Court File and Parties

CITATION: R. v. Gashaj, 2010 ONCA 110

DATE: 20100210

DOCKET: C49625, C50042 and C50029

COURT OF APPEAL FOR ONTARIO

MacPherson, Cronk and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Fran Gashaj and Maitham Alzenhrani

Appellants

COUNSEL:

P. Andras Schreck, duty counsel

Fran Gashaj, in person

Maitham Alzenhrani, in person

Marie Comiskey, for the respondent

Heard and released orally: February 9, 2010

On appeal from the convictions entered on October 24, 2008 and the sentences imposed on February 5, 2009 by Justice Anne Molloy of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] On behalf of the appellants, duty counsel argues that the trial judge’s jury instruction on the requisite elements of conspiracy was flawed, or at least confusing. In particular, he submits that at least two parts of the trial judge’s instruction can be read as suggesting to the jury that it was to consider the purpose of the alleged conspiracy only after first determining whether the appellants were members of the conspiracy and, further, that it was open to the jury to use the hearsay evidence of the statements of the appellants’ co-conspirators when considering whether the appellants were members of the conspiracy.

[2] We do not agree that the trial judge erred in the manner alleged. At several places throughout her charge, she clearly told the jury, in the correct sequence, of the elements that the Crown was obliged to prove to establish the conspiracy alleged. If there was any confusion about this, it was removed by the decision tree provided to the jury concerning conspiracy, which unambiguously detailed the necessary elements of the offence and the proper sequence for the jury’s consideration of those elements. Given the charge as a whole, we are satisfied that the jury would have appreciated its task.

[3] Accordingly, we would not give effect to this ground of appeal.

[4] Duty counsel next argues that several counts in the indictment, for example, count 19, were deficient because they failed to explicitly invoke s. 465(3) of the Criminal Code. We disagree. Section 465(3) does not create an offence. The counts in question clearly charged a breach of foreign law and made explicit reference to the operative offence provision of the Code – s. 465(1)(c): see R. v. Gunn (1982), 1982 CanLII 174 (SCC), 66 C.C.C. (2d) 294 (S.C.C.).

[5] The appellants’ third complaint concerns the attendance of an RCMP officer in the jury room to assist in resolving technical equipment problems. At its core, this complaint raises an issue of trial fairness.

[6] On this record, we see no merit to this complaint. The officer’s attendance was at the trial judge’s request. When the trial judge learned that the jury had been present when the officer was in the jury room, she immediately arranged for an inquiry of the officer to be conducted, under oath, regarding what had transpired in the jury room. The officer’s testimony established that no impropriety had occurred. Neither defence counsel cross-examined the officer or expressed any concern or objection. There is simply no basis to conclude that anything untoward transpired with the jury.

[7] Finally, as to sentence, the appellants complain that the trial judge failed to give credit for time they spent in immigration hold after being released on bail for these offences. We reject this submission. Credit for pre-trial custody is discretionary. It was open to the trial judge in the circumstances to decline to give credit for the time spent in immigration detention particularly since it was the appellants’ own lack of immigration status in Canada, and not the circumstances relating to these charges, that underpinned the immigration detention.

[8] The conviction appeals are dismissed. Leave to appeal sentence is granted and the sentence appeals are dismissed.

“J.C. MacPherson J.A.”
“E.A. Cronk J.A.”
“R.A. Blair J.A.”