



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Grewal, 2019 ONCA 630

DATE: 20190726

DOCKET: C64394

Tulloch, van Rensburg and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rajman Singh Grewal

Appellant

James Lockyer and Amy Ohler, for the appellant

Holly Loubert, for the respondent

Heard: April 11, 2019

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

van Rensburg J.A.:

INTRODUCTION

[1]

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

[2]

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

[3]

The appellant argues that the trial judge erred
    in her instructions on the
actus reus
of
    aiding and abetting, in that she did not emphasize, in her review of the
    evidence, the need for actual assistance on the part of an aider, and that the
    trial judge ought to have left with the jury a possible verdict of attempt to
    aid a kidnapping.
[1]
He also asserts that the trial judge erred in not linking her
W.(D.)

instruction to the defence of duress and in failing to
    correct Crown counsels improper reference to certain hearsay evidence in his
    closing address to the jury.

[4]

For the reasons that follow, I would dismiss the
    appeal.

RELEVANT FACTS

[5]

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

[6]

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

[7]

The appellant admitted that he was one of the
    two men who went to Pannus house and escorted him into his vehicle, but he
    maintained that Pannu entered his vehicle voluntarily. Moreover, the appellant
    testified that, earlier, a stranger had arrived at his house, pointed a gun at
    him and forced him to drive to Pannus house.  Along the way, two other men
    entered the Hummer. After the appellant was forced to drive to another
    location, Pannu and the unknown men got out. As he exited the appellants
    Hummer, Pannu told the appellant he would be back in half an hour. According to
    the appellant, one of the gunmen told him, Dont get the pigs involved. Were
    just gonna ask him some questions and hell be back, before they drove away.
    The appellant denied being present when Pannu was bound and beaten.

[8]

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

[9]

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

[10]

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

[11]

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

ISSUES ON APPEAL

[12]

There are four grounds of appeal.

[13]

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

[14]

The appellant also argues that the trial judge erred
    in not including in her
W.(D.)
(
R. v. W.(D.)
, [1991] 1 S.C.R.
    742)

instruction a reference
    to the appellants evidence that he had acted under duress, and by failing to
    correct the Crowns reliance on hearsay evidence in its closing argument.

[15]

I now turn to address each ground of appeal.

ANALYSIS

(1)

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

[16]

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

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

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

[17]

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

[18]

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

[19]

I would not give effect to this ground of
    appeal.

[20]

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

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

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

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

[21]

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

[22]

In my view there was no reversible error in the
    trial judges instructions on party liability.

[23]

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

·

At p. 60
[2]
,
    the trial judge stated:

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

·

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

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

·

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

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

·

At p. 62, the trial judge stated:

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

·

At p. 74, the trial judge stated:

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

[24]

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

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

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

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

[25]

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

[26]

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

[27]

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

[28]

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

[29]

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

[30]

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

[31]

Accordingly, I would dismiss this ground of
    appeal.

(2)

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

[32]

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

[33]

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

[34]

Furthermore, the appellant did not refer to any
    Canadian authority recognizing liability for an attempt to aid in the
    commission of a
Criminal Code
offence.
[3]
Nor could counsel provide an example of any case where someone had been charged
    with attempt to aid in such an offence, or where an attempt to aid in the
    commission of a
Criminal Code
offence had been left with a jury as an
    included offence.

[35]

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

[36]

As
    observed by Paciocco J.A. in
R. v. Romano
, 2017 ONCA 837, 41 C.R.
    (7th) 305, at paras. 13-14, while it is generally necessary for a trial judge
    to charge on included offences, the law relating to this obligation is
    sensible. The obligation is conditioned upon an air of reality in the evidence
    adduced at trial to permit a reasonable jury, properly instructed, to conclude
    that the essential elements of the included offence have been established:
R.
    v. Luciano
, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 75. Thus, included
    offences that cannot lead to legally appropriate verdicts should not be left
    with juries:
Romano
, at para. 16. As stated by Doherty J.A. in
R.
    v. Wong
(2006), 209 C.C.C. (3d) 520 (Ont. C.A.), at para. 12:

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

[37]

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

[38]

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

[39]

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

[40]

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

[41]

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

[42]

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

[43]

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

[44]

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

[45]

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

(3)

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

[46]

The appellants next ground of appeal is that
    the trial judge erred by not relating the
W.(D.)
instruction to the appellants evidence that he acted under duress.

[47]

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

[48]

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

[49]

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

[50]

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

[51]

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

(4)

Did the Trial Judge Err in Failing to Address
    the Crowns Reliance on Hearsay Evidence?

[52]

As his final ground of appeal, the appellant asserts
    that the trial judge erred by failing to correct the Crowns reliance on
    hearsay evidence during closing arguments.

[53]

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

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

[Emphasis added.]

[54]

Contrary to the appellants submission, in her
    summary of the Crowns position in her charge to the jury, the trial judge did
    not refer to the hearsay evidence, and there was no other reference to such
    evidence in the charge.

[55]

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

[56]

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

DISPOSITION

[57]

For these reasons, I would dismiss the appeal.

Released:
AHY July 26,
    2019

K. van Rensburg
    J.A.

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





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



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



[3]

In contrast, under s. 131 of the
Immigration and
    Refugee Protection Act
, S.C. 2001, c. 27, it is an
    offence to knowingly induce, aid or abet, or to
attempt to

induce,
    aid or abet a person to contravene ss. 117-119, 122, 124, or 129 of the Act.


