COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sandhu, 2014 ONCA 356

DATE: 20140502

DOCKET: C56274

Hoy A.C.J.O., MacPherson and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Avtar Singh Sandhu

Applicant/Appellant

Paul Burstein, for the appellant

Tom Lemon and Amber Pashuk, for the respondent

Heard: April 29, 2014

On appeal from the conviction entered on September 28, 2012 and the sentence imposed on November 27, 2012 by Justice Gray of the Superior Court of Justice, sitting with a jury.

By the Court:

[1] The appellant was convicted of possession of cocaine for the purpose of trafficking.  He was sentenced to nine years’ imprisonment.  He appeals the conviction on two grounds.

[2] The first ground of appeal relates to three utterances made by the appellant.  The first was made to Ministry of Transportation Enforcement Officer Jason Leeman.  When Officer Leeman arrived at the highway spot where the appellant’s truck and a silver sedan and their two drivers were pulled over, he asked the appellant “What’s going on?”  The appellant responded “They put a gun to my head.”  A few minutes later, Constables Paul Kent and Geoff Clarke arrived on site.  When Constable Kent requested the appellant’s registration and permit, the appellant volunteered that two guys had come to him with a gun and told him to put bags in the back of the truck.  Then as they walked towards the back of the truck, the appellant repeated his statement.

[3] At the outset of the trial, a blended voir dire was held.  The principal issue was the admissibility of the cocaine found in the back of the truck following a warrantless search.  The trial judge wrote extensive reasons on this issue.  He found that there had been a breach of the appellant’s s. 8 Charter rights but he did not exclude the cocaine under s. 24(2).  The appellant does not appeal this component of the ruling.

[4] Briefly, and only in his reply submissions, the appellant’s counsel raised the issue of admissibility of the three utterances, arguing that the initial one was compelled under the Highway Traffic Act (“HTA”) and the second and third were obtained in violation of s. 10(b) of the Charter.

[5] The trial judge dealt with this issue in very brief fashion at the end of his comprehensive ruling:

94. With respect to the utterances of Mr. Sandhu, they were clearly voluntary.  They were spontaneous utterances and were not preceded by any promises, threats or attempts at undue influence.  Indeed, they were not preceded by any police conduct at all, except an inquiry to the effect of “What’s going on?”

95. The situation had not developed to the point where Mr. Sandhu was entitled to be informed of his right to counsel, or given any caution.  At the time he was asked “what’s going on?”, he was not detained.

[6] The appellant challenges this component of the trial judge’s ruling on several bases: (1) the trial judge’s reasons for admitting the three utterances were inadequate and do not afford a meaningful basis for appellate review; (2) the appellant’s utterances were compelled by s. 216.1 of the HTA and were, therefore, inadmissible at his criminal trial pursuant to s. 7 of the Charter; (3) the trial judge erred in failing to consider that the appellant’s statutory obligation to respond to the demands of Officer Leeman and Constable Kent could raise a reasonable doubt about the voluntariness of the appellant’s utterances; and (4) the appellant’s two utterances to Constable Kent were tainted by the appellant’s interaction with Officer Leeman and/or were obtained in violation of s. 10(b) of the Charter.

[7] We do not accept these submissions.  In the context of an issue that was barely raised and briefly argued, the trial judge’s reasons on this issue are sufficient for review.  His path to his ruling was simple – the appellant was not detained.  To contemplate that a regulatory officer’s common inquiry upon arriving at a site – “What’s going on?” – amounts to a detention, thus triggering a panoply of common law and Charter rights, is a stretch too far.  Moreover, on the detention point, the appellant did not testify on the voir dire, so there is no evidence about how he viewed the situation when he made his three utterances. 

[8] The appellant’s argument that his utterances were compelled by s. 216.1 of the HTA is premised on the threshold assumption that Officer Leeman conducted an investigation under that section.  Importantly, the trial judge found as a fact that Officer Leeman never conducted an investigation under s. 216.1 of the HTA; we see no error in this conclusion, and therefore – on this basis alone – no merit in the appellant’s statutory compulsion argument. 

[9] In addition, the only thing Constable Kent did before the appellant made the two utterances to him was ask for the appellant’s permit and registration; he did not otherwise question the appellant.  Finally, in his very brief oral submission on this issue, trial counsel said twice that “I wouldn’t think that voluntariness is an issue here.”  In the end, in response to early and innocuous questions (‘scene setting’ questions), the appellant three times talked about guns.  When he did this, he was not detained.  We agree with the trial judge on this point.

[10] Second, the appellant contends that the trial judge erred in his jury charge by failing to explain how the appellant’s limited facility in English might lend a non-incriminating inference to the utterances.

[11] We are not persuaded by this submission.  The trial judge told the jury that if they believed the appellant’s denial that he made the statements or if they had a reasonable doubt about whether he made them, the statements would not be evidence about the appellant’s knowledge.  He also conveyed the thrust of the appellant’s argument to the jury, namely, that the appellant had a poor grasp of the English language and did not mean what the officers thought he meant.  The trial judge also said, in relation to the utterances heard by Constable Kent:

It is the position of the defence that because of the language barrier between the officers and Mr. Sandhu, Officer Kent is mistaken in his belief that Mr. Sandhu told him in English that he had been forced at gunpoint to put the bags in the back of the truck.

In our view, the trial judge handled the language issue in a proper fashion.

[12] The appeal is dismissed.

Released: May 2, 2014 (“A.H.”)

“Alexandra Hoy A.C.J.O.”

“J.C. MacPherson J.A.”

“R.A. Blair J.A.”