Her Majesty the Queen v. Bains Her Majesty the Queen v. Pannu

[Indexed as: R. v. Bains]

Ontario Reports

Court of Appeal for Ontario,

Watt, Pepall and Huscroft JJ.A.

October 7, 2015

127 O.R. (3) 545

2015 ONCA 677

Case Summary

Criminal law — Sentencing — Narcotics offences — Sentence of nine years' imprisonment for first offenders convicted of possession of one kilogram of heroin for purpose of trafficking not being unfit.

Criminal law — Trial — Jury — Jury secrecy — Outside information introduced into jury room by juror — Accused B and P convicted of possession of heroin for purpose of trafficking — One hour after jury discharged court, staff discovering document on table in jury room containing reference to notorious American case where public outcry after accused acquitted and excerpts from Canadian Judicial Council model instruction on reasonable doubt — Judge causing disclosure of document to counsel — Counsel for B seeking mistrial — Counsel for P arguing judge was functus but arguing he should conduct inquiry to create record for appeal — Judge conducting inquiry about who created document, how long it was present, whether jurors read and discussed document — Trial judge correctly appreciating jury secrecy preventing inquiry into impact of document — Inquiry revealing that seven jurors not reading document and others reading only part about notorious acquittal — Instructions taken from Canadian judicial council model instructions not wrong — Whether fellow juror or third party providing extraneous information irrelevant — Whether new trial required being based on case-specific determination of whether was reasonable possibility that information had an impact on verdict — Judge providing correct instructions regarding evidence anything not adduced at trial and taking law only from him — Given limited review of document by majority of jurors, lack of link between its content and subject matter of trial, short time it was available, introduction of document into jury room not resulting in miscarriage of justice.

B and P were charged with possession of heroin for the purpose of trafficking. Following a tip, the police made observations of odd driving by a car registered to B, which was being driven by P. B was driving a car belonging to someone with P's last name who lived with P. After B stopped by police, P moved from left turn lane, drove across two lanes of traffic and turned right. The officers arrested B, searched his vehicle and found a kilogram of cocaine and a digital scale in a bag that was stuffed under the front passenger seat. P returned several times to the place where B was stopped and called B on his cellphone. A police officer answered and invited P to drive over to B's location. P did so, and was arrested. The jury found B and P guilty. One hour after the jury was discharged, it was discovered that someone had brought a document into the jury room. It contained three paragraphs: one referred to notorious American murder trial in which there was public outcry after woman acquitted of murdering her child; and the other two contained edited versions of reasonable doubt instructions from the model instructions produced by the Canadian Judicial Counsel. The trial judge instructed the court staff to disclose the document to counsel. Counsel for [page546] B moved for a mistrial. Counsel for P argued that the trial judge was functus but suggested that he conduct an inquiry into the document to create a record for the appeal. The Crown did not concede that the judge had the jurisdiction to conduct the inquiry, but argued if he did, he should decline to make inquiries. Only the trial judge questioned the jurors and the inquiries were limited to when the document was introduced into the jury room, who read it and whether there was discussion about it. He did not ask if it influenced their deliberations as he did not want to breach the jury secrecy rule. The inquiry revealed that the foreman had brought a document into the jury room shortly before the trial judge charged the jury. The accused were sentenced to nine years' imprisonment. They appealed the conviction and sentence.

Held, the appeal should be dismissed.

Jurors are often instructed right after being empanelled and routinely during the charge to the jury that they are to consider only the evidence adduced at trial and that they are to take instructions about the law only from the trial judge. There is a rebuttable presumption that jurors follow the instructions. Jurors deliberate in secret and inquiries cannot be made about the content of their deliberations. The trial judge was correct in concluding that the jurors could not be asked what impact the document had on their deliberations or the verdict.

In assessing the consequence that follows the introduction of extraneous evidence, it is of no relevance whether it was introduced by another juror or by a third party. There is no bright line rule that a new trial must be ordered when improper material is introduced to the jury. The test is whether there is a reasonable possibility, in the circumstances of the case, that the information had an effect on the verdict of the jury. That test is consistent with the case-by-case approach taken in the United Kingdom and in Australia. In deciding whether there has been a miscarriage of justice, the court must decide whether a well-informed reasonable person would consider the trial to be unfair.

The foreman's introduction of the document into the jury room did not result in a miscarriage of justice. Only the foreman and perhaps one other juror read the document beyond the diatribe about the U.S. acquittal. Seven jurors did not read the document at all. The document was not relevant to any essential element of the offence charged, and it did not specifically relate to either accused. The document was only available on the day that the judge instructed the jury, not for the entire trial. The excerpts from the model jury instruction were not wrong and the trial judge gave unimpeachable instructions, delivered orally and provided in writing, together with a direction that judicial instructions about the law trumped anything anybody else said about the subject. The excerpt about the notorious murder case may not have been beyond the knowledge of individual jurors. To hold that there was a miscarriage of justice in these circumstances would be tantamount to creating a per se rule that any extraneous information that enters the jury room impairs the apparent fairness of the trial and constitutes a miscarriage of justice that requires a new trial.

The accused both had good work records, were first offenders and had good family support. They acted together in transporting the drug and their conduct reflected prior planning. The nine-year sentence was within the range of sentence for first time offenders who are in possession of heroin for the purpose of trafficking. It is a reasonable inference that the accused were in possession of heroin, a highly addictive drug, for financial gain, and general deterrence requires a steep price for such offenders. The trial judge's sentence should be accorded great deference. It was not unfit. [page547]

Cases referred to

Benbrika v. The Queen, [2010] VSCA 281, 204 A. Crim. R. 457 (C.A.); Danis v. Saumure, 1956 CanLII 9 (SCC), [1956] S.C.R. 403, [1956] S.C.J. No. 18, 3 D.L.R. (2d) 221; Folbigg v. R., [2007] NSWCCA 271; R. v. Arcuri, [2001] 2 S.C.R. 828, [2001] S.C.J. No. 52, 2001 SCC 54, 203 D.L.R. (4th) 20, 274 N.R. 274, J.E. 2001-1731, 150 O.A.C. 126, 157 C.C.C. (3d) 21, 44 C.R. (5th) 213, 50 W.C.B. (2d) 512; R. v. Bates, [1985] 1 NZLR 326 (C.A.); R. v. Biniaris, [2000] 1 S.C.R. 381, [2000] S.C.J. No. 16, 2000 SCC 15, 184 D.L.R. (4th) 193, 252 N.R. 204, J.E. 2000-838, 134 B.C.A.C. 161, 143 C.C.C. (3d) 1, 32 C.R. (5th) 1, 45 W.C.B. (2d) 454; R. v. Blondin, 1970 CanLII 1006 (BC CA), [1971] B.C.J. No. 656, [1971] 2 W.W.R. 1, 2 C.C.C. (2d) 118 (C.A.); R. v. Bryan, [2013] O.J. No. 673, 2013 ONCA 97; R. v. Burcombe, [2010] EWCA Crim. 2818 (C.A. (C.D.)); R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, [1988] S.C.J. No. 40, 85 N.R. 81, [1988] 4 W.W.R. 481, J.E. 88-737, 28 B.C.L.R. (2d) 145, 41 C.C.C. (3d) 385, 64 C.R. (3d) 1, 34 C.R.R. 54, 4 W.C.B. (2d) 148; R. v. Corbett, 1973 CanLII 199 (SCC), [1975] 2 S.C.R. 275, [1973] S.C.J. No. 157, 42 D.L.R. (3d) 142, 1 N.R. 258, [1974] 2 W.W.R. 524, 14 C.C.C. (2d) 385, 25 C.R.N.S. 296; R. v. Farinacci, [2015] O.J. No. 2835, 2015 ONCA 392; R. v. François, 1994 CanLII 52 (SCC), [1994] 2 S.C.R. 827, [1994] S.C.J. No. 66, 116 D.L.R. (4th) 69, 169 N.R. 241, J.E. 94-1147, 73 O.A.C. 161, 91 C.C.C. (3d) 289, 31 C.R. (4th) 201, 24 W.C.B. (2d) 108; R. v. Fredericks, [1999] O.J. No. 5549 (C.A.); R. v. H. (W.), [2013] 2 S.C.R. 180, [2013] S.C.J. No. 22, 2013 SCC 22, 335 Nfld. & P.E.I.R. 1, 442 N.R. 200, 2013EXP-1308, J.E. 2013-723, EYB 2013-220831, 297 C.C.C. (3d) 4, 359 D.L.R. (4th) 442, 106 W.C.B. (2d) 158; R. v. Hubbert (1977), 1977 CanLII 15 (SCC), 15 O.R. (2d) 324, [1977] 2 S.C.R. 267, [1977] S.C.J. No. 4, 15 N.R. 139, 33 C.C.C. (2d) 207, 38 C.R.N.S. 381, affg (1975), 1975 CanLII 53 (ON CA), 11 O.R. (2d) 464, [1975] O.J. No. 2595, 15 N.R. 143, 29 C.C.C. (2d) 279, 31 C.R.N.S. 27 (C.A.); R. v. Karakaya, [2005] EWCA Crim. 346, [2005] 2 Cr. App. R. 5 (C.A. (C.D.)); R. v. Khan, [2001] 3 S.C.R. 823, [2001] S.C.J. No. 83, 2001 SCC 86, 207 D.L.R. (4th) 289, 279 N.R. 79, [2002] 3 W.W.R. 1, J.E. 2002-24, 160 Man. R. (2d) 161, 160 C.C.C. (3d) 1, 47 C.R. (5th) 348, 51 W.C.B. (2d) 446; R. v. Lohrer, [2004] 3 S.C.R. 732, [2004] S.C.J. No. 76, 2004 SCC 80, 249 D.L.R. (4th) 1, 329 N.R. 1, J.E. 2005-163, 208 B.C.A.C. 1, 193 C.C.C. (3d) 1, 24 C.R. (6th) 225, 63 W.C.B. (2d) 216; R. v. M. (L.W.), [2008] S.J. No. 811, 2008 SKCA 168, [2009] 1 W.W.R. 577, 239 C.C.C. (3d) 326, 320 Sask. R. 74; R. v. Marshall; R. v. Crump, [2007] EWCA Crim. 35 (C.A. (C.D.)); R. v. McDonnell, [2010] EWCA Crim. 2352, [2011] 1 Cr. App. R. 28 (C.A. (C.D.)); R. v. Mensah, 2003 CanLII 57419 (ON CA), [2003] O.J. No. 1096, 170 O.A.C. 244, 9 C.R. (6th) 339, 57 W.C.B. (2d) 121 (C.A.); R. v. Monteleone, 1987 CanLII 16 (SCC), [1987] 2 S.C.R. 154, [1987] S.C.J. No. 52, 41 D.L.R. (4th) 746, 78 N.R. 377, J.E. 87-996, 23 O.A.C. 241, 35 C.C.C. (3d) 193, 59 C.R. (3d) 97, 3 W.C.B. (2d) 68; R. v. Morelli, [2010] 1 S.C.R. 253, [2010] S.C.J. No. 8, 2010 SCC 8, 207 C.R.R. (2d) 153, 399 N.R. 200, EYB 2010-171050, 2010EXP-1068, J.E. 2010-576, 252 C.C.C. (3d) 273, 316 D.L.R. (4th) 1, [2010] 4 W.W.R. 193, 72 C.R. (6th) 208, 346 Sask. R. 1, 86 W.C.B. (2d) 949; R. v. Pan; R. v. Sawyer, [2001] 2 S.C.R. 344, [2001] S.C.J. No. 44, 2001 SCC 42, 200 D.L.R. (4th) 577, 270 N.R. 317, J.E. 2001-1313, 147 O.A.C. 1, 155 C.C.C. (3d) 97, 43 C.R. (5th) 203, 85 C.R.R. (2d) 1, 50 W.C.B. (2d) 114; R. v. Patterson, [2008] NZCA 12; R. v. Shahnawaz (2000), 2000 CanLII 16973 (ON CA), 51 O.R. (3d) 29, [2000] O.J. No. 4151, 137 O.A.C. 363, 149 C.C.C. (3d) 97, 40 C.R. (5th) 195, 48 W.C.B. (2d) 92 (C.A.); R. v. Sherratt, 1991 CanLII 86 (SCC), [1991] 1 S.C.R. 509, [1991] S.C.J. No. 21, 122 N.R. 241, J.E. 91-517, 73 Man. R. (2d) 161, 63 C.C.C. (3d) 193, 3 C.R. (4th) 129, 12 W.C.B. (2d) 517; R. v. Sinclair, [2011] 3 S.C.R. 3, [2011] S.C.J. No. 40, 2011 SCC 40, 268 Man. R. (2d) 225, 418 N.R. 282, 2011EXP-2368, J.E. 2011-1316, 270 C.C.C. (3d) 421, 335 D.L.R. (4th) 1, 86 C.R. (6th) 1, [2011] 11 W.W.R. 423, 95 W.C.B. (2d) 552; R. v. Spence, [2005] 3 S.C.R. 458, [2005] S.C.J. No. 74, 2005 SCC 71, 259 D.L.R. (4th) 474, 342 N.R. 126, J.E. 2005-2230, 206 O.A.C. 150, 202 C.C.C. (3d) 1, 33 C.R. (6th) 1, 135 C.R.R. (2d) 318, EYB 2005-98281, 67 W.C.B. (2d) 504; R. v. Spiers (2012), 113 O.R. (3d) 1, [2012] O.J. No. 5450, 2012 ONCA 798, 299 O.A.C. 47, 98 C.R. (6th) 114, 293 C.C.C. (3d) 17, 299 A.C.W.S. (3d) 47, 104 W.C.B. (2d) 752; [page548] R. v. Thompson, [2010] EWCA Crim. 1623, [2011] 1 W.L.R. 200, [2011] 2 All E.R. 83 (C.A. (C.D.)); R. v. To, [1992] B.C.J. No. 1700, 16 B.C.A.C. 223, 1992 CanLII 913, 17 W.C.B. (2d) 47 (C.A.); R. v. Vermette, 1988 CanLII 87 (SCC), [1988] 1 S.C.R. 985, [1988] S.C.J. No. 47, 50 D.L.R. (4th) 385, 84 N.R. 296, J.E. 88-735, 14 Q.A.C. 161, 41 C.C.C. (3d) 523, 64 C.R. (3d) 82, 34 C.R.R. 218, 4 W.C.B. (2d) 147; R. v. Walker, [2002] 3 NZLR 468 (C.A.); R. v. Wall (2005), 2005 CanLII 80695 (ON CA), 77 O.R. (3d) 784, [2005] O.J. No. 5095, 203 C.C.C. (3d) 232, 208 O.A.C. 111, 68 W.C.B. (2d) 54 (C.A.); R. v. White, [2011] 1 S.C.R. 433, [2011] S.C.J. No. 13, 2011 SCC 13, 412 N.R. 305, 2011EXP-893, 267 C.C.C. (3d) 453, J.E. 2011-478, 332 D.L.R. (4th) 39, 300 B.C.A.C. 165, 82 C.R. (6th) 11, 93 W.C.B. (2d) 626; R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, [1987] S.C.J. No. 51, 43 D.L.R. (4th) 424, 78 N.R. 351, [1987] 6 W.W.R. 97, J.E. 87-995, 17 B.C.L.R. (2d) 1, 36 C.C.C. (3d) 417, 59 C.R. (3d) 108; Smith v. The Queen, [2010] NSWCCA 325; United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, [1976] S.C.J. No. 106, 70 D.L.R. (3d) 136, 9 N.R. 215, 30 C.C.C. (2d) 424, 34 C.R.N.S. 207

Statutes referred to

Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 2(1) [as am.]

Criminal Appeal Act 1968, 1968 c. 19, s. 2(1)

Criminal Appeal Act 1995, 1995 c. 35

Criminal Code, R.S.C. 1985, c. C-46, ss. 4(3), 139(2), 548(1), 649, 686(1)(a)(i), (iii), (b)(iii), (iv)

Juries Act 1974 (U.K.), 1974 c. 23

APPEAL by the accused from the convictions entered on December 3, 2012 and the sentences imposed on March 14, 2013 by D.F. Dawson J. of the Superior Court of Justice, sitting with a jury.

Richard Posner, for appellant Lovejeet Bains.

Marie Henein and Matthew Gourlay, for appellant Harneet Pannu.

Jason J. Wakely, for respondent.

The judgment of the court was delivered by

[1] WATT J.A.: — Early one October evening, Lovejeet Bains was driving a blue-grey Honda Accord. The registered owner was Kulwant Pannu.

[2] Nearby, Harneet Pannu was also driving a blue-grey Honda Accord. The registered owner of that car was Lovejeet Bains.

[3] Police stopped the car Lovejeet Bains was driving. They searched the car. Under the front passenger seat, police found a plastic bag. Inside the bag, they found some other things. A vacuum sealed bag containing one kilogram of heroin. And a digital scale. They arrested Lovejeet Bains.

[4] Harneet Pannu seemed quite interested in what was happening to Lovejeet Bains. "Harneet" called Bains' cellphone. A police officer answered. He invited Pannu to drive over to Bains' location. Pannu did. And got arrested. [page549]

[5] Bains and Pannu were jointly charged with possession of heroin for the purpose of trafficking. A jury found both men guilty as charged. Both appeal conviction and sentence. Each alleges his conviction is flawed due to juror misconduct and for being an unreasonable verdict. Each also alleges his sentence is excessive. These reasons explain why I would dismiss the appeals from conviction and sentence.

The Background Facts

[6] Four police officers testified at trial. A document entitled "Admissions of Fact" was filed as an exhibit. Neither Bains nor Pannu called or gave evidence.

The tip

[7] Police received information that caused several officers to be driving unmarked vehicles around the intersection of Torbram and Derry Roads in Mississauga early in the evening of October 3, 2010. The officers were dressed in plain clothes, but they wore vests and had their identification hanging around their necks.

[8] The jurors heard no evidence about the substance of the tip the police had received. In light of what occurred, it would be reasonable to infer that the tip related to a drug transaction and a specific individual or motor vehicle.

The vehicle sightings

[9] Around 6:00 p.m., police officers saw a blue-grey Honda Accord with Ontario licence plate [plate information omitted] 824 (the "824 vehicle") in the southbound left turn lane of Torbram Rd. A left turn would take the vehicle eastbound on Derry Rd. Police positioned their vehicles in the same southbound lane.

[10] An officer, several vehicles back from the 824 vehicle, noticed another "almost identical" blue-grey Honda Accord with Ontario plate [plate information omitted] 381 (the "381 vehicle") in the same left turn lane. The 381 vehicle was one car ahead of the officer but behind the 824 vehicle.

[11] Instead of turning left from the left turn lane, the driver of the 381 vehicle crossed two lanes of traffic to the right turn lane, turned right and drove westbound along Derry Rd. None of the police officers pursued or followed this vehicle.

The stop and arrest of Bains

[12] The 824 vehicle turned left and headed east on Derry Rd. Within minutes, police used their vehicles to force the 824 vehicle [page550] to stop. They arrested the driver and sole occupant, Lovejeet Bains, who co-operated with them.

The search of the 824 vehicle

[13] Police searched the 824 vehicle at the roadside. The interior appeared cluttered. Two child seats were on the rear seat. On the floor, under the front passenger seat, was an opaque plastic bag. The bag had been stuffed under but protruded from underneath the front passenger seat. It was not visible from the front seat but could easily be seen from the back when the officers opened the rear passenger door.

[14] Police looked in the bag. In it was a vacuum sealed bag that contained one kilogram of heroin. The contents of the outer bag also included a digital scale. The contents of the outer bag -- the vacuum sealed bag and the digital scale -- could not be seen from either the front or rear seat of the car.

[15] Police did not conduct a fingerprint analysis of the outer bag or of any of its contents.

The second vehicle re-appears

[16] While officers were dealing with Lovejeet Bains and the 824 vehicle at the side of Derry Rd., they noticed another vehicle, the 381 vehicle, drive by slowly. The driver stared in the direction of the arrest scene. The 381 vehicle was travelling eastbound on Derry Rd., the opposite direction to its travel after it had turned right at the Torbram-Derry intersection. The 381 vehicle then turned right and headed southbound on Airport Road.

[17] To ensure traffic safety, police moved their vehicles and the 824 vehicle to the parking lot of the International Centre on Airport Rd. Once again, they saw the 381 vehicle, this time travelling northbound along Airport Rd., again in the opposite direction than it had earlier. The driver was looking towards the officers.

The telephone call

[18] As Lovejeet Bains sat in the rear seat of the police car after he had been arrested, his cellphone constantly rang. An officer answered the phone. The caller's name, according to call display, was "Harneet", Pannu's first name. The officer told the caller that the police had "their car" at the International Centre and invited him there.

The arrest of Pannu

[19] Shortly after the call to Bains' cellphone had ended, Harneet Pannu arrived at the International Centre. He was the [page551] driver and only occupant of the 381 vehicle. Police arrested him and searched the vehicle. They found no drugs or drug paraphernalia.

The vehicles

[20] The 381 vehicle driven by Harneet Pannu was registered to Lovejeet Bains at a Stoney Creek address. The 824 vehicle driven by Lovejeet Bains was registered to Kulwant Pannu at the same Brampton address at which Harneet Pannu lived. No evidence was elicited about the identity of Kulwant Pannu or his relationship with Harneet Pannu.

The trial proceedings

[21] At the conclusion of the case for the Crown, counsel for both Bains and Pannu sought a directed verdict of acquittal. The trial judge remarked that the case for the Crown was "far from strong" but supported a reasonable inference that both Bains and Pannu were involved in drug trafficking and thus in joint possession for the purpose of trafficking of the heroin found in the vehicle driven by Bains.

[22] The jury deliberated over lunch for about two and one-half hours before finding each of Bains and Pannu guilty as charged. Counsel had no objections to the charge. The jury asked no questions.

The Grounds of Appeal

[23] On their appeals from conviction, Bains and Pannu advance two common grounds of appeal. Each submits that

(i) juror misconduct, not discovered until after the jury had rendered its verdict, could reasonably have affected the verdict and thus caused a miscarriage of justice; and

(ii) the jury's verdict is unreasonable.

[24] In addition to the common grounds, Pannu alleges error in the trial judge's failure to caution the jury about their use of evidence of post-offence conduct. Bains contends that the trial judge erred in failing to accede to his motion for a directed verdict of acquittal.

[25] Both Bains and Pannu appeal the sentence imposed on them. Each says that the sentence is unfit for a first offender. Each argues that the sentence imposed would be fit for the more serious offence of importing and thus exceeds the appropriate range of sentence for possession for the purpose of trafficking. [page552]

[26] On the appeal from conviction, I will consider first the grounds of appeal that relate to juror misconduct and the failure to properly instruct the jury on evidence of after-the-fact conduct by Pannu. I will next turn to the claim that the verdict is unreasonable, including the specific submission by Bains that the trial judge erred in dismissing the directed verdict application at trial. I will then address the sentence appeal.

The Conviction Appeal

Ground #1: Juror misconduct

[27] This ground of appeal was a central focus of the oral arguments in this court. The impugned conduct occurred before the trial judge charged the jury and thus before the jury began its brief deliberations. However, the conduct was not discovered until after the jury had delivered its verdict and been discharged by the trial judge.

The jury room discovery

[28] Within an hour of the verdict, a court services officer found a document between two juror binders left on the table in the jury room. The document was typewritten. The first portion of it was in bold typescript.

[29] The document read:

The decision to acquit Casey Anthony of killing her daughter Caylee has shocked and baffled many people, but some experts say it's just the latest sign of juries' ignorance, failure to use common sense, and inability--or disinclination --to properly weigh evidence. Lloyd Grove reports.

You should also remember, however, that it is nearly impossible to prove anything with absolute certainty. The Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law.

[1] To make your decision, you should consider carefully, and with an open mind, all the evidence presented during the trial. It will be up to you to decide how much or little of the testimony of any witness you will believe or rely on. You may believe some, none or all of the evidence given by a witness.

[2] When you go to the jury room to consider the case, use your collective common sense to decide whether the witnesses know what they are talking about and whether they are telling the truth. There is no magic formula for deciding how much or how little to believe of a witness's testimony or how much to rely on it in deciding this case.

[Bolding in original] [page553]

The notice to counsel

[30] Court staff notified the trial judge immediately about their discovery. The trial judge had the court services officer who had discovered the document prepare a statement explaining the circumstances in which he had found it.

[31] The day following the discovery, the trial judge sent a letter to counsel explaining what had happened. He enclosed a copy of the document and advised that he had requested the court services officer prepare a statement which would be disclosed to counsel. That statement was later disclosed to counsel.

The initial hearing

[32] At the initial hearing following the discovery, trial counsel for Bains invited the trial judge to declare a mistrial or enter a stay of proceedings. Counsel for Pannu, who had not been counsel at trial, submitted that the trial judge had no jurisdiction to grant the remedy sought by counsel for Bains. Counsel for Pannu asked the trial judge to conduct an inquiry into what happened to create a record for appellate review.

[33] The trial Crown agreed that the trial judge was functus, and that he could not declare a mistrial or stay proceedings after discharge of the jury. The trial Crown argued that even if the trial judge had the authority to conduct an inquiry, which was not conceded, he should not do so in the circumstances.

The preliminary decision

[34] The trial judge decided that he would conduct an inquiry to determine whether anyone else on the jury had conducted any research; the extent to which what was found or anything else was disclosed to other jurors; and when the materials had been brought into the jury room.

[35] The trial judge explained that the court services officer who found the document would testify first to be followed by the juror on whose binder the document had been found. Counsel were permitted to question the court services officer. However, only the trial judge would examine the juror, with suggestions from counsel about appropriate questions.

[36] During the initial inquiry, the trial judge learned that another juror, not the juror being questioned, was the person who had brought the material to the jury room. As a result, the trial judge expanded the inquiry to include the remaining 11 jurors. [page554]

The evidence on the inquiry

[37] The court services officer testified that he found a single-page document between two binders on the table in the jury room. Each juror had been given a binder when the trial began. The officer explained that deliberating jurors have no computer access when sequestered. Court staff collect computers from jurors when deliberations begin.

[38] One juror testified on the first phase of the inquiry. The trial judge had been under the impression from what he had been initially told by court staff that the document had been found with this juror's binder. The juror explained that he had not created the document. He had picked it up, seen that it referred to Casey Anthony and put it down without reading further.

[39] On the further inquiry, the trial judge asked each juror whether they had seen the document and, if they had, whether they had read it in whole or in part. The trial judge did not ask any juror what effect, if any, the document had on the juror's decision or whether the juror relied on it to reach his or her decision.

[40] The evidence on the inquiry established that the jury foreman had created the document on the weekend prior to the judge's charge and had brought copies of it into the jury room on the day the charge was to be given. He put the document on the jury room table before jurors entered the courtroom to hear the judge's charge.

[41] Some jurors picked up the document. Although there was evidence that there was some level of discussion, no one expressed any interest in it. Few, if any, of the jurors other than the foreman read it in its entirety. Some jurors put the document down as soon as they saw "Casey Anthony". Some considered the document inappropriate.

The arguments on appeal

[42] The appellants say that the foreman's misconduct in bringing extraneous materials into the jury room caused a miscarriage of justice and warrants a new trial.

[43] The appellant Pannu acknowledges a presumption that jurors will abide by their oath or affirmation and decide the case on the evidence and according to the trial judge's instructions on the governing legal principles. The presumption is rebuttable, however, and has been rebutted here by evidence of a taint caused by the presence of extraneous material in the jury room. Although we cannot know the actual effect of this material [page555] because of the jury secrecy rule, a verdict based on extraneous information is not a "true" verdict.

[44] Pannu contends that he need only show that there is a reasonable possibility that the extraneous information affected the verdict to succeed on this ground. A "reasonable possibility" means a "real risk" and that has been made out here.

[45] Pannu says each excerpt in the document raises different concerns.

[46] Pannu states that the Casey Anthony excerpt demonstrates outrage at an acquittal in what appeared to be an overwhelming prosecution case and focuses jurors' attention on an improper consideration -- the public's reaction to an acquittal and what people would think of them, the jurors. The excerpt also equates acquittals with inadequate juror understanding, ignorance and the failure to use common sense.

[47] According to Pannu, the jury charge excerpt is unbalanced, disclosing only a standard of proof that the Crown does not have to meet, rather than explaining what is required. Such a description usurps the role of the trial judge in providing instructions to the jury about the governing legal principles.

[48] In its entirety, Pannu says, the document encouraged jurors not to be fooled by legal sleight of hand and not to subject the case for the Crown to an unreasonably exacting standard of proof impossible of satisfaction. They should not abandon common sense and acquit.

[49] Bains adds two further points. He says that the jury instruction excerpt is, by nature, coercive in much the same way as the "timid juror" instruction that equates acquittal with a failure to discharge responsibility. Bains also reminds us that a miscarriage of justice is equally established by a demonstration of an appearance of unfairness, which has been plainly made out here.

[50] The respondent urges a cautious approach. The mere fact that extraneous information was available for jury consumption does not require that the appellants' convictions be set aside. It is important to determine, as we begin, whether the information contained in the document is improper and whether anything that may be improper about it affected the verdict of the jury. The latter inquiry is circumscribed by the jury secrecy rule and abjures any consideration of the actual effect on the reasoning process of the jurors.

[51] The respondent says that a realistic assessment of the impact of the extraneous material should begin with a determination of whether the jurors actually read the document. Apart from the jury foreman who created the document, the remaining [page556] jurors, with one exception, said either that they had not read the document or that they put it down after reading the Casey Anthony portion. The evidence of the court services officer about the foreman's personality is of no value since it is at once speculative and removed from consideration by the secrecy rule.

[52] The respondent argues that the Casey Anthony excerpt is not improper. It amounts to nothing more than a view a juror could bring to and express during the give-and-take of the deliberation process. Familiarity with notorious cases, domestic or foreign, is part of a juror's stock-in-trade, and thus intrinsic to the deliberation process and inadmissible in verdict impeachment.

[53] In any event, the respondent continues, the Casey Anthony excerpt consisted of a single sentence about a different case, in another country, for a different offence. Although the prior instruction about not seeking information out of court might not have resonated with the foreman, there was no reason to think the remaining jurors would have disobeyed the trial judge's instruction.

[54] The respondent accepts that the excerpt from the Canadian Judicial Council model jury instructions was improper because it contravened the trial judge's express instructions that jurors were to take their legal instructions from him and no other source.

[55] In the end, however, the respondent argues that the appellants suffered no prejudice by the inclusion of an incomplete excerpt of a jury instruction on the standard of proof and the assessment of evidence. The trial judge's final instructions on the burden and standard of proof, the meaning of proof beyond a reasonable doubt and the manner in which jurors were to assess evidence were impeccable and provided to the jury in writing. There was no manifest appearance of unfairness from the availability of this material.

The governing principles

[56] To determine this ground of appeal, an issue that has engaged appellate courts in many jurisdictions, it is helpful to begin with a recollection of some fundamental principles about the role of the jury and the basis upon which jury verdicts may be impeached.

The role of the jury

[57] In a jury trial, as judges routinely instruct jurors, the task of the jury includes [page557]

(i) determination of the facts;

(ii) acceptance of the governing legal principles as explained by the trial judge; and

(iii) application of the legal principles, as explained by the trial judge, to the facts, as found by the jury, to reach a verdict the law prescribes for those facts on each count in the indictment.

[58] Judicial instructions explain to jurors that their findings of fact are to be made based, and based only, on the evidence adduced at trial, including reasonable inferences from that evidence. Judges define what constitutes evidence, as well as what falls beyond its reach and thus cannot be used as a basis for findings of fact. Like outside information. Emotions. Punishment. And the views of others.

[59] Judicial instructions also distinguish the role of the judge from that of the jury. The instructions explain that the judge is the exclusive source of the legal principles that the jurors are to follow. Jurors are expressly instructed not to rely upon their own ideas about the law or to do their own legal research. In most cases, these instructions are given immediately after the jury has been empanelled and are repeated in the charge.

[60] Preliminary instructions also describe what might be characterized as the course of the evidence at trial. The case for the Crown proceeds first. Then, the defence may, but is not required to, introduce evidence. Where defence evidence has been introduced, reply evidence may, but does not have to, follow. And that is the end of the evidence.

[61] In a jury trial, we presume that jurors will perform their duties according to their oath or solemn affirmation: R. v. Vermette, 1988 CanLII 87 (SCC), [1988] 1 S.C.R. 985, [1988] S.C.J. No. 47, at p. 992 S.C.R.; R. v. Hubbert (1975), 1975 CanLII 53 (ON CA), 11 O.R. (2d) 464, [1975] O.J. No. 2595, 29 C.C.C. (2d) 279 (C.A.), at p. 289 C.C.C., affd (1977), 1977 CanLII 15 (SCC), 15 O.R. (2d) 324, [1977] 2 S.C.R. 267, [1977] S.C.J. No. 4. This presumption of impartiality is rebuttable: R. v. Spence, [2005] 3 S.C.R. 458, [2005] S.C.J. No. 74, 2005 SCC 71, at para. 23; R. v. Sherratt, 1991 CanLII 86 (SCC), [1991] 1 S.C.R. 509, [1991] S.C.J. No. 21, at p. 536 S.C.R. We also presume that jurors understand and follow the instructions they are given: R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, [1988] S.C.J. No. 40, at p. 695 S.C.R. This presumption is also rebuttable. [page558]

The jury secrecy rule at common law

[62] Jurors deliberate in secret but give their verdict, often in a word or two, in open court. They bring to their task their entire lives' experiences. Their knowledge of human behaviour, gained outside the courtroom, helps them assess the credibility of witnesses and gauge the reliability of evidence. Jurors have opinions, formed by what they see and hear. And by what they read. Opinions do not disqualify them from jury service unless those opinions interfere with their ability to render an impartial verdict: R. v. Pan; R. v. Sawyer, 2001 SCC 42, [2001] 2 S.C.R. 344, [2001] S.C.J. No. 44, at pp. 378-79 S.C.R.

[63] To promote candour and full and frank debate in the jury room, essential to collegial decision-making, the common law created a rule of secrecy about jury deliberations. The rule, sometimes described as Lord Mansfield's rule, prohibits a court, whether of first instance or on review, from receiving evidence of jury deliberations for the purpose of impeaching the jury's verdict: Pan, at p. 373 S.C.R.; Danis v. Saumure, 1956 CanLII 9 (SCC), [1956] S.C.R. 403, [1956] S.C.J. No. 18, at pp. 406-407 S.C.R.

[64] A modern formulation of the common law rule is that statements made, opinions expressed, arguments advanced and votes cast by members of the jury in the course of their deliberations are inadmissible in any legal proceedings: Pan, at p. 386 S.C.R. It follows that jurors cannot be asked and cannot testify about the effect of anything on their or on other jurors' minds, emotions or ultimate decision: Pan, at p. 386 S.C.R.

[65] The reach of the common law rule does not extend to render inadmissible evidence of facts, statements or events extrinsic to the deliberation process that may have tainted the verdict. And it is of no moment whether this evidence emanates from a juror or through some third party: Pan, at p. 386 S.C.R.

The statutory prohibition: Section 649 of the Criminal Code

[66] Section 649 of the Criminal Code, R.S.C. 1985, c. C-46 creates a summary conviction offence that prohibits jurors from disclosing information about what took place in the jury room while the jury was absent from the courtroom that was not later disclosed in open court. The prohibition is not restricted to information disclosed during deliberations and is subject to an exception for an investigation of and testimony about an alleged offence under s. 139(2) of the Criminal Code in relation to a juror.

[67] The common law jury secrecy rule and s. 649 of the Criminal Code together further the policy goals of promoting free and [page559] frank debate among jurors, protecting jurors from harassment and preserving public confidence in the administration of justice: Pan, at p. 391 S.C.R.

Impeachment of jury verdicts

[68] Despite the combined force of the common law secrecy rule and s. 649 of the Criminal Code, the impeachment of jury verdicts is not a mere shibboleth devoid of substance. Courts have permitted impeachment when the basis of the challenge is improper conduct of a jury member, or by someone else towards a jury member, outside the deliberation process: Pan, at p. 386 S.C.R. The common law rule and its statutory complement do not reach evidence that jurors were exposed to extrinsic information in the course of their deliberations. And we pay no heed to whether such information comes from a juror or third party. But we draw the line and foreclose evidence about the effect of any extrinsic information on their deliberations: Pan, at p. 377 S.C.R.

[69] To ensure a fair trial, courts have tried to maintain the integrity and impartiality of the jury by shielding jurors from pre-trial publicity, rulings that exclude evidence at trial and other incidents that might spawn an impermissible chain of reasoning. Preliminary and final instructions enjoin outside research and reliance on anything other than what the law considers evidence fit for jury consumption.

[70] But the growing availability of and apparently insatiable appetite for information poses a formidable challenge to the right to a fair trial in the 21st century. Traditional forms of media have expanded onto the worldwide web. New forms of media have emerged as the web makes everyone a publisher, and social media help disseminate publications, both traditional and untraditional. It has become increasingly difficult to control the dissemination of information, with jurors able to use not only computers and tablets but also smartphones and even watches to access online material, and to curb the appetite of jurors for it. And with little quality control over content. The sensational trumps the accurate; fevered imaginings, truth.

[71] No special statutory provision governs our review of jury verdicts impeached on the basis that extraneous information came to the attention of jurors prior to or during deliberations.

[72] Sometimes, the irregularity is discovered prior to verdict and the trial judge conducts an inquiry and makes a decision about the suitability of individual jurors or the jury as a whole continuing with the trial. In those circumstances, we review the trial judge's conclusion, according it deference in the absence of [page560] legal error, misapprehension of evidence or patent unreasonableness. In other instances, as here, the irregularity is not discovered until after verdict, and the trial judge conducts an inquiry and creates a record for appellate review. In those cases, we examine that record to determine whether there was an irregularity and, if so, what impact it had on the verdict.

[73] Typical of appellate review, our task does not end with identification of an error or irregularity in the conduct of a trial. Although the jury secrecy rule denies us first-hand evidence of the effect of extraneous information on the actual verdict reached, we are required, within the limits of appellate disadvantage, to gauge the impact of any improper influence. And this we do by examining the record to determine whether there was a reasonable possibility, in the circumstances of the case under review, that the information had an effect on the verdict of the jury: Pan, at para. 59; R. v. Farinacci, [2015] O.J. No. 2835, 2015 ONCA 392, at para. 26.

[74] The approach we follow, eschewing a bright line rule in favour of a contextual case-by-case analysis and insisting upon some link between the irregularity and the result, has been followed in other common law jurisdictions where verdicts have been impeached on a similar basis.

United Kingdom

[75] In the United Kingdom, a recent amendment to the Juries Act 1974, 1974 c. 23 makes it an offence for a juror trying a case before a court to intentionally seek information that he or she knows or ought to know is or may be relevant to the case. This includes information relating to the law of evidence, and covers searches of electronic databases, including by means of the Internet.

[76] An appellant who alleges that a jury verdict should be set aside because extrinsic information came to the jury's attention prior to or during deliberations must show that the irregularity, which was material, rendered the conviction unsafe within s. 2(1) of the Criminal Appeal Act 1968, 1968 c. 19, as amended by the Criminal Appeal Act 1995, 1995 c. 35. If the Court of Appeal finds that the conviction is unsafe, it must allow the appeal and quash the conviction.

[77] In R. v. Karakaya, [2005] EWCA Crim. 346, [2005] 2 Cr. App. R. 5 (C.A. (C.D.)), the extrinsic materials were not case-specific but did relate to prosecutions for sexual offences, the same type of offence on which the appellant was being tried. Counsel for the appellant described the materials -- the feminist position on rape and rape in the criminal justice system -- [page561] as tendentious and inaccurate, a description which the court stated was "not unfair". The court considered that the materials offended very well-established principles including that no further evidence could be given after the summing-up had concluded and that the parties were entitled to know the materials considered by the decision maker.

[78] The Karakaya court concluded that the convictions were not safe, but made two important observations in doing so. The court queried whether every breach should warrant a new trial and considered that the irregularity could result in the application of the proviso, akin to s. 686(1)(b)(iii) of the Criminal Code: Karakaya, at para. 18.

[79] In R. v. Marshall; R. v. Crump, [2007] EWCA Crim. 35 (C.A. (C.D.)), the Court of Appeal Criminal Division held that when the extrinsic material was not discovered until after a verdict, it would consider whether the verdicts rendered were safe. Relevant considerations include [at para. 12]

(i) the nature of the materials;

(ii) the deliberation history, including questions asked by jurors; and

(iii) the discriminating nature of the verdicts rendered by the jury.

The court rejected any bright line rule that required that a conviction be quashed on proof of extrinsic information in favour of a case-by-case analysis. The court required the appellants to show that they had been adversely affected by the materials: Marshall; Crump, at para. 13.

[80] Later authorities affirm the rejection of a bright line rule. Each insists on a case-by-case analysis not founded on speculation: R. v. Burcombe, [2010] EWCA Crim. 2818 (C.A. (C.D.)), at para. 18; R. v. McDonnell, [2010] EWCA Crim. 2352, [2011] 1 Cr. App. R. 28 (C.A. (C.D.)), at para. 27.

[81] In R. v. Thompson, [2010] EWCA Crim. 1623, [2011] 1 W.L.R. 200 (C.A. (C.D.)), the Court of Appeal heard six appeals together. Each case involved a juror irregularity. Lord Judge C.J. explained the court's approach to Internet contamination was the same as in other cases in which extraneous material had been introduced. In para. 11, the chief justice held:

If, on examination, this material strikes at the fairness of the trial, because the jury has considered material adverse to the defendant with which he has had no or no proper opportunity to deal, the conviction is likely to be unsafe: R v Karakaya. If the material does not affect the safety of the conviction, the appeal will fail. [page562]

Australia

[82] At least some states in Australia have enacted legislation that prohibits juror research, renders a breach of the prohibition a criminal offence punishable on conviction by a term of imprisonment and, if discovered before verdict, permits or requires discharge of the offending juror from further participation in the trial.

[83] In Victoria, the Court of Appeal considered a case where, despite repeated warnings about deciding the case on the evidence, court staff located six Internet printouts in the jury room. Each contained articles about various words that were of importance as components of essential elements of the offences charged. The trial judge refused to declare a mistrial. Counsel alleged the judge erred in failing to do so.

[84] The Court of Appeal of Victoria in Benbrika v. The Queen, [2010] VSCA 281, 204 A. Crim. R. 457 (C.A.), at paras. 212-13, outlined its approach to cases involving improper Internet searches in these terms:

The question whether there should be a discharge of a jury by reason of internet searches having been carried out in defiance of a judge's orders has been considered on a number of occasions. If the Court concludes that there has been an irregularity, it must determine whether there is a significant possibility that the irregularity affected the outcome of the trial. Not every departure from the relevant laws and procedures for the proper conduct of a criminal trial may "prejudice or colour the overall trial so as to affect the verdict". Accordingly, such a departure will not necessarily constitute a miscarriage of justice.

The test for determining the materiality of an irregularity has been variously stated. In general terms, the question to be asked by an appellate court is whether it can be satisfied that the irregularity has not affected the verdicts, and that the jury would have returned the same verdicts if the irregularity had not occurred.

(Footnote references omitted)

[85] In New South Wales, an amendment to the Jury Act prohibits juror inquiries about an accused or any matters relevant to the trial. Making an inquiry includes conducting research by searching in an electronic database. In one case, a trial judge learned about a juror's inquiries but did not conduct an inquiry to determine whether the juror had engaged in misconduct and had to be discharged under the statute. Instead, the trial judge cautioned the jurors not to make such inquiries. The Supreme Court quashed the conviction and ordered a new trial on the ground that, irrespective of prejudice, the failure to comply with a mandatory provision relating to the constitution of the jury [page563] (discharge of the offending juror) rendered the verdict unsustainable: Smith v. The Queen, [2010] NSWCCA 325, at para. 40.

[86] In Folbigg v. R., [2007] NSWCCA 271, the New South Wales Court of Criminal Appeal described its approach to post-verdict discovery of in-trial Internet research by jurors. The court considered first whether there was a miscarriage of justice and, if so, whether a substantial miscarriage of justice actually occurred: Folbigg, at para. 11. The court emphasized that only a material irregularity, and not every irregularity, could constitute a miscarriage of justice: Folbigg, at para. 17. To determine whether an irregularity was material, the court considered whether it could be satisfied that the irregularity had not affected the verdict and that the jury would have returned the same verdict if the irregularity had not occurred: Folbigg, at para. 17. Relevant factors include [Folbigg, at para. 18]

(i) the nature of the irregularity;

(ii) the relevance of the irregularity to the issues before the jury;

(iii) whether the material arising from the irregularity was prejudicial; and

(iv) the extent of any prejudice.

New Zealand

[87] In considering appeals based on juror misconduct, including computer usage during trial, the New Zealand Court of Appeal imposes a threshold requirement of reasonably grounded suspicion, meaning the existence of suspicion on an objective view that the misconduct may have influenced the verdict: R. v. Bates, [1985] 1 NZLR 326 (C.A.), at p. 328; R. v. Walker, [2002] 3 NZLR 468 (C.A.), at p. 475; and R. v. Patterson, [2008] NZCA 12, at paras. 11-13.

Canada: The Standard under s. 686(1)(a)(iii)

[88] Section 686(1)(a)(iii) authorizes an appellate court to allow an appeal on any ground that there was a miscarriage of justice. On its face, the section is not limited to errors of law but encompasses any kind of error. Errors that engage s. 686(1)(a)(iii) are not subject to the operation of the proviso in s. 686(1)(b)(iii), although the procedural proviso in s. 686(1)(b)(iv) may forgive some errors.

[89] An appellant who advances his or her case under s. 686(1)(a)(iii) is not required to establish that she or he has been wrongly convicted or that the conviction is unreasonable: [page564] R. v. Lohrer, [2004] 3 S.C.R. 732, [2004] S.C.J. No. 76, 2004 SCC 80, at para. 3.

[90] A court invited to set aside a conviction on the basis that it constitutes a miscarriage of justice engages in a fact-specific analysis of the circumstances underpinning the claim. The court considers the gravity of any irregularities that occurred at trial and their impact on the actual and apparent fairness of that trial. A miscarriage of justice may be established where a procedural irregularity or other trial incident created an appearance of unfairness: R. v. Khan, [2001] 3 S.C.R. 823, [2001] S.C.J. No. 83, 2001 SCC 86, at para. 73.

[91] An appearance of a miscarriage of justice requiring a new trial exists where the irregularity is such that it taints the administration of justice in the eyes of a reasonable observer: R. v. Spiers (2012), 113 O.R. (3d) 1, [2012] O.J. No. 5450, 2012 ONCA 798, 293 C.C.C. (3d) 17, at para. 32. In other words, would a well-informed reasonable person, considering all the circumstances, perceive the trial as appearing to be unfair: Khan, at para. 73. The irregularity must be sufficiently significant or pronounced to amount to a miscarriage of justice: R. v. M. (L.W.), [2008] S.J. No. 811, 2008 SKCA 168, 239 C.C.C. (3d) 326, at para. 68.

The principles applied

[92] For reasons that I will develop, I would not give effect to this ground of appeal.

[93] The analysis must begin with a consideration of the nature of the extrinsic information contained in the document prepared by the foreman and placed on the table in the jury room shortly before the trial judge charged the jury.

[94] Recall that the document consisted of two parts.

[95] The first part, in bold type, consisted of an introductory paragraph about the result of a highly publicized murder trial in the United States. Nothing about the evidence. Or the essential elements of the offence charged. A comment about the reaction of "many people" to the verdict -- an acquittal. Unidentified "experts" assigning responsibility for this verdict to the ignorance of jurors, their failure to use common sense and their inability or disinclination to properly weigh evidence.

[96] The Casey Anthony material was provocative and tendentious. It referred to a proceeding several light years removed from the case the jurors were chosen to decide. Of some note, it referred to two subjects about which the judge would instruct the jurors: one -- public opinion -- the trial judge would and did [page565] say was irrelevant; the other -- common sense -- the trial judge would and did emphasize should be the jurors' guide throughout.

[97] The second part of the document consisted of edited excerpts from model instructions on reasonable doubt and the assessment of evidence promulgated by the Canadian Judicial Council. Neither was complete. Neither was legally wrong. And each would form part of the trial judge's final instruction on the same subjects. Jurors had individual written copies of the trial judge's final instructions to guide them in their deliberations.

[98] An additional point of context concerns the oath or affirmation jurors take or make when selected. We presume that they will well and truly try and a true verdict give according to the evidence, abjure what is not evidence, and not be distracted by background noise. We also presume that they will follow the trial judge's instructions on the governing legal principles.

[99] To determine whether the extraneous information the foreman brought to the jury room caused a miscarriage of justice, I have considered individually and cumulatively several factors.

[100] First, whether the jurors actually reviewed the materials, and to what extent. That the jury secrecy rule denies us direct evidence of the effect of the materials on the deliberation process does not diminish the importance of showing actual reading of the materials. There can scarcely be a reasonable possibility that extraneous information could affect the verdict or the apparent fairness of the trial if the jurors' eyes and ears did not take in that information. The evidence establishes the presence of several copies of the document in the jury room on the morning the trial judge charged the jury. But the evidence also demonstrates that, but for the foreman and perhaps one other juror, nobody actually read the material in full. In particular, nobody besides the foreman and perhaps that one additional juror got beyond the Casey Anthony diatribe.

[101] Second, the length of time the document was available. The document appeared the day the judge charged the jury. The evidence betrays any suggestion that it was provided earlier in this brief trial and available for juror review as the case unfolded.

[102] Third, the extent to which the extraneous information was discussed or considered by the jury. The jury secrecy rule renders inadmissible any evidence about the effect of the document on a juror's mind during the deliberations but did not prohibit questions about whether a discussion occurred. Although the foreman testified that there was discussion of the document, he acknowledged that there was little interest in it. This lack of [page566] interest is evidenced by the fact that seven of the 12 jurors did not read the document and two read only the Casey Anthony portion. Of the remaining three, one, the foreman, read the document in its entirety; one "didn't even read much" and one "took a look". The evidence of the jurors on the inquiry belies any discussion of either aspect of the document.

[103] Fourth, the relationship of the extraneous information to the contested issues at trial. The contested issues at trial focused on knowledge and control of heroin located under the passenger seat of the car driven by Bains. Neither part of the document was directly relevant to knowledge or control, nor for that matter to any essential element of the offence charged. To the extent the excerpts from the Canadian Judicial Council instructions refer to the standard of proof in assessment of evidence, neither was legally wrong. The trial judge gave unimpeachable instructions, delivered orally and provided in writing, together with a direction that judicial instructions about the law trumped anything anybody else said about the subject.

[104] Fifth, whether the extraneous information was outside the jurors' generalized knowledge. The Casey Anthony excerpt, to the extent it related to a notorious trial and public reaction to the verdict, may not have been beyond the knowledge of individual jurors and thus may have been part of the vast storehouse of experience each juror brought to the table and deliberations.

[105] Sixth, whether curative instructions were given or some other step taken to redress any prejudice. The existence of this material was not communicated to the trial judge prior to his charge or in advance of verdict. Although the trial judge was unable to conduct an inquiry or provide more specific jury instructions, the charge reinforced earlier instructions (ignored by the foreman) that confined deliberations to their proper subject matter and reiterated the exclusive source of legal instructions as the trial judge.

[106] Finally, whether the extraneous information related specifically to anyone on trial and included any information that revealed extrinsic misconduct by a person charged. The extraneous information in this case did not relate specifically to either Bains or Pannu and thus revealed no extrinsic misconduct by either of them.

[107] What occurred here falls short of establishing a miscarriage of justice through an appearance of unfairness. To decide otherwise would be tantamount to creating a per se rule that any extraneous information that enters the jury room impairs the apparent fairness of the trial and constitutes a miscarriage of justice that requires a new trial. [page567]

[108] In this case, a single juror ignored the trial judge's instructions. He compiled a document. Of the remaining jurors, some looked at the first part and put it down. Others did not even pick it up. This is not the fabric of which appearances of unfairness are woven.

A post script

[109] In Farinacci, my colleague offered some valuable suggestions about instructions that trial judges might give prospective and empanelled jurors at various stages of the trial to remind them of their obligations and to point out the impropriety and practical consequences of breaches of prohibitions on research and other forms of inquiry. Unfortunately, as this case illustrates, some jurors ignore what they are told.

[110] In some cases, it may be helpful for the trial judge to instruct empanelled jurors not to bring computers, tablets, cellphones, smartwatches or any devices with research capacities to the jury room at any stage of the trial. This injunction is imperfect, of course, because it does not stop the curious from doing research elsewhere when the jury is not in the courtroom. In that respect, it may be appropriate to add some specifics to the injunction against research, as for example, that jurors are not to access legal databases, earlier decisions, pre-trial publicity or any other material of any kind relating to any subject or person connected with the trial. To underscore the point, if need be, a reminder that a breach of the injunction would amount to and be punishable as contempt might not go amiss.

[111] A brief explanation of two aspects of the standard caution could also prove beneficial. An additional reason for not undertaking research into the law, or into the factual background of the case, is that the legal principles stated may not be applicable to the trial proceedings, or may be incomplete or inaccurate, just like some commentary or statements made about the factual background. Further, in connection with discussions with others, almost inevitably others will offer some contribution or observation. These contributions or observations are of no value, though, since the person expressing them will not have heard or seen the evidence, received directions, or taken the oath or made the solemn affirmation binding on the jurors.

[112] In some jurisdictions, courts have suggested inclusion of what might be termed a "whistleblower" instruction. This direction counsels any juror who learns a fellow juror has made an inquiry outside court by electronic or other means about the accused, the background of the offence, the legal principles that apply or any other subject expressly prohibited by the judge, [page568] or has caused anybody else to do any of those things, to bring the matter immediately to the attention of the trial judge. Such an instruction should also explain the reason why the trial judge should be alerted about such conduct: without notice, it may not be possible to set the matter straight and, if not discovered until after verdict, it may become necessary to try the case again.

[113] It may also be fitting to ensure that court services officers be reminded regularly to report any extraneous material found in the jury room immediately upon discovery. Timely report enhances the likelihood that remedial steps can be taken during trial if the discovery precedes verdict, or immediately thereafter, as in the circumstances of this case, to determine the nature of the irregularity and the appropriate remedy to correct it.

Ground #2: Failure to instruct on evidence of post-offence conduct

[114] Pannu takes issue with the trial judge's failure to caution the jury about their use of evidence of his abrupt lane change in reaching their verdict.

[115] Earlier in these reasons, I have described the evidence that is the subject of this ground of appeal. It is unnecessary to reiterate that description here but appropriate to make three brief observations about it.

[116] First, the lane change occurred before Bains made his left turn at Torbram Rd. to proceed along Derry Rd. and before he was stopped and arrested, and the vehicle he was driving was searched.

[117] Second, the evidence was admitted as part of a narrative of events leading up to the arrest of Bains and later Pannu. No objection was taken to its admissibility.

[118] Third, evidence was also admitted of Pannu's driving after Bains had been arrested and prior to Pannu's own arrest.

The arguments on appeal

[119] Pannu says evidence of his lane change was a lynchpin of the Crown's case against him. It was put forward as evidence as post-offence conduct that linked him to the commission of the offence charged by consciousness of guilt-type reasoning. The evidence was fraught with significant dangers and engendered significant prejudice in a prosecution case that was far from strong. The trial judge erred in failing to provide a cautionary instruction to jurors to stifle the prejudicial effect inherent in this evidence.

[120] The respondent contends that evidence of Pannu's driving, in particular the abrupt change from the left to the right [page569] turn lane, was relevant, material and properly admissible as part of the narrative. From it, according to the respondent, the jury could infer that Pannu was involved with Bains in a "nefarious" joint activity, had detected police surveillance and sought to divert their attention from Bains who was carrying the drugs. That other inferences could be drawn from this evidence is of no moment to the issues of relevance, materiality or admissibility.

[121] The respondent points out that trial counsel did not object to the admissibility of this evidence or suggest that the trial judge should caution the jury about its use. It was not tendered as and was not evidence of post-offence conduct, thus was not subject to any caution that might be given in respect of such evidence.

The governing principles

[122] This ground warrants brief reference to three matters of principle. The first has to do with the actus reus or conduct element in offences of which possession is an essential component. The second and third relate to evidence of post-offence conduct and demeanour evidence.

[123] Possession is an essential component of the offence charged -- possession of heroin for the purpose of trafficking. Possession is a conduct crime that begins when possession is gained and continues until it is relinquished. In this sense, possession can be seen as a continuing offence.

[124] Post-offence conduct refers to anything said or done by an accused after the commission of an offence. It comprises a vast array of words and conduct: R. v. White, [2011] 1 S.C.R. 433, [2011] S.C.J. No. 13, 2011 SCC 13, at para. 21. Most evidence of post-offence conduct enters the trial record unexceptionally as an unremarkable part of the narrative: White, at para. 140.

[125] Evidence of post-offence conduct is a species of circumstantial evidence, not some special category or type of evidence. It invokes a retrospectant chain of reasoning, sponsoring an inference from things said or done later, after an event, to involvement in the prior event or a state of mind associated with it. As a species of circumstantial evidence, no special rule is attached to evidence of post-offence conduct: White, at paras. 31, 105, 137. But in some cases, where a trier of fact may find the evidence of greater value than its intrinsic worth, a caution about use may be required: White, at paras. 106, 185.

[126] Sometimes we receive demeanour evidence, that is to say, evidence of how a person appeared or acted after or during an event. In its normal, natural everyday sense, the term "demeanour" refers to conduct, behaviour, a way of acting or to [page570] a person's bearing, mien or outward manner. Implicit in the reception of evidence of a person's demeanour, however, are two invalid assumptions. The first assumes that for every action or event there is a normal reaction or manner of reaction. And the second is that an individual's reaction actually reflects his or her inner emotional reaction or state: R. v. Wall (2005), 2005 CanLII 80695 (ON CA), 77 O.R. (3d) 784, [2005] O.J. No. 5095, 203 C.C.C. (3d) 232 (C.A.), at para. 49.

[127] As a result of the invalid assumptions that underpin demeanour evidence, this evidence requires a predominance of probative value over prejudicial effect to be admissible: Wall, at para. 50.

The principles applied

[128] For several reasons, I would reject this ground of appeal.

[129] First, this evidence was relevant, material and admissible as an essential part of the narrative. It offended no admissibility rule of the law of evidence. It was an item of circumstantial evidence fit for jury consumption. It was not demeanour evidence.

[130] Second, it was not evidence of post-offence conduct. Put simply, the conduct described was not post-offence. It occurred contemporaneously with the possession that was the subject matter of the prosecution. The possession continued until the package was seized by police. The evidence was circumstantial evidence of contemporaneous conduct that could assist the trier of fact in determining whether the appellants were engaged in a joint venture and the nature of that venture.

[131] Third, this evidence was neither tendered nor relied upon by the trial Crown as evidence of post-offence conduct. Nor could it have been advanced on such a basis.

[132] Fourth, even if advanced as evidence of post-offence conduct, there is no per se rule of caution associated with this species of circumstantial evidence. Nor was there anything peculiar to this evidence that would require an ad hoc caution.

[133] Finally, trial counsel neither objected to the admissibility of this evidence nor sought any specific instruction about it. Although not dispositive, the failure to raise either issue tends to support a conclusion that trial counsel did not consider what occurred prejudicial to Pannu's defence.

Ground #3: Unreasonable verdict and failure to grant a directed verdict application

[134] The second ground of appeal common to both appellants is that the verdict of the jury finding each appellant guilty of possession of heroin for the purpose of trafficking is unreasonable. Bains also complains that the trial judge erred in dismissing [page571] his directed verdict application at the conclusion of the case for the Crown.

[135] To situate the argument in its proper context, it is helpful to recall the essential features of the case for the Crown at trial.

The essential facts

[136] Several events were uncontroversial at trial.

[137] Around 6:00 p.m. on October 3, 2010, Bains and Pannu were driving separate vehicles in the same traffic lane of Torbram Rd. at its intersection with Derry Rd. The vehicles were in the southbound left turn lane of Torbram Rd. A left turn would take each vehicle and driver eastbound on Derry Rd.

[138] In the same traffic lane were several unmarked police vehicles. The officers in those vehicles were dressed in plain clothes but wore vests and had police identification hanging around their necks.

[139] Bains and Pannu were driving cars that were of the same make, model and colour. Neither car was driven by its registered owner. Bains was driving a car registered to an owner in Brampton who had the same surname and lived at the same address as Pannu. And Pannu was driving a car registered to Bains at an address in Stoney Creek.

[140] Despite his position in the left turn lane, Pannu did not turn left. Instead, he crossed two lanes of traffic into the right turn lane and turned right. He drove west along Derry Rd., the opposite direction from his original signalled intention.

[141] In Bains' motor vehicle, the one registered to a person with the same last name who lived at the same address as Pannu, police found one kilogram of heroin in a vacuum sealed bag inside an opaque plastic bag stuffed under, but protruding from, the front passenger seat. A digital scale was also in the bag.

[142] Despite its proximity to the driver's seat, neither the plastic bag nor its contents were visible or accessible from the driver's seat. The heroin was of sufficient quantity for trafficking. Depending on how it was sold, the heroin had a value of up to $350,000. No fingerprint or DNA analysis was done on the bag or any of its contents.

The directed verdict motion

[143] The case for the Crown consisted entirely of circumstantial evidence. The Crown alleged that Bains and Pannu were in joint possession of the kilogram of heroin found in the car Bains was driving. The quantity, it was conceded at trial, supported a finding that the purpose of possession was trafficking. [page572]

[144] The defences advanced at trial focused on the essential elements of possession: knowledge and control. Bains submitted that the Crown had failed to adduce sufficient evidence to establish his knowledge of the drugs found in the car he was driving. Pannu alleged that the evidence was insufficient to establish either knowledge or control. Each sought a directed verdict of acquittal.

[145] The trial judge dismissed both motions for a directed verdict. Mindful of the circumstantial nature of the case for the Crown, the trial judge concluded that the evidence, taken as a whole, permitted a properly instructed jury acting reasonably to conclude that Bains and Pannu were engaged in a joint enterprise involving the sale of heroin. The trial judge did not consider the Crown's case to be strong but pointed out that the switch of vehicles, the value of the heroin (rendering it unlikely that anybody would leave it out of their control) and the tandem driving were sufficient to survive the challenge.

The arguments on appeal

[146] The appellant Bains acknowledged, as trial counsel had conceded, that a sufficient evidentiary predicate existed on the issue of control to warrant its consideration by the jury and not render such a finding, if it were made, unreasonable. But, Bains says, on the more expansive review required on an argument of unreasonable verdict, the cumulative effect of the evidence does not rise above speculation. Indeed, at either stage, the evidence of knowledge is at best speculative.

[147] Bains acknowledges that the evidence could support a finding that at some point a vehicle switch occurred. But the simple fact of a switch of vehicles affords no evidence of knowledge on Bains' part. The proximity of Pannu may support the inferences required in connection with Pannu, but none on the critical issue of Bains' knowledge.

[148] The appellant Pannu begins with a reminder about the nature and scope of review in which we are to engage in assessing the reasonableness of a jury verdict. This is no simple redo of a directed verdict decision. What we must determine, Pannu says, is whether 12 properly instructed jurors acting judicially could reasonably have concluded as they did. And in our analysis we are to review, analyze and, within the limits of appellate disadvantage, weigh the evidence and consider, through the lens of judicial experience, whether judicial fact-finding precludes the conclusion reached by the jury.

[149] In this case, Pannu says, the Crown was required to establish knowledge of the character of the substance in the [page573] vehicle driven by Bains and control over it. There was no evidence to support an inference that Pannu put the drugs in the vehicle and intended that they be there for his or somebody else's use or benefit. A mere change of vehicles cannot support such an inference. Nor can evidence of a lane change, abrupt or otherwise. Nor can post-arrest curiosity fill the gap.

[150] The respondent rejects the claims of error advanced by the appellants. The trial judge made no mistake in his dismissal of Bains' motion for a directed verdict of acquittal. And the guilty verdicts rendered by the jury, after an impeccable charge and no evidentiary response by either appellant, are reasonable.

[151] The respondent says that the only issue put in play by Bains on the directed verdict application was knowledge. The trial judge was cognizant of the limited weighing exercise in which he was to engage on this issue because of the circumstantial nature of the case for the Crown. He concluded that the combined force of the evidence of switching motor vehicles, driving in tandem, the significant value of the heroin and the telephone communications pointed to a joint venture in the distribution of contraband of which a jury could find Bains knew the nature.

[152] The respondent points out that in the unreasonableness analysis, the evidence reveals nothing that the lens of judicial experience, applied to the evidence adduced, would militate in favour of a finding of unreasonableness. No tainted witnesses gave evidence. No bizarre allegations were made. No eyewitness identification evidence was received. Only inferences from established facts. No evidence to support any hypothesis suggestive of innocence. And no evidence from either appellant.

The governing principles

[153] To determine the outcome of this ground of appeal, it is helpful to begin with a brief reminder of the essential elements of possession and the manner in which they may be proven where the subject matter is a controlled substance. Thereafter, I will discuss the principles that govern a directed verdict application in a case that consists wholly of circumstantial evidence before examining the scope of appellate review of decisions on directed verdicts and the standard we are to apply in deciding whether a jury verdict is unreasonable under s. 686(1)(a)(i).

The essential elements of possession

[154] Section 2(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, as amended ("CDSA"), incorporates the definition of "possession" found in s. 4(3) of the Criminal Code so that [page574] any CDSA offence of which possession is an essential element may be proven in any manner permitted by s. 4(3) of the Criminal Code.

[155] Under s. 4(3), possession includes personal possession, constructive possession and joint possession: R. v. Morelli, [2010] 1 S.C.R. 253, [2010] S.C.J. No. 8, 2010 SCC 8, at para. 15. Knowledge and control are essential elements in both personal and constructive possession: Morelli, at para. 15.

[156] Constructive possession does not involve an accused having physical custody of a subject matter. Constructive possession is established where an accused has the subject matter in the actual possession or custody of another person, or in any place, whether belonging to or occupied by the accused or not, for the benefit of the accused or someone else: Morelli, at para. 17. To establish constructive possession, the Crown must prove beyond a reasonable doubt that an accused [Morelli, at para. 17]

(i) knows the character of the object;

(ii) knowingly puts or keeps the object in a place; and

(iii) intends to have the object in the place for his or her use or benefit or the use or benefit of some other person.

[157] As with other offences, Crown counsel may prove the essential elements of constructive possession by direct evidence, by circumstantial evidence or by a combination of direct and circumstantial evidence. Where the subject matter of which an accused is alleged to be in possession is a controlled substance of significant value, it may be open to a trier of fact to infer not only knowledge of the nature of the subject, but also knowledge of the substance itself: R. v. Blondin, 1970 CanLII 1006 (BC CA), [1971] B.C.J. No. 656, 2 C.C.C. (2d) 118 (C.A.), at p. 121 C.C.C.; R. v. Fredericks, [1999] O.J. No. 5549 (C.A.), at paras. 3-4; R. v. To, [1992] B.C.J. No. 1700, 1992 CanLII 913 (C.A.); and R. v. Bryan, [2013] O.J. No. 673, 2013 ONCA 97, at para. 11. It is a reasonable inference that such a valuable quantity of drugs would not be entrusted to anyone who did not know the nature of the contents of the bag or other container.

The directed verdict standard

[158] The standard a judge is to apply when asked to decide a directed verdict application at the conclusion of the case for the Crown is the same standard a justice applies in deciding whether to order committal at the conclusion of a preliminary inquiry under s. 548(1) of the Criminal Code. The issue to be [page575] determined is whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilt: United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, [1976] S.C.J. No. 106, at p. 1080 S.C.R.; R. v. Monteleone, 1987 CanLII 16 (SCC), [1987] 2 S.C.R. 154, [1987] S.C.J. No. 52, at p. 160 S.C.R.; and R. v. Arcuri, [2001] 2 S.C.R. 828, [2001] S.C.J. No. 52, 2001 SCC 54, at para. 21.

[159] The standard on a directed verdict application does not differ according to whether the Crown's case consists of direct or circumstantial evidence. But the nature of the judge's task varies according to the nature of the evidence adduced. Where the evidence of any essential element is entirely circumstantial, the judge engages in limited weighing of the evidence to determine whether the evidence, considered as a whole, is reasonably capable of supporting the inference the Crown seeks to have the trier of fact draw about that essential element: Arcuri, at para. 23.

[160] The limited weighing of circumstantial evidence on an application for a directed verdict does not entitle the judge to draw factual inferences, assess credibility or ask whether he or she would find guilt established if assigned the role of trier of fact: Arcuri, at para. 23. Provided the judge concludes that the evidence as a whole, if believed, could reasonably support an inference of guilt, a directed verdict motion will fail: Arcuri, at paras. 23, 30, 33.

The unreasonable verdict test

[161] The reasonableness of a jury verdict focuses on the conclusion reached at trial -- the verdict -- and measures it against the totality of the evidence adduced at trial: R. v. Sinclair, [2011] 3 S.C.R. 3, [2011] S.C.J. No. 40, 2011 SCC 40, at paras. 69, 78, 81.

[162] Under s. 686(1)(a)(i), our function extends beyond merely finding that there was evidence adduced at trial to support a conviction, the verdict rendered by the jury. We are to determine on the evidence as a whole whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered: R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, [1987] S.C.J. No. 51, at p. 186 S.C.R.; Sinclair, at para. 79. In making this determination, we are required to ask not only whether there is evidence in the record to support the verdict, but also whether the jury's conclusion conflicts with the bulk of judicial experience: R. v. Biniaris, [2000] 1 S.C.R. 381, [2000] S.C.J. No. 16, 2000 SCC 15, at para. 40; R. v. H. (W.), [2013] 2 S.C.R. 180, [2013] S.C.J. No. 22, 2013 SCC 22, at para. 28. [page576]

[163] On review of a jury verdict for unreasonableness, we are to treat the verdict rendered with great deference, according due weight to the jury who were ear and eyewitnesses to the evidence as it unspooled at trial: H. (W.), at paras. 2, 27. See, also, R. v. François, 1994 CanLII 52 (SCC), [1994] 2 S.C.R. 827, [1994] S.C.J. No. 66, at p. 837 S.C.R. We are not to act as a "thirteenth juror". Nor are we simply to give effect to vague unease or lurking doubt based on our own review of a sterile printed record. Nor are we to label a verdict "unreasonable" just because three of us at one remove would have a reasonable doubt on our own review of the printed record: H. (W.), at para. 27. We must ask ourselves two questions [H. (W.), at para. 2]:

(i) whether the jury's verdict is supportable on any reasonable view of the evidence; and

(ii) whether proper judicial fact-finding, applied to the evidence as a whole, precludes the conclusion reached by the jury.

[164] A final point. In a determination of whether a jury verdict survives a reasonableness analysis under s. 686(1) (a)(i), an appellate court is entitled to take into account an appellant's failure to testify: R. v. Corbett, 1973 CanLII 199 (SCC), [1975] 2 S.C.R. 275, [1973] S.C.J. No. 157, at pp. 280-81 S.C.R.

The principles applied

[165] To take first Bains' submission that the trial judge erred in law in dismissing his motion for a directed verdict.

[166] I would not give effect to this ground of appeal.

[167] The trial judge provided cogent reasons for dismissing the motions for directed verdicts of acquittal. He stated and applied the proper test, acknowledged the circumstantial nature of the case for the Crown and set out in detail the inferences available from that evidence. His reasons demonstrate a thorough understanding of the essential elements of possession, that is to say, knowledge and control of the contraband; reveal no misapprehension of the evidence adduced; and maintain the distinction between permissible inferences and impermissible speculation. They reflect a correct disposition of the motion for directed verdicts of acquittal and warrant no interference by this court.

[168] Turning to the argument that the jury's verdict is unreasonable, I would also reject that ground of appeal.

[169] In my respectful view, there was evidence on the basis of which a reasonable jury acting judicially could be satisfied that [page577] the appellants were in possession of one kilogram of heroin for the purpose of trafficking.

[170] The jury was entitled to infer that the appellants were engaged in a joint venture. Each was driving a vehicle registered to or connected with the other. For all practical purposes, the vehicles were identical. Same make, model and colour. The cars were a few vehicles apart in the same lane at the same time apparently heading in the same direction. After Pannu changed routes, he returned to the area where Bains was headed or located. He changed directions at least twice to do so. He contacted Bains by phone very shortly after they were cars apart at the same intersection.

[171] The jury was also entitled to infer that the joint venture in which Bains and Pannu were involved was the possession of heroin for the purpose of trafficking.

[172] Police found one kilogram of heroin and a digital scale in a plastic bag under the front passenger seat of the car Bains was driving. The registered owner of the car was a person who lived at the same address as Pannu. At trial, Bains acknowledged that there was evidence on which the jury could find that he had control of the package in the vehicle he was driving.

[173] It was open to the jury to infer from the quantity and value of the heroin found in the car Bains was driving that the drugs would not have been left unattended or entrusted to somebody who did not know the nature of the contents of the bag.

[174] It was also open to the jury to infer that Pannu had knowledge of and a measure of control over the heroin. The vehicle in which the heroin and scale were found was registered to a person with the same last name and same residence address as Pannu. Bains, who did not live in the area, was driving this vehicle. Pannu was driving Bains' car. The vehicles were travelling in close proximity in the same direction. When Pannu changed his direction of travel, he returned several times to the area where Bains had been stopped and called him on his cellphone. Pannu drove to the parking lot to recover the vehicle in which the heroin and scale were found.

[175] In our assessment of the reasonableness of the verdicts rendered at trial, we are also entitled to take into account the appellants' failure to testify. On its own, the failure to testify does not justify an inference of guilt. What follows from a failure to testify, however, is the absence of an innocent explanation of inculpatory facts and thus a basis to conclude otherwise than guilt.

[176] The "lens of judicial experience" refers to our examination of the cogency of the evidence adduced at trial, as informed [page578] by our awareness of the risks of wrongful convictions associated with certain kinds of cases and certain kinds of evidence and the witnesses who provide it. As an institutional participant in the criminal justice system, we have an appreciation of the risks of a wrongful conviction that an individual jury assigned the task of deciding a single case cannot have.

[177] Our task is to consider whether the jury's conclusion conflicts with the bulk of judicial experience. A verdict is unreasonable when, in all the circumstances of the case, judicial fact-finding precludes the conclusion reached by the jury. In this case, the appellants have failed to bring their case within what is required for us to interfere.

[178] The evidence adduced at trial was brief and uncomplicated. The issues were clearly defined. For Bains, knowledge. For Pannu, knowledge and control. No tainted witnesses. No bizarre allegations. No risk of prejudice from the nature of the offence charged or evidence of extrinsic misconduct. No issues of credibility of witnesses or the reliability of their testimony.

[179] The evidence the jury had to consider was entirely circumstantial. Their verdict depended on the inferences they would draw from that evidence taken as a whole. It is a task for which jurors are well, perhaps uniquely, equipped. The instructions they received were without blemish. Their conclusion in this case coincides with the bulk of judicial experience.

The Sentence Appeal

[180] Bains and Pannu contend that the sentences of imprisonment of nine years imposed by the trial judge on each of them are unfit. Each seeks a reduction in the term of imprisonment imposed upon him.

The positions of the parties at trial

[181] At trial, Crown counsel sought a sentence of imprisonment of 12 years for each appellant. Counsel for Bains submitted that a sentence of seven years would be fit for Bains as the person in actual possession of the heroin. Counsel for Pannu sought a sentence of five to six years, pointing out that Pannu was not in actual possession of the drugs.

The reasons of the trial judge

[182] The trial judge identified the range of sentence appropriate for possession of one kilogram of heroin for the purpose of trafficking as a sentence of imprisonment in a penitentiary for six to 12 years. He rejected the trial Crown's submission of 12 years because of an absence of any of the statutory aggravating factors. [page579] It was his view that a term of imprisonment at the lower- or mid-level of the range was apt.

[183] The trial judge concluded that the circumstances did not warrant a distinction between the appellants. Each was a first offender with a good work record. They acted together in the transportation of the heroin. Their conduct was deliberate, reflective of prior planning and an equivalent recognition of the risk assumed.

[184] The trial judge considered that the predominant sentencing objectives were general and specific deterrence as well as denunciation. He considered the absence of prior criminal records and the presence of family support and work records as mitigating factors. He also pointed out the highly addictive nature of the heroin, its promotion of other crimes to sustain its users' habits and its ruination of lives and families.

The arguments on appeal

[185] The appellant Pannu acknowledges at the outset that the trial judge correctly identified six to 12 years as the appropriate range of sentence. He properly noted the absence of any statutory aggravating factors. He readily took into account the unblemished antecedents and solid family and work backgrounds of both appellants. His rejection of the top-of-range sentence proposed by the trial Crown was proper.

[186] Pannu says that the trial judge erred in principle by applying a sentencing decision in an importing case to determine a fit sentence for convictions of possession for the purpose of trafficking. Importing is a more serious offence. It attracts a more substantial carceral sentence. The sentence imposed here should have been about seven years, not nine years, as would have been fit for importing the same quantity of heroin.

[187] Bains made no oral submissions on the appeal from sentence, simply adopted in his factum the argument advanced by Pannu. Bains seeks a reduction in his sentence from nine to five or six years.

[188] The respondent resists any variation in the sentences imposed by the trial judge. Despite a misapprehension in the applicable range of sentence -- the range is eight to 12 years, rather than six to 12 years as described by the trial judge -- the sentences imposed are fit.

[189] The respondent rejects any suggestion that the trial judge erred in principle by treating R. v. Mensah, 2003 CanLII 57419 (ON CA), [2003] O.J. No. 1096, 170 O.A.C. 244 (C.A.) as a benchmark for sentencing the appellants on their convictions of the lesser offence of possession for the purpose of trafficking. The trial judge expressly pointed [page580] out that Mensah was an importing case and that importing was a more serious offence than trafficking or possession for the purpose of trafficking. Mensah did not purport to establish a benchmark for first offender importers, let alone first offenders who possessed heroin for the purpose of trafficking, and the trial judge made no such use of it.

Discussion

[190] Although I would grant leave to appeal sentence, I would dismiss the appeals from sentence. My reasons are brief.

[191] First, we must accord great deference in reviewing sentencing decisions made by trial judges. In the absence of an error in principle, a failure to consider a relevant factor or an over or under emphasis of appropriate factors, we should only interfere to vary a sentence if the sentence is demonstrably unfit.

[192] Second, the sentences imposed are within the range of sentence the appellants themselves concede is appropriate for first offenders convicted of possession of heroin for the purpose of trafficking. The sentences sit at the midpoint of the range the appellants say is apt, although some authority suggests that the appropriate range is nine to 12 years for similar amounts of heroin: R. v. Shahnawaz (2000), 2000 CanLII 16973 (ON CA), 51 O.R. (3d) 29, [2000] O.J. No. 4151, 149 C.C.C. (3d) 97 (C.A.), at para. 6.

[193] Third, read as a whole, the reasons reflect no error in principle. The trial judge identified and applied the predominant sentencing objectives of deterrence and denunciation. He took into account the unblemished antecedents of the appellants, their family support and consistent employment history. But they were also found in possession of a substantial amount of a highly addictive drug. It is a reasonable inference that their purpose was financial gain. Nothing more. Nothing less. For those so inclined, the price upon conviction must be steep.

[194] Fourth, I am not satisfied that the trial judge used an importing case as the benchmark for sentencing the appellants on convictions of possession for the purpose of trafficking. Indeed, he cited the very case that held it was wrong to do so in giving his reasons for sentence.

Conclusion

[195] For these reasons, I would dismiss the appeals from conviction. I would grant leave to appeal sentence but dismiss the appeals from sentence.

Appeal dismissed.

End of Document