COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Aujla, 2015 ONCA 350

DATE: 20150515

DOCKET: C53386 & C55573

Laskin, van Rensburg and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jaswinder Singh Aujla and Gurminder Singh Riar

Appellants

Brian Callender, for the appellant Jaswinder Singh Aujla

James Lockyer, for the appellant Gurminder Singh Riar

Howard Piafsky, for the respondent

Heard: October 29, 2014

On appeal from the convictions entered on January 20,
    2011, and the sentences imposed on February 11, 2011, by Justice Gordon I. A. Thomson
    of the Superior Court of Justice, sitting without a jury.

Benotto J. A.:

[1]

The appellants were truck drivers who crossed the Ambassador Bridge into
    Windsor, Ontario with $3.5 million of cocaine. They had just driven across the
    continent from California where they had picked up a load of ice cream. The
    cocaine was in the trailer, in boxes marked Public Storage surrounded by
    pallets containing the ice cream.

[2]

They asserted that they knew nothing of the cocaine and were blind
    couriers.  They suggested that either someone at the California ice cream facility
    put the boxes in the trailer under the pretext of shipping samples, or, some
    unknown importer gained access to the trailer on their drive back from
    California.

[3]

The trial judge convicted both of importing cocaine and possession of
    cocaine for the purpose of trafficking. The appellant Aujla was sentenced to imprisonment
    for 16 years, and the appellant Riar was sentenced to 14 years. They each
    appeal their conviction and sentence.

Facts

The truck drivers

[4]

Aujlas father owned Aujla Transport Services Inc., the trucking company
    that employed the appellants. In April 2007, Aujla was an experienced driver.  Riar
    was not.  Riar obtained his truck licence in July 2006, worked with another
    company and was hired by Aujla Transport in February 2007. He was then
    supervised by Aujla as a driver-in-training.

[5]

Aujla had travelled many times to California. Riar had made four trips to
    the U.S., including California, with the previous company, and then another
    four trips with Aujla.

[6]

English was a second language for both men who used a Punjabi
    interpreter during the trial.

The trip to California

[7]

On March 31, 2007, Aujla and Riar embarked on their fifth trip together.
    They were off to Rancho Santa Margarita, California from Brampton, Ontario to
    deliver a load of insulation. Their tractor was hauling a trailer that could be
    refrigerated.

[8]

They arrived in Rancho Santa Margarita in the early hours of April 2. The
    trailer was unloaded and they then drove to Ontario, California.

Riars visit to his friend

[9]

Aujla and Riar differed about what happened from the afternoon of April
    2 when they arrived in Ontario, California until the evening of April 3 when
    they resumed their trip.  It was a discrepancy that would factor into the trial
    judges reasons and the issues in this appeal.

[10]

Aujla
    said that he and Riar were together the entire time at a truck stop in Ontario,
    California. Riar stated that he left Aujla to visit a friend who lived in nearby
    Loma Linda, California.

[11]

Riars
    friend was Ravinder Riar (Ravi), who coincidentally had the same last name.  Riar
    said that Aujla dropped him off at a gas station on April 2 at about 3 p.m. where
    Ravi picked him up. He stayed with Ravi overnight.  The next day, around 6
    p.m., Ravi dropped him off at a truck stop in Ontario, California, where Aujla
    was waiting.   Neither Riar nor his trial counsel suggested that this was when
    the cocaine was put in the tractor or the trailer.

[12]

Aujlas
    phone records were put in evidence in relation to Riars meeting with Ravi. Riar
    testified that he had given Aujlas cellphone number to Ravi so that he (Riar)
    would not incur roaming fees on his cellphone.  The phone records show calls
    from Ravi to Aujla on April 1 and 2. On April 3, there were three calls - two
    just after midnight and one at 9:11 p.m.  Riar said he had made these three
    calls using Ravis phone to arrange with Aujla his return to the truck.  The
    cell phone records show Toronto time which is three hours ahead of
    California. Therefore, the last call was just after 6 p.m. in California  the
    time that Riar said he met up with Aujla.

[13]

During
    his cross-examination, Riar produced a piece of paper which he said he had
    prepared a few days earlier.  On the paper was written:

Ravinder Riar

10930 - Veach Street

Lomalinda
CA

92354

[14]

By
    the end of the day on April 4, Riar and Aujla were together and were given
    directions from their dispatcher.

Dreyers Ice Cream facility in Bakersfield

[15]

Riar
    and Aujla were told by their dispatcher to go to Bakersfield, California to
    pick up a load of ice cream from Dreyers to deliver to Nestlés in
    Mississauga, Ontario.  They spent the night at a truck stop in Bakersfield.

[16]

They
    arrived at Dreyers on April 5 at 10:38 a.m. and left with the load of ice
    cream at 5:28 p.m.  Loading took a while since the trailer had to be chilled.
    During part of their wait, the appellants left the trailer at Dreyers and
    drove the tractor to a nearby temple where they prayed and ate lunch.

[17]

Two
    Dreyers employees, Isaac Garza and Dewayne Santomen, testified about the
    facility, its policies for loading product into trailers, and their
    recollections of April 5, 2007.

[18]

The
    Dreyers facility is secure. It is surrounded by a fence and under video
    surveillance.  It has only a single entry point for trucks.  A security guard
    checks trucks in.  Employees need a swipe card to enter through different
    doors.

[19]

The
    loading dock is also secure. Truck drivers have no access to the product being
    loaded into their trailers.  Drivers are not allowed to watch the loading. The
    driver is only able to inspect the load when loading is complete, the trailer
    is pulled away from the dock and the driver closes the doors to the trailer.

[20]

The
    Dreyers employees testified that the trailer transporting the load must be
    empty and clean before loading. It must then contain nothing other than the ice
    cream.  As Garza put it: It has to be pristine.   A single loader puts the
    product into the trailer.

[21]

It
    was Garza who loaded the ice cream shipment onto the appellants trailer on the
    afternoon of April 5.  It took him under an hour. Garza said that there were other
    loaders working on the dock with him that afternoon, but only he loaded the
    appellants trailer.  Garza signed a load schematic certifying that he had
    pre-inspected the trailer and that it was safe to load. He testified that if he
    had seen any cardboard boxes in the trailer during his pre-inspection, he would
    have reported them in accordance with the company policy.

[22]

Garza
    said that he did not place the Public Storage boxes onto the trailer and that
    no other Dreyers employee had any contact with the interior of the trailer. He
    had never seen Public Storage boxes, such as the ones containing the cocaine before.
    When samples are occasionally shipped with the loads, they are packed in large,
    white, unmarked boxes.  These boxes are larger than the Public Storage boxes
    that contained the cocaine.

[23]

Garza
    placed a temperature monitor into one of the pallets in the middle of the
    trailer to track the temperature on the way back to Canada.

[24]

Santomen
    was the Dock Administrator at Dreyers facility in Bakersfield. He was
    responsible for signing out trailers  including the appellants - once they
    were loaded.  He gave the appellants a bill of lading which Aujla signed.

[25]

After
    the ice cream was loaded into the appellants trailer, Santomen gave Aujla a
    yellow plastic seal to put on the back doors of the trailer. The purpose of the
    seal is to keep the load secure from tampering.  Once attached, the seal cannot
    be removed without breaking it. The seal can be easily broken by using any
    piece of metal to create leverage. The seal was numbered so that it could be
    checked against paperwork at a border inspection.

[26]

Aujla
    did not immediately put the seal on the trailer doors.  He testified that he
    put it on the doors later in the evening of April 5 when they stopped at a
    weighing station.  He said that he wanted to wait because, if the trailer was
    overloaded, he would have to return to Dreyers for the load to be lightened or
    adjusted.

[27]

I
    will return to the seal later.

[28]

Santomen
    testified that two men twice tried to get onto the secure loading dock while
    the Dreyers product was being loaded into the appellants trailer.  This was
    out of the ordinary.  According to Santomen, they were told both times  the
    first time by Garza - that they were not allowed on the loading dock.  In a
    police interview, Santomen identified one of the men as Aujla and, with less
    certainty, identified the other man as Riar.

[29]

Aujla
    acknowledged the signature on the bill of lading was his and that he tried to
    get into the loading dock at Dreyers but was stopped.  He explained that it
    was his practice to see how product was loaded into the trailer.  Riar denied
    trying to access the loading dock at Dreyers.

[30]

Garza
    did not recall any drivers entering or trying to enter the loading dock on
    April 5, 2007.

The trip from Bakersfield to Detroit

[31]

The
    appellants journey back from California to Detroit, Michigan took them through
    Arizona, New Mexico, Texas, Oklahoma, Missouri, Illinois, Indiana, and Ohio.
    They took turns driving and resting and made numerous stops for fuel and
    restroom breaks.  The trip took from April 5 to April 7.

[32]

At
    several points on the return trip, Aujla faxed documents concerning the load of
    ice cream to a customs broker.  By the time they reached the border, they had
    not heard back from the customs broker. They waited in a duty-free shop  hoping
    to hear. When they did not, they drove across the border knowing their load had
    not been cleared.

The border

[33]

The
    appellants arrived at the Ambassador Bridge on April 7 at approximately 6:17
    p.m. They were stopped at the primary inspection stage by officers of the
    Canada Border Services Agency because the importation paperwork did not clear.  As
    a result, the trailer was subjected to a secondary inspection.  This was a new
    procedure.  A week earlier, drivers with deficient paperwork would have been
    directed to a commercial importation centre to arrange for the proper
    paperwork.  After being told to proceed to a secondary inspection, the Border
    Services officer noticed that Aujla appeared nervous, in particular because
    he was repeatedly touching his nose.  The officer acknowledged that it was not
    unusual for drivers to be nervous when referred to a secondary inspection.

[34]

On
    this day, loads without paperwork that did not clear were subjected to an x-ray
    scan. The scan of the appellants load indicated an anomaly inside the trailer.
    The trailer doors were opened. A Border Services officer crawled on top of the
    pallet closest to the trailer door and saw two cardboard boxes labeled Public
    Storage resting atop the next pallet in.  This interior pallet was about two
    feet shorter than the others and was not visible from the ground.  It took the
    officer under a minute to open the doors, climb up and retrieve the boxes.  He
    found bricks of cocaine inside the boxes.  They weighed over 37 kilograms and
    had a street value of approximately $3.5 million.

[35]

Border
    Services officers told the appellants that they would be arrested for importing
    cocaine.  According to two Border Services officers, when an officer tried to
    frisk and handcuff Aujla, he physically resisted and was screaming.  Aujla was
    taken to the ground and handcuffed while face-down on the ground.  He was
    kicking and twisting.  Immediately thereafter, while being read his rights,
    Aujla gagged for about 10-30 seconds, as if he were about to vomit, and then
    cried for about 30 seconds.  He had a second period of crying about 15 minutes
    later.

[36]

Similarly,
    according to two Border Services officers, Riar also physically resisted being
    handcuffed and was brought to the ground by an officer.

[37]

While
    in a holding cell at the border, at around 11 p.m., Aujla was gagging and
    perspiring.  He said he was feeling dizzy and about to faint.  He was
    eventually transported to hospital.

[38]

Aujla
    testified that he was beaten up by the Border Services officers.  He claimed
    that because he could not understand English he did not know why he and Riar
    were being arrested.  He testified that he did not understand the meaning of
    under arrest.  He claimed not to have any recollection of what happened
    following his arrest, including going to the hospital.

[39]

Riar
    testified that he did not resist being handcuffed.

The temperature monitor

[40]

A
    graph produced by the monitor showed four increases of temperature within the
    trailer, from the normal temperature of minus 20°F to about minus 15°F, which
    occurred on the trip from Bakersfield to Detroit. Santomen opined that these
    temperature increases were consistent with either the trailer doors being
    opened for a short time or the trailers reefer unit going into defrost
    mode.

The location of the cocaine in the trailer

[41]

The
    Public Storage boxes containing the cocaine were at the rear end of appellants
    trailer. In reference to Garzas load schematic, they were resting atop pallet
    position number 27.  Pallet position number 27 was unique in this load as it
    consisted of two partially loaded pallets stacked directly on top of one
    other.  In total, the stacked pallets at position 27 would have been only five
    feet tall. A fully-loaded pallet was about seven feet tall. The pallet at
    position number 29 was next to the door and was the usual seven feet in height.
    It would not have been possible to see over the seven-foot stack at position
    number 29 in order to realize that the stack at position 27 was shorter. There
    was no way to walk through the pallets.  The Border Services officer found the
    Public Storage boxes by climbing atop the pallet at position 29.

[42]

Garza
    testified that he placed the stacked, shorter pallet towards the end of the
    trailer because it was lighter and we want the back end of the trailer to be
    lighter.  In addition, he believed that should the driver slam on the brakes,
    there would be less overall damage to the product if the shorter load was
    placed at the back. He explained that if the trailer is not properly balanced
    it would not comply with California State code.

[43]

Andre
    DaSilva, a former shift supervisor at Nestlés shipping warehouse in
    Mississauga, Ontario, testified that earlier in 2007 he had seen a Public
    Storage box in a shipment from Dreyers.  The box contained samples of new
    products coming on the market.  Samples were routinely sent from Dreyers but
    normally in different types of boxes. There had been instances where samples
    were sent from Dreyers without appearing on the bill of lading, although he
    could not recall if this was the case with the Public Storage box he had seen.
    It would be possible to walk out the door of the Nestlé warehouse with a box or
    duffle bag without being checked by anyone.

[44]

DaSilva
    agreed that, in his experience, there was always a notification by email from
    Dreyers saying that a sample box would be in a shipment.  DaSilva also agreed
    that there would be a big problem if there was a seal indicated on the bill
    of lading but no seal on the trailer.

The inspection reports and the missing seal

[45]

The
    Border Services officer who found the cocaine testified that the seal was not
    on the trailer doors at the time of the secondary inspection on April 7.  He stated,
    however, that trailers at that time were usually not sealed.  There was a
    protocol in place for recording the number of any seal broken by a Border
    Services officer incident to searching a trailer.  No seal number was recorded
    by the officers with respect to the appellants trailer.

[46]

Drivers
    are required to do daily inspections and complete inspection reports. To
    properly complete the report, the driver must walk around the truck and the
    trailer and inspect the trailer doors.

[47]

Aujla
    testified that he inspected the trailer, including the doors, daily as
    required. He last checked the doors at Exit 76 in Ohio.  He said the seal was
    in place.  From this stop, until they reached the duty-free shop at the border,
    they made only one more stop: in Beaverdam, Ohio. He did not check the doors there
    or at the duty-free shop.

[48]

Riar
    completed the vehicle inspection reports on April 6 and April 7. To do so, he
    was supposed to walk around the trailer and inspect its doors.  Riar testified
    that he never actually inspected the tractor and trailer before filling out
    these reports  he just copied Aujlas reports. The following exchange took
    place  during Riars cross-examination by Crown counsel:

Q.      And you understood what that meant at the time, those
    words, Vehicle Inspection Report?

A.      Yes, I understood, but I did it form [
sic
]
    just doing as a formality, filling out the paper.  I did not go outside to do
    the inspection.

[49]

Riar
    claimed that after they left Dreyers on April 5, he never looked at the
    trailer doors and never opened them.

Positions of the Parties at Trial

[50]

The
    Crown's position at trial was that the appellants put the boxes in the trailer
    after they left Dreyers.

[51]

The
    appellants testified that they had no knowledge of the cocaine or how it got
    into the trailer. They submitted that the reasonable inference was that the
    boxes were placed in the trailer while it was being loaded at Dreyers on April
    5. Alternatively, someone loaded the boxes after gaining access to the trailer
    on the trip back from California.

The Trial Judges Reasons

[52]

The
    trial judge found as fact that the trailer was empty when it arrived at Dreyers
    on April 5, 2007. He accepted Garzas evidence that the two Public Storage
    boxes were not in the trailer when it left the Dreyers facility. Therefore the
    cocaine was loaded into the trailer after the tractor trailer left Dreyers on
    April 5 on the way from Bakersfield to Detroit.

[53]

The
    trial judge considered Aujlas testimony that he put the seal on the door in
    the evening of April 5 and he saw it on the doors the last time he checked in
    Ohio at Exit 76.  He rejected this testimony.  He concluded that  if this were
    true - the cocaine was hidden by an unknown person at either Beaverdam, Ohio or
    the duty-free shop at the border.  The trial judge did not accept that a drug
    importer would have coincidentally happened upon the trailer and stashed the
    drugs. There was a significant risk in being observed breaking into a trailer in
    a public location. The person would also have to (i) assume the trailer would
    not be searched at the border, (ii) track the truck through the border
    crossing, and (iii) somehow collect the drugs once the trailer crossed the
    border.

[54]

The
    trial judge found it highly unlikely that a drug importer would risk hiding
    $3.5 million of cocaine in a trailer over which he or she had no control, in
    the hands of truck drivers with whom he or she had no contact.  This grounded
    an inference that the appellants had knowledge of the cocaine.

[55]

Following
    an extensive credibility analysis, the trial judge rejected both of the appellants
    testimony that they had no knowledge of the cocaine in the trailer. He
    concluded that the Crown had satisfied him beyond a reasonable doubt that the
    appellants had control of the trailer after it left Dreyers and knowledge of
    the cocaine.

Grounds of Appeal

[56]

The
    appellants submit that the trial judge put undue emphasis on the appellants
    knowledge of English; ignored the evidence that supported their defence of being
    blind couriers; and failed to separately distinguish the liability of the two
    appellants.

[57]

Riar
    adds an additional ground of appeal. He submits that his trial was unfair and a
    new trial is necessary because the trial judge misconstrued his defence by
    referring to his visit to Ravi as an alibi, and this mistake infected the credibility
    assessment.

[58]

Both
    appellants submit that the sentences were demonstrably unfit as outside the established
    range of sentence for first-time offender couriers.  They also argue that the
    trial judge erred by finding that they had breached the trust of the border
    officials and then by treating this as aggravating factor.

Analysis

[59]

I
    will first address the grounds of appeal relating to both appellants and then
    address the appellant Riar.

Knowledge of English

[60]

The
    appellants submit that the trial judge relied heavily on the appellants'
    knowledge of English in considering their credibility, and that this focus was
    irrelevant and prejudicial.

[61]

I
    see the appellants knowledge of English as a factor that they and their
    counsel made relevant at trial.

[62]

Aujla
    testified that he did not understand the meaning of under arrest, apparently to
    explain why he physically resisted being frisked and handcuffed following his
    arrest.    Riar testified that he understood that he was being arrested but did
    not understand some of the other words spoken by the officers.  Border Services
    officers testified that Riar also resisted being handcuffed, although Riar
    denied this.

[63]

In
    closing submissions, counsel for Aujla  whose submissions were adopted by
    counsel for Riar  repeatedly referred to the difficulties both appellants had
    in speaking, reading or writing English.  In particular, reference was made by
    Aujlas counsel to:

·

the fact that the signage and documentation at Dreyers was all
    in English;

·

the testimony of the Border Service officer who had difficulty
    understanding Aujla;

·

the inference that Aujlas apparent nervousness upon being
    referred to a secondary inspection was a result of an understandable confusion given
    his limited understanding of English.

[64]

Counsel
    for Riar made the following additional submissions:

·

[Riar] had to be forcefully handcuffed upon arrest because he
    did not understand what was going on, nor was English his first language.

·

It is important to note that Mr. Riar speaks very little English
    and required the use of an interpreter for this proceeding and all meetings with
    counsel in preparation for the trial.  His first language is Punjabi.  His
    ability to read and write in the English language at the time  at the time of
    the offence -was very minimal and simplistic.

[65]

In
    the face of this evidence and these submissions, the trial judge did not place undue
    weight on the appellants knowledge of English.  He used it as one of many factors
    in assessing credibility.

Evidence supporting the defence of blind courier

[66]

The
    appellants submit that DaSilvas evidence should have raised a reasonable doubt
    because it established that the Public Storage boxes could have been loaded
    onto the trailer at Dreyers facility in Bakersfield to be collected at Nestlés
    warehouse in Mississauga.  That is, it was evidence of an on-going drug
    smuggling operation between the two facilities using drivers, like the
    appellants, as blind couriers.  DaSilva testified that if samples are sent to
    Nestlés warehouse, they would typically be listed on the bill of lading and an
    email notification would be sent in advance from Dreyers. However, the
    appellants submit that a sophisticated drug importer would not follow protocol.

[67]

In
    my view, it was open to the trial judge to accept Garzas evidence. He
    testified that the Public Storage boxes were not in the trailer on April 5,
    2007, when it left the Dreyers facility in Bakersfield and, in any event,
    samples would not be sent in similar boxes.

[68]

It
    was also open to the trial judge to reject the suggestion that some unknown
    person secreted the boxes while the appellants were en route from Bakersfield to
    Detroit. He found that the likelihood of a drug importer placing over three
    million dollars of cocaine in a trailer without any arrangement or certain logistical
    ability to retrieve the drugs was beyond remote.

Failure to consider the charges separately

[69]

I
    do not agree with the appellants that the trial judge failed to consider their
    charges individually. The trial judge repeatedly instructed himself to consider
    the appellants separately. While many issues were common to both appellants, the
    trial judge made individual credibility assessments and considered the
    liability of each.

Misapprehension of Riars defence

[70]

I
    turn to the judges comments about Riars alibi, which he referred to at
    least three times.

[71]

The
    trial judge listed the issues he was to determine. One of the questions he
    posed to himself was as follows:

Is the contradictory evidence of the two drivers concerning
    where they were after delivery of the load to Rancho Santa Margarita on April 2,
    2007 and the arrival at Dreyers on April 5th, 2007 capable of being considered
    an alibi that favours either accused or, because it all occurred before taking
    delivery of the ice cream, of no significance other than to be used along with all
    of the other evidence to determine the credibility, believability and reliability
    of each of the accused?

[72]

He
    went on to discuss the hiatus between April 2 and April 5, 2007, and stated,
    referring to Riars testimony that he visited Ravi during some of this time:

This is either an attempt to create an alibi for Riar or is a
    complete fabrication

[73]

Later
    in his reasons the trial judge said:

Riars evidence took on a desperate quality and appeared as if
    he was attempting to distance himself from Aujla, give himself an alibi and
    point the finger at Aujla being able to come into possession of the cocaine,
    secrete it in the tractor and perhaps secretly put it into the trailer later.

[74]

The
    appellant submits that the trial judge had a basic and fundamental
    misunderstanding of Riars defence. He repeatedly referred to alibi when it was
    made clear by Riars counsel that alibi was not the defence.

[75]

The
    trial judges oral reasons are not a model of succinctness or organization.
    However, when I read the reasons in their entirety, I find that the trial judge
    understood the issues and Riars defence.

[76]

The
    trial judge misspoke when he used the word alibi. However, in the context of
    his analysis as a whole, this mistake did not affect the finding of guilt. I say
    this for five reasons.

[77]

First,
    the trial judge did not misunderstand Riars defence. He was aware that the
    defence was lack of knowledge of the cocaine. The trial judge accepted the
    evidence of Garza - a finding of fact supported on the evidence.  Having found
    that the cocaine was not in the trailer when it left Dreyers, the trial judge
    turned his focus to the period between April 5 and 7, 2007. He stated:

Both defence counsel took the position that the two accused had
    control over the tractor at all times during the complete trip. Neither accused
    had control over the trailer during the time that it was being loaded at Dreyers.
    The issues then become whether they had control of the trailer from the time it
    left Dreyers until it arrived [at the border] and whether each had knowledge
    of the presence of the cocaine in the trailer and consented to it being there.

[78]

The
    trial judge understood Riars defence to be lack of knowledge of the cocaine
    after April 5 when they left Dreyers. He rejected the notion that an unknown
    person would entrust the shipment to strangers travelling across the country
    and through an international border. He added:

The value of the goods discovered leads me to conclude that it
    is highly unlikely that any person would entrust goods worth $3.5 million to a
    person or persons who had no knowledge of their existence and therefore risk
    losing everything by any number of ways.

[79]

Second,
    the trial judges opening question to himself was in the alternative. Either
    the evidence of Riar on his visit with Ravi would go toward alibi or it would merely
    form a part of the overall assessment of Riars credibility and reliability. Since
    he found that the cocaine was not in the truck when it left Dreyers on April
    5, the events of April 2-4 could only go to credibility.

[80]

In
    other words, the trial judges finding that the cocaine was put in the trailer
    after the April 5 loading of the ice cream meant that the discrepancy in the
    testimony of the appellants as to the events of April 2 to April 4 had no
    probative value with respect to Riars knowledge of the cocaine. Although the
    trial judge said that Riar raised the issue of his April 2 to April 4 whereabouts
    to assist himself in being able to deny his knowledge of the cocaine that may
    have been in the trailer before April 5, he added: This doesn't make sense
    because the trailer was not loaded until April 5.  Therefore the trial judge
    did not misunderstand the defence.

[81]

Third,
    the trial judge used the discrepancy between the testimonies of the two accused
    as only one of many factors in assessing Riars credibility. There were other
    factors he relied on.  Riar lied on his job application about his truck driving
    experience.  He provided a false letter of reference.  He lied on his log
    reports and the vehicle inspection reports.  Riars testimony about his arrest was
    contradicted by the several Border Services officers whose testimony the judge
    accepted.

[82]

The
    trial judge disbelieved Riars evidence that at no time between April 5 and April
    7 did he look at the doors to the trailer  particularly when doing the
    required inspection reports.

[83]

Fourth,
    the central findings of the trial judge had nothing to do with the alibi
    evidence. He understood Riars defence to be that he knew nothing about the
    drugs. He found as fact that the drugs were put into the trailer while the
    appellants were driving from Dreyers in Bakersfield to Detroit. Riar knew that
    there was supposed to be a seal on the doors to the trailer. The trial judge
    did not believe his evidence that he never looked at the doors.  This supported
    the inference that Riar knew the doors had been opened.

[84]

Fifth,
    it was appropriate for the trial judge to consider the evidence of Riars visit
    to Ravi in connection with credibility.  During his testimony, Riar spoke at
    length about the meeting with Ravi, discussed phone records of calls to and
    from Ravis phone and a presented a recently handwritten address.  His evidence
    differed from that of Aujla.  Although the evidence was irrelevant to the
    stashing of the cocaine in the trailer, it was relevant to credibility.

[85]

For
    all of these reasons, I would dismiss the conviction appeals of both appellants.

The Sentence Appeal

[86]

The
    trial judge sentenced Aujla to 16 years incarceration and Riar to 14 years. In
    doing so he made two errors: he sentenced them on the basis that they were high-level
    importers and on the basis that there had been a breach of trust. There was no
    evidence of either fact.

[87]

Also,
    the sentences imposed were outside of the appropriate range for first time
    offenders:
R. v. Cunningham
(1996), 27 O.R. (3d) 786 (C.A.).

[88]

I
    agree with the sentencing judge that denunciation and deterrence are the most
    relevant sentencing principles in this case. However, he erred in principle, and
    thus I would grant leave to appeal the sentences. I would vary the sentences as
    follows:

·

For Aujla, a sentence of 12 years;

·

For Riar, a sentence of ten years;

·

Both appellants would be entitled to enhanced credit of 1.5:1
    days for each of the 35 days they spent in pre-trial custody.

Disposition

[89]

I
    would dismiss the conviction appeals, grant leave to appeal the sentences and
    vary the sentences as set out above.

M.L. Benotto J.A.

I agree. K. van Rensburg J.A.

Laskin J.A. (Dissenting in part):

[90]

I
    have read Benotto J.A.s reasons. I agree with her that Aujlas conviction
    appeal should be dismissed. And I agree with her proposed disposition of the
    sentence appeals. I do not agree, however, that Riars conviction appeal should
    be dismissed.

[91]

In
    assessing Riars evidence and in rejecting his denial of knowledge of the
    cocaine, the trial judge made a litany of errors. Several of these errors,
    individually, amounted to errors of law. Collectively, these errors played a
    critical role in the trial judges reasons for rejecting Riars evidence and
    finding him guilty of importing cocaine. Thus, although the trial judge had
    valid grounds to disbelieve Riar, these numerous errors deprived him of a fair
    trial and caused a miscarriage of justice: see
R. v. Morrissey
(1995),
    97 C.C.C. (3d) 193 (Ont. C.A.) at pp. 221-22;
R. v. Lohrer,
2004 SCC
    24, [2004] 1 S.C.R. 627;
R. v. Lohrer
2004 SCC 80, [2004] 3 S.C.R.
    732.

[92]

I
    would allow Riars conviction appeal and order a new trial.

A.

Overview

[93]

On
    March 31, 2007, Aujla and Riar drove a truck from Brampton, Ontario to
    California to deliver a load of insulation. While they were in California, they
    received instructions to pick up a load of ice cream from Dreyers in
    Bakersfield.

[94]

On
    April 2, before arriving at Bakersfield, Aujla and Riar stopped in Ontario,
    California. The events of April 2 to 3 loomed large in the trial judges
    reasons, though not in the case for the defence of either accused. Riar said he
    left the truck and went to visit a friend in Loma Linda. Aujla said he and Riar
    were together the whole time. As I will discuss, the trial judge wrongly
    concluded that Riar was putting forward an alibi defence. And, he never
    resolved the contradiction between Riars and Aujlas accounts. Instead he
    relied on the contradiction as a ground to disbelieve both accused.

[95]

Aujla
    and Riar picked up the load of ice cream from Dreyers on April 5. They were to
    deliver it to Nestlé in Mississauga, Ontario on Monday, April 9. They crossed
    the border at Windsor on April 7. Customs officials inspected the truck and
    found two cardboard public storage boxes containing cocaine, concealed behind
    a seven-foot pallet at the rear of the truck. No forensic evidence linked either
    accused to the cocaine.

[96]

Aujla
    and Riar were charged with importing 37 kilograms of cocaine and possession of
    cocaine for the purpose of trafficking. The cocaine had a street value of
    approximately $3.5 million.

[97]

The
    two main questions at trial were first, when was the cocaine put in the truck,
    and second, who put it there? Each accused testified and denied knowledge of
    the cocaine.

[98]

On
    the first question, a Dreyers employee testified there was no cocaine in the
    truck when it arrived at or left Dreyers. The trial judge accepted the
    employees evidence and found that the cocaine was placed in the truck
    somewhere between Bakersfield, California and Windsor, Ontario. Riar does not
    challenge this finding on appeal. On the second question, the trial judge disbelieved
    the evidence of Aujla and Riar. He found that each accused had knowingly
    imported cocaine into Canada.

[99]

The
    trial judges reasons are excessively long  140 transcript pages
    disorganized, repetitive, and, in his rejection of Riars evidence, riddled
    with errors. In my opinion the trial judge made the following eight errors.

1. The trial judge
    mischaracterized Riars defence as one of alibi, even though Riars defence
    counsel had expressly disavowed an alibi defence. For Riar, his trip to Loma
    Linda on April 2 to visit a friend was a peripheral part of the narrative.

2. The trial judge
    erred by relying on the lack of corroboration of Riars alibi as a ground to
    disbelieve him. In doing so, the trial judge misapprehended the evidence that
    Riar had put forward corroborating his trip to Loma Linda. The trial judge
    further erred in law by drawing an adverse inference against Riar for failing
    to call his friend as a witness.

3. The trial judge
    wrongly used his rejection of Riars alibi and its late disclosure as grounds
    to disbelieve Riar, and even to infer his guilt.

4. The trial judge
    failed to make a finding on the big discrepancy and contradiction between the
    evidence of the two accused about whether Riar left the truck and Aujla on
    April 2 to visit his friend in Loma Linda. Someone had to be telling the truth.
    But instead of resolving the discrepancy, the trial judge used it to disbelieve
    both accused.

5. Over defence
    counsels objection, the trial judge permitted the Crown to cross-examine Riar
    improperly and then used Riars answer to discredit him.

6. The trial judge
    improperly used Riars knowledge of English to make a negative credibility
    finding against him. In doing so, the trial judge again misapprehended the
    evidence.

7. The trial judge
    placed excessive weight on Riars false employment record and reference letters
    in determining that he was not credible.

8. The trial judge erred
    by failing to consider the liability of each accused separately.

[100]

The respondent
    acknowledges that the trial judge erred by mischaracterizing Riars testimony
    as an attempt to create an alibi and by allowing the Crowns improper
    cross-examination of Riar. But the respondent contends that these errors were
    harmless and did not affect the verdict. I take a different view. On my
    assessment, the trial judge made the eight errors I have listed and these
    errors cumulatively produced a miscarriage of justice: they deprived Riar of a
    fair trial.

[101]

To put my
    analysis of these errors in context, I will briefly review the trip undertaken
    by the two accused to and from California, their arrests, the comparative
    trucking experience of Aujla and Riar, and the strength of the Crowns case
    against Riar.

B.

Background

(1)

The Trip

[102]

Aujla and Riar
    both worked for Aujlas fathers company, Aujla Transport. On March 31, they
    set out from Brampton headed for Rancho Santa Margarita, California with a load
    of insulation. On April 2, after delivering the load, they stopped in Ontario,
    California. Riar testified at trial that he stayed overnight in nearby Loma
    Linda with a childhood friend from India, Ravinder Riar. He testified that he
    rejoined Aujla at 6:00 p.m. the next day, April 3. Aujla, on the other hand,
    said they were together between April 2 and 3.

[103]

Between April 3
    and 4, Aujla and Riar drove to Bakersfield, where they stayed overnight. On
    April 5 they picked up the load of ice cream from Dreyers. The consignment of
    ice cream was to be delivered to Nestlé in Mississauga on Monday, April 9,
    either by Aujla or his father. Riar was to have no role in the final delivery;
    he was to be dropped off at his car before the load was delivered.

[104]

A man named
    Garza, a warehouse specialist, testified about the loading of the trailer at
    Dreyers. The trial judge accepted his evidence. The trailer was loaded with 30
    pallets of ice cream, in 15 rows of 2 pallets each. A full pallet was seven
    feet tall. One of the pallets near the rear, however, was only five feet tall.
    The two boxes of cocaine were eventually discovered on top of the shorter pallet.
    Neither box was visible from ground level. Garza testified that he did not see
    the two boxes containing the cocaine on April 5 and he did not place them on
    the load. As I have said, the trial judge accepted his evidence.

[105]

Aujla obtained
    the paperwork for the load. He testified that he placed the seal on the trailer
    at a nearby truck stop, after leaving Dreyers. Riar testified that he did not
    inspect the trailer after it was loaded.

[106]

Between April 5
    and 7, Aujla and Riar drove through Arizona, New Mexico, Texas, Oklahoma,
    Missouri, Illinois, Indiana, and Ohio, en route to Windsor, where they crossed
    the United States/Canada border. They alternated driving and made stops along
    the way to eat, go to the bathroom, and sleep.

[107]

A scan of the
    truck at the border crossing showed an anomaly in the load. A customs officer
    searched the trailer and discovered the cocaine. The officer took less than a
    minute to open the doors, climb up, and retrieve the cocaine. This officer
    testified that there was no seal on the trailer. Aujla maintained there was a
    seal when he entered Canada.

(2)

The Arrests

[108]

Aujla and Riar
    were arrested while standing in an area of the commercial warehouse at the
    border crossing, after their truck was scanned. Both were handcuffed and given
    the right to counsel. Aujla started gagging and crying and became ill. The
    trial judge relied on Aujlas demeanour after he was arrested as one of the
    reasons to reject his testimony. Riars demeanour and behaviour on arrest were
    not out of the ordinary.

(3)

Aujlas and Riars Trucking Experience

[109]

The trucking
    experience of the two accused differed significantly. Aujla was an experienced
    truck driver; Riar was a relative novice.

[110]

At the time of
    trial, Riar was 32 years old. He immigrated to Canada in 2005, and lived with
    his wife and family in a rented basement apartment in Brampton. At the time of
    the incident, Riar had limited driving experience. He obtained his truck
    drivers licence in July 2006, less than a year before the trip to California.
    He first worked for another company for which he made four trips to the United
    States.

[111]

Riar was hired
    by Aujla Transport in February 2007. When he was hired, he told the company he
    was a new driver. The company told him that he needed two years driving
    experience to be insured. So, Riar agreed to embellish his driving experience.
    The company falsified his employment record and arranged for false reference
    letters. At trial Riar candidly acknowledged he had participated in falsifying
    his employment history.

[112]

Before the trip
    in question, Riar had made four trips to the United States with Aujla
    Transport. He was not permitted to drive in heavy traffic, over mountains, or
    through customs.

[113]

By contrast,
    Aujla was an experienced truck driver. He was licensed in 2002, worked for his
    fathers company, and at the time of the trip in question, had made over 100
    trips to California. Aujla taught Riar how to drive, and how to complete a log
    book. On their trip to Bakersfield and back, Aujla had primary responsibility
    for the seal, the trailer doors, and the paperwork for the load.

(4)

The Strength of the Crowns Case against Riar

[114]

In my view, the
    Crown had a strong case against Riar, but not an overwhelming case.

[115]

At trial there
    were two possibilities for when the cocaine was secreted in the trailer: at
    Dreyers, without the knowledge of either Aujla or Riar; or after Dreyers,
    with the knowledge of one or both accused. Even at trial the first possibility
    was unlikely as it ran up against Garzas evidence. On appeal, Riar must accept
    the second possibility: the cocaine was put in the trailer after the accused
    left Dreyers.

[116]

If the cocaine
    was secreted in the trailer after Dreyers, then there are three possibilities
    of who did it or at least knew about it: Aujla and Riar together, Aujla alone,
    or Riar alone. I consider it very unlikely that Riar could have put the cocaine
    in the trailer without Aujlas knowledge. I therefore turn to the other two
    possibilities.

[117]

That Aujla
    alone put the cocaine in the trailer is a realistic and reasonable possibility.
    His father owned the truck in which the drugs were found. He was an experienced
    driver. He was primarily responsible for the daily logs and vehicle inspection
    reports. He handled the seal for the trailer doors, the bill of lading, and
    other customs paperwork. He drove the truck through customs. He acted
    suspiciously at primary inspection. He or his father was going to deliver the
    load to its final destination in Mississauga. And, I find it hard to conceive
    why he would need an accomplice.

[118]

Riar, on the
    other hand, was a mere trainee driver. This was only his fifth trip with Aujla
    Transport. He was limited in where he could drive. He relied on Aujla to tell
    him how to complete the daily logs and vehicle inspections. He had nothing to
    do with the customs paperwork or with placing the seal on the trailer doors. He
    showed no signs of nervousness at primary inspection. And he was not going to
    participate in the delivery of the load to its final destination.

[119]

The most
    compelling piece of evidence that both Aujla and Riar had knowledge of the
    cocaine is that they were together for the whole trip. But that piece of
    evidence has a context. In a general sense Aujla and Riar were together throughout
    the trip from Bakersfield to Windsor. There was no evidence, however, that
    during the trip they were together for every hour of every day. At times, they
    were likely apart  for washroom breaks, perhaps for sleeping or eating,
    perhaps for other reasons not disclosed in the record. The customs officers
    prompt removal of the cocaine showed that it could have been placed there very
    quickly. Thus, I consider the possibility that Aujla was the smuggler and Riar
    was innocent to be a reasonable possibility on the evidence. With that
    background, I turn to my discussion of the trial judges errors in rejecting
    Riars testimony.

C.

Analysis

(1)

The Trial Judge Mischaracterized Riars Defence as One of Alibi

[120]

At trial Riar
    did not put forward his trip to Loma Linda on April 2 to 3 as an alibi. And in
    cross-examining him, Crown counsel did not suggest Riar was advancing an alibi
    defence.

[121]

The trial
    judge, however, asked counsel for closing written submissions, and in those
    submissions Crown counsel said Riars evidence was consistent with an alibi
    defence. In response, defence counsel submitted, It was never the intention
    of the defence to claim alibi so as to suggest that while Mr. Riar was away
    from the tractor-trailer, Mr. Aujla was picking up cocaine. That response
    should have ended the discussion of alibi, as accused have a constitutional
    right to control their own defence. Moreover, Riars trip to Loma Linda could
    not in law constitute an alibi. Alibi evidence must be determinative of the
    guilt or innocence of an accused: see
R. v. Hill
(1995), 102 C.C.C.
    (3d) 469 (Ont. C.A.), at pp. 478-79. Riars evidence of his trip to Loma Linda
    was hardly that. It was but a minor piece of the narrative.

[122]

Nonetheless,
    the trial judge took up the position put forward by the Crown in closing. He
    treated Riars evidence of his trip to Loma Linda as an alibi defence. My
    colleague says the trial judge simply misspoke when he used the word alibi in
    his reasons. I do not agree. The trial judge did not simply use the word alibi
    mistakenly on an isolated occasion in his reasons. Had he merely done that, his
    misstatement could be excused.

[123]

Instead, the
    trial judge listed the question whether Riar had an alibi as one of the 13
    issues he had to resolve:

(9) Is the contradictory evidence of the two drivers concerning
    where they were after delivery of the load to Rancho Santa Margarita on April
    2, 2007 and the arrival at Dreyers on April 5
th
, 2007 capable of
    being considered an alibi that favours either accused or, because it all occurred
    before taking delivery of the ice cream, of no significance other than to be
    used along with all of the other evidence to determine the credibility,
    believability and reliability of each of the accused?

[124]

And repeatedly
    throughout his reasons, the trial judge referred to Riars attempt to create an
    alibi defence. He said:

This is either an attempt to create an alibi for Riar or is a
    complete fabrication, but both versions cant be truthful and lead to further
    questions about the veracity of each persons evidence, especially as they
    contradict each other.

[125]

And later in
    his reasons, the trial judge said:

Further, the inconsistencies and contradictions between the two
    accused as to where they were between April 2 and 4, 2007 was raised by Riar to
    provide him with an alibi in assisting him in being able to deny his knowledge
    of the cocaine that may have been in the trailer.

[126]

And still
    later:

Riars evidence took on a desperate quality and appeared as if
    he was attempting to distance himself from Aujla, give himself an alibi and
    point the finger at Aujla being able to come into possession of the cocaine,
    secrete it in the tractor and perhaps secretly put it into the trailer later.

[127]

The trial judge
    completely mischaracterized Riars defence. As important, the trial judges
    mistaken belief that Riar was attempting to create an alibi defence played a
    significant role in his assessment of Riars credibility. In this court, the
    Crown accepts that the trial judge erred by mischaracterising Riars testimony
    as an attempt to create an alibi. The respondent submits, however, that the
    error is harmless because the trial judge did not rely on his
    mischaracterization.

[128]

My colleague
    accepts that Riar did not put forward an alibi defence. But, like the
    respondent, she maintains that the trial judge understood Riars defence. In
    her opinion, the trial judge was aware that Riars defence was lack of
    knowledge. His disbelief of Riars account of the events April 2 to 3 was only
    one of many factors he used in assessing Riars credibility.

[129]

I cannot accept
    these arguments. The trial judges assessment of the credibility of Riars
    denial of knowledge of the cocaine, and the trial judges mischaracterization
    of Riars defence as one of alibi cannot be neatly severed. They are intertwined.
    Indeed, the trial judges mischaracterization of Riars defence had two
    tangible effects. First, it generally coloured the way the trial judge viewed
    Riars credibility. Second, it led the trial judge to commit the specific
    errors I identify in sections two, three, and four of this part of my reasons.
    But for treating Riars defence as one of alibi, the absence of corroboration,
    late disclosure, and the contradictory accounts of Riar and Aujla would be
    immaterial. Instead, the trial judge relied on these considerations to reject
    Riars testimony.

(2)

The Trial Judge Relied on the Lack of Corroboration for Riars Alibi
    as a Ground to Disbelieve Him

[130]

When an accused
    puts forward an alibi defence, the trier of fact may consider whether the
    accused gave timely disclosure of the alibi, whether the alibi is corroborated,
    and whether the alibi is a deliberate concoction. Because the trial judge
    mistakenly believed Riar had advanced an alibi defence, he relied on the lack
    of corroboration, the late disclosure, and even the possibility of concoction
    as grounds to disbelieve Riar. In my view, he erred in law in doing so. As this
    court said in
R. v. Rhode
, 2009 ONCA 463, 246 C.C.C. (3d) 18, at para.
    18: A trier of fact is not justified in applying the principles for assessing
    an accuseds credibility where the defence is alibi in a case where the defence
    is not alibi. And assessing evidence on a wrong legal principle is an error of
    law. See
R. v. Morin
, [1992] 3 S.C.R. 286, at p. 295.

[131]

In this
    section, I deal separately with the question of corroboration because of its
    significance in the trial judges reasons. In the next section, I deal with the
    late disclosure and the possibility of concoction.

[132]

The trial judge
    used what he perceived to be Riars failure to corroborate his alibi as an
    important basis to reject his evidence. Midway through his reasons, the trial
    judge said:

He was asked to produce his friends address that he said he
    had on a piece of paper with him. It was written on a photo static copy of the
    logbook dated April 6
th
, 2007. He was asked when he wrote the
    address and he said he wrote it down after he was arrested. The address of his
    friend was in Loma Linda, California, zip code 92354 and there were no other
    particulars with respect to street address or telephone number. However, there
    is no reference in his log or Aujlas log about being in Loma Linda,
    California.

He agreed his friend he said that he visited in Loma Linda,
    California was not in court.

[133]

And then, in
    the critical part of his reasons where the trial judge found Riar was not
    credible, he returned to the lack of corroboration for Riars trip to Loma
    Linda:

The inconsistencies and contradictions between where he and
    Aujla were between April 2 and April 4, 2007 affected his credibility and there
    was no other evidence to corroborate his side of the story. There was no entry
    that the tractor was ever in Loma Linda. The street address of his friend that
    he visited was not given. There was no indication that this person could not be
    found or brought to court to testify to support him. There is no requirement
    for that to happen, but had it happened it certainly would have assisted in
    making a determination that that aspect of his story was credible.

[134]

In these
    passages the trial judge erred in three ways. First, he erred by even
    considering whether there was corroboration for a trip that Riar did not put
    forward as an alibi. Second, he misapprehended the evidence. Riar had in fact
    produced three pieces of evidence to corroborate his visit to Loma Linda. He
    had marked his log off duty and for that reason, did not refer to Loma Linda
    in his log book. Indeed, he did not testify that the tractor itself was in Loma
    Linda. He said Aujla dropped him off at a gas station and from there his friend
    Ravinder Riar picked him up in his own car and drove him to his house, which
    was ten minutes away. Riar also pointed to telephone calls on Aujlas
    cellphone, which were consistent with his trip to Loma Linda. And Riar produced
    a piece of paper with his friends address:

Ravinder Riar

10930 Veach Street

Loma Linda CA

92354

[135]

The trial judge
    failed to appreciate the significance of any of this evidence.

[136]

Finally, the
    trial judge seemed to draw an adverse inference from Riars failure to call his
    friend Ravinder Riar as a witness. To the extent that he did so, the trial
    judge erred in law. Only in rare circumstances, and with great caution, should
    a trial judge draw an adverse inference against an accused for failing to call
    a witness. Doing so risks imposing the burden of adducing evidence on the
    accused and shifts the onus of proof. See
R. v. Zehr (1980)
, [1981] 54
    C.C.C. (3d) 65 (Ont. C.A.);
R. v. Ellis
, 2013 ONCA 9, 293 C.C.C. (3d)
    541, at para 49. One exception to this general rule is where the burden of
    proof is on the defence  for example, where it has put forward an alibi
    defence:
R. v. N.L.P.
, 2013 ONCA 773, 305 C.C.C. (3d) 105, at para.
    63. Riar made no claim of alibi, and the trial judge was not entitled to draw
    an adverse inference from his failure to call this witness.

(3)

The trial judge wrongly used his rejection of Riars alibi and his
    late disclosure as grounds to disbelieve Riar and even to infer his guilt.

[137]

The Crown did
    not cross-examine on an alleged alibi or the late disclosure of it. In his
    written submissions, however, the trial Crown argued that Riars trip to Loma
    Linda was consistent with an alibi defence. He contended:

Mr. Riars evidence was lacking in credibility and only served
    to strengthen the Crowns case on this issue of knowledge. Riars testimony was
    crafted to rebut the obvious inferences raised by the evidence for the Crown.

[138]

And he went
    further, submitting that Riars evidence amounted to after the fact
    fabrication, raised for the first time in his testimony. The Crowns
    submission is incorrect in law. A trier of fact is entitled to infer guilt from
    evidence that is fabricated, but a finding of fabrication requires independent
    evidence, that is, evidence apart from the evidence showing the statement to be
    false. See
R. v. OConnor (2002)
, 170 C.C.C. (3d) 365 (Ont. C.A.). In
    this case, there was no such independent evidence.

[139]

Nonetheless,
    the trial judge seemed to adopt the Crowns submission, as shown by this
    troubling passage in the trial judges reasons:

This is either an attempt to create an alibi for Riar or is a
    complete fabrication, but both versions cant be truthful and lead to further
    questions about the veracity of each persons evidence, especially as they
    contradict each other. I realize I must assess each accuseds evidence
    individually, but this part is important. This was the first time this evidence
    came to the attention of the Crown, I am led to believe.

[140]

In relying on
    fabrication and late disclosure as grounds to disbelieve Riar and even infer
    his guilt, the trial judge fell into legal error.

(4)

The trial judge erred by failing to resolve the big discrepancy and
    contradiction between the evidence of the two accused, and by using the
    contradiction to disbelieve both accused.

[141]

The trial judge
    said:

There was a big discrepancy and contradiction between the
    evidence of Riar and Aujla about whether they were together the whole time they
    were in California between April 2
nd
and April 5
th
, 2007.

[142]

Indeed, there
    was a contradiction between the evidence of Riar and Aujla, though as I have
    already said, on a matter peripheral to this case. Riar testified he left Aujla
    and the truck on April 2 to 3 to visit his childhood friend Ravinder Riar in
    Loma Linda. Aujla said he and Riar were together the entire time. One of the
    two accused was telling the truth. Instead of resolving the contradiction and
    making a finding on which accused was being truthful, the trial judge used the
    contradiction to disbelieve both Riar and Aujla. This was a serious error and
    it was an error that flowed from the trial judges mistaken belief that Riar
    was putting forward an alibi defence.

[143]

This error
    figured prominently in the trial judges rejection of Riars testimony. Its
    prominence is illustrated by several passages in the trial judges reasons.
    First, in a passage I have already quoted:

This is either an attempt to create an alibi for Riar or is a
    complete fabrication, but both versions cant be truthful and lead to further
    questions about the veracity of each persons evidence, especially as they
    contradict each other. I realize I must assess each accuseds evidence
    individually, but this part is important. This was the first time this evidence
    came to the attention of the Crown, I am led to believe.

[144]

And again:

Further, the inconsistencies and contradictions between the two
    accused as to where they were between April 2 and 4, 2007 was raised by Riar to
    provide him with an alibi in assisting him in being able to deny his knowledge
    of the cocaine that may have been in the trailer. This doesnt make sense
    because the trailer was not loaded until April 5 and the two of them had been
    back together again since they went to court on April 4, 2007 and there was no
    indication of Riar seeing Aujla put anything into the rear of the trailer after
    it was loaded.

[145]

And finally:

With respect to Riar, as I have already said, this evidence was
    crafted to rebut obvious inferences raised by the evidence of the Crown. The
    inconsistencies and contradictions between where he and Aujla were between
    April 2 and April 4, 2007 affected his credibility and there was no other
    evidence to corroborate his side of the story.

[146]

This last
    passage shows glaringly the error in the trial judges reasons. And, as I have
    already shown, Riar did provide evidence to corroborate his trip to Loma Linda,
    though not required to do so.

(5)

The trial judge erred by using the Crowns improper cross-examination to
    discredit Riar

[147]

Over defence
    counsels objection, the trial judge permitted Crown counsel to ask Riar to
    explain why his evidence about his trip to Loma Linda was inconsistent with
    Aujlas account that the two stayed together.

Q.      Do you have any explanation as to why Mr. Aujlas
    memory might not be as good as yours when he says you and he never left the
    truck stop?

MS. CRAIG:          Your Honour?

THE COURT:        Let him answer.

A.      I cannot say anything. Maybe he forgot. I cant say
    anything.

THE COURT:        Yes. Hang on a second, Mr. Pollock. Yes?

MS. CRAIG:          Well, its complete speculation of Mr. Riar
    to figure out whats in Mr. Aujlas mind. I dont think its a fair question.
    But, its already been answered, so that doesnt matter.

[148]

The respondent
[1]
acknowledges this
    question was improper. The opinion of one witness about the veracity of another
    is irrelevant, and may risk shifting the burden of proof. See
R. v. L.L.
,
    2009 ONCA 413, 244 C.C.C. (3d) 149, at paras. 14-16. Although improper, the
    question by itself would have had little significance. It became significant,
    however, when the trial judge relied on Riars answer as one of the grounds to
    discredit his testimony:

He had no explanation as to why Aujlas memory might not be as
    good as his when Aujla said he was with Riar the whole time and that the two of
    them never left the truck stop. He responded by saying I cannot say anything.
    Maybe he forgot.

[149]

Standing alone,
    this error would not justify a new trial. But it is one of the large number of
    errors that cumulatively produced a miscarriage of justice.

(6)

The trial judge improperly used Riars knowledge of English to make a
    negative credibility finding against him.

[150]

English was
    Riars second language. At trial, both he and Aujla used a Punjabi interpreter.
    Although seeming to have little relevance to the case, the trial judge became
    preoccupied with Riars knowledge and understanding of English. Early in his
    reasons, he listed it as one of the 13 issues he had to resolve:

(11) Is there evidence that either or both of the accused had
    some knowledge and understanding of the English language?

[151]

Defence counsel
    did refer to their clients knowledge of English in their closing submissions.
    But it was only a minor part of their case. Yet the trial judge referred to
    this issue time and again in his reasons, and used his assessment of Riars
    understanding of English to make a negative credibility finding against him.
    And  more important  in doing so, the trial judge misapprehended what, for
    him, became an important piece of evidence. Two passages from the trial judges
    reasons illustrate his misplaced reliance on Riars understanding of English.

[152]

The first
    passage concerns the testimony of the accused about what they understood when
    they were arrested at customs. Aujla testified that he did not understand the
    meaning of the words under arrest. Riar testified that he understood he was
    being arrested but could not understand the other words the customs officer
    said to him because the officer spoke too fast.

[153]

The trial judge
    did not appreciate that Aujla and Riar had given different evidence. He
    conflated the two, and made a negative finding about Riars testimony as if he
    had testified as Aujla had. After concluding that each of the two accused are
    not devoid of a working knowledge of English, the trial judge said:

I reject totally their testimony that they did not understand
    what the words under arrest meant. I find that they had sufficient knowledge
    about English to deal with that.

[154]

The trial began
    more than two and a half years after Aujla and Riar were arrested, so one could
    reasonably assume their English had improved in the intervening time. Even
    apart from that consideration, the trial judge misapprehended Riars evidence.
    Riar testified he understood he was being arrested, as the following passages
    from his evidence demonstrate:

Q.      And what did you  what did they tell you?

A.      They said, We have to arrest you.

Q.      Is that all they said?

A.      They were speaking very fast. Whatever I could
    understand with  that, Were going to arrest you.

And:

Q.      So when did that happen?

A.      When they said theyre going to arrest us. Then they
    made us stand with the glass, and thats when they searched us.

[155]

The trial judge
    was simply wrong, and his misunderstanding of Riars evidence led him to
    comment unfairly on Riars credibility.

[156]

The second
    passage in the trial judges reasons demonstrating his misplaced reliance on
    Riars understanding of English arose out of the cross-examination of Riar.
    During Riars testimony, the trial judge twice noted that Riar had answered in
    English before the question was translated into Punjabi. Riars defence counsel
    then asked to re-examine her client on his understanding of English. The trial
    judge refused, saying he had simply noted the exchange. But, in his reasons,
    the trial judge made a point of commenting on Riars understanding of English.

His friend asked Aujla to come along but he refused. Aujla did
    not know his friend before. This was never taken up with Aujla in his
    examination in-chief or his cross-examination as I recall. At this point, I
    noted that the question was asked in English about whether Aujla and the friend
    knew each other and Riar answered no in English before the question was
    translated into Punjabi. This occurred more than once during the
    cross-examination.

[157]

This is
    admittedly a small point, but it is yet another sign of an unfair trial.

(7)

The trial judge placed excessive weight on Riars false employment
    record and reference letters in determining that he was not credible

[158]

In his
    testimony, Riar candidly acknowledged that his job application to Aujla
    Transport contained a falsified employment history. He also acknowledged that
    the letters of reference he provided were not accurate. He testified that
    drivers were required to have two years of experience in order to qualify for
    insurance, and that a dispatcher at Aujla Transport helped him embellish his
    record.

[159]

The trial judge
    relied heavily on these earlier untruths in rejecting Riars credibility.
    Although he was, of course, entitled to take into account this evidence of
    dishonesty in assessing the appellants credibility, the extent to which he did
    so was unreasonable. He effectively held that Riars dishonesty in connection
    with his application for employment showed Riar to be generally of bad
    character, with a propensity for dishonesty. He then used what he viewed as
    Riars propensity for dishonesty as a justification for rejecting Riars claim
    of no knowledge of the cocaine.

[160]

In his analysis
    of Riars knowledge, the trial judge said:

The fraudulent letters relied upon by him to gain employment
    indicated that he had little respect for the truth. His evidence was riddled
    with contaminated untruths. Therefore again, on the totality of the evidence
    given by Riar, I cannot conclude that he was a truthful and honest witness and
    his evidence leads me to the inescapable conclusion beyond a reasonable doubt
    that his evidence is not credible, believable or reliable when he denied
    knowledge of and control of the cocaine.

[161]

And again, when
    assessing Riars credibility:

The fraudulent letters Riar submitted to Aujla Transport are
    clearly indicative of a person who will falsify his acts and is a clear
    indication that he is an untruthful person and that his evidence is
    contaminated with untruths and therefore not credible, believable or reliable.

[162]

Although the
    trial judge could look at previous acts of dishonesty in assessing credibility,
    the way he did so here was unreasonable. He took no account of the context for
    the earlier misrepresentations, or that Riar candidly acknowledged these
    misrepresentations in his testimony. He appeared to make no distinction between
    lying to the court and falsifying a job application. This credibility
    assessment crossed the line into propensity reasoning. The trial judge appears
    to conclude that because Riar lied on his job application and reference
    letters, he was an untruthful person who could not be expected to tell the
    truth in any context. The excessive weight the trial judge placed on Riars
    lies in connection with the employment application unfairly tainted his
    reception of Riars trial testimony.

(8)

The trial judge erred by failing to consider the liability of each
    accused separately.

[163]

Riar and Aujla
    were entitled to have their guilt or innocence assessed individually. And, at
    times in his lengthy reasons, the trial judge seemed to recognize his
    obligation to consider the liability of each accused separately. But, in the
    critical part of his reasons where he made his findings on the knowledge of
    each accused, he came to the inescapable conclusion that because of the value
    of the cocaine, both accused must have knowingly imported the drugs:

The value of the goods discovered leads me to conclude that it
    is highly unlikely that any person would entrust goods worth $3.5 million to a
    person or persons who had no knowledge of their existence and therefore risk
    losing everything by any number of ways. That leads to the inescapable
    conclusion that because of the value in this particular case being $3.5
    million, that I can clearly infer that each of the accused had knowledge on
    that factor alone. However, with respect to Aujla there is the additional
    factor of his demeanour at primary inspection observed by BSO Matos.

I have posited at the end of this judgment further scenarios as
    to how the cocaine was most likely placed in the trailer. It makes no sense
    whatever to guesstimate that this was done without the knowledge of both of the
    accused for the reasons set out above respecting the value of the cocaine.
    Therefore, I am satisfied beyond a reasonable doubt that each of the two
    accused had the requisite knowledge and control required for a conviction with
    respect to these charges before the court.

[164]

The trial judges
    reasoning is illogical. The amount and value of the cocaine could reasonably
    support the inference that one of the accused had knowledge  but not both. The
    trial judge never explained why he inferred from the value of the cocaine the
    knowledge of both Aujla and Riar. In drawing this inference and in failing to
    explain it, he erred in law.

D.

Conclusion

[165]

The central
    issue in this case was knowledge. Did Riar know that 37 kilograms of cocaine
    were secreted in the trailer? He testified that he did not know. The trial
    judge disbelieved him and found that the Crown had proved Riar knowingly
    imported the cocaine into Canada.

[166]

The trial judge
    had grounds, reasonably open to him, to reject Riars testimony. My colleague
    has referred to these grounds in her reasons. But in his rejection of Riars
    testimony, the trial judge made numerous errors. These errors materially
    affected his assessment of Riars credibility. They tainted his credibility
    finding to such an extent that they deprived Riar of a fair trial. See
R.
    v. Morrissey
;
R. v. Lohrer
. I would allow Riars conviction
    appeal, set aside his convictions and order a new trial.

Released: J.L. May 15, 2015

John Laskin J.A.

[1]
Mr. Piafsky, counsel for the Crown on appeal, was not counsel at trial.


WARNING

The President
    of the panel hearing this appeal directs that the following should be attached
    to the file:

An order
    restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4)
    or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4     (1)
Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of
    the following offences;

(i)   an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011,
    279.02, 279.03, 280, 281, 346 or 347,

(ii)  an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151
    (seduction of a female between 16 and 18), 153 (sexual intercourse with
    step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent
    or guardian procuring defilement) or 167 (householder permitting defilement) of
    the
Criminal Code
, chapter C-34 of the Revised Statutes of Canada,
    1970, as it read immediately before January 1, 1988; or

(b)     two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2)
In proceedings in respect of
    the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)  at the first reasonable opportunity, inform any
    witness under the age of eighteen years and the complainant of the right to
    make an application for the order; and

(b)  on application made by the complainant, the prosecutor
    or any such witness, make the order.

(3)
In proceedings in respect of
    an offence under section 163.1, a judge or justice shall make an order
    directing that any information that could identify a witness who is under the
    age of eighteen years, or any person who is the subject of a representation,
    written material or a recording that constitutes child pornography within the
    meaning of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)
An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community. 2005, c. 32, s. 15,
    c. 43, s. 8;2010, c. 3, s. 5;2012, c. 1, s. 29.

486.6     (1)
Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)
For greater certainty, an
    order referred to in subsection (1) applies to prohibit, in relation to
    proceedings taken against any person who fails to comply with the order, the
    publication in any document or the broadcasting or transmission in any way of information
    that could identify a victim, witness or justice system participant whose
    identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Batisse, 2015 ONCA 322

DATE: 20150507

DOCKET: C58480

Simmons, Tulloch and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

William Batisse

Respondent

Lisa Joyal, for the appellant

David Bennett, for the respondent

Heard: April 8, 2015

On appeal from the acquittals entered by Justice James A.
    S. Wilcox of the Superior Court of Justice on February 10, 2014.

By the
    Court:

[1]

The Crown appeals from the respondent's acquittals for
    several sexual offences alleged to have been committed against the respondents
    niece between 1989 and 1994.

[2]

At the conclusion of the oral appeal hearing, we ordered that the Crown
    appeal be allowed, that the acquittals be set aside, and that a new trial,
    including a new
voir dire
, be held. These are our reasons for that
    order.

Introduction

[3]

In pre-trial rulings, the trial judge found that an inculpatory
    statement made by the respondent to the police was inadmissible as evidence at
    trial. The trial judge concluded that, in taking the statement, the police
    breached the respondents ss. 10(a) and 10(b)
Charter
rights and his
    s. 7
Charter

right to silence. Relying on his s. 7
Charter
ruling,
    the trial judge also found the statement involuntary. Because the statement was
    involuntary, it was unnecessary for the trial judge to conduct a s. 24(2)
Charter
analysis.

[4]

Both the complainant and the respondent testified at trial. Although the
    trial judge said he had no reason to doubt the complainants evidence, the
    respondents evidence left him with a reasonable doubt. He accordingly
    acquitted the respondent on all charges.

[5]

On appeal, the Crown challenges a preliminary evidentiary ruling made by
    the trial judge on the pre-trial motions, as well as the trial judges ss. 7,
    and 10(b)
Charter
rulings and his finding that the respondents
    statement to the police was involuntary. For reasons that we will explain, we
    accept the Crowns submission that the trial judge erred in law in his
    preliminary evidentiary ruling and in his ruling concerning the admissibility
    of the respondents inculpatory statement.

The trial judges preliminary evidentiary ruling

[6]

The respondent initially pleaded guilty to one of the charges but then applied successfully to have his guilty plea struck. During pre-trial motions at his ensuing trial, the respondent asked that a pre-sentence report prepared following his guilty plea be admitted to prove the truth of the contents of certain statements and documents referred to in the pre-sentence report concerning his developmental deficits.

[7]

The statements and documents in the pre-sentence report
    on which the respondent sought to rely included a statement by the respondents
    mother that the respondent was assessed and labelled as mentally retarded
    during his school years. They also included documents located in an historical
    file indicating the following: testing revealed that the respondents
    intellectual functioning was in the borderline normal range; doctors with whom
    the respondent had had consultations referred to him as a retarded boy; and
    other reports referred to the respondents developmental delay.

[8]

The trial judge ruled the pre-sentence report
    admissible to prove the truth of the content of these statements and documents on
    three bases
:

i)

the common law public documents exception;

ii)

the principled approach to the hearsay rule (which the trial judge referred
    to as the
Khan
exception); and

iii)

the trial judges residual discretion to prevent unfairness to the
    accused that would result in a miscarriage of justice.

[9]

We accept the Crowns submission that the trial judge erred in law in
    admitting the pre-sentence report to prove the truth of the contents of the
    above noted statements and documents.

[10]

In
    admitting the pre-sentence report based on the common law public documents
    exception and the
Khan
exception, the trial judge relied in part on
    his understanding that the Crown had conceded the reliability of the various
    statements and reports. On appeal, it is not disputed that no such concession
    was made. The trial judge did not conduct his own reliability analysis. His failure
    to do so is an error in law that negates the first two bases for his admissibility
    ruling.

[11]

In
    any event, we also conclude that the trial judges reliance on the common law
    public documents exception to the hearsay rule is misplaced. A pre-sentence report
    is prepared on the basis that it is relevant to issues surrounding sentencing
following

a finding of guilt, and it is not subject to the same evidentiary
    strictures as are in place at trial. Witness statements and medical reports recorded
    or referred to in a pre-sentence report are not rendered admissible for the
    truth of their contents at trial by virtue of their inclusion in that report.

[12]

This
    is especially the case where double hearsay is at issue. The trial judges
    reliance on the public documents exception to ground the admissibility of the
    respondents mothers hearsay statements about the respondents intellectual
    abilities and related documents is an error in law.

[13]

Finally,
    the trial judges conclusion that the admission of this evidence was necessary
    lacked any evidentiary foundation and was also an error in law. Because the
    respondent failed to demonstrate any basis for concluding that the admission of
    the evidence was necessary, the trial judge erred in principle in relying on
    his residual discretion to admit the evidence.

The trial judge ruling concerning
    the admissibility of the respondents statement

[14]

We
    also accept the Crowns submission that the trial judge erred in law in his s.
    7
Charter
analysis concerning whether the police breached the respondents
    right to silence based on persistent questioning by the police during the
    course of a videotaped statement in which the respondent acknowledged two of
    the alleged sexual acts.

[15]

The
    respondent attended the police station and gave the videotaped statement in
    response to a request from an officer who told the respondent he was
    investigating a sexual assault allegation in which the respondent was a
    possible suspect. At the outset of the interview, the officer cautioned the
    respondent to disregard any threats or promises made by other officers to
    induce him to speak and told him, Its up to you if you want to talk, okay? The
    officer also informed the respondent that he had a right to contact a lawyer
    and facilitated contact with duty counsel through the 1-800 number at the
    respondents request.

[16]

During
    the course of police questioning, the appellant made a variety of statements
    concerning his willingness to speak. For example:

·

when asked if he was curious about the allegations, he said no
    but also indicated he would not mind talking about it another day;

·

after discussing some recollections about interactions with the
    complainant and being encouraged by the officer to move forward and deal with
    it now, he indicated he wanted to talk about what happened, but not right now;

·

after being told by the officer that speaking would help him move
    past his mistakes and grow as a person, he indicated it had been eating [him]
    up inside, and he wanted to talk about it.

[17]

The
    substance of the trial judges s. 7
Charter
analysis is contained at
    paras. 46 and 47 of his ruling on the
voir dire
:

The right to silence arises at the investigative stage. The
    police are not necessarily required to refrain from questioning a detainee who
    states that he does not wish to talk. However, under both common law and
Charter
rules, police persistence in continuing an interview, despite repeated
    assertions by the detainee that he wishes to remain silent, may well raise a
    strong argument that the subsequently obtained statement was not the product of
    a free will to speak to authorities, and it is not voluntary. The mere
    presence of a doubt as to the exercise of the detainees free will in making a
    statement will suffice to ground a remedy. [Citations omitted.]

In the circumstances of this case, I find that the accused was
    effectively denied his right to silence in breach of s. 7 of the
Charter
.

[18]

For
    persistent police questioning to constitute a breach of a detainees right to
    silence, it must have the consequence of depriving the detainee of the right to
    choose whether or not to speak to the police. This is made clear in

R. v.
    Singh
, 2007 SCC 48, [2007] 3 S.C.R. 405. In
Singh
, at para.
    46, the Supreme Court articulated this requirement in a quotation from
R.
    v. Hebert
, [1990] 2 S.C.R. 151:

there is nothing in the rule to prohibit the police from
    questioning the accused in the absence of counsel after the accused has
    retained counsel. Presumably, counsel will inform the accused of the right to
    remain silent. If the police are not posing as undercover officers and the
    accused chooses to volunteer information, there will be no violation of the
Charter
.
Police persuasion, short of denying the suspect the right to choose or depriving
    him of an operating mind, does not breach the right to silence
. [Emphasis
    added].

Further, at para. 53 of
Singh
, the Court
    stated: The ultimate question is whether the accused exercised free will by
    choosing to make a statement.

[19]

In our view, the trial judge erred
    in law by failing to accurately set out and apply the test for assessing
    whether persistent police questioning will result in a breach of a detainees
    s. 7
Charter
rights. The trial
    judge accurately noted that
Singh

states at para. 47: [P]olice
    persistence in continuing an interview, despite repeated assertions by the
    detainee that he wishes to remain silent, may well raise a strong argument that
    any subsequently obtained statement was not the product of a free will. However,
    as noted above, in both
Singh
and
Hebert
,
the Supreme Court also emphasized that police are
    entitled to use legitimate means of persuasion and that police persuasion,
    short of depriving a detainee of the ability to choose whether to speak, does
    not breach the right to silence.

[20]

In his reasons, the trial judge
    did not engage in any analysis of whether the respondents statements during
    the interview amounted to repeated assertions  that he wishe[d] to remain
    silent. In our view, by referring to the statement at para. 47 of
Singh
without also referring to the additional statements
    in both
Singh
and
Hebert
concerning police use of legitimate means of
    persuasion, the trial judge failed to advert to and apply the proper test
    concerning whether the respondents s. 7
Charter
rights had been breached.

[21]

As
    the trial judge's s. 7 ruling formed the basis of his finding that the respondent's statement was involuntary, the error in his s. 7 analysis taints his conclusion on involuntariness.

[22]

The
    respondent concedes that the trial judge erred in finding a s. 10(b)
Charter
breach. He also acknowledges that the s. 10(a)
Charter
breach
    found by the trial judge would not warrant the exclusion of the appellants
    statement to the police under s. 24(2) of the
Charter
. We agree with
    these concessions.

[23]

We
    are satisfied that absent the trial judges legal errors, the result in this
    matter would not necessarily have been the same.

[24]

In
    the result, we allow the Crown appeals, set aside the respondents acquittals,
    and order a new trial, including a new
voir dire
.

Released:

MT                                                  Janet
    Simmons J.A.

MAY -7 2015                                    M.
    Tulloch J.A.

Grant
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brown, 2015 ONCA 361

DATE: 20150522

DOCKET: C58718

Juriansz, Rouleau and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeffrey Brown

Appellant

Frank Addario, for the appellant

John Patton, for the respondent

Heard: May 4, 2015

On appeal from the sentence imposed on December 2, 2011
    by Justice A. Donald MacKenzie of the Superior Court of Justice, sitting with a
    jury.

By the Court:

[1]

The parties dispute the sentencing principles
    that govern youthful first-time offenders. The appellant, as an 18-year-old
    first offender, committed a home invasion marked by horrific violence. He was
    convicted of robbery, use of a restricted weapon during a rough, forcible
    confinement, uttering a death threat aggravated assault and unauthorized
    possession of a firearm, and sentenced to a total of nine years imprisonment.

[2]

In arriving at the sentence, the sentencing
    judge held that the concept of general deterrence and denunciation is
    paramount. It is not exclusive but it is paramount, it is the primary
    consideration. Counsel for the appellant submits this is an error of law. He
    asserts that specific deterrence and rehabilitation are always the paramount
    sentencing objectives in the case of a youthful first-time offender. In
    advancing the argument, he relies on what Rosenberg J.A. said in
R. v.
    Priest,
[1996] O.J. No. 3369 at para 17:

The primary objectives in sentencing a first
    offender are individual deterrence and rehabilitation. Except for very serious
    offenses and offenses involving violence, this court has held that these
    objectives are not only paramount but best achieved by either a suspended
    sentence and probation or a very short term of imprisonment followed by a term
    of probation.

[3]

In
Priest
, the sentencing judge imposed a one-year term of
    imprisonment on the young first-time offender after he pleaded guilty to
    breaking into a convenience store and stealing goods worth $2,700. The judge
    considered that general deterrence was the paramount consideration because of
    the prevalence of breaking and entering in the community. On appeal, the focus
    of the court in
Priest
was on the sentencing of youthful first-time
    offenders in cases in which dispositions other than imprisonment could and
    should be considered.

[4]

By contrast, this case involves the sentencing of a youthful first-time
    offender for an extremely serious offense for which a lengthy penitentiary term
    is warranted. The issue is what factors should govern the determination of the
    length of imprisonment imposed. The more apt authority, in our view, is
R.
    v. Thurairajah
, 2008 ONCA 91, which concerned the sentencing of a youthful
    first offender for a particularly serious sexual assault. Doherty J.A. writing
    for the court said:

41      Generally speaking, sentences imposed
    on young first offenders will stress individual deterrence, where necessary,
    and rehabilitation. General deterrence will play little, if any, role in
    fashioning the appropriate sentence in this category of offender in most cases:
R. v. Ijam
(2007), 87 O.R. (3d) 81 at 93-94
    (C.A.). Serious crimes of violence, particularly sexual assaults, do provide an
    exception to the general rule described above. While all of the principles of
    sentences remain important, including rehabilitation, for serious crimes
    involving significant personal violence, the objectives of denunciation and
    general deterrence gain prominence:
R. v. Ijam
,
    supra;
R. v. Wells
(2000), 141 C.C.C. (3d) 368
    at para. 26 (S.C.C.).

42      The emphasis to be placed on
    denunciation and to a lesser extent general deterrence, grows with the
    seriousness of the particular circumstances surrounding the sexual assault for
    which an accused, even a young accused, is being sentenced.

[5]

In our view, while individual deterrence and rehabilitation are the
    primary objectives in sentencing a first offender, the importance and weight of
    other factors increase with the seriousness of the crime. This approach
    respects the fundamental principle of sentencing stated in s. 718.2 of the
Criminal
    Code
: a sentence must be proportionate to the gravity of the offence and
    the degree of responsibility of the offender".

[6]

With this in mind we turn to the crime for which the appellant was
    sentenced. The appellant, together with two others, invaded a home looking for
    handguns. The vulnerable female resident was struck in the head multiple times
    with a pistol. After she had fallen, she was kicked repeatedly in the back of
    the head and back. Her wrists were bound with an exercise bungee. She was
    struck multiple times in the face and body with a golf driver. When the golf
    club broke she continued to be clobbered with it on her face, head and hands.
    The assailants, who had brought a gas can with them, poured gasoline on her and
    threatened to ignite it. They beat her further before fleeing with long guns.
    The resident was left with serious and permanent physical and psychological
    injuries. In describing the crime the sentencing judge said the mind boggles
    at the horrendous brutality of this aggravated assault".

[7]

The sentencing judges description of the crime is apt. General
    deterrence and denunciation had to be weighed heavily in sentencing this
    serious violent crime. However, it was an error to say these factors had become
    the primary consideration. The primary objectives in sentencing the youthful
    first time offender remained individual deterrence and rehabilitation. In
    balancing the factors, the sentencing judge still had to impose the shortest
    term of imprisonment that was proportionate to the crime and the responsibility
    of the offender, given his young age.

[8]

It is clear the sentencing judge, while considering general deterrence
    and denunciation to be the primary consideration, did attach significant weight
    to the appellants young age. He imposed a sentence of seven years for the
    convictions robbery, robbery with a firearm, and aggravated assault. For the
    convictions of uttering threats and forcible confinement he imposed sentences
    of three years to be served concurrently with the seven-year sentences. For the
    unlawful possession of a firearm he sentenced the appellant to two years to be
    served consecutively to the seven-year sentences, resulting in a total sentence
    of nine years.

[9]

The range for home invasions is four to five years at the low end, and
    up to 11 to 13 years at the high end: see
R. v. Wright
[2006] O.J. No.
    4870,
R. v. Mann
, [2010] O.J. No. 1924. The seven year sentences for
    the robbery with a firearm and aggravated assault were entirely fit and shorter
    sentence for these offences would not reflect their gravity. The two-year
    sentence for unlawful possession of a firearm contrary to s. 91(1) of the
Criminal Code
was also fit considering how the gun was used, when
    considered on its own. However, the effect of the two year consecutive sentence
    resulted in a total sentence of nine years. Section 91(1), unlike s. 85 of the
    Code, does not require a consecutive sentence.

[10]

We
    would vary the sentence by making the sentence for unlawful possession of a
    firearm concurrent to the other sentences thereby reducing the appellants
    total sentence from nine years to seven years to properly reflect that
    individual deterrence and rehabilitation remained the paramount factors on his
    sentencing.

[11]

The
    appeal is allowed and the sentence varied as indicated.

Released: May 22, 2015

(RGJ)
    R.G. Juriansz J.A.

Paul Rouleau J.A.

C.W. Hourigan J.A.