Her Majesty the Queen v. Dawkins, 2021 ONCA 113

Her Majesty the Queen v. Dawkins

[Indexed as: R. v. Dawkins]

Ontario Reports

Court of Appeal for Ontario

Fairburn A.C.J.O., Jamal and Coroza JJ.A.

February 23, 2021

155 O.R. (3d) 111 | 2021 ONCA 113

Case Summary

Criminal law — Appeal — Proviso — Trial judge instructing jury that guilty plea of co-accused to charges of importing cocaine and conspiracy to import meant that jury had to accept fact of conspiracy and that co-accused was a member of it — Trial judge instructing jury that evidence of what known or probable members of conspiracy said or did could be considered when determining whether accused was part of conspiracy — Accused convicted of conspiracy and importing — Appeal from importing conviction dismissed and appeal from conspiracy conviction allowed — Trial judge erred in both instructions creating unfair trial on conspiracy charge — Appeal focused on conspiracy count and overwhelming evidence on importing count — Jury would not have inevitably convicted of conspiracy despite errors — Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iii).

Criminal law — Conspiracy — Charge to jury — Trial judge instructing jury that guilty plea of co-accused to charges of importing cocaine and conspiracy to import meant that jury had to accept fact of conspiracy and that co-accused was a member of it — Trial judge instructing jury that they could consider evidence about what known or probable members of conspiracy said or did could be considered when determining whether accused was part of conspiracy — Accused convicted of conspiracy and importing — Appeal from importing conviction dismissed and appeal from conspiracy conviction allowed — Trial judge erred in both instructions rendering trial unfair on conspiracy count — Appeal focused on conspiracy count and overwhelming evidence regarding importing count — New trial ordered on conspiracy charge.

Shortly after the arrival of a flight from St. Maarten to Toronto, two bricks of cocaine were found in a men's washroom located just before the primary inspection area at Toronto Pearson International Airport. The bricks appeared to have fallen from the ceiling above one of the washroom stalls. Another 16 bricks were found in the ceiling above that stall the following day. The accused and another individual, S, had been passengers on the flight and video surveillance footage showed them entering and leaving the washroom where the cocaine was discovered. Their fingerprints were found on the packages. Both men were indicted on charges of importing and conspiracy to import cocaine. S pled guilty to the conspiracy count. The accused had a jury trial. An agreed statement of facts entered as an exhibit referred to S's guilty plea. The trial judge instructed the jury that as a consequence of the plea, they had to accept as fact that there was a conspiracy to import cocaine between June 1 and June 16, 2013, and that S was part of the conspiracy. The trial judge also instructed the jury that in determining whether the accused was part of the conspiracy to which S pleaded guilty, they could consider not only the things that the accused said and did, but also what other known or probable members of the conspiracy said or did. The accused was convicted on both counts and sentenced to nine and a half years. The accused appealed his convictions. [page112]

Held, the appeal should be allowed in part.

The trial judge erroneously instructed the jury on the use they could make of the guilty plea. Proof of conspiracy involved three essential components: an agreement between two or more persons, pursuit of a common unlawful object, and a voluntary decision to join in the agreement to achieve the common unlawful object. The trial judge instructed the jury to forgo consideration of the first two elements based on S's guilty plea, which established nothing in relation to alleged co-actors such as the accused. The guilty plea was not admissible to prove the facts underlying the plea, but that was how S's plea was used against the accused. Although the trial judge correctly instructed the jury that the accused was entitled to separate consideration of the evidence applying to him, that instruction was immediately overtaken by the instruction that the jury had to accept as proven that the first two elements of conspiracy had been made out. Unfortunately, defence counsel did not object to the instruction. However, it was not a case where the failure to register a complaint signalled the inconsequential nature of an error.

The trial judge erroneously instructed the jury on how to approach their deliberative process involving the essential element of membership. The Supreme Court of Canada decision of R. v. Carter required an instruction involving three cascading steps. The first step was to establish whether the alleged conspiracy existed. If so, then the trier of fact proceeded to consider on a balance of probabilities whether the accused was a member of the conspiracy. If so, then the trier of fact would determine whether the accused's membership in the conspiracy had been proven beyond a reasonable doubt, considering all the evidence including the acts and declarations of other alleged conspirators. The trial judge erred by skipping the first two steps. The error regarding the first step was already considered in the reasons regarding the erroneous use of the guilty plea. A draft jury charge contained a correct Carter instruction on stage two, but the trial Crown convinced the trial judge that the stage two instruction was unnecessary because it was required only when the acts and declarations of other alleged conspirators were admitted for a hearsay purpose. However, the Carter instruction served a broader purpose than just protecting the accused against hearsay. Declarations and acts of others were not generally admissible against an accused, so before allowing otherwise inadmissible evidence, there had to be proof of the accused's probable membership in the conspiracy based only on evidence directly admissible against the accused. The trial judge's failure to instruct the jury on probable membership created a serious issue of fairness that compounded the initial erroneous instruction regarding use of the guilty plea. The combined effect of those instructions was to leave the jury thinking that they had to accept that S was a member of a conspiracy to import cocaine and that his acts and declarations, as well as those of other probable members of the conspiracy, could be used in determining whether the accused was also a member. Again, defence counsel did not object, but the greater the error and the closer it was to a central issue, the less likely a counsel's position would inform the result. The jury was not properly equipped to decide the case on conspiracy.

Application of the curative proviso from s. 686(1) (b)(iii) of the Criminal Code resulted in the importing conviction being upheld. Applying the proviso to serious errors required the case to rise to the level where the evidence was so overwhelming that a trier of fact would inevitably convict. The entire appeal was argued with a singular focus on the conspiracy count. There was a sea of overwhelming evidence pointing toward the accused's guilt on the importing offence, none of which rested on credibility findings. On the other hand, while the Crown's case on the conspiracy count was powerful, questions of credibility were squarely in play and it could not be said that a jury would inevitably convict. The appeal on the importing count was dismissed. The conviction on conspiracy was set aside and a new trial ordered. [page113]

R. v. Carter, 1982 35 (SCC), [1982] 1 S.C.R. 938, [1982] S.C.J. No. 47, 137 D.L.R. (3d) 385, 47 N.R. 288, J.E. 82-660, 46 N.B.R. (2d) 142, 67 C.C.C. (2d) 568, 31 C.R. (3d) 97, 8 W.C.B. 55, 1982 CCAN para. 10,005, apld

R. v. Baron (1976), 1976 775 (ON CA), 14 O.R. (2d) 173, [1976] O.J. No. 2304, 73 D.L.R. (3d) 213, 31 C.C.C. (2d) 525 (C.A.), consd

Other cases referred to

R. v. Bailey, [2016] O.J. No. 3508, 2016 ONCA 516, 131 W.C.B. (2d) 450, 339 C.C.C. (3d) 463, 351 O.A.C. 141; R. v. Barrow, 1987 11 (SCC), [1987] 2 S.C.R. 694, [1987] S.C.J. No. 84, 45 D.L.R. (4th) 487, 81 N.R. 321, J.E. 88-71, 87 N.S.R. (2d) 271, 38 C.C.C. (3d) 193, 61 C.R. (3d) 305, 3 W.C.B. (2d) 205, 1987 CCAN para. 10,035; R. v. Bevan (1993), 1993 101 (SCC), 13 O.R. (3d) 452, [1993] 2 S.C.R. 599, [1993] S.C.J. No. 69, 104 D.L.R. (4th) 180, 154 N.R. 245, J.E. 93-1203, 64 O.A.C. 165, 82 C.C.C. (3d) 310, 21 C.R. (4th) 277, 20 W.C.B. (2d) 131, 1993 CCAN para. 10,027; R. v. Caesar, [2016] O.J. No. 4007, 2016 ONCA 599, 339 C.C.C. (3d) 354, 350 O.A.C. 352; R. v. Calnen, [2019] 1 S.C.R. 301, [2019] S.C.J. No. 6, 2019 SCC 6, 430 D.L.R. (4th) 471, 374 C.C.C. (3d) 259, 53 C.R. (7th) 225, 2019EXP-338; R. v. Chang, 2003 29135 (ON CA), [2003] O.J. No. 1076, 170 O.A.C. 37, 173 C.C.C. (3d) 397, 9 C.R. (6th) 304, 57 W.C.B. (2d) 19 (C.A.); R. v. Daley, [2007] 3 S.C.R. 523, [2007] S.C.J. No. 53, 2007 SCC 53, 288 D.L.R. (4th) 1, 369 N.R. 225, [2008] 1 W.W.R. 1, J.E. 2008-30, 302 Sask. R. 4, 226 C.C.C. (3d) 1, 52 C.R. (6th) 221, 75 W.C.B. (2d) 727, EYB 2007-127250, 2007 CCAN para. 10,081; R. v. Desgroseilliers, [1986] O.J. No. 112, 13 O.A.C. 225 (C.A.) [Leave to appeal to S.C.C. refused (1986), 74 N.R. 320n, 21 O.A.C. 236n]; R. v. Filiault, 1984 3615 (ON CA), [1984] 1 S.C.R. 387, [1984] S.C.J. No. 20, 52 N.R. 321, 3 O.A.C. 155, 15 C.C.C. (3d) 352, 13 W.C.B. 31, affg 1981 3165 (ON CA), [1981] O.J. No. 132, 52 N.R. 321, 3 O.A.C. 155, 63 C.C.C. (2d) 321 (C.A.); R. v. Jacquard, 1997 374 (SCC), [1997] 1 S.C.R. 314, [1997] S.C.J. No. 21, 143 D.L.R. (4th) 433, 207 N.R. 246, J.E. 97-457, 157 N.S.R. (2d) 161, 113 C.C.C. (3d) 1, 4 C.R. (5th) 280, 33 W.C.B. (2d) 348, 1997 CCAN para. 10,020; R. v. Lucas (2014), 121 O.R. (3d) 303, [2014] O.J. No. 3471, 2014 ONCA 561, 321 O.A.C. 199, 313 C.C.C. (3d) 159, 317 C.R.R. (2d) 314, 114 W.C.B. (2d) 700 [Leave to appeal to S.C.C. refused [2014] S.C.C.A. No. 460]; R. v. Mapara, [2005] 1 S.C.R. 358, [2005] S.C.J. No. 23, 2005 SCC 23, 251 D.L.R. (4th) 385, 332 N.R. 244, [2005] 6 W.W.R. 203, J.E. 2005-855, 211 B.C.A.C. 1, 40 B.C.L.R. (4th) 203, 195 C.C.C. (3d) 225, 28 C.R. (6th) 1, 65 W.C.B. (2d) 43, JCPQ 2005-89; R. v. Papalia, 1979 38 (SCC), [1979] 2 S.C.R. 256, [1979] S.C.J. No. 47, 93 D.L.R. (3d) 161, 26 N.R. 133, 45 C.C.C. (2d) 1, 7 C.R. (3d) 185, 11 C.R. (3d) 150, 3 W.C.B. 205; R. v. Puddicombe, [2013] O.J. No. 3507, 2013 ONCA 506, 308 O.A.C. 70, 299 C.C.C. (3d) 543, 5 C.R. (7th) 31, 108 W.C.B (2d) 650 [Leave to appeal to S.C.C. refused [2013] S.C.C.A. No. 496]; R. v. Rodgerson, [2015] 2 S.C.R. 760, [2015] S.C.J. No. 38, 2015 SCC 38, 390 D.L.R. (4th) 1, J.E. 2015-1202, 334 O.A.C. 1, 327 C.C.C. (3d) 287, 21 C.R. (7th) 1, 125 W.C.B. (2d) 456, EYB 2015-254488, 2015 CCAN para. 10,034, 2015 CCAN para. 10,087, 2015EXP-2158; R. v. S. (P.L.), 1991 103 (SCC), [1991] 1 S.C.R. 909, [1991] S.C.J. No. 37, 122 N.R. 321, J.E. 91-835, 90 Nfld. & P.E.I.R. 234, 64 C.C.C. (3d) 193, 5 C.R. (4th) 351, 12 W.C.B. (2d) 705, 1991 CCAN para. 10,019; R. v. Satkunananthan, 2001 24061 (ON CA), [2001] O.J. No. 1019, 143 O.A.C. 1, 152 C.C.C. (3d) 321, 42 C.R. (5th) 220, 81 C.R.R. (2d) 285, 49 W.C.B. (2d) 313 (C.A.); R. v. Trochym, [2007] 1 S.C.R. 239, [2007] S.C.J. No. 6, 2007 SCC 6, 276 DLR (4th) 257, 357 N.R. 201, J.E. 2007-279, 221 O.A.C. 281, 216 C.C.C. (3d) 225, 43 C.R. (6th) 217, 71 W.C.B. (2d) 895, EYB 2007-113047; R. v. Tsekouras, [2017] O.J. No. 1768, 2017 ONCA 290, 353 C.C.C. (3d) 349, 378 C.R.R. (2d) 243, 139 W.C.B. (2d) 144 [Leave to appeal to S.C.C. refused [2017] S.C.C.A. No. 225]; R. v. V. (R.), [2019] S.C.J. No. 41, 2019 SCC 41, 440 C.R.R. (2d) 159, 378 C.C.C. (3d) 193, 436 D.L.R. (4th) 265, 55 C.R. (7th) 297; R. v. Van, [2009] 1 S.C.R. 716, [2009] S.C.J. No. 22, 2009 SCC 22, 308 D.L.R. (4th) 385, 388 N.R. 200, J.E. 2009-1030, 251 O.A.C. 295, 245 C.C.C. (3d) 147, 65 C.R. (6th) 193, EYB 2009-159382; R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, [page114] [1991] S.C.J. No. 26, 122 N.R. 277, J.E. 91-603, 46 O.A.C. 352, 63 C.C.C. (3d) 397, 3 C.R. (4th) 302, 12 W.C.B. (2d) 551, EYB 1991-67602, 1991 CCAN para. 10,012; R. v. Yumnu, [2012] 3 S.C.R. 777, [2012] S.C.J. No. 73, 2012 SCC 73, 274 C.R.R. (2d) 1, 290 C.C.C. (3d) 323, 104 W.C.B. (2d) 753, 297 O.A.C. 257, 437 N.R. 289, 2013EXP-49, J.E. 2013-27, EYB 2012-215684, 356 D.L.R. (4th) 381, 98 C.R. (6th) 44, 104 W.C.B. (2d) 753, affg [2010] O.J. No. 4163, 2010 ONCA 637, 269 O.A.C. 48, 260 C.C.C. (3d) 421, 90 W.C.B. (2d) 298; United States of America v. Dynar (1997), 1997 359 (SCC), 33 O.R. (3d) 478, [1997] 2 S.C.R. 462, [1997] S.C.J. No. 64, 147 D.L.R. (4th) 399, 213 N.R. 321, J.E. 97-1400, 101 O.A.C. 321, 115 C.C.C. (3d) 481, 8 C.R. (5th) 79, 44 C.R.R. (2d) 189, 35 W.C.B. (2d) 8, 1997 CCAN para. 10,042

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 465(1) [as am.], 686(1)(b)(iii)

Authorities referred to

Watt, David, Watt's Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015)

APPEAL from convictions entered by Petersen J. of the Superior Court of Justice, sitting with a jury, on November 23, 2018, for importing cocaine and conspiracy to import.

Brad Greenshields, for appellant.

Tanit Gilliam, for respondent.

The judgment of the court was delivered by

FAIRBURN A.C.J.O.: —

A. Overview

1On June 16, 2013, shortly after the arrival of a flight from St. Maarten to Toronto, two bricks of cocaine were found in a men's washroom located just before the primary inspection area at Toronto Pearson International Airport. The bricks appeared to have fallen from the ceiling above one of the washroom stalls. Another 16 bricks were found in the ceiling above that stall the following day. The cocaine weighed 17.3432 kilograms in total.

2Both the appellant and Marvis Samuel had been passengers on the flight to Toronto from St. Maarten. Shortly after the flight arrived, video surveillance footage showed them entering and leaving the washroom where the cocaine was later discovered. They were moving in close succession. Four of the appellant's and one of Mr. Samuel's fingerprints were found on the packages of cocaine discovered in the washroom.

3Both men were indicted on importing and conspiracy to import cocaine charges. Prior to their trial, Mr. Samuel pleaded guilty to the conspiracy count and was deported from Canada. [page115]

4The appellant was eventually tried before a judge and jury. He was convicted on both counts and received a nine-year and six-month sentence on the importing count and the same concurrent sentence on the conspiracy count.

5This is an appeal from convictions only. The appellant's objections rest exclusively with the jury charge. I would group his objections into two overarching categories, both of which arise in the context of the trial judge's jury instructions on the conspiracy count:

(a) that the jury was erroneously instructed on the use they could make of Mr. Samuel's guilty plea; and

(b) that the jury was erroneously instructed on the use that could be made of the acts and declarations of alleged co-conspirators, including Mr. Samuel's acts and declarations.

6As I will explain, both of these errors were made. As I will further explain, despite these errors, this was an overwhelming Crown case on the importing count and, therefore, I would uphold the conviction for importing a controlled substance by applying the curative proviso under s. 686(1) (b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46.

A. Issue one: Using the Samuel guilty plea as proof of the conspiracy

(i) Overview

7The essence of a criminal conspiracy is an agreement to pursue an unlawful object. It is a preliminary crime where the Crown has to prove that there was a meeting of the minds between at least two people -- the co-conspirators' minds -- to pursue an unlawful object: United States of America v. Dynar, 1997 359 (SCC), [1997] 2 S.C.R. 462, [1997] S.C.J. No. 64, at para. 87; Criminal Code, s. 465(1). As Dickson J. (as he then was) helpfully explained over 40 years ago now in R. v. Papalia, 1979 38 (SCC), [1979] 2 S.C.R. 256, [1979] S.C.J. No. 47, at p. 276 S.C.R., the crime of conspiracy is well named, deriving as it does from the Latin words con and spirare, meaning "to breathe together".

8Therefore, proof of a conspiracy involves three essential components: (a) there was an agreement between two or more persons; (b) the purpose of that agreement was to pursue a common unlawful object; and (c) the accused was a member of that conspiracy, meaning that he or she had knowledge of the unlawful nature of the agreement and made a voluntary and intentional decision to join in the agreement to achieve the common unlawful object. [page116]

9In this case, the jury was instructed to forgo consideration of the first two essential elements of conspiracy: whether there was an agreement between two or more persons; and, if so, whether the agreement was to pursue a common unlawful object. Instead, the jury was instructed that, because Mr. Samuel had pleaded guilty to conspiracy, they were required to accept as a proven fact that those two elements had been proven beyond a reasonable doubt.

10The source of this instruction appears to have been an Agreed Statement of Facts, entered as the first exhibit at trial, which, for reasons that are not entirely clear, included reference to Mr. Samuel's plea of guilt to conspiracy:

On June 8, 2015, Marvis Samuel pled guilty to conspiracy to importing cocaine, in the amount of 17.3432 kilograms, into Canada between June 1st and June 16th, 2013, both dates inclusive, contrary to s. 6(1) of the Controlled Drugs and Substances Act and s. 465(1)(c) of the Criminal Code of Canada.

11The fact of Mr. Samuel's guilty plea resulted in the trial judge instructing the jury that they must "accept as fact" the following things: (a) that there was a conspiracy between two or more people; (b) that the conspiracy was to import 17.3432 kilograms of cocaine into Canada; (c) that the conspiracy lasted between June 1 and 16, 2013; and (d) that Mr. Samuel was a member of that conspiracy. The impugned instruction reads as follows:

It is an agreed fact (Exhibit 1) that Mr. Samuel pled guilty to conspiracy to import 17.3432 kilograms of cocaine into Canada between June 1 and June 16, 2013. The Crown therefore is not required to prove the first two essential elements of the conspiracy offence. You must accept as fact that there was a conspiracy between two or more persons to import cocaine into Canada between June 1 and June 16, 2013. You must also accept as fact that Mr. Samuel was part of the conspiracy.

(Emphasis added)

12For the reasons that follow, I conclude this was an erroneous instruction.

(ii) A guilty plea does not form proof of the offence

13A co-actor's guilty plea is proof of nothing other than that the pleader was arraigned, pleaded guilty to the offence and that there was some evidence to support that plea: R. v. Caesar, [2016] O.J. No. 4007, 2016 ONCA 599, 339 C.C.C. (3d) 354, at paras. 55, 59. It is an actual admission of guilt against the pleader only. To be clear, it establishes nothing in relation to alleged co-actors.

14The crime of conspiracy is not exempt from this rule. It is well established that the guilty plea of one alleged co-conspirator cannot be used to establish the guilt of another. In a comment [page117] particularly apposite to this case, Watt J.A. said in Tsekouras: "The pleas of guilty or convictions of other alleged co-conspirators are not admissible to prove the existence or fact of the conspiracy in the trial of another or other alleged co-conspirators": R. v. Tsekouras, [2017] O.J. No. 1768, 2017 ONCA 290, 353 C.C.C. (3d) 349, at para. 177, leave to appeal to S.C.C. refused [2017] S.C.C.A. No. 225. See also R. v. Desgroseilliers, [1986] O.J. No. 112, 13 O.A.C. 225 (C.A.), at para. 29, leave to appeal to S.C.C. refused (1986), 74 N.R. 320n, 21 O.A.C. 236n.

15While there are rare circumstances where the guilty plea of an alleged co-actor may be admissible in the trial of another, the fact of the guilty plea remains of limited use, admissible only to prove the fact of the arraignment and guilty plea: Caesar, at paras. 59, 62. Importantly, even in these rare circumstances, the guilty plea is not admissible to prove the facts underlying the plea. That is precisely how Mr. Samuel's guilty plea was used in this case.

(iii) The erroneous instruction and the parties' positions

16On appeal, the respondent fairly acknowledges that the co-accused's guilty plea to conspiracy should not have determined that there was, in fact, a conspiracy. Despite this concession, the respondent argues that no harm was occasioned by that improper use of the plea because the balance of the Agreed Statement of Facts supported the fact of the existence of the conspiracy and Mr. Samuel's involvement in the conspiracy. I do not agree.

17Aside from the reference to the guilty plea, there is nothing in the agreed-upon facts that speak to a conspiracy. To the contrary, the agreed-upon facts support Mr. Samuel's involvement in the crime of importation, specifically acknowledging that he imported the bricks of cocaine and stored them in the washroom ceiling.

18While this issue may well beg the question as to why the Agreed Statement of Facts referred to the guilty plea, there is no good answer to that question. Importantly, at this stage, it does not matter. The fact is that the actual facts that were agreed upon, and placed before the jury, supported Mr. Samuel's involvement in the crime of importing cocaine into Canada and they supported the fact that he pleaded guilty to a conspiracy. They did not support a conspiracy.

19The respondent also points to two passages in the transcript that are said to demonstrate that the defence accepted as a fact that there was a conspiracy. Leaving aside whether an acknowledgment from counsel, contained in submissions outside [page118] of the jury's presence, could cure this defect, I do not accept that the passages of transcript are as clear as suggested on this point.

20On two separate occasions, the trial judge asked counsel for input as to whether she (the trial judge) was right about the use to be made of Mr. Samuel's guilty plea. I would emphasize at this juncture that the trial judge was right to alert counsel to this issue and request assistance on the point. Unfortunately, she did not receive the assistance she was owed: R. v. Daley, [2007] 3 S.C.R. 523, [2007] S.C.J. No. 53, 2007 SCC 53, at para. 58.

21Although it was undoubtedly a legal misunderstanding on the part of the trial Crown, she did not alert the trial judge to the error in the proposed instruction. Instead, she encouraged the trial judge to stay the course and, essentially, withdraw from the trier of fact consideration of the first two essential elements of conspiracy. As the trial Crown put it:

Mr. Samue[l] pled guilty to a conspiracy to import cocaine for that exact quantity on that exact time frame . . . the exact same -- so to me, there's no question that there was a conspiracy in play and Mr. Samuel was a part of it, and yes, the question to be decided is [whether the appellant was a member of that conspiracy].

22Unfortunately, defence counsel did not raise an objection. When the issue was first raised by the trial judge, defence counsel asked for "an opportunity" to consider the matter. Later that same day, when the trial judge raised the matter again, defence counsel noted that she had retrieved the Agreed Statement of Facts "just to refresh [her] memory on the wording". There was a short exchange, ending with the trial judge's suggestion that they would discuss the matter again in the morning, but unfortunately that did not happen.

23Although the respondent does not suggest otherwise, it is also important to note that defence counsel did not acknowledge the existence of a conspiracy or the nature of that conspiracy in her closing submissions to the jury.

24In the end, the record does not support the respondent's suggestion that these matters were clearly acknowledged by the defence at trial.

(iv) The effect of the general instructions about the use to be made of guilty pleas

25The respondent contends that, even if the appellant did not acknowledge Mr. Samuel's guilt in relation to the conspiracy, no prejudice resulted because the trial judge gave two general limiting instructions about what use could be made of guilty pleas. The respondent points to two passages in the charge that are said to have brought home to the jury that Mr. Samuel's conviction could [page119] not be used by the jury in assessing whether the appellant was also guilty.

26The first instruction resides early in the charge, at a point when the jury was being instructed on general legal principles. At that stage, the jury was told:

Mr. Samuel's guilty plea has absolutely no bearing on whether [the appellant] is guilty. You must not think that because Mr. Samuel pleaded guilty, [the appellant] must be guilty too.

27The second instruction came in the part of the charge where the trial judge was guiding the jury on the elements of the crime of importation of a controlled substance. At that stage, the jury was told that:

It is important to remember . . . that although [the appellant] and Mr. Samuel were both charged in respect of the bricks of cocaine that were found in the airport washroom, each is a separate individual who cannot be found guilty of any offence unless the evidence relating to him proves his guilt of that offence beyond a reasonable doubt. [The appellant] is entitled to separate consideration of the evidence that applies to him. He is entitled to have his case decided on the basis of his own conduct and his state of mind.

28Both of these instructions were important. Both were correct in law. The jury needed to know that just because Mr. Samuel pleaded guilty, and was found guilty, it did not mean that the appellant was also guilty; they also needed to know that Mr. Samuel and the appellant were separate individuals and that the appellant could only be found guilty based upon the evidence "relating to him".

29The difficulty is that no sooner had these instructions been given than they were overtaken by the instruction to the jury that, because of Mr. Samuel's guilty plea, they had to accept as proven that the first two elements of conspiracy had been made out. In other words, while the jury knew that the fact of Mr. Samuel's guilty plea did not mean that the appellant was necessarily guilty of conspiracy, the fact of Mr. Samuel's guilty plea was used as evidence against the appellant in proof of that charge.

(v) Conclusion

30While the respondent is right that, in the end, the defence did not contest the jury charge as delivered on this point, this was a serious error. While the failure to register a complaint will often signal the inconsequential nature of an error, particularly when viewed in the context of the broader trial, this is not one of those cases: Daley, at para. 58; R. v. Jacquard, 1997 374 (SCC), [1997] 1 S.C.R. 314, [1997] S.C.J. No. 21, at para. 38.

31This is particularly true when one considers how the conspiracy count was framed on the indictment: "[the appellant], [page120] unlawfully did between the 1st day of J[une], 2013 and the 16th day of J[une], 2013, both dates inclusive, . . . conspire and agree together, with Marvis Anwah Samuel . . . to commit an indictable offence of importing a controlled substance into Canada, to wit: [cocaine]". Through the jury instructions given, every box on the conspiracy count was ticked, except for the appellant's actual membership in the conspiracy. As I will now explain, respectfully, the jury was erroneously instructed on that issue as well.

B. Issue two: The instruction on membership -- the Carter error

(i) Overview

32The appellant argues that the trial judge erred in her instructions to the jury on how to approach their deliberative process involving the essential element of membership.

33The jury was told that "the conspiracy alleged by the Crown and to which Mr. Samuel pleaded guilty was from June 1 to June 16, 2013". In determining whether the appellant was a member of that conspiracy, the trial judge instructed the jury as follows:

You may consider not only the things that [the appellant] said and did but also what other known or probable members of the conspiracy said or did.

(Emphasis added)

34The appellant argues that this instruction was missing a fundamental element, arising from R. v. Carter, 1982 35 (SCC), [1982] 1 S.C.R. 938, [1982] S.C.J. No. 47. That element involves an intermediate step, requiring that the trier of fact first satisfy him or herself, based upon the accused's own acts and declarations, that the accused is probably a member of the conspiracy. In my view, the jury charge fell short on this front.

(ii) The Carter instruction

35The Carter instruction applies in any case involving an offence committed in furtherance of a common design where the Crown seeks to rely upon the acts and declarations of anyone else who formed part of that common design: R. v. Satkunananthan, 2001 24061 (ON CA), [2001] O.J. No. 1019, 152 C.C.C. (3d) 321 (C.A.), at para. 98. In this case, the impugned instruction involving the common design involves the crime of conspiracy, and so I will use language to match that offence.

36Acts and declarations are typically only admissible against the doer and maker: R. v. Puddicombe, [2013] O.J. No. 3507, 2013 ONCA 506, 299 C.C.C. (3d) 543, at para. 85, leave to appeal to [page121] S.C.C. refused [2013] S.C.C.A. No. 496. Yet, in the context of a conspiracy, the acts and declarations by one member of the agreement may become admissible against other members of the same agreement, if those acts and declarations are done or made in pursuit of the same unlawful purpose while the conspiracy is still operative.

37The Carter rule focuses upon the means by which the acts and declarations of one person can become admissible against another. This is true, whether those alleged co-conspirators stand as co-accused at trial or not. Indeed, it is true whether the alleged co-conspirators' identities are known or not. Regardless, the acts and declarations of alleged co-conspirators are conditionally admissible at trial, leaving it up to the trier of fact to determine whether the evidence can be marshalled in aid of proving the accused's membership in the conspiracy. Where the trier of fact is a jury, the proper approach to that determination requires precise, careful and admittedly complex instructions.

38In enters the Carter instruction. It is what Doherty J.A. referred to in Puddicombe, at paras. 85-86 as a "uniquely Canadian" approach to the rule that "[g] enerally, a declaration is admissible only against its maker and an act is admissible only against the doer of that act".

39The Carter instruction involves three cascading steps, each one of which can bring the deliberative process in the context of a conspiracy case to an abrupt conclusion.

40The first question is whether the trier of fact is satisfied beyond a reasonable doubt that the alleged conspiracy existed. At this stage, the trier of fact may consider all of the evidence, including what alleged conspirators have done and said in furtherance of the common unlawful object: R. v. Yumnu, [2010] O.J. No. 4163, 2010 ONCA 637, 260 C.C.C. (3d) 421 ("Yumnu (ONCA)"), at para. 338, affd [2012] 3 S.C.R. 777, [2012] S.C.J. No. 73, 2012 SCC 73.

41If the answer to the first question is yes, then the trier of fact goes on to consider, based upon all of the evidence directly admissible against the accused, whether the accused is probably a member of that conspiracy. This determination is made on a civil standard of a balance of probabilities. It requires the trier of fact to consider the accused's own words and conduct -- the evidence directly admissible against him or her -- as viewed against its proper context: see R. v. Filiault, 1981 3165 (ON CA), [1981] O.J. No. 132, 63 C.C.C. (2d) 321 (C.A.), at pp. 326-27 C.C.C., affd 1984 72 (SCC), [1984] 1 S.C.R. 387, [1984] S.C.J. No. 20.

42If the answer to the second question is yes, then the trier of fact goes on to consider whether the accused's membership in [page122] the conspiracy has been proven beyond a reasonable doubt. This third step involves the conversion of probable membership into full membership or "actual participation" in the conspiracy: Yumnu (ONCA), at para. 340. Assuming that this stage is reached, the trier of fact will consider all of the evidence, including the acts and declarations of other alleged co-conspirators done and made in furtherance of the conspiracy while the conspiracy was ongoing in nature. See Carter, at pp. 946-47 S.C.R.; R. v. Barrow, 1987 11 (SCC), [1987] 2 S.C.R. 694, [1987] S.C.J. No. 84, at p. 740 S.C.R.; R. v. Mapara, [2005] 1 S.C.R. 358, [2005] S.C.J. No. 23, 2005 SCC 23, at para. 8; R. v. Chang, 2003 29135 (ON CA), [2003] O.J. No. 1076, 173 C.C.C. (3d) 397 (C.A.), at para. 53.

(iii) The objection on appeal

43The appellant's complaint lies in the fact that the trial judge by-passed the first two elements from Carter and skipped directly to instructing the jury on the third prong. In other words, instead of instructing the jury to first consider whether there was a conspiracy and, if so, whether the appellant was probably a member, the trial judge told the jury that there was, in fact, a conspiracy and that, in determining if the appellant was a member, they could "consider not only the things that [he] said and did but also what other known or probable members of the conspiracy said or did".

44I have previously explained why it was an error to instruct the jury that they had to accept as a fact the existence of the conspiracy (issue one in these reasons and step one of Carter). Accordingly, I will now focus upon why it was an error to skip the second stage of Carter. In my view, the charge erroneously deemed the appellant to be a probable member of Mr. Samuel's conspiracy and, thereby, worked a serious unfairness to him.

(iv) The draft charge was correct on stage two and then it was changed

45I start with the observation that the draft jury charge, shared with counsel during the pre-charge stage of the trial, contained a correct Carter instruction on stage two. That draft tracked the specimen jury charge provided in David Watt, Watt's Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015), at pp. 1089-95 (Final 465).

46The draft correctly explained to the jury that they were first to consider probable membership based upon "what [the appellant] said and did". It then went on to explain that, if "satisfied from [the appellant's] own words and conduct that he was probably a member of the conspiracy", then they could move on to [page123] "consider what Mr. Samuel or any other persons who were probably members of the conspiracy said and did while the conspiracy was ongoing and in furtherance of their agreement".

47Unfortunately, the trial Crown convinced the trial judge that she need not instruct the jury on probable membership (step two of Carter). The trial Crown said that it was unnecessary to do so because the Carter instruction was only required where the acts and declarations of other alleged conspirators were admitted for a hearsay purpose. While the trial Crown acknowledged that there was one text message communication that was admitted for its truth,¹ for the most part, the acts and declarations of the other alleged conspirators, including Mr. Samuel, were not being relied upon for their truth and, therefore, there was no bar to using them to prove the appellant's membership in the conspiracy.

48The trial judge accepted this submission and ultimately collapsed the instruction into the third stage of Carter. Accordingly, the jury was invited, from the outset, to consider the acts and declarations of "other known or probable members of the conspiracy" in determining whether the appellant was also a member of that conspiracy.

(v) A Carter instruction does not only concern itself with hearsay

49While the Carter rule is often referred to as the co-conspirator's exception to the hearsay rule -- and it is that to be sure -- it serves a broader purpose than just protecting the accused against hearsay.

50As explained earlier, at its core, the crime of conspiracy is about at least two people agreeing to pursue an unlawful object. By virtue of their joint enterprise, the enterprise being the agreement to pursue the unlawful object, the principle of implied agency is triggered. By reason of their partnership in crime, co-conspirators become one another's agents, vicariously owning each other's acts and declarations made and spoken in pursuit of the unlawful object during the currency of the conspiracy. As noted in Chang, at para. 55, the historical rationale for this rule rests in the accepted fact that "each party to the conspiracy implicitly authorize[s] the others to act and speak on his or her behalf in furtherance of the conspiracy; acts and declarations of one party could therefore be admitted as evidence against the others". [page124]

51The principle of agency was explained by Martin J.A. in R. v. Baron (1976), 1976 775 (ON CA), 14 O.R. (2d) 173, [1976] O.J. No. 2304, 73 D.L.R. (3d) 213 (C.A.), at pp. 231-32 D.L.R. His description, at p. 231 D.L.R., has withstood the test of time [at para. 54]:

The governing rule of evidence is not in doubt, although its application in a particular case often raises questions of great difficulty. The rule is based upon a principle of agency. If A and B have agreed to achieve a common unlawful purpose, then by their agreement each has made the other his agent to achieve that purpose, with the result that the acts and declarations of A in furtherance of the common design are not only A's acts and declarations but, in law, are also B's acts and declarations. The rule of evidence is not limited to charges of conspiracy but applies to any offence which is the result of preconcert.

(Citations omitted)

52The principle of agency is a powerful tool in the hands of the prosecution, one that cannot be resorted to lightly. Caution must be taken, lest an accused be convicted only on the basis of the acts and declarations of others. This is why there must be an initial showing of proof, based on the accused's own connection to the alleged conspiracy, before the acts and declarations of alleged co-conspirators -- as his agents -- can be applied against him. Martin J.A. put it as follows in Baron, at pp. 231-32 D.L.R.:

It is clear that where the fact in issue to be proved is whether a conspiracy exists between A and B, A's acts, or declarations implicating B cannot be used to prove that B was a party to the conspiracy, in the absence of some other evidence admissible against B to bring him within the conspiracy.

(Citations omitted)

53It is the Baron judgment that laid the framework for the Carter test.

54Contrary to the trial Crown's suggestion, which is further advanced by the respondent on appeal, the purpose of the Carter test is not simply to ward off the use of hearsay evidence until such time as the accused's probable membership in the conspiracy has been established. While it undoubtedly achieves that goal, the purpose of the Carter test is properly characterized as a much broader one. It is rooted in the concept of relevance.

55It bears repeating what Doherty J.A. said in Puddicombe, at para. 85: "Generally, a declaration is admissible only against its maker and an act is admissible only against the doer of that act." Stated the other way, the declarations and acts of others are not generally admissible against an accused. Therefore, this is more than a hearsay rule. It is a rule that ensures that before we allow evidence that would not otherwise be admissible against an accused to become a tool in the prosecutor's case against him, there must be proof of the accused's probable membership in the [page125] conspiracy, based only on evidence that is "directly admissible against the accused": Carter, at p. 947 S.C.R.; R. v. Lucas (2014), 121 O.R. (3d) 303, [2014] O.J. No. 3471, 2014 ONCA 561, 313 C.C.C. (3d) 159, at para. 208, leave to appeal to S.C.C. refused [2014] S.C.C.A. No. 460; Puddicombe, at para. 99; Yumnu (ONCA), at para. 340. At its core, this is a rule of fairness.

(vi) The effect of the erroneous instruction

56In my view, the failure to instruct the jury on probable membership created a serious issue of fairness in this trial, one that only served to compound the initial erroneous instruction addressed under issue one of these reasons. The combined effect of those instructions was to leave the jury thinking that they had to accept that Mr. Samuel was a member of a conspiracy to import 17.3432 kilograms of cocaine into Canada and that his acts and declarations, as well as those of other "probable members of the conspiracy", could be used in determining whether the appellant was also a member of that conspiracy. This was reinforced by the trial judge in the following instruction:

It is not necessary that [the appellant] be the person who actually did the act in furtherance of the conspiracy, or even that he understood it or knew about it. Similarly, it is not necessary that [the appellant] be the person who actually spoke the words in furtherance of the conspiracy, or even that he was there when they were spoken. A conspiracy is like a partnership in crime. Each member is an agent or partner of every other member and is bound by and responsible for the words and conduct of every other member spoken or done while the conspiracy was ongoing and to further their unlawful scheme.

(Emphasis added)

57It was a short distance between those instructions and a finding of guilt.

58The respondent takes the position that this case consisted primarily of evidence directly implicating the appellant. That is true. However, the real question is whether there was evidence that was not directly admissible against the appellant or, conversely, evidence that could only be summoned in aid of proof of membership upon the application of the Carter rule. There was. I will use a few examples to make this point.

59First, even the trial Crown acknowledged that there was a critical text message string, located on the appellant's and Mr. Samuel's phones, that the trial Crown wished to rely upon for a hearsay purpose: the truth of its contents. While the trial Crown's position morphed somewhat over the course of the trial, at the end of the day, even as doing away with the Carter instruction was being advocated for, the trial Crown acknowledged that the following key text message exchange, sent and received while [page126] the appellant would have been waiting for the plane to depart St. Maarten, was admitted for a hearsay purpose. The appellant's phone sent a message to Mr. Samuel's phone, reading: "Ok how much you have". The reply from Mr. Samuel's phone was: "9". The trial Crown closed to the jury suggesting that what was being discussed in that text message was that Mr. Samuel was acknowledging he was carrying nine bricks of cocaine.

60Second, the trial Crown also emphasized Mr. Samuel's acts. For instance, the trial Crown pointed out the fact that Mr. Samuel was a resident of Antigua and that he had travelled to St. Maarten the day before the flight to Toronto. The trial Crown emphasized for the jury Mr. Samuel's travel itinerary, including his Antigua to St. Maarten to Toronto to Montreal to Antigua turnaround. The trial Crown pointed to stamps on Mr. Samuel's passport to demonstrate his date of arrival in St. Maarten. The trial Crown also pointed to the fact that one of Mr. Samuel's fingerprints was on a brick of cocaine recovered from the men's washroom.

61The trial Crown relied upon all of these pieces of evidence and more to suggest that the appellant was a member of Mr. Samuel's conspiracy. Importantly, when relating the evidence to the legal issue of membership, the trial judge reviewed these pieces of evidence and more. This was not evidence directly admissible against the appellant. A Carter instruction was required.

(vii) Significance of the defence position

62The respondent emphasizes that even if the trial judge was wrong to collapse the Carter instruction by inviting the jury to commence their deliberations at the final stage, the defence acceded to that position at trial. Therefore, it does not fall to the appellant to complain about the instruction now.

63The respondent is right that the appellant did not oppose the proposed manner of proceeding at trial. While defence counsel initially asked for some time to consider the matter, she later announced that she did not take issue with the jury being instructed to move directly to the final stage of Carter, "to make it easier for the jury".

64While the parties' positions at trial will often inform the seriousness of an error located on appeal, that will not always be the case. It is not the case here. The greater the error and the closer it resides to a central issue, the less likely a counsel's position will inform the result. In the end, I have come to the conclusion that this jury was not properly equipped to decide the case on conspiracy: R. v. Calnen, [2019] 1 S.C.R. 301, [2019] S.C.J. No. 6, 2019 SCC 6, at para. 9. [page127]

65Before embarking on the final section of these reasons, I make the following brief observation, all the while acknowledging the force of prosecutorial discretion. It is not uncommon to see prosecutions, such as this one, where the substantive crime is charged alongside a conspiracy count. This double-pronged approach can invite complexity and potential confusion into jury charges, both of which serve to threaten a clear-minded deliberative process. Complexity and confusion are impediments to achieving just results and stand in opposition to what we should be striving for in the criminal justice system. Where appropriate, it would behoove the prosecutorial authorities to seriously think about what is gained and what is lost by proceeding with a conspiracy count alongside the substantive crime: see generally R. v. Rowe, [2011] O.J. No. 5382, 2011 ONCA 753, 281 C.C.C. (3d) 42, at paras. 54-58; R. v. Rodgerson, [2015] 2 S.C.R. 760, [2015] S.C.J. No. 38, 2015 SCC 38, at paras. 45-46.

C. Issue three: The application of the curative proviso

66The respondent argues that, if this court finds a reversible error in the jury charge on conspiracy, the curative proviso should be applied.

67Section 686(1)(b)(iii) of the Criminal Code allows an appellate court to dismiss an appeal notwithstanding a legal error if no substantial wrong or miscarriage of justice occurred. The curative proviso only applies where there is no "reasonable possibility that the verdict would have been different had the error at issue not been made": R. v. Bevan (1993), 1993 101 (SCC), 13 O.R. (3d) 452, [1993] 2 S.C.R. 599, [1993] S.C.J. No. 69, at p. 617 S.C.R.

68There are two types of errors that can attract the application of the curative proviso. The first involves harmless or trivial errors, ones that could not have had an impact on the verdict: R. v. Van, [2009] 1 S.C.R. 716, [2009] S.C.J. No. 22, 2009 SCC 22, at para. 35. That is not this case. Here, the errors were neither harmless nor trivial in nature.

69The second category for applying the curative proviso results from situations involving serious errors, ones that would typically call out for a new trial or an acquittal, but where the case against the accused is so overwhelming in nature "that any other verdict would have been impossible to obtain": Van, at para. 34. These cases must rise to the level where "the evidence is so overwhelming that a trier of fact would inevitably convict": R. v. S. (P.L.), 1991 103 (SCC), [1991] 1 S.C.R. 909, [1991] S.C.J. No. 37, at p. 917 S.C.R.; R. v. Trochym, [2007] 1 S.C.R. 239, [2007] S.C.J. No. 6, 2007 SCC 6, at para. 82; Van, at para. 36; R. v. V. (R.), 2019 SCC 41, [2019] S.C.J. No. 41, [page128] 2019 SCC 41, 378 C.C.C. (3d) 193, at para. 85. It is a high standard to be sure.

70The difficulty with applying the curative proviso in situations such as these often arises from the difficulty that appellate courts face when evaluating the strength of the Crown's case in a necessarily retroactive fashion, deprived of the ability to hear the witnesses testify and "experienc[e] the trial as it unfolded": Van, at para. 36.

71As noted in Van, at para. 36, any possible doubt must inure to the benefit of the appellant. In other words, if there is any possibility that the jury could, having regard to the entirety of the evidence, be left with a reasonable doubt on the appellant's testimony, the curative proviso cannot be mobilized to uphold a conviction: R. v. Bailey, [2016] O.J. No. 3508, 2016 ONCA 516, 339 C.C.C. (3d) 463, at para. 57.

72The appellant asks that both of his convictions be set aside, and a new trial be ordered on both counts. I do not agree that this is an appropriate remedy.

73First, I note that the entire appeal was argued with a singular focus on the conspiracy count. While during oral submissions in this court there was some discussion about the potential impact of the errors on the importing count, particularly given that it rested in an allegation involving a joint enterprise, I see no need to resolve that issue. The fact is that the conviction for importing should be upheld through an application of s. 686(1)(b)(iii) of the Criminal Code.

74Second, there was a sea of evidence pointing toward the appellant's guilt on the importing offence, none of which rested on credibility findings. The appellant was caught on videotape entering the washroom where the cocaine was found. He was in there for a sufficient amount of time to hide the cocaine. Then, he was seen departing from the washroom. Four of his fingerprints were discovered on the packages of cocaine found on the floor and in the ceiling. When he was searched just a short while after the first two packages had been located, an empty knapsack was found in his carry-on luggage. That alone constituted what can only be described as a formidable -- "overwhelming" -- Crown case on the importing count.

75I would uphold the conviction for importing.

76As it relates to the conspiracy count, things are more complicated. The appellant testified and explained away all of the communications on his cell phone. It was an elaborate explanation, involving, among other things, the work he was doing in St. Maarten, the fact that he fell for a woman while he was there, and his [page129] need for Viagra. It also involved an explanation as to the fact that some of the more incriminating text messages on his phone were actually sent to a friend of his, each one having an innocent meaning.

77As for how Mr. Samuel came into possession of the appellant's friend's phone, this was as much a mystery to the appellant as it was to anyone else. The appellant did not know whether his friend and Mr. Samuel were acquainted or whether the friend may have given his phone or SIM chip card to Mr. Samuel.

78However far-fetched that evidence may have been, it was up to the trier of fact to tackle questions of credibility. In the end, while the Crown's case on the conspiracy count is a powerful one, questions of credibility and the application of the W. (D.) standard were squarely in play: R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26. Having regard to all of the evidence, I cannot say that a jury would inevitably convict.

B. Disposition

79I would dismiss the conviction appeal on the importing count. I would allow the conviction appeal on the conspiracy count. Therefore, the conviction on conspiracy is set aside, and a new trial is ordered on that count only.

Appeal allowed in part.

Notes

1 Earlier in the trial, the trial Crown had acknowledged that there were a few text messages that were being admitted for their truth.

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