COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cook, 2020 ONCA 731

DATE: 20201117

DOCKET: C65631

Brown, Trotter and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Blake Cook

Appellant

Cate Martell and Jeffrey Carolin, for the appellant

Giuseppe Cipriano and Carole Sheppard, for the respondent

Heard: September 14, 2020 by video conference

On appeal from the convictions entered on September 29, 2017 by Justice Kenneth E. Pedlar of the Superior Court of Justice, sitting with a jury, and from the sentence imposed on June 20, 2018.

Trotter J.A.:

A. introduction

[1] The appellant was convicted of possession of anabolic steroids for the purpose of trafficking (Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”), s. 5(2)), possession of cocaine for the purpose of trafficking (CDSA, s. 5(2)), and two counts of possession of the proceeds of crime (Criminal Code, R.S.C. 1985, c. C-46, s. 354(1)(a)). The appellant was sentenced to 4 ½ years’ imprisonment, less 20 days credit for time served in pre-sentence custody.

[2] The appellant appeals his convictions and sentence. He raises a number of grounds of appeal against his convictions, the main one being that the trial judge erred in admitting and then failing to contain prejudicial bad character evidence related to his apparent association with the Hell’s Angels motorcycle club. In a similar vein, the appellant argues that certain intercepted communications relied upon by the Crown constituted bad character evidence that portrayed him as someone who is well-versed in the intricacies of the drug world and the criminal justice system. The appellant also submits that the testimony of a Crown witness strayed beyond the proper bounds of opinion evidence, contravening the principles in R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272.

[3] I would allow the conviction appeal. The bad character evidence was irrelevant to any material issue and it was highly prejudicial. Although it emerged as a seemingly minor distraction at the beginning of the Crown’s case, it cascaded into a theme that pervaded the trial. Defence counsel attempted to minimize its impact through cross-examination; however, it only made matters worse by eliciting further prejudicial testimony.[^1]

[4] In his final instructions, the trial judge gave the jury a very brief instruction not to use this bad character evidence to infer that the appellant had a propensity to commit the offences that he was charged with. However, this warning did not remedy the unfairness that suffused this trial.

[5] This unfairness was compounded by the anecdotal testimony of a police officer, which exceeded the proper bounds of opinion evidence and culminated in a subtle reversal of the burden of proof on the steroids charge. The trial judge did not instruct the jury to disregard this evidence.

[6] As I explain below, I would decline to apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, set aside the convictions, and order a new trial.

B. factual overview

[7] This case emerged from a large organized crime investigation, known as “Project Batlow”, but resulted in a straightforward possession and proceeds of crime trial against the appellant.[^2] The investigation involved the following units of the Ontario Provincial Police: the Organized Crime Enforcement Bureau, the Biker Enforcement Unit, and the Asset Forfeiture Unit. As a result of Crown questioning, many of the officers testified that they were assigned to these specialized units when they were investigating the appellant. As the trial continued, it became readily apparent that the appellant was a target of this broader investigation into bikers and organized crime.

[8] The police obtained warrants to search the appellant’s and his father’s homes. At the appellant’s home, the police discovered large quantities of steroids. They also found a canister containing five ounces of cocaine buried under snow about 100 metres behind the appellant’s home. The Crown alleged that the appellant possessed the steroids and cocaine for the purpose of trafficking.

[9] The police seized roughly $36,000 in Canadian currency, bundled in various amounts, from the appellant’s home. They discovered another $55,000 at his father’s home. The Crown alleged that all of the cash was proceeds of crime.

[10] At trial, the appellant took the following positions: (1) the steroids were stockpiled for personal use only; (2) the Crown did not prove that he was in possession of the cocaine; (3) all the money found in his home was from legitimate sources; and (4) of the $55,000 seized at his father’s home, $20,000 belonged to his father, and the rest was derived from legitimate sources, such as a limousine service and the appellant’s data entry job.

[11] As discussed below, the appellant’s ability to fairly present his defence to the jury was repeatedly undermined by a profusion of inadmissible and highly prejudicial evidence.

C. the hells Angels evidence

(1) Overview

[12] The search warrant for the appellant’s home authorized the police to seize clothing and paraphernalia associated with the “13 Crew Motorcycle Club”, an entity associated with the Hells Angels. The police took many photographs of this clothing and paraphernalia inside the appellant’s house. The trial judge allowed the Crown to adduce these photographs as exhibits.

[13] Throughout the trial, the Crown repeatedly tendered evidence suggesting that the appellant was associated with the Hells Angels. In fact, two officers provided detailed testimony about the surveillance of the appellant at a meeting with a known member of the Hells Angels.

[14] There was no singular piece of evidence that undermined the fairness of this trial. Rather, it was the cumulative impact of many pieces of evidence that produced this result. As the following sections will demonstrate, the suggestion repeatedly presented to the jury was obvious: the appellant was formally associated with a notorious criminal organization, the Hells Angels. This association led to the inescapable inference that, by virtue of his involvement with a criminal subculture, the appellant was the type of person who was more likely to commit the offences before the court.

(2) Hells Angels Support Clothing

[15] Allusions to the appellant’s connection to organized crime began with the Crown’s very first witness, Staff Sgt. Dobler. At the outset of his testimony, he advised the jury that he worked for the Organized Crime Enforcement Bureau. He testified that he found a “Nomads” hat and jacket while executing the search warrant at the appellant’s home.

[16] The Crown asked that the jury be excused. In its absence, he sought permission to call evidence that the Nomads are the Ottawa chapter of the Hells Angels. The Crown justified this request by noting that these items were simply “part of the search” and may cause the jury to wonder “[w]ho are the Nomads?”. Concerned about the impact of this evidence, the trial judge entered into a voir dire.

[17] During the discussion that followed, the Crown advised the trial judge that the jury would see photographs of biker-affiliated clothing in the appellant’s residence, and may later see surveillance evidence showing the appellant associating with members of the Hells Angels. The following discussion ensued:

THE COURT: Now what’s the relevance of this to the charges? Like, it’s easy to say, Well ‘cause he’s a member, it’s not more likely to have committed it, but really, the relevance, isn’t it related to being part of the drug sub-culture or something like that? I mean, that’s got to be the inference you’re looking for I would think. I don’t know. Otherwise they might have a Senators jacket there, you know, and they’re not a Senator, but I don’t know. I just want to be careful that it’s not more prejudicial than probative, if I can put it that way.

[THE CROWN]: Yes, and that’s why I wanted to raise it with Your Honour. We’re not going to [be] leading expert evidence that he’s associated with a criminal sub-culture and therefore more likely to have committed these offences. On the other hand, I just thought I should raise this now because they’ll be seeing this in the photos and....

THE COURT: If they see Hells Angels and he’s hanging around with them, they’ll see it. That will be it. They’ll have to draw their own conclusions I guess.

[THE CROWN]: And same with the Nomads. You know there’s a number of pictures that have Ontario Nomads and in the jury room I don’t know if it’ll become an issue or not. It may not. But rather than one juror saying, I’ve heard of that and sort of what Your Honour told them not to do, try on their own.

THE COURT: I think the safest is just say it’s a motorcycle club and leave it at that for now and then they see the other evidence that’s coming in with Hells Angels around it, and they can draw their own conclusions I think. I’d be a little nervous that it might be more prejudicial than probative to make the connection, unless we can take that connection to its ultimate conclusion and prove he’s a member and that it is, you know, an organization that’s a criminal organization and that kind of stuff. But if we can’t do that, I think we’d better just be very cautious with it. [Emphasis added.]

[18] On the voir dire, no one seemed to consider whether the photos of biker paraphernalia ought to be vetted to delete non-probative prejudicial images, or to obscure prejudicial content from images that contain relevant information. I return to this issue below, after further detailing how the issue developed.

[19] Despite the trial judge’s caution that Staff Sgt. Dobler should refer to the Nomads as a “motorcycle club” instead of the Hells Angels, Detective Constable Leonard, who testified the next day, said that he found “Hells Angels support clothing” in the appellant’s home: namely, a black leather vest with the words “13 Crew” embroidered on it.

[20] In his cross examination of D.C. Leonard, defence counsel sought to soften the impact of this evidence, but he ended up exacerbating the situation. In particular, D.C. Leonard confirmed that: (i) the appellant “was a member of the 13 Crew”’ (ii) the “13 Crew is a support club of the Hells Angels”; and (iii) the officer’s superiors had told him to “seize any outlaw motorcycle gang affiliated clothing”.

[21] Another witness, D.C. Kettyle, followed suit. He testified about the same leather vest that D.C. Leonard had mentioned in his testimony. He said he observed “a 13 Crew, outlaw motorcycle vest hanging on the door of Mr. Cook’s bedroom…that said Ottawa Chapter at the bottom” and “some Hells Angels support wear hanging on a closet door in that main bedroom.”

[22] Evidently, the trial judge’s ruling on the voir dire was not communicated to D.C. Leonard or D.C. Kettlyle. However, there was no objection and the trial judge did not provide any mid-trial instructions to the jury regarding this evidence.

(3) Evidence Related to Project Batlow

[23] The fact that the appellant’s arrest arose within the context of a large-scale investigation into organized crime would not have been lost on the jury. Fifteen police officers mentioned their affiliations with the Organized Crime or Biker Enforcement Units in their evidence. As the trial unfolded, it became clear why so many officers and multiple agencies specialized in organized crime were involved in this case: the appellant was a target in Project Batlow. The officers also alluded to the wide scope of that investigation, testifying that there were several teams of investigators in different regions, and numerous search warrants, surveillance operations, and telephone intercepts. Much of this evidence was unrelated to the straightforward case against the appellant.

[24] Eventually, defence counsel asked the court for a mid-trial instruction to militate against the possibility that the jury would “see [the appellant] as some Province-wide mobster who is connected to God-knows-who”. The Crown resisted, contending that “[t]hese are just the facts that there were multiple surveillance teams surveilling multiple people ... Those are the facts of this case”.

[25] The trial judge accepted the Crown’s position that references to the broader investigation was “just the context” and one could not re-write history to obscure the fact that the appellant “[hung] around with these guys”. Nonetheless, he acceded to the defence request and provided the following mid-trial instruction:

[Y]ou’ve heard sort of an introductory bit of evidence about a broader investigation, an investigation with a much broader scope than just as it related to Blake Cook and it’s important to focus only on the evidence that connects Blake Cook to any of the essential elements of the charges before the court and not draw any inferences because it’s in the context of a much broader investigation. You shouldn’t draw any inferences against him unless they relate to the specifics of these offences. [Emphasis added.]

[26] This warning was not repeated in the trial judge’s final instructions.

(4) Surveillance Evidence

[27] At trial, the appellant contended that he accumulated part of the money that the police seized by working at a full-time data entry job. This job entailed picking up thumb drives from his employer, Darren Steinburg, usually in the parking lot of Mr. Steinburg’s workplace. These hand-offs occurred on a regular basis.

[28] The Crown countered by relying on over 80 hours of surveillance of the appellant to demonstrate that he did not spend his days performing data entry. Police officers testified that, during the surveillance, the appellant engaged in three suspected hand-to-hand drug transactions in parking lots, although it was admitted in cross-examination that what they witnessed was “equally consistent with a thousand other things”. Two other aspects of the surveillance evidence are relevant to this ground of appeal.

[29] First, two officers testified about a meeting between the appellant and three other individuals in a parking lot. The officers described one of the individuals, Mr. Clairoux, as a “full patch member of the Hells Angels” and a “known criminal”. One officer further testified that he recognized both Mr. Cook and Mr. Clairoux from the “target package” that he received at the commencement of Project Batlow.

[30] During their evidence, the officers recounted this meeting in detail. Mr. Clairoux was “wearing a black and white leather vest with Hells Angels patches on the back.” The appellant walked behind Mr. Clairoux “like a subordinate, not by his side like an equal”. An officer commented that one of the individuals seemed to be watching vehicles as they passed by the parking lot. He made the following observation: “…through the experience I’ve gathered through those 17 years in policing, I believe that he was keeping watch because they were involved in something that was illegal”. The Crown acknowledged that this surveillance evidence could be interpreted as “relating to gang membership” but again, this was just part of the facts of this case.

[31] The second relevant aspect of the surveillance evidence pertains to what was ultimately provided to the jury for their deliberations. When the officers testified, they made reference to surveillance logs. The Crown entered an exhibit book containing 13 of these logs. Multiple pages of the surveillance reports displayed the Biker Enforcement Unit’s name, and its logo – a motorcycle wheel in handcuffs.

[32] Defence counsel initially agreed that the surveillance reports could be tendered with the logo. However, the next day, after the book was provided to the jury, he expressed concern that the jury might draw impermissible inferences about the appellant’s character from the Biker Enforcement logo. Noting somewhat sheepishly that he “[didn’t] know if that cat’s out of the bag”, defence counsel asked the trial judge to provide an instruction about the book “now or later”. The trial judge acknowledged that this was a “fair enough comment” and agreed to caution the jury at a later time. This did not occur.

(5) The Trial Judge’s Instructions

[33] In the pre-charge conference, defence counsel raised concerns about the evidence that associated the appellant with the Hells Angels and other suspected criminals. For example, he said that the jury may be inclined to infer that: “Hanging around with bikers you must be a bad guy. You must be dealing drugs.” The trial judge agreed to “do something on that” in the charge.

[34] The trial judge’s instructions concerning the Hell’s Angels evidence was not given until the very end of his charge, in the following brief passage:

Oh, the last thing. Just out of sort [of] general comments, the association with the motorcycle club Hells Angels, there is clothing et cetera found at the house. He met a guy in the parking lot, kind of a friendly greeting. You are not allowed to use that evidence to assume he is guilty of any of these offences, it is context only, it is not safe to make an assumption that he is the kind of person to commit these offences just because of whatever association he had with a club like that. So, that goes over the acceptable use of that. It is just context of that type of evidence. [Emphasis added.]

[35] Defence counsel did not object to the adequacy of this instruction.

(6) The Positions of the Parties on Appeal

[36] The appellant submits that the cumulative effect of the Hells Angels evidence rendered his trial unfair. The caution of the trial judge was “too little, too late” to remedy the situation. The appellant submitted in oral argument that no instruction could undo the damage that was done.

[37] Appellant’s counsel acknowledges that missteps by defence counsel at trial (failing to register timely objections, ill-advised questions in cross-examination, and failing to apply for a mistrial) may have contributed to the unfairness. However, counsel submits that these omissions and decisions could not possibly have been tactical in nature, and the appellant should not suffer because of them.

[38] The respondent submits that the evidence that the appellant complains about formed only a small part of the trial and was, for the most part, not the subject of objection. The respondent contends that the trial judge’s mid-trial and end-of-trial warnings were adequate to defuse any lingering prejudice occasioned by the admission of the biker evidence. The respondent relies on the curative proviso in s. 686(1)(b)(iii) of the Criminal Code and contends that the evidence at trial occasioned no substantial wrong or miscarriage of justice.

(7) Analysis

(a) Overview

[39] In his leading judgment in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, Binnie J. said, at para. 72: “Discreditable disposition or character evidence, at large, creates nothing but ‘moral prejudice’ and the Crown is not entitled to ease its burden by stigmatizing the accused as a bad person.” See also R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 44, per Moldaver J. This is precisely what happened in this case – the Crown attempted to ease its burden by supplementing what appeared to be a formidable case with irrelevant and gratuitous bad character evidence.

[40] Evidence of gang association, affiliation, or membership is bad character evidence. It is presumptively inadmissible: R. v. Phan, 2020 ONCA 298, 387 C.C.C. (3d) 383, at para. 90. It impels the prohibited inference that the accused is the type of person who is likely to have committed the offence. This type of evidence is particularly dangerous because it involves “unrelated criminal activity”: R. v. Riley, 2017 ONCA 650, 137 O.R. (3d) 1, at para. 21. More generally, it may also insinuate that the accused embraces a positive attitude towards the criminal lifestyle.

[41] Although evidence of gang affiliation is presumptively inadmissible, it has a legitimate place in some trials. As Strathy C.J.O. explained in Phan, at para. 91:

While evidence of gang membership can be highly prejudicial, it may be relevant for a variety of purposes. Like all bad character evidence, it may be admissible on an exceptional basis where its probative value outweighs its prejudicial effect. It may be admissible to provide context or narrative, to establish animus or motive, or to establish the accused's state of mind or intention, among other purposes. The case law is replete with the admission of gang association evidence for these and other purposes. [Emphasis added.]

[42] In any given case, it is incumbent on the trial judge to determine whether and to what extent such evidence is admissible. This is required by the trial judge’s overarching duty as a gatekeeper: R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, at para. 44. As Cronk J.A. wrote in R. v. B.D., 2016 ONCA 673, 342 C.C.C. (3d) 217, at para. 51, “[i]t was incumbent on the trial judge to ensure that only relevant and material evidence was placed before the jury and that the probative value of such evidence outweighed its prejudicial effect.”

[43] The Hells Angels evidence should never have been admitted at this trial. It was not relevant to any of the issues the jury was required to decide: (1) whether the appellant possessed the steroids for the purpose of trafficking; (2) whether the appellant was in possession of the cocaine that was seized behind his backyard; and (3) whether the cash seized from the appellant’s and his father’s residences was derived from the commission of crime (i.e., the drug offences).

(b) The Hells Angels Support Clothing

[44] On appeal, the respondent submits that the photographs of Hells Angels paraphernalia were relevant to narrative and context: namely, the evidence helped demonstrate where certain items were located and the original state in which they were found. I disagree.

[45] The Crown adduced at least 10 photos that only depicted biker clothing. These photos of the biker regalia did not assist in demonstrating where police found relevant seized items (i.e., the steroids, cocaine, and cash). They had no bearing on the issues of possession or the purpose of possession. Nothing was found inside the clothing that assisted with any live issue at trial. The appellant’s possession of biker clothing did not advance these issues in any way other than stirring the prohibited inference that the appellant was a bad person and therefore more likely to have committed the offences.

[46] The respondent also emphasizes that the jury was only shown photographs of the clothing, whereas the clothing itself “formed no real part of the evidence.” The fact that the jury only saw photos, rather than the clothing itself, could not mute its prejudicial impact. It was the appellant’s possession of these items that was prejudicial, not the manner in which his possession was proved.

[47] Moreover, this was not just “clothing.” These objects were the trappings and regalia of a notorious criminal organization: R. v. Drecic, 2011 ONCA 118, 276 O.A.C. 198, at para. 8 and R. v. Bodenstein, 2011 ONCA 737, at para. 6. As the ill-fated cross-examination of D.C. Leonard demonstrated, these items cannot be obtained online; they must be earned. As he explained, the Club only allows its members or affiliates to wear its clothing. Transgressions against this policy are “dealt with…by the club”. Simply put, these items are well known symbols of crime in our society that are not readily attainable by non-members of the Hells Angels.

[48] The Crown at trial, and to a lesser extent on appeal, appeared to operate on the following assumption: because the biker attire was photographed and seized during the execution of the search warrant, the Crown was required to adduce this evidence to provide an authentic picture of the facts; otherwise, the jury would be misled. This is incorrect.

[49] The police were entitled to seize these items of clothing because the search warrant allowed them to do so. However, items seized pursuant to a search warrant are not automatically admissible at trial, nor is the Crown duty bound to adduce them in evidence. To be admitted, they must be relevant and not offend any other rule of evidence.

[50] Trial judges have various tools at their disposal to guard against the admission of irrelevant and/or inadmissible evidence, including evidence that is more prejudicial than probative. The voir dire is the procedural vehicle through which these issues are typically addressed, particularly in jury trials where the impact of the admission of prejudicial evidence tends to be magnified.

[51] When the biker issue first arose, the trial judge expressed concerns about its probative value and prejudicial effect. The result was a decision to admit this irrelevant evidence, but to mitigate its impact by simply referring to the Nomads as a “motorcycle club.” Of course, this attempt at prejudice mitigation was undermined by the many subsequent references to the Hells Angels throughout the trial.

[52] No thought seems to have been given to simply not showing the jury the photographs of the biker paraphernalia (i.e., removing the offending photos from the book of photos entered as an exhibit). Again, this seems to have been driven by the Crown’s assumption that photographs taken as part of an investigation must be adduced as evidence. But the vetting of evidence is commonplace in jury trials, designed to prevent the jury from being distracted by irrelevant evidence, or inflamed by evidence that is prejudicial.

[53] For example, trial judges may be required to edit statements of an accused person in order to prevent the jury from seeing or hearing evidence that reflects irrelevant discreditable conduct: R. v. Otis (1979), 1978 CanLII 2350 (ON CA), 39 C.C.C. (2d) 304 (Ont. C.A.) at para. 11; R. v. L.L., 2009 ONCA 413, 96 O.R. (3d) 412, at para. 17; R. v. Tuck, 2014 ONCA 918, 317 C.C.C. (3d) 469, at paras. 24-29; and Michelle Fuerst and Mary Anne Sanderson, Stephen Firestone, Ontario Courtroom Procedure, 5^th ed. (Toronto: LexisNexis Canada Inc., 2020), at p. 781. Some courts have held that trial judges have a “heavy duty” to edit statements to minimize prejudice: R. v. Oseguera, 2014 BCCA 352, 315 C.C.C. (3d) 542, at para. 20; R. v. Bonisteel, 2008 BCCA 344, 236 C.C.C. (3d) 170, at para. 45.

[54] Similarly, autopsy photographs are often vetted, cropped or pixelated to achieve these same goals: see R. v. Salifu, 2018 ONSC 6748, and R. v. Kenyon, 2014 ONSC 1259. These photographs are not automatically shown to a jury simply because they were taken, or because they happen to accurately depict the true state of a deceased’s remains. They must be relevant to a material issue at trial. The nature of the photographs, and the manner in which they are presented, must not unfairly divert the jury from its solemn task of deciding the case without sympathy or prejudice.

[55] It might be said that the trial judge’s decision to refer to the Nomads as “the Ottawa Chapter of a motorcycle club” was a form of vetting. But realistically, at least some of the jurors would have known that this apparel is worn by bikers associated with crime (as opposed to bikers of the weekend, recreational type). If this was not already obvious when the photographs were admitted, it would have become so as this evidence accumulated throughout the trial.

[56] The Crown’s case could have proceeded without compromise had references to Hells Angels been avoided. The trial judge should have directed the Crown to tell its police witnesses to make no reference to the Hells Angels when testifying. Indeed, the Crown ought to have done so on its own initiative.

(c) The Evidence Surrounding Project Batlow

[57] As noted above, the jury heard from a number of officers who readily shared their assignments to units involved with Project Batlow. By the end of the trial, the jury knew about the participants, objective, structure, and activities of the investigation. Most importantly – the jury was told that the appellant was one of its targets.

[58] On appeal, the respondent submits that evidence related to Project Batlow was not bad character evidence, and references to the investigation were “so mundane and commonplace that they form essential narrative”. The respondent contends that the existence and role of Project Batlow in this case constitutes “the basic facts underlying the investigation”. This is resonant of the Crown’s position that it was obligated to adduce this evidence.

[59] The inference flowing from the fact that the appellant was a target in Project Batlow is abundantly clear: he was a player in a network of organized crime that was the subject of a province-wide investigation. It is undebatable that this was highly prejudicial bad character evidence. The Crown should have been prohibited from testimony from officers about the scope and nature of the broader investigation.

[60] Again, it would have been preferable had the Crown advised its witnesses to keep their evidence within the scope of the specific case before the court. This was the court’s suggestion when defence counsel initially objected to Detective Heuchert’s testimony detailing the involvement of multiple surveillance teams in Project Batlow. However, this warning was not heeded. As I discuss in the next section, the Crown adduced evidence of a meeting between the appellant and Hells Angels members, one of whom the officers identified as a target of Project Batlow.

(d) Surveillance Evidence

[61] The respondent submits that this evidence was legitimately elicited to rebut the appellant’s claim that his income was derived from legitimate means.

[62] The police surveilled the appellant for over 13 days. There was other, less prejudicial, surveillance footage of the appellant’s day-to-day activities that the Crown could have relied upon to make its point. This hour-long meeting with bikers was unnecessary to its case. Yet, the Crown found it necessary to question two officers about it in great detail, eliciting details that were highly prejudicial and outweighed any probative value this evidence might have had.

[63] Defence counsel requested that the jury be cautioned about this evidence. However, as with the photographs of the biker clothing, no thought was given to obscuring or redacting the logo on the surveillance reports in advance of the jury receiving them.

(e) The Adequacy of the Trial Judge’s Instructions

[64] I repeat the totality of the trial judge’s instructions on the bad character evidence discussed so far:

Oh, the last thing. Just out of sort [of] general comments, the association with the motorcycle club Hells Angels, there is clothing et cetera found at the house. He met a guy in the parking lot, kind of a friendly greeting. You are not allowed to use that evidence to assume he is guilty of any of these offences, it is context only, it is not safe to make an assumption that he is the kind of person to commit these offences just because of whatever association he had with a club like that. So, that goes over the acceptable use of that. It is just context of that type of evidence. [Emphasis added.]

[65] Whether any instruction could have “un-rung” the bell that was sounding throughout the trial, as the appellant’s counsel put it, this instruction was an inadequate response to the bad character evidence that had accumulated. The jury should have been warned in strong terms not to use the evidence in question for any prohibited purpose. The trial judge’s characterization of the evidence as “context only” was vague, and it did not remove its prejudicial impact. There was no need for this “context” in the first place and the jury should not have been permitted to consider the allegations facing the appellant against a backdrop of organized crime.

[66] Moreover, this instruction failed to address the Project Batlow evidence that was the subject of a mid-trial instruction. It was incumbent on the trial judge to address this evidence again in his final instructions.

[67] Given the bad character evidence that had infiltrated this trial, the trial judge was required to provide the jury with a strong and comprehensive warning about not drawing impermissible inferences from this body of evidence. Instead, it appears that the minimalist instruction that was given was more of an afterthought at the end of the charge.

(f) The Failure to Object

[68] The respondent attempts to deflect responsibility onto defence counsel for what happened at trial, noting that he made few objections throughout the proceedings. The respondent further emphasizes that defence counsel failed to object to the trial judge’s final instructions. These are fair observations – the trial judge did not receive the level of assistance to be expected from defence counsel in the circumstances.

[69] Although a failure to object is sometimes telling in assessing whether a trial was truly unfair, it is not determinative: see R. v. Chamot, 2012 ONCA 903, 296 C.C.C. (3d) 91, at para. 73; R. v. Samuels, 2013 ONCA 551, 310 O.A.C. 175, at para. 50; and R. v. Brown, 2018 ONCA 481, 361 C.C.C. (3d) 510, at para. 49. As Miller J.A. recently said in R. v. McFarlane, 2020 ONCA 548, [2020] O.J. No. 3681, at para. 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 (Ont. C.A.), 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. [Emphasis added.]

[70] This is not a case like Calnen, in which the majority found that the failure to object was motivated by tactical considerations: at para. 67. See also R. v. M.R.S., 2020 ONCA 667, at para. 74. The appellant was entitled to have the jury properly instructed that it could make no use of this highly prejudicial bad character evidence: R. v. B.(F.F.), 1993 CanLII 167 (SCC), [1993] 1 S.C.R. 697, at pp. 733.

[71] A trial judge’s duty to act as a gatekeeper is not displaced where counsel fails to object, or fails to assist the court in dealing with highly prejudicial evidence: B. (F.F.), at pp. 735-36; M.R.S., at para. 74. There is a heightened need to take appropriate action to preserve or restore trial fairness. This did not happen in this case, and the appellant’s right to a fair trial was compromised as a result.

[72] I would allow the appeal on this ground.

D. other bad character evidence

[73] In addition to the Hells Angels evidence, the appellant submits that the trial judge erred in admitting the evidence of an intercepted conversation between the appellant and Tina, a woman with whom he was in a relationship. He submits that this intercept was rife with bad character evidence, tending to suggest that the appellant: had close connections to the drug world; had accumulated a wealth of knowledge of the inner-workings of the criminal justice system; and could draw on that knowledge to “game” the system.

(1) Factual Overview

[74] The intercepted conversation portrayed the appellant as someone who was deeply enmeshed in the criminal milieu. For example: the appellant told Tina a story about a drug dealer they knew getting knifed; Tina spoke about an individual who she believed to be a “rat”; they discussed the drug charges facing Tina and her friend; Tina expressed the belief that she was being watched by the police; and they remarked on the fentanyl charges facing Tina’s friend, as well as the street value of fentanyl. The intercepts also suggested that the appellant was well-versed in criminal procedure. The appellant and Tina commented on bail conditions, sentencing ranges, and credit for pre-sentence custody.

[75] Additionally, the intercepted conversation revealed that the appellant and Tina had given considerable thought to defence strategies that a person might turn to in the event that they were charged with drug offences. An example of this arose when Tina was discussing the drug charges facing her and her friend. Tina protested her innocence and wondered if the charges against her were strategic. Tina seemed to operate under the assumption that, had she not been charged, her friend could point the finger her way at trial and Tina could come forward and claim possession without risking criminal impunity. This led to the following exchange:

Cook: Well that could happen too right cuz like they don't charge they charge her and don't charge you's then come trial time you can come forward and say it was all yours and then they can't charge cuz it's too late yeah.

Tina: Yeah so they're obviously just covering their bases.

Cook: Fucked up.

Tina: Yep.

[76] In further discussions about people facing drug charges, the appellant referred to a man and a woman and said, "Yeah but she buried shit on his side didn't she?" Tina responded: "She did last time too.” As I will return to shortly, the Crown seized on this passage to infer that the buried cocaine cannister was indeed in the appellant’s possession.

[77] Defence counsel expressed concerns at the pre-charge conference about how the Crown might use this evidence, referring to it as "sort of bad character." The trial judge said that he would leave it as a question mark and see how the Crown relied on this evidence in his closing. He declined to place any limits on the Crown.

[78] Defence counsel's concerns were well founded. The Crown placed great reliance on this conversation, liberally quoted from it, and provided a running commentary about what certain passages meant. He reminded the jury that the transcript of this conversation would be in the exhibit book and available for them to review while they deliberated.

[79] The Crown relied on this evidence to defeat the appellant's defence to the cocaine charge. After quoting the "buried shit on his side" excerpt, the Crown said: "Very curious comment by Blake Cook… in this case when we're dealing with a buried canister of cocaine."

[80] With respect to the exchange about an uncharged person coming forward to claim possession of seized drugs, the Crown told the jury:

And I submit that's one of the defence arguments that you heard yesterday. Maybe it was this unknown female who may have been living in the house with him. Maybe she's the one that planted the cocaine in the backyard. Maybe it was his brother, Lance Cook, across the street who planted the, the cocaine. So he's pointing the finger at other people.

And we know from this intercept that Blake Cook knows the system. He knows how this works, right? If we don't charge everybody in the house, then one person's going to come forward and say it's all mine or the owner of the house is going to say, well maybe it's somebody else's in the house. So that that's a curious intercept, given the facts, that we're dealing with here. [Emphasis added.]

[81] The Crown repeated this theme. He later told the jury that the appellant "knows the game" and repeated the assertion that "he knows the system."

[82] The trial judge referred to these intercepts in his charge to the jury but provided no limiting instruction on the permissible uses of this evidence.

(2) Positions of the Parties

[83] The appellant submits that the intercept invited further propensity reasoning: namely, that the appellant was more likely to be a drug dealer because he had associates facing drug charges and he knew about the criminal justice system. The Crown essentially urged this position on the jury. Moreover, the appellant submits that the Crown used this evidence to improperly undermine the appellant’s defence. In conjunction with the biker evidence, the Crown attempted to characterize his defence as a game or a ploy in the drug underworld, used to undermine a legitimate prosecution. Lastly, the appellant argues that the comparison the Crown drew between the scenario discussed in the intercept and his defence at trial was inapt because no one came forward to claim ownership of the drugs at trial.

[84] For the respondent, the intercept “did not show propensity of any kind.” Rather, the respondent submits that the intercept “was probative of the manner in which the appellant organizes his illicit activities.” Further, the respondent argues that the intercept provided context for the Crown’s theory regarding the buried cannister of cocaine and undermined the appellant’s attempts to attribute possession to others.

(3) Analysis

[85] In my view, while portions of this intercept may have been relevant to rebut the appellant's position that the cocaine belonged to someone else, the Crown exaggerated the similarity of this aspect of the intercepted conversation to the evidence in this case. In fact, nobody came forward at the appellant's trial to claim responsibility for burying the canister of cocaine.

[86] However, the Crown attempted to put this evidence to much greater use, in a way that was unfair. As he said in his closing address, the intercept showed the appellant as knowledgeable of "the system", "how things work", and "the game". On appeal, the Crown’s characterization of these intercepted communications as “probative of the manner in which the appellant organizes his illicit activities” proves the appellant’s point. This is essentially a definition of propensity reasoning – evidence of the appellant’s general criminal proclivities assists in proof of the offences in this case.

[87] The intercepted conversation suggested that the appellant was knowledgeable of fentanyl, a notoriously dangerous drug that had nothing to do with the charges he faced. It painted the appellant as someone with broad knowledge of the criminal justice system. As with the Hells Angels evidence, the conversation portrayed the appellant as a person of bad character who associates with other criminals, in this instance Tina.[^3] This type of guilt-by-association evidence is inadmissible. As Doherty J.A. said in R. v. Ejiofor, (2002) 2002 CanLII 19541 (ON CA), 156 O.A.C. 147 (C.A.), at para. 8: "People can only be convicted for what they do, not for the company they keep." Similarly, in R. v. Tash, 2013 ONCA 380, 306 O.A.C. 173, Watt J.A. said, at para. 58: “[W]e insist that guilt be proven by evidence of what an accused did and said, not because of the type of person the accused is, or the lifestyle he or she chooses.”

[88] The trial judge did not caution the jury not to draw impermissible inferences from this intercepted conversation, nor was he asked to do so. Nonetheless, it was imperative that the jury be properly guided in how they approached this evidence, especially given the Crown’s rhetorical excess in his closing address. For the same reasons given above in relation to the biker evidence, the failure to request a cautionary instruction was not fatal.

[89] I would also give effect to this ground of appeal.

E. inadmissible opinion evidence

[90] Turning to the final ground of appeal, the appellant submits that the Crown adduced inadmissible opinion evidence from a police officer that ran afoul of the principles in Sekhon. I agree.

(1) Factual Overview

[91] With defence counsel’s consent, the trial judge permitted Detective Constable Brandon Kubels to give opinion evidence relating to steroids and cocaine. In particular, he testified about the use and consumption of both substances, their sale and distribution, prices and value, and the language or drug slang used for these substances. This ground of appeal relates to his testimony about steroids.

[92] When the police executed the search warrant at the appellant’s home, they seized 1,721 steroid pills and 36 vials of liquid steroids. At trial, the Crown essentially conceded that 721 steroid pills and 16 vials of liquid steroids could have been for personal use. The question was whether the remaining 1000 pills and 20 vials were possessed for personal use, or for the purposes of trafficking.

[93] In the course of D.C. Kubels’ testimony, the Crown adduced the following evidence:

Q. So in your experience sir, have you seen people – my word – stockpile pills to use over a year?

A. No, I have not, not for personal use.

Q. And in your experience sir, have you seen someone stockpile 20 vials of those substances for personal use?

A. No, I have never seen that with a personal use.

[94] The trial judge reviewed this evidence in his charge to the jury. He said: “[D.C. Kubels] examined all the evidence about what had been recovered and he said that he had never seen anyone stockpile that much for personal use.”

(2) R. v. Sekhon

[95] This testimony is similar to the impugned evidence in Sekhon. Mr. Sekhon was charged with importing cocaine and possession of cocaine for the purpose of trafficking. He drove across the Canada-U.S. border in a truck that contained a hidden compartment, in which the police found 50 kg of cocaine.

[96] The Crown relied upon the evidence of a police officer who was qualified as an expert witness on the customs and practices of the drug trade. During his testimony, the following exchange took place:

Q. Officer, you described earlier that you’ve been involved in approximately 1,000 investigations involving the importation of cocaine over your 33-year career?

A. That is correct, Your Honour, yes.

Q. In approximately how many of those investigations were you able to determine that the person importing the cocaine did not know about the commodity that they were importing?

A. I have never encountered it, personally.

Q. Have you ever heard of a -- the use of a blind courier or a courier who doesn’t know about the commodity that he is driving?

A. I -- I’ve certainly heard that argument being raised on -- on occasion, primarily in court, not during my investigations.

[97] This evidence played an important role in the trial judge’s path to conviction. The British Columbia Court of Appeal dismissed the appeal: R. v. Sekhon, 2012 BCCA 512, 331 B.C.A.C. 170. In dissent, Newbury J.A. would have allowed the appeal based on the admission of the testimony reproduced above. In doing so, she made the following observation at para. 27:

Anecdotal evidence of this kind is just that — anecdotal. It does not speak to the particular facts before the Court, but has the superficial attractiveness of seeming to show that the probabilities are very much in the Crown’s favour, and of coming from the mouth of an “expert”. If it can be said to be relevant to the case of a particular accused, it is also highly prejudicial.

[98] On appeal to the Supreme Court of Canada, all judges agreed that the evidence was inadmissible. However, a majority of the Court applied the curative proviso in s. 686(1)(b)(iii) of the Criminal Code and dismissed the appeal.

[99] Writing for the majority, Moldaver J. evaluated the admissibility of the evidence within the framework developed in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at pp. 20-25; R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600; and R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275. Namely, to be admissible, expert evidence depends on (1) relevance; (2) necessity in assisting the trier of fact; (3) the absence of any exclusionary rule; and (4) a properly qualified expert: Sekhon, at para. 43. See also White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 19.

[100] The impugned evidence in Sekhon foundered on the relevance and necessity criteria. Moldaver J. held that, although the evidence may have been logically relevant, it was not legally relevant “because the guilt or innocence of accused persons that [the expert] had encountered in the past is legally irrelevant to the guilt or innocence of Mr. Sekhon”. He also noted that: “[A] fundamental tenet of our criminal justice system is that the guilt of an accused cannot be determined by reference to the guilt of other, unrelated accused persons”: at para. 49. As Watt J.A. explained in R. v. Burnett, 2018 ONCA 790, 367 C.C.C. (3d) 65, at para. 75: “What Sekhon enjoins is evidence that invites a trier of fact to reason from a generalized conclusion based on prior experience to a specific state of mind of the person charged.”

[101] Moreover, in terms of necessity, Moldaver J. held that the issue of whether Mr. Sekhon knew about the drugs “is not beyond the knowledge and experience of the judge, and it is certainly not a matter that is technical or scientific in nature”: at para. 49.

[102] In addition to considerations of relevance and necessity, Moldaver J. discussed the potential prejudicial impact of the impugned evidence. After quoting from the excerpt of Newbury J.A.’s judgment (see para. 97, above), he said at para. 50:

This type of anecdotal evidence would appear to require the accused to somehow prove that, regardless of a particular expert’s past experience, the accused’s situation is different. Such a result is contrary to another fundamental tenet of our criminal justice system — that it is the Crown that bears the burden of proving the mens rea of an offence beyond a reasonable doubt.

[103] In Sekhon, as in the case at hand, the evidence of the experts focused on the mens rea of the drug offences. In Sekhon, the officer testified about the knowledge of a courier; in this case, with knowledge conceded, the officer testified about the purpose for which the steroids were possessed. Courts have applied Sekhon in this latter context to find similar anecdotal evidence inadmissible. For example, in R. v. Chung, 2018 SKCA 70, the court held that it was improper for an officer to give an opinion that he had never seen a cocaine user possess two ounces just for personal use. In R. v. Tennant, 2019 ONCA 264, at para. 3, this court held that an expert’s statement – “I haven’t encountered users yet that would have that much heroin” – was improper.

[104] As in Sekhon, D.C. Kubels’ evidence invited the jury to assess the appellant’s guilt in light of other, unrelated accused persons. Thus, while it was logically relevant, it was not legally relevant.

[105] The concerns expressed in Sekhon about prejudice were also active in this case. The evidence of D.C. Kubels invited the appellant to prove that his case was different from all of the others investigated by the officer; in other words, that he was actually stockpiling the steroids for personal use. In fact, all the appellant had to do was raise a reasonable doubt. The anecdotal opinion of D.C. Kubels blurred this critical distinction. The Crown should not have asked the officer the questions that elicited this evidence. Additionally, the trial judge ought to have told the jury not to consider this aspect of his evidence: see Sekhon, at para. 48; Burnett, at para. 68.

[106] Defence counsel did not object to the admission of this evidence, nor did he ask the trial judge to deal with it in his charge to the jury. Again, this is not necessarily fatal. In Sekhon, at para. 48, Moldaver J. observed that it is “foreseeable that defence counsel may fail to object to the testimony at the time the problematic statements are made.”

[107] That is what happened in this case. Almost imperceptibly, the opinion evidence crossed the line into impermissible territory. In the moment, it is understandable that no one noticed. However, it ought to have been caught when it came time to instruct the jury. Instead, the mistake was repeated. I accept the appellant’s submission that this testimony compromised the appellant’s right to a fair trial on the steroids count by requiring him to “somehow prove that, regardless of a particular expert’s experience, [his] situation is different”: Sekhon, at para. 50.

[108] I would allow the appeal on this ground.

F. The Curative proviso does not apply

[109] The respondent submits that, if this court finds that there was an error in relation to the Hell’s Angels evidence, the court should apply the proviso in s. 686(1)(b)(iii) of the Code. The respondent contends that the case against the appellant was overwhelming and the impugned evidence formed only a small part of the trial evidence that the jury heard.

[110] I would decline to apply the proviso. Although the admission of inadmissible evidence and the failure to properly instruct a jury are often characterized as errors of law, in this case the appellant submits that the conduct of the trial amounted to a miscarriage of justice, within the meaning of s. 686(1)(a)(iii). In these circumstances, s. 686(1)(b)(iii) does not apply: R. v. Fanjoy, 1985 CanLII 53 (SCC), [1985] 2 S.C.R. 233, at pp. 239-240.

[111] Whether characterized as a series of legal errors or as a cumulative miscarriage of justice, this is not an appropriate case to apply the curative proviso. The impugned evidence was very damaging and the accompanying caution was inadequate. Although the case against the appellant was formidable, it was not overwhelming. Even if the evidence could be characterized as overwhelming, the appellant was entitled to verdicts based on a fair trial, not one in which his character was repeatedly smeared.

[112] The respondent made no submissions about the application of the proviso to the grounds of appeal concerning the Tina intercept, or the Sekhon error. This court has held that, in the absence of such a request, it is not appropriate to apply the proviso: see R. v. P.G., 2017 ONCA 351, 138 O.R. (3d) 34, at paras. 13-16. The resolution of this issue is of little consequence, given my conclusion relating to the Hells Angels evidence. In any event, I would decline to apply the proviso to these other two grounds of appeal. The Tina intercept, along with the inadmissible opinion evidence, contributed to the unfairness of this trial.

G. Conclusion and disposition

[113] I would allow the appeal from convictions and order a new trial. It is unnecessary to consider the appeal from sentence.

Released: “DB” November 17, 2020

“Gary Trotter J.A.”

“I agree. David Brown J.A.”

“I agree. David M. Paciocco J.A.”

[^1]: None of the counsel on this appeal were counsel at trial.

[^2]: Prosecutions against other individuals arose from Project Batlow, but the appellant was not part of them.

[^3]: There was no evidence that confirmed whether Tina had a criminal record, or what happened to the charge she spoke about during the intercepted communication.