



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. D'Souza, 2019 ONCA 897

DATE: 20191114

DOCKET: C64073

Hoy A.C.J.O., Doherty and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David DSouza

Appellant

Richard Litkowski and Jessica Zita, for the appellant

Maria Gaspar, for the respondent

Heard and released orally: November 12, 2019

On appeal from the conviction
    entered by a jury presided over by Justice M.J. Donohue, of the Superior Court
    of Justice, dated February 22, 2017, and the sentence imposed on July 20, 2017.

REASONS FOR DECISION

[1]

Following trial by jury, the appellant was convicted of possession of
    heroin for the purposes of trafficking, contrary to s. 5(2) of the
Controlled
    Drugs and Substances Act
( the Act) and possession of heroin, contrary to
    s. 4(1) of the Act.

[2]

The Crown concedes, and we agree, that the trial judge erred by failing
    to provide any form of
W.D.
instruction in the jury charge that made
    clear that a route to acquittal was available, even if they disbelieved the
    evidence of the appellant, and that, in the circumstances, the
curative
    proviso
cannot be relied on.

[3]

Accordingly, the appeal is allowed and a new trial is ordered on counts
    2 and 3 of the indictment.

Alexandra Hoy
    A.C.J.O.

Doherty J.A.

B. Zarnett J.A.


