R. v. Bains (L.), (2015) 339 O.A.C. 306 (CA)

• Judge: Watt, Pepall and Huscroft, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 07, 2015
• Jurisdiction: Ontario
• Citations: (2015), 339 O.A.C. 306 (CA);2015 ONCA 677

R. v. Bains (L.) (2015), 339 O.A.C. 306 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. OC.005

Her Majesty the Queen (respondent) v. Lovejeet Bains (appellant)

(C56717)

Her Majesty the Queen (respondent) v. Harneet Pannu (appellant)

(C56714; 2015 ONCA 677)

Indexed As: R. v. Bains (L.)

Ontario Court of Appeal

Watt, Pepall and Huscroft, JJ.A.

October 7, 2015.

Summary:

Bains and Pannu were jointly charged with possession of heroin for the purpose of trafficking. A jury found both men guilty as charged. Both appealed conviction and sentence. Each alleged his conviction was flawed due to juror misconduct and for being an unreasonable verdict. Each also alleged his sentence of nine years was excessive.

The Ontario Court of Appeal dismissed the appeals from conviction. The court granted leave to appeal sentence but dismissed the sentence appeals.

Criminal Law - Topic 4341.3

Procedure - Jury - Evidence - Extrinsic information (social media sites, etc.) - The Ontario Court of Appeal stated that "No special statutory provision governs our review of jury verdicts impeached on the basis that extraneous information came to the attention of jurors prior to or during deliberations. Sometimes, the irregularity is discovered prior to verdict and the trial judge conducts an inquiry and makes a decision about the suitability of individual jurors or the jury as a whole continuing with the trial. In those circumstances, we review the trial judge's conclusion, according it deference in the absence of legal error, misapprehension of evidence or patent unreasonableness. In other instances, as here, the irregularity is not discovered until after verdict, and the trial judge conducts an inquiry and creates a record for appellate review. In those cases, we examine that record to determine whether there was an irregularity and, if so, what impact it had on the verdict. Typical of appellate review, our task does not end with identification of an error or irregularity in the conduct of a trial. Although the jury secrecy rule denies us first hand evidence of the effect of extraneous information on the actual verdict reached, we are required, within the limits of appellate disadvantage, to gauge the impact of any improper influence. And this we do by examining the record to determine whether there was a reasonable possibility, in the circumstances of the case under review, that the information had an effect on the verdict of the jury: ... The approach we follow, eschewing a bright-line rule in favour of a contextual case-by-case analysis and insisting upon some link between the irregularity and the result, has been followed in other common law jurisdictions where verdicts have been impeached on a similar basis" - See paragraphs 71 to 74.

Criminal Law - Topic 4341.3

Procedure - Jury - Evidence - Extrinsic information (social media sites, etc.) - The two appellants were convicted by a jury of possession of heroin for the purpose of trafficking -After the jury had rendered its verdict, it was discovered that the jury foreman had created a document and had brought copies of it into the jury room on the day the charge was to be given - The first part of the document consisted of a paragraph about the result of the highly publicized Casey Anthony murder trial in the United States - The second part of the document consisted of edited excerpts from model instructions on reasonable doubt and the assessment of evidence promulgated by the Canadian Judicial Council - The appellants said that the foreman's misconduct in bringing extraneous materials into the jury room caused a miscarriage of justice and warranted a new trial - The Ontario Court of Appeal dismissed this ground of appeal - To determine whether the extraneous information caused a miscarriage of justice, the court considered several factors individually and cumulatively: whether the jurors actually reviewed the materials, and to what extent; the length of time the document was available; the extent to which the extraneous information was discussed or considered by the jury; the relationship of the extraneous information to the contested issues at trial; whether the extraneous information was outside the jurors' generalized knowledge; whether curative instructions were given or some other step taken to redress any prejudice; and whether the extraneous information related specifically to anyone on trial and included any information that revealed extrinsic misconduct by a person charged - The court concluded that what occurred here fell short of establishing a miscarriage of justice through an appearance of unfairness - See paragraphs 92 to 108.

Criminal Law - Topic 4359

Procedure - Charge or directions to jury - Jury or judge alone - Directed verdict of "not guilty" - [See Criminal Law - Topic 4560 ].

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - Police stopped a car driven by Bains - They searched the car and found one kilogram of heroin and a digital scale - They arrested Bains - Pannu had been seen by police driving in the same area in a car which was registered to Bains - Pannu called Bains' cellphone - A police officer answered - He invited Pannu to drive over to Bains' location - Pannu did and was arrested - Bains and Pannu were jointly charged with possession of heroin for the purpose of trafficking - A jury found them guilty - Both appealed - Pannu tooks issue with the trial judge's failure to caution the jury about their use of evidence of his abrupt lane change in reaching their verdict - Pannu said evidence of his lane change was put forward as evidence of post-offence conduct that linked him to the commission of the offence by consciousness of guilt-type reasoning - He said that the trial judge erred in failing to provide a cautionary instruction to jurors to stifle the prejudicial effect inherent in this evidence - The Ontario Court of Appeal rejected this ground of appeal - This evidence was relevant, material and admissible as an essential part of the narrative - It was an item of circumstantial evidence fit for jury consumption - It was not evidence of post-offence conduct - The conduct described was not post-offence - It occurred contemporaneously with the possession that was the subject-matter of the prosecution - The possession continued until the package was seized by police - This evidence was neither tendered nor relied upon by the Crown as evidence of post-offence conduct - Even if advanced as evidence of post-offence conduct, there was no per se rule of caution associated with this species of circumstantial evidence - Nor was there anything peculiar to this evidence that would require an ad hoc caution - Finally, trial counsel neither objected to the admissibility of this evidence nor sought any specific instruction about it - See paragraphs 114 to 133.

Criminal Law - Topic 4440

Procedure - Verdicts - Discharges and dismissals - Directed verdicts - [See Criminal Law - Topic 4560 ].

Criminal Law - Topic 4560

Procedure - Trial - Motions - Motion for a directed verdict - Bains and Pannu were jointly charged with possession of heroin for the purpose of trafficking - The Crown's case consisted entirely of circumstantial evidence - The Crown alleged that Bains and Pannu were in joint possession of the kilogram of heroin found in the car Bains was driving - Bains submitted that the Crown had failed to adduce sufficient evidence to establish his knowledge of the drugs found in the car he was driving - Pannu alleged that the evidence was insufficient to establish either knowledge or control - Each sought a directed verdict of acquittal - The trial judge dismissed the motions for a directed verdict - The trial judge concluded that the evidence, taken as a whole, permitted a properly instructed jury acting reasonably to conclude that Bains and Pannu were engaged in a joint enterprise involving the sale of heroin - A jury found both men guilty - Both appealed their convictions - Bains complained that the trial judge erred in dismissing his directed verdict application - The Ontario Court of Appeal rejected the argument - The trial judge provided cogent reasons for dismissing the motions for directed verdicts of acquittal - He stated and applied the proper test, acknowledged the circumstantial nature of the case for the Crown and set out in detail the inferences available from that evidence - His reasons demonstrated a thorough understanding of the essential elements of possession; revealed no misapprehension of the evidence adduced; and maintained the distinction between permissible inferences and impermissible speculation - They reflected a correct disposition of the motion for directed verdicts of acquittal - See paragraphs 165 to 167.

Criminal Law - Topic 4852

Appeals - Indictable offences - Grounds of appeal - Miscarriage of justice - [See second Criminal Law - Topic 4341.3 ].

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by evidence - Bains and Pannu were jointly charged with possession of heroin for the purpose of trafficking - A jury found both men guilty - Both appealed, arguing that the verdict was unreasonable - The Ontario Court of Appeal rejected the argument - There was evidence on the basis of which a reasonable jury acting judicially could be satisfied that the appellants were in possession of one kilogram of heroin for the purpose of trafficking - The jury was entitled to infer that the appellants were engaged in a joint venture and that the joint venture was the possession of heroin for the purpose of trafficking - Police found one kilogram of heroin and a digital scale under the front passenger seat of the car Bains was driving - The registered owner of the car was a person who lived at the same address as Pannu - At trial, Bains acknowledged that there was evidence on which the jury could find that he had control of the package in the vehicle he was driving - It was open to the jury to infer from the quantity and value of the heroin found in the car Bains was driving that the drugs would not have been left unattended or entrusted to somebody who did not know the nature of the contents of the bag - It was also open to the jury to infer that Pannu had knowledge of and a measure of control over the heroin - The vehicle driven by Bains was registered to a person with the same last name and address as Pannu - Pannu was driving Bains' car - The vehicles were travelling in close proximity in the same direction - When Pannu changed his direction of travel, he returned several times to the area where Bains had been stopped and called him on his cellphone - Pannu drove to the parking lot to recover the vehicle in which the heroin was found - In the court's assessment of the reasonableness of the verdicts, it was also entitled to take into account the appellants' failure to testify - See paragraphs 168 to 179.

Criminal Law - Topic 4956.1

Appeals - Indictable offences - New trials - Grounds - Consideration of extrinsic evidence - [See second Criminal Law - Topic 4341.3 ].

Criminal Law - Topic 5211

Evidence and witnesses - Admissibility and relevancy - Flight and other post-offence behaviour of accused - [See Criminal Law - Topic 4399.9 ].

Criminal Law - Topic 5850

Sentence - Trafficking in a narcotic or a controlled drug or substance (incl. possession for the purpose of trafficking) - Bains and Pannu were jointly charged with possession of heroin (one kilogram) for the purpose of trafficking - A jury found both men guilty - They were each sentenced to nine years of imprisonment - Bains and Pannu appealed, contending that the sentences were unfit - Pannu also said that the trial judge erred in principle by applying a sentencing decision in an importing case to determine a fit sentence - The Ontario Court of Appeal dismissed the appeal - The sentences imposed were within the range of sentence the appellants themselves conceded was appropriate for first offenders convicted of possession of heroin for the purpose of trafficking - The sentences sat at the mid-point of the range the appellants said was apt, although some authority suggested that the appropriate range was nine to 12 years for similar amounts of heroin - The reasons reflected no error in principle - The trial judge identified and applied the predominant sentencing objectives of deterrence and denunciation - He took into account the unblemished antecedents of the appellants, their family support and consistent employment history - But the appellants were also found in possession of a substantial amount of a highly addictive drug - It was a reasonable inference that their purpose was financial gain - The court was not satisfied that the trial judge used an importing case as the benchmark for sentencing the appellants on convictions of possession for the purpose of trafficking - The judge cited the very case that held it was wrong to do so - See paragraphs 180 to 194.

Narcotic Control - Topic 578

Offences - Possession - Joint possession - [See Criminal Law - Topic 4865 ].

Narcotic Control - Topic 580

Offences - Possession - Knowledge - [See Criminal Law - Topic 4865 ].

Narcotic Control - Topic 583

Offences - Possession - General - Inference of possession - [See Criminal Law - Topic 4865 ].

Narcotic Control - Topic 604

Offences - Possession - Evidence - Proof of possession - [See Criminal Law - Topic 4865 ].

Narcotic Control - Topic 703

Offences - Trafficking - Possession for purposes of trafficking - [See Criminal Law - Topic 4865 ].

Cases Noticed:

R. v. Vermette, [1988] 1 S.C.R. 985; 84 N.R. 296; 14 Q.A.C. 161, refd to. [para. 61].

R. v. Hubbert (1975), 29 C.C.C.(2d) 279 (Ont. C.A.), affd. [1977] 2 S.C.R. 267; 15 N.R. 139, refd to. [para. 61].

R. v. Spence (S.A.), [2005] 3 S.C.R. 458; 342 N.R. 126; 206 O.A.C. 150; 2005 SCC 71, refd to. [para. 61].

R. v. Sherratt, [1991] 1 S.C.R. 509; 122 N.R. 241; 73 Man.R.(2d) 161; 3 W.A.C. 161, refd to. [para. 61].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [para. 61].

R. v. Pan (R.W.); R. v. Sawyer (B.), [2001] 2 S.C.R. 344; 270 N.R. 317; 147 O.A.C. 1, refd to. [para. 62].

Danis v. Saumure, [1956] S.C.R. 403, refd to. [para. 63].

R. v. Farinacci (L.) et al. (2015), 335 O.A.C. 316; 2015 ONCA 392, refd to. [para. 73].

R. v. Karakaya, [2005] EWCA Crim 346 (C.A. (C.D.)), refd to. [para. 77].

R. v. Marshall; R. v. Crump, [2007] EWCA Crim 35 (C.A. (C.D.)), refd to. [para. 79].

R. v. Burcombe, [2010] EWCA Crim 2818 (C.A. (C.D.)), refd to. [para. 80].

R. v. McDonnell, [2010] EWCA Crim 2352; [2011] 1 Cr. App. R. 28 (C.A. (C.D.)), refd to. [para. 80].

R. v. Thompson, [2010] EWCA Crim 1623; [2011] 1 W.L.R. 200 (C.A.), refd to. [para. 81].

Benbrika and Others v. The Queen, [2010] VSCA 281; 204 A. Crim R. 457, refd to. [para. 84].

Smith v. The Queen, [2010] NSWCCA 325, refd to. [para. 85].

Folbigg v. R., [2007] NSWCCA 271, refd to. [para. 86].

R. v. Bates, [1985] 1 NZLR 326 (C.A.), refd to. [para. 87].

R. v. Walker, [2002] 3 NZLR 468 (C.A.), refd to. [para. 87].

R. v. Patterson, [2008] NZCA 12, refd to. [para. 87].

R. v. Lohrer (A.W.), [2004] 3 S.C.R. 732; 329 N.R. 1; 208 B.C.A.C. 1; 344 W.A.C. 1; 2004 SCC 80, refd to. [para. 89].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161; 2001 SCC 86, refd to. [para. 90].

R. v. Spiers (C.A.) (2012), 299 O.A.C. 47; 293 C.C.C.(3d) 17; 2012 ONCA 798, refd to. [para. 91].

R. v. Moosomin (L.W.) (2008), 320 Sask.R. 74; 444 W.A.C. 74; 239 C.C.C.(3d) 326; 2008 SKCA 168, refd to. [para. 91].

R. v. White (D.R.), [2011] 1 S.C.R. 433; 412 N.R. 305; 300 B.C.A.C. 165; 509 W.A.C. 165; 2011 SCC 13, refd to. [para. 124].

R. v. Wall (J.N.) (2005), 208 O.A.C. 111; 203 C.C.C.(3d) 232 (C.A.), refd to. [para. 126].

R. v. Morelli - see R. v. U.P.M.

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 155].

R. v. Blondin (1970), 2 C.C.C. (2d) 118 (B.C.C.A.), refd to. [para. 157].

R. v. Fredericks, [1999] O.J. No. 5549 (C.A.), refd to. [para. 157].

R. v. To (W.H.) (1992), 16 B.C.A.C. 223; 28 W.A.C. 223; 1992 CanLII 913 (C.A.), refd to. [para. 157].

R. v. Bryan (A.), [2013] O.A.C. Uned. 69; 2013 ONCA 97, refd to. [para. 157].

United States of America v. Shephard, [1977] 2 S.C.R. 1067; 9 N.R. 215, refd to. [para. 158].

R. v. Monteleone, [1987] 2 S.C.R. 154; 78 N.R. 377; 23 O.A.C. 241, refd to. [para. 158].

R. v. Arcuri (G.), [2001] 2 S.C.R. 828; 274 N.R. 274; 150 O.A.C. 126; 2001 SCC 54, refd to. [para. 158].

R. v. Sinclair (T.), [2011] 3 S.C.R. 3; 418 N.R. 282; 268 Man.R.(2d) 225; 520 W.A.C. 225; 2011 SCC 40, refd to. [para. 161].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 162].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 162].

R. v. W.H., [2013] 2 S.C.R. 180; 442 N.R. 200; 335 Nfld. & P.E.I.R. 1; 1040 A.P.R. 1; 2013 SCC 22, refd to. [para. 162].

R. v. François (L.), [1994] 2 S.C.R. 827; 169 N.R. 241; 73 O.A.C. 161, refd to. [para. 163].

R. v. Corbett, [1975] 2 S.C.R. 275, refd to. [para. 164].

R. v. Mensah (Y.) et al. (2003), 170 O.A.C. 244 (C.A.), refd to. [para. 189].

R. v. Shahnawaz (A.M.) (2000), 137 O.A.C. 363; 149 C.C.C.(3d) 97 (C.A.), refd to. [para. 192].

Statutes Noticed:

Controlled Drugs and Substances Act, S.C. 1996, c. 19, sect. 2(1), sect. 4(3) [para. 154].

Criminal Code, R.S.C. 1985, c. C-46, sect. 649(1) [para. 66]; sect. 686(1)(a)(i) [para. 162]; sect. 686(1)(a)(iii) [para. 88].

Counsel:

Richard Posner, for the appellant, Lovejeet Bains;

Marie Henein and Matthew Gourlay, for the appellant, Harneet Pannu;

Jason J. Wakely, for the respondent.

These appeals were heard on January 26 and 27, 2015, before Watt, Pepall and Huscroft, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Watt, J.A., and was released on October 7, 2015.