This week’s top three summaries: R v Iqbal, 2021 ONCA 416: accused #fabrication test, R v Boyer, 2021 NSCA 47: #circumstantial evidence and #conspiracy, and R v Karuranga, 2021 SKCA 90: necessity of #expert voir dire.
R v Iqbal, 2021 ONCA 257
[June 14, 2021] Finding of Fabrication by an Accused [Reasons by Lorne Sossin J.A. with Fairburn A.C.J.O. and Doherty J.A. concurring]
AUTHOR’S NOTE: In this case the accused was disbelieved by the trial judge. Unfortunately, the trial judge did not then continue down the path suggested by W(D) to consider the rest of the Crown's case independently of the evidence of the accused. Instead, the testimony of the accused was used as evidence of his guilt, not because of admissions, but because of a finding that he had fabricated his testimony before the court. In the end, this reasoning was found to be erroneous because there was no independent evidence of fabrication. From a policy perspective, this reasoning route is barred because it is a form of reversal of the onus of proof. You cannot jump from disbelief of the accused's evidence to finding intentional fabrication because it ignores the Crown's obligation to prove the case beyond a reasonable doubt.
This case, while resulting in success for the appellant, brings with it one unwelcome distinction that may be at issue between the courts. In R v Beckett, 2020 BCCA 262 (summarized here: The Defence Toolkit - October 2, 2020) the BCCA applied this very same test to a statement made by the accused outside of court. The ONCA seems to suggest that this test ONLY applies to testimonial evidence of the accused. In this author's opinion there does not seem to be a principled basis for this distinction. Statements of the accused tendered as proof by the Crown in court proceedings are treated with the same or more protection than testimonial evidence of the accused in most circumstances including the application of test in W(D) to statements tendered by the Crown. Why should courts be permitted to jump from disbelief to fabrication without the same independent evidence where a statement is made to a police officer as opposed to in court? In any case, defence counsel in Ontario and elsewhere would be well advised to both argue that portion of this decision is obiter dicta and argue that it is wrong in principle.
Overview
[2] The events giving rise to the convictions took place in the early morning hours of October 26, 2015. The complainant alleged that a male stranger entered her apartment as she slept and threatened her with a knife.
[3] Identity was the primary issue at trial. The complainant made an in-dock identification of the appellant as the intruder. The appellant, who also lived in the building, was the only individual depicted in video surveillance footage of areas near the complainant’s apartment around the time of the incident.
[4] The appellant testified in his own defence and denied he was the intruder. To account for his appearance in surveillance footage at the relevant time, he testified that he had left his apartment and gone downstairs to his vehicle to retrieve his cell phone.
[5] The trial judge found the appellant guilty on all counts. She was satisfied beyond a reasonable doubt that the complainant had correctly identified the appellant as the intruder. In reaching this conclusion, the trial judge rejected the appellant’s evidence and found that he had attempted to mislead the court by “fabricating” or “concocting” a false explanation for his whereabouts around the time of the incident.
[7] For reasons that follow, I would allow the conviction appeal on the fabrication ground but find no errors in relation to the remaining grounds. I would therefore set aside the convictions and order a new trial on all charges.
Material Facts
[10] When she saw the intruder standing by her bed, the complainant began to scream. She said the intruder tried to make her stop screaming. He put his index finger to his lips and made the sound, "sh-sh-sh". When this failed to silence her, the complainant said the intruder got close to her face, took out a knife, and put it to his lips. He then pointed the knife towards her chin. The complainant continued screaming “madly”. The intruder left the room and fled the apartment.
[11] Once the intruder was gone, the complainant left her bedroom and saw that the front door to her apartment, which she had closed and locked before bed, was ajar. She then called 9-1-1. Officers arrived and spoke with the complainant. When speaking with the officers, the complainant noticed that her sliding patio door at the rear of her apartment was also open, despite having closed it before going to bed.
[12] Police subsequently discovered that the knife the intruder had used belonged to the complainant. The complainant told police that she had left a knife with a purple handle on the dining room table before going to bed, but officers could not locate it anywhere on the premises.
[13] The complainant gave a statement to police shortly after the incident. In her statement she described the intruder as a brown male in his late 30s, approximately five feet six inches tall with short dark hair, thin build, and big eyes. She said he was wearing a leather jacket and a scarf around his neck during the incident.
[14] In the course of their investigation, police reviewed the building’s CCTV video footage from around the time of the incident. That footage showed a man entering the building’s main lobby from the direction of the complainant’s first-floor apartment. The building’s security supervisor confirmed for police that the man depicted was the appellant, who lived in an apartment on the 21 st floor of the building.
[15] Police subsequently showed a photo lineup to the complainant which included a photo of the appellant. The photo of the appellant had been taken years earlier and showed him with a full head of black hair. The complainant did not pick the appellant’s photo out of the lineup. Nevertheless, police arrested the appellant nine days after the incident.
The Trial
[16] At trial, the complainant made an in-dock identification of the appellant as the intruder she saw in her bedroom. She also testified about the intruder’s appearance at the time of the incident.
[17] During cross-examination, the appellant’s trial counsel confronted the complainant with several alleged inconsistencies regarding her identification evidence, including:
- The complainant testified that the intruder was wearing a scarf during the incident. When confronted with still photos from surveillance footage of the appellant around the time of the incident, the complainant agreed he was not wearing a scarf.
- The complainant told police and testified at the preliminary inquiry that the intruder had a moustache. When confronted with still photos from surveillance footage of the appellant around the time of the incident, the complainant agreed he did not appear to have a moustache.
- The complainant indicated to police that the intruder was in his late 30s or early 40s. The appellant was 28 years old at the time of the incident. The complainant agreed with defence counsel that there was a “fairly big” difference between ages 28 and 40.
- After first telling police that the intruder had short dark hair, the complainant later described the intruder’s hair colour as mostly grey. Surveillance footage from the day of the incident showed that the appellant was balding with black hair on the sides of his head.
[20] The complainant’s 9-1-1 call was placed at approximately 3:21 a.m. She estimated that the intruder had woken her up at 3:16 a.m. and that three to five minutes had elapsed between the time the intruder left the bedroom and when she had gotten out of bed and called 9-1-1.
[21] Around these critical times, the appellant was the only person depicted on the surveillance video near the complainant’s apartment. According to the surveillance video, at 2:50:18 a.m. the appellant was near the rear exit door of the building using a handheld mobile device. At 2:50:45 a.m., he opened the rear door, wedged a stick in the door to prop it open, and exited the building. At 3:21:48 a.m., the appellant was pictured entering the lobby from the hallway where the complainant’s apartment was located. He eventually took the elevator back up to his floor.
The Appellant's Evidence about his Whereabouts
[22] The appellant lived on the 21 st floor of 43 Thorncliffe. He worked as a taxi driver.
[24] However, the appellant denied he was the intruder. He explained his appearance on the surveillance video at the relevant times by stating he had returned to his taxi in order to retrieve his cell phone, which he had inadvertently left behind after his shift. He explained that he had decided to use the rear door to exit the building, which he knew could be propped open, when he realized he did not have his key fob to get back in.
[25] The appellant stated that the mobile device he is holding in the surveillance video was an iPad Mini 2, not a cell phone. He testified that he was likely playing a game on the iPad as he walked.
[26] The appellant further testified that when he retrieved his cell phone from the taxi, he noticed he had a missed phone call from his girlfriend. He said he remained in the taxi to wait for potential taxi calls. While sitting in his taxi, the appellant said he called his girlfriend back, a phone call he estimated had lasted approximately 25 minutes.
The trial judge’s key findings
[30] The trial judge accepted the complainant’s eyewitness identification of the appellant as the man she saw in the apartment pointing a knife at her. She found the complainant “credible”, notwithstanding her failure to identify the appellant in the photo lineup: at para. 234.
R v Boyer, 2021 NSCA 47
[June 15, 2021] Circumstantial Evidence: Test in Villaroman and Conspiracy - The Trial Judge Must Avert to the Reasonable Alternatives Argued by Counsel in Reasons [Reasons by Beaton J.A., with Farrar and Derrick JJ.A. concurring]
AUTHOR’S NOTE: Conspiracy charges allow for the admission of hearsay evidence of co-perpetrators after passage through the three-part Carter test. However, at the end of the day, the test for conviction upon circumstantial evidence from Villaroman applies. This case demonstrates the necessity of jurists actually examining alternative inferences argued by the defence. It is insufficient for judges to plot their course and explain their conclusion without addressing the reasonable alternatives submitted by counsel.
Overview
[2] On November 1, 2019 Mr. Boyer was sentenced to 54 months custody for conspiracy to traffic marijuana, three years concurrent for conspiracy to launder proceeds of crime and 54 months concurrent for trafficking. The charge of laundering proceeds of crime garnered a concurrent sentence of three years. A tenyear weapons prohibition order and a DNA order pursuant to s. 487.051 of the Criminal Code were also imposed, along with victim surcharges.
[4] Mr. Boyer’s charges stemmed from a lengthy police investigation that began in January 2015. Between May 15 and October 9, 2015, a combination of surveillance and interception tactics fleshed out the details of an illegal drug trafficking operation, whereby individuals would travel from Vancouver to Halifax with large quantities of marijuana in suitcases. These couriers would then return to Vancouver with significant sums of cash in their luggage.
[5] At trial, Mr. Boyer did not dispute the existence of the operation. His defence challenged the circumstantial nature of the case and the Crown’s theory he was higher up the conspiracy ladder, with a more senior role as a director of the operation.
[7] For the reasons that follow I am persuaded the verdict was unreasonable. It is not necessary for me to address the other issues raised by the appeal. I would allow the appeal and enter acquittals on all counts.
Background
[8] Mr. Boyer came to the attention of police investigators as a result of a combination of tools and techniques employed to monitor and piece together the movements of individuals believed to be involved in an interprovincial marijuana trafficking operation. Those methods included accessing cell phone and airline records, interception of telephone communications (wiretaps), undercover visual surveillance, surreptitious electronic tracking of vehicles and the interception and search of couriers’ suitcases to record the contents (so-called “sneak and peek” operations).
[9] The investigators amassed evidence identifying certain individuals as couriers, and illustrating the arrangements for and movement of marijuana, secreted in the couriers’ suitcases, on flights from Vancouver to Halifax. Once in Halifax, the couriers would be met by a local member of the operation (“Taxi”) and taken to a hotel. Taxi would then depart with the suitcases, returning the baggage to the courier within several hours to a day. Immediately thereafter, Taxi would deliver the courier and suitcases to the Halifax airport for a return flight to Vancouver.
[10] Numerous times between May and October 2015, the police intercepted the couriers’ luggage. On outgoing flights to Halifax they recorded the contents of the suitcases as holding little except multiple, meticulously packaged bundles of marijuana. On the return flights to Vancouver searches revealed the luggage contained significant quantities of cash, usually in excess of $100,000, and on one occasion as much as $300,000.
[12] As noted by the Crown in argument before this Court, a considerable volume of evidence was put before the judge to develop the “baseline” of proof that implicated Mr. Boyer. An evidentiary framework was built, into which the Crown inserted particular events alleged to relate to Mr. Boyer’s role, given the circumstantial nature of the case against him. The Crown’s theory was that Mr. Boyer was a “director”, involved in the management of, but removed from the day-to-day activities of the trafficking operation.
[13] There were two aspects of the evidence that played a significant role in the Crown’s case against Mr. Boyer. Those were:
(a) A July 15, 2015 daytime undercover surveillance of Mr. Boyer’s residence.
(b) A series of September 2015 phone conversations between Mr. Boyer and alleged co- conspirator Mr. Lockett, and between Mr. Lockett and courier Mr. Germaine.
Analysis
[15] Mr. Boyer asserts the judge made findings of fact without considering other reasonable possibilities suggested by the evidence or absence of evidence. He maintains the failure to do so resulted in the judge entering verdicts which were not supported by the evidence and, as such, were unreasonable. He asks this Court to enter acquittals as the appropriate remedy.
[16] The analysis to be undertaken on an assertion of unreasonable verdict was discussed by the Court in R. v. Barrett, 2020 NSCA 79:
[45] In R. v. Lights, 2020 ONCA 128, Watt J.A. described our task on the assertion of an unreasonable verdict as this:
[30] A verdict is unreasonable if it is one that no properly instructed jury, acting judicially, could reasonably have rendered. This test requires not only an objective assessment of the evidence adduced at trial, but also, to some extent at least, a subjective evaluation of that evidence. To discharge this responsibility, we are required to review, analyse, and, within the limits of appellate disadvantage, weigh the evidence. This weighing is only to determine whether that evidence, considered as a whole, is reasonably capable of supporting the verdict rendered: R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 9; R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at p. 186; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36; R. v. Burns, 1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656, at p. 663.
[17] As noted earlier, the case against Mr. Boyer was grounded in circumstantial evidence—he was never seen with drugs or money, nor did the investigation suggest he had acted as a courier. My analysis must start from the approach described in R. v. MacDonald, 2020 NSCA 69:
[30] The trial judge was obliged to apply the law as it relates to circumstantial evidence correctly. Where it is alleged, as it is here, that the trial judge failed to consider other reasonable inferences arising from the evidence, the proper approach for appellate review is as summarized in R. v. Villaroman, 2016 SCC 33, at para 71:
... it is fundamentally for the trier of fact to draw the line in each case that separates reasonable doubt from speculation. The trier of fact's assessment can be set aside only where it is unreasonable...
[31] In a circumstantial case, a trial judge must have concluded that guilt was the only reasonable inference to be drawn from the evidence. (Villaroman, at para. 30) (Emphasis added)
(See also R. v. Roberts, 2020 NSCA 20 at para. 19.)
[20] Assessment of the reasonableness of the verdict rests in an examination of the evidence available to the judge, and how it was applied in view of the Villaroman principles. The judge first correctly set out the law in relation to conspiracy and the test he was to apply. He stated:
[9] To obtain a conviction on any of the conspiracy charges, the Crown must establish beyond a reasonable doubt that there was an agreement among two or more persons to commit the particular indictable offence set out in the charge and that Mr. Boyer was a party to that agreement.
[21] The judge then identified the long established three-step analysis provided in R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938 and confirmed again in R. v. Mapara, 2005 SCC 23 concerning the use of hearsay statements of co-conspirators.[2] It was critical to the Crown’s case that certain otherwise inadmissible hearsay evidence be determined admissible, on the road to meeting its burden, if it was to be successful in securing convictions against Mr. Boyer. ...
[22] Embarking on step one of the Carter analysis—to determine whether it was proven beyond a reasonable doubt the conspiracy existed—the judge set out in lengthy chronological order the details of the evidence gathered between May and October 2015. He began by stating at para. 16 “the facts are as follows” and continued with a recitation that consumed the bulk of the decision. That said, it was not incumbent on the judge to specifically preface each and every paragraph of his lengthy recap of the evidence with repetitive commentary to the effect of “this is a finding of fact”. It was also not necessary to repeat his factual findings made in the first step at each subsequent stage of the analysis.
[23] The facts found by the judge described the evidence that identified individuals involved in the operation, and details such as where and with whom they lived and the vehicles they drove. It “connected the dots” in terms of illustrating dates and points of contact between and among those people—how their various activities and movements connected them. The findings by the judge included the details of various Vancouver–Halifax–Vancouver trips by certain members of the operation, and what the contents of their luggage revealed on those trips.
[25] Following completion of his chronological listing of events revealed by the investigation, the judge then immediately concluded:
[111] The evidence shows an ongoing scheme of couriers consistently travelling to Halifax, being met by Mr. Withrow and after the tracking device was discovered on his Camry by others, he presence of the drugs and money was confirmed by the police searches of the couriers’ luggage.
[112] I find the Crown has proved beyond a reasonable doubt the existence of a conspiracy as charged in the Indictment, namely to traffic in cannabis marihuana, to transport currency with the intent to conceal or convert the currency, knowing and believing that it was obtained as a result of trafficking in cannabis marihuana, and to possess currency exceeding $5,000.00 knowing it was obtained by the commission of an offence punishable by Indictment.
[26] The judge found, on step one of the Carter analysis, that the Crown had established beyond a reasonable doubt the existence of a conspiracy.
[27] Turning to step two of the Carter analysis—whether the judge was satisfied on a balance of probabilities that Mr. Boyer was a member of the conspiracy—he again correctly identified the Crown’s burden and his task:
[113] At this stage, the trier of fact must determine, exclusively on the basis of “evidence directly receivable against the accused” whether the accused was probably a member of the conspiracy. The trier of fact is not to consider coconspirator hearsay evidence at this stage of deliberations. It is also at this stage, the determination is made whether others were probable members of the conspiracy.
The judge then set out the evidence against Mr. Boyer ...
[28] Those aspects of the evidence related to, mentioning or including Mr. Boyer were not conclusive of the Crown’s allegations against him. Mr. Boyer never disputed the existence of a conspiracy. Rather, he maintained he had no involvement with it whatsoever. More was needed to connect Mr. Boyer to the events and activities concerned. As noted earlier, there were two discrete aspects of the evidence the Crown relied upon to prove the conspiracy charges against him.
The July 15, 2015 surveillance
[29] Mr. Boyer asserts it is significant that the judge, in his conclusions on step one of the Carter analysis, did not find that cash had been delivered to Mr. Boyer’s residence during the July 15, 2015 surveillance of his home. This was important because a cash delivery would have linked Mr. Boyer to the couriers’ activities....
[30] What the judge did describe concerning that event was the following:
July 15, 2015
[50] Mr. Pilling returned to Vancouver from Halifax. He got two large blue suitcases from the baggage carousel. He left the airport at approximately 12:40 p.m. and drove directly to Mr. Boyer’s residence, Unit 103-3467 Gislason Avenue, arriving at approximately 1:57 p.m. A grey Chrysler 300 licence plate 356 WVP was parked east of Mr. Boyer’s residence in a visitors’ parking spot. Mr. Pilling removed two large suitcases from his Chevrolet Cruze and took them into the open garage of Unit 103. Mr. Pilling came out of the garage and retrieved papers from the Cruze and went back into the garage. At 2:13 p.m. Sgt. Shailver Singh walked by the open garage of Unit 103 and observed two suitcases – one open and empty and the other closed. Mr. Pilling left at approximately 2:05 p.m. After Mr. Pilling left, a white Dodge Ram pickup arrived. At 2:25 p.m. an unidentified male came out of the garage of Unit 103. He opened the rear door of the Dodge Ram. Then at approximately 2:30 p.m. the man again came out of the Unit 103 and drove away in the Dodge Ram. No one saw Mr. Boyer that day. Sgt. Singh did not see any cash or marihuana that day. (Emphasis added)
[31] The judge did not find or even infer the delivery of cash to Mr. Boyer. I do not agree the findings made by the judge could support what the Crown argues is the “unassailable” inference Mr. Boyer was the “intended recipient” of anything. Nothing in that paragraph of the judge’s decision could permit the significance the Crown asks be taken from it. The paragraph is conclusive only of the judge accepting Mr. Pilling was at Mr. Boyer’s residence with two suitcases, one seen empty and one seen closed. The judge’s factual findings did not include a finding about the contents of the suitcases. This was confirmed by the judge later in the decision. During his analysis on part two of the Carter test (whether the accused was probably a member of a conspiracy), the judge again found:
July 15, 2015
[117] Mr. Pilling returned to Vancouver from Halifax and drove directly to Mr. Boyer’s residence. He took two suitcases into the open garage of Mr. Boyer’s residence. Two suitcases were observed in the garage, one open and empty and the other closed. No one saw Mr. Boyer that day. No marihuana or cash was seen that day. (Emphasis added)
[32] The surveillance evidence had no greater significance than that which the judge afforded it. I agree with Mr. Boyer that: (i) the judge did not make any finding that Mr. Pilling made any delivery or that the suitcases contained anything, much less proceeds of crime from Halifax; (ii) the judge did not find that Sgt. Singh saw in the garage the same two suitcases Mr. Pilling had taken from his flight to Vancouver earlier on that same day.
[33] I cannot agree with the Crown’s argument that the judge accepted a delivery of cash had occurred, much less that it was a delivery to Mr. Boyer as opposed to anyone else. Mr. Boyer’s guilt is not the only reasonable explanation for the observations made during the surveillance. This is significant, as the record does not reveal any other evidence that could connect Mr. Boyer to the receipt of sums of money. We do not know if the judge considered any alternate reasonable inferences, but he did not find the significance of that event attached to Mr. Boyer in the manner the Crown sought to use it.
[35] With respect, it is also not clear how the judge found Mr. Boyer to be a “probable member” of the conspiracy. The judge explicitly indicated he did not consider the evidence of the money counter, food saver equipment and cash found in a search of Mr. Boyer’s residence to be inculpatory. In doing so, the judge applied the Villaroman principles in allowing for the availability of other reasonable explanations for the presence of those items.
[36] In effect, the judge identified the evidence “directly receivable” against Mr. Boyer and then chronicled a series of events, culminating with the statement (in para. 133) that he was satisfied on a balance of probabilities Mr. Boyer was a member of the conspiracy. However, the judge did not explain how it was the evidence he was prepared to accept connected to and informed his conclusion that Mr. Boyer was probably part of the conspiracy.
[37] Further difficulty arises in relation to the third stage of the Carter analysis. The judge began consideration of the third step by again reminding himself of the Crown’s burden:
[137] At this stage the trier of fact must determine whether the Crown has proved the accused’s membership in the conspiracy beyond a reasonable doubt. At this stage the trier of fact is entitled to consider the hearsay acts and declarations of co-conspirators made in furtherance of the objects of the conspiracy.
[138] The standard “beyond a reasonable doubt” is very different from the standard of “a balance of probabilities”. The Crown is required to prove each essential element of an offence beyond a reasonable doubt.
[38] The judge then recounted the principles articulated in Villaroman including regarding the use to be made of other reasonable inferences. Notwithstanding having armed himself with those principles, the judge did not proceed to conduct that aspect of the exercise. The record does not reveal the judge considered or examined the alternative inferences he was invited by the defence to make. Had he done so in a manner that could now be identified, and still concluded Mr. Boyer’s guilt, Mr. Boyer’s objections would be baseless. [Emphasis by PM]
[39] It was part of the judge’s task to consider the reasonableness of any alternative inferences or conclusions that might be drawn from the evidence or absence of evidence, including from other explanations offered by Mr. Boyer at trial. With respect, it is not possible, as part of the task of meaningful appellate review, to discern whether the judge considered any such alternatives. While not incumbent upon him to address every single possibility, nor to do so at length, the judge’s reasons do not indicate whether there were other possibilities considered or, if they were, why they were rejected. [Emphasis by PM]
The telephone calls
[40] Certain evidence, consisting of telephone conversations between Mr. Boyer and a co-conspirator, and between other co-conspirators that referenced Mr. Boyer’s involvement, were also critical to the Crown’s case against Mr. Boyer.
[41] Paragraph 45(f) of the Crown’s Factum states:
A number of intercepted communications tied the appellant directly to the conspiracy to traffic drugs into Halifax. Some of those communications were his own, while some others were by third parties, but which became admissible under the well-established exception to the hearsay rule. These calls include:
i. Locket [sic] and Germaine complaining about “Major” (the appellant) and his failure to take care of certain logistical matters because he was partying.
ii. Germaine, upon his return from Halifax, asking Lockett who he should go see, between Lockett and the appellant.
iii. A call where Lockett discusses getting a suitcase from Neumann.
iv. Calls by Newmann to Lockett and to Air Canada complaining about his “lost” suitcase after the RCMP seized the drug cash therein. (Footnotes omitted)
[42] Mr. Boyer maintains there was nothing in the evidence that could link him to trafficking in the specific location of Halifax, an element of the conspiracy charges the Crown was required to prove. The Crown contends in “subtle but clear ways” it can easily be seen Mr. Boyer was a director in the trafficking operation. The Crown says it was in looking at all of the surrounding circumstances that the judge made the determination there was a conspiracy, and was satisfied the location of it was Halifax.
[43] A phone conversation described at para. 140 of the judge’s decision led him to conclude, while conducting the third step of the Carter analysis (proof of membership in a conspiracy beyond a reasonable doubt), Mr. Boyer was the “Major” referred to in a conversation between two conspirators:
[140] In a phone conversation between Reece Germaine and Stephen Lockett on September 8, 2015, the following exchange took place. Mr. Germaine is Voice 1 and Mr. Lockett is Voice 2:
VOICE 2: Just come, just come by, ma-maybe just come by after the traffic, eh?
VOICE 1: Yeah, that’s what I might do. I’m gonna go home, chill, drop my shit off, shower and then I’ll come out VOICE 2: Yeah VOICE 1: That way. Should I come to your house or go to Major’s? VOICE 2: Yeah, come to me. No, he, he’s away for two weeks buddy VOICE 1: Oh, where is VOICE 2: _________ VOICE 1: He?
VOICE 2: Yeah, he went, he ____ married and then he’s goin’ on a honeymoon VOICE 1: Oh right. He went to uh VOICE 2: Yeah VOICE 1: Ta-tahiti or somethin’ VOICE 2: Yeah VOICE 1: Like that VOICE 2: Yeah, he’s goin’ to California first to get married there and then they’re goin’ to Tahiti VOICE 1: Wow
[141] The evidence shows Mr. Boyer was married in California on September 10, 2015 and his passport and his conversation with Mr. Lockett of September 16, 2015 establish he was in Tahiti. I find Mr. Boyer is the “Major” referred to in the above conversation. (Emphasis added)
[44] However, there is nothing in that phone conversation which ties Mr. Boyer to Halifax, and no mention of Halifax during that conversation.
[45] I return to (and repeat here for ease of reference) the judge’s description at para. 120 of the September 16 phone conversation between Mr. Boyer and Mr. Lockett. The call represents evidence capable of bearing other reasonable inferences that are inconsistent with Mr. Boyer’s guilt. The judge wrote:
[120] Mr. Boyer, who was in Tahiti, called Mr. Lockett. During the course of the conversation, they discussed business in which they were both involved. When speaking about people, they did not use names. The following exchanges took place. Mr. Boyer is Voice 1 and Mr. Lockett is Voice 2:
VOICE 1: What, um, tsk, you, you know the, the Hami guy?
VOICE 2: Yeah, yeah VOICE 1: What’s he sayin’?
VOICE 2: Uh, he’s ready next week again VOICE 1: Okay, we can do, like, uh. Yeah, okay VOICE 2: Yeah, so I’ll hit him with that and then he’s askin’ for more. You remember that other thing we, we gave him?
VOICE 1: Yeah VOICE 2: He’s askin’ for double that VOICE 1: He wants more of it VOICE 2: So ___ VOICE 1: He was happy with it?
VOICE 2: Yeah, yeah. So I, I doubled, he wants double that so I put the order in for that. That’s gonna be ready next week. So that’ll go out too VOICE 1: Okay, good. You, you talked to my buddy _______. ‘Kay, if, if my other buddy asks don’t let him know that we’re doing this right now, like, if, uh VOICE 2: No, I won’t, I won’t
And
VOICE 1: And did, did you ever talk to the Asian guy?
VOICE 2: Ah, no, he didn’t fuckin’ buzz me at all VOICE 1: What’s that?
VOICE 2: He, he hasn’t VOICE 1: ___________ VOICE 2: Buzzed me at all the Asian guy. No. Uh, which, which is Asian guy I cant’ [sic] remember VOICE 1: Okay, hit him up, hit him up then VOICE 2: Okay. Wh-which, which is he again?
VOICE 1: China
VOICE 2: Oh China. Ah, that’s right. Yeah, yeah. Okay, okay. Yeah, I’ll hit him up see what the fuck’s goin’ on with him
VOICE 1: So hit him up. I already told him that you would be talkin’ to him and he said no problem
And
VOICE 2: Buddy’s out in H now and, uh, he’s gonna be about thirty short but I said, whatever, just get what you can
VOICE 1: Whatever I don’t care
VOICE 2: Yeah, I just thought I fuckin’ better get somethin’ here, man. Who knows what’s gonna happen
VOICE 1: We just gotta get it out of there, right VOICE 2: Yeah, (Short laugh) exactly. Exactly, so VOICE 1: (Laughs) VOICE 2: So at least it will be close anyway, right VOICE 1: Okay, chippin’ away at least. Chippin’ away. What about, uh VOICE 2: Yeah, exactly VOICE 1: Black guys VOICE 2: I’m still grabbin stuff VOICE 1: What about the black guys?
VOICE 2: Uh, the black guys. Yeah, he’s sayin’ any day too. And I’ll, I’ll be fine I’ll uh VOICE 1: Oh, okay, that’s okay then.
VOICE 2: That’s, that’s for him
VOICE 1: This is all right VOICE 2: Yeah, yeah, it’s just, you know, when, when, when H goes down, fuck, I mean, that’s what takes all your time so I’m fuckin’ bored. But it’s been good
[46] There is one reference to “H” and one to “Hami”. Mr. Boyer argues the judge could not have reached the conclusion he did at para. 145 of the decision:
[145] It is clear from the phone conversation between Messrs. Lockett and Boyer on September 16, 2015 they were involved in business together. In the conversation Mr. Lockett said “Buddy’s out in H now.” People do not speak like that. A person may say, Buddy’s in Hamilton or Hawaii or wherever. Using the initial was an attempt to hide what was being said. Det. Sgt. Babiar described how drug dealers use initials instead of the name of a place. In fact at the time of the conversation, Mr. Telford was in Halifax. I find the conversation dealt with drug trafficking in Halifax.
[47] While the judge referred to Mr. Telford being in Halifax, he did not explain the relevance, or how that connected to Mr. Boyer. Mr. Boyer maintains the judge’s finding that “H” meant Halifax was the lone fact connecting him to a conspiracy in Halifax and Mr. Telford’s presence in Halifax was the only link. [Emphasis by PM]
[48] Furthermore, Mr. Boyer argues, the judge based his finding of Mr. Boyer’s culpability as a conspirator on a single telephone conversation, the same one for which he concluded “H” meant Halifax, without having considered any other reasonable inferences to be drawn from that conversation.
[49] Defence counsel had suggested to the judge several possibilities for “H”, other than Halifax. On the face of it, the judge’s conclusion that “H” is a reference to Halifax violates the Villaroman doctrine as it never considers or makes room for other reasonable possibilities. If the judge did do so, there is no indication of it.
[50] The record indicates numerous possibilities for “H” were suggested to the judge in closing submissions, but his reasons do not make clear they were considered, much less rejected. This was significant, as the finding “H” meant Halifax was the single fact that established Mr. Boyer’s involvement in a conspiracy taking place in Halifax.
[53] The Crown maintains the judge obviously considered other reasonable inferences, as demonstrated by his findings that there were alternative explanations for the significance of Mr. Boyer’s two fingerprints found on a plastic baggie, and the money counter, food saver/sealer machine and cash seized during the search of Mr. Boyer’s residence. It is unfortunate this was the only mention by the judge of alternate explanations for evidence. We cannot know whether that same analysis was exercised in relation to other alternative theories for the circumstantial evidence, either as offered to the judge or presented by the evidence.
[54] We do not know why the judge was satisfied the telephone conversations to which he referred in his decision pointed to no other conclusion but the involvement and role of Mr. Boyer in a conspiracy occurring in Halifax. There was no meaningful link between what the judge articulated as facts and how they then informed his conclusions. Respectfully, the judge does not appear to have made room for, considered or rejected other reasonable inferences.
[55] The Crown asks us to consider that because Mr. Boyer did not testify at trial, his submissions to the judge that “H” could mean locations other than Halifax was merely speculative. While he was not obliged to do so, the Crown suggests Mr. Boyer could have testified (with immunity under the Canada Evidence Act as to any other offences in which he might then have been engaged) to explain his reference to “H” in the September 16, 2015 telephone conversation....
[56] Although Mr. Boyer did not testify to provide alternate explanations, that does not resuscitate an otherwise unreasonable or unsupportable conviction. In Barrett, supra, the implications of not testifying were discussed:
[48] Without casting aside either the presumption of innocence or the burden of proof resting with the Crown, an observation by the court in Lights, supra, echoes in this case. Like Mr. Barrett, the accused in that case did not testify at trial. The court noted:
[33] When the claim of an unreasonable verdict rests on the assertion that, based on the evidence, the trier of fact could not have reasonably rendered the guilty verdict, an appellate court is entitled to consider that the accused did not testify at trial or adduce other evidence to support any other reasonable inference consistent with innocence: Corbett v. The Queen, 1973 CanLII 199 (SCC), [1975] 2 S.C.R. 275, at pp. 280-81; R. v. Wu, 2017 ONCA 620, at para. 16.
[49] All his criticisms of the perceived flaws of the quality of the corroborative evidence are without the benefit of any alternative evidence from Mr. Barrett. This observation is not intended to suggest any burden on him or any other accused at trial, but it does now permit us to regard the trial evidence through that lens. (See also R. v. Roberts, 2020 NSCA 20 at para. 52.)
[57] I recognize the absence of evidence from Mr. Boyer, although he did call evidence on certain matters.[3] However, the evidence that was before the judge, even without Mr. Boyer’s own testimony as to alternative explanations, does not support his guilt as the only reasonable conclusion. In making that observation, I recognize the role of the Court is not “… to retry the case or in effect to act as a 13th juror …” (R. v. Anderson, 2020 ONCA 780 at para. 30).
[58] The judge assumed everything Mr. Lockett did involved Mr. Boyer, without indicating whether he considered the possibility that Mr. Lockett, a person with whom Mr. Boyer associated, could have been engaged in a different conspiracy or operation that did not include Mr. Boyer. For example, certain aspects of the intercept evidence pertaining to Mr. Lockett included discussions, with no mention of Mr. Boyer, about people working for one “Bone” or “T-Bone”, leaving ample room for the possibility that person was the directing mind providing instructions to couriers. [Emphasis by PM]
[59] I agree with Mr. Boyer’s argument that because intercepted communications link other people known by or associated with him to activities in Halifax does not mean, beyond a reasonable doubt, he was involved in those activities. Considered objectively, the evidence is equally consistent with him having had some other type of connection to or relationship with the people the Crown asserts were his co-conspirators.
[60] At para. 149 of his decision, the judge stated:
[149] In the conversation between Messrs. Boyer and Lockett on September 16, after pleasantries about his trip, it was Mr. Boyer who asked the first question about business:
What, um, tsk, you, you know the Hami guy?
Mr. Boyer goes on asking Mr. Lockett questions to be brought up to date about the business. Mr. Boyer then gives directions to Mr. Lockett. Mr. Boyer appears to be senior to Mr. Lockett in the organization. In his report, Det. Sgt. Babiar addresses the controlling minds of the drug operation stating:
In large scale drug distribution schemes there is generally an individual or individuals working cooperatively directing the operation(s). ... Those making the decisions overseeing the operations are at the top end of the hierarchy.
The evidence shows this was a large scale drug operation. The searches of the couriers’ luggage establish large quantities of cannabis marihuana were involved worth hundreds of thousands of dollars. I find that Mr. Boyer was a person directing the operation along with Mr. Lockett.
[61] It is not clear how the judge concluded Mr. Boyer was directing the operation with Mr. Lockett. Perhaps he did so on the basis of the telephone conversation he recounted between Mr. Lockett and Mr. Boyer, or on the basis of the telephone conversation he had earlier described between Mr. Lockett and Mr. Germaine; it is not apparent. The judge then goes on to state “Mr. Boyer appears to be senior to Mr. Lockett in the organization”, but does not explain what evidence he relied on to reach that conclusion.
[62] I am persuaded by Mr. Boyer’s argument that a number of aspects of the evidence relied upon by the Crown to construct its case against him can support other reasonable inferences inconsistent with his guilt.
[63] Reading the record, there were other ways to look at the evidence, including those suggested to the judge. Presuming for the moment the judge rejected these alternative explanations, I am unable to conclude why or on what basis he did so, or how and why the evidence propelled him to the conclusions he reached.
[64] I recognize the length of the trial and the volume of evidence put before the judge was not slight. However, I am not persuaded the judge “… grappled with the substance of the live issues on the trial” (R.E.M., supra, at para. 64). While “… it remains fundamentally for the trier of fact to decide whether any proposed alternative way of looking at the case is reasonable enough to raise a doubt” (R. v. Lights, 2020 ONCA 128 at para. 71), we do not know if the judge took account of those proposed alternatives. That leaves the unanswered question: why was it the judge was left with no reasonable doubt?
[65] The absence of any confirmation of consideration of plausible alternatives makes it impossible to discern why the judge was satisfied the only reasonable explanation, on the totality of the circumstantial evidence, was the guilt of the accused. A review of the judge’s decision does not indicate he considered any alternatives—an integral component in the exercise of the assessment of a circumstantial case.
Conclusion
[66] The totality of the evidence could not support the convictions entered against Mr. Boyer. Given the determination of the unreasonable verdict, the appropriate remedy is to quash the convictions. There is no possibility, on the evidence contained in the record, that a properly instructed trier of fact might convict.
[67] I would allow the appeal, quash the convictions and enter an acquittal on each of the six counts of the Indictment.
R v Karuranga, 2021 SKCA 90
[June 11, 2021] Drug Expert - Voir Dire Necessary & Baldtree Evidence [Reasons by Kalmakoff J.A. with Jackson and Whitmore JJ.A. Concurring]
AUTHOR’S NOTE: When expert evidence is led improperly at trial, the buck stops with the judge. Despite everyone else in the courtroom getting it wrong, the trial judge is the gatekeeper for opinion evidence and must maintain vigilance at all times. Here, a complete failure to have a voir dire or to adjudicate upon the expert's qualifications led to a new trial despite defence failing to raise the issue at any point.
Overview
[1] After a judge alone trial, Christian Karuranga was found guilty of trafficking in cocaine, contrary to s. 5(1) of the Controlled Drugs and Substances Act, SC 1996, c 19, and obstructing a police officer engaged in the lawful execution of his duty, contrary to s. 129(a) of the Criminal Code. Mr. Karuranga appeals against only the conviction on the cocaine trafficking charge. He says the trial judge made a number of errors in his treatment of the evidence and failed to grant a proper remedy for breaches of his rights under ss. 8 and 9 of the Canadian Charter of Rights and Freedoms.
The Facts
[5] Even though Mr. Karuranga has not appealed against the conviction for obstructing a police officer, a brief review the circumstances of that offence is useful for context. The charge arose from an incident that occurred on January 10, 2018. That evening, Mr. Karuranga was a passenger in the vehicle of a person named Iaroslav Smolianiuk. At around 11:30 p.m., a police officer, Cst. Paul Chabot, spotted Mr. Smolianiuk’s vehicle driving through an industrial area in the City of Estevan. Citing the time of night, the location, and the fact that there had recently been several break-ins in the area, Cst. Chabot stopped the vehicle.
[6] Constable Chabot asked Mr. Smolianiuk to provide his licence and registration. Mr. Smolianiuk complied. Constable Chabot then asked Mr. Karuranga to identify himself. Mr. Karuranga gave a false name. Feeling that the actions of both men were suspicious, Cst. Chabot instructed them to wait in Mr. Smolianiuk’s car while he returned to his police car to communicate with other officers and gather more information. This took approximately 20 minutes, throughout which Cst. Chabot had still not informed Mr. Smolianiuk and Mr. Karuranga of the reason for their detention. Constable Chabot was advised that the officers with whom he had communicated would be attending the scene, as they had information that led them to believe Mr. Smolianiuk was involved in drug trafficking, and they wished to investigate that further.
[7] When the other officers arrived at the scene, Mr. Smolianiuk and Mr. Karuranga were ordered to get out of the car. The police asked Mr. Smolianiuk if they could search his vehicle. He consented to the search and a drug detecting dog was brought in for that purpose. A small bag of marijuana was discovered on the passenger side of the car, near where Mr. Karuranga had been sitting. With that, the police arrested Mr. Karuranga for possession of marijuana and let Mr. Smolianiuk go. At the time of arrest, Mr. Karuranga had $800 cash in his pocket, comprised mostly of $20 and $50 bills.
[8] Mr. Karuranga was taken to the police station for processing. There, he was strip searched. The strip search involved an examination of his rectal and genital areas, to ensure that he had not concealed any drugs there. The police also conducted a warrantless search of Mr. Karuranga’s mobile phone.
[9] Throughout all of this, Mr. Karuranga did not inform the police of his real name. He was eventually released and given a document to compel his appearance in court under the false name he had originally provided.
[10] Members of the Estevan Police Service had also conducted surveillance of Mr. Karuranga between November of 2017 and March of 2018, as part of an investigation into suspected drug trafficking. This surveillance, combined with information police had received from a confidential informant, led to the execution of a search warrant at a residence in the town of Bienfait on March 15, 2018. This was not Mr. Karuranga’s residence; it was the home of a person named Joseph Waters.
[11] Over the course of the week leading up to the search warrant, police officers had seen people coming and going from Mr. Waters’ residence in a fashion that they believed to be consistent with drug transactions. Mr. Karuranga had also been observed at the residence and appeared to have free and unrestricted access to it.
[12] When the police attended Mr. Waters’ house to execute the search warrant on March 15, 2018, Mr. Karuranga was found on the couch in the living room. He had $320 in cash in his coat pocket. A wooden box containing 41 grams of marijuana was on a coffee table next to the couch, as was a box of unused plastic sandwich bags. Officers also located a folding knife in the couch and a set of nunchuks in an area between the living room and a bedroom. In the kitchen, police officers found a digital scale with white residue on it. In the kitchen garbage can, there were used plastic sandwich bags with corners cut off. Some of them also had white residue on them. There was a knife with white residue found on a living room shelf. The white residue on each of these items reacted positively to a presumptive test for the presence of cocaine.
[14] At trial, the Crown’s main witness on the cocaine trafficking charge was Detective Constable Mischa Shewchuk. He testified as to general observations he had made while conducting surveillance and during the execution of the search warrant. He also provided his opinions about the meaning or effect of various things he had observed, including:
(a) He considered a November 23, 2017 incident, where Mr. Karuranga had been seen getting out of the vehicle of a person named Robert Jones, who D/Cst. Shewchuk believed to be a cocaine user, to be “very suspicious behaviour” on the part of Mr. Karuranga.
(b) The amount of money and the denominations of the bills that had been seized from Mr. Karuranga during his January 10, 2018 arrest were “consistent with drug trafficking”.
(c) The events he observed while conducting surveillance at the Bienfait house on March 7 and 8, 2018, which involved people arriving at the residence on foot, going to the back door, and leaving a short time later, were consistent with drug transactions.
(d) He searched Mr. Karuranga’s tablet because “drug traffickers can use social media as well to talk to their customers…to line up drug transactions and such” and that a number of messages on Mr. Karuranga’s Facebook profile came from persons he believed to be drug users or traffickers.
(e) He answered an incoming call to Mr. Karuranga’s phone and communicated with the caller in coded language. The caller asked for “five”, which D/Cst. Shewchuk believed to be a request for “five packages of cocaine as that language is consistent with drug trafficking”.
(f) The white powder residue on the cut-up sandwich bags found in the Bienfait house during the execution of the search warrant had reacted to the presumptive test for cocaine was “…very common evidence that we find in cocaine trafficking investigations” and suggested cocaine trafficking because “those corners are basically cut off or ripped off, and used as packaging … for the packages that they sell to customers”.
[15] The Crown also called Robert Jones as a witness. He testified that he had purchased a small bag of cocaine from Mr. Karuranga some time in November of 2017.
The Trial Ruling
[20] As to the charge of trafficking in cocaine, the trial judge also concluded that the offence had been proven. In that respect, he said:
…in this case I’m satisfied based on all of the evidence cumulatively that what Mr. Karuranga was doing was trafficking in the substance cocaine. I’m satisfied that he intended to traffic in cocaine, you know, being in a house in the middle of an afternoon with electronic devices waiting, on, and -- and with evidence that there is some communication of -- of -- of calling to purchase a drug on those devices. I’m satisfied that at that point in time that’s what Mr. Karuranga was doing was making a living by trafficking in cocaine, and of course that he intended to traffic in cocaine.
So based on all of the evidence together, there will be no evidence contrary, I want to mention at this point in time that the -- there is no -- no reason for me not to believe the evidence of any of the witnesses who testified on the part of the Crown. I don’t think any of them -- any of them had their evidence shaken during cross-examination. They all testified to the best of their recollection. It’s the only evidence that I have before me with regard to the onus of the offence of trafficking in cocaine, and I’m satisfied that that offence has been proven beyond a reasonable doubt and I find Mr. Karuranga guilty of the offence charged in count number 2 of the indictment.
Analysis: Reliance on Improperly Admitted Evidence
[21] Detective Constable Shewchuk was permitted to give opinion evidence about whether certain things he had observed or became aware of during the course of his investigation were consistent with drug trafficking. Prior to leading that evidence from D/Cst. Shewchuk, however, Crown counsel had not sought to qualify him as an expert witness or obtained a ruling from the trial judge permitting him to provide opinion evidence.
[22] Even though defence counsel did not object to the Crown leading this evidence, the trial judge still had an obligation, in exercising his gatekeeper function, to conduct the inquiry described in White Burgess Langille Inman v Abbott and Haliburton Co.,2015 SCC 23, [2015] 2 SCR 182, to determine whether the opinion evidence was properly admissible. He did not do so. The Crown concedes that this was an error.
[23] In addition to improperly admitting D/Cst. Shewchuk’s opinion evidence, the trial judge also erred by admitting and relying upon D/Cst. Shewchuk’s testimony regarding the incoming call that he had answered on Mr. Karuranga’s phone, in which the caller had made a request that D/Cst. Shewchuk interpreted as a request to purchase cocaine. Not only was this opinion evidence that D/Cst. Shewchuk had not been qualified to provide, his testimony about the content of this conversation was also inadmissible hearsay (see: R v Baldree,2013 SCC 35, [2013] 2 SCR 520). Defence counsel objected to the introduction of this evidence at trial and, although the trial judge did not permit the Crown to pursue the line of questioning further, he gave no indication that he considered this evidence to be inadmissible. Moreover, as will be explored later, he accepted and relied on this evidence in reaching his verdict.
[27] Immediately after this reference to the testimony of Mr. Jones, the trial judge went on to review the evidence given by D/Cst. Shewchuk. He recounted D/Cst. Shewchuk’s testimony in detail, including his opinion that certain observations he had made while conducting surveillance – namely, short duration visits to Mr. Waters’ house by various persons – were “consistent with drug trafficking”. The trial judge also reviewed D/Cst. Shewchuk’s testimony concerning the observations made and the items located during the search of Mr. Waters’ house, including his opinion that the presence of things like weapons, multiple electronic communication devices, cash comprised primarily of $20 bills, Ziploc bags with corners cut off, items with residue that reacted positively to a presumptive test for the presence of cocaine, and score sheets were all consistent with drug trafficking.
[28] The trial judge also referred specifically to D/Cst. Shewchuk’s testimony about the incoming call he had answered on Mr. Karuranga’s mobile phone the day after the search warrant was executed. He described that call as follows:
The next day after the items had been seized, after the warrant had been executed, on March 16th and when -- as Detective Constable Shewchuk was examining the telephone, it -- it rang. A person who identified himself as Phil had a short conversation with him in which he indicated that he wanted five. While five is a number and does not indicate exactly what the person was wanting to purchase, Detective Constable Shewchuk testified that he has seen, on many occasions, where numbers only are used to indicate the product that -- or the quantity of product that the -- the buyer wants to purchase from a drug trafficker. The conversation did not -- did not last long, and the person named Phil apparently became suspicious and hung up on him.
[29] After recounting all of this evidence, the trial judge said: ...
I am also satisfied that the substance which it is alleged Mr. Karuranga was -- was trafficking was cocaine.
I take into account the evidence of Robert Jones, who testified that he had purchased cocaine either during that period or shortly before from Mr. Karuranga.
I am satisfied that the evidence of -- that was found in the -- in the residence indicates that there was a -- in addition to the white residue on the scale and the residue on the bags and the -- and residue on a [knife] that this is consistent with the preparation of packaging cocaine for the purpose of resale.
I’m satisfied also that the NIK tests that were conducted by Detective Constable Shewchuk, while they’re not indicative of -- necessarily of cocaine, would indicate at least that it’s not just white sugar or -- or baking soda that was -- that caused this -- the swabs to turn blue.
…
…in this case I’m satisfied based on all of the evidence cumulatively that what Mr. Karuranga was doing was trafficking in the substance cocaine. I’m satisfied that he intended to traffic in cocaine, you know, being in a house in the middle of an afternoon with electronic devices waiting, on, and -- and with evidence that there is some communication of -- of -- of calling to purchase a drug on those devices. I’m satisfied that at that point in time that’s what Mr. Karuranga was doing was making a living by trafficking in cocaine, and of course that he intended to traffic in cocaine.
So based on all of the evidence together, there will be no evidence contrary, I want to mention at this point in time that the -- there is no -- no reason for me not to believe the evidence of any of the witnesses who testified on the part of the Crown. I don’t think any of them -- any of them had their evidence shaken during cross-examination. They all testified to the best of their recollection. It’s the only evidence that I have before me with regard to the onus of the offence of trafficking in cocaine, and I’m satisfied that that offence has been proven beyond a reasonable doubt and I find Mr. Karuranga guilty of the offence charged in count number 2 of the indictment. (Emphasis added)
[32] The second important conclusion is that it is simply not possible to separate the trial judge’s apparent acceptance of Mr. Jones’ testimony from his consideration of the improperly admitted evidence. In that respect, the trial judge stated that he viewed Mr. Jones’ testimony as just “part of the evidence” to be considered. He also clearly stated that his conclusion as to Mr. Karuranga’s guilt was reached on the basis of “all of the evidence cumulatively” and “based on all of the evidence together”. When the trial judge’s decision is read as a whole, this can only be taken as meaning that the opinion evidence of D/Cst. Shewchuk, that should not have been received, played an integral role in his fact finding.
[33] In light of that, it is apparent that the trial judge’s errors were fundamental to the verdict. To the extent that the Crown’s argument can be seen as invoking the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, it must be rejected, because the errors were neither harmless nor trivial, and nor was the evidence so overwhelming as to make a conviction inevitable even in the absence of those errors (see: R v R.V., 2019 SCC 41 at para 85, 436 DLR (4th) 265).
The Remedy: Acquittal on Appeal
[37] These provisions give courts of appeal considerable discretion to effect justice in a given case (R v Lewis, 2012 SKCA 81at para 26, 399 Sask R 180 [Lewis]). In R v Truscott, 2007 ONCA 575 at para 246, 225 CCC (3d) 321 [Truscott], the Ontario Court of Appeal described the scope of that discretion as follows:
[246] Where a conviction is quashed on appeal, s. 686(2) of the Criminal Code provides two possible remedies: the appeal court may either order an acquittal or a new trial. If the court orders a new trial, the residual power in s. 686(8) permits it to also order a stay of that new trial. A stay is ordered in situations where a new trial, although warranted on the evidence, would be manifestly unfair to the appellant.
[247] Relatively little has been written about the principles guiding the exercise of the remedial discretion in s. 686(2). It is clear that if the appeal court is satisfied based on the trial record as augmented by the fresh evidence, that no reasonable jury could convict, the appeal court’s discretion must be exercised in favour of ordering an acquittal. An acquittal is the only appropriate order in this circumstance since a conviction following a retrial would presumably be quashed as an unreasonable verdict. An appeal court will not order a new trial to give the Crown an opportunity to make a case against an appellant when, as matters stood at the end of the proceedings in the court of appeal, no reasonable jury could convict.
[248] Apart from those cases where an acquittal is mandatory, the manner in which an appeal court should exercise its remedial discretion is more uncertain. As a general rule, if the appeal court is satisfied that the entirety of the record at the end of the appeal admits of a reasonable possibility of a conviction on a retrial, the appeal court will order a new trial.
[249] There are, however, cases where an appeal court has entered an acquittal even in the face of evidence that could reasonably support a conviction on a retrial. For example, acquittals have been entered where an appellant has fully served his or her sentence, or has already been subjected to several trials. These authorities offer little guidance as to when an acquittal should be entered as opposed to ordering a new trial with a direction that the trial be stayed.
[42] First, I am concerned that, in light of how the proceedings in this case unfolded, ordering a new trial would be unfair to Mr. Karuranga. The Crown made a choice as to how it marshalled its case at trial. It must be taken as having known that the strength of its case relied, in large part, on the opinion evidence that would be led from its key witness, D/Cst. Shewchuk. Despite that, Crown counsel did not attempt to qualify D/Cst. Shewchuk as an expert and did so at the Crown’s peril. Mr. Karuranga defended the charge at trial on that basis, as he was entitled to do. Giving the Crown the opportunity to effectively have a “do-over”, so that it can correct a strategic error and lead a better case than it chose to lead at the first trial would, in my view, be unfairly prejudicial to Mr. Karuranga.
[43] Second, and at least as importantly, the trial record reflects that Mr. Karuranga has already served his full sentence on the trafficking charge. The trial judge determined that a fit sentence for that offence was a period of imprisonment of 18 months. By the time his trial had been completed and the sentencing hearing took place, Mr. Karuranga had already spent the equivalent of that amount of time in custody, once proper credit for pre-sentence custody was applied under s. 719(3.1). Following the reasoning in decisions such as Lewis; Truscott; R v M.B. (1986), 1986 CanLII 3131 (SK CA), 53 Sask R 55 at para 13 (CA); R v Dillabough (1975), 1975 CanLII 1308 (ON CA), 28 CCC (2d) 482 (Ont CA) and R v Boissoneault (1986), 1986 CanLII 4702 (ON CA), 29 CCC (3d) 345 (Ont CA), I conclude that the fact Mr. Karuranga has already served his full sentence, when considered in light of all the other circumstances, makes it appropriate to enter an acquittal on the charge of trafficking, rather than ordering a new trial
[44] Having reached that conclusion, it is not necessary to address Mr. Karuranga’s arguments regarding the appropriate remedy for the violations of his Charter rights.
CONCLUSION
[45] Mr. Karuranga’s appeal is allowed. The conviction on the charge of trafficking is quashed and a verdict of acquittal is entered.
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