



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Deol, 2017 ONCA 221

DATE: 20170321

DOCKET: C56636

MacPherson, Juriansz and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Harsharn Deol

Appellant

Alan D. Gold, for the appellant

Rick Visca, for the respondent

Heard: February 10, 2017

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

Juriansz J.A.:

[1]

The appellant was convicted at a jury trial of importing and conspiracy
    to import heroin, and of possession of and conspiracy to possess heroin for the
    purposes of trafficking. He appeals his convictions on all four counts alleging
    several errors in the trial judges instructions to the jury. He also appeals
    his sentence.

[2]

For the reasons that follow, I would dismiss the conviction and sentence
    appeals.

A.

Factual Overview

[3]

The allegations at trial were that the appellant, along with three co-accused,
    Godwin Deane, Tajinder Singh Lally and Gurvinder Singh Athwal, had imported approximately
    11.9 kilograms of heroin into Canada on or about December 15, 2009. The RCMP had
    detected the heroin and made a controlled delivery to a body shop at 1094
    Westport, Mississauga. RCMP surveillance officers made observations about the
    arrival of a silver Nissan Sentra that they subsequently followed. The driver
    was later identified as Harvinder Singh. Harvinder Singh was offered an
    immunity agreement in exchange for testifying and the charges against him were stayed.

[4]

The prosecutions case against all accused rested heavily on the
    testimony of Harvinder Singh. The co-accused, Deane, testified in his own
    defence. The other co-accused did not, and no other witnesses on behalf of the
    defence were called. The jury convicted the appellant and Athwal, and acquitted
    Deane and Lally.

[5]

The RCMP intercepted telephone calls made by a Jaswinder Singh to the
    customs broker and to Harvinder Singh, Athwal, Deane and Lally. There were no
    intercepted calls from Jaswinder Singh to the appellant, Deol. The Crowns
    theory was that Jaswinder Singh was in fact the appellant. Three witnesses
    identified the voice of Jaswinder Singh on the intercepted telephone calls as
    that of the appellant. The three witnesses were Harvinder Singh, a cousin and
    former business partner of the appellant named Paramjit Deol, and the co-accused
    Deane, who had received one of the intercepted calls from the telephone number
    associated with Jaswinder Singh.

[6]

At trial, both prosecution and defence saw that the central question the
    jury had to decide was whether it was satisfied beyond a reasonable doubt that
    the appellant was Jaswinder Singh. The appellants trial counsel said to the
    jury:

So lets talk about what this case is all about. This is what this
    issue  the real issue here. The real issue for you to determine is whether you
    are satisfied beyond a reasonable doubt that Mr. Deol was indeed Jaswinder
    Singh. Identity is an essential element of all four of the charges the Crown
    must prove. Once you have found that there is a reasonable doubt that Mr. Deol
    was Jaswinder Singh, in other words, okay, you know what, were not sure. Were
    not sure if hes Jaswinder Singh. Ill get to reasonable doubt in a second. It
    is your duty to find him not guilty of all the charges. Thats the defence
    here, and thats what Im asking you. I just boiled it down into a nutshell and
    Im going to get into reasonable doubt.

[7]

The Crown put it this way, [t]his case is about the voice of Harry
    Deol. If I have not satisfied you on that, I have some serious problems.

[8]

The trial judge agreed this was the real issue, saying [t]he real
    issue, members of the jury, is whether you are satisfied beyond a reasonable
    doubt that Mr. Deol is Jaswinder Singh on the intercepts. The trial judge
    explained that this was the real issue because:

The person who identifies himself as Jaswinder Singh on the
    intercepts is clearly involved in the pickup and delivery of the coolers
    containing heroin from the customs broker. That person has arranged for the
    payment of all the fees and the payment for the delivery of the shipment to a
    location provided by them.

B.

Conviction Appeal

[9]

The appellant alleges the trial judge failed to provide proper
    instructions to the jury, and especially failed to caution the jury in response
    to improper submissions made by other counsel. The adequacy of the trial
    judges instructions to the jury must be reviewed in the context of the issues
    joined at trial. The closing addresses of counsel are also relevant in
    considering alleged defects in the trial judges instructions.

(1)

No instruction on the frailties of voice identification

[10]

The
    appellant submits the trial judge erred by failing to instruct the jury on the
    frailties of voice identification. I am not persuaded that such an instruction
    was required in this case. The three witnesses who identified the voice on the
    intercepted communications involving Jaswinder Singh as the appellants were
    each quite familiar with the appellant and his voice. At trial, the defence
    attacked the credibility of these witnesses, and not their ability to reliably
    identify the appellants voice. There was good reason for the defence approach
    as all three witnesses were familiar with the appellant and his voice. The
    witness Deane even testified that he had a telephone conversation with the
    appellant that emanated from the number associated with Jaswinder Singh.

[11]

The
    trial judge instructed the jury that it had to be satisfied beyond a reasonable
    doubt that the voice of Jaswinder Singh on the intercepts was that of the
    appellant, and pointed out that there was no independent evidence to that
    effect.

[12]

The
    record in this case is inadequate to support the broad proposition advanced on
    appeal that a trial judge must always instruct the jury on the frailties of
    voice identification.

[13]

I
    do not give effect to this ground of appeal.

(2)

Erroneous
Vetrovec
instruction and prior inconsistent statements

[14]

The
    appellant submits the trial judges
Vetrovec
instruction pertaining to
    Harvinder Singh was flawed. 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 made under oath.

[15]

In
    my view, the instruction was satisfactory. Harvinder Singh was indeed an
    unsavoury witness. Not only had he been granted immunity, there were other
    features of his testimony that were capable of undermining his credibility. The
    trial judge provided careful instructions about his testimony emphasizing the
    serious charges he was facing, and the various inconsistencies in his evidence
    at trial and the previous statements he had made to the police and at the
    preliminary hearing.

[16]

The
    trial judge instructed the jury that it should look for some confirmation of Harvinder
    Singhs evidence from somebody or something other than Harvinder Singh before
    relying on his testimony. The trial judge added that [t]o be confirmatory, the
    testimony of another witness or witnesses or other evidence should help restore
    your faith in relevant parts of Harvinder Singhs evidence. The trial judge
    provided the jury with several illustrations of independent evidence that could
    be seen to confirm aspects of Mr. Singhs testimony. I am not persuaded that
    the illustrations were immaterial.

[17]

I
    note that the trial judges charge followed most strenuous attacks on the
    credibility of Singh by counsel for the appellants co-accused. Still, the
    trial judge reviewed the prior inconsistent statements of Singh, 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.

[18]

These
    instructions and the robust attack on Harvinder Singh by all defence counsel ensured
    the jury was well-equipped to evaluate his credibility.

[19]

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.

[20]

It
    is apparent that the jury approached the evidence of Harvinder Singh with the
    requisite caution as it acquitted Lally where the Crowns case against Lally
    depended entirely on the testimony of Harvinder Singh.

[21]

I
    do not give effect to these grounds of appeal.

(3)

Need for a special instruction on applying Deanes evidence to the
    appellant

[22]

The
    appellant submitted that the trial judge erred by failing to give a special 
Vetrovec
-type
    instruction on the use of the evidence of Deane as it applied to the appellant.
    Appellants counsel submitted that this court indicated in
R. v. Oliver
,
    (2005), 28 C.R. (6th) 298 (Ont. C.A.), leave to appeal to S.C.C. refused (2006),
    28 C.R. (6th) 298, that such a caution is appropriate where an accused
    incriminates a co-accused in his or her testimony.

[23]

In
    response, the Crown stated that since the appellants trial counsel did not
    request such an instruction, this courts decision in
R. v. Anigwe
,
    2016 ONCA 755, applies. In
Anigwe
, at para. 5, this court held that absent
    any request by appellants counsel for such a special instruction, the trial
    judges failure to give one cannot be characterized as non-direction amounting
    to misdirection. The Crown, however, was mistaken. At the pre-charge
    conference, the appellants trial counsel clearly requested that the trial
    judge provide a 
Vetrovec
type instruction  on Deanes evidence.

[24]

That
    said, I am not persuaded that this courts decision in
Oliver
goes as
    far as the appellant contends. In
Oliver
, such a cautionary
    instruction was given at trial, and the appeal was brought by the accused, Mr. Morrison,
    whose testimony was the object of the instruction. The trial judge instructed
    the jury as follows:

I would add this caution. Mr. Morrison has given testimony that
    tends to show that only Mr. Oliver was involved in any assault on Mr. Pace. You
    should consider that testimony with particular care because he may have been
    more concerned about protecting himself than about telling you the truth. Bear
    that in mind when you decide how much or little you can believe of or rely on
    what Mr. Morrison told you about Mr. Oliver's involvement in deciding this
    case.

[25]

Mr.
    Morrisons appeal was unsuccessful, as this court concluded, at para. 57, that
    [t]he impugned instruction achieved the appropriate balance. The trial judge
    told the jury that his caution should be borne in mind when considering
    Morrisons evidence as it applied to Olivers involvement in the homicide. Doherty
    J.A., writing for the court, added the observation, at para. 58, that since
    the caution is justified exclusively as a protection of the co-accuseds
    fair trial rights, trial judges should canvass with counsel for the co-accused
    the need for any caution before instructing the jury. If counsel take the
    position that no caution is warranted, none should be given. Doherty J.A.
    made the additional point, at para. 60, that:

Where a trial judge determines that the fair trial rights of
    a co-accused require a "caution"
with respect to the testimony of
    the other accused, the trial judge should expressly tell the jury that the
    caution applies only to the case against the co-accused and has no application
    when considering the case against the accused who has testified. [Emphasis
    added.]

[26]

As
    I read the decision, Doherty J.A.s suggestion of what a trial judge should
    expressly tell the jury is predicated on the trial judge first determining that
    the fair trial rights of a co-accused require such a caution. This is clear
    because he earlier stated, The need to balance the fair trial rights of co-accused
    is a case-specific exercise.
Oliver
does not mandate or even encourage
    such a caution be routinely given.
Oliver
makes clear that a trial
    judge has the discretion to give such a caution where he or she considers the
    fair trial rights of a co-accused require it.

[27]

The
    case-specific exercise requires the trial judge, who has the best appreciation
    of all the circumstances, to determine whether the giving or refusing of such a
    caution achieves the soundest balance of the competing interests of the two
    co-accused.

[28]

Here,
    the trial judge believed that she could not instruct the jury to consider the
    testimony of an accused person with caution. Counsel for the appellant did not
    provide her with the
Oliver
decision, even though he was given the
    opportunity overnight to find some authority on the point. Though the trial
    judge proceeded on a mistaken view of the law, the trial was not rendered
    unfair. I say that for several reasons.

[29]

I
    think it likely the trial judge, had she realized she had the necessary
    discretion, would not have considered the caution necessary to protect the fair
    trial rights of the appellant. The transcript indicates she was concerned about
    the fair trial rights of Deane. Counsel for Deane had opposed the appellants
    trial counsels request for a warning asserting it had no validity. And, the
    appellants trial counsel argued vigorously in his closing address that Deane
    should not be believed because he was lying to save himself. He emphasized this
    point over and over again, and closed by exhorting the jury not to believe Deane
    who knew he was facing 12 to 14 years when he lied to the police. Same thing
    when hes lying to you.

[30]

The
    trial judge did specifically review for the jury inconsistencies between what Deane
    said at trial and what he had said in a statement he had given the police at
    the time of his arrest. She prefaced this review by telling the jury, The fact
    that Mr. Deane has previously said something different from what he testified
    here is one of many factors for you to consider when you decide how much or
    little you will believe or rely upon the evidence of Mr. Deane in deciding this
    case. The obvious interest of Deane in self-exculpation would not have been
    lost on the jury.

[31]

In
    my view, at the end of the day, when the jury retired to consider the case, it was
    well equipped to properly assess Deanes evidence as it pertained to the
    appellant. It would have been manifestly clear to the jury that Deane had a
    motivation to lie.

[32]

Consequently,
    I would not give effect to this ground of appeal.

(4)

No remedial instruction on the appellants right not to testify

[33]

In
    this case, trial counsel for Deane told the jury pointedly that the appellant:

had every right to testify and swear under oath that the voice
    of Jaswinder Singh on the recordings was not his. All he had to do was walk
    across the floor and swear on the holy book of his choice or affirm. He chose
    not to make that walk to the witness box.

[34]

The
    appellant argues that the trial judge erred in failing to give a specific
    remedial instruction responding to Deanes counsels remarks, as discussed in
    the Supreme Courts decision in
R. v. Prokofiew
,
2012 SCC 49, [2012] 2 S.C.R. 639
.
    Instead, the appellant submits the trial judge compounded the prejudice by
    summarizing Deanes position to the jury as follows:

The defence submits that there is no doubt that Harry Deol
    assumed the name of Jaswinder Singh. Mr. Deol had every opportunity to step
    into the witness box and say that Jaswinder Singhs voice was not his voice. He
    did not do so.

[35]

Counsel
    for Deane had vetted his proposed remarks with the trial judge beforehand, and
    the appellants trial counsel agreed he could make them. However, this vetting
    took place on October 5, 2012 before the Supreme Court released its judgement
    in
Prokofiew
on October 12, 2012. The trial judge instructed the jury
    on October 11, 2012.

[36]

Prokofiew
was a fraud case with two co-accused. Prokofiew did not testify but his co-accused
    did and incriminated him. In his closing address, the co-accuseds counsel implicitly
    invited the jury to treat Prokofiews silence at trial as evidence of guilt by
    saying Did [Mr. Prokofiew] have something to hide or did he simply have no
    response that could help him since there is no point in trying to contradict
    the truth? Moldaver J., writing for the majority of the Supreme Court,
    observed, at paras. 5-6, that the co-accuseds counsel could have relied on the
    fact that his client had testified to argue that he was innocent and had
    nothing to hide and that his testimony stood uncontradicted. However, the
    co-accuseds counsel could not invite the jury to use Mr. Prokofiews silence
    at trial as evidence, much less evidence of guilt.

[37]

The
    Supreme Court dismissed Prokofiews appeal, ruling that although an explicit
    remedial instruction from the trial judge would have been preferable, his jury
    charge, when considered as a whole, was adequate.

[38]

In
    this case, Deanes counsels remarks to the jury about the appellants failure
    to testify were more pointed and emphatic than the remark in
Prokofiew
.
    On the other hand, the trial judge in this case gave the jury much more extensive
    and explicit instructions about the right to silence and the presumption of
    innocence than did the court in
Prokofiew
. The trial judge told the
    jury the right to remain silent is fundamental, as is the right to choose when
    and how to exercise it. She made clear that:

The right to silence applies to all accused, including the
    three accused who did not testify. It is very important that you remember what
    I said [earlier] about the presumption of innocence and the burden of proof. As
    I said there and I want you to keep this foremost in your minds, accused
    persons do not have to testify or prove anything in a criminal trial. It would
    be wrong for you to consider this fact in your deliberations on the guilt or
    innocence [of the accused].

[39]

Moreover
    in this case, counsel for the three accused who did not testify made strong
    submissions about the right to silence.

[40]

Considering
    the jury charge as a whole and in the context of each counsels closing address,
    I reach the same conclusion as did the court in
Prokofiew
. Although an
    explicit remedial instruction from the trial judge responding to Deanes
    counsels remarks would have been preferable, the instructions that were given
    in the instant case, when considered as a whole, were adequate. The jury would
    have understood the appellant was presumed innocent, had the right not to
    testify, and the Crown bore the burden of proving his guilt beyond a reasonable
    doubt on the evidence called at trial.

[41]

I
    do not give effect to this ground of appeal.

(5)

Deanes counsels closing address and the appellants right to a fair
    trial

[42]

The
    appellant submits that his right to a fair trial was prejudiced by the highly
    emotional and pejorative commentary of the counsel for Deane and the failure of
    the trial judge to issue limiting and corrective instructions.

[43]

Counsel
    for Deane described the appellant as exceedingly devious, absolutely
    ruthless and slithering. The appellant also submits that counsel for Deane
    engaged in a personal attack on the appellants trial counsel, saying:

And not only is he a  ruthless person who will do such a thing
    who will  who will do such a thing, the ruse doesnt stop there. Hes so
    ruthless that his lawyer will then attack the innocent fall guy when the
    innocent fall guy takes the stand. In my respectful submission, he is so
    ruthless that he will do virtually anything to transfer his own blame from
    himself to Mr. Deane.



And, if, in fact, [trial counsel for the appellant] takes the
    position with you that its not his client an empty barrel makes the most
    noise.

[44]

The
    appellant acknowledges that this was a case of a cutthroat defence for the co-accused
    and, as such, finger-pointing among the four accused was expected and
    acceptable. The appellant also recognized that counsel for Deane was expected
    to enthusiastically and forcefully defend his client, including in his closing
    address to the jury. However the appellant submits that the inflammatory
    comments from Deanes counsel crossed into personal attacks that impugned the
    Appellants character and appeared designed to turn the jury against the
    Appellant.

[45]

The
    appellant submits the trial judge should have given a corrective instruction
    for the inflammatory and inappropriate comments of counsel for Deane.

[46]

I
    am not persuaded by this submission. The appellants trial counsel made no
    objection and did not request the trial judge to caution the jury. He, too,
    presented an animated and rhetorical closing address. The trial judge was best
    situated to assess the dynamics of the trial and to determine whether any
    specific instruction was necessary to ensure that no accused was prejudiced by
    the rhetoric of counsel.

(6)

Conclusion on conviction appeal

[47]

I
    would dismiss the appeal from conviction.

C.

Sentence Appeal

[48]

The
    appellant appeals his sentence of 16 years, arguing it was harsh and excessive
    as he was a first time offender. He recognizes that the leading case of
R.
    v. Sidhu
, 2009 ONCA 81, 94 O.R. (3d) 609, at para. 14, sets out that,
    absent exceptional or extenuating circumstances, first offender couriers who
    import large amounts of high grade heroin should expect to receive a sentence
    in the range of 12 to 17 years. In that case, Sidhu had pled guilty and his
    ultimate sentence was 14 years and 9 months. It cannot be said that the
    appellants sentence was outside the range and manifestly unfit.

[49]

As
    a consequence, I would dismiss the sentence appeal.

Released: March 21, 2017 ("RGJ")

"R.G. Juriansz J.A."

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

"I agree. Paul Rouleau J.A."


