



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Poulin, 2017 ONCA 175

DATE: 20170301

DOCKET: C58713

MacPherson, Cronk and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lonny Adam Poulin

Appellant

Tina Yuen and Cate Martell, for the appellant

Brian G. Puddington, for the respondent

Heard: November 2, 2016

On appeal from the convictions entered on December 4,
    2013 by Justice John F. McCartney of the Superior Court of Justice, sitting
    with a jury.

By the Court:

Introduction

[1]

The appellant, Lonny Adam Poulin, was charged on a multi-count
    indictment with various drug and related offences arising from events that
    transpired in the spring of 2011.  The charges involved five drug transactions
    allegedly committed on four separate dates.  The charges may be summarized as
    follows:



Date

Count



April 8

3  Trafficking (cocaine)





4  Possession of proceeds of crime



May 3

5  Trafficking (cocaine)





6  Possession of proceeds of crime



May 13

7  Trafficking (cocaine)





8  Possession of proceeds of crime



May 17 (morning)

1  Trafficking (oxycodone)



May 17 (afternoon)

2  Trafficking (cocaine)



May 17 (police raid)

9  Possession for purpose of trafficking (cocaine  box)





11  Possession for purpose of trafficking (oxycodone 
          boat)





12  Possession of proceeds of crime



[2]

Following a 13-day trial before a judge and jury, the appellant was
    convicted of four counts of trafficking (cocaine and oxycodone) (counts 1, 2, 3
    and 7), three counts of possession of the proceeds of crime (counts 4, 8 and
    12), and two counts of possession (cocaine and oxycodone) for the purpose of
    trafficking (counts 9 and 11).  He was acquitted of two counts (counts 5 and 6). 
    The Crown did not proceed on count 10.

[3]

The appellant was sentenced to a total of five years in jail, less
    credit for six and one-half months of pre-sentence custody.  A $2,100 fine was
    imposed, payable within six months of the appellants release from jail failing
    which the appellant would be required to serve an additional month in custody,
    together with a $4,185 forfeiture order, and weapons prohibition and DNA
    orders.

[4]

The appellant appeals from his convictions.  His grounds of appeal target
    the propriety and adequacy of the trial judges jury instructions and, in
    respect of counts 3, 4 and 8, the reasonableness of the jurys findings of
    guilt.

[5]

The appellant attacks the trial judges jury instructions on several
    grounds.  As argued, he submits that the trial judge erred by:

(i)

misdirecting the jury on the proper assessment of circumstantial
    evidence;

(ii)

misdirecting
    the jury on the prohibition against applying evidence across counts in a
    multi-count case

and,

relatedly,

failing to correct improprieties in the trial Crowns cross-examination
    of the appellant and closing address to the jury;

(iii)

failing
    to properly instruct the jury on the dangers of propensity reasoning;

(iv)

failing to
    put the defence case fairly to the jury; and

(v)

misdirecting
    the jury on the limited use it could make of evidence concerning unadopted,
    prior inconsistent statements.

[6]

It is unnecessary for the disposition of this appeal to address all the
    grounds advanced by the appellant.  For the reasons that follow, we conclude
    that the trial judge erred in his instructions to the jury regarding the proper
    consideration of evidence in a multi-count case, including by failing to
    correct parts of the trial Crowns cross-examination of the appellant and
    closing address to the jury that were improper and prejudicial to the defence. 
    On this ground alone, the convictions cannot stand and a new trial is required.

Background

(1)

The Drug Transactions

(i)

Undercover Engagement with Ronald Bell

[7]

In January 2011, the Thunder Bay Police Service commenced an undercover
    investigation of Ronald Bell, a suspected drug trafficker who lived at 511
    Simpson Street in Thunder Bay, Ontario.  On various occasions, undercover
    police officers attended at 511 Simpson Street and purchased cocaine and
    morphine from Bell.

[8]

On March 25, 2011, Constables Pearson and Jones, acting undercover,
    drove with Bell to a parking lot at a local laundromat known as Barbs Laundromat. 
    Bell left the officers car and attended a nearby house located at 300 Bethune
    Street.  Soon after, he returned to the car and sold the officers three and
    one-half grams of cocaine.

[9]

For many years, the appellant had owned and operated a residential
    renovation and construction business in Thunder Bay.  In the spring of 2011,
    his active work sites included 300 Bethune, as well as another house on the
    same street.  Bethune Street is located in Thunder Bays downtown core, an area
    known to police for drug activity.

[10]

The police did not observe any direct contact between Bell and the
    appellant during the March 25 drug transaction.  However, they knew that the
    300 Bethune Street property was associated with the appellant and considered
    that Bells attendance at that address established a link between the two men.

(ii)

April 8, 2011 Transaction

[11]

Pearson met again with Bell on April 8, 2011 to purchase drugs.  He drove
    Bell to Barbs Laundromat and gave him $600 for seven grams of cocaine.  Bell
    took the money and left Pearsons vehicle to obtain the drugs.

[12]

The police had the 300 Bethune Street house under surveillance on April
    8.  At about 12:00 p.m., they observed the appellant enter the house, using a
    set of keys.  At approximately the same time, the surveillance officers saw
    Bell enter the house.  Within about ten minutes, Bell left the house, returned
    to Pearsons vehicle and provided him with seven grams of cocaine.  The
    appellant, in the meantime, left the residence and drove away in his black
    Hummer.

(iii)

May 13, 2011 Transaction

[13]

On May 13, 2011, Pearson arranged to purchase an ounce of cocaine from
    Bell.  He drove Bell to the same laundromat, where Bell got out of the vehicle
    and walked in the direction of 300 Bethune Street.  Within a few minutes, Bell returned
    to Pearsons car and asked to use a cell phone.  Pearson obliged, providing
    Bell with his cell phone.  Bell made a call and Pearson heard him say to the
    person on the phone, Hey brother, can I stop by?  The police later
    established that the phone number Bell called was registered to the appellant. 
    After the phone call, Pearson gave Bell $2,200 for an ounce of cocaine.  Bell
    left the police vehicle, walked to 300 Bethune Street, and sat on the steps of
    the house.

[14]

The appellant arrived within 15 minutes.  The police observed the
    appellant and Bell walk together to the back of the Bethune Street property,
    returning to the front of the house about five minutes later.  Bell then left,
    returned to Pearsons car and provided him with the agreed amount of cocaine. 
    As on prior occasions, the police did not observe any direct drug transaction between
    the appellant and Bell.

(iv)

May 17, 2011 Transactions

[15]

Two additional drug transactions with Bell took place on May 17, 2011. 
    During the morning of May 17, Pearson picked Bell up and, once again, drove to Barbs
    Laundromat.  The two men had discussed the purchase by Pearson of 20 oxycodone
    tablets and one ounce of cocaine.  On the way to the laundromat, Bell had used
    Pearsons cell phone, again calling a phone number that was later established
    to be registered to the appellant.  Pearson paid Bell $3,500.  Bell then left
    Pearsons vehicle, met the appellant in front of 300 Bethune Street and entered
    the residence with him.  Within a short time, Bell returned to Pearsons
    vehicle with 20 oxycodone tablets.

[16]

Bell and Pearson agreed to complete the cocaine transaction later that
    day.  After agreeing to the second deal, Bell again used Pearsons cell phone. 
    He called a phone number established at trial to be that of the appellant.   Pearson
    then dropped Bell off at his residence on Simpson Street.

[17]

Later that afternoon, Pearson and Bell met again.  This time, Pearson
    drove Bell to a Dairy Queen parking lot, located about a four-minute walk away
    from a house at 218 Powley Street, where the appellant lived.  Bell left
    Pearsons car and walked toward Powley Street.  Approximately 40 minutes later,
    he returned to Pearsons car with the cocaine.  Bell was then arrested.

[18]

Police

surveillance

officers

monitored

the

appellants

movements throughout the day on May 17.  During the morning, he
    was seen visiting several retail establishments, as well as 300 Bethune Street. 
    Later, in the afternoon, the officers saw the appellant travel from the 300 Bethune
    Street property to his apartment at the 218 Powley Street house, shortly before
    Bell was observed to walk toward Powley Street from Pearsons car.

(v)

Searches of the Bethune Street and Powley Street Properties

[19]

Almost simultaneously with Bells arrest on the afternoon of May 17, the
    police executed two search warrants, one at the 300 Bethune Street work site
    and the other at the 218 Powley Street house.

[20]

At 300 Bethune Street, the police found a locked metal industrial bin in
    the bedroom closet of a self-contained basement apartment in the house.  The
    bin contained about a pound of marijuana and what appeared to be hash in a
    glass vial.  They also discovered several suitcases of clothing and pieces of identification
    in the apartment, including a passport in the name of Rory Pelletier. 
    Pelletier, who was present in the house during the execution of the search
    warrant, appeared to the police to be in charge of the construction work at the
    house.  He was arrested following the search of the basement apartment.

[21]

At 218 Powley Street, the appellants two children and his friend, Pat
    Cully, but not the appellant, were present in the residential area of the upper
    level of the house at the time of the raid.  The children had been dropped off
    at the house by their mother, Karli Chrusz, for a scheduled visit with the
    appellant.  No drugs, cash or any other evidence of trafficking activity were
    found in the upper level residential area occupied by the appellant at Powley
    Street.

[22]

The police also carried out a forced entry into three separate,
    self-contained apartments in the basement of the Powley Street property.  In
    the first apartment, they discovered: i) in the bedroom, approximately 700 grams
    of cocaine and several baggies of marijuana in a heavy, construction-type lock
    box in the closet, a small amount of cocaine on the dresser and a purse on the
    bed containing identification for a woman named Catlin Dorval; ii) in the
    living room, a cable bill in the name of the appellant and a camera containing
    numerous photographs, including photographs of the appellant; and iii) in the
    bathroom, a prescription drug bottle bearing the appellants name.  Other
    individuals, including Catlin Dorval, were present in the second apartment.  A
    window facing to the east was open.  The third apartment, where a small amount
    of marijuana and mushrooms were found, was unoccupied when the police arrived.

[23]

Chrusz returned to the house while the police were still there.  She told
    them that she had never seen the appellant involved with drugs and knew nothing
    about him leaving the house through the open window.

[24]

Both Cully and Chrusz testified at trial.  Cully said that, while he and
    the children were playing at 218 Powley Street, the appellant had stepped out
    for a few minutes.  Chrusz, in contrast, testified that she had lied to the
    police on the day of the search.  Contrary to what she had then told the
    police, she testified that the appellant had phoned her on May 17 and told her that
    the police were at the house, that he had gone out a window and that she had to
    go back to the house for the children.

[25]

The police also searched the backyard of the Powley property.  When a
    neighbour signalled that two people had fled down the adjacent laneway, two
    police officers gave chase.  They returned shortly thereafter with a suspect,
    Roger Himes, in custody.

[26]

The police employed the services of a drug-sniffing dog during the
    search of the Powley Street property and environs.  The dog led them to a boat
    in a neighbours yard where, under a tarp, the police found bundles of cash,
    baggies containing drugs and two sets of keys.  The cash totalled $4,815 (Cdn.),
    including $2,560 of recorded police buy money that had been given to Bell for
    drugs earlier in the day, and $60 (U.S.).  The baggies contained five grams of
    cocaine and 68 oxycodone pills.  The first set of keys belonged to the
    appellants Hummer vehicle.  The second set included a key for the lock box
    found in the first basement apartment, where the 700 grams of cocaine were
    found.  The police also discovered a receipt from a local furniture store dated
    May 17, 2011 in Pelletiers name.

(2)

Appellants Testimony at Trial

[27]

The appellant testified in his own defence at trial.  He denied
    involvement in any of the drug transactions at issue and provided explanations
    for the evidence implicating him in the crimes.

[28]

In his evidence, the appellant described his residential renovation
    business, explaining that much of his work involved renovating derelict homes
    in the east end of Thunder Bay, a disadvantaged neighbourhood in which he, Bell
    and Himes had all grown up.  He said that he frequently gave jobs at his
    various work sites and a place to sleep to people who needed help, including
    some he knew to have drug or alcohol related problems.  He claimed that he
    disapproved of drug use and that he had made it clear to his work crews that he
    did not tolerate drug use around him.

[29]

The appellant testified that Pelletier was his head carpenter, that
    Pelletier possessed several cell phones and changed his phone number every two
    weeks, that Pelletier and Bell knew each other well, and that he had caught
    Pelletier and Bell doing drugs together a couple of times.

[30]

The appellant described Bell as a known drug user who did general labour
    work for him on his work sites.  According to the appellant, Bell called him frequently,
    sometimes on a daily basis, looking for work or money.  On the dates of the
    drug transactions in question, the appellant said that Bell came to the Bethune
    Street property looking for Pelletier and asking for money or other favours.

[31]

With respect to the May 17 police raid on 218 Powley Street, the
    appellant maintained that, shortly before the police arrived, he had stepped
    out to get cigarettes, as well as supplies for his children, who were visiting. 
    He stated that he ran into a friend, Dave Smith, who told him that the police
    were at his house and that the police claimed that they had found drugs; that
    the appellant had gone out the window; and that they were searching for the
    appellant.  On receiving this information, the appellant maintained that he had
    phoned Chrusz, relayed to her the information provided by Smith, and told her
    to return to the house and pick up the children.

[32]

The appellant denied any involvement in the provision of drugs to Bell, with
    the drugs found in the lock box in the first basement apartment at 218 Powley Street,
    and with the drugs and money found by the police in the nearby boat.  He maintained
    that he did not have keys for any of the basement apartments at the Powley
    property and said that some of his paperwork was in the downstairs area of the
    house because Himes had helped clear the papers from the appellants apartment
    in anticipation of the childrens arrival for lunch.  He claimed that he had
    given Himes his car keys so that Himes could run an errand and that he did not
    own the other set of keys found by the police.

(3)

Himes Testimony at Trial

[33]

Himes testified at trial as a Crown witness.  No doubt unexpectedly for
    the Crown, in his evidence, Himes assumed responsibility for the drugs found by
    the police in the search of the Powley Street property and sought to exonerate
    the appellant.

[34]

Specifically, contrary to his statement to the police on the day of the
    Powley Street raid, Himes testified that he lived alone in the basement
    apartment at 218 Powley Street; that he alone had a key to the apartment and
    the lock box found in it; that the drugs stored in the lock box were his; that
    on the day of the raid he had sold cocaine either to Bell or to Bells brother;
    that when the police arrived he was alone in the apartment and went out the
    window; that he hid some drugs and cash in the boat on the neighbouring
    property; and that the police then found and arrested him.

[35]

In light of this testimony, the Crown was granted leave to cross-examine
    Himes pursuant to s. 9(2) of the
Canada Evidence Act
, R.S.C. 1985, c. C-5. 
    On cross-examination, Himes acknowledged that, on previous occasions, he had
    asserted that he was babysitting the drugs; that the drugs did not belong to
    him; and that his friend who owned

the

Hummer

and

lived

upstairs

at the Powley Street property (the appellant) had been present in the
    basement apartment with him when the police arrived, whereupon the friend had
    gone out the window.  However, notwithstanding these admitted prior
    inconsistent statements, Himes continued to claim at trial that the drugs
    recovered in the Powley Street police raid belonged to him.  He said that he had
    not been truthful in his earlier statements and that he had been high on the
    day of the police raid.

[36]

On cross-examination by defence counsel, Himes again changed his version
    of events.  In response to further questioning, he maintained that a third
    individual, Sky Sponchia, and not the appellant, had been with him in the
    Powley Street basement apartment when the police arrived and that it was Sponchia
    who went out the window during the raid.  He said that Sponchia and Pelletier
    worked together selling drugs and that they had dangerous friends who would
    have harmed him had he mentioned their names on earlier occasions.

Issues

[37]

These reasons will focus on one main issue: whether the trial judge
    misdirected the jury on the prohibition against applying evidence across counts
    in a multi-count case.  Relatedly, we will also consider the propriety of
    aspects of the trial Crowns cross-examination of the appellant and his closing
    address to the jury.

Analysis

(1)      Misdirection on Prohibition
    Against Applying

Evidence Across Counts

(i)       Need for a Limiting Instruction

[38]

The central issues at trial were the identification of Bells drug
    supplier and the owner of the drugs found in the basement apartment at the
    Powley Street property and in the nearby boat.  The Crowns case against the
    appellant was entirely circumstantial.  There was no direct evidence of a drug
    transaction between the appellant and Bell.  There was also no direct evidence establishing
    that the appellant was the person who stashed drugs and money at 218 Powley
    Street and in the boat on the neighbouring property.

[39]

At trial, the Crown did not bring a similar act application as it did
    not seek to argue that the evidence on any particular count was admissible as
    similar act evidence on the other counts.  Nor is such an argument advanced on this
    appeal.  Indeed, at trial, counsel agreed at the pre-charge conference that an
    instruction regarding the use of similar act evidence should be deleted from
    the draft jury charge. The trial judge agreed and deleted it.

[40]

In these circumstances, it was incumbent on the trial judge to instruct
    the jury that it was required to consider the evidence concerning each count
    separately and that, in reaching a decision on any one count, it could only consider
    the evidence relevant to and admissible on that count:
R. v. B.M.
(1998), 42 O.R. (3d) 1;
R. v. Rarru
,
    [1996] 2 S.C.R. 165;
R. v. Brown
, 2007 ONCA 71, 221 O.A.C.
    17.

[41]

Relying on this courts decision in
R. v. Sandhu
, 2009 ONCA
    102, 265 O.A.C. 206, the Crown argues that an instruction about the prohibition
    against cross-count reasoning was unnecessary in this case because much of the
    trial evidence was common to all the counts at issue.  We disagree.

[42]

In our view,
Sandhu
, a domestic assault case, is
    distinguishable from this case.
Sandhu
involved multiple allegations
    of abusive conduct by the accused over a period of time against a single
    victim.  Unlike this case, in
Sandhu
, the accuseds alleged
    discreditable conduct was relevant and admissible, even in the absence of a
    similar act application, to demonstrate animus by the accused toward the
    complainant.

[43]

Further, much of the evidence in
Sandhu
concerned the nature of
    the domestic relationship and the interactions between the accused and the
    complainant in that relationship, thus establishing the context within which
    the abuse was said to have occurred.  This evidence, therefore, was directly
    relevant and common to all the counts.  In contrast, in this case, while there
    was some evidence common to two or more counts (e.g. evidence establishing the
    appellants phone number and his personal residence), most of the evidence was
    particular to each individual count.

[44]

Moreover, again unlike this case, even if a cautionary instruction
    against cross-count reasoning had been given in
Sandhu
, this court
    concluded that it would have necessitated a companion instruction on animus or
    predisposition that would not have assisted the accused.  Here, an instruction
    on the proper use of the evidence would have operated in favour of, not
    against, the appellants interest.

[45]

These factors, among others, drove the
Sandhu
court to conclude
    that an instruction not to use the evidence relating to one count as evidence
    on any of the other counts was not required in the circumstances.

[46]

That is not this case.  As we will explain, a clear limiting instruction
    was required in this case for three reasons.  First, although the Crown did not
    bring a similar act application, the trial Crown nonetheless invoked similar
    act reasoning in his cross-examination of the appellant and, during his closing
    address, repeatedly invited the jury to engage in cross-count reasoning.  Second,
    the trial judge did not correct the trial Crowns misstatements.  Instead, the
    trial judge repeated certain of the trial Crowns comments, without
    qualification, and further, provided an ambiguous instruction on the
    prohibition against cross-count reasoning in his jury charge.  Finally, the
    trial judges responses to questions from the jury exacerbated the risk of the
    impermissible application of the evidence across counts by the jury.

(ii)      Trial Crowns Remarks

[47]

We turn first to the trial Crowns impugned remarks.  In an expansive
    closing address, the trial Crown issued virtually an open invitation to the
    jury to apply the evidence across all counts.  His urgings to the jury included
    the following:

His honour will tell you that even though I need to prove that
    each and every one of these things on the indictment beyond a doubt and another
    tool I can use is that you can look at this indictment and the evidence that
    was led with respect to May 17th, the evidence that was led with respect to May
    13th and when he tried to dial two numbers on May the 3rd that were off by one
    digit, you can use the fact that on May 13th and May 17th he dialled the right
    number.
So you can use the evidence thats led on the
    other counts to help you determine what was reasonable or what really happened
    on the other dates.  You can use that evidence
.

.

Before I go into the proof that I have with respect to each and
    every count,
and remember dont forget, the evidence on
    one count can be used in helping you determine what happened on the other
    counts
.  The biggest single piece that strikes me the most is who was he
    calling?  Exhibits 1 and 16 tell you who that is.  So who was he contacting on
    those other dates?
You can use the evidence on the other
    counts to look at that situation
.

.

Ive told you that you can use the
    evidence of any of the counts that help assist you with whats reasonable with
    respect to the findings of facts on the other counts
.

.

Lets just look at the evidence of the 17th and the reason
    again that Im calling it first, is because
when we look
    at the evidence of the 8th, the 3rd, and the 13th, you can utilize that as an
    assist to determine what happened
.

.

So when youre looking at the evidence of
    May 13th, you can look at the evidence of May 17th to see the pattern
.
    [] [The Appellant] shows up when you want oxycodone every single time, every
    time.  Not once in any of these deals in this indictment does [the Appellant]
    not  where the deal is made within minutes.

.

And remember; dont look at any day in isolation. Look at
    the four transactions. See if theyre similar and if it makes sense that
    anybody else could have been involved in any of them but [the appellant] who
    was there at each and every one of them
.

.

Now, that leaves us with the very first event.  I went
    backwards in time because of the rule Im suggesting his honour will confirm,
that you dont look at each piece of evidence in isolation. 
    That you can look at the evidence, all the evidence whether it was led from []
    May 17th, 13th, and the 3rd because the 8th is a little weaker because I dont
    have a phone call.  There is no phone call to point to here, but the patterns
    the same on the 8th
.

.

I would ask you to carefully listen to the charge from his honour
    when he will discuss those little tools, circumstantial evidence, parties to an
    offence,
that
you
can use evidence from previous counts to reach your decision
.

[Emphasis added.]

[48]

These, and similar remarks by the trial Crown in his closing address,
    followed on his cross-examination of the appellant during which he resorted to
    similar act reasoning.  Throughout his cross-examination of the appellant, the
    thrust of the trial Crowns questioning was that the evidence on all the counts
    rendered it unlikely in the extreme that the appellant would be implicated by
    unlucky coincidence in five separate drug transactions carried out at or near
    premises he owned or occupied.

[49]

The above-quoted passages from the trial Crowns closing address and the
    similar act reasoning that he developed as the predominant theme of his cross-examination
    of the appellant suggested to the jury that it could, and should, use all the
    evidence at trial, without any count-by-count differentiation, to determine the
    appellants guilt on all counts.  Importantly, the trial Crown did not confine
    this suggestion to only the evidence that might be said to be common to all
    counts.  Instead, he invited the jury to rely on evidence that was particular
    to one count in order to make factual inferences about the appellants guilt on
    entirely different counts.  The trial Crown went even further and urged the
    jury to rely on alleged similarities or an alleged pattern of acts as
    circumstantial evidence of the appellants guilt on all counts.  Absent a successful
    similar act application by the Crown, this was improper and highly prejudicial
    to the defence.

[50]

We do not accept that defence counsels failure to object at trial to the
    trial Crowns cross-examination of the appellant and his closing address
    foreclose relief on appeal.  As this court has said on numerous occasions,
    while a failure to object at trial is a relevant and sometimes critical factor,
    it does not always preclude a successful challenge on appeal.  A trial judge is
    obliged to ensure that proper instructions are provided to the jury
    notwithstanding the asserted position  or silence  of counsel.  See for
    example,
R. v. Austin
(2006)
,
    214 C.C.C. (3d) 38 (Ont. C.A.), at paras. 14-15;
Brown
, at para. 16.

[51]

In this case, a clear limiting instruction by the trial judge regarding
    prohibited cross-count application of the evidence was necessary.  By the close
    of final arguments, there was a real and substantial risk that the jury would
    have understood that it could reach across counts and use any of the evidence
    at trial to determine the appellants guilt on each count, beyond a reasonable
    doubt.  This risk called out for a strong and unambiguous caution from the
    trial judge.  As we will explain, this did not occur.

(iii)     Initial Jury Charge

[52]

The trial judge began his instructions to the jury on how it should
    reach its verdict by saying when you decide whether Mr. Poulin is guilty or
    not guilty of the offences set out in the indictment,
you
    should look at all of the evidence
and consider the whole of my instructions

    (emphasis added).

[53]

An instruction of this sort is not usually an error.  But in the
    circumstances of this case, in the absence of further clarification or
    qualification, it suggested to the jury that there was no restriction
    whatsoever on the cross-count use of the evidence at trial.  This suggestion
    was incorrect.

[54]

In fairness, the trial judges instructions did not end there.  He went
    on to tell the jury that you must only return a verdict on a particular count
    based on the evidence that it [
sic
] applies to that count.  It would
    be wrong for you to supplement the evidence related to one count with the
    evidence from another entirely different count.  This instruction, standing
    alone, was correct.

[55]

However, the trial judge then immediately added, Look at the whole of
    the evidence for determining guilt on a particular count.  You treat each count
    as if it were contained in a separate indictment and reach a verdict based
    solely on the evidence that applies to it.

[56]

In these instructions, the trial judge correctly cautioned the jury to
    consider a particular count based on the evidence that  applies to that
    count and to reach its verdict on each count based solely on the evidence
    that applies to it.  If the instructions had been confined to those warnings,
    they would be unimpeachable.  But the trial judge also told the jury to look
    at all of the evidence and the whole of the evidence for determining guilt
    on a particular count.

[57]

Viewed in their entirety, these instructions were ambiguous and ripe for
    misinterpretation.  They left open the real possibility for jury confusion
    about how to evaluate the evidence in respect of the multiple counts before the
    court and, as a result, did not clearly guard against cross-count reasoning by
    the jury.

[58]

The risks of jury confusion and improper consideration of the evidence were
    exacerbated by the trial judges failure, at any point in his charge, to
    instruct the jury that it should disregard the trial Crowns urgings to the
    jury that it use the evidence of any of the counts that [may] help assist
    youwith respect to the findings of facts on the other counts.

[59]

Moreover, when summarizing the trial Crowns position concerning the
    April 8, 2011 drug transaction, the trial judge repeated, without qualification
    or clarification, the trial Crowns submission that evidence relating to the
    May 13 and May 17 drug transactions could be used to establish that Bell got
    the cocaine he sold to the police on April 8 from the appellant.

[60]

In this part of his charge, the trial judge was reviewing the trial Crowns
    position.  Although this was not an instruction by the trial judge about using
    the evidence in the manner suggested by the trial Crown, and hence, standing
    alone, was not an error, it also did not serve to disabuse the jury of the
    trial Crowns misstatements concerning the permissible use of the evidence. 
    See
R. v. Jaw
, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 33.

[61]

In the result, the jury was left without clear guidance on the proper consideration
    of the evidence in this multi-count case.  The instructions provided in the
    jury charge, following as they did on the trial Crowns closing address and
    cross-examination of the appellant, allowed for the realistic risk of
    impermissible cross-count reasoning by the jury.

(iv)     Jury Questions and
    Responses

[62]

And the matter did not end there.  That the jury was confused by the
    instructions it had received is confirmed by the fact that it twice returned
    with questions about what use it could make of the evidence across counts.  The
    trial judges responses to these questions, with respect, were contradictory
    and failed to unambiguously bring home to the jury the proper approach to
    consideration of the evidence.

[63]

The jury posed its first two questions about one and a half hours into
    its deliberations.  In its first question, the jury requested copies of the
    prosecution and defence summaries read by the trial judge.  The second question
    read: Clarification on evidence presented throughout the trial  can it be
    used in any or all offences?

[64]

In his submissions to the trial judge regarding an appropriate response
    to this question, the trial Crown returned to his theme that the whole of the
    evidence could be used by the jury, in effect, as similar act evidence.  He quoted
    a number of passages from this courts decision in
R. v. T.B.
(2009)
,
95 O.R. (3d) 21 (C.A.), a
    case involving the admissibility and permissible use of similar act evidence, including
    the following passage at para. 21:

The Crown submitted at trial, and in this court, that the
    evidence ought to have been admitted because the compelling degree of
    similarity among the acts overcame the objective improbability of coincidence.

[65]

Relying on this passage from
T.B.
, the trial Crown then argued,
    which is what I kept saying, unlucky, unlucky, unlucky.  Its coincidental. 
    The trial Crown maintained that the
T.B.
case was dead on with the
    facts of this case and took the position that the type of reasoning queried by
    the jury was permissible.  Defence counsel strongly disagreed, arguing that
    without a similar act ruling, the use of evidence across counts was improper.

[66]

The trial judge responded to the jury as follows:

You cant apply all the evidence across all the counts. 
    However, if you have a piece of evidence, as an example, phone numbers, someone
    phoning the same number that appears in say two counts.  In other words, the
    same evidence that applied in two counts, then you can use this evidence in one
    to draw inferences with respect to the other, but only for those two counts. 
    They have to be narrowed to what youre talking about.  Or if you had three
    counts then you can use it in three.  But you cant take evidence from count
    one and it doesnt relate to count nine to just use it for any reason because
    an inference has to be based on fact.

[67]

With respect, in the particular circumstances of this case, this
    instruction was unsatisfactory.  It essentially told the jury, without specific
    guidance, that it could sift through all the evidence to determine if any of
    the evidence on some counts was relevant and admissible for use in supporting
    its findings on another count.  This was precisely what the jury was not
    permitted to do.

[68]

The suggestion of prejudice to the defence is not theoretical.  It is clear
    from the record that this jury remained confused about how to carry out its
    central task  the evaluation of the evidence.  After it had been deliberating
    for almost six hours, the jury submitted this fifth and final question:

Your Honour,
the Crown used the metaphor
    of a grab bag to suggest that evidence could be combined to infer
. 
    Can evidence from the 17th be used to create inferences about evidence which
    occurred on the 3rd?  [Emphasis added.]

[69]

The trial judge responded: [T]he answer is no, you cant use an
    inference made from facts on one count as evidence in another count.

[70]

Several concerns arise regarding the jurys final question and the trial
    judges response.

[71]

First, the question implicated those parts of the trial Crowns closing
    address in which he suggested that, to establish each count beyond a reasonable
    doubt, the jury get[s] the whole basket of facts.  You look at the whole
    basket of facts. Not just one.  I dont have to prove each and every fact
    beyond a reasonable doubtYou put them all in the basketSo its looking at the
    bundle.  Its looking at the bag is how it gets you to reasonable doubt, not
    each and every little fact.

[72]

Insofar as the metaphor employed by the trial Crown was directed to the
    Crowns burden of proof, it was unobjectionable.  But the way in which it was
    used by the trial Crown, in the context of his entire closing address, had the
    effect of essentially telling the jury that it was entitled to look at all the
    evidence as a basket, bundle or bag in reaching its verdicts.  Thus, it too
    cut against the critical principle that the jury was obliged to consider the
    evidence on each count separately.

[73]

In its last question, the jury was again clearly seeking assistance on how
    to properly consider the evidence in the face of multiple counts.  Given the
    whole of the trial Crowns closing address, the jurys final question was a
    signal that it was struggling with the notion of combining evidence in order
    to reconcile the trial Crowns statements about the way to approach the
    evidence with the trial judges instructions on the same issue in his initial charge. 
    The jurys appreciation of the appropriate way to evaluate the evidence went to
    the core of its fact-finding function.  Unresolved jury confusion on this
    issue, therefore, undermines the integrity of the jurys guilty verdicts and
    the fairness of the fact-finding process.

[74]

It was therefore essential that the jury be left in no doubt concerning
    the permissible way in which it was to approach its consideration of the
    evidence.  As the Supreme Court of Canada and this court have repeatedly
    stressed, questions from the jury are important.  They provide a clear
    indication of the particular problem or problems confronting the jury and on
    which the jury requires assistance.  Questions from the jury must therefore be
    clearly, correctly and comprehensively answered.  The Supreme Courts comments
    in
R. v. W.D.S
., [1994] 3 S.C.R. 521, at p. 530, illustrate the
    crucial nature of this task:

There can be no doubt about the significance which must be
    attached to questions from the jury and the fundamental importance of giving
    correct and comprehensive responses to those questions.  With the question the
    jury has identified the issues upon which it requires direction.  It is this
    issue upon which the jury has focused.  No matter how exemplary the original
    charge may have been, it is essential that the recharge on the issue presented
    by the question be correct and comprehensive.  No less will suffice.  The jury
    has said in effect, on this issue there is confusion, please help us.  That help
    must be provided.

See also, for example,
R. v. W.(D.),
[1991] 1
    S.C.R. 742, at pp. 759-60;
R. v. Pétel
, [1994] 1 S.C.R. 3, at p. 15;
R.
    v. M.T
., 2012 ONCA 511, 294 O.A.C. 111, at paras. 114-16;
R. v. Ellis
,
    2013 ONCA 9, 113 O.R. (3d) 641, at paras. 40-42.

[75]

Second, standing alone, the trial judges response to the jurys last
    question was proper.  However, it came very late in the jurys deliberations 
    after the jury had been deliberating for about six hours, after the trial judge
    had already provided ambiguous and contradictory instructions on cross-count
    reasoning, and after he had repeated, in at least one instance, the trial
    Crowns explicit and improper urging to the jury that it could use evidence
    about the May 17, 2011 drug transactions and the Powley Street raid to
    determine the appellants guilt in respect of the April 8, 2011 drug
    transaction.  The trial judges response to the jurys final question also
    contradicted some of his earlier instructions, described for example, at paragraph
    66 above, but the contradiction was left unexplained.

[76]

After receiving this instruction, the jury returned at 10:08 p.m., less
    than 30 minutes later, and convicted the appellant of all counts except the two
    counts relating to the May 3, 2011 drug transaction  the very counts that were
    the subject of the jurys final question.

[77]

Before this court, Crown counsel submits that the fact that the jury
    acquitted the appellant of the May 3, 2011 offences confirms that it considered
    the evidence supporting each count separately and did not engage in
    impermissible cross-count reasoning.

[78]

We reject this submission in the circumstances of this case.  The nature
    and timing of the jurys last question, the trial judges response to it, and
    the jurys return within a half hour with its verdicts strongly suggest that,
    by the time of its final question, the jury had already made up its mind about
    the appellants guilt or innocence on all the other counts and it simply
    applied the trial judges last instruction to the only counts that remained
    (counts 5 and 6), leading to acquittals on the counts related to the May 3,
    2011 drug transaction.  Simply put, by then, the damage had been done.  The trial
    judges final instruction was too little, too late.

(v)      Conclusion

[79]

For the reasons given, we conclude that this case fell within the
    category of cases requiring a clear and unambiguous limiting instruction on the
    prohibition against applying evidence across counts in a multi-count case.  It
    was critical that the jury receive proper guidance on the approach to be taken
    to the evidence.  The trial judges initial charge did not adequately furnish
    this guidance.  The jurys questions reveal that it struggled, until almost the
    close of its deliberations, to reconcile the contradictions between the trial
    Crowns urgings and the trial judges instructions.  The responses to the
    jurys questions did not assist in this reconciliation in any meaningful way. 
    Indeed, they exacerbated the problem.

[80]

We therefore cannot be satisfied that the jurys guilty verdicts are
    free of taint from legally impermissible reasoning or that the appellant
    received a fair trial.  The guilty verdicts, therefore, cannot stand and a new
    trial in respect of those counts is required.

(2)      Other Grounds of Appeal

[81]

We make three other comments.  First, the appellant also submits that
    the jurys verdicts on counts 3, 4 and 8 are unreasonable. We reject this
    submission. This court will only set aside a guilty verdict as unreasonable where
    there was no evidence at trial upon which a properly instructed jury, acting
    reasonably and judicially, could make a finding of guilt:
R. v. Biniaris
,
    2000 SCC 15, [2000] 1 S.C.R. 381. We are satisfied that there was some
    circumstantial evidence in this case upon which a properly instructed jury
    could have reasonably rendered guilty verdicts on counts 3, 4 and 8.

[82]

Second, the Crown elected not to appeal the acquittals entered on counts
    5 and 6.  As a result, this court has no jurisdiction to interfere with the
    verdicts of acquittal:
R. v. Sullivan
, [1991] 1 S.C.R. 489;
R. v.
    Guillemette
, [1986] 1 S.C.R. 356;
R. v. Sheridan
, 2015 ONCA 770,
    341 O.A.C. 130;
R. v. Wong
(2006), 211 O.A.C. 201.

[83]

Finally, in view of our conclusion that a new trial is required for the
    reasons already given, it is unnecessary to address the appellants other
    grounds of appeal.  The Crown, quite properly, does not suggest that the
    curative proviso can be applied in this case.  The errors in this case,
    described above, were far from minor.

Disposition

[84]

Accordingly, the appeal is allowed, the convictions are set aside, and a
    new trial is directed on all counts except counts 5, 6 and 10.

J.C. MacPherson J.A.

E.A. Cronk J.A.

David Watt J.A.

Released: March 01, 2017


