



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Dhesi,









2012 BCCA 9




Date: 20120110

Docket: CA039531

Between:

Regina

Respondent



And

Gurvinder Dhesi

Appellant








Before:



The Honourable Madam Justice Prowse





(In Chambers)




On
appeal from the Provincial Court of British Columbia, December 15, 2011

(
R. v. Dhesi
,
Surrey Registry, Docket Number 179141)

Application
for Judicial Interim Release




Counsel for the Applicant:



D.G. Butcher, Q.C.





Counsel for the Respondent:



W.P. Riley





Place and Date of Hearing:



Vancouver, British
  Columbia

January 5, 2012





Place and Date of Judgment:



Vancouver, British
  Columbia

January 10, 2012








Reasons for Judgment of the
Honourable

Madam Justice Prowse:

[1]

On October 6, 2011, a Provincial Court judge convicted Mr. Dhesi of
importing 68 kilograms of cocaine into Canada and possession of cocaine for the
purpose of trafficking.  Mr. Dhesi was sentenced on November 25, 2011 to nine
years imprisonment.  He is applying for judicial interim release pending his
appeal.

[2]

By way of brief background, Mr. Dhesi is a truck driver who was
dispatched in July 2009 by his then employer to transport cargo from Richmond,
B.C. to California, and to return with another cargo of goods from California
to British Columbia.  The trailer attached to his truck was loaded with cargo
at a warehouse in California and then sealed.  When Mr. Dhesi drove through the
border into Canada, he was referred to a Customs warehouse for a secondary
inspection of the truck.  The referral was purely random.  Six boxes of cocaine
with a street value estimated at 2.5 million dollars were found in the trailer
on top of other cargo. It was established at trial that the seal to the truck
could be bypassed by way of a bolt/nut mechanism on the right trailer door. 
There was evidence indicating that the right trailer door had been tampered
with after the doors had been sealed; that Mr. Dhesi had purchased a drill and
drill bit shortly prior to driving the load into Canada; that other tools in
the truck were consistent with the type which could be used to tamper with the
door; and that a bolt which appeared identical to that on the right-hand door was
found in a bag which contained other items linked to Mr. Dhesi.  Based on this
and other circumstantial evidence, the trial judge concluded that the cocaine
was loaded on to the truck at some time after the doors were sealed and that
Mr. Dhesi knew that he was transporting cocaine into Canada with a view to
delivering it to third parties.

[3]

Under s. 679(3) of the
Criminal Code
, R.S.C. 1985, c. C-46 (the 
Code
),
in order to secure his release pending appeal Mr. Dhesi must establish that:

(a)      the appeal ... is not
frivolous;

(b)      he will surrender himself into custody in accordance
with the terms of the order and;

(c)      his detention is not necessary in the public
interest.

[4]

Crown counsel has conceded that the requirements of s. 679(3)(a) and (b)
have been met; that is, that the appeal is not frivolous, and that Mr. Dhesi
would surrender himself into custody as and when required to do so.

[5]

I agree that Mr. Dhesi has satisfied the first two requirements under s.
679(3).  With respect to the question of surrender, I note that Mr. Dhesi was
released on $40,000 cash bail pending his trial, and there is no suggestion
that he breached the terms of his bail.  Further, he has ties in the community,
including a common law wife, daughter, and employment.  He has also surrendered
his passport.

[6]

The only question which remains is whether Mr. Dhesi has established
that his detention is not necessary in the public interest.  This involves two
considerations:  (1) the protection and safety of the public, and (2) the
maintenance of the publics confidence in the administration of justice.

[7]

With respect to the first consideration, it is not suggested that if Mr.
Dhesi were released on bail he would re-offend or that he would present a
danger to the public.  In that regard, it is important to emphasize that he
does not have a criminal record other than the convictions which are the
subject of this appeal.

[8]

The second consideration ‒ the effect Mr. Dhesis release pending
appeal would have on the publics confidence in the administration of justice ‒
requires balancing Mr. Dhesis interest in the reviewability of the decision
under appeal with the interest of the public in the enforceability of his
conviction and sentence pending appeal.  The leading case in this jurisdiction
which discusses that analysis is
R. v. Mapara
, 2001 BCCA 508
at paras. 32-36 where Madam Justice Ryan, speaking for the Court, stated:

[32]      An analysis of the section's objectives was
undertaken by Arbour J.A. (as she then was) in
R. v. Farinacci
(1993),
86 C.C.C. (3d) 32 (Ont. C.A.). She said at pp. 47-8:

Section 679(3)(c) of the
Criminal Code
provides, in
my opinion, a clear standard against which the correctness of any decision
granting or denying bail pending appeal can be reviewed. The concerns
reflecting public interest, as expressed in the case-law, relate both to the
protection and safety of the public and to the need to maintain a balance
between the competing dictates of enforceability and reviewability. It is the
need to maintain that balance which is expressed by reference to the public
image of the criminal law, or the public confidence in the administration of
justice. The public interest criterion in s. 679(3)(c) of the
Code
requires a judicial assessment of the need to review the conviction leading to
imprisonment, in which case execution of the sentence may have to be
temporarily suspended, and the need to respect the general rule of immediate
enforceability of judgments.

Public confidence in the administration of justice requires
that judgments be enforced. The public interest may require that a person
convicted of a very serious offence, particularly a repeat offender who is
advancing grounds of appeal that are arguable but weak, be denied bail. In such
a case, the grounds favouring enforceability need not yield to the grounds
favouring reviewability.

On the other hand, public confidence in the administration
of justice requires that judgments be reviewed and that errors, if any, be
corrected. This is particularly so in the criminal field where liberty is at
stake. Public confidence would be shaken, in my view, if a youthful first
offender, sentenced to a few months' imprisonment for a property offence, was
compelled to serve his or her entire sentence before having an opportunity to
challenge the conviction on appeal. Assuming that the requirements of s.
679(3)(a) and (b) of the
Criminal Code
are met entitlement to bail is
strongest when denial of bail would render the appeal nugatory, for all
practical purposes. This same principle animates the civil law dealing with
stays of judgments and orders pending appeal. It is a principle which
vindicates the value of reviewability.

[33]      In
R. v. Baltovich
(31 March 2000), No.
C12090 (Ont. C.A., in Chambers), Rosenberg J.A. quoted the above passage from
Farinacci
with approval. Noting the appellant in that case was a mature offender with no
previous record, and there was no suggestion he represented a danger to the
public or would interfere with the administration of justice, Rosenberg J.A.
concluded (para. 25) that the matter that is most influential on the question
of the public interest is the strength of the grounds of appeal.

[34]      I agree with the analyses in
Farinacci
and
Baltovich
.
Public confidence in the administration of justice requires that verdicts,
properly rendered, be enforced. Where an appellant establishes that he or she
does not pose a flight risk and is unlikely to re-offend, the public interest
also acknowledges that actual punishment for a crime be avoided if strong
grounds exist for setting aside the verdict.

[35]      In
Demyen
when Culliton C.J.S. speaks of the
necessity for the appellant to show something more than the requirements of
paragraphs (a) and (b) of s. 679(3) to establish that his detention is not
necessary in the public interest, he must be referring to the necessity for the
appellant to show that the principle of enforceability is outweighed by that of
reviewability. In my view the strength of the interest of reviewability must
primarily be measured by examining the likelihood of the success of the appeal.
Very strong grounds will tip the scale in favour of reviewability.

[36]      Depending on the
demonstrated strength of the grounds, other factors, such as the circumstances
of the offence - for example, pre-meditated violence - and, inordinate delay
will be matters to weigh in the balance. The essential question, however, will
be whether the appellant has been able to establish that enforceability is
outweighed by reviewability.

[9]

It is apparent from these passages that a significant factor to be considered
in engaging in this balancing exercise is the relative strength of the proposed
grounds of appeal.

[10]

The trial judge stated the critical issue before him as whether the
Crown had established, beyond a reasonable doubt, that Mr. Dhesi knowingly transported
cocaine into Canada or whether, as suggested by the defence, Mr. Dhesi was what
was referred to at trial as a blind courier.  In answering that question, the
trial judge observed that the evidence was purely circumstantial, but he was
persuaded that the only rational conclusion on the evidence was that Mr. Dhesi
knew that he was transporting a large quantity of cocaine across the border for
distribution to third parties.

[11]

Counsel for Mr. Dhesi submits that the guilty verdict was unreasonable
or unsupported by the evidence and, in particular, that the trial judge made
findings of fact and drew inferences critical to his decision which were not
supported by the evidence.  He refers, in particular, to the trial judges
finding that the bolt on the right-hand door had been newly installed around
July 24, 2009, and his finding, based on what he concluded were unique
markings, that the bolt appeared identical to the bolt found in the bag
containing documents linked to Mr. Dhesi.  Counsel submits that there was no
evidence to support the timing of the installation of the bolt on the door, or
that the bolt found in the bag had unique markings.  He submits that the
trial judge placed considerable weight on these findings in concluding that
Mr. Dhesi was knowingly involved in the transportation of the cocaine into
Canada.  He also submits that the evidence supported other rational inferences
which were inconsistent with Mr. Dhesis guilt.

[12]

Although conceding that Mr. Dhesis appeal is not frivolous, Crown counsel
submits that it is weak.  In his view, the conclusions of the trial judge were reasonable
and fully supported by the evidence.

[13]

It is difficult to determine the relative merits of an appeal at such an
early stage of the proceedings.  Based on the information and submissions
before me, while I agree that the appeal is not frivolous, I would certainly not
describe the proposed grounds as strong.  As observed by Crown counsel, an
appellant faces an uphill battle in attempting to overturn findings of fact and
inferences drawn from those facts by a trial judge.  It is arguable that the
trial judge went too far in drawing certain inferences upon which he relied in
concluding that Mr. Dhesi was guilty of the charges against him, but I do not
find the arguments to be such as to tilt the balance in favour of reviewability
over enforceability.

[14]

Further, it is not only the relative merits of the appeal which must be
balanced in determining the effect of Mr. Dhesis proposed release on the
publics perception of the administration of justice.  The Court must also
consider that these are very serious charges, as reflected in the sentence
imposed of 9 years.  These offences involved a very large quantity of cocaine
valued at almost 2.5 million dollars.  The  distribution of this quantity of
cocaine would necessarily have involved further criminal activity on the part
of individuals in Canada, not to mention the damage which would be inflicted on
members of the public affected by its distribution, both direct users and
others.

[15]

I have taken into account the fact that Mr. Dhesi appears to have been
an otherwise law-abiding member of the community with no prior criminal record;
that he has been regularly employed and is supporting a family; and that there
is no suggestion that he represents a danger to the community if released on
bail.  On balance, however, and having particular regard to the seriousness of
the offences and what I view to be the relative lack of strength of the grounds
of appeal, I am not persuaded that Mr. Dhesi has satisfied the third criterion
for his release; that is, using the words of s. 679(3)(c), Mr. Dhesi has not
persuaded me that his detention is not necessary in the public interest.  I
would, therefore, dismiss his application for bail pending appeal.

[16]

During the course of the hearing, I canvassed with counsel the prospect
of expediting this appeal.  Given my conclusion that Mr. Dhesi should be
detained pending his appeal, it is important that steps be taken to have the
appeal heard as soon as possible.  (I would have been of the same view even if
I had ordered Mr. Dhesis release, given the public interest in having
serious matters like this brought to a final resolution as soon as practically
possible.)

[17]

I am advised by counsel for Mr. Dhesi that the transcripts of the trial
should be available next week and that he will be able to file his factum on or
before February 29, 2012.  I would, therefore, direct that the appellants
factum be filed on or before February 29, 2012; that the Crowns factum be
filed on or before March 30, 2012; and that a date be set in April 2012 for the
hearing the appeal.  Counsel should take steps to reserve an April hearing date
upon receipt of these reasons.  I understand that dates are presently available
on April 16, 17, 19, 24, and 30
th
, but these should be confirmed
with the Registry.  If problems arise with respect to this proposed schedule,
they should be brought to my attention as early as possible.

[18]

In the result, Mr. Dhesis application for release pending appeal is
dismissed.

The
Honourable Madam Justice Prowse


