



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.


