





CITATION:
R. v. Sahota, 2011
          ONCA 679



DATE:  20111102



DOCKET: C51908



COURT OF APPEAL FOR ONTARIO



Doherty, Juriansz and Epstein JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Jaswinder Sahota



Appellant



Erin Dann, for the appellant



B.G. Puddington, for the respondent



Heard and released orally:
October 28, 2011



On appeal from the conviction entered by a jury presided over
          by Justice Ricchetti of the Superior Court of Justice dated October 22, 2009
          and the sentence imposed on March 17, 2010.



ENDORSEMENT



[1]

There are two grounds of appeal:

·

Did the trial judge fail to adequately put the theory of the
    defence to the jury?

·

Did the trial judge err in his response to the jurys request for
    a copy of counsels closing addresses?

The Theory of the Defence

[2]

This was a single issue case  had the Crown proved beyond a reasonable
    doubt that the appellant knew that heroin was in his suitcase when he entered
    Canada.  The respective positions of the Crown and the defence were plain and
    obvious.  The evidence was simple and straightforward.  We have no doubt that
    the jury understood the positions of the parties and understood the application
    of the burden of proof, which was properly explained to them, to the only live
    issue in the case.  We also have no doubt that the jury would have no problem
    relating the evidence, particularly the defence evidence, to the question of
    the appellants knowledge.

[3]

The trial judge could have said more about the position of the defence
    and could have reviewed the evidence a second time in the context of putting
    the position of the defence.  In our view, however, neither was necessary to
    ensure that the accused received a fair trial.  This ground of appeal fails.

The Jurys Question

[4]

Shortly after the jury retired, it requested copies of the transcripts
    of counsels closing addresses.  The trial judge instructed the jury that
    transcripts could not be provided and told them they should rely on their
    recollections of counsels arguments.  This instruction was given with the
    support of both counsel.

[5]

The next morning while the jury was still deliberating, Crown counsel
    brought certain case law to the trial judges attention.  Crown counsel
    submitted that the case law suggested that the jury should have been told that
    they could listen to the addresses of counsel if they wished to do so.  Counsel
    for the appellant opposed any suggestion to the jury that they could listen to
    the closing addresses.  He was concerned about one particular part of the
    Crowns address.

[6]

The trial judge decided, based on the case law brought to his attention,
    that he should bring the jury back and instruct them that they could listen to
    counsels closing addresses if they wished to do so.  By the time the trial
    judge could carry out this decision, he was advised that the jury had arrived
    at a verdict.  The trial judge recalled the jury and before taking the verdict,
    told them that while transcripts of counsels arguments were not available, the
    reporter could read those arguments to the jury if they wished to hear them.  The
    trial judge asked the jury to retire and consider whether they wanted to listen
    to closing arguments before returning their verdict.  After briefly considering
    the matter, the jury returned to the courtroom, advised the trial judge that they
    no longer wished to hear the closing addresses and were prepared to return
    their verdict.  It returned a guilty verdict.

[7]

The trial judge should have told the jury in his initial response to
    their question that they could hear the closing addresses if they wished to do
    so.  The question on appeal is whether his correct response came too late in
    light of the jurys indication that it had reached a verdict.

[8]

Despite counsels able argument, we do not agree that because the jury
    indicated they had reached a verdict, the trial judge could not invite them to
    listen to counsels addresses before returning their verdict if they wished to
    do so.

[9]

The trial judge made it clear that the jury could listen to the closing
    addresses before reaching their verdict.  They saw no need to do so.  We will
    not speculate as to why they chose that course of action.  In the end, before
    the jury returned its verdict, the jury understood that it could listen to the
    addresses if it wished to do so.  The trial judge ultimately answered the
    jurys request correctly.  The timing of his answer did not result in any
    unfairness to the appellant.

[10]

The appeal is dismissed.

Doherty J.A.

R.G. Juriansz J.A.

G.J. Epstein J.A.


