Court of Appeal for Ontario

Date: March 1, 2017 Docket: C58713

Justices: MacPherson, Cronk and Watt JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Lonny Adam Poulin Appellant

Counsel:

• Tina Yuen and Cate Martell, for the appellant
• Brian G. Puddington, for the respondent

Heard: November 2, 2016

On appeal from: The convictions entered on December 4, 2013 by Justice John F. McCartney of the Superior Court of Justice, sitting with a jury.

By the Court

Introduction

[1] The appellant, Lonny Adam Poulin, was charged on a multi-count indictment with various drug and related offences arising from events that transpired in the spring of 2011. The charges involved five drug transactions allegedly committed on four separate dates. The charges may be summarized as follows:

Date	Count	Offence
April 8	3	Trafficking (cocaine)
	4	Possession of proceeds of crime
May 3	5	Trafficking (cocaine)
	6	Possession of proceeds of crime
May 13	7	Trafficking (cocaine)
	8	Possession of proceeds of crime
May 17 (morning)	1	Trafficking (oxycodone)
May 17 (afternoon)	2	Trafficking (cocaine)
May 17 (police raid)	9	Possession for purpose of trafficking (cocaine – box)
	11	Possession for purpose of trafficking (oxycodone – boat)
	12	Possession of proceeds of crime

[2] Following a 13-day trial before a judge and jury, the appellant was convicted of four counts of trafficking (cocaine and oxycodone) (counts 1, 2, 3 and 7), three counts of possession of the proceeds of crime (counts 4, 8 and 12), and two counts of possession (cocaine and oxycodone) for the purpose of trafficking (counts 9 and 11). He was acquitted of two counts (counts 5 and 6). The Crown did not proceed on count 10.

[3] The appellant was sentenced to a total of five years in jail, less credit for six and one-half months of pre-sentence custody. A $2,100 fine was imposed, payable within six months of the appellant's release from jail failing which the appellant would be required to serve an additional month in custody, together with a $4,185 forfeiture order, and weapons prohibition and DNA orders.

[4] The appellant appeals from his convictions. His grounds of appeal target the propriety and adequacy of the trial judge's jury instructions and, in respect of counts 3, 4 and 8, the reasonableness of the jury's findings of guilt.

[5] The appellant attacks the trial judge's jury instructions on several grounds. As argued, he submits that the trial judge erred by:

(i) misdirecting the jury on the proper assessment of circumstantial evidence;

(ii) misdirecting the jury on the prohibition against applying evidence across counts in a multi-count case and, relatedly, failing to correct improprieties in the trial Crown's cross-examination of the appellant and closing address to the jury;

(iii) failing to properly instruct the jury on the dangers of propensity reasoning;

(iv) failing to put the defence case fairly to the jury; and

(v) misdirecting the jury on the limited use it could make of evidence concerning unadopted, prior inconsistent statements.

[6] It is unnecessary for the disposition of this appeal to address all the grounds advanced by the appellant. For the reasons that follow, we conclude that the trial judge erred in his instructions to the jury regarding the proper consideration of evidence in a multi-count case, including by failing to correct parts of the trial Crown's cross-examination of the appellant and closing address to the jury that were improper and prejudicial to the defence. On this ground alone, the convictions cannot stand and a new trial is required.

Background

(1) The Drug Transactions

(i) Undercover Engagement with Ronald Bell

[7] In January 2011, the Thunder Bay Police Service commenced an undercover investigation of Ronald Bell, a suspected drug trafficker who lived at 511 Simpson Street in Thunder Bay, Ontario. On various occasions, undercover police officers attended at 511 Simpson Street and purchased cocaine and morphine from Bell.

[8] On March 25, 2011, Constables Pearson and Jones, acting undercover, drove with Bell to a parking lot at a local laundromat known as Barb's Laundromat. Bell left the officers' car and attended a nearby house located at 300 Bethune Street. Soon after, he returned to the car and sold the officers three and one-half grams of cocaine.

[9] For many years, the appellant had owned and operated a residential renovation and construction business in Thunder Bay. In the spring of 2011, his active work sites included 300 Bethune, as well as another house on the same street. Bethune Street is located in Thunder Bay's downtown core, an area known to police for drug activity.

[10] The police did not observe any direct contact between Bell and the appellant during the March 25 drug transaction. However, they knew that the 300 Bethune Street property was associated with the appellant and considered that Bell's attendance at that address established a link between the two men.

(ii) April 8, 2011 Transaction

[11] Pearson met again with Bell on April 8, 2011 to purchase drugs. He drove Bell to Barb's Laundromat and gave him $600 for seven grams of cocaine. Bell took the money and left Pearson's vehicle to obtain the drugs.

[12] The police had the 300 Bethune Street house under surveillance on April 8. At about 12:00 p.m., they observed the appellant enter the house, using a set of keys. At approximately the same time, the surveillance officers saw Bell enter the house. Within about ten minutes, Bell left the house, returned to Pearson's vehicle and provided him with seven grams of cocaine. The appellant, in the meantime, left the residence and drove away in his black Hummer.

(iii) May 13, 2011 Transaction

[13] On May 13, 2011, Pearson arranged to purchase an ounce of cocaine from Bell. He drove Bell to the same laundromat, where Bell got out of the vehicle and walked in the direction of 300 Bethune Street. Within a few minutes, Bell returned to Pearson's car and asked to use a cell phone. Pearson obliged, providing Bell with his cell phone. Bell made a call and Pearson heard him say to the person on the phone, "Hey brother, can I stop by?" The police later established that the phone number Bell called was registered to the appellant. After the phone call, Pearson gave Bell $2,200 for an ounce of cocaine. Bell left the police vehicle, walked to 300 Bethune Street, and sat on the steps of the house.

[14] The appellant arrived within 15 minutes. The police observed the appellant and Bell walk together to the back of the Bethune Street property, returning to the front of the house about five minutes later. Bell then left, returned to Pearson's car and provided him with the agreed amount of cocaine. As on prior occasions, the police did not observe any direct drug transaction between the appellant and Bell.

(iv) May 17, 2011 Transactions

[15] Two additional drug transactions with Bell took place on May 17, 2011. During the morning of May 17, Pearson picked Bell up and, once again, drove to Barb's Laundromat. The two men had discussed the purchase by Pearson of 20 oxycodone tablets and one ounce of cocaine. On the way to the laundromat, Bell had used Pearson's cell phone, again calling a phone number that was later established to be registered to the appellant. Pearson paid Bell $3,500. Bell then left Pearson's vehicle, met the appellant in front of 300 Bethune Street and entered the residence with him. Within a short time, Bell returned to Pearson's vehicle with 20 oxycodone tablets.

[16] Bell and Pearson agreed to complete the cocaine transaction later that day. After agreeing to the second deal, Bell again used Pearson's cell phone. He called a phone number established at trial to be that of the appellant. Pearson then dropped Bell off at his residence on Simpson Street.

[17] Later that afternoon, Pearson and Bell met again. This time, Pearson drove Bell to a Dairy Queen parking lot, located about a four-minute walk away from a house at 218 Powley Street, where the appellant lived. Bell left Pearson's car and walked toward Powley Street. Approximately 40 minutes later, he returned to Pearson's car with the cocaine. Bell was then arrested.

[18] Police surveillance officers monitored the appellant's movements throughout the day on May 17. During the morning, he was seen visiting several retail establishments, as well as 300 Bethune Street. Later, in the afternoon, the officers saw the appellant travel from the 300 Bethune Street property to his apartment at the 218 Powley Street house, shortly before Bell was observed to walk toward Powley Street from Pearson's car.

(v) Searches of the Bethune Street and Powley Street Properties

[19] Almost simultaneously with Bell's arrest on the afternoon of May 17, the police executed two search warrants, one at the 300 Bethune Street work site and the other at the 218 Powley Street house.

[20] At 300 Bethune Street, the police found a locked metal industrial bin in the bedroom closet of a self-contained basement apartment in the house. The bin contained about a pound of marijuana and what appeared to be hash in a glass vial. They also discovered several suitcases of clothing and pieces of identification in the apartment, including a passport in the name of Rory Pelletier. Pelletier, who was present in the house during the execution of the search warrant, appeared to the police to be in charge of the construction work at the house. He was arrested following the search of the basement apartment.

[21] At 218 Powley Street, the appellant's two children and his friend, Pat Cully, but not the appellant, were present in the residential area of the upper level of the house at the time of the raid. The children had been dropped off at the house by their mother, Karli Chrusz, for a scheduled visit with the appellant. No drugs, cash or any other evidence of trafficking activity were found in the upper level residential area occupied by the appellant at Powley Street.

[22] The police also carried out a forced entry into three separate, self-contained apartments in the basement of the Powley Street property. In the first apartment, they discovered: i) in the bedroom, approximately 700 grams of cocaine and several baggies of marijuana in a heavy, construction-type lock box in the closet, a small amount of cocaine on the dresser and a purse on the bed containing identification for a woman named Catlin Dorval; ii) in the living room, a cable bill in the name of the appellant and a camera containing numerous photographs, including photographs of the appellant; and iii) in the bathroom, a prescription drug bottle bearing the appellant's name. Other individuals, including Catlin Dorval, were present in the second apartment. A window facing to the east was open. The third apartment, where a small amount of marijuana and mushrooms were found, was unoccupied when the police arrived.

[23] Chrusz returned to the house while the police were still there. She told them that she had never seen the appellant involved with drugs and knew nothing about him leaving the house through the open window.

[24] Both Cully and Chrusz testified at trial. Cully said that, while he and the children were playing at 218 Powley Street, the appellant had stepped out for a few minutes. Chrusz, in contrast, testified that she had lied to the police on the day of the search. Contrary to what she had then told the police, she testified that the appellant had phoned her on May 17 and told her that the police were at the house, that he had gone out a window and that she had to go back to the house for the children.

[25] The police also searched the backyard of the Powley property. When a neighbour signalled that two people had fled down the adjacent laneway, two police officers gave chase. They returned shortly thereafter with a suspect, Roger Himes, in custody.

[26] The police employed the services of a drug-sniffing dog during the search of the Powley Street property and environs. The dog led them to a boat in a neighbour's yard where, under a tarp, the police found bundles of cash, baggies containing drugs and two sets of keys. The cash totalled $4,815 (Cdn.), including $2,560 of recorded police buy money that had been given to Bell for drugs earlier in the day, and $60 (U.S.). The baggies contained five grams of cocaine and 68 oxycodone pills. The first set of keys belonged to the appellant's Hummer vehicle. The second set included a key for the lock box found in the first basement apartment, where the 700 grams of cocaine were found. The police also discovered a receipt from a local furniture store dated May 17, 2011 in Pelletier's name.

(2) Appellant's Testimony at Trial

[27] The appellant testified in his own defence at trial. He denied involvement in any of the drug transactions at issue and provided explanations for the evidence implicating him in the crimes.

[28] In his evidence, the appellant described his residential renovation business, explaining that much of his work involved renovating derelict homes in the east end of Thunder Bay, a disadvantaged neighbourhood in which he, Bell and Himes had all grown up. He said that he frequently gave jobs at his various work sites and a place to sleep to people who needed help, including some he knew to have drug or alcohol related problems. He claimed that he disapproved of drug use and that he had made it clear to his work crews that he did not tolerate drug use around him.

[29] The appellant testified that Pelletier was his head carpenter, that Pelletier possessed several cell phones and changed his phone number every two weeks, that Pelletier and Bell knew each other well, and that he had caught Pelletier and Bell doing drugs together a couple of times.

[30] The appellant described Bell as a known drug user who did general labour work for him on his work sites. According to the appellant, Bell called him frequently, sometimes on a daily basis, looking for work or money. On the dates of the drug transactions in question, the appellant said that Bell came to the Bethune Street property looking for Pelletier and asking for money or other favours.

[31] With respect to the May 17 police raid on 218 Powley Street, the appellant maintained that, shortly before the police arrived, he had stepped out to get cigarettes, as well as supplies for his children, who were visiting. He stated that he ran into a friend, Dave Smith, who told him that the police were at his house and that the police claimed that they had found drugs; that the appellant had gone out the window; and that they were searching for the appellant. On receiving this information, the appellant maintained that he had phoned Chrusz, relayed to her the information provided by Smith, and told her to return to the house and pick up the children.

[32] The appellant denied any involvement in the provision of drugs to Bell, with the drugs found in the lock box in the first basement apartment at 218 Powley Street, and with the drugs and money found by the police in the nearby boat. He maintained that he did not have keys for any of the basement apartments at the Powley property and said that some of his paperwork was in the downstairs area of the house because Himes had helped clear the papers from the appellant's apartment in anticipation of the children's arrival for lunch. He claimed that he had given Himes his car keys so that Himes could run an errand and that he did not own the other set of keys found by the police.

(3) Himes' Testimony at Trial

[33] Himes testified at trial as a Crown witness. No doubt unexpectedly for the Crown, in his evidence, Himes assumed responsibility for the drugs found by the police in the search of the Powley Street property and sought to exonerate the appellant.

[34] Specifically, contrary to his statement to the police on the day of the Powley Street raid, Himes testified that he lived alone in the basement apartment at 218 Powley Street; that he alone had a key to the apartment and the lock box found in it; that the drugs stored in the lock box were his; that on the day of the raid he had sold cocaine either to Bell or to Bell's brother; that when the police arrived he was alone in the apartment and went out the window; that he hid some drugs and cash in the boat on the neighbouring property; and that the police then found and arrested him.

[35] In light of this testimony, the Crown was granted leave to cross-examine Himes pursuant to s. 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5. On cross-examination, Himes acknowledged that, on previous occasions, he had asserted that he was "babysitting" the drugs; that the drugs did not belong to him; and that his friend who owned the Hummer and lived upstairs at the Powley Street property (the appellant) had been present in the basement apartment with him when the police arrived, whereupon the friend had gone out the window. However, notwithstanding these admitted prior inconsistent statements, Himes continued to claim at trial that the drugs recovered in the Powley Street police raid belonged to him. He said that he had not been truthful in his earlier statements and that he had been "high" on the day of the police raid.

[36] On cross-examination by defence counsel, Himes again changed his version of events. In response to further questioning, he maintained that a third individual, Sky Sponchia, and not the appellant, had been with him in the Powley Street basement apartment when the police arrived and that it was Sponchia who went out the window during the raid. He said that Sponchia and Pelletier worked together selling drugs and that they had dangerous friends who would have harmed him had he mentioned their names on earlier occasions.

Issues

[37] These reasons will focus on one main issue: whether the trial judge misdirected the jury on the prohibition against applying evidence across counts in a multi-count case. Relatedly, we will also consider the propriety of aspects of the trial Crown's cross-examination of the appellant and his closing address to the jury.

Analysis

(1) Misdirection on Prohibition Against Applying Evidence Across Counts

(i) Need for a Limiting Instruction

[38] The central issues at trial were the identification of Bell's drug supplier and the owner of the drugs found in the basement apartment at the Powley Street property and in the nearby boat. The Crown's case against the appellant was entirely circumstantial. There was no direct evidence of a drug transaction between the appellant and Bell. There was also no direct evidence establishing that the appellant was the person who stashed drugs and money at 218 Powley Street and in the boat on the neighbouring property.

[39] At trial, the Crown did not bring a similar act application as it did not seek to argue that the evidence on any particular count was admissible as similar act evidence on the other counts. Nor is such an argument advanced on this appeal. Indeed, at trial, counsel agreed at the pre-charge conference that an instruction regarding the use of similar act evidence should be deleted from the draft jury charge. The trial judge agreed and deleted it.

[40] In these circumstances, it was incumbent on the trial judge to instruct the jury that it was required to consider the evidence concerning each count separately and that, in reaching a decision on any one count, it could only consider the evidence relevant to and admissible on that count: R. v. B.M. (1998), 42 O.R. (3d) 1; R. v. Rarru, [1996] 2 S.C.R. 165; R. v. Brown, 2007 ONCA 71, 221 O.A.C. 17.

[41] Relying on this court's decision in R. v. Sandhu, 2009 ONCA 102, 265 O.A.C. 206, the Crown argues that an instruction about the prohibition against cross-count reasoning was unnecessary in this case because much of the trial evidence was common to all the counts at issue. We disagree.

[42] In our view, Sandhu, a domestic assault case, is distinguishable from this case. Sandhu involved multiple allegations of abusive conduct by the accused over a period of time against a single victim. Unlike this case, in Sandhu, the accused's alleged discreditable conduct was relevant and admissible, even in the absence of a similar act application, to demonstrate animus by the accused toward the complainant.

[43] Further, much of the evidence in Sandhu concerned the nature of the domestic relationship and the interactions between the accused and the complainant in that relationship, thus establishing the context within which the abuse was said to have occurred. This evidence, therefore, was directly relevant and common to all the counts. In contrast, in this case, while there was some evidence common to two or more counts (e.g. evidence establishing the appellant's phone number and his personal residence), most of the evidence was particular to each individual count.

[44] Moreover, again unlike this case, even if a cautionary instruction against cross-count reasoning had been given in Sandhu, this court concluded that it would have necessitated a companion instruction on animus or predisposition that would not have assisted the accused. Here, an instruction on the proper use of the evidence would have operated in favour of, not against, the appellant's interest.

[45] These factors, among others, drove the Sandhu court to conclude that an instruction not to use the evidence relating to one count as evidence on any of the other counts was not required in the circumstances.

[46] That is not this case. As we will explain, a clear limiting instruction was required in this case for three reasons. First, although the Crown did not bring a similar act application, the trial Crown nonetheless invoked similar act reasoning in his cross-examination of the appellant and, during his closing address, repeatedly invited the jury to engage in cross-count reasoning. Second, the trial judge did not correct the trial Crown's misstatements. Instead, the trial judge repeated certain of the trial Crown's comments, without qualification, and further, provided an ambiguous instruction on the prohibition against cross-count reasoning in his jury charge. Finally, the trial judge's responses to questions from the jury exacerbated the risk of the impermissible application of the evidence across counts by the jury.

(ii) Trial Crown's Remarks

[47] We turn first to the trial Crown's impugned remarks. In an expansive closing address, the trial Crown issued virtually an open invitation to the jury to apply the evidence across all counts. His urgings to the jury included the following:

His honour will tell you that even though I need to prove that each and every one of these things on the indictment beyond a doubt and another tool I can use is that you can look at this indictment and the evidence that was led with respect to May 17th, the evidence that was led with respect to May 13th and when he tried to dial two numbers on May the 3rd that were off by one digit, you can use the fact that on May 13th and May 17th he dialled the right number. So you can use the evidence that's led on the other counts to help you determine what was reasonable or what really happened on the other dates. You can use that evidence.

Before I go into the proof that I have with respect to each and every count, and remember don't forget, the evidence on one count can be used in helping you determine what happened on the other counts. The biggest single piece that strikes me the most is who was he calling? Exhibits 1 and 16 tell you who that is. So who was he contacting on those other dates? You can use the evidence on the other counts to look at that situation.

I've told you that you can use the evidence of any of the counts that help assist you with what's reasonable with respect to the findings of facts on the other counts.

Let's just look at the evidence of the 17th and the reason again that I'm calling it first, is because when we look at the evidence of the 8th, the 3rd, and the 13th, you can utilize that as an assist to determine what happened.

So when you're looking at the evidence of May 13th, you can look at the evidence of May 17th to see the pattern. […] [The Appellant] shows up when you want oxycodone every single time, every time. Not once in any of these deals in this indictment does [the Appellant] not – where the deal is made within minutes.

And remember; don't look at any day in isolation. Look at the four transactions. See if they're similar and if it makes sense that anybody else could have been involved in any of them but [the appellant] who was there at each and every one of them.

Now, that leaves us with the very first event. I went backwards in time because of the rule I'm suggesting his honour will confirm, that you don't look at each piece of evidence in isolation. That you can look at the evidence, all the evidence whether it was led from […] May 17th, 13th, and the 3rd because the 8th is a little weaker because I don't have a phone call. There is no phone call to point to here, but the pattern's the same on the 8th.

I would ask you to carefully listen to the charge from his honour when he will discuss those little tools, circumstantial evidence, parties to an offence, that you can use evidence from previous counts to reach your decision.

[48] These, and similar remarks by the trial Crown in his closing address, followed on his cross-examination of the appellant during which he resorted to similar act reasoning. Throughout his cross-examination of the appellant, the thrust of the trial Crown's questioning was that the evidence on all the counts rendered it unlikely in the extreme that the appellant would be implicated by "unlucky" coincidence in five separate drug transactions carried out at or near premises he owned or occupied.

[49] The above-quoted passages from the trial Crown's closing address and the similar act reasoning that he developed as the predominant theme of his cross-examination of the appellant suggested to the jury that it could, and should, use all the evidence at trial, without any count-by-count differentiation, to determine the appellant's guilt on all counts. Importantly, the trial Crown did not confine this suggestion to only the evidence that might be said to be common to all counts. Instead, he invited the jury to rely on evidence that was particular to one count in order to make factual inferences about the appellant's guilt on entirely different counts. The trial Crown went even further and urged the jury to rely on alleged similarities or an alleged pattern of acts as circumstantial evidence of the appellant's guilt on all counts. Absent a successful similar act application by the Crown, this was improper and highly prejudicial to the defence.

[50] We do not accept that defence counsel's failure to object at trial to the trial Crown's cross-examination of the appellant and his closing address foreclose relief on appeal. As this court has said on numerous occasions, while a failure to object at trial is a relevant and sometimes critical factor, it does not always preclude a successful challenge on appeal. A trial judge is obliged to ensure that proper instructions are provided to the jury notwithstanding the asserted position – or silence – of counsel. See for example, R. v. Austin (2006), 214 C.C.C. (3d) 38, at paras. 14-15; Brown, at para. 16.

[51] In this case, a clear limiting instruction by the trial judge regarding prohibited cross-count application of the evidence was necessary. By the close of final arguments, there was a real and substantial risk that the jury would have understood that it could reach across counts and use any of the evidence at trial to determine the appellant's guilt on each count, beyond a reasonable doubt. This risk called out for a strong and unambiguous caution from the trial judge. As we will explain, this did not occur.

(iii) Initial Jury Charge

[52] The trial judge began his instructions to the jury on how it should reach its verdict by saying "when you decide whether Mr. Poulin is guilty or not guilty of the offences set out in the indictment, you should look at all of the evidence and consider the whole of my instructions" (emphasis added).

[53] An instruction of this sort is not usually an error. But in the circumstances of this case, in the absence of further clarification or qualification, it suggested to the jury that there was no restriction whatsoever on the cross-count use of the evidence at trial. This suggestion was incorrect.

[54] In fairness, the trial judge's instructions did not end there. He went on to tell the jury that "you must only return a verdict on a particular count based on the evidence that it [sic] applies to that count. It would be wrong for you to supplement the evidence related to one count with the evidence from another entirely different count." This instruction, standing alone, was correct.

[55] However, the trial judge then immediately added, "Look at the whole of the evidence for determining guilt on a particular count. You treat each count as if it were contained in a separate indictment and reach a verdict based solely on the evidence that applies to it."

[56] In these instructions, the trial judge correctly cautioned the jury to consider a particular count "based on the evidence that … applies to that count" and to reach its verdict on each count based "solely on the evidence that applies to it". If the instructions had been confined to those warnings, they would be unimpeachable. But the trial judge also told the jury to "look at all of the evidence" and "the whole of the evidence" for determining guilt "on a particular count".

[57] Viewed in their entirety, these instructions were ambiguous and ripe for misinterpretation. They left open the real possibility for jury confusion about how to evaluate the evidence in respect of the multiple counts before the court and, as a result, did not clearly guard against cross-count reasoning by the jury.

[58] The risks of jury confusion and improper consideration of the evidence were exacerbated by the trial judge's failure, at any point in his charge, to instruct the jury that it should disregard the trial Crown's urgings to the jury that it "use the evidence of any of the counts that [may] help assist you…with respect to the findings of facts on the other counts".

[59] Moreover, when summarizing the trial Crown's position concerning the April 8, 2011 drug transaction, the trial judge repeated, without qualification or clarification, the trial Crown's submission that evidence relating to the May 13 and May 17 drug transactions could be used to establish that Bell got the cocaine he sold to the police on April 8 from the appellant.

[60] In this part of his charge, the trial judge was reviewing the trial Crown's position. Although this was not an instruction by the trial judge about using the evidence in the manner suggested by the trial Crown, and hence, standing alone, was not an error, it also did not serve to disabuse the jury of the trial Crown's misstatements concerning the permissible use of the evidence. See R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 33.

[61] In the result, the jury was left without clear guidance on the proper consideration of the evidence in this multi-count case. The instructions provided in the jury charge, following as they did on the trial Crown's closing address and cross-examination of the appellant, allowed for the realistic risk of impermissible cross-count reasoning by the jury.

(iv) Jury Questions and Responses

[62] And the matter did not end there. That the jury was confused by the instructions it had received is confirmed by the fact that it twice returned with questions about what use it could make of the evidence across counts. The trial judge's responses to these questions, with respect, were contradictory and failed to unambiguously bring home to the jury the proper approach to consideration of the evidence.

[63] The jury posed its first two questions about one and a half hours into its deliberations. In its first question, the jury requested copies of the prosecution and defence summaries read by the trial judge. The second question read: "Clarification on evidence presented throughout the trial – can it be used in any or all offences?"

[64] In his submissions to the trial judge regarding an appropriate response to this question, the trial Crown returned to his theme that the whole of the evidence could be used by the jury, in effect, as similar act evidence. He quoted a number of passages from this court's decision in R. v. T.B. (2009), 2009 ONCA 177, 95 O.R. (3d) 21, a case involving the admissibility and permissible use of similar act evidence, including the following passage at para. 21:

The Crown submitted at trial, and in this court, that the evidence ought to have been admitted because the compelling degree of similarity among the acts overcame the objective improbability of coincidence.

[65] Relying on this passage from T.B., the trial Crown then argued, "which is what I kept saying, unlucky, unlucky, unlucky. It's coincidental". The trial Crown maintained that the T.B. case was "dead on" with the facts of this case and took the position that the type of reasoning queried by the jury was permissible. Defence counsel strongly disagreed, arguing that without a similar act ruling, the use of evidence across counts was improper.

[66] The trial judge responded to the jury as follows:

You can't apply all the evidence across all the counts. However, if you have a piece of evidence, as an example, phone numbers, someone phoning the same number that appears in say two counts. In other words, the same evidence that applied in two counts, then you can use this evidence in one to draw inferences with respect to the other, but only for those two counts. They have to be narrowed to what you're talking about. Or if you had three counts then you can use it in three. But you can't take evidence from count one and it doesn't relate to count nine to just use it for any reason because an inference has to be based on fact.

[67] With respect, in the particular circumstances of this case, this instruction was unsatisfactory. It essentially told the jury, without specific guidance, that it could sift through all the evidence to determine if any of the evidence on some counts was relevant and admissible for use in supporting its findings on another count. This was precisely what the jury was not permitted to do.

[68] The suggestion of prejudice to the defence is not theoretical. It is clear from the record that this jury remained confused about how to carry out its central task – the evaluation of the evidence. After it had been deliberating for almost six hours, the jury submitted this fifth and final question:

Your Honour, the Crown used the metaphor of a 'grab bag' to suggest that evidence could be combined to infer. Can evidence from the 17th be used to create inferences about evidence which occurred on the 3rd? [Emphasis added.]

[69] The trial judge responded: "[T]he answer is no, you can't use an inference made from facts on one count as evidence in another count."

[70] Several concerns arise regarding the jury's final question and the trial judge's response.

[71] First, the question implicated those parts of the trial Crown's closing address in which he suggested that, to establish each count beyond a reasonable doubt, the jury "get[s] the whole basket of facts. You look at the whole basket of facts. Not just one. I don't have to prove each and every fact beyond a reasonable doubt…You put them all in the basket…So it's looking at the bundle. It's looking at the bag is how it gets you to reasonable doubt, not each and every little fact."

[72] Insofar as the metaphor employed by the trial Crown was directed to the Crown's burden of proof, it was unobjectionable. But the way in which it was used by the trial Crown, in the context of his entire closing address, had the effect of essentially telling the jury that it was entitled to look at all the evidence as a "basket", "bundle" or "bag" in reaching its verdicts. Thus, it too cut against the critical principle that the jury was obliged to consider the evidence on each count separately.

[73] In its last question, the jury was again clearly seeking assistance on how to properly consider the evidence in the face of multiple counts. Given the whole of the trial Crown's closing address, the jury's final question was a signal that it was struggling with the notion of "combining" evidence in order to reconcile the trial Crown's statements about the way to approach the evidence with the trial judge's instructions on the same issue in his initial charge. The jury's appreciation of the appropriate way to evaluate the evidence went to the core of its fact-finding function. Unresolved jury confusion on this issue, therefore, undermines the integrity of the jury's guilty verdicts and the fairness of the fact-finding process.

[74] It was therefore essential that the jury be left in no doubt concerning the permissible way in which it was to approach its consideration of the evidence. As the Supreme Court of Canada and this court have repeatedly stressed, questions from the jury are important. They provide a clear indication of the particular problem or problems confronting the jury and on which the jury requires assistance. Questions from the jury must therefore be clearly, correctly and comprehensively answered. The Supreme Court's comments in R. v. W.D.S., [1994] 3 S.C.R. 521, at p. 530, illustrate the crucial nature of this task:

There can be no doubt about the significance which must be attached to questions from the jury and the fundamental importance of giving correct and comprehensive responses to those questions. With the question the jury has identified the issues upon which it requires direction. It is this issue upon which the jury has focused. No matter how exemplary the original charge may have been, it is essential that the recharge on the issue presented by the question be correct and comprehensive. No less will suffice. The jury has said in effect, on this issue there is confusion, please help us. That help must be provided.

See also, for example, R. v. W.(D.), [1991] 1 S.C.R. 742, at pp. 759-60; R. v. Pétel, [1994] 1 S.C.R. 3, at p. 15; R. v. M.T., 2012 ONCA 511, 294 O.A.C. 111, at paras. 114-16; R. v. Ellis, 2013 ONCA 9, 113 O.R. (3d) 641, at paras. 40-42.

[75] Second, standing alone, the trial judge's response to the jury's last question was proper. However, it came very late in the jury's deliberations – after the jury had been deliberating for about six hours, after the trial judge had already provided ambiguous and contradictory instructions on cross-count reasoning, and after he had repeated, in at least one instance, the trial Crown's explicit and improper urging to the jury that it could use evidence about the May 17, 2011 drug transactions and the Powley Street raid to determine the appellant's guilt in respect of the April 8, 2011 drug transaction. The trial judge's response to the jury's final question also contradicted some of his earlier instructions, described for example, at paragraph 66 above, but the contradiction was left unexplained.

[76] After receiving this instruction, the jury returned at 10:08 p.m., less than 30 minutes later, and convicted the appellant of all counts except the two counts relating to the May 3, 2011 drug transaction – the very counts that were the subject of the jury's final question.

[77] Before this court, Crown counsel submits that the fact that the jury acquitted the appellant of the May 3, 2011 offences confirms that it considered the evidence supporting each count separately and did not engage in impermissible cross-count reasoning.

[78] We reject this submission in the circumstances of this case. The nature and timing of the jury's last question, the trial judge's response to it, and the jury's return within a half hour with its verdicts strongly suggest that, by the time of its final question, the jury had already made up its mind about the appellant's guilt or innocence on all the other counts and it simply applied the trial judge's last instruction to the only counts that remained (counts 5 and 6), leading to acquittals on the counts related to the May 3, 2011 drug transaction. Simply put, by then, the damage had been done. The trial judge's final instruction was 'too little, too late'.

(v) Conclusion

[79] For the reasons given, we conclude that this case fell within the category of cases requiring a clear and unambiguous limiting instruction on the prohibition against applying evidence across counts in a multi-count case. It was critical that the jury receive proper guidance on the approach to be taken to the evidence. The trial judge's initial charge did not adequately furnish this guidance. The jury's questions reveal that it struggled, until almost the close of its deliberations, to reconcile the contradictions between the trial Crown's urgings and the trial judge's instructions. The responses to the jury's questions did not assist in this reconciliation in any meaningful way. Indeed, they exacerbated the problem.

[80] We therefore cannot be satisfied that the jury's guilty verdicts are free of taint from legally impermissible reasoning or that the appellant received a fair trial. The guilty verdicts, therefore, cannot stand and a new trial in respect of those counts is required.

(2) Other Grounds of Appeal

[81] We make three other comments. First, the appellant also submits that the jury's verdicts on counts 3, 4 and 8 are unreasonable. We reject this submission. This court will only set aside a guilty verdict as unreasonable where there was no evidence at trial upon which a properly instructed jury, acting reasonably and judicially, could make a finding of guilt: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381. We are satisfied that there was some circumstantial evidence in this case upon which a properly instructed jury could have reasonably rendered guilty verdicts on counts 3, 4 and 8.

[82] Second, the Crown elected not to appeal the acquittals entered on counts 5 and 6. As a result, this court has no jurisdiction to interfere with the verdicts of acquittal: R. v. Sullivan, [1991] 1 S.C.R. 489; R. v. Guillemette, [1986] 1 S.C.R. 356; R. v. Sheridan, 2015 ONCA 770, 341 O.A.C. 130; R. v. Wong (2006), 211 O.A.C. 201.

[83] Finally, in view of our conclusion that a new trial is required for the reasons already given, it is unnecessary to address the appellant's other grounds of appeal. The Crown, quite properly, does not suggest that the curative proviso can be applied in this case. The errors in this case, described above, were far from minor.

Disposition

[84] Accordingly, the appeal is allowed, the convictions are set aside, and a new trial is directed on all counts except counts 5, 6 and 10.

J.C. MacPherson J.A. E.A. Cronk J.A. David Watt J.A.

Released: March 1, 2017