictions and was subject to a weapons prohibition order.

[10]

After a second officer arrived on the scene,
    P.C. Cercone arrested Mr. Dawkins for driving while his licence was suspended.
    P.C. Cercone testified that he searched the vehicle, starting with the drivers
    seat, for documents related to the suspended licence and for public safety
    reasons. He noticed that the backseat was messy and that there was loose
    paperwork on the rear seat behind the driver and on the floor. As P.C. Cercone
    searched the backseat area, he located the handgun under the drivers seat.

[11]

On the
Charter
application, P.C.
    Cercones evidence was that he engaged in a dual-purpose stop and search: the
    first purpose was pursuant to the
Highway Traffic Act
, R.S.O. 1990, c.
    H 8, for the offence of driving while suspended; and the second purpose was
    based on the confidential informants tip regarding potential contraband.

[12]

P.C. Cercone did not mention the confidential
    informant in his notes, original will-say, or synopsis. He explained that at
    the time of the arrest, he had only been a police officer for two years and had
    never dealt with a confidential informant. P.C. Cercone stated that he was
    concerned that any hint of involvement of a confidential informant could
    jeopardize the sources identity.

[13]

The officer also testified that he had several
    conversations about his non-disclosure with his superiors, beginning sometime in
    February or March. On his superiors' advice, P.C. Cercone did not disclose
    anything further and decided to wait for instructions from the Crown's office.
    The Crown met with the officer in August 2018 and was advised for the first
    time about the non-disclosure. P.C. Cercone subsequently amended his will-say
    on or around August 10, 2018, to reference the confidential informant. The
    revised will-say was disclosed to the defence on or around August 15, 2018,
    approximately two weeks before trial.

[14]

The trial judge heard the evidence of P.C.
    Cercone on August 29, 2018. He adjourned the matter to October 26, 2018, and
    requested written submissions. Then, on October 26, 2018, the trial judge
    invited further oral submissions on issues arising from the written
    submissions. Defence counsel clarified in oral submissions that he was only
    seeking a stay for the alleged breach of Mr. Dawkins s. 9
Charter
rights and had abandoned his request for a stay based on late disclosure or any
    other reason related to trial fairness.

[15]

The defence's position was that P.C. Cercone's
    evidence was a fictional account of what happened and that the officer had concocted
    the reasons for the late disclosure because there were not sufficient grounds
    to stop Mr. Dawkins' motor vehicle and detain him. In contrast, Crown counsel
    argued that the traffic stop was justified by the
Highway Traffic Act
and P.C. Cercones objectively reasonable belief that Mr. Dawkins had committed
    the offence of driving while suspended. The Crown noted that it was not relying
    upon the confidential informants tip as a justification for the stop or
    arrest.

[16]

Counsel agreed about the central importance of
    P.C. Cercones credibility. The defence conceded that if he were found to be
    credible, then its
Charter
application would fail. Similarly, the
    Crown acknowledged that it could not make out its case if P.C. Cercone were
    found to be prevaricating.

[17]

The trial judge dismissed Mr. Dawkins
Charter
application. He summarized his reasons for accepting P.C. Cercones evidence in
    one paragraph as follows:

Albeit unusual, it accords with common sense
    and logic given his lack of experience as a police officer at the time and
    especially given his lack of experience with a confidential informant, it makes
    sense that given a mistake in disclosure could have grave if not fatal
    consequences. His testimony was uncontradicted and was not shaken or weakened
    in cross-examination. In my view, he was forthright and direct in his answers
    to questions and did not attempt to embellish.

[18]

The trial judge noted that, although the delay
    in disclosure was "somewhat concerning," defence counsel did not
    point to any prejudice occasioned to Mr. Dawkins, and did not request an
    adjournment. Moreover, the trial judge found that P.C. Cercone did not act in
    bad faith; his actions were coloured by a perceived risk to his safety. As
    well, the trial judge reasoned that the evidence was not exculpatory, nor could
    the Crown rely upon it due to its invocation of informant privilege.
    Ultimately, the trial judge found no basis for a stay of proceedings and
    dismissed the application.

Analysis

[19]

Mr. Dawkins raises a single issue on appeal:
    whether the trial judges reasons were sufficient regarding P.C. Cercones
    credibility, which was the central issue on the
Charter
application and
    was dispositive of the case. Mr. Dawkins submits that the trial judge should
    have more thoroughly examined the officers credibility with respect to his
    explanations for the failure to mention the confidential informant in the
    initial disclosure, for the lateness of the amended disclosure, and for the
    circumstances of Mr. Dawkins stop and search.

[20]

Mr. Dawkins argues that, despite the central importance
    of the officer's credibility to the disposition of his
Charter
application and the case, the trial judge's reasons on the issue are limited to
    a single paragraph that was largely boilerplate. He notes that beyond the trial
    judge's finding that the officer was inexperienced, the trial judge simply
    observed that the witness was uncontradicted, direct, and did not embellish his
    testimony. Mr. Dawkins submits that the trial judge was obliged to analyze the
    problems with the officer's evidence to satisfy the parties and this court that
    he correctly understood the credibility concerns.

[21]

In considering these submissions, it is helpful
    to have regard to several well-established principles that arise from the
    jurisprudence regarding the sufficiency of a trial judges reasons:

(i)

Reasons serve various functions, including
    explaining to the parties, the public and the appeal court why the trial judge
    decided a case in a particular way:
R. v. Victoria
, 2018 ONCA 69, 359
    C.C.C. (3d) 179, at paras. 43 46.

(ii)

Appellate courts take a functional approach when
    considering appeals grounded on claims of insufficient reasons. The sufficiency
    of reasons must be assessed having regard to the evidence, the submissions, and
    the live issues before the trial judge:
R. v. M. (A.)
, 2014 ONCA 769, 123
    O.R. (3d) 536, at para. 16;
Victoria
, at para. 44.

(iii)

A ground of appeal asserting insufficient
    reasons will fail unless the reasons are so deficient that they foreclose meaningful
    appellate review:
Victoria
, at para. 44;
R. v. T.C.
, 2020
    ONCA 469, at para. 24.

(iv)

A trial judge's credibility findings are
    entitled to significant deference unless they cannot be supported on a
    reasonable view of the evidence. Appellate courts must be mindful that it is
    often difficult to express such findings with precision:
R. v. Dinardo
,
    2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26;
R. v. Radcliffe
, 2017
    ONCA 176, 347 C.C.C. (3d) 3, at para. 23, leave to appeal refused, [2017]
    S.C.C.A. No. 274; and
R. v. Slatter
, 2018 ONCA 962, 369 C.C.C. (3d)
    112, at para. 102.

[22]

Context is essential in considering the
    sufficiency of the trial judge's reasons. As a result of the defence counsel's
    abandonment of the request for a stay based on the late disclosure, the only
    issue before the trial judge was whether the defence established, on a balance
    of probabilities, that the traffic stop was arbitrary. Given that the defence
    called no evidence, the trial judge was not obliged to resolve conflicting testimony.
    Instead, the trial judges task was limited to an assessment of whether P.C.
    Cercones testimony was credible.

[23]

The trial judge articulated reasons supporting
    his credibility finding, including that P.C. Cercone was not shaken on
    cross-examination and did not embellish his evidence. The trial judge also
    found that his explanation regarding the late disclosure was consistent with
    common sense and logic. Those reasons support the credibility finding made by
    the trial judge. While Mr. Dawkins argues that further elaboration was
    required, trial judges are not required to articulate credibility findings with
    scientific precision. This is especially true in situations, as in this case, where
    a trial judge is not analyzing conflicting evidence.

[24]

The defence theory proffered an alternative
    version of events that was wholly incompatible with P.C. Cercones testimony.
    There was no evidence adduced to support that theory. Instead, the theory was
    put to P.C. Cercone through a general attack on his credibility in cross-examination,
    and all insinuations about fabrication were denied by the officer. In finding P.C.
    Cercone credible, the trial judge rejected the defence theory.

[25]

The Crown concedes, and we agree, that the trial
    judge could have said more about why he rejected the defence theory. However,
    it is also important to note that there is evidence that contradicts the
    defence theory. For example, while P.C. Cercones notes do not mention the
    confidential informant, they did include information that he said came from the
    source regarding the fact that Mr. Dawkins was driving a silver SUV. This
    information's inclusion is inconsistent with the defence theory that the
    confidential informant was created later to defeat the
Charter
application, which was asserted after the officer's notes were originally
    disclosed. Thus, when the reasons are viewed in the context of the evidentiary
    record, it becomes apparent why the trial judge rejected the defence theory.

[26]

Mr. Dawkins also offers several criticisms of
    P.C. Cercone's testimony, including submissions that his evidence regarding why
    he made the traffic stop and why he did not disclose the information about the
    confidential informant earlier do not make sense. In our view, these alleged
    problems with the officers testimony, when considered in the evidentiary
    record context, do not detract from the officers credibility. For example, the
    officer offered logical explanations regarding why he lied to Mr. Dawkins about
    the reason for the traffic stop and why he did not reference the confidential
    informant in his notes, original will-say, or synopsis. The trial judge then adequately
    explained why he accepted those explanations.

Disposition

[27]

For the foregoing reasons, the appeal is
    dismissed. We note in closing that the issues of the propriety of the initial
    failure to disclose the existence of the confidential informant and the
    falsification of the original disclosure were not before us on this appeal.
    Nothing in these reasons should be considered an endorsement of the Hamilton
    Police Services conduct in that regard.

C.W.
    Hourigan J.A.

B.
    Zarnett J.A.

S. Coroza
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dematas, 2021 ONCA 289

DATE: 20210504

DOCKET: C68882

Hoy, Hourigan and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kadah Dematas

Appellant

No one appearing for the appellant

Nicole Rivers, for the respondent

Heard: May 3, 2021 by video conference

On appeal from the conviction entered on September 20,
    2019 by Justice Beth A. Allen of the Superior Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appeal is dismissed as abandoned.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dindyal, 2021 ONCA 234

DATE:20210414

DOCKET: C67760

Watt, Hoy and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Anand
    Dindyal

Appellant

Sweta Tejpal and Hans John Kalina, for the
    appellant

Eric W. Taylor, for the respondent

Heard: March 23, 2021 by videoconference

On appeal from the
    conviction entered on July 19, 2019 by Justice Michael R. Gibson of the Superior
    Court of Justice with reasons reported at 2019 ONSC 4364.

Nordheimer J.A.:

[1]

Anand Dindyal appeals from his convictions on a
    number of counts including aggravated assault and assault with a weapon. The
    appellant was originally charged with 11 counts. At the conclusion of his judge
    alone trial, he was convicted of 10 of the 11 counts. He was acquitted on count
    11. The appellant now appeals from his convictions on five of those counts:
    count 1  assault; count 3  aggravated assault; count 6  assault with a
    weapon; count 9  assault with a weapon; and count 10  assault.

A.

Background

[2]

All of the counts arise out of a troubled
    relationship that the appellant had with the complainant.
[1]
The two were in a
    relationship for a period of time.

[3]

The appellant, aged 21, met the complainant,
    aged 34, while working for a retail store in Brampton. The appellant was a
    sales associate, and the complainant was his boss. They began dating on
    February 14, 2015 and the appellant eventually moved in with the complainant.

[4]

The relationship was marked by numerous
    arguments between the two. Drinking was also part of the troubled relationship.
    A further complicating factor in the relationship was that the complainant
    became pregnant and had an abortion in January 2016. The appellant said that
    this was often the source of dispute between the two as the complainant blamed
    him for having the abortion. They conceived again but the pregnancies ended in
    miscarriages.

[5]

The appellant moved into the complainants home
    in June 2016 and resided with her, and her son from a previous relationship,
    until September 2017. The appellant then left the home. Sometime later, the
    complainant went to the police and gave a statement which led to the charges I
    mentioned at the outset.

[6]

It is not necessary to review all of the
    allegations underlying the 11 counts that were the subject matter of the trial.
    Rather, I will simply summarize the parties version of the events as they
    relate to the five counts that are the subject of the appeal:

Count 1

[7]

There was an argument between the appellant and
    the complainant. The complainant said that the appellant pushed her from behind
    and knocked her to the ground. She called the appellant a coward. The appellant
    immediately apologized.

[8]

The appellant acknowledged that he bumped into the
    complainant from behind and that she fell to the ground but said that it was an
    accident. The two had been drinking. He said that the complainant had taken his
    laptop and his cellphone and thrown them outside, damaging the laptop. When he
    went to retrieve them, he bumped into her from behind as she was standing in
    front of him. She fell to the ground because of the size difference between the
    two of them.

Count 3

[9]

The complainant had come home from work that day
    and had a few drinks. The appellant was also drinking, and they started to argue.
    The complainant said she had a massive headache. The complainant went to take
    several Tylenol, maybe as many as four to five, which she intended to wash down
    with alcohol. As she was washing them down, she suddenly felt one of the
    appellants fingers in her mouth. As she didnt want his finger in her mouth,
    she bit down on it probably significantly hard. Almost immediately, the
    appellant elbowed her in the left side of her face with his right elbow. In the
    days that followed, the complainant found out that she had suffered a fractured
    orbital bone which required emergency reconstructive surgery.

[10]

The appellant agreed that they had both been
    drinking and arguing. The appellant said that, without warning, the complainant
    had taken a handful of Advil. He was shocked, and asked her to spit them out,
    but she refused. The appellant said that he knew he had to get the Advil out of
    her mouth, and to make her throw up, so he took his right index finger and put
    it into her mouth. She reacted by biting it and, as he went to pull it out, his
    elbow connected with the side of her face because of the height difference
    between the two of them. The whole event happened within seconds, and in one
    motion.

Count 6

[11]

The complainant became pregnant but a few months
    before this incident she miscarried. This added tension to the relationship.
    The two were supposed to visit her parents and family but, on the morning of
    the visit, the appellant refused to go. An argument ensued. During the course
    of the argument, the appellant threw a plate with the remains of his breakfast
    and a full cup of coffee at the complainant. He missed but the plate and coffee
    dented and stained the wall. The appellant then stood up, came towards the
    complainant, picked her up by the throat, with her feet dangling in the air for
    just a moment, and slammed her down to the ground. He then got on top of her
    and started to choke her with his right hand. The complainant gasped for breath,
    attempted to scream and told the appellant to stop, which he did.

[12]

The appellant denied throwing the plate and cup
    of coffee. He said that the two had an argument about money and that, at one
    point, he either passed or tossed his wallet at the complainant. He said
    that the complainant then tried to push him. He grabbed the complainant and put
    her to the ground.

Count 9

[13]

The appellant and the complainant went to a
    barbeque. They were drinking. As they were leaving the barbeque, an argument
    ensued. The argument continued as the two got into their car and the appellant
    started the car. The complainant did not think that things would end well so
    she attempted to get out of the car as the appellant began driving. The
    appellant leaned over and grabbed the complainants face to keep her in the car,
    digging into her face. The complainant was able to get out of the car and
    run. The appellant caught up to her, tackled her, and forced her back to the car.
    The front passenger side door was still open. The appellant threw the
    complainant through the open door. She landed on her face on the drivers seat
    with her legs still dangling out of the open door. The appellants acts up to
    this point formed the basis for his conviction on count 8, which he has conceded.
    The complainant says that the appellant then slammed the car door on her legs [a]t
    least four or five times. This was the basis of the appellants conviction on
    count 9.

[14]

The appellant said that they went to the
    barbeque where the complainant got drunk and passed out. After they left,
    he had to hold her up to get her to the car. He tried to put her in the
    passenger seat, but she fell into the seat because she was still drunk. He
    buckled her in but didnt notice that one of her legs was still outside the car.
    He accidentally closed the car door on it, once. The appellant got in and
    started to drive but the complainant started freaking out and tried to get
    out of the car. As he was concerned for her safety, he reached out and tried to
    hold her, accidentally causing injuries on her face.

Count 10

[15]

The complainants son was due for a haircut. He
    didnt like haircuts and would fuss so they had decided to try and cut his hair
    at home. On the specific day, the complainants son was sitting on a stool and
    the appellant had started to cut his hair. Her son started to fuss, and whine,
    and the appellant became more and more upset. He eventually told her son not to
    move or he would have to shave off all his hair. The complainant yelled at the
    appellant. The appellant picked her son up off the stool by grabbing a fist
    full of his hair, took the clippers, and shaved right down the middle of her
    sons head.

[16]

The appellant agreed that the complainants son
    didnt like to get his hair cut and would fuss so that they had decided to cut
    his hair at home. That day, the son kept moving as the appellant started
    cutting his hair. The appellant told the son that if he kept moving, the
    appellant would end up cutting all his hair. The appellant suggested to the
    complainant that they should just shave off all his hair, so he didnt have to
    get his hair cut as often. The appellant said that as he started shaving the
    sons head, the complainant was freaking out but, by that point, it was too
    late to avoid completing the shaving of the sons hair.

B.

The trial judges decision

[17]

The trial judge began his decision by reviewing
    the evidence. He then recited certain principles of law including the
    presumption of innocence, the burden of proof, assessing the credibility of
    witnesses, and the application of the test from
R. v. W. (D.)
,
[1991]
    1 S.C.R. 742. The trial judge then reviewed the elements of each of the
    offences charged.

[18]

Thereafter, the trial judge reviewed the
    evidence of the appellant. He rejected his evidence in total. He said that he
    found the appellants evidence a contrived and calculated performance. The
    trial judge went on to say that the appellants evidence was not internally
    consistent, and not externally consistent with the other evidence that [he did]
    accept.

[19]

The trial judge proceeded to deal with the
    complainants evidence. He said that he found the complainant to be credible
    and that [s]he gave her evidence in a straightforward manner without undue
    embellishment. The trial judge added: Moreover, as submitted by the Crown,
    she has no reason to lie, to fabricate or to embellish the accusations against
    [the appellant].

[20]

The trial judge then went through each of the 11
    counts. With the sole exception of counts 5 and 11, the trial judge said,
    separately for each of the counts and in virtually the same language, that he
    did not believe the appellant and he was not left in a reasonable doubt by his
    evidence.

C.

Analysis

[21]

It is not necessary to address each of the
    complaints made by the appellant with respect to the trial judges reasons and
    analysis. Rather, I begin with the error that infected the trial judges
    approach to all of the counts and that is his credibility finding with respect
    to the complainant, i.e., the no motive to fabricate conclusion.

[22]

This court has explained, on a number of
    occasions, the permissible and impermissible use of evidence, or the absence of
    evidence, relating to motive. Most recently in
R. v. Ignacio
, 2021
    ONCA 69, at paras. 37-60, leave to appeal to S.C.C. requested, 39552, Pepall
    J.A. reviewed the authorities on this subject. Included in those authorities is
    the central point made by Doherty J.A. in
R. v. Batte

(2000),
    49 O.R. (3d) 321 (C.A.), at para. 121:

What must be avoided in instructing a jury is
    any suggestion that the accused has an onus to demonstrate that a complainant
    has a motive to fabricate evidence, that the absence of a demonstrated motive
    to fabricate necessarily means that there was no motive
or, finally, that
    the absence of a motive to fabricate conclusively establishes that a witness is
    telling the truth
. The presence or absence of a motive to fabricate
    evidence is only one factor to be considered in assessing credibility.
    [Emphasis added].

[23]

The trial judge found that the complainant had
    no reason to lie, to fabricate or to embellish the accusations against [the
    appellant]. But the evidence does not support that finding. The trial judge
    appears to have conflated the absence of evidence of a motive to fabricate with
    a proven lack of motive, contrary to
Batte
. This is a significant
    error. A proven lack of motive can be a compelling factor in a credibility
    assessment. However, the mere absence of any evidence of a motive to fabricate is
    only one of many factors to be considered in a credibility assessment. It alone
    cannot serve as the foundation of the credibility assessment.

[24]

In my view, the trial judge impermissibly used
    the absence of any evidence of a motive to fabricate as if it had been proven
    that the complainant had no motive to fabricate, in coming to his credibility
    conclusion regarding the complainant. Rather than consider it as a factor, the
    trial judge clearly used it to conclude that the complainant must be telling
    the truth, contrary to the admonition I have just set out above.

[25]

The concern that the use of the absence of
    motive evidence became the driving force in the trial judges conclusions is heightened
    by the generally conclusory nature of his reasons. There is no independent
    analysis of the evidence on each of the counts, as is required absent a count-to-count
    similar act application by the Crown, of which there was none in this case. There
    are also no individual credibility assessments. Rather, the trial judge made a
    blanket credibility finding and then, in considering each count, simply set out
    the facts for that count, and then recited the same conclusion  that he does
    not believe the appellant but does believe the complainant.

[26]

In addition to these problems, one of the
    reasons that the trial judge relied on to reject the appellants evidence, and to
    say that it did not raise a reasonable doubt, was the fact that it was
    internally and externally inconsistent. However, the trial judge did not, at
    any point in his reasons, identify any of those stated internal or external
    inconsistencies that led him to this conclusion. Among other problems that this
    failure creates, is the problem that it leaves this court without any way of
    reviewing the reasonableness of this conclusion.

[27]

This was a credibility case. It was incumbent on
    the trial judge to carefully analyze the evidence on each count and reach
    individual conclusions on them. The all or nothing approach that the trial
    judge took to the credibility assessments was improper. This is especially so
    because, on some of the counts, there was evidence, beyond that of the complainant
    and of the appellant, including photographs and other witnesses evidence, that
    required consideration in making any conclusions on credibility. Unfortunately,
    in many instances, the trial judge failed to reference this other evidence in
    his reasons. The one notable exception is with respect to count 11, where the
    trial judge did make reference to the evidence of the appellants brother, which
    he found raised a reasonable doubt.

[28]

In response to these concerns, the respondent
    says that the curative proviso in s. 686(1)(b)(iii) of the
Criminal Code
,
    R.S.C. 1985, c. C-46 could be applied. I would note that the respondent did not
    argue the proviso in its factum, which tends to raise the concern expressed in
R.
    v. P.G
.,
2017 ONCA 351, 138 O.R. (3d) 343, at paras. 13-16.
    However, putting that aside, the proviso cannot cure the credibility problems
    in this case, with the exception of count 6.

[29]

The proviso is
    properly utilized to remedy errors made at a trial when those errors are of the
    type set out in
R. v. Sekhon
, 2014 SCC 15, [2014] 1 S.C.R. 272, where
    Moldaver J. said, at para. 53:

Flowing from this
    principle, this Court affirmed in
Khan
that there are two situations
    where the use of s. 686(1)(b)(iii) is appropriate: (1) where the error is
    harmless or trivial; or (2) where the evidence is so overwhelming that,
    notwithstanding that the error is not minor, the trier of fact would inevitably
    convict.

[30]

The errors in the credibility assessments in
    this case are not harmless nor are they trivial. They were central to the trial
    judges conclusions. They were also key to the proper resolution of the counts
    charged. With the exception of count 6, given the nature of the evidence, and
    the required credibility resolution, the evidence cannot be said to be so
    overwhelming that convictions were inevitable. Indeed, with respect to counts
    1, 3 and 9, there was a serious dispute, on the evidence, regarding the events
    and how they transpired.

[31]

The one exception to this point is respecting count
    6. There was still a dispute on the evidence as to what had occurred but, on
    that count, there was external objective evidence to support the events as
    described by the complainant, namely, photographs of the damage done by the
    thrown plate and cup of coffee. While there was an argument over what the
    photographs actually depicted, that was a factual matter to be resolved by the
    trial judge. His conclusion on that factual issue is entitled to deference from
    this court. That conclusion alleviates, to a large extent, the concerns
    regarding the credibility assessment, and their impact, on that count.

[32]

On the other counts, there was conflicting
    evidence, some of which, as I have said, the trial judge did not address in his
    reasons. For example, on count 1, the appellants brother gave evidence regarding
    the damage to the appellants laptop that might have been seen as corroborating
    what the appellant said happened in that incident. The trial judge does not mention
    the brothers evidence. On count 3, the trial judge found that the force
    necessary to fracture the complainants orbital bone would far exceed the
    amount of force that would be transmitted by accident. The trial judge did not
    have any medical evidence to support that conclusion. The trial judge also
    failed to address whether the contact could have been accidental, arising from
    the reaction of the appellant to the fact that the complainant bit down hard on
    the appellants finger, as she admitted to having done. On count 9, the trial
    judge failed to address whether the complainants injuries (there were
    photographs of a bruise on the complainants shin) were consistent with her
    evidence that the appellant slammed the car door on her leg four or five
    times.

[33]

I mention these issues to demonstrate that the
    evidence on these three counts was not overwhelming. The proviso cannot be
    relied upon to correct the trial judges errors.

[34]

Finally, there is count 10, the cutting of the
    sons hair. The respondent fairly conceded during oral argument that the trial
    judge failed to set out what the assault was that founded the conviction on
    this count. The appellant had the complainants consent to cut her sons hair
    and to touch him for this purpose. Further, on the evidence, it was not the
    cutting of the hair that enraged the complainant but, rather, it was the hair
    style that the appellant chose, i.e., shaving the childs head.

[35]

The trial judges failure to articulate the
    precise nature of the assault fundamentally undermines the conviction. Further,
    the evidence led on this count, viewed from any perspective, does not allow for
    any reasonable conclusion that an assault occurred. The conviction on count 10
    must be set aside and, in the circumstances, an acquittal entered.

D.

Conclusion

[36]

I would allow the appeal on counts 1, 3, 9 and
    10. I would order a new trial on counts 1, 3 and 9. I would enter an acquittal
    on count 10. The sentences on each of those counts are set aside but the
    sentences on the other counts remain.

Released: April 14, 2021 DW

I.V.B. Nordheimer J.A.

I agree. David Watt J.A.

I agree. Alexandra Hoy J.A.

[1]

The appellants then girlfriend was the complainant in all
    of the counts, save for count 10 which involved the girlfriends young son from
    a previous relationship. For convenience, the appellants then girlfriend is
    referred to as the complainant throughout these reasons.


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. 539(1), (2), (3) or (4) of the
Criminal Code
shall continue.
    These sections of the
Criminal Code
provide:

539(1)          Prior to
    the commencement of the taking of evidence at a preliminary inquiry, the
    justice holding the inquiry

(a) may, if application
    therefor is made by the prosecutor, and

(b) shall, if
    application therefor is made by any of the accused, make an order directing
    that the evidence taken at the inquiry shall not be published in any document
    or broadcast or transmitted in any way before such time as, in respect of each
    of the accused,

(c) he or she is
    discharged; or

(d) if he or she is
    ordered to stand trial, the trial is ended.

(2)     Where an accused
    is not represented by counsel at a preliminary inquiry, the justice holding the
    inquiry shall, prior to the commencement of the taking of evidence at the
    inquiry, inform the accused of his right to make application under subsection
    (1).

(3)     Everyone who
    fails to comply with an order made pursuant to subsection (1) is guilty of an
    offence punishable on summary conviction

(4)      [Repealed,
    2005, c. 32, s. 18(2).]

R.S., 1985, c. C-46, s.
    539; R.S., 1985, c. 27 (1st Supp.), s.97; 2005, c. 32, s. 18.

WARNING

An order restricting publication in this proceeding
    was made under s. 517 of the
Criminal Code
and continues to be in
    effect.  This section of the
Criminal Code
provides:

517(1)         If the
    prosecutor or the accused intends to show cause under section 515, he or she
    shall so state to the justice and the justice may, and shall on application by
    the accused, before or at any time during the course of the proceedings under
    that section, make an order directing that the evidence taken, the information
    given or the representations made and the reasons, if any, given or to be given
    by the justice shall not be published in any document, or broadcast or
    transmitted in any way before such time as

(a)     if a preliminary
    inquiry is held, the accused in respect of whom the proceedings are held is
    discharged; or

(b)     if the accused
    in respect of whom the proceedings are held is tried or ordered to stand trial,
    the trial is ended.

(2)     Everyone who
    fails without lawful excuse, the proof of which lies on him, to comply with an
    order made under subsection (1) is guilty of an offence punishable on summary
    conviction.

(3)     [Repealed, 2005,
    c. 32, s. 17]

R.S., 1985, c. C-46, s.
    517; R.S., 1985, c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dubros, 2021 ONCA 85

DATE: 20210210

DOCKET: C68542

Feldman, Tulloch and Nordheimer
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mitchell Dubros

Appellant

Paul Robson, for the appellant

Benita Wassenaar, for the respondent

Heard: February 3, 2021

On appeal from
    the order of Justice Suhail A.Q. Akhtar of the Superior Court of Justice, dated
    July 27, 2020, with reasons reported at 2020 ONSC 4518 dismissing an
    application for certiorari to quash the order of Justice William Wolski of the
    Ontario Court of Justice, dated February 5, 2020, committing the appellant for
    trial.

REASONS FOR DECISION

[1]

Mitchell Dubros appeals from the order of the
    application judge who dismissed his application for certiorari in which he had sought
    to set aside his committal for trial on a charge of obstructing justice.

[2]

We do not see any error in the application
    judges decision in this case. The application judge applied the proper test
    for the review of a committal for trial. A preliminary inquiry judge's
    determination of the sufficiency of evidence is entitled to the greatest
    deference.

[3]

In this case, the evidence clearly met the
    threshold evidentiary test for committal which is whether there is any
    evidence on which a jury, properly instructed, could return a guilty verdict:
United
    States of America v. Shepard
[1977] 2 S.C.R. 1067 at p. 1080;
R. v.
    Wilson
, 2016 ONCA 235, at para. 21.  In particular, the application judge
    agreed with the preliminary inquiry judge that there was evidence that the
    appellant had made threats to individuals in an effort to dissuade them from
    testifying at a trial. This would constitute obstruction of justice as defined
    in s. 139(3) of the
Criminal

Code
, namely, that a
    person is deemed to have wilfully attempted to obstruct justice if they attempt
    to dissuade a person by threats from giving evidence.

[4]

We do not accept the appellants submissions
    that there was no evidence respecting the required mental element of the offence.
    The contents of the conversations that the appellant had with these individuals
    would be sufficient to establish that the appellants efforts were willfully
    undertaken.

[5]

The appeal is dismissed.

K.
    Feldman J.A.
M. Tulloch J.A.

I.V.B. Nordheimer J.A.