Court of Appeal for Ontario

Citation: R. v. Sahota, 2011 ONCA 679

Date: 2011-11-02

Docket: C51908

Between:

Her Majesty the Queen Respondent

and

Jaswinder Sahota Appellant

Before: Doherty, Juriansz and Epstein JJ.A.

Counsel: Erin Dann, for the appellant B.G. Puddington, for the respondent

Heard and released orally: October 28, 2011

On appeal from the conviction entered by a jury presided over by Justice Ricchetti of the Superior Court of Justice dated October 22, 2009 and the sentence imposed on March 17, 2010.

ENDORSEMENT

[1] There are two grounds of appeal:

• Did the trial judge fail to adequately put the theory of the defence to the jury?
• Did the trial judge err in his response to the jury’s request for a copy of counsel’s closing addresses?

The Theory of the Defence

[2] This was a single issue case – had the Crown proved beyond a reasonable doubt that the appellant knew that heroin was in his suitcase when he entered Canada. The respective positions of the Crown and the defence were plain and obvious. The evidence was simple and straightforward. We have no doubt that the jury understood the positions of the parties and understood the application of the burden of proof, which was properly explained to them, to the only live issue in the case. We also have no doubt that the jury would have no problem relating the evidence, particularly the defence evidence, to the question of the appellant’s knowledge.

[3] The trial judge could have said more about the position of the defence and could have reviewed the evidence a second time in the context of putting the position of the defence. In our view, however, neither was necessary to ensure that the accused received a fair trial. This ground of appeal fails.

The Jury’s Question

[4] Shortly after the jury retired, it requested copies of the transcripts of counsel’s closing addresses. The trial judge instructed the jury that transcripts could not be provided and told them they should rely on their recollections of counsel’s arguments. This instruction was given with the support of both counsel.

[5] The next morning while the jury was still deliberating, Crown counsel brought certain case law to the trial judge’s attention. Crown counsel submitted that the case law suggested that the jury should have been told that they could listen to the addresses of counsel if they wished to do so. Counsel for the appellant opposed any suggestion to the jury that they could listen to the closing addresses. He was concerned about one particular part of the Crown’s address.

[6] The trial judge decided, based on the case law brought to his attention, that he should bring the jury back and instruct them that they could listen to counsel’s closing addresses if they wished to do so. By the time the trial judge could carry out this decision, he was advised that the jury had arrived at a verdict. The trial judge recalled the jury and before taking the verdict, told them that while transcripts of counsel’s arguments were not available, the reporter could read those arguments to the jury if they wished to hear them. The trial judge asked the jury to retire and consider whether they wanted to listen to closing arguments before returning their verdict. After briefly considering the matter, the jury returned to the courtroom, advised the trial judge that they no longer wished to hear the closing addresses and were prepared to return their verdict. It returned a guilty verdict.

[7] The trial judge should have told the jury in his initial response to their question that they could hear the closing addresses if they wished to do so. The question on appeal is whether his correct response came too late in light of the jury’s indication that it had reached a verdict.

[8] Despite counsel’s able argument, we do not agree that because the jury indicated they had reached a verdict, the trial judge could not invite them to listen to counsel’s addresses before returning their verdict if they wished to do so.

[9] The trial judge made it clear that the jury could listen to the closing addresses before reaching their verdict. They saw no need to do so. We will not speculate as to why they chose that course of action. In the end, before the jury returned its verdict, the jury understood that it could listen to the addresses if it wished to do so. The trial judge ultimately answered the jury’s request correctly. The timing of his answer did not result in any unfairness to the appellant.

[10] The appeal is dismissed.

“Doherty J.A.”

“R.G. Juriansz J.A.”

“G.J. Epstein J.A.”