



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Athwal, 2017 ONCA 222

DATE: 20170321

DOCKET: C56612

MacPherson, Juriansz and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gurvinder Singh Athwal

Appellant

Gurvinder Athwal, acting in person

Brian H. Snell, appearing as duty counsel

Rick Visca, for the respondent

Heard: February 7 and 10, 2017

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

Juriansz J.A.:


[1]

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

A.

Conviction Appeal

(1)

Erroneous instruction on the conspiracy count

[2]

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

[3]

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

[4]

I do not give effect to this ground of appeal.

(2)

Erroneous
Vetrovec
instruction and prior inconsistent statements

[5]

Duty counsel also submits the trial judge erred in her
Vetrovec
caution
    regarding Harvinder Singh, who testified under an immunity agreement. In a
    related argument, he submits that the trial judge failed to provide the jury
    with adequate guidance as to how to assess Harvinder Singhs inconsistent
    statements under oath. These arguments were also advanced by the appellants co-accused
    Harsharn Deol, whose appeal on these issues was heard at the same time.

[6]

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

[7]

In regard to duty counsels final submission that the trial judge failed
    to adequately highlight Singhs inconsistent statements under oath prior to
    trial and at trial, I note that the trial judges charge followed most
    strenuous attacks on Singhs credibility by counsel for the appellants
    co-accused. The trial judge did review some of Singhs inconsistencies and told
    them they could consider all of his prior testimony to have been given under
    oath or solemn affirmation. She told the jury that it should consider the
    fact, nature and extent of any differences in deciding the importance of
    inconsistent statements and in deciding whether they would believe and rely
    upon the witnesss testimony. The jury was also instructed to consider any
    explanation the witness gave for the difference.

[8]

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

[9]

Finally, I note that the appellants trial counsel was given the
    opportunity to review the trial judges proposed charge and suggested no
    modification of the charge in these regards.

[10]

The
    conviction appeal is dismissed.

B.

Sentence Appeal

[11]

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

[12]

The
    appeal from sentence is dismissed.

Released: March 21, 2017 ("RGJ")

"R.G. Juriansz J.A."

"I agree J.C. MacPherson J.A."

"I agree. Paul Rouleau J.A."


