Her Majesty the Queen v. Hofung

[Indexed as: R. v. Hofung]

53 O.R. (3d) 535

[2001] O.J. No. 1342

Docket No. C31904

Court of Appeal for Ontario

Charron, Feldman and MacPherson JJ.A.

April 12, 2001

Charter of Rights and Freedoms--Search and seizure--Search without warrant--Search incidental to arrest--Police officers in course of rapidly-moving undercover operation forcibly entered apartment without making prior announcement and arrested accused without warrant--Police observed firearms in apartment--Police obtained search warrant and seized firearms --Evidence of seized firearms admissible under s. 24(2) of Charter--Admission of firearms would not render trial unfair and would not bring administration of justice into disrepute --Canadian Charter of Rights and Freedoms, ss. 8, 24(2).

Evidence--Hearsay--Crown affidavit--Accused denied that pistols found in his apartment were his--Accused's brother lived with accused--Brother signed affidavit stating that weapons were not his--Brother present at trial but not called to testify--Trial judge erred in permitting Crown counsel to adduce hearsay evidence of brother's affidavit in cross- examination of accused--Twin requirements of reliability and necessity not met--Trial judge further erred in reading back that portion of accused's cross-examination in response to question from jury about brother's knowledge of pistols.

Criminal law--Charge to jury--Accused charged with narcotics offences--Jury asked trial judge questions about whether accused could be guilty of trafficking if he was aware of existence of drugs but played no part in transaction or if he merely allowed his home to be used for drug deal--Trial judge erred in charging jury for first time on s. 21 of Criminal Code --Jury should have been instructed clearly that criminal liability cannot flow from s. 21 of Code to mere bystander --Section 21(2) had no application as there was no unlawful purpose other than alleged drug offences--Unnecessary reading of s. 21(2) only served to confuse issue.

The accused was charged with ten drug and weapons offences. He was arrested at the conclusion of a four-month undercover narcotics investigation. K agreed to sell 15 ounces of heroin to an undercover police officer. He directed the officer to a particular apartment building and told the officer that the transaction would proceed in three stages. K would go to his supplier, return with five ounces of heroin, collect $18,000, and repeat the process twice. A surveillance officer saw K receive a brown Harvey's bag from another person in the hallway outside a particular apartment. K provided the undercover with five ounces of heroin. The police concluded that the particular apartment was the source of the heroin and that ten ounces of heroin remained inside the apartment, along with the supplier. They forcibly entered the apartment without making a prior announcement and arrested the accused without a warrant inside the apartment. They observed several firearms in the apartment, including two loaded pistols which were under the living room couch. They later obtained a search warrant and seized the firearms. No narcotics were found.

The accused admitted that he owned the guns which were found in a gun cabinet, but denied owning the loaded pistols found under the living room couch. He lived in the apartment with other family members. His brother A signed an affidavit stating that he, A, did not own any guns. A was subpoenaed by the Crown and was present in court, but was not called by the Crown as a witness. During the cross-examination of the accused, Crown counsel asked him if he was aware that A had signed the affidavit. The accused replied that his lawyer had told him. During its deliberations, the jury asked whether A had signed an affidavit swearing that he had no knowledge of the two pistols. Over objections by defence counsel, the trial judge read back for the jury the relevant part of the accused's cross-examination.

During their deliberations, the jury asked the trial judge: "If the accused knows the contents of the Harvey's bag in his home but plays no further part in the transaction, does this constitute trafficking?" and "Does allowing the use of one's home for a drug deal constitute trafficking?" The trial judge responded by charging the jury, for the first time, on potential liability as a party pursuant to s. 21 of the Criminal Code, R.S.C. 1985, c. C-46.

The accused was convicted of conspiracy to traffic in a narcotic, trafficking in a narcotic, possession of a prohibited weapon, two counts of possession of an unregistered weapon and two counts of careless storage of a firearm. He appealed.

Held, the appeal should be allowed in part.

The trial judge did not err in dismissing the accused's application for a stay of proceedings on the basis that his right under s. 8 of the Canadian Charter of Rights and Freedoms to be secure against unreasonable search and seizure had been violated. It was not necessary to consider the question of exigent circumstances justifying warrantless arrests and searches incidental thereto in this case because, even if the arrest and search incidental thereto were not lawful, the evidence obtained pursuant to them was admissible under s. 24(2) of the Charter. The seized firearms were non- conscriptive, real evidence the admission of which would not render the trial unfair. A warrantless arrest and search incidental thereto in a private dwelling is a serious Charter violation. However, in light of the speed with which the events unfolded on the day in question, and the well-founded police concerns about weapons inside the apartment, the administration of justice would not be brought into disrepute by the admission of the seized firearms.

The trial judge did not err by permitting the Crown to cross-examine the accused about previous criminal charges on which he had been acquitted. The accused himself raised the previous criminal charges, and the trial judge ruled that the Crown could cross-examine him on this component of his testimony, but carefully confined the cross-examination to matters to which the accused had testified, for the purpose of testing the accused's credibility. The Crown conducted the cross-examination within the prescribed boundaries.

The trial judge erred in reading back for the jury that part of the accused's cross-examination dealing with A's affidavit. The testimony concerning A's affidavit was hearsay evidence that should not have been introduced at trial. Its admissibility was subject to a finding that the twin requirements of reliability and necessity had been met. There was no evidence relating to the circumstances in which the affidavit was taken, and consequently no ruling could be made on its reliability. Further, the Crown did not establish the necessity component, as A was present in court and could have been called as a witness. There was a real risk that, by hearing the cross-examination of the accused concerning A's affidavit, and then hearing it again in response to their question, without an explanation or limiting instruction, the jury was allowed to draw the inference that A could be believed when he said that the pistols did not belong to him, and that the pistols belonged to the accused. The Crown should not have tried to bolster its case against the accused by getting A's evidence before the jury through the impermissible route of leading hearsay evidence during the cross-examination of the accused. Moreover, once the jury asked their question, the trial judge needed to instruct the jury that there was no admissible evidence relating to A.

The trial judge's response to the jury's bystander questions was inadequate and erroneous in that it failed to tell the jury that the accused could not be convicted of the drug offences if he merely witnessed some aspect of an offence being committed by another person, but did not participate in the offence in any way. The jury should have been instructed clearly that criminal liability cannot flow from s. 21 of the Criminal Code to a mere bystander. The trial judge should have told the jury that the answer to the first question was "No". The second question, with its use of the word "allowing", raised s. 21 of the Code. However, because the concepts of aiding, abetting and omitting in s. 21(1) are not self-defining, it was incumbent on the trial judge to explain those terms to the jury and to make reference to the relevant evidence to help the jury in their consideration of the issues posed by their questions. The trial judge's response was not entirely silent in this respect, as she did explain in terms of "helps or encourages another person to commit a crime". However, given that the jury had heard nothing about party liability in the jury charge, a simple reading of s. 21 of the Code coupled with a very brief comment about it was not enough to comply with the requirement that jury questions must be answered clearly, correctly and comprehensively. Moreover, s. 21(2) of the Code did not apply in this case. Its application is confined to situations where the "unlawful purpose" referred to in that subsection is different from the offence charged. In this case, there was no unlawful purpose other than the alleged charges. The unnecessary reading of s. 21(2) could only have served to confuse the issues for the jury.

The appeal should be allowed and a new trial ordered with respect to the convictions for conspiracy to traffic in a narcotic, trafficking in a narcotic, two counts of possession of an unregistered weapon and two counts of unlawful storage of a firearm. The appeal from the conviction for possession of a prohibited weapon should be dismissed.

APPEAL from a conviction for conspiracy to traffic in a narcotic, trafficking in a narcotic, possession of a prohibited weapon, possession of an unregistered restricted weapon and careless storage of a firearm.

R. v. Stillman, 1997 384 (SCC), [1997] 1 S.C.R. 607, 185 N.B.R. (2d) 1, 144 D.L.R. (4th) 193, 209 N.R. 81, 472 A.P.R. 1, 42 C.R.R. (2d) 189, 113 C.C.C. (3d) 321, 5 C.R. (5th) 1, apld R. v. Davy (2000), 2000 16859 (ON CA), 137 O.A.C. 53, consd Cases referred to R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740, 148 N.R. 241, 79 C.C.C. (3d) 257, 19 C.R. (4th) 1; R. v. Feeney, 1997 342 (SCC), [1997] 2 S.C.R. 13, 146 D.L.R. (4th) 609, 212 N.R. 83, [1997] 6 W.W.R. 634, 44 C.R.R. (2d) 1, 115 C.C.C. (3d) 129, 7 C.R. (5th) 101; R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531, 41 O.A.C. 353, 113 N.R. 53, 59 C.C.C. (3d) 92, 79 C.R. (3d) 1; R. v. Naglik, 1993 64 (SCC), [1993] 3 S.C.R. 122, 105 D.L.R. (4th) 712, 157 N.R. 161, 17 C.R.R. (2d) 58, 83 C.C.C. (3d) 526, 23 C.R. (4th) 335; R. v. Pétel, 1994 133 (SCC), [1994] 1 S.C.R. 3, 59 Q.A.C. 81, 162 N.R. 137, 87 C.C.C. (3d) 97, 26 C.R. (4th) 145; R. v. S. (W.D.), 1994 76 (SCC), [1994] 3 S.C.R. 521, 119 D.L.R. (4th) 464, 171 N.R. 360, 93 C.C.C. (3d) 1, 34 C.R. (4th) 1; R. v. Silveira, 1995 89 (SCC), [1995] 2 S.C.R. 297, 23 O.R. (3d) 256, 124 D.L.R. (4th) 193, 181 N.R. 161, 28 C.R.R. (2d) 189, 97 C.C.C. (3d) 450, 38 C.R. (4th) 330; R. v. Simpson, 1988 89 (SCC), [1988] 1 S.C.R. 3, 23 B.C.L.R. (2d) 145, 46 D.L.R. (4th) 466, 81 N.R. 267, [1988] 2 W.W.R. 385, 38 C.C.C. (3d) 481, 62 C.R. (3d) 137; R. v. Wells, 2001 24130 (ON CA), [2001] O.J. No. 81 (C.A.) Statutes referred to Canadian Charter of Rights and Freedoms, s. 8, 24(2) Criminal Code, R.S.C. 1985, c. C-46, s. 21 Criminal Code and the Interpretation Act (powers to arrest and enter dwellings), An Act to amend the, S.C. 1997, c. 39

Bradley Reitz, for respondent. Irwin Koziebrocki, for appellant.

The judgment of the court was delivered by

MACPHERSON J.A.:--

A. Introduction

[1] The appellant, Philip Wei Zhong Hofung, was charged with ten drug and weapons offences. At the conclusion of a trial presided over by Justice M.L. Benotto, the jury found him guilty of conspiracy to traffic in a narcotic, trafficking in a narcotic, possession of a prohibited weapon, two counts of possession of an unregistered restricted weapon and two counts of careless storage of a firearm. At the conclusion of the evidence, the Crown did not proceed further on the charge of possession of a prohibited weapon relating to a particular rifle. The appellant was sentenced to 10 1/2 years' imprisonment in total, less time served after the conviction (82 days).

[2] The appellant appeals his convictions and sentence. On the conviction appeal, he contends that the trial judge erred by not excluding the evidence seized (the guns) inside an apartment unit. He also submits that the trial judge erred by permitting the Crown to cross-examine him in an impermissible fashion in two respects. Additionally, he contends that the trial judge gave an inadequate and erroneous response to a jury question. Finally, he seeks leave to introduce fresh evidence to support his contention that he did not receive a fair trial because of ineffective representation by his trial counsel. On the sentence appeal, the appellant contends that his sentence was harsh and excessive and disproportionate to the sentences imposed on two other persons convicted of offences relating to the same drug transaction.

B. Facts

[3] The appellant was arrested at the conclusion of "Project Dew", a four-month undercover narcotics investigation conducted by members of the Toronto Police Service. Beginning in March 1996, an undercover police officer purchased heroin several times from a man named Rith Kim. The quantities transacted increased and the police identified Danny DaSilva as Kim's supplier. The appellant was seen at DaSilva's home on one occasion during the surveillance period, on June 12.

[4] In June 1996, Kim agreed to sell 15 ounces of heroin for $50,000 to an undercover police officer. On June 25, Kim directed the undercover officer to an apartment building at 4091 Sheppard Avenue East. He met the undercover officer in a car near the apartment building. Kim told the officer that the transaction would proceed in three stages. Kim would go to his supplier, return to the car with five ounces of heroin and be paid $18,000. This process would be repeated a second and a third time, with Kim receiving $18,000 and $14,000 respectively.

[5] Kim left the car, made a call on a cellular phone and entered the apartment building. A surveillance officer inside the building saw Kim receive a brown Harvey's bag from DaSilva in the hallway outside apartment 1501. DaSilva had been inside the apartment immediately before emerging into the hallway to meet Kim. After the transaction, DaSilva re-entered the apartment, stayed there briefly, came out again and entered the elevator.

[6] Kim went to the car, provided the undercover officer with five ounces of heroin and received $20,000. The officer gave a pre-arranged signal and Project Dew ended. Kim was arrested in the car. DaSilva was arrested in the lobby of the apartment building.

[7] Based on the events they had witnessed, the police concluded that apartment 1501 was the source of the heroin. They inferred that ten ounces of heroin remained inside the apartment, along with the person who supplied it to DaSilva and Kim. The police forcibly entered the apartment without making a prior announcement. They arrested the appellant without a warrant inside the apartment. While in the apartment, they observed several firearms in a cabinet in a bedroom. A police officer stayed in the apartment to secure the premises. Later that day, the police obtained a search warrant and seized the firearms in the cabinet. They also found two loaded pistols under a couch in the living room. No heroin was found on the appellant or DaSilva or inside the apartment.

[8] There are other relevant facts. However, I find it convenient to describe them when I consider the specific issues to which they relate.

C. Issues

[9] The issues on this appeal are:

(1) Did the trial judge err by ruling that the arrest of the appellant without a warrant was lawful and that the evidence relating to the firearms found inside the apartment was admissible?

(2) Did the trial judge err by permitting the Crown to cross- examine the appellant about previous criminal charges on which he had been acquitted and about an affidavit of his brother?

(3) Did the trial judge err when, in response to a jury question, she charged the jury, for the first time, on potential liability as a party pursuant to s. 21 of the Criminal Code, R.S.C. 1985, c. C-46? Did she further err by not including in her response an instruction to the effect that a mere bystander to criminal activity cannot be found criminally liable?

(4) Should the fresh evidence tendered by the appellant be admitted on the appeal? If it is admitted, does it establish that the appellant did not receive a fair trial because of ineffective representation by his trial counsel?

(5) Was the sentence imposed by the trial judge harsh and excessive or disproportionate to the sentences received by DaSilva and Kim?

D. Analysis

(1) Unlawful arrest/unreasonable search and seizure

[10] At trial, the accused made an application under s. 8 of the Charter with respect to his arrest without a warrant and the search of the apartment. A voir dire was held and the trial judge considered two issues: the warrantless arrest of the accused and the search incidental thereto, and the validity of the search warrant obtained after the arrest. The trial judge ruled against the accused on both issues. She concluded that "[t]his is one of those rare occasions where exigent circumstances permit entry into a dwelling house for an arrest without a warrant and without prior announcement" and that "there was no material misrepresentation" in the material placed before the Justice of the Peace to support the search warrant obtained several hours after the police entry into the apartment. The appellant challenges both of these conclusions.

[11] On the issue of the arrest of the appellant without a warrant and the search of the apartment incidental thereto, the appellant asserts that the trial judge erred by concluding that the appellant did not have a privacy interest in the apartment. He also submits that the trial judge mistakenly applied Bill C-16, now S.C. 1997, c. 39, An Act to amend the Criminal Code and the Interpretation Act (powers to arrest and enter dwellings) assented to December 18, 1997, 18 months after the appellant's arrest, as authority for the police to arrest the appellant without a warrant and without making an announcement. The appellant also contends that there was no hot pursuit, that the police had only a suspicion that the drugs were inside the apartment, that there was no real risk of evidence being destroyed, and that public safety was not at stake.

[12] There is some force in the appellant's s. 8 submissions: see R. v. Silveira, 1995 89 (SCC), [1995] 2 S.C.R. 297, 97 C.C.C. (3d) 450 and R. v. Feeney, 1997 342 (SCC), [1997] 2 S.C.R. 13, 115 C.C.C. (3d) 129. However, in my view it is not necessary to consider the question of exigent circumstances justifying warrantless arrests and searches incidental thereto in this case because, even if the arrest and search incidental thereto were not lawful, it seems clear that the evidence obtained pursuant to them was admissible under s. 24(2) of the Charter as interpreted in the case authorities culminating in R. v. Stillman, 1997 384 (SCC), [1997] 1 S.C.R. 607, 113 C.C.C. (3d) 321. The seized firearms were non-conscriptive, real evidence the admission of which would not render the trial unfair. It is true that a warrantless arrest and search incidental thereto in a private dwelling is a serious Charter violation. However, in light of the speed with which the events unfolded on the day in question, and the well-founded police concerns about weapons inside the apartment, I do not think that the administration of justice would be brought into disrepute by the admission of the seized firearms.

[13] Turning to the appellant's second ground of attack on this issue, he alleges that the affidavit in support of the search warrant obtained after the police entry into the apartment was deficient in several respects: it gave the impression that Kim went into the apartment, it did not mention DaSilva or the fact that it was DaSilva who handed the drugs to Kim, it did not make clear that the DaSilva-Kim hand-off of the brown bag took place outside the apartment, and it did not mention that weapons had been seen inside the apartment.

[14] The trial judge concluded that these were not deliberate misrepresentations and that, viewed in its entirety, the affidavit set out the essential ingredients to support a warrant. There is no basis to quarrel with the trial judge's conclusion on the misrepresentation point. She heard the evidence of the police officer who prepared the affidavit and was entitled to conclude, as she did, that any omissions were "not deliberate but, rather, inadvertent".

(2) Cross-examination of the appellant

[15] The appellant testified at the trial. He contends that the trial judge erred in the manner in which she dealt with two matters which arose when he was being cross-examined -- questions about previous criminal charges for which he had been acquitted and questions about an affidavit prepared by his brother.

(a) Previous criminal charges

[16] One of the offences for which the appellant was charged and convicted was possession of a prohibited weapon. This charge related to the magazine of an AK-47 rifle which was found in a cabinet in the apartment. During his examination-in-chief, the appellant explained that the police had kept the rest of the rifle on an earlier occasion when he had been charged with criminal offences. In short, the fact of previous criminal charges was raised by the appellant, not the Crown. Moreover, the appellant testified that the previous criminal charges had been dropped.

[17] The Crown sought to cross-examine the appellant on this component of his testimony. The trial judge ruled that the cross-examination could proceed, but carefully confined it to matters to which the appellant had testified and for the purpose of testing the appellant's credibility. In my view, the Crown conducted the cross-examination within the prescribed boundaries.

[18] Moreover, the trial judge specifically cautioned the jury about this aspect of the evidence:

The accused gave some evidence with respect to an earlier charge against him that had occurred in around 1992. Because he gave that evidence in examination-in-chief the Crown was allowed to cross-examine him with respect to the issue of credibility. The charge, which you will recall was eventually dismissed against him, is irrelevant to the charges that are before you today and with which he is being tried today. The only relevance that his testimony in chief and in cross-examination is that it is relevant to the issue of credibility. If you find that the evidence he gave in chief was inconsistent with that in cross, you may consider it with respect to his credibility generally.

In my view, this was an appropriate and sufficient caution.

[19] In summary, I see no error in the trial judge's ruling or jury charge with respect to the appellant's testimony about his previous criminal charges.

(b) The brother's affidavit

[20] Several weapons were found inside a gun cabinet in the apartment. The appellant admitted owning these guns and testified that he was a member of a gun club in Sharon. The appellant was convicted of a single charge relating to these guns -- possession of a prohibited weapon, the magazine of an AK-47 rifle. He was acquitted of possessing two rifles and two shotguns for a purpose dangerous to the public peace and of possession of a prohibited weapon and careless storage relating to one of the rifles.

[21] Two loaded pistols were found under the couch in the living room. These led to charges of possession of restricted weapons and careless storage of firearms. The appellant was convicted on all four counts relating to these weapons.

[22] The appellant lived at the apartment with other members of his family, including his parents, his brother Michael and his wife and their child, and his brother Anthony. The appellant slept on a bed in the living room.

[23] The appellant testified that he owned the guns in the gun cabinet which was located in the bedroom where Michael and his wife slept. He denied any knowledge of the loaded pistols found under the living room couch.

[24] The appellant's brother, Michael, testified that he did not own the pistols; nor did his parents or brother Anthony. Michael's wife testified that no one in the household besides the appellant owned weapons.

[25] The appellant's other brother, Anthony, signed an affidavit about the weapons in the apartment. He was subpoenaed by the Crown and was present in the court. However, the Crown did not call him as a witness.

[26] During the cross-examination of the appellant, Crown counsel asked him if he was aware that Anthony had signed an affidavit stating that he (Anthony) did not own any guns. The appellant replied that his lawyer had told him that Anthony had made this statement:

Q. Well, let's do this: Your brother, Anthony, gave an affidavit, sworn statement, no knowledge of guns of ammunition of any kind in your apartment. You know that.

A. I hear about it.

Q. Do you know whether he gave one?

A. Whom?

Q. Anthony Hofung.

A. I know that he gave one, my lawyer told me.

[27] Defence counsel did not object to this line of questioning at the time. Crown counsel relied on this testimony during his closing address to the jury.

[28] During its deliberations, the jury asked this question:

Your Honour, we have a question that needs to be answered. Did Anthony Hofung sign an affidavit swearing that he had no knowledge of the two handguns found by the police under the sofa in the living room?

[29] There was an extensive discussion among the trial judge and counsel. Crown counsel explained that he made the decision not to call Anthony Hofung as a witness "as a matter of courtesy to him; he seemed very reluctant to testify". Crown counsel submitted that the appellant's testimony in cross- examination relating to Anthony's affidavit should simply be read back to the jury. Defence counsel vigorously objected. He submitted that this testimony was hearsay and that the jury should be told that there was no admissible evidence about what Anthony said in an affidavit. Alternatively, he submitted that, in light of the jury's question, if the appellant's testimony on this issue were to be read back to the jury, a clear limiting instruction should be given along the lines of: "They can make use of the hearsay to prove the fact that it was told to Mr. Hofung, but not the fact of the affidavit, and, therefore, there is no evidence of the affidavit."

[30] The trial judge agreed with the Crown position and read back for the jury the relevant part of the testimony.

[31] With respect, I think the trial judge erred in adopting this position. The testimony concerning Anthony's affidavit was hearsay evidence that should not have been introduced at trial. Its admissibility was subject to a finding that the twin requirements of reliability and necessity had been met: see R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740, 79 C.C.C. (3d) 257 and R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531, 59 C.C.C. (3d) 92. There was no evidence relating to the circumstances in which the affidavit was taken and, consequently, no ruling could have been made on its reliability. Further, the Crown could not establish the necessity component; Anthony was present in the court and could have been called as a witness.

[32] The jury was obviously concerned about Anthony's position. They had heard testimony from Michael and his wife that the appellant was the only member of the family to possess firearms. However, in a household consisting of elderly parents, a son, wife and child, and two single males, the jury probably was focusing its attention on the appellant and his single brother. They had heard, improperly, that Anthony had provided an affidavit along the same lines as the testimony of Michael and his wife. But they did not hear Anthony testify. Their question indicated a strong interest in knowing precisely what Anthony said.

[33] I think there is a real risk that, by hearing the cross-examination of the appellant concerning Anthony's affidavit, and then hearing it again in response to their question, without an explanation or limiting instruction, the jury was allowed to draw the inference that Anthony says the guns don't belong to him and we can believe him on this point. That inference, coupled with the testimony of the other family members, might have contributed significantly to their decision that the pistols under the couch belonged to the appellant. Indeed, the jury might have further reasoned that the pistols were under the couch to be available to the appellant, a drug dealer, in case a drug deal went sour.

[34] In short, the Crown could easily have called Anthony as a witness. It chose not to. The Crown should not have tried to bolster its case against the appellant by getting Anthony's evidence before the jury through the impermissible route of leading hearsay evidence during its cross-examination of the appellant. Moreover, once the jury asked their question, the trial judge needed to instruct the jury that there was no admissible evidence relating to Anthony.

[35] The error on this issue relates directly to the four charges involving the two pistols under the couch. It could also be relevant, in a much less direct fashion, to the drug charges. However, the error does not affect the conviction relating to possession of a prohibited weapon, the magazine for an AK-47, which the appellant admitted he owned.

(3) The parties/bystander jury questions

[36] During their deliberations, the jury posed these questions:

Your Honour, we have two questions regarding the question of trafficking.

One: If the accused knows the contents of the Harvey's bag in his home but plays no further part in the transaction, does this constitute trafficking?

Two: Does allowing the use of one's home for a drug deal constitute trafficking?

[37] The trial judge told counsel that she intended to re- read the definition of "trafficking" to the jury. Crown counsel observed "I wonder if they're not impliedly asking for an instruction on Section 21, a party, or something like that?" Defence counsel agreed with the trial judge's proposal to re-read the definition of "trafficking", but contended that the jury's questions did not necessitate an instruction under s. 21 of the Criminal Code.

[38] The trial judge agreed with the Crown. The jury was recalled. The trial judge read the definition of "trafficking" to the jury and continued:

Now, this is where I get into some additional law that I did not give you this morning but that I think becomes relevant based on the nature of your question. There are two general ways in which a person may commit a crime such as those alleged here. The first and, in fact, the obvious way is as a principal. In other words, the person actually commits the crime himself or herself.

The second way is as an accessory. All of this is set out in s. 21 of the Criminal Code which is also applicable to this case and I am going to read it to you. It is as follows:

Every one is a party to an offence who

(a) actually commits it,

(b) does or omits to do anything for the purpose of aiding any person to commit it, or

(c) abets any person in committing it.

Section 2 of this provision goes on to say,

Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

This means that the law considers that a person who helps or encourages another person to commit a crime is guilty of the same crime as the other person commits. As well, in addition to this, persons who form an intention to carry out an unlawful purpose, and to assist each other in carrying it out, are guilty of any crime committed by any of them if they actually know or objectively ought to have known that the commission of the offence would be a probable consequence of carrying out that common purpose.

[39] The appellant points out that the trial judge had not instructed the jury about possible party liability in her initial charge and submits that it was an error to do so in her response to the questions from the jury. I disagree. The facts in this case gave rise to s. 21 considerations and the jury's questions, especially the second one, made it appropriate for the trial judge to instruct the jury about possible party liability under s. 21(1).

[40] The appellant contends that the trial judge's response to the questions was inadequate and erroneous in that it failed to tell the jury that the appellant could not be convicted of the drug offences if he merely witnessed some aspect of an offence being committed by another person, but did not participate in the offence in any way. The appellant further contends that s. 21(2) was inapplicable to this case.

[41] I agree with these submissions. It is essential that jury questions be answered accurately and comprehensively. As expressed by Cory J. in R. v. S. (W.D.), 1994 76 (SCC), [1994] 3 S.C.R. 521, 93 C.C.C. (3d) 1 at p. 528 S.C.R., p. 6 C.C.C.:

It is true that directions to a jury must always be read as a whole; however, it cannot ever be forgotten that questions from the jury require careful consideration and must be clearly, correctly and comprehensively answered. This is true for any number of reasons which have been expressed by this Court on other occasions. A question presented by a jury gives the clearest possible indication of the particular problem that the jury is confronting and upon which it seeks further instructions. Even if the question relates to a matter that has been carefully reviewed in the main charge, it still must be answered in a complete and careful manner. It may be that after a period of deliberation, the original instructions, no matter how exemplary they were, have been forgotten or some confusion has arisen in the minds of the jurors. The jury must be given a full and proper response to their question. The jury is entitled to no less. It is the obligation of the trial judge assisted by counsel to make certain that the question is fully and properly answered.

See also: R. v. Naglik, 1993 64 (SCC), [1993] 3 S.C.R. 122, 83 C.C.C. (3d) 526 and R. v. Pétel, 1994 133 (SCC), [1994] 1 S.C.R. 3, 87 C.C.C (3d) 97.

[42] In my view, the jury questions, especially the first one, squarely raised the "bystander" issue. In a recent decision, R. v. Davy (2000), 2000 16859 (ON CA), 137 O.A.C. 53, the jury posed questions about the "non-intervention of the crime" and "indirect involvement" of the accused in the crime. The trial judge had charged the jury on party liability under s. 21 of the Code. Rosenberg J.A. said, at p. 59:

It was therefore essential, if the trial judge intended to leave s. 21(1)(b) to the jury, that he make it clear that a mere bystander cannot be a party under s. 21(1)(b) and that presence at the scene cannot found liability under that provision on the basis of an omission unless the accused was under a duty to act. There was no suggestion that the appellant was under such a duty. The possibility that this jury found liability on the basis that the appellant was a party and did so on the basis of an omission is a real one given their reference to "indirect involvement" and "non- intervention of the crime" in their question.

This court ordered a new trial in Davy.

[43] The language of the jury questions in Davy and in the present appeal is similar. In Davy it was "indirect involvement" and "non-intervention of the crime"; in the present appeal it is "no further part in the transaction" and "allowing the use of one's home". In both cases, the jury questions indicate that one scenario the juries were considering was that the accused had knowledge of (this appeal) or witnessed (Davy) a crime, but played no role in it. In those circumstances, the juries needed to be instructed clearly that criminal liability cannot flow from s. 21 of the Code to a mere bystander.

[44] In the present appeal, I agree with the appellant's submission that the trial judge should have told the jury that the answer to the first question was "No". The second question, with its use of the word "allowing", raised, as the trial judge recognized, s. 21 of the Code. However, because the concepts of aiding, abetting and omitting in s. 21(1) are not self-defining, it was incumbent on the trial judge to explain these terms to the jury and make reference to the relevant evidence to help the jury in their consideration of the issues posed by their questions. The trial judge's response was not entirely silent in this respect -- she did explain s. 21 in terms of "helps or encourages another person to commit a crime". However, given that the jury had heard nothing about party liability in the jury charge, in my view a simple reading of s. 21 of the Code coupled with a very brief comment about it was not enough to comply with the requirement from cases like S. (W.D.), Naglik and Pétel that jury questions must be answered clearly, correctly and comprehensively. Moreover, the jury's questions raised squarely the bystander issue. The trial judge's response should have included a clear instruction on this issue.

[45] I also agree that s. 21(2) of the Code did not apply in this case. Its application is confined to situations where the "unlawful purpose" referred to in that subsection is different from the offence charged: see R. v. Simpson, 1988 89 (SCC), [1988] 1 S.C.R. 3, 38 C.C.C. (3d) 481. In this case, there was no unlawful purpose other than the alleged charges. The unnecessary reading of s. 21(2) could only have served to confuse the issues for the jury.

[46] The errors on this issue relate to the drug offences. They have no relevance to any of the weapons offences.

(4) Ineffective representation

[47] The appellant seeks to introduce affidavits from DaSilva and Kim stating that the appellant had no knowledge of the drug transaction in support of his contention that his trial counsel provided ineffective representation by failing to call DaSilva and Kim as witnesses. On the basis of the record, even if the fresh evidence were admitted in spite of the appellant's acknowledgement "that for the most part the due diligence test in R. v. Palmer has not been met", there is no basis for this ground of appeal.

[48] The appellant has not raised any concern about the competence of trial counsel. It is not the role of this court to review tactical decisions made by counsel at trial. I would underline the observation made recently by McMurtry C.J.O. in R. v. Wells, 2001 24130 (ON CA), [2001] O.J. No. 81 at para. 86 (C.A.):

It is my view the issues raised on this ground of appeal in relation to the alleged inadequacy of counsel are ill- conceived and amount to nothing more than "Monday-morning quarterbacking". This ground of appeal is being raised with increased frequency in this Court often without a proper foundation. While there is nothing that I would wish to state that would in practical terms eliminate this ground of appeal in our Court, I would like to emphasize that an allegation in relation to incompetence of trial counsel is a very serious allegation indeed and should only be made after very careful reflection. In my view, there was no basis for raising the issue in this appeal.

The chief justice's observation applies to this ground in the present appeal.

(5) Sentence appeal

[49] The appeal against sentence related to the total sentence of 10 1/2 years' imprisonment. In light of the court allowing the conviction appeal in relation to the drug charges and the loaded pistols, the only conviction which stands is for possession of a prohibited weapon for which the appellant received a sentence of three months consecutive. The appellant does not contend that this sentence was inappropriate.

E. Disposition

[50] I would allow the appeal and order a new trial with respect to the convictions for conspiracy to traffic in a narcotic, trafficking in a narcotic, two counts of possession of an unregistered restricted weapon and two counts of unlawful storage of a firearm.

[51] I would dismiss the appeal with respect to the conviction for possession of a prohibited weapon.

[52] I would grant leave to appeal sentence. The question of sentence does not arise for those offences on which the appeal has been allowed. I would uphold the sentence of three months for possession of a prohibited weapon.

Appeal allowed in part.