COURT OF APPEAL FOR ONTARIO
Watt, Tulloch and Roberts JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Kyle Megill
Appellant
Maija Martin and David Malcolm Reeve, for the appellant
Sarah Shaikh, for the respondent
Heard: September 16, 2020 by video conference
On appeal from the conviction entered by Justice Carole J. Brown of the Superior Court of Justice, sitting with a jury, on March 1, 2018, and the sentence imposed on November 8, 2018, with reasons reported at 2018 ONSC 6486.
1Warrant in hand, several police officers entered an apartment. They were looking for some controlled substances, offence-related property and anything that would afford evidence of controlled substance or related offences.
2They found several things. Controlled substances. Related paraphernalia. And currency. $365 in Canadian currency.
3The police found some of these things in a bedroom, where they also found Kyle Megill (the appellant) seated at a computer. They found other things, such as capsules, a beige powder and a digital scale in the kitchen. And more bags containing controlled substances, a tester and some empty capsules in the living room area.
4The controlled substances varied. Ketamine. Cocaine. BZP/TFMPP. MDMA. MDA. Marijuana. And psilocybin.
5The searchers then turned their attention to a storage unit on the same floor. There they found more of the same. Ketamine. MDMA. Psilocybin. And something different: GHB.
6A jury found the appellant guilty of six counts of possession of the various controlled substances for the purpose of trafficking. And of possession of property and of proceeds of property obtained by crime. The trial judge imposed a sentence of imprisonment of five years.
7The appellant says his convictions are flawed. The jury charge was unfair and unbalanced. The judge was wrong to refuse his application to challenge the search of the storage unit. And she imposed a sentence that was unfit.
8I do not agree that the convictions are flawed or that the sentence was unfit. And I will explain why I would dismiss both appeals, except that I would set aside the victim surcharges imposed by the trial judge.
The Background Facts
9The evidence at the appellant's trial consisted principally, though not exclusively, of the testimony of several police officers who executed the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”) search warrant at the apartment and associated storage unit on June 22, 2015.
10The case against the appellant was entirely circumstantial. His response, unsupported by his own testimony or that of any defence witness, was that the case for the Crown did not, indeed could not, prove beyond a reasonable doubt that he was in possession of the various controlled substances found in the apartment and storage unit. He did not seek a directed verdict of acquittal at the close of the Crown's case at trial, and he does not argue here that the verdict is unreasonable. He accepts, as he did at trial, that if the evidence establishes possession beyond a reasonable doubt, possession was for the purpose of trafficking.
11The grounds of appeal advanced on the appeal from conviction do not require an elaborate recital of the evidence adduced at trial. A brief reference to various findings made on the search of the apartment and storage unit and the evidence connecting the appellant to the premises provides a suitable frame for the discussion that follows.
The Rental of UPH01
12The building with which we are concerned is a 13-storey condominium. The units on the 13th floor, which is also referred to as the 14th floor, are designated as penthouses, hence the acronym UPH followed by the unit number, as in UPH01. The owners of the units may rent them out. This requires completion of a Confidential Resident Information Form. The form includes information about the date and unit number, as well as particulars about the owner and residents, those renting the unit. Each residential unit has a storage locker associated with it. The residential unit and locker are located on the same floor.
13The property manager of the condominium identified the Confidential Resident Information Form for unit UPH01, the unit searched by police on June 22, 2015. The document was dated July 27, 2014, about 11 months before the search. It described the owner’s name and information about the residents, David Davidson and Kyle Megill. It also referred to a 2013 Honda Civic automobile with Ontario plate BTJW581 and noted that the storage unit for the residential unit was located on the 14th floor.
14The property manager recognized the owner of the unit but did not know either of the residents. There had been no complaints about the residents, so the manager had never met them. The manager could not recall the locker number associated with UPH01. He acknowledged that owners could rent storage units associated with their residential unit to persons who did not live in the unit.
The Undercover Buy
15On February 13, 2015, an undercover police officer, acting on information received from a confidential informant, met Elion Saliaj to buy some drugs. The officer wanted some “fire" (high-quality cocaine) and “Molly” (MDMA). Saliaj directed the officer to UPH01 of the condominium, where his supplier was located. David Davidson admitted the men into the unit. Saliaj went into bedroom #1 and spoke to a man there about the transaction. The officer did not see the man. Davidson walked into bedroom #1. Seconds later, Davidson returned carrying a freezer bag with several small brown capsules inside.
16Saliaj re-emerged. He and the officer left together. In exchange for the agreed-upon price, Saliaj gave the officer two small bags. One had a thumbnail-sized chunk, white in colour. The other contained eight pink pills and two clear capsules which looked the same as the pills the officer had seen Davidson bring out of bedroom #1.
The Search of UPH01
17On March 9, 2015, a police officer confirmed with the property manager of the condominium that the residents in UPH01 were David Davidson and the appellant. The officer returned on June 18, 2015. He claimed that the manager told him that he (the manager) had received complaints about frequent traffic to and from the unit. The manager denied any such complaints.
18On June 22, 2015 several police officers arrived at the condominium with a CDSA search warrant for unit UPH01. They showed the warrant to a staff member and were given a key to UPH01. An officer asked about the number of the storage unit associated with UPH01, which the warrant described as 1322. Police did not receive the information before the search began.
Bedroom #1
19When police entered bedroom #1, they found the appellant seated at a computer. In a closet in the bedroom, they found a key ring with several keys including a key to a Honda. A small key on the ring unlocked a grey Sentry safe in the closet. The safe contained MDMA and $365 in Canadian currency. Elsewhere in the closet was more MDMA, powdered cocaine and a variety of pills. On a dresser in the bedroom, police found the appellant's driver’s licence, which showed the same address as on the registration of the Honda listed on the Confidential Resident Information Form.
20David Davidson was not in bedroom #1 or elsewhere in the unit when police conducted their search.
Bedroom #2
21Police found no drugs or drug paraphernalia in bedroom #2 but did locate two documents in the name of David Davidson in that room.
The Living Area
22In addition to Ziploc bags containing marijuana and psilocybin, and drug paraphernalia, police found two Rogers Communications bills and a letter from TD Bank, all addressed to the appellant at UPH01 at the condominium, in the living area of the unit.
The Storage Unit
23In storage unit LUP22, police discovered substantial quantities of Ketamine, MDMA, GHB and psilocybin, as well as a Christmas card and picture of the appellant. A black safe in the storage unit contained $23,550.
Search Incident to Arrest
24Police searched the appellant incident to arrest. They found and seized a powder substance that later tested positive for both cocaine and Ketamine.
The Conviction Appeal
25The appellant advances two principal grounds of appeal against the conviction entered at trial. He says that the trial judge erred in:
i. giving an unfair and unbalanced charge to the jury; and
ii. refusing to hear a mid-trial application on behalf of the appellant to challenge the reasonableness of the storage unit search and the admissibility of evidence found there.
Ground #1: The Unfair and Unbalanced Charge
26The appellant makes five specific complaints about the charge to the jury that he says, individually or cumulatively, rendered the final instructions unfair and unbalanced. I will examine each individually and assess their cumulative effect on the fairness and balance so essential to a proper jury charge.
A. The Instructions on Circumstantial Evidence
27As we saw earlier, the case against the appellant rested entirely on circumstantial evidence. The principal issue in controversy was whether the evidence established beyond a reasonable doubt that the appellant was in possession of the controlled substances and the currency found in the apartment and storage unit. The parties were as one that if possession were proven, its purpose was for trafficking.
28The relevant parts of the evidence adduced at trial have been rehearsed earlier. They need not be repeated here. For present purposes, it is sufficient to begin with a snapshot of the arguments advanced here about the adequacy, fairness and balance of the instructions on circumstantial evidence.
The Arguments on Appeal
29The appellant begins with the incontrovertible principle that in a case where the proof of guilt is wholly or substantially to be made by circumstantial evidence, guilt can only be established if it is the only reasonable inference available on the evidence taken as a whole. Inferences inconsistent with guilt can but need not be based on proven facts. They can and often do arise from the absence or lack of evidence. This, the availability of an inference inconsistent with guilt from an absence of evidence, must be made clear to the jury in final instructions.
30In this case, the appellant says, despite a request for such an instruction from trial counsel, the trial judge failed to incorporate what was requested in her charge. She should have supplemented what she said by specifically instructing the jury that inferences inconsistent with guilt can arise from the absence or lack of evidence and that drawing such an inference does not amount to impermissible speculation. This was a serious error since it deprived the appellant of the benefit of an inference inconsistent with guilt arising from the lack of evidence that he lived in the apartment.
31The respondent rejects any suggestion of error. No formulaic approach to instructions on this issue is required by the authorities.
32Instructions on circumstantial evidence, the respondent says, must alert the jury to the dangers of “filling in the blanks" or “jumping to conclusions" from circumstantial evidence. The respondent accepts that evidentiary gaps can result in inferences other than guilt, provided those inferences are reasonable, and not speculative. But no specific word formula is mandatory to bring this message home to the jury. Explaining that an inference of guilt drawn from circumstantial evidence must be the only reasonable inference on the evidence as a whole is an effective and succinct way of preventing premature conclusions of guilt.
33In this case, the respondent continues, the instructions, taken as a whole, made it clear that, in order to find the appellant's guilt proven beyond a reasonable doubt, the jury had to conclude that his guilt was the only reasonable inference available on that evidence. The jury was told that a reasonable doubt could arise from the evidence or from the absence of evidence. They were also directed that this burden of proof remained on the Crown throughout the trial and never shifted to the defence. The lack of objection by trial counsel indicates the adequacy of the instructions as they were given.
The Governing Principles
34We take a functional approach when we are asked to assess the adequacy of a charge to the jury. We test its adequacy against its ability to fulfil its function of equipping the jury to decide the case the jury heard. We do not adjudge adequacy by assaying the degree of its adherence to or deviation from a particular formula or pattern: R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at para. 32; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at paras. 30-31; and R. v. MacKinnon (1999), 1999 CanLII 1723 (ON CA), 43 O.R. (3d) 378 (C.A.), at para. 27.
35In our assessment of the adequacy of a jury charge, we also keep in mind that a charge to the jury does not take place in isolation, but rather in the context of the trial as a whole. That context, the trial environment, includes the addresses of counsel and the expectation that counsel will help the trial judge identify anything problematic included in or omitted from the charge: Daley, at para. 58.
36An essential constituent of a charge to the jury is an instruction on the standard of proof. This is so whether the case for the Crown consists of direct evidence, circumstantial evidence or some mélange of the two types of evidence. The typical instruction on the standard of proof makes it clear that a reasonable doubt may be based not only on the evidence adduced at trial, including the credibility of the witnesses and the reliability of their evidence, but also on the absence of evidence: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at para. 36.
37In cases in which the evidence adduced by the Crown is wholly or substantially circumstantial, there is no particular form of mandatory instruction. However, where proof of one or more essential elements of an offence with which an accused is charged depends exclusively or largely on circumstantial evidence, it is helpful that the jury receive instructions that will assist them to understand:
i. the nature of circumstantial evidence; and
ii. the relationship between proof by circumstantial evidence and the requirement that an accused's guilt be proven beyond a reasonable doubt.
See R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 22.
38An explanation of the difference between direct and circumstantial evidence is commonplace in jury instructions in this province. The difference may be illustrated by an everyday example not connected with the facts of the case or the evidence adduced at trial. This type of instruction is at once helpful and sufficient in most cases: Villaroman, at paras. 23-24.
39Instructions on reasonable doubt and circumstantial evidence and the relationship between them deal with different subject-matter. An instruction on reasonable doubt describes a state of mind. It refers to the degree of persuasive force that the evidence as a whole must have that entitles and requires a juror to find an essential element of an offence, or the guilt of an accused, established. Reasonable doubt is not an inference or finding of fact that requires support in the evidence adduced at trial. A reasonable doubt is logically connected to the evidence or the absence of evidence: Villaroman, at para. 28; Lifchus, at para. 36.
40Circumstantial evidence is different. It is a type of evidence on which jurors may rely in reaching their conclusion about the persuasive force of the evidence as a whole. Instructions about circumstantial evidence alert jurors to the dangers of the path of reasoning involved in drawing inferences from circumstantial evidence. The risk that jurors will “fill in the blanks" or “jump to conclusions": Villaroman, at para. 29.
41Where proof of one or more essential elements of an offence with which an accused is charged depends wholly or substantially on circumstantial evidence, it is generally helpful to caution the jury about inferring guilt too readily. No specific word formula is required. A succinct and accurate way of delivering this message, which describes the relationship between circumstantial evidence and the standard of proof, is to instruct the jury that an inference of guilt drawn from circumstantial evidence must be the only reasonable inference that the evidence permits: Villaroman, at paras. 30, 32-34.
42As we saw earlier in connection with the Lifchus-compliant instruction on reasonable doubt, a reasonable doubt may arise from the evidence adduced at trial or from an absence of evidence. The same holds true where the case for the Crown on an essential element or the offence as a whole falls to be established exclusively or substantially on the basis of circumstantial evidence. Inferences inconsistent with innocence need not arise from proven facts. And to require that inferences inconsistent with guilt be grounded on proven facts effectively imposes a burden on the accused to prove those facts. And that offends the principle that whether there is a reasonable doubt requires consideration of the whole of the evidence. In a circumstantial case, an inference other than guilt may arise from an absence of evidence, provided the non-culpable inference is reasonable, in light of the evidence and absence of evidence, assessed logically and on the basis of human experience and common sense. The trier of fact should consider “other plausible theories" and “other reasonable possibilities" inconsistent with guilt: Villaroman, at paras. 35-37.
The Charge to the Jury
43In this case, the trial judge instructed the jury on the burden and standard of proof. In the instructions on the standard of proof, the trial judge told the jury that a reasonable doubt could arise from the evidence, the absence of evidence, the credibility of one or more of the witnesses, or the reliability of the evidence of a witness.
44The trial judge explained the difference between direct and circumstantial evidence and illustrated the difference between them by two examples, one traditional, the other based on the evidence adduced at trial. She then concluded her instructions about the standard of proof based on circumstantial evidence:
In order to find Kyle Megill guilty of an offence on the basis of circumstantial evidence, you must be satisfied beyond a reasonable doubt that his guilt is the only reasonable conclusion or inference that can be drawn from the whole of the evidence.
45Later in her charge, the trial judge instructed the jury on the position of the defence:
It is the theory of the Defence that the Crown has not proven the case against Mr. Megill. The Crown has not presented sufficient evidence to prove beyond a reasonable doubt who possessed the drugs in apartment UPH01 or who possessed the drugs in storage locker LUP22.
The gaps in the evidence undermine the Crown’s case; these gaps in the evidence create reasonable doubt. A few of the most important questions left unanswered are the following:
i. When was Mr. Megill physically present in UPH01 before June 22, 2015?
ii. Who let Mr. Megill and the two females into UPH01 on June 22, 2015?
iii. Did Julian Humphreys [the unit owner] have access to the apartment or the storage locker?
iv. Did Bing Su [whose fingerprints were found on a vacuum-sealed bag in the storage unit] have access to the apartment or the storage locker?
v. Did any other individuals have access to the apartment or the storage locker?
The Defence submits that the evidence supports reasonable inferences that are not compatible with the guilt of Mr. Megill. One reasonable inference is that Mr. Megill was previously a resident of UPH01 but had moved out; and on June 22, 2015 Mr. Megill was a visitor in the apartment.
The Defence maintains that David Davidson is the person most likely to have been in possession of the drugs seized in the apartment and the storage locker. Any suggestion that both Mr. Davidson and Mr. Megill possessed the drugs together would be pure speculation, and this speculation would not support a conviction.
46Trial counsel for the appellant did not object to the charge to the jury on this ground.
The Principles Applied
47As I will explain, I would not give effect to this ground of appeal. I am satisfied that despite the absence of an express instruction now said to have been a fatal omission, read as a whole, the charge adequately apprised the jury of the standard of proof in a case dependent entirely on circumstantial evidence.
48First, the instruction on the burden of proof made it clear that the burden of proving each essential element of each offence was on the Crown. That burden, the judge said, did not shift. No onus ever settled on the defence. The appellant did not have to prove anything. From this instruction, a 21st-century jury would understand that the appellant did not have to introduce any evidence or prove any facts to support a non-culpable inference.
49Second, the instruction on the standard of proof. Given in a case in which the jury was frequently reminded of the circumstantial nature of the case for the Crown, the jury was expressly instructed that a reasonable doubt could arise from:
evidence;
the absence of evidence;
the credibility of witnesses; and
the reliability of the evidence of witnesses.
The use of the term “evidence" did not distinguish between direct evidence and circumstantial evidence. In a case consisting entirely of circumstantial evidence, the jury could not fail to understand that a reasonable doubt, an inference inconsistent with guilt, could arise because of the absence of or a gap in the evidence.
50Third, the instruction on the position of the defence. While admittedly not part of the legal directions the jury was bound to follow, the trial judge's description of the defence position, as provided by defence counsel, focused on the absence of evidence and the availability of non-culpable inferences as a basis for a reasonable doubt about the appellant's guilt. The defence position, the focal point of counsel's closing address, was about inferences inconsistent with guilt available because of gaps in the evidence leading to a case not proven.
51A final point. Trial counsel did not object to the absence of an express instruction now said to constitute a fatal error. Lack of objection is not dispositive, but it affords some indication that, in a case grounded on lacunae in the prosecution's proof, the defence position was fairly put to the jury.
B. The Inflammatory Description of GHB
52The second aspect of final instructions the appellant says contributed to an unfair and unbalanced charge relates to something said in recounting the evidence of a police witness qualified as an expert in street-level distribution, practices, cultures and uses of the drugs located during the search of UPH01 and the associated storage unit.
53A brief reference to the evidence and the trial judge's description of it in her charge will provide the background necessary to determine the viability of this claim of error.
The Evidence
54During their search of the storage unit, police found a cardboard box. They looked inside. There, they found three bottles containing a total of 3.6 kilograms of GHB.
55An expert witness testified that GHB was used recreationally as an intoxicant when mixed with a bottle of water and sipped. The witness pointed out that GHB was used by bodybuilders to get “a good cut". It was commonly used as a “date rape drug".
56Defence counsel agreed that the witness, a police officer, was an expert in his subject-matter. Counsel did not object to the evidence when given, nor seek a mid-trial instruction as an antidote to any prejudice inherent in or that may arise from the description “date rape drug".
The Charge to the Jury
57In the pre-charge conference, counsel and the trial judge discussed a draft of the final instructions the trial judge proposed to give to the jury. Defence counsel objected to the “date rape drug" reference in the summary of the expert witness' evidence. Counsel said that the reference was inflammatory and not consistent with the evidence of the witness. The trial judge declined to remove the reference.
58The trial judge engaged in a serial review of the evidence of each witness who testified at trial. The review was undifferentiated in the sense that she did not relate it to the essential elements of the several offences with which the appellant was charged. She described GHB in these terms:
GHB is [a] solvent mixed with sodium hydroxide. It smells like nail polish remover. It is usually mixed with water. 5 milligrams of GHB in a bottle of water is a typical dose. One bottle with a dose of GHB can cause one to feel drunk. It is also commonly used as a “date rape drug".
The Arguments on Appeal
59The appellant says that the reference to the common use of GHB as a “date rape drug" was inflammatory and contributed to a charge that was unfair and unbalanced. What is more, the reference did not fairly characterize the witness' evidence about GHB. It left the impression that the only use of GHB was as a “date rape drug”. This was not so. It was also used recreationally as an intoxicant and by bodybuilders to get “a good cut”. Objection was taken in advance of the charge to its inclusion, but to no avail. The reference should have been deleted.
60The respondent acknowledges that it might have been better had the witness not described the common use of GHB as a “date rape drug" and had the trial judge deleted this description from her summary of the witness' evidence. However, the respondent submits, the reference did not result in or contribute to an unbalanced or unfair charge.
61The reference was in a review of the evidence of the witness. It was not part of any legal instruction the jury was bound to follow. It was not linked to and had nothing to do with any essential element of any offence with which the appellant was charged. It did not give rise to any propensity reasoning or other form of prejudice in light of the array of drugs found in the apartment and storage unit. No objection was made when the evidence was given.
The Governing Principles
62The appellant does not rely on any specific authority in support of his claim of prejudice from the repetition of the “date rape drug" description in the recital of the expert's evidence.
63The root of the problem here, as it is in many cases, is in the introduction of the evidence itself.
64The circumstances in which the evidence is received in a criminal trial are well known. Relevance. Materiality. Admissibility. See R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 107, per Martin J. (dissenting, but not on this point). Likewise, the principles governing the reception of expert opinion evidence: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 24.
65Evidence is relevant if it has some tendency, as a matter of logic and human experience, to make the fact or proposition that it is offered to establish more likely than it would be in the absence of the evidence. We assess relevance in the context of the case as a whole and the positions of counsel: Calnen, at para. 108, per Martin J. (dissenting, but not on this point); R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at paras. 204-5.
66Evidence is material if what it is offered to prove or disprove is a fact in issue as determined by the allegations and the governing substantive or procedural law. Evidence that is immaterial is excluded on that ground. If erroneously admitted in a jury trial, the judge should tell the jury that they are not to consider it: Calnen, at para. 109, per Martin J. (dissenting, but not on this point); Luciano, at para. 207.
The Principles Applied
67In the brief reasons that follow, I explain why I would reject this assertion of error.
68The appellant does not formally challenge the admissibility of this aspect of the expert witness' evidence. I do not wish to be taken as accepting that it was properly received. It seems to me that, in the circumstances of this case, where the critical issue of fact for the jury to resolve was whether the appellant was in (constructive) possession of the myriad of drugs found in the residential and storage units, the uses purchasers might make of those drugs was neither relevant nor material. On the other hand, I am satisfied that the impugned reference in the charge reflects harmless error.
69First, so far as the GHB was concerned, the critical issue for the jury to decide was whether the Crown had proven beyond reasonable doubt that the appellant was in possession of the drugs and property found in the storage unit. The trial judge explained to the jury, in terms to which no exception has been taken, the essential elements of the offence charged in connection with GHB. From that instruction, and the agreement that if possession were proven, the purpose of it was for trafficking, the jury could not fail to understand that no purchaser's ultimate use of the drug had anything to do with the issue they had to decide.
70Second, the reference in issue was made during the trial judge's summary of the evidence of the expert witness, a part of her undifferentiated summary of the evidence of every witness who testified at trial. It was preceded by the usual caution about errors, omissions and the obligation of the jury to rely on their own recollection of the substance of the evidence.
71Third, the trial judge did not relate this evidence to any essential element of any offence with which the appellant was charged. Thus, the jury was not instructed or invited to consider it in determining, for example, whether the Crown had proven the appellant's possession of the storage unit’s contents beyond a reasonable doubt.
72Further, the reference to GHB as a “date rape drug" does not appear in the closing address of either Crown or defence counsel, or in their positions as outlined for the jury in the trial judge's charge.
73In the result, this claim of prejudice lacks substance.
C. The Handwriting Comparison
74This contention of prejudicial instruction has its origins in a submission made by defence counsel in his closing address to the jury about the origin of the handwriting that appears on the Confidential Resident Information Form for UPH01 filed as an exhibit at trial.
The Background
75The property manager of the condominium explained the requirements when an owner rented their unit to others. A Confidential Resident Information Form is completed. The manager identified the form in connection with UPH01, dated July 27, 2014, about 11 months before the search of the residential unit and the storage unit associated with it.
76The form contains the name of the owner of the unit and lists two residents: David Davidson and the appellant. It bears two indecipherable signatures or marks opposite the names of the residents in a box designated “Name" at the bottom of the form.
77The property manager did not know who filled out the form, although it was usually the unit owner or residents who did so. He knew the owner but did not know and would not recognize either the appellant or David Davidson.
The Jury Address
78In his closing address to the jury, defence counsel suggested that there were two different types of handwriting on the face of the Confidential Resident Information Form relating to UPH01. He suggested that the top or owner's portion was written by the owner and the bottom by David Davidson.
79Neither the unit owner nor David Davidson testified at trial.
The Charge to the Jury
80During pre-charge discussions of a draft of the proposed final instructions, defence counsel took the position that his closing address had been perfectly proper despite the absence of any evidence about authorship of the handwriting on the form. He suggested that the jurors could make their own comparison, but he did not ask for an instruction to that effect.
81The trial judge instructed the jury in these terms:
While in closing, the suggestion was made that the Form was in two different handwritings, there was no evidence given by any witness to that effect, there was no handwriting analysis done and no handwriting expert was called as a witness to give such evidence, such that this submission should not be considered.
The Arguments on Appeal
82The appellant says that expert testimony is not a prerequisite to a jury instruction that invites jurors to make their own comparisons of handwriting samples. Although the lack of expert evidence warrants a caution in any instruction that invites jurors to make their own comparison, the instruction is nonetheless proper and should have been given here. It was wrong to tell the jury to ignore the defence submission that they should do their own comparative analysis.
83The respondent says that the instruction to disregard defence counsel's closing submission on this issue was well placed. The submission was unsupported by any evidence. Neither the owner nor Davidson testified. There was no expert evidence about authorship or multiple authorship. The property manager said nothing about this form’s authors, only about the general practice.
The Governing Principles
84At common law, proof of handwriting could be made by testimonial or circumstantial evidence. For example, a witness might testify that they saw the act of writing. Or they might give evidence of the circumstances leading up to or pointing back to the act of writing. In a similar way, a qualified witness may testify about the style of the handwriting which requires a comparison between known and the disputed writing: VII Wigmore on Evidence (Chadbourn Rev. 1978), §1991, at pp. 252-57.
85The common law also permitted the trier of fact, without the aid of experts, to compare handwriting samples when a proved or admitted standard used for comparison with the disputed writing was already properly admitted as evidence for other purposes. No document was admissible merely as a standard of comparison with the disputed writing: R. v. Abdi (1997), 1997 CanLII 4448 (ON CA), 116 C.C.C. (3d) 385 (Ont. C.A.), at para. 15, citing VII Wigmore on Evidence (Chadbourn Rev. 1978), §§1992-1994, at pp. 257-64.
86Under s. 8 of the Canada Evidence Act, R.S.C. 1985, c. C-5, handwriting may be proven by comparison, by expert or lay witnesses, of a disputed handwriting with one that has been proved to be genuine and which has been received in evidence for the purpose of comparison: Abdi, at para. 16.
87Section 8 does not oust the common law rule. The section does not preclude a trier of fact from comparing disputed handwriting with admitted or proved handwriting in documents which are properly in evidence and drawing available inferences: Abdi, at paras. 22, 23 and 25.
The Principles Applied
88I would not give effect to this submission.
89This instruction arose out of something said by defence counsel in his closing address to the jury. He suggested that the Confidential Resident Information Form admitted in evidence in connection with UPH01 was authored by two different persons. The top or owner part by the owner. And the lower or resident part by David Davidson. This submission was unhinged from the evidence adduced at trial. There was no evidence of dual authorship, nor any evidence of specific authorship. The submission invited impermissible speculation, not permissible inference. The trial judge was right to tell the jury to ignore this submission.
90Defence counsel did not seek an instruction that invited the jury to conduct its own comparative analysis. They were not entitled to do so for the purpose of finding that the document was written by the owner and Davidson to the exclusion of the appellant. The reason is simple. Comparative analysis compares known with disputed. There was no known in evidence here, thus nothing with which the jurors could compare the disputed writing. That two different hands may have been at work was of no assistance to the appellant absent evidence pointing to whose hands those were.
91This claim of error fails.
D. Hearsay and the Motive to Fabricate
92This argument originates in what is said to be a misapprehension of evidence incorporated in the trial judge's evidentiary review in her charge to the jury. And in an instruction to the jury to disregard the submission made by defence counsel in his closing address.
The Evidence
93The property manager testified that he did not know and would not recognize either David Davidson or the appellant as residents of UPH01. He had had no contact with them. He described both as “exemplary residents" based on his lack of contact with them.
94A police officer subsequently testified that he met the property manager at the condominium on June 18, 2015, about four days before the search warrant was executed. His purpose was to obtain more information about UPH01. At that time, the property manager had said others had received complaints about frequent traffic to the penthouse by people who left shortly after their arrival. These visitors, it was said, did not follow proper entrance procedures and were belligerent with staff.
95In adducing this evidence from the officer, the trial Crown pointed out to the witness that these reports were second-hand, double hearsay. The officer agreed. He also admitted that he could not attest to the accuracy or truthfulness of these second-hand reports.
96The officer was cross-examined on the differences between his evidence and that of the property manager concerning the character of the residents of UPH01 and the timing of the officer's visit. It was not explicitly suggested to the officer that he had a motive to lie about these complaints to shore up his case to obtain a search warrant.
The Jury Address
97In his closing address to the jury, defence counsel contended that the officer had a motive to lie about these complaints involving the appellant and UPH01. The motive was that a report of complaints of this nature, which was dramatically opposed to the evidence of the property manager, enhanced the case for a CDSA search warrant because the frequent brief visits were consistent with a drug trafficking operation. Counsel argued that the evidence of the property manager, that the residents of UPH01 were “exemplary residents", represented the true state of affairs.
The Charge to the Jury
98In her summary of the evidence of the officer, the trial judge summarized the officer's account of the conversation with the property manager on June 18, 2015 and his role as the affiant in the ITO to obtain the search warrant. She mentioned his evidence about obtaining the Confidential Resident Information Form on June 18, 2015 (the property manager did not recall when he turned over the form to the police) and his denial of misunderstanding or exaggerating information about the complaints.
99The trial judge told the jury to disregard defence counsel's submission that the officer had a motive to fabricate the evidence about the reported complaints.
The Arguments on Appeal
100The appellant says that the conflict in the evidence between the property manager and the officer provided an air of reality for the submission that the officer had a motive to lie about the reported complaints — to bolster his case for the issuance of a search warrant for the residential and storage units. It follows, according to the appellant, that the trial judge erred in instructing the jury to ignore the defence position.
101This error, the appellant submits, was aggravated by the failure of the trial judge to instruct the jury to ignore the evidence of reported complaints as recounted by the officer. This evidence was hearsay, thus inadmissible for the truth of its contents, unless the Crown established that it should be received under a listed or the principled exception. No such attempt was made. It should have attracted a mid-trial and final instruction limiting its use. In combination, these failures require a new trial.
102The respondent acknowledges that the trial judge erred in the date she assigned to the officer's receipt of the Confidential Resident Information Form. The officer picked it up after execution of the search warrant, not on June 18, 2015, as the trial judge told the jury. The respondent also accepts that tendered in proof of the truth of what was reported, frequent brief attendance by others at UPH01, the evidence was hearsay and inadmissible except under an established exception.
103However, the respondent says neither the misdescription of the date nor the evidence of reported complaints caused the appellant any prejudice. (The misdescription occurred in a summary of the witness' evidence, not a legal instruction about its use or an essential element of any offence with which the appellant was charged.) When the complaint evidence was introduced, Crown counsel characterized it as double hearsay which had not been verified by the officer.
104The respondent contends that the trial judge did not err in telling the jury to ignore the submission of defence counsel that the officer had a motive to lie. Without more, discrepant recollections about the fact or substance of a conversation do not give rise to a motive to lie. It is all the more so where no such suggestion was ever put to the witness said to have the motive.
The Governing Principles
105The principles at work here are neither controversial nor in need of lengthy recitation.
106It is uncontroversial that evidence of what the property manager told the police officer about what others had said about frequent traffic and brief stays at UPH01 tendered to prove that those visits occurred offended the hearsay rule.
107Equally uncontroversial is the principle that any party who seeks to tender relevant and material evidence that is prima facie inadmissible bears the burden of establishing its admissibility.
108But sometimes in a criminal case, evidence is received that is irrelevant, immaterial or inadmissible and should properly have been excluded. When this happens, a trial judge must consider whether jurors should be instructed to inoculate against improper use of this evidence in reaching their verdict: see, for example, R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 33. Failure to give a limiting instruction where required is not always fatal. Some omissions occasion no substantial wrong or miscarriage of justice: Van, at para. 34.
109The motive of a witness to testify is a subject that may be explored in cross-examination. For example, a witness may be cross-examined about circumstances that tend to show bias, interest or corruption. The witness' denials may be contradicted by evidence as an exception to the collateral facts rule: see, for example, Attorney General v. Hitchcock (1847), 1 Ex. 91; McDonald v. The Queen, 1959 CanLII 25 (SCC), [1960] S.C.R. 186, at p. 191; and R. v. S. (A.) (2002), 2002 CanLII 44934 (ON CA), 165 C.C.C. (3d) 426 (Ont. C.A.), at para. 32.
110In general terms, a party who intends to impeach a witness called by an opposite party must give the witness an opportunity, while the witness is in the witness box, to provide any explanation the witness may have for the contradictory evidence. This rule, the rule in Browne v. Dunn as it has come to be known, reflects a confrontation principle in the context of cross-examination of a witness for a party opposed in interest on disputed factual issues: R. v. Quansah, 2015 ONCA 237, 323 C.C.C. (3d) 191, at para. 76, leave to appeal refused, [2016] S.C.C.A. No. 203.
111The rule in Browne v. Dunn is rooted in considerations of fairness:
i. to the witness whose credibility is attacked, by alerting the witness to the intended impeachment and offering the witness the opportunity of explanation;
ii. to the party whose witness is impeached, by providing notice, thus the opportunity to decide about introducing confirmatory evidence; and
iii. to the trier of fact, by ensuring that it is not deprived of the full picture of the impeachment and its response, thus not compromising the accuracy of its verdict.
See Quansah, at para. 77.
The Principles Applied
112I would reject this ground of appeal in each of its aspects as advanced by the appellant.
113First, misapprehensions of evidence.
114A significant portion of the trial judge's charge consisted of an undifferentiated serial review of the evidence adduced at trial. Witness by witness. In the order in which they testified. This method of summing up a case to the jury is unsatisfactory, for a number of reasons. It ignores the Jacquard instruction to decant and simplify: at para. 13. It is not faithful to the Azoulay obligation to review the salient features or substance of the evidence and to relate them to the issues so that the jury appreciates the value and effect of the evidence: Azoulay v. The Queen, 1952 CanLII 4 (SCC), [1952] 2 S.C.R. 495, at pp. 497 (per Taschereau J.), 503 (per Estey J.). And, as has been better said elsewhere, it is soporific: see R. v. Charles (1979), 68 Cr. App. R. 334 (C.A.), at pp. 338-39.
115It was during the course of this serial review of the evidence that the trial judge is said to have been in error about two items of evidence.
116The trial judge did err in the date she assigned to a police officer's attendance at the condominium to pick up a copy of the Confidential Resident Information Form the officer had first seen in March 2015. He then made note of the details but did not pick up the form until sometime after execution of the warrant on June 22, 2015 — not on June 18, 2015, as the trial judge described it.
117The second alleged error relates to the property manager's evidence about the appellant and David Davidson as “exemplary residents". The trial judge used the phrase “at that time" in connection with this evidence. What remained clear from the trial judge's summary of the property manager's evidence was that he had never seen either the appellant or Davidson “and there were no complaints about them".
118Errors in the recitation of evidence in a charge to the jury are different than misapprehensions of evidence that appear in a judge's reasons for judgment in a judge-alone trial. Judicial references to the evidence in a jury trial serve as an aidememoire for jurors. They are designed to assist the jury in their recollection of the evidence. As each charge makes clear, it is the jurors' recollections that control, not those of the trial judge. Misapprehensions of evidence in a judge-alone trial, on the other hand, may be material, play an essential part in the reasoning process leading to the verdict and result in a miscarriage of justice.
119In this case, neither reference had any relevance to any essential element of any offence with which the appellant was charged. They occurred in a recital of the judge's recollection of the evidence at trial. The recital, it was repeatedly pointed out, was subject to the recollection of the court of last resort on issues of fact — the jury. Accordingly, this claim fails.
120Second, hearsay.
121As evidence that frequent brief visits to UPH01 took place at night and that the visitors were obnoxious with security and rule-aberrant, the evidence attributed to the property manager was inadmissible hearsay. But nothing came of it. The trial Crown characterized it as hearsay and double hearsay and made it clear when the evidence was given that it had not been verified as truthful. It formed no part of the closing address of the trial Crown.
122Finally, the motive to lie.
123This issue was raised for the first time in the closing address of defence counsel. The suggestion was that the officer lied about the alleged complaints concerning visitors to UPH01 to bolster the officer's grounds for the search warrant. This allegation was not put to the officer in cross-examination. In these circumstances, the instruction given does not reflect error.
Conclusion on Ground #1
124As I have explained, I would reject each discrete allegation of error advanced in connection with the first ground of appeal. Their rejection would seem to compel the same conclusion in respect of the argument that the charge was unfair and unbalanced. However, I acknowledge that a charge to the jury may be unfair and unbalanced despite the absence of any specific legal error.
125A claim of imbalance or unfairness in a jury charge requires an assessment of the instructions as a whole in light of the evidence adduced and the positions put forward by the parties at trial: R. v. Paredes, 2014 ONCA 910, 317 C.C.C. (3d) 415, at para. 41.
126Read as a whole, the jury instructions do not convey the impression that the trial judge was navigating the jury towards conviction. Her recitation of the principles governing proof of the essential elements of the various offences charged were free of error. Defence counsel advanced no objection based on unfairness. The positions of the parties received equal treatment. In no sense was the cause of the Crown promoted and that of the defence denigrated.
127In my respectful view, the first ground of appeal fails.
Ground #2: The Mid-Trial Charter Application
128The second ground of appeal alleges that the trial judge erred in failing to permit trial counsel to bring an application under s. 8 of the Charter at trial.
The Background
129A brief summary of the circumstances giving rise to the application is sufficient to frame the discussion that follows.
The Judicial Pre-Trial
130As a jury trial, a pre-hearing conference was mandatory under s. 625.1(2) of the Criminal Code, R.S.C., 1985, c. C-46. The Report to Trial Judge completed by the judge presiding at the pre-hearing conference indicated that defence counsel would be raising an issue about the search warrant’s description of the storage unit to be searched. When the pre-hearing conference was held, the appellant and David Davidson were jointly charged and to be jointly tried.
The Pre-Trial Charter Application
131When the parties appeared on the scheduled trial date, they indicated that they were ready for trial. There were no pre-trial Charter applications. A jury was selected. The trial began.
The Application at Trial
132In the middle of trial, after the property manager at the condominium and several police officers involved in the investigation, arrest and search had testified, the officer in charge of the investigation was called as a witness. The day after he concluded his testimony, defence counsel sought to challenge the reasonableness of the search of the storage unit on the basis that there was a discrepancy between the place described in the warrant (locker 1322) and that searched according to the officer (LUP22).
133The residential unit occupied by David Davidson and the appellant was located on the 13th floor of the condominium building. The building had only 13 floors, although floor 13 appears to have been designated as 14 or UPH. The storage unit for UPH01 was very close to the residential unit. It appears that there is no storage unit 1322, only storage unit LUP22, although the officer in charge of the investigation said he did not confirm whether there was a storage unit 1322 at the time of the search.
134The defence application was unsupported by any written material. No notice of application. No copy of the search warrant or ITO. Oral submissions only. The Crown resisted the application for want of timeliness, failure to comply with the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), S.I./2012-7, and the significant prejudice that would ensue from the interruption of trial proceedings in their penultimate stage and the need to recall several witnesses who had already testified and entered as exhibits the products of the search.
The Ruling of the Trial Judge
135In brief reasons, the trial judge declined to undertake a full hearing of the application. She was satisfied, on the basis of the evidence already admitted at trial, that the correct storage unit had been searched. At worst, there had been a technical breach because of a misdescription of the number of the storage unit. The evidence obtained in the search would nonetheless be admissible under s. 24(2) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. Thus, a full hearing of the application was not required.
The Arguments on Appeal
136The appellant accepts that it is generally incumbent upon an accused who alleges that evidence has been obtained by Charter infringement to challenge its admissibility before it is tendered at trial. The usual practice in a jury trial is to do so by a pre-trial application before the jury is selected. But the general rule permits of exceptions. The trial judge has a discretion, where the interests of justice warrant it, to permit the issue to be raised later, as for example, where evidence adduced at trial puts in issue the admissibility of evidence already given.
137In this case, the appellant says, the investigating officer's testimony differed from his notes. The appellant believed that the officer had sought confirmation of the storage unit number before the search had begun, but his testimony disclosed that the search had begun before confirmation had been received. On this basis, the search was warrantless and the trial judge should have undertaken an evidentiary hearing.
138The respondent says that it does not follow from a simple request for a voir dire that the party who seeks it is entitled to a full hearing. In the exercise of their trial management powers, trial judges are entitled to consider whether there is any reasonable prospect that the application will succeed. This is all the more so when the application is made in the waning moments of a criminal jury trial.
139In the exercise of their case management authority, the respondent continues, trial judges are entitled to ask for and receive a summary of the evidence on which the proposed application is based and the authorities relied upon in support of the application. Where the judge is satisfied that the proposed application has no reasonable prospect of success, the judge is entitled to dismiss the application without a formal hearing.
140In this case, the respondent submits, the application was not raised until the seventh day of trial. The case for the Crown was all but completed. Two witnesses remained. An expert in street-level distribution of controlled substances. And a former co-accused who, in the end, was not called as a witness. No pre-trial Charter applications had been made, despite a discussion at the pre-hearing conference. Defence counsel had advised the Crown in writing that no applications would be made at trial. The trial judge heard submissions from the parties. She concluded that the proposed application had no reasonable prospect of success. Her decision is subject to deference in this court. And on the merits, the decision was right.
The Governing Principles
141The governing principles are uncontroversial and in no need of elaborate recital.
142About three decades ago, this court made it clear that objections to the admissibility of evidence tendered by a party must be made before or when the evidence is proffered. This principle applies whether the alleged impediment is a common law or statutory rule or a constitutional infringement: R. v. Kutynec (1992), 1992 CanLII 12755 (ON CA), 70 C.C.C. (3d) 289 (Ont. C.A.), at pp. 294-95. This is so that the litigants, among them the Crown, can know when they tender or consider the tender of evidence whether the opposite party objects to its reception. Were it otherwise, the orderly and fair operation of the criminal trial process would be compromised, and ex post facto exclusion renders the trial process unwieldy at best. In a jury trial, the process could become inoperative, with a mistrial the potential result: Kutynec, at pp. 295-96.
143It is commonplace in jury trials in this province that applications to exclude evidence, irrespective of the genesis of the challenge, are brought, heard and determined at the outset of proceedings before jury selection. This is expressly authorized by s. 645(5) of the Criminal Code and underlies the enactment of the subsection: compare R. v. Dietrich (1970), 1970 CanLII 377 (ON CA), 1 C.C.C. (2d) 49 (Ont. C.A.), leave to appeal refused, [1970] S.C.R. xi.
144Pre-trial determination of admissibility issues settles the evidentiary landscape for trial. It avoids disruption of trial proceedings, promotes trial economy, and minimizes juror distraction and inconvenience. It also makes prudent use of limited court resources.
145Rule 31 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) governs applications to exclude evidence that is presumptively admissible at common law. Rule 31.01(c) makes it clear that the rule applies to applications to exclude evidence alleged to have been obtained by constitutional infringement where the exclusion is sought under s. 24(2) of the Charter. Procedural requirements include filing a notice of application not less than 30 days before the day first scheduled for pre-trial motions or the trial. Factums are not, but may be, required. However, the applicant must file the notice of application, a book of authorities and an application record.
146Under r. 34.02, the trial judge may conduct a preliminary assessment of any application on the basis of the materials filed. If the trial judge is satisfied that there is no reasonable prospect that the application could succeed, the judge may dismiss the application without further hearing or inquiry.
147In addition to the specific authority for which r. 34.02 provides, a trial judge has the undoubted authority to control the trial proceedings to ensure fairness to all concerned and preserve the integrity of the trial process. In the exercise of this inherent power, a trial judge may decline to entertain a motion brought without or on inadequate notice to the opposite party. This includes motions to exclude evidence based on Charter infringements: R. v. Loveman (1992), 1992 CanLII 2830 (ON CA), 71 C.C.C. (3d) 123 (Ont. C.A.), at pp. 125-27; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 38.
The Principles Applied
148For reasons that I will develop, I would not give effect to this ground of appeal.
149In this case, defence counsel (not counsel on appeal) sought to have the trial judge conduct a voir dire to determine whether the search of the storage unit was warrantless, and thus unreasonable in breach of s. 8 of the Charter. The ultimate object of the proposed exercise was the exclusion of the evidence obtained during the search, principally drugs (GHB), associated paraphernalia and some documents linked to both the appellant and Davidson.
150The Charter application, which had been bruited at the pre-trial conference, was not brought as a pre-trial motion, but on the seventh day of a jury trial in which no more than two witnesses remained in the case for the Crown. The evidence to which the application would apply had already been admitted and the witnesses who had described the search and its findings had completed their testimony. This included entry and exit videos of the search in issue.
151The argument to be advanced, so it would appear, was that the search of the storage unit was not conducted in accordance with the warrant because the warrant, which was not produced, specified the place of search as storage unit 1322, whereas the unit searched was designated LUP22.
152The trial judge's decision that is the subject of the complaint involved the exercise of discretion. It is entitled to deference in this court, but not immune from review, for errors of law or principle or a conclusion that is plainly unreasonable. No such error or unreasonableness has been established.
153The appellant had no as-of-right entitlement to a voir dire to determine the constitutional integrity of the storage unit search or the admissibility of the evidence recovered there. That evidence was relevant, material and admissible at trial. Its reception controverted no admissibility rule when it was received.
154The appellant's objection was not timely. As we have seen, the time to object to the admissibility of evidence is before or when the evidence is tendered for reception. That time had long since passed when this application was made. The evidence had been admitted. The searching officers had testified. Videos on entry and exit of the searched unit had been played and entered as exhibits. The remaining witnesses, only one of whom was actually called, had nothing to do with the search of the storage unit.
155Despite the timing of the application, the trial judge listened to the argument advanced, retired to consider whether to grant the request and concluded, for brief reasons, that she would not conduct a full admissibility inquiry. She was entitled to reach that conclusion in the circumstances of this case.
156The trial judge's management powers required her to control the trial proceedings so as to ensure trial fairness to all parties and preserve the integrity of the trial process. Trial proceedings had gone on for six days. The evidence that was the subject of the proposed inquiry was in the trial record. No more witnesses would have anything to say about the search. The case for the Crown was almost complete. The appellant had given no notice and filed no materials in support of the application. Indeed, the application was inconsistent with counsel's previously announced position that there would be no applications.
157The trial judge was also entitled to consider the impact of the proposed application on the trial process. Exclusion of and inconvenience to the jury. The time needed to prepare, serve and file a proper record. The recall of witnesses. Argument. Decision. And the consequences of that decision on the integrity of the trial proceedings if it resulted in exclusion.
158The trial judge was also entitled to consider the merits of the application. There was no suggestion that the search warrant had been improvidently granted. Or that the unit searched was not that associated with UPH01. Evidentiary exclusion was not in the cards.
159I would reject this ground of appeal.
The Sentence Appeal
160The appellant also appeals the sentence of imprisonment of five years imposed by the trial judge. He asks that we reduce the term of imprisonment to three years because the trial judge erred:
i. by misapprehending the evidence in finding the appellant made two sales to an undercover officer about four months before arrest and relying on this finding as a factor on sentence; and
ii. by rejecting evidence of the appellant’s mental health as a mitigating factor on sentence.
161The parties agree that we should set aside the victim surcharge of $1,600 ordered by the trial judge.
162In our assessment of the fitness of the sentence imposed, our analysis begins with the acknowledgment that sentences imposed by trial courts are entitled to substantial deference on appellate review: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 123, 125. Further, proportionality is the cardinal principle that must guide us in considering the fitness of the sentence imposed on the appellant. This means that the severity of a sentence depends not only on the seriousness of the crime and its consequences, but also on the moral blameworthiness of the person who committed it: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 12.
163Our intervention on an appeal from sentence is only warranted where the sentencing judge has erred in principle, failed to consider a relevant factor, or erroneously considered an aggravating or mitigating factor and the error has had an impact on the sentence imposed: Lacasse, at para. 44. Our intervention is not justified simply because we would have weighed the relevant sentencing factors differently: Lacasse, at para. 49, citing R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 46.
164A sentencing judge’s choice of a sentencing range, or a category within that range, lies within the discretion of the sentencing judge. The choice made cannot, on its own, amount to a reviewable error. On review, we are disentitled to intervene on the basis that we would have located the sentence in a different range or category within that same range. In such cases, our intervention is limited to cases in which the sentence imposed is demonstrably unfit. A sentence may be demonstrably unfit, despite the absence of error, because it is clearly or manifestly excessive or represents a substantial and marked departure: Lacasse, at paras. 49, 51-52.
165Turning first to the submission that the trial judge erred by relying on her misapprehension that the appellant had been involved in two pre-arrest drug sales to an undercover police officer as a factor on sentence.
166Evidence was adduced at trial that a sale of cocaine and MDMA to an undercover police officer took place in UPH01 about four months before the appellant's arrest. When the officer and his source arrived at the penthouse, David Davidson admitted them. Davidson walked into bedroom #1, had a conversation with an unknown man and came out of the room seconds later carrying a bag with brown capsules. It was this same bedroom in which the appellant was found and arrested four months later, along with a stash of drugs, cash and a driver’s licence.
167The record contains no evidence of a second drug sale to an undercover police officer at UPH01. Even if it could be inferred that the appellant was the person in bedroom #1 to whom Davidson spoke when he returned with the drugs to complete the sale to the undercover officer, there was no evidence of the appellant’s participation in two undercover sales. The trial judge erred in finding otherwise.
168Despite this erroneous reference by the trial judge, I would not give effect to the submission that this mistake had an impact on the sentence imposed.
169The erroneous reference appears only in an introductory portion of the reasons for sentence in which the trial judge described the circumstances leading up to the appellant’s arrest. It forms no part of the judge’s discussion of the positions of the parties, the applicable sentencing principles, the aggravating and mitigating factors, or the analysis and conclusions. It is of no moment to the sentencing decision.
170The second ground of appeal asserts error in the failure of the trial judge to consider the appellant’s mental health as a mitigating factor on sentence.
171In some circumstances, the mental illness or mental health of an offender may be considered as a mitigating factor on sentence. However, to have a material effect as a mitigating factor on sentence, the offender must show a causal link between their illness and their criminal conduct. Said in another way, the illness must be an underlying reason for the conduct. And there must also be evidence that a lengthy sentence would have a serious negative effect on the offender such that the sentence should be reduced on compassionate grounds: R. v. Prioriello, 2012 ONCA 63, 288 O.A.C. 198, at paras. 11-12.
172In this case, the appellant relies upon his own description of a prolonged “psychotic break"; a letter from his mother expressing concerns about the effect of “negative minded people" whom the appellant will encounter in custody on “his progress in life”; and a certification from a medical practitioner, apparently connected with the appellant’s attendance at a community college. The document contains a primary diagnosis of anxiety disorder without further explanation and post-dates the appellant's arrest by almost three years.
173However, none of this information on which reliance is placed suggests any real link between the appellant’s mental health and his involvement in an apparently well-established, for-profit drug trafficking operation. Nor did the information provide any support for a conclusion that a lengthy sentence would have a serious negative effect on the appellant. The operation offered a full menu of controlled substances. Significant quantities. Many Schedule 1 substances. Paraphernalia used for preparation and sale. And substantial funds reflecting prior commerce.
174The trial judge did not err in her rejection of the appellant’s mental health as a mitigating factor on sentence. This ground of appeal fails.
Disposition
175For these reasons, I would dismiss the appeal from conviction. I would grant leave to appeal sentence but dismiss the appeal from sentence except to the extent that I would set aside the victim surcharge of $1,600.
Released: “DW” April 27, 2021
“David Watt J.A.”
“I agree. M. Tulloch J.A.”
“I agree. L.B. Roberts J.A.”
