Court of Appeal for Ontario

Date: March 21, 2017 Docket: C56612

Judges: MacPherson, Juriansz and Rouleau JJ.A.

Between

Her Majesty the Queen Respondent

and

Gurvinder Singh Athwal Appellant

Counsel

Gurvinder Athwal, acting in person Brian H. Snell, appearing as duty counsel Rick Visca, for the respondent

Heard: February 7 and 10, 2017

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

Decision

Juriansz J.A.:

[1] The appellant appeals his conviction on one count of conspiracy to possess heroin for the purposes of trafficking. He also appeals the sentence imposed of 12 years imprisonment.

A. Conviction Appeal

(1) Erroneous instruction on the conspiracy count

[2] Duty counsel, on behalf of the appellant, points out an error in the trial judge's instruction to the jury on the first question they should consider in analysing the conspiracy count, i.e. that the trier of fact must be satisfied beyond a reasonable doubt that the alleged conspiracy in fact existed, irrespective of membership: R. v. Carter, [1982] 1 S.C.R. 938, at p. 947. While that aspect of the trial judge's charge is erroneous, when the charge is read as a whole, it is evident the trial judge simply misspoke while giving this instruction. The error does not make a new trial necessary as the first question in the conspiracy analysis was not at issue at trial; defence counsel conceded there was an agreement to possess heroin for the purpose of trafficking. After giving the erroneous instruction, the trial judge went on to tell the jury, "Further, defence counsel do not really take issue with the legal finding by you that there was an agreement between persons to possess a controlled substance for the purpose of trafficking in it."

[3] The appellant's defence at trial, like that of his co-accused, was he was not a member of the conspiracy. The trial judge's instructions made it amply clear to the jury they had to be satisfied beyond a reasonable doubt that the appellant was a member of the conspiracy, and if they were not, they had to find him not guilty. The trial judge gave this instruction repeatedly and, under the heading "Real Issue", she closed her charge on conspiracy by saying, "Once again, members of the jury, the real issue for you to decide with respect to this count is whether you are satisfied beyond a reasonable doubt with respect to each accused separately, that they were a member of the conspiracy…".

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

(2) Erroneous Vetrovec instruction and prior inconsistent statements

[5] Duty counsel also submits the trial judge erred in her Vetrovec caution regarding Harvinder Singh, who testified under an immunity agreement. 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 under oath. These arguments were also advanced by the appellant's co-accused Harsharn Deol, whose appeal on these issues was heard at the same time.

[6] As I explained in my reasons in R. v. Deol, 2017 ONCA 221, the trial judge's Vetrovec instruction was satisfactory as were her instructions regarding Singh's inconsistent statements. With particular regard to the appellant, the trial judge told the jury that telephone logs, police surveillance, and video surveillance supported the evidence of Singh that he received a call from the appellant asking to meet him at the Real Canadian Superstore at Steeles Avenue and Hurontario Street on December 23, 2009. Duty counsel points out that this is inconsistent with Singh's evidence in cross-examination in which he said he called the appellant and asked him to come to the Superstore. That may be so, but later the trial judge noted this inconsistency, telling the jury "through cross-examination of Mr. Singh, the evidence at trial was that Mr. Athwal went to the [Superstore] at the request of Mr. Singh to help him".

[7] In regard to duty counsel's final submission that the trial judge failed to adequately highlight Singh's inconsistent statements under oath prior to trial and at trial, I note that the trial judge's charge followed most strenuous attacks on Singh's credibility by counsel for the appellant's co-accused. The trial judge did review some of Singh's inconsistencies 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.

[8] Duty counsel submits the fact that the jury acquitted two of the appellant's co-accused does not demonstrate the jury approached Singh's testimony with the appropriate caution. The Crown's case against the co-accused Lally depended entirely on the testimony of Singh, and the jury decided to acquit him. On the other hand, the Crown's case against the appellant did not depend entirely on Singh's evidence. The testimony of the police surveillance officers and the evidence of the whereabouts of the two cell phones that Singh testified belonged to the appellant provided some circumstantial support for Singh's testimony incriminating the appellant. I accept the acquittal of Lally shows the jury was cautious in assessing Singh's testimony.

[9] Finally, 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.

[10] The conviction appeal is dismissed.

B. Sentence Appeal

[11] On the appellant's sentence appeal, duty counsel submits the sentence should have fallen at the low end of the range as the appellant was a 36 year-old first-time offender with six young children who played a minor role in the crime and has good prospects for rehabilitation. Defence counsel at sentencing stressed the appellant's exceptional personal and family circumstances in that he was a hard-working family man and that imprisonment would be difficult for his family, both financially and emotionally. The trial judge took these into consideration and imposed a sentence well within the range. There is no basis upon which I would interfere.

[12] The appeal from sentence is dismissed.

Released: March 21, 2017 ("RGJ")

"R.G. Juriansz J.A." "I agree J.C. MacPherson J.A." "I agree. Paul Rouleau J.A."