Court of Appeal for Ontario
Copeland, Gomery and Osborne JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Samuel Osei-Tutu
Appellant
Chris Rudnicki and Theresa Donkor, for the appellant
Vanita Goela, for the respondent
Heard: June 11, 2026
On appeal from the conviction entered by Justice M.J. Lucille Shaw of the Superior Court of Justice, sitting with a jury, on November 22, 2022.
1On October 7, 2017, Canadian Border Security Agency officers at Toronto Pearson International Airport found almost three kilograms of cocaine hidden in the false bottom of Samuel Osei-Tutu’s carry-on suitcase. Mr. Osei-Tutu had been selected for secondary screening after arriving on a flight from the Bahamas and responding to questions from a CBSA officer that appeared to contradict the information in his passport.
2Following a jury trial, Mr. Osei-Tutu was convicted of one count of importing cocaine and was sentenced to five and a half years in prison.1 On appeal, he argues that the trial judge made two errors. First, she erred by failing to instruct the jurors on the difference between disbelieved evidence and fabricated evidence and what if anything they could infer if they concluded that Mr. Osei-Tutu lied to the CBSA officer or during his in-court testimony. Second, she erred by suggesting in her charge to the jury that the Crown’s witnesses were inherently more reliable and credible because they took contemporaneous notes.
3While I agree that the jury instructions were flawed, in my view, Mr. Osei-Tutu was not prejudiced as a result. I would therefore dismiss the appeal.
The evidence at trial
4Mr. Osei-Tutu flew from Toronto to Trinidad on September 25, 2017.2 It was his third trip to the Caribbean in 2017. His two earlier trips had been to the Bahamas. He testified that he was travelling a lot that year to achieve a personal goal he had set for his thirtieth birthday.
5The trip to Trinidad was organized by Eppi, someone with whom Mr. Osei-Tutu had played basketball recreationally during college. According to Mr. Osei-Tutu, although they had lost touch for many years, he ran into Eppi at the Caribana festival in 2013 or 2014 and they exchanged Snapchat contact information. In 2017, Mr. Osei-Tutu loaned Eppi $1,000. Later that same year, while the loan was still outstanding, Mr. Osei-Tutu posted on Snapchat asking if anyone had “links on cheap tickets or flights”. In response, Eppi booked Mr. Osei-Tutu’s round-trip flights and hotels for the Trinidad trip for approximately $500. Eppi also promised that his friend, French, would take care of Mr. Osei-Tutu during his holiday.
6Mr. Osei-Tutu remained in Trinidad until October 6, 2017. He testified that while in Trinidad he went sightseeing to restaurants and to the beach. He also spent time with French and French’s friend, Nathan.
7On September 29, 2017, Mr. Osei-Tutu posted a picture on Snapchat showing that the carry-on bag he had brought on his vacation was broken. He testified that he bought a new bag from a local vendor for roughly 2,000 Trinidadian dollars. He said he thought this was the equivalent of around $200 Canadian but later agreed in cross-examination that the bag in fact cost the equivalent of about $360 Canadian.
8Mr. Osei-Tutu took a five-and-a-half-hour flight to the Bahamas on October 6, 2017. In his examination in chief, he said that he decided to go to the Bahamas while he was in Trinidad. He explained that, after traveling there twice that year, it felt like home to him, and that he wanted to reconnect with a woman he had met there. He testified that he asked French to contact Eppi to book the flight for him and send the booking information to French, because his phone had died.
9In cross-examination, Mr. Osei-tutu admitted that he had always planned to stop in the Bahamas. On the travel itinerary that Eppi had sent to him on September 24, before he left Canada, he was booked on a flight from Trinidad to the Bahamas on October 1. Mr. Osei-Tutu then recalled that he decided to take a later flight because he wanted to spend more time in Trinidad and he was not sure whether his friend in the Bahamas could meet with him. As a result, on October 3, Eppi booked Mr. Osei-Tutu on the October 6 flight. Mr. Osei-Tutu acknowledged that he could have recharged his phone. He said that his memory about these details was “foggy”.
10Mr. Osei-Tutu stayed in the Bahamas for only one night before flying back to Canada.
11When Mr. Osei-Tutu arrived in the customs area at Pearson airport on October 7, a CBSA officer approached him and asked him about his trip. Mr. Osei-Tutu’s evidence about his exchanges with this officer, who also conducted the secondary screening, was largely consistent with her testimony.
12The CBSA officer asked Mr. Osei-Tutu where he was coming from, and he replied: “Bahamas”. She asked him whether he had travelled anywhere else and he responded “no”. She asked him again, and he gave the same response. The CBSA officer then referred Mr. Osei-Tutu to the secondary screening area for a further examination. She testified that she did so because she saw stamps in his passport indicating that he had entered Trinidad in late September and the Bahamas on October 6, 2017. She also saw that he had travelled to the Bahamas twice before in the preceding seven months.
13In the secondary screening area, Mr. Osei-Tutu put his carry-on bag and laptop bag on a counter. He confirmed that the bags were his, he had packed them himself and that he was aware of their contents. When asked whether they were the same bags he had brought from Canada, he responded “yes”. At trial, Mr. Osei-Tutu explained that he responded this way without thinking that he had bought a new bag in Trinidad and that he should have clarified that it was just the laptop bag that he had brought from Canada.
14When the CBSA officer asked Mr. Osei-Tutu to empty his pockets, he did not remove the Trinidadian currency he was carrying. He testified that the currency was in the pocket of shorts he was wearing underneath his pants, and he had forgotten that it was there. He denied Crown counsel’s suggestion that he was trying to hide his trip to Trinidad.
15The CBSA officer testified that she emptied Mr. Osei-Tutu’s laptop bag and swabbed the contents of the bag for trace amounts of drugs. There was nothing of interest in the case and the swab was negative.
16The CBSA officer then asked Mr. Osei-Tutu for a third time whether he had travelled anywhere other than the Bahamas. He then acknowledged for the first time that he had travelled to Trinidad but said “that was before”. When the officer asked him why he did not tell her that earlier, he responded: “I thought you meant right now”. He testified at trial that she specifically asked him whether he had travelled anywhere else while he was in the Bahamas. The CBSA officer testified that she specifically asked him whether he had gone to any other country on his trip.
17Mr. Osei-Tutu told the officer that he went to Trinidad for a vacation because he had never been there before. When she asked for the name of the hotel where he stayed in Trinidad, he could not remember but eventually produced a card with the name of one of the two hotels where he had stayed while there.
18The CBSA officer then emptied Mr. Osei-Tutu’s carry-on bag. She saw that there appeared to be space between the inner lining at the bottom of the bag and the outer shell and that the bottom of the bag was very stiff. She also noticed that, when she lifted the bag up, it was unusually heavy for an empty bag. When she took an x-ray of the bag, it showed the presence of organic material in the space at the bottom of the bag.
19On further investigation, CBSA officers found that the bag had a false compartment hiding a plastic bag containing 2.8899 kg of cocaine. This quantity of cocaine would have had a value of between $96,000 and $346,000 in Canada in 2017, depending on how it was sold.
20When the CBSA officer told Mr. Osei-Tutu that he was under arrest for importing suspected narcotics into Canada, he said “What the –”. He testified that he was surprised since he had no idea that the bag had a false bottom or that he was carrying drugs. The CBSA officer could not recall whether he looked surprised, but her notes reflected that he remained calm throughout their exchange.
21Mr. Osei-Tutu was carrying two phones that were seized. An RCMP officer who examined the phones testified that some WhatsApp messages appeared to have been deleted.
22The only live issue at trial was whether Mr. Osei-Tutu knew that he was carrying drugs when he returned to Canada. In closing argument, his trial counsel suggested that Mr. Osei-Tutu was duped by Eppi, French, and Nathan, and that the drugs could have been planted in the carry-on bag without his knowledge while he was in Trinidad. The Crown argued that Mr. Osei-Tutu’s denial of knowledge was implausible based on cellphone messages, the false-bottomed bag, Mr. Osei-Tutu’s statements to the CBSA officer, and the weight and value of the cocaine.
Should the trial judge have given the jury a fabrication instruction?
23Mr. Osei-Tutu contends that the trial judge should have given the jury a fabrication instruction. In its closing argument, the Crown contended that Mr. Osei-Tutu’s interaction with the CBSA officer was evidence that he knew about the drugs in his suitcase. Mr. Osei-Tutu says that the trial judge should have explained to the jurors that, even if they disbelieved his explanation for his responses to the CBSA officer, they could not infer his guilt from this evidence unless they were satisfied that there was independent evidence on which they could find that he deliberately lied.
24This was the only fabrication argument raised in Mr. Osei-Tutu’s factum. In his oral submissions, however, he argued that the Crown’s cross-examination and closing argument suggested that Mr. Osei-Tutu consciously lied not only to the CBSA officer but also during his in-court testimony. He points out that, during Crown counsel’s cross-examination of Mr. Osei-Tutu, she accused him of not simply giving misleading or false answers to the CBSA officer, but of actively lying on the stand:
Q. Mr. Osei-Tutu, there is a very simple answer here and that’s you’re not being truthful with the court today.
A. I disagree.
Q. There’s a reason you can’t keep your story straight and that’s because it’s riddled with lies.
A. I disagree.
25Similarly, in her closing argument, Crown counsel suggested that Mr. Osei-Tutu’s evidence as a whole was fabricated. She told the jury that:
It is easy to tell the truth. It's hard to tell a lie from one person to another or from one question to the next without tripping up. It's the little things, the most obvious things in hindsight, that expose a lie. And common sense has a way of shining a light on those aspects of a story that turn out to be untruthful. Much of the evidence about how things unfolded in the time leading up to the cocaine being discovered, comes from Mr. Osei-Tutu. Now that you have heard all of the evidence in this case, it is for you to decide if you believe him.
26The Crown takes the position that the interaction between Mr. Osei-Tutu and the CBSA officer was not post-offence conduct, but rather circumstantial evidence of his conduct during the commission of the offence. No fabrication instruction was required, and its absence may have benefitted Mr. Osei-Tutu as an instruction would have highlighted the implausibility of his explanations for his conduct during the screening.
27I am of the view that the absence of a fabrication instruction with respect to Mr. Osei-Tutu’s statements to the CBSA officer did not compromise his right to a fair trial.
28The trial judge summarized the Crown’s argument in the charge as follows:
Mr. Osei-Tutu attempted to conceal his trip to Trinidad when he arrived in Canada. The Border Services officer asked where he traveled to, whether he traveled to any country other than the Bahamas, and he said no two times. When asked whether the bags in his possession were the same ones that he traveled from Canada with, he said yes and did not mention the new suitcase he purchased in Trinidad. When asked to empty his pockets of all the contents, he did not remove the Trinidad and Tobago currency.
29The Crown argues that no fabrication instruction was required based on caselaw from this court that an accused’s conduct during border screening may be circumstantial evidence with respect to their knowledge of the offence. The Crown relies in particular on R. v. Tomlin, 2014 ONCA 357, at para. 11, where this court said that:
It defies common sense to suggest that a trial judge may not take into account a deliberately false declaration made at the very same time as the act of importing is taking place, in assessing the credibility of the accused or as a piece of circumstantial evidence bearing on the events. In these circumstances, the false declaration did not amount to after-the-fact conduct, in our view, and need not have been subjected to the “other possible explanations” analysis [.]
30Tomlin is distinguishable, in my view. Mr. Tomlin admitted that he lied on his customs declaration. Mr. Osei-Tutu never admitted to fabrication. He testified that he was forgetful or misunderstood the CBSA officer’s questions. He denied that he consciously attempted to deceive her.
31As held in R. v. Iqbal, 2021 ONCA 416, 406 C.C.C. (3d) 208, at para. 52, “a trier of fact cannot use their rejection of an accused’s testimony as a piece of circumstantial evidence to convict in the absence of independent evidence that the testimony was deliberately fabricated or concocted to avoid culpability”. It is the accused’s attempt to deceive, rather than the disproved statement itself, that supports an inference of guilt. Fabrication must therefore be proved by evidence that is independent of the evidence that contradicts or disproves the exculpatory statement: R. v. Al-Enzi, 2021 ONCA 81, 401 C.C.C. (3d) 277, at para. 39, leave to appeal refused, [2023] S.C.C.A. No. 35.
32Given the requirement for independent evidence of fabrication, it would have been appropriate for the trial judge to caution the jury that it could not infer Mr. Osei-Tutu’s guilt simply because it disbelieved his explanation for his conduct and statements during the CBSA screening.
33Even where a fabrication instruction is required, however, its absence is not necessarily a reversible error. The fundamental question on appeal is whether, in the context of the case as a whole, the instruction given caused prejudice to the accused’s right to a fair trial: R. v. Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, at para. 106, leave to appeal refused, [2010] S.C.C.A. No. 263;Al-Enzi, at para. 43. Where a trial judge fails to advert to independent evidence of fabrication, “an appellate court may assess whether the record reveals sufficient such evidence to show that the trial judge’s omission did not prejudice the appellant”: Iqbal, at para. 69, citing R. v. Wright, 2017 ONCA 560, 354 C.C.C. (3d) 377, at paras. 48-50; Polimac, at para. 106; R. v. Selvanayagam, 2011 ONCA 602, 281 C.C.C. (3d) 3, at paras. 31-33.
34Here, there was ample independent evidence on which the jury could find that Mr. Osei-Tutu deliberately lied to the CBSA officer. As stated in R. v. Anderson, 2025 ONCA 408, 177 O.R. (3d) 241 (leave to appeal refused, [2025] S.C.C.A. No. 389; [2025] S.C.C.A. No. 390), at para. 60:3
In the context of out-of-court exculpatory statements (as opposed to statements made at trial), independent evidence of fabrication may consist of the circumstances in which an exculpatory statement was made, including its timing and whether it was made when the police did not suspect or have any reason to suspect the involvement of the accused. […] Examples of this type of evidence include the degree of detail provided in the out-of-court statement; its inherent implausibility; or internal inconsistencies[.] [Footnotes and citations omitted.]
35Furthermore, as this court observed in Polimac, at para. 106: “an instruction that highlighted the circumstances that would support a finding of fabrication were the jury to find inaccuracies in the appellant’s statements may well have only emphasized the powerful case to be made for fabrication in the circumstances of this case”. Had the trial judge given a fabrication instruction, she would have had to highlight the inconsistencies in and implausibility of Mr. Osei-Tutu’s explanation of his conduct during the CBSA screening. This may explain why no fabrication instruction was requested by his trial counsel.
36I likewise do not accept Mr. Osei-Tutu’s new argument, advanced for the first time in oral submissions, that the Crown invited the jury to find him guilty because he lied on the stand.
37In response to a question from the bench, Mr. Osei-Tutu’s counsel acknowledged that Crown counsel did not explicitly tell the jury to rely on its disbelief of his in-court statements as positive proof of guilt. Indeed, the Crown’s allusions to the possibility that Mr. Osei-Tutu had fabricated an account related to his knowledge of the drugs in his suitcase when he arrived back in Canada. The excerpt from his cross-examination where Crown counsel suggested that his evidence was “riddled with lies” was preceded by questions about his statements to the CBSA officer during the screening:
Q. You didn’t want Officer Sabah to know that you travelled to Trinidad, which is why you didn’t mention it originally, correct?
A. I disagree.
Q: And that’s because you were hiding what you did in Trinidad.
A: I disagree.
38Similarly, the passage from Crown counsel’s closing argument where she suggested that “common sense has a way of shining a light on those aspects of a story that turn out to be untruthful” was prefaced by: “I want to talk to you about Mr. Osei-Tutu's evidence, and why you should not believe him when he says he didn't know [about the drugs in his carry-on bag]”.
39The trial judge’s charge reflects her understanding that the Crown was arguing that Mr. Osei-Tutu’s knowledge of the drugs could be inferred from his behaviour and statements at the CBSA screening, as opposed to its rejection of his testimony. Her summary of the Crown’s position was that “Mr. Osei-Tutu attempted to conceal his trip to Trinidad when he arrived in Canada”. At no point during the charge did the trial judge suggest that Mr. Osei-Tutu’s knowledge of the drugs, or any other essential element of the offence, could be inferred if the jury believed he had lied about earlier events. Mr. Osei-Tutu’s trial counsel did not request a fabrication charge nor did his trial counsel object to the Crown’s cross-examination or closing argument. This suggests that, as far as he was concerned, the trial judge correctly summarized the Crown’s position.
40The judge also instructed the jury that Mr. Osei-Tutu was presumed innocent, that he should be acquitted if there was a reasonable doubt based on his evidence or the evidence of the whole, and that his interest in the outcome of the case could not be considered in assessing his credibility.
41A jury charge must be read as a whole and in the context of the trial proceedings and closing arguments, and bearing in mind that an accused is entitled to a properly instructed jury, not a perfectly instructed one: R. v. Morris, 2026 ONCA 140, 457 C.C.C. (3d) 362, at para. 31, citing R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at para. 35. Having done so, I conclude that the jury could not have reasonably inferred from the charge that it could find Mr. Osei-Tutu guilty simply because it disbelieved his in-court testimony.
The instruction regarding "professional" and "civilian" witnesses
42Mr. Osei-Tutu argues that the trial judge erred by suggesting to the jury that the Crown’s witnesses were inherently more credible and reliable than the defence witness. The Crown’s witnesses were all either CBSA officers, RCMP officers or RCMP employees. Mr. Osei-Tutu was the only witness for the defence. In instructing the jurors about how to assess the evidence, the trial judge characterized the Crown’s witnesses as professional witnesses and Mr. Osei-Tutu as a civilian witness. She said:
Throughout the course of the trial, you heard the officers refer to their notes. RCMP and [CBSA] officers are obligated by law to keep notes in certain circumstances. The notes themselves are not exhibits and are not evidence. While the officers are permitted to review their notes to refresh their current memory of the events, it is the witness’s testimony that is the evidence in the case for you to consider.
In contrast, Mr. Osei-Tutu is a civilian witness. He has probably never testified in court before. He was not required to take notes at the time of the allegations. The difference between the two types of witnesses is a circumstance you may want to consider.
Another important issue for you to consider is how and if the delay in this case has affected the reliability and credibility of a witness’s evidence. You may consider the effect this lapse of time has had on memory. Law enforcement officers take notes so that assists with their recollection. Defence witnesses generally do not. They rely on their recollection. You should keep that in mind during your deliberations.
43The trial judge further instructed the jury:
Bear in mind anything else that may make the witness’s evidence more or less reliable including whether notes were taken, the passage of time, and the stress of the situation. Whether a witness has taken notes about a conversation does not in itself determine how reliable that witness’s testimony may be. It is, however, one of the things that you may consider in deciding whether and how much of the witness you believe. You may also wish to consider the passage of time in this case.
44Mr. Osei-Tutu takes issue with the trial judge’s reference to how the lapse of time and taking of notes could affect not just the reliability of a witness’ evidence but also their credibility. He contends that the jury could understand this instruction as an invitation to find that the Crown’s witnesses were inherently more reliable and that Mr. Osei-Tutu was generally less believable. Mr. Osei-Tutu submits that inferring a baseline reliability of Crown witnesses in this way may erroneously shift the burden of proof to the accused.
45The trial judge’s instructions on this point were not ideal but, in my view, no prejudice flowed from them.
46An inexperienced witness might seem nervous, uncertain or agitated, even though they are telling the truth. An experienced but unreliable witness might appear calm. Although unusual, the description of the Crown’s witnesses as “professional” and Mr. Osei-Tutu as a “civilian” witness may have been intended to convey this point to the jury. The trial judge noted that Mr. Osei-Tutu had probably never testified before and alluded to the “stress of the situation”. Earlier in her instructions, she cautioned the jury not to rely unduly on a witness’ demeanor.
47It was furthermore not an error for the trial judge to instruct a jury that a witness’ contemporaneous notes could assist them in remembering events, in particular when those events occurred years earlier. She cautioned the jurors that notes are not evidence, and that “[w]hether a witness has taken notes about a conversation does not in itself determine how reliable that witness’s testimony may be”.
48I nevertheless agree with Mr. Osei-Tutu that the trial judge’s instructions could have suggested to the jury that the Crown’s witnesses were inherently more reliable. She reminded the jury several times that Crown witnesses had the means to refresh their memory whereas Mr. Osei-Tutu did not. She furthermore told the jurors that the passage of time could affect both the reliability and credibility of a witness’ evidence. This was not the only time she gave an instruction to this effect. She later repeated that “As I noted earlier, you may consider that the events took place five years ago when assessing the credibility and reliability of the witness’s evidence.” The jury had been told that credibility and reliability were distinct concepts. The trial judge had explained how they differed; she told the jury that “[r]eliability has to do with the accuracy of a witness's evidence” whereas “[c]redibility has to do with whether the witness is telling the truth”.
49The passage of time may affect the reliability of a witness’ testimony, but not the witness’ credibility. A witness’ access to contemporaneous notes could likewise enhance the reliability of their testimony, but not their credibility. Even in the absence of the trial judge’s misstatements on these points, her repeated instructions to the jury about the impact of notes could have prejudiced an accused who was the only “civilian” witness who testified at trial.
50In the circumstances of this case, however, I find that Mr. Osei-Tutu was not prejudiced as a result of the instruction.
51First, the focus of the impugned passages were the conversations between Mr. Osei-Tutu and the CBSA officer who questioned him. The parties agreed at the pre-charge conference that there were no material inconsistencies in the evidence about the CBSA officer’s questions and Mr. Osei-Tutu’s responses. There was therefore no risk that the jury would prefer the evidence of the Crown’s witness over that of Mr. Osei-Tutu to his detriment.
52Second, at the pre-charge conference, Mr. Osei-Tutu’s trial counsel acknowledged that he had considered whether this part of the trial judge’s charge was prejudicial and concluded that it was not. He said:
[W]hen I made the notes on professional witnesses, I, I, I thought for a moment there that the, the, the jury may believe that because they’re professional witnesses, they are more believable but when I reread the rest of the paragraph, I realized it was about just notes, and because they have the ability to take – to make notes and that was the distinction, so I, I am okay with it.
53The absence of an objection by defence counsel to a proposed instruction does not automatically immunize it from appellate review: Morris, at para. 35, citing Abdullahi, at para. 67. Trial counsel specifically considered whether the instruction could prejudice his client, however, and elected not to object to it: Abdullahi, at paras. 68-69. This leads me to conclude that the failure to object was deliberate and strategic.
54Although I am satisfied there was no prejudice to the appellant in the circumstances of this trial, trial judges should avoid in jury instructions juxtaposing “professional” witnesses, who have notes, with “civilian” witnesses who do not. The practical reality is that in most trials, the “professional” witnesses with notes will be Crown witnesses and the accused and other defence witnesses are much less likely to have notes. Focusing on this distinction, absent a clear case-specific reason to do so, risks suggesting to jurors that the “professional” witnesses with notes are more reliable than the “civilians” without notes, which could tend to undermine the Crown’s burden of proof.
Disposition
55I would dismiss the appeal.
Released: July 8, 2026 “J.M.C.”
“S. Gomery J.A.”
“I agree. J. Copeland J.A.”
“I agree. Osborne J.A.”
Footnotes
- Mr. Osei-Tutu received a credit of six months for his pre-trial detention so that the net custodial sentence was 5 years.
- The CBSA officer testified that the passport stamp showed entry into Trinidad on September 28, but the parties agreed that Mr. Osei-Tutu arrived there three days earlier.
- Although this passage appears in the dissent, it was endorsed by the majority: Anderson, at para.117.