DATE: 20010320

DOCKETS: C27968, C27598, C27597, C27158, C28029, C27638 and C32179

COURT OF APPEAL FOR ONTARIO

CHARRON, BORINS AND SIMMONS JJ. A.

BETWEEN:

HER MAJESTY THE QUEEN

Morris Pistyner, for the respondent

Respondent

• and -

SANJITH SATKUNANANTHAN, FRANCIS COOMAN MICHAELPILLAI, KENNETH WIGNARAJA FRANCIS, JEGATHEESWARAN CHELLIAH, JEYASEELAN THURAISINGAM, RASAMINE MANORANJAN AND JAYASHAN PALANITHURAI

Timothy E. Breen, for the appellant Satkunananthan P. Andras Schreck, for the appellant Michaelpillai James C. Fleming, for the appellant Francis Peter Connelly, for the appellants Chelliah and Manoranjan Melvyn Green, for the appellant Thuraisingam Jayashan Palanithurai, in person

Appellants

HEARD: November 29, 30 and December 1, 2000

On appeal from convictions of trafficking in a narcotic by Justice Paul Dilks and a jury at Toronto on March 8, 1997, and sentences on April 11, 1997, May 12, 1997 and June 17, 1997.

BY THE COURT:

[1] In these appeals, the seven appellants appeal from their convictions and sentences arising out of their participation in an alleged scheme to sell a kilogram of heroin to an undercover officer for $135,000. The sale did not take place. However, half a kilogram of heroin was found in the possession of two appellants. Although the facts are relatively simple, arising from a two-day undercover police operation, the trial before Dilks J. and a jury lasted six weeks.

[2] The jury convicted each of the appellants of trafficking in heroin arising from an abortive sale of the substance to an undercover police officer on May 11, 1993. They were jointly charged with this offence, the position of the Crown being that the appellants had entered into a common enterprise to traffic in heroin. The appellants Satkunananthan and Palanithurai were additionally convicted of trafficking in heroin for giving a sample of heroin to the undercover officer before the abortive sale. Finally, the appellants Chelliah and Thuraisingam were additionally convicted of possession of heroin for the purpose of trafficking. They were found in possession of half a kilogram of heroin after the abortive sale.

[3] With respect to the appeals from conviction, the appellants rely on the following grounds. They submit that the trial judge erred:

(1) In finding that the delay of forty-four and one-half months from when the appellants were charged until their trial was not unreasonable pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms.

(2) In rejecting a motion pursuant to R. v. Carosella (1997), 1997 CanLII 402 (SCC), 112 C.C.C. (3d) 289 (S.C.C.) for a stay on the basis of the destruction of police notes.

(3) In rejecting a motion for a mistrial due to a police officer’s mid-trial communication with a member of the jury which occurred while the officer was testifying.

(4) In his instruction to the jury on common enterprise.

(5) In his instruction to the jury on reasonable doubt.

[4] As well, some of the appellants advance additional grounds. Thuraisingam and Chelliah submit that the trial judge erred in his instruction to the jury respecting the definition of trafficking and in entering convictions for both trafficking in heroin and possession of heroin for the purpose of trafficking contrary to R. v. Kienapple (1974), 1974 CanLII 14 (SCC), 15 C.C.C. (2d) 524 (S.C.C). Satkunananthan submits that the trial judge erred in his instruction to the jury on the defence of duress. Finally, it is the position of Michaelpillai and Francis that the verdict against them was unreasonable.

I. Was There Unreasonable Delay?

[5] Before considering the submissions of the parties, it is helpful to outline the procedural history of this case.

May 11, 1993

All appellants were charged; six appellants were arrested.

February 7 – September 21, 1994

Preliminary hearing. Six appellants committed to stand trial.[^1]

Trial before Hawkins J.

September 11, 1995

First trial scheduled to begin.

October 3, 1995 Ontario Court (Gen. Div.)

Trial ordered adjourned to April 15, 1996, due to lack of a qualified interpreter (no reasons given).

Trial before Farley J.

March 8, 1996 Ontario Court (Gen. Div.)

Dismissed stay application. Held: The appellants’ right to a trial without reasonable delay under s. 11(b) of the Charter was not violated.

April 15, 1996

Second scheduled trial began.

April 23, 1996

Seventh appellant arrested (Palanithurai). He subsequently waived his right to a preliminary hearing.

June 3, 1996 Ontario Court (Gen. Div.)

Dismissed stay application. Held: Appellants’ right to full answer and defence under s. 7 of the Charter was not violated by destruction of police officers’ surveillance notes.

June 21, 1996 Ontario Court (Gen. Div.)

Mistrial declared due to the continuing illness of appellant Satkunananthan, resulting in hardship to jurors.

Trial before Dilks J.

January 13, 1997 Ontario Court (Gen. Div.)

Stay application brought. Held: The appellants’ right to a trial without unreasonable delay under s. 11(b) of the Charter was not violated.

January 29, 1997

Third scheduled trial began.

February 21, 1997 Ontario Court (Gen. Div.)

Dismissed application for mistrial. Held: A police officer’s conversation with a juror during trial was innocent and did not justify grounds for mistrial.

March 8, 1997 Ontario Court (Gen. Div.)

Dismissed Carosella stay application. Held: The appellants’ right to full answer and defence under s. 7 of the Charter was not violated by the destruction of police officers’ surveillance notes.

March 8, 1997 Ontario Court (Gen. Div.)

Convictions of all appellants on first count of trafficking in a narcotic; convictions of Satkunananthan and Palanithurai on second count of trafficking in a narcotic; convictions of Thuraisingam and Chelliah on third count of possession of a narcotic for purpose of trafficking.

Sentencing

April 11, 1997 Ontario Court (Gen. Div.)

Chelliah sentenced to 5 years, 8 months. Palanithurai sentenced to 10½ years.

May 12, 1997 Ontario Court (Gen. Div.)

Satkunananthan sentenced to 9½ years.

June 17, 1997 Ontario Court (Gen. Div.)

Thuraisingam sentenced to 8½ years. Manoranjan sentenced to 6½ years. Michaelpillai sentenced to 4½ years. Francis sentenced to 4 years.

Court of Appeal

May 1, 1997 to May 31, 1997

Notices of appeal filed.

July 25, 1997 to April 16, 1998 Court of Appeal (McKinlay J.A., Abella J.A.)

All appellants (except Palanithurai) granted bail.

Facts

[6] It is helpful to outline the events that resulted in the charges against the appellants. In our view, the factual context is relevant to a consideration of the appellants’ s. 11(b) Charter application because it demonstrates that this was not a complex prosecution. Indeed, the case for the prosecution was straightforward.

[7] The events giving rise to the prosecution spanned less than two days: May 10 and 11, 1993. An undercover officer, supported by surveillance, met with the appellants Satkunananthan and Palanithurai on the first day and arranged to buy a quantity of heroin from them on the next day. The next day, the undercover officer met with these appellants, first at one shopping mall, and then at a second mall. The officer’s interaction with these appellants and the movements of their alleged accomplices, the remaining appellants, were the subject of close observation by a number of surveillance officers. When the deal went awry, the alleged sellers and their associates were followed and arrested, with the exception of Palanithurai, who was not arrested until April 23, 1996. When arrested in a car, the appellants Chelliah and Thuraisingam had half the quantity of heroin in their possession that their associates had allegedly agreed to sell.

[8] At the trial the only evidence for the prosecution was that of the officers involved in the abortive sale and the officers who conducted the surveillance. There were no wiretaps or other intercepted communications. Nor were there any evidentiary issues which might have required lengthy submissions such as claims of privilege, access to third-party records, or similar fact evidence. There were no recanting or forgetful witnesses. As we will explain, the significant complication, which is familiar to courtrooms in the Toronto area, was the need for a qualified interpreter. In addition, the number of accused created some difficulty in the scheduling of court dates.

[9] In our view, this was not a prosecution that required lengthy or extensive preparation. However, there were five stages in the procedural history of the case that require scrutiny in respect to the period of forty-four and one-half months that elapsed between the time that six of the appellants were charged and their trial began before Dilks J. These stages are: the preliminary hearing; the scheduling of the first trial date in the General Division; the unavailability of an interpreter on the first trial date before Hawkins J.; the termination of the second scheduled trial by Farley J. on June 21, 1996; and the rescheduling of what was to become the third trial date.

[10] Before reviewing these stages, we would note that following the arrest of the six appellants on May 11, 1993, they were granted bail between May 25 and 27, 1993. We will return to the conditions of their bail orders when we consider the prejudicial effect of the forty-four and one-half month delay. However, each appellant remained in custody for a period of time before he was able to satisfy the terms of his bail.[^2]

[11] The appellants were required to attend court six times before the date for their preliminary hearing was fixed on August 5, 1993. Crown counsel estimated three days, while defence counsel estimated five days to complete the preliminary hearing. Although defence counsel were prepared to commence the hearing in October, there was “no court space” available for a five-day preliminary hearing until January 24, 1994. However, to accommodate counsel for the appellant Francis, it was scheduled to begin on February 7, 1994. This was almost nine months after the appellants had been charged.

[12] The preliminary hearing took place before Graham J. It was not completed in the five days that had been scheduled. Although another block of five court days for the continuation of the preliminary hearing was available in the last week of May, 1994, all of the counsel, including the Crown counsel, had commitments which prevented the preliminary hearing from resuming for more than seven months. It resumed on September 19, 1994 and concluded on September 21, 1994. As the preliminary hearing required seven and one-half months to be completed, the appellants were not committed for trial until more than sixteen months after they had been charged.

[13] At the judicial pre-trial before Keenan J. on November 16, 1994, a first trial date of September 11, 1995 was fixed. This date was almost a year after the committal for trial, and twenty-eight months after the appellants had been charged. All counsel were required to undertake to block off six weeks to ensure their availability for the trial, and they did this. At the request of defence counsel, the court endorsed on the indictment the need for a Tamil interpreter.

[14] On September 11, 1995 the appellants appeared for trial before Hawkins J. There was no qualified interpreter available. The court convened on September 14, 18, 19, 27, 28, 29 and October 3, but on each occasion the Crown failed to provide a qualified Tamil interpreter. Three of the six weeks set aside for the trial had passed, and because the Crown was unable to provide an interpreter, it had not commenced. This was a serious concern to defence counsel, who took the position that the problem laid in the Crown’s refusal to pay the fee requested by a qualified interpreter. This prompted Hawkins J. to comment that “[t]here seems to be a remedy if the Crown has failed to take reasonable steps to get this case ready for trial”. Crown counsel conceded that “some kind of delay . . . might be attributable to the Crown in light of the interpreter not being available”.

[15] Ultimately, on October 3, 1995, Hawkins J. concluded that the trial could not commence because the Crown had failed to provide a qualified interpreter. He endorsed on the indictment that the appellants had not waived their s. 11(b) Charter right. The trial was adjourned to April 15, 1996, a few weeks shy of the third anniversary of when the appellants had been charged.

[16] By January, 1996, counsel for the appellants had decided to commence an application for an order staying the prosecution on the ground that the appellants’ s. 11(b) Charter right to a trial within a reasonable time had been infringed. The application was issued on February 5, 1996 and resulted in the designation of Farley J. as the trial judge. The application was argued from March 4 to 6, 1996. It was dismissed by Farley J. on March 8, 1996.

[17] The trial commenced, as scheduled, on April 15, 1996. It was interrupted frequently due to the illness of Satkunananthan and his counsel. Eventually, Satkunananthan’s counsel was excused due to incapacitating medical problems, and Satkunananthan was compelled to continue without counsel. Each of the other appellants and their counsel attended every day, anxious to proceed. By the third week in June, due to the interruptions, the trial had exceeded its six-week estimate, and counsel and Farley J. became concerned that it might not conclude before some of the jurors were to commence their planned summer vacations. Consequently, defence counsel moved for a mistrial, and in the alternative, to sever Satkunananthan from the indictment, indicating that the trial could be completed in ten to thirteen days were Satkunananthan to be severed. The Crown moved for neither a mistrial nor a severance, but took the position that if there was to be either, a severance was the preferred course to be followed. Rather than ordering a severance, Farley J. declared a mistrial on June 21, 1996. This was more than thirty-seven months after the appellants had been charged.

[18] Following the mistrial, the new trial was scheduled to commence on January 13, 1997, some seven months later. Thus, the cumulative delay from the charge and arrest of six of the seven appellants to the third trial date was over forty-four months. Of this period, about sixteen months constituted delay from charge to committal for trial, and about twenty-eight months, from committal to trial. Another application for an order staying the prosecution on the ground of s. 11(b) was brought. However, in his ruling of January 27, 1997, Dilks J. concluded that the delay was not constitutionally unreasonable. The third scheduled trial began on January 29, 1997 before Dilks J.

[19] A consequence of Farley J.’s declaration of a mistrial was that the appellant Palanithurai, who had been arrested during that abortive trial and who waived a preliminary hearing, was tried together with the other appellants on a fresh indictment. Less than nine months passed from his arrest to the commencement of the trial before Dilks J. This appears to have been recognized by Dilks J. in his reasons for dismissing the s. 11(b) application.

Reasons of the trial judge

[20] Dilks J. (the “trial judge”) commenced his reasons by referring to the following factors that the court should consider in determining whether unreasonable delay has occurred:

(1) the length of the delay;

(2) waiver of time periods;

(3) the reasons for the delay including:

(a) inherent time requirements of the case;

(b) actions of the accused;

(c) actions of the Crown;

(d) limits on institutional resources;

(e) other reasons for the delay;

(4) prejudice to the accused.

These factors were discussed in R. v. Askov (1990), 1990 CanLII 45 (SCC), 59 C.C.C. (3d) 449 (S.C.C.) and affirmed in R. v. Morin (1992), 1992 CanLII 89 (SCC), 71 C.C.C. (3d) 1 (S.C.C.). The trial judge then quoted the following passage from the reasons of Sopinka J. in Morin at p. 13:

. . . a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay…. [I]t is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable?

[21] Rather than considering the above factors individually, the trial judge appears to have considered the length of the delay and the reasons for the delay cumulatively, following which he considered the prejudice to the appellants resulting from the delay. From his reasons, and the record of the various proceedings, it is clear that waiver of time periods was not an issue as no appellant had waived his s. 11(b) protection.

[22] In considering the delay, the trial judge agreed that a forty-four and one-half month delay was “of significant length so as to raise an issue as to its reasonableness”. Although the trial judge accepted Farley J.’s finding on the previous s. 11(b) application that there had been a systemic delay of sixteen months by September 11, 1995[^3], the date fixed for trial before Hawkins J., he disagreed with Farley J.’s characterization as “neutral” of the further seven-month delay resulting from the unavailability of a qualified interpreter, until the second fixed trial date of April 15, 1996. Based on the holding in Askov at pp. 478-479 that it is the Crown’s responsibility to provide court facilities and staff, including competent interpreters, the trial judge concluded that the “failure to provide qualified interpretation is . . . attributable to conduct of the Crown or to a shortage of institutional resources”. As a result, he held that “the total of unjustified time grows to twenty-three months”.

[23] The trial judge then considered the period of nine months from the commencement of the trial before Farley J. on April 15, 1996 to the commencement of the trial before himself on January 13, 1997, and observed that defence counsel had not suggested “that the length of that interval [was] untoward”.

Some counsel, other than counsel for Mr. Satkunananthan, suggested that their clients were not responsible for the mistrial declared by Farley J., but they didn’t press the point with any particular vigor, for to have done so would have been to suggest that Mr. Satkunananthan was in some way responsible for the state of his own health.

Farley J. made no such finding and I can find no real evidence to support any such finding. The result is that the final period must be classified as neutral and not attributed either to the Crown or to the defence or to systemic delay. [Emphasis added.]

[24] The trial judge continued:

In my view, in the circumstances of the case, the time period is right on the line between being reasonable and being unreasonable. While this is not really a complex case, the fact that there are multiple accused adds an extra dimension to the Crown evidence, quite apart from the inherent difficulty in trying to coordinate the schedules of several counsel.

In cases such as this, it is helpful to look, in the final analysis, to the specific prejudice suffered by the accused. [Emphasis added.]

[25] In considering prejudice, the trial judge recognized that any prejudice sustained by the appellant Palanithurai need not be taken into consideration given that he was not arrested until April 23, 1996. As for the other appellants, the trial judge was unable to “view specific prejudice in this case as having sufficient significance so as to make the delay unreasonable”. In reaching this conclusion he noted that all of the appellants had been released on bail within a few days of their arrest, except Francis and Manoranjan, who took one and one-half months and nine months respectively to raise bail. He did not consider that the bail conditions were “particularly onerous”, although some of the appellants had submitted that weekly reporting to the police was onerous. He faulted the appellants for waiting until their last appearance before Hawkins J. on October 3, 1995 to obtain a variance of the reporting condition to once a month, to which the Crown assented. It would appear that the appellant Thuraisingam did not apply for a variation of this condition. The trial judge concluded his reasons by quoting the following passage from the reasons of Sopinka J. in Morin at p. 24:

The purpose of s. 11(b) is to expedite trials and minimize prejudice and not to avoid trials on the merits.

Position of the Appellants

[26] The submission of counsel for the appellants is that the trial judge erred in failing to stay the prosecution on the ground of unreasonable delay. Counsel submits that a delay of forty-four and one-half months from charge and arrest to trial is sufficient to attract constitutional scrutiny. The case was in the Provincial Court system for sixteen and one-half months before the appellants were committed for trial, and in the General Division for twenty-eight months until the ultimate trial date was reached. Each period exceeded the administrative guidelines suggested by Sopinka J. in Morin at p. 22 of an institutional delay of between eight and ten months in Provincial Court and between six and eight months after committal for trial. Counsel emphasizes that in Morin, which was decided in March, 1992, the Supreme Court of Canada made it clear to provincial authorities that it was necessary for them to take whatever steps were required to improve institutional resources to enable trials to be concluded within the above time periods. As Sopinka J. put it at p. 22:

These suggested time periods are intended for the guidance of trial courts generally. These periods will no doubt require adjustment by trial courts in the various regions of the country to take into account local conditions and they will need to be adjusted from time to time to reflect changing circumstances. The Court of Appeal in each province will play a supervisory role in seeking to achieve uniformity subject to the necessity of taking into account the special conditions and problems of different regions in the province.

Counsel points out that in the hearing before the trial judge the Crown presented no evidence to explain the reasons, institutional or otherwise, for the delay.

[27] Counsel for the appellants submit that the trial judge made several errors in dismissing the appellants’ s. 11(b) application. We consider the following to be the most significant:

▪ The failure to properly characterize the delay resulting from the inability to complete the preliminary hearing within the five days scheduled.

▪ The failure to assign weight to the seven months of additional delay resulting from the Crown’s inability to provide a Tamil interpreter.

▪ The characterization of the seven-month delay following the mistrial ordered by Farley J. as “neutral”.

▪ The failure to properly apprehend the prejudice to the appellants caused by the delay.

[28] The main point argued by counsel for the appellants respecting the preliminary hearing was that where the time required to complete a preliminary hearing exceeds the time allocated, those persons who have the responsibility for scheduling cases must make efforts to complete the hearing without any delay. The ideal arrangement would be to continue the preliminary hearing until its completion, even if this interferes with the scheduling of other cases. Counsel submits that the administration of justice is adversely affected when any hearing, be it a preliminary hearing or a trial, is conducted on a piecemeal basis. Had the preliminary hearing proceeded on consecutive court days, it would have been completed in two additional days, thereby avoiding a seven-month delay. Therefore, it is argued that the seven-month delay in scheduling the completion of the preliminary hearing should be attributable to the Crown.

[29] It was submitted that the trial judge placed insufficient weight on the seven-month delay resulting from the lack of a qualified interpreter. Although the trial judge was correct to “charge” this additional delay to the Crown, counsel submits that the trial judge erred in concluding that it made no difference whether the failure to provide a qualified interpreter was attributable to the conduct of the Crown or to a shortage of institutional resources. Relying on R. v. Collins and Pelfrey (1995), 1995 CanLII 114 (SCC), 99 C.C.C. (3d) 385 at 388 (S.C.C.), counsel submits that because the evidence established that the delay was the fault of the Crown the trial judge placed insufficient weight on that factor.

[30] Counsel for the appellants takes strong exception to the trial judge’s “neutral” characterization of the seven-month delay following Farley J.’s declaration of a mistrial. Actions of trial judges that contribute to delay are ordinarily assessed under “other causes for delay” and, as stated in Morin at p. 23, “cannot be relied on by the Crown to justify the period under consideration”. Counsel submits that Farley J.’s declaration of a mistrial, in contrast to the reasonable alternative of severing the ill and unrepresented Satkunananthan, fell into the category of unnecessary delay. Although the decision as to the appropriate remedy to the predicament presented by Satkunananthan was within the discretion of Farley J., given that the delay up to that point was about thirty-seven months and that the trial was almost over, it is submitted that Farley J. exercised his discretion inappropriately, as it was obvious and inevitable that the declaration of a mistrial would add to the delay. In short, the appellants’ position is that severance was a more reasonable alternative than a mistrial. While the appellants do not ask this court to review Farley J.’s decision, which it cannot do, they suggest that the trial judge should have attributed the seven-month delay caused by the mistrial to the Crown: Rahey v. R. (1987), 1987 CanLII 52 (SCC), 33 C.C.C. (3d) 289 (S.C.C.).

[31] As for prejudice, the appellants submit that prejudice to those interests protected by s. 11(b) of the Charter is a “virtually irresistible” inference in a case extending some forty-four and one-half months. In addition, counsel submits that each appellant demonstrated actual prejudice and that the trial judge misapprehended, or misunderstood, the evidence relating to their respective bail conditions in finding that there had been no prejudice.

[32] Counsel for the appellants submit that the trial judge was incorrect in stating that all, except two, of the appellants had been released on bail within a few days of their arrest. The evidence was that each appellant was in custody for at least one month before his release on bail: one month for Chelliah and Thuraisingam; two months for Satkunananthan, Michaelpillai and Francis; nine months for Manoranjan. In addition, it is submitted that the trial judge erred in describing the bail conditions as not “particularly onerous” in light of the restrictive conditions imposed by the appellants’ interim release orders. Common to these orders was a requirement that the appellants surrender their passports and travel documents, remain in Ontario and not associate with one another. In addition, a weekly reporting requirement was imposed. Although this condition was varied on October 3, 1995 by Hawkins J. to one of monthly reporting, the trial judge faulted the appellants for not applying earlier for a variation of the reporting requirement.

Analysis

[33] In R. v. Batte (2000), 2000 CanLII 5750 (ON CA), 34 C.R. (5th) 263, Rosenberg J.A., on behalf of this court, described at p. 281 the analysis to be undertaken in determining whether an accused person’s s. 11(b) Charter rights have been infringed:

In R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771 (S.C.C.), at 788, Sopinka J. held that the determination of whether the accused’s right to a trial within a reasonable time had been infringed could not be made by the application of a mathematical formula. Rather, the court is required to balance the interests the section is designed to protect against the factors that either inevitably lead to delay or are otherwise the cause of the delay. The balancing “requires an examination of the length of the delay and its evaluation in light of the other factors. A judicial determination is then made as to whether the period of delay is unreasonable.” Sopinka J. held that the court should consider the following factors:

1.the length of the delay;

2.waiver of time periods;

3.the reason for the delay, including

(a)inherent time requirements of the case;

(b)actions of the accused;

(c)actions of the Crown;

(d)limits on institutional resources, and

(e)other reasons for delay, and

4.prejudice to the accused.

[34] We will consider the delay in this case relative to these factors. However, it should be made clear that in doing so, we have excluded any consideration of the appellant Palanithurai who was not arrested until almost three years after he had been charged and whose trial, together with the other appellants, commenced nine months after his arrest.

[35] The trial judge found that “the total of unjustified time” was twenty-three months, which he considered to be “right on the line between being reasonable and being unreasonable”. He saw as determinative of this issue whether “specific prejudice [had been] suffered by the accused”. Although we agree with the trial judge that when the various explanations are considered there were at least twenty-three months of unacceptable delay, we also agree with the submission of the appellants’ counsel that this period should be extended as a result of: the inability to complete the preliminary hearing in the time scheduled; the period of almost a year between the appellants’ committal for trial and the initial trial date before Hawkins J.; and the delay resulting from Farley J.’s declaration of a mistrial. However, even if we were to accept the period of unacceptable delay to be twenty-three months, it is our view that the trial judge erred in concluding that the delay was reasonable within the meaning of s. 11(b). Accepting that the trial judge considered the absence of prejudice to the appellants resulting from the delay as the factor that tipped the scales against the appellants, in our view he either misapprehended, or failed to apply, the evidence when he found that he was unable to “view specific prejudice in this case as having sufficient significance so as to make the delay unreasonable”. In addition, he failed to give any consideration to inferred prejudice resulting from the lengthy delay.

1. The length of the delay

[36] The delay to be considered is the time from when the appellants were charged to the date the trial before Dilks J. commenced, a period of forty-four and one-half months. It is agreed by counsel that this period is sufficient to engage constitutional scrutiny.

2. Waiver of time periods

[37] There are no time periods that should be deducted on account of waiver by the appellants.

3. Reasons for the delay

(a) Inherent time requirements of the case

[38] As we have explained, this was not a prosecution that required lengthy or extensive preparation. There were no significant evidentiary issues. The trial judge found that it was “not really a complex case”. We agree with this finding and the trial judge’s observation that multiple accused added “an extra dimension to the Crown’s evidence” and to coordinating the schedules of several counsel. However, it required sixteen and one-half months to complete the preliminary hearing, compared to the administrative guideline of eight to twelve months suggested in Morin.

[39] In R. v. MacDougall, 1998 CanLII 763 (SCC), [1998] 3 S.C.R. 45 at para. 44, McLachlin J. described the inherent time requirements of a prosecution as follows:

The period of time attributable to inherent time requirements is the period of time that would normally be required to process a case, assuming the availability of adequate institutional resources. The period of time attributable to inherent time requirements is neutral and does not count against the Crown or the accused in the s. 11(b) reasonableness assessment.

[40] In our view, there is no feature of this case that would take its inherent time requirements outside the administrative guidelines discussed in Morin other than the difficulty in coordinating the schedules of the several counsel involved to achieve dates for the commencement and completion of the preliminary hearing and the three trial dates in the General Division. However, we do not view this difficulty, which we would characterize as slight, as justifying the sixteen and one-half months required to complete the preliminary hearing and the further twenty-eight months to reach the ultimate trial date of January 13, 1997. The initial period of sixteen and one-half months exceeded the administrative guideline of eight to ten months by six and one-half to eight and one-half months and the period of twenty-eight months in the General Division exceeded the administrative guideline of six to eight months by twenty to twenty-two months. The total of forty-four and one-half months from charges to trial exceeded the overall administrative guideline of fourteen to eighteen months by twenty-six and one-half to thirty and one-half months.

[41] The additional twenty-four and one-half to thirty and one-half months somewhat corresponds to the “unjustified time” of twenty-three months found by the trial judge. The unjustified time comprised the sixteen months of systemic delay, as determined by Farley J. when he heard and dismissed a s. 11(b) motion in March, 1996, and adopted by the trial judge, as well as the seven-month delay that the trial judge attributed to the Crown when it was unable to produce a qualified interpreter resulting in the adjournment. Farley J. found that the sixteen months of systemic delay consisted of six months from when a date was fixed for the preliminary hearing until it commenced (although nine months had in fact passed from when the charges were brought until the commencement of the preliminary hearing) and ten months from when a date was fixed for the trial before Hawkins J., (although just under one year had passed from the date of committal for trial and the trial date, until the appellants appeared before Hawkins J. for their trial).

[42] As we have indicated, other than the fact that there were multiple accused, there was nothing inherent in this case that justified the twenty-eight months that elapsed from the date of the charges to the date fixed for the first trial. This period exceeded the twenty-month outer limit of the administrative guideline by eight months. In our view, this was the result of two factors: the piecemeal way in which the preliminary hearing proceeded and the one-year period from committal for trial to the first trial date.

[43] We appreciate that it is not always possible to complete a preliminary hearing, or a trial, within the period estimated by counsel. There are various reasons why this might occur, and no purpose is served by speculating what they might be. However, we do not agree with the respondent that fault lies with counsel for the appellants because the preliminary hearing was not completed in the five days estimated by all counsel, resulting in a seven-month delay until it could be completed.

[44] In our view, this seven-month delay was not justified by any factor inherent in this case. Ideally, efforts should have been made to schedule the completion of the preliminary hearing on the next two subsequent court dates. In this regard, there is much to commend the following observation of Hill J. in R. v. Pusic (1996), 1996 CanLII 8215 (ON SC), 30 O.R. (3d) 692 at p. 705 (Gen.Div.):

We do not have the luxury of a system which can provide instant access to litigants, in terms of courtrooms, judges and jury panels. Some institutional or systemic delay must be tolerated in recognition of the limited resources available. This situation of tolerance itself has limits or the s. 11 (b) protection would be entirely eviscerated. Whatever the competition for fiscal resources, the government has a constitutional obligation to try an accused within a reasonable time. In the words of Sopinka J. (in dissent in the result) in R. v. Conway, supra, at p.1713 S.C.R., p. 332 C.C.C., “a crowded trial calendar is not the accused’s fault and it should not be charged against his constitutional right”.

[45] There was no evidence of the exigencies that would have been involved in completing the preliminary hearing on the next two subsequent court days or soon thereafter. In our view, such a practice should be adopted wherever possible. Here, the court could not accommodate the completion of the preliminary hearing until May. Counsel were not available then and were unable to resume until September. A seven-month delay in scheduling the continuation of a preliminary hearing is too long. The interruption of the preliminary hearing caused this delay, which can more appropriately be attributed to the lack of institutional resources.

[46] As well, it is difficult to justify the one-year delay from committal for trial to the initial trial date. No explanation was provided by the respondent. Indeed, the respondent tendered no evidence before the trial judge in an attempt to explain, or to justify, the various delays. In our view, a portion of this period must be regarded as unacceptable. We are of a similar view in respect to the six-and-one-half month period between the adjournment of the proceedings by Hawkins J. and the next scheduled trial date. This case illustrates, as Sopinka J. stated in R. v. Smith, 1989 CanLII 12 (SCC), [1989] 2 S.C.R. 1120 at 1135, that there may be circumstances in the course of a criminal proceeding where it is incumbent upon the Crown to select, or arrange for, a hearing date more commensurate with the right of an accused person to be tried within a reasonable time. Indeed, the longer the proceeding is in the system, the greater the responsibility of the Crown to expedite the hearing date to get the case on for trial. In our view, the system should have been sufficiently flexible to accommodate an earlier date to complete the preliminary hearing and the three trial dates.

[47] We would add that we agree with the conclusion of the trial judge that the seven-month delay resulting from the Crown’s inability to provide a suitable interpreter is attributable to the Crown.

(b) Actions of the accused

[48] Other than some scheduling complications resulting from a number of accused persons, there were no actions of the appellants that explain some of the delay.

(c) Actions of the Crown and

(d) Limits on institutional resources

[49] We have, in essence, considered these factors in our discussion of the inherent time requirements of the case.

(e) Other reasons for delay

[50] It is the submission of counsel for the appellants that the delay resulting from Farley J.’s declaration of a mistrial constitutes an unjustified delay attributable to the Crown. Depending on whether it is calculated from April 15, 1996 when the trial before Farley J. commenced, or from June 21, 1996 when it terminated in a mistrial, the delay is either seven or nine months. Actions of trial judges that contribute to the delay are ordinarily assessed under this rubric. As stated by Sopinka J. in Morin at p. 23, “such delay cannot be relied upon by the Crown to justify the period under consideration”. Rahey is an example of a case in which the actions of a trial judge resulted in an eleven-month delay that infringed the accused’s s. 11(b) right. On the other hand, the delay caused by the trial judge in R. v. Bosley (1992), 1992 CanLII 2838 (ON CA), 18 C.R. (4th) 347 (Ont. C.A.) did not result in a s. 11(b) infringement[^4]. Nor did the prolonged illness of the trial judge in MacDougall.

[51] We appreciate the delicacy of assessing the soundness of Farley J.’s decision to declare a mistrial made at a very late date in the trial and after about thirty-seven months of delay, rather than severing the appellant Satkunananthan and completing the trial of the remaining appellants as urged by the Crown. It appears that there were two reasons why he felt a mistrial was more appropriate than a severance. The first reason was his concern that the severance of Satkunananthan might result in the remaining accused receiving an unfair trial. The second reason was the application of the general principle that persons jointly charged with an offence should be tried together.

[52] As for the first reason, Farley J. perceived that Satkunananthan was exaggerating his symptoms. He considered that the frequent adjournments that were required due to his illnesses could have alienated the jury against him. Farley J. was concerned that this alienation might have a “spillover” effect, perhaps by infecting the jury’s view of the remaining accused. This led him to conclude that as the remaining accused might be prejudiced and receive an unfair trial were Satkunananthan to be severed, a mistrial was the better course to follow.

[53] As for the second reason, Farley J. did not address the concern raised by Martin J.A., on behalf of this court in R. v. Heaslip (1983), 1983 CanLII 3519 (ON CA), 9 C.C.C. (3d) 480 at 496: “[t]he Crown’s legitimate interest in ensuring that the accused be tried together must, however, be balanced against the accused’s constitutional right to be tried within a reasonable time.” In this case, however, the Crown was no longer insisting that the appellants be tried together. As indicated earlier, Crown counsel took the position, if there was to be either a severance or a mistrial, that a severance was the preferred course to be followed.

[54] Acknowledging that we are viewing the situation faced by Farley J. with hindsight, in our view, there was much merit to the Crown’s position given the fact that, by June 1996, more than thirty-seven months had elapsed since the appellants had been charged. The aborting of an almost completed trial would inevitably result in a further delay for the purpose of rescheduling another trial date. In these circumstances, the appellants’ s. 11(b) rights were very much in jeopardy and should have weighed heavily in favour of a severance.

[55] Accepting nonetheless that Farley J.’s perception was correct and that the remaining accused might be prejudiced were Satkunananthan to be severed and the trial continued, it then became of paramount importance that any further delay occasioned by the mistrial be minimized. As we have said, the case had been delayed significantly due to the actions of the Crown and lack of institutional resources prior to the commencement of the second trial before Farley J. When that trial ended in a mistrial, it was incumbent on the Crown to take all necessary steps to ensure that the third trial commenced without further delay. Having regard to the delay that had already occurred, an additional delay of seven to nine months was simply not acceptable.

[56] We agree with the submission of the appellants’ counsel that the consequence of the mistrial to the remaining appellants was the burden of an additional delay of seven to nine months. We also agree that Dilks J. mischaracterized this period of delay as neutral. While not caused by the actions of the Crown, the reason for the delay, as in Rahey, and the late stage in the overall proceedings at which it occurred, together with the Crown’s failure to obtain an early trial date, are such that it should properly have been attributed to the Crown in the calculus of unreasonable delay.

4. Prejudice to the accused

[57] Earlier we reviewed the reasons for the trial judge’s conclusion that the appellants were not prejudiced by the forty-four and one-half month delay. He did not consider their bail conditions to be “particularly onerous”. In our view, the trial judge misapprehended the nature of the evidence of prejudice in this case and failed to properly apply the factor of prejudice as explained in Morin. In addition, the trial judge erred in failing to consider the inferred prejudice from the lengthy delay.

[58] In Morin, Sopinka J. stated at p. 23:

Section 11(b) protects the individual from impairment of the right to liberty, security of the person, and the ability to make full answer and defence resulting from unreasonable delay in bringing criminal trials to a conclusion. We have decided in several judgments, including the unanimous judgment in Smith, supra, that the right protected by s. 11(b) is not restricted to those who demonstrate that they desire a speedy resolution of their case by asserting the right to a trial within a reasonable time. Implicit in this finding is that prejudice to the accused can be inferred from prolonged delay. In the American concept of this principle, expounded in Barker v. Wingo, the inference is that no prejudice has been suffered by the accused unless he or she asserts the right. While the observation of Dubin C.J.O. in Bennett that many, perhaps most, accused are not anxious to have an early trial may no doubt be accurate, s. 11(b) was designed to protect the individual, whose rights are not to be determined on the basis of the desires or practices of the majority. Accordingly, in an individual case, prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn. In circumstances in which prejudice is not inferred and is not otherwise proved, the basis for the enforcement of the individual right is seriously undermined. [Emphasis added.]

[59] In Rahey, at p. 300, Lamer J. considered the effect of pre-trial detention and bail conditions in respect to prejudice:

Limitations on the liberty of the accused such as pre-trial detention are easily and objectively ascertainable. However, the liberty interest of the accused may also be impaired by restrictions on the free movement of the individual imposed while he is released on bail.

[60] In Pusic, Hill J. provided a helpful summary of the jurisprudence concerning prejudice. This is what he said, in part, at pp. 720-722:

It is the duty of the Crown to bring an accused person to trial. This requires that the prosecution apparatus and the government strive to expedite trials to minimize the prejudice inherent in delay in the disposition of criminal litigation.

A court may infer or presume the existence of prejudice or it may be otherwise proven: R. v. CIP Inc., supra, at p. 861 S.C.R., p. 143 C.C.C., per Stevenson J., ; R. v. Smith, supra, at p. 1138 S.C.R., p. 111 C.C.C., per Sopinka J. The inference of prejudice from a very long delay becomes nearly irrebuttable: R. v. Askov, supra, at p. 1230 S.C.R., p. 306 C.C.C. per Cory J.; R. v. Morin, supra, at p. 801 S.C.R., p. 23 C.C.C. per Sopinka J. In R. v. Conway, supra, at p. 1715 S.C.R., p. 334 C.C.C., Sopinka J. (dissenting in the result) observed that unreasonable delay is virtually synonymous with prejudice to security interests.

Section 11(b) of the Charter is also designed to minimize the exposure of an accused person to restrictions on his or her liberty whether in terms of pre-trial incarceration or the effect of judicial interim release conditions. In the latter instance, the concern has been bail terms described as “restrictive” (R. v. Morin, supra, at p. 786 S.C.R., p. 12 C.C.C., per Sopinka J.; R. v. Frazer, 1993 CanLII 111 (SCC), [1993] 2 S.C.R. 866 at p. 869, 83 C.C.C. (3d) 126 at p. 128, per McLachlin J.) or as “stringent” (R. v. White (1991), 1991 CanLII 7187 (ON CA), 3 O.R. (3d) 247 at p.250, 64 C.C.C. (3d) 479 at p. 482 (C.A.), per Dubin C.J.O.; R. v. Bennett, supra, at p. 209, per Arbour J.A.). A measure of the prejudice experienced by an accused person may be whether he or she has made any effort to have one or more of the bail conditions varied: R. v. Sharma, 1992 CanLII 90 (SCC), [1992] 1 S.C.R. 814 at p. 828, 71 C.C.C. (3d) 184 at pp. 195-96, per Sopinka J.; R. v. B.(J.G.), supra, at p. 117, per Doherty J.A.; R. v. Bennett, supra, at p. 222, per Arbour J.A.; R. v. Palmer (1991), 1991 CanLII 7211 (ON CA), 4 O.R. (3d) 252 at p. 256, 67 C.C.C. (3d) 75 at p. 80 (C.A.), per Carthy J.A. (in dissent in the result).

[61] In our view, the trial judge misapprehended the evidence of prejudice arising from the bail conditions and the time spent in custody by the appellants pending their release on bail. We have reviewed this evidence above. The trial judge was incorrect in concluding that all of the appellants were released on bail within a few days of their arrest except for Francis and Michaelpillai. He did not consider the reporting conditions as “particularly onerous”, and faulted the appellants for waiting until October 3, 1995, when Hawkins J. was forced to adjourn the trial for want of competent interpreter, to apply to vary the reporting conditions. By that date, the appellants had been reporting weekly for close to two and one-half years. He speculated that had an earlier application been made to vary the reporting conditions, the Crown would have consented. The reporting conditions were not the only restrictions in the judicial interim release orders. There were also mobility and non-association restrictions. In our view, had the trial judge not misapprehended the evidence, he would have concluded that the bail conditions were restrictive and, when considered with the appellants’ pre-trial detention, had a serious effect on their liberty and security interest protected by s. 11(b). In coming to this conclusion, we appreciate that the delay in commencing the trial did not cause any appellant to spend additional time in pre-trial custody. However, in the circumstances of this case, we feel that the trial judge’s misapprehension of the length of time the appellants were in pre-trial custody may have contributed to his ultimate finding that the appellants were not prejudiced by the delay.

[62] Moreover, this is a case in which the trial judge should have considered, and given effect to, the inferred prejudice arising from the delay of forty-four and one-half months. As Sopinka J. said in Morin at p. 23: “The longer the delay the more likely that such an inference will be drawn.”

Conclusion

[63] In reaching our conclusion, we are mindful of the balancing exercise that is required. We adopt the remarks of Rosenberg J.A. in Batte at p. 288:

The purpose of the analysis of the delay under the various Morin headings is to provide a framework for the balancing exercise. Sopinka J. described the nature of the exercise in these terms at p. 788:

The judicial process referred to as “balancing” requires an examination of the length of the delay and its evaluation in light of other factors. A judicial determination is then made as to whether the period of delay is unreasonable. In coming to this conclusion, account must be taken of the interests which s. 11(b) is designed to protect.

The interests s. 11(b) is designed to protect include not only the interests of the accused but the societal interest in seeing that accused are tried promptly. Further, the more serious the charge the greater the “societal demand that the accused be brought to trial”.

[64] The trial judge concluded that the unjustified, or unreasonable, delay in this case was twenty-three months. We indicated earlier that this assessment was modest, being of the opinion that a further delay of seven to nine months arising from the declaration of a mistrial could not be justified. As well, we expressed the view that an additional period of delay resulting from the piecemeal manner in which the preliminary hearing proceeded should be taken into consideration.

[65] Whether the period of unjustified delay is the twenty-three months found by the trial judge, or the somewhat larger period which we believe the circumstances of this case support, it is our view that the trial judge erred in dismissing the appellants’ s. 11(b) application on the ground that the appellants had sustained no prejudice. As we have indicated, the trial judge did not properly weigh the prejudice to the appellants, and did not consider the virtually irresistible inference of prejudice on account of the delay.

[66] The ultimate submission of the appellants is that the period of forty-four and one-half months that it took the Crown to bring the appellants to trial exceeded the Supreme Court of Canada’s administrative guidelines of fourteen to eighteen months by twenty-six and one-half to thirty and one-half months and, considering the inexcusable delays which we have discussed, was considerably longer than was necessary.

[67] We have no doubt that the delay of forty-four and one-half months was prima facie excessive. Indeed, it was grossly excessive. The trial judge found that the appellants neither caused the delay, nor agreed to it. The delay was the result of a combination of factors which are attributable to the prosecution. The delay was not due to inherent difficulties in the case, but largely to systemic or institutional causes. It far exceeded the administrative guidelines discussed in Morin. It caused prejudice to the appellants. On balancing these factors, the result is clear. The delay cannot be justified. It is unreasonable. As a result, we would give effect to this ground of appeal. The convictions of each of the appellants, except Palanithurai, must be set aside and a stay of proceedings must be directed.

II. The Application for a Stay on the Basis of the Destruction of Police Notes

[68] At the end of the Crown’s case, the appellants applied for a stay of proceedings on the ground that their ability to make full answer and defence was impaired by reason of the police officers destroying their rough surveillance notes and a surveillance report. In light of our conclusion on the s. 11(b) Charter application, this further application for a stay remains relevant to this appeal only with respect to the appellant Palanithurai. However, our analysis on this ground of appeal concerns all appellants.

The Circumstances Surrounding the Destruction of the Notes

[69] As indicated earlier, the entire case for the Crown consisted of an undercover officer’s interaction with the appellants Satkunananthan and Palanithurai and the movements of the other appellants on May 10 and 11, 1993, as observed by approximately twenty surveillance officers. Seven of these officers testified at trial. They each used their individual notebook to refresh their memory and described the manner in which their notes had been made. The reliability of the identifications made on May 11, 1993 and the notes made in aid of such identifications were at issue at trial. Of course, the accuracy of the notes with respect to identification was of less concern to the appellant Palanithurai who conceded through counsel at trial that he was the person identified as “M-2” in the undercover officers’ notes. Satkunananthan, who testified, also conceded that he was present during the events of May 10 and 11, 1993, but said he acted under duress. Chelliah and Manoranjan, each of whom also testified, tendered innocent explanations for their presence and denied any participation in, or knowledge of, any heroin transaction. The appellants Francis and Michaelpillai, in particular, relied on the defence of misidentification. Thuraisingam’s defence was one of abandonment or absence of the requisite intention to traffic.

[70] Some of the officers made no notes during their surveillance. Others made rough notes of some of their observations. All of the officers relied on two central note-takers with whom they communicated by radio surveillance, officers Carter and Benge. Each central note-taker was responsible for recording the observations transmitted by his or her own team of surveillance officers. A few hours after the arrests the central note-takers met with all the surveillance officers to review the observations and to allow the central note-takers to complete their chronological record. The central note-takers then compiled a surveillance report that combined all observations. Each of the surveillance officers used this compilation to compose his or her memo book. Some officers relied on the surveillance report entirely with the result that their notebook included matters that they did not actually observe. Others used the surveillance report and their own notes and tried to include only those matters that accurately reflected their personal observations.

[71] None of the police officers who testified kept a copy of the surveillance report. They had either discarded, shredded or did not know the whereabouts of their copy of the surveillance report. Similarly, every officer who took rough notes during surveillance destroyed them. The officers explained that in 1993 it was not standard practice to keep rough notes made during surveillance. Although the officers were not advised to shred their notes, there was no policy prohibiting the destruction of notes. One officer, Seldon, testified that the procedures governing preservation of notes had changed greatly as a result of court decisions and the Martin Report[^5], which was tabled in November, 1993. He stated that before the decision in R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, released in November 1991, officers disclosed “will-states”. After that case, officers were required to disclose copies of their notebooks. According to Seldon’s research into the matter, the first definitive order regarding disclosure was published by the police force two years after Stinchcombe, in November 1993.

The Trial Judge’s Ruling

[72] The trial judge found that the rough notes were sparse, containing only times, license plate numbers and the like. He found on the evidence that because it was “quite inappropriate” for an officer, while on surveillance, to be recording in a memo book, the practice was to make rough notes of those items and to radio their observations to a central note-taker whose task was to compile an overall surveillance report. The trial judge found that “the rough notes were transferred either directly into the officers’ notebooks or indirectly via the surveillance report, the relevant portions of which went into their books” and that the entire surveillance report was copied in officer Carter’s memo book. Although the trial judge found that there may have been instances of “minor errors” in the transcribing, he was satisfied that they would have been “rare and unimportant”. He noted that the individual memo books were then kept for the purpose of assisting the officers in their recollections of the events they recorded and that they were disclosed to the defence. The trial judge held further that the procedure that was followed was in line with the usual police practice at the time. In the circumstances, the trial judge was not satisfied that the appellants’ ability to make full answer and defence was impaired. Consequently, he dismissed the application.

The Destruction of Evidence and Charter Rights

[73] The governing principles where an accused claims that the failure to preserve evidence resulted in a breach of a Charter right were discussed by the Supreme Court of Canada in Carosella. In Carosella, at para. 37 the Supreme Court made it clear that the inquiry into whether there was a breach of a Charter right resulting from the destruction of evidence was distinct from the question of remedy under s. 24(1):

The right to disclosure of material which meets the Stinchcombe threshold is one of the components of the right to make full answer and defence which in turn is a principle of fundamental justice embraced by s. 7 of the Charter. Breach of that obligation is a breach of the accused’s constitutional rights without the requirement of an additional showing of prejudice. To paraphrase Lamer C.J.C. in Tran, the breach of this principle of fundamental justice is in itself prejudicial. The requirement to show additional prejudice or actual prejudice relates to the remedy to be fashioned pursuant to s. 24(1) of the Charter.

[74] And, at para. 52, the Court reiterated the test for granting a stay:

A judicial stay of proceedings has been recognized as being an extraordinary remedy that should only be granted in the “clearest of cases”. In her reasons in O’Connor, L’Heureux-Dubé J. stated (at para. 82) that:

It must always be remembered that a stay of proceedings is only appropriate “in the clearest of cases”, where the prejudice to the accused’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued.

[75] In R. v. La (1997), 1997 CanLII 309 (SCC), 116 C.C.C. (3d) 97 (S.C.C.), a decision released after the trial in this matter, the Supreme Court of Canada expanded upon the approach that should be adopted in cases of lost or destroyed evidence. As this court noted in R. v. Bero, 2000 CanLII 16956 (ON CA), [2000] O.J. No. 4199 at para. 30, this approach in La is conveniently summarized by Roscoe J.A. in R. v. F.C.B. (2000), 2000 NSCA 35, 142 C.C.C. (3d) 540 at 547‑48 (N.S.C.A.) as follows:

(1) The Crown has an obligation to disclose all relevant information in its possession.

(2) The Crown’s duty to disclose gives rise to a duty to preserve relevant evidence.

(3) There is no absolute right to have originals of documents produced. If the Crown no longer has original documents in its possession, it must explain their absence.

(4) If the explanation establishes that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached.

(5) In its determination of whether there is a satisfactory explanation by the Crown, the Court should consider the circumstances surrounding its loss, including whether the evidence was perceived to be relevant at the time it was lost and whether the police acted reasonably in attempting to preserve it. The more relevant the evidence, the more care that should be taken to preserve it.

(6) If the Crown does not establish that the [evidence] was not lost through unacceptable negligence, there has been a breach of the accused’s s. 7 Charter rights.

(7) In addition to a breach of s. 7 of the Charter, a failure to produce evidence may be found to be an abuse of process, if for example, the conduct leading to the destruction of the evidence was deliberately for the purpose of defeating the disclosure obligation.

(8) In either case, a s. 7 breach because of failure to disclose, or an abuse of process, a stay is the appropriate remedy, only if it is one of those rare cases that meets the criteria set out in O’Connor.

(9) Even if the Crown has shown that there was no unacceptable negligence resulting in the loss of evidence, in some extraordinary case, there may still be a s. 7 breach if the loss can be shown to be so prejudicial to the right to make a full answer and defence that it impairs the right to a fair trial. In this case, a stay may be an appropriate remedy.

(10) In order to assess the degree of prejudice resulting from the lost evidence, it is usually preferable to rule on the stay application after hearing all of the evidence.

Application to this Case

[76] The trial judge did not have the benefit of La at the time of his ruling. Hence, he did not follow this analytical framework exactly. However, he made specific reference to Carosella and, in our view, he made all relevant inquiries. Although the trial judge appears in his brief reasons to have conflated the two steps of the analysis (first, the question of breach of s.7 or abuse of process and second, the question of remedy), in our view, it is implicit from his findings that he was satisfied, on the first issue, that the rough notes and the surveillance report were not lost or destroyed owing to any police misconduct. Hence, having regard to the terminology used in La, the trial judge did not find “unacceptable negligence” on the part of the police. Rather, it is apparent from his reasons that he was of the view that the procedure for note-taking followed by the surveillance officers, including the destruction of the notes and the report after their transcription, was appropriate in the circumstances and in line with the usual police practice at the time.

[77] In our view, this finding was supported by the evidence. It is important to remember that in 1991, the Supreme Court in Stinchcombe defined at p. 341 “the general principles that govern the duty of the Crown to make disclosure to the defence”. The Court acknowledged at p. 341, however, that “many details with respect to their application… remain[ed] to be worked out in the context of concrete situations”. One question that arose subsequent to the decision is the extent to which the defence was entitled to original copies of witness statements. In R. v. Stinchcombe (No.2), 1995 CanLII 130 (SCC), [1995] 1 S.C.R. 754 the Supreme Court agreed with the Alberta Court of Appeal in that case, in that it is the information contained in witness statements that must be disclosed, not the original statements. For a reiteration of this principle, see La at para. 18. The Court in Stinchcombe (No.2), [1995]1 S.C.R. 754 stated as follows at p. 755:

The Crown can only produce what is in its possession or control. There is no absolute right to have originals produced. If the Crown has the originals of documents which ought to be produced, it should either produce them or allow them to be inspected. If, however, the originals are not available and if they had been in the Crown’s possession, then it should explain their absence. If the explanation is satisfactory, the Crown has discharged its obligation unless the conduct which resulted in the absence or loss of the original is in itself such that it may warrant a remedy under the Canadian Charter of Rights and Freedoms.

[78] Hence, as stated in evidence at trial, the significance and impact of Stinchcombe upon police practice was further developed by subsequent court decisions and by the Martin Report issued two years later in November 1993. In particular, the following recommendations were made in that report at pp. 150-151:

D. General Recommendations With Respect to Disclosure

1. Disclosure Recommendations Pertaining to Investigations

26.The Committee recommends that the Attorney General request that the Solicitor General issue a statement to all police officers emphasizing the importance of taking careful, accurate, and contemporaneous notes during their investigations. (The statement should emphasize that disclosure requirements after Stinchcombe cannot be thwarted by making less accurate or less comprehensive notes.)

27.The Committee recommends that, upon request, copies of relevant original notes should be disclosed, subject to editing or non-disclosure where the public interest requires it, including where necessary, to protect confidential informants, the existence of ongoing investigations, and the integrity of police investigative techniques.

[79] It is following this report, sometime after the investigation in this matter, that the police force issued the order referred to in Seldon’s evidence.

[80] The importance of preserving original notes is undoubtedly understood differently today than at the time of this investigation and similar actions by police officers could well constitute “unacceptable negligence” in a different context. However, in the circumstances of this case, where the sparse rough notes and the surveillance report were fully transcribed in notebooks that were preserved and disclosed to the defence, it was open to the trial judge to find that the surveillance officers had complied with their duty to preserve evidence. We see no reason to interfere with the trial judge’s implicit conclusion that the notes and surveillance report were not destroyed owing to unacceptable negligence and, consequently, that the duty to disclose was not breached. Hence, the trial judge was correct in finding that there was no breach of the appellants’ right to make full answer and defence under s. 7 of the Charter.

[81] The question remains whether the destruction of the notes constituted an abuse of process. As noted in the cases referred to earlier, in addition to a breach of s. 7 of the Charter, a failure to produce evidence may be found to be an abuse of process if, for example, the conduct leading to the destruction of the evidence was deliberately for the purpose of defeating the disclosure obligation. The appellants placed much reliance on the two excerpts from the testimony of the surveillance officers to suggest that the officers deliberately destroyed their rough notes for an improper motive. The first excerpt is taken from officer Richardson’s cross-examination:

Q.Why wouldn’t you simply go and write your notes independently, and after then have some discussion with Carter and the other officers to see what their independent recollection was?

A.If I was to write my notes up independently without seeing surveillance notes, is that what you’re asking me?

Q.Yeah.

A.Because there would be discrepancies all over the place, sir.

Q.What’s wrong with discrepancies if that’s what particular witnesses see?

A.You’d eat us alive, sir.

[82] In the next excerpt, officer Valles was being cross-examined on what he conceded was an error in his notebook:

Q.And the reason is – and so I’m suggesting to you that when you copied the central note-taker’s notes that you didn’t see the error. You just copied it?

A.That’s correct. That’s why with the central note-taker we – it’s impossible as you’re driving to write all this down. We’ve changed the procedure now that we don’t even write it in our notebooks we just have central notes and that’s all that we keep. We don’t keep a memo book any more.

Q.I see. Well, then, we defence counsel won’t be able to show the contradictions?

A.That’s correct.

[83] These excerpts must be considered in context. It is clear from the transcript that it was suggested to Richardson that he should have completed his personal notebook before the debriefing meeting and without consultation with other officers, including Carter, the central note-taker. Given Richardson’s testimony that it was difficult to make detailed notes while doing surveillance, that he did not recall making any rough notes, and that he relied on the central note-taker Carter to record the observations he had radioed in, it is not surprising, in answer to counsel’s question, that he expressed the view that he could not accurately complete his notebook in the manner suggested because there would be “discrepancies all over”. This testimony does not support the contention that Richardson destroyed his notes, assuming he took any, with the deliberate purpose of thwarting the defence’s right to disclosure. Nor, in our view, does the brief excerpt from Valles’ testimony further advance the appellants’ argument on this point.

[84] In any event, on the question of remedy, given the trial judge’s findings that the contents of the destroyed notes and report were fully transcribed and disclosed to the defence, except for some possible “minor errors” that “would have been rare and unimportant”, it can hardly be said that any resulting impairment to the appellants’ right to make full answer and defence would have warranted the granting of a stay of proceedings. The question of destruction of the notes was fully canvassed in cross-examination and was the subject-matter of comment in the judge’s charge to the jury. Hence, even if the trial judge had found that the police conduct constituted a breach of s. 7 or an abuse of process, no further remedy under s. 24(1) would have been warranted.

[85] In summary, in accordance with the principles in Carosella and the approach in La, we are of the view, in the circumstances of this case, that the destruction of the police officers’ notes did not constitute a breach of the appellants’ right to make full answer and defence as guaranteed by s. 7 of the Charter, nor did it constitute an abuse of process. On the question of remedy, the actual prejudice suffered thereby did not warrant the granting of a stay of proceedings. This latter observation is all the more applicable to the appellant Palanithurai whose identity was not in issue at trial and with respect to whom the accuracy of the officers’ notes was not in issue. Consequently, the trial judge was correct in dismissing the appellants’ application. We would not give effect to this ground of appeal.

III. The Motion for Mistrial Based on a Police Officer’s Mid-Trial Communication With a Juror

[86] At one point during the trial, all appellants except for Chelliah moved for a mistrial on the ground that a contact between one of the police witnesses, officer Denton, and a juror had irremediably tarnished the appearance of a fair trial. The trial judge held a voir dire to inquire into the matter and after hearing evidence and the submissions of counsel, he dismissed the application. The appellants submit that he erred in so doing. In further support of this ground of appeal, the appellants seek to introduce fresh evidence concerning the alleged criminal conduct of Denton and inconsistent statements made by him to the authorities with respect to the allegations of criminal conduct. This conduct and these statements are alleged to have occurred several years after the conclusion of this trial. It is submitted that this fresh evidence, if it had been available at trial, would have provided defence counsel with ammunition to discredit Denton on the voir dire and could reasonably have affected the ruling by the trial judge on the motion for mistrial.

[87] There is no dispute on the facts relating to this incident. On the voir dire, Denton conceded that over the luncheon recess on February 14, 1993, a day on which he was being cross-examined, he walked from the courthouse at 361 University Avenue to the Eaton Centre and, around the main doors of “New City Hall”, he crossed paths with one of the jurors. The two walked together across Bay Street at which point they went their separate ways. As they walked together, Denton spoke to the juror about his kids and about buying a Valentine present for his wife. They did not talk about the case.

[88] The juror in question confirmed the meeting in front of “New City Hall”. He stated that Denton asked him if he had purchased a Valentine’s gift and said he was on his way to do this. Denton also asked the juror if he had any children. When he replied he did not, Denton spoke about how great children were. The juror expressed the view that his contact with the officer wouldn’t affect his ability to give the accused a fair trial and render an impartial verdict. The juror said that he had told some of his fellow jurors about the encounter but had said nothing to them about the officer’s character.

[89] The trial judge then questioned the remaining eleven jurors. Nine of them had heard nothing about the contact and the two others were vaguely aware of the nature of the contact but essentially made nothing of it.

[90] The trial judge refused to discharge the juror who had been in contact with Denton. No appeal is taken from this ruling. He then disposed of the application for mistrial as follows:

I turn now to the mistrial application. It is based on the argument that the contact, however innocent, and whatever actual prejudice may or may not have resulted, is nevertheless one that should support the application on the grounds of an oft stated proposition that justice must not only be done but be manifestly and undoubtedly seen to be done.

I have been referred to cases that dealt with jurors who shared drinks with unsworn constables or with witnesses. In one case, the contact was in an elevator and the evidence was indeed discussed. In both cases the jury was sequestered at the time and in the course of deliberation.

Again, the matter of mistrial is one of discretion, discretion which, of course, must be exercised judicially having regard to all the circumstances. I am not persuaded that there is the appearance of unfairness such as should result in a mistrial and this application is accordingly dismissed.

[91] We see no reason to interfere with the trial judge’s discretion in refusing to grant a mistrial. There is no doubt that Denton’s conduct was improper. It would appear from the evidence that he initiated the conversation with the juror and, innocuous as it was in terms of its content, it could only raise unnecessary concerns over the appearance of justice in the eyes of an informed bystander. However, given the undisputed nature of the communication and the inconsequence of it all on the members of the jury, we are of the view that the trial judge was correct in finding that the incident did not create an appearance of unfairness warranting a mistrial.

[92] Further, we are of the view that the fresh evidence is inadmissible. Denton’s credibility was not a decisive issue on the voir dire given the fact that his version of the events was entirely corroborated by the juror. Counsel additionally argues that the proposed fresh evidence could have given cause for the trial judge to suspect that Denton deliberately communicated with the juror in an attempt to enhance his credibility in the juror’s eyes and hence may have influenced his decision on the voir dire. In our view, it was already open to the trial judge to entertain this suspicion on the basis of the evidence before him and, in any event, the officer’s possible motive in speaking to the juror was in no way determinative of the issue on the voir dire. We would not give effect to this ground of appeal.

[93] Counsel for the appellants further suggested in oral argument that the fresh evidence could have had some impact on the trial itself. This argument, however, was not pursued with any vigor. Considering the substance of Denton’s evidence and the fact that his surveillance evidence was corroborated by other officers, we see no merit to the argument. We would dismiss the motion to introduce fresh evidence.

IV. The Charge on Common Enterprise

[94] In this case, it was the Crown’s theory that the appellants had entered into a common enterprise to traffic in heroin. As noted earlier, all seven appellants were charged with trafficking arising from the abortive sale of the substance to an undercover police officer on May 11, 1993. It was alleged that Satkunananthan and Palanithurai were the actual perpetrators of this offence and that the other five appellants, by their conduct, had assisted in the commission of the offence. In addition, Satkunananthan and Palanithurai were charged with trafficking arising out of giving a sample of heroin to the undercover officer before the abortive sale and, as a result of having been found in possession of half a kilogram of heroin after the abortive sale, Cheliah and Thuraisingam were charged with possession of heroin for the purpose of trafficking.

[95] In the circumstances, it was incumbent on the trial judge to instruct the jury not only on the required elements to prove each offence but also on the applicable principles of criminal participation in an offence. Accordingly, the trial judge instructed the jury on the application of s. 21(1) of the Criminal Code, R.S.C. 1985, c. C-46:

21.(1) Every one is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c) abets any person in committing it.

[96] No objection is taken to that part of the charge.[^6]

[97] The trial judge also instructed the jury on the application of the co-conspirators exception to the hearsay rule in accordance with the three steps outlined in R. v. Carter (1982), 1982 CanLII 35 (SCC), 67 C.C.C. (2d) 568 (S.C.C.). While the appellants concede that the rule applied in this case to the extent that the Crown relied on the acts of some of the co-accused to prove its case against each individual appellant, they submit that the trial judge erred in failing to delineate for the jury the evidence directly admissible against each appellant.

[98] We agree with the appellants’ submission that the trial judge did not adequately delineate for the jury the evidence directly admissible against each appellant. However, before dealing further with the trial judge’s instructions, it may be useful to describe the nature of a Carter instruction. Such an instruction is required to explain to the jury under what circumstances it can consider acts and declarations of co-conspirators as evidence against other members of an alleged conspiracy under the well-known co-conspirators exception to the hearsay rule. It also applies where the Crown seeks to introduce evidence of acts and declarations against persons jointly indicted for a crime, other than conspiracy, where it is alleged that the persons acted in furtherance of a common design: R. v. Koufis, 1941 CanLII 55 (SCC), [1941] S.C.R. 481.

[99] In a case of conspiracy, the application of the rule requires that the jury proceed in three stages. First it must consider, based on all the evidence, whether it is satisfied that the alleged conspiracy existed. If it is not so satisfied, the offence has not been made out and it must acquit the accused. On the other hand, if it is satisfied beyond a reasonable doubt that the alleged conspiracy existed, the jury proceeds to the second step. At the second stage the jury must decide, based only on the evidence directly admissible against an accused, whether the accused is probably a member of the conspiracy. The trial judge should point out to the jury the evidence directly admissible against the accused to assist it in that determination. If the jury does not find that the accused is probably a member of the conspiracy, it must acquit the accused. If it is satisfied on the basis of the evidence directly admissible against the accused that the accused is probably a member, it can proceed to the final stage of its deliberation. At the third stage, the jury must decide, based on the evidence directly admissible against the accused and on the acts and declarations performed and made in furtherance of the conspiracy by other members of the conspiracy, whether it is satisfied beyond a reasonable doubt that the accused was a member of the conspiracy and accordingly guilty.

[100] As stated earlier, the co-conspirators exception to the hearsay rule is not limited to charges of conspiracy. The rule also applies to any offence committed in furtherance of a common design where the Crown seeks to rely on acts and declarations of a co-accused to prove its case against the accused. In such a case, a simplified modification of the Carter pre-requisites as it applies to the relevant evidence will usually suffice.

[101] In this case, although the appellants were not tried on the offence of conspiracy, it was the Crown’s theory that they participated in a common enterprise, the trafficking of heroin. Consequently, evidence of the acts and declarations of any one appellant was potentially admissible against the other appellants if the requirements of the co-conspirators exception to the hearsay rule were met. However, on the facts of this case, the rule was of limited application. There was little evidence, if any, that the appellants, other than Satkunananthan and Palanithurai, had entered into a common enterprise. With respect to the other five appellants, the main issue was, rather, whether they had knowingly assisted the two principals in committing the offence of trafficking. Notwithstanding this, the trial judge’s charge was focussed mainly on the three-step Carter instruction. The entire review of the evidence and of the respective theories of the Crown and defence was made in the context of this instruction. In our view, this approach unnecessarily complicated the jury’s task. The difficulties were compounded by the trial judge’s failure to clearly delineate for the jury the evidence directly admissible against each appellant.

[102] Of course, any deficiency in the trial judge’s charge cannot be considered in isolation. It must be examined in the context of the evidence at trial and assessed according to the effect it may have had on any individual appellant. In light of our conclusion on the s. 11(b) Charter stay application, it is only necessary to consider this ground of appeal as it affects the appellant Palanithurai.

[103] The trial judge’s review of the evidence against Palanithurai was very brief:

The Crown takes the position that the evidence is simply overwhelming as to Palanithurai’s involvement and reminds you of the evidence of Anand, of Satkunananthan and of the surveillance evidence, and of Palanithurai’s own statement.

[104] In our view, the evidence as to Palanithurai’s involvement was indeed overwhelming. Further, the case against him was essentially based on his own words and conduct. In the circumstances, a more detailed review of the evidence directly admissible against him in the context of the Carter instruction would not have enured to his benefit. We would therefore not give effect to this ground of appeal.

V. The Charge on Reasonable Doubt

[105] The appellants submit that the trial judge’s instruction to the jury on reasonable doubt was deficient in two respects:

a)it failed to distinguish between the civil and criminal standard of proof; and

b)it described reasonable doubt as an ordinary expression with no particular meaning.

[106] The appellants rely on the highlighted portions of the following excerpt from the charge:

I would like now to explain to you the presumption of innocence which applies in a criminal trial. Simply put, it means that an accused person is presumed to be innocent until the Crown has satisfied you beyond a reasonable doubt of his guilt. It is a presumption that remains with an accused and for his benefit from the very beginning of the trial until its very end. Keep in mind that the fact that an accused has been arrested or charged is in no way indicative of his guilt.

The onus or burden of proving the guilt of an accused person beyond a reasonable doubt rests upon the Crown and never shifts. There is no burden whatever on an accused person to prove his innocence. The Crown must prove beyond a reasonable doubt that an accused person is guilty of the offence with which he is charged before he can be convicted. If you have a reasonable doubt as to whether any of the accused committed any of the offences with which he is charged, then it is your duty to give that accused the benefit of that doubt and find him not guilty on such a charge or charges.

I turn now to the third and final great legal concept, that of reasonable doubt. Some of the defence counsel have attempted to define the term but you will take the law from me and not from them.

When I speak of reasonable doubt, I use those words in their ordinary, natural meaning, not as some legal term having a special meaning. A reasonable doubt is, then, an honest and fair doubt, based upon reason and common sense after having considered all the evidence or the lack of evidence as a whole. It is a real doubt, not an imaginary or frivolous doubt. It must not be based upon conjecture or speculation and applies only to the essential as opposed to the non-essential elements of the offences.

I will later tell you what those essential elements are in this particular case.

Finally, keep in mind that it is rarely possible to prove anything with absolute or mathematical certainty, and that is why the burden of proof cast upon the Crown is to prove guilt only beyond a reasonable doubt, not beyond the shadow of any doubt. Please note, as I have said, that the requirement of proof beyond a reasonable doubt does not apply to individual pieces of evidence, but rather applies only to the certain essential elements which I will outline to you in a very few minutes. [Emphasis added.]

[107] The appellants submit that these deficiencies are the same deficiencies that were found to constitute reversible error in R. v. Starr (2000), 2000 SCC 40, 147 C.C.C. (3d) 449 (S.C.C.) where Iacobucci J., for the majority, stated at para. 239:

The key difficulty with this instruction is that it was not made clear to the jury that the Crown was required to do more than prove the appellant’s guilt on a balance of probabilities. The trial judge told the jury that they could convict on the basis of something less than absolute certainty of guilt, but did not explain, in essence, how much less. In addition, rather than telling the jury that the words “reasonable doubt” have a specific meaning in the legal context, the trial judge expressly instructed the jury that the words have no “special connotation” and “no magic meaning that is peculiar to the law”. By asserting that absolute certainty was not required, and then linking the standard of proof to the “ordinary everyday” meaning of the words “reasonable doubt”, the trial judge could easily have been understood by the jury as asserting a probability standard as the applicable standard of proof.

[108] Iacobucci J. described the charge on reasonable doubt in Starr at para. 136:

In his instructions to the jury, Hirschfield J. explained that the appellant was presumed to be innocent and that the onus was on the Crown to prove the appellant’s guilt beyond a reasonable doubt. He then defined the reasonable doubt standard in the following terms:

It is rarely possible to prove anything with absolute certainty and so the burden of proof on the Crown is only to prove the guilt of the accused beyond reasonable doubt. What, then, is proof beyond a reasonable doubt?

The words “reasonable doubt” are used in their everyday, ordinary sense and not as a legal term having some special connotation. The words have no magic meaning that is peculiar to the law. A reasonable doubt is an honest, fair doubt, based upon reason and common sense. It is a real doubt, not an imaginary or frivolous one resting on speculation or guess rather than upon the evidence you heard in this courtroom.

So you can see, the words “reasonable doubt” are ordinary words we use in our everyday language. So if you can say, I am satisfied beyond a reasonable doubt, the Crown has met the onus upon it. If you cannot say those words – if you cannot say, I am satisfied beyond a reasonable doubt, the Crown has not met the onus on it, and the accused is entitled to have your doubt resolved in his favour.

No further definition of the reasonable doubt standard was provided. The trial judge went on to explain that the jury might be left with a reasonable doubt unless it rejected as untrue some or all of the evidence, if any, that favoured the appellant.

[109] The decision in Starr reiterated the guiding principles for jury charges on reasonable doubt as set out in the Supreme Court’s earlier decision in R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320. The trial judge in this case did not have the benefit of either of these decisions. In a recent trilogy of cases, the Supreme Court has emphasized that the main principle in Starr was that a pre-Lifchus charge had to be in substantial compliance with the Lifchus principles. The Court further stated that a review of the charge for compliance with these principles is not a mechanical exercise but one of substance: see R. v. Avetysan (2000), 2000 SCC 56, 149 C.C.C. (3d) 77 (S.C.C.) at para. 11. The charge must be considered as a whole, in the overall context of the case to determine whether it gives rise to a reasonable likelihood that the jury misapprehended the correct standard of proof.

[110] In our view, the matters raised by the appellants in this case do not give rise to such a concern when the charge is considered as a whole. The first argument addresses the instruction that the words reasonable doubt are used “in their ordinary, natural meaning, not as some legal term having a special meaning”. As pointed out by the Supreme Court in Lifchus, the difficulty that may arise from such an instruction is that the jury may understand that they are to apply the same standard of proof that they would apply to the decisions they are required to make in their everyday lives. The application of such a standard would run the risk of significantly reducing the standard to which the prosecution must be held: see Lifchus at paras. 23-4. The difficulty was particularly significant in Lifchus where the trial judge had given no further instruction on the meaning of reasonable doubt.

[111] The trial judge in this case not only expanded upon the meaning of the words, he also instructed the jury that a criminal trial was a special proceeding, requiring particular care on their part. At one point in his charge, he stated as follows:

On the one hand it is of fundamental importance that no person should ever be found guilty of a criminal offence which he did not commit.

Let me caution you that a jury’s finding of fact if mistaken is extremely difficult, if not completely impossible, to correct. So I urge you to take care.

[112] In addition, the jury would have understood that proof beyond a reasonable doubt required that a standard more exacting than the civil standard of probability be met. The distinction between the two standards was repeatedly made during the course of the general instruction on common enterprise. Despite the inadequacies of the instruction on common enterprise discussed earlier, it is conceded by the appellants that the trial judge correctly instructed the jury on the three Carter steps in their deliberations. The jury would have understood from the Carter instruction that a finding of probable membership in the common enterprise – the civil standard of proof, did not constitute proof beyond a reasonable doubt – the higher criminal standard on the ultimate issue of guilt.

[113] The jury was repeatedly reminded that on the ultimate issue of membership in the common enterprise they had to be satisfied beyond a reasonable doubt of the guilt of each accused before they could convict.

[114] Hence, in the context of the charge as a whole, we are satisfied that there is no reasonable likelihood that the jury misapprehended the correct standard of proof.

VI. Reasonableness of the Verdicts Against Michaelpillai and Francis

[115] The appellants Michaelpillai and Francis submit the guilty verdicts against them were unreasonable. Unlike the situation vis-à-vis the other appellants, there was no evidence that either of them either handled the heroin, or discussed a possible sale of heroin with anyone. Neither was found with any money, drugs, or drug paraphernalia on his person. These appellants say that put at its highest, the case against them consisted of only the following allegations:

▪ On May 11, 1993 they were driving the same vehicle as that driven by Palanithurai and Satkunananthan (the “principal appellants”) on May 10, 1993 following their contact with the undercover officer,

▪ On May 11, 1993 they had a conversation with the principal appellants at a donut shop, and

▪ On May 11, 1993 they were both at the Eglinton Square Mall and Fairview Mall at times when other appellants were also present. Michaelpillai was seen gesturing to Palanithurai at one point in a way that could be inferred as giving directions. At another point, both were seen leaving The Bay at Fairview Mall with Chelliah and Thuraisingam and two other persons originally charged with the same offence, but who were subsequently discharged at the preliminary hearing. This group parted, but later met again in the parking lot of the Fairview Mall where they had a conversation.

[116] Michaelpillai and Francis submit these allegations are an assertion of guilt by association. Other than a possible inference of giving directions to Palanithurai, neither performed any acts or made any declarations that could be construed as aiding or abetting a narcotics transaction. Assuming Michaelpillai gave Palanithurai directions, that is far from a sufficient basis to found a conviction.

[117] In approaching this issue, it is important to recall that both Michaelpillai and Francis were charged with the substantive offence of trafficking in a narcotic, not conspiracy. The Crown’s theory of liability was that they were part of a common enterprise. Nevertheless, it remained necessary that the Crown prove beyond a reasonable doubt that each of these appellants knowingly aided or abetted the offence of trafficking in a narcotic: s. 21(1) of the Criminal Code.

[118] The approach an appellate court must take in reviewing a verdict for unreasonableness is set out in R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1 at paras. 39-40 (S.C.C.):

…[A]fter the jury has been adequately charged as to the applicable law, and warned, if necessary, about drawing possibly unwarranted conclusions, it remains that in some cases, the totality of the evidence and the peculiar factual circumstances of a given case will lead an experienced jurist to conclude that the fact-finding exercise applied at trial was flawed in light of the unreasonable result that it produced.

When an appellate court arrives at that conclusion, it does not act as a ‘thirteenth juror’, nor is it ‘usurping the function of the jury.’ In concluding that no properly instructed jury acting judicially could have convicted the reviewing court inevitably is concluding that these particular jurors who convicted must not have been acting judicially. In that context, acting judicially means not only acting dispassionately, applying the law and adjudicating on the basis of the record and nothing else. It means, in addition, arriving at a conclusion that does not conflict with the bulk of judicial experience. This, in my view, is the assessment that must be made by the reviewing court. It requires not merely asking whether twelve properly instructed jurors, acting judicially, could reasonably have come to the same result, but doing so through the lens of judicial experience which serves as an additional protection against an unwarranted conviction.

[119] In order to assess this ground properly it is necessary to review the events of May 10 and 11, 1993 in some detail and in sequence.

Events of May 10, 1999[^7]

▪ 2:00 p.m. Satkunananthan and Palanithurai met with the undercover officer at a restaurant in the Eaton Centre. They arranged to sell him a quantity of heroin the next day. They were observed leaving the Eaton Centre in a white Corsica[^8] bearing Quebec licence plate FH8 5364. They proceeded to an apartment at 540 Dawes Road, to a donut shop, to 45 Sunburst Square, and then back to 540 Dawes Road. It was determined later that the Corsica was registered to Aviscar Inc., Dorval, Quebec.

Events of May 11, 1993

▪ 12:08 p.m. Satkunananthan and the undercover officer agreed to meet on the second level of the tiered parking garage at the Eglinton Square Mall at 1:30 p.m.

▪ 12:23 p.m. Michaelpillai and Francis left 45 Sunburst in the white Corsica driven by Satkunananthan and Palanithurai on May 10, 1993.

▪ 12:26 p.m. Satkunananthan and Sithamparapillai[^9] entered the Bay at the Eglinton Square Mall.

▪ 12:32 p.m. Satkunananthan was seen on the second level of the parking garage at the Eglinton Square Mall.

▪ 12:42 p.m. Satkunananthan and Sithamparapillai walked across the northwest parking lot of the Eglinton Square Mall toward a donut shop on O’Connor Drive. They met and spoke to Palanithurai who was driving a blue Toyota. Satkunananthan used a payphone and then returned to the Toyota.

▪ 12:54 p.m. Palanithurai left in the Toyota. Satkunananthan and Sithamparapillai remained in the vicinity of the donut shop.

▪ 12:58 Michaelpillai and Francis drove to a sandwich shop at Eglinton and Warden. Francis got out and looked around.

▪ 1:00 p.m. Satkunananthan used the payphone near the donut shop once again.

▪ 1:01 p.m. Palanithurai and the undercover officer met in the northwest parking lot at the Eglinton Square Mall near the Bay. The undercover officer suggested their meeting place be changed to an area in the parking lot at the east end of the Mall near the Burger King.

▪ 1:08 p.m. Michaelpillai and Francis turned north onto Cranborne Road in the Corsica. They stopped at a bank parking lot. Satkunananthan and Sithamparapillai ran out of the donut shop, up Cranborne Road and joined Michaelpillai and Francis in the parking lot. Palanithurai was seen running across the Eglinton Square Mall parking lot towards the same area. A fifth man, who was not identified at the time, was seen joining the group in the parking lot.

▪ 1:15 p.m. Satkunananthan and Palanithurai returned to the Eglinton Square Mall parking lot and drove away in the Toyota. Michaelpillai, Francis, and Sithamparapillai drove south on Cranborne Road in the Corsica.

▪ 1:20 p.m. Satkunananthan and Palanithurai arrived at the east end of the Eglinton Square Mall parking lot in the vicinity of the Burger King and got into the undercover officer’s vehicle. Palanithurai gave the undercover officer a sample of the heroin. The three men got out of the car and looked in the trunk of the undercover officer’s vehicle. The officer showed Satkunananthan and Palanithurai the money for the transaction. Satkunananthan told the undercover officer that Palanithurai would have to go and see “the people”. Palanithurai drove away in the Toyota.

▪ 1:20 p.m. Michaelpillai and Francis and an unidentified person arrived at the Eglinton Square Mall parking lot in the vicinity of the Hertz office. They got out of the Corsica and went inside.

▪ 1:23 p.m. Palanithurai arrived at the area of the Hertz office in the Toyota. He spoke to Michaelpillai and Francis. Michaelpillai and Francis left in the Corsica and drove to the Fairview Mall.

▪ 1:50 p.m. Michaelpillai and Francis arrived at the Fairview Mall. Francis went into the Bay at the east end of the mall.

▪ 2:00 p.m. Francis came out of the Bay with Chelliah. Michaelpillai and Francis returned to Eglinton Square Mall in the Corsica.

▪ 2:07 p.m. Palanithurai spoke to Sithamparapillai in the Toyota in the vicinity of the Hertz office at the Eglinton Square Mall. Sithamparapillai got out of the car and went inside the Hertz office. Palanithurai drove away.

▪ 2:10 p.m. Palanithurai arrived at the east end of the Eglinton Square Mall and spoke to Satkunananthan. After Palanithurai drove away, Satkunananthan told the undercover officer the heroin was coming but that they would have to wait for some time. He also said it would be coming in two cars.

▪ 2:13 p.m. Palanithurai arrived at the west end of the Eglinton Square Mall and went inside the Hertz office.

▪ 2:17 p.m. Michaelpillai and Francis entered the tiered parking lot near the Bay at the west end of the Eglinton Square Mall. Michaelpillai went into the Hertz office.

▪ 2:19 p.m. Palanithurai came out of the Hertz office and repositioned the Toyota. Michaelpillai and Sithamparapillai came out of the Hertz office and gestured at Palanithurai, appearing to give him directions pointing north. Palanithurai drove away.

▪ 2:29 p.m. Palanithurai arrived at the east end of the Eglinton Square Mall and spoke to Satkunananthan. Satkunananthan then told the undercover officer the heroin had been taken to the Fairview Mall and the transaction would have to take place there.

▪ 2:32 p.m. Palanithurai in the Toyota, Satkunananthan and the undercover officer in the undercover officer’s car, and Michaelpillai, Francis, and Sithamparapillai in the Corsica, all drove to the Fairview Mall.

▪ 2:50 p.m. Michaelpillai, Francis and Sithamparapillai parked at the east end of the Fairview Mall and went into the Bay.

▪ 2:55 p.m. Satkunananthan and the undercover officer parked at the west end of the Fairview Mall parking lot. Palanithurai arrived in the same vicinity but drove away. He returned, spoke to Satkunananthan, and then drove away again.

▪ 3:03 p.m. Michaelpillai, Francis, Chelliah, Thuraisingam, Sithamparapillai, and Antonpillai[^10] came out of the Bay together and started walking toward the Corsica. Thuraisingam ran north up a sidewalk. Chelliah disappeared but then re-appeared driving a brown Mazda, which he parked near the Corsica. Michaelpillai, Francis, Chelliah, Sithamparapillai, and Antonpillai stood in the vicinity of the two vehicles.

▪ 3:09 p.m. Palanithurai drove up to the vicinity of the Corsica and Mazda at the east end of the Fairview Mall parking lot and spoke to the five men who were there.

▪ 3:20 p.m. Palanithurai drove the Toyota into the ground level of the Sears parking garage at the west end of the Fairview Mall and parked beside a gray Hyundai. Thuraisingam was in the Toyota with Palanithurai. They got out of the car and met Manoranjan who emerged from the Hyundai carrying a plastic bag. Manoranjan gave the plastic bag to Thuraisingam. The three got back into their respective vehicles and drove away.

▪ 3:22 p.m. Manoranjan arrived at the west end of the Fairview Mall parking lot and parked in the vicinity of the undercover officer’s vehicle. Manoranjan got out of the Hyundai and opened the hood of the vehicle.

▪ 3:24 p.m. Palanithurai and Thuraisingam drove up to the undercover officer’s vehicle. Palanithurai spoke to Satkunananthan and then drove away.

▪ 3:25 p.m. Palanithurai and Thuraisingam parked the Toyota near the Corsica and Mazda at the east end of the Fairview Mall parking lot. Thuraisingam got into the Mazda with Chelliah, who drove away. Michaelpillai, Francis, and Antonpillai were seen walking towards the Toyota. Four people were observed in the Toyota when it was driven away, however they were not identified. Thuraisingam and Chelliah were arrested shortly thereafter in the Mazda. A plastic bag containing half a kilo of heroin was found under Thuraisingam’s seat.

▪ 3:35 p.m. Satkunananthan entered the Sears store at the west end of Fairview Mall.

▪ 3:45 p.m. Satkunananthan and Sithamparapillai were arrested in the Corsica on a bridge over the Don Valley Parkway.

▪ 4:27 p.m. Michaelpillai and Francis were arrested at 45 Sunburst.

[120] Examined closely, the actions of these two appellants amount to considerably more than being at the two malls on May 11, 1993 at times when other appellants were present. Michaelpillai and Francis were essentially together throughout all of the relevant events, which spanned about two and one-half hours. They had at least six contacts with the other appellants during that time frame. One or both of them met one or both of the principal appellants on four key occasions during the two and one-half hour period:

▪ 1:08 pm. on Cranborne Road just before the principal appellants were scheduled to meet the undercover officer at the Eglinton Square Mall.

▪ 1:23 p.m. at the Hertz office in the Eglinton Square Mall just after the principal appellants had met the undercover officer and seen the money. Michaelpillai and Francis then left the Hertz office and drove to Fairview Mall where Francis was seen with Chelliah, one of the appellants ultimately found in possession of half a kilogram of heroin.

▪ 2:17–2:19 p.m. at the Hertz office in the Eglinton Square Mall immediately after returning from Fairview Mall. Shortly thereafter all of Palanithurai, Satkunananthan, the undercover officer, Michaelpillai and Francis traveled to Fairview Mall in three separate vehicles.

▪ 3:09 p.m. at Fairview Mall just before Palanithurai and Thuraisingam met Manoranjan in the Sears parking garage, obtained a plastic bag from him, and then proceeded to the undercover officer’s vehicle.

Significantly, their contacts with the primary defendants bracket the sequential steps in the aborted narcotics transaction. Their trip to Fairview Mall, contact with Chelliah, return to Eglinton Square Mall, and contact with Palanithurai, immediately preceded the change of venue for the transaction from Eglinton Square Mall to Fairview Mall. In addition, and perhaps most significantly, Michaelpillai and Francis brought the white Corsica to the Fairview Mall parking lot, where the narcotics transaction was ultimately scheduled to occur, at virtually the same time as the primary defendants traveled to Fairview Mall. They remained with the vehicle after speaking to Palanithurai while Palanithurai and Thuraisingam picked up a plastic bag from Manoranjan and drove to the location where Satkunananthan and the undercover officer were parked. Satkunananthan was ultimately arrested in the Corsica after the transaction went awry.

[121] Viewed in this light, the totality of events, including in particular the frequency of contact between Michaelpillai and Francis and the other appellants within a short time frame, combined with their possession of the Corsica, was capable of supporting inferences that each of Michaelpillai and Francis knew of a planned sale of narcotics and assisted in the transaction by supplying back-up transportation or communications support. These inferences do not “conflict with the bulk of judicial experience”. We would not give effect to this ground of appeal for either Michaelpillai or Francis.

[122] In reaching this conclusion, we should not be taken as expressing any opinion on the adequacy of the trial judge’s instructions to the jury concerning common enterprise in relation to these two appellants, each of whom asserts that those instructions were fatally flawed. It was unnecessary that we determine that issue in light of our conclusion on the s. 11(b) stay application. Our analysis of the unreasonable verdict ground proceeded on the basis of determining whether there was sufficient evidence to support a finding of guilt against Michaelpillai and Francis had the jury been properly instructed.

VII. Palanithurai’s Appeal in Person

[123] The appellant Palanithurai appeared in person on his appeal. At the conclusion of the arguments of counsel for the other appellants, he adopted their arguments in so far as they applied to his case. We have already disposed of all the grounds of appeal against conviction that were argued by counsel and that are relevant to Palanithurai. In addition to those grounds, Palanithurai argued that his statement to the police was improperly admitted at trial because he did not make that statement.

[124] The appellant Palanithurai was represented by counsel at trial. A voir dire was held with respect to the admissibility of his statement to the police following his arrest. Palanithurai testified on the voir dire and stated that he did not intend to make a statement. The trial judge summarized Palanithurai’s testimony in his ruling:

The accused says that he did not intend to make a statement, and if what I think he meant by that is that he did not write out and sign a formal statement, then that may well be the case. He said in cross-examination, “If I had made a statement on my own, I would have signed it.” He agreed that he carried on an extensive conversation with Detective-Constable Valles.

[125] On the question of whether Palanithurai made a statement, the trial judge held that “the court on a voir dire need not determine that the accused uttered the words ascribed to him by the police, for that is the task of the trier of fact at the trial itself”. The trial judge then fully considered the circumstances surrounding the making of the statement and concluded that it was given voluntarily. He also considered and dismissed Palanithurai’s Charter application to exclude the statement under s. 24(2) on the ground that it was obtained in violation of his s. 10(b) right to counsel. The statement was therefore ruled admissible and it was entered in evidence at trial. Palanithurai did not testify at trial.

[126] The trial judge fully canvassed all relevant issues concerning the statement during the course of the voir dire and we see no reason to interfere with his conclusions on the issues of voluntariness and the Charter application. The trial judge was also correct in stating that it was up to the jury to determine whether Palanithurai in fact made the statement attributed to him. On the evidence at trial, it was open to the jury to accept the police officer’s evidence of Palanithurai’s statement, particularly in the absence of any evidence to the contrary. We have no way of knowing what weight, if any, was attached by the jury to Palanithurai’s statement but, in any event, the evidence was properly before them. Consequently, we see no merit to this additional ground of appeal. Palanithurai’s appeal against conviction is therefore dismissed.

[127] The appellant Palanithurai also appeals against his sentence. In this respect he adopts the arguments made by counsel for the other appellants in so far as they can apply to him and he adds his own submission that the sentence of ten and one-half years was excessive. He submits that a sentence of six to seven years would have been more in order.

[128] Counsel argued on behalf of all appellants that the trial judge erred in refusing to depart from the established range of sentencing for trafficking in heroin based on the expert evidence called at the sentence hearing. Two experts gave opinion evidence in the area of the pharmacological and physiological effects of various substances including heroin, cocaine, marijuana, tobacco, and alcohol, as well as their addictive qualities and the availability of treatment. A third expert testified as to the lack of effectiveness of general deterrence as a sentencing factor.

[129] The trial judge held that all three experts had “impressive credentials” and he carefully reviewed their opinion evidence. On the issue of harm, he concluded as follows:

To summarize, while it may be said, as Doctors Marsh and Kalant have, that the direct physiological harm caused by heroin is less than that caused by cocaine, it is impossible to separate from that harm the indirect harm caused by the route of administration. Injection is the traditional method of heroin administration whereas cocaine is usually taken in some other far less dangerous way. Heroin is still an extremely dangerous drug and it matters not that some of that danger may stem from its very illegality. It is also highly addictive. If, as it would appear from the evidence which I have heard, cocaine is just as addictive and is more directly dangerous, it cannot be said that the solution is necessarily to reduce sentences for heroin trafficking rather than to increase them for cocaine trafficking.

[130] In any event, the trial judge concluded that, on the evidence, there was still no reason to doubt the correctness of this Court’s pronouncements on the appropriate range of sentencing. On the issue of general deterrence, the trial judge concluded in like manner that the expert evidence did not persuade him that the established jurisprudence should not continue to prevail.

[131] We have not been persuaded that the trial judge erred either in his assessment of the expert evidence or in his conclusion that it provided no reason to depart from the usual range of sentencing established by the courts. Nor have we been persuaded that the sentence imposed on Palanithurai was unfit. It falls within the range of appropriate sentences for like offenders and like offences. His appeal against sentence is therefore dismissed.

VIII. Disposition

[132] We do not find it necessary to deal with the additional issues raised by some of the appellants.

[133] Palanithurai’s appeal against conviction and sentence is dismissed. The appeals brought by the other appellants are allowed, their convictions are set aside and the charges against them are stayed.

(signed) “Louise Charron J.A.”

(signed) “S. Borins J.A.”

(signed) “J. Simmons J.A.”

RELEASED: March 20, 2001

[^1]: Because he was not arrested until April 23, 1996, the appellant Palanithurai did not participate in the preliminary hearing or the proceedings before Hawkins J. and Farley J. [^2]: In the review of the facts relative to the delay and the discussion of this ground of appeal that follows, reference to “the appellants” is in respect to the six appellants who were charged and arrested on May 11, 1993 and, unless specifically stated, not to the appellant Palanithurai who was not arrested until April 23, 1996. [^3]: By September 11, 1995 exactly 28 months had elapsed from the date the appellants had been charged and arrested. [^4]: In Rahey, there was a delay of eleven months while the trial judge considered his decision on a defence motion for a directed verdict, during which the accused attended court on twenty occasions. In Bosley, seventeen months passed between the completion of the evidence and the imposition of sentence, the trial judge having taken about eleven months to reach a decision and there being some indication that the trial judge had been ill during part of the time. [^5]: G. A. Martin, Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions, 1993. [^6]: The trial judge also instructed the jury in his main charge on the provisions of s. 21(2) of the Criminal Code. It is common ground among the parties that s. 21(2) has no application to this case. Both Crown and defence at trial objected to this part of the charge and the trial judge correctly instructed the jury in his recharge to disregard this provision. [^7]: The details of these events are based on the testimony of the undercover officer and a variety of surveillance officers. [^8]: The surveillance officers described the Corsica interchangeably as a Corsica or as a Tempest. The officers described the same licence plate number. The vehicle is referred to as a Corsica in these reasons. [^9]: Sithamparapillai was discharged at the preliminary inquiry. [^10]: Antonpillai was discharged following the preliminary inquiry.