DATE: 20020910 DOCKET: M28933 C24176

COURT OF APPEAL FOR ONTARIO

GOUDGE J.A. (In Chambers)

BETWEEN:

HER MAJESTY THE QUEEN

James Lockyer and Robert Chartier for the applicant

Respondent

• and -

SALINDER DHILLON

Eric Siebenmorgen and Amy Alyea for the respondent

Applicant

Heard: September 5, 2002

GOUDGE J.A.:

[1] This is an application by Salinder Singh Dhillon for release from custody pending his new trial on the charge of first degree murder.

[2] The chronology preceding this application is as follows:

[3] On September 17, 1992, Gurdial Singh Sandhu was shot to death on the doorstep of his home in Brampton by a stranger who fled the scene by car.

[4] On September 18, 1992, the applicant was arrested in Brampton as he returned home from work and charged with first degree murder.

[5] On November 21, 1994, the applicant’s trial began, and on May 5, 1995, he was convicted as charged.

[6] On July 16, 2002 this court, in reasons written by Laskin J.A. and me, concurred in by Weiler J.A., quashed his conviction and ordered a new trial.

[7] On September 13, 2002, the applicant is to appear in court for the first time in response to the new trial ordered by this court. The Crown acknowledged before me that it has not yet decided whether to proceed with a new trial. It explained the delay on the basis that the police and the Crown attorneys involved in the first trial have all been transferred, and therefore it has been difficult to consult them about the decision to proceed.

[8] This is the first time that the applicant has sought his release on bail since his arrest on September 18, 1992. He has therefore been in custody for almost 10 years.

[9] Section 679(7.1) of the Criminal Code provides that where this court has ordered a new trial, an application for release pending that trial may be dealth with by a judge of this court.

[10] Section 522(2) provides that because the applicant is facing a charge listed in s. 469 of the Code he bears the onus of showing cause why his detention in custody is not justified on any of the three grounds set out in s. 515(10) of the Code. Those grounds are as follows:

(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;

(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and

(c) on any other just cause being show and, without limiting the generality of the foregoing, where the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment._____

[11] For the reasons that follow I have concluded that in all of the circumstances the applicant has met this onus. However, before turning to each of the three grounds in turn, a brief outline of the reasons of this court for ordering a new trial provides a useful background.

[12] The first reason concerned the evidence of B.S., a jailhouse informant, who testified that the applicant had confessed to him. Both the trial judge and this court described this evidence as central to the Crown’s case. The trial judge warned the jury that they needed to find some confirmatory evidence before they could rely on the testimony of B.S. The trial judge gave them seven examples of evidence that could potentially do so. This court concluded that six of those examples could not do so, and given the importance of B.S.’s evidence, a new trial was required.

[13] The second reason was that the trial judge erred in admitting a great deal of hearsay evidence about the applicant’s alleged antecedents and those of his relatives and associates obtained by the police during their investigation, much of it from “Indian authorities”. The Crown tendered this evidence in response to the very dubious strategy by the defence (not Mr. Lockyer or Mr. Chartier) to generally discredit the police investigation. However, in the circumstances of this case, this bad character evidence had no probative value and was highly prejudicial. This court determined that it should not have been admitted and that this too required a new trial.

[14] Turning to the first ground set out in s. 515(10), the applicant must show that his detention is not necessary to ensure his attendance in court.

[15] Here it is relevant that the applicant is facing the most serious charge and the maximum sentence known to our criminal law. Also of relevance, however, is the relative strength of the Crown’s case against him, and it was on this issue that most of the argument before me focused.

[16] At the applicant’s first trial, the case for the Crown consisted of three categories of evidence: the eyewitness evidence of the victim’s son, his daughter, and his nephew; some limited circumstantial evidence; and the evidence of a confession by the applicant to B.S., a jailhouse informant. The applicant faced this together with the investigation evidence of bad character that I have described. This court outlined the three categories of evidence in these terms. At paragraph 7 to 11 of its reasons for judgment:

[7] The Crown led evidence from three people who identified the appellant as the gunman. On the evening of September 17, the deceased’s 16-year-old son answered the door when the gunman rang. He called his father in response to the gunman’s request. The father came to the door, stepped outside, and was shot. The shooting was witnessed by the son and the victim’s 29-year-old nephew, who were both standing at the front door. The victim’s 21-year-old daughter, who was sitting in the living room, also saw the gunman when he was just outside the front door. None of the three eyewitnesses had ever seen him before.

[8] The eyewitness testimony was seriously compromised. Both the son and the nephew first identified the appellant from photographs shown to them the next day by the police. However, all of these photographs were of the appellant. About two and one-half months later, the daughter selected the appellant’s photograph from a proper photographic line-up. Before this, however, she had seen the same photograph of the appellant a number of times in the newspaper and on television in stories about his arrest for the murder of her father.

[9] The circumstantial evidence called by the Crown included evidence that on September 17 the appellant stayed overnight at the house of a relative who lived on the same street as the victim. The appellant’s relative owned a Pontiac Grand AM, which was found engulfed in flames late that night. It was like some of the descriptions of a car seen speeding away from the scene after the murder. Initially, the appellant and his relative maintained the lie that the car had been stolen on the evening of September 17. The appellant’s relative made a fraudulent insurance claim in respect of the car.

[10] At the residence where the appellant normally lived with his roommates, the police found a jacket similar to the one worn by the gunman and which was found to have some gunshot residue on its cuffs. The police also found an orange parna similar to one worn by the gunman. There was, however, no evidence that the appellant had returned to his own residence on the night of the murder. Nor were any clothes like the shirt and pants that the gunman was described as wearing ever found.

[11] Finally, the Crown led evidence from B.S. of a confession by the appellant that he had murdered the victim. B.S. first met the appellant in custody in late 1992 and shared a cell with him from March to May of 1993. Both men spoke Punjabi. By the time of the trial, B.S. had a criminal record of 43 convictions, 34 of them for offences of dishonesty. He had offered unsuccessfully to be a police informant at least once previously. In this case he came forward about a year after sharing a cell with the appellant because he said that he wanted to change his criminal ways.

[17] This court concluded that the Crown’s case was not overwhelming and that, apart from the evidence of the jailhouse informant, the eyewitness evidence and the circumstantial evidence each had its own difficulties.

[18] Since the applicant’s first trial, Justice Kaufman has issued the Report of the Morin Inquiry and the Crown has introduced procedures for screening potential evidence from jailhouse informants. Moreover, since that first trial, this jailhouse informant, B.S., has been convicted of a number of further criminal offences. As a result, Mr. Lockyer argued that it is extremely unlikely that the applicant will face evidence from B.S. at his new trial. With his usual fairness, Mr. Siebenmorgen did not contest this.

[19] Thus, at the new trial, the Crown’s case will be based on the eyewitness evidence and the circumstantial evidence, each of which this court has said has its own difficulties. The applicant is most unlikely to face either the jailhouse informant evidence or the investigative evidence of bad character. With the assistance of his present counsel, Mr. Dhillon will undoubtedly understand that while he is facing the most serious of charges, the Crown’s case against him is less substantial than it was at its first trial. A case that was not overwhelming is now considerably weaker.

[20] The applicant’s ties to the community are also relevant to this first ground. The applicant had been in this country for less than one year when he was arrested. His mother and siblings remain in India. However, he is now forty years of age and has been away from India for 12 years. Moreover, the affidavit evidence filed on this application demonstrates that there are a number of people who have stayed in touch with him since his arrival here and right through his period of incarceration. Several of them have known him from college days in India, for some 15 or 20 years. All of them are prepared to offer him support and assistance should he be released. They provide the applicant with a real and meaningful social network in the community.

[21] In similar fashion, the detailed release plan which the applicant proposes also reflects substantial ties to the community. It includes three sureties each of whom is prepared to pledge the significant equity in his family home; living arrangements for the applicant with one of the sureties; and employment for the applicant at the greenhouse business operated by another surety who is a family physician in the community in which the applicant would reside.

[22] The Crown raises as a concern that the applicant has shown in the past that he is willing to provide false information to government authorities and to defy court orders. The Crown cites as the primary example of the former the fact that he lied to immigration authorities in telling them that he had come directly from India to Montreal. His explanation is that had he not done so his application for refugee status (which was ultimately successful) would not have been considered. The only example of the latter is the applicant’s refusal to testify for the Crown at a fraud trial in 1995 resulting in his conviction for criminal contempt. His explanation is that he had, at that time, been sentenced to life in prison and to testify for the Crown would put his physical safety at risk, particularly given that he was then in Millhaven Penitentiary.

[23] In the circumstances, I do not view either of these concerns raised by the Crown as very significant. Rather, I am most moved by the assessment which the applicant can properly make of the relative lack of strength of the case now raised against him and by the demonstration of the ties between him and the social network that is prepared to support him and assist in ensuring his presence at trial. In my view, the applicant has shown that his detention is not necessary to ensure his attendance in court.

[24] As to the second ground, the applicant must show that his detention is not necessary for the protection or safety of the public. In my opinion the record here readily permits him to do so.

[25] Prior to his conviction which this court set aside, the applicant had no criminal record. While the killing in this case was extraordinarily brutal, the vigorous contest about identity makes the nature of the crime of little assistance in assessing whether the applicant’s detention is necessary to protect the public.

[26] The applicant’s institutional record over the past 10 years shows four relatively minor charges on his file from his time in Millhaven Penitentiary where he was held from May 1995 to June 1997. There has been nothing thereafter. More importantly, he has upgraded himself significantly while in custody, completing grades 6 through 12, learning about computers and teaching other inmates about them at the medium security facility where he has been held since 1999. There is no suggestion that he has ever taken any steps to threaten harm to any of those who have evidence against him or that he would do so if released. In a report filed by the applicant on this application Dr. Graham Turrall, a Doctor of Psychology who examined and tested the applicant in August 2002, said that all his measures placed the applicant within the minimal risk range for committing criminal offences. In concluding that the applicant is not a violent man in any way, and if released would not likely commit any criminal offence, Dr. Turrall described the applicant this way:

Mr. Dhillon is an intelligent, quiet spoken individual who presents with no overt or covert psychopathology. He does not suffer from a mental illness nor does he demonstrate any personality characteristics consistent with psychopathology that is typically observed in antisocial personality disordered individuals.

[27] Thus I conclude that the applicant has shown that his detention is not necessary on the second ground.

[28] Finally, the applicant must show that his detention is not necessary to maintain confidence in the administration of justice. It is the confidence of a reasonable, informed and dispassionate public that provides the measure of this ground. As such, the public would understand that the applicant has reacquired the presumption of innocence as a result of the decision of this court. It would also understand that while his evidence protesting his innocence was disbelieved by the jury at his first trial, that jury also heard highly prejudicial bad character evidence which it should not have.

[29] Moreover, given that the Crown’s case against the applicant will now almost certainly consist only of somewhat problematic eyewitness evidence and limited circumstantial evidence, that the Crown has not yet decided to proceed, and that the applicant has already spent 10 years in jail on this charge, I think that the release of the applicant on proper terms would do more to maintain confidence in the administration of justice than would his continued detention. The applicant has therefore satisfied the third ground as well.

[30] In summary, I conclude that this application must succeed and that the applicant must be released subject to appropriate terms and conditions.

[31] By letter of September 9, 2002, the applicant and the Crown have jointly provided me with a set of proposed conditions which, subject to two issues, I find acceptable. I have attached a copy of those proposed conditions to these reasons.

[32] The first issue is that the Crown proposes a cash deposit in addition to a recognizance with sureties without deposit. Mr. Lockyer does not contest that I have the jurisdiction to make such an order under s. 515(2)(e) of the Code and advises that he would not contest my exercise of that jurisdiction. I propose to make such an order, in the amount of $20,000.

[33] The second issue is the sureties without deposit and their liabilities to be specified in the order. I find the three sureties and their liabilities jointly proposed to be satisfactory. They are Gurdial Thind in the amount of $150,000; Harjinder Singh Kang in the amount of $150,000; Kulwant Mattu in the amount of $200,000.

[34] I therefore order the release of the applicant on these conditions and invite counsel to prepare it on this basis for signature. If there are any difficulties with the order I may be spoken to. I conclude simply by thanking all counsel for the professional way in which this matter has been presented.

Released: September 10, 2002 “STG”

“S.T. Goudge J.A.”