Background
On October 7, 2017, Canadian Border Security Agency officers at Toronto Pearson International Airport discovered approximately 2.89 kilograms of cocaine hidden in a false-bottomed compartment of Samuel Osei-Tutu’s carry-on suitcase during secondary screening. Osei-Tutu had arrived on a flight from the Bahamas after a multi-leg trip that included stops in Trinidad and the Bahamas. When initially questioned by CBSA officers about his travels, he initially denied traveling anywhere other than the Bahamas, later correcting himself to acknowledge his Trinidad visit. At trial, Osei-Tutu testified he was unaware of the cocaine and suggested he may have been duped by acquaintances who arranged his trip.
Following a jury trial, Osei-Tutu was convicted of importing cocaine and sentenced to five and a half years imprisonment (net 5 years after pre-trial detention credit). The sole issue at trial was whether Osei-Tutu knew he was carrying drugs. On appeal, Osei-Tutu argued the trial judge made two instructional errors: failing to properly instruct the jury on the difference between disbelieved evidence and fabricated evidence, and suggesting Crown “professional” witnesses were inherently more credible than the defence “civilian” witness due to their contemporaneous notes.
The Court’s Holding
The Court of Appeal, in reasons by Justice Gomery, agreed that both jury instructions were flawed but found no prejudice resulted that would undermine the fairness of the trial. On the fabrication instruction issue, the court held that while it would have been appropriate for the trial judge to caution the jury that it could not infer guilt simply from disbelieving Osei-Tutu’s explanations for his CBSA screening conduct, the instruction’s absence was not reversible error. The court found ample independent evidence—including internal inconsistencies and inherent implausibility in Osei-Tutu’s explanations—upon which the jury could reasonably find he deliberately lied to the officer. Had the judge given a fabrication instruction, it would merely have highlighted the weakness of his exculpatory account.
Regarding the “professional versus civilian” witness characterization, the court acknowledged the instruction was “not ideal” but found no prejudice. The parties had agreed at the pre-charge conference that there were no material inconsistencies in the evidence about the CBSA officer’s questions and Osei-Tutu’s responses. Critically, defence counsel had explicitly considered whether the instruction was prejudicial and strategically decided not to object, concluding it focused on the note-taking distinction rather than inherent credibility differences.
However, the court took the opportunity to caution trial judges in future cases to avoid juxtaposing “professional” Crown witnesses with contemporaneous notes against “civilian” defence witnesses without notes, as this risks suggesting Crown witnesses are inherently more reliable and could undermine the Crown’s burden of proof.
Key Takeaways
- Fabrication (an accused’s deliberate lie) must be proved by evidence independent of the disproved exculpatory statement itself; rejection of testimony alone is insufficient for conviction.
- Trial judges should not instruct juries in ways that suggest “professional” witnesses with notes are inherently more credible than civilian witnesses without notes, as this risks shifting the burden of proof.
- Flawed jury instructions do not automatically result in reversible error; appellate courts assess whether the instructions caused actual prejudice to the right to a fair trial in the context of the entire trial.
- The lapse of time may affect witness reliability but not credibility—trial judges must maintain this distinction when instructing juries.
Why It Matters
This decision reinforces important constraints on jury instructions in criminal trials, particularly regarding how trial judges frame the distinction between Crown and defence witnesses. While the court upheld Osei-Tutu’s conviction based on the sufficiency of evidence, it sent a clear message that future trial judges must be more careful to avoid creating perceptions of inherent Crown witness superiority. The decision also clarifies that independent evidence of deliberate fabrication—not mere inconsistency—is required before a jury can use an accused’s lie as circumstantial evidence of guilt on the charged offence.
For defence counsel, the decision illustrates both the importance of strategic objections to jury charges and the risks of forgoing them. Although the appellate court found no prejudice here, it reinforced that trial counsel bear responsibility for protecting the record and that failures to object may be viewed as deliberate strategy rather than oversight. For prosecutors and judges, the case establishes clearer guardrails on witness credibility instructions, particularly in cases where the only defence witness is the accused and all Crown witnesses are law enforcement.