COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Duncan, 2015 ONCA 928

DATE: 20151231

DOCKET: C56046 & C55993

Weiler, Tulloch and van Rensburg JJ.A.

C56046

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Duncan

Appellant

C55993

AND BETWEEN

Her Majesty the Queen

Respondent

and

Karen Stevenson

Appellant

Ingrid Grant, for the appellant Duncan

Richard Litkowski, for the appellant Stevenson

Milica Potrebic, for the respondent

Heard: June 3, 2015

On appeal from the convictions entered by Justice Joseph Fragomeni of the Superior Court of Justice, sitting with a jury, on November 25, 2011, and from the sentence imposed on June 18, 2012, with reasons reported at 2012 ONSC 2609, [2012] O.J. No. 2966.

Tulloch J.A.:

A. Background

[1] Following an eight-week trial with four other co-accused, including the appellant Stevenson, the appellant Duncan was convicted of numerous offences related to trafficking in drugs and firearms. The appellant Stevenson was convicted of one count of conspiracy to possess the proceeds of crime.

[2] A significant amount of the Crown’s evidence in this case arose from intercepted conversations between the appellant Duncan and his associates. The Crown alleged that Duncan was the ringleader of the group.

[3] Duncan faced numerous counts with some overlap in terms of both the nature of the offences and the incidents giving rise to certain charges. There were a total of 16 counts on the indictment, reflecting 8 incidents of criminal activity.

[4] Counts 1, 2, 4, and 5 related to the importation of approximately 4 kilograms of cocaine from Panama by three couriers on March 16, 2009 and May 25, 2009. Duncan was charged with:

• Count 1: Importing cocaine on March 16, 2009
• Count 2: Conspiracy to import cocaine between January 1, 2009 and March 16, 2009
• Count 4: Importing cocaine on May 25, 2009
• Count 5: Conspiracy to import cocaine between January 1, 2009 and May 25, 2009

[5] Duncan was also convicted for his role in setting up a transaction for a large amount of marijuana on June 2, 2009. This incident led to count 6: conspiracy to traffic marijuana.

[6] On June 11, 2009, the police intercepted numerous calls by Duncan and his associates which led them to believe that Duncan was packaging ecstasy and marijuana to be sent to his sister, Debbie Duncan, in Atlanta, Georgia. The police believed some of these calls originated from the apartment of Duncan’s girlfriend and co-accused, Joanna Ross, at 780 Eglinton Avenue West in Toronto. Police surveillance and expert testimony on the location of cell phone use and cell site information supported this theory. Four counts relate to this event:

• Count 7: Possession of ecstasy for the purpose of exporting
• Count 8: Conspiracy to export ecstasy
• Count 9: Possession of marijuana for the purpose of exporting
• Count 10: Conspiracy to export marijuana

[7] Three days later, on June 14, 2009, Ross, the appellant Stevenson, and two other women were stopped at the border while returning to Canada from Buffalo, New York. Ross had US$16,000 on her person. The women travelled to Buffalo at Duncan’s request to pick up money being brought there from Atlanta. Duncan, Ross, and Stevenson were charged with count 12: conspiracy to possess the proceeds of crime.

[8] Count 12 was Stevenson’s only conviction. She has since served her 18-month conditional sentence.

[9] Duncan was also convicted of two firearms offences. The convictions were based on two intercepted conversations between Duncan and an unknown male on June 18, 2009. The Crown successfully argued that the men were arranging for the transfer of a 9 millimetre firearm. Duncan was convicted of:

• Count 13: Trafficking a firearm by offer
• Count 14: Conspiracy to possess an unauthorized firearm

[10] Duncan received a global sentence of 22 years’ imprisonment, adjusted to 15 years to account for the principle of totality. He also received the equivalent of 6 years’ credit for pre-sentence custody.

B. Grounds of Appeal

[11] The appellants appeal their convictions. Duncan also appeals his sentence.

[12] Duncan’s first ground of appeal is that the trial judge erred in his final instructions to the jury. He argues that the trial judge: (i) failed to relate the evidence to the legal instructions or set out the position of the defence; (ii) provided inadequate instructions on the charge of conspiracy to possess an unauthorized firearm and misdirected the jury on the burden of proof on that count; and (iii) provided inadequate, misleading, and prejudicial instructions to the jury on the expert cell tower evidence.

[13] Second, Duncan submits that the verdicts on the firearm charges were unreasonable because the Crown failed to call evidence to prove he was not authorized to possess or transfer a firearm.

[14] Finally, Duncan argues that the trial judge erred in dismissing his constitutional challenge to the mandatory minimum sentence for trafficking a firearm under s. 99(2) of the Criminal Code, R.S.C. 1985, c. C-46, and that the overall sentence was unduly harsh and excessive.

[15] The appellant Stevenson argues that the trial judge erred in his instruction to the jury on the offence of conspiracy to possess the proceeds of crime.

[16] For the reasons set out below, I am of the opinion that the trial judge erred only in his instructions to the jury on the firearm offences. I would therefore allow the appeal in relation to counts 13 and 14 and, subject to the discretion of the Crown, order a new trial on these two counts only.

[17] I would otherwise dismiss the balance of the conviction appeal. As the firearm convictions are set aside, I would allow the sentence appeal and impose a sentence of 14 years’ imprisonment, less pre-sentence credit.

[18] I would dismiss Stevenson’s appeal of her conviction for conspiracy to possess the proceeds of crime.

C. Discussion

The Jury Instruction

[19] I begin with the ground of appeal common to both appellants – the jury instruction. It is also the one on which this entire appeal is ultimately decided. First, I summarize the positions of the parties on appeal. I discuss the law applicable to appellate review of jury instructions. The facts relevant to each group of counts and an analysis of the sufficiency of the instructions given on those counts are then set out.

(1) The Positions of the Parties

[20] Both appellants challenge the adequacy of the trial judge’s instructions on the basis that he: (i) failed to sufficiently instruct the jury on the law; (ii) failed to properly summarize and review the evidence as it related to each issue to be decided; and (iii) failed to adequately present the parties’ positions.

[21] Duncan asserts that the trial judge failed to set out what specific factual determinations the jury would have to make or which evidence or wiretaps were potentially relevant on which issues. He submits that though the trial judge summarized and quoted evidence in broad strokes relevant to each overall count, the judge failed to direct the evidence review to any particular issue to be decided. Duncan argues that the trial judge followed the same approach on every count, resulting in a generally inadequate charge.

[22] For count 14, conspiracy to possess an unauthorized firearm, Duncan argues that the trial judge failed to explain the elements of unauthorized possession of a firearm or set out what a conspiracy to commit the offence of possession would entail. In terms of the conspiracy, he argues that the trial judge never directed the jury to issues they would need to decide in order to be convinced beyond a reasonable doubt of the object of the conspiracy and that Duncan and the unknown male reached an agreement meant to be taken seriously. The jurors would have been left to navigate through the evidence and figure out, on their own, the legal and factual issues to be determined.

[23] The appellant Stevenson argues that the trial judge’s instruction on count 12, conspiracy to possess the proceeds of crime, was inadequate in that it did not sufficiently instruct the jury on the law of conspiracy. Stevenson further argues that she was disadvantaged by the trial judge’s increasingly abbreviated instructions on conspiracy as he moved through the charge. She also submits that the trial judge failed to summarize the evidence relevant to her participation and failed to fairly present the position of the defence to the jury.

[24] The Crown argues that the trial judge delivered comprehensive instructions to the jury over three days, reviewing all 16 counts in the indictment individually and explaining the essential elements of the offences and the relevant evidence for each. The instructions included a summary of the positions taken by the Crown and each accused at trial.

[25] The Crown also points out that the trial judge provided all counsel with an opportunity to comment on the charge before he began the review of the positions of the parties for the jury. Only one defence counsel had any comments, and stated that the directions were comprehensive.

[26] The Crown concedes that, on the count of conspiracy to possess an unauthorized firearm, the trial judge did not fully instruct the jury on the essential elements of the unlawful object of the conspiracy – the unauthorized possession of a firearm – but argues that this was not a relevant legal issue for the jury to consider.

(2) The Applicable Law

[27] A functional approach must be taken when assessing the adequacy of a jury charge. The question to be determined is whether the alleged deficiencies, compared to the acceptable legal instruction, caused a serious concern about the jury’s verdict: R. v. Jacquard, [1997] 1 S.C.R. 314.

[28] As this court set out in R. v. MacKinnon (1999), 43 O.R. (3d) 378 (C.A.), at p. 386, the functional approach requires consideration of whether, by the end of the instructions, the jury understood:

• the factual issues which had to be resolved,
• the law to be applied to those issues and the evidence,
• the position of the parties, and
• the evidence relevant to the positions of the parties on the various issues.

See also Azoulay v. R., [1952] 2 S.C.R. 495.

[29] There is no prescriptive formula or incantation that must be adhered to. Rather, as Doherty J.A. explained in MacKinnon, the trial judge should provide references to the evidence which are sufficient, in the context of the case and the entirety of the charge, to alert the jury to the parts of the evidence that are significant to particular issues and the positions taken by the parties on those issues. The trial judge should not simply put evidence in bulk to the jury, leaving it to them to determine the relationship between the evidence and the issues that must be decided: see Jacquard, at para. 13; R. v. Royz, 2009 SCC 13, [2009] 1 S.C.R. 423, at para. 2.

[30] However, considerable discretion is afforded to a trial judge to choose the method of reviewing the evidence and relating the evidence to the issues: R. v. John, [1971] S.C.R. 781, at pp. 792-793. That evidence could have been more complete, better expressed, or articulated differently is not a basis for finding a trial judge’s instructions to be inadequate. The instructions are adequate if the evidence is put to the jury in a way that allows the jury to fully appreciate the issues and the defences advanced: R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 57.

[31] It is also important to note that counsel is expected to assist the trial judge by offering comments on the content of a jury instruction, raising objections, and providing assistance, particularly at the pre-charge conference. Failure to assist, as well as failure to object, may be indicative of the seriousness of the error that is later alleged: Daley, at para. 58; Royz, at para. 3; Jacquard, at para. 38.

(3) Counts 1, 2, 4 and 5: Importation of Cocaine; Conspiracy to Import Cocaine

Facts

[32] On March 16, 2009, Holly Harris and John Blair Curran arrived at Pearson International Airport from Panama. Their luggage contained about two kilograms of cocaine in shampoo and toiletry bottles. Harris and Curran were arrested for importing cocaine.

[33] On May 25, 2009, Leonide Roussy arrived on a flight from Panama with 1.8 kilograms of cocaine hidden in toiletry bottles. He was arrested for importing cocaine.

[34] The Crown’s theory was that these importations had taken place at the behest of Duncan, relying on wiretap intercepts and text communications to establish Duncan’s role in arranging the importations. The appellant argued that, in both incidents, the parties either acted independently or at the direction of individuals other than Duncan.

Analysis

[35] On appeal, the appellant argues that the trial judge failed to articulate the live issue in relation to these incidents – was Duncan responsible for the importations? The appellant also argues that the trial judge did not point to evidence that was relevant to this issue. Instead, the appellant suggests that the trial judge gave a “confusing jumble of summary and quotations of the evidence.”

[36] I disagree. The trial judge reviewed the essential parts of the evidence and related it to the issues so that the jury could appreciate the value and effect of the evidence.

[37] The trial judge first set out the essential elements of the offence of importing a controlled substance, then broke down each essential element into a question.

[38] The trial judge directed his review of the evidence to the key issue of whether the appellant imported a substance into Canada. This included a thorough review of the evidence of various Canadian Border Service Agency and police officers, intercepted phone calls, and texts. The trial judge did not review every call, but he read the content of several intercepted calls and referred the jury to other calls to review.

[39] After providing the evidence review, the trial judge re-iterated the key issue on count 1:

The real issue for you to determine on the count is whether Andrew Duncan was responsible for bringing the cocaine into Canada by utilizing Harris and Curran as couriers and that he intended to do this.

[40] It cannot be said that the trial judge failed to provide the jury with the defence’s position that, in both incidents, the couriers were either working independently, at the behest of Duncan’s associate Junior Wright, or for either Leonide Roussy, his son Dennis Roussy, or both.

[41] In this regard, the instructions on count 1 must be read with the instructions on count 4. There, the trial judge reviewed the evidence called by Duncan, including the evidence of a travel agent that established that Leonide Roussy paid for a ticket to Panama in the relevant time period and evidence from Dennis Roussy that both he and his father had previously travelled to Panama and had business interests in that country. He also reviewed the evidence from Dennis Roussy that he had been convicted of importing 10.8 kilograms of cocaine, was sentenced to six years in prison, and was unwilling to testify at his father’s preliminary hearing.

[42] Moreover, the trial judge specifically re-stated the appellant’s position that it was Dennis Roussy or Wright who was the ‘king pin’ of the operation in his summary of the parties’ positions at the end of the charge to the jury.

[43] Turning to the conspiracy charges arising from these two incidents, the appellant does not contest, as a general matter, the adequacy of the trial judge’s instructions to the jury on the charge of conspiracy. Rather, the appellant argues that the trial judge failed to relate the evidence to the issues to be decided.

[44] On count 2, the conspiracy charge related to the March 16, 2009 seizure, the evidence connecting the appellant to the parties importing cocaine consisted primarily of the intercepted calls after the incident. The key issue, from the appellant’s perspective, was whether the evidence established that he conspired with the couriers to import the cocaine, or just took an interest in their legal troubles after the fact.

[45] The trial judge did, in fact, highlight this issue. He did so by directing the jury, in the evidence review for count 1, to a conversation between the appellant and a co-accused, Megan Staats. In this conversation the appellant discussed reviewing the disclosure related to Harris, one of the women arrested in relation to the seizure of cocaine at the airport. He was dismayed that Harris had essentially confessed to the police. The trial judge also noted the appellant’s comment: “now look at what I’m involved in now. Look at this shit”.

[46] These calls were reviewed among other calls, giving them context within the evidence. The interpretation of these calls was crucial to the issue of the appellant’s involvement in a conspiracy and was fairly and fully put to the jury.

[47] With respect to count 5, the appellant argued that there was no evidence of an agreement between himself and Leonide Roussy, and rather that the agreement was between Leonide Roussy and his son and/or Wright. Given the review of the evidence conducted by the trial judge that I have already discussed, the evidence relevant to the issue of whether or not there was an agreement was fairly pointed out for the jury.

(4) Count 6: Conspiracy to Traffic Cannabis

Facts

[48] On June 2, 2009, communications between Duncan and other individuals were intercepted in which Duncan discussed a transaction involving “buds” and “chron”, monetary denominations for the transaction, and a hotel room number. It was admitted that the coded language in the calls refers to marijuana. Duncan was observed by police at a hotel following these conversations. This formed the basis for the charge of conspiracy to traffic marijuana.

[49] As with count 5, the appellant argued on count 6 that there was insufficient evidence to establish an agreement to traffic marijuana.

Analysis

[50] After first reminding the jury of the elements of the offence of conspiracy and reviewing the essential elements of trafficking in a controlled substance, the trial judge went on to address each element of the conspiracy charge. He reviewed the evidence with the jury that was relevant to each element, including the evidence of two surveillance officers, numerous calls between the appellant and others, and an agreed statement of facts on the nomenclature related to marijuana.

[51] He went on to review specific evidence going to the issue of the “common unlawful object” and listed calls relevant to the question of whether the appellant was a member of the conspiracy. The charge on this count was appropriate.

(5) Counts 7-10: Possession of Ecstasy for the Purpose of Exporting; Conspiracy to Export Ecstasy; Possession of Cannabis for the Purpose of Exporting; Conspiracy to Export Cannabis

Facts

[52] On June 11, 2009, the police intercepted numerous calls by Duncan and his associates which led them to believe that Duncan was packaging ecstasy and marijuana to be sent to his sister, Debbie Duncan, in Atlanta.

[53] In some of these calls, Duncan and others spoke of things by referring to weight and colours. In a conversation with his sister, they discussed the “green one”, “dirty yellow”, and “pink one”. They discussed a shipment being sent by Duncan, and the colours that were liked or disliked in the past. Duncan also told his sister what to do with the “chronic” in the shipment. In another conversation, Duncan told a co-accused that he was getting “this stuff ready for my buddy to come pick it up, to go see Debbie”. The Crown submitted that the obvious inference was that Duncan was in possession of drugs and was exporting them to Debbie Duncan in Atlanta.

[54] On that same day, one of Duncan’s associates, Junior Wright, inadvertently or unknowingly caused his phone to “pocket dial” another person. The pocket call recorded several partial phrases, some of which were alleged to have been spoken by Duncan and related to the weight of pills, wrapping, and packing the marijuana in the shipment.

[55] It was the Crown’s theory that the audio captured by the pocket call and two other calls came from the apartment of Joanna Ross, who lived at 780 Eglinton Avenue West in Toronto. Ross testified that Duncan had lived with her at 780 Eglinton for a time, but had moved out prior to their arrests.

[56] When police searched Debbie Duncan’s Atlanta home, they found approximately 5000 different coloured ecstasy pills, scales, and a significant amount of U.S. currency. Drugs, including ecstasy, were also found in Ross’ apartment after her arrest.

[57] Telephone records indicated that various calls on June 11, 2009, including the “pocket call”, were handled by a particular cell tower – sector three of the tower located at Eglinton and Old Forest Hill Road. Surveillance confirmed that Duncan, Ross, and Wright’s vehicles were all parked at 780 Eglinton on that date.

[58] At trial, the Crown called Kristi Jackson, an employee of Rogers Communications, as an expert on the location of cell phone use and cell site information. She testified that calls made from Ross’ address would normally go to the sector three tower at Eglinton and Old Forest Hill Road, but that the calls in question could have come from anywhere within the tower’s catchment area.

Analysis

[59] The evidence on these charges consisted of intercepted calls, observations made by surveillance officers, Kristi Jackson’s expert evidence, Joanna Ross’ testimony, the search conducted on the appellant’s sister’s home in Atlanta, and the drugs located in Ross’ apartment after her arrest.

[60] When viewed as a whole, the charge on these counts properly relates the evidence to the essential elements of the various offences. The key issue on the possession counts was whether there was sufficient evidence to establish that the appellant was ever in possession of either ecstasy or marijuana. The trial judge broke down the evidence related to this issue. He also reviewed the calls that went to each discrete issue on the conspiracy charges in counts 8 and 10. The judge’s instruction was sufficient to give the jury a full appreciation of the questions to be answered and the evidence relevant to each issue.

[61] As noted earlier, the Crown relied on Kristi Jackson’s expert evidence as part of its theory that the “pocket call” from Wright’s phone was made from within Ross’ apartment at 780 Eglinton. There were two further calls that the Crown alleged came from this location.

[62] The appellant, Duncan, takes issue with the trial judge’s summary of the expert’s evidence. Specifically, he suggests that the trial judge failed to instruct the jury that the calls could have come from anywhere within a large catchment area. There was no dispute that 780 Eglinton was within the catchment area, but the size of the catchment area was largely undefined. He argues that the trial judge should have alerted the jury to this fact and highlighted that this evidence was circumstantial and not proof that the calls were, in fact, made from 780 Eglinton.

[63] Duncan also argues that the trial judge’s reference to the calls as “the 780 calls” presumes that the calls came from 780 Eglinton and may have unfairly impacted the jury’s assessment of the evidence on this issue. I disagree.

[64] The trial judge called attention to a number of aspects of Kristi Jackson’s evidence that made its limits clear. This included the fact that she could not opine on who made the calls or if the calls originated from 780 Eglinton. The trial judge summarized defence counsel’s questions and the expert’s answers about the radius of the cell tower. This highlighted that she could not provide information on the dimensions of sector three or confirm that the calls came from 780 Eglinton.

[65] The trial judge made additional references to the limits of Jackson’s evidence, in summarizing Ross’ position for the jury. The trial judge stated:

The Crown also contends that the tab 53 wiretap emanated from Joanna Ross’ apartment and the Crown relies on the evidence of Ms. Jackson from Rogers. But all Ms. Jackson could say was that if the calls were made from 780 Eglinton Avenue West they would go to sector three of the Gardiner cell tower. She was not able to provide information regarding the dimensions of the sector three boundary or where the next nearest cell tower was located.

[66] The short-hand reference to the three calls in question as “the 780 calls”, when put in the context of the charge on Kristi Jackson’s evidence, did not suggest to the jury that they should assume the calls originated from 780 Eglinton. Rather, the instructions are clear that it was for the jury to determine whether or not the evidence as a whole established that the calls in fact came from 780 Eglinton.

[67] In other words, and as the trial judge advised the jury, if the calls originated from 780 Eglinton, then in all likelihood the cell tower at Eglinton and Old Forest Road would handle the calls, given that it was the closest cell tower to that address. The repeated use of the word “if” in relation to the call location makes this clear.

[68] While referring to the calls as “the 780 calls” was not the best way of describing the calls in question, in the context of the entire charge, this shorthand does not give rise to a reversible error.

(6) Count 12: Conspiracy to Possess the Proceeds of Crime

Facts

[69] On June 14, 2009, the appellant Karen Stevenson, Joanna Ross, and two other women travelled to Buffalo, New York at Duncan’s request to pick up money being brought from Atlanta. The evidence at trial established that Ross had US$16,000 on her person when crossing the border into Canada. Her travelling companion also had a substantial sum of money on her person. The funds were seized. Duncan sent texts bemoaning the loss of the money after it had been seized.

[70] Ross testified that she believed the money was being smuggled over the border to avoid paying taxes. She thought it was going to fund an “Ice Cream Concert” (a large hip-hop event) organized by Duncan and to repay a debt owed to her. Ross testified that Duncan had various legitimate business interests as a concert promoter, club owner, and clothing store owner.

[71] Stevenson was not found in possession of any funds. She was acquitted of the charge of possession of proceeds of crime on a directed verdict. At trial, the Crown relied on intercepted telephone conversations between Stevenson and Duncan as evidence of her role in the conspiracy. Duncan, Stevenson, and Ross were each convicted of conspiracy to possess the proceeds of crime.

Analysis

[72] The adequacy of the instructions on count 12 must be evaluated with the instructions provided on count 11, possession of the proceeds of crime.

[73] The trial judge identified that whether the currency in question was “obtained by crime” was one of the essential issues on this count. Based on the evidence and the positions of the parties, this was the most important and contentious issue.

[74] During the review of the evidence for count 11, the trial judge specified the relevant calls and again read excerpts of the wiretap transcripts that were relevant to this issue. His recitation of the evidence mentioned the “Ice Cream Concert”, “concert money” and “club money”. He also directed the jury’s attention to the flyer for the Ice Cream Concert as part of the evidence the jury should consider on the issue of whether the funds were obtained by crime.

[75] The trial judge incorporated this into the charge on count 12 by telling the jury to consider the evidence reviewed for count 11 in addition to other calls. I do not agree with Duncan’s assertion that, in reciting the evidence, the trial judge did not articulate what the money’s alternative, legal sources might have been.

[76] I also do not accept the appellant Stevenson’s argument that the evidence review was inadequate. The trial judge referred the jury to the calls relevant to Stevenson. The content of these calls had just been reviewed in the instructions on count 11. He reminded the jury that there was no evidence that Stevenson was in possession of any currency, highlighting a difference between Stevenson and her co-accused, Ross. The judge also noted the lack of direct evidence connecting Stevenson to the proceeds of crime.

[77] Stevenson argues that the more fulsome instructions on the elements of the offence of conspiracy provided for in an earlier count ought to have been repeated in the instructions on count 12, given that she only faced this charge.

[78] I disagree. A detailed analysis of the elements of conspiracy had been provided numerous times. The trial judge stated at the outset that he was not going to conduct a detailed review of the elements of conspiracy for each and every count. Given that conspiracy featured in so many of the counts and the instructions were provided for all of them on the same day, I see no fault in the trial judge’s approach.

[79] Moreover, if trial counsel wished to have the jury re-instructed on the elements of conspiracy in a more detailed fashion on count 12, counsel should have raised it. No concern was raised with the adequacy of the charge as to the elements of conspiracy, or on count 12 specifically.

[80] Finally, Stevenson argues that, by using the conjunctive “and” in reference to the three co-accused on this count, the trial judge conveyed an “all-or-nothing” approach, namely that all three accused had to either be acquitted or convicted of the conspiracy to possess the proceeds of crime. I disagree.

[81] The trial judge reiterated on several occasions that the determination of any of the accused’s membership in the conspiracy had to be determined based on “his/her own words and acts, considered in the context of the words and acts of other alleged members of the conspiracy”.

[82] The trial judge then went on to refer individually to each accused and the evidence relevant to the question of their individual membership. The trial judge underscored the need for an individualized assessment in his concluding paragraphs, stating:

I want to repeat as well something that I did indicate to you earlier. That a finding from Andrew Duncan’s own words and acts or a finding from Joanna Ross’ own words or acts or a finding from Karen Stevenson’s own words or acts that he or she was probably a member of the conspiracy is not enough for you to find them guilty of conspiracy […] If you are not satisfied beyond a reasonable doubt that Karen Stevenson was a member of the conspiracy, you must find her not guilty of conspiracy to (commit) the indictable offence of Possession of Proceeds of Crime.

[83] I therefore conclude that, on all the counts I have reviewed to this point, the trial judge appropriately parsed out the constituent elements of each offence and adequately related the evidence to the elements and the issues to be decided. In my view, he integrated his legal instruction with a focused evidentiary review in a manner that is consistent with D. Watt, Watt’s Manual of Criminal Jury Instructions (2nd ed.)(Toronto: Carswell, 2015). While the charge is not perfect, that is not the standard. Trial judges are given latitude to determine the manner and extent to which evidence is reviewed and related to the essential elements of the offences and available defences. On the counts discussed above, I am not prepared to say that the charge failed to provide sufficient instruction to allow the jury to fully appreciate the issues and the positions of the accused.

(7) Counts 13 and 14: Trafficking a Firearm by Offer; Conspiracy to Possess an Unauthorized Firearm

Facts

[84] The evidence related to the two firearm charges consisted of two intercepted telephone calls between the appellant Duncan and an unknown male (“UM”) on the evening of June 18, 2009.

[85] These two calls and transcripts were evidence at trial. The relevant excerpts read as follows:

June 18, 2009 at 9:36 p.m.

UM1: Remember the uh one time when we came by you you…you gives us a black thing.

AD: Yeah.

UM1: How about…you pay me with that too.

(speaking simultaneously)

AD: I don’t have none…

UM1: You have a next one?

AD: …I don’t have none lying around right now though.

UM1: So how about give me seven five and after you just bring one for me? (speaking simultaneously)

AD: Uh…well…um…I could get one but it don’t have a clip, you would have to find a…

UM1: Doesn’t matter, I will find it. You could get if for me tonight?

AD: No not…tomorrow.

UM1: So yo…you don’t have no…enough…nothing laying around…I can hold on to?

AD: Like what? A thing for thing?

UM1: Yeah.

AD: No, I buried mines.

AD: Why what happened to yours? You sell it? (speaking simultaneously)

June 18, 2009, at 9:40 p.m.

AD: Hello?

UM: Yeah, sorry for bother you. Um, I gonna ask my friend, (stutters) what kind you want? What kinda clip (ph)? Nines? Big ones, small ones?

AD: Yeah. Yeah, yeah.

UM: Big one?

AD: Yeah, the big one.

UM: Alright. Alright.

[86] At trial, there was an agreed statement of facts in relation to the firearm offences including that “ting” or “thing” is a common generic term used for firearms but can also be used as coded language to describe drugs, property, etc. It was agreed that the term “clip” can be used at times as slang language but is more commonly used as a layperson term to describe the detachable box cartridge magazine which holds ammunition and is inserted into a firearm. It was further agreed that “nines” is a slang term for a 9 millimetre firearm and that a 9 millimetre firearm would use a clip.

[87] There was no evidence introduced at trial as to whether either Duncan or the UM was licenced to possess or transfer a firearm.

Analysis

[88] The charge on counts 13 and 14 was deficient in a number of ways.

[89] I turn first to count 13, trafficking a firearm by offer. Unlike all the other charges which preceded it on the indictment, count 13 stood alone and distinct. There were no other charges for which the instructions partially covered the instructions on this count, either on the elements of the offence or the applicable evidence.

[90] The trial judge correctly set out the elements of the offence of trafficking a firearm by offer. However, unlike his approach on the first 12 counts, the trial judge did not break down the elements by essential questions nor did he precisely identify the factual and legal issues to be decided.

[91] The trial judge did not review any of the evidence in the calls. He simply recited certain admissions the parties had made regarding nomenclature and referred the jury to the location of the two calls within the volumes of material. Without a review of at least some of the content of the two calls, and the context of these calls, it cannot be said that the trial judge instructed the jury on how to relate the evidence to the issues to be decided.

[92] The trial judge fairly pointed out that one central issue for the jury to decide was whether “the calls set out in Tabs 75 and 76 related to the transfer of a black 9mm firearm”. But there was more for the jury to decide than this. Trafficking by offer requires that the offer be put forward in a serious manner and that the accused intends for the offer to be taken as genuine: R. v. Ralph, [2011] O.J. No. 3156, at para. 48, citing R. v. Murdock (2003), 176 C.C.C. (3d) 232 (Ont. C.A.). This is a crucial element of the offence.

[93] The jury should have been alerted to this important question and directed to evidence within the calls relevant to this determination, including the number of calls, the duration of the calls, the guarded manner of speaking, and the use of coded language. They should also have been directed to consider whether the calls clearly established one party to be the “offeror”. It should have been noted that no firearm was ever located, as this bears on the question of the seriousness of the offer, despite that the existence of a firearm is not an element of the offence.

[94] The jury could very well reason that, as a matter of common sense, the men were discussing a firearm, but the seriousness of the offer to transfer the firearm was a separate question for the jury to decide. The jury should also have been instructed to consider whether the calls showed more than a discussion of something that might take place in the future.

[95] It is apparent from the jurors’ questions that they were unclear about the applicable law and how the evidence applied to the question of “offer”. While the trial judge, in answering the questions, remedied the deficiencies in the legal instruction to some degree, the failure to relate the evidence to the issue left the jury without sufficient guidance on how to reason through the question of whether the appellant made an offer and whether that offer was serious.

[96] I would also note that, while the trial judge indicated for the jury that an element of the offence includes proof that the appellant was not authorized to transfer a firearm, there was no discussion of what evidence related to this issue. Though defence counsel did request that the jury be instructed further on this point, the trial judge did not provide instruction or a review of the evidence on this issue.

[97] For these reasons, the conviction on count 13 must be set aside.

[98] I turn now to count 14, conspiracy to possess an unauthorized firearm. As noted earlier, the trial judge comprehensively reviewed the elements of conspiracy on several occasions. There is no error in his brief recitation of the elements of conspiracy in count 14. However, as he did with all the other conspiracy counts, the trial judge should have, provided the jury with the essential elements of the offence of unauthorized possession of a firearm. This would have highlighted an important issue for the jury to decide – whether the evidence established a common unlawful object.

[99] Like count 13, count 14 did not include a meaningful explanation of the factual or legal issues to be resolved, or a relation of the evidence to the issues. Given the appellant’s position that the phone call was just “idle chatter” between two people, the jury should have been directed to the fundamental issue and evidence relevant to its determination. They should have been directed to the question of whether there was sufficient evidence to establish “a meeting of minds, a consensus to effect an unlawful purpose”: R. v. Cotroni, [1979] 2 S.C.R. 256, at p. 277. With no review of the call transcripts, I cannot conclude that the jury appreciated the issues to be determined on this count or the value of the evidence contained in the calls and admissions.

[100] I would also note that, while the trial judge correctly explained the burden of proof on a conspiracy charge throughout his instructions, he was invited by defence counsel to instruct the jury that the appellant bore the onus of proving he was licenced to possess a firearm in count 14. The trial judge unfortunately acceded to defence counsel’s request for the instruction.

[101] Duncan was charged under s. 465(1)(c) of the Criminal Code of conspiring with others to commit the indictable offence of unauthorized possession of a firearm contrary to s. 91(1) of the Criminal Code. It is a convoluted charge. During a proceeding for an offence under s. 91, if any question arises as to whether a person is the holder of a licence, the reverse onus in s. 117.11 of the Criminal Code requires the accused to prove the existence of the licence. However, as I explain below, the reverse onus provision is not relevant when an accused is charged with conspiracy.

[102] Conspiracy is a crime of intention: United States of America v. Dynar, [1997] 2 S.C.R. 462, at para. 103. The essential elements of a conspiracy are an intention to agree, the completion of the agreement, and a common design to do something unlawful. The object of the agreement must be a crime. It is the Crown’s burden to prove that the object of the agreement is unlawful. The reverse onus provided for in s. 117.11 does not change this.

[103] In Dynar,again at para. 103, the court explained that“[t]he factual element ‑‑ or actus reus ‑‑ of the offence is satisfied by the establishment of the agreement to commit the predicate offence. This factual element does not have to correspond with the factual elements of the substantive offence.” Authorization is a factual issue that arises in s. 91 prosecutions and triggers the procedure in s. 117.11. This procedure does not change the nature of the offence, which remains the unauthorized possession of a firearm. With a conspiracy charge, it is the Crown that must prove the unlawfulness of the object. In this case, that is the unauthorized possession of a firearm. The conspiracy charge does not incorporate the reverse onus.

[104] The judge erred in his instruction on this point. Given the clear instructions on the burden of proof on a conspiracy throughout the jury charge, I would not have set aside the conviction on this count based on this error alone. However, in combination with deficiencies in the trial judge’s review of the evidence and failure to relate the evidence to any of the essential elements of the offence, I conclude that the conviction on this count must be set aside.

Sentence Appeal

[105] In his reasons for sentence, the trial judge first determined the appropriate sentence for each count. The total was 22 years’ imprisonment for Duncan’s 12 offences. This included 3 years for the firearms convictions.

[106] He then appropriately considered whether the combined sentence was unduly long or harsh, as he was required to do under s. 718.2(c) of the Criminal Code. The totality principle requires a judge who imposes consecutive sentences for multiple offences to ensure that the cumulative sentence does not exceed the overall culpability of the offender. The aggregate sentence must be just and appropriate: R. v. M (C.A.), [1996] 1 S.C.R. 500, at para. 42.

[107] This led the trial judge to reduce the sentence to 15 years. The 3 years for the firearm offences ran concurrently to the drug charges that made up the 15 year sentence. A credit for pre-sentence custody on a 2:1 basis, rounded up to six years, was subtracted from the 15 year sentence.

[108] Without the firearm convictions, the cumulative sentence would have been 19 years for the 10 drug offences. I would apply the totality principle to the 19-year total sentence and reduce it to 14 years, less the credit for pre-sentence custody.

[109] The offences for which the appellant was convicted are serious and reflect a sophisticated and expansive network of drug trafficking. It is clear from the trial judge’s reasons on sentence that Duncan’s lead role in the importing, exporting, and distribution of drugs was particularly aggravating and drove the trial judge to impose a lengthy period of incarceration. The firearm-related charges factored in a minor way, particularly because no actual firearm was involved. An overall sentence of 14 years for the drug offences reflects the need for denunciation and general deterrence. It is also consistent with the principle of totality.

D. Conclusion

[110] For the reasons stated, with respect to the appellant Duncan, I would set aside the convictions on the charges of trafficking a firearm by offer and conspiracy to possess an unauthorized firearm, and order a new trial. It is within the discretion of the Crown to decide whether it is in the interests of justice to proceed with a new trial. I would dismiss the balance of the appeal on conviction. I would allow Duncan’s appeal on sentence and substitute a sentence of 14 years’ imprisonment. I would dismiss the appeal of the appellant Stevenson.

Released:

“MT” “M. Tulloch J.A.”

“DEC 31, 2015” “I agree K.M. Weiler J.A.”

“I agree K. van Rensburg J.A.”