Court of Appeal dismissal cautionary tale for defence

Law360 Canada (May 13, 2024, 11:37 AM EDT) --

John L. Hill

A Calgary barber, Navjot Singh, was tried with his friend Gurjeet Ghotra when police observed the men loading containers later found to be packed with 66 kilograms of cocaine and 30 kilograms of methamphetamine.

The arrest came in October 2018, but police had become suspicious of drug trafficking in August. The police obtained a warrant to be placed on Singh’s car while the investigation continued. After the men were arrested, a search of Singh’s car resulted in the police finding more drugs and $38,000 in cash. At trial before a judge alone, a conviction was registered against Singh, with the judge holding that the only rational conclusion was that Singh had both control over and knowledge of the drugs and money in his car. Singh had tried to argue that someone else could have gained entry to his vehicle and deposited the drugs and cash. Moreover, the police placement of a tracking device breached his s. 8 Charter right to be secure against unreasonable search and seizure. Yet there is no mention of Charter issues when Singh was convicted and Ghotra was acquitted (R. v. Singh, 2021 ABQB 243). Nor was the Charter discussed when Singh was sentenced to 10 years (R. v. Singh, 2022 ABQB 191).

An appeal to the Alberta Court of Appeal was dismissed (R. v. Singh, 2024 ABCA 109).

The concurring judgment of Justice Frans F. Slatter notes that the “Charter issues that predominated the trial are not the subject of appeal.” One would have thought that the case would have turned on the propriety of the search, leading to an argument that if there were Charter breaches, the evidence found resulting from subsequent searches should be inadmissible. Instead, it was argued that evidence taken during a voir dire should have been impermissible during the trial.

Reading the appeal judgment leads one to assume that the trial counsel did not fully appreciate the distinction between a voir dire and a blended voir dire. The purpose of a voir dire is to determine whether disputed evidence should be admitted, separate from the merits of the trial. Evidence can be given a thorough examination without prejudicing the trial itself. In a blended voir dire, evidence adduced during the voir dire can be taken as evidence at trial if the parties consent. The time saving can be substantial because the witnesses need not be called twice, once to testify at the voir dire and then again in the trial.

Defence counsel and the Crown consented to the admission of significant issues at trial. The parties agreed to the weights and values of the cocaine and methamphetamine and that where the substances were located in the Singh vehicle was consistent with an intention by the person in possession of the controlled substances to possess them for the purpose of trafficking. Surveillance evidence was admitted as well. Such evidence was relevant to essential elements of the offence, specifically Singh’s knowledge of and control over the drugs in the duffle bags found in his car and the cash that was discovered.

Section 655 of the Criminal Code comes into play when consent is given to accept these crucial matters into evidence at trial. That section provides that an accused on trial for an indictable offence may admit any fact alleged to dispense with the need to prove it. It has been recognized in R. v. Park, [1981] 2 SCR 64, that “dispenses with proof” relates not only to the fact admitted but also eliminates the need to call evidence, such as experts, to testify how the fact was established.

The admissions conceded that allowing the evidence adduced at the blended voir dire became not only an evidentiary shortcut but also relieved the trial judge of conducting an inquiry as to the admissibility of the underlying evidence (R. v. J.D., 2022 SCC 15).

The judgment came down harshly against the defence counsel in this case. Justice Slatter noted that an appellant is entitled to a fair trial, but fairness is a two-way street. Citing R. v. Thomas, 2012 ABCA 176, the court warned the defence that the Crown is entitled to expect that it will not be ambushed on appeal by attempts to retract admissions made at the trial.

The case should be a cautionary tale about the defence counsel’s need to weigh what will be admitted on consent. Trusting that an appeal court will correct tactical errors at trial may be an error.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

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