Court of Appeal for Ontario

Date: July 26, 2019 Docket: C64394

Justices: Tulloch, van Rensburg and Harvison Young JJ.A.

Between

Her Majesty the Queen Respondent

and

Rajman Singh Grewal Appellant

Counsel

For the Appellant: James Lockyer and Amy Ohler

For the Respondent: Holly Loubert

Heard

April 11, 2019

On Appeal From

Conviction entered by Justice J. Michal Fairburn of the Superior Court of Justice, sitting with a jury, on June 20, 2017.

van Rensburg J.A.

INTRODUCTION

[1] The appellant was tried by judge and jury and convicted of kidnapping his friend, Sukhpal Pannu. He was sentenced to seven years in prison. He appeals the conviction.

[2] The issue at trial was whether the appellant, as a principal, or as a party under s. 21(1)(b) of the Criminal Code, was guilty of the offence of kidnapping.

[3] The appellant argues that the trial judge erred in her instructions on the actus reus of aiding and abetting, in that she did not emphasize, in her review of the evidence, the need for actual assistance on the part of an aider, and that the trial judge ought to have left with the jury a possible verdict of "attempt to aid" a kidnapping. He also asserts that the trial judge erred in not linking her W.(D.) instruction to the defence of duress and in failing to correct Crown counsel's improper reference to certain hearsay evidence in his closing address to the jury.

[4] For the reasons that follow, I would dismiss the appeal.

RELEVANT FACTS

[5] On December 19, 2014, just after 8:00 p.m., Sukhpal Pannu was driven from his home in the appellant's vehicle. Over the next four and a half days, he was bound, blindfolded, moved from location to location, threatened, beaten and strangled with an electrical wire. A firearm was placed in his mouth. Pannu managed to escape on December 24 from a house in Chateauguay, Quebec.

[6] Less than a week before the kidnapping, Pannu, who was a truck driver, had transported a load of contraband items from Brampton to Vancouver. He testified that this was the second shipment he had taken at the behest of the appellant, and that when he was in Vancouver, the contraband was stolen from his truck. According to Pannu, a few days after his return, the appellant and another man came to Pannu's house and forced him into the appellant's Hummer, where two other men covered his face with a cap and tied his hands with zip-ties. After driving for 10 or 20 minutes, they stopped and Pannu was taken into the basement of a house, where he was beaten and threatened with a shotgun, with the assailants asking where "the stuff" was. Later, he was driven in another vehicle to a warehouse near Montreal and then to a house in a Montreal suburb, from which he managed to escape in the early hours of December 24. Pannu's evidence about when he last heard the appellant's voice was inconsistent – whether it was when he left the appellant's vehicle, or when he was captive in the basement of the first house.

[7] The appellant admitted that he was one of the two men who went to Pannu's house and escorted him into his vehicle, but he maintained that Pannu entered his vehicle voluntarily. Moreover, the appellant testified that, earlier, a stranger had arrived at his house, pointed a gun at him and forced him to drive to Pannu's house. Along the way, two other men entered the Hummer. After the appellant was forced to drive to another location, Pannu and the unknown men got out. As he exited the appellant's Hummer, Pannu told the appellant he would be back in half an hour. According to the appellant, one of the gunmen told him, "Don't get the pigs involved. We're just gonna ask him some questions and he'll be back", before they drove away. The appellant denied being present when Pannu was bound and beaten.

[8] On December 19, at 8:13 p.m., while the kidnapping was still underway, the appellant called Pannu's home and told Pannu's mother, Ajmer, that her son would be back in half an hour. He then drove to Pannu's house and told Ajmer that the men who had taken Pannu had pointed a gun at the appellant. He asked her not to call the police. Ajmer called Pannu's wife, Mandeep, and told her what was going on. At 8:30 p.m., while the appellant was there, Ajmer called Pannu's business partner Lakhvinder Dhaliwal. She told the appellant that Dhaliwal was telling her to call the police. Again, the appellant told Ajmer not to call the police. He told Dhaliwal the same thing over the phone. At 9:36 p.m., Mandeep called the appellant. He told her he was forced to drive to her house by armed men who wanted to question her husband, and he urged her not to call the police. He reminded Mandeep that she was like a sister to him, he assured her that he would bring Pannu back, and he told her not to worry. Mandeep called the police at 9:55 p.m. The appellant admitted that he told Ajmer, Mandeep and Dhaliwal not to call the police, and he explained that it was out of concern for his own safety, that of his family, and that of Pannu himself.

[9] The Crown's primary theory at trial was that the appellant was a principal offender in the kidnapping, as he was one of the two men who forced Pannu into the backseat of his vehicle and transported him to other captors who beat and interrogated him. The Crown's secondary theory was that the appellant aided the perpetrators both by the acts of taking and transporting Pannu, and also by forestalling the intervention of law enforcement when he discouraged Pannu's mother, wife and business partner from contacting the police.

[10] The appellant admitted that Pannu was kidnapped, but he denied any involvement in the kidnapping. The defence position was that the kidnapping only began after Pannu got out of the appellant's Hummer and entered a second vehicle without the appellant. In the alternative, if the appellant was involved in the initial acts of kidnapping, he was acting under duress.

[11] The appellant argued further at trial that, in encouraging Ajmer, Mandeep and Dhaliwal not to call the police, he lacked the requisite intention to ground criminal liability as an aider.

ISSUES ON APPEAL

[12] There are four grounds of appeal.

[13] The first two grounds are related. The appellant argues that the trial judge erred in her instructions to the jury with respect to party liability, and in not leaving as a possible verdict the included offence of "attempt to aid in a kidnapping".

[14] The appellant also argues that the trial judge erred in not including in her W.(D.) instruction a reference to the appellant's evidence that he had acted under duress, and by failing to correct the Crown's reliance on hearsay evidence in its closing argument.

[15] I now turn to address each ground of appeal.

ANALYSIS

(1) Did the Trial Judge Err in Her Instructions on Party Liability?

[16] The trial judge instructed the jury at some length with respect to party liability. In her general instructions on party liability, she charged the jury as follows:

An aider may help another commit an offence by doing something that assists the perpetrator to commit the offence. In this case, to aid means to do something that assists or helps another person or persons commit an offence. Actual assistance is necessary. This is what we call the conduct component.

It is not enough that what the aider does simply has the effect of or results in helping the other person to commit the offence. The aider must also have a particular state of mind that is related to the crime assisted. The aider must render the assistance for the purpose of aiding the principal offender in committing the crime. [Emphasis added.]

[17] The appellant accepts that this is a correct instruction on party liability as an aider, but submits that the trial judge erred in her jury charge because she did not repeat that actual assistance was required when she reviewed the evidence. Rather, the remainder of the trial judge's instructions on party liability dealt only with the mens rea requirement for party liability.

[18] The focus of the appellant's argument here is on the evidence about the appellant telling people close to the victim not to call police, and what they did or did not do as a result. The appellant points to the evidence that Ajmer did not speak English very well as her reason for not calling the police, that Mandeep called the police only a few minutes after the appellant had told her not to, and that Dhaliwal claimed he called police earlier when it is known he did not. In light of this evidence, the appellant essentially asserts that the jury ought to have been specifically instructed that in order to find that the appellant aided in the commission of the offence in this manner, they must be satisfied beyond a reasonable doubt that his instructions not to call police actually assisted by forestalling the involvement of the police. Further, the appellant argues that the jury should have been told that party liability would only follow if the jury also accepted that earlier police intervention could have interrupted the kidnapping. Without this type of instruction, the jury may have found the appellant liable as a party solely on the basis of finding that he intended to aid the kidnappers by encouraging others close to the victim not to call police, without also finding that his efforts in this regard in fact assisted.

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

[20] Recently, in R. v. Calnen, 2019 SCC 6, 430 D.L.R. (4th) 471, at paras. 8-9, Moldaver J. summarized the standard of review appellate courts must apply when reviewing a jury charge:

An appellate court undertakes a functional approach in reviewing a jury charge, asking whether the charge as a whole enabled the trier of fact to decide the case according to the law and the evidence: R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 49; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 32. As Bastarache J. wrote in R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 30:

The cardinal rule is that it is the general sense which the words used must have conveyed, in all probability, to the mind of the jury that matters, and not whether a particular formula was recited by the judge. The particular words used, or the sequence followed, is a matter within the discretion of the trial judge and will depend on the particular circumstances of the case.

In short, the test is whether the jury was properly, not perfectly, instructed: R. v. Jacquard, [1997] 1 S.C.R. 314, at para. 62.

[21] Thus, the question in the present appeal is whether, considering the trial judge's charge fairly, contextually and as a whole, the jury was properly equipped to decide the case, and, specifically, the issue of party liability in relation to the appellant's instructions not to call police, based on the evidence adduced and the positions advanced at trial: see Calnen, at paras. 6, 8; R. v. Srun, 2019 ONCA 453, at para. 54.

[22] In my view there was no reversible error in the trial judge's instructions on party liability.

[23] First, the appellant agrees that the trial judge gave a correct instruction about the conduct requirement for liability as an aider in her general instructions on this issue. She told the jury that actual assistance is necessary. His complaint is that this aspect of the instruction was not repeated later in the charge, when the trial judge reviewed the evidence. While it is true that the trial judge did not repeat the specific words "actual assistance is necessary" for purposes of the aiding conduct requirement following her general instructions on party liability, she noted in these general instructions that during the remainder of the charge she would "be referring to these instructions about the different ways in which a person may commit an offence." On several later occasions in her charge, when speaking about someone being a party or aiding in the commission of the offence, she did indeed instruct the jury to refer back to her original instructions. For instance:

• At p. 60, the trial judge stated:

If you are not satisfied beyond a reasonable doubt that Mr. Grewal took Mr. Pannu against his will, by force, to another location and that Mr. Grewal intended to cause Sukhpal Pannu to be confined against his will, then you will go on to consider whether Mr. Grewal aided in the commission of the offence, as I have previously defined this term for you. [Emphasis in original.]

• At pp. 60-61, the trial judge stated:

If you are not satisfied beyond a reasonable doubt that Mr. Grewal was a party to the kidnapping of Mr. Pannu, either as a principal perpetrator or an aider, as I have previously defined these terms for you, then you will find Mr. Grewal not guilty of kidnapping and your deliberations will be over.

• At pp. 61-62, the trial judge stated:

Therefore, the first thing you must decide is whether Mr. Grewal was a party to the kidnapping of Mr. Pannu. Bearing in mind how I defined these terms for you, and having regard to the essential elements of the offence, if you are satisfied beyond a reasonable doubt that he was a party to the kidnapping, only then will you consider duress.

• At p. 62, the trial judge stated:

My intention is to permit you to consider some of the evidence in this case against what I have just said about the essential elements of the crime of kidnapping and the ways in which a person can commit the offence of kidnapping. As I review this evidence, think back to those instructions and how it applies.

• At p. 74, the trial judge stated:

I am now going to review the events, the evidence related to the events of December 19, 2014. As I do, I simply remind you to think back on how I have defined the terms, principal perpetrator and aider and how I defined the essential elements of kidnapping for you, as with all of the evidence that I have reviewed. Just keep those elements in mind as I review this, on how it relates to those elements. And the different forms of participation in the crime of kidnapping, whether as a principal perpetrator or as an aider.

[24] I note that, on a number of occasions in her charge, when discussing party liability, the trial judge referred to the requirement that the appellant must have done "something", without adding that that "something" must have actually assisted the commission of the offence. For example, at p. 87, the trial judge stated:

At this stage, having regard to my complete earlier instructions, I will remind you as follows:

In considering whether Mr. Grewal was a principal perpetrator, if you are not satisfied beyond a reasonable doubt that he took Mr. Pannu against his will, by force, to another location and that he intended to cause Mr. Pannu to be confined against his will, then you will go on to consider whether Mr. Grewal aided in the commission of the offence, as I have previously defined that term for you.

For purposes of aiding you must consider whether Crown counsel has proven beyond a reasonable doubt that Mr. Grewal knew that the principal perpetrator or perpetrators intended to kidnap Mr. Pannu, or had already kidnapped him, and knew of the principals' intention to see the offence of kidnapping through to completion, and did something with the intention of aiding the principals in the commission of the offence. [Underlining in original; italics added.]

[25] In this passage the trial judge again refers the jury back to her earlier instructions on aiding, which the appellant agrees were correct. Given the trial judge's repeated references back to her earlier instructions on party liability, which make it clear that actual assistance is required for purposes of the conduct requirement, I am satisfied that the jury was properly instructed and understood that, whenever the trial judge used the words "doing something", this meant "doing something that assists or helps another person or persons commit an offence", as she instructed them at the outset. This is abundantly clear when the charge is read as a whole.

[26] Moreover, leaving aside a textual analysis of the charge, this point is also clear in light of the evidence called at trial and the positions taken by the parties. Indeed, as observed by Watt J.A. in Srun, at para. 54, "A jury charge does not take place in splendid isolation, but rather in the context of the trial as a whole." As I will explain in more detail below with respect to the second ground of appeal, in the context of this trial, it would not have been realistic to argue that the appellant's instructions not to call police did not actually assist in the commission of the offence. The parties did not engage on this issue at trial. Rather, defence counsel's submissions at trial on the appellant's encouragement of others not to call the police were confined to whether, in doing so, the appellant had the requisite mens rea to attract criminal liability as a party – not whether this conduct in fact aided in the kidnapping. In particular, defence counsel at trial emphasized the appellant's evidence that when he told people not to call the police, he was acting to preserve his own safety and that of Pannu in light of the threats made by the perpetrators.

[27] In this context, it was unnecessary for the jury to be continually reminded in the charge about the need for actual assistance with respect to the conduct requirement. The jury was correctly instructed on this point in the trial judge's general instructions about party liability and was reminded to refer back to those instructions throughout the charge. The live issue at trial with respect to party liability centered on the mens rea requirement, and this is where the trial judge, quite properly, focused her instructions.

[28] I also note that defence counsel at trial (not the same counsel as on appeal) did not object to the instructions on party liability, nor did he contend that additional instructions were required to link the general instructions to the evidence. Although the failure to object is not determinative, it is an important factor supporting the conclusion that the words used by the trial judge were appropriate in the circumstances of the case as it was advanced at trial: R. v. Dooley, 2009 ONCA 910, 249 C.C.C. (3d) 449, at para. 131, leave to appeal refused, [2010] S.C.C.A No. 83, [2010] S.C.C.A. No. 179; R. v. Simon, 2010 ONCA 754, 104 O.R. (3d) 340, at para. 45, leave to appeal refused, [2010] S.C.C.A. No. 459.

[29] As for the appellant's further argument that, in addition to being reminded that actual assistance was required, the jury should have been told specifically that party liability would only follow if the jury found that earlier police intervention could have interrupted the kidnapping, no such argument was made at trial, and for good reason. In the circumstances of this case, such an argument would mean that the jury had to be satisfied that, to be a freestanding source of criminal liability, the alleged act of aiding by encouraging others not to call the police caused the kidnapping to be continued.

[30] In Dooley, at paras. 121-123, Doherty J.A. rejected the argument that there must be a causative link between the act of aiding (or abetting) and the perpetrator's commission of the offence. Instead, he observed that "the authorities take a wide view of the necessary connection between the acts of alleged aiding or abetting and the commission of the offence", such that "any act or omission that occurs before or during the commission of the crime, and which somehow and to some extent furthers, facilitates, promotes, assists or encourages the perpetrator in the commission of the crime will suffice, irrespective of any causative role in the commission of the crime": at para. 123. Actual assistance – not "but for" causation – was required to found criminal liability as an aider, and this is what the trial judge told the jury.

[31] Accordingly, I would dismiss this ground of appeal.

(2) Did the Trial Judge Err in Failing to Instruct on an Included Offence?

[32] The appellant submits that, if the jury found that in encouraging Ajmer, Mandeep and Dhaliwal not to call police he intended to aid the kidnappers but did not in fact succeed in this endeavour, he could still have been guilty of attempting to aid in Pannu's kidnapping, and the jury should have been so instructed.

[33] I note, at the outset of my analysis of this ground of appeal, that neither party raised the possibility of an included offence of "attempting to aid in a kidnapping" at trial, and neither party sought any instruction about an included offence. Rather, the only discussion of an included offence was in relation to forcible confinement, and defence counsel specifically requested that this offence not be left with the jury. Moreover, as the argument of this appeal demonstrated, it is doubtful that "attempting to aid an offence" is a recognized form of criminal liability in Canada: see e.g. V. Gordon Rose, Parties to an Offence (Toronto: Carswell Company, 1982), at p. 9 ("In the absence of a statutory provision…one cannot be guilty of attempting under s. 24 of the Code to aid or abet another's offence; either the actus reus is present and complete, or it is not" (emphasis in original)); see also Eugene Meehan & Marie-France Major, The Law of Criminal Attempt, 3rd ed. (Toronto: Carswell, 2015), at p. 354 ("An attempt means an attempt to perpetrate, not an attempt to aid and abet").

[34] Furthermore, the appellant did not refer to any Canadian authority recognizing liability for an attempt to aid in the commission of a Criminal Code offence. Nor could counsel provide an example of any case where someone had been charged with attempt to aid in such an offence, or where an attempt to aid in the commission of a Criminal Code offence had been left with a jury as an included offence.

[35] It is neither necessary nor wise to resolve this legal question in this appeal. It is unnecessary, because, as I will explain below, I am of the view that even if attempting to aid a completed kidnapping were an offence in law, there was no air of reality to such an included offence in the context of this trial. It is not wise, because this legal question arises only now on appeal. It is completely unconnected to the live issues in this trial. Thus, I would leave this question for another case where the answer is determinative of the appeal.

[36] As observed by Paciocco J.A. in R. v. Romano, 2017 ONCA 837, 41 C.R. (7th) 305, at paras. 13-14, while it is generally necessary for a trial judge to charge on included offences, the law relating to this obligation is sensible. The obligation is "conditioned upon an air of reality in the evidence adduced at trial to permit a reasonable jury, properly instructed, to conclude that the essential elements of the included offence have been established": R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 75. Thus, "included offences that cannot lead to legally appropriate verdicts should not be left with juries": Romano, at para. 16. As stated by Doherty J.A. in R. v. Wong, 209 C.C.C. (3d) 520 (Ont. C.A.), at para. 12:

Where on the law applicable to the main charge and the included offence there is no reasonable view of the evidence, when considered as a whole, that could cause the jury to acquit on the main charge and convict on the included offence, an instruction on included offences is a breeding ground for confusion and compromise.

[37] I also note that the question of whether or not there is an air of reality to a defence (or, I would add, an included offence) is a question of law, subject to appellate review: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 55. Determining if there is an air of reality to a defence or an included offence is "a legal conclusion about the presence or absence of an evidential foundation for a defence [or an included offence]."

[38] In the present case, in light of the evidence at trial and what is required at law to constitute the actus reus of aiding, there was no air of reality to the theory that, even if the appellant encouraged the victim's mother, wife and business partner to refrain from calling the police for the purpose of aiding the kidnapping by delaying the involvement of the police, there was a reasonable doubt about whether this encouragement satisfied the conduct component of aiding. This is because all that is required at law to satisfy the conduct component of aiding is that the accessorial act "help" or "actually assist" the perpetrator in the commission of the crime. Causation is not required: Dooley, at para. 123.

[39] In light of the evidence at trial, even assuming that an attempt to aid in a kidnapping could be an offence at law, there was simply no realistic possibility that the jury could have had a reasonable doubt about whether the appellant's actions in encouraging others not to call the police "helped" or "actually assisted" in the commission of the offence by delaying the involvement of the police. As I will explain below, it was obvious from the evidence that these actions did forestall the involvement of the police, and neither defence nor Crown counsel argued otherwise. As already noted, defence counsel's address to the jury on this issue was confined to whether, in encouraging the victim's mother, wife and business partner not to call police, the appellant had the requisite mens rea to attract liability as a party. In my view, the reason that no submissions were made on whether this conduct actually assisted in the kidnapping is that the conduct requirement for aiding was simply not a live issue at trial.

[40] The evidence was that the appellant told Pannu's mother, wife and business partner not to call the police, while he knew that Pannu was still being held captive by the assailants. The police were not called until 9:55 p.m., more than an hour after the appellant first told Ajmer not to call the police. Thus, there was in fact a delay in the involvement of law enforcement, and it is clear from the evidence that the appellant's actions in encouraging three persons close to the victim not to call police at the very least "helped" the persons who were confining Pannu in the continued commission of the kidnapping offence.

[41] However, as noted above, the appellant points to evidence suggesting that Ajmer did not call the police because she did not speak English very well and that Mandeep called the police only a few minutes after he told her not to, as well as Dhaliwal's evidence claiming that he called police earlier when it is known that he did not. Based on this evidence, the appellant argues that the jury could have had a reasonable doubt about whether the appellant's actions in encouraging Ajmer, Mandeep and Dhaliwal not to call police actually assisted in delaying the involvement of the police.

[42] Dealing first with Ajmer's testimony that she did not call police because she did not speak English very well, she also testified that "since I don't have good English, so I said Mandeep to call the police. She was not at home…. Mandeep has to call the police. I don't know that much English." When asked directly if she contacted the police, Ajmer responded, "No, I did not, because I don't know that much English. I called Mandeep because she was in the town attending the temple."

[43] As for Mandeep, she testified that when she first learned from Ajmer what had happened to her husband, she did not call 911 at that time because she "was trying to figure [out] what happened." Mandeep explained that "[the appellant] was his friend and I wasn't doubting on him, like what's happening." Mandeep eventually spoke directly with the appellant from 9:36 to 9:42 p.m. During this call, the appellant urged Mandeep not to call police. She finally called police 13 minutes later, at 9:55 p.m., after placing calls to her husband's phone, Dhaliwal's workplace and her home phone.

[44] With respect to Dhaliwal, the evidence was that the appellant discouraged him from calling police when they spoke over the telephone while the appellant was with Ajmer at the Pannu residence. Despite Dhaliwal urging Ajmer to call police (which she did not – see review of evidence above), he himself did not call the police at that time. He only called police later (i.e. subsequent to Mandeep's call), after being threatened by the appellant and observing three cars near his home, with the driver of one appearing to be taking photographs.

[45] Realistically, this evidence leaves no room for doubt that the appellant's actions in urging the victim's mother, wife and business partner to refrain from calling the police, while reassuring them that Pannu would return shortly, actually helped in some way to delay police involvement. Again, I would emphasize that the appellant's actions need not be the "but for" cause of this delay in order to ground criminal liability; they only need to have somehow assisted the perpetrators in the commission of the offence. On this evidentiary record, they did, and there was no evidentiary foundation upon which to suggest otherwise. Accordingly, even assuming that attempting to aid in a kidnapping could be an offence under Canadian law, the trial judge did not err in failing to leave this possible verdict with the jury.

(3) Did the Trial Judge Err in her W.(D.) Instruction?

[46] The appellant's next ground of appeal is that the trial judge erred by not relating the W.(D.) instruction to the appellant's evidence that he acted under duress.

[47] The appellant relies on R. v. Bucik, 2011 ONCA 546, 274 C.C.C. (3d) 421, to argue that the failure to provide a W.(D.) instruction in relation to the appellant's evidence about duress was a reversible error. In Bucik, at para. 33, this court noted that assessments of the credibility or reliability of exculpatory evidence do not raise "either/or choices" and "must reflect the application of the burden of proof placed on the Crown to prove its case beyond a reasonable doubt."

[48] The scope of the W.(D.) instruction was specifically raised by the trial judge after hearing counsel's closing submissions but before instructing the jury. She concluded that it would be too confusing to the jury, and potentially inaccurate, to refer to the appellant's evidence as to the various elements of his duress defence in the course of her W.(D.) instruction. Even if the jury believed the appellant or had a reasonable doubt that he was threatened, this would not lead to an acquittal. In order to have acquitted the appellant based on his defence of duress, the jury would have had to believe the appellant or had a reasonable doubt about each of the five essential elements of the defence of duress.

[49] Instead, the trial judge's W.(D.) instruction referred specifically to the appellant's evidence about how Pannu got into and out of the Hummer willingly, that this was the last time he saw Pannu, and that he told others not to call the police because he thought Pannu was going to come back soon. The instruction did not address the duress evidence. This was agreeable to defence counsel.

[50] The central issue is not whether a specific W.(D.) instruction was provided, but whether the jury would have understood the applicable burden and standard of proof in relation to duress. There is no required formula or checklist as to what is required in a W.(D.) instruction. Rather, as this court noted in R. v. Barrett, 2016 ONCA 12, 346 O.A.C. 1, at para. 14, "An explicit W.(D.) instruction is not necessarily required where there is potentially exculpatory evidence, as long as the charge as a whole makes the burden of proof in relation to reasonable doubt and issues of credibility clear to the jury, such that it is not, as described in Bucik, simply an 'either/or' contest".

[51] Here, the trial judge instructed the jury repeatedly that the onus did not lie with the appellant to prove that he acted under duress, and that the Crown had the onus to prove beyond a reasonable doubt that he did not act under duress. She gave careful instructions on the defence of duress, including the five questions the jurors had to ask themselves in determining whether the defence applied, on each occasion specifying the applicable burden and standard of proof. She had good reason for not attempting to include in her specific W.(D.) instruction the various elements of the defence of duress. She discussed this specifically with counsel. There was no objection to the trial judge's W.(D.) instruction or her instructions on duress. Taken as a whole, the trial judge's instructions on duress explained the defence in a manner that sufficiently set out both the applicable burden and standard of proof.

(4) Did the Trial Judge Err in Failing to Address the Crown's Reliance on Hearsay Evidence?

[52] As his final ground of appeal, the appellant asserts that the trial judge erred by failing to correct the Crown's reliance on hearsay evidence during closing arguments.

[53] In his closing argument, Crown counsel referred to an out-of-court statement while setting out the Crown's theory that the purpose of a trip the appellant took to Vancouver in early December 2014 was to meet someone called "Kaka" to arrange Pannu's contraband delivery. He said:

Toward the end of Sukhpal Pannu's testimony he spoke about a trip to B.C. that Rajman Grewal took ending less than a week before he took the load west. If you accept that Mr. Grewal was involved in the supply of contraband as Pannu has testified, the trip to B.C. makes sense. It's to meet Kaka and Sukhpal was told he did meet Kaka. He's there from December 2nd to 7th which fits with the timeline of when Sukhpal said he was there to do this just before Sukhpal obtains the TV on the 9th …. [Emphasis added.]

[54] Contrary to the appellant's submission, in her summary of the Crown's position in her charge to the jury, the trial judge did not refer to the hearsay evidence, and there was no other reference to such evidence in the charge.

[55] I see no error here. The jury was repeatedly instructed to follow the legal instructions provided by the trial judge, and not to rely for their truth on out-of-court statements of declarants not called as witnesses. In fact, shortly after the inadmissible hearsay was elicited (without objection from defence counsel), the trial judge gave a mid-trial jury instruction on hearsay. And, at the time Pannu gave this evidence, Crown counsel stated that the answer was not elicited for its truth. In his closing address, Crown counsel cautioned the jury to disregard anything he said in his summary that was not in evidence.

[56] In any event, the impact of the Crown's reference to the out-of-court statement was not significant given the totality of the evidence. There was a great deal of available evidence to support the inference that the appellant had gone to B.C. in early December to coordinate a drug shipment with Kaka. Defence counsel's lack of objection, while not determinative, indicates that this out-of-court statement was regarded as relatively unimportant in light of the body of the evidence.

DISPOSITION

[57] For these reasons, I would dismiss the appeal.

Released: July 26, 2019

"K. van Rensburg J.A."

"I agree. M. Tulloch J.A." "I agree. A. Harvison Young J.A."

Footnotes

[1] In his factum, the appellant asserted that an appropriate included offence was "attempted kidnapping"; however, in oral argument counsel stepped away from this argument. Because there was no question that a kidnapping had in fact occurred, "attempted kidnapping" could not properly be left with the jury as an included offence.

[2] The page references are from the transcript of the trial proceedings, Volume 16.

[3] In contrast, under s. 131 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, it is an offence to knowingly induce, aid or abet, or to attempt to induce, aid or abet a person to contravene ss. 117-119, 122, 124, or 129 of the Act.