Court of Appeal for Ontario
Date: January 25, 2017 Docket: C57285
Judges: Cronk, Juriansz and Watt JJ.A.
Between
Her Majesty the Queen Appellant
and
Harvishal Singh Kler Respondent
Counsel:
- Julianna A. Greenspan and Bradley J. Greenshields, for the appellant
- Brendan Gluckman, for the respondent
Heard: May 2, 2016
On appeal from: The convictions entered by Justice Fletcher Dawson of the Superior Court of Justice, sitting with a jury, on April 19, 2013, and from the sentences imposed on June 24, 2013.
Watt J.A.:
Introduction
[1] A jury found Harvishal Singh Kler guilty of conspiracy to import and importing heroin. The trial judge imposed concurrent sentences of 16 years in the penitentiary, less pre-disposition credit of 4 months.
[2] Harvishal Singh Kler appeals his convictions on several grounds. He also seeks leave to appeal the sentences imposed upon him.
[3] These reasons explain why I would dismiss the appeal from conviction and would grant leave to appeal sentence, but dismiss the appeal from sentence.
The Background Facts
[4] The indictment on which Kler was charged and tried jointly with Manjit Singh Dhanoa alleged a conspiracy over a three-month period in mid-2007. The conspiracy terminated with the arrival and discovery of the heroin in Canada on July 23, 2007. The two couriers, Guriqbal Thind and Harket Singh Khattra, were arrested that day when they returned to the airport to pick up their luggage. The heroin had been imported from India via Japan.
[5] The allegations of the Crown were that the conspirators were five in number. Each had a specific role. Dhanoa was the leader. Kler and Bakshish Ghai represented the second tier. Their task was to recruit the couriers. Thind and Khattra, both young men with unblemished records, were the couriers.
[6] Among the several participants, Khattra and Ghai pleaded guilty on different occasions. Khattra, whose sentence involved a joint submission for five and one-half years, testified as a Crown witness at the joint trial of Kler and Dhanoa. Ghai received a sentence of 14 years. He was in the courthouse during the joint trial of Kler and Dhanoa, but not called as a witness by either the Crown or defence. In a separate trial, Thind was acquitted.
[7] An overview of the evidence adduced at trial is of service in understanding the nature of the case for the Crown. To the extent further detail is required to understand or determine a ground of appeal, it will be added in connection with the ground.
The Case for the Crown
[8] The case for the Crown consisted of several components.
[9] Khattra, one of the couriers, testified as a witness for the Crown. He had pleaded guilty for a jointly recommended sentence and agreed to testify for the Crown. His counsel had approached the Crown with a proposal that he would testify for the Crown for an agreed-upon sentence. Khattra provided a KGB statement.
[10] In addition, the Crown adduced evidence of a post-arrest statement made by Kler, which the Crown urged amounted to an admission of his membership in the conspiracy. The Crown tendered travel histories of Khattra, Thind, Dhanoa, Ghai and Kler, as well as cellphone and phone toll records showing contacts among and between the principals. In addition, the Crown elicited evidence that tended to show association among the principals before Khattra and Thind left Canada to pick up the heroin.
[11] In its attempt to establish the guilt of Kler and Dhanoa, the Crown also relied upon the co-conspirators' exception to the hearsay rule to complete its proof.
Khattra Changes Sides
[12] Khattra and Thind were arrested together on July 23, 2007, when they returned to the airport to pick up their suitcases. They had changed their original reservations to return on an earlier flight, but their luggage remained on the flight they had originally booked which had landed late in Toronto.
[13] Khattra was a 21-year-old who lived with his parents. He was completing his electrician's apprenticeship at Humber College. His then counsel first approached the police about providing a statement to them eight months after Khattra's arrest, in April 2008. Prior to providing the statement, Khattra knew that the Crown would be seeking a sentence of 16 years in the penitentiary in the event of his conviction after trial. He also knew that if he provided evidence for the Crown against others charged with the same offences, he would receive a reduced sentence, although he had not been promised a specific reduction.
[14] Initially, Khattra provided investigators with telephone numbers for Dhanoa and Ghai, neither of whom had been arrested at that time. He did not provide a number for Kler. A short time later, Khattra gave a videotaped KGB statement in which he identified Kler as a participant in the scheme and later picked out his (Kler's) photograph in a line up.
[15] Khattra testified at the preliminary inquiry about ten months before he pleaded guilty and subsequently received his agreed upon sentence. Later, he testified at two trials, including the joint trial of Kler and Dhanoa. By then, he had been paroled, and had his parole revoked as a result of a charge of an alcohol-driving offence. He would be eligible for parole again a year later.
The Prior Relationships
[16] Khattra and Ghai had attended the same high school. They had played soccer with Thind a few years prior. Khattra and Kler knew each other through mutual friends. Thind, Ghai and Kler were friends. Ghai, Kler and Dhanoa socialized at Dhanoa's family business.
The Recruitment of Couriers
[17] Ghai recruited Khattra to become a courier. He asked Khattra whether he had a clean record and wanted to make some easy money. Ghai vaguely described a trip to India, bringing back some "stuff" and getting paid $10,000. Khattra agreed with the proposal.
[18] Ghai told Khattra that Kler recruited Thind to become the second courier.
[19] A couple of days after Khattra's initial discussion with Ghai, Khattra met with Dhanoa at Ghai's house. Ghai explained that he and his cousin were traveling to India that day. Dhanoa arrived with four suitcases. Ghai showed the suitcases to Khattra, including opening one to show Khattra its secret compartment. Khattra asked what would be placed in the secret compartments, and Ghai responded with a word that Khattra did not recognize. Khattra testified that he only learned what heroin was after his eventual arrest. Ghai told Khattra that both the trip and the suitcases were safe.
[20] A few days later, Dhanoa and Khattra met at a Tim Hortons. Dhanoa told Khattra to take the battery and SIM card out of his phone during their conversation, and gave Khattra instructions about what was involved in the trip to India. Dhanoa gave Khattra $500 and explained that he (Khattra) would receive full payment of $10,000 for his part. Dhanoa promised Khattra that he (Dhanoa) would obtain a lawyer for Khattra if one were required, but that Khattra would have to work for Dhanoa to repay the cost of the lawyer. Dhanoa also told Khattra that he would need to get a visa for his travel to India.
[21] About a week later, Khattra and Dhanoa met again. Dhanoa gave Khattra another $500 and told him where to get a visa for India. Khattra obtained a visa, date stamped June 4, 2007. After picking up his passport with the visa, Khattra called Dhanoa, who told Khattra that his travel partner was writing his high school exams.
The Meeting at the 410 Plaza
[22] Ghai called Khattra at home and asked Khattra to drive him to a plaza near the intersection of Highway 410 and Queen Street in Brampton. Thind and Kler also attended the meeting. On the way to the plaza, Ghai told Khattra that Kler had recruited Thind. At the meeting with Dhanoa at the plaza, each man received $500 from Dhanoa. Ghai and Dhanoa explained how the travellers were to deal with customs. Dhanoa told Khattra that he (Khattra) and Thind would be travelling together.
[23] Dhanoa left on his own and Khattra drove the rest of the men home after the meeting. En route, Kler mentioned a trip he had taken with his wife who got scared when they reached customs. Khattra thought that the point of the story was to let them know that what they were going to do was safe and that they would not get caught.
The Ticket Purchase
[24] Dhanoa and Khattra went to a travel agency where Dhanoa ordered two tickets for India routed through Narita, Japan. Two days later, Dhanoa gave Khattra cash to pay for the tickets.
The Airport Hotels
[25] On June 23, 2007, Ghai, Khattra and Thind checked into a Holiday Inn near Pearson Airport. Thind left the hotel to pick up his belongings. He returned with some clothes and a laptop computer. Shortly after Thind's return, Kler arrived at the hotel. The group hung out together but nothing was said about drugs.
[26] On June 24, 2007, Ghai spoke to Dhanoa. The group left the Holiday Inn and checked into the Monte Carlo Inn across the road. That evening, Dhanoa arrived at the hotel in a van. His wife and mother were with him. Khattra, Thind, Ghai and Kler picked up some suitcases from Dhanoa's van. Ghai gave Khattra and Thind $1,000 each that he (Ghai) had received from Dhanoa.
[27] Ghai said that he had brought back the suitcases from India recently. He pointed out the false bottoms to those present, including Kler. No one said anything about the impending trip or why the suitcases were being packed with clothes. Kler repeated his story about him and his wife passing safely through customs despite his wife's nervousness. He then left the hotel before a cab arrived to take Khattra and Thind and their suitcases to the airport.
The Airport and Transfer Instructions
[28] Ghai went to the airport with Khattra and Thind. Ghai told them that the suitcase exchange would take place at a hotel in Narita, Japan.
The Suitcase Exchange
[29] A "Russian" couple came to the hotel room Khattra and Thind occupied at the Holiday Inn in Narita. Khattra and Thind emptied the suitcases they had brought with them. The "Russian" couple provided them with new suitcases without false bottoms.
[30] Thind and Khattra spent ten days in Japan. They flew to New Delhi on July 5, 2007, where they split up. Each returned to the village or area where other members of his family or relatives lived.
The Visitors
[31] Two men with long beards and wearing turbans visited Khattra. They gave him some money. The men said that they had to see the "other guy". Khattra gave the men some items Dhanoa had given to him in Canada to fill up the suitcases with false bottoms.
[32] Khattra and Thind reunited around July 12, 2007 at Khattra's family's house.
More Visitors
[33] Two other men, each with a long beard and wearing a turban, visited Khattra and Thind, drove them to a nearby city and checked them into a hotel. The men told Khattra and Thind to take enough clothes out of their suitcases for two days. The men then took the balance of Khattra's and Thind's belongings and the suitcases and left with a promise that they (the two bearded men) would pack the suitcases for Thind and Khattra.
[34] In due course, the two bearded men returned with five suitcases. They drove Khattra and Thind to the airport. En route, the two men asked Khattra whether he knew "Prince" and "Lincoln". Khattra knew Kler as "Prince" and Ghai as "Lincoln".
The Return Flight and Luggage Delay
[35] On instructions from one of the two bearded men, Khattra and Thind asked the airline in India to send their luggage directly to Toronto. Khattra and Thind then flew back to Japan. After they arrived, Khattra and Thind decided to change their original reservations and return on an earlier flight. Their luggage remained on the flight they had originally booked. That flight was delayed, and along with it, the return of their suitcases. After arriving at Pearson Airport on July 21, 2007, Khattra and Thind developed their cover story for customs officials while waiting in the line to speak to an officer: they were cousins who had been visiting their family in Japan and India.
[36] Khattra and Thind cleared customs. They took a taxi to a hotel in Vaughan to await notice that their luggage had arrived. The next day, Khattra called Dhanoa and advised him about the delay in the return of their suitcases. They met at a Walmart in Brampton. Dhanoa gave each of them $400 and provided Khattra with a new prepaid cellphone.
The Arrests
[37] After the meeting with Dhanoa, Thind and Khattra took a taxi to the airport to pick up their suitcases. They were arrested there in the early morning hours of July 23, 2007 and taken into police custody.
The Defence Case
[38] Neither Kler nor Dhanoa testified.
[39] Dhanoa called Thind's mother as a defence witness. She explained that her son had planned a trip to India in June 2007. She had given her son money to buy his ticket. She had seen him pack for the trip. He called her from India. When Thind returned home, his father picked him up at the airport. He had no luggage.
[40] Dhanoa also called his estranged wife and his mother to testify as defence witnesses. His wife acknowledged that both Ghai and Kler were friends of Dhanoa. She denied having been at the Monte Carlo Inn with her husband and having dropped off any suitcases there for the others. Dhanoa's mother also confirmed her son's friendship with Kler.
The Appeal from Conviction
[41] Kler (the appellant) advances six grounds of appeal against conviction. Some relate to alleged errors in the reception of evidence. Others have to do with alleged errors or omissions in final instructions to the jury. Still others relate to both.
[42] We did not call on the Crown to answer several claims of error advanced by the appellant. These reasons focus on those on which we did invite a response from Crown counsel.
The Grounds of Appeal
[43] I would paraphrase the grounds of appeal as allegations that the trial judge erred:
i. in admitting, under the co-conspirators' exception to the hearsay rule, Khattra's claim that Ghai said the appellant recruited Thind, and in instructing the jury that that statement could be used at steps 2 and 3 of the analysis described in R. v. Carter, [1982] 1 S.C.R. 938;
ii. in admitting the hearsay statement of Ghai despite its failure to satisfy the necessity requirement of the principled approach to hearsay;
iii. in admitting the appellant's post-arrest utterances, despite a breach of the implementation component of s. 10(b) of the Charter of Rights and Freedoms;
iv. in failing to instruct the jury that they could not use the appellant's post-arrest utterances in making their decision unless they rejected the alternative inference that he had acquired the relevant information as a result of his knowledge of the investigation and arrest of others;
v. in failing to instruct the jury on the use of the appellant's travel history as evidence of post-offence conduct; and
vi. in illustrating as potentially confirmatory of the testimony of the Vetrovec witness, Khattra, evidence that lacked confirmatory capacity and failing to relate material inconsistencies in that evidence to the jury.
Ground #1: The Hearsay Evidence and the Co-conspirators' Exception
[44] This ground of appeal implicates not only a traditional hearsay exception, but also the principled approach to the admission of hearsay. The traditional co-conspirators' exception permits the reception and trier of fact's use of evidence of acts and declarations of co-conspirators in furtherance of the common design in completing proof of an individual's participation in the conspiracy. But the traditional exception may give way where the evidence admitted under its sponsorship fails to satisfy the necessity and reliability conditions of the principled approach.
[45] A further issue advanced by the appellant assumes the evidence was properly admitted but questions the correctness of the trial judge's instructions to the jury about its use in proof of the appellant's guilt.
[46] After a brief refresher on the evidentiary milieu in which the issue arises, I will turn to the positions advanced by the parties at trial and on appeal, then canvass the governing principles before applying them to determine the result.
The Essential Background
[47] Khattra testified that before he and Thind flew to Japan and from there to India, Ghai, Dhanoa, Thind and the appellant were together at a hotel near the airport. Before he and Thind got their instructions about how to deal with customs officers, Ghai said that the appellant had recruited Thind as a courier. Khattra had been recruited by Ghai.
[48] The evidence of this statement was admitted at trial under the co-conspirators' exception to the hearsay rule. Trial counsel for the appellant did not object to its reception on this basis. The trial judge later instructed the jury that it could use this evidence in deciding whether the Crown had proven beyond a reasonable doubt that the appellant was a member of the conspiracy charged, having first decided, from the appellant's own words and conduct, that he was probably a member of that conspiracy. In other words, the use of the evidence was limited to the third step of Carter. Trial counsel did not object to the trial judge's instructions to the jury about how they could use this evidence.
[49] At the time this evidence was introduced, Ghai was in the courthouse. He had pleaded guilty and been sentenced. The trial Crown indicated that, despite Ghai's availability, he (Ghai) would not be called as a witness for the Crown.
The Positions of the Parties at Trial
[50] As I have already said, trial counsel for the appellant did not object to the admissibility of Khattra's evidence about Ghai's statement that Kler had recruited Thind, under the co-conspirators' exception to the hearsay rule. Further, trial counsel expressed no concern about jury instructions permitting its use to complete the Crown's proof of guilt at step 3 of Carter.
[51] Trial counsel did not invite the trial judge to hold a voir dire to determine whether the application of the principled approach to hearsay should result in the exclusion of the evidence admitted under the co-conspirators' exception because the evidence failed to satisfy the twin requirements of necessity and reliability demanded by the principled approach. In particular, trial counsel for the appellant did not contend that the necessity requirement could not be met because Ghai was available to be called as a witness.
The Arguments on Appeal
[52] The appellant says that the trial judge was wrong to admit Khattra's repetition of Ghai's statement under the co-conspirators' exception to the hearsay rule as a declaration in furtherance of the conspiracy. This evidence was only admissible for a non-hearsay purpose to prove the conspiracy at step 1 of Carter and to prove Ghai's probable membership in the conspiracy at step 2 of Carter.
[53] It follows, the appellant continues, that the trial judge should have expressly instructed the jury that this evidence was not admissible against the appellant either at step 2 or at step 3 of Carter. In addition, the evidence admitted at trial gave no indication of the source of Ghai's knowledge about the appellant's alleged recruitment of Thind.
[54] The appellant advances a second argument. He says that when, as here, concerns arise about the necessity and reliability of hearsay evidence admitted under a traditional exception, that evidence must be tested against the requirements of the principled approach. Admittedly, it will be a rare day when evidence admissible under a traditional exception will fail to satisfy the twin requirements of necessity and reliability under the principled approach. That said, such an exception may occur where the original declarant is available as a witness, but not called by the party who seeks to introduce the hearsay.
[55] Here, the appellant continues, Ghai was available to give evidence. He was at the courthouse. The Crown could have called him as a witness. The Crown adduced no evidence that Ghai would be uncooperative. Indeed, all indications were to the contrary. Ghai had pleaded guilty and had been sentenced. What was more likely than not was that Ghai would be cooperative, assigning himself a minimal role and laying blame at the appellant's doorstep.
[56] The respondent supports the conclusion of the trial judge. The evidence, the respondent says, was a declaration of a probable conspirator in furtherance of the conspiracy. It was properly admitted under the co-conspirators' exception to the hearsay rule and its evidentiary use properly explained to the jury.
[57] As a matter of general principle, the respondent submits, the decision in R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, makes it clear that the co-conspirators' exception satisfies the necessity and reliability requirements of the principled approach. Steps one and two of Carter provide circumstantial indicators of reliability attesting to a common enterprise including the accused, thus enhancing the general reliability of statements made in the pursuit of that enterprise as it is ongoing. The "in furtherance" requirement in step 3 of Carter provides a guarantee of reliability in more immediate circumstances.
[58] The respondent says that concerns about the witness' veracity are not a factor at the admissibility stage, rather circumstances for the trier of fact to consider when assessing the adequacy of the state's proof. The absence of evidence of the source of the hearsay declarant Ghai's knowledge that Kler recruited Thind is of no real moment. There is a degree of implied or assumed knowledge inherent in virtually all co-conspirators' statements. And what is more is that Mapara authorizes the reception of double hearsay.
[59] The respondent accepts that existing hearsay exceptions are subject to the superintendence of the principled approach. It is open to the appellant to argue that this is the "rare case" in which evidence admissible under the co-conspirators' exception should be excluded because it has failed to satisfy the necessity and reliability requirements of the principled approach.
[60] The problem for the appellant here, the respondent argues, is that the onus of establishing the "rare case" exception settles on the appellant. This request was not made and this argument not advanced at trial. There was no suggestion that the presence of Ghai in the precincts of the courthouse meant that the necessity requirement could not be satisfied. After all, there is no bright line rule that availability of the co-conspirator declarant negates necessity. Each case is different. The appellant never invoked the "rare exception" and cannot be heard to enlist its assistance now.
The Governing Principles
[61] This ground of appeal requires consideration not only of the listed co-conspirators' exception to the hearsay rule and the Carter regime governing its use in jury deliberations, but also the impact of the principled approach on the exception in this case.
[62] The parties share common ground about the essential elements of conspiracy, the Carter regime and the availability of the co-conspirators' exception to complete proof, not only for the preliminary crime of conspiracy, but also for substantive offences said to be the product of a joint venture.
The Co-conspirators' Exception
[63] The co-conspirators' exception to the hearsay rule permits statements made by a person engaged in an unlawful conspiracy to be received as admissions against all those acting in concert if the declarations were made while the conspiracy was ongoing and were made towards the accomplishment of the common object: Mapara, at para. 8.
[64] From the statement of the rule, we learn several things.
[65] First, not every statement made by a fellow conspirator can be enlisted in proof of another conspirator's membership in the conspiracy: R. v. Yumnu, 2010 ONCA 637, 260 C.C.C. (3d) 421, affirmed, 2012 SCC 73, [2012] 3 S.C.R. 777, at para. 341. The statement must be made by a "person engaged in an unlawful conspiracy". And as we shall see, for these purposes, a person is "engaged in an unlawful conspiracy" if his or her own acts or statements establish his or her probable membership in it.
[66] Second, a matter of timing, or better said "contemporaneity". The statement must be made by the conspirator "while the conspiracy was ongoing": Mapara, at para. 8; Carter, at p. 947. That said, on some occasions, statements made after the offence object of the conspiracy has been committed may be admissible under this exception: Yumnu, at para. 341; R. v. Sauvé (2004), 182 C.C.C. (3d) 321 (Ont. C.A.), leave to appeal refused, [2005] 1 S.C.R. xv, at paras. 115-18.
[67] Third, the statement of the co-conspirator must be made "in furtherance of" the offence object of the conspiracy, that is to say, for the purpose of achieving its goal: R. v. Puddicombe, 2013 ONCA 506, 299 C.C.C. (3d) 503, leave to appeal refused, [2013] S.C.C.A. No. 496, at para. 116. Provided there is evidence capable of sustaining a finding that a statement of a co-conspirator was "in furtherance" of the common offence object, the ultimate decision about whether the statement is "in furtherance" is for the jury: Puddicombe, at para. 116. See also R. v. Mota (1979), 46 C.C.C. (2d) 273 (Ont. C.A.), at pp. 282-83.
[68] A final point concerns the scope of the co-conspirators' exception. Here, we are concerned with a specific statement, but the exception extends beyond statements to acts done by co-conspirators during the currency of the conspiracy in furtherance of its objects: see e.g. R. v. Garofoli (1988), 41 C.C.C. (3d) 97 (Ont. C.A.), at pp. 135-36, reversed on other grounds, [1990] 2 S.C.R. 1421; R. v. Baron (1976), 31 C.C.C. (2d) 525 (Ont. C.A.), at p. 533.
The Co-conspirators' Exception and the Principled Approach
[69] Despite the ascendency of the principled approach to the admissibility of hearsay, the traditional or category exceptions remain presumptively in place, including the co-conspirators' exception to the hearsay rule: Mapara, at para. 15.
[70] A hearsay exception, such as the co-conspirators' exception, can be challenged to determine whether it is supported by the indicia of necessity and reliability, required by the principled approach. If necessary, the traditional exception may be modified to bring it in line with the principled approach: Mapara, at para. 15.
[71] In Mapara, the co-conspirators' exception to the hearsay rule was challenged as failing to accord with the fundamental criteria that underlie the exceptions to the hearsay rule and are the twin requirements of the principled approach – necessity and reliability. The Court concluded that the co-conspirators' exception met the necessity and reliability requirements of the principled approach. The continued vitality of the co-conspirators' exception was affirmed: Mapara, at para. 31.
[72] The Mapara court found the indicium of necessity established because of the combined effect of:
i. the non-compellability of a co-accused declarant, Wasfi, who's case was severed from that of Mapara at the end of the case for the Crown;
ii. the undesirability of separate trials for alleged co-conspirators; and
iii. the evidentiary value of contemporaneous declarations made in furtherance of an alleged conspiracy.
See Mapara, at para. 18; R. v. Chang (2003), 173 C.C.C. (3d) 397 (Ont. C.A.), at para. 105.
[73] The Court in Mapara found the reliability requirement met because the conditions imposed by Carter on the use of evidence admitted under the co-conspirators' exception provided sufficient circumstantial guarantees of trustworthiness necessary to permit the evidence to be received:
i. proof of the conspiracy alleged beyond a reasonable doubt;
ii. probable participation in the conspiracy by the accused based on his or her own words and conduct; and
iii. the requirement that the acts and declarations of other likely conspirators be in furtherance of the conspiracy to be available in proof of an individual member's guilt.
See Mapara, at paras. 22-26.
[74] It does not always follow, however, that evidence that falls within the co-conspirators' exception (which we have seen meets the requirements of the principled approach) will be received at trial. The indicia of necessity and reliability, while generally satisfied under the exception and the regime in Carter, may be lacking in the particular circumstances of the case: Mapara, at para. 15.
[75] Two brief points should be made about the specific challenge just mentioned. First, the Mapara court characterized the exception as available in "rare cases". And second, the onus falls upon the party seeking exclusion to establish that the evidence, admissible under the co-conspirators' exception, does not meet the requirements of necessity and reliability and, thus, should be excluded: Mapara, at paras. 15, 37; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 214.
[76] Something should also be said about the requirements of necessity and reliability.
[77] First, necessity. This indicium refers to the availability of the evidence, not the availability of the hearsay declarant as a witness: R. v. N.Y., 2012 ONCA 745, 294 C.C.C. (3d) 313, at para. 78. The factors mentioned in Mapara, adopting paragraph 105 of this court's decision in Chang, do not foreclose other means of establishing necessity: N.Y., at para. 78. This court has declined to adopt a bright line rule that the physical availability of the declarant puts paid to any claim of necessity: N.Y., at paras. 75-76.
[78] Second, reliability refers to threshold reliability, not ultimate reliability, which is a determination to be made by the jury. Indicia of reliability are found in the Carter rule for a conspiracy proved beyond a reasonable doubt, membership of the accused in it on a balance of probabilities and the rule that any statements made in furtherance of the conspiracy are admitted to complete the proof against an individual accused.
[79] A final point. It is difficult to conclude that evidence falling under the Carter rule would lack the indicia of necessity and reliability required for the admission of hearsay under the principled approach. Apart from the most exceptional cases, the argument is exhausted where the traditional exception is found to be compliant with the principled approach: Mapara, at para. 34.
The Carter Regime
[80] In Carter, the Supreme Court of Canada set out a series of three steps to be included in a charge to the jury where the co-conspirators' exception to the hearsay rule is invoked to establish the guilt of individual accused. McIntyre J. described the instructions at p. 947:
In charging the jury on this question, the trial judge should instruct them to consider whether on all the evidence they are satisfied beyond a reasonable doubt that the conspiracy charged in the indictment existed. If they are not satisfied, then the accused charged with participation in the conspiracy must be acquitted. If, however, they conclude that a conspiracy as alleged did exist, they must then review the evidence and decide whether, on the basis of the evidence directly receivable against the accused, a probability is raised that he was a member of the conspiracy. If this conclusion is reached, they then become entitled to apply hearsay exception and consider evidence of the acts and declarations performed and made by the co-conspirators in furtherance of the objects of the conspiracy as evidence against the accused on the issue of his guilt. This evidence, taken with the other evidence, may be sufficient to satisfy the jury beyond a reasonable doubt that the accused was a member of the conspiracy and that he is accordingly guilty.
See also R. v. Barrow, [1987] 2 S.C.R. 694, at p. 740 [McIntyre J., dissenting].
[81] The Carter regime permits, but limits, access by the trier of fact to the acts and declarations of likely conspirators in furtherance of the offence object of the conspiracy to prove the guilt of other likely conspirators. Access to this body of evidence is only permitted at step 3, provided the trier of fact has first been satisfied beyond a reasonable doubt of the existence of the conspiracy charged and then satisfied, from an individual conspirator's own words and conduct, that she or he is probably a member of the conspiracy.
[82] What Carter mandates is a two-step process in proof of an individual accused's participation in a conspiracy that has been proven beyond a reasonable doubt.
[83] The initial step – step 2 of Carter – involves a determination of probable or likely membership on a restricted evidentiary basis – the words and conduct of an individual accused: Carter, at p. 947; Mapara, at para. 22; Chang, at para. 59.
[84] The next step – which is step 3 of Carter – involves a determination of actual membership or participation in the conspiracy by an individual accused. It is at this stage that the trier of fact may consider the acts and declarations of other likely conspirators in determining the guilt of an individual accused: Carter, at p. 947; Mapara, at para. 26; Chang, at para. 59.
The Principles Applied
[85] For several reasons that I will develop, I would not give effect to this ground of appeal. I will consider first the admissibility of Khattra's statement that the appellant recruited Thind under the co-conspirators' exception to the hearsay rule. I will then examine the impact of the principled approach on the admissibility of this evidence and conclude with an assessment of the jury instructions about its use.
[86] At trial, no serious controversy emerged about the existence of a conspiracy, or that its object was to import heroin. No one suggested that Khattra and Ghai were not members of that conspiracy. The critical issue for the jury to decide in connection with the appellant was whether the Crown had proven beyond a reasonable doubt that he was a member of that conspiracy and a party to the importation of the heroin by Khattra and Thind.
[87] First, I am satisfied that the statement in issue was admissible under the co-conspirators' exception to the hearsay rule.
[88] The hearsay declarant (Ghai) and recipient/witness (Khattra) were both members of the conspiracy at the time of Ghai's statement that Khattra reported in his testimony at trial. The statement was made while the conspiracy was ongoing. Although the statement attributed to Ghai has a narrative aspect to it, when considered in the context of instructions to the couriers about how they were to act at customs on their return, there was evidence upon which the jury could find that the statement was in furtherance of the object of the conspiracy.
[89] The fact that the statement as repeated by Khattra is double hearsay – Khattra reporting what Ghai said about the appellant's recruitment of Thind – does not require its rejection under the co-conspirators' exception. Recall that Mapara also involved double hearsay, yet the evidence was admitted under the co-conspirators' exception.
[90] A final point about admissibility under the co-conspirators' exception. Trial counsel for the appellant did not object to the introduction of this evidence for want of compliance with the requirements of the exception.
[91] Second, I am satisfied that subjecting the evidence admitted under the co-conspirators' exception to the principled approach as required by Mapara does not render the evidence inadmissible.
[92] As a matter of general principle, the co-conspirators' exception meets the necessity and reliability requirements of the principled approach. The Supreme Court of Canada said so in Mapara.
[93] The Mapara court acknowledged that there may be "rare cases" in which evidence admissible under the co-conspirators' exception may nonetheless fall short of satisfying the necessity and reliability touchstones of the principled approach. Here, the appellant says the necessity requirement was not met and the declarant was unreliable.
[94] The appellant's claim consists of too little advanced too late. As Mapara makes clear, those who seek exclusion under the principled approach of evidence admissible under the co-conspirators' exception bear the burden of doing so. The place to satisfy that burden is when the evidence is tendered for reception at trial. No such argument was advanced in this case. And the claim put forward for the first time on appeal lacks purchase. That Ghai was in the courthouse during the appellant's trial does not move the yardsticks on necessity. Presence is a factor, not a disqualifier. It is the availability of evidence of equivalent value that is crucial, not the availability of the witness. To the extent the appellant contests satisfaction of the reliability requirement, his complaints relate to ultimate, not to threshold reliability, thus are unavailing at the admissibility stage.
[95] Third, I would not give effect to any claim that the trial judge failed to properly instruct the jury about the use it could make of the evidence admitted under the co-conspirators' exception.
[96] Evidence admitted under the co-conspirators' exception has two uses under the Carter regime. As non-hearsay, the acts and declarations of the co-conspirators are relevant to prove the existence of the unlawful agreement alleged in the indictment. To be admissible for this purpose, the acts and declarations would not require the sponsorship of the co-conspirators' exception because the evidence is not tendered for a hearsay purpose. As hearsay admitted under the co-conspirators' exception, the evidence is admissible at step 3 of the Carter regime, essentially, to advance proof of likely membership established at step 2 to proof of actual membership at step 3.
[97] The fault the appellant finds with the trial judge's instructions are not that he misdirected the jury about the use of this evidence at steps 1 and 3 of Carter. The complaint is one of omission, of something the judge failed to say: he did not tell the jury that it could not use this evidence at step 2 to find that the appellant was probably or likely a member of the conspiracy.
[98] The appellant is right. The trial judge did not expressly instruct the jury that this evidence was not available for use in deciding whether the appellant was probably a member of the conspiracy. But I have no doubt that the jury got the message. The trial judge made it clear at step 2 that probable membership could only be established on the basis of the appellant's own words and conduct. Only his own. By necessary implication, this excluded the words or conduct of anyone else, including Khattra. This, I am entirely confident, a contemporary Canadian jury would understand.
[99] The natural extension of the appellant's argument, as it seems to me, would have the trial judge list for the jury the acts and declarations of the other co-conspirators when addressing the probable membership of each at step 2, then instruct them not to consider this evidence on the issue of probable membership. Including a list of evidence not to consider seems unlikely to help jurors understand what they are entitled to consider.
[100] As I have said, I would reject this ground of appeal.
Ground #2: The Travel Histories and Altered Passport
[101] This ground of appeal has to do with what the trial judge told the jury about how they could use evidence of the travel history of the appellant. The ground does not contest the admissibility of the evidence, only the manner in which it was left to the jury to consider in reaching their verdict.
[102] A brief summary of the evidence in issue will furnish the essential background for the discussion that follows.
The Passport and Traveller History
[103] The appellant's passport was filed as an exhibit at trial. During Crown counsel's (not Mr. Gluckman) examination of a witness from the Canada Border Services Agency, the witness noticed that some pages were missing from the passport, apparently removed despite the stitching that bound the pages together between the outside covers of the document.
[104] An admission of fact made at trial established that the appellant had surrendered his passport to the RCMP about ten days after his arrest on November 5, 2008.
[105] The trial Crown also filed the ICES Traveller History of the appellant, Dhanoa, Khattra, Thind and Ghai. These are records maintained by the Canada Border Services Agency and show a traveller's contact with officials at various ports of entry. Among other things, the documents show entry at Pearson Airport by Dhanoa on March 24, 2007 and by the appellant, the following day.
[106] No evidence was given about where, when or by whom the missing pages were removed from the appellant's passport.
The Positions of the Parties at Trial
[107] During the pre-charge conference, trial counsel for the appellant raised the issue of the trial judge's reference to the missing pages of the passport in his draft charge. Counsel was concerned that the reference could make the missing pages "a lot more suspicious" than he (counsel) suggested they were. The trial judge advised counsel that his reference was simply "a passing comment of circumstantial evidence", thereby minimizing its impact on the jury's deliberations. The judge pointed out that a more focused reference (as evidence of post-offence conduct) could be much more harmful to the defence.
[108] In the end, trial counsel for the appellant was content to leave the reference as drafted. Counsel did not seek any instruction about the missing or removed pages as evidence of post-offence conduct or suggest their inclusion as an item of evidence relevant to step 2 of Carter.
[109] Similarly, the trial Crown did not seek an instruction on post-offence conduct in connection with the missing pages of the appellant's passport, or ask that the evidence be included at step 2 of Carter.
The Charge to the Jury
[110] The trial judge did not include an instruction on evidence of post-offence conduct in relation to the missing passport pages or refer to them as an item of evidence the jurors were entitled to consider on the issue of the appellant's probable membership in the conspiracy.
[111] In his charge, the trial judge referred to the evidence of the travel histories of the alleged conspirators as potentially confirmatory of the evidence of Khattra, which was subject to a Vetrovec caution: see Vetrovec v. R, [1982] 1 S.C.R. 811. He also included a reference to the travel histories (but not to the missing passport pages) of the appellant, Dhanoa and Ghai in summarizing the position of the Crown.
[112] Trial counsel for the appellant did not object to the closing address of the Crown, or to the manner in which the travel histories and the trial judge's comment "In evaluating Mr. Kler's travel history keep in mind that there are some pages missing from his passport" were left to the jury.
The Arguments on Appeal
[113] The appellant makes four points in support of this ground of appeal.
[114] First, the appellant says that the trial judge failed to provide any meaningful assistance to the jury about this evidence and, in particular, failed to alert the jury about the dangers associated with placing reliance on evidence of post-offence conduct – the missing pages of the passport.
[115] Second, the appellant contends, the trial judge misstated the evidence about the appellant's trip with his wife when she became nervous as they approached customs. There was no evidence about the place from which they were returning. The trial judge's mention of "India" in this connection was gravely prejudicial in light of the evidence about the source country from which the heroin seized in this case had originated.
[116] Third, and with the principal focus on the evidence about the passport's missing pages, the appellant submits that the trial judge erred in failing to advise the jury of the permissible and prohibited uses of this evidence.
[117] Finally, the appellant argues, the trial judge was wrong to leave the evidence as relevant to step 2 of Carter. For it to be admissible on the issue of probable membership, the evidence had to bring home removal of the pages to the appellant, which it failed to do.
The Governing Principles
[118] The principles that control the decision on this ground of appeal are familiar and not in need of repetition. A few brief points about relevance and evidence of post-offence conduct will suffice.
[119] Relevance is not an inherent characteristic of any item of evidence. It exists as a relation between an item of evidence and a proposition of fact that the party introducing the evidence proposes to establish by its introduction. Relevance is relative and contextual. It is a matter of everyday experience and common sense and is assessed in the context of the entire case and the positions of counsel: R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at paras. 204-6.
[120] An individual item of evidence may give rise to more than one inference. That it does so does not render it irrelevant, or call for its exclusion on the basis of some rule of admissibility. Individual items of evidence are not to be subjected to piecemeal evaluation, or rejected as irrelevant or inadmissible because they fail to satisfy the criminal standard of proof. It is the whole of the evidence, often greater than the sum of its individual parts, that is subjected to the criminal standard of proof.
[121] Whether the descriptive used is post-offence conduct or after-the-fact conduct, the designation tells us that what is involved is evidence of things done or said after an offence has been committed: not before and not at the same time, but after. This is circumstantial evidence to which no special rule attaches: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 31, 105, 185.
[122] As with circumstantial evidence generally, jury instructions about the use of evidence of post-offence conduct must not invite the jury to apply the criminal standard of proof to the individual items of evidence: R. v. White, [1998] 2 S.C.R. 72, at paras. 42-49.
[123] The courts eschew a list or category approach to determine whether things done or said after an offence has been committed may be relied upon as evidence of post-offence conduct. It all comes down to relevance. Examples of relevant evidence abound, among them, evidence than an accused destroyed or attempted to destroy objects that tended to link him or her to the commission of the offence charged. See e.g. R. v. Vant, 2015 ONCA 481, 324 C.C.C. (3d) 109, at para. 129.
The Principles Applied
[124] I would not give effect to this ground of appeal, the principal focus of which is on the evidence of the missing passport pages, and to a lesser extent on the travel histories of the alleged conspirators, including that of the appellant.
[125] Evidence of the missing passport pages was not tendered as evidence of post-offence conduct, and thus did not oblige the trial judge to provide jury instructions that would have been appropriate in such a case. Indeed, the complaint of prejudicial error for the failure of the trial judge to instruct the jury on evidence of post-offence conduct, raised for the first time in this court, is somewhat puzzling. Such an instruction would have scarcely assisted the appellant's cause. It would not take seven league boots to infer the identity of the person responsible for the destruction was the passport holder, an admitted traveller and the person from whom the passport, in its adulterated state, was recovered.
[126] The trial judge's reference to "India" in his summary of the evidence was wrong and unfortunate. But the suggestion that it caused irreparable prejudice in light of the source of the heroin in this case cannot withstand scrutiny when the charge is considered as a whole, together with the lack of any objection from trial counsel.
[127] The instructions of the trial judge made it clear that his evidentiary references reflected his recollection of the evidence, could contain mistakes, and were not binding on the jury who were required by their oath or affirmation to rely on their own individual and collective recollections of the evidence. Trial counsel had a copy of the draft charge in advance of its delivery. He said nothing. He heard the charge delivered. He said nothing. It is a reasonable inference that, as an eye and ear witness to the trial proceedings, the reference to "India" was not so significant as to require correction.
[128] Nor am I persuaded that the instructions about the travel history of the appellant and others reflect error. The evidence does not lack relevance. Its reception contravenes no rule of admissibility. And the only use of the evidence the judge invited the jury to make – as confirmatory of the testimony of the Vetrovec witness, Khattra – was not beyond its reach.
Ground #3: The Post-Arrest Statement
[129] At trial, the appellant challenged the admissibility of his responses to brief questions about his knowledge of the alleged co-conspirators posed by investigators in a holding cell at Pearson Airport within an hour of his arrest. The appellant contended that the responses were involuntary and the product of a breach of the implementation component of s. 10(b) of the Charter. He also submitted that the trial judge erred in his instructions to the jury about the use of this evidence in reaching a verdict.
[130] In his submissions to the trial judge, trial counsel abandoned the argument on voluntariness, but maintained his s. 10(b) claim and invited the trial judge to exclude the responses as evidence under s. 24(2) of the Charter.
[131] The trial judge considered the entire interaction between the appellant and investigators. He concluded that, despite some ambivalence in some responses to repeated investigative queries about whether he wished to call a lawyer, the appellant made no such request until after he had answered the officers' questions. The judge expressed his conclusion in these terms:
I am not persuaded by this argument. It seems to me that Mr. Kler's position that he did not want to speak to a lawyer was consistently advanced until 4:42 p.m. when he expressed a desire to speak to counsel, which Constable Moreland immediately facilitated. That reconciles completely with Constable Todosijevic's impression that in the police car, Mr. Kler was stating that he wanted to speak to his father to arrange for a lawyer and not in the sense of arranging to have Mr. Kler speak to a lawyer for the purpose of obtaining advance immediately after his arrest. On balance, I am not convinced the facts are as Mr. Kler says they are. He has not discharged his onus of demonstrating a violation of his Section 10(b) Charter rights.
On a balance of probabilities, I find the pertinent facts relating to the resolution of the section 10(b) issue are as described by Constable Moreland and Constable Todosijevic.
The application is dismissed. The challenged conversation is admissible against Mr. Kler.
[132] The appellant says that the trial judge erred in failing to find a breach of the implementation component of s. 10(b) of the Charter. On his own findings, the appellant submits, the trial judge should have concluded that an infringement occurred when the police failed to call the appellant's father who, the appellant claimed, would arrange for a lawyer. Further, investigators failed to advise the appellant that he need not respond to any of their queries until he had the opportunity to contact counsel.
[133] In addition, if the responses were properly received in evidence, the appellant claims that the trial judge was wrong not to instruct the jury to consider alternate explanations for the appellant's knowledge of other co-conspirators, such as prior contact with them and information about their prior arrests.
[134] I would not give effect to this ground of appeal.
[135] The trial judge well understood the claim of constitutional infringement advanced by the appellant. He considered the evidence as a whole, applied the proper legal principles and reached a conclusion on the evidence that was reasonably available to him. The issue he was required to decide involves what is essentially a finding of fact. Like other findings of fact, his conclusion is entitled to deference on appeal. He did not err in law or make any palpable and overriding errors of fact.
[136] It may well be that another judge might have decided the issue differently. But that is not enough for us to conclude that the trial judge was wrong in his analysis of the issue or in the conclusion he reached.
[137] The complaint about the trial judge's instruction to the jury concerning the use of this evidence also falls on barren ground. The jury was adequately instructed on the factors they should consider in assigning weight to the various items of evidence adduced at trial. It is worthy of notice that the principal source of the alternative explanation for the appellant's admission – the appellant himself – did not testify at trial.
Ground #4: The Vetrovec Instruction
[138] The final ground of appeal against conviction takes aim at the adequacy of the trial judge's Vetrovec caution in connection with the evidence of Khattra. The complaints are threefold:
i. the instruction was not tailored to the facts in the sense of outlining for the jury the specific reliability concerns in connection with Khattra's evidence in respect of the case against the appellant;
ii. the trial judge failed to point out that there was no evidence capable of providing confirmation about the meeting at the 410 plaza and at the airport hotels, the two most significant inculpatory features of Khattra's evidence against the appellant; and
iii. the travel histories, especially those of the appellant and Dhanoa, were not capable of being confirmatory since they lacked the necessary implicative quality required of confirmatory evidence.
[139] We did not find it necessary to hear submissions from the respondent on this ground of appeal.
[140] The Vetrovec caution identified Khattra's testimony as evidence that was subject to special scrutiny. The jury was told that it was dangerous to convict on Khattra's evidence. The trial judge undertook an extensive review of the frailties associated with Khattra's testimony, in particular, its myriad inconsistencies and chameleon-like quality as the narrative developed over time. He also pointed out Khattra's self-interest and the substantial benefit he had received on sentence. The jury could not have been left in any doubt about the reasons why Khattra's evidence should be subject to special scrutiny.
[141] The extent to which a trial judge illustrates potentially confirmatory evidence in connection with a Vetrovec witness is largely a matter of judicial discretion. Unlike potentially corroborative evidence under the former accomplice rule, references to potentially confirmatory evidence are illustrative, not exhaustive. And unlike under the former rule, confirmatory evidence need not implicate the accused in a material particular in the offence charged.
[142] In this case, the charge (albeit in connection with the defence position) pointed out that there was no confirmation of Khattra's evidence about the 410 plaza or airport hotels meetings. Nothing left as potentially confirmatory lacked that quality. Recall as well that trial counsel was provided with a draft copy of the charge in advance of delivery and registered no objection to the caution or the evidence left as potentially confirmatory.
[143] For these reasons, this ground of appeal fails and with it the appeal from conviction.
The Appeal from Sentence
[144] The appellant also seeks leave to appeal and, if leave is granted, appeals the sentence of 16 years less credit for pre-disposition custody.
[145] The appellant says that the trial judge's sentencing decision is flawed by findings of fact that are unreasonable and not supported by the evidence. There was no evidence that the appellant had previously travelled to India, much less that he did so in connection with the importation of drugs. The only evidence that he recruited Thind was inadmissible hearsay, double hearsay, from Khattra.
[146] The appellant also advances a disparity argument. Ghai, whose role extended well beyond the recruitment of Khattra, was sentenced to 14 years in penitentiary on a plea of guilty. The more appropriate range for the appellant and his involvement was the lower end of a range of 12-14 years.
[147] The respondent contends that the sentence imposed is proportionate to the gravity of the offence – importation of 26 pounds of heroin – and the moral blameworthiness of the appellant. In reaching his conclusion, the respondent says, the trial judge considered the applicable sentencing objectives, the relevant sentencing principles, as well as the aggravating and mitigating factors. There is no basis upon which to interfere.
[148] The respondent accepts that there is no direct evidence that the appellant travelled to India, or that he did so in connection with the importation of drugs. That said, the appellant's travel history, association with Dhanoa and his anecdotal reference to his wife becoming nervous during an earlier trip – suggestive of the appellant himself smuggling items into Canada – and Khattra's evidence that the men who packed the suitcases in India asked if he knew the appellant would tend to support a similar conclusion. In any event, such a finding played no part in the sentencing decision. The trial judge located the appellant in the organizational hierarchy as a recruiter of the courier, Thind, and sentenced him on that basis, distinguishing his involvement from that of Ghai.
[149] I would grant leave to appeal sentence, but dismiss the appeal.
[150] It is well-settled that, except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence imposed, an appellate court may not vary the sentence unless it is demonstrably unfit.
[151] It is beyond controversy that the predominant sentencing objectives in preliminary or inchoate crimes that have as their object the importation of significant quantities of very dangerous drugs, as well as the substantive crime of importing, are denunciation and deterrence. The cost of apprehension must well exceed the financial reward achieved when undetected.
[152] Even if we were to accept that the trial judge erred in his reference to the appellant's travel to and from India for drug importation purposes, a consideration of the reasons for sentence as a whole reveals that the appellant was sentenced for his role in recruiting a courier, not for some higher or more culpable level of involvement. Ghai pleaded guilty, a factor that greatly influenced the sentencing decision in his case. The appellant cannot claim the benefit of such mitigation.
[153] The sentence imposed is consistent with precedent. It reflects no error in law or in principle. I see no basis upon which we are entitled to interfere.
Conclusion
[154] For these reasons, I would dismiss the appeals from conviction and sentence.
Released: January 25, 2017 ("DW")
"David Watt J.A."
"I agree. E.A. Cronk J.A."
"I agree. R.G. Juriansz J.A."
