COURT OF APPEAL FOR ONTARIO
Strathy C.J.O. (Motion Judge)
BETWEEN
Her Majesty the Queen
Respondent
and
Raja Dosanjh
Applicant/Appellant
Alan D. Gold, for the applicant/appellant
Deborah Krick, for the respondent
Heard: August 11, 2020 by video conference
1The applicant seeks an order under s. 680(1) of the Criminal Code, R.S.C. 1985, c. C-46, directing a panel of this court to review the decision of Miller J.A. dismissing his application for bail pending the determination of his appeal.
A. Background
2The applicant was convicted of first-degree murder on August 1, 2019 after a five-week trial by judge and jury.
3The murder in question occurred on March 1, 2016.The victim was shot multiple times at point-blank range as he was exiting his car at a Comfort Inn in Guelph, Ontario where he worked. The murder weapon, a submachine gun equipped with a silencer and with its serial number defaced, was found at the scene. The shooter arrived and departed in an SUV that had been rented by the applicant earlier that day.
4The identity of the killer was the only issue at trial. The evidence relied upon by the Crown included:
a. the computer “Infotainment” system from the rented SUV, which enabled the police to trace the movement of the vehicle from the rental agency to the family home of the applicant’s brother-in-law in Mississauga, then to the Comfort Inn where the killing occurred, and finally to the applicant’s family home where he was staying;
b. uncontested evidence that the applicant obtained the SUV from a rental agency in Mississauga around 1:15 p.m. on March 1, 2016, the shooting occurred at 4:38 p.m. on March 1, 2016, and the applicant returned the vehicle to the rental agency at 9:46 p.m. on March 2, 2016;
c. the discovery of gunshot residue on the passenger door of the SUV;
d. the presence of the applicant’s DNA on the grip of the submachine gun; and
e. a similarity in the clothing worn by the applicant on the day of the murder and that worn by the shooter.
5The defence relied on the evidence of a Crown eyewitness who identified the shooter as white. The applicant is of East Indian descent and is described as having brown skin.
6The applicant was denied bail pending trial. Hoy A.C.J.O. directed a review of that bail decision by a panel of this court. The panel dismissed the application on February 27, 2018: R. v. Dosanjh, 2018 ONCA 193.
7On May 13, 2020, the bail judge dismissed the applicant’s request for bail pending appeal of his conviction. He noted that there was no real dispute about the first two grounds set out in s. 679(3) of the Criminal Code. The focus of the parties’ debate was s. 679(3)(c): whether the applicant’s detention was necessary in the public interest. He accepted the Crown’s submission that there were serious public safety concerns arising out of the aggravated nature of the killing and the evidence at trial about the applicant’s involvement in high-level drug trafficking. On the merits of the appeal, he found that the applicant’s Charter ground was not strong, and that the other grounds of appeal were weak. The bail judge concluded that the enforceability interest significantly outweighed the reviewability interest, and that the applicant’s detention was justified.
B. Submissions
8Mr. Gold, on behalf of the applicant, submits that the bail judge erred in his analysis under s. 679(3)(c) of the Criminal Code. Mr. Gold contends that the bail judge failed to take a prospective approach to the public safety issue. He submits that despite the applicant’s admitted involvement in marijuana trafficking, there was no evidence linking him to dangerous weapons. The bail judge did not consider why the applicant’s release proposal, a $1 million bail package and strict house arrest, did not address any residual public safety concerns.
9On the issue of public confidence in the administration of justice, Mr. Gold identifies several potential grounds of appeal, including an allegedly erroneous jury instruction on identification evidence, and a Charter argument based on “police dishonesty” in obtaining a warrant for the rented SUV’s Infotainment system.
10Ms. Krick, on behalf of the Crown, submits that the bail judge appropriately determined that there were substantial public safety concerns associated with the applicant’s potential bail. The applicant has been convicted of first-degree murder and he had accessed a submachine gun with a silencer to carry out a brutal crime in broad daylight in a public place. He was a “high level” drug trafficker in an inherently violent business. The public safety concerns, by its very nature, could not be addressed by the proposed release plan.
11Ms. Krick also submits that the bail judge did not err in assessing the applicant’s grounds of appeal as “weak”. The need for enforceability in this case is pressing, and public confidence in the administration of justice would be undermined if the applicant were to be released.
C. Analysis
12In R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 61, the Supreme Court of Canada set out the principles that should guide a panel of an appellate court when reviewing a decision of a single judge under s. 680(1):
Ultimately, in my view, a panel reviewing a decision of a single judge under s. 680(1) should be guided by the following three principles. First, absent palpable and overriding error, the review panel must show deference to the judge’s findings of fact. Second, the review panel may intervene and substitute its decision for that of the judge where it is satisfied that the judge erred in law or in principle, and the error was material to the outcome. Third, in the absence of legal error, the review panel may intervene and substitute its decision for that of the judge where it concludes that the decision was clearly unwarranted.
13These principles inform the test to be applied by a chief justice when considering whether to direct a review by a panel of an appellate court. In particular, the chief justice must determine whether it is arguable that the bail judge committed material errors of fact or law in arriving at the decision, or that the decision was clearly unwarranted in the circumstances: Oland, at para. 64.
(1) The public interest criterion of s. 679(3)(c) in the Criminal Code
14The framework for analysis of the public interest criterion was set out by this court in R. v. Farinacci (1993), 1993 CanLII 3385 (ON CA), 109 D.L.R. (4th) 97 (Ont. C.A.) and confirmed by the Supreme Court of Canada in Oland. Arbour J.A. identified two components of the public interest criterion: public safety and public confidence in the administration of justice. The analysis of the bail judge focused on these components and so will my reasons.
(2) Public safety
15I am not satisfied that it is arguable that the bail judge made material errors of fact or law with respect to his conclusions on the public safety component.
16The public safety component is concerned with the protection and safety of the public should an applicant be released pending appeal: R. v. Ruthowsky, 2018 ONCA 552, at para. 8. The issue is whether the applicant is likely to commit an offense while on bail pending appeal: R. v. Badgerow, 2017 ONCA 670, 42 C.R. (7th) 411, at para. 28. The proposed plan of release is therefore a relevant consideration: R. v. Iraheta, 2018 ONCA 229, at para. 12.
17In this case, the fact that the applicant may meet the test in s. 679(3)(b) and surrender into custody is not enough to allay “lingering” public safety concerns: Oland, at para. 50. The applicant’s DNA on the grip of the submachine gun was compelling evidence that he was either the shooter or a participant in the shooting. The jury heard and rejected the possibility that the applicant’s DNA may have been innocently transferred from the handle of a duffle bag used to transport marijuana. It is a reasonable conclusion that the applicant used or had access to the very dangerous prohibited weapon used in the killing.
18I also do not accept the submission that the applicant’s admitted involvement in high-level marijuana trafficking was irrelevant to the public safety analysis. There was evidence that he was moving duffle bag quantities of marijuana. The bail judge reasonably concluded that individuals who are involved in the drug trade at this level pose a danger to public safety.
19These considerations – the appellant’s apparent access to a very dangerous weapon and his involvement in high level drug trafficking – raise public safety concerns that may not be fully mitigated by a release plan.
(3) Public confidence in the administration of justice – the reviewability interest
20I turn to the issue of public confidence in the administration of justice. The public confidence component of the public interest criterion balances two competing interests: reviewability and enforceability. Achieving this balance mandates a judicial assessment of, on one hand, the need to review convictions and, on the other, the need to respect the general rule regarding the immediate enforceability of judgments: Oland, at paras. 24-25.
21The statutory criteria in s. 515(10)(c) – used to assess whether pre-trial detention is in the public interest – inform the reviewability and the enforceability interests on an application for bail pending appeal: Oland, at paras. 31-32. In particular, the reviewability interest hinges on the strength of the appeal while the enforceability interest turns on the seriousness of the offense: Oland, at paras. 37, 40.
22The applicant raised a number of grounds of appeal. The bail judge determined that most of the grounds were weak and focused his analysis on the Charter ground. I agree with the bail judge that most of the grounds put forward by the applicant are weak. I will address the instruction on eyewitness evidence ground and the Charter ground, which in my view are the strongest.
(a) The instruction on eyewitness evidence
23The applicant submits that the trial judge erred by giving the jury a caution about accepting the “identification” evidence of a Crown witness named Mr. Thakar. Mr. Thakar was one of three people at the Comfort Inn who witnessed the shooting. The defence at trial described Mr. Thakar’s evidence as one of the “pillars” of its case.
24Mr. Thakar did not identify the applicant as the shooter. He gave a description of the person who he said he saw for a few seconds. This person was of “fair white” complexion with “less hair” on his head. He could not remember whether he saw the front or side of the person’s face, but he saw the top of his head, which appeared to be “balding”. Immediately after the shooting, Mr. Thakar called “911” and identified the shooter as “white”. The “911” tape was played for the jury.
25A second witness said that the shooter was wearing a light grey fitted sweater and sweat pants and described the shooter as thin and very tall. A third witness said that the hood of the shooter’s sweat suit was up and that he was “tall and skinny.”
26The applicant was acknowledged to be very tall and thin. He was described by an employee at the rental car agency as having “fair” skin.
27The trial judge instructed the jury to be “very cautious about relying on eyewitness testimony in your determinations.” He then explained the dangers associated with eyewitness testimony and encouraged the jury to consider all the evidence in reaching their verdict.
28The trial judge also gave the jury a specific W.(D.) instruction before his review of Mr. Thakar’s evidence. He told them that if they accepted Mr. Thakar’s evidence that the shooter’s scalp was white, the applicant could not have been the shooter and they were required to acquit him. They were also required to acquit him if they were left in reasonable doubt by Mr. Thakar’s evidence.
29The applicant submits that the trial judge erred in cautioning the jury with respect to the evidence of Mr. Thakar, whose description of the shooter was a crucial piece of evidence favouring the defence. I would not accept this submission.
30Mr. Thakar was called by the Crown and some of his evidence assisted the Crown while some assisted the defence. He is properly regarded as a “mixed” witness. Regardless of whether his testimony at trial could be characterized as “description evidence” or “identification evidence,” the trial judge’s instructions on Mr. Thakar’s testimony are in line with the authorities of this court: R. v. Vassel, 2018 ONCA 721, 365 C.C.C. (3d) 45; R. v. Sheriffe, 2015 ONCA 880, 333 C.C.C. (3d) 330, leave to appeal refused, 2016 CanLII 82916. These authorities confirm that it is not an error for a trial judge to caution the jury concerning the inherent frailties of eyewitness evidence and the reasons for the caution, provided that the instructions do not amount to the equivalent of a Vetrovec caution, expressly or implicitly undermine the defence’s position, or shift the onus of proof onto the defense. In my view, the impugned instruction did none of these things. On the contrary, the W.(D.) instruction with respect to Mr. Thakar’s evidence made the significance of his evidence very clear.
(b) The Charter issue – failure to quash search warrant
31This ground of appeal relates to the police search and seizure of the computer “Infotainment” system from the SUV rented by the applicant and used to transport the shooter to the scene of the killing. The Infotainment system led to the recovery of the vehicle’s GPS tracking log. The log showed that the vehicle travelled from the rental agency parking lot to the family home of the applicant’s brother-in-law in Mississauga. The vehicle remained in the driveway for a number of minutes, with its motor running, and then drove to the north part of Guelph, stopping on two occasions. It subsequently drove to the Comfort Inn parking lot near where the victim was shot. After the shooting, it moved out of Guelph and ultimately back to Mississauga, making stops at a mosque, a strip mall, and the residence of the applicant’s brother-in-law. The vehicle ended up at the applicant’s family home. The following day, it was returned to the rental agency.
32The search also recovered the contact list from the cell phone of the applicant’s brother-in-law, which was uploaded to the Infotainment system when he “paired” his phone in order to listen to music. The list included contact information for the applicant.
33The applicant sought at trial to exclude this evidence pursuant to s. 24(2) of the Charter, based on breaches of ss. 7 and 8. The trial judge heard the application over four days and gave thorough reasons for dismissing it: R. v. Dosanjh, 2019 ONSC 4551.
34The Crown had conceded that there was a search of the Infotainment system prior to the warrant being obtained. That warrantless search was made known to the issuing justice but was described in the ITO as having been due to an error. The officer-in-charge (“OIC”) of the investigation (who was not the affiant of the ITO) testified that he had told the officers who conducted the warrantless search that they were not to access the Infotainment system but were simply supposed to determine whether they could access the system. The trial judge rejected this evidence and found that the OIC had told those conducting the search that no warrant was required. He also found that the OIC did not provide accurate information to the affiant of the ITO.
35The trial judge, however, did not determine that the actions of the OIC invalidated the warrant. The trial judge accepted the evidence of the affiant that she did not know about the misleading information. The trial judge also found that the affiant had no reason to believe that anything was amiss or that she had to make further inquiries.
36In his balancing under s. 24(2) of the Charter, the trial judge found that while the OIC’s false testimony was the most serious instance of police misconduct in the case, the Charter breach fell in the “modestly serious range”. This is because the evidence put before the issuing justice was correct as far as the affiant knew. The OIC’s false testimony did not have an effect on the applicant and did not amount to a subversion of the legal process. None of the evidence from the Infotainment system was acted upon in any significant way before the warrant was obtained. In addition, the OIC was dealing with the new and evolving area of police search and seizure both technologically and legally.
37The trial judge then proceeded to consider the impact of the breach on the Charter-protected rights of the applicant and society’s interest in the adjudication of the case on its merits. The trial judge held that the applicant’s expectation of privacy was reduced because the information was taken from someone else’s car, which the Crown argued he had no right to be driving since he had lied about his identity when he rented it. As for the evidence obtained from the search, the trial judge determined that it was reliable and important to the Crown’s prosecution of the case. The trial judge concluded that the admission of the Infotainment evidence would not bring the administration of justice into disrepute.
38In assessing the validity of the warrant, the impact of the warrantless search, and the misconduct of the OIC, the trial judge referred to well-established principles articulated by this court in R. v. Nguyen, 2011 ONCA 465, 273 C.C.C. (3d) 37, and R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, leave to appeal refused, 2017 CanLII 36654. In assessing the seriousness of the police misconduct under s. 24(2) of the Charter, he referred to R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, R. v. Lai, 2019 ONCA 420, 438 C.R.R. (2d) 1, and R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 26.
39Considering the trial judge’s extensive reasons on the admissibility of the Infotainment evidence, the applicant fairly characterizes this ground of appeal as being one of “first impression.” The bail judge evaluated the applicant’s submissions and noted that it would “be a difficult appeal, necessitating not only a favourable development in a contested area of s. 8 and s. 24(2) doctrine, but a finding of palpable and overriding error in the trial judge’s findings of fact and credibility assessments.” The bail judge could not conclude that the Charter ground of appeal was strong.
40The trial judge’s decision to admit the Infotainment evidence under s. 24(2) will be entitled to considerable deference on appeal: R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 44. The applicant has identified no palpable and overriding error in the trial judge’s assessment of the evidence, no unreasonable finding, and no error of law that would justify interfering with his decision: see R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227, at para. 32.
41The applicant has not persuaded me that it is arguable that the bail judge committed material errors of fact or law, or that his decision was clearly unwarranted.
D. Conclusion and Disposition
42In my view, this is the type of very serious offence described in Oland, at para. 50, where lingering public safety concerns and relatively weak grounds of appeal result in the enforceability interest outweighing the reviewability interest.
43For these reasons, the application for a review of the decision of the bail judge is dismissed.
“G.R. Strathy C.J.O.”