Court of Appeal for Ontario

Date: 2025-04-04
Docket: C70363
Coram: van Rensburg and Coroza JJ.A. and O’Marra J. (ad hoc)

Between:
His Majesty the King (Respondent)
and
William Gillen (Appellant)

Appearances:
Robert Geurts, for the appellant
David Morlog, for the respondent

Heard: 2025-03-07

On appeal from the convictions entered on December 20, 2019 by Justice Thomas A. Heeney of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

Overview

[1] The appellant was found guilty by a jury of all charges on a multi-count indictment. The charges related to trafficking fentanyl and possession of fentanyl for the purpose of trafficking as well as possession of cocaine for the purpose of trafficking. There were also charges of possession of the proceeds of crime related to drug trafficking.

[2] On appeal, the appellant takes issue with the content, order, and substance of the charge to the jury.

Facts

[3] A brief overview of the evidence at trial will suffice for the purpose of this appeal.

[4] In the spring and summer of 2017, the police observed the appellant meet with other people on several occasions for short durations in circumstances indicative of drug trafficking. On July 27, 2017, the appellant met with another person who briefly passed something to the appellant through his car window. The other person then walked to a nearby townhouse before returning and entering the appellant’s car. Police moved in and arrested both men.

[5] Inside the appellant’s car the police retrieved $450 in cash as well as baggies and a pill bottle containing baggies. The majority of the baggies contained a fentanyl-heroin mixture while one contained cocaine. Additional drugs were located in the appellant’s pocket and the waistband of his shorts. The appellant’s cell phone was also recovered. It contained text messages with another person regarding an impending drug deal.

[6] A search warrant was executed on the appellant’s residence. The police located additional fentanyl, cocaine, unused dime bags, digital scales and $1,350 in cash.

[7] In total, the police seized 5.97 grams of a fentanyl-heroin mixture, 3.46 grams of cocaine and $1,800 in cash.

[8] Certificates of analysis were filed as exhibits on consent that confirmed that the seized substances were fentanyl, cocaine and two non-controlled substances.

[9] The appellant testified that he had no knowledge of the drugs that were found on his person, in his car, and at his residence. He also denied that the cash recovered was the proceeds of drug transactions.

The Grounds of Appeal

[10] The appellant’s grounds of appeal can be grouped into three issues:
(1) whether the trial judge erred in instructing the jury that they would have no issue finding certain elements of the offences as charged thus usurping their fact-finding role;
(2) whether the trial judge erred by instructing the jury on the more serious charges prior to the lesser charges such that the jury was encouraged to engage in propensity reasoning; and
(3) whether the trial judge erred in his instructions regarding text messages found on the appellant’s phone.

[11] The issues raised by the appellant must be considered in the following context:

• On certain issues there were both mid-trial and final instructions to the jury. There were no objections by counsel to the content of these instructions.
• Counsel were provided with a draft of the final charge. The trial judge sought the input and submissions of counsel on the draft. Again, the appellant’s trial counsel did not object to any part of the charge.
• The jury was provided with a verdict sheet that set out the available verdicts and included offences.

(1) Did the trial judge usurp the fact-finding role of the jury?

[12] In his final charge to the jury, the trial judge instructed the jury that they would have no difficulty in finding that the seized substances were in fact fentanyl and cocaine. The appellant submits the trial judge’s comments infringed on the fact-finding role of the jury.

[13] We do not agree. The certificates of analysis were filed on consent. There was no suggestion at trial that the substances were not as alleged and referred to in the certificates of analysis. The trial judge told the jury in his opening and closing instructions that they were the judges of the facts. For example, in the final charge after his review of the evidence, he reminded the jury that they were the exclusive triers of the facts:

Please remember that if anything I did say about the evidence conflicts with your recollection of it, it is your memory of the evidence that counts, not mine. Similarly, if I appear to have a favourable or unfavourable impression of the evidence one way or the other, I remind you it is your impression of the evidence that counts, not mine. You are the sole judges of the facts, not me.

[14] Further, the trial judge did not refer to the contents of the certificates as admissions. Instead, the trial judge properly and fairly instructed the jury that they should have no difficulty in finding that the substances recovered were the drugs referred to throughout the indictment. This was not surprising because the evidence was clearly non-controversial. The trial judge’s efforts to focus the jury on what was in issue was not prejudicial to the appellant and is consistent with a trial judge’s duty to “decant and simplify” a final charge to a jury: R. v. Rodgerson, 2015 SCC 38, para 50. We note that there was no objection by the appellant’s trial counsel to those references in the charge.

[15] In sum, the specific comments of the trial judge in his charge did not usurp the fact-finding role of the jury. Instead, they assisted the jury in focusing on what was really contentious between the parties. Accordingly, we reject this ground of appeal.

(2) Did the structure of the charge encourage the jury to engage in propensity reasoning?

[16] In his final charge, the trial judge instructed the jury about the various counts in the order they appeared on the indictment. The appellant now claims that by starting with the most serious count, the charge unfairly directed the jury that the following less serious charges would inevitably be proven if the more serious charge were proven.

[17] The structure and content of the charge were vetted with counsel. There were no objections by the appellant’s trial counsel. Amongst the counts, there were factual and legal connections between the counts relating to trafficking and possession for the purpose of trafficking. All the counts stemmed from the appellant’s arrest on July 27, 2017, and the subsequent searches of his car, his person, and his residence.

[18] The charge to the jury made clear that the onus of proof rested with the Crown on each count. The jury was properly instructed about the included offences. For example, they were instructed about the option of finding the appellant not guilty of possession for the purpose of trafficking, but guilty of the included offence of possession. The charge was clear that the drugs found at the appellant’s residence required verdicts that were separate from the count involving drugs in the appellant’s car and on his person. A verdict sheet was also provided to the jury, without objection, to clearly set out the available verdicts on each count.

[19] In a jury charge, the particular words used by a trial judge, or the sequence followed by them in conveying those words, is a matter of discretion and will depend on the particular circumstances in each case. On review, we must consider the charge as a whole. The standard is not perfection. The accused is entitled to a properly instructed jury, not a perfectly instructed one: R. v. Daley, 2007 SCC 53, paras 30, 31.

[20] While not dispositive, the failure of the appellant’s trial counsel to object and raise concerns that the charge was unfair or unbalanced is of particular significance. The failure to object is a factor warranting consideration on review: R. v. Adan, 2019 ONCA 709, para 63.

[21] In our view, the structure and content of the charge reveal no error. Furthermore, the jury was properly and fairly instructed, as to the presumption of innocence, the burden of proof and the proper approach to circumstantial evidence in accordance with R. v. Villaroman, 2016 SCC 33. The jury was also properly told in accordance with R. v. W.(D.), how to assess the appellant’s testimony.

[22] There is no merit to this ground of appeal and it is rejected.

(3) Was there a danger that the jury may have considered the text messages for a prohibited purpose?

[23] This ground of appeal relates to the text messages found on the appellant’s phone regarding an impending drug deal.

[24] Character evidence that shows only that the accused is the type of person likely to have committed the offence in question is inadmissible. However, evidence that tends to show bad character or a disposition on the part of the accused is admissible if it is relevant to some other issue beyond disposition or character, and the probative value outweighs the prejudicial effect: R. v. B. (F.F.). The admission of such evidence should be accompanied by a limiting instruction to the jury: R. v. Amin, 2024 ONCA 237.

[25] The charge to the jury made clear both what this evidence could be used for as well as its prohibited use. There was also a mid-trial instruction on this issue. In the circumstances of this case, this evidence was admissible as contemporaneous circumstantial evidence that the appellant possessed the drugs for the purpose of trafficking, as in R. v. Smith, 2024 ONSC 1482, para 15. The jury was properly instructed that they could only consider this evidence if they found there was a pattern of behaviour consistent with trafficking. If so, that evidence could assist the jury in determining whether the appellant possessed the drugs for the purpose of trafficking. The jury was explicitly told that they may not consider this evidence as going to bad character or propensity. There was no objection to that portion of the charge before or after it was delivered.

[26] As a result, this ground of appeal also fails.

Disposition

[27] For these reasons, the appeal is dismissed.

“K. van Rensburg J.A.”
“S. Coroza J.A.”
“B.P. O’Marra J. (ad hoc)”