R. v. Satkunananthan (S.) et al., (2001) 143 O.A.C. 1 (CA)

• Judge: Charron, Borins and Simmons, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 01, 2000
• Jurisdiction: Ontario
• Citations: (2001), 143 O.A.C. 1 (CA);2001 CanLII 24061 (ON CA);2001 CanLII 24061 (NS CA);152 CCC (3d) 321;42 CR (5th) 220;[2001] OJ No 1019 (QL);143 OAC 1;49 WCB (2d) 313;81 CRR (2d) 285

R. v. Satkunananthan (S.) (2001), 143 O.A.C. 1 (CA)

MLB headnote and full text

Temp. Cite: [2001] O.A.C. TBEd. MR.054

Her Majesty the Queen (respondent) v. Sanjith Satkunananthan, Francis Cooman Michaelpillai, Kenneth Wignaraja Francis, Jegatheeswaran Chelliah, Jeyaseelan Thuraisingam, Rasamine Manoranjan and Jayashan Palanithurai (appellants)

(C27968; C27598; C27597; C27158; C28029; C27638; C32179)

Indexed As: R. v. Satkunananthan (S.) et al.

Ontario Court of Appeal

Charron, Borins and Simmons, JJ.A.

March 20, 2001.

Summary:

The seven accused were allegedly involved in a scheme to sell a kilogram of heroin to an undercover officer for $135,000. The sale did not take place. However, half a kilogram of heroin was found in the possession of two of the accused (Chelliah and Thuraisingam). A jury convicted each of the accused of trafficking in heroin arising from the abortive sale. They were jointly charged with this offence, the position of the Crown being that the accused had entered into a common enterprise to traffic in heroin. The accused Satkunananthan and Palanithurai were additionally convicted of trafficking in heroin for giving a sample of heroin to the undercover officer before the abortive sale. Also the accused Chelliah and Thuraisingam were additionally convicted of possession of heroin for the purpose of trafficking. The accused appealed their convictions and sentence. The accused alleged, inter alia, that there was unreasonable delay contrary to s. 11(b) of the Charter and that the trial judge erred in failing to grant a stay because of the destruction of police notes, in failing to declare a mistrial due to a police officer's mid-trial communication with a jury member, and in instructing the jury on common enterprise and on reasonable doubt.

The Ontario Court of Appeal allowed the appeal respecting the convictions of six of the accused (i.e., all except Palanithurai) and entered a stay of proceedings because of unreasonable delay. The court considered the other grounds of appeal as they related to Palanithurai and dismissed both his conviction and sentence appeal.

Civil Rights - Topic 3128

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to obtain information or evidence - The accused were convicted of narcotics offences - The accused appealed their convictions, arguing that the proceedings should have been stayed because the police destroyed their rough surveillance notes and a surveillance report - The Ontario Court of Appeal affirmed that there was no breach of the accused's right to make full answer and defence under s. 7 of the Charter - The court held that where the sparse rough notes and the surveillance report were fully transcribed in notebooks that were preserved and disclosed to the defence, it was open to the trial judge to find that the surveillance officers had complied with their duty to preserve evidence - See paragraphs 68 to 85.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - [See Civil Rights - Topic 3128 ].

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - Seven accused were convicted of narcotics offences - Six of the accused appealed their convictions, arguing that a 44.5 month delay from charge to trial was contrary to s. 11(b) of the Charter - Of the 44.5 months, about 16 months constituted delay from charge to committal and about 28 months from committal to trial - The delay was caused by problems obtaining court space, co-ordinating the schedules of so many counsel, seven month delay in completing the preliminary inquiry, seven month delay in getting a Tamil interpreter, and a mistrial declared because of sickness of one of the accused and his counsel - The Ontario Court of Appeal granted a stay of proceedings where the delay was grossly excessive, was attributable to the prosecution, and caused prejudice to the accused - See paragraphs 5 to 67.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 3265 ].

Criminal Law - Topic 128

Rights of accused - Right to make full answer and defence - [See Civil Rights - Topic 3128 ].

Criminal Law - Topic 2682

Attempts, conspiracies, accessories and parties - Conspiracies - Conspirator's exception to hearsay rule - Seven accused were convicted of narcotics offences on the basis of a common enterprise to traffic in heroin - Two of the accused were supposedly the actual perpetrators with the five others assisting - The accused appealed, arguing that the trial judge erred in his charge on common enterprise - The trial judge instructed the jury on the co-conspirators exception to the hearsay rule as it applied in a case of common enterprise, but the accused argued that the trial judge did not adequately delineate the evidence directly admissible against each of the accused - The Ontario Court of Appeal noted that the appeal was allowed against six of the accused on other grounds - With respect to the remaining accused, the court held that although there were some problems with the judge's approach, there was overwhelming evidence against that accused, so the court rejected this ground of appeal - See paragraphs 94 to 104.

Criminal Law - Topic 4351

Procedure - Jury charge - Directions regarding burden of proof and reasonable doubt - The accused were convicted of narcotics offences - The accused appealed, arguing that the trial judge's instruction on reasonable doubt was deficient in that it failed to distinguish between the civil and criminal standard of proof and it described reasonable doubt as an ordinary expression with no particular meaning - The Ontario Court of Appeal rejected this ground of appeal - The court examined the charge and held that in the context of the charge as a whole, the court was satisfied that there was no reasonable likelihood that the jury misapprehended the correct standard of proof - See paragraphs 105 to 114.

Criminal Law - Topic 4354

Procedure - Jury charge - Directions regarding evidence of co-accused - [See Criminal Law - Topic 2682 ].

Criminal Law - Topic 4633

Procedure - Mistrials - Grounds - The accused were on trial for narcotics offences - During a lunch recess a police witness crossed paths with one of the jurors on a city street - As they walked together, the police officer spoke to the juror about his kids and about buying a Valentine present for his wife - They did not talk about the case - The accused moved for a mistrial - The trial judge dismissed the application - The accused appealed - The Ontario Court of Appeal rejected this ground of appeal - The court held that the police officer's conduct was improper; however, given the undisputed nature of the conversation and the inconsequence of it all to the jury members, the trial judge was correct in finding that the incident did not create an appearance of unfairness warranting a mistrial - See paragraphs 86 to 93.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by evidence - Seven accused were convicted of narcotics offences on the basis of a common enterprise to traffic in heroin - Two of the accused argued that the verdicts against them were unreasonable because there was no evidence that either of them handled the heroin, or discussed a possible sale of heroin with anyone - Neither were any money, drugs, or drug paraphernalia found on their person - They claimed they were found guilty by association only - The Ontario Court of Appeal allowed the appeal on other grounds, but opined that there was sufficient evidence to support a finding of guilt against these two accused had the jury been properly instructed - See paragraphs 115 to 122.

Criminal Law - Topic 5020

Appeals - Indictable offences - Setting aside verdicts - Verdict unreasonable or unsupported by evidence - [See Criminal Law - Topic 4865 ].

Criminal Law - Topic 5850

Sentence - Trafficking in a narcotic - Palanithurai was sentenced to 10.5 years for convictions for trafficking in heroin - He was one of the principals in an aborted common enterprise involving seven accused to sell a kilogram of heroin to an undercover police officer - He appealed his conviction and sentence - The Ontario Court of Appeal dismissed the appeals - The court stated that it was not persuaded that the trial judge erred either in his assessment of the expert evidence or in his conclusion that it provided no reason to depart from the usual range of sentencing established by the courts - Nor was the court persuaded that the sentence imposed was unfit - It fell within the range of appropriate sentences for like offenders and like offences - See paragraphs 127 to 131.

Cases Noticed:

R. v. Carosella, [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81; 112 C.C.C.(3d) 289, refd to. [para. 3].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322; 15 C.C.C.(2d) 524, refd to. [para. 4].

R. v. Askov, Hussey, Melo and Gugliotta, [1990] 2 S.C.R. 1199; 113 N.R. 241; 42 O.A.C. 81; 59 C.C.C.(3d) 449, refd to. [para. 20].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241; 71 C.C.C.(3d) 1, refd to. [para. 20].

R. v. Collins (M.E.), [1995] 2 S.C.R. 1104; 183 N.R. 285; 82 O.A.C. 365; 99 C.C.C.(3d) 385, refd to. [para. 29].

R. v. Rahey, [1987] 1 S.C.R. 588; 75 N.R. 81; 78 N.S.R.(2d) 183; 193 A.P.R. 183; 33 C.C.C.(3d) 289, refd to. [para. 30].

R. v. W.B. (2000), 133 O.A.C. 3; 34 C.R.(5th) 263 (C.A.), refd to. [para. 33].

R. v. MacDougall (P.A.), [1998] 3 S.C.R. 45; 231 N.R. 147; 168 Nfld. & P.E.I.R 83; 517 A.P.R. 83, refd to. [para. 39].

R. v. Pusic (J.) and Juric (H.) (1996), 13 O.T.C. 260; 30 O.R.(3d) 692 (Gen. Div.), refd to. [para. 44].

R. v. Smith (M.H.), [1989] 2 S.C.R. 1120; 102 N.R. 205; 63 Man.R.(2d) 81, refd to. [para. 46].

R. v. Bosley (M.) (1992), 59 O.A.C. 161; 18 C.R.(4th) 347 (C.A.), refd to. [para. 50].

R. v. Heaslip et al. (1983), 1 O.A.C. 81; 9 C.C.C.(3d) 480 (C.A.), refd to. [para. 53].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 71].

R. v. La (H.K.) et al., [1997] 2 S.C.R. 680; 213 N.R. 1; 200 A.R. 81; 146 W.A.C. 81; 116 C.C.C.(3d) 97, refd to. [para. 75].

R. v. Bero (C.) (2000), 137 O.A.C. 336 (C.A.), refd to. [para. 75].

R. v. F.C.B. (2000), 182 N.S.R.(2d) 215; 563 A.P.R. 215; 142 C.C.C.(3d) 540 (C.A.), refd to. [para. 75].

R. v. Stinchcombe, [1995] 1 S.C.R. 754; 178 N.R. 157; 162 A.R. 269; 83 W.A.C. 269, refd to. [para. 77].

R. v. Carter, [1982] 1 S.C.R. 938; 47 N.R. 288; 46 N.B.R.(2d) 142; 121 A.P.R. 142; 67 C.C.C.(2d) 568, refd to. [para. 97].

R. v. Koufis, [1941] S.C.R. 481, refd to. [para. 98].

R. v. Starr (R.D.) (2000), 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 147 C.C.C.(3d) 449 (S.C.C.), refd to. [para. 107].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 109].

R. v. Avetysan (A.) (2000), 262 N.R. 96; 195 Nfld. & P.E.I.R. 338; 586 A.P.R. 338; 149 C.C.C.(3d) 77 (S.C.C.), refd to. [para. 109].

R. v. Biniaris (J.) (2000), 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 143 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 118].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 21(1) [para. 95].

Authors and Works Noticed:

Martin Report - see Ontario, Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (Martin Report) (1993).

Ontario, Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (Martin Report) (1993), generally [para. 71, footnote 5]; pp. 150, 151 [para. 78].

Counsel:

Morris Pistyner, for the respondent;

Timothy E. Breen, for the appellant, Satkunananthan;

P. Andras Schreck, for the appellant, Michaelpillai;

James C. Fleming, for the appellant, Francis;

Peter Connelly, for the appellants, Chelliah and Manoranjan;

Melvyn Green, for the appellant, Thuraisingam;

Jayashan Palanithurai, in person.

This appeal was heard on November 29, 30 and December 1, 2000, before Charron, Borins and Simmons, JJ.A., of the Ontario Court of Appeal. The following decision was released by the court on March 20, 2001.