



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cook, 2020 ONCA 731

DATE: 20201117

DOCKET: C65631

Brown, Trotter and
    Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Blake Cook

Appellant

Cate Martell and Jeffrey Carolin, for the appellant

Giuseppe Cipriano and Carole Sheppard, for the
    respondent

Heard: September 14, 2020 by video conference

On appeal from the convictions entered on September 29,
    2017 by Justice Kenneth E. Pedlar of the Superior Court of Justice, sitting
    with a jury, and from the sentence imposed on June 20, 2018.

Trotter J.A.:

A.

introduction

[1]

The appellant was convicted of possession of anabolic steroids for the
    purpose of trafficking (
Controlled Drugs and Substances Act
, S.C.
    1996, c. 19 (
CDSA
), s. 5(2)), possession of cocaine for the purpose
    of trafficking (
CDSA
, s. 5(2)), and two counts of possession of the
    proceeds of crime (
Criminal Code
, R.S.C. 1985, c. C-46, s. 354(1)(a)).
    The appellant was sentenced to 4 ½ years imprisonment, less 20 days credit for
    time served in pre-sentence custody.

[2]

The appellant appeals his convictions and sentence. He raises a number
    of grounds of appeal against his convictions, the main one being that the trial
    judge erred in admitting and then failing to contain prejudicial bad character
    evidence related to his apparent association with the Hells Angels motorcycle
    club. In a similar vein, the appellant argues that certain intercepted
    communications relied upon by the Crown constituted bad character evidence that
    portrayed him as someone who is well-versed in the intricacies of the drug
    world and the criminal justice system. The appellant also submits that the
    testimony of a Crown witness strayed beyond the proper bounds of opinion
    evidence, contravening the principles in
R. v. Sekhon
, 2014 SCC 15,
    [2014] 1 S.C.R. 272.

[3]

I would allow the conviction appeal. The bad character evidence was
    irrelevant to any material issue and it was highly prejudicial. Although it emerged
    as a seemingly minor distraction at the beginning of the Crowns case, it cascaded
    into a theme that pervaded the trial. Defence counsel attempted to minimize its
    impact through cross-examination; however, it only made matters worse by
    eliciting further prejudicial testimony.
[1]


[4]

In his final instructions, the trial judge gave the jury a very brief
    instruction not to use this bad character evidence to infer that the appellant
    had a propensity to commit the offences that he was charged with.
However, this warning did not remedy the unfairness that
    suffused this trial
.

[5]

This unfairness was compounded by the anecdotal testimony of a police
    officer, which exceeded the proper bounds of opinion evidence and culminated in
    a subtle reversal of the burden of proof on the steroids charge. The trial
    judge did not instruct the jury to disregard this evidence.

[6]

As I explain below, I would decline to apply the curative proviso in s.
    686(1)(b)(iii) of the
Criminal Code
, set aside the convictions, and
    order a new trial.

B.

factual overview

[7]

This case emerged from a large organized crime investigation, known as
    Project Batlow, but resulted in a straightforward possession and proceeds of
    crime trial against the appellant.
[2]
The investigation involved the following units of the Ontario Provincial
    Police: the Organized Crime Enforcement Bureau, the Biker Enforcement Unit, and
    the Asset Forfeiture Unit. As a result of Crown questioning, many of the
    officers testified that they were assigned to these specialized units when they
    were investigating the appellant. As the trial continued, it became readily
    apparent that the appellant was a target of this broader investigation into
    bikers and organized crime.

[8]

The police obtained warrants to search the appellants and his fathers
    homes. At the appellants home, the police discovered large quantities of
    steroids. They also found a canister containing five ounces of cocaine buried
    under snow about 100 metres behind the appellants home. The Crown alleged that
    the appellant possessed the steroids and cocaine for the purpose of
    trafficking.

[9]

The police seized roughly $36,000 in Canadian currency, bundled in
    various amounts, from the appellants home. They discovered another $55,000 at his
    fathers home. The Crown alleged that all of the cash was proceeds of crime.

[10]

At
    trial, the appellant took the following positions: (1) the steroids were
    stockpiled for personal use only; (2) the Crown did not prove that he was in
    possession of the cocaine; (3) all the money found in his home was from
    legitimate sources; and (4) of the $55,000 seized at his fathers home, $20,000
    belonged to his father, and the rest was derived from legitimate sources, such
    as a limousine service and the appellants data entry job.

[11]

As
    discussed below, the appellants ability to fairly present his defence to the
    jury was repeatedly undermined by a profusion of inadmissible and highly
    prejudicial evidence.

C.

the hells Angels evidence

(1)

Overview

[12]

The
    search warrant for the appellants home authorized the police to seize clothing
    and paraphernalia associated with the 13 Crew Motorcycle Club, an entity
    associated with the Hells Angels. The police took many photographs of this
    clothing and paraphernalia inside the appellants house. The trial judge
    allowed the Crown to adduce these photographs as exhibits.

[13]

Throughout
    the trial, the Crown repeatedly tendered evidence suggesting that the appellant
    was associated with the Hells Angels. In fact, two officers provided detailed
    testimony about the surveillance of the appellant at a meeting with a known
    member of the Hells Angels.

[14]

There
    was no singular piece of evidence that undermined the fairness of this trial. Rather,
    it was the cumulative impact of many pieces of evidence that produced this
    result. As the following sections will demonstrate, the suggestion repeatedly
    presented to the jury was obvious: the appellant was formally associated with a
    notorious criminal organization, the Hells Angels. This association led to the
    inescapable inference that, by virtue of his involvement with a criminal
    subculture, the appellant was the type of person who was more likely to commit
    the offences before the court.

(2)

Hells Angels Support Clothing

[15]

Allusions
    to the appellants connection to organized crime began with the Crowns very first
    witness, Staff Sgt. Dobler. At the outset of his testimony, he advised the jury
    that he worked for the Organized Crime Enforcement Bureau. He testified that he
    found a Nomads hat and jacket while executing the search warrant at the
    appellants home.

[16]

The
    Crown asked that the jury be excused. In its absence, he sought permission to call
    evidence that the Nomads are the Ottawa chapter of the Hells Angels. The Crown justified
    this request by noting that these items were simply part of the search and may
    cause the jury to wonder [w]ho are the Nomads?. Concerned about the impact of
    this evidence, the trial judge entered into a
voir dire
.

[17]

During
    the discussion that followed, the Crown advised the trial judge that the jury would
    see photographs of biker-affiliated clothing in the appellants residence, and may
    later see surveillance evidence showing the appellant associating with members
    of the Hells Angels. The following discussion ensued:

THE COURT:
Now whats the relevance of this to the
    charges?  Like, its easy to say, Well cause hes a member, its not more
    likely to have committed it, but really, the relevance, isnt it related to
    being part of the drug sub-culture or something like that?  I mean, thats got
    to be the inference youre looking for I would think.  I dont know.
Otherwise
    they might have a Senators jacket there, you know, and theyre not a Senator,
    but I dont know.
I just want to be careful that its not more prejudicial
    than probative, if I can put it that way.


[THE CROWN]:  Yes, and thats why I wanted to raise it with
    Your Honour.  Were not going to [be] leading expert evidence that hes
    associated with a criminal sub-culture and therefore more likely to have
    committed these offences.  On the other hand, I just thought I should raise
    this now because theyll be seeing this in the photos and....

THE COURT:  If they see Hells Angels and hes hanging around
    with them, theyll see it.  That will be it.  Theyll have to draw their own
    conclusions I guess.

[THE CROWN]:  And same with the Nomads.  You know theres a
    number of pictures that have Ontario Nomads and in the jury room I dont know
    if itll become an issue or not.  It may not.  But rather than one juror
    saying, Ive heard of that and sort of what Your Honour told them not to do,
    try on their own.

THE COURT:
I think the safest is just say its a motorcycle
    club and leave it at that for now and then they see the other evidence thats
    coming in with Hells Angels around it, and they can draw their own conclusions
    I think.  Id be a little nervous that it might be more prejudicial than
    probative to make the connection, unless we can take that connection to its
    ultimate conclusion and prove hes a member and that it is, you know, an
    organization thats a criminal organization and that kind of stuff.  But if we
    cant do that, I think wed better just be very cautious with it.
[Emphasis
    added.]

[18]

On
    the
voir dire
, no one seemed to consider whether the photos of biker
    paraphernalia ought to be vetted to delete non-probative prejudicial images, or
    to obscure prejudicial content from images that contain relevant information. I
    return to this issue below, after further detailing how the issue developed.

[19]

Despite
    the trial judges caution that Staff Sgt. Dobler should refer to the Nomads as a
    motorcycle club instead of the Hells Angels, Detective Constable Leonard, who
    testified the next day, said that he found Hells Angels support clothing in
    the appellants home: namely, a black leather vest with the words 13 Crew
    embroidered on it.

[20]

In his
    cross examination of D.C. Leonard, defence counsel sought to soften the impact
    of this evidence, but he ended up exacerbating the situation. In particular, D.C.
    Leonard confirmed that: (i) the appellant was a member of the 13 Crew (ii)
    the 13 Crew is a support club of the Hells Angels; and (iii) the officers
    superiors had told him to seize any outlaw motorcycle gang affiliated
    clothing.

[21]

Another
    witness, D.C. Kettyle, followed suit. He testified about the same leather vest
    that D.C. Leonard had mentioned in his testimony. He said he observed a 13
    Crew, outlaw motorcycle vest hanging on the door of Mr. Cooks bedroomthat
    said Ottawa Chapter at the bottom and some Hells Angels support wear hanging
    on a closet door in that main bedroom.

[22]

Evidently,
    the trial judges ruling on the
voir dire
was not communicated to D.C.
    Leonard or D.C. Kettlyle. However, there was no objection and the trial judge
    did not provide any mid-trial instructions to the jury regarding this evidence.

(3)

Evidence Related to Project Batlow

[23]

The
    fact that the appellants arrest arose within the context of a large-scale
    investigation into organized crime would not have been lost on the jury. Fifteen
    police officers mentioned their affiliations with the Organized Crime or Biker
    Enforcement Units in their evidence. As the trial unfolded, it became clear why
    so many officers and multiple agencies specialized in organized crime were
    involved in this case: the appellant was a target in Project Batlow. The
    officers also alluded to the wide scope of that investigation, testifying that there
    were several teams of investigators in different regions, and numerous search
    warrants, surveillance operations, and telephone intercepts. Much of this
    evidence was unrelated to the straightforward case against the appellant.

[24]

Eventually,
    defence counsel asked the court for a mid-trial instruction to militate against
    the possibility that the jury would see [the appellant] as some Province-wide
    mobster who is connected to God-knows-who. The Crown resisted, contending that
    [t]hese are just the facts that there were multiple surveillance teams
    surveilling multiple people ... Those are the facts of this case.

[25]

The
    trial judge accepted the Crowns position that references to the broader
    investigation was just the context and one could not re-write history to
    obscure the fact that the appellant [hung] around with these guys. Nonetheless,
    he acceded to the defence request and provided the following mid-trial
    instruction:

[Y]ouve heard sort of an introductory bit of evidence about a
    broader investigation, an investigation with a much broader scope than just as
    it related to Blake Cook and its important to focus only on the evidence that
    connects Blake Cook to any of the essential elements of the charges before the
    court and not draw any inferences because its in the context of a much broader
    investigation.
You shouldnt draw any inferences against him unless they
    relate to the specifics of these offences
. [Emphasis added.]

[26]

This
    warning was not repeated in the trial judges final instructions.

(4)

Surveillance Evidence

[27]

At
    trial, the appellant contended that he accumulated part of the money that the
    police seized by working at a full-time data entry job. This job entailed
    picking up thumb drives from his employer, Darren Steinburg, usually in the
    parking lot of Mr. Steinburgs workplace. These hand-offs occurred on a regular
    basis.

[28]

The
    Crown countered by relying on over 80 hours of surveillance of the appellant to
    demonstrate that he did not spend his days performing data entry. Police officers
    testified that, during the surveillance, the appellant engaged in three
    suspected hand-to-hand drug transactions in parking lots, although it was
    admitted in cross-examination that what they witnessed was equally consistent
    with a thousand other things. Two other aspects of the surveillance evidence are
    relevant to this ground of appeal.

[29]

First,
    two officers testified about a meeting between the appellant and three other
    individuals in a parking lot. The officers described one of the individuals,
    Mr. Clairoux, as a full patch member of the Hells Angels and a known
    criminal. One officer further testified that he recognized both Mr. Cook and
    Mr. Clairoux from the target package that he received at the commencement of
    Project Batlow.

[30]

During
    their evidence, the officers recounted this meeting in detail. Mr. Clairoux was
    wearing a black and white leather vest with Hells Angels patches on the back.
    The appellant walked behind Mr. Clairoux like a subordinate, not by his side
    like an equal. An officer commented that one of the individuals seemed to be
    watching vehicles as they passed by the parking lot. He made the following
    observation: through the experience Ive gathered through those 17 years in
    policing, I believe that he was keeping watch because they were involved in
    something that was illegal. The Crown acknowledged that this surveillance
    evidence could be interpreted as relating to gang membership but again, this
    was just part of the facts of this case.

[31]

The
    second relevant aspect of the surveillance evidence pertains to what was
    ultimately provided to the jury for their deliberations. When the officers testified,
    they made reference to surveillance logs. The Crown entered an exhibit book
    containing 13 of these logs. Multiple pages of the surveillance reports displayed
    the Biker Enforcement Units name, and its logo  a motorcycle wheel in
    handcuffs.

[32]

Defence
    counsel initially agreed that the surveillance reports could be tendered with
    the logo. However, the next day, after the book was provided to the jury, he
    expressed concern that the jury might draw impermissible inferences about the
    appellants character from the Biker Enforcement logo. Noting somewhat
    sheepishly that he [didnt] know if that cats out of the bag, defence
    counsel asked the trial judge to provide an instruction about the book now or
    later. The trial judge acknowledged that this was a fair enough comment and
    agreed to caution the jury at a later time. This did not occur.

(5)

The Trial Judges Instructions

[33]

In
    the pre-charge conference, defence counsel raised concerns about the evidence
    that associated the appellant with the Hells Angels and other suspected
    criminals. For example, he said that the jury may be inclined to infer that: Hanging
    around with bikers you must be a bad guy. You must be dealing drugs. The trial
    judge agreed to do something on that in the charge.

[34]

The
    trial judges instructions concerning the Hells Angels evidence was not given
    until the very end of his charge, in the following brief passage:

Oh, the last thing. Just out of sort [of] general comments, the
    association with the motorcycle club Hells Angels, there is clothing et cetera
    found at the house. He met a guy in the parking lot, kind of a friendly
    greeting.
You are not allowed to use that evidence to assume he is guilty of
    any of these offences, it is context only, it is not safe to make an assumption
    that he is the kind of person to commit these offences just because of whatever
    association he had with a club like that
. So, that goes over the acceptable
    use of that. It is just context of that type of evidence. [Emphasis added.]

[35]

Defence
    counsel did not object to the adequacy of this instruction.

(6)

The Positions of the Parties on Appeal

[36]

The
    appellant submits that the cumulative effect of the Hells Angels evidence rendered
    his trial unfair. The caution of the trial judge was too little, too late to
    remedy the situation. The appellant submitted in oral argument that no
    instruction could undo the damage that was done.

[37]

Appellants
    counsel acknowledges that missteps by defence counsel at trial (failing to
    register timely objections, ill-advised questions in cross-examination, and
    failing to apply for a mistrial) may have contributed to the unfairness.
    However, counsel submits that these omissions and decisions could not possibly
    have been tactical in nature, and the appellant should not suffer because of
    them.

[38]

The respondent
    submits that the evidence that the appellant complains about formed only a
    small part of the trial and was, for the most part, not the subject of
    objection. The respondent contends that the trial judges mid-trial and
    end-of-trial warnings were adequate to defuse any lingering prejudice
    occasioned by the admission of the biker evidence. The respondent relies on the
    curative proviso in s. 686(1)(b)(iii) of the
Criminal Code

and
    contends that the evidence at trial occasioned no substantial wrong or
    miscarriage of justice.

(7)

Analysis

(a)

Overview

[39]

In his
    leading judgment in
R. v. Handy
, 2002 SCC 56, [2002] 2 S.C.R. 908,
    Binnie J. said, at para. 72: Discreditable disposition or character evidence,
    at large, creates nothing but moral prejudice and the Crown is not entitled
    to ease its burden by stigmatizing the accused as a bad person. See also
R.
    v. Calnen
, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 44,
per
Moldaver J. This is precisely what happened in this case  the Crown attempted
    to ease its burden by supplementing what appeared to be a formidable case with
    irrelevant and gratuitous bad character evidence.

[40]

Evidence
    of gang association, affiliation, or membership is bad character evidence. It
    is presumptively inadmissible:
R. v. Phan
, 2020 ONCA 298, 387 C.C.C.
    (3d) 383, at para. 90. It impels the prohibited inference that the accused is
    the type of person who is likely to have committed the offence. This type of
    evidence is particularly dangerous because it involves unrelated criminal
    activity:
R. v. Riley
, 2017 ONCA 650, 137 O.R. (3d) 1, at para. 21. More
    generally, it may also insinuate that the accused embraces a positive attitude
    towards the criminal lifestyle.

[41]

Although
    evidence of gang affiliation is presumptively inadmissible, it has a legitimate
    place in some trials. As Strathy C.J.O. explained in
Phan
, at para.
    91:

While evidence of gang membership can be highly prejudicial, it
    may be relevant for a variety of purposes. Like all bad character evidence,
it
    may be admissible on an exceptional basis where its probative value outweighs
    its prejudicial effect. It may be admissible to provide context or narrative,
    to establish animus or motive, or to establish the accused's state of mind or
    intention, among other purposes
. The case law is replete with the admission
    of gang association evidence for these and other purposes. [Emphasis added.]

[42]

In
    any given case, it is incumbent on the trial judge to determine whether and to
    what extent such evidence is admissible. This is required by the trial judges
    overarching duty as a gatekeeper:
R. v. Grant
, 2015 SCC 9, [2015] 1
    S.C.R. 475, at para. 44. As Cronk J.A. wrote in
R. v. B.D
., 2016 ONCA
    673, 342 C.C.C. (3d) 217, at para. 51, [i]t was incumbent on the trial judge
    to ensure that only relevant and material evidence was placed before the jury
    and that the probative value of such evidence outweighed its prejudicial
    effect.

[43]

The
    Hells Angels evidence should never have been admitted at this trial. It was not
    relevant to any of the issues the jury was required to decide: (1) whether the
    appellant possessed the steroids for the purpose of trafficking; (2) whether
    the appellant was in possession of the cocaine that was seized behind his
    backyard; and (3) whether the cash seized from the appellants and his fathers
    residences was derived from the commission of crime (i.e., the drug offences).

(b)

The Hells Angels Support Clothing

[44]

On
    appeal, the respondent submits that the photographs of Hells Angels
    paraphernalia were relevant to narrative and context: namely, the evidence
    helped demonstrate where certain items were located and the original state in
    which they were found. I disagree.

[45]

The
    Crown adduced at least 10 photos that
only
depicted biker clothing. These
    photos of the biker regalia did not assist in demonstrating where police found
    relevant seized items (i.e., the steroids, cocaine, and cash). They had no
    bearing on the issues of possession or the purpose of possession. Nothing was
    found inside the clothing that assisted with any live issue at trial. The
    appellants possession of biker clothing did not advance these issues in any
    way other than stirring the prohibited inference that the appellant was a bad
    person and therefore more likely to have committed the offences.

[46]

The respondent
    also emphasizes that the jury was only shown photographs of the clothing,
    whereas the clothing itself formed no real part of the evidence. The fact
    that the jury only saw photos, rather than the clothing itself, could not mute
    its prejudicial impact. It was the appellants possession of these items that
    was prejudicial, not the manner in which his possession was proved.

[47]

Moreover,
    this was not just clothing. These objects were the trappings and regalia of a
    notorious criminal organization:
R. v. Drecic
, 2011 ONCA 118, 276
    O.A.C. 198, at para. 8 and
R. v. Bodenstein
, 2011 ONCA 737, at para. 6.
    As the ill-fated cross-examination of D.C. Leonard demonstrated, these items
    cannot be obtained online; they must be earned. As he explained, the Club only
    allows its members or affiliates to wear its clothing. Transgressions against this
    policy are dealt withby the club. Simply put, these items are well known
    symbols of crime in our society that are not readily attainable by non-members
    of the Hells Angels.

[48]

The
    Crown at trial, and to a lesser extent on appeal, appeared to operate on the
    following assumption: because the biker attire was photographed and seized
    during the execution of the search warrant, the Crown was required to adduce this
    evidence to provide an authentic picture of the facts; otherwise, the jury would
    be misled.

This is incorrect.

[49]

The
    police were entitled to seize these items of clothing because the search
    warrant allowed them to do so. However, items seized pursuant to a search
    warrant are not automatically admissible at trial, nor is the Crown duty bound
    to adduce them in evidence. To be admitted, they must be relevant and not
    offend any other rule of evidence.

[50]

Trial
    judges have various tools at their disposal to guard against the admission of
    irrelevant and/or inadmissible evidence, including evidence that is more
    prejudicial than probative. The
voir dire
is the procedural vehicle
    through which these issues are typically addressed, particularly in jury trials
    where the impact of the admission of prejudicial evidence tends to be
    magnified.

[51]

When
    the biker issue first arose, the trial judge expressed concerns about its
    probative value and prejudicial effect. The result was a decision to admit this
    irrelevant evidence, but to mitigate its impact by simply referring to the
    Nomads as a motorcycle club. Of course, this attempt at prejudice mitigation
    was undermined by the many subsequent references to the Hells Angels throughout
    the trial.

[52]

No
    thought seems to have been given to simply not showing the jury the photographs
    of the biker paraphernalia (i.e., removing the offending photos from the book
    of photos entered as an exhibit). Again, this seems to have been driven by the
    Crowns assumption that photographs taken as part of an investigation must be
    adduced as evidence. But the vetting of evidence is commonplace in jury trials,
    designed to prevent the jury from being distracted by irrelevant evidence, or
    inflamed by evidence that is prejudicial.

[53]

For
    example, trial judges may be required to edit statements of an accused person
    in order to prevent the jury from seeing or hearing evidence that reflects irrelevant
    discreditable conduct:
R. v. Otis
(1979), 39 C.C.C. (2d) 304 (Ont.
    C.A.) at para. 11;
R. v. L.L
.
, 2009 ONCA 413, 96 O.R. (3d) 412,
    at para. 17;
R. v. Tuck
, 2014 ONCA 918, 317 C.C.C. (3d) 469, at paras.
    24-29; and Michelle Fuerst and Mary Anne Sanderson, Stephen Firestone,
Ontario
    Courtroom Procedure
,
5
th
ed. (Toronto: LexisNexis Canada
    Inc., 2020), at p. 781. Some courts have held that trial judges have a heavy
    duty to edit statements to minimize prejudice:
R. v. Oseguera
, 2014
    BCCA 352, 315 C.C.C. (3d) 542, at para. 20;

R. v. Bonisteel
,
    2008 BCCA 344, 236 C.C.C. (3d) 170, at para. 45.

[54]

Similarly,
    autopsy photographs are often vetted, cropped or pixelated to achieve these
    same goals: see
R. v. Salifu
,
2018 ONSC 6748, and
R. v.
    Kenyon
, 2014 ONSC 1259. These photographs are not automatically shown to a
    jury simply because they were taken, or because they happen to accurately
    depict the true state of a deceaseds remains. They must be relevant to a
    material issue at trial. The nature of the photographs, and the manner in which
    they are presented, must not unfairly divert the jury from its solemn task of
    deciding the case without sympathy or prejudice.

[55]

It
    might be said that the trial judges decision to refer to the Nomads as the
    Ottawa Chapter of a motorcycle club was a form of vetting. But realistically,
    at least some of the jurors would have known that this apparel is worn by
    bikers associated with crime (as opposed to bikers of the weekend, recreational
    type). If this was not already obvious when the photographs were admitted, it
    would have become so as this evidence accumulated throughout the trial.

[56]

The
    Crowns case could have proceeded without compromise had references to Hells
    Angels been avoided. The trial judge should have directed the Crown to tell its
    police witnesses to make no reference to the Hells Angels when testifying.
    Indeed, the Crown ought to have done so on its own initiative.

(c)

The Evidence Surrounding Project Batlow

[57]

As
    noted above, the jury heard from a number of officers who readily shared their
    assignments to units involved with Project Batlow. By the end of the trial, the
    jury knew about the participants, objective, structure, and activities of the
    investigation. Most importantly  the jury was told that the appellant was one
    of its targets.

[58]

On
    appeal, the respondent submits that evidence related to Project Batlow was not bad
    character evidence, and references to the investigation were so mundane and
    commonplace that they form essential narrative. The respondent contends that
    the existence and role of Project Batlow in this case constitutes the basic
    facts underlying the investigation. This is resonant of the Crowns position
    that it was obligated to adduce this evidence.

[59]

The
    inference flowing from the fact that the appellant was a target in Project
    Batlow is abundantly clear: he was a player in a network of organized crime
    that was the subject of a province-wide investigation. It is undebatable that
    this was highly prejudicial bad character evidence. The Crown should have been
    prohibited from testimony from officers about the scope and nature of the broader
    investigation.

[60]

Again,
    it would have been preferable had the Crown advised its witnesses to keep their
    evidence within the scope of the specific case before the court. This was the
    courts suggestion when defence counsel initially objected to Detective
    Heucherts testimony detailing the involvement of multiple surveillance teams
    in Project Batlow. However, this warning was not heeded. As I discuss in the
    next section, the Crown adduced evidence of a meeting between the appellant and
    Hells Angels members, one of whom the officers identified as a target of
    Project Batlow.

(d)

Surveillance Evidence

[61]

The
    respondent submits that this evidence was legitimately elicited to rebut the
    appellants claim that his income was derived from legitimate means.

[62]

The
    police surveilled the appellant for over 13 days. There was other, less
    prejudicial, surveillance footage of the appellants day-to-day activities that
    the Crown could have relied upon to make its point. This hour-long meeting with
    bikers was unnecessary to its case. Yet, the Crown found it necessary to
    question two officers about it in great detail, eliciting details that were
    highly prejudicial and outweighed any probative value this evidence might have
    had.

[63]

Defence
    counsel requested that the jury be cautioned about this evidence. However, as
    with the photographs of the biker clothing, no thought was given to obscuring
    or redacting the logo on the surveillance reports in advance of the jury
    receiving them.

(e)

The Adequacy of the Trial Judges Instructions

[64]

I
    repeat the totality of the trial judges instructions on the bad character
    evidence discussed so far:

Oh, the last thing. Just out of sort [of] general comments, the
    association with the motorcycle club Hells Angels, there is clothing et cetera
    found at the house. He met a guy in the parking lot, kind of a friendly
    greeting.
You are not allowed to use that evidence to assume he is guilty of
    any of these offences, it is context only, it is not safe to make an assumption
    that he is the kind of person to commit these offences just because of whatever
    association he had with a club like that
. So, that goes over the acceptable
    use of that. It is just context of that type of evidence. [Emphasis added.]

[65]

Whether
    any instruction could have un-rung the bell that was sounding throughout the
    trial, as the appellants counsel put it, this instruction was an inadequate
    response to the bad character evidence that had accumulated. The jury should
    have been warned in strong terms not to use the evidence in question for any
    prohibited purpose. The trial judges characterization of the evidence as
    context only was vague, and it did not remove its prejudicial impact. There
    was no need for this context in the first place and the jury should not have
    been permitted to consider the allegations facing the appellant against a backdrop
    of organized crime.

[66]

Moreover,
    this instruction failed to address the Project Batlow evidence that was the
    subject of a mid-trial instruction. It was incumbent on the trial judge to
    address this evidence again in his final instructions.

[67]

Given
    the bad character evidence that had infiltrated this trial, the trial judge was
    required to provide the jury with a strong and comprehensive warning about not
    drawing impermissible inferences from this body of evidence. Instead, it
    appears that the minimalist instruction that was given was more of an
    afterthought at the end of the charge.

(f)

The Failure to Object

[68]

The
    respondent attempts to deflect responsibility onto defence counsel for what
    happened at trial, noting that he made few objections throughout the
    proceedings. The respondent further emphasizes that defence counsel failed to
    object to the trial judges final instructions. These are fair observations  the
    trial judge did not receive the level of assistance to be expected from defence
    counsel in the circumstances.

[69]

Although
    a failure to object is sometimes telling in assessing whether a trial was truly
    unfair, it is not determinative: see
R. v. Chamot
, 2012 ONCA 903, 296
    C.C.C. (3d) 91, at para. 73;
R. v. Samuels
, 2013 ONCA 551, 310 O.A.C.
    175, at para. 50; and
R. v. Brown,
2018 ONCA 481, 361 C.C.C. (3d) 510, at
    para. 49
.
As Miller J.A. recently said in
R. v. McFarlane
,
    2020 ONCA 548, [2020] O.J. No. 3681, at para. 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
(Ont.
    C.A.), 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.
[Emphasis added.]

[70]

This
    is not a case like
Calnen
, in which the majority found that the
    failure to object was motivated by tactical considerations: at para. 67. See
    also
R. v. M.R.S
.
, 2020 ONCA 667, at para. 74. The appellant
    was entitled to have the jury properly instructed that it could make no use of
    this highly prejudicial bad character evidence:
R. v. B.(F.F.)
, [1993]
    1 S.C.R. 697, at pp. 733.

[71]

A trial
    judges duty to act as a gatekeeper is not displaced where counsel fails to
    object, or fails to assist the court in dealing with highly prejudicial
    evidence:
B. (F.F.)
, at pp. 735-36;
M.R.S
.
, at para.
    74. There is a heightened need to take appropriate action to preserve or
    restore trial fairness. This did not happen in this case, and the appellants
    right to a fair trial was compromised as a result.

[72]

I
    would allow the appeal on this ground.

D.

other bad character evidence

[73]

In
    addition to the Hells Angels evidence, the appellant submits that the trial
    judge erred in admitting the evidence of an intercepted conversation between
    the appellant and Tina, a woman with whom he was in a relationship. He submits
    that this intercept was rife with bad character evidence, tending to suggest
    that the appellant: had close connections to the drug world; had accumulated a
    wealth of knowledge of the inner-workings of the criminal justice system; and
    could draw on that knowledge to game the system.

(1)

Factual Overview

[74]

The
    intercepted conversation portrayed the appellant as someone who was deeply
    enmeshed in the criminal milieu. For example: the appellant told Tina a story
    about a drug dealer they knew getting knifed; Tina spoke about an individual
    who she believed to be a rat; they discussed the drug charges facing Tina and
    her friend; Tina expressed the belief that she was being watched by the police;
    and they remarked on the fentanyl charges facing Tinas friend, as well as the
    street value of fentanyl. The intercepts also suggested that the appellant was
    well-versed in criminal procedure. The appellant and Tina commented on bail
    conditions, sentencing ranges, and credit for pre-sentence custody.

[75]

Additionally,
    the intercepted conversation revealed that the appellant and Tina had given
    considerable thought to defence strategies that a person might turn to in the
    event that they were charged with drug offences. An example of this arose when
    Tina was discussing the drug charges facing her and her friend. Tina protested
    her innocence and wondered if the charges against her were strategic. Tina
    seemed to operate under the assumption that, had she not been charged, her
    friend could point the finger her way at trial and Tina could come forward and
    claim possession without risking criminal impunity. This led to the following
    exchange:

Cook: Well that could happen too right cuz like they don't 
    charge they charge her and don't charge you's then come trial time you can come
    forward and say it was all yours  and then they can't charge cuz it's too late
    yeah.

Tina:  Yeah so they're obviously just covering their bases.

Cook: Fucked up.

Tina:  Yep.

[76]

In
    further discussions about people facing drug charges, the appellant referred to
    a man and a woman and said, "Yeah but she buried shit on his side didn't
    she?" Tina responded: "She did last time too. As I will return to
    shortly, the Crown seized on this passage to infer that the buried cocaine
    cannister was indeed in the appellants possession.

[77]

Defence
    counsel expressed concerns at the pre-charge conference about how the Crown
    might use this evidence, referring to it as "sort of bad character."
    The trial judge said that he would leave it as a question mark and see how the
    Crown relied on this evidence in his closing. He declined to place any limits
    on the Crown.

[78]

Defence
    counsel's concerns were well founded. The Crown placed great reliance on this
    conversation, liberally quoted from it, and provided a running commentary about
    what certain passages meant. He reminded the jury that the transcript of this
    conversation would be in the exhibit book and available for them to review
    while they deliberated.

[79]

The Crown
    relied on this evidence to defeat the appellant's defence to the cocaine
    charge. After quoting the "buried shit on his side" excerpt, the
    Crown said: "Very curious comment by Blake Cook in this case when we're
    dealing with a buried canister of cocaine."

[80]

With
    respect to the exchange about an uncharged person coming forward to claim
    possession of seized drugs, the Crown told the jury:

And I submit that's one of the defence arguments that you heard
    yesterday. Maybe it was this unknown female who may have been living in the
    house with him. Maybe she's the one that planted the cocaine in the backyard.
    Maybe it was his brother, Lance Cook, across the street who planted the, the cocaine.
    So he's pointing the finger at other people.

And we know from this intercept that Blake Cook knows the
    system. He knows how this works, right?
If we don't charge everybody in the
    house, then one person's going to come forward and say it's all mine or the
    owner  of the house is going to  say, well maybe it's somebody else's in the
    house. So that that's a curious intercept, given the facts, that we're dealing
    with here. [Emphasis added.]

[81]

The
    Crown repeated this theme. He later told the jury that the appellant
    "knows the game" and repeated the assertion that "he knows the
    system."

[82]

The
    trial judge referred to these intercepts in his charge to the jury but provided
    no limiting instruction on the permissible uses of this evidence.

(2)

Positions of the Parties

[83]

The
    appellant submits that the intercept invited further propensity reasoning:
    namely, that the appellant was more likely to be a drug dealer because he had
    associates facing drug charges and he knew about the criminal justice system.
    The Crown essentially urged this position on the jury. Moreover, the appellant
    submits that the Crown used this evidence to improperly undermine the
    appellants defence. In conjunction with the biker evidence, the Crown attempted
    to characterize his defence as a game or a ploy in the drug underworld, used to
    undermine a legitimate prosecution. Lastly, the appellant argues that the
    comparison the Crown drew between the scenario discussed in the intercept and
    his defence at trial was inapt because no one came forward to claim ownership
    of the drugs at trial.

[84]

For
    the respondent, the intercept did not show propensity of any kind. Rather, the
    respondent submits that the intercept was probative of the manner in which the
    appellant organizes his illicit activities. Further, the respondent argues
    that the intercept provided context for the Crowns theory regarding the buried
    cannister of cocaine and undermined the appellants attempts to attribute
    possession to others.

(3)

Analysis

[85]

In
    my view, while portions of this intercept may have been relevant to rebut the
    appellant's position that the cocaine belonged to someone else, the Crown
    exaggerated the similarity of this aspect of the intercepted conversation to
    the evidence in this case. In fact, nobody came forward at the appellant's
    trial to claim responsibility for burying the canister of cocaine.

[86]

However,
    the Crown attempted to put this evidence to much greater use, in a way that was
    unfair. As he said in his closing address, the intercept showed the appellant
    as knowledgeable of "the system", "how things work", and "the
    game". On appeal, the Crowns characterization of these intercepted
    communications as probative of the manner in which the appellant organizes his
    illicit activities proves the appellants point. This is essentially a
    definition of propensity reasoning  evidence of the appellants general
    criminal proclivities assists in proof of the offences in this case.

[87]

The
    intercepted conversation suggested that the appellant was knowledgeable of
    fentanyl, a notoriously dangerous drug that had nothing to do with the charges
    he faced. It painted the appellant as someone with broad knowledge of the
    criminal justice system. As with the Hells Angels evidence, the conversation
    portrayed the appellant as a person of bad character who associates with other
    criminals, in this instance Tina.
[3]
This type of guilt-by-association evidence is inadmissible. As Doherty J.A.
    said in
R. v. Ejiofor
, (2002) 156 O.A.C. 147 (C.A.), at para. 8:
    "People can only be convicted for what they do, not for the company they
    keep." Similarly, in
R. v. Tash
, 2013 ONCA 380, 306 O.A.C. 173, Watt
    J.A. said, at para. 58: [W]e insist that guilt be proven by evidence of what an
    accused did and said, not because of the type of  person the accused is, or the
    lifestyle he or she chooses.

[88]

The
    trial judge did not caution the jury not to draw impermissible inferences from
    this intercepted conversation, nor was he asked to do so. Nonetheless, it was
    imperative that the jury be properly guided in how they approached this
    evidence, especially given the Crowns rhetorical excess in his closing
    address. For the same reasons given above in relation to the biker evidence,
    the failure to request a cautionary instruction was not fatal.

[89]

I
    would also give effect to this ground of appeal.

E.

inadmissible opinion evidence

[90]

Turning
    to the final ground of appeal, the appellant submits that the Crown adduced
    inadmissible opinion evidence from a police officer that ran afoul of the
    principles in
Sekhon
. I agree.

(1)

Factual Overview

[91]

With
    defence counsels consent, the trial judge permitted Detective Constable
    Brandon Kubels to give opinion evidence relating to steroids and cocaine. In
    particular, he testified about the use and consumption of both substances,
    their sale and distribution, prices and value, and the language or drug slang
    used for these substances. This ground of appeal relates to his testimony about
    steroids.

[92]

When
    the police executed the search warrant at the appellants home, they seized
    1,721 steroid pills and 36 vials of liquid steroids. At trial, the Crown
    essentially conceded that 721 steroid pills and 16 vials of liquid steroids
    could have been for personal use. The question was whether the remaining 1000
    pills and 20 vials were possessed for personal use, or for the purposes of
    trafficking.

[93]

In the
    course of D.C. Kubels testimony, the Crown adduced the following evidence:

Q. So in your experience sir, have you seen people  my word 
    stockpile pills to use over a year?

A. No, I have not, not for personal use.

. . .

Q. And in your experience sir, have you seen someone stockpile
    20 vials of those substances for personal use?

A. No, I have never seen that with a personal use.

[94]

The
    trial judge reviewed this evidence in his charge to the jury. He said: [D.C.
    Kubels] examined all the evidence about what had been recovered and he said
    that he had never seen anyone stockpile that much for personal use.

(2)

R. v. Sekhon

[95]

This
    testimony is similar to the impugned evidence in
Sekhon
. Mr. Sekhon
    was charged with importing cocaine and possession of cocaine for the purpose of
    trafficking. He drove across the Canada-U.S. border in a truck that contained a
    hidden compartment, in which the police found 50 kg of cocaine.

[96]

The
    Crown relied upon the evidence of a police officer who was qualified as an
    expert witness on the customs and practices of the drug trade. During his
    testimony, the following exchange took place:

Q. Officer, you described earlier that youve been involved in
    approximately 1,000 investigations involving the importation of cocaine over
    your 33-year career?

A.  That is correct, Your Honour, yes.

Q.  In approximately how many of those investigations were you
    able to determine that the person importing the cocaine did not know about the
    commodity that they were importing?

A.   I have never encountered it, personally.

Q.   Have you ever heard of a -- the use of a blind courier or
    a courier who doesnt know about the commodity that he is driving?

A.   I -- Ive certainly heard that argument being raised on --
    on occasion, primarily in court, not during my investigations.

[97]

This
    evidence played an important role in the trial judges path to conviction. The
    British Columbia Court of Appeal dismissed the appeal:
R. v. Sekhon
, 2012
    BCCA 512, 331 B.C.A.C. 170. In dissent, Newbury J.A. would have allowed the appeal
    based on the admission of the testimony reproduced above. In doing so, she made
    the following observation at para. 27:

Anecdotal evidence of this kind is just that  anecdotal. It
    does not speak to the particular facts before the Court, but has the superficial
    attractiveness of seeming to show that the probabilities are very much in the
    Crowns favour, and of coming from the mouth of an expert. If it can be said
    to be relevant to the case of a particular accused, it is also highly
    prejudicial.

[98]

On
    appeal to the Supreme Court of Canada, all judges agreed that the evidence was
    inadmissible. However, a majority of the Court applied the curative proviso in
    s. 686(1)(b)(iii) of the
Criminal Code

and dismissed the
    appeal.

[99]

Writing
    for the majority, Moldaver J. evaluated the admissibility of the evidence
    within the framework developed in
R. v. Mohan
, [1994] 2 S.C.R. 9, at
    pp. 20-25;
R. v. J.-L.J
.
, 2000 SCC 51, [2000] 2 S.C.R. 600; and
R. v. D.D
.
, 2000 SCC 43, [2000] 2 S.C.R. 275. Namely, to be
    admissible, expert evidence depends on (1) relevance; (2) necessity in
    assisting the trier of fact; (3) the absence of any exclusionary rule; and (4)
    a properly qualified expert:
Sekhon
, at para. 43. See also
White
    Burgess Langille Inman v. Abbott and Haliburton Co
.
, 2015 SCC 23,
    [2015] 2 S.C.R. 182, at para. 19.

[100]

The impugned evidence
    in
Sekhon
foundered on the relevance and necessity criteria. Moldaver
    J. held that, although the evidence may have been
logically
relevant,
    it was not
legally
relevant because the guilt or innocence of accused
    persons that [the expert] had encountered in the past is legally irrelevant to
    the guilt or innocence of Mr. Sekhon. He also noted that: [A] fundamental
    tenet of our criminal justice system is that the guilt of an accused cannot be
    determined by reference to the guilt of other, unrelated accused persons: at para.
    49. As Watt J.A. explained in
R. v. Burnett
, 2018 ONCA 790, 367 C.C.C.
    (3d) 65, at para. 75: What
Sekhon
enjoins is evidence that invites a
    trier of fact to reason from a generalized conclusion based on prior experience
    to a specific state of mind of the person charged.

[101]

Moreover, in terms of
    necessity, Moldaver J. held that the issue of whether Mr. Sekhon knew about the
    drugs is not beyond the knowledge and experience of the judge, and it is
    certainly not a matter that is technical or scientific in nature: at para. 49.

[102]

In addition to
    considerations of relevance and necessity, Moldaver J. discussed the potential
    prejudicial impact of the impugned evidence. After quoting from the excerpt of
    Newbury J.A.s judgment (see para. 97, above), he said at para. 50:

This type of anecdotal evidence would appear to require the
    accused to somehow prove that, regardless of a particular experts past
    experience, the accuseds situation is different. Such a result is contrary to
    another fundamental tenet of our criminal justice system  that it is
the
    Crown
that bears the burden of proving the
mens

rea
of an
    offence beyond a reasonable doubt.

[103]

In
Sekhon
, as

in the case at hand, the evidence of the experts focused on the
mens
    rea
of the drug offences. In
Sekhon
, the officer testified about
    the knowledge of a courier; in this case, with knowledge conceded, the officer testified
    about the purpose for which the steroids were possessed. Courts have applied
Sekhon
in this latter context to find similar anecdotal evidence inadmissible. For
    example, in
R. v. Chung
, 2018 SKCA 70, the court held that it was
    improper for an officer to give an opinion that he had never seen a cocaine
    user possess two ounces just for personal use. In
R. v. Tennant
, 2019
    ONCA 264, at para. 3, this court held that an experts statement  I havent
    encountered users yet that would have that much heroin  was improper.

[104]

As in
Sekhon
,
    D.C. Kubels evidence invited the jury to assess the appellants guilt in light
    of other, unrelated accused persons. Thus, while it was logically relevant, it
    was not legally relevant.

[105]

The concerns expressed
    in
Sekhon
about prejudice were also active in this case. The evidence
    of D.C. Kubels invited the appellant to prove that his case was different from
    all of the others investigated by the officer; in other words, that he was
    actually stockpiling the steroids for personal use. In fact, all the appellant
    had to do was raise a reasonable doubt. The anecdotal opinion of D.C. Kubels
    blurred this critical distinction. The Crown should not have asked the officer
    the questions that elicited this evidence. Additionally, the trial judge ought
    to have told the jury not to consider this aspect of his evidence: see
Sekhon
,
    at para. 48;
Burnett
, at para. 68.

[106]

Defence counsel did
    not object to the admission of this evidence, nor did he ask the trial judge to
    deal with it in his charge to the jury. Again, this is not necessarily fatal.
    In
Sekhon
, at para. 48, Moldaver J. observed that it is foreseeable
    that defence counsel may fail to object to the testimony at the time the
    problematic statements are made.

[107]

That is what happened
    in this case. Almost imperceptibly, the opinion evidence crossed the line into
    impermissible territory. In the moment, it is understandable that no one
    noticed. However, it ought to have been caught when it came time to instruct
    the jury. Instead, the mistake was repeated. I accept the appellants
    submission that this testimony compromised the appellants right to a fair
    trial on the steroids count by requiring him to somehow prove that, regardless
    of a particular experts experience, [his] situation is different:
Sekhon
,
at para. 50.

[108]

I would allow the
    appeal on this ground.

F.

The Curative proviso does not apply

[109]

The respondent submits
    that, if this court finds that there was an error in relation to the Hells
    Angels evidence, the court should apply the proviso in s. 686(1)(b)(iii) of the
Code
. The respondent contends that the case against the appellant was
    overwhelming and the impugned evidence formed only a small part of the trial
    evidence that the jury heard.

[110]

I would decline to
    apply the proviso. Although the admission of inadmissible evidence and the
    failure to properly instruct a jury are often characterized as errors of law,
    in this case the appellant submits that the conduct of the trial amounted to a
    miscarriage of justice, within the meaning of s. 686(1)(a)(iii). In these
    circumstances, s. 686(1)(b)(iii) does not apply:
R. v. Fanjoy
, [1985]
    2 S.C.R. 233, at pp. 239-240.

[111]

Whether characterized
    as a series of legal errors or as a cumulative miscarriage of justice, this is
    not an appropriate case to apply the curative proviso. The impugned evidence
    was very damaging and the accompanying caution was inadequate. Although the case
    against the appellant was formidable, it was not overwhelming. Even if the
    evidence could be characterized as overwhelming, the appellant was entitled to
    verdicts based on a fair trial, not one in which his character was repeatedly
    smeared.

[112]

The respondent made no
    submissions about the application of the proviso to the grounds of appeal
    concerning the Tina intercept, or the
Sekhon
error. This court has
    held that, in the absence of such a request, it is not appropriate to apply the
    proviso: see
R. v. P.G
.,
2017 ONCA 351, 138 O.R. (3d) 34, at
    paras. 13-16. The resolution of this issue is of little consequence, given my
    conclusion relating to the Hells Angels evidence. In any event, I would decline
    to apply the proviso to these other two grounds of appeal. The Tina intercept,
    along with the inadmissible opinion evidence, contributed to the unfairness of
    this trial.

G.

Conclusion and disposition

[113]

I would allow the
    appeal from convictions and order a new trial. It is unnecessary to consider
    the appeal from sentence.

Released: DB November 17, 2020

Gary Trotter J.A.

I agree. David Brown J.A.

I agree. David M. Paciocco J.A.





[1]

None of the counsel on this appeal were counsel at trial.



[2]

Prosecutions against other individuals arose from Project
    Batlow, but the appellant was not part of them.



[3]

There was no evidence that confirmed whether Tina had a
    criminal record, or what happened to the charge she spoke about during the
    intercepted communication.


