R. v. Chahal, 2007 ONCA 504

CITATION: R. v. Chahal, 2007 ONCA 504

DATE: 20070705

DOCKET: C40808

COURT OF APPEAL FOR ONTARIO

MOLDAVER, FELDMAN and LANG JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

RAVINDER CHAHAL

Appellant

Brian Snell for the appellant

Howard Leibovich for the respondent

Heard and endorsed June 29, 2007

On appeal from conviction by Justice Joseph Fragomeni of the Superior Court of Justice, sitting with a jury, dated June 11, 2003 and sentence imposed dated October 2, 2003.

APPEAL BOOK ENDORSEMENT

[1] With respect to the learned trial judge, we are concerned that in the second half of his "Oliver" instruction, he did not make it as clear as he should have that the caution applied only to the case against Baugh and had no application as against the appellant (See Oliver 2005 3582 (ON CA), [2005] O.J. 596 at para. 60).

[2] We are further concerned that in the particular circumstances of this case, having regard to the many frailties in the evidence of Brown and Sholubi, the fact that they could be viewed as accomplices, the importance of their testimony against the appellant and the fact that an Oliver instruction had been given in respect of Baugh, the trial judge should have alerted the jury to proceed with care before acting on this evidence to convict the appellant (while making it clear that that instruction did not apply in respect of the co-accused Baugh given that their evidence favoured him).

[3] We need not decide whether either error, standing alone, would have warranted a new trial. Combined, we are satisfied that a new trial is required. In coming to this conclusion, we have taken into account that the Crown's case against the appellant is by no means overwhelming. Accordingly the appeal is allowed, the conviction is set aside and a new trial is ordered.