R. v. Tahirkheli

R. v. Tahirkheli Collection Decisions of the Court of Appeal Date 1998-10-08 Docket numbers C20423 Judges Finlayson, George Duncan; Labrosse, Jean-Marc; Borins, Stephen Subject Criminal Decision Content DATE: 1998108 DOCKET: C20423 COURT OF APPEAL FOR ONTARIO FINLAYSON, LABROSSE and BORINS JJ.A. BETWEEN: ) ) Peter H. Wilkie and HER MAJESTY THE QUEEN ) David Harris, ) for the appellant Respondent ) ) and ) David Littlefield, ) for the respondent TARIQ TAHIRKHELI ) ) Appellant ) Heard: September 10 ) and 11, 1998 ) FINLAYSON and LABROSSE JJ.A.: [1] The appellant and two other persons named Sandhu and Khan were charged with conspiracy to traffic and trafficking in heroin. Khan absconded the jurisdiction before trial. The appellant and Sandhu were convicted of both counts by a court composed of Gotlib J. and a jury and they appealed their conviction. Sandhu's appeal has been dismissed as an abandoned appeal. The appellant raises numerous grounds of appeal. ISSUE 1 Did the trial judge unreasonably restrict cross- examination in relation to reasonable grounds with respect to the authorization to intercept private communications? [2] The appellant has conceded that he challenged only two statements in the affidavit when he applied to cross-examine the affiant. The trial judge decided that neither statement was adequately supported in the affidavit and disregarded both statements. Once the trial judge decided to disregard these statements, there was no purpose to allowing cross-examination with respect to either statement. Furthermore, it has not been challenged that even without the two disputed statements, there was a proper basis to name the appellant in the authorizations. We see no error in the trial judge's exercise of her discretion on this issue. ISSUE 2 Did the trial judge err in refusing to admit the bodypack evidence in relation to the test of investigative necessity? [3] Although during the application to cross-examine the affiant counsel did not seek to tender the bodypack interception into evidence, it is conceded by the Crown that the appellant should have been allowed to introduce the bodypack tapes into evidence. However, the trial judge was informed of the relevant points that counsel claimed the bodypack demonstrated and it is clear that the trial judge concluded that this evidence could not alter the basis for investigative necessity. Moreover, it was not reasonable to believe that the police would simply rely on a drug dealer about the details of the drug information and the bodypack evidence could not have undermined the practical need for the authorizations. No substantial wrong resulted from this error. ISSUE 3 Did the trial judge err in determining that the test for investigative necessity had been satisfied? [4] We agree with the Crown's position that the authorizing judge had to be satisfied that investigative necessity had to be shown with respect to the investigation as a whole, not with respect to each individual named. In the circumstances of this case, investigative necessity was overwhelmingly demonstrated as it would have been impossible to investigate this international drug smuggling operation without an authorization. ISSUE 4 Did the Crown engage in inappropriate cross-examination with respect to the undercover officer's prints on the drug exhibits? [5] This evidence was relevant to demonstrate that fingerprints are not always left on everything people touch. This issue was subject to full cross-examination and this evidence could not have misled the jury. ISSUE 5 Did the Crown engage in inappropriate cross-examination with respect to certain telephone calls? [6] Evidence of the origin, destination and person(s) who made the telephone calls was highly relevant to the issue of association between both the appellant and the person being called and between the appellant and Khan. We see no impropriety that would have prejudiced the appellant. ISSUE 6 Did the trial judge err in failing to provide a "D.W." instruction? [7] This was not a case where the jury would have been left with the mistaken impression that its decision came down to a simple credibility contest between the Crown witnesses and the defence witnesses. The appellant has not identified any questionable passage in the trial judge's charge that could have left the jury with that impression. [8] On the contrary, on two separate occasions, the trial judge emphasized to the jury that the case was not a credibility contest (there is a reasonable basis, on the evidence, for this instruction) and she repeated on many occasions that the Crown had to prove its case against the appellant beyond a reasonable doubt. [9] Although Crown counsel and counsel for the co-accused suggested a "D.W." type of instruction, experienced counsel for the appellant did not object to the charge and did not request such an instruction. [10] We are satisfied that there could have been no confusion in the jury's mind as to the proper burden of proof and that it understood that it could still have a reasonable doubt even if it believed the Crown witnesses and disbelieved the defence witnesses. [11] We would not give effect to any of the grounds of appeal. In conclusion, we note that the combination of the direct and circumstantial evidence against the appellant was capable of establishing a strong case against the appellant. We see no reason to doubt the verdict. [12] The appeal is dismissed. BORINS J.A.: (Dissenting) [13] I have had the opportunity to read the reasons of Finlayson and Labrosse JJ.A. and while I agree with their disposition of the first five issues, I am, with respect, unable to agree with their conclusion on the final issue. In my view, the trial judge erred in failing to instruct the jury in accordance with the principles of R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (Sup. Ct. Can.). As I will explain, such a charge was required in the circumstances of this case, which was heavily dependent on circumstantial evidence, because of the appellant's defence of innocent explanation. [14] It is evident that the instructions to the jury were unsatisfactory. Counsel for both accused and counsel for the Crown had numerous objections. The trial judge instructed the jury for 2-3/4 hours, and the objections took two hours to present. Counsel for the Crown agreed with many of the objections raised by the defence, including, the trial judge's failure to instruct the jury in accordance with the principles of W.(D.). In the end, she agreed to recharge the jury on approximately ten of the concerns raised by counsel, but not her failure to include the model charge recommended in W.(D.) by Cory J. [15] The trial judge recharged the jury the next morning. It is a reasonable inference that by then the jury had deliberated for five to six hours. She had not instructed the jurors to delay their deliberations until counsel had completed their objections. Her failure to do so was the subject of comment and concern by Crown counsel. (pp.4605; 4620-1). [16] To appreciate the context in which the defence and Crown counsel requested a W.(D.) charge, it is helpful to identify the instructions that the trial judge gave the jury on the burden of proof and reasonable doubt. In my view, they were sparse. At pp.4403-5 she discussed credibility, after she had observed that "credibility is very important in all cases, and it certainly is here". After explaining the presumption of innocence, she explained the burden of proof and reasonable doubt at pp.4407-8 and instructed the jury: If you have a reasonable doubt as to whether either of the accused committed any one or more of the offences with which he is charged, it is your duty to give that accused the benefit of the doubt and find him not guilty on such charge or charges. [17] After a lengthy, and, in my view, confusing explanation of how the jury was to go about determining whether the appellant, and his co-accused, were members of the conspiracies of which they were charged, the trial judge told the jury at pp.4433-4: If you conclude that he did not [intend to become a member of the conspiracy], or if you are left in [sic] a reasonable doubt, you must acquit either [of] those men about whom you are left in [sic] reasonable doubt. [emphasis added] This was the key instruction given by the trial judge on whether the Crown had proved that the appellant was a member of the conspiracy in respect to which he was charged. Not only did it fail to comply with W.(D.), but it appears to place the onus on the appellant to establish that he did not intend to be a member of the conspiracy. However, the apparent reversal of the onus of proof was not raised by the appellant. [18] During the course of her review of the position of the appellant at pp.4501-6, the trial judge said: "You should not choose whom to believe, but if you find that the evidence...raises a reasonable doubt you must acquit." Finally, she outlined the position of the Crown and concluded her instructions without further reference to the burden of proof or reasonable doubt. [19] It is also necessary to examine what the trial judge said about the burden of proof and reasonable doubt in her recharge. Although she had refused to give a W.(D.) instruction, in her ruling on counsels' objections to her charge she stated: "The 'reasonable doubt' doctrine will be covered in the re-charging to the jury on the issue of conspiracy." (p.4614) [20] The main focus of the recharge was intended to rectify the inadequacies of her instructions concerning the burden of proof in respect to the offence of conspiracy, and her failure to separate the evidence against the appellant and his co-accused and to relate the evidence to the issues. Most of the hour required to recharge the jury dealt with these points. The trial judge refused to permit counsel to raise objections to the recharge. [21] Although the trial judge said she would cover reasonable doubt when recharging the jury on conspiracy, all she said about it was this: Having considered that additional evidence, then you as a jury must decide if you are satisfied beyond a reasonable doubt that Mr. Tahirkheli participated in the conspiracy and was a member of the conspiracy, then you must convict. (p.4637) Nothing was said about the innocent explanation given by the appellant, although the trial judge indicated in discussing a different issue that she was aware that this was his defence. (p.4642). [22] However, toward the end of her recharge she gave a brief instruction about what she described as the "doctrine of reasonable doubt". She instructed the jury that it applied to each of the five counts. Then she said: "And you must not convict if you have a reasonable doubt". (p.4647). [23] In neither the charge, nor the recharge, therefore, did the trial judge use the model charge recommended in W.(D.). It is significant, in my view, that she failed to do this despite the fervent request of Crown counsel that she do so. During his objections to the charge, he stated: With respect to the 'reasonable doubt' doctrine, I concede, consent, and urge upon Your Honour, as well, to bring home to the jury in the standard way...the trilogy of points [from W.(D.).] (p.4551-2) The fact that Crown counsel joined counsel for the defence in making the objection is deserving of considerable weight. [24] I appreciate that the appellant's counsel did not specifically object to the failure of the charge to contain a W.(D.) instruction. This objection was taken by counsel for the co-accused. In argument before this court, appellant's counsel indicated that he did not feel it was necessary to make this objection as it was made by co-counsel. In my view, it is clear from Crown counsel's request for a W.(D.) charge that its omission affected both accused. Had the trial judge agreed to include a W.(D.) instruction in her recharge, it necessarily would have applied to each accused. As Lamer C.J., on behalf of the majority, pointed out in R. v. Jacquard (1997), 113 C.C.C. (3d) 1 at 19 (Sup. Cr. Can.), defence counsel's failure to object to a jury charge, while not irrelevant, is not determinative of whether the instructions constituted mis-direction or non- direction resulting in reversible error. As I have pointed out, the failure of the appellant's counsel to object is significantly diminished in the light of the objections taken by counsel for the co-accused and the Crown. [25] Although the factual foundation of W.(D.) was a "credibility contest" between the complainant and the accused in the context of a charge of sexual assault, and similar circumstances are not present in this appeal, I do not read the reasons of Cory J. as applying exclusively to credibility contests. As he stated at 409, the principles which he proposed apply to "a case where credibility is important". The trial judge instructed the jury that "credibility is very important in all cases, and it certainly is here" (p.4403). She further instructed the jury at p.4437-8: And the last issue is, was it Mr. Tahirkheli, or has Mr. Sandhu also been identified as an offender? The real issue here is credibility, but not in the ordinary sense.... With respect to Mr. Tahirkheli, it is a slightly different consideration; you must decide whether he intended to traffic or assist in the trafficking which occurred.... This instruction related to the trafficking charge of June 2, which was central to the charge of conspiracy to traffic. The appellant's defence to both charges was based on the innocent explanation he had given. [26] In my view, the following passage from the reasons of Cory J. in W.(D.) at 409 has direct application to this appeal: In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Secondly, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole: see R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont. C.A.); approved in R. v. Morin, supra, at p.207. Ideally, appropriate instructions on the issue of credibility should be given not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit. Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. If that formula were followed, the oft- repeated error which appears in the recharge in this case would be avoided. The requirement that the Crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law. Every effort should be made to avoid mistakes in charging the jury on this basic principle. [emphasis added] [27] I read W.(D.) as a decision of general application concerning the proper manner of charging a jury on reasonable doubt where the accused has testified, or otherwise has provided evidence which raises an affirmative defence. In this regard, it was important that the trial judge relate her instructions on reasonable doubt to the defence raised by the appellant. This follows, as well, from the decision of this court in R. v. Parrington (1985), 20 C.C.C. (3d) 184 at 186-7, per Cory J.A., in which the affirmative defence of alibi was raised. See, also, R. v. Challice (1979), 45 C.C.C. (2d) 546 at 557 (Ont. C.A.); R. v. Finlay & Grellette (1985), 28 C.C.C. (3d) 48 at 59 (Ont. C.A.). [28] The appellant's defence was that he was not a member of the conspiracy to traffic in heroin and did not traffic in heroin, and that the acts of April 16 and June 2 on which the prosecution relied as circumstances of his guilt were innocent. In a case where an accused has called evidence of an affirmative defence, the trial judge must avoid leaving the impression with the jury that the accused bears some onus of proof with respect to this defence as the trial judge did in the passage I have quoted in paragraph 17. In my view, what the trial judge should have done in this case was not only to remind the jury that the onus remains with the Crown to prove every element of the offence beyond a reasonable doubt, but also to relate the fundamental principle of reasonable doubt to the defence of innocent explanation as Cory J.A. stated in Parrington at 186-7, where he recommended the model charge which he subsequently repeated in W.(D.). Although throughout her charge and recharge the trial judge instructed the jury in general terms of the necessity of the Crown proving its case beyond a reasonable doubt, no specific charge was given relating this principle to the defence of innocent explanation. In short, no attempt was made, in either the charge or the recharge, to relate the principle of reasonable doubt to the evidence of innocent explanation adduced by the appellant. [29] I appreciate that Jacquard stands for the proposition that the right of an accused to a properly instructed jury does not equate with the right to a perfectly instructed jury. However, as that case also held, an accused is entitled to a jury that understands how the evidence relates to the legal issues. I appreciate, as well, the need to apply a functional approach in reviewing a jury charge and the need to do so in the greater context of the trial. [30] In this appeal, I believe that the functional approach requires this court to take into consideration that this was a trial of two accused which lasted for ten weeks, in which 26 witnesses testified, where much of the evidence constituted intercepted communications and the majority of the evidence did not apply to the appellant. It is also important to consider that the charge to the jury contained many inadequacies and that there was substantial agreement among counsel in respect to them. Moreover, it is to be noted that the recharge took place about a day after the charge after the jury had been deliberating for several hours, that the recharge constituted a fresh charge on the approach the jury was required to take in considering the offence of conspiracy that counsel were not permitted to make objections to the recharge, and that the jury returned twice with a number of questions. [31] In his reasons in W.(D.), Cory J. reproduced extensive passages from the main charge and recharge containing the instructions on the burden of proof and reasonable doubt given by the trial judge. Although the trial judge had not instructed the jury using the language and approach which Cory J. recommended in W.(D.), he was satisfied that this omission was not fatal. He found that the charge, when read as a whole, made it clear that the jury could not have been under any misapprehension as to the correct burden of proof and standard of proof to apply. Indeed, in many cases in which the model W.(D.) charge has not been used appellate counts have been satisfied, in the circumstances of those cases, that the jury was not left with any misapprehension about the correct burden of proof and standard of proof to apply. [32] Unlike W.(D.), the effect of the charge and the recharge in this appeal, when viewed as a whole in the context which I have described, did not adequately bring home to the jury that in order to acquit the appellant it was not necessary that they believe his explanation, but that if they were left in a reasonable doubt by it, they were obliged to acquit. [33] Therefore, I would give effect to this ground of appeal, set aside the conviction and order a new trial. Released: October 8, 1998