Court of Appeal for Ontario

Date: March 21, 2017 Docket: C56636 Judges: MacPherson, Juriansz and Rouleau JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Harsharn Deol Appellant

Counsel

For the Appellant: Alan D. Gold

For the Respondent: Rick Visca

Hearing

Heard: February 10, 2017

On appeal from: The convictions entered on October 12, 2012 and the sentence imposed on January 21, 2013 by Justice Nancy M. Mossip of Superior Court of Justice, sitting with a jury.

Decision

Juriansz J.A.:

[1] Introduction

[1] The appellant was convicted at a jury trial of importing and conspiracy to import heroin, and of possession of and conspiracy to possess heroin for the purposes of trafficking. He appeals his convictions on all four counts alleging several errors in the trial judge's instructions to the jury. He also appeals his sentence.

[2] For the reasons that follow, I would dismiss the conviction and sentence appeals.

A. Factual Overview

[3] The allegations at trial were that the appellant, along with three co-accused, Godwin Deane, Tajinder Singh Lally and Gurvinder Singh Athwal, had imported approximately 11.9 kilograms of heroin into Canada on or about December 15, 2009. The RCMP had detected the heroin and made a controlled delivery to a body shop at 1094 Westport, Mississauga. RCMP surveillance officers made observations about the arrival of a silver Nissan Sentra that they subsequently followed. The driver was later identified as Harvinder Singh. Harvinder Singh was offered an immunity agreement in exchange for testifying and the charges against him were stayed.

[4] The prosecution's case against all accused rested heavily on the testimony of Harvinder Singh. The co-accused, Deane, testified in his own defence. The other co-accused did not, and no other witnesses on behalf of the defence were called. The jury convicted the appellant and Athwal, and acquitted Deane and Lally.

[5] The RCMP intercepted telephone calls made by a "Jaswinder Singh" to the customs broker and to Harvinder Singh, Athwal, Deane and Lally. There were no intercepted calls from Jaswinder Singh to the appellant, Deol. The Crown's theory was that Jaswinder Singh was in fact the appellant. Three witnesses identified the voice of Jaswinder Singh on the intercepted telephone calls as that of the appellant. The three witnesses were Harvinder Singh, a cousin and former business partner of the appellant named Paramjit Deol, and the co-accused Deane, who had received one of the intercepted calls from the telephone number associated with Jaswinder Singh.

[6] At trial, both prosecution and defence saw that the central question the jury had to decide was whether it was satisfied beyond a reasonable doubt that the appellant was Jaswinder Singh. The appellant's trial counsel said to the jury:

So let's talk about what this case is all about. This is what this issue – the real issue here. The real issue for you to determine is whether you are satisfied beyond a reasonable doubt that Mr. Deol was indeed Jaswinder Singh.… Identity is an essential element of all four of the charges the Crown must prove. Once you have found that there is a reasonable doubt that Mr. Deol was Jaswinder Singh, in other words, okay, you know what, we're not sure. We're not sure if he's Jaswinder Singh. I'll get to reasonable doubt in a second. It is your duty to find him not guilty of all the charges. That's the defence here, and that's what I'm asking you. I just boiled it down into a nutshell and I'm going to get into reasonable doubt.

[7] The Crown put it this way, "[t]his case is about the voice of Harry Deol. If I have not satisfied you on that, I have some serious problems".

[8] The trial judge agreed this was the real issue, saying "[t]he real issue, members of the jury, is whether you are satisfied beyond a reasonable doubt that Mr. Deol is Jaswinder Singh on the intercepts." The trial judge explained that this was the real issue because:

The person who identifies himself as Jaswinder Singh on the intercepts is clearly involved in the pickup and delivery of the coolers containing heroin from the customs broker. That person has arranged for the payment of all the fees and the payment for the delivery of the shipment to a location provided by them.

B. Conviction Appeal

[9] The appellant alleges the trial judge failed to provide proper instructions to the jury, and especially failed to caution the jury in response to improper submissions made by other counsel. The adequacy of the trial judge's instructions to the jury must be reviewed in the context of the issues joined at trial. The closing addresses of counsel are also relevant in considering alleged defects in the trial judge's instructions.

(1) No instruction on the frailties of voice identification

[10] The appellant submits the trial judge erred by failing to instruct the jury on the frailties of voice identification. I am not persuaded that such an instruction was required in this case. The three witnesses who identified the voice on the intercepted communications involving "Jaswinder Singh" as the appellant's were each quite familiar with the appellant and his voice. At trial, the defence attacked the credibility of these witnesses, and not their ability to reliably identify the appellant's voice. There was good reason for the defence approach as all three witnesses were familiar with the appellant and his voice. The witness Deane even testified that he had a telephone conversation with the appellant that emanated from the number associated with Jaswinder Singh.

[11] The trial judge instructed the jury that it had to be satisfied beyond a reasonable doubt that the voice of Jaswinder Singh on the intercepts was that of the appellant, and pointed out that there was no independent evidence to that effect.

[12] The record in this case is inadequate to support the broad proposition advanced on appeal that a trial judge must always instruct the jury on the frailties of voice identification.

[13] I do not give effect to this ground of appeal.

(2) Erroneous Vetrovec instruction and prior inconsistent statements

[14] The appellant submits the trial judge's Vetrovec instruction pertaining to Harvinder Singh was flawed. In a related argument, he submits that the trial judge failed to provide the jury with adequate guidance as to how to assess Harvinder Singh's inconsistent statements made under oath.

[15] In my view, the instruction was satisfactory. Harvinder Singh was indeed an unsavoury witness. Not only had he been granted immunity, there were other features of his testimony that were capable of undermining his credibility. The trial judge provided careful instructions about his testimony emphasizing the serious charges he was facing, and the various inconsistencies in his evidence at trial and the previous statements he had made to the police and at the preliminary hearing.

[16] The trial judge instructed the jury that it should look for some confirmation of Harvinder Singh's evidence "from somebody or something other than Harvinder Singh" before relying on his testimony. The trial judge added that "[t]o be confirmatory, the testimony of another witness or witnesses or other evidence should help restore your faith in relevant parts of Harvinder Singh's evidence." The trial judge provided the jury with several illustrations of independent evidence that could be seen to confirm aspects of Mr. Singh's testimony. I am not persuaded that the illustrations were immaterial.

[17] I note that the trial judge's charge followed most strenuous attacks on the credibility of Singh by counsel for the appellant's co-accused. Still, the trial judge reviewed the prior inconsistent statements of Singh, and told them they could consider all of his prior testimony to have been given under oath or solemn affirmation. She told the jury that it should consider "the fact, nature and extent of any differences" in deciding the importance of inconsistent statements and in deciding whether they would believe and rely upon the witness's testimony. The jury was also instructed to consider any explanation the witness gave for the difference.

[18] These instructions and the robust attack on Harvinder Singh by all defence counsel ensured the jury was well-equipped to evaluate his credibility.

[19] I note that the appellant's trial counsel was given the opportunity to review the trial judge's proposed charge and suggested no modification of the charge in these regards.

[20] It is apparent that the jury approached the evidence of Harvinder Singh with the requisite caution as it acquitted Lally where the Crown's case against Lally depended entirely on the testimony of Harvinder Singh.

[21] I do not give effect to these grounds of appeal.

(3) Need for a special instruction on applying Deane's evidence to the appellant

[22] The appellant submitted that the trial judge erred by failing to give a special "Vetrovec-type" instruction on the use of the evidence of Deane as it applied to the appellant. Appellant's counsel submitted that this court indicated in R. v. Oliver, 28 C.R. (6th) 298 (Ont. C.A.), leave to appeal to S.C.C. refused (2006), 28 C.R. (6th) 298, that such a caution is appropriate where an accused incriminates a co-accused in his or her testimony.

[23] In response, the Crown stated that since the appellant's trial counsel did not request such an instruction, this court's decision in R. v. Anigwe, 2016 ONCA 755, applies. In Anigwe, at para. 5, this court held that absent any request by appellant's counsel for such a special instruction, the trial judge's failure to give one "cannot be characterized as non-direction amounting to misdirection." The Crown, however, was mistaken. At the pre-charge conference, the appellant's trial counsel clearly requested that the trial judge provide a "Vetrovec type instruction … on Deane's evidence."

[24] That said, I am not persuaded that this court's decision in Oliver goes as far as the appellant contends. In Oliver, such a cautionary instruction was given at trial, and the appeal was brought by the accused, Mr. Morrison, whose testimony was the object of the instruction. The trial judge instructed the jury as follows:

I would add this caution. Mr. Morrison has given testimony that tends to show that only Mr. Oliver was involved in any assault on Mr. Pace. You should consider that testimony with particular care because he may have been more concerned about protecting himself than about telling you the truth. Bear that in mind when you decide how much or little you can believe of or rely on what Mr. Morrison told you about Mr. Oliver's involvement in deciding this case.

[25] Mr. Morrison's appeal was unsuccessful, as this court concluded, at para. 57, that "[t]he impugned instruction achieved the appropriate balance. The trial judge told the jury that his 'caution' should be borne in mind when considering Morrison's evidence as it applied to Oliver's involvement in the homicide." Doherty J.A., writing for the court, added the observation, at para. 58, that since "the 'caution' is justified exclusively as a protection of the co-accused's fair trial rights, trial judges should canvass with counsel for the co-accused the need for any 'caution' before instructing the jury. If counsel take the position that no 'caution' is warranted, none should be given." Doherty J.A. made the additional point, at para. 60, that:

Where a trial judge determines that the fair trial rights of a co-accused require a "caution" with respect to the testimony of the other accused, the trial judge should expressly tell the jury that the caution applies only to the case against the co-accused and has no application when considering the case against the accused who has testified. [Emphasis added.]

[26] As I read the decision, Doherty J.A.'s suggestion of what a trial judge should expressly tell the jury is predicated on the trial judge first determining that the fair trial rights of a co-accused require such a caution. This is clear because he earlier stated, "The need to balance the fair trial rights of co-accused is a case-specific exercise." Oliver does not mandate or even encourage such a caution be routinely given. Oliver makes clear that a trial judge has the discretion to give such a caution where he or she considers the fair trial rights of a co-accused require it.

[27] The case-specific exercise requires the trial judge, who has the best appreciation of all the circumstances, to determine whether the giving or refusing of such a caution achieves the soundest balance of the competing interests of the two co-accused.

[28] Here, the trial judge believed that she could not instruct the jury to consider the testimony of an accused person with caution. Counsel for the appellant did not provide her with the Oliver decision, even though he was given the opportunity overnight to find some authority on the point. Though the trial judge proceeded on a mistaken view of the law, the trial was not rendered unfair. I say that for several reasons.

[29] I think it likely the trial judge, had she realized she had the necessary discretion, would not have considered the caution necessary to protect the fair trial rights of the appellant. The transcript indicates she was concerned about the fair trial rights of Deane. Counsel for Deane had opposed the appellant's trial counsel's request for a warning asserting it had no "validity". And, the appellant's trial counsel argued vigorously in his closing address that Deane should not be believed because he was lying to save himself. He emphasized this point over and over again, and closed by exhorting the jury not to believe Deane "who knew he was facing 12 to 14 years when he lied to the police. Same thing when he's lying to you."

[30] The trial judge did specifically review for the jury inconsistencies between what Deane said at trial and what he had said in a statement he had given the police at the time of his arrest. She prefaced this review by telling the jury, "The fact that Mr. Deane has previously said something different from what he testified here is one of many factors for you to consider when you decide how much or little you will believe or rely upon the evidence of Mr. Deane in deciding this case." The obvious interest of Deane in self-exculpation would not have been lost on the jury.

[31] In my view, at the end of the day, when the jury retired to consider the case, it was well equipped to properly assess Deane's evidence as it pertained to the appellant. It would have been manifestly clear to the jury that Deane had a motivation to lie.

[32] Consequently, I would not give effect to this ground of appeal.

(4) No remedial instruction on the appellant's right not to testify

[33] In this case, trial counsel for Deane told the jury pointedly that the appellant:

had every right to testify and swear under oath that the voice of Jaswinder Singh on the recordings was not his. All he had to do was walk across the floor and swear on the holy book of his choice or affirm. He chose not to make that walk to the witness box.

[34] The appellant argues that the trial judge erred in failing to give a specific remedial instruction responding to Deane's counsel's remarks, as discussed in the Supreme Court's decision in R. v. Prokofiew, 2012 SCC 49, [2012] 2 S.C.R. 639. Instead, the appellant submits the trial judge compounded the prejudice by summarizing Deane's position to the jury as follows:

The defence submits that there is no doubt that Harry Deol assumed the name of Jaswinder Singh. Mr. Deol had every opportunity to step into the witness box and say that Jaswinder Singh's voice was not his voice. He did not do so.

[35] Counsel for Deane had vetted his proposed remarks with the trial judge beforehand, and the appellant's trial counsel agreed he could make them. However, this vetting took place on October 5, 2012 before the Supreme Court released its judgement in Prokofiew on October 12, 2012. The trial judge instructed the jury on October 11, 2012.

[36] Prokofiew was a fraud case with two co-accused. Prokofiew did not testify but his co-accused did and incriminated him. In his closing address, the co-accused's counsel implicitly invited the jury to treat Prokofiew's silence at trial as evidence of guilt by saying "Did [Mr. Prokofiew] have something to hide or did he simply have no response that could help him since there is no point in trying to contradict the truth?" Moldaver J., writing for the majority of the Supreme Court, observed, at paras. 5-6, that the co-accused's counsel could have relied on the fact that his client had testified to argue that he was innocent and had "nothing to hide" and that his testimony stood uncontradicted. However, the co-accused's counsel could not "invite the jury to use Mr. Prokofiew's silence at trial as evidence, much less evidence of guilt."

[37] The Supreme Court dismissed Prokofiew's appeal, ruling that although an explicit remedial instruction from the trial judge would have been preferable, his jury charge, when considered as a whole, was adequate.

[38] In this case, Deane's counsel's remarks to the jury about the appellant's failure to testify were more pointed and emphatic than the remark in Prokofiew. On the other hand, the trial judge in this case gave the jury much more extensive and explicit instructions about the right to silence and the presumption of innocence than did the court in Prokofiew. The trial judge told the jury "the right to remain silent is fundamental, as is the right to choose when and how to exercise it". She made clear that:

The right to silence applies to all accused, including the three accused who did not testify. It is very important that you remember what I said [earlier] about the presumption of innocence and the burden of proof. As I said there and I want you to keep this foremost in your minds, accused persons do not have to testify or prove anything in a criminal trial. It would be wrong for you to consider this fact in your deliberations on the guilt or innocence [of the accused].

[39] Moreover in this case, counsel for the three accused who did not testify made strong submissions about the right to silence.

[40] Considering the jury charge as a whole and in the context of each counsel's closing address, I reach the same conclusion as did the court in Prokofiew. Although an explicit remedial instruction from the trial judge responding to Deane's counsel's remarks would have been preferable, the instructions that were given in the instant case, when considered as a whole, were adequate. The jury would have understood the appellant was presumed innocent, had the right not to testify, and the Crown bore the burden of proving his guilt beyond a reasonable doubt on the evidence called at trial.

[41] I do not give effect to this ground of appeal.

(5) Deane's counsel's closing address and the appellant's right to a fair trial

[42] The appellant submits that his right to a fair trial was prejudiced by the highly emotional and pejorative commentary of the counsel for Deane and the failure of the trial judge to issue limiting and corrective instructions.

[43] Counsel for Deane described the appellant as "exceedingly devious", "absolutely ruthless" and "slithering". The appellant also submits that counsel for Deane engaged in a personal attack on the appellant's trial counsel, saying:

And not only is he a – ruthless person who will do such a thing who will – who will do such a thing, the ruse doesn't stop there. He's so ruthless that his lawyer will then attack the innocent fall guy when the innocent fall guy takes the stand. In my respectful submission, he is so ruthless that he will do virtually anything to transfer his own blame from himself to Mr. Deane.

And, if, in fact, [trial counsel for the appellant] takes the position with you that it's not his client… an empty barrel makes the most noise.

[44] The appellant acknowledges that this was a case of a "cutthroat" defence for the co-accused and, as such, finger-pointing among the four accused was expected and acceptable. The appellant also recognized that counsel for Deane was expected to enthusiastically and forcefully defend his client, including in his closing address to the jury. However the appellant submits that the inflammatory comments from Deane's counsel "crossed into personal attacks that impugned the Appellant's character and appeared designed to turn the jury against the Appellant."

[45] The appellant submits the trial judge should have given a corrective instruction for the inflammatory and inappropriate comments of counsel for Deane.

[46] I am not persuaded by this submission. The appellant's trial counsel made no objection and did not request the trial judge to caution the jury. He, too, presented an animated and rhetorical closing address. The trial judge was best situated to assess the dynamics of the trial and to determine whether any specific instruction was necessary to ensure that no accused was prejudiced by the rhetoric of counsel.

(6) Conclusion on conviction appeal

[47] I would dismiss the appeal from conviction.

C. Sentence Appeal

[48] The appellant appeals his sentence of 16 years, arguing it was harsh and excessive as he was a first time offender. He recognizes that the leading case of R. v. Sidhu, 2009 ONCA 81, 94 O.R. (3d) 609, at para. 14, sets out that, absent exceptional or extenuating circumstances, first offender couriers who import large amounts of high grade heroin should expect to receive a sentence in the range of 12 to 17 years. In that case, Sidhu had pled guilty and his ultimate sentence was 14 years and 9 months. It cannot be said that the appellant's sentence was outside the range and manifestly unfit.

[49] As a consequence, I would dismiss the sentence appeal.

Released: March 21, 2017 ("RGJ")

"R.G. Juriansz J.A."

"I agree. J.C. MacPherson J.A."

"I agree. Paul Rouleau J.A."