



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Labelle, 2019 ONCA 557

DATE: 20190703

DOCKET: C64529

Juriansz, Watt and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Labelle

Appellant

Andrew Furgiuele, for the appellant

Avene Derwa, for the respondent

Heard: April 17, 2019

On appeal from the convictions entered by Justice P.H.
    Marjoh Agro of the Ontario Court of Justice on May 6, 2017.

Harvison Young J.A.:

Background

[1]

The police received information from a confidential informant that an
    individual named Rob was growing marijuana and was in possession of firearms
    and other weapons at an apartment in Hamilton, Ontario. When the police
    executed a search warrant at that apartment on July 27, 2016, they discovered
    the appellant wrapped in a towel having just showered. They also found several
    firearms, magazines, rounds of ammunition, and other weapons. The appellant was
    charged with a number of firearm possession offences and breaches of a firearm
    prohibition order.

[2]

The appellant brought a pre-trial application to quash the warrant and
    exclude the evidence garnered by the search further to his rights under s. 8 of
    the
Canadian Charter of Rights and Freedoms
. In particular, the
    appellant challenged the warrant on the basis that the information from the
    confidential informant did not satisfy the criteria in
Debot
: see
R
    v. Debot
, [1989] 2 S.C.R. 1140 and so the warrant could not have issued. While
    the Crown conceded that the redacted ITO could not provide the basis for the
    authorizing justice to issue the warrant, it relied on the Step Six
Garofoli
procedure to amplify the ITO. Thus, the Crown took the position that the
    trial judge could find that the warrant could have issued: see e.g.
R v.
    Lowe,
2018 ONCA 110, 358 C.C.C. (3d) 423.

[3]

In the course of the
Charter

voir dire
, the Crown conceded
    that there was limited to no corroboration of the confidential informants
    tip. Defence counsel was then permitted to conduct a limited cross-examination
    of the affiant on the ITO. The affiant testified that the only information he
    was provided in respect of the informant was included in the ITO. Defence
    counsel also asked whether the police had searched the firearms registry to
    determine whether anyone associated with the apartment was licensed to own or
    possess a firearm. The affiant testified that he had not searched the firearms
    registry.

[4]

The defence called just one witness on the
voir dire
 the
    appellants girlfriend Ms. Robins. In examination-in-chief, Ms. Robins testified
    that she was living at the apartment in July 2016 and, at the time the search
    warrant was executed, had a licence to possess restricted and non-restricted
    firearms associated with that address. Thus, from the perspective of the
    defence, the purpose of her testimony was to establish that someone associated
    with the apartment was legally allowed to possess firearms, in aid of an
    argument that the police had failed to take sufficient steps to corroborate the
    confidential informants information.

[5]

In cross-examination, Crown counsel elicited evidence that the
    appellant was not living with her at the apartment, had never lived at the
    apartment, and was renting a room down the street. Ms. Robins explained that
    the appellant stored most of his belongings at her apartment because the room
    he rented did not have sufficient storage. At the time that the search warrant
    was executed, she testified she had moved out of the apartment because of
    issues with her landlord and because of a violent disturbance at a neighbouring
    residence.

[6]

The parties then made submissions on the validity of the warrant. Towards
    the end of the Crowns submissions  in the course of advancing argument on s.
    24(2) of the
Charter
 Crown counsel raised for the first time the
    issue of the appellants standing to challenge the validity of the warrant. He
    took the position that it was the appellants onus to establish standing to
    challenge the warrant in accordance with
R v. Edwards
, [1996] 1 S.C.R.
    128. The evidence on the
voir dire
relevant to the issue of the
    appellants standing  and, in particular, the evidence of his girlfriend 
    militated against a finding that the appellant had a reasonable expectation of
    privacy in the apartment.

[7]

The trial judge accepted the Crowns submissions and agreed that the appellant
    had no standing to challenge the warrant. She found that there was no evidence
    that the appellant had a subjective expectation of privacy in the apartment.
    She also found, applying the
Edwards
factors, that any such
    expectation would not have been reasonable in the circumstances. The trial
    judge dismissed the
Charter
application on this basis, and did not
    address the merits of the appellants challenge to the sufficiency of the ITO.

[8]

The parties agreed to apply the evidence from the
voir dire
to
    the trial proper. The Crown called additional evidence from the investigating
    officers, the appellants mother and an Ontario Works employee. The Crown also
    conducted a further examination of the appellants girlfriend. The Crowns
    position  based on all the evidence at trial  was that this was [the appellants]
    apartment, with the [appellants] possessions, including the [appellants]
    guns. The Crown argued that Ms. Robins evidence  to the extent it suggested the
    unit was her apartment  should be disbelieved. When asked by the trial judge
    how the Crown could take this position in light of the position it had taken on
    the
voir dire
with respect to the appellants standing to challenge
    the warrant, Crown counsel responded that the Crowns position has always been
    that its [the appellants] apartment. He explained that the Crown had only
    taken the position that the appellant lacked standing on the
voir dire
because
    the appellant had called evidence that negated standing.

[9]

The trial judge found the appellant guilty on all counts other than one
    (count 5 relating to the possession of a prohibited weapon) with respect to
    which the parties agreed that there was insufficient evidence.

[10]

The
    trial judge found that although the appellants girlfriend was the legal tenant
    named in the lease, the appellant was a very frequent occupier of the
    apartment. She noted that, based on evidence led at the trial proper, the
    appellant had a key along with unrestricted access to the apartment. Thus, the
    trial judge found that the appellant had unrestricted access to all parts of
    the unit and exercised some control over the premises and its contents. The
    trial judge also found that while the appellants girlfriend had purchased the
    firearms seized from the apartment, she had abandoned possession and custody of
    the firearms to the appellant. Thus, she found that the Crown had established
    the elements of knowledge and control over the firearms necessary to ground a
    finding of guilt on the possession of firearms charges.

The appellants submissions

[11]

The
    appellants primary argument on appeal is that the trial judge erred in holding
    that he did not have standing to challenge the warrant because the evidence on
    the
voir dire
did not establish he had a subjective as well as a
    reasonable expectation of privacy in the apartment. The appellant relies on the
    Supreme Court of Canadas decision in
R. v. Jones
, 2017 SCC 60, [2017]
    2 S.C.R. 696 which was released seven months after the trial judges decision.

[12]

Jones
held that an accused mounting a s. 8 claim may ask the court to assume as true
    any fact that the Crown has alleged or will allege in the prosecution against
    him in lieu of tendering evidence probative of those same facts on a
voir
    dire
. On the strength of
Jones
, the appellant argues that he was
    entitled to rely on the Crown theory to establish facts that would have be
    sufficient to establish standing to challenge the warrant. The appellant says
    he is entitled to test the warrant and a new trial should be ordered.

The respondents submissions

[13]

The
    Crown disagrees. It submits that
Jones
is distinguishable on the facts
    of this case for two reasons. First, it submits that
Jones
applies
    only where the defence does not otherwise call evidence relevant to the issue
    in dispute. Here, the evidence called by the appellant on the
voir dire
negated standing, as Ms. Robins testified that the apartment was hers and that
    the appellant was only an occasional guest. The appellant could not rely on the
    Crown theory that the apartment was his, because that would put the trial judge
    in the position of ignoring the evidence tendered on the
voir dire
in
    favor an unproven Crown theory/assertion. It would also put defence counsel in
    the position of taking inconsistent positions on the
voir dire
(i.e.
    the appellants girlfriends evidence should be disbelieved) and on the trial
    proper (the appellants girlfriend should be believed). In the Crowns
    submission, the rule in
Jones
applies
only
when the defence does not call any evidence touching on the accuseds standing
    (i.e. a subjective and reasonable expectation of privacy).

[14]

Second,
    it submits that because
Jones
is a case about informational privacy
    and, because of the circumstances, it more directly engaged the accuseds right
    against self-incrimination. In
Jones
, the s. 8 issue arose out of text
    messages whose content effectively confirmed that Mr. Jones had trafficked in
    firearms as charged. By contrast, this is a case about territorial privacy. The
    appellant could establish a reasonable expectation of privacy in the apartment
    (for example, by admitting it was his apartment)
without
admitting
    possession of the firearms. The respondent also argues that, in any event, the
    warrant could have issued and that the evidence would not have been ultimately
    been excluded under s. 24(2) of the
Charter
.

Analysis

[15]

For
    the following reasons, I am satisfied that
Jones
governs this case.
    The appellant was entitled to rely on the Crown theory  and, in particular,
    the Crowns position that this was the appellants apartment, not his
    girlfriends apartment  to establish facts in furtherance of his s. 8
Charter
claim. The trial judge erred in not allowing the appellant to so rely on
    the Crown theory. This error infected the trial judges analysis of whether the
    appellant had a subjective and objectively reasonable expectation of privacy in
    the apartment, such that he could challenge the validity of the warrant. I
    would therefore allow the appeal and order a new trial.

(a)

The Supreme Court of Canadas decision in
R. v. Jones

[16]

Since
    the Supreme Court of Canadas decision in
Jones
is, in my view,
    dispositive of this appeal, it is helpful to review that decision in some
    detail.

[17]

In
Jones
, the appellant was convicted of a number of drug and firearm
    offences. The Crowns case with respect to the firearm trafficking charges
    depended largely on text messages between a phone used by the appellant
    (registered in his spouses name) and a third-party, which the police had
    obtained through a production order under s. 487.012 of the
Criminal Code
,
    R.S.C. 1985, c. C-46

(the Production Order). The text messages
    discussed the potential sale of a firearm. Thus, the text messages were
    inculpatory in the sense that they tended to show that the author of the text
    messages was illegally trafficking in firearms. The Crown adduced the text
    messages to prove that Jones was the author of the inculpatory text messages
    and had offered to transfer a firearm, contrary to s. 99 of the
Criminal
    Code
. The police had also relied on the text messages to obtain further
    authorization to intercept communications and search warrants (the Authorizations),
    which generated evidence relevant to the trafficking in marijuana and
    possession of proceeds of crime charges.

[18]

Mr.
    Jones brought a pre-trial application to exclude the text messages on the basis
    that the Production Order violated his s. 8
Charter
right. He also
    sought to exclude the evidence obtained through the further Authorizations, on
    the basis that they were obtained based on information collected under the
    Production Order. Importantly, Mr. Jones
did not lead any
e
vidence that
    he had authored the text messages:
Jones
, at para. 6. Rather, he
    argued that he was entitled to rely on the Crowns theory that he was the
    author of the text messages, which in turn established a subjective expectation
    of privacy in the contents of the message. As a practical matter, this would
    avoid Jones having to admit authorship of the text messages on the
voir
    dire
to establish a subjective expectation of privacy, which was
    tantamount to an admission of the
actus reus
of the offence on the
    trial proper:
Jones
, at paras. 16, 23. In contrast, the Crown argued
    that the burden remained with the claimant on a
Charter voir dire
and
    that this will most often require the claimant to call evidence to ground
    standing and the
Charter
breach. Thus, the appellant could not rely on
    the Crown theory to establish a subjective expectation of privacy:
Jones
,
    at para. 19.

[19]

The
    trial judge in
Jones
held that the appellant did not have standing to
    challenge the Production Order. She found that there was no evidence that the
    appellant had a subjective expectation of privacy in the text messages, or any
    evidence to suggest that such an expectation was objectively reasonable. This
    court upheld that finding on appeal. It noted that the appellant had not
    testified at trial or led any evidence as to his subjective expectation of
    privacy. Thus, it was open to the trial judge to find as fact that the appellant
    lacked a subjective expectation of privacy. In other words, both lower courts
    held that the appellants s. 8
Charter
challenge failed because he
    never established that he authored the messages:
Jones
, at para. 15.

[20]

The
    Supreme Court of Canada reached a different conclusion. Writing for a majority
    of the court, Coté J. held that that appellant was entitled to rely on the
    Crowns theory to establish that he authored the text messages and, in turn, to
    establish a subjective expectation of privacy in the messages. Justice Coté
    summarized her main conclusion on this point, at paras. 9, 32-33, in the
    following terms:

I conclude that an accused mounting a s. 8 claim may ask the
    court to assume as true any fact that the Crown has alleged or will allege in
    the prosecution against him in lieu of tendering evidence probative of those
    same facts in the
voir dire
. In this case, Mr. Jones should have been
    permitted to rely on the Crown allegation that he authored the Text Messages, and
    his subjective expectation of privacy in the subject matter of the search is
    accordingly established.



In my view, that is best accomplished by concluding that
    counsel for a s. 8 applicant may ask the court to assume as true for s. 8
    purposes any fact that the Crown has alleged or will allege in the prosecution
    against him. In other words, where the alleged Crown facts, if taken to be
    true, would establish certain elements of the applicant's s. 8 claim, he or she
    need not tender additional evidence probative of those facts in order to make
    out those same elements. Although the entirety of the facts and the Crown
    theory may not be apparent at the time of the
voir dire
, the court may
    infer it from the nature of the charges. Alternatively, the court may encourage
    prosecutors to be forthright in regards to their theory.

The preceding lays out an
    exception to the rule that a
Charter
applicant "bears the burden of
    persuading the court that [his]
Charter
rights or freedoms have been
    infringed or denied". Mr. Jones is entitled to rely on this exception
    because, as explained above, Ontario Crown counsel tendered the Text Messages
    to prove that he was the author of their inculpatory contents, and admitted in
    the
voir dire
that the evidence was "very clear" in that
    respect. Pursuant to the Crown's theory, then, he should have been presumed to
    be the author of the Text Messages for the purposes of his s. 8 application. [Citations
    omitted.]

[21]

Justice
    Coté indicated that the foregoing exception to the general rule that the
    applicant bears the burden of proof on a
Charter
application is justified
    on the basis that to preclude Mr. Jones from relying on the Crown theory that
    he authored the text messages would place him in an intolerable Catch-22. He
    could either admit that he was the author of the text message on the
Charter
    voir dire
(in aid of seeking standing to challenge the validity of the
    Production Order and Authorizations) or forego challenging the admission of
    evidence tendered to prove he was the author in the trial proper:
Jones
,
    at para. 18. In Mr. Jones case, the admission that he authored the text
    messages was tantamount to an admission of the underlying offence:
Jones
,
    at para. 23.

[22]

Similarly,
    Coté J. noted that a relatively modest evidentiary foundation is required to
    establish a subjective expectation of privacy. Indeed, a subjective expectation
    of privacy can be presumed or inferred in the circumstances, absent a
    claimants testimony or admission at the
voir dire
:
Jones
, at
    para. 21. Against this modest evidentiary foundation, a rule that would require
    Mr. Jones to testify or make an admission to gain standing on the
Charter
application,
    while compromising his defence of the substantive charges, sits uneasily
    alongside the principle against self-incrimination:
Jones
, at para.
    29. Moreover, it is unfair to allow the Crown to argue that there is sufficient
    evidence proving Mr. Jones authorship of the text messages beyond reasonable
    doubt at trial, while arguing that Mr. Jones has not discharged his burden of establishing
    authorship or a subjective expectation of privacy in the contents of the text
    message on the
voir dire
. While it is true that the burden is on the
    claimant in the context of a s. 8
Charter
application, that application
    arises in the context of the Crowns prosecution:
Jones
, at para. 26.

(b)

Jones
applies to the case at bar

[23]

Turning
    then to the issue of whether
Jones
applies to the case at bar, I do
    not agree with the respondents submission that
Jones
only applies in
    circumstances where the accused leads no evidence on the
voir dire
. It
    does not make sense as a matter of principle to restrict
Jones
as the
    Crown urges this court to do. To accede to such an argument would significantly
    curtail the utility of
Jones
and risk placing an accused in the same
    dilemma that
Jones
seeks to obviate.

[24]

The
    overriding point of
Jones
is that an accused should not be placed in
    the position of being forced to compromise his or her substantive defence to
    criminal charges in order assert standing to challenge the reasonableness of a
    search. As Coté J. recognized, at para. 26, it is fundamentally unfair to the
    criminal accused to permit the Crown to adopt inconsistent positions across the
voir dire
and trial proper:

As the intervener
    Criminal Lawyers Association of Ontario argues, the Crown should not be
    permitted to say there is sufficient evidence proving Mr. Jones
    authorship of the messages beyond a reasonable doubt at trial, but argue that
    he has not discharged his burden on the balance of probabilities in the
voir
    dire
. The Crown is right to argue that it is the
accuseds s. 8 motion
.
    But that motion arises within

the
Crowns prosecution
. And it is
    the Crown, as a quasi-minister of justice, that is charged with ensuring the
    overall fairness of that prosecution. Therefore, as between the accused and the
    Crown, it is more fitting that the Crown be restrained from adopting
    inconsistent positions. [Emphasis in original.]

That is exactly what happened here.
    During the
voir dire
the Crown took the position
    that the appellant had not established a subjective and/or reasonable
    expectation of privacy because his girlfriend testified that he was no more
    than an occasional visitor and then at the trial argued that it was, in fact,
    the appellants apartment.

[25]

I
    appreciate that the Crown takes the position that, here, the problem arose from
    the defences decision to call the appellants girlfriend on the
voir dire
.
    It did so because it thought that she had crucial evidence relevant to
    assessing whether the ITO disclosed reasonable and probable grounds for the
    warrant, unrelated to whether the appellant had a subjective and/or objectively
    reasonable expectation of privacy in the apartment. It elicited this evidence
    in direct examination. The evidence inconsistent with the appellants assertion
    of a subjective and/or objectively reasonable expectation of privacy  and the
    Crowns own theory that the apartment was the appellants residence  was
    elicited by the Crown in cross-examination.

[26]

While
Jones
arose in circumstances in
    which the accused led no evidence on the
Charter voir dire
, I do not read the decision as being limited to that situation.
In
    this vein, Coté J. indicates that an accused mounting a s. 8 claim may ask the
    court to assume as true any fact that the Crown has alleged or will allege in
    the prosecution against him
in lieu of tendering evidence
    probative of those same facts in the voir dire
 (emphasis added): at
    para. 9. Justice Coté reiterates this notion at para. 32, where she writes, in
    other words, where the alleged Crown facts, if taken to be true, would
    establish certain elements of the applicant's s. 8 claim,
he or she need not tender additional evidence probative of
    those facts in order to make out those same elements
 (emphasis added).
    Here, the appellant seeks to rely on the Crown theory to establish, for the
    purpose of s. 8, that the apartment was his apartment. The appellant tendered
    his girlfriends evidence
not
to establish that it
    was his apartment, but rather to establish that she had a licence to possess
    firearms in furtherance of his attack on the sufficiency of the ITO. The Crown
    then elicited testimony inconsistent with its own theory that it was the
    appellants apartment on cross-examination. In these circumstances, the
    appellant cannot fairly be said to have tendered evidence relevant to his
    subjective and reasonable expectation of privacy in the apartment.

[27]

Moreover,
    holding
Jones
does not apply in such a situation would place the
    defence in the very type of tactical dilemma that
Jones
seeks to
    obviate. The defence would be required to weigh calling witnesses and leading
    all evidence relevant to asserting a
Charter
breach (in addition to
    those facts disclosed by the Crown theory) against the risk that the Crown
    would elicit evidence in cross-examination inconsistent with the accused
    asserting a subjective and/or objectively reasonable expectation of privacy. In
    that event, and if the Crowns position on this appeal were to be accepted, the
    practical effect would be to force the accused to (1) take the stand on the
voir
    dire
(to provide evidence to establish a subjective and/or objective
    reasonable expectation of privacy); or (2) concede the s. 8 claim to focus on
    his or her substantive defence to the charges. That places the defence in the
    position of having to choose between most forcefully litigating the accuseds
    Charter rights, on the one hand, or the accuseds underlying guilt with respect
    to the substantive offences, on the other.

[28]

The
    Crown also argues that
Jones
is distinguishable from the present
    appeal because it concerned an informational privacy interest arising from the
    text messages, rather than a territorial privacy interest. This is significant,
    in the Crowns submission, because of the relationship between the implicated
    privacy interest and the
actus reus
of the relevant offence.

In
Jones
, admitting authorship of the text messages for the purposes of
    the
voir dire
was tantamount to admitting guilt on the underlying
    offences of trafficking in firearms. Here, however, a finding that the
    appellant had a reasonable expectation of privacy in the apartment (based on
    the assertion that it was, in fact, the appellants apartment) would not have,
    in and of itself, established knowledge and control of the firearms which the
    police recovered during the search sufficient to meet the requisite standard of
    proof at the trial proper. The Crown therefore argues that to allow an accused
    to rely on the Crown theory to establish a reasonable expectation of privacy in
    a territorial space would risk creating automatic standing, contrary to
Edwards
.

[29]

Again,
    I do not agree. There is no suggestion in Coté J.s judgment in
Jones
that
    it was intended to apply only to informational privacy claims, or only to allow
    an accused to assert a subjective expectation of privacy. At several points in
    her analysis, she refers to s. 8 claims generally: see
Jones
, at
    paras. 9, 26, 32-33. To the extent that Coté J. couched some of her analysis in
    reference to whether Mr. Jones could rely on the Crown theory that he was the
    author of the text messages to establish a subjective expectation of privacy
    (see paras. 19-21), I understand that to be because that was the specific issue
    raised in
Jones
.

[30]

Similarly,
    while the dilemma was particularly acute in
Jones
because proof of
    authorship of the text messages was tantamount to proof of the underlying
    offences, a similar dynamic arises in territorial privacy cases. Here, while a
    finding that the apartment was the appellants residence was not coterminous
    with a finding that he possessed the firearms, it would certainly go a long way
    to establishing the appellants knowledge of, and control over, the firearms.

[31]

This
    approach does not create automatic standing in territorial privacy cases. The
    point of
Jones
is that the accused can rely on the Crown theory to
    establish certain facts relevant to their s. 8 claim. The trial judge is still
    required to assess those facts in the totality of the circumstances to
    determine whether the accused had a reasonable expectation of privacy in a
    particular territorial space: see
Edwards
, at para. 45; see also
R
    v. Reeves
, 2018 SCC 56, at para. 28. Here, the appellant could rely on the
    Crowns position that the apartment searched was his residence in advancing his
    s. 8 claim. This was relevant both to establishing a subjective expectation of
    privacy and the objective reasonableness of that expectation. While possession
    or control of the place searched and/or ownership of the place searched are
    significant factors in the
Edwards
analysis (particularly in respect
    of the search of a residence), they are not by themselves determinative of
    whether an accused has a reasonable expectation of privacy in a particular
    place.

[32]

For
    these reasons, I conclude that
Jones
is applicable to this appeal. I
    do not believe that the trial judge would have adopted the approach that she
    did, had she had the benefit of
Jones
at the time of trial.
    Nonetheless, the trial judge erred in not allowing the appellant to rely on the
    Crown theory that it was his apartment in support of his s. 8 claim. This error
    infected the trial judges analysis as to whether the appellant had a
    subjective and objectively reasonable expectation of privacy.

(c)

A new trial is necessary

[33]

The
    appellant submits that a new trial is necessary because the trial judges error
    compromised trial fairness. The appellant argues that the Crowns position on
    the
voir dire
that the apartment was Ms. Robins apartment was a
    last-minute switch from its position that the apartment was the appellants
    residence. It then reverted to its original position on the trial proper. The
    appellant submits that, had he been granted standing to challenge the warrant, it
    is not a foregone conclusion that the ITO would have met the
Debot
criteria.

[34]

The
    respondent takes the position that, had the trial judge found that the
    appellant had standing, the warrant would have withstood
Charter
scrutiny.
    The respondent argues that a full evidentiary record and full argument was made
    below, such that this court is positioned to determine the validity of the
    warrant. It argues that the warrant does not violate s. 8 of the
Charter
and, in any event, the evidence would have been admitted under s. 24(2).

[35]

I
    do not agree with the respondent that this court should conduct the s. 8
    analysis. First,
Jones
has changed the law since the
voir dire
was
    held before the trial judge. It may be that the parties would now make
    different choices in their conduct of the
voir dire
and trial proper
    in light of
Jones
.

[36]

Second,
    the
voir dire
proceeded as a Step 6
Garofoli
hearing, which
    is procedurally complex. The respondent acknowledged as much in stating that it
    reserves the right to request the panel review the unsealed ITO and make
    submissions that the information in the ITO met the
Debot
standard. In
    this sense, the court does not have a complete evidentiary record, nor the
    benefit of full argument, before it at this point.

[37]

Third,
    the trial judge did not conduct any analysis as to the merits of the
    appellants
Charter
application because of her conclusion that the
    appellant did not have standing to raise a s. 8 claim with respect to the
    warrant. It is inconsistent with this courts role as an appellate court to
    conduct that analysis at first instance.

Disposition

[38]

The
    appellant and Crown submit that an acquittal should be entered on Count 4 on
    the indictment because it relates to the same firearm as Count 5 which was
    withdrawn at trial with the consent of the Crown for insufficient evidence. I
    would agree.

[39]

For
    the foregoing reasons, I would allow the appeal and order a new trial on the
    remaining counts.

Released: July 3, 2019

D.W.

A. Harvison Young
    J.A.

I agree R.G. Juriansz
    J.A.

I agree David Watt
    J.A.


