Court of Appeal for Ontario

Date: May 24, 2018

Docket: C60764

Judges: Epstein, Paciocco and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

Meshach Brown Appellant

Counsel:

• Richard Litkowski and Jessica Zita, for the appellant
• Shawn Porter, for the respondent

Heard: November 27, 2017

On appeal from the convictions entered on October 29, 2014, and the sentence imposed on December 18, 2014, by Justice Michael R. Dambrot of the Superior Court of Justice, sitting with a jury.

Epstein J.A.:

Introduction

[1] After a two-week trial by judge and jury, the appellant was convicted of various possession offences under the Criminal Code, R.S.C. 1985, c. C-46 and the Controlled Drugs and Substances Act, S.C. 1996, c. 19. He was sentenced to nine years and three months' imprisonment, after receiving three months' credit for pre-trial custody.

[2] The appellant appeals both conviction and sentence.

Background

The Arrest, Search and Related Charges

[3] In July 2011, two visitors to Toronto were robbed in their hotel room. Police made a number of arrests in connection with the robbery and obtained warrants for suspects who were identified but could not be located. The appellant was one of the suspects. In August 2012, police obtained a tracking warrant and assistance order for two cell phones they believed belonged to the appellant and traced them to a home in Brampton. Police set up surveillance on that location.

[4] In September 2012, the appellant was observed briefly emerging from the residence under surveillance and then re-entering the premises. He was arrested later that day after leaving the house. Following the arrest, the police seized a cellphone from the appellant and performed a cursory examination of the device. Pending the issuance of a search warrant, the police entered and secured the residence. Once inside, they learned that it belonged to the appellant's common law spouse, Melissa Edwards, who was also a suspect in the robbery.[^1] The police then obtained a telewarrant to search Ms. Edwards' house for evidence connected to the robbery. In the ITO the premises was identified as the residence of both the appellant and Ms. Edwards.

[5] During the execution of the warrant, the police found the following items in Ms. Edwards' bedroom: (i) a loaded TEC-9 machine pistol (the "Gun") with a high capacity magazine containing eight 9mm rounds of ammunition; (ii) further ammunition; (iii) an ounce of crack cocaine; (iv) $750 in cash; (v) a digital scale; (vi) dime bags; (vii) several cell phones; (viii) a white T-shirt believed to have been worn by the appellant during the hotel robbery; and (ix) an Ontario health card in the appellant's name with his photograph on it (collectively, the "Disputed Items").

[6] Pursuant to a second search warrant, issued a few months after the initial search, the police conducted a forensic examination of the appellant's cell phone. The examination yielded four photographs of a firearm resembling the Gun (the "Photographs").

[7] Based on the Disputed Items and the Photographs, the appellant was charged with various offences including possession of a loaded prohibited firearm without a license, with an overcapacity magazine, and with a defaced serial number, possession of cocaine for the purpose of trafficking, and possession of the proceeds of crime.

The Pre-trial Motions and Evidence at Trial

[8] The appellant brought a number of pre-trial motions to exclude the Disputed Items and the Photographs.

[9] The trial judge found that the manner of the police entry and "freezing" of Ms. Edwards' home without a warrant breached s. 8 of the Charter. Specifically, he concluded that there was no evidence demonstrating that the police knew the appellant actually resided in the home before conducting the search – all they knew was that the appellant had been in the premises for a three-hour period that day. This information, in the trial judge's view, was insufficient to ground a reasonable belief that the appellant's possessions, or any evidence connected to the robbery, would be found in the residence.

[10] Further, the trial judge concluded that after excising the fruits of the warrantless search of the residence, the police had no basis to believe any of the robbers lived at the residence or that the appellant had a sufficient connection to the premises to ground a belief that any evidence connected to the robbery was there. Accordingly, the search of the home pursuant to the warrant also violated s. 8. Both breaches stemmed from a single common cause – the absence of sufficient evidence to justify the conclusion that the evidence sought was likely to be found at Ms. Edwards' residence.

[11] However, the trial judge declined to exclude the Disputed Items under s. 24(2). He found the officers' conduct to have been "exemplary" and the errors that resulted in s. 8 violations flowed from exigent circumstances. He concluded that the Disputed Items were properly admissible after balancing the factors identified in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

[12] The trial judge next considered the appellant's motion to exclude the Photographs – evidence upon which the Crown sought to rely in support of the Gun-related charges.

[13] The trial judge first held that the cursory search of the cell phone upon arrest without a warrant was justified. He then concluded that the search of the appellant's cell phone pursuant to the second warrant did not violate s. 8. He admitted the Photographs into evidence, reasoning that they were circumstantial evidence that could connect the appellant to the Gun. The trial judge found that any prejudicial effect of the Photographs would be ameliorated by the Crown's undertaking not to advance a propensity-based argument and the limiting instructions he undertook to provide.

[14] The critical contested issue at trial was knowledge of the Gun.

[15] The Crown's position was that the appellant knew of the presence of the Gun. The Crown relied on the fact that the ammunition found in a drawer in the bedroom was the same type as that found in the firearm. The Crown argued that common sense led to the conclusion that the person who put the Gun in the room also put the ammunition in the room.

[16] Alternatively, the Crown argued that, based on the testimony of Mr. Khamara Dalamba, the appellant's brother, the appellant was wilfully blind to the fact that the bag contained the Gun. Specifically, Mr. Dalamba testified that the Gun was his and he had left it in Ms. Edwards' residence without the appellant's knowledge. He brought the Gun with him when he visited the appellant at Ms. Edwards' home on September 5, 2012. He carried the Gun in a knapsack – the knapsack in which the police later discovered the Gun. Mr. Dalamba explained that he was a drug dealer and carried the Gun for personal protection, but left it at Ms. Edwards' place that day because he was planning to see a girlfriend and did not want to bring it with him. Counsel for the appellant argued there was no air of reality to wilful blindness as a substitute for knowledge of the Gun. He also argued that an instruction on the test set out in R. v. W.(D.), [1991] 1 S.C.R. 742, was necessary in relation to Mr. Dalamba's testimony.

[17] The trial judge concluded that it was appropriate to leave wilful blindness with the jury, and that a W.(D.) instruction was not necessary because Mr. Dalamba's testimony did not conflict with the Crown's case: even if the jury believed Mr. Dalamba, they could still convict the appellant on the basis of the appellant's wilful blindness.

The Verdict

[18] The jury convicted the appellant of the following charges:

• possession of a prohibited firearm without a license (count 1);
• possession of an over capacity magazine (count 3);
• possession of a firearm knowing that the serial number was defaced (count 4);
• possession of cocaine for the purpose of trafficking (count 6); and
• possession of proceeds of crime (count 8);

[19] Following the jury's verdict, counsel for the Crown and the appellant consented to the evidence heard on the trial applying to a second indictment alleging three counts of possessing a firearm while prohibited from doing so contrary to s. 117.01 of the Criminal Code, and the trial judge found the appellant guilty on those counts (the "Second Indictment Convictions").

[20] The appellant appeals on a number of grounds in relation to admission of evidence resulting from the pre-trial rulings and alleged errors in the trial judge's jury instruction.

Issues

A. The Conviction Appeal

[21] The issues raised in the conviction appeal fall into two broad categories: 1) the pre-trial rulings; and 2) the trial judge's instructions to the jury.

[22] After hearing the submissions of counsel for the appellant, the panel determined not to give effect to the arguments arising out of the trial judge's pre-trial rulings and the Crown was not asked to respond to these arguments.

[23] In accordance with this decision at the hearing, I would dismiss the appeal in relation to the challenged pre-trial rulings. I see no reason to interfere with the trial judge's conclusions concerning the appellant's s. 8 arguments or his s. 24(2) analysis. The trial judge considered the relevant factors and the appellant has identified no error in principle in his decisions.

[24] This leaves the following issues for consideration:

1. Did the trial judge err in his charge concerning the use the jury could make of the Photographs?
2. Did the trial judge err by failing to provide the jury with a W.(D.) instruction in relation to the evidence of Mr. Dalamba?
3. If there was an error, should this court apply the curative proviso under s. 686(1)(b)(iii) of the Criminal Code to sustain the conviction?

[25] For the reasons that follow, I would allow the appeal with respect to the grounds arising out of the trial judge's jury instructions, and set aside the convictions on counts 1, 3 and 4, outlined above, and the Second Indictment Convictions. I conclude the trial judge erred in failing to provide a limiting instruction to the jury on the use they could make of the Photographs, and in failing to give a necessary W.(D.) instruction with respect to the evidence of the appellant's brother. I would also reject the Crown's argument that the curative proviso should be applied such that the convictions on those counts can nonetheless stand.

Analysis

(1) Did the trial judge err in his charge relating to the use the jury could make of the Photographs?

[26] The appellant submits that the trial judge erred in failing to provide a limiting instruction on the use the jury could make of the Photographs. This issue must be considered against the backdrop of the trial judge's rejection of the appellant's argument that the Photographs should not be admitted into evidence on the basis that their prejudicial effect exceeded their probative value. I will turn to that first.

(a) The admissibility of the Photographs

[27] At trial, defence counsel conceded that the Photographs found on the appellant's cellphone depicted a firearm that was "at least probably" the same make or model of firearm as the one found in the bedroom, namely, a TEC-9 prohibited machine gun commonly associated with violent crime.[^2]

[28] The Crown offered those Photographs as circumstantial evidence of the appellant's possession of the Gun. While the Crown did not identify the precise circumstantial inference it was seeking to have the jury draw, the Photographs support only two possible inferences. The first is that the Photographs are of the actual gun that was found. The second is that because the appellant has an interest in guns similar to the one found, it was likely he came to possess such a gun. This latter inference invites impermissible general propensity reasoning, since the inference necessarily entails the conclusion that the appellant has shown himself to be the kind of person likely to possess such a gun.

[29] The appellant resisted the admission of the Photographs on the basis that their prejudicial effect outweighed their probative value. The appellant argued that the Photographs were prejudicial because they put the onus on the appellant to explain their origin, which was unclear, and that they had the potential to encourage the jury to engage in impermissible propensity reasoning. Further, the Photographs had limited probative value because there was no evidence of how they came to be stored on the appellant's cell phone, or that the images of the firearm in the Photographs were actually images of the Gun.

[30] The Crown argued that it had no intention of making a disposition-based argument. Against that background any prejudice from the Photographs was minimal. In his discussions with counsel during argument the trial judge noted that: "[T]he Crown will not say that [the appellant is] the kind of person who likes guns and I will tell the jury, obviously, you can't draw an inference that he's a gun lover and therefore on this occasion had a gun. The purpose is the one that we know about" (emphasis added).

[31] The trial judge admitted the Photographs, finding that he did not see any prejudicial effect from their admission. He agreed with the Crown that the Photographs were circumstantial evidence that connected the appellant to the Gun and therefore had some probative value. Addressing the appellant's concerns about propensity-based reasoning, the trial judge stated, "Of course the Crown can't put a disposition-type position to the jury, as a result of the finding of [the Photographs] and from what Crown counsel has said, I don't, I don't take, I don't imagine that that will be said to the jury, and in any event, I'll give the jury appropriate direction about the use they can and cannot make of the [Photographs]" (emphasis added).

[32] Before this court the appellant submits that the trial judge erred in his analysis of the balancing of the probative value and prejudicial effect of the Photographs. The prejudice, the appellant says, lay in the potential for propensity reasoning from pure bad character, and the probative value was low because the genesis of the Photographs was vague, at best.

[33] The Crown argues on appeal that the Photographs did not constitute extrinsic evidence of misconduct. Further, because Crown counsel made it clear that she had no intention of advancing a disposition-based argument in her submissions to the jury, any prejudice occasioned by the admission of the Photographs was minimal or non-existent.

[34] A trial judge's balancing of probative value and prejudicial effect in connection with evidence of disreputable conduct is entitled to a high degree of deference on appeal: R. v. Higginbottom (2001), 150 O.A.C. 79 (C.A.), at para. 9; R. v. Samuels, 2013 ONCA 551, 310 O.A.C. 175, at para. 47.

[35] In these circumstances I would not interfere with the trial judge's decision to admit the Photographs into evidence. It was common ground that it was open to the jury to find that the images in the appellant's cell phone were of the Gun. In such a case, they would be highly probative to the issue of possession. Any possible prejudicial effect could be minimized through the two controls identified by the trial judge – the Crown's undertaking not to make a propensity-based argument and the trial judge's undertaking to provide a limiting instruction to the effect that the jury was not entitled to infer from the Photographs that the appellant, as the type of person who has a picture of a gun on his phone, would be more likely to possess a gun.

[36] The two undertakings provided were critical to the admissibility of the Photographs; without them the Photographs had the potential to be highly prejudicial to the appellant. This takes me to what happened at trial in relation to the undertakings.

(b) The jury instructions relating to the Photographs

[37] As promised, the Crown did not invite the jury to engage in propensity reasoning. At no point did the Crown suggest that the appellant, by virtue of having the Photographs on his phone, was the type of person more likely to possess the Gun. Moreover, the Photographs did not play a prominent role in the Crown's case: Crown counsel made a solitary, brief reference to the Photographs in closing.

[38] However, the appellant argues that the trial judge made two errors in his jury instructions in relation to the Photographs. First, he submits that the trial judge overemphasized the similarity between the weapon depicted in the Photographs and the Gun. Second, the trial judge failed to provide the promised limiting instruction on the use the jury could make of the Photographs. The appellant submits that the trial judge's failure to do so amounts to a reversible error.

[39] I agree with the Crown that the trial judge did not overemphasize the similarity between the firearm in the Photographs and the Gun. The trial judge specifically noted in his charge that the Photographs "were images of the same or similar gun" (emphasis added). However, as I outline below, I do not think this inoculates against the need for the limiting instructions that the trial judge himself promised to give.

[40] The Crown conceded in oral argument that the trial judge failed to warn the jury against the dangers of disposition-based reasoning when considering the Photographs and that an instruction on this point would have been preferable. However, the Crown argues that a limiting instruction on this point was unnecessary because (i) the Photographs were not obviously "extrinsic" evidence, since they appeared to depict the very firearm seized from the appellant's bedroom or a gun of a similar make and model; and (ii) they did not give rise to the traditional dangers of disposition-based evidence: the possession of the Photographs did not suggest the appellant was a "bad person", give rise to the fear that the jury would seek to punish the appellant for past misconduct, or deflect the jury from the question posed in the case. Significantly, the Crown did not ask the jury to engage in impermissible propensity or disposition-based reasoning.

[41] As I have already intimated, I do not agree with the Crown that the trial judge's failure to provide that limiting instruction, which he undertook to provide, is quite so benign.

[42] The ultimate probative value and prejudicial effect of the Photographs turned on the jury's factual findings: both parties accept that if the jury found that the Photographs were of the Gun, they would be highly probative to their determination of whether the appellant had knowledge of the Gun. In such a circumstance the Photographs would not be extrinsic character evidence – they would be relevant circumstantial evidence of possession, as the Crown submitted at trial. However, if the jury found that the firearm in the Photographs was not the Gun, then the Photographs had the potential to lead the jury to conclude that the appellant, as the type of person who looks at pictures of guns on his cell phone, was more likely to possess a prohibited gun associated with criminal violence.

[43] All evidence of general propensity, disposition, or discreditable conduct is presumptively inadmissible: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 31-36; R. v. Cloutier, [1979] 2 S.C.R. 709, at p. 731. Whether such evidence gains admission depends upon whether "the probative value of the evidence in relation to a particular issue outweighs its potential prejudice": Handy, at para. 55. Evidence that does no more than reveal the general, discreditable disposition of the accused will not meet this standard since "proof of general disposition is a prohibited purpose" (emphasis in original): Handy, at para. 72. Evidence revealing general propensity, disposition or general discreditable conduct must have some other probative purpose that outweighs the risk of prejudice it presents.

[44] Even where evidence that shows an accused's bad character or general propensity is admitted, it should be accompanied by a clear instruction to the jury that they cannot use that evidence in order to conclude that the accused is a bad person or is of a certain general disposition and is therefore more likely to have committed the offence charged: R. v. Chambers, [1990] 2 S.C.R. 1293, at p. 1311. The jury needs to understand the purposes for which it can use such evidence in its deliberations: in certain circumstances it is necessary to instruct the jury not to reach a conclusion based upon general propensity or bad character: R. v. Chamot, 2012 ONCA 903, 302 O.A.C. 104, at para. 61; R. v. Selles (1997), 34 O.R. (3d) 332 (C.A.).

[45] If the jury were to come to the conclusion that the Photographs were not of the Gun then it would follow that the appellant had images of another similar weapon in his cell phone. In my view, the jury needed to be instructed as to what use they could make of the Photographs in that event. The answer, of course, is none – if the jury concluded that the Photographs were not of the Gun, then the Photographs could only be relevant insofar as they were evidence of general propensity, and should accordingly not have been considered. The trial judge should have provided clear instructions that the Photographs were of no assistance if the jury were to conclude that the firearm images in the Photographs were not of the Gun, and provided express guidance on what use the jury could have made of the Photographs if they were uncertain of whether they depicted the Gun.

[46] In my view, the combination of factors surrounding the admission of the Photographs and related references to the jury charge renders the failure to give the jury any guidance about the use they could make of this evidence serious. The ruling that the Photographs were admissible depended in part on the jury's receiving proper limiting instructions. The trial judge expressly undertook to provide such instructions, but did not do so. The potential prejudice was heightened because of the general similarity between the extrinsic misconduct and the offence before the court: possessing pictures of a gun and actually possessing a similar gun.

[47] Finally, given the potential prejudicial effect of the Photographs identified above, I am of the view that the positions taken by counsel were insufficient to temper the risk of the jury's engaging in propensity reasoning – the relevant concern relates to the effect of the evidence, and not necessarily the use the Crown put to it. Although Crown counsel did not rely on the Photographs in her submissions to the jury, neither did the Crown actively dissuade the jury from the impermissible line of reasoning I have just set out. More is required than for counsel to put the evidence out there and let the jury make of it what they will.

[48] Although, as this court held in R. v. Beausoleil, 2011 ONCA 471, 277 C.C.C. (3d) 50 (C.A.), at paras. 19-21, a failure to provide limiting instructions of this nature will not necessarily result in reversible error, here there was a real risk that the jury would use the evidence of the Photographs for an improper purpose. In such circumstances the trial judge must caution against the misuse of this evidence, and the trial judge's failure to do so here was an error: Chamot, at para. 62.

[49] I note that the appellant's trial counsel did not object to the trial judge's failing to charge on this point. A failure to object is a factor to be taken in to account when considering a non-direction to the jury, but it is not determinative of the analysis: Chamot, at para. 73; Samuels, at para. 50. This failure does not impact my analysis above – particularly in the light of the significant risk that the jury could misuse the evidence absent a limiting instruction, and the trial judge's undertaking to include such a limiting instruction in his charge.

[50] For these reasons, subject to my analysis below of the Crown's reliance on the curative proviso, I find the failure to provide the jury with limiting instructions concerning the Photographs to be a reversible error.

(2) Did the trial judge err by failing to provide the jury with a W.(D.) instruction in relation to the evidence of Mr. Dalamba?

[51] Just as the appellant's argument concerning the trial judge's failure to give limiting instructions concerning the Photographs must be considered in the context of his earlier ruling allowing the Photographs into evidence, the argument that the trial judge erred by failing to give a W.(D.) instruction in relation to Mr. Dalamba's evidence must be considered in the light of the trial judge's decision to leave wilful blindness as a route to conviction. I turn now to this issue.

(a) Wilful blindness as a route to conviction

[52] The trial judge told counsel that he was not going to provide the jury with a W.(D.) instruction because even if the jury believed Mr. Dalamba, they could still convict the appellant based on wilful blindness. Specifically, he said to the appellant's counsel:

You, in effect, urged the W.(D.) instruction on the jury in respect of the witness called by defence and while I appreciate that in some circumstances the W.(D.) instruction is appropriate for that, in that circumstance, what concerns me about this is that the jury could believe the evidence of the witness and still find the accused guilty on the basis of wilful blindness. I know you don't agree that wilful blindness should apply, but I've already said I'm going to give them wilful blindness. So, I'm not gonna correct what I think is an error in your, jury charge, I'm gonna leave that as it is, but I'm not gonna give that instruction… it's not correct to say "If you believe the evidence of the witness you must acquit the accused of that charge", because you still have the possibility, as I analyze it, of applying wilful blindness.

[53] The trial judge then instructed the jury on the applicability of the doctrine of wilful blindness to counts 1 and 3 (possession of the Gun and possession of the magazine). He told the jury there was evidence from which they could infer that the appellant was wilfully blind about the contents of the knapsack in the closet: Mr. Dalamba testified (i) the appellant knew that he had left the knapsack in the closet; (ii) he had told the appellant that he was a drug dealer; and (iii) he had mentioned to the appellant that there were a "couple people that [he, Mr. Dalamba] had problems with", including possibly mentioning that some of them were "after him".

[54] The appellant submits that the trial judge erred by leaving wilful blindness as a possible route to conviction on this evidence. The appellant argues there was no evidentiary basis for the suggestion that the appellant was presented with a set of circumstances that fixed him with an "aroused suspicion" that required him to make further inquiries. The combination of his knowledge of Mr. Dalamba's drug dealing and that Mr. Dalamba told the appellant about some difficulties he was having with certain people is too tenuous to support a theory of wilful blindness.

[55] The Crown argues there was an air of reality to wilful blindness as a substitute for the appellant's actual knowledge of the Gun. Mr. Dalamba's evidence, combined with the known association between drug dealing and weapons possession, meant that the appellant knew there was a need to inquire into the knapsack's contents but refrained from doing so in order to avoid being fixed with knowledge. In the alternative, the Crown submits that even if willful blindness should not have been left with the jury, the trial judge's doing so occasioned no substantial wrong or miscarriage of justice in this case: because the jury convicted the appellant of the count 4 – possession of a firearm with a defaced serial number (to which all parties agreed wilful blindness was not available) – then the jury's findings on counts 1 and 3 also cannot be explained by wilful blindness.

[56] In my view, the trial judge erred in instructing the jury on wilful blindness. The Crown's argument that wilful blindness was made out by a duty to investigate the contents the bag that Mr. Dalamba left understates the threshold of knowledge required for willful blindness to be established. Willful blindness is not simply a failure to inquire, but "deliberate ignorance" involving "an actual process of suppressing a suspicion": R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 24, citing Don Stuart, Canadian Criminal Law: A Treatise, 5th ed. (Toronto: Carswell, 2007), at p. 241. To be wilfully blind an accused must "shut his eyes because he [knows] or strongly suspect[s] that looking [will] fix him with knowledge": R. v Jorgensen, [1995] 4 S.C.R. 55, at para. 103.

[57] The Supreme Court of Canada has endorsed an articulation of this standard requiring that the appellant realize "the fact in question is probable, or, at least, 'possible above the average'", and that the appellant "suspected the fact; he realized its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge": Jorgensen, at para. 102, citing Glanville Williams, Criminal Law: The General Part (2nd ed. 1961), at pp. 157-59. This level of subjective suspicion must be high in order to substitute for knowledge; it must be that it "can almost be said that the [appellant] actually knew" the Gun was in the bag: R. v. Farmer, 2014 ONCA 823, 32 O.A.C. 175, at para. 26; Morris Manning, Peter Sankoff, Criminal Law, 5th ed. (Markham: LexisNexis, 2015), at p. 236.

[58] That standard, in my view, was not made out on the facts here.

[59] For wilful blindness to be made out it is not enough for the evidence to support the inference that there was reason for the appellant to suspect something untoward, or even that there was some unknown contraband in the knapsack. Wilful blindness has to replace knowledge of the Gun: R. v. Malfara (2006), 211 O.A.C. 200, at paras. 3-4; R. v. Blondin (1970), 2 C.C.C. (2d) 118 (B.C.C.A.), at pp. 121, 131-132; R. v. Sauve and Stewart, 2016 ONSC 6896, at para. 44. The parties agreed there was no basis to support the appellant's having a suspicion there was a firearm in the bag with a defaced serial number; for the same reasons, on the same standard there was no evidence of the appellant's having an "aroused suspicion" of any firearm at all being in the knapsack – as opposed to simply drugs, other illegal items, or nothing at all. There must have been evidence to support a finding that the appellant had a strong subjective suspicion that the bag contained a gun but decided not to look to avoid confirming that suspicion.

[60] In my view there is no evidentiary foundation for such a finding. It was therefore an error to leave wilful blindness as a route to conviction.

[61] However, I see no substantial wrong or miscarriage of justice as a result of this error on the basis of the Crown's alternative submission: Criminal Code, s. 686(1)(b)(iii). Since the jury found the appellant guilty of the charge of possessing a weapon knowing the serial number had been defaced (count 4), it is clear that the jury was satisfied that the appellant in fact had actual knowledge of the Gun. I would accordingly not give effect to this ground of appeal.

[62] It is against this background that I turn to the trial judge's refusal to provide a W.(D.) instruction in relation to Mr. Dalamba's evidence.

(b) Did the trial judge err by failing to provide a W.(D.) instruction with respect to Mr. Dalamba's testimony?

[63] The appellant argues that a modified W.(D.) instruction was necessary in respect of Mr. Dalamba's evidence. He submits that the fact that wilful blindness was left as a route to guilt did not affect the necessity of a W.(D.) instruction in the circumstances. If the jury rejected the wilful blindness route (as they clearly did here by relying on the appellant's actual knowledge of the gun) they could still rely on Mr. Dalamba's evidence to acquit the appellant if Mr. Dalamba's evidence raised a reasonable doubt about his knowledge.

[64] The Crown submits that a W.(D.) instruction was not necessary because Mr. Dalamba's testimony did not conflict with the Crown's case. The jury could accept Mr. Dalamba's testimony, find possession and knowledge of the Gun's presence, and convict on all counts. The issue at trial was not the Gun's ownership, or how it came to be in the appellant's room, but whether the appellant had knowledge and control of it. Mr. Dalamba's testimony supports an inference of wilful blindness and does not refute an inference of actual knowledge. A W.(D.) instruction would have implied a conflict in the evidence where none existed.

[65] I note that the trial judge did include the following statement in the charge:

Individual items of evidence need not be proved beyond a reasonable doubt. Reasonable doubt may arise because you are unable to determine the credibility or believability of witnesses in relation to essential matters.

[66] He also repeatedly instructed the jury to view the evidence as a whole in determining if they were left with a reasonable doubt.

[67] However, in my view, a modified W.(D.) instruction was necessary in order to remind the jury, as Doherty J.A. explained in R. v. Bucik, 2011 ONCA 546, 283 O.A.C. 161, at para. 33, that Mr. Dalamba's "exculpatory evidence [could] be the source of a reasonable doubt even if [it was] not affirmatively believed", an idea that is "arguably not the kind of common sense reasoning that jurors would apply in making credibility assessments in their day-to-day lives." This is the "lesson" from W.(D.), and is directly applicable here: Bucik, at para. 33.

[68] The requirement of a W.(D.) instruction applies where, on a vital issue, there are credibility findings to be made between conflicting evidence and the trial judge must relate the concept of reasonable doubt to those credibility findings: R. v. B.D., 2011 ONCA 51, 273 O.A.C. 241, at para. 114. The trial judge must make clear that it is not necessary for the jurors to believe the defence evidence on the issue in order to acquit; it is sufficient if "viewed in the context of all of the evidence – the conflicting evidence leaves them in a state of reasonable doubt as to the accused's guilt": B.D., at para. 114.

[69] The reason why a W.(D.) instruction was necessary in these circumstances is as follows. If the jury rejected wilful blindness, or if there was no evidentiary foundation for a finding of wilful blindness (both of which I have concluded above) then Mr. Dalamba's evidence conflicted directly with the Crown's theory and was capable of raising a reasonable doubt, regardless of whether it was believed. Failing to provide the W.(D.) instruction on Mr. Dalamba's evidence created the risk the jury would consider the evidence as the kind of "either/or" choice that Doherty J.A. warned of in D.B., particularly since Mr. Dalamba's evidence was the appellant's only explanation for how the Gun came to be in the bedroom. It was entirely possible that Mr. Dalamba's version of events would not be believed, but that it could nonetheless raise a reasonable doubt.

[70] In any event, a W.(D.) instruction was clearly necessary with respect to count 4 (possession of a firearm with a defaced serial number), because wilful blindness was not relevant to that charge and Mr. Dalamba's testimony directly conflicted with the Crown's theory of the case in relation to that charge.

[71] I would therefore give effect to this ground of appeal.

(3) Conclusion on the grounds of appeal

[72] The errors I have identified – (1) the lack of limiting instructions on permissible uses of the Photographs; and (2) the absence of a W.(D.) instruction in relation to the testimony of Mr. Dalamba – left the jury with inadequate instructions concerning the gun-related charges: counts 1, 3 and 4. Subject to the application of the proviso, the convictions on these offences, and the Second Indictment Convictions, must be set aside.

The Application of the Curative Proviso

[73] The Crown submits that if any error is found on the above grounds of appeal, this court should apply the curative proviso to sustain the convictions. As outlined below, in my view it would not be appropriate to apply the proviso to the trial judge's errors.

(1) The principles to be applied

[74] Section 686(1)(b)(iii) of the Criminal Code allows an appellate court to dismiss an appeal notwithstanding a legal error in the decision below if the court "is of the opinion that no substantial wrong or miscarriage of justice has occurred." The proviso, as interpreted by the Supreme Court, applies where there is no "reasonable possibility that the verdict would have been different had the error in issue not been made": R. v. Bevan, [1993] 2 S.C.R. 599 (S.C.C.), at p. 617; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 28. That test is satisfied in two situations.

[75] First, use of the curative proviso is appropriate where the error at first instance is "harmless or trivial": R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 53. The overriding question guiding this inquiry is whether the error "on its face or in its effect was so minor, so irrelevant to the ultimate issue in the trial, or so clearly non-prejudicial, that any reasonable judge or jury could not possibly have rendered a different verdict if the error had not been made": R. v. Van, 2009 SCC 22, [2009] S.C.R. 22, at para. 35. When a case involves multiple errors at first instance, the cumulative impact of those errors can be relevant to determining whether the "harmless or trivial" test is satisfied: R. v. Bomberry, 2010 ONCA 542, 258 C.C.C. (3d) 117, at para. 79; R. v. Hill, 2015 ONCA 616, 23 C.R. (7th) 224, at para. 102.

[76] The curative proviso may also be applied in cases involving more serious errors, where the evidence is "so overwhelming" that a reasonable and properly instructed jury would inevitably convict: R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 53; Van, at para. 36. This inquiry does not turn on the gravity of the trial judge's errors, but on the strength of the Crown's case. "Overwhelming evidence" has been described as a high standard, and "substantially higher than the requirement that the Crown prove its case 'beyond a reasonable doubt' at trial": R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239, at para. 82. These onerous thresholds flow from the difficulties appellate courts inevitably face in "evaluating the strength of the Crown's case retroactively, without the benefit of hearing the witnesses' testimony and experiencing the trial as it unfolded": Van, at para. 36. Accordingly, any measure of doubt concerning the strength of the Crown's case should enure to the benefit of the appellant.

[77] The Crown bears the burden of establishing one, or both, of the preconditions to applying the proviso: Van, at para. 34. The two preconditions are not assessed in conjunction with one another – the seriousness of a trial judge's error(s) is not balanced against the strength of the Crown's case: R. v. Sarrazin, 2011 SCC 54, [2011] 3 S.C.R. 505, at paras. 22-28.

(2) The application of the proviso to the trial judge's errors

[78] Appellate courts have applied the proviso to both limiting instruction and W.(D.) errors.

[79] The proviso has been applied both where a failure to provide a limiting instruction amounted to a "harmless" error, such as in R. v. B.(A.W.), 2015 ONCA 185, 331 O.A.C. 243, and where there existed "overwhelming evidence" against an accused: see R. v. R.(M.) (2005), 195 C.C.C. (3d) 26 (Ont. C.A.).

[80] A W.(D.) error, by contrast, will rarely be characterized as harmless or trivial because it calls into question the jury's understanding of the fundamental concept of reasonable doubt: R. v. Lifchus, [1997] 3 S.C.R. 320, at paras. 45-46. An accurate explanation of the requisite burden of proof is essential to ensuring a fair criminal trial: Lifchus, at para. 45.

[81] This is not a categorical rule, however: see B.D., at paras 119-121. Courts may apply the proviso to a W.(D.) error based on either of the two preconditions described above. First, a W.(D.) error may be considered "harmless" where the balance of the trial judge's instructions "cleanse the instructions … of the error's effect": R. v. Kristensen, 2010 ABCA 37, 23 Alta L.R. (5th) 201, at para. 29. Further, courts may also apply the proviso to overcome W.(D.) errors on the basis of "overwhelming evidence". In B.D., Blair J.A. applied the proviso notwithstanding a W.(D.) error, finding that there was overwhelming evidence of the accused's guilt in the "unusual circumstances" that existed, established primarily by DNA records and strong eye-witness identification testimony.

[82] However, in my view the facts of this case fall short of both the "harmless error" and the "overwhelming evidence" standard. The Crown has not met its burden of establishing either precondition to the application of the proviso.

[83] The errors in issue in the instant case are not "harmless or trivial". The W.(D.) error indicates the charge failed to properly instruct the jury on applying the reasonable doubt standard to key defence evidence. The trial judge's references to reasonable doubt in the jury charge were insufficient to compensate for the lack of a W.(D.) charge – indeed, the trial judge did not simply fail to turn his mind to the W.(D.) issue, but consciously decided that an instruction of that nature was not necessary.

[84] The limiting instruction error was also neither harmless nor trivial, as it resulted in significant prejudice to the appellant: as outlined above, the jury was left with evidence of extrinsic misconduct very similar to the offence charged, and the trial judge himself recognized the need for a limiting instruction during pre-trial motions but failed to provide it. I am of the view that there is a reasonable possibility that the two errors, considered together, had an impact on the jury's verdict.

[85] Similarly, as I see it, the Crown's case, while strong, does not meet the high bar of "overwhelming evidence." I acknowledge that the presence of the bullets is evidence of possession. I also acknowledge that the bullets are not accounted for by any defence evidence, a relevant factor that favours upholding the appellant's conviction: R. v. George, 2016 ONCA 464, 349 O.A.C. 347, at para. 70. However, in my view this evidence is not so overwhelming that any reasonably instructed jury would convict. Mr. Dalamba's testimony, if believed, provides a near-conclusive answer to the possession charge, and his credibility was a central issue at trial: Bomberry, at para. 79. As the defence noted at trial, Mr. Dalamba's credibility was also bolstered by various factors.

[86] Bearing in mind the Crown's heavy onus on this issue, and the Supreme Court's caution in Van about evaluating the strength of the Crown's case retroactively without the benefit of hearing witnesses, I cannot say that Mr. Dalamba's testimony is incapable of raising a reasonable doubt in the minds of a properly instructed jury.

[87] These two shortcomings in the trial judge's instructions to the jury are collectively fatal to the convictions in relation to counts 1, 3 and 4, as well as the Second Indictment Convictions, which must be set aside. I would allow the conviction appeal to this extent.

B. The Sentence Appeal

[88] The appellant seeks leave to appeal his sentence of 9 years and 3 months, less 3 months' credit for pre-trial custody. Of that global sentence, the appellant was sentenced to two years for possession of crack cocaine for the purpose of trafficking and one year for possession of the cash, to be served concurrently.

[89] The appellant was sentenced on December 18, 2014. He did not apply for bail pending appeal. Consequently, he has already served more than the two years of his sentence remaining after the firearm convictions are set aside. His sentence appeal is therefore moot.

Disposition

[90] In the result, I would allow the conviction appeal in part by setting aside the convictions in relation to counts 1, 3 and 4 as well as the Second Indictment Convictions, and order a new trial on those counts. I would otherwise dismiss the conviction appeal. I would dismiss the sentence appeal on the basis that it is moot.

Released: May 24, 2018

"Gloria Epstein J.A."

"I agree. David M. Paciocco J.A."

"I agree. I.V.B. Nordheimer J.A."

[^1]: Ms. Edwards was a co-accused with the appellant at trial and was convicted of the drug and proceeds charges, but not the firearms charges. Her convictions are not at issue on this appeal.

[^2]: When pressed in oral argument, counsel for the Crown conceded that the type of gun in the Photographs is one often associated with violent crime.