Court of Appeal for Ontario
Date: 2019-11-14 Docket: C64073
Panel: Hoy A.C.J.O., Doherty and Zarnett JJ.A.
Between
Her Majesty the Queen Respondent
and
David D'Souza Appellant
Counsel
Richard Litkowski and Jessica Zita, for the appellant
Maria Gaspar, for the respondent
Heard and Released
Heard and released orally: November 12, 2019
Appeal Information
On appeal from the conviction entered by a jury presided over by Justice M.J. Donohue, of the Superior Court of Justice, dated February 22, 2017, and the sentence imposed on July 20, 2017.
Reasons for Decision
[1] Following trial by jury, the appellant was convicted of possession of heroin for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act (the "Act") and possession of heroin, contrary to s. 4(1) of the Act.
[2] The Crown concedes, and we agree, that the trial judge erred by failing to provide any form of W.D. instruction in the jury charge that made clear that a route to acquittal was available, even if they disbelieved the evidence of the appellant, and that, in the circumstances, the curative proviso cannot be relied on.
[3] Accordingly, the appeal is allowed and a new trial is ordered on counts 2 and 3 of the indictment.
"Alexandra Hoy A.C.J.O."
"Doherty J.A."
"B. Zarnett J.A."