COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Verma, 2025 ONCA 122

DATE: 20250221

DOCKET: COA-23-CR-0417

Huscroft, Dawe and Pomerance JJ.A.

BETWEEN

His Majesty the King

Respondent

and

Nitish Verma

Appellant

Mark Halfyard and Robert Nanni, for the appellant

Sarah Shaikh, for the respondent

Heard: January 30, 2025

On appeal from the conviction entered by Justice M.J. Lucille Shaw of the Superior Court of Justice, sitting with a jury, on March 6, 2023.

Dawe J.A.:

[1] The appellant was convicted of importing opium after drugs were found in his luggage when he returned from a very brief visit to India. The sole issue at trial was his knowledge of the drugs. The appellant testified that the boxes of opium found in his suitcase had been given to him by relatives of a close family friend, Mr. Chauhan, who he called "uncle". He maintained that he had been led to believe that the boxes contained Indian sweets for his uncle, and that he had been duped into putting them in his luggage. The jury rejected this explanation and found the appellant guilty of importing the drugs.

[2] He appeals his conviction, advancing three grounds of appeal. These grounds all take issue with different aspects of the trial judge's jury instructions concerning the appellant's out-of-court statements to border officials and police officers at the airport, some of which were exculpatory, but one of which was inculpatory, and which he denied making.

[3] For the following reasons, I would dismiss the appeal.

A. Factual background

[4] In the summer of 2019 the appellant went on a short trip to India, flying through Toronto Pearson International Airport. He left on July 31 and returned on August 4, bringing with him two large suitcases as checked luggage, as well as a carry-on bag and satchel. He was sent for secondary inspection because a Canadian Border Services Agency ("CBSA") officer thought it was odd for the appellant to have so much luggage on what had been only a very brief trip.

[5] When the CBSA secondary inspection officer opened one of the appellant's checked suitcases, she found four boxes wrapped in packing tape. The appellant said that the boxes contained "Indian sweets". The CBSA officer cut into one of the boxes. As some shredded paper escaped from the box, the appellant said, "[t]hose are not sweets". After fully cutting into the box, the CBSA officer discovered that it contained a black tar-like substance wrapped in plastic. On seeing the contents, the appellant said, "[t]hey told me it was sweets". When asked who told him this, he replied that it had been his uncle.

[6] The CBSA officer conducted tests that indicated that the package contained opium. She arrested the appellant, and after reading him his rights, turned the appellant over to two RCMP officers, Cst. Stratton and Cst. Napoleon. The appellant asked Cst. Stratton if he could call his uncle, and Cst. Napoleon placed a call to a phone number the appellant provided, but got no answer.

[7] After putting the appellant in a holding cell, the RCMP officers searched his luggage. Cst. Stratton testified that he found a small plastic baggie containing a tar-like substance in the breast pocket of a men's shirt, and Cst. Napoleon testified that she found a similar baggie in a fanny pack. The tar-like substance in the four boxes and the two baggies was later tested by Health Canada and established to be opium.

[8] Cst. Napoleon testified that shortly before the appellant was transported to the police station she went to the holding cells and questioned him about the plastic baggies. She maintained that the appellant replied that he got them "from a guy along with the packages that were found in his suitcase". Cst. Napoleon did not audio or video record this conversation with the appellant, but made a note of his alleged utterance. In his trial testimony, the appellant disputed that Cst. Napoleon ever asked him about the baggies, and also denied saying the words she attributed to him.

[9] A minute later, Cst. Stratton asked the appellant if he would make a statement. He testified that the appellant responded by crying and saying that he was scared, and that "if the guy finds out, he will die". Cst. Stratton did not record this utterance or make a note of it, but at trial the appellant agreed that he said this to the officer.

[10] The appellant testified that he had gone to India for a few days for a family meeting to arrange a marriage for his sister and interview potential bridegrooms. He booked the trip on short notice because it had been difficult to find dates when everyone could travel to attend the meeting, including his sister, who lived in Australia.

[11] The appellant testified that on the day before he returned to Canada he received a phone call from his uncle, who asked him to meet with some of the uncle's relatives in Delhi and bring back some boxes of Indian sweets. Before the appellant flew home, he met with these relatives and received four boxes of what he believed were sweets, along with a shirt and a fanny pack, all of which he was to give to his uncle. He denied having any knowledge that there were drugs concealed in any of these items.

[12] The appellant substantially agreed with the secondary inspection officer's account of their interaction, and with Cst. Stratton's evidence about their conversation in the cells. However, he disputed Cst. Napoleon's evidence that she questioned him about the baggies with the black tar-like substance that the RCMP had found in the shirt pocket and in the fanny pack, and denied saying anything to her about these baggies. The appellant maintained that what he actually told Cst. Napoleon was that the sweet boxes and other gift items had been given to him by the uncle's relatives, and that he also gave her the uncle's name and phone number.

B. Analysis

(1) The unrecorded utterances the appellant allegedly made to Cst. Napoleon

[13] The appellant's first ground of appeal is that the trial judge did not adequately caution the jury about relying on Cst. Napoleon's evidence about the appellant's alleged utterances about the plastic baggies, in view of her failure to audio or video record her questioning of him.

[14] In R. v. Swanek (2005), 2005 3326 (ON CA), 194 O.A.C. 155 (C.A.), at para. 13, Doherty J.A. stated:

If the police failure to make a proper recording of an alleged inculpatory statement is in issue at trial, I think a trial judge should tell the jury that the failure to make a proper recording is an important factor for the jury to consider in deciding whether to rely on the police version of the alleged statement.

These comments were obiter, since Doherty J.A. concluded that the police failure to record the accused's statement in that case "was a non-issue at this trial." However, his comments were adopted by this court in R. v. Wilson (2006), 2006 20840 (ON CA), 210 C.C.C. (3d) 23 (Ont. C.A.), at para. 20, where Rosenberg J.A. held that "in appropriate circumstances, a special instruction should be given to the jury where the accused contests the accuracy of [a] non-recorded statement." Rosenberg J.A. explained further, at para. 24:

[I]t was open to the jury to find that the police deliberately set out to interrogate the appellant without giving any thought to the making of a reliable video or audio record. The jury should therefore have been instructed along the lines suggested in R. v. Swanek that this was an important factor to consider in deciding whether to rely on the officer's version of the statement.

[15] I am prepared to assume that the circumstances here satisfied the preconditions in Wilson. On her own evidence, Cst. Napoleon set out to confront the appellant about the suspicious baggies containing the black tar-like substance the police had found in his luggage. The appellant was detained, and the location and timing of the questioning was within her exclusive control. It was open to the jury to find that Cst. Napoleon's questioning of the appellant, although brief, was an "interrogation", and that she gave no thought to the importance of making a reliable recording of his responses.

[16] I also do not agree with the Crown that the impact of Cst. Napoleon's evidence was neutralized once he testified that his uncle's relatives had given him the shirt and the fanny pack in which the baggies were found, maintaining that this was what he had actually said to Cst. Napoleon. Crown counsel at trial emphasized in his closing jury address that on Cst. Napoleon's version of the conversation the appellant had admitted to knowing about the baggies themselves, arguing:

[W]hen Constable Napoleon told you that she asked Mr. Verma where he got the two baggies that contained opium, Mr. Verma admitted he got them from the same guy he got the boxes from. And that's the truth. You can see photos of these baggies in Exhibit 8 and 10. These baggies are clear. They clearly do not contain Indian sweets. In essence, Mr. Verma confessed to Constable Napoleon that he knew exactly what those boxes contained. [Emphasis added.]

Having taken this position at trial, it is not open to the Crown to argue on appeal that the dispute over the accuracy of Cst. Napoleon's evidence that the appellant had admitted knowledge of the baggies was of no consequence.

[17] The critical question, however, is whether the instructions the jurors received on this issue were functionally adequate: see R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at paras. 35-37.

[18] The appellant argues that the trial judge's instructions about the appellant's disputed utterances to Cst. Napoleon were nearly identical to the instructions in Wilson that this court found inadequate. However, the sufficiency of the charge must be assessed by considering it as a whole. While it is true that the trial judge's initial instructions on this issue were similar to the impugned instructions in Wilson, she later returned to the point and added:

When assessing the statements that the officers say Mr. Verma did or did not make, or the statements that Mr. Verma testified that he did or did not make to the officers, you may consider whether the statements were audio or video recorded.

[19] This instruction was somewhat less forceful than the recommended instruction in Swanekand Wilson, in that the jury was not expressly told to treat the lack of audio or video recording as an "important factor". However, jury charges are not to be measured against a standard of perfection, and "[i]t is the substance of the charge that matters, not adherence to a prescribed formula or particular sequence": Abdullahi, at para. 35; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 30. Even if the jurors had been told to treat the absence of an accurate recording as an "important factor", it would still have been up to them to decide how much weight to give this factor in the particular circumstances of this case.

[20] Importantly, this part of the charge was crafted with the input and approval of trial counsel. Crown counsel at trial had requested that the jurors be told that they could still rely on Cst. Napoleon's evidence about the appellant's utterances, and that the lack of recording was "a matter of weight." However, defence counsel objected that this would unbalance the charge and undermine his position that the lack of a recording affected the reliability of Cst. Napoleon's evidence. In response, the trial judge proposed that she would tell the jury to "consider whether the statements were audio and/or video recorded". The appellant's trial counsel endorsed this proposed instruction. He did not refer the trial judge to Swanek or Wilson, or suggest that the jury should be told that the lack of recording was an "important factor to consider".

[21] While not determinative, trial counsel's contentment with the trial judge's instructions on this issue is a relevant factor when assessing the adequacy of the jury charge. As Rowe J. noted in Abdullahi, at para. 68:

Counsel's silence could also support a conclusion that the charge read as a whole accurately set out the law relevant to a given issue.… One can take the view that an instruction good enough for counsel was likely good enough for the jury. [Citations omitted.]

[22] It is also a relevant consideration that trial counsel, in his closing address, urged the jurors to treat the absence of a reliable recording as an important consideration. Trial counsel's closing address "cannot replace an accurate and sufficient instruction on the law": Abdullahi, at para. 65 (italics in original). However, the law did not require the jurors to place any particular weight on the absence of an audio or video recording, but left it to them to decide for themselves how much significance to attribute to this factor.

[23] On balance, while it might have been preferable for the trial judge to have gone further and told the jury that the lack of a recording was "an important factor", I am satisfied that the key point – namely, that the jury could consider the absence of a reliable recording when assessing Cst. Napoleon and the appellant's conflicting testimony about what he said to her – was adequately conveyed to the jurors, and that this was why the appellant's trial counsel was content with the jury charge as it was delivered.

(2) Crown counsel's comments about the appellant's exercise of his right to silence

[24] The appellant's second ground of appeal is that the trial judge should have given a corrective instruction about comments Crown counsel made in his closing address touching on the appellant's exercise of his right to silence. Specifically, Crown counsel had suggested that if the appellant's testimony about having been duped by his uncle and his uncle's relatives was true, his statements to the CBSA and the RCMP officers "were really lacking in detail". Crown counsel explained that he was specifically referring to the appellant's trial testimony that although he was afraid of his uncle, he gave the uncle's phone number to the police because he trusted the police to "do something". Crown counsel told the jury:

Mr. Verma's answer is that he trusted the police to do something about it. But if so, why not give the police like detail? They didn't, he didn't give the police any detail about what happened, about his uncle. What are the police going to do with his uncle's phone number and nothing else?

[25] The appellant places particular reliance on this court's decision in R. v. Guillemette, 2022 ONCA 436, 162 O.R. (3d) 481. In that case, the accused testified that she had driven while intoxicated after leaving a bar out of necessity, because some men had attacked her when she went to her car to get her cell phone to call a taxi. Crown counsel at trial cross-examined her about her failure to immediately report the attack to the police, and at the conclusion of the case argued that if her trial testimony was true, "she would have said something" to the first officer who came to her home in response to a 911 call by the bartender. This court concluded, at para. 42: "Clearly, this was a prohibited purpose that transformed the right to silence into a sword."

[26] In my view, the situation here is distinguishable in three main respects.

[27] First, unlike the situation in Guillemette, the Crown at trial did not argue that the appellant's denial of knowledge of the drugs was unbelievable because he had asserted his right to silence and not made a full police statement. Rather, the Crown focused on the appellant's explanation at trial that he gave the police his uncle's phone number so that they would "do something" to protect him, and invited the jury to consider whether this explanation made sense when the appellant had not given the police any more information about his uncle. While the Crown's reference to the appellant's "lack of the detail" may have come uncomfortably close to the line, it was not directed at undermining the appellant's exercise of his right to silence.

[28] Second, the trial judge gave the jury a strong caution about using the appellant's exercise of his right to silence against him "in any way", telling the jurors:

You heard evidence that Mr. Verma said that he did not want to give a statement to the police. Persons who are arrested have no obligation to speak to the police or give a statement. A person charged with an offence has the absolute right to remain silent on or after arrest. The right to silence is a fundamental right in our criminal justice system, and it includes the right to choose when and how to exercise it.

The fact that Mr. Verma exercised his right to silence cannot be used in any way in your decision about whether he committed the offence charged. [Emphasis added.]

The jury must be assumed to have followed this instruction. In contrast, Guillemette involved a judge-alone trialwhere the trial judge's reasons "reflect[ed] an erroneous use" of the appellant's exercise of her right to silence: Guillemette, at para. 61.

[29] Third, the appellant's trial counsel did not ask for a corrective instruction in response to Crown counsel's jury address, nor did he express any discontent with the trial judge's instructions regarding the appellant's right to silence. While not determinative, "[c]ounsel's silence may be particularly significant where there are indications that it was a tactical decision": Abdullahi, at para. 69. In this case, trial counsel might have reasonably thought that a corrective instruction would draw undue attention to the Crown's comments, and that the trial judge's general instruction that the appellant's exercise of his right to silence could not be used "in any way" would be sufficient.

[30] Accordingly, I am not persuaded that the trial judge erred by not giving a corrective instruction that the appellant never asked for, and that his trial counsel may not have wanted.

(3) The W.(D.) instruction

[31] The appellant's third ground of appeal is that the trial judge erred by limiting her W.(D.) instruction to the appellant's own trial testimony: see R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742.

[32] His argument has two branches. First, he contends that the W.(D.) instruction should have been expanded to include evidence from Crown witnesses that was favourable to his defence. He focuses in particular on the testimony of the CBSA screening and secondary inspection officers that they noticed nothing suspicious about the appellant's behaviour, and the secondary inspection officer's further evidence that she saw nothing suspicious about the appearance of the boxes before she opened them and found that they held opium.

[33] W.(D.) instructions are meant to make jurors understand that evidence they do not affirmatively believe can still contribute to a reasonable doubt. Justice Cory's three-part instruction is also phrased to apply only to evidence that would, unless entirely rejected, compel an acquittal.

[34] In this case, it would plainly have been wrong to tell the jurors that if they believed the CBSA officers' testimony about not noticing anything suspicious, then "obviously you must acquit". Moreover, the credibility of the CBSA officers' evidence about their subjective suspicion levels had not been challenged, and there was no realistic prospect that the jury would disbelieve the CBSA officers' testimony that they had not suspected anything before the drugs were found.

[35] I agree that the jurors had to take the CBSA officers' evidence into account when deciding whetherthey could entirely reject the appellant's testimony. However, at other points in the charge the jury was told to "[c]onsider all of the evidence in reaching your decision", and to draw conclusions "based upon the evidence as a whole". It would not have been lost on the jurors that when deciding whether the appellant's testimony left them with a reasonable doubt, they had to consider his evidence in the context of all of the evidence, including the testimony from the CBSA officers. I am not persuaded that it was necessary for the trial judge to repeat this point in her W.(D.) instruction.

[36] Second, the appellant argues that the W.(D.) instruction should have referred not just to his trial testimony, but to his own exculpatory out-of-court statements. He focuses in particular on his statement to the CBSA secondary inspection officer that his uncle had told him that the boxes contained sweets. The appellant argues that this court's decision in R. v. Bucik, 2011 ONCA 546, 274 C.C.C. (3d) 421, required this exculpatory utterance to be included in the W.(D.)instruction.

[37] The appellant is correct that since his out-of-court statements had been adduced by the Crown, both their exculpatory and inculpatory parts were admissible for their truth: see e.g., R. v. Rojas, 2008 SCC 56, [2008] 3 S.C.R. 111, at para. 37. However, unlike the situation in Bucik, the appellant also testified in his own defence, giving an expanded account of how his uncle had arranged for the appellant to bring back boxes of what he believed were Indian sweets. His own prior consistent out-of-court statements were not independent evidence that could bolster his in-court testimony: see e.g., R. v. S.C., 2023 ONCA 832, at para. 14.

[38] Moreover, in this context there was no realistic prospect that the jury would entirely reject the appellant's trial testimony in which he denied knowledge of the drugs in his luggage, yet still be left with a reasonable doubt by his out-of-court statement that his uncle had told him the boxes contained sweets. Put another way, if the appellant's out-of-court statement left the jury with a reasonable doubt about whether he knew about the drugs in his luggage, they would equally have been unable to entirely reject his exculpatory trial testimony.

[39] In short, I am not persuaded that the trial judge erred by framing her W.(D.) instruction to focus on the appellant's trial testimony. Significantly, defence counsel at trial did not ask for a more expansive W.(D.) instruction.

[40] I am also satisfied that when the trial judge's instructions on reasonable doubt are read as a whole, they made it clear that the jurors had to consider all of the evidence, and that a reasonable doubt could arise from evidence that they did not fully believe. In particular, before giving her W.(D.) instruction, the trial judge told the jury:

Reasonable doubt applies to issues of credibility and reliability. On any given point, you may believe a witness, disbelieve a witness, or not be able to decide. You need not fully believe or disbelieve one witness or a group of witnesses. You may accept some, none, or all of what a witness says. If you have a reasonable doubt about Mr. Verma's guilt arising from the credibility or reliability of the witnesses, then you must find him not guilty of the offence.

Later, after giving the W.(D.) instruction, the trial judge reiterated:

So, again, the point is do not just choose between the Crown or defence evidence. That would lower the burden and standard of proof on the Crown. You always ask whether the Crown has proven guilt beyond a reasonable doubt.

[41] I am satisfied that the charge as a whole made it clear to the jury how they were to approach the evidence in order to properly apply the criminal burden and standard of proof.

C. Disposition

[42] I would accordingly dismiss the appeal.

Released: February 21, 2025

"J. Dawe J.A."

"I agree. Grant Huscroft J.A."

"I agree. R. Pomerance J.A."