The Defence Toolkit – March 7, 2021

This week’s top three summaries: R v Mann, 2021 ONCA 103: #Defence #inferences, R v ZWC, 2021 ONCA 116: prior #discreditable conduct, and R v Dawkins, 2021 ONCA 113: #co-conspirators exception.

R v Mann, 2021 ONCA 103

[February 19, 2021] Fundamental Concepts: Inferences for the Defence – Charter s.24(2) when there is a Breach of the Right to Counsel [Reasons by Nordheimer J.A. with K. Feldman and M. Tulloch JJ.A. concurring]

AUTHOR’S NOTE: Sometimes judges coming from non-criminal backgrounds mix up the basis upon which inferences can be made in civil matters with that which applies to the defence in a criminal matter. The prosecution, like civil litigants, can only ask a fact finder to draw inferences from proven facts. However, the standard of proof in a criminal matter means that a defendant in a criminal matter can ask juries to draw inferences from a lack of evidence. That may seem logically strange, but it is a natural extension of the presumption of innocence and the standard of proof of beyond a reasonable doubt. A reasonable doubt can arise from a lack of evidence, therefore inferences favourable to the defence can also arise on a lack of evidence. 

This court of appeal judgement provides a short useful demonstration of the operation of this principle and resulted in a successful appeal. The case also provides a useful 24(2) analysis that highlights the importance of the right to counsel. 

Facts

[2] The appellant originally met the victim when she was a sex worker. They met three of four times in late 2010 or early 2011, each time for an hour of paid sex. The appellant testified that the two agreed that the appellant should move into her apartment where she lived with her son. The two lived together for about three to four days before the victim, who had a history of alcohol abuse, was arrested on June 25, 2011 (for breach of probation and assaulting a police officer) and sentenced to a period of incarceration.

[3] The appellant became the “breadwinner” of the house. He took responsibility to care for the victim’s children. During the victim’s incarceration, the appellant lived at the apartment with the victim’s son, paid the bills and gave financial assistance to both the son and the victim’s daughter.

[4] The victim was released on March 28, 2012 and entered an alcohol rehabilitation program, which was completed in early May 2012. The evidence at trial was that the program was successful. The victim first moved into a rooming house and then, in July 2012, moved into a rental home with her daughter and her daughter’s boyfriend in Barrie.

[5] The appellant discovered that the victim was intending to move into the rental home on July 25, 2012. On that same date, the appellant, who was a long-haul truck driver, arrived back in Toronto from a long-distance haul and drove to Barrie. The appellant believed that he and the victim were developing a relationship and, consequently, he was expecting to move into the Barrie home on that day.

[6] However, the romantic relationship that the appellant envisioned was not progressing as he had hoped. It appears that the victim did not share the appellant’s plans for their relationship. On this day, there was an exchange of text messages between the two with the appellant asking what he meant to the victim and what type of relationship she wanted.

Erroneous Analysis of 24(2) on a s.10(b) Violation

[8] The appellant testified that he attempted to initiate a conversation with the victim about telling her children that he was moving in. She rebuffed him again. He testified that, at this point, the victim became angry and began to hit him. He recalled reaching out and grabbing her arms to stop her from hitting him. According to the appellant’s version of the events, the two lost their balance and fell down together. He testified that he had no memory of what happened next.

[9] In fact, the appellant began choking the victim. He repeatedly banged her head against the floor. The appellant called 911 (although he did not remember doing so) and told the dispatcher that he would “like to report a murder”. He went on to say that he had killed his “so-called girlfriend” by choking her and beating her to death with his hands. The 911 operator continued to hear loud banging during the call, which was consistent with the head injuries the victim suffered. When asked by the 911 operator if he was sure that the victim was dead, the appellant said, “Uh pretty sure, she’s going to be [unintelligible] anyway.” The victim suffered life-threatening and permanent injuries, including brain damage, from the attack.

Analysis

The Reasonable Doubt Instruction

[12] This issue can be dealt with in briefer form than might usually be the case because of the somewhat unique circumstances in which it arises. Put simply, the same issue has been addressed by this court – twice.

[13] In her charge to the jury about reasonable doubt, the trial judge said:

A reasonable doubt is a real doubt that logically arises from the evidence, or the lack of evidence. It is a doubt based on reason and common sense after considering all of the evidence as a whole. It may be a doubt created by an inference or conclusion that you have drawn from the facts as you find them, provided that that inference of or conclusion is not a speculation or a guess, but a much stronger belief arising from the proven facts, and based on the evidence alone.

If your doubt is about something that you have imagined or made up, or if it is a far-fetched doubt, then it is not a reasonable doubt. If it is a doubt based on sympathy or prejudice, then it is not a reasonable doubt. It must be a doubt about an essential element of the offences charged, and it must arise from the evidence.

[14] The problem arises with respect to the portions of the instruction that I have underlined above. With the exception of the substitution of the word “belief” for “conclusion” in the third sentence of the first paragraph above, the wording is identical to instructions that this court has twice before found to be erroneous, requiring a new trial: R. v. Darnley, 2020 ONCA 179, 387 C.C.C. (3d) 200, at paras. 32-36, and R. v. Brown, 2018 ONCA 1064, at para. 15.

[15] The error is set out by Paciocco J.A. in Darnley at paras. 33-36, where he said:

First, a reasonable doubt need not arise from the evidence: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 28. It can arise from the absence of evidence, from what the Crown has failed to prove: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at para. 36.

Moreover, an inference need not arise from “proven facts”, which is “a standard that is never applicable to an accused”: R. v. Robert (2000), 2000 CanLII 5129 (ON CA), 143 C.C.C. (3d) 330, at para. 17 (Ont. C.A.). This is because a reference to “proven facts” suggests an obligation to establish those facts to a standard of proof, yet a reasonable doubt can arise from evidence that, while not proven to be true to any standard of proof, has not been rejected.

It is also incorrect to link a reasonable doubt to a “conclusion” drawn from the facts. An acquittal need not be based on a conclusion about innocence but can rest on an inability to conclude guilt.

It is also an error to suggest that an exculpatory inference must be “a much stronger conclusion” than a speculation or guess. That language imports the need for a strong inference, when an exculpatory inference relating to a required element of the offence need merely raise a reasonable doubt: Villaroman, at para. 20

[16] As I have said, the only difference between the instructions here, and the instructions in these two earlier cases, is the substitution of the word “belief” in the third sentence. That change does not cure the error identified. The effect of the instructions is still to essentially reverse the onus. It places a burden on the accused to prove something from which a reasonable doubt could arise – a burden that is not placed upon any accused and one that is inconsistent with the presumption of innocence.

[18] That submission fails on two fronts. First, the same argument was expressly rejected in Darnley, where Paciocco J.A. said, at para. 38:

There is no force in the Crown’s contention that these errors lose their significance when the jury charge is read as a whole. Errors relating to the burden and standard of proof may not be reversible “if the charge, when read as a whole, makes it clear that the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply” (emphasis added): R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at p. 758. This is not a case for inferring that these errors did not confuse or mislead the jury. [Emphasis in original.]

Charter s.24(2) Analysis with a Breach of the Right to Counsel

[22] The appellant was arrested at the scene without incident. The officer who arrested the appellant immediately turned him over to two other officers. It is while the appellant was in the custody of these two officers that he made the impugned statements.

[23] The statements began after one of the officers asked the appellant whether he had been stabbed. There was blood on the appellant and, as the trial judge found, it was reasonable for the officer to make this inquiry. After answering “no” to the question of whether he had been stabbed, the evidence of the officer was that the appellant spontaneously stated that he was planning to kill himself with a knife that night, but it was too dull. He said that the knife was in the centre console of his vehicle that was parked outside of the residence, and that there was also a suicide note.

[24] In contrast, the other officer said that the appellant’s utterances began while the officers were walking with the appellant out of the residence and continued on their way to the police car. His evidence was that the appellant made the following statements: “she just pissed me off’; “I just lost it on her”; “I just snapped”; and “I tried to commit suicide tonight with my knife but it wasn’t sharp enough. I tried it on my hands.”

[25] Upon being placed in the police cruiser, the appellant was told by the first officer that he was under arrest for aggravated assault and was provided with the rights to counsel and cautioned, in standard format. The appellant indicated that he understood each of these items of information, and responded that he had no lawyer in Barrie, but that he would speak with duty counsel.

[26] The trial judge found that the appellant’s utterances were made in violation of his s. 10(b) Charter rights. She found that the appellant was not given his s. 10(b) rights at the first opportunity. In particular, the trial judge found that the first opportunity was not when the appellant was placed in the police cruiser, as between five to ten minutes had elapsed between his detention and the time that the appellant was removed from the home. No appeal is taken from that conclusion by the trial judge.

[27] Having found a s. 10(b) breach, the trial judge then considered whether the evidence ought to be excluded under s. 24(2). She concluded that it should not. The appellant says that the trial judge erred in her s. 24(2) analysis. I agree.

[29] In my view, the trial judge erred in her analysis of all three of the Grant factors. First, as found by the trial judge, the officers delayed in providing the appellant with his rights to counsel. The fact that the officers did not do so deliberately does not lessen the nature of the breach. It simply does not aggravate it. The officers did not offer any explanation for the delay. The crime scene was being adequately handled by the many other officers who were on scene (including two sergeants) and the victim was being treated by paramedics.

[30] The right to counsel is an extremely important right. Persons who are detained by the police may need immediate advice and counsel. As explained by McLachlin C.J. and Charron J. writing for the majority in R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para 41: “[a] situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected.” And, as Doherty J.A. observed in R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 34: “[t]he effective implementation of the right to counsel guaranteed by s. 10(b) depends entirely on the police.”

[31] It is not up to the police to decide when they will get around to providing rights to a person whom they have arrested. The failure of the police to understand this basic proposition is a serious matter and must be treated as such when it is breached.

[32] Second, the breach of a person’s rights, and the extraction of utterances from that person, is not “tempered” by the fact that the police have other evidence of a similar type, properly obtained. The fact remains that the police have extracted potentially incriminating evidence in violation of a guaranteed right. The maxim “no harm, no foul” has little place in the assessment of a violation of constitutionally protected interests. I would note that, both in the final instructions to the jury, and in the Crown’s closing submissions, the admitted utterances were given prominence.

[33] Third, the trial judge’s analysis of inclusion versus exclusion is inconsistent with her earlier analysis of the importance of the evidence. Having lessened the impact of the evidence obtained under the second Grant factor, the trial judge then reversed course in finding that the evidence was “highly relevant” under the third Grant factor. The fact is that the evidence was not necessary to the prosecution’s case and this fact argued in favour of its exclusion.

[34] I would set aside the trial judge’s decision regarding s. 24(2) and exclude the evidence from any new trial.

R v ZWC, 2021 ONCA 116

[February 25, 2021] Prior Discreditable Conduct Evidence [Reasons by Strathy C.J.O. with David Watt and B. Zarnett JJ.A. concurring]

AUTHOR’S NOTE: The list of Crown rationalisations to try to lead prior discreditable conduct evidence, particularly in domestic violence cases is long, but often there is just one underlying purpose: to obtain a conviction. The power of such evidence to sway triers of fact is impossible to refute. The rationalizations include a stated desire to prove: animus, reasons for the complainant’s failure to report abuse earlier, reasons why the complainant stayed in the relationship, narrative, etc… In the face of this reason and rationalisations for admissibility, there is the principle that such evidence is presumptively inadmissible due to the very power to overcome legal logic with propensity reasoning. This case provides a particularly poignant example of what can happen when the Crown is permitted to go too far. Ultimately, instructions can rarely cure the effect of such evidence.

However, this case is useful for an argument that a jury should, in the very least, be instructed before they hear this sort of evidence about the permissible uses of it to lessen the prejudicial impact. 

Overview

[2] The appellant appeals his convictions on the ground that the trial judge erred in admitting evidence of the appellant’s alleged prior sexual and physical abuse of the complainants. The appellant submits that the volume and extent of this evidence had significant prejudicial effect on the jury, particularly, but not exclusively, by way of reasoning prejudice. He asserts that the trial judge failed to properly weigh the prejudicial effect of the evidence against its probative value. Had that balancing occurred, he argues that the trial judge would not have admitted the evidence, or would have curtailed the evidence and given the jury a more appropriate instruction about its permitted and prohibited uses.

[3] For the reasons that follow, I would allow the appeal.

[6] Both C.Q. and C.L. claim that the appellant abused them, physically and sexually, before and after the family moved to Canada. Some of their allegations of sexual abuse in Canada formed the basis of the indictment. However, most of the evidence of uncharged prior discreditable conduct related to events that occurred in China. I will describe the acts referred to in the indictment before I turn to (1) the Crown’s application to admit the evidence of uncharged prior discreditable conduct, and (2) the evidence that was eventually admitted pursuant to the trial judge’s ruling.

[Allegations of CQ and CL on the Indictment included: forced intercourse on CQ when CQ was menstruating or pregnant, and molestation of CL (Paras 7-11, 14)]

The Uncharged Prior Discreditable Conduct

In relation to CQ

[18] The Crown proposed to introduce the following evidence of the appellant’s conduct towards C.Q., all of which occurred in China before 2006:

• In 1998, the appellant placed a “butcher knife” under his pillow and told C.Q. that she “belonged” to him;
• Between 1998 and 2006, the appellant regularly sexually assaulted C.Q. when she was menstruating; In 2001, the appellant sexually assaulted C.Q. within ten days of her giving birth to L.L.; and
• Shortly after L.L.’s birth, the appellant slapped C.Q. on the ear.

[19] In March 2006, C.Q. moved to Canada on a two-year work permit. In July 2008, she visited China and stayed at the family home. The Crown proposed to introduce the following evidence of the appellant’s conduct towards C.Q. and C.L. during her visit to China between 2008 and 2009:

• C.Q. witnessed the appellant grab C.L.’s hair, push her to the ground, and step on her head. When C.Q. asked the appellant why he was doing this, he shoved her; and
• The appellant resumed sexually assaulting C.Q. when she was menstruating.

[20] The Crown also proposed to introduce the following evidence of the appellant’s conduct towards C.Q. in Canada between 2009 and 2014:

• In 2010, after C.L.’s 911 call, C.Q. learned about C.L.’s abuse and confronted the appellant, who not only denied the allegations but threatened to assault C.L. if she ever called police again; and
• In 2014, C.Q. saw the appellant cut himself on the edge of a table in their family home, and he responded by chopping off the edge of the table using a “cleaver.”

In relation to CL

[21] The Crown proposed to adduce the following evidence of the appellant’s conduct towards C.L. in China between 2006 and 2009:

• In 2006 or 2007, the appellant asked C.L. to sleep in the bed he shared with L.L. He subsequently climbed on top of C.L., positioned his penis between her legs, and moved around;
• On one occasion, the appellant got into the shower with C.L. and embraced her from behind, such that she felt his penis against her;
• When C.L. threated to tell her friends and teachers about the appellant’s inappropriate touching, he told her that they would think she was a “dirty whore”; and
• In July 2008, when C.Q. returned to China for a visit, the appellant grabbed C.L.’s hair, pushed her into a wall, and hit her face.

[22] The Crown also proposed to adduce the following evidence of the appellant’s conduct towards C.L. in Canada between 2009 and 2014:

• In 2010, C.L. called 911 after the appellant overheard a conversation that she was having with her sister. C.L. had told L.L. that the appellant was not the kind of person L.L. imagined him to be. The appellant interrupted C.L., pinched her arm, and hit her shoulder. C.L. ultimately recanted her allegations at C.Q.’s insistence, but informed her mother about the appellant’s abusive conduct; and
• Following the 911 call, the appellant repeatedly entered C.L.’s bed at night and, after L.L. fell asleep, climbed on top of C.L. and rubbed his penis against her thighs. Two of these instances were the subject of counts one and two on the indictment.

The Trial Judge’s Ruling to Admit the Evidence

[23] The Crown’s application to admit the evidence of uncharged prior discreditable conduct hinged on three grounds. First, the Crown argued the evidence was necessary to establish “animus,” specifically “a pattern of control [and] a pattern of possessiveness … to do the very acts that [the appellant] is alleged to have done.” Second, the Crown argued that the evidence would help contextualize the reason why C.Q. stayed in a relationship with the appellant. Finally, the Crown asserted that the evidence would explain why the complainants did not report the abuse to police. The Crown stated that the point of the evidence was to avoid “an antiseptic record” that left the jury without a “real sense” of the parties’ relationship.

[25] In brief oral reasons, the trial judge granted the Crown’s application. The trial judge found that defence counsel had been aware of the Crown’s intention to adduce the evidence since the pre-trial conference. With respect to the actual content of the evidence, he observed that there was an “overwhelming body of case law” permitting the introduction of such evidence to flesh out the narrative, to show animus, and, depending on how the evidence unfolded, to explain why the complainant spouse may have stayed in the marriage and delayed her reporting the abuse. The trial judge mentioned that, depending on the issues raised by the defence, he might be required to instruct the jury about the limited use of some aspects of the evidence.

Submission on Appeal

[89] The appellant concedes that the evidence in question had probative value in relation to three issues: (1) animus; (2) the complainants’ failure to report their allegations; and (3) C.Q.’s decision to remain in the marital relationship. He submits, however, that the trial judge erred in law by focusing almost exclusively on the probative value of the evidence of uncharged prior discreditable conduct, failing to consider the potential for prejudice, particularly reasoning prejudice, and failing to balance that prejudice against the probative value of the evidence.

[90] The appellant contends that in assessing the prejudicial effect of the evidence, the trial judge should have considered the volume and extent of the evidence and its impact on the jury. The evidence consumed approximately onethird to one-half of both complainants’ evidence-in-chief. In addition, the allegations were unproven and spanned an eight-year period in China. The nature and the volume of the evidence, taken together with the unstructured manner in which it was presented at trial, could have distracted the jury’s attention from the offences with which the appellant was charged. The evidence could have also “inflamed their passions”, with the result that the appellant was tried, not on the counts in the indictment, but on his uncharged prior discreditable conduct. The appellant asserts that the trial judge’s limiting instruction was insufficient to deal with reasoning prejudice. He argues that his right to a fair trial was impaired, and a new trial is now required.

The Governing Principles

[94] … The jury can all too readily use the evidence for an improper purpose. For example, the jury may conclude that the accused is a bad person who did bad things and ought to be punished, whether or not they committed the offences with which they are charged. And, as will be described below, there is a risk that evidence of uncharged allegations will confuse the jury and cause them to lose track of what the trial is all about – whether the prosecution has proven each of the counts on the indictment beyond a reasonable doubt.

[95] For these reasons, a trial judge must take great care to ensure that such evidence goes before the jury only after a determination that its probative value outweighs its prejudicial effect. If the evidence is admitted, the jury must be instructed, in an appropriate and timely way, about the proper and improper use(s) of the evidence. In order to make that distinction, the jury must be clearly informed of the purpose for which specific pieces of evidence may be used.

[96] The starting point, however, is that evidence of the accused’s uncharged prior discreditable conduct is presumptively inadmissible. This is due to the exclusionary rule against evidence of general propensity, disposition, or bad character: Handy, at para. 36. See also Morris v. The Queen, 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190, at pp. 201-2, per Lamer J. (dissenting, but not on this point); R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at pp. 367-68; R. v. B. (C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717, at pp. 734-35; and R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 40. Evidence of general propensity, disposition, or bad character is inadmissible if it only goes to establishing that the accused is the type of person likely to have committed the offence(s) in question: Handy, at para. 53, citing Arp, at para. 41. See also J.A.T., at para. 51; R. v. R.O., 2015 ONCA 814, 333 C.C.C. (3d) 367, at para. 15. Such evidence is also generally inadmissible when it is tendered to establish character, as circumstantial proof of the accused’s conduct: Handy, at para. 31; R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 221.

[97] This rule of exclusion does, however, yield on “exceptional” occasions: Handy, at paras. 60, 64. Evidence of uncharged prior discreditable conduct may be admitted if it is relevant, material, and the Crown establishes, on the balance of probabilities, that its probative value outweighs its prejudicial effect: J.H., at para. 54, citing Handy, at para. 55; Luciano, at para. 222; and J.A.T., at para. 51. In J.H., at paras. 56-60, Watt J.A. described the procedure to determine the admissibility of such evidence on a Crown application.

[98] The assessment of the probative value of the evidence requires the trial judge to consider: (a) the strength of the evidence that the extrinsic acts in question occurred; (b) the connection between the accused and the similar acts, and the extent to which the proposed evidence supports the inferences the Crown seeks to make (sometimes referred to as the “connectedness” between the similar act evidence and the “questions in issue”); and (c) the materiality of the evidence – that is, the extent to which the matters the evidence tends to prove are live issues in the proceeding: see David Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020), at pp. 74-75.

[99] The second and third factors must not be glossed over. The Crown must be prepared to establish exactly what inferences it will be asking the jury to draw from the evidence, and the extent to which the evidence tends to permit those inferences.

[100] Defence counsel should also be prepared to identify, to the extent possible, the issues that will actually be in play at trial. This may serve to eliminate the Crown’s need to adduce the evidence, or to limit the evidence required.

[102] Moral prejudice refers to the risk that the jury may convict the accused on the basis of “bad personhood”: R. v. McDonald, 2017 ONCA 568, 351 C.C.C. (3d) 486, at para. 83, citing Handy, at paras. 31, 71, 100, and 139. That is, not on the basis of the evidence, but on the basis that the accused is a bad person who is likely to have committed the offences with which they are charged. There is a related concern that the jury may punish the accused for their “prior bad acts” as revealed in the evidence of the uncharged prior discreditable conduct: R. v. D.(L.E.), 1989 CanLII 74 (SCC), [1989] 2 S.C.R. 111, at pp. 127-28.

[103] Reasoning prejudice, in contrast, diverts the jury from its task, and describes the risk that the jury will give the evidence more weight than is logically justified: see R. v. Bent, 2016 ONCA 651, 342 C.C.C. (3d) 343, at para. 46; R. v. Lo, 2020 ONCA 622, at para. 111; Handy, at para. 31. Reasoning prejudice may include the following:

• The jury becomes confused by evidence extrinsic to the charges on the indictment. Specifically, the jury “may become confused by the multiplicity of incidents, and become distracted by the cumulative force of so many allegations from their task of deciding carefully each charge one by one”: R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 68;
• The jury is distracted from the actual charges, and confused about which evidence relates to the crime charged and which evidence relates to the “similar fact” incidents: Handy, at para. 100;
• The evidence awakens in the jury sentiments of revulsion and condemnation that deflect them from “the rational, dispassionate analysis upon which the criminal process should rest”: Calnen, at paras. 176, 180, per Martin J. (dissenting in part, but not on this point);
• The accused cannot properly respond to the extrinsic evidence due to the passage of time, surprise, and/or the collateral nature of the inquiry: Paciocco, at p. 70; and
• Trial time is consumed by unduly focusing on whether the similar acts occurred: Handy, at paras. 83, 144. See also R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, at para. 39.

[104] In assessing the prejudicial effect of the evidence, the trial judge may consider a variety of factors, including: (a) how discreditable the conduct is – the more inflammatory and egregious the conduct, the greater the likelihood of moral prejudice: Lo, at para. 114, citing Handy, at paras. 83, 100, and 140; (b) the extent to which the evidence may support an inference of guilt based solely on bad character; (c) the extent to which the evidence may confuse the jury; and (d) the ability of the accused to respond to the evidence: Luciano, at para. 233, citing R. v. B. (L.) (1997), 1997 CanLII 3187 (ON CA), 35 O.R. (3d) 35 (C.A.), leave to appeal refused, [1997] S.C.C.A. No. 254.

[105] After considering the prejudicial effect of the evidence, the trial judge is required to engage in the familiar task of balancing the prejudicial effect against the probative value.

Uncharged prior discreditable conduct evidence in intimate partner violence cases

[106] As the trial judge accurately observed, evidence of uncharged prior discreditable conduct has frequently been admitted in domestic violence cases to describe the nature of the parties’ relationship, sometimes referred to as “context” or “background.” It is on this basis that the evidence is said to have probative value.

Where such evidence demonstrates a “strong disposition” to act violently or sexually towards the victim, it is not being used to prove the bad character of the accused but, as R. v. Batte explained, to support the specific inferences that the accused is disposed to act violently (or sexually) towards the victim and that the accused had that disposition on the occasion in question.

Whether the evidence will be admitted by exception or excluded under the general rule is a function of the circumstances of each case. These circumstances determine where the balance as between probative value and prejudicial effect will settle, not some prefabricated rule or exclusive list of exceptions: J.A.T., at para. 54.Despite the absence of any such rule or list of exceptions, evidence of uncharged disreputable conduct has often been received in prosecutions alleging assaultive behaviour in a domestic relationship, including charges of sexual assault. Among the issues upon which this evidence has been admitted are these:i. as part of the narrative of relevant events;ii. to provide context for other evidence;iii. to facilitate understanding of the nature of the relationship between the principals;iv. to demonstrate motive or animus on the part of the accused for committing the offences;v. to explain the failure of the complainant to leave the relationship or to report the abuse earlier; andvi. to rebut a claim of fabrication.See also F. (D.S.), at pp. 616-17; R. (B.S.), at para. 38.

[109] If evidence of uncharged prior discreditable conduct has probative value, for one of the reasons described above, and is admitted, the trial judge is required to instruct the jury on its use. That instruction should identify the evidence in question, and explain the permitted and prohibited uses of the evidence: R. v. Largie, 2010 ONCA 548, 101 O.R. (3d) 561, at para. 107, leave to appeal refused, [2010] S.C.C.A. No. 460, [2011] S.C.C.A. No. 119.

[112] The trial judge does not have to admit all the evidence tendered by the Crown. As the trial judge here noted, one “must consider whether the issue to be proven by the evidence can be established by evidence of a lesser prejudicial nature”: see Handy, at para. 83. The trial judge may thus limit the volume and extent of evidence that the Crown is permitted to adduce.

[113] In addition, or alternatively, the trial judge may admit the evidence, but only on the condition that it is edited, or it is adduced in a more restricted form, such as a statement or through excerpts of evidence at the preliminary hearing: see Paciocco, at p. 95, referring to Shearing, at para. 142; R. v. McLean (2002), 2002 CanLII 11684 (ON CA), 170 CCC (3d) 330 (Ont. C.A.), at para. 20.

Application of the Principles

[115] Although the trial judge acknowledged the need to assess both moral prejudice and reasoning prejudice, and found that the evidence was undoubtedly prejudicial, he did not actually consider the nature and extent of the reasoning prejudice that could arise, or balance that prejudice against the probative value of the evidence. Returning to the factors identified earlier in the assessment of the prejudicial effect of the evidence of uncharged prior discreditable conduct, we see that: (a) the evidence was highly discreditable, and included the alleged sexual assault of C.Q. when she was recovering from childbirth, a physical assault of C.L. as a young child, and multiple sexual assaults of both C.Q. and C.L. in China; (b) the evidence gave rise to significant moral prejudice, and a risk that the jury would infer the appellant’s guilt based on bad character; (c) the evidence introduced the real risk of reasoning prejudice by confusing the jury about which acts the appellant was being tried for; and (d) the evidence limited the appellant’s ability to respond, because the events occurred many years earlier in China, and any attempt to challenge the complainants’ allegations would likely have simply emphasized them in the jury’s eyes.

[116] A proper consideration of the evidence and its potential prejudicial effect should have led the trial judge to consider whether there were ways in which to mitigate its impact while preserving its probative value. It might have persuaded him to give a more timely and effective mid-trial instruction that prepared the jury for the reception of the evidence, explained how the evidence should be used, and cautioned them against its misuse.

[117] As the trial progressed, however, the prejudice was amplified by the manner in which the Crown presented the evidence – priming the jury with a dramatic opening statement, and front-end loading the trial with C.Q.’s lengthy and graphic recitation of various sexual and physical assaults allegedly perpetrated by the appellant in China, distinct in time from the offences with which the appellant was charged.

[119] I conclude that the trial judge’s failure to assess and balance the prejudicial effect of this evidence was an error of law. It allowed the probative value to overwhelm his analysis, and led to a body of highly prejudicial evidence being admitted at trial, unfiltered and uncontrolled. The prejudice was significant, in part due to the Crown’s failure to lay an appropriate foundation for the jury’s reception of the evidence, and in part due to the manner in which the evidence unfolded at trial. There is a real risk that the jury convicted the appellant for his uncharged prior discreditable conduct, and not for the offences with which he was charged.

Additional Observations

The Responsibility of the Crown

[122] In considering whether to proffer evidence of prior discreditable conduct, the Crown must start from the principle that such evidence is presumptively inadmissible, and its introduction is exceptional. It must be confined to cases in which the evidence is necessary, and where its probative value exceeds its prejudicial effect, having regard to both moral prejudice and reasoning prejudice. Vague terms, such as “narrative”, “context,” and “background,” cannot be permitted to serve as a substitute for a careful assessment of how the evidence will assist the jury in understanding other admissible evidence, what inferences the jury may properly draw from the evidence, and how impermissible reasoning can be prevented.

[123] The Crown must also provide a specific foundation for the admission of the evidence, to enable the trial judge to appreciate the nature and scope of the evidence it proposes to adduce, and to assess whether the probative value of the evidence exceeds its prejudicial effect.

[124] In this case, the trial judge may not have had the benefit of a full evidentiary record on the Crown’s application to admit evidence of the appellant’s uncharged prior discreditable conduct. There is no reference to a record in the Crown’s factum in the court below, no reference to it in the parties’ submissions on the voir dire, and no reference to it in the trial judge’s reasons. An appropriate record could have included extracts from the complainants’ evidence at the preliminary hearing or possibly other prior statements. This might have prompted the trial judge to press the Crown on whether the volume and extent of evidence could have been reduced, or whether the evidence could have been adduced in a more controlled manner.

[125] If the evidence is admitted, the Crown must take care to control the flow of the evidence so that it comports with the trial judge’s ruling and minimizes the risk of prejudice. It is apparent from the trial record in this case that the evidence of both complainants went well beyond the scope of the trial judge’s ruling.

Eliminating or minimizing prejudicial effect

[126] Both the Crown and defence must turn their minds to whether the necessity for the evidence can be eliminated, or its prejudicial effects reduced, by appropriate admissions or undertakings. The trial judge should press them to explore alternatives to the admission of the evidence, or to reduce its impact.

[127] In this case, the trial judge found that the evidence was admissible for three reasons: (a) to prove animus and the nature of the relationship; (b) to explain why the complainants had not reported their allegations; and (c) to explain why C.Q. had remained in the marital relationship. In response to the Crown’s application, defence counsel stated that he was not intending to cross-examine the complainants on why they had not reported the abuse earlier or why C.Q. had remained in the marital relationship. This commitment, had it been pursued, might have undermined a substantial part of the prosecution’s rationale for the admission of the evidence.

[128] Moreover, as the evidence unfolded at trial, both complainants’ explanations came up naturally and did not require reference to the prior abuse. C.Q. only discovered that non-consensual marital sex was illegal in Canada when she read a brochure at CAMH, which led to her reporting the abuse. And C.L. did not disclose the abuse because she was afraid that others would believe she was “dirty” and because of her mother’s fear they would be deported. An appropriate focus on eliminating or reducing prejudice might have foreseen this line of questioning and obviated the need for much of the contentious evidence.

Jury Instructions

[129] If defence counsel’s concessions and the complainants’ carefully tailored evidence were insufficient to address the three reasons for which the Crown sought to adduce evidence of the appellant’s prior discreditable conduct, then jury instructions could have served as an appropriate caution against inappropriate reasoning. For example, the trial judge could have instructed the jury that (a) they were not allowed to draw an adverse inference from the complainants’ delay in reporting: see R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275; and (b) they could not rely on the discredited myth that complainants always leave their abusive relationships.

[131] The trial judge might have invited the Crown to consider at what point in the trial the evidence was to be introduced, how it was to be introduced, and whether a contemporaneous mid-trial instruction would have been advisable, either before or immediately after the jury heard the evidence. Such an instruction might have, for example: (a) identified specifically, by date and with a brief synopsis, the uncharged prior discreditable conduct; (b) identified the jury’s permitted use of the evidence; and (c) identified the prohibited use of the evidence. In connection with the prohibited use of the evidence, the trial judge might have instructed the jury that they could not convict the appellant on the basis of “bad personhood” (i.e. “moral prejudice”), but also that they could not convict the appellant because they wanted to punish him for his uncharged prior discreditable conduct (i.e. “reasoning prejudice”). He might have instructed them that their task was to “keep their eye firmly on the ball” – namely, to determine whether the appellant was guilty, beyond a reasonable doubt, of the counts in the indictment, and not whether he was guilty of the uncharged prior discreditable conduct.

[132] Finally, great care must be taken in crafting final instructions to explain to the jury how they are to use, and how they are not to use, the evidence. It is not clear to me what the jury was expected to take from the instruction that the purpose of the evidence was to allow them to understand the nature and state of the family relationship prior to the allegations at issue, and to demonstrate the appellant’s “animus or dislike” of the complainants. If the evidence is being introduced as “narrative” – that is, as evidence that was not relevant and material in its own right, but to assist the jury in understanding admissible evidence – then it is incumbent on the trial judge to clearly instruct the jury on exactly how the evidence is to be used.

R v Dawkins, 2021 ONCA 113

[February 23, 2021] Hearsay: Co-Conspirators Exception [Reasons by Fairburn A.C.J.O. with M. Jamal and Coroza JJ.A. concurring]

AUTHOR’S NOTE: The three-part test that allows the use of co-conspirator’s out-of-court utterances to be used against the accused in the case for the Crown is explained throughly in this case.  A shortcut taken at trial through the first two stages resulted in an appeal. The case provides a good overview of the governing principles and a reminder that hearsay remains inadmissible until it passes through the test.  

The case additionally provides an explanation of what use can the guilty plea of a co-conspirator or co-accused have in a matter. The answer is not much that would be useful to the Crown.

Issues One: Use of a Guilty Plea of a Previous Co-Accused

[8] Therefore, proof of a conspiracy involves three essential components: (a) there was an agreement between two or more persons; (b) the purpose of that agreement was to pursue a common unlawful object; and (c) the accused was a member of that conspiracy, meaning that he or she had knowledge of the unlawful nature of the agreement and made a voluntary and intentional decision to join in the agreement to achieve the common unlawful object.

[9] In this case, the jury was instructed to forgo consideration of the first two essential elements of conspiracy: whether there was an agreement between two or more persons; and, if so, whether the agreement was to pursue a common unlawful object. Instead, the jury was instructed that, because Mr. Samuel had pled guilty to conspiracy, they were required to accept as a proven fact that those two elements had been proven beyond a reasonable doubt.

[11] The fact of Mr. Samuel’s guilty plea resulted in the trial judge instructing the jury that they must “accept as fact” the following things: (a) that there was a conspiracy between two or more people; (b) that the conspiracy was to import 17.3432 kilograms of cocaine into Canada; (c) that the conspiracy lasted between June 1 and 16, 2013; and (d) that Mr. Samuel was a member of that conspiracy. The impugned instruction reads as follows:

It is an agreed fact (Exhibit 1) that Mr. Samuel pled guilty to conspiracy to import 17.3432 kilograms of cocaine into Canada between June 1 and June 16, 2013. The Crown therefore is not required to prove the first two essential elements of the conspiracy offence. You must accept as fact that there was a conspiracy between two or more persons to import cocaine into Canada between June 1 and June 16, 2013. You must also accept as fact that Mr. Samuel was part of the conspiracy. [Emphasis added.]

[12] For the reasons that follow, I conclude this was an erroneous instruction.

A Guilty Plea Does not From Proof of the Offence

[13] A co-actor’s guilty plea is proof of nothing other than that the pleader was arraigned, pled guilty to the offence, and that there was some evidence to support that plea: R. v. Caesar, 2016 ONCA 599, 339 C.C.C. (3d) 354, at paras. 55, 59. It is an actual admission of guilt against the pleader only. To be clear, it establishes nothing in relation to alleged co-actors.

[14] The crime of conspiracy is not exempt from this rule. It is well established that the guilty plea of one alleged co-conspirator cannot be used to establish the guilt of another. In a comment particularly apposite to this case, Watt J.A. said in Tsekouras: “The pleas of guilty or convictions of other alleged co-conspirators are not admissible to prove the existence or fact of the conspiracy in the trial of another or other alleged co-conspirators”: R. v. Tsekouras, 2017 ONCA 290, 353 C.C.C. (3d) 349, at para. 177, leave to appeal refused, [2017] S.C.C.A. No. 225. See also R. v. Desgroseilliers (1986), 13 O.A.C. 225 (C.A.), at para. 29, leave to appeal to S.C.C. refused (1986), 74 N.R. 320 (note).

[15] While there are rare circumstances where the guilty plea of an alleged co-actor may be admissible in the trial of another, the fact of the guilty plea remains of limited use, admissible only to prove the fact of the arraignment and guilty plea: Caesar, at paras. 59, 62. Importantly, even in these rare circumstances, the guilty plea is not admissible to prove the facts underlying the plea. That is precisely how Mr. Samuel’s guilty plea was used in this case.

Issue Two: The Instruction on Membership – The Carter Error

[33] The jury was told that “the conspiracy alleged by the Crown and to which Mr. Samuel pleaded guilty was from June 1 to June 16, 2013.” In determining whether the appellant was a member of that conspiracy, the trial judge instructed the jury as follows:

You may consider not only the things that [the appellant] said and did but also what other known or probable members of the conspiracy said or did. [Emphasis added.]

[34] The appellant argues that this instruction was missing a fundamental element, arising from R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938. That element involves an intermediate step, requiring that the trier of fact first satisfy him or herself, based upon the accused’s own acts and declarations, that the accused is probably a member of the conspiracy. In my view, the jury charge fell short on this front.

The Carter Instruction

[35] The Carter instruction applies in any case involving an offence committed in furtherance of a common design where the Crown seeks to rely upon the acts and declarations of anyone else who formed part of that common design: R. v. Satkunananthan (2001), 2001 CanLII 24061 (ON CA), 152 C.C.C. (3d) 321 (Ont. C.A.), at para. 98. In this case, the impugned instruction involving the common design involves the crime of conspiracy, and so I will use language to match that offence.

[36] Acts and declarations are typically only admissible against the doer and maker: R. v. Puddicombe, 2013 ONCA 506, 299 C.C.C. (3d) 543, at para. 85, leave to appeal refused, [2013] S.C.C.A. No. 496. Yet, in the context of a conspiracy, the acts and declarations by one member of the agreement may become admissible against other members of the same agreement, if those acts and declarations are done or made in pursuit of the same unlawful purpose while the conspiracy is still operative.

[39] The Carter instruction involves three cascading steps, each one of which can bring the deliberative process in the context of a conspiracy case to an abrupt conclusion.

[40] The first question is whether the trier of fact is satisfied beyond a reasonable doubt that the alleged conspiracy existed. At this stage, the trier of fact may consider all of the evidence, including what alleged conspirators have done and said in furtherance of the common unlawful object: R. v. Yumnu, 2010 ONCA 637, 260 C.C.C. (3d) 421 (“Yumnu (ONCA)”), at para. 338, aff’d 2012 SCC 73, [2012] 3 S.C.R. 777.

[41] If the answer to the first question is yes, then the trier of fact goes on to consider, based upon all of the evidence directly admissible against the accused, whether the accused is probably a member of that conspiracy. This determination is made on a civil standard of a balance of probabilities. It requires the trier of fact to consider the accused’s own words and conduct – the evidence directly admissible against him or her – as viewed against its proper context: see R. v. Filiault (1981), 1981 CanLII 3165 (ON CA), 63 C.C.C. (2d) 321 (Ont. C.A.), at pp. 326-27, aff’d 1984 CanLII 72 (SCC), [1984] 1 S.C.R. 387.

[42] If the answer to the second question is yes, then the trier of fact goes on to consider whether the accused’s membership in the conspiracy has been proven beyond a reasonable doubt. This third step involves the conversion of probable membership into full membership or “actual participation” in the conspiracy: Yumnu (ONCA), at para. 340. Assuming that this stage is reached, the trier of fact will consider all of the evidence, including the acts and declarations of other alleged co-conspirators done and made in furtherance of the conspiracy while the conspiracy was ongoing in nature. See Carter, at pp. 946-47; R. v. Barrow, 1987 CanLII 11 (SCC), [1987] 2 S.C.R. 694, at p. 740; R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 8; R. v. Chang(2003), 2003 CanLII 29135 (ON CA), 173 C.C.C. (3d) 397 (Ont. C.A.), at para. 53.

[39] The Carter instruction involves three cascading steps, each one of which can bring the deliberative process in the context of a conspiracy case to an abrupt conclusion.

[40] The first question is whether the trier of fact is satisfied beyond a reasonable doubt that the alleged conspiracy existed. At this stage, the trier of fact may consider all of the evidence, including what alleged conspirators have done and said in furtherance of the common unlawful object: R. v. Yumnu, 2010 ONCA 637, 260 C.C.C. (3d) 421 (“Yumnu (ONCA)”), at para. 338, aff’d 2012 SCC 73, [2012] 3 S.C.R. 777.

[41] If the answer to the first question is yes, then the trier of fact goes on to consider, based upon all of the evidence directly admissible against the accused, whether the accused is probably a member of that conspiracy. This determination is made on a civil standard of a balance of probabilities. It requires the trier of fact to consider the accused’s own words and conduct – the evidence directly admissible against him or her – as viewed against its proper context: see R. v. Filiault (1981), 1981 CanLII 3165 (ON CA), 63 C.C.C. (2d) 321 (Ont. C.A.), at pp. 326-27, aff’d 1984 CanLII 72 (SCC), [1984] 1 S.C.R. 387.

[42] If the answer to the second question is yes, then the trier of fact goes on to consider whether the accused’s membership in the conspiracy has been proven beyond a reasonable doubt. This third step involves the conversion of probable membership into full membership or “actual participation” in the conspiracy: Yumnu (ONCA), at para. 340. Assuming that this stage is reached, the trier of fact will consider all of the evidence, including the acts and declarations of other alleged co-conspirators done and made in furtherance of the conspiracy while the conspiracy was ongoing in nature. See Carter, at pp. 946-47; R. v. Barrow, 1987 CanLII 11 (SCC), [1987] 2 S.C.R. 694, at p. 740; R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 8; R. v. Chang(2003), 2003 CanLII 29135 (ON CA), 173 C.C.C. (3d) 397 (Ont. C.A.), at para. 53.

[48] The trial judge accepted this submission and ultimately collapsed the instruction into the third stage of Carter. Accordingly, the jury was invited, from the outset, to consider the acts and declarations of “other known or probable members of the conspiracy” in determining whether the appellant was also a member of that conspiracy.

A Carter Instruction Does Not Only Concern Itself with Hearsay

[49] While the Carter rule is often referred to as the co-conspirator’s exception to the hearsay rule – and it is that to be sure – it serves a broader purpose than just protecting the accused against hearsay.

[50] As explained earlier, at its core, the crime of conspiracy is about at least two people agreeing to pursue an unlawful object. By virtue of their joint enterprise, the enterprise being the agreement to pursue the unlawful object, the principle of implied agency is triggered. By reason of their partnership in crime, co-conspirators become one another’s agents, vicariously owning each other’s acts and declarations made and spoken in pursuit of the unlawful object during the currency of the conspiracy. As noted in Chang, at para. 55, the historical rationale for this rule rests in the accepted fact that “each party to the conspiracy implicitly authorize[s] the others to act and speak on his or her behalf in furtherance of the conspiracy; acts and declarations of one party could therefore be admitted as evidence against the others”.

[51] The principle of agency was explained by Martin J.A. in R. v. Baron and Wertman (1976), 1976 CanLII 775 (ON CA), 73 D.L.R. (3d) 213 (Ont. C.A.), at pp. 231-32. His description, at p. 231, has withstood the test of time:

The governing rule of evidence is not in doubt, although its application in a particular case often raises questions of great difficulty. The rule is based upon a principle of agency. If A and B have agreed to achieve a common unlawful purpose, then by their agreement each has made the other his agent to achieve that purpose, with the result that the acts and declarations of A in furtherance of the common design are not only A’s acts and declarations but, in law, are also B’s acts and declarations. The rule of evidence is not limited to charges of conspiracy but applies to any offence which is the result of preconcert. [Citations omitted.]

[52] The principle of agency is a powerful tool in the hands of the prosecution, one that cannot be resorted to lightly. Caution must be taken, lest an accused be convicted only on the basis of the acts and declarations of others. This is why there must be an initial showing of proof, based on the accused’s own connection to the alleged conspiracy, before the acts and declarations of alleged co-conspirators – as his agents – can be applied against him. Martin J.A. put it as follows in Baron, at pp. 231-32:

It is clear that where the fact in issue to be proved is whether a conspiracy exists between A and B, A’s acts, or declarations implicating B cannot be used to prove that B was a party to the conspiracy, in the absence of some other evidence admissible against B to bring him within the conspiracy. [Citations omitted.]

[55] It bears repeating what Doherty J.A. said in Puddicombe, at para. 85: “Generally, a declaration is admissible only against its maker and an act is admissible only against the doer of that act.” Stated the other way, the declarations and acts of others are not generally admissible against an accused. Therefore, this is more than a hearsay rule. It is a rule that ensures that before we allow evidence that would not otherwise be admissible against an accused to become a tool in the prosecutor’s case against him, there must be proof of the accused’s probable membership in the conspiracy, based only on evidence that is “directly admissible against the accused”: Carter, at p. 947; R. v. Lucas, 2014 ONCA 561, 313 C.C.C. (3d) 159, at para. 208, leave to appeal refused, [2014] S.C.C.A. No. 460; Puddicombe, at para. 99; Yumnu (ONCA), at para. 340. At its core, this is a rule of fairness.

The Effect of the Erroneous Instruction

It is not necessary that [the appellant] be the person who actually did the act in furtherance of the conspiracy, or even that he understood it or knew about it. Similarly, it is not necessary that [the appellant] be the person who actually spoke the words in furtherance of the conspiracy, or even that he was there when they were spoken. A conspiracy is like a partnership in crime. Each member is an agent or partner of every other member and is bound by and responsible for the words and conduct of every other member spoken or done while the conspiracy was ongoing and to further their unlawful scheme. [Emphasis added.]

[57] It was a short distance between those instructions and a finding of guilt.

[58] The respondent takes the position that this case consisted primarily of evidence directly implicating the appellant. That is true. However, the real question is whether there was evidence that was not directly admissible against the appellant or, conversely, evidence that could only be summoned in aid of proof of membership upon the application of the Carter rule. There was. I will use a few examples to make this point.

[59] First, even the trial Crown acknowledged that there was a critical text message string, located on the appellant’s and Mr. Samuel’s phones, that the trial Crown wished to rely upon for a hearsay purpose: the truth of its contents. While the trial Crown’s position morphed somewhat over the course of the trial, at the end of the day, even as doing away with the Carter instruction was being advocated for, the trial Crown acknowledged that the following key text message exchange, sent and received while the appellant would have been waiting for the plane to depart St. Maarten, was admitted for a hearsay purpose. The appellant’s phone sent a message to Mr. Samuel’s phone, reading: “Ok how much you have”. The reply from Mr. Samuel’s phone was: “9”. The trial Crown closed to the jury suggesting that what was being discussed in that text message was that Mr. Samuel was acknowledging he was carrying nine bricks of cocaine.

[60] Second, the trial Crown also emphasized Mr. Samuel’s acts. For instance, the trial Crown pointed out the fact that Mr. Samuel was a resident of Antigua and that he had travelled to St. Maarten the day before the flight to Toronto. The trial Crown emphasized for the jury Mr. Samuel’s travel itinerary, including his Antigua to St. Maarten to Toronto to Montreal to Antigua turnaround. The trial Crown pointed to stamps on Mr. Samuel’s passport to demonstrate his date of arrival in St. Maarten. The trial Crown also pointed to the fact that one of Mr. Samuel’s fingerprints was on a brick of cocaine recovered from the men’s washroom.

[61] The trial Crown relied upon all of these pieces of evidence and more to suggest that the appellant was a member of Mr. Samuel’s conspiracy. Importantly, when relating the evidence to the legal issue of membership, the trial judge reviewed these pieces of evidence and more. This was not evidence directly admissible against the appellant. A Carter instruction was required.

[79] … I would allow the conviction appeal on the conspiracy count. Therefore, the conviction on conspiracy is set aside, and a new trial is ordered on that count only.