



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sandhu, 2014 ONCA 356

DATE: 20140502

DOCKET: C56274

Hoy A.C.J.O., MacPherson and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Avtar Singh Sandhu

Applicant/Appellant

Paul Burstein, for the appellant

Tom Lemon and Amber Pashuk, for the respondent

Heard: April 29, 2014

On appeal from the conviction entered on September 28,
2012 and the sentence imposed on November 27, 2012 by Justice Gray of the
Superior Court of Justice, sitting with a jury.



By the Court:

[1]

The appellant was convicted of possession of cocaine for the purpose of
trafficking.  He was sentenced to nine years imprisonment.  He appeals the
conviction on two grounds.

[2]

The first ground of appeal relates to three utterances made by the
appellant.  The first was made to Ministry of Transportation Enforcement
Officer Jason Leeman.  When Officer Leeman arrived at the highway spot where
the appellants truck and a silver sedan and their two drivers were pulled
over, he asked the appellant Whats going on?  The appellant responded They
put a gun to my head.  A few minutes later, Constables Paul Kent and Geoff
Clarke arrived on site.  When Constable Kent requested the appellants
registration and permit, the appellant volunteered that two guys had come to
him with a gun and told him to put bags in the back of the truck.  Then as they
walked towards the back of the truck, the appellant repeated his statement.

[3]

At the outset of the trial, a blended
voir dire
was held.  The
principal issue was the admissibility of the cocaine found in the back of the
truck following a warrantless search.  The trial judge wrote extensive reasons
on this issue.  He found that there had been a breach of the appellants s. 8
Charter
rights but he did not exclude the cocaine under s. 24(2).  The appellant does
not appeal this component of the ruling.

[4]

Briefly, and only in his reply submissions, the appellants counsel
raised the issue of admissibility of the three utterances, arguing that the
initial one was compelled under the
Highway Traffic Act
(
HTA
)
and the second and third were obtained in violation of s. 10(b) of the
Charter
.

[5]

The trial judge dealt with this issue in very brief fashion at the end of
his comprehensive ruling:

94. With respect to the utterances of Mr. Sandhu, they were
clearly voluntary.  They were spontaneous utterances and were not preceded by
any promises, threats or attempts at undue influence.  Indeed, they were not
preceded by any police conduct at all, except an inquiry to the effect of
Whats going on?

95. The situation had not developed to the point where Mr.
Sandhu was entitled to be informed of his right to counsel, or given any
caution.  At the time he was asked whats going on?, he was not detained.

[6]

The appellant challenges this component of the trial judges ruling on
several bases: (1) the trial judges reasons for admitting the three utterances
were inadequate and do not afford a meaningful basis for appellate review; (2)
the appellants utterances were compelled by s. 216.1 of the
HTA
and
were, therefore, inadmissible at his criminal trial pursuant to s. 7 of the
Charter
;
(3) the trial judge erred in failing to consider that the appellants statutory
obligation to respond to the demands of Officer Leeman and Constable Kent could
raise a reasonable doubt about the voluntariness of the appellants utterances;
and (4) the appellants two utterances to Constable Kent were tainted by the
appellants interaction with Officer Leeman and/or were obtained in violation
of s. 10(b) of the
Charter
.

[7]

We do not accept these submissions.  In the context of an issue that was
barely raised and briefly argued, the trial judges reasons on this issue are
sufficient for review.  His path to his ruling was simple  the appellant was
not detained.  To contemplate that a regulatory officers common inquiry upon
arriving at a site  Whats going on?  amounts to a detention, thus
triggering a panoply of common law and
Charter
rights, is a stretch
too far.  Moreover, on the detention point, the appellant did not testify on
the
voir dire
, so there is no evidence about how he viewed the
situation when he made his three utterances.

[8]

The appellants argument that his utterances were compelled by s. 216.1
of the
HTA
is premised on the threshold assumption that Officer Leeman
conducted an investigation under that section.  Importantly, the trial judge
found as a fact that Officer Leeman never conducted an investigation under s.
216.1 of the
HTA
; we see no error in this conclusion, and therefore 
on this basis alone  no merit in the appellants statutory compulsion argument.

[9]

In addition, the only thing Constable Kent did before the appellant made
the two utterances to him was ask for the appellants permit and registration;
he did not otherwise question the appellant.  Finally, in his very brief oral
submission on this issue, trial counsel said twice that I wouldnt think that
voluntariness is an issue here.  In the end, in response to early and innocuous
questions (scene setting questions), the appellant three times talked about
guns.  When he did this, he was not detained.  We agree with the trial judge on
this point.

[10]

Second,
the appellant contends that the trial judge erred in his jury charge by failing
to explain how the appellants limited facility in English might lend a
non-incriminating inference to the utterances.

[11]

We
are not persuaded by this submission.  The trial judge told the jury that if
they believed the appellants denial that he made the statements or if they had
a reasonable doubt about whether he made them, the statements would not be
evidence about the appellants knowledge.  He also conveyed the thrust of the
appellants argument to the jury, namely, that the appellant had a poor grasp
of the English language and did not mean what the officers thought he meant. 
The trial judge also said, in relation to the utterances heard by Constable
Kent:

It is the position of the defence that because of the language
barrier between the officers and Mr. Sandhu, Officer Kent is mistaken in his
belief that Mr. Sandhu told him in English that he had been forced at gunpoint
to put the bags in the back of the truck.

In our view, the trial judge handled the language issue
in a proper fashion.

[12]

The
appeal is dismissed.



Released: May 2, 2014 (A.H.)



Alexandra Hoy
A.C.J.O.

J.C. MacPherson J.A.

R.A. Blair J.A.


