COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sidhu, 2013 ONCA 719

DATE: 20131126

DOCKET: C54640, C54642, C54657

Feldman, Gillese and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Guramrit Sidhu, Balbir Thind and Tarinder Saggi

Appellants

Leo Adler, for the appellant Guramrit Sidhu

Timothy E. Breen, for the appellant Balbir Thind

Faisal Mirza, for the appellant Tarinder Saggi

Gillian Roberts, for the respondent

Heard: November 12, 2013

On appeal from the convictions entered on August 9, 2011 and the sentences imposed on November 8, 2011 by Justice Deena F. Baltman of the Superior Court of Justice, sitting with a jury.

Gillese J.A.:

[1] Following a month-long joint trial, the appellants were convicted of kidnapping with intent to confine by a court composed of a judge and jury.[^1] Two of the appellants, Mr. Sidhu and Mr. Saggi, were apprehended shortly after the police observed them at a pay phone from which a ransom call was placed to the victim’s family. The third appellant, Mr. Thind, was found to have orchestrated the kidnapping in order to recover the monetary value of drugs he believed were stolen by an associate of the victim’s son-in-law. Mr. Thind was sentenced to 12 years imprisonment and both Mr. Sidhu and Mr. Saggi were sentenced to 10 years, all reduced for pre-trial and pre-sentence custody.

[2] The victim is a community healer and entirely innocent of any involvement in the underlying drug “rip-off” that led to the kidnapping. One evening in September of 2008, he was lured from his home under the pretence of making a house call for an injured patient. For the following three days, he was forcibly confined in a tiny space, beaten, and held for ransom. He was denied essential medication for his diabetes. His family was terrorized with repeated threats by the kidnappers that they would beat, maim, and kill the victim. They also threatened some of the family members and their children. The kidnappers only released the victim – by throwing him on the side of a road – when they realised that the police were on their trail. The victim had broken ribs on both sides, injuries to his knee, shoulder, and forehead, and pneumonia. He spent a week in hospital recovering. The offence has had a devastating effect on both him and his family.

[3] The appellants appeal against their convictions and sentences. The conviction appeals are based largely on a statement that Mr. Sidhu made to the police following his arrest, in which he confessed to his involvement in the kidnapping and implicated the other two appellants (the “Statement”). The appellants submit that the trial judge erred in admitting the Statement.

[4] Mr. Sidhu did not pursue a second ground of appeal raised in his factum relating to the adequacy of the trial judge’s instructions to the jury on the law governing party liability pursuant to s. 21(1) of the Criminal Code. Thus, nothing more need be said in relation to that ground.

[5] Mr. Saggi also raised a second ground of appeal. He argued that the trial judge erred in denying his application to edit all references to the co-accused from the Statement before it was played to the jury.

[6] In my view, the trial judge made no error in admitting the Statement or refusing to edit out the names of Mr. Sidhu’s co-accused. For the reasons that follow, I would dismiss the appeals.

ADMISSIBILITY OF THE STATEMENT

[7] In the hours following Mr. Sidhu’s arrest, he was questioned by police in order to ascertain the whereabouts of the victim, who was still being held captive. Police made the decision to deny him his right to counsel because they feared that any communication with counsel could tip off the captors and result in harm to the victim. Mr. Sidhu revealed nothing. However, following an emotional appeal by his wife who had arrived at the police station to inquire into the circumstances of her husband’s arrest, Mr. Sidhu decided to speak to the police, making the Statement that is at issue in this appeal.

[8] The appellants submit that the trial judge erred in admitting the Statement for the following reasons: (1) the Statement was involuntary; (2) the eliciting of the Statement violated Mr. Sidhu’s rights under s. 7 of the Canadian Charter of Rights and Freedoms because his wife unwittingly acted as a state agent; (3) the recording of the wife’s meeting with Mr. Sidhu was a breach of s. 8 of the Charter; (4) the admission of the Statement violated spousal privilege; and (5) the trial judge failed to grasp the seriousness of the Charter breaches and their impact on the accused in considering whether the Statement should be excluded under s. 24(2) of the Charter.

[9] I do not accept these submissions.

[10] The trial judge correctly set out the test for voluntariness and the need to consider the circumstances as a whole to assess the effect of police conduct on the accused’s ability to exercise his free will. In addition to presiding over the voir dire, during which the Crown tendered its evidence, she noted that she watched the videotape of Mr. Sidhu’s statements to police, both before and after his wife’s intervention, comprising a period of over eight hours. The trial judge stated that she observed Mr. Sidhu’s comportment and demeanor, finding that he appeared “calm and alert” despite the length of the interview, and that he had an operating mind throughout. The appellants contend that the police did not allow Mr. Sidhu to use the bathroom until he provided them with one of the captor’s phone numbers. However, the trial judge found no improper quid pro quo between the police and Mr. Sidhu. On her view of the evidence, when the accused asked to use the bathroom, he was properly accommodated.

[11] There is no basis to interfere with the trial judge’s findings of fact or her determination that the Statement was voluntary.

[12] I agree with the trial judge that Mr. Sidhu’s wife was not acting as a state agent when she exhorted him to speak with police for the sake of his family. The trial judge set out a full transcript of the conversation in support of her conclusion that the wife’s motives in persuading her husband to come clean were independent of any police agenda. A review of that transcript confirms this conclusion, as does a consideration of the circumstances leading up to the conversation. The police had no hand in Mr. Sidhu’s wife’s decision to attend at the police station. Her conversation with detectives prior to speaking with her husband was recorded, and upon review, the trial judge found no indication of co-opting or coaching. While it is conceded that the detectives should have informed the couple that they were being recorded, the trial judge concluded, based on the tenor of the conversation, that such advice would not have made any difference to the conversation. The trial judge was entitled to reach that conclusion.

[13] The submission based on s. 8 of the Charter, relating to the recording of the couple’s meeting, was raised for the first time on appeal. I would reject this submission. There is no evidence to support a finding that there was a reasonable expectation of privacy during the meeting in the police station between Mr. Sidhu and his wife. In both interview rooms prior to the meeting, the parties had been told that they were being recorded. Also, the record shows that Mr. Sidhu evinced no surprise when, after the meeting, he was told that the tape was being turned off so that he could speak to his counsel.

[14] The appellants’ claim that the conversation was protected by spousal privilege has no merit. Spousal privilege, embodied in s. 4(3) of the Canada Evidence Act, R.S.C. 1985, c. C-5, is a testimonial privilege that prevents compelled testimony. The communications themselves are not privileged: see R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at para. 41. I accept the respondent’s contention that the spousal privilege argument is a “red herring”, given that it was the defence who asked that the wife’s conversation with Mr. Sidhu be admitted.

[15] Finally, the trial judge fully appreciated the seriousness of the s. 10(b) Charter breaches. She identified two breaches of s. 10(b). The first resulted from the police denying Mr. Sidhu access to counsel beyond the point up to which it could be justified by an urgent concern for the victim’s life. The second breach resulted from a detective’s denigration of defence counsel.

[16] With respect to the first breach, the trial judge found that exigent circumstances justified both a denial of the right to counsel and the continuation of police questioning up to approximately midnight. I see no basis for interfering with this finding. She found the second breach to be “repugnant”, and concluded that the seriousness of the Charter breaches militated in favour of excluding the Statement. Her position in this respect belies the appellants’ assertion that she failed to grasp the seriousness of the Charter breaches.

[17] However, the trial judge found that the impact of the breaches on the accused’s Charter-protected interests was minimal. This finding is fully supported on the record. As the trial judge points out, Mr. Sidhu did not testify or advance any evidence as to the impact of the breaches on him.

[18] In the result, after weighing and balancing the three factors as required by s. 24(2), the trial judge concluded that the repute of the administration of justice would be more adversely affected by the Statement’s exclusion than its admission.

[19] I see no basis on which to interfere with that conclusion. Appellate courts must accord considerable deference to a trial judge’s ultimate determination under s. 24(2) where the judge has considered the proper factors: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 86.

EDITING THE NAMES OF THE CO-ACCUSED FROM THE STATEMENT

[20] The defence brought a late-breaking application at trial to edit all reference to the co-accused from the Statement. The trial judge dismissed the application in careful written reasons after full argument.

[21] The trial judge was aware of the potential prejudicial effect of Mr. Sidhu’s inculpatory references to Mr. Saggi in the Statement. She concluded that any possible prejudice arising from those references could be remedied by limiting instructions. She identified real concerns that would arise if the Statement were edited as requested. She found that the edits could prejudice the Crown’s ability to counter any potential defences raised by Mr. Sidhu; that the proposed deletions would be confusing to the jury; that the authorities relied on in the defence application were distinguishable; and that the timing of the application in the context of the trial timeline raised concerns about the feasibility of any proposed edits.

[22] Mr. Saggi does not allege any error in principle in the trial judge’s analysis. His disagreement is with her conclusion that the Statement ought not to be edited. He rightly concedes that the trial judge properly instructed the jury multiple times that the Statement could only be used as evidence for or against Mr. Sidhu, and that the administration of criminal justice proceeds on the assumption that juries will follow that instruction.

[23] An application to have a statement edited involves an exercise of judicial discretion. It is fact-specific and requires a weighing and balancing of probative value and prejudicial effects. Deference is owed on appellate review.

[24] I see no basis on which to interfere with the trial judge’s exercise of discretion in this matter. Accordingly, I would reject this ground of appeal.

THE SENTENCE APPEALS

[25] Each appellant argues that the sentence he received offends the parity principle. Each appellant refers to the sentence imposed on Gurmit Grewal, one of the other kidnappers who pled guilty in a separate proceeding, to support this contention.

[26] I see no basis on which to interfere with the sentences imposed.

[27] The trial judge considered the sentence of eight years received by Mr. Grewal, who pleaded guilty, before deciding the appellants’ sentences. Indeed she delayed the appellants’ sentencing to await the outcome of Mr. Grewal’s sentence hearing and she explicitly considered parity and Mr. Grewal’s sentence when imposing sentences on the appellants.

[28] The sentencing judge made careful factual findings about the appellants’ respective roles. She concluded that all the appellants knowingly participated in a joint venture to capture the victim and hold him for ransom. They all knew that the motive for the kidnapping was to avenge the theft of illegal drugs from Mr. Thind. And she found that they all knew of, if not participated in, the victim’s beatings while in captivity.

[29] Beyond her finding that the appellants operated as a team, each carrying out an important role in their common criminal purposes, the sentencing judge made careful findings about the distinctions among the appellants. At pp. 13-14 of the reasons for sentence, she states:

Thind was the ringleader; they were his drugs that were stolen and he was to be the chief beneficiary of the plot. He orchestrated the entire kidnapping from start to finish. The plan required significant manpower, several vehicles and two safe houses. In addition to the offenders before the court, he was able to amass numerous cohorts to play various roles – guards, ransom callers, drivers, etc. – many of whom have never been identified. He personally arranged for both of the safe houses and presided at each during the kidnapping. He is therefore responsible for everything that occurred under his watch.

Sidhu, although not a primary organizer, was heavily involved throughout: he was present at the Westwood Mall when Thind and Grewal were questioning [the victim’s son-in-law] about [his associate who allegedly stole the drugs]; he knew that [the victim] had been abducted and why; he agreed to help with the ransom calls to [the victim’s] family; he used his van to drive to the phone booths that were used; he was present when at least three of the ransom calls were made and heard what the caller said over the phone; he reported back to either Grewal or Thind after the phone calls were made; he was present at both safe houses; and he expected to be paid approximately $10,000 - $15,000 for his involvement.

While Saggi appears to have been lower in the pecking order, he was hardly the modest participant he suggests. He was the ransom caller observed by the police, and the transcript of that call makes it clear that a) he had made at least one previous ransom call, and b) he threatened to cut [the victim’s] fingers off or, if that didn’t work, inflict harm upon [the victim’s grandchildren]. In addition, Saggi was also present at both safe houses and knew that [the victim] had been beaten.

[30] Parity does not preclude disparity where warranted by the circumstances: see R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 36. “[A] court of appeal should only intervene to minimize the disparity of sentences where the sentence imposed by the trial judge is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes”: R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500 at 567.

[31] These sentences are not a “substantial and marked departure” from those imposed in similar circumstances. On the contrary, they are fit and within the range.

DISPOSITION

[32] Accordingly, the conviction appeals are dismissed and leave to appeal sentence is granted but the sentence appeals are dismissed.

Released: November 26, 2013 (“E.E.G.”)

“E.E. Gillese J.A.”

“I agree K. Feldman J.A.”

“I agree M. Tulloch J.A.”

[^1]: The appellant Mr. Thind was also convicted of the additional charge of kidnapping with intent to hold for ransom, contrary to s. 279(1)(c) of the Criminal Code, R.S.C. 1985, c. C-46. In accordance with the Kienapple principle (R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729), the charge of kidnapping with intent to confine was stayed.