



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brown, 2018 ONCA 481

DATE: 20180524

DOCKET: C60764

Epstein, Paciocco and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Meshach Brown

Appellant

Richard Litkowski and Jessica Zita, for the appellant

Shawn Porter, for the respondent

Heard: November 27, 2017

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

Epstein J.A.:

[1]

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

[2]

The appellant appeals both conviction and
    sentence.

BACKGROUND

The Arrest, Search and Related Charges

[3]

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

[4]

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

[5]

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

[6]

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

[7]

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

The Pre-trial Motions and Evidence at Trial

[8]

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

[9]

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

[10]

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

[11]

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

[12]

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

[13]

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

[14]

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

[15]

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

[16]

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

[17]

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

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

The Verdict

[18]

The jury convicted the appellant of the following charges:

·

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

·

possession of an over capacity magazine (count
    3);

·

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

·

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

·

possession of proceeds of crime (count 8);

[19]

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

[20]

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

ISSUES


A.

THE CONVICTION APPEAL

[21]

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

[22]

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

[23]

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

[24]

This leaves the following issues for
    consideration:

1)

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

2)

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

3)

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

to sustain the
    conviction?

[25]

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

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

ANALYSIS

(1)

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

[26]

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

(a)

The admissibility of the Photographs

[27]

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


[28]

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

[29]

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

[30]

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

[31]

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

[32]

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

[33]

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

[34]

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

[35]

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

[36]

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

(b)

The jury instructions relating to the
    Photographs

[37]

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

[38]

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

[39]

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

[40]

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

[41]

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

[42]

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

[43]

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

[44]

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

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

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

[45]

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

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

[46]

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

[47]


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

[48]

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

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

at
    para. 62

[49]

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

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

[50]

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

(2)

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

[51]

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

(a)

Wilful
    blindness as a route to conviction

[52]

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

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

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

[53]

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

[54]

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

[55]

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

[56]

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

para. 103.

[57]

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

[58]

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

[59]

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

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

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

[60]

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

[61]

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

[62]

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

(b)

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

instruction
    with respect to Mr. Dalambas testimony?

[63]

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

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

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

[64]

The Crown submits that a
W.(D.)

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

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


[65]

I note that the trial judge did

include the following
    statement in the charge:

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

[66]

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

[67]

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

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

[68]

The requirement of a
W.(D.)

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

[69]

The reason why a
W.(D.)

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

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

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

[70]

In
    any event, a
W.(D.)

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

[71]

I
    would therefore give effect to this ground of appeal.

(3)

Conclusion on the grounds of appeal

[72]

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

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

THE APPLICATION OF THE CURATIVE PROVISO

[73]

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

(1)

The principles to be applied

[74]

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

[75]

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

When
    a case involves multiple

errors at first instance, the cumulative

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


[76]

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

[77]

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

(2)

The application of the proviso to the trial judges errors

[78]

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

errors.

[79]

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

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

[80]

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

[81]

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

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

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

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

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

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

[82]

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

[83]

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

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

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

[84]

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

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

[85]

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

[86]

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

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

[87]

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


B.

the sentence appeal

[88]

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

[89]

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

DISPOSITION

[90]

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

Released: DMP MAY 24 2018

Gloria Epstein J.A.

I agree. David M. Paciocco J.A.

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





[1]

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



[2]

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


