Court of Appeal for Ontario

Date: 2018-03-20 Docket: C63254

Judges: Sharpe, Pardu and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Narankar Dhillon Appellant

Counsel

Alan Gold and Alex Palamarek, for the appellant

Milica Potrebic, for the respondent

Heard and released orally: March 19, 2018

On appeal from the conviction entered on October 29, 2016 by Justice Thomas A. Bielby of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

Conviction Appeal

[1] The appellant appeals his conviction for trafficking heroin and seeks leave to appeal the sentence of seven years' imprisonment.

[2] The appellant, under surveillance at the time, was observed handing a coffee cup to another individual in exchange for some paperwork in a Home Depot parking lot. The recipient of the coffee cup, Mr. Singh, returned to a vehicle being driven by another man and drove off. The police followed that vehicle and, within a very few minutes, stopped it and found a coffee cup in the cup holder next to Mr. Singh. The coffee cup contained two plastic bags holding approximately 100g of heroin.

[3] The appellant argues that the trial judge failed to come to grips with all the evidence in this circumstantial case. The appellant submits that the trial judge failed to consider what he says are two reasonable inferences: i) that the cup found in the car might not have been the cup exchanged; and ii) that the heroin could have been placed in the cup by the driver who was found to have a small quantity of heroin in his wallet.

[4] We are unable to agree with the appellant's submission. In his reasons, the trial judge reviewed the evidence and explained why he accepted the testimony of the four police witnesses. The appellant had proceeded directly from his place of business to the Home Depot parking lot without stopping along the way. He emerged from his vehicle with a coffee cup in his hand and handed that cup to Mr. Singh. Within a very few minutes, the cup holding the heroin was found in the cup holder in the car beside where Mr. Singh was seated. The police found no other coffee cup in the vehicle.

[5] In our view, it was open to the trial judge to conclude as he did, at para. 50, that on this evidence "the only logical and reasonable inference to draw is that the cup in the accused's hand contained heroin when it was delivered by the accused to Mr. Singh".

[6] Accordingly, the conviction appeal is dismissed.

Sentence Appeal

[7] At the sentencing hearing, the Crown asked for a sentence of eight years. Counsel for the appellant argued that the range was six to seven years and asked for a six year sentence.

[8] The appellant was a first offender, 55 years old, with a family and good employment record. The quantity of heroin involved, having a street value between $12,000 and $15,000, required a sentence that emphasized denunciation and general deterrence. While perhaps at the high end, given the amount of heroin and the appellant's circumstances, we cannot say that the sentence falls outside of the range established by the case law. Nor do we see any error in principle that could justify appellate intervention.

[9] Accordingly, leave to appeal sentence is granted but the sentence appeal is dismissed.

Robert J. Sharpe J.A.

G. Pardu J.A.

Fairburn J.A.