



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McFarlane, 2020 ONCA 548

DATE: 20200902

DOCKET: C63447, C63575 & C63583

Strathy C.J.O., Simmons and
    Miller JJ.A.

DOCKET: C63447

BETWEEN

Her Majesty the Queen

Respondent

and

Dwayne McFarlane

Appellant

DOCKET: C63575

AND BETWEEN

Her Majesty the Queen

Respondent

and

Robert Roy Gardener

Appellant

DOCKET: C63583

AND BETWEEN

Her Majesty the Queen

Respondent

and

Priscilla Bekoe

Appellant

Breana Vandebeek, for the appellant,
    Dwayne McFarlane

Tina Yuen, for the appellant, Robert
    Roy Gardener

Owen Goddard and Emily Quail, for the
    appellant, Priscilla Bekoe

Thomas Lemon and Ira Glasner, for the
    respondent

Heard: March 2, 2020

On appeal from the convictions entered
    on October 18, 2016 by Justice Jamie K. Trimble of the Superior Court of
    Justice, sitting with a jury.

B.W.
    Miller J.A.:

[1]

On June 20, 2011, Ms. Tania Whilby landed at
    Toronto Pearson International Airport with 1.4 kilograms of cocaine hidden in
    her suitcase. A jury found Ms. Whilby guilty of importing cocaine, contrary to s.
    6(1) of the
Controlled Drugs and Substances Act
, S.C. 1996, c. 19, on
    October 18, 2012. She was sentenced on January 21, 2013 to two years less a
    day imprisonment, to be served conditionally.

[2]

Prosecuted separately, the three appellants were
    found guilty by a jury of importing cocaine and conspiracy to import cocaine
    into Canada. The Crown alleged that Mr. Robert Gardener coordinated Ms.
    Whilbys travel to and from Jamaica, where she received the cocaine, and that
    Mr. Dwayne McFarlane and Ms. Priscilla Bekoe provided Ms. Whilby with her plane
    ticket and drove her to the airport in Toronto at the beginning of her trip.

[3]

Ms. Whilby was the main witness in the
    prosecution of the appellants. In the days before her sentencing, she
    identified Ms. Bekoe and Mr. McFarlane from photo line-ups as the people who
    drove her to the airport, following failed identifications several months
    prior, before her trial had started. The Crowns case against Mr. Gardener was
    based largely on text messages between him and Ms. Whilby over BlackBerry
    Messenger (BBM), in which he agreed to refer her to another person who would
    give her a plane ticket to Jamaica.

[4]

On appeal, the appellants each argue that their
    verdicts are unreasonable, and they challenge various aspects of the trial
    judges charge to the jury, including that he gave an insufficient caution with
    respect to the evidence of Ms. Whilby, pursuant to
Vetrovec v. The Queen
,
    [1982] 1 S.C.R. 811, and that his instructions with respect to Ms. Whilbys
    eyewitness identifications failed to focus the jurys attention on the
    frailties of that evidence.

[5]

For the reasons that follow, I would allow the
    appeals. I would order that all appellants receive new trials on the basis of
    errors in the jury charge.

A.

The Alleged Drug Importation Scheme

[6]

At trial, the Crowns theory was that Mr.
    Gardener assisted Ms. Whilby in obtaining plane tickets to and from Jamaica by
    referring her to an intermediary. That intermediary, who contacted Ms. Whilby
    through a BBM profile called Diggzz T dot, was alleged to be Mr. McFarlane.
    On the day of Ms. Whilbys flight to Jamaica, a man and a woman, alleged to be
    Mr. McFarlane and Ms. Bekoe, drove her to the airport in a black Cadillac. Ms.
    Bekoe also allegedly called Ms. Whilby while she was in Jamaica and told her to
    bring back alcohol and various food items for her. On Ms. Whilbys evidence, she
    was given a suitcase in Jamaica to carry these items. On her return to Canada,
    the suitcase was found to contain the cocaine.

(1)

Ms. Whilby Receives a Plane Ticket to Jamaica

[7]

Ms. Whilby testified that she was friends with
    benefits with Mr. Gardener, whom she knew by the alias Bliitsz. The two had met
    in person three times and communicated extensively on social media and BBM.

[8]

Ms. Whilby testified that she asked Mr. Gardener
    if he had a contact who could get her a plane ticket to Jamaica, where her
    boyfriend resided. She testified that Mr. Gardener said he could.

[9]

Sections of Ms. Whilbys BBM conversations with Bliitsz
    were introduced at trial. There was no serious dispute that Mr. Gardener was
    Bliitsz. Starting on Thursday, May 26, 2011, Ms. Whilby and Bliitsz spoke daily
    to discuss the status of the plane ticket. They discussed whether her flight
    would go to Kingston or Montego Bay, and at no point did Ms. Whilby or Mr.
    Gardener refer to the cost of the plane ticket or who would pay for it.

[10]

On Tuesday, May 31, 2011, Ms. Whilby again asked
    Bliitsz for the status of the ticket. He responded that the ticket would come
    over the course of the week. The week came and went. Their final communication was
    on Monday, June 6, 2011, when Ms. Whilby pointed out that the week had ended,
    and Bliitsz responded with an emoji. The record contains no further
    communications between Ms. Whilby and Bliitsz related to the plane ticket.

[11]

One week later, on Monday, June 13, 2011, Ms. Whilby
    confirmed her travel details with a BBM contact named Diggzz T dot, as part
    of a conversation that was also introduced into evidence. Diggzz sent Ms.
    Whilby a picture of her travel itinerary, indicating roundtrip flights to
    Montego Bay. Her flight would depart the next day. He asked her if she had a
    criminal record, and when she said no, he responded, K alright. Everything is
    good then, Ill text to later on tonight. He told Ms. Whilby he would pick her
    up the next morning at 6:15 a.m. in a black Cadillac.

[12]

The Crown alleged that Diggzz was Mr. McFarlane.
    Ms. Whilby testified that she came into contact with Diggzz through Mr.
    Gardener, but did not recall who initiated contact with whom on BBM. Ms. Whilby
    testified that Diggzz was Mr. McFarlane, but on cross-examination, she agreed
    that Diggzz could have been a woman.

(2)

A Man and a Woman Drive Ms. Whilby to the
    Airport

[13]

On the morning of June 14, 2011, Ms. Whilby
    provided directions for Diggzz to pick her up. He told Ms. Whilby that her
    luggage can only way up to 100lbs all together, and she responded that she
    only had two handbags.

[14]

Ms. Whilby testified that a man and a woman came
    to pick her up in a black Cadillac. She had never met the man who drove the car
    or the woman who was sitting in the passenger seat, and she did not recall hearing
    their names. Ms. Whilby testified that from her vantage point in the back seat,
    behind the passenger seat, she could only see the back and right side of the
    drivers face. She testified that she never looked into his eyes, and he never
    exited the vehicle. The woman accompanied Ms. Whilby to check in at the airport
    while the man remained in the car.

[15]

The Crown alleged that the driver was Mr.
    McFarlane and that the woman was Ms. Bekoe, based largely on eyewitness
    identification evidence from Ms. Whilby.

[16]

Initially, Ms. Whilby testified that she did not
    recall having conversations with the people in the car. Moments later, she
    testified that the woman told her a man named Ed would pick her up in Jamaica. She
    also testified that the driver provided her with her ticket, but then said it
    was the woman, after reviewing her preliminary inquiry testimony.

(3)

Ms. Whilbys Time in Jamaica and Return to
    Toronto

[17]

Ms. Whilby testified that while she was in
    Jamaica, she spoke with a woman over the phone and this woman requested that
    she bring a few beverages and snacks back to Toronto. The woman also told Ms.
    Whilby that she was flying to Jamaica on Tuesday. Ms. Whilby understood this
    woman to be the same woman who accompanied her to the airport in Toronto, based
    on the nature of the conversation and because she recognized her voice. In
    cross-examination, Ms. Whilby agreed that she believed it was the woman from
    the ride to the airport not because she recognized her voice, but because of
    the content of the conversation, as the woman asked about the flight and about
    Ed.

[18]

Ms. Whilby testified that Ed, who drove her around
    Jamaica, gave her the suitcase that was eventually apprehended by customs
    officials in Toronto. Ms. Whilby packed the womans beverages and snacks into
    the suitcase.

[19]

When Ms. Whilby returned to Toronto, Diggzz sent
    her a message to coordinate pick-up at the airport. Ms. Whilby was apprehended
    shortly after her landing, when police found the cocaine hidden in a false
    bottom of her suitcase. After Ms. Whilbys arrest, the RCMP seized her phone
    and used it to communicate with Diggzz, while posing as Ms. Whilby. The police
    never found Diggzz.

B.

The Police Investigation of the Appellants

[20]

On April 11, 2012, the police obtained a
    production order in relation to the BBM profile associated with Diggzz. The
    records revealed that a credit card registered in Ms. Bekoes name was used for
    a purchase through the BlackBerry account on July 23, 2011, one month after Ms.
    Whilbys trip to Jamaica.

[21]

On April 23, 2012, the police showed Ms. Whilby
    a photo line-up containing a picture of Mr. McFarlane. She did not identify him.
    On July 10, 2012, while Ms. Whilby was awaiting trial, the police showed Ms.
    Whilby three identical photographic line-ups containing a picture of Ms. Bekoe.
    Each time, Ms. Whilby failed to identify Ms. Bekoe.

[22]

The circumstances of these line-ups are not clear
    on the evidence. Ms. Whilby testified that police officers showed her photos
    sequentially in the back of a police car in Montreal. Ms. Whilby could not
    remember when the line-ups happened or which police officers conducted them,
    and her evidence is unclear on how many line-ups occurred. The Crown adduced no
    additional evidence on these points.

[23]

On January 16, 2013, days before Ms. Whilby was
    scheduled to be sentenced on January 21, 2013, the police conducted three more line-ups
    with Ms. Whilby in which she identified the three appellants. Ms. Whilby
    confirmed that on the back of Ms. Bekoes photo, she wrote, Without the wig
    her face shape her eyes, her look I remember it. On the back of Mr.
    McFarlanes photo, she wrote, eyes  hair was little longer then  shape of
    face conplexion of skin  Asian look. Finally, on the back of Mr. Gardeners
    photo, she wrote Facial  hair  I reconazize him quick eyes .

[24]

There is no police evidence in the record as to how
    the January 2013 line-up was conducted. What is known is that on January 20,
    2013, the day before Ms. Whilbys sentencing, the lead investigator interviewed
    Ms. Whilby. He told her that the Crown and the judge would know, during the
    sentencing proceedings, that she helped the police.

C.

Issues on Appeal

[25]

On appeal, the appellants each argue that their
    guilty verdicts were unreasonable because the evidence was too weak to sustain
    their convictions. Mr. Gardener also alleges that the trial judge erred in
    denying his application for a directed verdict of acquittal on both counts.

[26]

Relying on one anothers submissions, the
    appellants also challenge various aspects of the jury charge. They argue that
    the trial judge gave deficient instructions on the probative value of Ms.
    Whilbys evidence, as he failed to explain the basis for the
Vetrovec
caution
    and provided improper examples of independent confirmatory evidence. Moreover,
    the appellants also argue that the trial judge failed to convey the specific
    frailties of Ms. Whilbys identification evidence, reverting instead to
    boilerplate instructions. Finally, the appellants argue that the trial judge misapplied
    the Supreme Courts directions in
R. v. Carter
, [1982] 1 S.C.R. 938, when
    explaining which evidence the jury could consider at each stage of the
    conspiracy analysis.

[27]

I begin with the appellants unreasonable
    verdict arguments, as a court sitting in review of a criminal verdict must
    assume the correctness of the underlying jury charge:
R. v. Biniaris
,
    2000 SCC 15, [2000] 1 S.C.R. 381, at para. 38.

D.

The Unreasonable Verdict Appeals

[28]

When assessing the reasonableness of a criminal
    verdict under s. 686(1)(a)(i) of the
Criminal Code
, the appellate
    court must consider the totality of the evidence to determine whether a properly
    instructed jury, acting judicially, could have returned the verdict:
Biniaris
,
    at para. 40. In this context, acting judicially means not only acting
    dispassionately but also arriving at a conclusion that does not conflict with
    the bulk of judicial experience:
Biniaris
, at para. 40. While the
    court must give due deference to the jurys advantages in the fact-finding
    process, the court must still assess the evidence, not merely identify its
    existence:
R. v. Phillips
, 2018 ONCA 651, 364 C.C.C. (3d) 220, at para.
    67;
R. v. W.H.
, 2013 SCC 22, [2013] 2 S.C.R. 180, at paras. 27-28. In
    a case such as this one, which relies heavily and perhaps entirely on
    circumstantial evidence, the question is whether the trier of fact, acting
    judicially, could reasonably be satisfied that the accuseds guilt was the only
    reasonable conclusion available on the totality of the evidence:
R. v.
    Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55.

[29]

Each appellant was convicted of conspiracy,
    contrary to s. 465(1)(c) of the
Criminal Code
, and of aiding Ms.
    Whilby in importing cocaine into Canada, contrary to s. 6(1) of the
CDSA
.
    On the conspiracy count, the Crown had to prove beyond a reasonable doubt each
    alleged conspirators intention to agree, the completion of an agreement, and a
    common unlawful design:
R. v. Root
, 2008 ONCA 869, 241 C.C.C. (3d)
    125, at para. 66, leave to appeal refused, [2009] S.C.C.A. No. 282;
Papalia
    v. R.
, [1979] 2 S.C.R. 256, at pp. 276-77;
The Queen v. OBrien
,
    [1954] S.C.R. 666. The appellants were convicted of the importing count as
    aiders, pursuant to s. 21(1)(b) of the
Criminal Code
. The Crown had to
    prove that the appellants each provided actual assistance to the principal by
    doing something that assisted the principal to commit the offence, that they
    intended to help the principal commit the offence, and that they knew the
    principal intended to commit the offence:
R. v. Huard
, 2013 ONCA 650,
    302 C.C.C. (3d) 469, at paras. 62-63, leave to appeal refused, [2014] 1 S.C.R.
    ix (note);
R. v. Briscoe
, 2010 SCC 13, [2010] 1 S.C.R. 411, at paras.
    14-17.

[30]

For the reasons that follow, I have concluded
    that the guilty verdicts of Mr. Gardener, Mr. McFarlane, and Ms. Bekoe are not unreasonable.

(1)

The Gardener Appeal

[31]

Mr. Gardener argues that his verdicts are
    unreasonable as the totality of the evidence was insufficient to establish that
    he was a member of the conspiracy, or that he did anything to assist Ms. Whilby
    in importing the drugs into Canada with the requisite intent and knowledge of
    her criminal intent.

[32]

Mr. Gardener did not testify. The Crowns case relied
    on circumstantial evidence from two sources: Ms. Whilbys trial testimony and
    BBM messages between Ms. Whilby and Mr. Gardener. A further BBM message from
    Diggzz was also potentially relevant.

[33]

Ms. Whilby testified that she knew Mr. Gardener
    before they communicated about the plane ticket via BBM. In the BBM
    conversations, Mr. Gardener and Ms. Whilby do not discuss what was to transpire
    in Jamaica, though they did address whether the ticket would take her to
    Kingston or Montego Bay. Ms. Whilby testified that she requested the ticket in
    order to visit her boyfriend. She responded no when asked whether she was
    curious at all that  about the fact that you didnt have to pay for [the
    ticket]. She testified that she had no intention to import cocaine when she
    left for Jamaica, and that she never discussed importing cocaine with Mr.
    Gardener.

[34]

Ms. Whilby was evidently frustrated when the
    ticket did not materialize in the time frame promised by Mr. Gardener. Over 12
    days, the BBM conversations between the two centred on Ms. Whilby asking Mr.
    Gardener whether his contact had fallen through, and Mr. Gardeners reassurances
    that despite the apparent delay, it had not. By the time of their final BBM
    exchange, on June 6, 2011, Ms. Whilby was still pressing Mr. Gardener for
    confirmation that his contact would come through.

[35]

One week later, on June 13, Ms. Whilby sent a BBM
    message to Diggzz  without any apparent introduction  asking him to provide
    her with a picture of her plane ticket to Jamaica. He responded with Ye hol
    up; Cuz Im driving and then later forwarded an image of the travel itinerary
    issued in her name for a flight leaving the next day for Montego Bay.

[36]

There is no BBM evidence of how Ms. Whilby and
    Diggzz were introduced, or who added whom on BBM. Neither are there any BBM messages
    in evidence between Diggzz and Mr. Gardener. Ms. Whilby testified that it was Mr.
    Gardener who put her in contact with Diggzz.

[37]

During the BBM conversations, Mr. Gardener
    referred to his contact who would provide the ticket as a he. Ms. Whilby
    testified that one of the two people who drove her to the airport on the day of
    her flight was a man.

[38]

When police officers seized Ms. Whilbys cell
    phone following her arrest, they communicated with Diggzz via BBM. In those
    communications, Diggzz asked: U tlk tu ur friend? and U spoke to b?. On
    appeal, the Crown suggests that b may have been a reference to Mr. Gardeners
    alias Bliitsz.

[39]

To establish Mr. Gardeners participation in the
    conspiracy and the importing offences, the Crown relied on Ms. Whilbys
    testimony that it was Mr. Gardener who put her in touch with Diggzz. It also
    relied on inferences drawn from Mr. Gardeners BBM messages with Ms. Whilby,
    and from Ms. Whilbys BBM messages with Diggzz. A week after Ms. Whilby had
    been messaging with Mr. Gardener to get her a free ticket to Jamaica through an
    unnamed source, she messaged Diggzz to provide her with an image of her
    itinerary, and he did so immediately. There was no evidence that Ms. Whilby had
    been pursuing a ticket through anyone other than Mr. Gardener.

[40]

It is obvious there must have been some prologue
    to these messages between Ms. Whilby and Diggzz. How did Ms. Whilby become
    known to Diggzz? Who asked Diggzz to procure a plane ticket for her and why?
    How did she know that a ticket for a flight leaving the next day had been
    issued in her name and that she should ask Diggzz for it? Who paid for the
    ticket? Why did Ms. Whilby  who had no means of paying for the ticket  not
    expect to pay? Why did she ask Mr. Gardener if he could arrange for a $20
    Rogers phone card for her?

[41]

A reasonable jury, properly instructed, was
    entitled to consider the entire context in which the communications between Ms.
    Whilby and Mr. Gardener and Diggzz occurred, and draw the inference that Diggzz
    was the contact that Mr. Gardener had promised, that Mr. Gardener introduced
    them, that Ms. Whilby had to have known that she was given a free ticket for a
    criminal purpose, and that Mr. Gardener, having arranged for the ticket, must also
    have known.

[42]

In short, there was sufficient evidence on which
    a reasonable jury, properly instructed could find Mr. Gardener guilty of the
    offences. This conclusion also disposes of the argument that the trial judge
    erred in not allowing the motion for a directed verdict.

(2)

The McFarlane Appeal

[43]

Mr. McFarlane argues that his guilty verdicts
    were unreasonable because the only evidence connecting him to the drug
    importation was Ms. Whilbys testimony alleging that he was Diggzz and that he drove
    her to the airport on the day she flew to Jamaica. Given concerns over the
    reliability and credibility of Ms. Whilbys testimony and in particular her
    eyewitness identification evidence, Mr. McFarlane contends that the probative
    value of that evidence was too weak to sustain his convictions.

[44]

Prior to her trial, Ms. Whilby failed to
    identify Mr. McFarlane in a photo line-up. Days before her sentencing, Ms.
    Whilby identified Mr. McFarlane from a photo line-up as the driver of the black
    Cadillac that took her to the airport. On the back of his photo, she wrote her
    basis for having identified him: eyes  hair was little longer then  shape of
    face complexion of skin  Asian look. The circumstances in which police
    conducted both line-ups are unknown, though Ms. Whilbys evidence was that the
    first line-up took place in the back of a police car, where she reviewed each
    photo sequentially. There is no evidence of Ms. Whilby providing any prior
    description of Mr. McFarlane to the police. At the appellants trial, Ms.
    Whilby repeatedly identified Mr. McFarlane in the courtroom as both Diggzz and the
    driver.

[45]

In cross-examination, Ms. Whilby testified that
    she and the driver of the black Cadillac never spoke. Moreover, she testified
    that she could only see the back and right side of the drivers head, as she
    was sitting behind the passenger seat. She never saw his face from head-on or looked
    into his eyes, and she could not estimate his height as he had never left the
    vehicle.

[46]

With respect to the Diggzz BBM account, Ms.
    Whilby testified that Mr. McFarlane was Diggzz. In cross-examination, however, she
    conceded that the person communicating with her from the Diggzz account could
    have been a woman.

[47]

Without Ms. Whilbys eyewitness identification,
    there would have been no case against Mr. McFarlane. There were, as counsel for
    Mr. McFarlane argued, difficulties with that evidence. Eyewitness
    identification evidence, in general, can pose a risk of wrongful conviction:
R.
    v. Tat
(1997), 117 C.C.C. (3d) 481, at para. 99;
R. v. Miaponoose
(1996), 110 C.C.C. (3d) 445, at pp. 450-51. Eyewitness identification evidence
    is particularly suspect where the person identified is a stranger to the
    witness, where the circumstances of the identification are not conducive to an
    accurate identification, where pre-trial identification processes are flawed,
    and where there is no other evidence tending to confirm the identification
    evidence:
Tat
, at para. 100.

[48]

Even setting aside the questions raised by the
    suspect timing of the successful photo line-up, immediately before sentencing,
    and having followed on from previous unsuccessful line-ups, there are
    difficulties raised by Ms. Whilbys testimony. On Ms. Whilbys testimony, the
    driver of the black Cadillac was a stranger and he did not introduce himself to
    her or speak to her. She never saw the front of his face or looked into his
    eyes  and yet she referred to these characteristics in explaining why she
    picked Mr. McFarlane out of the line-up. There is no evidence concerning the
    conduct of the pre-trial identification processes, other than that they occurred
    roughly 19 months after the drive to the airport, days before Ms. Whilbys
    sentencing and following an unsuccessful line-up roughly nine months prior. Ms.
    Whilby gave no explanation for the sudden change in her ability to identify the
    driver. Other than Ms. Whilbys testimony that Mr. McFarlane drove the black
    Cadillac and communicated with her under the Diggzz alias, there is no evidence
    linking Mr. McFarlane to the offences.

[49]

Of course, a jury is entitled to accept all,
    some, or none of a witnesss testimony. A jury was entitled to accept Ms.
    Whilbys identification of Mr. McFarlane, and reject her testimony about the
    limits of her observations of, and interactions with the driver. A jury could
    reasonably have concluded that Ms. Whilby was significantly more familiar with
    Diggzz than she let on, and if that was the case, it would bolster her ability
    to identify him. The BBM messages between Ms. Whilby and Diggzz, particularly
    an exchange after Ms. Whilby arrived at Pearson airport and was waiting to
    board her flight, suggested a greater degree of familiarity than would be
    expected if Diggzz was the driver, as Ms. Whilby testified, and that they had
    no conversation on the way to the airport, as she also testified:

Diggzz: U on da plane or too early.

Whilby: Im chillin .. Still .. My cuzzy is
    actually flyin too.

Diggzz: Da same plane?

Whilby: Yup.

Diggzz: Danm whats da odds of dat.. dats
    fuqin proper.

[50]

It would not have been unreasonable for the jury
    to have concluded, on this evidence, that Ms. Whilby had greater dealings with Diggzz/the
    driver than she admitted, and this familiarity supported her identification of
    Mr. McFarlane. On the totality of the evidence, I cannot hold that the jurys
    findings of guilt were unreasonable.

(3)

The Bekoe Appeal

[51]

Ms. Bekoes notice of appeal included a
    challenge to the reasonableness of her guilty verdicts, but her factum did not
    pursue those arguments. Counsel only devoted brief submissions to the issue
    during the hearing. In essence, Ms. Bekoe submitted that if this court found
    Mr. McFarlanes guilty verdicts to be unreasonable, it ought also to find Ms.
    Bekoes guilty verdicts unreasonable, as those verdicts are based on Ms.
    Whilbys testimony and eyewitness identification.

[52]

While I agree that the Crowns case against Ms.
    Bekoe was far from overwhelming, I am persuaded that the evidence established a
    sufficient connection between Ms. Bekoe and the drug importation scheme, such
    that a trier of fact acting judiciously could have convicted her. In
    particular, I note that a credit card in Ms. Bekoes name was associated with
    the Diggzz BlackBerry account. Although the relevant credit card transaction
    occurred a month after the drive to the airport and this credit card evidence
    is by no means a smoking gun, as counsel for Ms. Bekoe argued on appeal, it
    provides some support for Ms. Whilbys eyewitness identification of Ms. Bekoe
    and it links Ms. Bekoe to the Diggzz BBM account.

[53]

In the circumstances, Ms. Bekoes verdicts of
    guilty are not unreasonable.

E.

Errors in the Jury Charge

[54]

Having determined that the guilty verdicts at
    trial were reasonable, I address the appellants remaining submissions
    challenging the adequacy of the trial judges instructions to the jury. Of the
    many grounds of appeal that the appellants advanced collectively, two are
    particularly relevant.

[55]

First, the appellants argue that the
Vetrovec
caution with respect to Ms. Whilby was inadequate and distracted the jury
    from the main issues affecting her credibility. Second, they argue that those
    sections of the jury charge pertaining to Ms. Whilbys eyewitness
    identification evidence were also inadequate, in failing to focus the jurys
    attention on the specific frailties of that evidence.

[56]

For the reasons that follow, I accept these
    submissions. It is unnecessary to address the appellants submissions on the
    trial judges instructions on evidentiary principles flowing from
Carter
.

(1)

The
Vetrovec
Caution

[57]

As already noted above, Ms. Whilbys testimony
    suffered from numerous frailties. Apart from her conviction for personally
    importing cocaine into Canada, she was unable to identify the appellants from
    photo line-ups over the course of the police investigation until she positively
    identified all three appellants in the days preceding her sentencing hearing. This
    identification occurred roughly 19 months after Mr. McFarlane and Ms. Bekoe
    allegedly drove her to the airport, while the prior failed line-ups occurred within
    13 months of the drive.

[58]

The appellants challenge two aspects of the
Vetrovec
caution: first, that the caution failed to explain to the jury the reason
    why Ms. Whilbys testimony ought to attract special scrutiny in their
    deliberations, and second, that the trial judge gave incorrect instructions on
    material confirmatory evidence. I will address each argument in turn.

(a)

The Basis for the Caution

[59]

The trial judge explained that Ms. Whilbys
    evidence was subject to special scrutiny because she was convicted of bringing
    a suitcase containing cocaine into Canada, but maintained her innocence during
    the appellants trial. He also provided the following instruction in relation
    to her cooperation with the authorities:

Between her conviction and her sentencing,
    including on the day before her sentencing, Ms. Whilby met with RCMP Constable
    Dionne. In cross-examination, Ms. Whilby denied the suggestion that she made a
    deal with the police or the Crown that might lighten her sentence in exchange
    for her cooperation here. She admitted that she was sentenced to two years,
    less a day, served by house arrest. There is no evidence brought in this court
    about Ms. Whilbys sentence other than her evidence. When cross-examined on
    this issue, Ms. Whilby did not admit that she received a lighter sentence in
    exchange for her cooperation.

I will caution you now about hearsay briefly
    and return to it later. Ms. Whilby was cross-examined on a typewritten version
    of an audio or video recording, it is unclear which, of her conversation with
    RCMP Constable Dionne the day before her sentencing. The audio or visual
    recording was not played to you. The portions of that interview that were put
    to her read aloud are not evidence of the truth of their contents. It was not
    put into evidence, and Officer Dionne did not testify as to the conversations
    that were put to Ms. Whilby in cross-examination. Remember, that evidence is
    that which comes from the witnesses, the exhibits, or admissions. The
    transcript of the conversation that was put to Ms. Whilby in cross-examination
    was put there for the purposes of testing her credibility. Ms. Whilby, in the
    witness box, did not agree with the statements or adopt them as correct. The
    only purpose to which you can put the cross-examinations is assessing Ms.
    Whilbys credibility. In other words, use it to determine the extent to which
    you believe or rely on or accept her evidence. You may not accept what was
    reportedly said in that interview as being true.

[60]

The appellants argue that the trial judges
    instruction on hearsay was misplaced, as it distracted the jury from the fact
    that Ms. Whilby cooperated with the police and was led to believe that doing so
    would result in a lesser sentence. Instead, the instruction improperly
    discussed hearsay, focusing the jurys attention on whether Ms. Whilby in fact
    received a lesser sentence, which, the appellants submit, was irrelevant to her
    state of mind when she identified the appellants and the reliability of those
    identifications.

[61]

I accept this submission.

[62]

As the Supreme Court explained in
R. v.
    Khela
, 2009 SCC 4, [2009] 1 S.C.R. 104, a proper
Vetrovec
caution
    will generally explain to the jury why the evidence at issue is subject to
    special scrutiny: at para. 37;
R. v. Smith
, 2009 SCC 5, [2009] 1
    S.C.R. 146, at para. 14;
R. v. Maestrello
, 2019 ONCA 952, 383 C.C.C.
    (3d) 236, at para. 52, leave to appeal refused, [2020] S.C.C.A. No. 34. In
    addition to her conviction for the underlying importing offence, Ms. Whilby
    testified about her cooperation with the authorities on the eve of her
    sentencing. She denied that she did so to receive any benefit. However, in
    cross-examination, defence counsel put transcripts from Ms. Whilbys police
    interview to her. She agreed that the lead investigator described the effect of
    her cooperation with the authorities in the following terms:

CONSTABLE DIONNE: We, um, we, we had, we were
    able to add that. Um, but I mean, like tomorrow,
tomorrow
    is a big day for you and hopefully what we did today is going to help you.
Like I said, I cannot promise, but for sure the Crown and the judge does.
Theyre going to be aware that you helped us.
Okay?
    [Emphasis added.]

[63]

She conceded in cross-examination that the
    allusion to her big day referred to her impending sentencing hearing.

[64]

The trial judge fell into legal error in
    characterizing the excerpt above as hearsay. The excerpt was not proffered for
    the truth of its contents. It was immaterial whether the trial judge and trial
    Crown actually learned of Ms. Whilbys cooperation with the authorities, or
    whether her cooperation actually resulted in a lesser sentence. The purpose of
    this section of Ms. Whilbys cross-examination was to demonstrate that on the
    eve of her sentencing, Ms. Whilby had every reason to believe that she would
    benefit from cooperating with the authorities  even if doing so meant lying or
    identifying innocent suspects.

[65]

Although it was open to the trial judge to
    instruct the jury that Constable Dionnes statement could not be used for the
    truth of its content, the hearsay instruction effectively mischaracterized the
    evidence by not recognizing that Ms. Whilby accepted that Constable Dionne had
    told her that the Crown and the Court would be aware that Ms. Whilby had helped
    the prosecution, and that this would hopefully help her in her sentencing . The
    hearsay aspect of the statement was irrelevant to the necessary
Vetrovec
caution,
    and the focus on hearsay, and the related failure to explain the significance
    of the statement being made detracted considerably from the trial judges
    obligation to explain to the jury which circumstances brought Ms. Whilbys
    credibility into serious question. The instruction could only have generated confusion
    about whether Ms. Whilbys motive to cooperate with the authorities was or was
    not a factor in weighing her credibility. The trial judges instruction
    distracted the jury from considering one of the main reasons why Ms. Whilbys
    evidence was subject to special scrutiny.

[66]

In this respect, the trial judge fell into legal
    error. Because of the centrality of Ms. Whilbys evidence to the Crowns case
    against all three appellants, this error in the
Vetrovec
caution necessitates
    that the convictions of all three appellants be quashed, and new trials ordered
    on all counts. The potential impact of the error on the identification of Ms.
    Bekoe and Mr. McFarlane is readily apparent. Even though identity was was not seriously
    at issue with respect to Mr. Gardener, the
Vetrovec
error impacted him
    as well. Ms. Whilbys testimony that Mr. Gardener introduced her to Diggzz was
    central to the case against Mr. Gardener. As noted above, deciding whether to believe
    Ms. Whilby was no less important with respect to the the question of whether
    Mr. Gardener introduced Ms. Whilby to Diggzz, than it was with respect to her identification
    of Mr. McFarlane and Ms. Bekoe.

[67]

Although, in my view, this is sufficient to
    dispose of the appeals, I will nevertheless address some of the other alleged
    errors as they may bear on a retrial.

(b)

The Confirmatory Evidence

[68]

The trial judge explained to the jury the
    importance of searching in the record for evidence that was independent from
    Ms. Whilbys testimony and confirmatory of that testimony. He stated that her own
    BBM messages to other people did not qualify as independent. He then catalogued
    the evidence that was potentially independent and confirmatory, such as photos
    of her suitcase and the credit card records. He noted that she and Diggzz must
    have exchanged BBM PIN numbers in order to communicate, regardless of who gave
    whose to whom. He also referred to the following BBM messages:

·

Her BBM messages with Mr. Gardener, including
    her request for a ticket and the lack of any discussion about payment;

·

Her BBM messages with Diggzz, which confirm her
    discussions with Blitz about wanting to obtain the ticket to Jamaica and that
    she neither asked for payment, nor was asked for it;

·

Diggzz sent her a picture of her plane ticket
    and asked whether she had a criminal record;

·

Diggzz confirmed that he would pick her up in a
    black Cadillac and they exchanged messages on the morning of their drive to the
    airport;

·

Diggzz communicated further with Ms. Whilby when
    she was in the departure lounge and later, on the day of her return flight.

[69]

The appellants argue that the trial judge erred
    in referring to the BBM conversations, as they were not independent of Ms.
    Whilbys testimony, and they were also not material. I am not persuaded that these
    aspects of the
Vetrovec
caution were improper.

[70]

First, with respect to the independence of the
    evidence from Ms. Whilby, the appellants are correct that Ms. Whilbys own
    messages as part of these conversations were not independent of her and thus
    could not have constituted confirmatory evidence:
Khela
, at para. 39.
    However, the trial judge gave specific instructions to this effect:

The statements made by Ms. Whilby in [the BBM
    conversations] cannot be confirmatory of her evidence in the witness box. They
    are her statements, notwithstanding that they are record[ed] on her Blackberry.
    They are not independent.

The statements by others may be taken as
    confirmatory if they support her evidence in the witness box if you find that
    they are untainted and independent. That is for you to decide.

[71]

When read in context, the trial judges focused
    instructions in respect of the BBM messages equipped the jury with the tools
    necessary to determine whether those messages were independent. The appellants
    argue that even the messages of others were tainted by Ms. Whilby, as only she
    could authenticate their contents. From my review of the trial transcripts,
    there was no suggestion that Ms. Whilby had fabricated any of the contents of
    the messages on her BBM. The messages she received from Mr. Gardener and Diggzz
    satisfied the criterion of independence.

[72]

Second, with respect to the materiality
    criterion, the appellants argue that the evidence identified by the trial judge
    was not material as it did not go to identification, which was the main issue
    in the prosecution of Mr. McFarlane and Ms. Bekoe.

[73]

To be material, confirmatory evidence must be
    capable of restoring the triers faith in
relevant
aspects of the
    witness account (emphasis in original):
Khela
, at para. 43;
R.
    v. Kehler
, 2004 SCC 11, [2004] 1 S.C.R. 328, at para. 15. In
Kehler
,
    at para. 15, the Supreme Court explained that confirmatory evidence need not
    address only those parts of the witnesss testimony that are disputed in order
    to be material:

The appellant wrongly equates relevant with
    disputed. Mr. Greenwoods detailed account of the robbery, though undisputed,
    was no less relevant to the offences charged than his implication of the
    appellant in their commission. And while confirmatory evidence should be
    capable of restoring the triers faith in relevant aspects of the witnesss
    account, it hardly follows that the confirmatory evidence must, as a matter of
    law, implicate the accused where the only disputed issue at trial is whether
    the accused was a participant in the crimes alleged.

[74]

The trial judge conveyed to the jury that the
    confirmatory evidence must tend to show that [Tania] Whilby is telling the
    truth that any, some, or all of the three accused committed the offences with
    which they are charged. The evidence must also give you comfort that [Tania]
    Whilby can be trusted when she says that any, some, or all of these three
    people committed the offences with which they are charged. This court has
    determined that similar formulations adequately conveyed to the jury the scope
    of the materiality criterion for confirmatory evidence: see
R. v. Saleh
,
    2013 ONCA 742, 303 C.C.C. (3d) 431, at para. 99;
R. v. Saleh
, 2019
    ONCA 819, 380 C.C.C. (3d) 445, at para. 172.

[75]

Accordingly, I see no error in the trial judges
    instructions on material confirmatory evidence.

(2)

The Eyewitness Identification Evidence

[76]

The crux of the Crowns case against Ms. Bekoe
    and Mr. McFarlane was Ms. Whilbys eyewitness identification of these two
    appellants from her drive to the airport.

[77]

Ms. Bekoe and Mr. McFarlane argue that the trial
    judges caution on Ms. Whilbys eyewitness identification evidence was
    deficient in that it relied on boilerplate from specimen jury instructions,
    raising a number of irrelevant factors and failing to give due prominence to
    others that directly affected the reliability of Ms. Whilbys evidence. In
    particular, Ms. Bekoe and Mr. McFarlane argue that the trial judge should have
    drawn the jurys attention to the fact that Ms. Whilby failed to identify Ms.
    Bekoe and Mr. McFarlane from a line-up three times in one day 13 months after
    the drive to the airport, to the lack of evidence on whether Ms. Whilby had
    provided any descriptions of the appellants to the police before her ultimate
    identification days before her sentencing, and to the generality of her
    explanations for having identified the appellants.

[78]

I agree. Much like the trial judges
Vetrovec
caution, his discussion of eyewitness identification effectively deprived the
    jury of a proper understanding of the dangers of Ms. Whilbys evidence.

[79]

The jurisprudence has long recognized the
    potential risks of eyewitness identification evidence, requiring special
    scrutiny from triers of fact:
R. v. Goran
, 2008 ONCA 195, 234 O.A.C.
    283, at para. 19;
R. v. Hanemaayer
, 2008 ONCA 580, 234 C.C.C. (3d) 3,
    at para. 29. In most cases, the danger is an honest but inaccurate
    identification by a credible and confident witness:
R. v. Jack
, 2013
    ONCA 80, 294 C.C.C. (3d) 163, at para. 14;
R. v. Hibbert
, 2002 SCC 39,
    [2002] 2 S.C.R. 445, at para. 52. Trial judges enjoy significant discretion in
    crafting an appropriate caution, but where the evidence contains significant
    frailties, the trial judge must identify these specific frailties rather than
    rely upon boilerplate instructions:
R. v. Baltovich
(2004), 73 O.R.
    (3d) 481 (C.A.), at para. 78.

[80]

This was not the typical eyewitness
    identification case. The danger was not only  or not primarily  that Ms.
    Whilby would honestly identify the wrong suspects, but that Ms. Whilby could
    not be trusted to identify anybody. This was very much a case that required a
    bespoke instruction on the specific frailties of Ms. Whilbys eyewitness
    evidence. Instead, the jury received a lengthy caution that largely recited
    specimen jury instructions which raised factors that had no basis in the
    evidence, such as whether Ms. Whilby had compromised vision, or whether
    anything impaired her ability to observe the appellants, or whether she had
    seen other photos of the appellants in other contexts.

[81]

The jurisprudence cautions trial judges to
    remain alive to badges of unreliability in a witnesss identification of an
    accused:
Jack
, at para. 29. In this case, one important badge was the
    lack of any evidence concerning Ms. Whilbys prior descriptions of the
    appellants, followed by her subsequent generic explanations for why she chose
    their photos from the line-ups. The trial judge failed to draw sufficient
    attention to these frailties in the evidence.

[82]

On the subject of the lack of a prior description,
    the trial judge told the jury the following: In this case, it is unclear
    whether Ms. Whilby gave a description to the police of the three accused. You
    may consider whether she must have given descriptions in order that the RCMP
    could assemble the photo arrays.

[83]

I agree that this framing of the issue was
    improper. It tipped the scales in favour of the reliability of Ms. Whilbys
    ultimate identification, as it permitted the jury to infer an indicator of
    reliability from an absence of any evidence. Further, as this instruction was
    given immediately after standard instructions concerning the evaluation of the
    impact of a prior description, it effectively undervalued the important role a
    prior description plays in permitting a trier of fact to assess the reliability
    of a subsequent identification through comparison of the original description
    to the person identified.

[84]

The impact of this error was heightened with
    respect to Ms. Bekoe, as the RCMP may well have identified Ms. Bekoe as a
    suspect on the basis of the credit card associated with the Diggzz BlackBerry,
    not from any identification by Ms. Whilby. Indeed, the first photo line-up
    featuring a photo of Ms. Bekoe took place roughly two months after the
    BlackBerry production order yielded the credit card evidence.

[85]

The trial judges treatment of the lack of any
    prior description of Ms. Bekoe and Mr. McFarlane as a non-issue persisted when
    the jury asked a question about how the police got Mr. McFarlanes name and
    picture. The trial judge told the jury that [t]here is no evidence before you
    as to how the police got any of the accuseds names and pictures and he
    reminded the jury that the record in any criminal prosecution rarely answers
    every question one might have about the facts. With respect, this instruction
    was also deficient, as it seemed to validate what was in reality a troubling
    aspect of the circumstances surrounding Ms. Whilbys identification of the
    appellants.

[86]

Importantly, even when Ms. Whilby ultimately
    identified Ms. Bekoe and Mr. McFarlane, her stated bases for doing so were generic.
    At trial, she agreed that her identification of Ms. Bekoe was based on a general
    impression.

[87]

The trial judge instructed the jury to consider
    the traits Ms. Whilby wrote on the back of the photo of the appellants. A
    proper instruction would have pointed out that the descriptions were generic:
Jack
,
    at para. 16. Although the appellants have not alleged that Ms. Whilby failed to
    mention some distinctive characteristics of their appearances, as was the case
    in
R. v. Yigzaw
, 2013 ONCA 547, 301 C.C.C. (3d) 266, at para. 63, I am
    satisfied that the trial judge erred in failing to acknowledge that Ms. Whilbys
    descriptions of the appellants gave little reason to believe her identifications
    were reliable.

[88]

Finally, given the frailties in Ms. Whilbys
    evidence, the trial judge ought to have cautioned the jury that the repeated
    in-court identifications of the appellants by Ms. Whilby, which the Crown
    elicited, were entitled to little weight:
Yigzaw
, at para. 71;
Hibbert
,
    at para. 50;
R. v. Pelletier
, 2012 ONCA 566, 291 C.C.C. (3d) 279, at
    para. 93.

(3)

The Cumulative Impact of the Errors

[89]

The trial judges instructions failed to convey all
    the reasons why the jury ought to subject Ms. Whilbys testimony to special
    scrutiny. Moreover, with respect to Ms. Whilbys identifications of the
    appellants, the trial judge left the jury with an unfocused treatise on factors
    that may come to bear on the reliability of eyewitness evidence, many of which
    had no basis in the evidence. Cumulatively, the instructions failed to impress
    upon the jury that there were significant reasons to doubt both Ms. Whilbys
    credibility and the reliability of her identifications.

[90]

These errors are serious. The jurys most
    significant task in this trial was deciding whether to believe Ms. Whilby. On
    the basis of the jury instructions, I am unable to conclude that the jury was
    properly equipped to assess her evidence.

[91]

It is immaterial that defence counsel failed to
    object to the aspects of the jury charge that are at issue in this appeal. I am
    satisfied that these errors left the jury inadequately equipped to properly
    evaluate important evidence:
R. v. Bailey
, 2016 ONCA 516, 339 C.C.C.
    (3d) 463, at para. 56. Irrespective of any oversight by their lawyers, the
    appellants were entitled to a fair trial, and there was no tactical advantage
    to be gained from the failure to object:
Phillips
, at para. 31.

[92]

Accordingly, on the basis of these errors, I
    would set aside the convictions of the appellants and order that they receive
    new trials.

F.

Disposition

[93]

I would allow the appeals. I would set aside the
    convictions of the appellants and order new trials on all counts.

Released: G.R.S. SEP 02 2020

B.W.
    Miller J.A.

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

I
    agree. Janet Simmons J.A.


