WARNING

The President of the panel hearing this appeal directs that the following should be attached to this file:

The publication ban issued on March 2, 2018 by Justice Robert A. Clark, pursuant to s. 486.5 of the Criminal Code, R.S.C. 1985, c. C-46,shall continue. This order prohibits the publication of any information that might tend to reveal the identity of the witness referred to in these reasons as “Mr. X”.

Further, this appeal is subject to various sealing orders, most recently dated June 17, 2023, and a partial in-camera order dated September 12, 2023 to protect confidential informer privilege. Pursuant to this sealing order, some of the appeal materials are sealed or have been filed in redacted form. The court released its reasons in this matter to counsel and the appellant only on May 30, 2024. The court has received submissions from counsel who reviewed the unredacted reasons on whether any details would tend to identify the confidential informer and whether any redactions are required for publication. The court has determined that the following redacted versions of the reasons can be released to the public while upholding its duty to protect the confidential informer’s identity. The full reasons remain under seal.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ruthowsky, 2024 ONCA 432

DATE: 20240530

DOCKET: C65389

Pepall, Copeland and Monahan JJ.A.

BETWEEN

His Majesty the King

Respondent

and

Craig Ruthowsky

Appellant

Scott C. Hutchison and Kelsey Flanagan, for the appellant

Sunil S. Mathai and Jeremy Streeter, for the respondent

Heard: September 12 and 13, 2023

On appeal from the convictions entered on April 25, 2018 by Justice Robert A. Clark of the Superior Court of Justice, sitting with a jury, and the sentence imposed on May 29, 2018.

Copeland J.A.:

Table of Contents

A. INTRODUCTION. 1

(i).... The bribery allegations. 4

(ii)... The breach of trust allegations. 11

(iii).. The attempt to obstruct justice allegations. 18

(iv).. The cocaine trafficking allegations. 19

B. THE FRESH EVIDENCE APPLICATION. 21

C. THE CONVICTION APPEAL. 22

(1) The W.(D.) instruction was sufficient 22

(i).... Principles applicable to appellate review of jury instructions. 23

(ii)... The impugned instruction. 24

(iii).. This court’s decision in R. v. Ibrahim.. 25

(iv).. Analysis. 26

(2) There was no error or unfairness in the trial judge allowing Mr. X to testify that the appellant disclosed the identity of two confidential informants to him.. 39

(3) The appellant has not shown that his right to full answer and defence was impacted by late disclosure. 45

(4) The trial judge summarized the evidence and the appellant’s position to the jury fairly. 50

(5) There was no unfairness caused by the Crown’s closing address. 53

D. THE SENTENCE APPEAL. 55

(1) The sentence imposed by the trial judge is not demonstrably unfit 55

(i).... Nothing said by the trial judge during the sentencing hearing or the trial undermines the fitness of the sentence imposed or the fairness of the sentencing hearing. 56

(ii)... The trial judge did not err in his weighing of mitigating evidence. 61

(iii).. The sentence imposed is not demonstrably unfit 63

(2) The trial judge did not err in ordering a fine in lieu of forfeiture. 67

(i).... The trial judge had jurisdiction to order a fine in lieu of forfeiture. 68

(ii)... The absence of notice to the appellant’s wife did not affect jurisdiction to order the fine in lieu of forfeiture. 75

(iii).. The trial judge did not err in setting the amount of the fine in lieu of forfeiture 77

(iv).. The trial judge erred in ordering that time to pay run from the date of sentencing. 78

E. DISPOSITION. 80

A. INTRODUCTION

[1] The appellant is a former police officer. At the time of the offences at issue, he was a member of the Hamilton Police Service (the “HPS”). He was convicted, in a trial by jury, of one count each of bribery, attempting to obstruct justice, breach of trust, and trafficking cocaine.[^1]

[2] The offences arose out of a corrupt relationship between the appellant and Mr. X[^2], a drug trafficker. The central allegation was that the appellant accepted money from Mr. X as payment for protection from police interference in Mr. X’s drug dealing. The Crown alleged that the appellant accepted bribe money over the course of approximately one year, which the trial judge found at sentencing totalled at least $240,000. In support of the bribery charge, the Crown relied on acts by the appellant on a number of occasions which it alleged were done with the intent to protect and assist the drug trafficking operation of Mr. X and his associate Mr. Y.[^3] The Crown relied on these acts as circumstantial evidence of the corrupt relationship between the appellant and Mr. X in relation to the bribery count. In addition, the Crown relied on many of the same acts as elements of the offences on the attempting to obstruct justice, breach of trust, and cocaine trafficking counts.

[3] The appellant appeals his convictions and sentence.

[4] The primary ground of appeal advanced by the appellant is that the trial judge erred in his instructions to the jury on the application of the reasonable doubt standard to issues of credibility, as articulated in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. I do not summarize the other grounds of appeal against conviction at this stage.

[5] With respect to sentence, the appellant argues that the 13-year sentence of imprisonment imposed by the trial judge is unfit. He also challenges the imposition of a fine in lieu of forfeiture.

[6] I would dismiss the conviction appeal. I am not persuaded by the appellant’s submission that the trial judge erred in his instructions to the jury on the principles from W.(D.) regarding the application of the reasonable doubt standard to issues of credibility. Read as a whole, the instructions conveyed to the jury the required principles – that assessing credibility in the face of conflicting testimonial accounts is not a credibility contest; that the jury must consider whether the accused’s evidence, considered in the context of the evidence as a whole, leaves them with a reasonable doubt as to his guilt; and that the burden never shifts from the Crown to prove each element of the offences charged beyond a reasonable doubt. The instructions made clear that, if the jury believed or was left in a reasonable doubt by the appellant’s denial that he accepted bribe money and his denial of a corrupt intent in his relationship with Mr. X and his associates, the appellant was entitled to be acquitted. Nor am I persuaded by the appellant’s remaining grounds of appeal against conviction.

[7] As to the sentence appeal, I would grant leave to appeal sentence, but would dismiss the sentence appeal, with the exception of varying the order regarding time to pay the fine in lieu of forfeiture to one year from the date the appellant is released from custody. In my view, the sentence imposed by the trial judge is not demonstrably unfit.

Factual background

[8] As the primary ground of appeal concerns the instructions to the jury on reasonable doubt and credibility, I structure the facts around the evidence led by the Crown and the appellant’s evidence on each set of allegations under appeal.

[9] The appellant joined the HPS in 1998. In 2007, he began working for the Gang and Weapons Enforcement Unit (“GWEU”).

[10] In August 2011, the appellant obtained and executed a search warrant at Mr. X’s residence on Maple Street* in Hamilton (the “Maple Street warrant”). Mr. X was arrested following the execution of the warrant. The Crown alleged that, from there, a corrupt relationship between Mr. X and the appellant was born, which led to the offences that are the subject of this appeal. The appellant testified at trial. His position was that the events relied on by the Crown either did not occur or occurred as a result of a legitimate informant-handler relationship. He denied any corrupt intent.

(i) The bribery allegations

[11] At the time of his arrest in August 2011, Mr. X dealt cocaine and marijuana in the Hamilton area. Following Mr. X’s arrest, the appellant and Sgt. James Paterson conducted a debrief to assess Mr. X’s potential as an informant.

[12] Mr. X testified that he told the officers he had no information to provide, but that he could “patch over” firearms (i.e., arrange for surrender of illegal firearms) in exchange for being released from the station. At the direction of Mr. X, Mr. Y delivered two firearms to the police. Mr. X was then released on a promise to appear. Mr. X denied that he ever acted as an informant.

[13] Sergeant Paterson testified as a Crown witness. He confirmed that the purpose of the debrief of Mr. X was to determine whether he would provide information on other drug traffickers. Sergeant Paterson confirmed that Mr. X agreed to patch over two firearms to the police in exchange for release on a promise to appear. There was discussion during the debrief of the possibility of Mr. X trying to “develop” information in order to give the police information to “work off” his charges (i.e., the possibility of providing information in return for which the police would speak to Crown counsel about possibly reducing his charges). Sergeant Paterson testified that he and the appellant did not discuss registering Mr. X as an informant.

[14] Mr. X was never registered as a confidential informant with the HPS. Sergeant Troy Ashbaugh of the HPS reviewed the appellant’s memobook notes and his informant notebooks and testified about the contents. The memobook notes reviewed by Sgt. Ashbaugh covered the time period from March 2011 to June 2012. The informant notebooks covered the time period from December 2007 to June 2012. Sgt. Ashbaugh testified that the appellant’s informant notebooks contained no references to information received from Mr. X in his alleged capacity as an informant, nor did they indicate that Mr. X was ever registered as a confidential informant with the HPS. There were three references to a person with the same first name as Mr. X in the appellant’s informant notebooks (and which appeared to match Mr. X’s profile in terms of age and background), but they were of information about the person, not information received from the person. The memobook notes contained entries regarding the investigation that led to the execution of the Maple Street warrant and Mr. X’s arrest, but nothing suggesting he was an informant at any point.

[15] Mr. X testified that he and the appellant met in August 2011 for the appellant to return to Mr. X some car keys that were seized in the Maple Street search. Mr. X testified that at that meeting, he offered to bribe the appellant for protection from police involvement in his drug dealing. The appellant and Mr. X agreed on $20,000 a month for protection.

[16] Mr. X testified that these monthly payments were made for about one year. He testified that three of his associates paid him $5,000 each, to which he added his own $5,000. The three associates were Mr. Y, “J” and “the Chin”.[^4] The latter two supplied drugs to Mr. X. Mr. X testified that the bribes were intended to ensure that he and Mr. Y could continue selling drugs without police interference. J and the Chin received the benefit of having two large purchasers of drugs (Mr. X and Mr. Y) continue to sell without fear of being arrested. Mr. X testified that initially the appellant did not know the identity of the three other individuals. However, Mr. X soon identified Mr. Y to the appellant and later also identified J and the Chin. Mr. X testified that he believed he stopped paying the bribes around November 2012, when he saw media reports that the appellant had been suspended. The appellant was suspended from HPS in July 2012.

[17] Mr. Y testified that he paid $2,000 to $2,500 a month, via Mr. X, in return for protection from the police. Mr. Y believed that Mr. X, Mr. W* (another drug dealer in Hamilton), and the Chin were paying the bribe.

[18] The HPS had a confidential informant policy at the times relevant to this trial. The policy prohibited handlers of informants from, among other things: (i) providing consideration to informants without registering them; (ii) disclosing the identity of an informant to anybody outside of two specified supervisors; (iii) permitting an informant to engage in criminal activities; (iv) accepting gifts or benefits from an informant; and (v) discussing police service business or internal procedures with an informant.

[19] The policy also required officers to: (i) maintain a separate journal for every informant; (ii) record specific information about every contact with an informant; (iii) report criminal conduct by an informant; and (iv) register an informant by submitting a memorandum that provides detailed information about the informant, including any information provided by the informant and the reliability of that information.

[20] There was evidence at trial that some parts of the policy were not uniformly followed by officers. For example, Sgt. Paterson and Sgt. Ryan Moore testified that officers would use informants before they were registered.

[21] The appellant denied ever accepting bribes. The appellant testified that Mr. X acted as his informant after the August 2011 debrief in order to work off his charges. He testified that, in addition to patching over two firearms, Mr. X provided him with a list of people involved in or assisting the drug trade in Hamilton. The appellant testified that he did not register either Mr. X or Mr. Y as informants. The appellant testified that it was his practice to use an informant for a period of time before he registered them, in order to make sure they were worth registering. He also testified that Mr. X was under time constraints due to the charges he was facing, and that registering an informant created bureaucratic red tape.

[22] Although the appellant claimed that Mr. X provided him with information about the drug trade in Hamilton, the appellant’s memobook notes and confidential informant notebooks contained no entries about information received from Mr. X. The appellant testified that he would take “scratch notes” in a separate notepad, and later place those notes in a “case file”. The appellant testified that upon his suspension in July 2012, he was told it was “his responsibility” to take care of his case files, and was told that he could take them home. During the trial, the appellant did not produce any of the notes he claimed he made about information provided by Mr. X. Sergeant Ashbaugh testified that if a direction had been given for the appellant to take his case files home at the time he was suspended, it would have been a breach of HPS policy, which requires investigative material to be kept in a police facility.

[23] Mr. X testified that in October 2011, the appellant told him that to legitimize him as an informant, he needed actionable information. Mr. X told the appellant about a marijuana grow-op that he was a partner in. Mr. X had contemplated robbing the grow-op himself because he felt that his partners were ripping him off. Mr. X testified that, in exchange for telling the appellant about the grow-op, the appellant promised him half of the harvestable plants (when the police executed a search warrant at the grow-op).

[24] The appellant swore an information to obtain a search warrant for the grow-op relying on information provided by Mr. X. Sergeant Paterson testified that the appellant approached him about executing the search warrant on the evening of October 12, 2011. Sergeant Paterson recommended waiting until the next day because there were only three officers from the GWEU working that evening. Sergeant Paterson testified that the appellant was insistent that he needed to execute the warrant that evening because the appellant was afraid that the marijuana would be harvested overnight. As the appellant was insistent on executing the warrant, Sgt. Paterson provided him with the phone numbers of senior officers who could make the command decision. The appellant executed the search warrant that evening.

[25] Mr. X testified that, upon execution of the search warrant, the appellant phoned him from the property and told him that there were no harvestable marijuana plants. Mr. X testified that the appellant invited him to come to the searched property so that Mr. X could see that he was not being ripped off. Mr. X attended at the property and confirmed that there was no harvestable marijuana.

[26] Detective Hannah Carter and Sgt. Paterson testified confirming Mr. X’s attendance at the grow-op property the evening the search warrant was executed. Both officers confronted the appellant about Mr. X’s attendance. The appellant told Sgt. Paterson that Mr. X was there because he was an investor in the grow-op and he wanted to see whether his business partners had been cutting him out of the profits, as he suspected. Det. Carter testified that the appellant told her something to the effect that Mr. X was there to ensure the appellant was upholding his end of the deal.

[27] Several officers with experience handling informants testified that they would not bring an informant to the execution of a search warrant. The reasons given for this included the risk of the informant’s safety being jeopardized, if they were seen and suspicions arose about their informant status; the informant becoming a witness to the execution of the search warrant; and that to bring a civilian to the execution of a warrant would require authorization in the warrant.

[28] The appellant denied that he invited Mr. X to the scene and denied offering him half of the harvestable marijuana. The appellant testified that he called Mr. X before executing the warrant to tell him it would be done imminently. Mr. X then showed up at the property of his own accord. The appellant testified that he allowed Mr. X to walk through the property to make him feel invested in his role as an informant.

[29] The Crown also relied on evidence of a forensic accounting expert in support of the bribery count, Ms. Lisa Majeau Gordon. She reviewed the finances of the appellant’s family from January 1, 2011 to June 5, 2015. She found that the appellant’s family had unexplained income of just over $130,000 in that time period.[^5] During that time period, the family’s debts and liabilities decreased significantly, even though the family was spending approximately $16,000 more a year than its known income.[^6]

[30] The appellant testified that any unaccounted income was from: cash gifts from his family; the sale of a lawn mower and a motorcycle; collapsing his RRSPs; and cash income from his pool supply and installation business and a general contracting business that he did not report to the Canada Revenue Agency.

(ii) The breach of trust allegations

[31] The Crown alleged that the appellant had committed a breach of trust by accepting bribery payments from Mr. X, and also by engaging in other conduct that the Crown alleged was part of the corrupt relationship between the appellant and Mr. X. This other conduct is described below.

[32] In May 2009, the Niagara Regional Police Service executed a search warrant at the residence of Mr. X on Oak Street* in Hamilton. The appellant assisted in the execution of this search warrant. One of the items seized was a hydraulic press used to press cocaine into bricks. The hydraulic press was stored at the HPS GWEU office. In October 2010, the hydraulic press was the subject of an order that it be forfeited to the federal government.

[33] Mr. X testified that the appellant contacted him sometime in 2011, and informed him that the hydraulic press had to be removed from the GWEU office. The appellant told Mr. X that he could arrange for it to be sold to Mr. Z,** a drug trafficker known to Mr. X. Mr. X agreed. He testified that he received between $4,000 and $5,000 for the sale.

[34] Mr. Z testified the appellant contacted him in the summer or fall of 2011 and offered to sell him the hydraulic press. Mr. Z testified that he paid the appellant $5,000 cash for the hydraulic press, a kilogram of cutting agent, and the pressing plates that went with the press. He picked the items up from the appellant one night at the undercover detachment (i.e., the GWEU covert office).

[35] The appellant denied seeing the forfeiture order and denied selling the hydraulic press and other items to Mr. Z. The appellant testified that he was ordered by a superior officer to return the press to its rightful owner as it was no longer considered offence-related property. He testified that he contacted Mr. X and asked him to pick up the press. Mr. X told him he would send someone to pick up the press and subsequently sent Mr. Z to do so.

[36] Mr. Y testified that in 2012 he was arrested for drug-related offences and for driving a motor vehicle without a license, and that the appellant assisted him in obtaining bail. Text messages entered as evidence show that on April 5, 2012, the appellant texted Mr. X and advised that Mr. Y would be released that day with a condition that he provide the appellant with his cell phone number. Mr. Y also confirmed the condition in his testimony.

[37] On June 7, 2012, the appellant texted Mr. X asking for Mr. Y’s cell phone number. In the texts, the appellant explained that Mr. Y had been observed using a cell phone at the courthouse. Officers investigating Mr. Y’s cellphone use had questioned the appellant about whether Mr. Y had complied with his condition to give the appellant his phone number. In the texts, the appellant told Mr. X that he lied to the officers and said he had Mr. Y’s number. On June 8, 2012, the appellant texted Mr. X requesting Mr. Y’s phone number again, explaining that he needed it because “if I get challenged at work I can produce it and not get charged for lying.” Mr. X provided the appellant with Mr. Y’s cell number, by text, on June 12, 2012.

[38] The appellant testified at trial that, when he texted Mr. X asking for Mr. Y’s phone number, he already had Mr. Y’s number. He testified that he repeatedly asked Mr. X for Mr. Y’s phone number as a ruse, to give Mr. X the impression that he (the appellant) was assisting Mr. Y, and to encourage Mr. X to continue to provide him with more information.

[39] In the summer of 2012, Mr. X asked the appellant to arrange for chemical testing of a sample of a cutting agent that he was using in his drug trafficking business. Mr. X wanted the appellant to test the cutting agent because, at the time, he did not know the chemical name of the cutting agent. Mr. X was purchasing the cutting agent for $10,000 a kilogram from his drug suppliers, but he suspected that he could acquire it in bulk at a cheaper price, if he knew its chemical makeup. Mr. X testified that he paid the appellant between $10,000-$20,000 in cash after the appellant gave him the test result. The test result showed the cutting agent to be Phenacetin. Mr. X testified that based on the test result, he began purchasing Phenacetin from a different supplier for approximately $5,000 for a 25-kilogram barrel and making “a lot more money”.

[40] Documents from the lab that did the testing, in August 2012, were filed at trial showing the fee the appellant paid and the test result.

[41] The appellant was suspended at the time he arranged the testing of the cutting agent for Mr. X.

[42] The appellant admitted to testing the cutting agent, but denied receiving payment. The appellant explained that he tested the cutting agent because he believed that doing so would help him acquire a warrant under the Controlled Drugs and Substances Act, S.C. 1996, c. 19, (“CDSA”), in relation to Mr. X’s uncle, which the appellant believed would help him intercept the importation of a large quantity of cocaine into Hamilton. The appellant testified that shortly after he was suspended in July of 2012, Mr. X contacted him to tell him that his uncle was going on vacation and would return with 100 kilograms of cocaine. The appellant asked Mr. X for a sample of the cutting agent his uncle was using, because if the appellant could confirm that the cutting agent was Phenacetin, he could use that information as grounds to acquire a CDSA search warrant.

[43] The appellant did not use the Health Canada lab usually used by police for drug testing; rather, he used a private lab, and paid just over $1,000 for the testing out of his own pocket. The appellant testified that he used a private lab and paid for the testing himself because it would take two to three months to do the testing at the Health Canada lab. He testified that he believed he would be reimbursed for the cost of the testing by the HPS when he returned to work after his suspension.

[44] The appellant did not share any of the information he allegedly received from Mr. X with respect to Mr. X’s uncle’s alleged cocaine trafficking with any other HPS officer. He also testified that he did not share the Phenacetin testing result with any other HPS officer. The appellant testified that he took no further steps to acquire the CDSA search warrant because Mr. X told him that his uncle had returned from vacation without cocaine.

[45] In 2015, Mr. X’s telephone was tapped by the Toronto Police Service (the “TPS”) pursuant to judicial authorization as part of “Project Pharaoh”, an investigation into drug trafficking. On May 24, 2015, Mr. X called the appellant after another drug dealer had told him about the disappearance of a two-kilogram package of cocaine from a car.[^7] In the intercepted conversation, Mr. X explained the situation to the appellant and asked whether it was possible for police to conduct a break and enter into a vehicle, seize drugs, and charge someone later. The appellant said, yes, it was possible. He explained to Mr. X how general warrants work. He said that it would have to be a big project and that general warrants are rare. He told Mr. X that in the five years he was with the GWEU at HPS no one used general warrants. He told Mr. X that it was highly unlikely that HPS executed a general warrant on the car and took the drugs, but that it might be part of a TPS project. The appellant said it was more likely that the driver stole the cocaine. He also told Mr. X that he would speak to his “buddies” and see if HPS was involved.

[46] Several officers with experience handling informants testified that they would not provide information about police investigative techniques to an informant because it is contrary to police policy, it could compromise the integrity of ongoing police investigations, and it could compromise the safety of officers and informants.

[47] The appellant did not deny that the conversation with Mr. X about HPS and TPS practice regarding general warrants occurred. He testified that he felt it would be suspicious and that Mr. X would conclude that the police had been involved if he refused to answer. The appellant testified that he had no knowledge of whether the police were involved in the disappearance of the cocaine from the vehicle, but wanted to steer Mr. X away from concluding that the police were involved. The appellant also testified that the information he shared with Mr. X about police investigations using general warrants was public knowledge.

[48] Mr. X and Mr. Y both testified that the appellant repeatedly assisted them in relation to traffic stops. The Crown relied on one instance in August 2012, when Mr. X was stopped while driving with unauthorized licence plates and a suspended licence. Mr. X testified that he told the officer who stopped him, Peel Regional Police Services Officer Matthew Page, that he was an informant and provided the phone number for his “handler” – the appellant. Mr. X was subsequently let off without a ticket.

[49] Officer Page testified that the person he spoke to after stopping Mr. X told him to exercise his discretion as he saw fit, but that he was encouraged to let Mr. X off for the Highway Traffic Act offences.

[50] The appellant did not deny having a phone call with Officer Page, but said he would not have told an officer not to investigate. He said his practice was to tell other officers it was their call what to do. In his experience, junior officers often did not charge confidential informants with minor infractions because they did not want to mess up large investigations. He also testified that he would assist informants with traffic tickets in exchange for useful information.

[51] The Crown also alleged that the appellant disclosed the identity of two confidential informants to Mr. X, including the informant for the August 2011 Maple Street search warrant, and that he had informed Mr. X about ongoing undercover investigations against him. The appellant denied ever doing so.

(iii) The attempt to obstruct justice allegations

[52] The Crown relied on some of the allegations underlying the breach of trust charges to argue that the appellant also attempted to obstruct justice. The Crown alleged that the appellant attempted to obstruct justice by telling Mr. X how general warrants worked and about HPS and TPS practice in relation to general warrants; by lying about having Mr. Y’s cell phone number as required by Mr. Y’s release conditions; and by preventing Officer Page from investigating Mr. X.

[53] The Crown also alleged that the appellant attempted to obstruct justice by telling Mr. X that the RCMP were following him and that he may be the subject of a wiretap investigation. Mr. X testified that, as a result of receiving this information from the appellant, Mr. X got rid of his cell phones and cleared drugs and firearms out of his residence and his parents’ residence. The residences were subsequently the subject of search warrants. This allegation was primarily based on evidence from Mr. X, but was corroborated in part by the testimony of Sgt. Jennifer Lafleur, an HPS officer who was seconded to the RCMP in 2011 to act as an undercover operator in an RCMP investigation into cocaine trafficking in Hamilton. Sergeant Lafleur was involved in an aborted undercover drug purchase involving Mr. X. Mr. X testified that it was the day after this aborted transaction that the appellant phoned him, advised that the buyers were RCMP, and provided him information about the RCMP investigation.

[54] The appellant denied telling Mr. X about an ongoing RCMP investigation.

(iv) The cocaine trafficking allegations

[55] This count was based on two bodies of evidence. The first was the appellant testing the cutting agent sample for Mr. X, described above. In addition, Mr. X testified that the appellant told him to conduct his trafficking business on weekends as no GWEU officers worked those days unless they were engaged in an active investigation. The appellant denied telling Mr. X this, and pointed to text messages between himself and Mr. X in which the appellant stated that he (a member of the GWEU) was working on the weekend.

Grounds of appeal

[56] The appellant raises the following grounds of appeal against conviction:

1. The trial judge erred in his instruction to the jury on the principles from R. v. W.(D.);

2. The trial judge erred in permitting the Crown to lead evidence that the appellant disclosed the names of two confidential informants to Mr. X, and further erred in instructing the jury that they could rely on this evidence as a basis for conviction on the breach of trust count;

3. The appellant was prejudiced by late disclosure;

4. The trial judge erred in misstating, mischaracterizing, and omitting evidence in his instructions to the jury in a manner that was prejudicial to the appellant; and,

5. The appellant was prejudiced by errors or misleading propositions in the Crown’s closing address that were not corrected by the trial judge.

[57] At the outset of the appeal hearing, the appellant abandoned a ground of appeal alleging a reasonable apprehension of bias on the part of the trial judge. He also abandoned a ground of appeal relating to informer privilege, which was addressed in separate factums filed under seal pursuant to an order of the case management judge in this court.

[58] The appellant also raises two grounds of appeal against sentence:

1. The sentence imposed was demonstrably unfit; and,

2. The trial judge erred in imposing a fine in lieu of forfeiture.

Analysis

B. THE FRESH EVIDENCE APPLICATION

[59] Before turning to the merits of the appeal, I address the appellant’s application to adduce fresh evidence. Some of the proposed fresh evidence relates to the ground of appeal alleging reasonable apprehension of bias on the part of the trial judge. As that ground was abandoned, the fresh evidence related only to that ground is no longer relevant. For this reason, I would not admit the affidavit of Michelle Barr.

[60] However, some of the proposed fresh evidence is relevant to other grounds of appeal and the Crown does not contest its admissibility. In particular, the Crown does not oppose the admissibility of the affidavit of a legal assistant at the firm of counsel for the appellant, Rachelle Bennett. Ms. Bennett’s affidavit relates to the late disclosure of two sets of notes of the lead investigator. The Crown also does not oppose the admission of extracts of the audio recordings of the trial.

[61] I would admit the affidavit of Ms. Bennett and the audio recording extracts. Ms. Bennett’s affidavit is relevant to the disclosure ground of appeal. The appellant relies on some of the audio recording extracts in his sentence appeal. These portions of the fresh evidence are admissible for their relevance to assessing the fairness of the trial process, pursuant to the principles enunciated in R. v. Widdifield (1995), 1995 CanLII 3505 (ON CA), 25 O.R. (3d) 161 (C.A.). I discuss these aspects of the fresh evidence further in the analysis of the ground of appeal relating to disclosure and the sentence appeal.

C. THE CONVICTION APPEAL

(1) The W.(D.) instruction was sufficient

[62] The appellant submits that the trial judge erred in modifying the first two branches of the W.(D.) instruction with the phrase “to the extent that the accused’s evidence affords him a defence”. The appellant argues that this modification to the instruction improperly qualified the use the jury could make of the appellant’s evidence. The appellant argues that there was no basis to modify the W.(D.) instruction in this case, and that the modification would have misled and confused the jury.

[63] For reasons I explain below, I would reject this ground of appeal. While it would have been preferable if the trial judge had not modified the primary instruction on how the reasonable doubt standard applies to issues of credibility, the jury instructions read as a whole sufficiently explained to the jury the principle that if the appellant’s evidence was believed or left the jury with a reasonable doubt, he was entitled to an acquittal. In particular, when the trial judge instructed the jury on the elements of the offences and the specific factual allegations the Crown relied on to prove each count, he repeatedly told the jury that if they believed the appellant’s evidence or were left in a reasonable doubt by it, they must find him not guilty of that allegation. This was, in substance, a repeated summary version of the principles from W.(D.).

[64] The trial judge also clarified for the jury the one area where he qualified the principles from W.(D). – the appellant’s evidence as it related to the actus reus for breach of trust in relation to the intercepted conversation where the appellant told Mr. X about HPS and TPS practices with respect to general warrants. There was no error in that portion of the instruction, and it was clear that it was limited to the actus reus for breach of trust in relation to that particular allegation. When the trial judge instructed the jury on the mens rea for breach of trust, he correctly told them that if they believed the appellant’s evidence or were left in a reasonable doubt by it, they must acquit him – without qualification.

(i) Principles applicable to appellate review of jury instructions

[65] An appellate court must take a functional approach to reviewing a jury charge, by examining the alleged errors in the context of the evidence, the entire charge, and the trial as a whole. What matters is whether the jury is given a functional understanding of its task and the issues it is required to decide: R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at paras. 32-41 and 62; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 8-9; R. v. Abdullahi, 2023 SCC 19, at paras. 35-36, 40-41 and 53-56; R. v. Badgerow, 2019 ONCA 374; 146 O.R. (3d) 35, at paras. 17-21.

(ii) The impugned instruction

[66] The heart of the instruction the appellant objects to is as follows:

… by virtue of the presumption of innocence and the burden of proof, reaching a verdict on each count is not simply a question of deciding which version of events you prefer. Rather, you must examine each count from the following three perspectives.

First, to the extent that the accused’s evidence affords him a defence to that count you are then considering, if you believe his evidence, you must acquit him of that charge.

Second, to the extent that his evidence affords him a defence to the count, even if you do not believe him, but you are left [with] a reasonable doubt that what he says might be true, you must, once again, acquit him of the charge you are then considering. I use the phrase, “the extent to which his evidence affords him a defence”, advisedly because some of the accused’s evidence, even if you accept it, does not necessarily provide him with a defence to some of the offences with which he stands charged. And I will explain that more fully when I come to discuss the five offences charged on this indictment.

Third, even if you do not believe the accused and you are not left with a reasonable doubt that what he says is true, you may not convict the accused of the offence you are then considering, unless the balance of the evidence that you do accept convinces you beyond a reasonable doubt that he is guilty of that offence. [Emphasis added.]

(iii) This court’s decision in R. v. Ibrahim

[67] This court’s decision in R. v. Ibrahim, 2019 ONCA 631, 147 O.R. (3d) 272, is the leading authority on the modification of the W.(D.) instruction in a charge to the jury. It is helpful to review its holding.

[68] The appellant in Ibrahim was charged with second degree murder in relation to an alleged road rage incident. He was convicted of manslaughter.

[69] The issue on appeal related to the instructions to the jury on the principles from W.(D.) as they applied to the included offence of manslaughter. Because of the modified objective nature of the mens rea for dangerous driving (which was one of the unlawful acts alleged as the basis for liability for manslaughter), the trial judge modified the W.(D.) instruction. The modification included telling the jury that if they believed or were left with a reasonable doubt about the accused’s explanation in his evidence, it did not necessarily mean he was not guilty of dangerous driving. The trial judge then went on to explain the modified objective assessment of the mens rea for dangerous driving.

[70] This court held that the trial judge erred in the manner in which he modified the W.(D.) instruction, and ordered a new trial on manslaughter. The court held that the trial judge was correct that the “classic” W.(D.) instruction could not be given because of the modified objective nature of the mens rea for dangerous driving. However, the court held that the appellant’s evidence still had exculpatory potential on the elements of dangerous driving. The trial judge’s instruction “improperly neutralized” this exculpatory potential “by failing to explain how the appellant’s evidence could raise a reasonable doubt”: at paras. 8, 33, 37-49 and 59-60.

[71] The bottom line of the court’s decision in Ibrahim is that the instructions must convey to the jury that they must consider whether, based on the whole of the evidence, including the testimony of the accused, they are left with a reasonable doubt, and also that, whether an accused’s testimony is accepted as true or not, it may be capable of raising a reasonable doubt: Ibrahim, at paras. 36-37, 49 and 65.

(iv) Analysis

[72] Before explaining why, in my view, the instructions to the jury on the principles from W.(D.) in this case were sufficient, I want to emphasize that trial judges should exercise caution and restraint in departing from the core principles of W.(D.). In referring to the “core principles”, I am not speaking about changes to wording. I recognize that the W.(D.) formulation is not a magic incantation. But adding to the W.(D.) formulation that in a particular situation, even if the accused’s evidence is believed or raises a reasonable doubt, it may not “afford him a defence” is more than an issue of wording.

[73] This court recognized in Ibrahim that in some circumstances it is appropriate for trial judges to modify the W.(D.) instruction: Ibrahim, at paras. 37-49; see also R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at paras. 10-13. But departures from the core principles of W.(D.) should not be routine. Whatever its limits, the classic W.(D.) formulation works in the vast majority of cases. It has the benefit of simplicity and avoids introducing undue complexity into jury instructions. The leading model jury instructions provide helpful guidance.[^8]

[74] In this case, it would have been preferable if the trial judge had not modified the primary instruction on how the reasonable doubt standard applies to issues of credibility. It is clear from the pre-charge conference and the jury instructions that the impetus for the trial judge modifying the W.(D.) instruction related to a specific act the Crown relied on for the actus reus for the breach of trust count. As I explain further below, his concern was in relation to the conversation caught on the TPS wiretap where the appellant told Mr. X about general warrants and the practices of the TPS and HPS regarding their use. The trial judge’s concern about this aspect of the actus reus for breach of trust would have been better addressed only in relation to that count. However, the jury instructions read as a whole sufficiently explained to the jury the principle that if the appellant’s evidence was believed or left the jury with a reasonable doubt, he was entitled to an acquittal. In particular, the instructions made clear that if the jury believed or had a reasonable doubt about the appellant’s evidence that he did not have a corrupt intent, he was entitled to an acquittal because the Crown would have failed to prove the subjective intent required for all of the offences charged.

[75] There is no question that the principles from W.(D.) in relation to how the reasonable doubt standard applies to assessing issues of credibility were engaged in this trial. The appellant testified. He denied accepting bribe money from Mr. X. Regarding the other specific factual allegations relied on by the Crown, the appellant denied some of them. He admitted others, but denied that they were committed with a corrupt intent. The crux of the appellant’s evidence was that Mr. X was a confidential informant and that his interactions with Mr. X were done to foster a legitimate police-informant relationship and not with a corrupt intent.

[76] In light of the appellant’s exculpatory evidence, the trial judge was required to instruct the jury on the fundamental principles of the interaction between the presumption of innocence, the Crown’s burden of proof beyond a reasonable doubt, and how the reasonable doubt standard applies to contested issues of credibility.

[77] In my view, when the instructions are read as a whole, they make these concepts clear. The jury would have understood that assessing credibility in the face of conflicting testimonial accounts is not a credibility contest; that the jury must consider whether the accused’s evidence, considered in the context of the evidence as a whole, leaves them with a reasonable doubt as to his guilt; and that the burden never shifts from the Crown to prove each element of the offences charged beyond a reasonable doubt.

[78] The trial judge instructed the jury on the presumption of innocence. He instructed the jury that the Crown bears the burden of proof beyond a reasonable doubt. He instructed the jury that the burden of proof never shifts from the Crown and that the appellant need not present evidence or prove anything. He explained to the jury the meaning of reasonable doubt. These instructions were error free.

[79] Immediately prior to the impugned instruction, the trial judge highlighted the stark contradiction between the accounts of the Crown witnesses and the evidence of the appellant, and instructed the jury that because of the presumption of innocence and the burden of proof, it was not simply a question of deciding which version of events they preferred:

Now, it is an understatement to say that the accounts of some of the Crown witnesses, in particular, [Mr. X, Mr. Y], and [Mr. Z], differ starkly from the accused’s account of the same events. Having said that, by virtue of the presumption of innocence and the burden of proof, reaching a verdict on each count is not simply a question of deciding which version of events you prefer.

[80] Thus, the trial judge clearly instructed the jury on the proposition that assessing credibility of conflicting testimonial accounts is not a credibility contest. This is a fundamental component of the interrelationship between the presumption of innocence, the Crown’s burden of proof beyond a reasonable doubt, and the jury’s task of assessing credibility: W.(D.), at p. 757; R. v. Challice (1979), 1979 CanLII 2969 (ON CA), 45 C.C.C.(2d) 546 (Ont. C.A.), at pp. 555-56.

[81] Further, when the trial judge reviewed for the jury the elements of the offences charged and the factual allegations that the Crown relied on for each count, he repeatedly reiterated that if the jury believed the appellant’s evidence or was left in a reasonable doubt by it, they must find him not guilty of that allegation. The trial judge also repeatedly emphasized that the Crown was required to prove the appellant’s corrupt intent (subjective intent). I will not enumerate every instance of this. There were many, and the Crown listed them in an appendix to its factum. However, I quote several examples below.

[82] In reading these examples, it is important to bear in mind as context that when the trial judge instructed the jury on the meaning of proof beyond a reasonable doubt, he told them that, in the interest of brevity, at times in the instructions he would use the words “proven” or “satisfied” and that the jury should understand that to mean “satisfied or proven beyond a reasonable doubt.” He also told them that the fact that he chose to abbreviate the expression did not make the concept of proof beyond a reasonable doubt “any less important.”

[83] Turning to the specific examples:

• After explaining the elements of bribery (count #1), the trial judge explained as part of the instruction on the second element (whether the appellant corruptly agreed to accept money from Mr. X): “If you are not satisfied beyond a reasonable doubt that the accused corruptly agreed to accept money from [Mr. X], you must return a verdict of not guilty on this count.”

• As part of the review of the appellant’s evidence in relation to the bribery count regarding whether he had a corrupt relationship with Mr. X, the trial judge instructed the jury:

To help you decide whether the relationship between the accused and [Mr. X] was corrupt, as the prosecution contends, or whether it simply reflected the sort of honest contact that a police officer might lawfully have with a CI, I am now going to discuss some of the specific assertions upon which the Crown relies in support of its contention that the accused was accepting bribes and some of the evidence that the defence contends disproves, or at least raises a reasonable doubt, respecting the Crown’s contention.

• After explaining the elements of attempting to obstruct justice (count #2), the trial judge instructed the jury as follows on the last element (whether the appellant intended to obstruct, pervert or defeat the court of justice):

To prove this element, the Crown must satisfy you that, when he did the specific act you are then considering, the accused actually intended, or meant, to obstruct justice. It is not enough that what he did accidentally or coincidentally had such a tendency. To be guilty of this offence, the accused must have known that what he was doing would tend to obstruct and must have intended his conduct to have that effect.

• In relation to the breach of trust count (count #3), after explaining the elements of the offence, on the last element (whether the appellant intended to use his public office for a purpose other than the public good – i.e., for a dishonest or corrupt purpose), the trial judge again emphasized the subjective intent required and the Crown’s burden of proof:

If you are not satisfied beyond a reasonable doubt that the accused intended to breach the trust reposed in him in connection with his official duties, that is to say, satisfied that he intended to use his office for a purpose other than the public good, or for a dishonest or corrupt purpose, you must return a verdict of not guilty on this count. If you are so satisfied, you must return a verdict of guilty.

• In the portion of the instructions on the count of trafficking cocaine (count #4) in relation to the allegation of having the cutting agent tested for Mr. X, the trial judge instructed the jury:

The accused says he got the substance tested as a preliminary step in a plan he had devised, by means of which he hoped to arrest [Mr. X’s] uncle, [name redacted]. If you believe the accused, or his evidence on this point leaves you with a reasonable doubt, you must give him the benefit of that doubt, in which case, his act of taking the substance to the lab will not be available to you as a basis on which to conclude that this element has been proven.

[84] In my view, these references, which were specific to the elements of the offences and to the evidence, brought home to the jury the correct application of the reasonable doubt standard to the central plank of the appellant’s defence – that he was entitled to be acquitted if the jury believed or had a reasonable doubt about his evidence denying some of the alleged acts and denying a corrupt intent for any of the alleged acts. The instructions brought home to the jury the core of W.(D.) – that assessing credibility in the face of conflicting testimonial accounts is not a credibility contest; that the jury must consider whether the accused’s evidence, considered in the context of the evidence as a whole, leaves them with a reasonable doubt as to his guilt; and that the burden never shifts from the Crown to prove each element of the offences charged beyond a reasonable doubt: Ibrahim, at paras. 36, 49; J.H.S., at paras. 8-9; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 23.

[85] In the portion of the jury instructions addressing the elements of the counts charged and the factual allegations the Crown relied on to prove them, the trial judge only qualified the W.(D.) instruction once. This instruction related to whether the intercepted conversation where the appellant told Mr. X about TPS and HPS practice regarding general warrants made out the actus reus for the breach of trust count. Recall that the breach of trust count was based on several factual allegations, any of which could have established the actus reus for the count.

[86] In addressing portions of the actus reus for breach of trust (whether the alleged act was a breach of trust and whether it was connected with the appellant’s duties of office as a police officer), the trial judge gave the jury a specific instruction in relation to the oath of office taken by the appellant as a police officer. That oath included an oath of secrecy – that the appellant not disclose any information obtained in the course of his duties, except as authorized or required by law. The trial judge first summarized the evidence about the conversation between the appellant and Mr. X about general warrants (including reading some of the transcript of the wiretap recording). He then drew a distinction between the existence of general warrants, which is not a secret and could be looked up in the Criminal Code, R.S.C. 1985, c. C-46, and how police use general warrants in day-to-day investigations, as well as how one police service uses them compared to another police service, which is not something that can simply be looked up. He then instructed the jury:

…speaking generally for a moment, it is no answer to an accusation that A has breached his oath of secrecy, that B, the person to whom A revealed what he had been sworn to keep secret, already knew what A divulged. This is one of those instances I alluded to when I was discussing how you should approach your consideration of the accused’s evidence and my use of the expression “to the extent to which the accused’s evidence affords him a defence.”

The accused took an oath of secrecy that obliged him not to disclose any information he obtained in the course of his duties as a police officer except as authorized or required by law. If he revealed to [Mr. X] something that he had sworn to keep secret, while it is for you to say, it would seem to be a breach of his oath and, by extension, arguably a breach of trust. [Emphasis added.]

[87] The appellant argues that this instruction constituted error and undermined the principles of W.(D.). In my view, the context was clear that the instruction was limited to the actus reus for breach of trust as it related to the allegation that the appellant breached his oath of secrecy in the conversation with Mr. X about general warrants. In this context, the instruction was not erroneous.

[88] The appellant also argues that in the initial impugned instruction (quoted at para. 66 above), the trial judge said he would explain more fully what he meant by saying “to the extent that the accused’s evidence affords him a defence”, but then failed to do so, leaving the jury with no assistance on how to apply and understand this caution.

[89] I would reject this argument. The appellant is incorrect that the trial judge did not return to this issue. As I have just outlined in paras. 85-87, the trial judge did return to the issue of what he meant by “to the extent the accused’s evidence affords him a defence” when he instructed the jury on the actus reus for the breach of trust count as it related to the intercepted conversation regarding general warrants.

[90] In the context I have just outlined, the jury would have understood that the only area where the trial judge instructed that the appellant’s evidence may not “afford him a defence” was the actus reus for breach of trust only as it related to the conversation with Mr. X where the appellant provided information about general warrants. That instruction was immediately followed by the instruction that if the appellant’s evidence about the conversation about general warrants was believed or left the jury in a reasonable doubt, it was exculpatory in relation to the mens rea element and they must acquit on that allegation. Thus, the trial judge directed the jury specifically to the one area where the appellant’s evidence was not exculpatory for a particular element of a particular offence on a particular allegation. He repeatedly told them that if they believed or were left in a reasonable doubt by the appellant’s denial of a corrupt intent in relation to a particular count, they must acquit.

[91] Further, experienced trial counsel for the appellant (not counsel on appeal) did not object to the instructions on the principles from W.(D.). Although a failure to object is not determinative of whether a jury instruction is sufficient, the absence of an objection by trial counsel supports the conclusion that, in the context of the evidence and issues at trial, the instruction was sufficient: Badgerow, at para. 19; R. v. Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, at para. 89.

[92] The appellant also argues that absence of an instruction that proof beyond a reasonable doubt is “closer to absolute certainty”, when combined with the modification of the W.(D.) instruction, rises to the level of reversible error, relying on R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242. The appellant acknowledges that a Starr instruction is not always required, but argues that the absence of a Starr instruction aggravates the modification of the W.(D.) instruction.

[93] I am not persuaded that the failure to give an instruction that proof beyond a reasonable doubt is “closer to absolute certainty” adds anything to the analysis in this appeal. The trial judge gave extensive instructions on the presumption of innocence, the Crown’s burden of proof beyond a reasonable doubt, and the meaning of proof beyond a reasonable doubt. The instructions that the trial judge gave to the jury on the meaning of proof beyond a reasonable doubt were in accordance with R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320. The fact that the trial judge chose not to include in the instruction that reasonable doubt is “closer to absolute certainty” does not, in the circumstances of this case, affect the sufficiency of the instructions on reasonable doubt and the assessment of credibility. He expressly instructed the jury that probable or likely guilt did not constitute proof beyond a reasonable doubt.

[94] This court’s decision in R. v. Anderson (2003), 2003 CanLII 31748 (ON CA), 179 C.C.C. (3d) 11 (Ont. C.A.), relied on by the appellant, is distinguishable. In Anderson, this court found that the instruction on reasonable doubt was deficient because it: failed to explain that the reasonable doubt standard is higher than a balance of probabilities; failed to explain that a reasonable doubt may arise from the lack of evidence; used language of being “sure” of guilt without a proper instruction on the meaning of reasonable doubt; and used language linking the idea of “a timid juror” to the concept of reasonable doubt, which implied that jurors who acquit are timid and avoiding their responsibilities, while jurors who convict are courageous: at paras. 34-39. None of those errors were present in the instruction on the meaning of reasonable doubt in this case.

[95] Finally, in oral submissions, counsel for the appellant contended that the facts relied on in the abandoned ground of appeal regarding reasonable apprehension of bias were relevant to assessing the sufficiency of the W.(D.) instruction – in effect, arguing that the instruction should be seen as the trial judge putting his thumb on the scale.

[96] I reject this argument for three reasons. First, having abandoned reasonable apprehension of bias as a ground of appeal, in my view it is not appropriate to feed pieces of it back into the assessment of the sufficiency of the jury instruction.

[97] Second, the sufficiency of a jury instruction is to be assessed objectively, with a view to whether it equipped the jury with the correct legal principles applicable to deciding the issues they were required to decide. Absent a showing sufficient to establish a reasonable apprehension of bias – a burden which the appellant chose to abandon – this type of argument has no relevance to assessing the sufficiency of a jury instruction.

[98] Third, I see no basis to read the W.(D.) instruction in this case as supporting a reasonable apprehension of bias on the part of the trial judge.

[99] As I have explained above, read as a whole, the jury instruction on the principles from W.(D.) gave the jury the tools they required to understand how the reasonable doubt standard applies to issues of credibility. In particular, the instructions made clear that if the jury believed or had a reasonable doubt about the appellant’s evidence that he did not have a corrupt intent in his interactions with Mr. X and his associates, they must find him not guilty, as the Crown would have failed to prove beyond a reasonable doubt the required subjective intent for each count. I would reject this ground of appeal.

(2) There was no error or unfairness in the trial judge allowing Mr. X to testify that the appellant disclosed the identity of two confidential informants to him

[100] The appellant argues that the trial judge erred by allowing the admission of evidence from Mr. X that the appellant disclosed the identities of two confidential informants to him, and by instructing the jury that they could rely on this evidence as a basis for conviction on the breach of trust count. He argues that it was impossible to challenge Mr. X’s evidence on this issue without breaching informer privilege. For example, the appellant argues that informer privilege prevented him from suggesting during cross-examination that Mr. X did not actually know the identities (i.e., testing his knowledge of the names of the informants) or suggesting that Mr. X learned the informants’ identities from someone other than the appellant. The appellant further argues that neither the limits on his ability to cross-examine Mr. X nor the dangers of relying on untested evidence were explained to the jury.

[101] The factual context for this argument is as follows. One of the allegations that the Crown relied on for the breach of trust count was that the appellant disclosed the identity of two confidential informants to Mr. X. The first alleged disclosure related to the informant for the Maple Street search warrant. Mr. X testified that he had been “bugging” the appellant to tell him who provided confidential information used to support the Maple Street warrant. Mr. X testified that the appellant disclosed to him the name of the confidential informant in relation to that search warrant. Mr. X also testified that on another occasion, the appellant told him that a person he was dealing drugs with worked as an informant for the HPS drug squad. The appellant advised Mr. X to stay away from this person.

[102] There is no dispute that Mr. X’s evidence that the appellant disclosed the identity of two confidential informants to him was relevant to the breach of trust count. However, the appellant argues that admission of this evidence was unfair because the limits imposed by informer privilege made it impossible to cross-examine Mr. X about the assertion that the appellant disclosed the identities of informants.

[103] At trial, the appellant objected to the admission of this evidence. During the pre-charge conference, the appellant again raised the concern that this evidence was immune to testing. The basis for the objection was the limits placed on the ability to cross-examine as a result of informer privilege.

[104] I am not persuaded that the admission of this evidence caused any unfairness to the appellant. Although informer privilege placed restrictions on the scope of cross-examination, the record does not support that it caused unfairness to the appellant or interfered with his right to make full answer and defence. I reach this conclusion for four reasons.

[105] First, restrictions on cross-examination imposed by informer privilege did not affect the admissibility of Mr. X’s evidence that the appellant disclosed the identities of two informants to him. The evidence was clearly relevant to the breach of trust count. It bore directly on the actus reus – whether the appellant disclosed information he was bound by his trust as a police officer to keep confidential. This was not peripheral evidence. Informer privilege is absolute (subject to the innocence at stake exception): R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R. 389, at para. 43; R. v. Liepert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281, at paras. 23-25. Short of the innocence at stake exception applying, restrictions on the ability to cross-examine imposed by informer privilege are an issue of weight, not admissibility: R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305, at para. 88; R. v. Thomas (1998), 1998 CanLII 14942 (ON SC), 124 C.C.C. (3d) 178 (Ont. S.C.), at para. 51; R. v. Cameron (2006), C.C.C. (3d) 481 (Ont. C.A.), at paras. 36-37.

[106] Second, the record does not support the submission that, absent the restrictions imposed by informer privilege, the appellant would have been in a position to cross-examine Mr. X to suggest that he did not know the names of the two informants. I focus in particular on the informant whose information supported the Maple Street warrant.

[107] During submissions on appeal, counsel for the appellant acknowledged that the name of the person Mr. X said the appellant identified as the informant for the Maple Street warrant was disclosed to the appellant prior to trial (although the name was not elicited at trial). Counsel also acknowledged (both at trial and on appeal) that the appellant knew the name of the actual informant for the Maple Street warrant. Indeed, the appellant was the affiant for the Maple Street warrant. Thus, if the names were different, the appellant knew that.

[108] The appellant was not without remedies if, as is now posited, Mr. X was wrong about who the informants were. As I have noted, the appellant knew, through disclosure and his own knowledge, whether Mr. X had the wrong name for the Maple Street warrant informant. If the name was wrong, this would be powerful – almost irrefutable – evidence that the appellant had not disclosed the name of the informant for the Maple Street warrant to Mr. X. It would be evidence that would bear directly on an element of the offence of breach of trust – whether the appellant breached the trust placed in him as a police officer by improperly disclosing privileged information. It is difficult to see how this would not form the basis for a viable innocence at stake application: Liepert, at para. 24; Thomas, at paras. 17-21. Yet no motion to lift informer privilege on the basis of the innocence at stake exception was brought by the appellant.

[109] Third, the appellant was still able to challenge the evidence of Mr. X through an attack on Mr. X’s credibility generally and through the appellant’s own evidence. As noted above, the appellant testified and denied that he disclosed the identity of informants to Mr. X. The appellant mounted a significant challenge to Mr. X’s credibility in cross-examination. The cross-examination of Mr. X lasted three days and sought to portray Mr. X as a drug-dealing career criminal, who falsely implicated the appellant in order to avoid being outed in the criminal underworld as an informant. I do not mean to imply that there was anything improper in counsel’s cross-examination of Mr. X; rather, the nature of the cross-examination shows that, despite the limitations imposed by informer privilege, the appellant still was able to challenge Mr. X’s credibility through cross-examination.

[110] Fourth, the trial judge appropriately instructed the jury on the need for caution in assessing the evidence of Mr. X. The trial judge gave the jury a strong Vetrovec instruction in relation to Mr. X. He told the jury that, because Mr. X was an admitted drug trafficker with a criminal record, he was a person “of dubious or unsavoury character”. He told the jury that they should “be wary” of Mr. X’s evidence and that they should look at his evidence “with great care and caution.” He also told the jury that it would be “dangerous” to rely on Mr. X’s evidence without independent confirmation, and that they should look for such confirmation before relying on his evidence. He also cautioned the jury in some detail on possible motives for Mr. X to give false evidence.

[111] As is appropriate for a Vetrovec instruction, the trial judge listed many aspects of Mr. X’s evidence that were confirmed by other sources. However, Mr. X’s evidence that the appellant had disclosed the identities of confidential informers was not included in the trial judge’s summary of where there was confirmatory evidence (as there was no confirmatory evidence led on this allegation). The instruction on the need to look for confirmation was supported by the fact that, in his review of Mr. X’s evidence regarding the disclosure of the identities of confidential informants, the trial judge told the jury that there was no direct evidence of the identities of the two people Mr. X said the appellant named to him or whether those people were actually confidential informants.

[112] While it may have been preferable if the trial judge had specifically instructed the jury that they should also consider the limits on cross-examination imposed by informer privilege in assessing the weight to be given to Mr. X’s evidence regarding the disclosure of names of informants, the instructions as they related to assessing Mr. X’s credibility in general and on the issue of disclosure of informants in particular were sufficient to impress on the jury the need to approach Mr. X’s evidence with caution.

[113] In the circumstances, I am not persuaded that allowing evidence from Mr. X that the appellant disclosed to him the names of two confidential informants caused unfairness or a miscarriage of justice.

(3) The appellant has not shown that his right to full answer and defence was impacted by late disclosure

[114] The appellant argues that late disclosure was an ongoing issue during the trial and was prejudicial to him. The appellant raised a number of instances of late disclosure in his factum that, he argued, cumulatively caused prejudice to the defence. However, in oral submissions the primary focus of argument was the late disclosure of two volumes of notes of Sgt. Thibodeau, the lead investigator.

[115] The right to disclosure is a component of the right to make full answer and defence. However, where an appellant raises non-disclosure or late-disclosure as a ground of appeal, the fact of late disclosure, without more, does not entitle the appellant to a remedy. The appellant must establish on a balance of probabilities that the late disclosure impacted their right to make full answer and defence. To discharge this burden, the appellant must show that there is a reasonable possibility that the non-disclosed or late-disclosed information affected the outcome at trial or the fairness of the trial process. The reasonable possibility must be grounded in reasonably possible uses of the non-disclosed or late-disclosed information or reasonably possible avenues of investigation that were foreclosed due to the non-disclosure or late-disclosure: R. v. Barra, 2021 ONCA 568, 157 O.R. (3d) 196, at paras. 138-144; R. v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244, at paras. 31-34.

[116] Two volumes of Sgt. Thibodeau’s notes were disclosed during the examination-in-chief of Mr. Y. This was shortly prior to the close of the Crown’s case. The appellant now accepts that the late disclosure was due to oversight by Crown counsel at trial (not counsel on appeal). Crown counsel mistakenly believed that the late-disclosed notes had already been disclosed to the appellant in relation to another investigation.

[117] It is not disputed that portions of Sgt. Thibodeau’s notes were disclosed late. In that sense, the Crown failed to comply with its disclosure obligations under R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326. What is in issue is whether the late disclosure had any impact on the appellant’s right to make full answer and defence.

[118] In his factum, the appellant asserted a loss of opportunity to cross-examine due to the late disclosure of a portion of Sgt. Thibodeau’s notes. However, the factum contains only a bald assertion of lost opportunity to cross-examine. Armed now with the full notes and the trial record, the appellant’s factum fails to identify any particular areas of cross-examination or investigation that the defence could have pursued at trial but was unable to do so because of the late disclosure.

[119] In oral submissions the appellant sought to remedy this failure to identify any areas of cross-examination or investigation lost due to the late disclosure. The alleged lost opportunity relied on by the appellant refers to a portion of Sgt. Thibodeau’s notes that are among the material sealed by the case management judge to protect confidential informer privilege. As a result, portions of the public version of these reasons are redacted to protect informer privilege.

[120] I am not persuaded that the appellant lost an opportunity to cross-examine or investigate due to the late disclosure of two volumes of the notes of Sgt. Thibodeau. In general terms, my reasons for this conclusion are twofold: (i) the information at issue was already known to the appellant and defence counsel; and (ii) in any event, the information at issue was not ultimately relevant to any material issue at trial. The details of my reasons for this conclusion are redacted in the public version of these reasons in order to protect informer privilege.

[121] [paragraphs 121-124 privileged[^9]]

[125] The appellant raised several other examples of late disclosure in his factum, but did not pursue them in oral submissions. The appellant has failed to establish a reasonable possibility that the late disclosure affected the outcome at trial or the fairness of the trial process. As I have noted above, while the appellant’s factum enumerates various instances of late disclosure, it does not identify any prejudice arising from any of the instances of late disclosure other than the general assertion that, cumulatively, the instances of late disclosure left the appellant in the position of crafting his defence “on the fly”.

[126] I am not satisfied that the record supports this assertion. Nor am I satisfied that the appellant has demonstrated any prejudice from the instances of late disclosure. In each instance that the appellant complains of, the trial judge either provided defence counsel with an opportunity to review and digest the new disclosure or prohibited the Crown from leading the evidence. I outline three instances as examples.

[127] First, although the trial judge initially denied the request from the appellant’s trial counsel for time to review the late-disclosed notes of Sgt. Thibodeau before cross-examining Mr. Y, ultimately, the trial judge did agree to the request. Apart from the late-disclosed notes of Sgt. Thibodeau, there were several occasions where short extracts from various officers’ notes were disclosed late. Where counsel for the appellant requested additional time to review the disclosure prior to cross-examination, the trial judge granted that request – in one case a break of several days. In the cases where a break was given so that counsel could review the disclosure, counsel did not object after the break or say he had been unable to review and prepare for cross-examination.

[128] Second, the appellant points to the late disclosure of the HPS Informant Policy. The Informant Policy was introduced through the evidence of Sgt. Moore on March 20, 2018. Sergeant Moore’s statement, which was disclosed to the defence in a timely way, referenced the Informant Policy extensively, but did not include a copy of the Policy. On Friday, March 16, 2018, counsel for the appellant requested a copy of the Informant Policy for the first time. The Crown disclosed the Policy on Monday, March 19, 2018. After Sgt. Moore’s examination-in-chief on March 20, 2018, counsel for the appellant requested the remainder of the day to incorporate the Informant Policy into his cross-examination. The trial judge agreed. I fail to see any prejudice in these circumstances.

[129] Third, when the Crown sought to qualify an officer (Det. John Margetson) to give expert opinion on the production, sale, and use of marijuana and cocaine, it also sought to qualify him to give opinion evidence on “the cultivation, development, use, and management of police informants in drug investigations”. The latter subject-matter had not been included in disclosure about the expert’s evidence or in his CV. After defence objection, the trial judge ordered the Crown to provide a will-say of the officer’s anticipated opinion evidence in relation to management of informants. Ultimately, the trial judge did not permit the officer to give expert opinion evidence on the issue of informant management.

[130] Although I am satisfied that the appellant was not prejudiced by the various instances of late disclosure, Crown counsel at trial should have been more careful to ensure that disclosure was complete. I appreciate that there was some complexity to the investigation. It also appears that disclosure was relatively voluminous. But Crown counsel are responsible to ensure that timely and complete disclosure in accordance with Stinchcombe is provided.

[131] I would reject this ground of appeal.

(4) The trial judge summarized the evidence and the appellant’s position to the jury fairly

[132] The appellant argues that the trial judge made errors in his review of the evidence or mischaracterized evidence in the jury instructions. He argues that the cumulative effect of the errors requires a new trial. The appellant did not press this argument in oral submissions but I will address it, nonetheless.

[133] As outlined above, in reviewing jury instructions, an appellate court must consider the instructions as a whole and from a functional perspective. In a jury trial, the presiding judge must review the substantial parts of the evidence and relate the evidence to the issues and the theory of the defence so that the jury appreciates the value and effect of the evidence and how the law applies to the facts as found by the jury: R. v. Azoulay, 1952 CanLII 4 (SCC), [1952] 2 S.C.R. 495, at pp. 497-98.

[134] A misstatement or omission of evidence in a jury instruction does not always amount to reviewable error. It may be reviewable error where a misstatement or omission relates to an important piece of evidence bearing on a determinative issue at trial or where an omission relates to a piece of evidence that is the sole support for a defence. If there are multiple misstatements or omissions, the cumulative effect must be considered: R. v. Bucik, 2011 ONCA 546, 274 C.C.C. (3d) 421, at para. 23; R. v. Srun, 2019 ONCA 453, 146 O.R. (3d) 307, at paras. 153-55.

[135] In this case, the trial judge instructed the jury, as is usual, that they are the triers of fact and that, while he would review the evidence and relate it to the issues before the jury, he may overlook evidence that they considered important or mention evidence that they considered insignificant. He told them that the fact that he mentioned certain evidence did not mean they must consider it to be important, and that the fact that he failed to mention certain evidence did not mean it was unimportant. He made clear to the jury that, as the triers of fact, it was up to them to say what evidence was important or not in their deliberations. He also instructed the jury that it was their recollection of the evidence that mattered and that they must make their decisions based on their memory of the evidence and not based on counsel or the trial judge’s recollection.

[136] I will not address individually each misstatement, omission, and mischaracterization alleged by the appellant. I have reviewed them all and the Crown’s response to each allegation. Overall, I am satisfied that the trial judge complied with his obligations as set out in Azoulay. Most of the alleged misstatements and omissions are not borne out on a review of the jury instructions. The few minor misstatements or omissions were not material. They would have had no impact on the jury’s understanding of the issues or the law they were to apply to their factual findings or to the fairness of the trial. As noted above, the trial judge made clear to the jury that it was their recollection of the evidence that mattered.

[137] This was a lengthy trial. Although each of the counts involved multiple factual allegations, the central issues were not complex. Was the jury persuaded beyond a reasonable doubt that the appellant engaged in the alleged acts that he denied (for example, accepting bribe money from Mr. X)? And, to the extent that they found he engaged in certain acts, was the jury persuaded beyond a reasonable doubt that the appellant did the acts with a corrupt intention, or were they left in a reasonable doubt by his evidence that his actions were part of his management of Mr. X as an informer? The jury instructions reviewed the substantial parts of the evidence that bore on these issues as they related to each factual allegation and the elements of each offence. The instructions made clear the theory of the defence, related the evidence to the issues the jury had to decide, and made clear the law to be applied to the facts as the jury found them.

[138] I would reject this ground of appeal.

(5) There was no unfairness caused by the Crown’s closing address

[139] The appellant argues that the Crown’s closing address, when combined with other grounds of appeal, caused unfairness in the trial. The appellant focuses on alleged misstatements of the evidence in Crown counsel’s closing address, providing a list of nine alleged misstatements. The appellant argues that, combined with other grounds of appeal, the misstatements caused unfairness to him and require a new trial.

[140] As with the ground in relation to the trial judge’s review of the evidence and the defence position, the appellant did not press this argument in oral submissions. Further, as noted above, the ground was argued as creating unfairness “when combined with the other grounds of appeal”. As is clear from these reasons, I am not persuaded by the other grounds of appeal against conviction.

[141] It is not necessary to address the full range of the Crown’s obligations in a closing address in a jury trial. For purposes of this ground, it is sufficient to state that Crown counsel must not misstate the trial evidence: R. v. Boudreau, 2012 ONCA 830, at para. 16; R. v. Clyke, 2021 ONCA 810, 158 O.R. (3d) 641, at para. 34; R. v. Shaw, 2024 ONCA 119, at para. 91.

[142] To succeed on this ground, an appellant must establish that Crown counsel misstated evidence and that the misstatement(s) caused a substantial wrong or miscarriage of justice: Clyke, at paras. 33-37. While not determinative, the absence of an objection from defence counsel may indicate that the content of the Crown’s closing address was not viewed as improper at the time and/or that the comments were not so prejudicial as to render the trial unfair: Clyke, at paras. 43-44.

[143] Defence counsel at trial raised no objection to the Crown’s closing address. As noted above, the trial judge instructed the jury that it was their recollection of the evidence that mattered, not that of counsel or the trial judge.

[144] I have reviewed the various points which the appellant alleges are misstatements of the evidence and the Crown’s response. For most of the points raised, a review of the transcript does not support the submission that the Crown misstated the evidence. To the extent that there were a few minor misstatements by Crown counsel, I am not persuaded that they rise to the level of impacting trial fairness or causing a miscarriage of justice. In each case where there was a minor misstatement in the Crown’s closing, the trial judge addressed the relevant evidence either in his review of the evidence or in summarizing the defence position.

[145] I would reject this ground of appeal.

Conclusion on conviction appeal

[146] For these reasons, I am not persuaded by any of the grounds raised in the appeal against the convictions. I would dismiss the conviction appeal.

D. THE SENTENCE APPEAL

[147] The trial judge imposed a total sentence of 13-years imprisonment on the appellant (less a total of approximately 6 months as credit for pre-sentence custody and restrictions on liberty while on bail). The trial judge also imposed a number of ancillary orders, including an order for a fine in lieu of forfeiture. The appellant appeals the sentence of imprisonment and the fine in lieu of forfeiture.

(1) The sentence imposed by the trial judge is not demonstrably unfit

[148] The appellant argues that the 13-year sentence imposed by the trial judge is excessive and demonstrably unfit. He argues that a fit global sentence would be 5-years imprisonment. The arguments raised by the appellant in relation to sentence fall into three broad categories: (i) that the court should consider comments by the trial judge in the sentencing hearing and at other points in the trial as relevant to assessing the fitness of the sentence imposed; (ii) that the trial judge improperly discounted mitigating evidence in a manner that constituted an error in principle; and (iii) that the sentence is unfit, as it is excessive when considering all of the circumstances and sentences imposed in similar cases.

[149] In considering each of these arguments, I bear in mind the standard of review. Sentencing decisions are entitled to substantial deference. An appellate court will only disturb a sentence where: (i) the sentencing judge made an error in principle, failed to consider a relevant factor, or erroneously considered an aggravating or mitigating factor, and the error had an impact on the sentence; or (ii) where the sentence is demonstrably unfit: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 39-41, 44 and 51.

(i) Nothing said by the trial judge during the sentencing hearing or the trial undermines the fitness of the sentence imposed or the fairness of the sentencing hearing

[150] In his factum, which was filed before the Supreme Court of Canada’s decision in R. v. Nahanee, 2022 SCC 37, 418 C.C.C. (3d) 417, the appellant argued that the trial judge erred in exceeding the Crown’s position on sentence where the Crown’s position was not contrary to the public interest, relying on the principles applicable to joint submissions from R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204.

[151] In oral submissions, in light of Nahanee’s clarification that different principles apply to exceeding a joint submission than apply when exceeding the Crown position on an “open” sentencing, the appellant did not pursue the argument that the trial judge erred in imposing a sentence that exceeded the Crown’s position as a freestanding ground of appeal. However, he argued that comments made by the trial judge when he gave notice that he was considering exceeding the Crown’s position were relevant to assessing the fitness of the sentence imposed. I am not persuaded that these comments by the trial judge, or others that I refer to below, have any impact on the fitness of the sentence imposed.

[152] As noted above, the trial judge imposed a 13-year sentence. The Crown at trial sought a sentence of 10-years imprisonment, and argued that the appropriate range fell between 8 and 15 years. After hearing submissions on sentence from the Crown and the appellant, the trial judge gave notice to the parties that he was considering imposing a sentence above that sought by the Crown, and offered the parties the opportunity to make further submissions.

[153] In providing notice to the parties, the trial judge explained the specific points that led him to have concerns that the sentence sought by the Crown was too low. These concerns included: (i) that the offences were so serious, the breaches of trust “so egregious and repugnant”, and the amount of money involved so large that they called out for a harsh denunciatory sentence; (ii) that the manner in which the Crown proposed that the sentences on some counts run consecutively or concurrently to address the totality principle would result in inappropriate sentences on some counts; and (iii) whether consideration should be given to increasing the period before the appellant would be eligible for parole, pursuant to s. 743.6 of the Criminal Code, in order to reflect the appropriate level of denunciation. The parties returned several days later and made additional sentencing submissions.

[154] I see no unfairness or error in how the trial judge approached exceeding the Crown’s position on sentence. The trial judge appropriately gave notice that he was considering exceeding the Crown’s position on sentence, explained the reasons that he was considering doing so, and offered the parties an opportunity to make further submissions on sentence. The notice given was consistent with the Supreme Court’s later decision in Nahanee, and with the earlier Ontario precedents of R. v. Hagen, 2011 ONCA 749, R. v. Gamble, 2017 ONCA 610, and R. v. R.O., 2017 ONCA 987, which the trial judge referred to in his reasons for sentence. The parties took the opportunity to make additional sentencing submissions a few days later, which the trial judge considered in the sentence he imposed.

[155] I am not persuaded that the language used by the trial judge in giving notice to the parties that he was considering exceeding the sentence proposed by the Crown and explaining his concerns showed any unfairness or predisposition. The trial judge was frank and direct in explaining the reasons that he was considering exceeding the Crown’s sentencing submission. However, nothing he said comes close to raising a reasonable apprehension of bias.

[156] I underline the importance of the chronology in coming to this conclusion. It was, of course, after verdict when the trial judge gave notice that he was considering exceeding the Crown’s position on sentence and explained his concerns. It was also after he had heard submissions from both the Crown and the appellant on the appropriate sentence. The offences the appellant was convicted of are very grave. That the trial judge emphasized the gravity of the offences when he explained why he was considering imposing a sentence in excess of that sought by the Crown does not give rise to unfairness or a reasonable apprehension of bias. The trial judge, quite appropriately, explained to the parties in clear language why he had concerns with the sentencing position advanced by the Crown. The heart of that concern was the gravity of the offences committed by the appellant and whether the sentence sought by the Crown was sufficient for purposes of denunciation. The purpose of this explanation by the trial judge was to assist the parties in making additional submissions on sentence, which the trial judge, quite appropriately, gave the parties an opportunity to provide.

[157] The appellant supplements this argument with reliance on four other extracts from the audio recordings of the trial, both during the trial proper and the sentencing hearing. The appellant argues that the extracts show the trial judge exhibiting anger and frustration at the appellant and the appellant’s conduct that formed the basis for the offences. The appellant argues that these interactions are not consistent with an even-handed approach to dealing with a witness.

[158] I pause to recall that the appellant abandoned his ground of appeal alleging reasonable apprehension of bias on the part of the trial judge. In considering the appellant’s arguments based on the audio extracts, in my view, it is important not to fall into the mistake of applying a less exacting standard than that required to show reasonable apprehension of bias – “bias-lite” – to the appellant’s allegations about the trial judge’s conduct as they relate to sentence. In any event, I am not persuaded that the conduct of the trial judge gave rise to a reasonable apprehension of bias, to any unfairness in the sentencing hearing, or unfitness of the sentence imposed.

[159] Counsel for the appellant played five extracts from the trial during the hearing of the appeal (including the passage where the trial judge gave notice that he was considering exceeding the Crown’s position on sentence). I have listened to them again while the appeal was reserved. I have considered the extracts and the context in which they occurred. In my view, although at times the tone of the trial judge is stern, the comments are not outside of the back and forth that sometimes occurs when a trial judge speaks to counsel or a witness.

[160] Considering together the trial judge’s comments when he gave notice to the parties that he was considering imposing a sentence in excess of that sought by the Crown and the other audio recording extracts played by the appellant, I am not persuaded that the trial judge acted inappropriately or caused any unfairness in the sentencing proceedings. None of these comments has any impact on the fitness of the sentence imposed.

(ii) The trial judge did not err in his weighing of mitigating evidence

[161] The appellant argues that the trial judge erred in principle in his treatment of some evidence relevant to mitigating factors on sentence.

[162] The appellant argues that the trial judge erred in his treatment of evidence from members of the appellant’s community – family and friends – attesting to his good character by discounting the weight to be given to this evidence.

[163] I disagree. Absent error in principle, the trial judge was entitled to assess the weight to be given to the good character evidence tendered at sentencing. I see no error in principle in the trial judge’s treatment of the good character evidence.

[164] The sentencing reasons are clear that the trial judge accorded limited weight to the character letters for two reasons, neither of which discloses error.

[165] First, some of the witnesses who wrote good character references for the appellant clearly did not accept that the appellant had committed the offences the jury found him guilty of committing. I see no error in the trial judge moderating the weight to be given to good character evidence in these circumstances.

[166] The starting point in terms of relevant facts when a judge is considering sentence is that the offender committed the offences of which they have been convicted. Where a witness providing evidence about an offender’s good character does not accept that the offence or offences occurred, it demonstrates that the witness has formed their opinion on the character of the offender without consideration for a factor relevant to character that a sentencing judge cannot ignore – that they committed the offence or offences at issue. A sentencing judge is entitled to be cautious with the weight to be given to evidence of good character in these circumstances.

[167] This is not to say that evidence of a good character witness should always be given less weight because the witness does not accept that the offence or offences. It is no doubt often hard for friends or family of an offender to accept that they committed an offence. Good character in other aspects of an offender’s life may, depending on the whole picture, still be a mitigating factor in sentencing even where the witness attesting to the good character does not accept that the offence was committed. But absent error in principle, deference is owed to the weight that a sentencing judge assigns to evidence of prior good character.

[168] In this case, the reasons for sentence are clear that the trial judge did not wholly disregard the good character evidence; rather, he gave the good character letters limited weight in the face of the serious offences committed by the appellant, which were inconsistent with the character described in the letters. There was no error in his approach.

[169] The trial judge also limited the weight he gave to the good character evidence because the appellant used his outward good character and his position as a police officer to breach the public trust placed in him and perpetrate the offences. Again, I see no error in this approach.

[170] In sum, I am not persuaded that the trial judge erred in principle in the weight he gave to the evidence of prior good character as a mitigating factor in sentencing.

(iii) The sentence imposed is not demonstrably unfit

[171] Turning to the quantum of sentence imposed, the appellant argues that the global sentence is excessive in all of the circumstances. He submits that the sentence imposed is excessive when compared to other cases involving corruption offences by police officers. He further argues that the sentence is excessive when considering his personal circumstances, including that: he had no prior criminal record; he had a positive background and history prior to these offences; he received a number of commendations as a police officer; and he was of prior good character (discussed above).

[172] The threshold for an appellate court to intervene on the basis that a sentence is unfit, absent a discrete error in principle, is high. Language such as “clearly unreasonable”, “demonstrably unfit”, and “clearly and manifestly excessive” have been used to describe the high threshold: Lacasse, at para. 52.

[173] Sentencing ranges are a tool to give effect to the principle of parity in sentencing. However, while parity is an important objective in sentencing, it is not the only objective. Sentencing is an individualized exercise. Sentencing ranges function as guidelines. There will be circumstances that call for a sentence above or below the range of sentences imposed in previous cases. Imposing a sentence outside the range of previous cases is not in itself an error in principle and does not, standing alone, result in an unfit sentence. Deviation from a range of sentence does not constitute error in principle or result in an unfit sentence “unless the sentence that is imposed departs significantly and for no reason” from the range (emphasis added): Lacasse, at paras. 56-61, 67.

[174] I would not interfere with the sentence imposed by the trial judge. The trial judge was alive to the fact that the sentence he imposed was high when compared to other cases involving corruption offences by police officers. His reasons explain why he concluded that a higher sentence was required in this case for purposes of denunciation and deterrence. He summarized his reasons for departing from the range in past cases as based on the need for denunciation and deterrence because “this is a unique situation in terms of the gravity of the behaviour, the degree of this offender’s responsibility and the length of time for which the pernicious behaviour persisted.”

[175] I see no error in this conclusion in light of the facts found by the trial judge in his reasons for sentence.

[176] As this was a jury trial, the trial judge was bound by the express and implied factual implications of the jury’s verdict and, to the extent the factual implications of the verdict were ambiguous, was required to determine any other facts relevant to sentence based on the evidence at trial: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 14-15.

[177] The trial judge found that the appellant accepted at least $240,000 in bribe money, in a period spanning over one year, in order to protect Mr. X and his associates in their drug dealing enterprise. The trial judge also found that during the time the appellant was receiving bribe money from Mr. X and his associates, he committed numerous breaches of trust and attempted to obstruct justice on multiple occasions. Finally, the trial judge found that by arranging for testing of the cutting agent for Mr. X, for an additional fee of at least $10,000, the appellant knowingly aided Mr. X to traffic cocaine at the kilogram and multi-kilogram level.

[178] In coming to the conclusion that an exemplary sentence was warranted for purposes of denunciation and general deterrence, the trial judge considered the circumstances of the offence and the offender. He considered and balanced the aggravating and mitigating circumstances and the relevant sentencing principles. I see no error in principle in the trial judge’s reasons for sentence. The sentence is not demonstrably unfit. The trial judge’s assessment of the appropriate sentence is entitled to deference.

[179] Before concluding on the fitness of the sentence imposed, I address specifically the decision of the Cour du Québec in R. c. Roberge, 2014 QCCQ 2419. The appellant put particular weight on that decision in submissions, both before the trial judge and on appeal. The appellant argues that Roberge, where an 8-year sentence was imposed, is a relevant benchmark for the appropriate sentence. The appellant argues that the conduct at issue in Roberge was of greater or similar gravity to this case, as it involved a police officer selling information about three confidential informants to the Hells Angels – a criminal organization.

[180] While I agree that there is some similarity in the gravity of the offences in Roberge and the appellant’s offences, there are at least three important distinguishing factors in comparing the sentence imposed in Roberge to this case: (i) Roberge involved a guilty plea (at paras. 1, 31); (ii) Roberge involved a joint submission as to the appropriate sentence (at paras. 5, 37); and (iii) for the two offences that the offender pleaded guilty to in Roberge, the maximum available combined sentence, if consecutive sentences were imposed, was 10 years (at paras. 2-5).

[181] Each of these factors distinguishes Roberge from the appellant’s circumstances. First, the appellant did not plead guilty, he had a trial – as was his right. The fact that the appellant exercised his right to a trial is not an aggravating factor, but it disentitles him to the mitigating effect of the remorse shown by the guilty plea in Roberge.

[182] Second, the sentencing hearing in this case did not proceed on a joint submission. As a result, the trial judge in this case, unlike the sentencing judge in Roberge, was not bound to impose a joint submission unless it would bring the administration of justice into disrepute or was contrary to the public interest: Anthony-Cook.

[183] Third, the maximum available sentence for the offences the appellant was convicted of was higher than in Roberge. For example, the maximum sentence for bribery is 14-years imprisonment: Criminal Code, s. 120(a). The maximum sentence for trafficking cocaine is life imprisonment: Controlled Drugs and Substances Act, s. 5(1) and 5(3)(a). In Roberge, the sentencing judge expressly adverted to the maximum available sentence of 10-years imprisonment as a factor he was required to consider in assessing the appropriateness of the 8-year joint submission (at para. 5). All of these factors justified a higher sentence for the appellant than was imposed in Roberge.

[184] For these reasons, I would reject the appellant’s submissions that the trial judge erred in exceeding the Crown’s sentencing position, committed errors in principle in arriving at the sentence he imposed, and that the sentence is unfit.

(2) The trial judge did not err in ordering a fine in lieu of forfeiture

[185] The trial judge ordered that the appellant pay a fine in lieu of forfeiture in the amount of $250,000. He gave the appellant one year from the date of sentencing to pay the fine. Pursuant to s. 462.37(4)(v) of the Criminal Code, the trial judge imposed a consecutive sentence of three-years imprisonment in default of payment of the fine.

[186] The appellant challenges the trial judge’s jurisdiction to order the fine in lieu of forfeiture, the quantum of the fine, and the time given to pay the fine.

(i) The trial judge had jurisdiction to order a fine in lieu of forfeiture

[187] The appellant argues that the trial judge did not have jurisdiction to order a fine in lieu of forfeiture because the Crown failed to prove that the property it argued should be subject to forfeiture (or a fine in lieu) derived from proceeds of crime. The appellant argues that the forfeiture regime requires that for a fine in lieu of forfeiture to be available, the Crown must first prove that an order for forfeiture should be made. To make this showing, the Crown must establish on a balance of probabilities that particular property is derived from proceeds of crime. If the Crown makes that showing and, for some practical reason, the particular property cannot be made the subject of a forfeiture order, then a trial judge may order a fine in lieu of forfeiture. The appellant argues that on the findings of the trial judge, the Crown failed to prove that the property listed in its notice of application for forfeiture was derived from proceeds of crime.

[188] The Crown argues that the trial judge had jurisdiction to order the fine in lieu of forfeiture. The trial judge determined that a large part of the appellant’s assets were obtained through proceeds of crime but that he could not trace the gains to specific assets with certainty. As a result, he ordered a fine in lieu of forfeiture under s. 462.37(3) of the Criminal Code.

[189] I agree with the appellant about how the forfeiture provisions of the Criminal Code operate; however, I disagree that the trial judge’s findings of fact made a fine in lieu of forfeiture order unavailable. I address each of these issues in turn.

[190] Sections 462.37(1) and (2.01) outline the circumstances in which a judge may make an order of forfeiture.[^10] I focus on s. 462.37(1) because it is the provision relied on by the Crown in this case. The section, which applies after a finding of guilt of a designated offence, requires that the Crown prove on a balance of probabilities that particular property is proceeds of crime obtained through the commission of the designated offence: R. v. Abdelrazzaq, 2023 ONCA 112, at paras. 33-34; R. v. Lavigne, 2006 SCC 10, [2006] 1 S.C.R. 392, at paras. 11-17. “Proceeds of crime” is defined in s. 462.3(1) of the Criminal Code as “any property, benefit or advantage, within or outside Canada, obtained or derived directly or indirectly as a result of the commission in Canada of a designated offence.”[^11] For purposes of this appeal, it is sufficient to understand that “designated offence” includes any offence under the Criminal Code that may be prosecuted as an indictable offence: Criminal Code, s. 462.3. All the offences the appellant was convicted of fall within the definition of “designated offence”.

[191] Often, property that is proceeds of crime is not available for forfeiture at the time the offender is sentenced. For example, it may be outside the jurisdiction of Canada or co-mingled with other property. Parliament enacted the Criminal Code provisions for fines in lieu of forfeiture to address this problem: Abdelrazzaq, at paras. 38-39; Lavigne, at para. 18.

[192] Section 462.37(3) provides that a sentencing court may order a fine in lieu of forfeiture where the court is satisfied that an order of forfeiture should be made, but the property that is proceeds of crime, or some part of it, cannot be made subject to an order. Section 462.37(3) provides a non-exhaustive list of circumstances in which a court may find it appropriate to order a fine in lieu of forfeiture:

462.37(3) If a court is satisfied that an order of forfeiture under subsection (1) or (2.01) should be made in respect of any property of an offender but that the property or any part of or interest in the property cannot be made subject to an order, the court may, instead of ordering the property or any part of or interest in the property to be forfeited, order the offender to pay a fine in an amount equal to the value of the property or the part of or interest in the property. In particular, a court may order the offender to pay a fine if the property or any part of or interest in the property

(a) cannot, on the exercise of due diligence, be located;

(b) has been transferred to a third party;

(c) is located outside Canada;

(d) has been substantially diminished in value or rendered worthless; or

(e) has been commingled with other property that cannot be divided without difficulty.

[193] Read as a whole, the Criminal Code provisions regarding forfeiture and fines in lieu of forfeiture are structured around the Crown making an application for forfeiture of particular property. This is clear from the language of ss. 462.37(1), (2.01), and (3). The requirement of notice to any person who appears to have a valid interest in the property also supports this reading of the provisions. Section 462.41(1) requires that notice of an application for forfeiture be given to any person who appears to have a valid interest in the property. Section 462.41(2)(c) provides that the notice shall include, inter alia, “a description of the property” for which forfeiture is sought.

[194] The Criminal Code provisions are also clear that the availability of a fine in lieu of forfeiture is predicated on the Crown first establishing that particular property is proceeds of crime under either s. 462.37(1) or (2.01).[^12] If the Crown establishes on a balance of probabilities that particular property is proceeds of crime obtained through the commission of a designated offence, but for some practical reason the property cannot be made the subject of a forfeiture order, then the sentencing court may order a fine in lieu of forfeiture: Abdelrazzaq, at paras. 38-39, 41 and 43; R. v. Dwyer, 2013 ONCA 34, 296 C.C.C. (3d) 193, at para. 21.

[195] I turn then to the trial judge’s findings in relation to the application for a fine in lieu of forfeiture. In its notice of application for forfeiture or a fine in lieu of forfeiture the Crown listed specific property: four bank accounts (listed by institution and account number); the appellant’s principal residence in Ancaster, Ontario; a condominium unit in Oakville, Ontario; and a Ford F-150 pick-up truck.[^13]

[196] The trial judge was satisfied beyond a reasonable doubt that the appellant received at least $250,000 from Mr. X through the commission of the offences.[^14] The trial judge made the following additional findings in relation to the fine in lieu of forfeiture:

I am satisfied, on a balance of probabilities, that some significant portion of the offender’s assets were purchased with the proceeds of crime.

I am not satisfied that I can trace with any certainty the offender’s ill-gotten gains to the specific assets the Crown mentions in its notice, and therefore, I do not propose to order forfeiture of any of the aforementioned assets.

Subsection 462.37(3) provides that “a court may order the offender to pay a fine if the property or any part of or interest in the property has been co-mingled with other property that cannot be divided without difficulty.” As I have said, I find this to be such a case. Accordingly, I order the offender to pay a fine of $250,000.

[197] Read together, these passages show that the trial judge was satisfied on a balance of probabilities that the appellant had purchased a significant portion of his assets with proceeds of crime – in other words, the assets were derived from the commission of a designated offence. I do not read the comment in the middle passage above as a finding that the Crown failed to prove on a balance of probabilities that the particular assets listed in the Crown’s notice of application were derived from proceeds of crime. Rather, it is simply a reflection of the fact that cash is fungible. Further, in the middle passage, the trial judge found that he could not trace the proceeds of crime “with any certainty” to the specific assets listed in the notice of application. But certainty, or even close to it, was not the standard the Crown was required to meet.

[198] The Supreme Court has recognized that the purpose of the fine in lieu of forfeiture provisions is to ensure that offenders do not indirectly benefit from proceeds of crime by transferring, transforming, or making such proceeds impossible to find: Lavigne, at para. 18. The trial judge’s findings support the order he made and are consistent with the Criminal Code provisions for fines in lieu of forfeiture.

[199] I would add one comment before leaving this issue. The “tracing” problem raised by this ground of appeal could have been avoided if the Crown had framed its notice of application differently. In a case like this one, where there is evidence of specific amounts of money exchanged in the commission of the offences, it is open to the Crown to seek forfeiture or a fine in lieu of forfeiture of the specific amounts of cash. The Crown could have listed in its notice of application the $240,000 in bribe money and the $10,000 for the testing of the cutting agent paid to the appellant. The specific payments of cash to the appellant, which were based on the evidence of Mr. X and which the trial judge found were proven beyond a reasonable doubt, could have been the object of a forfeiture order. If these specific funds were no longer available for forfeiture within the meaning of s. 467.32(3), this could provide a basis for an order for a fine in lieu of forfeiture. A parallel example, where forfeiture was sought for specific payments but the cash was no longer available and a fine in lieu of forfeiture was ordered, is Abdelrazzaq, 2023 ONCA 112, at paras. 2, 9-10, and 2023 ONCA 231, at para. 8. In Abdelrazzaq the object of the forfeiture application was $74,560 in “buy money” paid by a police agent to the accused for drug transactions.

(ii) The absence of notice to the appellant’s wife did not affect jurisdiction to order the fine in lieu of forfeiture

[200] The appellant argues that the trial judge did not have jurisdiction to order a fine in lieu of forfeiture because notice was not given to his wife, who had an interest in several of the assets listed in the Crown’s notice of application.

[201] Before explaining why I am satisfied that the lack of formal notice to the appellant’s wife did not affect the trial judge’s jurisdiction to order a fine in lieu of forfeiture, I pause to emphasize that the issue raised by the appellant is one of formality only in the circumstances of this appeal. The trial judge noted in his reasons for sentence that the appellant’s wife was present throughout the trial, including the day that the Crown served the notice of application for forfeiture or a fine in lieu of forfeiture and the day when submissions on sentence (including forfeiture) were made. This was not a situation where a party with an interest in property was unaware the Crown was seeking forfeiture.

[202] In any event, because the trial judge ordered a fine in lieu of forfeiture instead of forfeiture of property in which the appellant’s wife had an interest, there is no jurisdictional problem created by the Crown’s failure to give formal notice to the appellant’s wife. Nor was there any prejudice to her from the lack of formal notice.

[203] Section 462.41(1) instructs a court considering an application for forfeiture to require that notice be given to “any person who, in the opinion of the court, appears to have a valid interest in the property” before making a forfeiture order. Section 462.41(1) specifies the types of orders that require notice to parties with an interest in the property. The notice requirement is a condition precedent only to orders made under ss. 462.37(1), 462.37(2.01), and 462.38(2). In this case, the order was made under s. 463.37(3), a type of order not specified in s. 462.41(1).

[204] Section 462.41(1) does not require notice to a third party with an interest in property as a condition precedent to ordering a fine in lieu of forfeiture – an order made under s. 462.37(3) of the Criminal Code. This makes sense. The notice requirement in s. 462.41(1) is designed to give notice to a party who has an interest in property for which the Crown seeks forfeiture so that the party can assert their property interest and the court may consider it before making an order impacting the property. By contrast, a fine in lieu of forfeiture has no legal impact on anyone other than the offender.

[205] In this case, as discussed above, the Crown’s notice of application sought forfeiture of specific property (some of which the appellant’s wife had an interest in) and, in the alternative, a fine in lieu of forfeiture. But it was clear that the Crown’s focus was on a fine in lieu of forfeiture, rather than forfeiture of the property. Because the first position articulated in the Crown’s notice of application was forfeiture of property and because the appellant’s wife had an interest in some of the property listed in the notice, the Crown should have formally notified her. However, because the order made by the trial judge was for a fine in lieu of forfeiture under s. 462.37(3) of the Criminal Code, the failure to give notice was not a bar to the trial judge making the order.

[206] I underline that I reach this result because the order made by the trial judge was for a fine in lieu of forfeiture and not for forfeiture of particular property in which a third party had an interest. In a case where a Crown application is focused on forfeiture of particular property in which a third party has an interest, and not a fine in lieu, it would proceed at its peril in not giving the notice required by s. 462.41(1) of the Criminal Code.

[207] Further, there was no prejudice to the appellant’s wife from the failure to give formal notice to her. If the trial judge had ordered forfeiture of property in which she had an interest, that would have affected her property rights. That is why notice to parties with an interest in particular property is a condition precedent to making a forfeiture order. However, the order for a fine in lieu of forfeiture has no impact on the appellant’s wife’s legal interest in particular property.

(iii) The trial judge did not err in setting the amount of the fine in lieu of forfeiture

[208] The appellant argues that the trial judge erred in relation to the amount of the fine in lieu of forfeiture. The appellant argues that the evidence did not support the finding on a balance of probabilities that the value of the proceeds of crime obtained by the appellant was $250,000.

[209] I would reject this argument. The trial judge found beyond a reasonable doubt (as an aggravating factor on sentence) that the appellant received at least $250,000 from Mr. X, composed of $240,000 in bribe payments plus at least $10,000 for testing the cutting agent. He then applied that finding in his forfeiture analysis.

[210] The trial judge’s finding of fact about the amount of proceeds of crime obtained by the appellant is entitled to deference. The trial judge gave detailed reasons for this finding. In particular, he addressed the conflict between the evidence of Mr. X and Mr. Y about how much Mr. Y paid on a monthly basis. The trial judge preferred the evidence of Mr. X because he found him to be a more reliable witness than Mr. Y in recalling specific details. The trial judge also considered and rejected the appellant’s argument that a significant amount of the appellant’s excess income came from his swimming pool and general contracting business.

[211] The finding that the appellant obtained $250,000 through the commission of the offences was open to the trial judge on the record. I see no basis to interfere.

(iv) The trial judge erred in ordering that time to pay run from the date of sentencing

[212] The appellant argues that the trial judge erred in ordering that the fine in lieu of forfeiture be paid within one year from the date of sentencing. The appellant argues that this time is insufficient, given his personal circumstances. The appellant also relies on Supreme Court authority holding that, although ability to pay is not relevant to whether to order a fine in lieu of forfeiture, it is relevant to assessing the time to pay the fine: Lavigne, at paras. 47-48. The appellant asks for five years from the date he is released from custody to pay the fine in lieu of forfeiture.

[213] The Crown argues that one year to pay was reasonable. The Crown acknowledges that time to pay runs from the date an offender is released from custody, not from the date sentence is imposed.

[214] The reasons for sentence are crystal clear that the trial judge ordered the time to pay the fine in lieu of forfeiture to run from the date of sentence. He said: “[t]he offender will have one year from today’s date to pay that fine.” This was an error. This court has held that where a custodial sentence is also imposed, time to pay a fine in lieu of forfeiture runs from the date the offender is released from custody: Abdelrazzaq, at para. 58.

[215] I would vary the order for time to pay the fine in lieu of forfeiture to allow one year from the appellant’s release from custody for him to pay the fine. I am not persuaded that one year to pay is inappropriate, so long as it runs from the date the appellant is released from custody. The record shows that the appellant owns various assets. He has choices about how to order his financial affairs in order to pay the fine in lieu of forfeiture.

[216] I would add that in the event the appellant is unable to pay the fine in lieu of forfeiture within one year of his release from custody, a committal hearing would be required before he could be committed to custody for refusal to pay. The court would be required to consider alternative enforcement measures and whether the non-payment was wilful or due to an inability to pay because of poverty. A warrant of committal cannot be issued for default if the offender has a genuine inability to pay: Abdelrazzaq, at paras. 61-62; Lavigne, at para. 47; R. v. Rafilovich, 2019 SCC 51, [2019] 3 S.C.R. 838, at para. 111; R. v. Wu, 2003 SCC 73, [2003] 3 S.C.R. 530, at paras. 60-66.

E. DISPOSITION

[217] I would dismiss the conviction appeal. I would grant leave to appeal sentence, but dismiss the sentence appeal, except to the extent of varying the order regarding time to pay the fine in lieu of forfeiture to one year from the date the appellant is released from custody. I would grant the fresh evidence application in part. I would admit the affidavit of Rachelle Bennett and the extracts of the audio recordings of the trial. I would not admit the affidavit of Michelle Barr.

Released: May 30, 2024 “S.E.P.”

“J. Copeland J.A.”

“I agree. S.E. Pepall J.A.”

“I agree. P.J. Monahan J.A.”

[^1]: The appellant was acquitted of one count of conspiracy to traffic marijuana.

[^2]: The trial judge imposed a ban on publication of any information that could identify Mr. X pursuant to s. 486.5 of the Criminal Code.

[^3]: Mr. Y’s name is also anonymized pursuant to the publication ban on information that would tend to identify Mr. X, as Mr. Y is an associate of Mr. X. Disclosing Mr. Y’s identity could lead to the identification of Mr. X.

• The street name has been changed in the published version of these reasons pursuant to the publication ban on information that would tend to identify Mr. X.

[^4]: During his trial evidence, Mr. X testified that “the Chin” was dead. He was later identified as Hung Pham, who had been murdered in 2014. Mr. X said J had “retired”.

• Mr. W was identified by a nickname at trial. His name has been anonymized in the published version of these reasons pursuant to the publication ban on information that would tend to identify Mr. X.

[^5]: Ms. Majeau Gordon explained that the $130,000 in unexplained income was based only on funds that went through the family’s bank accounts. She testified that if there were funds outside the bank accounts, they were not included in her calculations.

[^6]: The spending in excess of income only considered the day-to-day spending of the family. It did not capture purchase of assets in that time period.

• The street name has been changed in the published version of these reasons pursuant to the publication ban on information that would tend to identify Mr. X.

** Mr. Z’s name has been anonymized in the published version of these reasons pursuant to the publication ban on information that would tend to identify Mr. X.

[^7]: The two kilograms of cocaine had been seized by officers of the Toronto Police Service pursuant to a general warrant. The police had observed a drug transaction in the parking lot of a mall. After the drug transaction, the drugs were left in the vehicle while the purchaser entered the mall. The police seized the drugs pursuant to a general warrant and broke a window of the vehicle to make it look like a break in. The purchaser, through another drug dealer, asked Mr. X to call the appellant to find out if the police could break into a car and seize cocaine.

[^8]: David Watt, Watt’s Manual of Criminal Jury Instructions, 2023 (Toronto: Thompson Reuters, 2023), at pp. 285-86 (Final 16 – Testimony of the Accused (The W.(D.) Instruction)); The Canadian Judicial Council, “Model Jury Instructions”, online: National Judicial Institute <www.nji-inm.ca/index.cfm/publications/model-jury-instructions>, 9.6 Testimony of the Person Charged (The W.(D.) Instruction).

[^9]: [footnote 9 privileged]

[^10]: Section 462.38 provides for circumstances in which forfeiture may be ordered prior to a trial of a criminal offence. It has no application to this appeal.

[^11]: I omit the portion of the definition applicable to offences committed outside Canada.

[^12]: The Crown did not seek to rely on s. 462.39 of the Criminal Code either at trial or on appeal.

[^13]: This list comes from the Crown’s notice of application for forfeiture filed at trial. In the reasons for sentence, the trial judge listed the items of which forfeiture was sought slightly differently, as a number of bank accounts, two motor vehicles, and the appellant’s principal residence (i.e., adding another motor vehicle and omitting the condominium unit). There is nothing in the sentencing submissions that suggests the Crown changed at any point the items of which it was seeking forfeiture or a fine in lieu. In the circumstances, I presume that the trial judge made a minor error in enumerating the items of which forfeiture was sought in his reasons for sentence.

[^14]: I discuss this finding, which the appellant challenges, in the section of the reasons below regarding the quantum of the fine in lieu of forfeiture. I note that the trial judge made the finding on the reasonable doubt standard of proof, even though the forfeiture analysis is conducted on a balance of probabilities standard. The trial judge applied the higher burden of proof because he also treated the amount of money received by the appellant as an aggravating factor on sentence: see R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368.