R v Choli, 2019 SKCA 87

Court of Appeal for Saskatchewan Docket: CACR3069 Citation: R v Choli , 2019 SKCA 87 Date: 2019-09-09 Between: Gabar Choli Appellant And Her Majesty the Queen Respondent Before: Ottenbreit, Ryan-Froslie and Schwann JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Ottenbreit In concurrence: The Honourable Madam Justice Ryan-Froslie The Honourable Madam Justice Schwann On Appeal From: CNJ 48 of 2013, Saskatoon Appeal Heard: February 6, 2019 Counsel: Lyndon Heidinger for the Appellant Wade McBride, Q.C., for the Respondent Ottenbreit J.A. I.

Introduction [ 1 ] Gabar Choli had been tried and acquitted on charges of unlawfully importing opium under s. 6(1) of the Controlled Drugs and Substances Act , SC 1996, c 19 [ CDSA ], and possession of opium for the purposes of trafficking under s. 5(2) of the CDSA . The Crown appealed the acquittal decision and a new trial was ordered ( R v Choli , 2016 SKCA 64 , 480 Sask R 73). At his second trial, which is the subject of this appeal, Mr. Choli was convicted and received three years incarceration for the s. 6(1) offence and two-and-a- half years concurrent for the s. 5(2) offence.

He appeals those convictions. [ 2 ] For the reasons hereinafter set forth, the appeal of Mr. Choli is dismissed. II. Facts and background [ 3 ] Mr. Choli was at his sister’s residence in Saskatoon when he accepted delivery of two boxes addressed to him purporting to contain pizza makers from a sender address in Mersin, Turkey. An undercover police officer conducted the controlled delivery, posing as a Canada Post employee wearing a Canada Post uniform. Opium was concealed in the false bottom of the pizza makers. After receipt, Mr. Choli put the two unopened boxes on the floor of the living room closet.

The boxes contained a total of 1.8 kilograms of opium, having a value of between $36,000 (wholesale) and up to $93,000 (retail). [ 4 ] The police obtained a search warrant for a vehicle registered to Mr. Choli. Inside the vehicle, the police located a priority post packing slip dated April 21, 2012, for a parcel sent from an address in Mersin, Turkey. The police also searched Mr. Choli’s phone and found some photographs and a video of the parcels taken within minutes of the delivery. The video showed Mr.

Choli examining the condition of the parcels, including the condition of the tape on the bottom of the boxes. [ 5 ] The Crown called an expert witness who gave extensive opinion evidence regarding the business practices of importing drugs into Canada. The salient parts of his testimony for the purposes of this appeal were as follows: (

i) opium is usually converted to morphine right after cultivation and shipped to another ‘transit’ country—usually Turkey or Iran—and then shipped to Canada; (ii) methods of importation into Canada may include postal service; (iii) before a parcel is shipped, a courier in Canada has to be identified as sufficiently trustworthy to receive it; (iv) the courier’s role is to accept the parcel and then get further instructions about forwarding it. The courier is not to open the parcel, nor does he or she want to; (

v) the courier may also have the responsibility to assess delays in the delivery or if there is anything unusual about the delivery person, to communicate those suspicions; (vi) the courier will sometimes be told to take photos or videos of the parcel so that the shipper of the parcel can determine if it has been tampered with.

Particularly, the courier will be tasked to look at the taping of the parcel, to look for holes, or to even weigh the package; (vii) after the courier receives the parcel, the next person to deal with it may wait several days or even weeks before picking up the parcel from the courier to wait out any possible police surveillance; and (viii) substantial risks are associated with using a courier who does not know about the drugs (a so-called “blind courier”). These included the recipient saying the parcel is not his or hers, not accepting delivery, contacting the police, or throwing the parcel away.

The expert witness explained that drug organizations rely on intimidation, threats, and violence and if a blind courier is used, there is no control over the person or parcel. [ 6 ] The expert witness also noted that the photographs and video taken by Mr. Choli of the parcels he received were consistent with the type of photographs and video a courier would be instructed to take.

[7] The only defence witness called was Mr. Choli. [8] Mr. Choli testified that he was a refugee from Iran but had lived in Turkey for two years before coming to Canada in 2007.He changed his name to Gabar Choli when he immigrated to Canada. He returned to Turkey in 2011 for approximately 40 days to getmarried. He lived with his sister and brother-in-law when he came back from Turkey. In early 2012, Mr. Choli moved to live with hiscousin, however, his mailing address remained his sister’s address.

He was at his sister and brother-in-law’s home on the day of thedelivery and testified he was looking after their kitten and using their printer. [9] Mr. Choli testified that when the parcels were delivered, he thought that his sister had perhaps ordered the pizza ovensonline. He stated he did not know anything about them and he did not think they were for him. [10] Mr. Choli stated he recorded a video and took photographs of the parcels because he had had a bad experience with damagedluggage with a Turkish airline, and he wanted to have evidence for his sister in case there was damage to the contents.

He said he placedthe packages in the closet so that the kitten would not cause more damage to them. In cross-examination, Mr. Choli acknowledged thathe took the video of the packing slip, which he said was to show that it had come from Turkey. [11] In a statement provided to police after his arrest, Mr. Choli did not mention his previous experience with damaged luggageand provided a different explanation for the video, stating that he took it because he thought a friend of his who lives in Mersin, Turkey,was playing a game with him. [12] Mr.

Choli acknowledged that in his statement to the police he said he was suspicious of the delivery person because theuniform she was wearing was a different colour than a Canada Post uniform. In cross-examination, Mr. Choli denied being suspiciouswhen the package arrived and testified he had misused this word in his statement to the police and that he should have used to word“surprised”. [13] Two other officers were primarily responsible for the custody of Mr. Choli at the scene and transporting him to thedetachment after his arrest. Mr.

Choli asserted for the first time that it was the police officers who transported him to jail who hadprovided him with the information about the undercover officer posing as a Canada Post employee, specifically with respect to heruniform being the wrong colour and the signing procedure used during the delivery of the package being irregular. As a result of thistestimony, the Crown applied to adduce rebuttal evidence from the transport officers. [14] Crown counsel informed the Court that she expected that the police officers’ evidence would contradict Mr.

Choli’s evidenceand that they would be able to explain why the conversations alleged by him with respect to the uniform and delivery would not havetaken place. The Crown argued that while the evidence was tied to credibility, it was more so related to Mr. Choli’s knowledge of thepresence of the controlled drugs and therefore it went directly to the issue of guilt or innocence. [15] The defence opposed the Crown’s application on the basis that it was not new information, as it was set out in Mr. Choli’sstatement to the police and it had been mentioned in his prior testimony during the first trial.

Moreover, the defence argued the evidencerelated only to a collateral matter (i.e., credibility). [16] The Court ruled that the Crown could adduce the rebuttal evidence because it could not have anticipated Mr. Choli wouldallege those details of police remarks made to him during transport and because Mr. Choli had offered these remarks as partialexplanation for his statement to the police that he was suspicious of the delivery person. [17] The trial judge explained that the rebuttal evidence, in the sense of the details, was new and could not reasonably have beenanticipated by the Crown.

The trial judge concluded the Crown was not splitting its case and the proposed evidence was relevant notonly to Mr. Choli’s credibility, but also to the question of his knowledge of the contents of the parcels, particularly in light of theevidence of the expert witness. He found it was relevant to the proof of the charge because it concerned whether Mr. Choli was alert tothe circumstances of the delivery of the packages. [18] The two police officers who transported Mr.

Choli following his arrest testified there were no differences between theuniform worn by the police undercover officer and what would be worn by a genuine Canada Post delivery person. Both officerstestified that Mr. Choli had requested to speak to a lawyer and any conversation they had with Mr. Choli during the drive would havebeen general and would not have had anything to do with the investigation. One police officer, however, did indicate that it was possiblethat they had discussed the undercover officer with Mr. Choli.

III. decision of the court below [19] After instructing himself on the concept of reasonable doubt and the principles in R v W.(D.), (SCC), [1991] 1SCR 742 [W.(D.)], the trial judge noted the main issue was with respect to Mr. Choli’s knowledge of what was in the packages. [20] The trial judge acknowledged Mr. Choli’s defence was that he did not know the packages contained opium, he was notexpecting them, he did not order them, and that he did not know or suspect there was anything in them other than what was marked onthem. [21] The trial judge reviewed the testimony of the expert witness. He noted that Mr.

Choli’s actions—the taking of photos andvideo, and the various ways in which Mr. Choli touched and tested the packages—were consistent with courier practices that had beendescribed by the police expert. Mr. Choli did not open the packages, which were addressed to him, but instead put them into a closet. Thetrial judge considered this to be bizarre behaviour, but in light of the expert’s explanation about the duties of a courier, those actionsmade perfect sense. He concluded that Mr.

Choli’s actions fit with what the police expert described as typical actions of a courier onreceipt of delivery of illegal drugs from out of the country.

[ 22 ] The trial judge determined that he did not believe Mr. Choli’s evidence and found it to be unreliable. He came to this conclusion because of Mr. Choli’s testimony specifically and because of the unbelievability of his version of events in light of the circumstances and the expert evidence. The trial judge noted the following: (

a) the packages came from Mersin, Turkey, where Mr. Choli had lived for two years, where he had been for 40 days in 2011, and where he knew people; (

b) the packages were addressed to Gabar Choli, the name he took only on arrival in Canada around 2007 or 2008. Whoever sent the packages knew his new legal name; (

c) the packages were addressed to his mailing address at his sister’s house. Whoever sent the packages knew his sister’s house was his mailing address; (

d) the contact phone number on the packages was his cousin’s number. Whoever sent the packages knew Mr. Choli could be contacted at his cousin’s number; (

e) the packages were delivered on a day when Mr. Choli was actually at his sister’s house, even though he did not live there. [ 23 ] The trial judge drew a number of conclusions from the foregoing in light of the expert evidence: (

a) Mr. Choli’s legal name, mailing address, phone number, and where he would be if the package were delivered would be a remarkable amount of detail for someone to know if the information had not been given to that person by Mr. Choli; (

b) if Mr. Choli had not provided that information for the packages, the sender was taking an enormous risk in sending high value illegal drugs to an unknowing recipient; (

c) if Mr. Choli was an unknowing recipient, he might have opened the packages once he received them; (

d) if he was an unknowing recipient, Mr. Choli might not have detected the opium and then might have ruined it by using the ovens or, alternatively, if he detected the opium, he might have called the police, disposed of the opium, or used it himself, leading to the sender losing drugs valued between $36,000 to $93,000; (

e) using an unknown person to receive international delivery of illegal drugs is rare; (

f) Mr. Choli’s inspection of the packages and putting the unopened packages away in a closet was consistent with the actions of a drug courier; (

g) although Mr. Choli said that the packages might be a trick from his old childhood friend or something that his sister had ordered, there was no apparent reason that his sister would use his name to order something from Turkey; (

h) he did not phone his sister about the packages; and (

i) Mr. Choli was in a hurry to document the condition of the packages but in no hurry to communicate with his sister about the packages or their condition. [ 24 ] The trial judge found that Mr. Choli’s actions were consistent with what the police expert had described as the practice of couriers, and consistent with Mr. Choli having been instructed to check and document the condition of the packages and then wait for further instructions. [ 25 ] The trial judge noted that, on delivery, the undercover officer testified that when she told Mr.

Choli she had a package for him, he said “A package for me?” When she told him that it was from Turkey, Mr. Choli said “Turkey?” The trial judge was not satisfied by Mr. Choli’s submission that these responses indicated that he was surprised and unaware of the imminent delivery of the parcels. [ 26 ] Mr. Choli had said that he was suspicious about the delivering officer’s Canada Post uniform and that the seed for his suspicion was sown by the two officers who had transported him.

The trial judge accepted the testimony of the police officers, whom he found to be straightforward and honest, and that they had said nothing that would have caused Mr. Choli to wonder about the Canada Post uniform. Moreover, he found that Mr. Choli’s wondering about the uniform was consistent with the instructions given to couriers about things out of the ordinary, such as a Canada Post uniform. [ 27 ] The trial judge noted that while, at one point, Mr.

Choli indicated he was suspicious of the Canada Post uniform, he later modified that explanation saying he was in fact surprised, not suspicious, and attributed the modification of word choice to his lack of fluency in the English language. The trial judge found Mr. Choli had been less than frank in trying to modify his explanation. [ 28 ] The trial judge also observed that Mr. Choli had testified he had not seen his sister since 2012, when in fact he had seen her two days before his arrest. He further noted that Mr.

Choli’s explanation of this contradiction was nonsensical, which suggested his evidence was unreliable. In the end, the trial judge found Mr. Choli not to be credible. [ 29 ] Having considered Mr. Choli’s testimony on its own and in the context of all of the evidence, the trial judge was not left with a reasonable doubt. He found it inconceivable that Mr. Choli was not involved in the delivery of the packages or that he did not know they contained illegal drugs. [ 30 ] The trial judge determined the only reasonably rational explanation for Mr.

Choli’s actions was that he was a knowing courier receiving a delivery of opium. He concluded this in view of Mr. Choli’s conduct, his being in place to receive the delivery, and by his testing and videoing the packages on receipt. The trial judge found that these actions demonstrated Mr. Choli had been expecting delivery of illegal drugs.

[31] The trial judge found that Mr. Choli knew he was receiving illegal drugs and knowingly possessed them. The trial judgefound that Mr. Choli had actual knowledge of the contents. However, in the event that he was wrong, he found that Mr. Choli was atleast wilfully blind as to what was in the packages (i.e., if Mr. Choli did not know that opium or other illegal drugs were actually in thepackages, he was in fact expecting delivery of illegal drugs, and that knowing exactly what was in those particular packages was onlyprevented by him not opening them). [32] Accordingly, the trial judge found Mr.

Choli guilty of both charges. IV. issues [33] Mr. Choli submits the following points are in issue: (

a) Did the trial judge err by allowing the Crown to call rebuttal evidence after Mr. Choli testified? (

b) Did the trial judge err by failing to consider the totality of the evidence or all relevant evidence in his findings on credibilityand in the application of the test in W.(D.)? (

c) Did the trial judge err by failing to consider all of the relevant evidence or the evidence that was inconsistent with a findingof guilt, thereby leading to an unreasonable verdict or misapprehension of evidence? (

d) Did the trial judge err by not accepting Mr. Choli’s evidence as to inconsistencies or the meaning of evidence, given Englishis his second language and his understanding of it was changing over the course of the proceedings? V. analysis A. Did the trial judge err by allowing the Crown to call rebuttal evidenceafter Mr. Choli testified? [34] Mr. Choli testified in examination-in-chief that the police officers who transported him after arrest were teasing him, saying hewas stupid, and saying that the delivery person wore a different uniform than a Canada Post employee would have. On cross-examination, Mr.

Choli admitted that he had told the police during his interview that he was suspicious of the Canada Post uniformbecause of its colour and those suspicions arose because of comments made by the police officers during his transport. He was cross-examined on his statement to the police and specifically about his comment that he was suspicious of the uniform: Q Okay. So you told the police at the interview that you weresuspicious of the Canada Post lady because of her uniform. Now,you testified earlier that the reason you were saying that is becauseof what the police told you in the truck?A That is correct.

The police in the truck told me you didn’t -- she waspolice. I’m like, no, she -- she -- the Post person was a police officerundercover. We were watching for you. You didn’t realize that, youstupid. She -- even her uniform is not the same uniform as a CanadaPost employee’s uniform. [35] However, on further cross-examination, Mr. Choli denied being suspicious and corrected the term to “surprised”. The Crownthen applied to call rebuttal evidence through the officers who had transported Mr.

Choli. [36] The Crown submitted that the rebuttal evidence was relevant to both credibility and knowledge of what was in the parcels.The Crown acknowledged in its submissions before the trial judge that it was aware from the previous trial that the source of Mr. Choli’sstatement regarding suspicions might have been the police, but was only aware of it to the extent of vague assertions without any detail.The Crown also submitted that the previous testimony could be interpreted as referring to his discussion with the police during thegiving of his statement, not during transport to the station.

The Crown submitted that Mr. Choli’s testimony at his second trial—namely,that a discussion with the police during transport was the source of his suspicions, and the details thereof—was therefore new evidence. [37] The trial judge found the proposed rebuttal evidence was new in the sense of the details disclosed and was relevant toMr. Choli’s knowledge of what was in the parcels. He determined the Crown was not splitting its case and allowed the Crown to call thetwo officers who had transported Mr. Choli. [38] Mr. Choli submits that the trial judge erred in allowing rebuttal evidence.

He argues the evidence was not new in the sensethat it could have been anticipated. He asserts that at most it dealt with a collateral fact, and in any event did not go to the issue of guilt orinnocence. [39] I turn to the relevant law. The Crown may not split its case under the guise of calling rebuttal evidence.

The Supreme Court ofCanada in R v G.(S.G.), (SCC), [1997] 2 SCR 716 at para 39 [G.(S.G.)] had this to say about rebuttal evidence: [39] In particular, the Crown should not be permitted to gain the unfair advantage which will inevitably arise from “splitting its case”.The rule against “splitting the case” developed primarily in the context of applications to adduce rebuttal evidence by the Crown.Applications to adduce rebuttal evidence and to reopen the case are “close cousins”, but not “identical twins”: R. v. M.(F.S.) (1996), (ON CA), 93 O.A.C. 201 at p. 208 (Ont. C.A.).

Rebuttal evidence is properly admissible where the matter addressed arisesout of the defence’s case, where it is not collateral, and generally, where the Crown could not have foreseen its development: R. v.

Krause, (SCC), [1986] 2 S.C.R. 466 at p. 474; R. v. Aalders, (SCC), [1993] 2 S.C.R. 482 at pp. 497-98.With rebuttal evidence, it is the rules of the adversarial process that justify the admission of the reply evidence. (Emphasis added) [40] Generally speaking, rebuttal evidence is admissible where (

i) the matter arises out of the defence case; (ii) it does not concerna collateral matter; and (iii) the Crown could not have foreseen its development. [41] In R v C.F., 2017 ONCA 480, 349 CCC (3d) 521, the Court explained the collateral fact rule: [58] The collateral fact rule prohibits calling evidence solely to contradict a witness on a collateral fact. The rule does not impact thescope of cross-examination, but rather limits what contradictory evidence can be called to refute a witness’s answer.

The rule seeks topreserve trial efficiency and avoid confusion and distraction by preventing the litigation of issues that have only marginal relevance. Seegenerally, David Watt, Watt’s Manual of Criminal Evidence, (Toronto: Thompson Reuters Canada, 2016), at p. 316. … [60] Nevertheless, in the circumstances of this case, the trial judge did not err in admitting the rebuttal evidence. The collateral factrule is not absolute. As the Supreme Court recognized in R. v.

R.(D.), (SCC), [1996] 2 S.C.R. 291, evidence thatundermines a witness’s credibility may escape the exclusionary reach of the collateral fact rule if credibility is central to the case againstan accused. [42] Whether to allow rebuttal evidence is a matter of the discretion of the trial judge. The trial judge must consider whetherexercising that discretion would create unfairness or cause prejudice to the accused (G.(S.G.) at para 29). [43] With this background, I turn to the arguments of Mr. Choli. It must be remembered that the expert witness had testified thatdrug couriers were often suspicious of deliveries.

In examination-in-chief, Mr. Choli provided some detail about the discussion he hadwith the officers who transported him to the station. In cross-examination, he justified his statement to the police that he was suspiciousbecause of the discussions he had with police about the delivery person’s uniform while being transported. I am satisfied that the issue ofMr. Choli’s comments about the colour of the uniform arose specifically out of the defence proffered by Mr. Choli to his allegedsuspicion. [44] With respect to whether the matter could have been anticipated, the Crown argues that Mr.

Choli’s testimony from theprevious trial, which contained a “vague” assertion that he only became suspicious after comments made to him by the police, took onadded significance after Mr. Choli’s cross-examination during the second trial when more detail was provided. [45] Mr. Choli concedes that the extent of his testimony at his previous trial with regard to this topic is not before this Court andthat no application to tender fresh evidence has been made. It appears the trial judge accepted the submissions of Crown counsel as to thenewness of the details arising during Mr. Choli’s testimony.

In the circumstances, this Court must as well. [46] With respect to the last point about whether the rebuttal evidence went to a collateral matter, I conclude it does not.Mr. Choli’s testimony that he told the police he was suspicious, and the source of that suspicion in the context of his disavowal ofsuspicion on cross-examination, goes both to credibility and to the ultimate issue of knowledge the packages contained drugs. Those twomatters were the only issues in play in the trial. [47] I see no error in the trial judge’s decision to allow rebuttal evidence in these circumstances. B.

Did the trial judge err by failing to consider the totality of the evidence orall relevant evidence in his findings on credibility and in the application of the test inW.(D.)? [48] Mr. Choli makes various submissions that the trial judge failed to consider the totality of the evidence. I take thesesubmissions to mean that in assessing Mr. Choli’s credibility as part of the first step of the W.(D.) analysis, the trial judge made errors inthe handling of the relevant evidence. [49] Mr.

Choli argues the trial judge wrongfully linked the origin of the packages in Mersin, Turkey to his connection to that cityand rejected Mr. Choli’s evidence that he did not know how his name ended up on the shipping labels. Mr. Choli asserts the trial judgewrongfully concluded that the information related to Mr. Choli on the package labels was a remarkable amount of detail to have comefrom someone other than himself, dismissed the possibility that someone close to him was using him as a dupe, dismissed hisexplanation of why he took a video of the parcels, and placed too much weight on the expert evidence. Mr.

Choli submits that thismishandling of the evidence impacted the trial judge’s credibility findings, depriving him of a fair trial. [50] Ironically, the argument that the trial judge failed to consider the totality of the evidence was the basis for this Court settingaside the first verdict of acquitting Mr. Choli. [51] The Crown argues that Mr. Choli’s submissions on this issue are merely an invitation to this Court to interpret and weigh theevidence differently, and that no errors have been exposed.

The Crown submits that the same arguments made at trial are again beingmade on appeal. [52] The governing law is set forth in R v Gagnon, 2006 SCC 17, [2006] 1 SCR 621 [Gagnon]. The Supreme Court of Canada heldthat a trial judge’s assessment of credibility is subject to the palpable and overriding error standard of review and the error must be suchthat, after reviewing all of the evidence, the conviction cannot be reasonably supported by that evidence:

[10] There is general agreement on the test applicable to a review of a finding of credibility by a trial judge: the appeal court mustdefer to the conclusions of the trial judge unless a palpable or overriding error can be shown. It is not enough that there is a difference ofopinion with the trial judge (Schwartz v. Canada, (SCC), [1996] 1 S.C.R. 254, at paras. 32-33; H.L. v. Canada(Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25, at para. 74).

A succinct description of the overall approach appears in R. v.Burke, (SCC), [1996] 1 S.C.R. 474, at para. 4, where this Court stated that “it is only where the Court has consideredall of the evidence before the trier of fact and determined that a conviction cannot be reasonably supported by that evidence that thecourt can ... overturn the trial court’s verdict”. With respect to the credibility of witnesses, the same standard applies. In Lavoie v. R.,[2003] Q.J.

No. 1474 (QL), at para. 37, Nuss J.A. of the Quebec Court of Appeal stated that a trial judge’s assessment of the credibilityof witnesses “will not be disturbed unless it can be demonstrated that he committed a palpable and overriding error” (citing Housen v.Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33). See also: R v Le, 2019 SCC 34, at para 206. [53] In Gagnon, the Supreme Court of Canada noted at paragraph 20: Assessing credibility is not a science.

It is very difficult for a trial judge to articulate with precision the complex intermingling ofimpressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is whythis Court decided, most recently in H.L., that in the absence of a palpable and overriding error by the trial judge, his or her perceptionsshould be respected.

See also: R v W.(R.), (SCC), [1992] 2 SCR 122 at 131; R v Beaudry, 2007 SCC 5 at paras 63 and 76, [2007] 1 SCR 190[Beaudry]; and R v C.L.Y., 2008 SCC 2 at para 21, [2008] 1 SCR 5. [54] Accordingly, deference must be shown to assessments of credibility, especially where the verdict rests on questions ofcredibility: R v Burke, (SCC), [1996] 1 SCR 474. [55] In my view, given the governing law, Mr. Choli’s arguments cannot succeed.

In making his arguments, he has approached theevidence in a piecemeal fashion, picking and choosing those parts of the evidence that are favourable to him and then submitting the trialjudge did not consider them in the totality of the evidence before him relevant to Mr. Choli’s credibility. I am satisfied, considering thealleged errors of the trial judge set forth above, that the trial judge had the whole of the evidence in view when making his credibilityfindings regarding Mr.

Choli. [56] Moreover, the failure on the part of the trial judge to refer explicitly to certain evidence does not, in and of itself, constitute anerror (R v Larivière, 2011 SKCA 19, at para 17, 366 Sask R 187). The trial judge’s reasons show that he was alive to and grappled withthe matter of Mr. Choli’s credibility. [57] I am also satisfied that Mr. Choli, in making his arguments, is asking this Court to view the evidence differently, drawdifferent inferences, and arrive at a different conclusion than the trial judge did regarding his credibility. The standard of review will notallow that.

The trial judge made no palpable and overriding error in making the credibility finding he did. C. Did the trial judge err by failing to consider all the relevant evidence or theevidence that was inconsistent with a finding of guilt thereby leading to anunreasonable verdict or misapprehension of evidence? [58] Mr. Choli recycles most of the evidentiary points used by him in his arguments on the previous issue, but with the variationthat the trial judge has ignored or misapprehended the evidence, thereby leading to an unreasonable verdict.

Underlying these argumentsis a challenge to the finding of credibility. [59] In determining whether a verdict is unreasonable or unsupported by the evidence under s. 686(1)(a)(

i) of the Criminal Code,an appeal court must consider whether the verdict is one which a properly instructed trier of fact, acting judicially, could have reached. InR v R.P., 2012 SCC 22, [2012] 1 SCR 746, the Supreme Court of Canada said: [9] To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v. Yebes, (SCC),[1987] 2 S.C.R. 168, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, determine whether the verdict is one that aproperly instructed jury or a judge could reasonably have rendered.

The appellate court may also find a verdict unreasonable if the trialjudge has drawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on bythe trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise beencontradicted or rejected by the trial judge (R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 4, 16 and 19-21; R. v.

Beaudry,2007 SCC 5, [2007] 1 S.C.R. 190). [10] Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact. A court ofappeal that reviews a trial court’s assessments of credibility in order to determine, for example, whether the verdict is reasonable cannotinterfere with those assessments unless it is established that they “cannot be supported on any reasonable view of the evidence” (R. v.Burke, (SCC), [1996] 1 S.C.R. 474, at para. 7).

See also: R v Yebes, (SCC), [1987] 2 SCR 168 (WL) at para 25; R v Biniaris, 2000 SCC 15, [2000] 1 SCR 381; R vSinclair, 2011 SCC 40, [2011] 3 SCR 3; and Beaudry. [60] Appellate review of an impugned verdict does not extend to a re-weighing of the trial judge’s factual findings and inferences(Beaudry at para 58). In R v P.R., 2018 SKCA 27, 365 CCC (3d) 120, in respect of an argument of unreasonable verdict made on thebasis of credibility assessments, this Court said the following:

[49] It is well understood that an appellate court must show “great deference” to a trial judge’s assessment of witness credibility: R vW.(R.), (SCC), [1992] 2 SCR 122 at 131; R v François, (SCC), [1994] 2 SCR 827; R v Baxter, 2013SKCA 52 at para 46, 414 Sask R 184. Where an unreasonable verdict is alleged and the verdict is based on a credibility assessment, anappellate court may only interfere if the verdict “cannot be supported on any reasonable view of the evidence”: R v Frances, 2017 SKCA109 at para 3; R v Burke, (SCC), [1996] 1 SCR 474 at para 7; R v R.P., 2012 SCC 22 at para 10, [2012] 1 SCR 746. [61] Mr.

Choli makes specific reference to several items of evidence which are not consistent with guilt. He notes that, based onthe expert testimony, some of his actions show he was a dupe. He submits the trial judge ignored a large number of his actions and theabsence of certain evidence that was inconsistent with guilt. He argues that the trial judge misapprehended his discussion with theundercover police officer who delivered the packages saying it was a mere clarification of a delivery he was expecting rather thanunawareness of the delivery.

He submits the trial judge misapprehended the discussion that took place with the officers during transport. [62] Insofar as these submissions relate to credibility findings in the context of an unreasonable verdict argument, I am satisfiedthat the trial judge’s findings are not such that it cannot be supported on any reasonable view of the evidence. I cannot see that the trialjudge misapprehended any of the evidence as alleged by Mr.

Choli. [63] After reviewing the treatment of the evidence as a whole, I am satisfied that the trial judge’s verdict was one that he couldreasonably have reached based on the evidence before him. D. Did the trial judge err by not accepting Mr. Choli’s evidence as toinconsistencies or the meaning of evidence, given English is his second language andhis understanding of it was changing over the course of the proceedings? [64] Mr.

Choli, in yet another variation of his argument that the trial judge erred in finding him not credible, submits the trial judgemisapprehended the evidence with respect to his fluency in English. He argues the trial judge should have accepted that he was not fluentin English and therefore should have found him credible in regard to his explanation about why he changed his description of beingsuspicious to being surprised at the delivery of the parcels. There is no merit in this argument. [65] Mr.

Choli had gone through the previous trial in English, gave statements to the police in English, did not ask for aninterpreter, and did not in any way express that he misunderstood anything that was being said during the trial. [66] The trial judge understood that English was not Mr. Choli’s first language. Nevertheless, it was open to the trial judge, havingseen and heard Mr. Choli testify, to find that the alteration of his evidence with respect to “suspicion” and “surprise”, by using the excusethat he did not understand English, was an attempt to change his testimony.

Obviously, this contributed to the trial judge’s credibilityfinding. VI. Conclusion [67] Mr. Choli’s appeal is dismissed. Mr. Choli is presently on interim release. This decision shall be communicated to Mr. Choli’scounsel. Mr. Choli is ordered to present himself into the custody of the Saskatoon City Police no later than 4:00 p.m., Wednesday,September 11, 2019. “Ottenbreit J.A.” Ottenbreit J.A.I concur. “Ottenbreit J.A.”forRyan-Froslie J.A.I concur. “Schwann J.A.” Schwann J.A.