COURT OF APPEAL FOR ONTARIO DATE: 20230707 DOCKET: C67844

Paciocco, Sossin and Favreau JJ.A.

BETWEEN

His Majesty the King Respondent

and

Devon Dinall Appellant

Counsel: Jeff Marshman and Ingrid Grant, for the appellant Jeff Pearson, for the respondent

Heard: January 26, 2023

On appeal from the conviction entered on October 9, 2019 by Justice Suhail A.Q. Akhtar of the Superior Court of Justice, sitting with a jury.

Favreau J.A.:

A. Introduction

[1] The appellant, Devon Dinall, was found guilty by a jury of trafficking cocaine, conspiracy to traffic cocaine and possession of the proceeds of crime.

[2] At trial, Mr. Dinall’s defence was that he was involved in a conspiracy to traffic marijuana, but he was not involved in trafficking cocaine.

[3] In the only ground of appeal Mr. Dinall pressed during his oral submissions, he argues that the trial judge erred in instructing the jury on the charge of conspiracy and on the co-conspirator’s exception to the hearsay rule. He claims that the trial judge should have instructed the jury about the possibility that there were several overlapping conspiracies, and that Mr. Dinall could not be found guilty of trafficking cocaine if he was only involved in a conspiracy to traffic marijuana. He argues that this alleged error could have led the jury to believe that his concession that he was involved in a conspiracy to traffic marijuana meant that he was also involved in a conspiracy to traffic cocaine.

[4] I would deny this ground of appeal. While the jury charge contained one misstatement regarding the nature of Mr. Dinall’s concession, the charge was otherwise clear throughout about Mr. Dinall’s position that he was not involved in a conspiracy to traffic cocaine and that he could only be found guilty if the Crown proved his participation in a conspiracy to traffic cocaine.

[5] For the reasons that follow, I would also deny the remaining grounds of appeal that Mr. Dinall raised in his factum and dismiss the appeal.

B. Factual Background

[6] The convictions against Mr. Dinall arose from Project KRONIC, which was a drug trafficking investigation, primarily based on wiretaps. The initial focus of the investigation was Jason Burke, which led to other suspected drug traffickers, including Mr. Dinall.

[7] The Crown’s theory was that the intercepted wiretap communications showed a chain of cocaine trafficking. Jason Burke’s father, Howard Burke, would obtain cocaine at the kilogram level, which he would distribute to his sons, including Jason Burke. In turn, Jason Burke distributed the cocaine to others, including Mr. Dinall. Mr. Dinall would then sell the cocaine at the ounce level or lower. Mr. Dinall was also alleged to have cooked the cocaine on Jason Burke’s behalf and to have supplied it to another alleged co-conspirator, Shannon Rolle.

[8] The wiretap intercepts admitted into evidence at trial included communications between Howard Burke and Jason Burke, between Jason Burke and Mr. Dinall, and between Jason Burke and Ms. Rolle. The parties to the intercepted communications used patois and drug-slang. At trial, the Crown called Detective John Margetson as an expert witness to testify about drug trafficking, including the use of drug-slang and coded terminology.

[9] The trial judge instructed the jury that they could rely on some of the intercepted communications between Jason Burke and Ms. Rolle against Mr. Dinall, if they were satisfied that the requirements of the co-conspirator’s exception to hearsay were met.

[10] Jason Burke and Ms. Rolle pleaded guilty to trafficking cocaine. Mr. Dinall and Howard Burke were tried together before a jury. The specific allegations against Mr. Dinall included a claim that he conspired with Jason Burke and Ms. Rolle to traffic cocaine.

[11] At trial, Mr. Dinall testified in his own defence. He conceded that he was involved in trafficking marijuana with Jason Burke and Ms. Rolle. However, he disputed that he was involved in trafficking cocaine.

[12] The jury found both Mr. Dinall and Howard Burke guilty. They appealed together, however Howard Burke died before the appeal was heard. Accordingly, only Mr. Dinall’s appeal proceeded before this court.

C. Issues and Analysis

[13] In his factum, Mr. Dinall raised four grounds of appeal. The first three grounds of appeal focused on the trial judge’s instruction on conspiracy and the co-conspirator’s exception to the hearsay rule. Specifically, he argued that the trial judge erred by failing to charge the jury on the potential for multiple conspiracies (the “multiple conspiracies issue”); failing to charge the jury that the agreement between a buyer and seller of drugs is not a “common design” (the “buyer/seller issue), and misrepresenting Mr. Dinall’s admission that he was involved in a conspiracy to sell marijuana (the “admissions issue”). The fourth ground of appeal concerned the trial judge’s instruction on Det. Margetson’s evidence regarding the drug-slang used in the intercepted communications.

[14] At the hearing of the appeal, Mr. Dinall’s counsel only addressed the issue of whether the jury charge would have been confusing on the conspiracy issue based on the trial judge’s treatment of the multiple conspiracies issue and the admissions issue. He did not address the buyer/seller issue or the ground of appeal relating to Det. Margetson’s evidence, although he did not explicitly abandon them.

[15] Accordingly, these reasons focus on Mr. Dinall’s argument regarding the multiple seller issue and the admissions issue. I also briefly address the buyer/seller issue and the issue relating to Det. Margetson’s evidence.

(1) The trial judge did not err in his jury instruction on the charge that Mr. Dinall conspired to traffic cocaine

[16] Mr. Dinall claims that the jury instructions regarding conspiracy and the application of the co-conspirator’s exception to the hearsay rule should have been clearer and that, as worded, they could have led the jury to believe that, if they were satisfied that Mr. Dinall was a member of a conspiracy to traffic drugs of any kind, he could be found guilty of trafficking cocaine. Mr. Dinall argues that the trial judge had an obligation to instruct the jury that this was a case in which there may have been multiple overlapping conspiracies, including separate conspiracies to traffic cocaine and to traffic marijuana, and Mr. Dinall could not be found guilty of participating in a conspiracy to traffic cocaine if the evidence only supported a finding that he participated in a conspiracy to traffic marijuana. In making this submission, he points to a statement in the jury charge that suggests that Mr. Dinall could be found guilty of conspiracy to traffic cocaine if he was found guilty of a conspiracy to traffic any controlled substance with Jason Burke and Ms. Rolle.

[17] I do not agree that the jury charge would have been confusing to the jury. It is obvious from the jury charge as a whole that the trial judge instructed the jury to apply the correct legal principles to the issue of whether Mr. Dinall was involved in a conspiracy to traffic cocaine, and that he consistently reminded the jury that they could only find Mr. Dinall guilty if he was part of a conspiracy to specifically traffic cocaine.

[18] Trial judges are not held to a standard of perfection in crafting their jury charges. This court is to take a functional approach to the charge, by reviewing the errors alleged in the context of the evidence, the jury charge as a whole and the trial as a whole: R. v. Goforth, 2022 SCC 25, 470 D.L.R. (4th) 617, at para. 21. Taking this approach to the jury charge in this case, it is evident that the jury was well equipped to understand the specific charges against Mr. Dinall and that there would be no risk that his concession regarding the trafficking of marijuana could lead the jury to believe that he was guilty of conspiracy to traffic cocaine with Jason Burke and Ms. Rolle. This becomes clear from a review of the jury charge.

[19] For example, in the trial judge’s description of the elements of conspiracy as they applied to Mr. Dinall, he emphasized that, in order for Mr. Dinall to be found guilty, the Crown would have to prove that Mr. Dinall was a member of a conspiracy “to traffic cocaine”:

The Crown has to prove each of the following three elements beyond a reasonable doubt [for count 1]:

(1) That there was a conspiracy between two or more persons. (2) That the conspiracy was to traffic cocaine; and (3) Mr. Dinall was a member of that conspiracy. [Emphasis added.]

[20] In addition, the trial judge’s explanation of the co-conspirator’s exception to the hearsay rule and how it could be applied in this case also made it clear that, for the exception to apply, the jury would have to be satisfied that Mr. Dinall was involved in a conspiracy to traffic cocaine.

[21] The co-conspirator’s exception to the hearsay rule permits the statements of an accused’s alleged co-conspirator, made in furtherance of the conspiracy, to be admitted as evidence against the accused if the following three-part test is met:

a. The Crown must prove the existence of a conspiracy, which in this case is a conspiracy to traffic cocaine, beyond a reasonable doubt. b. If the trier of fact is satisfied that the conspiracy exists, the Crown must prove on a balance of probabilities, and based on the evidence that is directly admissible against the accused, that the accused is a member of the conspiracy. c. If the trier of fact concludes on a balance of probabilities that the accused is a member of the conspiracy, the trier of fact must then go on to decide whether the Crown has proven beyond a reasonable doubt whether the accused is a member of the conspiracy. At this step, the trier of fact can apply the hearsay exception and consider statements made by co-conspirators in furtherance of the conspiracy as evidence of the accused’s guilt.

R. v. Carter, , [1982] 1 S.C.R. 938, at p. 947; R. v. Barrow, , [1987] 2 S.C.R. 694, at para. 73; see also R. v. Tello, 2023 ONCA 335, at para. 42; R. v. Khan, 2022 ONCA 698, at para. 40, leave to appeal refused, [2022] S.C.C.A. No. 455; R. v. McGean, 2019 ONCA 604, at para. 6.

[22] In this case, the Crown sought to rely on several intercepted communications between Jason Burke and Ms. Rolle which were admitted as evidence against Mr. Dinall. In this context, the trial judge gave the following instruction to the jury, which again emphasized that they had to be satisfied that Mr. Dinall was a member of a conspiracy to traffic cocaine:

The first step involves proof of a common design or enterprise. You must first decide whether the Crown has proven beyond a reasonable doubt that there was a common design or agreement to traffic cocaine. This is a common agreement between two or more people, irrespective of who they are. […] At this first step, you’re only concerned about the existence of that common design or enterprise, not who may have been in it or a participant in it. If you’re satisfied beyond a reasonable doubt that there was a common design or enterprise to traffic cocaine, you must next consider and decide whether Mr. Burke and Mr. Dinall were probably participants in that common design. You must consider each person separately and decide whether he was probably or more likely than not a participant in that common overarching design to traffic cocaine.

Third. If you’re satisfied beyond a reasonable doubt that there was a common design to traffic cocaine and you’re also satisfied that Mr. Burke or Mr. Dinall probably participated in it, you then may consider any out of court statements or conduct by anyone who you find to be a probable participant in the common design in deciding the case of any other person who you find to be a probable participant in the common design, but only those out of court statements or conduct that you find were made or done in furtherance of the common enterprise. [Emphasis added.]

[23] Besides the specific instructions on the elements of conspiracy and the co-conspirators’ exception to the hearsay rule, the trial judge explained on several occasions to the jury that the central issue in the case was whether Mr. Dinall was specifically involved in selling cocaine and in a conspiracy to traffic cocaine with Jason Burke and Ms. Rolle. For example, in the context of charging the jury on the trafficking charge, the trial judge stated, “the central question in this case was whether the substance Mr. Dinall and Mr. Burke was selling was cocaine and you must be satisfied beyond a reasonable doubt that it was in order to convict Mr. Burke or Mr. Dinall” (emphasis added). In addition, in his review of the evidence, the trial judge instructed the jury that Mr. Dinall did not deny that he was in a conspiracy to sell a controlled substance, but that he denied that substance was cocaine. In that context, he said that “the nature of the drug [was] essential to the issue in this case” (emphasis added).

[24] There is one instance in the charge where the trial judge used language that could have suggested that Mr. Dinall’s concession that he conspired to traffic marijuana could support a finding that he trafficked cocaine. Specifically, in the section of the charge where the trial judge discusses how the jury could approach the assessment of the evidence on the first two elements of the conspiracy charge, the trial judge made the following statement:

Even though I’ve outlined in some detail the first two elements of count 1, the reality is the first two questions have been made very easy to answer because Ms. Pennypacker on behalf of Mr. Dinall concedes that he was a member of a conspiracy to traffic a controlled substance. [Emphasis added.]

[25] Read in isolation, this last sentence could have led the jury to believe that Mr. Dinall’s concession that he was involved in a conspiracy to traffic one controlled substance, namely marijuana, was sufficient for them to find that he was involved in a conspiracy to traffic any controlled substances, namely cocaine, that the other co-conspirators, Jason Burke and Ms. Rolle, had agreed to traffic. However, this passage cannot be read in isolation. Immediately following this passage, the trial judge stated “the real question is the next one, whether the conspiracy was one whose purpose was to traffic cocaine” (emphasis added). This part of the charge amounted to a misstatement of the reasoning the jury should follow in considering the elements of conspiracy to traffic cocaine. However, it is evident from the charge as a whole that the trial judge clearly instructed the jury that they could only find Mr. Dinall guilty of conspiracy to traffic cocaine if they found that he was part of an agreement to traffic cocaine in particular, and not based on his concession that he was part of an agreement to traffic marijuana. As reviewed above, trial judges are not held to a standard of perfection.

[26] Mr. Dinall argues that the trial judge had an obligation to specifically instruct the jury that there could be multiple overlapping conspiracies and that his concession that he was involved in a conspiracy to traffic marijuana with Jason Burke and Ms. Rolle could not form the basis for a finding that he was thereby involved in a conspiracy to traffic all substances that these two co-conspirators agreed to traffic. The trial judge rejected a request from Mr. Dinall’s lawyer for such an instruction. This was not an error. As reviewed above, it would have been evident to the jury from the jury charge as a whole that, in order to find Mr. Dinall guilty of conspiracy to traffic cocaine, they had to be satisfied that he was part of an agreement to specifically traffic cocaine. The trial judge repeatedly emphasized that a key issue in the case was the nature of the drug.

[27] This court has commented that instructing a jury on the co-conspirator’s exception to the hearsay rule can be challenging. It is a complex rule, and it may be difficult for the jury to understand: R. v. Hall, 2010 ONCA 421, 267 O.A.C. 35, at para. 21; R. v. Panzo, 2022 ONCA 359, at para. 35. In this case, with the exception noted above, the trial judge was careful and clear in his instructions on the elements of conspiracy and the test for application of the co-conspirator’s exception to the hearsay rule. Throughout, he emphasized that the jury had to be satisfied that Mr. Dinall was part of a conspiracy to traffic cocaine. Given that this case ultimately turned on one issue, namely whether Mr. Dinall agreed to be part of a conspiracy to traffic marijuana or cocaine, arguably the additional charge sought by Mr. Dinall’s lawyer could have confused the jury rather than make the charge clearer. In any event, the trial judge certainly did not commit any error in refusing Mr. Dinall’s request that the jury be explicitly told that there could be multiple overlapping conspiracies and that Mr. Dinall could only be found guilty if he was specifically guilty of conspiring to traffic cocaine. This would have been obvious from the jury charge as a whole and a special instruction was not necessary.

[28] With respect to the buyer/seller issue, Mr. Dinall argued that in the circumstances of this case the trial judge erred by not directing the jury that the “common design” element of the co-conspirator’s exception to the hearsay rule is not satisfied where a buyer and seller agree to a drug transaction, but instead requires agreement between two people to traffic in a particular controlled substance. I do not agree. The prospect that Mr. Dinall may simply have been a cocaine buyer was not raised below, no doubt because there was no air of reality to this prospect on the evidence. The real issue in the case was not whether Mr. Dinall was involved in a common design, but whether the common design he was involved in was to traffic in cocaine.

(2) The trial judge did not misstate Det. Margetson’s evidence regarding drug slang

[29] In his factum, Mr. Dinall argues that the trial judge misstated Det. Margetson’s evidence regarding the use of specific drug slang terms. He submits that the trial judge said that Det. Margetson’s evidence was that the terms “Cuban”, “Fidel” and “8 ball” were units of measurement used exclusively to refer to cocaine, when Det. Margetson’s evidence was that these terms could also be used to refer to marijuana.

[30] I see no merit in this ground of appeal.

[31] First, Mr. Dinall did not object to the jury charge at the time it was delivered. While this is not determinative, it is nevertheless relevant: R. v. Chambers, 2023 ONCA 444, at para. 54; R. v. Laforme, 2022 ONCA 395, at para. 31; R. v. Stubbs, 2013 ONCA 514, 300 C.C.C. (3d) 181, at para. 146.

[32] Second, it is important to note that Det. Margetson did not testify that these terms were used interchangeably to refer to cocaine and marijuana. Rather, he testified that they were “common” terms used to refer to cocaine, and conceded in cross-examination that it was possible they could be used to refer to marijuana.

[33] Third, the jury charge must be looked at as a whole. In his charge, the trial judge did make two isolated statements suggesting that Det. Margetson linked these terms exclusively with cocaine. Specifically, he said that Det. Margetson’s evidence was that “Cuban” and “Fidel” were “terms that were used exclusively for cocaine”, and that “8 ball” was “specific to cocaine”. However, the trial judge’s instruction emphasized that this was based on Det. Margetson’s experience, which is consistent with his evidence, and that the jury should consider the use of the words in the context in which they were used.

[34] Finally, as pointed out by the Crown in its factum, these were not the only terms used in the wire intercepts that were linked to the trafficking of cocaine. Most notably, on one occasion, Jason Burke complained to Ms. Rolle that marijuana was not profitable and he said “thank god for coke”. In addition, Det. Margetson testified that some of the other terms used in the wiretap intercepts referred to cocaine, such as “soft”, “hard” and “fix”.

[35] As mentioned above, a jury charge is not held to a standard of perfection. The description of Det. Margetson’s evidence regarding the terms “Cuban”, “Fidel” and “8 ball” would not have misled the jury about his evidence and in their task of determining whether the Crown had proven beyond a reasonable doubt that Mr. Dinall was involved in a conspiracy to traffic cocaine.

D. Disposition

[36] Accordingly, I would dismiss the appeal.

Released: July 7, 2023 “D.M.P.” “L. Favreau J.A.” “I agree. David M. Paciocco J.A.” “I agree. Sossin J.A.”