R. v. Pahl (G.S.), (2016) 387 B.C.A.C. 234 (CA)

• Judge: Bauman, C.J.B.C., Frankel and Garson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 02, 2016
• Jurisdiction: British Columbia
• Citations: (2016), 387 B.C.A.C. 234 (CA);2016 BCCA 234

R. v. Pahl (G.S.) (2016), 387 B.C.A.C. 234 (CA);

    668 W.A.C. 234

MLB headnote and full text

Temp. Cite: [2016] B.C.A.C. TBEd. JN.015

Regina (appellant) v. Gurvinder Singh Pahl (respondent)

(CA42964; 2016 BCCA 234)

Indexed As: R. v. Pahl (G.S.)

British Columbia Court of Appeal

Bauman, C.J.B.C., Frankel and Garson, JJ.A.

June 2, 2016.

Summary:

The accused used his position as a screener at the Vancouver International Airport to bypass security checks and deliver large amounts of ecstasy to a courier to smuggle the drugs into the United States. The accused pleaded guilty to possession of a controlled substance for the purpose of exportation. At the sentencing hearing, the accused, through counsel, argued that his statement to an undercover police officer that he had done this four times before was "bravado" and that he had actually only done it once due to threats made to him by an unnamed person. Since the accused did not testify, this evidence was also proferred by way of a psychologist's report containing the same explanation. The Crown challenged the explanation. The trial judge accepted the explanation and sentenced the accused to five years' imprisonment. The Crown appealed the sentence, arguing that the trial judge erred in accepting the accused's explanation submitted through counsel and the psychologist's report.

The British Columbia Court of Appeal, Garson, J.A., dissenting, allowed the appeal. The trial judge erred in accepting the explanation without admissible evidence to support it. Given that a factual dispute arose, the judge should have ordered an evidentiary hearing as disputed submissions by counsel were not evidence and the psychologist's report of the explanation provided was inadmissible hearsay. As the court could not remit the matter for re-sentencing, the fairest and most effective way to determine the facts was to appoint a special commissioner (Provincial Court judge) to conduct the evidentiary hearing and report back to the Court of Appeal. Garson, J.A., would have decided the appeal on the basis of the admissible evidence rather than appointing a special commissioner.

Criminal Law - Topic 5808

Sentencing - General - Questions of fact - See paragraphs 1 to 91.

Criminal Law - Topic 5817

Sentencing - Sentencing procedure and rights of the accused - Evidence - General - See paragraphs 1 to 91.

Criminal Law - Topic 5817.3

Sentencing - Sentencing procedure and rights of accused - Evidence - Hearsay - See paragraphs 1 to 91.

Criminal Law - Topic 5849.7

Sentencing - Considerations on imposing sentence - Representations of counsel - See paragraphs 1 to 91.

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sentence - Powers of appeal court (incl. standard of review) - See paragraphs 1 to 91.

Counsel:

P.A. Eccles, for the appellant;

M.N. Stern and H.S. Bal, for the respondent.

This appeal was heard on April 11, 2016, at Vancouver, B.C., before Bauman, C.J.B.C., Frankel and Garson, JJ.A., of the British Columbia Court of Appeal.

On June 2, 2016, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Frankel, J.A. (Bauman, C.J.B.C., concurring) - see paragraphs 1 to 91;

Garson, J.A., dissenting - see paragraphs 92 to 103.