



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pannu, 2015 ONCA 677

DATE: 20151007

DOCKET: C56717 & C56714

Watt, Pepall and Huscroft JJ.A.

BETWEEN

C56717

Her Majesty the Queen

Respondent

and

Lovejeet Bains

Appellant

AND BETWEEN

C56714

Her Majesty the Queen

Respondent

and

Harneet Pannu

Appellant

Richard Posner, for the appellant, Lovejeet Bains

Marie Henein and Matthew Gourlay, for the appellant,
    Harneet Pannu

Jason J. Wakely, for the respondent

Heard: January 26 & 27, 2015

On appeal from the convictions entered on December 3,
    2012 and the sentences imposed on March 14, 2013 by Justice Fletcher Dawson of
    the Superior Court of Justice, sitting with a jury.

Watt J.A.:

[1]

Early one October evening, Lovejeet Bains was driving a blue-grey Honda
    Accord. The registered owner was Kulwant Pannu.

[2]

Nearby, Harneet Pannu was also driving a blue-grey Honda Accord. The
    registered owner of that car was Lovejeet Bains.

[3]

Police stopped the car Lovejeet Bains was driving. They searched the
    car. Under the front passenger seat, police found a plastic bag. Inside the
    bag, they found some other things. A vacuum sealed bag containing one kilogram
    of heroin. And a digital scale. They arrested Lovejeet Bains.

[4]

Harneet Pannu seemed quite interested in what was happening to Lovejeet
    Bains. Harneet called Bains cellphone. A police officer answered. He invited
    Pannu to drive over to Bains location. Pannu did. And got arrested.

[5]

Bains and Pannu were jointly charged with possession of heroin for the
    purpose of trafficking. A jury found both men guilty as charged. Both appeal
    conviction and sentence. Each alleges his conviction is flawed due to juror
    misconduct and for being an unreasonable verdict. Each also alleges his
    sentence is excessive. These reasons explain why I would dismiss the appeals from
    conviction and sentence.

THE BACKGROUND FACTS

[6]

Four police officers testified at trial. A document entitled Admissions
    of Fact was filed as an exhibit. Neither Bains nor Pannu called or gave
    evidence.

The Tip

[7]

Police received information that caused several officers to be driving
    unmarked vehicles around the intersection of Torbram and Derry Roads in
    Mississauga early in the evening of October 3, 2010. The officers were dressed
    in plain clothes, but they wore vests and had their identification hanging
    around their necks.

[8]

The jurors heard no evidence about the substance of the tip the police
    had received. In light of what occurred, it would be reasonable to infer that
    the tip related to a drug transaction and a specific individual or motor
    vehicle.

The Vehicle Sightings

[9]

Around 6 p.m., police officers saw a blue-grey Honda Accord with Ontario
    licence plate AYAM824 (the 824 vehicle) in the southbound left turn lane of
    Torbram Rd. A left turn would take the vehicle eastbound on Derry Rd. Police
    positioned their vehicles in the same southbound lane.

[10]

An
    officer, several vehicles back from the 824 vehicle, noticed another almost
    identical blue-grey Honda Accord with Ontario plate BDCL381 (the 381 vehicle)
    in the same left turn lane. The 381 vehicle was one car ahead of the officer
    but behind the 824 vehicle.

[11]

Instead
    of turning left from the left turn lane, the driver of the 381 vehicle crossed
    two lanes of traffic to the right turn lane, turned right and drove westbound
    along Derry Rd. None of the police officers pursued or followed this vehicle.

The Stop and Arrest of Bains

[12]

The
    824 vehicle turned left and headed east on Derry Rd. Within minutes, police
    used their vehicles to force the 824 vehicle to stop. They arrested the driver
    and sole occupant, Lovejeet Bains, who cooperated with them.

The Search of the 824 Vehicle

[13]

Police
    searched the 824 vehicle at the roadside. The interior appeared cluttered. Two
    child seats were on the rear seat. On the floor, under the front passenger
    seat, was an opaque plastic bag. The bag had been stuffed under but protruded
    from underneath the front passenger seat. It was not visible from the front
    seat but could easily be seen from the back when the officers opened the rear
    passenger door.

[14]

Police
    looked in the bag. In it was a vacuum sealed bag that contained one kilogram of
    heroin. The contents of the outer bag also included a digital scale. The
    contents of the outer bag  the vacuum sealed bag and the digital scale  could
    not be seen from either the front or rear seat of the car.

[15]

Police
    did not conduct a fingerprint analysis of the outer bag or of any of its
    contents.

The Second Vehicle Re-appears

[16]

While
    officers were dealing with Lovejeet Bains and the 824 vehicle at the side of
    Derry Rd., they noticed another vehicle, the 381 vehicle, drive by slowly. The
    driver stared in the direction of the arrest scene. The 381 vehicle was
    travelling eastbound on Derry Rd., the opposite direction to its travel after
    it had turned right at the Torbram-Derry intersection. The 381 vehicle then turned
    right and headed southbound on Airport Road.

[17]

To
    ensure traffic safety, police moved their vehicles and the 824 vehicle to the
    parking lot of the International Centre on Airport Rd. Once again, they saw the
    381 vehicle, this time travelling northbound along Airport Rd., again in the
    opposite direction than it had earlier. The driver was looking towards the
    officers.

The
    Telephone Call

[18]

As
    Lovejeet Bains sat in the rear seat of the police car after he had been
    arrested, his cellphone constantly rang. An officer answered the phone. The
    callers name, according to call display, was Harneet, Pannus first name.
    The officer told the caller that the police had their car at the
    International Centre and invited him there.

The Arrest of Pannu

[19]

Shortly
    after the call to Bains cellphone had ended, Harneet Pannu arrived at the
    International Centre. He was the driver and only occupant of the 381 vehicle.
    Police arrested him and searched the vehicle. They found no drugs or drug
    paraphernalia.

The Vehicles

[20]

The
    381 vehicle driven by Harneet Pannu was registered to Lovejeet Bains at a
    Stoney Creek address. The 824 vehicle driven by Lovejeet Bains was registered
    to Kulwant Pannu at the same Brampton address at which Harneet Pannu lived. No
    evidence was elicited about the identity of Kulwant Pannu or his relationship
    with Harneet Pannu.

The Trial Proceedings

[21]

At
    the conclusion of the case for the Crown, counsel for both Bains and Pannu
    sought a directed verdict of acquittal. The trial judge remarked that the case
    for the Crown was far from strong but supported a reasonable inference that
    both Bains and Pannu were involved in drug trafficking and thus in joint
    possession for the purpose of trafficking of the heroin found in the vehicle
    driven by Bains.

[22]

The
    jury deliberated over lunch for about two and one-half hours before finding
    each of Bains and Pannu guilty as charged. Counsel had no objections to the
    charge. The jury asked no questions.

THE GROUNDS OF APPEAL

[23]

On
    their appeals from conviction, Bains and Pannu advance two common grounds of
    appeal. Each submits that:


i.

juror misconduct, not discovered until after the jury had rendered its
    verdict, could reasonably have affected the verdict and thus caused a
    miscarriage of justice; and


ii.

the jurys verdict is unreasonable.

[24]

In
    addition to the common grounds, Pannu alleges error in the trial judges
    failure to caution the jury about their use of evidence of post-offence
    conduct. Bains contends that the trial judge erred in failing to accede to his
    motion for a directed verdict of acquittal.

[25]

Both
    Bains and Pannu appeal the sentence imposed on them. Each says that the
    sentence is unfit for a first offender. Each argues that the sentence imposed would
    be fit for the more serious offence of importing and thus exceeds the
    appropriate range of sentence for possession for the purpose of trafficking.

[26]

On
    the appeal from conviction, I will consider first the grounds of appeal that
    relate to juror misconduct and the failure to properly instruct the jury on
    evidence of after-the-fact conduct by Pannu. I will next turn to the claim that
    the verdict is unreasonable, including the specific submission by Bains that
    the trial judge erred in dismissing the directed verdict application at trial.
    I will then address the sentence appeal.

THE CONVICTION APPEAL

Ground #1: Juror Misconduct

[27]

This
    ground of appeal was a central focus of the oral arguments in this court. The impugned
    conduct occurred before the trial judge charged the jury and thus before the
    jury began its brief deliberations. However, the conduct was not discovered
    until after the jury had delivered its verdict and been discharged by the trial
    judge.

The Jury Room Discovery

[28]

Within
    an hour of the verdict, a Court Services Officer found a document between two juror
    binders left on the table in the jury room. The document was typewritten. The
    first portion of it was in bold typescript.

[29]

The
    document read:

The decision to acquit Casey Anthony of killing her
    daughter Caylee has shocked and baffled many people, but some experts say its
    just the latest sign of juries ignorance, failure to use common sense, and
    inabilityor disinclinationto properly weigh evidence. Lloyd Grove reports.
[Bolding
    in original.]

You should also remember, however, that it is nearly impossible
    to prove anything with absolute certainty. The Crown is not required to do so.
    Absolute certainty is a standard of proof that does not exist in law.

[1] To make your decision, you should consider carefully, and
    with an open mind, all the evidence presented during the trial. It will be up
    to you to decide how much or little of the testimony of any witness you will
    believe or rely on. You may believe some, none or all of the evidence given by
    a witness.

[2] When you go to the jury room to consider the case, use your
    collective common sense to decide whether the witnesses know what they are
    talking about and whether they are telling the truth. There is no magic formula
    for deciding how much or how little to believe of a witnesss testimony or how
    much to rely on it in deciding this case.

The Notice to Counsel

[30]

Court
    staff notified the trial judge immediately about their discovery. The trial
    judge had the Court Services Officer who had discovered the document prepare a
    statement explaining the circumstances in which he had found it.

[31]

The
    day following the discovery, the trial judge sent a letter to counsel
    explaining what had happened. He enclosed a copy of the document and advised
    that he had requested the Court Services Officer prepare a statement which
    would be disclosed to counsel. That statement was later disclosed to counsel.

The Initial Hearing

[32]

At
    the initial hearing following the discovery, trial counsel for Bains invited
    the trial judge to declare a mistrial or enter a stay of proceedings. Counsel
    for Pannu, who had not been counsel at trial, submitted that the trial judge
    had no jurisdiction to grant the remedy sought by counsel for Bains. Counsel
    for Pannu asked the trial judge to conduct an inquiry into what happened to
    create a record for appellate review.

[33]

The
    trial Crown agreed that the trial judge was
functus
, and that he could
    not declare a mistrial or stay proceedings after discharge of the jury. The trial
    Crown argued that even if the trial judge had the authority to conduct an
    inquiry, which was not conceded, he should not do so in the circumstances.

The Preliminary Decision

[34]

The
    trial judge decided that he would conduct an inquiry to determine whether
    anyone else on the jury had conducted any research; the extent to which what
    was found or anything else was disclosed to other jurors; and when the
    materials had been brought into the jury room.

[35]

The
    trial judge explained that the Court Services Officer who found the document
    would testify first to be followed by the juror on whose binder the document
    had been found. Counsel were permitted to question the Court Services Officer. However,
    only the trial judge would examine the juror, with suggestions from counsel
    about appropriate questions.

[36]

During
    the initial inquiry, the trial judge learned that another juror, not the juror
    being questioned, was the person who had brought the material to the jury room.
    As a result, the trial judge expanded the inquiry to include the remaining 11
    jurors.

The Evidence on the Inquiry

[37]

The
    Court Services Officer testified that he found a single page document between
    two binders on the table in the jury room. Each juror had been given a binder
    when the trial began. The Officer explained that deliberating jurors have no
    computer access when sequestered. Court staff collect computers from jurors
    when deliberations begin.

[38]

One
    juror testified on the first phase of the inquiry. The trial judge had been
    under the impression from what he had been initially told by court staff that
    the document had been found with this jurors binder. The juror explained that
    he had not created the document. He had picked it up, seen that it referred to
    Casey Anthony and put it down without reading further.

[39]

On
    the further inquiry, the trial judge asked each juror whether they had seen the
    document and, if they had, whether they had read it in whole or in part. The
    trial judge did not ask any juror what effect, if any, the document had on the
    jurors decision or whether the juror relied on it to reach his or her
    decision.

[40]

The
    evidence on the inquiry established that the jury foreman had created the
    document on the weekend prior to the judges charge and had brought copies of
    it into the jury room on the day the charge was to be given. He put the
    document on the jury room table before jurors entered the courtroom to hear the
    judges charge.

[41]

Some
    jurors picked up the document. Although there was evidence that there was some
    level of discussion, no one expressed any interest in it. Few, if any, of the
    jurors other than the foreman read it in its entirety. Some jurors put the
    document down as soon as they saw Casey Anthony. Some considered the document
    inappropriate.

The Arguments on Appeal

[42]

The
    appellants say that the foremans misconduct in bringing extraneous materials
    into the jury room caused a miscarriage of justice and warrants a new trial.

[43]

The
    appellant Pannu acknowledges a presumption that jurors will abide by their oath
    or affirmation and decide the case on the evidence and according to the trial
    judges instructions on the governing legal principles. The presumption is
    rebuttable, however, and has been rebutted here by evidence of a taint caused
    by the presence of extraneous material in the jury room. Although we cannot
    know the actual effect of this material because of the jury secrecy rule, a
    verdict based on extraneous information is not a true verdict.

[44]

Pannu
    contends that he need only show that there is a reasonable possibility that the
    extraneous information affected the verdict to succeed on this ground. A
    reasonable possibility means a real risk and that has been made out here.

[45]

Pannu
    says each excerpt in the document raises different concerns.

[46]

Pannu
    states that the Casey Anthony excerpt demonstrates outrage at an acquittal in
    what appeared to be an overwhelming prosecution case and focuses jurors
    attention on an improper consideration  the publics reaction to an acquittal
    and what people would think of them, the jurors. The excerpt also equates
    acquittals with inadequate juror understanding, ignorance and the failure to
    use common sense.

[47]

According
    to Pannu, the jury charge excerpt is unbalanced, disclosing only a standard of
    proof that the Crown does not have to meet, rather than explaining what is
    required. Such a description usurps the role of the trial judge in providing
    instructions to the jury about the governing legal principles.

[48]

In
    its entirety, Pannu says, the document encouraged jurors not to be fooled by
    legal sleight of hand and not to subject the case for the Crown to an
    unreasonably exacting standard of proof impossible of satisfaction. They should
    not abandon common sense and acquit.

[49]

Bains
    adds two further points. He says that the jury instruction excerpt is, by
    nature, coercive in much the same way as the timid juror instruction that
    equates acquittal with a failure to discharge responsibility. Bains also reminds
    us that a miscarriage of justice is equally established by a demonstration of
    an appearance of unfairness, which has been plainly made out here.

[50]

The
    respondent urges a cautious approach. The mere fact that extraneous information
    was available for jury consumption does not require that the appellants
    convictions be set aside. It is important to determine, as we begin, whether
    the information contained in the document is improper and whether anything that
    may be improper about it affected the verdict of the jury. The latter inquiry
    is circumscribed by the jury secrecy rule and abjures any consideration of the
    actual effect on the reasoning process of the jurors.

[51]

The
    respondent says that a realistic assessment of the impact of the extraneous
    material should begin with a determination of whether the jurors actually read
    the document. Apart from the jury foreman who created the document, the
    remaining jurors, with one exception, said either that they had not read the
    document or that they put it down after reading the Casey Anthony portion. The
    evidence of the Court Services Officer about the foremans personality is of no
    value since it is at once speculative and removed from consideration by the
    secrecy rule.

[52]

The
    respondent argues that the Casey Anthony excerpt is not improper. It amounts to
    nothing more than a view a juror could bring to and express during the
    give-and-take of the deliberation process. Familiarity with notorious cases,
    domestic or foreign, is part of a jurors stock-in-trade, and thus intrinsic to
    the deliberation process and inadmissible in verdict impeachment.

[53]

In
    any event, the respondent continues, the Casey Anthony excerpt consisted of a
    single sentence about a different case, in another country, for a different
    offence. Although the prior instruction about not seeking information out of
    court might not have resonated with the foreman, there was no reason to think
    the remaining jurors would have disobeyed the trial judges instruction.

[54]

The
    respondent accepts that the excerpt from the Canadian Judicial Council model
    jury instructions was improper because it contravened the trial judges express
    instructions that jurors were to take their legal instructions from him and no
    other source.

[55]

In
    the end, however, the respondent argues that the appellants suffered no
    prejudice by the inclusion of an incomplete excerpt of a jury instruction on
    the standard of proof and the assessment of evidence. The trial judges final
    instructions on the burden and standard of proof, the meaning of proof beyond a
    reasonable doubt and the manner in which jurors were to assess evidence were
    impeccable and provided to the jury in writing. There was no manifest
    appearance of unfairness from the availability of this material.

The Governing Principles

[56]

To
    determine this ground of appeal, an issue that has engaged appellate courts in many
    jurisdictions, it is helpful to begin with a recollection of some fundamental
    principles about the role of the jury and the basis upon which jury verdicts
    may be impeached.

The Role of the Jury

[57]

In
    a jury trial, as judges routinely instruct jurors, the task of the jury
    includes:


i.

determination of the facts;


ii.

acceptance of the governing legal principles as explained by the trial
    judge; and


iii.

application of the legal principles, as explained by the trial judge, to
    the facts, as found by the jury, to reach a verdict the law prescribes for
    those facts on each count in the indictment.

[58]

Judicial
    instructions explain to jurors that their findings of fact are to be made based,
    and based only, on the evidence adduced at trial, including reasonable
    inferences from that evidence. Judges define what constitutes evidence, as well
    as what falls beyond its reach and thus cannot be used as a basis for findings
    of fact. Like outside information. Emotions. Punishment. And the views of
    others.

[59]

Judicial
    instructions also distinguish the role of the judge from that of the jury. The
    instructions explain that the judge is the exclusive source of the legal
    principles that the jurors are to follow. Jurors are expressly instructed not
    to rely upon their own ideas about the law or to do their own legal research.
    In most cases, these instructions are given immediately after the jury has been
    empanelled and are repeated in the charge.

[60]

Preliminary
    instructions also describe what might be characterized as the course of the
    evidence at trial. The case for the Crown proceeds first. Then the defence may,
    but is not required to, introduce evidence. Where defence evidence has been
    introduced, reply evidence may, but does not have to, follow. And that is the
    end of the evidence.

[61]

In
    a jury trial, we presume that jurors will perform their duties according to
    their oath or solemn affirmation:
R. v. Vermette
, [1988] 1 S.C.R. 985,
    at p. 992;
R. v. Hubbert
(1975), 29 C.C.C. (2d) 279 (Ont. C.A.), at p.
    289, affd [1977] 2 S.C.R. 267. This presumption of impartiality is rebuttable:
R. v. Spence
, 2005 SCC 71, [2005] 3 S.C.R. 458, at para. 23;
R. v.
    Sherratt
, [1991] 1 S.C.R. 509, at p. 536. We also presume that jurors
    understand and follow the instructions they are given:
R. v. Corbett
,
    [1988] 1 S.C.R. 670, at p. 695. This presumption is also rebuttable.

The Jury Secrecy
    Rule at Common Law

[62]

Jurors
    deliberate in secret but give their verdict, often in a word or two, in open
    court. They bring to their task their entire lives experiences. Their
    knowledge of human behaviour, gained outside the courtroom, helps them assess
    the credibility of witnesses and gauge the reliability of evidence. Jurors have
    opinions, formed by what they see and hear. And by what they read. Opinions do
    not disqualify them from jury service unless those opinions interfere with
    their ability to render an impartial verdict:
R. v. Pan; R. v. Sawyer
,
    [2001] 2 S.C.R. 344, at pp. 378-9.

[63]

To
    promote candour and full and frank debate in the jury room, essential to
    collegial decision-making, the common law created a rule of secrecy about jury
    deliberations. The rule, sometimes described as Lord Mansfields rule,
    prohibits a court, whether of first instance or on review, from receiving
    evidence of jury deliberations for the purpose of impeaching the jurys
    verdict:
Pan
, at p. 373;
Danis v. Saumure
, [1956] S.C.R. 403,
    at pp. 406-7.

[64]

A
    modern formulation of the common law rule is that statements made, opinions
    expressed, arguments advanced and votes cast by members of the jury in the
    course of their deliberations are inadmissible in any legal proceedings:
Pan
,
    at p. 386. It follows that jurors cannot be asked and cannot testify about the
    effect of anything on their or on other jurors minds, emotions or ultimate
    decision:
Pan
, at p. 386.

[65]

The
    reach of the common law rule does not extend to render inadmissible evidence of
    facts, statements or events
extrinsic
to the deliberation process that
    may have tainted the verdict. And it is of no moment whether this evidence
    emanates from a juror or through some third party:
Pan
, at p. 386.

The Statutory Prohibition: s. 649 of the
Criminal Code

[66]

Section
    649(1) of the
Criminal Code
creates a summary conviction offence that
    prohibits jurors from disclosing information about what took place in the jury
    room while the jury was absent from the courtroom that was
not
later
    disclosed in open court. The prohibition is not restricted to information
    disclosed during deliberations and is subject to an exception for an
    investigation of and testimony about an alleged offence under s. 139(2) of the
Criminal
    Code
in relation to a juror.

[67]

The
    common law jury secrecy rule and s. 649(1) of the
Criminal Code
together further the policy goals of promoting free and frank debate among
    jurors, protecting jurors from harassment and preserving public confidence in
    the administration of justice:
Pan
, at p. 391.

Impeachment of Jury Verdicts

[68]

Despite
    the combined force of the common law secrecy rule and s. 649(1) of the
Criminal
    Code
, the impeachment of jury verdicts is not a mere shibboleth devoid of
    substance. Courts have permitted impeachment when the basis of the challenge is
    improper conduct of a jury member, or by someone else towards a jury member,
outside
the deliberation process:
Pan
, at p. 386. The common law rule and its
    statutory complement do not reach evidence that jurors were exposed to
    extrinsic information in the course of their deliberations. And we pay no heed
    to whether such information comes from a juror or third party. But we draw the
    line and foreclose evidence about the effect of any extrinsic information on
    their deliberations:
Pan
, at p. 377.

[69]

To
    ensure a fair trial, courts have tried to maintain the integrity and
    impartiality of the jury by shielding jurors from pre-trial publicity, rulings
    that exclude evidence at trial and other incidents that might spawn an
    impermissible chain of reasoning. Preliminary and final instructions enjoin
    outside research and reliance on anything other than what the law considers
    evidence fit for jury consumption.

[70]

But
    the growing availability of and apparently insatiable appetite for information
    poses a formidable challenge to the right to a fair trial in the 21
st
century. Traditional forms of media have expanded onto the worldwide web. New
    forms of media have emerged as the web makes everyone a publisher, and social
    media help disseminate publications, both traditional and untraditional. It has
    become increasingly difficult to control the dissemination of information, with
    jurors able to use not only computers and tablets but also smartphones and even
    watches to access online material, and to curb the appetite of jurors for it.
    And with little quality control over content. The sensational trumps the
    accurate; fevered imaginings, truth.

[71]

No
    special statutory provision governs our review of jury verdicts impeached on
    the basis that extraneous information came to the attention of jurors prior to
    or during deliberations.

[72]

Sometimes,
    the irregularity is discovered prior to verdict and the trial judge conducts an
    inquiry and makes a decision about the suitability of individual jurors or the
    jury as a whole continuing with the trial. In those circumstances, we review
    the trial judges conclusion, according it deference in the absence of legal
    error, misapprehension of evidence or patent unreasonableness. In other
    instances, as here, the irregularity is not discovered until after verdict, and
    the trial judge conducts an inquiry and creates a record for appellate review. In
    those cases, we examine that record to determine whether there was an
    irregularity and, if so, what impact it had on the verdict.

[73]

Typical
    of appellate review, our task does not end with identification of an error or
    irregularity in the conduct of a trial. Although the jury secrecy rule denies
    us first hand evidence of the effect of extraneous information on the actual
    verdict reached, we are required, within the limits of appellate disadvantage,
    to gauge the impact of any improper influence. And this we do by examining the
    record to determine whether there was a reasonable possibility, in the
    circumstances of the case under review, that the information had an effect on
    the verdict of the jury:
Pan
, at para. 59;
R. v. Farinacci
,
    2015 ONCA 392, at para. 26.

[74]

The
    approach we follow, eschewing a bright-line rule in favour of a contextual
    case-by-case analysis and insisting upon some link between the irregularity and
    the result, has been followed in other common law jurisdictions where verdicts
    have been impeached on a similar basis.

United Kingdom

[75]

In
    the United Kingdom, a recent amendment to the
Juries Act 1974
makes it
    an offence for a juror trying a case before a court to intentionally seek
    information that he or she knows or ought to know is or may be relevant to the
    case. This includes information relating to the law of evidence, and covers
    searches of electronic databases, including by means of the internet.

[76]

An
    appellant who alleges that a jury verdict should be set aside because extrinsic
    information came to the jurys attention prior to or during deliberations must
    show that the irregularity, which was material, rendered the conviction unsafe
    within s. 2(1) of the
Criminal Appeal Act 1968
, as amended by the
Criminal
    Appeal Act 1995
. If the Court of Appeal finds that the conviction is
    unsafe, it must allow the appeal and quash the conviction.

[77]

In
R. v. Karakaya
, [2005] EWCA Crim 346 (C.A. (C.D.)), the extrinsic
    materials were not case-specific but did relate to prosecutions for sexual
    offences, the same type of offence on which the appellant was being tried. Counsel
    for the appellant described the materials  the feminist position on rape and
    rape in the criminal justice system  as tendentious and inaccurate, a
    description which the court stated was not unfair. The court considered that
    the materials offended very well established principles including that no
    further evidence could be given after the summing-up had concluded and that the
    parties were entitled to know the materials considered by the decision-maker.

[78]

The
Karakaya
court concluded that the convictions were not safe, but made
    two important observations in doing so. The court queried whether every breach
    should warrant a new trial and considered that the irregularity could result in
    the application of the proviso, akin to s. 686(1)(b)(iii) of the
Criminal
    Code
:
Karakaya
, at para. 18.

[79]

In
R. v. Marshall; R. v. Crump
, [2007] EWCA Crim 35, the Court of Appeal
    Criminal Division held that when the extrinsic material was not discovered
    until after a verdict, it would consider whether the verdicts rendered were
    safe. Relevant considerations include:


i.

the nature of the materials;


ii.

the deliberation history, including questions asked by jurors; and


iii.

the discriminating nature of the verdicts rendered by the jury:
Marshall;
    Crump
, at para. 12.

The court rejected any bright line rule that required
    that a conviction be quashed on proof of extrinsic information in favour of a
    case-by-case analysis. The court required the appellants to show that they had
    been adversely affected by the materials:
Marshall; Crump
, at para.
    13.

[80]

Later
    authorities affirm the rejection of a bright line rule. Each insists on a
    case-by-case analysis not founded on speculation:
R. v. Burcombe
,
    [2010] EWCA Crim 2818 (C.A. (C.D.)), at para. 18;
R. v. McDonnell
,
    [2010] EWCA Crim 2352, [2011] 1 Cr. App. R. 28 (C.A. (C.D.)), at para. 27.

[81]

In
R. v. Thompson
, [2010] EWCA Crim 1623, [2011] 1 W.L.R. 200, the Court
    of Appeal heard six appeals together. Each case involved a juror irregularity.
    Lord Judge C.J. explained the courts approach to internet contamination was
    the same as in other cases in which extraneous material had been introduced. In
    para. 11, the Chief Justice held:

If, on examination, this material strikes at the fairness of
    the trial, because the jury has considered material adverse to the defendant
    with which he has had no or no proper opportunity to deal, the conviction is
    likely to be unsafe: R v Karakaya. If the material does not affect the safety
    of the conviction, the appeal will fail.

Australia

[82]

At
    least some states in Australia have enacted legislation that prohibits juror
    research, renders a breach of the prohibition a criminal offence punishable on
    conviction by a term of imprisonment and, if discovered before verdict, permits
    or requires discharge of the offending juror from further participation in the
    trial.

[83]

In
    Victoria, the Court of Appeal considered a case where, despite repeated
    warnings about deciding the case on the evidence, court staff located six
    internet printouts in the jury room. Each contained articles about various
    words that were of importance as components of essential elements of the
    offences charged. The trial judge refused to declare a mistrial. Counsel
    alleged the judge erred in failing to do so.

[84]

The
    Court of Appeal of Victoria in
Benbrika and Others v. The Queen
,
    [2010] VSCA 281, 204 A. Crim R. 457, at paras. 212-3, outlined its approach to
    cases involving improper internet searches in these terms:

The question whether there should be a discharge of a jury by
    reason of internet searches having been carried out in defiance of a judges
    orders has been considered on a number of occasions. If the Court concludes
    that there has been an irregularity, it must determine whether there is a
    significant possibility that the irregularity affected the outcome of the trial.
    Not every departure from the relevant laws and procedures for the proper
    conduct of a criminal trial may prejudice or colour the overall trial so as to
    affect the verdict. Accordingly, such a departure will not necessarily
    constitute a miscarriage of justice.

The test for determining the materiality of an irregularity has
    been variously stated. In general terms, the question to be asked by an
    appellate court is whether it can be satisfied that the irregularity has not
    affected the verdicts, and that the jury would have returned the same verdicts
    if the irregularity had not occurred. [Footnote references omitted.]

[85]

In
    New South Wales, an amendment to the
Jury Act
prohibits juror
    inquiries about an accused or any matters relevant to the trial. Making an
    inquiry includes conducting research by searching in an electronic database. In
    one case, a trial judge learned about a jurors inquiries but did not conduct
    an inquiry to determine whether the juror had engaged in misconduct and had to
    be discharged under the statute. Instead, the trial judge cautioned the jurors
    not to make such inquiries. The Supreme Court quashed the conviction and
    ordered a new trial on the ground that, irrespective of prejudice, the failure
    to comply with a mandatory provision relating to the
constitution
of
    the jury (discharge of the offending juror) rendered the verdict unsustainable:
Smith v. The Queen
, [2010] NSWCCA 325, at para. 40.

[86]

In
Folbigg v. R.
, [2007] NSWCCA 271, the New South Wales Court of
    Criminal Appeal described its approach to post-verdict discovery of in-trial
    internet research by jurors. The court considered first whether there was a
    miscarriage of justice and, if so, whether a substantial miscarriage of justice
    actually occurred:
Folbigg
, at para. 11. The court emphasized that only
    a material irregularity, and not every irregularity, could constitute a
    miscarriage of justice:
Folbigg
, at para. 17. To determine whether an
    irregularity was material, the court considered whether it could be satisfied
    that the irregularity had not affected the verdict and that the jury would have
    returned the same verdict if the irregularity had not occurred:
Folbigg
,
    at para. 17. Relevant factors include:


i.

the nature of the irregularity;


ii.

the relevance of the irregularity to the issues before the jury;


iii.

whether the material arising from the irregularity was prejudicial; and


iv.

the extent of any prejudice:
Folbigg
, at para. 18.

New Zealand

[87]

In
    considering appeals based on juror misconduct, including computer usage during
    trial, the New Zealand Court of Appeal imposes a threshold requirement of
    reasonably grounded suspicion, meaning the existence of suspicion on an
    objective view that the misconduct may have influenced the verdict:
R. v.
    Bates
, [1985] 1 NZLR 326 (C.A.), at p. 328;
R. v. Walker
, [2002]
    3 NZLR 468 (C.A.), at p. 475; and
R. v. Patterson
, [2008] NZCA 12, at
    paras. 11-13.

Canada: the
    Standard under s. 686(1)(a)(iii)

[88]

Section
    686(1)(a)(iii) authorizes an appellate court to allow an appeal on any ground
    that there was a miscarriage of justice. On its face, the section is not
    limited to errors of law but encompasses any kind of error. Errors that engage
    s. 686(1)(a)(iii) are
not
subject to the operation of the proviso in
    s. 686(1)(b)(iii), although the procedural proviso in s. 686(1)(b)(iv) may forgive
    some errors.

[89]

An
    appellant who advances his or her case under s. 686(1)(a)(iii) is
not
required to establish that she or he has been wrongly convicted or that the
    conviction is unreasonable:
R. v. Lohrer
, [2004] SCC 80, [2004] 3
    S.C.R. 732, at para. 3.

[90]

A
    court invited to set aside a conviction on the basis that it constitutes a
    miscarriage of justice engages in a fact-specific analysis of the circumstances
    underpinning the claim. The court considers the gravity of any irregularities
    that occurred at trial and their impact on the actual and apparent fairness of
    that trial. A miscarriage of justice may be established where a procedural
    irregularity or other trial incident created an appearance of unfairness:
R.
    v. Khan
, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 73.

[91]

An
    appearance of a miscarriage of justice requiring a new trial exists where the
    irregularity is such that it taints the administration of justice in the eyes
    of a reasonable observer:
R. v. Spiers
, 2012 ONCA 798, 293 C.C.C. (3d)
    17, at para. 32. In other words, would a well-informed reasonable person,
    considering all the circumstances, perceive the trial as appearing to be unfair:
Khan
, at para. 73. The irregularity must be sufficiently significant
    or pronounced to amount to a miscarriage of justice:
R. v. M. (L.W.)
,
    2008 SKCA 168, 239 C.C.C. (3d) 326, at para. 68.

The
    Principles Applied

[92]

For
    reasons that I will develop, I would not give effect to this ground of appeal.

[93]

The
    analysis must begin with a consideration of the nature of the extrinsic
    information contained in the document prepared by the foreman and placed on the
    table in the jury room shortly before the trial judge charged the jury.

[94]

Recall
    that the document consisted of two parts.

[95]

The
    first part, in bold type, consisted of an introductory paragraph about the
    result of a highly-publicized murder trial in the United States. Nothing about
    the evidence. Or the essential elements of the offence charged. A comment about
    the reaction of many people to the verdict  an acquittal. Unidentified
    experts assigning responsibility for this verdict to the ignorance of jurors,
    their failure to use common sense and their inability or disinclination to
    properly weigh evidence.

[96]

The
    Casey Anthony material was provocative and tendentious. It referred to a
    proceeding several light years removed from the case the jurors were chosen to
    decide. Of some note it referred to two subjects about which the judge would
    instruct the jurors: one  public opinion  the trial judge would and did say was
    irrelevant; the other  common sense  the trial judge would and did emphasize should
    be the jurors guide throughout.

[97]

The
    second part of the document consisted of edited excerpts from model
    instructions on reasonable doubt and the assessment of evidence promulgated by
    the Canadian Judicial Council. Neither was complete. Neither was legally wrong.
    And each would form part of the trial judges final instruction on the same
    subjects. Jurors had individual written copies of the trial judges final
    instructions to guide them in their deliberations.

[98]

An
    additional point of context concerns the oath or affirmation jurors take or
    make when selected. We presume that they will well and truly try and a true
    verdict give according to the evidence, abjure what is not evidence, and not be
    distracted by background noise. We also presume that they will follow the trial
    judges instructions on the governing legal principles.

[99]

To
    determine whether the extraneous information the foreman brought to the jury
    room caused a miscarriage of justice, I have considered individually and
    cumulatively several factors.

[100]

First, whether
    the jurors actually reviewed the materials, and to what extent. That the jury
    secrecy rule denies us direct evidence of the effect of the materials on the
    deliberation process does not diminish the importance of showing actual reading
    of the materials. There can scarcely be a reasonable possibility that
    extraneous information could affect the verdict or the apparent fairness of the
    trial if the jurors eyes and ears did not take in that information. The
    evidence establishes the presence of several copies of the document in the jury
    room on the morning the trial judge charged the jury. But the evidence also
    demonstrates that, but for the foreman and perhaps one other juror, nobody
    actually read the material in full. In particular, nobody besides the foreman
    and perhaps that one additional juror got beyond the Casey Anthony diatribe.

[101]

Second, the
    length of time the document was available. The document appeared the day the
    judge charged the jury. The evidence betrays any suggestion that it was
    provided earlier in this brief trial and available for juror review as the case
    unfolded.

[102]

Third, the
    extent to which the extraneous information was discussed or considered by the
    jury. The jury secrecy rule renders inadmissible any evidence about the effect
    of the document on a jurors mind during the deliberations but did not prohibit
    questions about whether a discussion occurred. Although the foreman testified
    that there was discussion of the document, he acknowledged that there was
    little interest in it. This lack of interest is evidenced by the fact that
    seven of the 12 jurors did not read the document and two read only the Casey
    Anthony portion. Of the remaining three, one, the foreman, read the document in
    its entirety; one didnt even read much and one took a look. The evidence
    of the jurors on the inquiry belies any discussion of either aspect of the
    document.

[103]

Fourth, the
    relationship of the extraneous information to the contested issues at trial.
    The contested issues at trial focused on knowledge and control of heroin located
    under the passenger seat of the car driven by Bains. Neither part of the
    document was directly relevant to knowledge or control, nor for that matter to
    any essential element of the offence charged. To the extent the excerpts from
    the Canadian Judicial Council instructions refer to the standard of proof in
    assessment of evidence, neither was legally wrong. The trial judge gave
    unimpeachable instructions, delivered orally and provided in writing, together
    with a direction that judicial instructions about the law trumped anything
    anybody else said about the subject.

[104]

Fifth, whether
    the extraneous information was outside the jurors generalized knowledge. The
    Casey Anthony excerpt, to the extent it related to a notorious trial and public
    reaction to the verdict, may not have been beyond the knowledge of individual
    jurors and thus may have been part of the vast storehouse of experience each
    juror brought to the table and deliberations.

[105]

Sixth, whether
    curative instructions were given or some other step taken to redress any
    prejudice. The existence of this material was not communicated to the trial
    judge prior to his charge or in advance of verdict. Although the trial judge
    was unable to conduct an inquiry or provide more specific jury instructions,
    the charge reinforced earlier instructions (ignored by the foreman) that
    confined deliberations to their proper subject matter and reiterated the
    exclusive source of legal instructions as the trial judge.

[106]

Finally, whether
    the extraneous information related specifically to anyone on trial and included
    any information that revealed extrinsic misconduct by a person charged. The
    extraneous information in this case did not relate specifically to either Bains
    or Pannu and thus revealed no extrinsic misconduct by either of them.

[107]

What occurred
    here falls short of establishing a miscarriage of justice through an appearance
    of unfairness. To decide otherwise would be tantamount to creating a
per se
rule that any extraneous information that enters the jury room impairs the
    apparent fairness of the trial and constitutes a miscarriage of justice that
    requires a new trial.

[108]

In this case, a
    single juror ignored the trial judges instructions. He compiled a document. Of
    the remaining jurors, some looked at the first part and put it down. Others did
    not even pick it up. This is not the fabric of which appearances of unfairness
    are woven.

A Post
    Script

[109]

In
Farinacci
,
    my colleague offered some valuable suggestions about instructions that trial
    judges might give prospective and empanelled jurors at various stages of the
    trial to remind them of their obligations and to point out the impropriety and
    practical consequences of breaches of prohibitions on research and other forms
    of inquiry. Unfortunately, as this case illustrates, some jurors ignore what
    they are told.

[110]

In some cases,
    it may be helpful for the trial judge to instruct empanelled jurors not to
    bring computers, tablets, cellphones, smartwatches or any devices with research
    capacities to the jury room at any stage of the trial. This injunction is
    imperfect, of course, because it does not stop the curious from doing research
    elsewhere when the jury is not in the courtroom. In that respect, it may be
    appropriate to add some specifics to the injunction against research, as for
    example, that jurors are not to access legal databases, earlier decisions,
    pre-trial publicity or any other material of any kind relating to any subject
    or person connected with the trial. To underscore the point, if need be, a
    reminder that a breach of the injunction would amount to and be punishable as
    contempt might not go amiss.

[111]

A brief
    explanation of two aspects of the standard caution could also prove beneficial.
    An additional reason for not undertaking research into the law, or into the
    factual background of the case, is that the legal principles stated may not be
    applicable to the trial proceedings, or may be incomplete or inaccurate, just
    like some commentary or statements made about the factual background. Further,
    in connection with discussions with others, almost inevitably others will offer
    some contribution or observation. These contributions or observations are of no
    value though, since the person expressing them will not have heard or seen the
    evidence, received directions, or taken the oath or made the solemn affirmation
    binding on the jurors.

[112]

In some
    jurisdictions, courts have suggested inclusion of what might be termed a
    whistleblower instruction. This direction counsels any juror who learns a
    fellow juror has made an inquiry outside court by electronic or other means
    about the accused, the background of the offence, the legal principles that
    apply or any other subject expressly prohibited by the judge, or has caused anybody
    else to do any of those things, to bring the matter immediately to the
    attention of the trial judge. Such an instruction should also explain the
    reason why the trial judge should be alerted about such conduct: without
    notice, it may not be possible to set the matter straight and, if not discovered
    until after verdict, it may become necessary to try the case again.

[113]

It may also be fitting
    to ensure that Court Services Officers be reminded regularly to report any
    extraneous material found in the jury room immediately upon discovery. Timely
    report enhances the likelihood that remedial steps can be taken during trial if
    the discovery precedes verdict, or immediately thereafter, as in the
    circumstances of this case, to determine the nature of the irregularity and the
    appropriate remedy to correct it.

Ground #2: Failure to Instruct
    on Evidence of Post-offence Conduct

[114]

Pannu takes
    issue with the trial judges failure to caution the jury about their use of
    evidence of his abrupt lane change in reaching their verdict.

[115]

Earlier in these
    reasons I have described the evidence that is the subject of this ground of
    appeal. It is unnecessary to reiterate that description here but appropriate to
    make three brief observations about it.

[116]

First, the lane
    change occurred
before
Bains made his left turn at Torbram Rd. to
    proceed along Derry Rd. and
before
he was stopped and arrested, and
    the vehicle he was driving was searched.

[117]

Second, the
    evidence was admitted as part of a narrative of events leading up to the arrest
    of Bains and later Pannu. No objection was taken to its admissibility.

[118]

Third, evidence
    was also admitted of Pannus driving
after
Bains had been arrested and
    prior to Pannus own arrest.

The
    Arguments on Appeal

[119]

Pannu says
    evidence of his lane change was a lynchpin of the Crowns case against him. It
    was put forward as evidence as post-offence conduct that linked him to the
    commission of the offence charged by consciousness of guilt-type reasoning. The
    evidence was fraught with significant dangers and engendered significant
    prejudice in a prosecution case that was far from strong. The trial judge erred
    in failing to provide a cautionary instruction to jurors to stifle the
    prejudicial effect inherent in this evidence.

[120]

The respondent
    contends that evidence of Pannus driving, in particular the abrupt change from
    the left to the right turn lane, was relevant, material and properly admissible
    as part of the narrative. From it, according to the respondent, the jury could
    infer that Pannu was involved with Bains in a nefarious joint activity, had
    detected police surveillance and sought to divert their attention from Bains who
    was carrying the drugs. That other inferences could be drawn from this evidence
    is of no moment to the issues of relevance, materiality or admissibility.

[121]

The respondent
    points out that trial counsel did not object to the admissibility of this
    evidence or suggest that the trial judge should caution the jury about its use.
    It was
not
tendered as and was
not
evidence of post-offence
    conduct, thus was not subject to any caution that might be given in respect of
    such evidence.

The
    Governing Principles

[122]

This ground
    warrants brief reference to three matters of principle. The first has to do
    with the
actus reus
or conduct element in offences of which possession
    is an essential component. The second and third relate to evidence of
    post-offence conduct and demeanour evidence.

[123]

Possession is an
    essential component of the offence charged  possession of heroin for the
    purpose of trafficking. Possession is a conduct crime that begins when
    possession is gained and continues until it is relinquished. In this sense,
    possession can be seen as a continuing offence.

[124]

Post-offence
    conduct refers to anything said or done by an accused after the commission of
    an offence. It comprises a vast array of words and conduct:
R. v. White
,
    2011 SCC 13, [2011] 1 S.C.R. 433, at para. 21. Most evidence of post-offence
    conduct enters the trial record unexceptionally as an unremarkable part of the
    narrative:
White
, at para. 140.

[125]

Evidence of
    post-offence conduct is a species of circumstantial evidence, not some special
    category or type of evidence. It invokes a retrospectant chain of reasoning,
    sponsoring an inference from things said or done later, after an event, to
    involvement in the prior event or a state of mind associated with it. As a
    species of circumstantial evidence, no special rule is attached to evidence of
    post-offence conduct:
White
, at paras. 31, 105, 137. But in some
    cases, where a trier of fact may find the evidence of greater value than its
    intrinsic worth, a caution about use may be required:
White
, at paras.
    106, 185.

[126]

Sometimes we
    receive demeanour evidence, that is to say, evidence of how a person appeared
    or acted after or during an event. In its normal, natural everyday sense, the
    term demeanour refers to conduct, behaviour, a way of acting or to a persons
    bearing, mien or outward manner. Implicit in the reception of evidence of a
    persons demeanour, however, are two invalid assumptions. The first assumes
    that for every action or event there is a normal reaction or manner of
    reaction. And the second is that an individuals reaction actually reflects his
    or her inner emotional reaction or state:
R. v. Wall
(2007), 203
    C.C.C. (3d) 232 (Ont. C.A.), at para. 49.

[127]

As a result of
    the invalid assumptions that underpin demeanour evidence, this evidence
    requires a predominance of probative value over prejudicial effect to be
    admissible:
Wall
, at para. 50.

The Principles Applied

[128]

For several
    reasons, I would reject this ground of appeal.

[129]

First, this
    evidence was relevant, material and admissible as an essential part of the
    narrative. It offended no admissibility rule of the law of evidence. It was an
    item of circumstantial evidence fit for jury consumption. It was not demeanour
    evidence.

[130]

Second, it was
    not evidence of post-offence conduct. Put simply, the conduct described was not
    post-offence. It occurred contemporaneously with the possession that was the
    subject-matter of the prosecution. The possession continued until the package
    was seized by police. The evidence was circumstantial evidence of
    contemporaneous conduct that could assist the trier of fact in determining
    whether the appellants were engaged in a joint venture and the nature of that
    venture.

[131]

Third, this
    evidence was neither tendered nor relied upon by the trial Crown as evidence of
    post-offence conduct. Nor could it have been advanced on such a basis.

[132]

Fourth, even if
    advanced as evidence of post-offence conduct, there is no
per se
rule
    of caution associated with this species of circumstantial evidence. Nor was
    there anything peculiar to this evidence that would require an
ad hoc
caution.

[133]

Finally, trial
    counsel neither objected to the admissibility of this evidence nor sought any
    specific instruction about it. Although not dispositive, the failure to raise
    either issue tends to support a conclusion that trial counsel did not consider
    what occurred prejudicial to Pannus defence.

Ground #3: Unreasonable Verdict
    and Failure to Grant a Directed Verdict Application

[134]

The second
    ground of appeal common to both appellants is that the verdict of the jury
    finding each appellant guilty of possession of heroin for the purpose of
    trafficking is unreasonable. Bains also complains that the trial judge erred in
    dismissing his directed verdict application at the conclusion of the case for
    the Crown.

[135]

To situate the
    argument in its proper context, it is helpful to recall the essential features
    of the case for the Crown at trial.

The Essential Facts

[136]

Several events
    were uncontroversial at trial.

[137]

Around 6 p.m. on
    October 3, 2010, Bains and Pannu were driving separate vehicles in the same
    traffic lane of Torbram Rd. at its intersection with Derry Rd. The vehicles
    were in the southbound left turn lane of Torbram Rd. A left turn would take each
    vehicle and driver eastbound on Derry Rd.

[138]

In the same
    traffic lane were several unmarked police vehicles. The officers in those
    vehicles were dressed in plain clothes but wore vests and had police
    identification hanging around their necks.

[139]

Bains and Pannu
    were driving cars that were of the same make, model and colour. Neither car was
    driven by its registered owner. Bains was driving a car registered to an owner
    in Brampton who had the same surname and lived at the same address as Pannu.
    And Pannu was driving a car registered to Bains at an address in Stoney Creek.

[140]

Despite his
    position in the left turn lane, Pannu did not turn left. Instead, he crossed
    two lanes of traffic into the right turn lane and turned right. He drove west
    along Derry Rd., the opposite direction from his original signalled intention.

[141]

In Bains motor
    vehicle, the one registered to a person with the same last name who lived at
    the same address as Pannu, police found 1 kilogram of heroin in a vacuum sealed
    bag inside an opaque plastic bag stuffed under, but protruding from, the front
    passenger seat. A digital scale was also in the bag.

[142]

Despite its
    proximity to the drivers seat, neither the plastic bag nor its contents were
    visible or accessible from the drivers seat. The heroin was of sufficient
    quantity for trafficking. Depending on how it was sold, the heroin had a value
    of up to $350,000. No fingerprint or DNA analysis was done on the bag or any of
    its contents.

The Directed
    Verdict Motion

[143]

The case for the
    Crown consisted entirely of circumstantial evidence. The Crown alleged that
    Bains and Pannu were in joint possession of the kilogram of heroin found in the
    car Bains was driving. The quantity, it was conceded at trial, supported a
    finding that the purpose of possession was trafficking.

[144]

The defences
    advanced at trial focused on the essential elements of possession: knowledge
    and control. Bains submitted that the Crown had failed to adduce sufficient
    evidence to establish his knowledge of the drugs found in the car he was driving.
    Pannu alleged that the evidence was insufficient to establish either knowledge
    or control. Each sought a directed verdict of acquittal.

[145]

The trial judge
    dismissed both motions for a directed verdict. Mindful of the circumstantial
    nature of the case for the Crown, the trial judge concluded that the evidence,
    taken as a whole, permitted a properly instructed jury acting reasonably to
    conclude that Bains and Pannu were engaged in a joint enterprise involving the
    sale of heroin. The trial judge did not consider the Crowns case to be strong
    but pointed out that the switch of vehicles, the value of the heroin (rendering
    it unlikely that anybody would leave it out of their control) and the tandem
    driving were sufficient to survive the challenge.

The Arguments
    on Appeal

[146]

The appellant
    Bains acknowledged, as trial counsel had conceded, that a sufficient
    evidentiary predicate existed on the issue of control to warrant its
    consideration by the jury and not render such a finding, if it were made,
    unreasonable. But, Bains says, on the more expansive review required on an
    argument of unreasonable verdict, the cumulative effect of the evidence does
    not rise above speculation. Indeed, at either stage, the evidence of knowledge
    is at best speculative.

[147]

Bains acknowledges
    that the evidence could support a finding that at some point a vehicle switch
    occurred. But the simple fact of a switch of vehicles affords no evidence of
    knowledge on Bains part. The proximity of Pannu may support the inferences
    required in connection with Pannu, but none on the critical issue of Bains
    knowledge.

[148]

The appellant
    Pannu begins with a reminder about the nature and scope of review in which we
    are to engage in assessing the reasonableness of a jury verdict. This is no
    simple redo of a directed verdict decision. What we must determine, Pannu says,
    is whether 12 properly instructed jurors acting judicially could reasonably
    have concluded as they did. And in our analysis we are to review, analyze and,
    within the limits of appellate disadvantage, weigh the evidence and consider,
    through the lens of judicial experience, whether judicial fact-finding precludes
    the conclusion reached by the jury.

[149]

In this case,
    Pannu says, the Crown was required to establish knowledge of the character of
    the substance in the vehicle driven by Bains and control over it. There was no
    evidence to support an inference that Pannu put the drugs in the vehicle and
    intended that they be there for his or somebody elses use or benefit. A mere
    change of vehicles cannot support such an inference. Nor can evidence of a lane
    change, abrupt or otherwise. Nor can post-arrest curiosity fill the gap.

[150]

The respondent
    rejects the claims of error advanced by the appellants. The trial judge made no
    mistake in his dismissal of Bains motion for a directed verdict of acquittal.
    And the guilty verdicts rendered by the jury, after an impeccable charge and no
    evidentiary response by either appellant, are reasonable.

[151]

The respondent
    says that the only issue put in play by Bains on the directed verdict
    application was knowledge. The trial judge was cognizant of the limited
    weighing exercise in which he was to engage on this issue because of the
    circumstantial nature of the case for the Crown. He concluded that the combined
    force of the evidence of switching motor vehicles, driving in tandem, the
    significant value of the heroin and the telephone communications pointed to a
    joint venture in the distribution of contraband of which a jury could find
    Bains knew the nature.

[152]

The respondent
    points out that in the unreasonableness analysis, the evidence reveals nothing
    that the lens of judicial experience, applied to the evidence adduced, would
    militate in favour of a finding of unreasonableness. No tainted witnesses gave
    evidence. No bizarre allegations were made. No eyewitness identification
    evidence was received. Only inferences from established facts. No evidence to
    support any hypothesis suggestive of innocence. And no evidence from either
    appellant.

The Governing Principles

[153]

To determine the
    outcome of this ground of appeal, it is helpful to begin with a brief reminder
    of the essential elements of possession and the manner in which they may be
    proven where the subject-matter is a controlled substance. Thereafter, I will
    discuss the principles that govern a directed verdict application in a case
    that consists wholly of circumstantial evidence before examining the scope of
    appellate review of decisions on directed verdicts and the standard we are to
    apply in deciding whether a jury verdict is unreasonable under s. 686(1)(a)(i).

The Essential Elements of Possession

[154]

Section 2(1) of
    the
Controlled Drugs and Substances Act
, S.C. 1996, c. 19, as amended
    (
CDSA
), incorporates the definition of possession found in s. 4(3)
    of the
Criminal Code
so that any
CDSA
offence of which
    possession is an essential element may be proven in any manner permitted by s.
    4(3) of the
Criminal Code
.

[155]

Under s. 4(3),
    possession includes personal possession, constructive possession and joint
    possession:
R. v. Morelli
, 2010 SCC 8, [2010] 1 S.C.R. 253, at para.
    15. Knowledge and control are essential elements in both personal and
    constructive possession:
Morelli
, at para. 15.

[156]

Constructive
    possession does
not
involve an accused having physical custody of a subject-matter.
    Constructive possession is established where an accused has the subject-matter
    in the actual possession or custody of another person, or in any place, whether
    belonging to or occupied by the accused or not, for the benefit of the accused
    or someone else:
Morelli
, at para. 17. To establish constructive
    possession the Crown must prove beyond a reasonable doubt that an accused:


i.

knows the character of the object;


ii.

knowingly puts or keeps the object in a place; and


iii.

intends to have the object in the place for his or her use or benefit or
    the use or benefit of some other person:
Morelli
, at para. 17.

[157]

As with other
    offences, Crown counsel may prove the essential elements of constructive
    possession by direct evidence, by circumstantial evidence or by a combination
    of direct and circumstantial evidence. Where the subject matter of which an
    accused is alleged to be in possession is a controlled substance of significant
    value, it may be open to a trier of fact to infer not only knowledge of the
    nature of the subject, but also knowledge of the substance itself:
R. v.
    Blondin
(1970), 2 C.C.C. (2d) 118 (B.C.C.A.), at p. 121;
R. v.
    Fredericks
, [1999] O.J. No. 5549 (C.A.), at paras. 3-4;
R. v. To
,
    1992 CanLII 913 (B.C.C.A.); and
R. v. Bryan
, 2013 ONCA 97, at para.
    11. It is a reasonable inference that such a valuable quantity of drugs would
    not be entrusted to anyone who did not know the nature of the contents of the
    bag or other container.

The Directed
    Verdict Standard

[158]

The standard a
    judge is to apply when asked to decide a directed verdict application at the
    conclusion of the case for the Crown is the same standard a justice applies in
    deciding whether to order committal at the conclusion of a preliminary inquiry
    under s. 548(1) of the
Criminal Code
. The issue to be determined is
    whether there is any evidence upon which a reasonable jury properly instructed
    could return a verdict of guilt:
United States of America v. Shephard
,
    [1977] 2 S.C.R. 1067, at p. 1080;
R. v. Monteleone
, [1987] 2 S.C.R.
    154, at p. 160; and
R. v. Arcuri
, 2001 SCC 54, [2001] 2 S.C.R. 828, at
    para. 21.

[159]

The standard on
    a directed verdict application does not differ according to whether the Crowns
    case consists of direct or circumstantial evidence. But the nature of the
    judges task varies according to the nature of the evidence adduced. Where the
    evidence of any essential element is entirely circumstantial, the judge engages
    in limited weighing of the evidence to determine whether the evidence,
    considered as a whole, is reasonably capable of supporting the inference the
    Crown seeks to have the trier of fact draw about that essential element:
Arcuri
,
    at para. 23.

[160]

The limited
    weighing of circumstantial evidence on an application for a directed verdict
    does not entitle the judge to draw factual inferences, assess credibility or
    ask whether he or she would find guilt established if assigned the role of
    trier of fact:
Arcuri
, at para. 23. Provided the judge concludes that
    the evidence as a whole, if believed, could
reasonably
support an
    inference of guilt, a directed verdict motion will fail:
Arcuri
, at
    paras. 23, 30, 33.

The Unreasonable Verdict Test

[161]

The reasonableness
    of a jury verdict focuses on the conclusion reached at trial  the verdict 
    and measures it against the totality of the evidence adduced at trial:
R.
    v. Sinclair
, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 69, 78, 81.

[162]

Under s.
    686(1)(a)(i), our function extends beyond merely finding that there was
    evidence adduced at trial to support a conviction, the verdict rendered by the
    jury. We are to determine on the evidence as a whole whether the verdict is one
    that a properly instructed jury, acting judicially, could reasonably have rendered:
R. v. Yebes
, [1987] 2 S.C.R. 168, at p. 186;
Sinclair
, at
    para. 79. In making this determination, we are required to ask not only whether
    there is evidence in the record to support the verdict, but also whether the
    jurys conclusion conflicts with the bulk of judicial experience:
R. v.
    Biniaris
, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 40;
R. v. W.H.
,
    2013 SCC 22, [2013] 2 S.C.R. 180, at para. 28.

[163]

On review of a
    jury verdict for unreasonableness, we are to treat the verdict rendered with
    great deference, according due weight to the jury who were ear and eyewitnesses
    to the evidence as it unspooled at trial:
W.H.
, at paras. 2, 27. See
    also:
R. v. François
, [1994] 2 S.C.R. 827, at p. 837. We are
not
to act as a thirteenth juror. Nor are we simply to give effect to vague
    unease or lurking doubt based on our own review of a sterile printed record.
    Nor are we to label a verdict unreasonable just because three of us at one
    remove would have a reasonable doubt on our own review of the printed record:
W.H.
,
    at para. 27. We must ask ourselves two questions:


i.

whether the jurys verdict is supportable on
any
reasonable
    view of the evidence; and


ii.

whether proper judicial fact-finding, applied to the evidence as a whole,
precludes
the conclusion reached by the jury:
W.H.
, at para.
    2.

[164]

A final point.
    In a determination of whether a jury verdict survives a reasonableness analysis
    under s. 686(1)(a)(i), an appellate court is entitled to take into account an
    appellants failure to testify:
R. v. Corbett
, [1975] 2 S.C.R. 275, at
    pp. 280-1.

The
    Principles Applied

[165]

To take first
    Bains submission that the trial judge erred in law in dismissing his motion
    for a directed verdict.

[166]

I would not give
    effect to this ground of appeal.

[167]

The trial judge
    provided cogent reasons for dismissing the motions for directed verdicts of
    acquittal. He stated and applied the proper test, acknowledged the
    circumstantial nature of the case for the Crown and set out in detail the
    inferences available from that evidence. His reasons demonstrate a thorough
    understanding of the essential elements of possession, that is to say,
    knowledge and control of the contraband; reveal no misapprehension of the
    evidence adduced; and maintain the distinction between permissible inferences
    and impermissible speculation. They reflect a correct disposition of the motion
    for directed verdicts of acquittal and warrant no interference by this court.

[168]

Turning to the
    argument that the jurys verdict is unreasonable, I would also reject that
    ground of appeal.

[169]

In my respectful
    view, there was evidence on the basis of which a reasonable jury acting
    judicially could be satisfied that the appellants were in possession of one
    kilogram of heroin for the purpose of trafficking.

[170]

The jury was
    entitled to infer that the appellants were engaged in a joint venture. Each was
    driving a vehicle registered to or connected with the other. For all practical
    purposes, the vehicles were identical. Same make, model and colour. The cars
    were a few vehicles apart in the same lane at the same time apparently heading
    in the same direction. After Pannu changed routes, he returned to the area
    where Bains was headed or located. He changed directions at least twice to do
    so. He contacted Bains by phone very shortly after they were cars apart at the
    same intersection.

[171]

The jury was
    also entitled to infer that the joint venture in which Bains and Pannu were
    involved was the possession of heroin for the purpose of trafficking.

[172]

Police found one
    kilogram of heroin and a digital scale in a plastic bag under the front
    passenger seat of the car Bains was driving. The registered owner of the car
    was a person who lived at the same address as Pannu. At trial, Bains
    acknowledged that there was evidence on which the jury could find that he had
    control of the package in the vehicle he was driving.

[173]

It was open to
    the jury to infer from the quantity and value of the heroin found in the car
    Bains was driving that the drugs would not have been left unattended or
    entrusted to somebody who did not know the nature of the contents of the bag.

[174]

It was also open
    to the jury to infer that Pannu had knowledge of and a measure of control over
    the heroin. The vehicle in which the heroin and scale were found was registered
    to a person with the same last name and same residence address as Pannu. Bains,
    who did not live in the area, was driving this vehicle. Pannu was driving
    Bains car. The vehicles were travelling in close proximity in the same
    direction. When Pannu changed his direction of travel, he returned several
    times to the area where Bains had been stopped and called him on his cellphone.
    Pannu drove to the parking lot to recover the vehicle in which the heroin and
    scale were found.

[175]

In our
    assessment of the reasonableness of the verdicts rendered at trial, we are also
    entitled to take into account the appellants failure to testify. On its own,
    the failure to testify does not justify an inference of guilt. What follows
    from a failure to testify, however, is the absence of an innocent explanation
    of inculpatory facts and thus a basis to conclude otherwise than guilt.

[176]

The lens of
    judicial experience refers to our examination of the cogency of the evidence
    adduced at trial, as informed by our awareness of the risks of wrongful
    convictions associated with certain kinds of cases and certain kinds of evidence
    and the witnesses who provide it. As an institutional participant in the
    criminal justice system, we have an appreciation of the risks of a wrongful
    conviction that an individual jury assigned the task of deciding a single case
    cannot have.

[177]

Our task is to
    consider whether the jurys conclusion conflicts with the bulk of judicial
    experience. A verdict is unreasonable when, in all the circumstances of the
    case, judicial fact-finding precludes the conclusion reached by the jury. In
    this case, the appellants have failed to bring their case within what is
    required for us to interfere.

[178]

The evidence
    adduced at trial was brief and uncomplicated. The issues were clearly defined.
    For Bains, knowledge. For Pannu, knowledge and control. No tainted witnesses.
    No bizarre allegations. No risk of prejudice from the nature of the offence
    charged or evidence of extrinsic misconduct. No issues of credibility of
    witnesses or the reliability of their testimony.

[179]

The evidence the
    jury had to consider was entirely circumstantial. Their verdict depended on the
    inferences they would draw from that evidence taken as a whole. It is a task
    for which jurors are well, perhaps uniquely, equipped. The instructions they
    received were without blemish. Their conclusion in this case coincides with the
    bulk of judicial experience.

THE SENTENCE APPEAL

[180]

Bains and Pannu
    contend that the sentences of imprisonment of nine years imposed by the trial
    judge on each of them are unfit. Each seeks a reduction in the term of
    imprisonment imposed upon him.

The Positions of the Parties at
    Trial

[181]

At trial, Crown
    counsel sought a sentence of imprisonment of 12 years for each appellant.
    Counsel for Bains submitted that a sentence of seven years would be fit for
    Bains as the person in actual possession of the heroin. Counsel for Pannu
    sought a sentence of five to six years, pointing out that Pannu was not in
    actual possession of the drugs.

The Reasons of the Trial Judge

[182]

The trial judge
    identified the range of sentence appropriate for possession of one kilogram of
    heroin for the purpose of trafficking as a sentence of imprisonment in a
    penitentiary for six to 12 years. He rejected the trial Crowns submission of
    12 years because of an absence of any of the statutory aggravating factors. It
    was his view that a term of imprisonment at the lower or mid-level of the range
    was apt.

[183]

The trial judge
    concluded that the circumstances did not warrant a distinction between the
    appellants. Each was a first offender with a good work record. They acted
    together in the transportation of the heroin. Their conduct was deliberate,
    reflective of prior planning and an equivalent recognition of the risk assumed.

[184]

The trial judge
    considered that the predominant sentencing objectives were general and specific
    deterrence as well as denunciation. He considered the absence of prior criminal
    records and the presence of family support and work records as mitigating factors.
    He also pointed out the highly addictive nature of the heroin, its promotion of
    other crimes to sustain its users habits and its ruination of lives and
    families.

The Arguments on Appeal

[185]

The appellant
    Pannu acknowledges at the outset that the trial judge correctly identified six
    to 12 years as the appropriate range of sentence. He properly noted the absence
    of any statutory aggravating factors. He readily took into account the
    unblemished antecedents and solid family and work backgrounds of both
    appellants. His rejection of the top-of-range sentence proposed by the trial
    Crown was proper.

[186]

Pannu says that
    the trial judge erred in principle by applying a sentencing decision in an
    importing case to determine a fit sentence for convictions of possession for
    the purpose of trafficking. Importing is a more serious offence. It attracts a
    more substantial carceral sentence. The sentence imposed here should have been
    about seven years, not nine years as would have been fit for importing the same
    quantity of heroin.

[187]

Bains made no
    oral submissions on the appeal from sentence, simply adopted in his factum the
    argument advanced by Pannu. Bains seeks a reduction in his sentence from nine
    to five or six years.

[188]

The respondent
    resists any variation in the sentences imposed by the trial judge. Despite a
    misapprehension in the applicable range of sentence  the range is eight to 12
    years, rather than six to 12 years as described by the trial judge  the sentences
    imposed are fit.

[189]

The respondent
    rejects any suggestion that the trial judge erred in principle by treating
R.
    v. Mensah
(2003), 170 O.A.C. 244, as a benchmark for sentencing the
    appellants on their convictions of the lesser offence of possession for the
    purpose of trafficking. The trial judge expressly pointed out that
Mensah
was an importing case and that importing was a more serious offence than
    trafficking or possession for the purpose of trafficking.
Mensah
did
    not purport to establish a benchmark for first offender importers, let alone
    first offenders who possessed heroin for the purpose of trafficking, and the
    trial judge made no such use of it.

Discussion

[190]

Although I would
    grant leave to appeal sentence, I would dismiss the appeals from sentence. My
    reasons are brief.

[191]

First, we must
    accord great deference in reviewing sentencing decisions made by trial judges.
    In the absence of an error in principle, a failure to consider a relevant
    factor or an over or under emphasis of appropriate factors, we should only
    interfere to vary a sentence if the sentence is demonstrably unfit.

[192]

Second, the
    sentences imposed are within the range of sentence the appellants themselves
    concede is appropriate for first offenders convicted of possession of heroin
    for the purpose of trafficking. The sentences sit at the mid-point of the range
    the appellants say is apt, although some authority suggests that the
    appropriate range is nine to 12 years for similar amounts of heroin:
R. v.
    Shahnawaz
(2000), 149 C.C.C. (3d) 97 (Ont. C.A.), at para. 6.

[193]

Third, read as a
    whole, the reasons reflect no error in principle. The trial judge identified and
    applied the predominant sentencing objectives of deterrence and denunciation.
    He took into account the unblemished antecedents of the appellants, their
    family support and consistent employment history. But they were also found in
    possession of a substantial amount of a highly addictive drug. It is a
    reasonable inference that their purpose was financial gain. Nothing more.
    Nothing less. For those so inclined, the price upon conviction must be steep.

[194]

Fourth, I am not
    satisfied that the trial judge used an importing case as the benchmark for
    sentencing the appellants on convictions of possession for the purpose of
    trafficking. Indeed, he cited the very case that held it was wrong to do so in
    giving his reasons for sentence.

CONCLUSION

[195]

For these
    reasons, I would dismiss the appeals from conviction. I would grant leave to
    appeal sentence but dismiss the appeals from sentence.

Released: October 7, 2015 (D.W.)

David Watt J.A.

I agree. S.E. Pepall J.A.

I agree. Grant Huscroft J.A.


