COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McFarlane, 2020 ONCA 548

DATE: 20200902

DOCKET: C63447, C63575 & C63583

Strathy C.J.O., Simmons and Miller JJ.A.

DOCKET: C63447

BETWEEN

Her Majesty the Queen

Respondent

and

Dwayne McFarlane

Appellant

DOCKET: C63575

AND BETWEEN

Her Majesty the Queen

Respondent

and

Robert Roy Gardener

Appellant

DOCKET: C63583

AND BETWEEN

Her Majesty the Queen

Respondent

and

Priscilla Bekoe

Appellant

Breana Vandebeek, for the appellant, Dwayne McFarlane

Tina Yuen, for the appellant, Robert Roy Gardener

Owen Goddard and Emily Quail, for the appellant, Priscilla Bekoe

Thomas Lemon and Ira Glasner, for the respondent

Heard: March 2, 2020

On appeal from the convictions entered on October 18, 2016 by Justice Jamie K. Trimble of the Superior Court of Justice, sitting with a jury.

B.W. Miller J.A.:

[1] On June 20, 2011, Ms. Tania Whilby landed at Toronto Pearson International Airport with 1.4 kilograms of cocaine hidden in her suitcase. A jury found Ms. Whilby guilty of importing cocaine, contrary to s. 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, on October 18, 2012. She was sentenced on January 21, 2013 to two years’ less a day imprisonment, to be served conditionally.

[2] Prosecuted separately, the three appellants were found guilty by a jury of importing cocaine and conspiracy to import cocaine into Canada. The Crown alleged that Mr. Robert Gardener coordinated Ms. Whilby’s travel to and from Jamaica, where she received the cocaine, and that Mr. Dwayne McFarlane and Ms. Priscilla Bekoe provided Ms. Whilby with her plane ticket and drove her to the airport in Toronto at the beginning of her trip.

[3] Ms. Whilby was the main witness in the prosecution of the appellants. In the days before her sentencing, she identified Ms. Bekoe and Mr. McFarlane from photo line-ups as the people who drove her to the airport, following failed identifications several months prior, before her trial had started. The Crown’s case against Mr. Gardener was based largely on text messages between him and Ms. Whilby over BlackBerry Messenger (“BBM”), in which he agreed to refer her to another person who would give her a plane ticket to Jamaica.

[4] On appeal, the appellants each argue that their verdicts are unreasonable, and they challenge various aspects of the trial judge’s charge to the jury, including that he gave an insufficient caution with respect to the evidence of Ms. Whilby, pursuant to Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811, and that his instructions with respect to Ms. Whilby’s eyewitness identifications failed to focus the jury’s attention on the frailties of that evidence.

[5] For the reasons that follow, I would allow the appeals. I would order that all appellants receive new trials on the basis of errors in the jury charge.

A. The Alleged Drug Importation Scheme

[6] At trial, the Crown’s theory was that Mr. Gardener assisted Ms. Whilby in obtaining plane tickets to and from Jamaica by referring her to an intermediary. That intermediary, who contacted Ms. Whilby through a BBM profile called “Diggzz T dot”, was alleged to be Mr. McFarlane. On the day of Ms. Whilby’s flight to Jamaica, a man and a woman, alleged to be Mr. McFarlane and Ms. Bekoe, drove her to the airport in a black Cadillac. Ms. Bekoe also allegedly called Ms. Whilby while she was in Jamaica and told her to bring back alcohol and various food items for her. On Ms. Whilby’s evidence, she was given a suitcase in Jamaica to carry these items. On her return to Canada, the suitcase was found to contain the cocaine.

(1) Ms. Whilby Receives a Plane Ticket to Jamaica

[7] Ms. Whilby testified that she was “friends with benefits” with Mr. Gardener, whom she knew by the alias Bliitsz. The two had met in person three times and communicated extensively on social media and BBM.

[8] Ms. Whilby testified that she asked Mr. Gardener if he had a contact who could get her a plane ticket to Jamaica, where her boyfriend resided. She testified that Mr. Gardener said he could.

[9] Sections of Ms. Whilby’s BBM conversations with Bliitsz were introduced at trial. There was no serious dispute that Mr. Gardener was Bliitsz. Starting on Thursday, May 26, 2011, Ms. Whilby and Bliitsz spoke daily to discuss the status of the plane ticket. They discussed whether her flight would go to Kingston or Montego Bay, and at no point did Ms. Whilby or Mr. Gardener refer to the cost of the plane ticket or who would pay for it.

[10] On Tuesday, May 31, 2011, Ms. Whilby again asked Bliitsz for the status of the ticket. He responded that the ticket would come over the course of the week. The week came and went. Their final communication was on Monday, June 6, 2011, when Ms. Whilby pointed out that the week had ended, and Bliitsz responded with an emoji. The record contains no further communications between Ms. Whilby and Bliitsz related to the plane ticket.

[11] One week later, on Monday, June 13, 2011, Ms. Whilby confirmed her travel details with a BBM contact named “Diggzz T dot”, as part of a conversation that was also introduced into evidence. Diggzz sent Ms. Whilby a picture of her travel itinerary, indicating roundtrip flights to Montego Bay. Her flight would depart the next day. He asked her if she had a criminal record, and when she said no, he responded, “K alright. Everything is good then, Ill text to later on tonight”. He told Ms. Whilby he would pick her up the next morning at 6:15 a.m. in a black Cadillac.

[12] The Crown alleged that Diggzz was Mr. McFarlane. Ms. Whilby testified that she came into contact with Diggzz through Mr. Gardener, but did not recall who initiated contact with whom on BBM. Ms. Whilby testified that Diggzz was Mr. McFarlane, but on cross-examination, she agreed that Diggzz could have been a woman.

(2) A Man and a Woman Drive Ms. Whilby to the Airport

[13] On the morning of June 14, 2011, Ms. Whilby provided directions for Diggzz to pick her up. He told Ms. Whilby that her luggage “can only way up to 100lbs all together”, and she responded that she only had two handbags.

[14] Ms. Whilby testified that a man and a woman came to pick her up in a black Cadillac. She had never met the man who drove the car or the woman who was sitting in the passenger seat, and she did not recall hearing their names. Ms. Whilby testified that from her vantage point in the back seat, behind the passenger seat, she could only see the back and right side of the driver’s face. She testified that she never looked into his eyes, and he never exited the vehicle. The woman accompanied Ms. Whilby to check in at the airport while the man remained in the car.

[15] The Crown alleged that the driver was Mr. McFarlane and that the woman was Ms. Bekoe, based largely on eyewitness identification evidence from Ms. Whilby.

[16] Initially, Ms. Whilby testified that she did not recall having conversations with the people in the car. Moments later, she testified that the woman told her a man named Ed would pick her up in Jamaica. She also testified that the driver provided her with her ticket, but then said it was the woman, after reviewing her preliminary inquiry testimony.

(3) Ms. Whilby’s Time in Jamaica and Return to Toronto

[17] Ms. Whilby testified that while she was in Jamaica, she spoke with a woman over the phone and this woman requested that she bring “a few beverages and snacks” back to Toronto. The woman also told Ms. Whilby that she was flying to Jamaica “on Tuesday”. Ms. Whilby understood this woman to be the same woman who accompanied her to the airport in Toronto, based on “the nature of the conversation” and because she “recognized her voice”. In cross-examination, Ms. Whilby agreed that she believed it was the woman from the ride to the airport not because she recognized her voice, but because of the content of the conversation, as the woman asked about the flight and about Ed.

[18] Ms. Whilby testified that Ed, who drove her around Jamaica, gave her the suitcase that was eventually apprehended by customs officials in Toronto. Ms. Whilby packed the woman’s beverages and snacks into the suitcase.

[19] When Ms. Whilby returned to Toronto, Diggzz sent her a message to coordinate pick-up at the airport. Ms. Whilby was apprehended shortly after her landing, when police found the cocaine hidden in a false bottom of her suitcase. After Ms. Whilby’s arrest, the RCMP seized her phone and used it to communicate with Diggzz, while posing as Ms. Whilby. The police never found Diggzz.

B. The Police Investigation of the Appellants

[20] On April 11, 2012, the police obtained a production order in relation to the BBM profile associated with Diggzz. The records revealed that a credit card registered in Ms. Bekoe’s name was used for a purchase through the BlackBerry account on July 23, 2011, one month after Ms. Whilby’s trip to Jamaica.

[21] On April 23, 2012, the police showed Ms. Whilby a photo line-up containing a picture of Mr. McFarlane. She did not identify him. On July 10, 2012, while Ms. Whilby was awaiting trial, the police showed Ms. Whilby three identical photographic line-ups containing a picture of Ms. Bekoe. Each time, Ms. Whilby failed to identify Ms. Bekoe.

[22] The circumstances of these line-ups are not clear on the evidence. Ms. Whilby testified that police officers showed her photos sequentially in the back of a police car in Montreal. Ms. Whilby could not remember when the line-ups happened or which police officers conducted them, and her evidence is unclear on how many line-ups occurred. The Crown adduced no additional evidence on these points.

[23] On January 16, 2013, days before Ms. Whilby was scheduled to be sentenced on January 21, 2013, the police conducted three more line-ups with Ms. Whilby in which she identified the three appellants. Ms. Whilby confirmed that on the back of Ms. Bekoe’s photo, she wrote, “Without the wig her face shape her eyes, her look I remember it”. On the back of Mr. McFarlane’s photo, she wrote, “eyes – hair was little longer then – shape of face conplexion of skin – Asian look”. Finally, on the back of Mr. Gardener’s photo, she wrote “Facial – hair – I reconazize him quick eyes –”.

[24] There is no police evidence in the record as to how the January 2013 line-up was conducted. What is known is that on January 20, 2013, the day before Ms. Whilby’s sentencing, the lead investigator interviewed Ms. Whilby. He told her that the Crown and the judge would know, during the sentencing proceedings, that she helped the police.

C. Issues on Appeal

[25] On appeal, the appellants each argue that their guilty verdicts were unreasonable because the evidence was too weak to sustain their convictions. Mr. Gardener also alleges that the trial judge erred in denying his application for a directed verdict of acquittal on both counts.

[26] Relying on one another’s submissions, the appellants also challenge various aspects of the jury charge. They argue that the trial judge gave deficient instructions on the probative value of Ms. Whilby’s evidence, as he failed to explain the basis for the Vetrovec caution and provided improper examples of independent confirmatory evidence. Moreover, the appellants also argue that the trial judge failed to convey the specific frailties of Ms. Whilby’s identification evidence, reverting instead to boilerplate instructions. Finally, the appellants argue that the trial judge misapplied the Supreme Court’s directions in R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938, when explaining which evidence the jury could consider at each stage of the conspiracy analysis.

[27] I begin with the appellants’ unreasonable verdict appeals, as a court sitting in review of a criminal verdict must assume the correctness of the underlying jury charge: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 38.

D. The Unreasonable Verdict Appeals

[28] When assessing the reasonableness of a criminal verdict under s. 686(1)(a)(i) of the Criminal Code, the appellate court must consider the totality of the evidence to determine whether a properly instructed jury, acting judicially, could have returned the verdict: Biniaris, at para. 40. In this context, “acting judicially” means “not only acting dispassionately” but also “arriving at a conclusion that does not conflict with the bulk of judicial experience”: Biniaris, at para. 40. While the court must give due deference to the jury’s advantages in the fact-finding process, the court must still assess the evidence, not merely identify its existence: R. v. Phillips, 2018 ONCA 651, 364 C.C.C. (3d) 220, at para. 67; R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at paras. 27-28. In a case such as this one, which relies heavily and perhaps entirely on circumstantial evidence, the question is whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55.

[29] Each appellant was convicted of conspiracy, contrary to s. 465(1)(c) of the Criminal Code, and of aiding Ms. Whilby in importing cocaine into Canada, contrary to s. 6(1) of the CDSA. On the conspiracy count, the Crown had to prove beyond a reasonable doubt each alleged conspirator’s intention to agree, the completion of an agreement, and a common unlawful design: R. v. Root, 2008 ONCA 869, 241 C.C.C. (3d) 125, at para. 66, leave to appeal refused, [2009] S.C.C.A. No. 282; Papalia v. R., 1979 CanLII 38 (SCC), [1979] 2 S.C.R. 256, at pp. 276-77; The Queen v. O’Brien, 1954 CanLII 42 (SCC), [1954] S.C.R. 666. The appellants were convicted of the importing count as aiders, pursuant to s. 21(1)(b) of the Criminal Code. The Crown had to prove that the appellants each “provided actual assistance to the principal by doing something that assisted the principal to commit the offence”, that they intended to help the principal commit the offence, and that they knew the principal intended to commit the offence: R. v. Huard, 2013 ONCA 650, 302 C.C.C. (3d) 469, at paras. 62-63, leave to appeal refused, [2014] 1 S.C.R. ix (note); R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 14-17.

[30] For the reasons that follow, I have concluded that the guilty verdicts of Mr. Gardener, Mr. McFarlane, and Ms. Bekoe are not unreasonable.

(1) The Gardener Appeal

[31] Mr. Gardener argues that his verdicts are unreasonable as the totality of the evidence was insufficient to establish that he was a member of the conspiracy, or that he did anything to assist Ms. Whilby in importing the drugs into Canada with the requisite intent and knowledge of her criminal intent.

[32] Mr. Gardener did not testify. The Crown’s case relied on circumstantial evidence from two sources: Ms. Whilby’s trial testimony and BBM messages between Ms. Whilby and Mr. Gardener. A further BBM message from Diggzz was also potentially relevant.

[33] Ms. Whilby testified that she knew Mr. Gardener before they communicated about the plane ticket via BBM. In the BBM conversations, Mr. Gardener and Ms. Whilby do not discuss what was to transpire in Jamaica, though they did address whether the ticket would take her to Kingston or Montego Bay. Ms. Whilby testified that she requested the ticket in order to visit her boyfriend. She responded “no” when asked whether she was “curious at all that – about the fact that you didn’t have to pay for [the ticket]”. She testified that she had no intention to import cocaine when she left for Jamaica, and that she never discussed importing cocaine with Mr. Gardener.

[34] Ms. Whilby was evidently frustrated when the ticket did not materialize in the time frame promised by Mr. Gardener. Over 12 days, the BBM conversations between the two centred on Ms. Whilby asking Mr. Gardener whether his contact had fallen through, and Mr. Gardener’s reassurances that despite the apparent delay, it had not. By the time of their final BBM exchange, on June 6, 2011, Ms. Whilby was still pressing Mr. Gardener for confirmation that his contact would come through.

[35] One week later, on June 13, Ms. Whilby sent a BBM message to Diggzz – without any apparent introduction – asking him to provide her with a picture of her plane ticket to Jamaica. He responded with “Ye hol up; Cuz I’m driving” and then later forwarded an image of the travel itinerary issued in her name for a flight leaving the next day for Montego Bay.

[36] There is no BBM evidence of how Ms. Whilby and Diggzz were introduced, or who added whom on BBM. Neither are there any BBM messages in evidence between Diggzz and Mr. Gardener. Ms. Whilby testified that it was Mr. Gardener who put her in contact with Diggzz.

[37] During the BBM conversations, Mr. Gardener referred to his contact who would provide the ticket as a “he”. Ms. Whilby testified that one of the two people who drove her to the airport on the day of her flight was a man.

[38] When police officers seized Ms. Whilby’s cell phone following her arrest, they communicated with Diggzz via BBM. In those communications, Diggzz asked: “U tlk tu ur friend?” and “U spoke to b?”. On appeal, the Crown suggests that “b” may have been a reference to Mr. Gardener’s alias Bliitsz.

[39] To establish Mr. Gardener’s participation in the conspiracy and the importing offences, the Crown relied on Ms. Whilby’s testimony that it was Mr. Gardener who put her in touch with Diggzz. It also relied on inferences drawn from Mr. Gardener’s BBM messages with Ms. Whilby, and from Ms. Whilby’s BBM messages with Diggzz. A week after Ms. Whilby had been messaging with Mr. Gardener to get her a free ticket to Jamaica through an unnamed source, she messaged Diggzz to provide her with an image of her itinerary, and he did so immediately. There was no evidence that Ms. Whilby had been pursuing a ticket through anyone other than Mr. Gardener.

[40] It is obvious there must have been some prologue to these messages between Ms. Whilby and Diggzz. How did Ms. Whilby become known to Diggzz? Who asked Diggzz to procure a plane ticket for her and why? How did she know that a ticket for a flight leaving the next day had been issued in her name and that she should ask Diggzz for it? Who paid for the ticket? Why did Ms. Whilby – who had no means of paying for the ticket – not expect to pay? Why did she ask Mr. Gardener if he could arrange for a $20 Rogers phone card for her?

[41] A reasonable jury, properly instructed, was entitled to consider the entire context in which the communications between Ms. Whilby and Mr. Gardener and Diggzz occurred, and draw the inference that Diggzz was the contact that Mr. Gardener had promised, that Mr. Gardener introduced them, that Ms. Whilby had to have known that she was given a free ticket for a criminal purpose, and that Mr. Gardener, having arranged for the ticket, must also have known.

[42] In short, there was sufficient evidence on which a reasonable jury, properly instructed could find Mr. Gardener guilty of the offences. This conclusion also disposes of the argument that the trial judge erred in not allowing the motion for a directed verdict.

(2) The McFarlane Appeal

[43] Mr. McFarlane argues that his guilty verdicts were unreasonable because the only evidence connecting him to the drug importation was Ms. Whilby’s testimony alleging that he was Diggzz and that he drove her to the airport on the day she flew to Jamaica. Given concerns over the reliability and credibility of Ms. Whilby’s testimony and in particular her eyewitness identification evidence, Mr. McFarlane contends that the probative value of that evidence was too weak to sustain his convictions.

[44] Prior to her trial, Ms. Whilby failed to identify Mr. McFarlane in a photo line-up. Days before her sentencing, Ms. Whilby identified Mr. McFarlane from a photo line-up as the driver of the black Cadillac that took her to the airport. On the back of his photo, she wrote her basis for having identified him: “eyes – hair was little longer then – shape of face complexion of skin – Asian look”. The circumstances in which police conducted both line-ups are unknown, though Ms. Whilby’s evidence was that the first line-up took place in the back of a police car, where she reviewed each photo sequentially. There is no evidence of Ms. Whilby providing any prior description of Mr. McFarlane to the police. At the appellants’ trial, Ms. Whilby repeatedly identified Mr. McFarlane in the courtroom as both Diggzz and the driver.

[45] In cross-examination, Ms. Whilby testified that she and the driver of the black Cadillac never spoke. Moreover, she testified that she could only see the back and right side of the driver’s head, as she was sitting behind the passenger seat. She never saw his face from head-on or looked into his eyes, and she could not estimate his height as he had never left the vehicle.

[46] With respect to the Diggzz BBM account, Ms. Whilby testified that Mr. McFarlane was Diggzz. In cross-examination, however, she conceded that the person communicating with her from the Diggzz account could have been a woman.

[47] Without Ms. Whilby’s eyewitness identification, there would have been no case against Mr. McFarlane. There were, as counsel for Mr. McFarlane argued, difficulties with that evidence. Eyewitness identification evidence, in general, can pose a risk of wrongful conviction: R. v. Tat (1997), 1997 CanLII 2234 (ON CA), 117 C.C.C. (3d) 481, at para. 99; R. v. Miaponoose (1996), 1996 CanLII 1268 (ON CA), 110 C.C.C. (3d) 445, at pp. 450-51. Eyewitness identification evidence is particularly suspect where the person identified is a stranger to the witness, where the circumstances of the identification are not conducive to an accurate identification, where pre-trial identification processes are flawed, and where there is no other evidence tending to confirm the identification evidence: Tat, at para. 100.

[48] Even setting aside the questions raised by the suspect timing of the successful photo line-up, immediately before sentencing, and having followed on from previous unsuccessful line-ups, there are difficulties raised by Ms. Whilby’s testimony. On Ms. Whilby’s testimony, the driver of the black Cadillac was a stranger and he did not introduce himself to her or speak to her. She never saw the front of his face or looked into his eyes – and yet she referred to these characteristics in explaining why she picked Mr. McFarlane out of the line-up. There is no evidence concerning the conduct of the pre-trial identification processes, other than that they occurred roughly 19 months after the drive to the airport, days before Ms. Whilby’s sentencing and following an unsuccessful line-up roughly nine months prior. Ms. Whilby gave no explanation for the sudden change in her ability to identify the driver. Other than Ms. Whilby’s testimony that Mr. McFarlane drove the black Cadillac and communicated with her under the Diggzz alias, there is no evidence linking Mr. McFarlane to the offences.

[49] Of course, a jury is entitled to accept all, some, or none of a witness’s testimony. A jury was entitled to accept Ms. Whilby’s identification of Mr. McFarlane, and reject her testimony about the limits of her observations of, and interactions with the driver. A jury could reasonably have concluded that Ms. Whilby was significantly more familiar with Diggzz than she let on, and if that was the case, it would bolster her ability to identify him. The BBM messages between Ms. Whilby and Diggzz, particularly an exchange after Ms. Whilby arrived at Pearson airport and was waiting to board her flight, suggested a greater degree of familiarity than would be expected if Diggzz was the driver, as Ms. Whilby testified, and that they had no conversation on the way to the airport, as she also testified:

Diggzz: U on da plane or too early.

Whilby: I’m chillin .. Still .. My cuzzy is actually flyin too.

Diggzz: Da same plane?

Whilby: Yup.

Diggzz: Danm what’s da odds of dat.. dats fuqin proper.

[50] It would not have been unreasonable for the jury to have concluded, on this evidence, that Ms. Whilby had greater dealings with Diggzz/the driver than she admitted, and this familiarity supported her identification of Mr. McFarlane. On the totality of the evidence, I cannot hold that the jury’s findings of guilt were unreasonable.

(3) The Bekoe Appeal

[51] Ms. Bekoe’s notice of appeal included a challenge to the reasonableness of her guilty verdicts, but her factum did not pursue those arguments. Counsel only devoted brief submissions to the issue during the hearing. In essence, Ms. Bekoe submitted that if this court found Mr. McFarlane’s guilty verdicts to be unreasonable, it ought also to find Ms. Bekoe’s guilty verdicts unreasonable, as those verdicts are based on Ms. Whilby’s testimony and eyewitness identification.

[52] While I agree that the Crown’s case against Ms. Bekoe was far from overwhelming, I am persuaded that the evidence established a sufficient connection between Ms. Bekoe and the drug importation scheme, such that a trier of fact acting judiciously could have convicted her. In particular, I note that a credit card in Ms. Bekoe’s name was associated with the Diggzz BlackBerry account. Although the relevant credit card transaction occurred a month after the drive to the airport and this credit card evidence is by no means a “smoking gun,” as counsel for Ms. Bekoe argued on appeal, it provides some support for Ms. Whilby’s eyewitness identification of Ms. Bekoe and it links Ms. Bekoe to the Diggzz BBM account.

[53] In the circumstances, Ms. Bekoe’s verdicts of guilty are not unreasonable.

E. Errors in the Jury Charge

[54] Having determined that the guilty verdicts at trial were reasonable, I address the appellants’ remaining submissions challenging the adequacy of the trial judge’s instructions to the jury. Of the many grounds of appeal that the appellants advanced collectively, two are particularly relevant.

[55] First, the appellants argue that the Vetrovec caution with respect to Ms. Whilby was inadequate and distracted the jury from the main issues affecting her credibility. Second, they argue that those sections of the jury charge pertaining to Ms. Whilby’s eyewitness identification evidence were also inadequate, in failing to focus the jury’s attention on the specific frailties of that evidence.

[56] For the reasons that follow, I accept these submissions. It is unnecessary to address the appellants’ submissions on the trial judge’s instructions on evidentiary principles flowing from Carter.

(1) The Vetrovec Caution

[57] As already noted above, Ms. Whilby’s testimony suffered from numerous frailties. Apart from her conviction for personally importing cocaine into Canada, she was unable to identify the appellants from photo line-ups over the course of the police investigation until she positively identified all three appellants in the days preceding her sentencing hearing. This identification occurred roughly 19 months after Mr. McFarlane and Ms. Bekoe allegedly drove her to the airport, while the prior failed line-ups occurred within 13 months of the drive.

[58] The appellants challenge two aspects of the Vetrovec caution: first, that the caution failed to explain to the jury the reason why Ms. Whilby’s testimony ought to attract special scrutiny in their deliberations, and second, that the trial judge gave incorrect instructions on material confirmatory evidence. I will address each argument in turn.

(a) The Basis for the Caution

[59] The trial judge explained that Ms. Whilby’s evidence was subject to special scrutiny because she was convicted of bringing a suitcase containing cocaine into Canada, but maintained her innocence during the appellants’ trial. He also provided the following instruction in relation to her cooperation with the authorities:

Between her conviction and her sentencing, including on the day before her sentencing, Ms. Whilby met with RCMP Constable Dionne. In cross-examination, Ms. Whilby denied the suggestion that she made a deal with the police or the Crown that might lighten her sentence in exchange for her cooperation here. She admitted that she was sentenced to two years, less a day, served by house arrest. There is no evidence brought in this court about Ms. Whilby’s sentence other than her evidence. When cross-examined on this issue, Ms. Whilby did not admit that she received a lighter sentence in exchange for her cooperation.

I will caution you now about hearsay briefly and return to it later. Ms. Whilby was cross-examined on a typewritten version of an audio or video recording, it is unclear which, of her conversation with RCMP Constable Dionne the day before her sentencing. The audio or visual recording was not played to you. The portions of that interview that were put to her read aloud are not evidence of the truth of their contents. It was not put into evidence, and Officer Dionne did not testify as to the conversations that were put to Ms. Whilby in cross-examination. Remember, that evidence is that which comes from the witnesses, the exhibits, or admissions. The transcript of the conversation that was put to Ms. Whilby in cross-examination was put there for the purposes of testing her credibility. Ms. Whilby, in the witness box, did not agree with the statements or adopt them as correct. The only purpose to which you can put the cross-examinations is assessing Ms. Whilby’s credibility. In other words, use it to determine the extent to which you believe or rely on or accept her evidence. You may not accept what was reportedly said in that interview as being true.

[60] The appellants argue that the trial judge’s instruction on hearsay was misplaced, as it distracted the jury from the fact that Ms. Whilby cooperated with the police and was led to believe that doing so would result in a lesser sentence. Instead, the instruction improperly discussed hearsay, focusing the jury’s attention on whether Ms. Whilby in fact received a lesser sentence, which, the appellants submit, was irrelevant to her state of mind when she identified the appellants and the reliability of those identifications.

[61] I accept this submission.

[62] As the Supreme Court explained in R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, a proper Vetrovec caution will generally explain to the jury why the evidence at issue is subject to special scrutiny: at para. 37; R. v. Smith, 2009 SCC 5, [2009] 1 S.C.R. 146, at para. 14; R. v. Maestrello, 2019 ONCA 952, 383 C.C.C. (3d) 236, at para. 52, leave to appeal refused, [2020] S.C.C.A. No. 34. In addition to her conviction for the underlying importing offence, Ms. Whilby testified about her cooperation with the authorities on the eve of her sentencing. She denied that she did so to receive any benefit. However, in cross-examination, defence counsel put transcripts from Ms. Whilby’s police interview to her. She agreed that the lead investigator described the effect of her cooperation with the authorities in the following terms:

CONSTABLE DIONNE: We, um, we, we had, we were able to add that. Um, but I mean, like tomorrow, tomorrow is a big day for you and hopefully what we did today is going to help you. Like I said, I cannot promise, but for sure the Crown and the judge does. They’re going to be aware that you helped us. Okay? [Emphasis added.]

[63] She conceded in cross-examination that the allusion to her “big day” referred to her impending sentencing hearing.

[64] The trial judge fell into legal error in characterizing the excerpt above as hearsay. The excerpt was not proffered for the truth of its contents. It was immaterial whether the trial judge and trial Crown actually learned of Ms. Whilby’s cooperation with the authorities, or whether her cooperation actually resulted in a lesser sentence. The purpose of this section of Ms. Whilby’s cross-examination was to demonstrate that on the eve of her sentencing, Ms. Whilby had every reason to believe that she would benefit from cooperating with the authorities – even if doing so meant lying or identifying innocent suspects.

[65] Although it was open to the trial judge to instruct the jury that Constable Dionne’s statement could not be used for the truth of its content, the hearsay instruction effectively mischaracterized the evidence by not recognizing that Ms. Whilby accepted that Constable Dionne had told her that the Crown and the Court would be aware that Ms. Whilby had helped the prosecution, and that this would hopefully help her in her sentencing . The hearsay aspect of the statement was irrelevant to the necessary Vetrovec caution, and the focus on hearsay, and the related failure to explain the significance of the statement being made detracted considerably from the trial judge’s obligation to explain to the jury which circumstances brought Ms. Whilby’s credibility into serious question. The instruction could only have generated confusion about whether Ms. Whilby’s motive to cooperate with the authorities was or was not a factor in weighing her credibility. The trial judge’s instruction distracted the jury from considering one of the main reasons why Ms. Whilby’s evidence was subject to special scrutiny.

[66] In this respect, the trial judge fell into legal error. Because of the centrality of Ms. Whilby’s evidence to the Crown’s case against all three appellants, this error in the Vetrovec caution necessitates that the convictions of all three appellants be quashed, and new trials ordered on all counts. The potential impact of the error on the identification of Ms. Bekoe and Mr. McFarlane is readily apparent. Even though identity was was not seriously at issue with respect to Mr. Gardener, the Vetrovec error impacted him as well. Ms. Whilby’s testimony that Mr. Gardener introduced her to Diggzz was central to the case against Mr. Gardener. As noted above, deciding whether to believe Ms. Whilby was no less important with respect to the the question of whether Mr. Gardener introduced Ms. Whilby to Diggzz, than it was with respect to her identification of Mr. McFarlane and Ms. Bekoe.

[67] Although, in my view, this is sufficient to dispose of the appeals, I will nevertheless address some of the other alleged errors as they may bear on a retrial.

(b) The Confirmatory Evidence

[68] The trial judge explained to the jury the importance of searching in the record for evidence that was independent from Ms. Whilby’s testimony and confirmatory of that testimony. He stated that her own BBM messages to other people did not qualify as independent. He then catalogued the evidence that was potentially independent and confirmatory, such as photos of her suitcase and the credit card records. He noted that she and Diggzz must have exchanged BBM PIN numbers in order to communicate, “regardless of who gave whose to whom”. He also referred to the following BBM messages:

• Her BBM messages with Mr. Gardener, including her request for a ticket and the lack of any discussion about payment;
• Her BBM messages with Diggzz, which confirm “her discussions with Blitz about wanting to obtain the ticket to Jamaica” and “that she neither asked for payment, nor was asked for it”;
• Diggzz sent her a picture of her plane ticket and asked whether she had a criminal record;
• Diggzz confirmed that he would pick her up in a black Cadillac and they exchanged messages on the morning of their drive to the airport;
• Diggzz communicated further with Ms. Whilby when she was in the departure lounge and later, on the day of her return flight.

[69] The appellants argue that the trial judge erred in referring to the BBM conversations, as they were not independent of Ms. Whilby’s testimony, and they were also not material. I am not persuaded that these aspects of the Vetrovec caution were improper.

[70] First, with respect to the independence of the evidence from Ms. Whilby, the appellants are correct that Ms. Whilby’s own messages as part of these conversations were not independent of her and thus could not have constituted confirmatory evidence: Khela, at para. 39. However, the trial judge gave specific instructions to this effect:

The statements made by Ms. Whilby in [the BBM conversations] cannot be confirmatory of her evidence in the witness box. They are her statements, notwithstanding that they are record[ed] on her Blackberry. They are not independent.

The statements by others may be taken as confirmatory if they support her evidence in the witness box if you find that they are untainted and independent. That is for you to decide.

[71] When read in context, the trial judge’s focused instructions in respect of the BBM messages equipped the jury with the tools necessary to determine whether those messages were independent. The appellants argue that even the messages of others were tainted by Ms. Whilby, as only she could authenticate their contents. From my review of the trial transcripts, there was no suggestion that Ms. Whilby had fabricated any of the contents of the messages on her BBM. The messages she received from Mr. Gardener and Diggzz satisfied the criterion of independence.

[72] Second, with respect to the materiality criterion, the appellants argue that the evidence identified by the trial judge was not material as it did not go to identification, which was the main issue in the prosecution of Mr. McFarlane and Ms. Bekoe.

[73] To be material, confirmatory evidence “must be capable of restoring the trier’s faith in relevant aspects of the witness’ account” (emphasis in original): Khela, at para. 43; R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328, at para. 15. In Kehler, at para. 15, the Supreme Court explained that confirmatory evidence need not address only those parts of the witness’s testimony that are disputed in order to be material:

The appellant wrongly equates “relevant” with “disputed”. Mr. Greenwood’s detailed account of the robbery, though undisputed, was no less “relevant” to the offences charged than his implication of the appellant in their commission. And while confirmatory evidence should be capable of restoring the trier’s faith in relevant aspects of the witness’s account, it hardly follows that the confirmatory evidence must, as a matter of law, implicate the accused where the only disputed issue at trial is whether the accused was a participant in the crimes alleged.

[74] The trial judge conveyed to the jury that the confirmatory evidence must “tend to show that [Tania] Whilby is telling the truth that any, some, or all of the three accused committed the offences with which they are charged”. The evidence must also “give you comfort that [Tania] Whilby can be trusted when she says that any, some, or all of these three people committed the offences with which they are charged”. This court has determined that similar formulations adequately conveyed to the jury the scope of the materiality criterion for confirmatory evidence: see R. v. Saleh, 2013 ONCA 742, 303 C.C.C. (3d) 431, at para. 99; R. v. Saleh, 2019 ONCA 819, 380 C.C.C. (3d) 445, at para. 172.

[75] Accordingly, I see no error in the trial judge’s instructions on material confirmatory evidence.

(2) The Eyewitness Identification Evidence

[76] The crux of the Crown’s case against Ms. Bekoe and Mr. McFarlane was Ms. Whilby’s eyewitness identification of these two appellants from her drive to the airport.

[77] Ms. Bekoe and Mr. McFarlane argue that the trial judge’s caution on Ms. Whilby’s eyewitness identification evidence was deficient in that it relied on boilerplate from specimen jury instructions, raising a number of irrelevant factors and failing to give due prominence to others that directly affected the reliability of Ms. Whilby’s evidence. In particular, Ms. Bekoe and Mr. McFarlane argue that the trial judge should have drawn the jury’s attention to the fact that Ms. Whilby failed to identify Ms. Bekoe and Mr. McFarlane from a line-up three times in one day 13 months after the drive to the airport, to the lack of evidence on whether Ms. Whilby had provided any descriptions of the appellants to the police before her ultimate identification days before her sentencing, and to the generality of her explanations for having identified the appellants.

[78] I agree. Much like the trial judge’s Vetrovec caution, his discussion of eyewitness identification effectively deprived the jury of a proper understanding of the dangers of Ms. Whilby’s evidence.

[79] The jurisprudence has long recognized the potential risks of eyewitness identification evidence, requiring special scrutiny from triers of fact: R. v. Goran, 2008 ONCA 195, 234 O.A.C. 283, at para. 19; R. v. Hanemaayer, 2008 ONCA 580, 234 C.C.C. (3d) 3, at para. 29. In most cases, the danger is an honest but inaccurate identification by a credible and confident witness: R. v. Jack, 2013 ONCA 80, 294 C.C.C. (3d) 163, at para. 14; R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at para. 52. Trial judges enjoy significant discretion in crafting an appropriate caution, but where the evidence contains significant frailties, the trial judge must identify these specific frailties rather than rely upon boilerplate instructions: R. v. Baltovich (2004), 2004 CanLII 45031 (ON CA), 73 O.R. (3d) 481 (C.A.), at para. 78.

[80] This was not the typical eyewitness identification case. The danger was not only – or not primarily – that Ms. Whilby would honestly identify the wrong suspects, but that Ms. Whilby could not be trusted to identify anybody. This was very much a case that required a bespoke instruction on the specific frailties of Ms. Whilby’s eyewitness evidence. Instead, the jury received a lengthy caution that largely recited specimen jury instructions which raised factors that had no basis in the evidence, such as whether Ms. Whilby had compromised vision, or whether anything impaired her ability to observe the appellants, or whether she had seen other photos of the appellants in other contexts.

[81] The jurisprudence cautions trial judges to remain alive to badges of unreliability in a witness’s identification of an accused: Jack, at para. 29. In this case, one important badge was the lack of any evidence concerning Ms. Whilby’s prior descriptions of the appellants, followed by her subsequent generic explanations for why she chose their photos from the line-ups. The trial judge failed to draw sufficient attention to these frailties in the evidence.

[82] On the subject of the lack of a prior description, the trial judge told the jury the following: “In this case, it is unclear whether Ms. Whilby gave a description to the police of the three accused. You may consider whether she must have given descriptions in order that the RCMP could assemble the photo arrays.”

[83] I agree that this framing of the issue was improper. It tipped the scales in favour of the reliability of Ms. Whilby’s ultimate identification, as it permitted the jury to infer an indicator of reliability from an absence of any evidence. Further, as this instruction was given immediately after standard instructions concerning the evaluation of the impact of a prior description, it effectively undervalued the important role a prior description plays in permitting a trier of fact to assess the reliability of a subsequent identification through comparison of the original description to the person identified.

[84] The impact of this error was heightened with respect to Ms. Bekoe, as the RCMP may well have identified Ms. Bekoe as a suspect on the basis of the credit card associated with the Diggzz BlackBerry, not from any identification by Ms. Whilby. Indeed, the first photo line-up featuring a photo of Ms. Bekoe took place roughly two months after the BlackBerry production order yielded the credit card evidence.

[85] The trial judge’s treatment of the lack of any prior description of Ms. Bekoe and Mr. McFarlane as a non-issue persisted when the jury asked a question about how the police got Mr. McFarlane’s name and picture. The trial judge told the jury that “[t]here is no evidence before you as to how the police got any of the accused’s names and pictures” and he reminded the jury that the record in any criminal prosecution rarely answers every question one might have about the facts. With respect, this instruction was also deficient, as it seemed to validate what was in reality a troubling aspect of the circumstances surrounding Ms. Whilby’s identification of the appellants.

[86] Importantly, even when Ms. Whilby ultimately identified Ms. Bekoe and Mr. McFarlane, her stated bases for doing so were generic. At trial, she agreed that her identification of Ms. Bekoe was based on a “general impression”.

[87] The trial judge instructed the jury to consider the traits Ms. Whilby wrote on the back of the photo of the appellants. A proper instruction would have pointed out that the descriptions were generic: Jack, at para. 16. Although the appellants have not alleged that Ms. Whilby failed to mention some distinctive characteristics of their appearances, as was the case in R. v. Yigzaw, 2013 ONCA 547, 301 C.C.C. (3d) 266, at para. 63, I am satisfied that the trial judge erred in failing to acknowledge that Ms. Whilby’s descriptions of the appellants gave little reason to believe her identifications were reliable.

[88] Finally, given the frailties in Ms. Whilby’s evidence, the trial judge ought to have cautioned the jury that the repeated in-court identifications of the appellants by Ms. Whilby, which the Crown elicited, were entitled to little weight: Yigzaw, at para. 71; Hibbert, at para. 50; R. v. Pelletier, 2012 ONCA 566, 291 C.C.C. (3d) 279, at para. 93.

(3) The Cumulative Impact of the Errors

[89] The trial judge’s instructions failed to convey all the reasons why the jury ought to subject Ms. Whilby’s testimony to special scrutiny. Moreover, with respect to Ms. Whilby’s identifications of the appellants, the trial judge left the jury with an unfocused treatise on factors that may come to bear on the reliability of eyewitness evidence, many of which had no basis in the evidence. Cumulatively, the instructions failed to impress upon the jury that there were significant reasons to doubt both Ms. Whilby’s credibility and the reliability of her identifications.

[90] These errors are serious. The jury’s most significant task in this trial was deciding whether to believe Ms. Whilby. On the basis of the jury instructions, I am unable to conclude that the jury was properly equipped to assess her evidence.

[91] It is immaterial that defence counsel failed to object to the aspects of the jury charge that are at issue in this appeal. I am satisfied that these errors left the jury “inadequately equipped to properly evaluate important evidence”: R. v. Bailey, 2016 ONCA 516, 339 C.C.C. (3d) 463, at para. 56. Irrespective of any oversight by their lawyers, the appellants were entitled to a fair trial, and there was no tactical advantage to be gained from the failure to object: Phillips, at para. 31.

[92] Accordingly, on the basis of these errors, I would set aside the convictions of the appellants and order that they receive new trials.

F. Disposition

[93] I would allow the appeals. I would set aside the convictions of the appellants and order new trials on all counts.

Released: “G.R.S.” SEP 02 2020

“B.W. Miller J.A.”

“I agree. G.R. Strathy C.J.O.”

“I agree. Janet Simmons J.A.”