COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dhaliwal, 2016 ONCA 652

DATE: 20160831

DOCKET: C53286

Strathy C.J.O., Pepall and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bickramjit Dhaliwal

Appellant

James Lockyer, for the appellant

Lisa Joyal, for the respondent

Heard: May 31, 2016

On appeal from the conviction entered on September 22, 2010 by Justice David G. Price of the Superior Court of Justice, sitting with a jury.

Strathy C.J.O.:

[1] Bickramjit Dhaliwal appeals his conviction for possession of guns and drugs and for public mischief. For the reasons that follow, it is my opinion that the conduct of the Crown (who was not counsel on the appeal) deprived the appellant of a fair trial. I would therefore allow the appeal and direct a new trial.

[2] The relevant facts can be briefly stated. They take place in the context of a family feud over allegations of infidelity and dishonour. The key actors are the appellant Bickramjit Dhaliwal, his nephew Raju, his sister Bakshish and his niece’s husband Parminder. The family was divided into hostile camps as a result of allegations of an affair between Parminder and Bakshish.

[3] The Crown’s theory was that the appellant had either planted or arranged to plant a gun and cocaine in Raju’s car and another gun and cocaine in Raju’s house. He then made an anonymous telephone call to police to get Raju and Parminder charged with possession of the guns and drugs. The plan was foiled, however, by Raju’s wife, who discovered the gun and drugs in the car and informed her husband, who then called police. When police played a recording of the anonymous telephone call, Raju identified his uncle Bickramjit’s voice and the appellant was charged.

[4] The appellant denied having planted the guns and drugs. He testified that Bakshish had warned him that Raju had a gun and was coming after both of them. He called police because he was concerned for his own safety. He made the call anonymously from a pay phone because he did not want the family involved.

[5] Bakshish also testified at trial. She claimed Parminder had warned her that Raju had a gun and was coming after her and the appellant.

[6] The appellant raises several grounds of appeal and brings an application to admit fresh evidence concerning the conduct of the trial Crown. As I would allow the appeal based on the Crown’s improper cross-examination of the appellant and its conduct in the course of the cross-examination of another defence witness, I consider only those grounds.

The appellant’s cross-examination

[7] During the Crown’s cross-examination of the appellant and over a defence objection, the trial judge permitted the Crown to cross-examine the appellant on his “theory” of the case.

[8] The Crown had asked the appellant about discussions with Bakshish concerning Parminder’s warning and the appellant’s decision to call police. The questioning continued:

Q. What’s your theory now? That [Bakshish] had this stuff planted and got you to …

[9] Defence counsel objected that the question was improper, because it called on the appellant to come up with a theory to defend himself and to identify the guilty party.

[10] The trial judge ruled that the question was proper. The Crown’s questioning continued:

Q. So, sir, what do you think? Is it, did somebody else frame Raju and, and you’re just, you’ve been sort of caught up into it, unknowingly, or unwittingly, is that your evidence?

A. That, that’s quite possible. See I don’t know. I am not saying Raju did it, or who did it, I, I have no answers for that. If I did I would tell you that.

Q. Right. You must have been pretty suspicious about [Bakshish] after you found out that really this had all been planted there, right?

A. I [had] been at the, at the temple when she told me. I didn’t know of any, any of this information.

Q. Let me begin with this. You agree with me now having seen everything that this was all clearly planted on Raju, right?

A. I, this is what I heard that, that they had recovered some sort of guns prior to my knowledge.

Q. Right, so this information about him having guns and drugs and being able to kill you was obviously, obviously a lie.

A. I, when I learned that was my concern, when I learned that, you know, Parminder had called her and let her know that.

Q. You now believe that this was a lie, right?

A. I’m sorry?

Q. You now believe that this was a lie?

A. Which was a lie?

Q. That there is actually guns and Raju actually is armed and dangerous and also is carrying drugs as well?

A. I don’t know whether that’s, I’ve never said that’s a lie. I don’t know if that, I don’t know, in this case whether it is a lie or not because the police never told me that.

Q. Well, sir, you appreciate that the guns and drugs were found before you made the call, right?

A. Now I know.

Q. You know that?

A. I, I learned afterwards, but at that time we’re talking about on January 2nd, or January 1st, at that time I had no knowledge of anything.

Q. So after you got out of jail, once you had had a chance to realize what was actually going on here and all the evidence about how the guns actually came to be found, you must have said to [Bakshish], “Now what is the story here, why did you tell me Raju had, had guns and was out to get me when in fact this is what’s going on?” Do you remember that heart to heart with [Bakshish]?

A. I, I talked with her and she, again she said that, that’s what, she received a call and that is what she told me and I’m still baffled like what, what occurred, and Raju were with him or at his house. I’m still puzzled by it.

Q. So you still don’t think, so even on your evidence you do not think [Bakshish] was, was using you to try and get Raju?

A. You know what, anything is possible, this day. I’m telling you I don’t, I don’t know exactly what happened, who did what, but this is how I got it, just by making a call, just informing the police of information that I received and look where I am today.

[11] This line of questioning was improper. It put an onus on the appellant to explain the allegations against him: R. v. S.(W.) (1994), 1994 CanLII 7208 (ON CA), 18 O.R. (3d) 509, 90 C.C.C. (3d) 242 (C.A.) at 252; R. v. Vandenberghe (1995), 1995 CanLII 1439 (ON CA), 96 C.C.C. (3d) 371 (C.A.) at 373.

[12] The point was made by the Alberta Court of Appeal in R. v. Kusk, 1999 ABCA 49, 132 C.C.C. (3d) 559, at p. 564:

This mischievous cross-examination wrongly suggests that the witness is advocating a certain view, indeed advocating corollaries of that view. See R. v. Baldwin, [1925] All E.R. Rep. 402, 18 Cr. App. R. 175 (Eng. C.A.), 178-79 (C.C.A.). That runs together the three roles of witness, accused, and defence counsel. When the accused testifies, he is a witness, not an advocate. The accused may try to cooperate in answering the forbidden question, or he may vaguely feel that something is wrong with it, but not one lawyer in 10,000, let alone a lay person, could say on the spot what that wrong thing was: R. v. Baldwin. Here the accused vaguely saw the point, and his answer (quoted above) stumbled toward what the Court of Criminal Appeal said in 1925. Yet counsel and the trial judge missed the valid point which he was groping to express, albeit incompletely. And the jury may have felt, as the Court of Criminal Appeal points out, that inability to answer substantively indicated concealment.

[13] Asking the appellant, in front of the jury to provide his “theory” of the case or to explain the evidence against him undermined the presumption of innocence. Permitting the Crown to ask the question, and requiring the appellant to answer it, could only have led the jury to believe that he had some obligation to provide a “theory”. The line of questioning should not have been permitted.

Bakshish’s cross-examination

[14] Bakshish was called as the final defence witness. She testified that Parminder telephoned her at home on New Year’s Day, 2008. He told her that Raju had guns in his house and car and was coming after her and the appellant. Parminder urged her to tell her brother, Bickramjit, so that he could save himself.

[15] Bakshish said she then telephoned the appellant at his home. He said he was on his way to their temple and asked her to meet him there. At the temple, she told him about Parminder’s telephone call and his warning.

[16] Bakshish’s cross-examination was substantially completed when court adjourned for the day. Crown counsel indicated that he expected to complete his cross-examination in a “few minutes” the following morning.

[17] The next morning, during a lengthy recess before the cross-examination resumed, and without notice to defence counsel, Crown counsel asked the Registrar whether he could use the courtroom phone to make a long-distance call. With the Registrar’s permission he called Parminder, who was in India. The call was made in the courtroom, on the court phone, using the speaker. Crown counsel spoke in a loud voice, as though he wanted everyone in the courtroom to hear the conversation. Both sides of the conversation were, in fact, clearly audible to everyone present. The appellant was in the courtroom, as were his counsel, Raju (who had testified earlier) and his wife, and other observers. Bakshish, who was still under cross-examination, was not in the courtroom.

[18] The Crown asked Parminder whether he had telephoned Bakshish on January 1, 2008, to warn her that Raju had guns and drugs in his car and his home, and that Raju was coming after her and the appellant. Parminder said that he had not made such a call. The Crown also asked Parminder whether he had kept in touch with Bakshish prior to the alleged call, and he replied that he had not. The call also touched on other matters that were at issue in the trial.

[19] When court resumed after the call, Crown counsel continued his cross-examination of Bakshish. His questions focussed on matters that had been discussed in the telephone call with Parminder. She accepted some but not all of the propositions put to her by Crown counsel.

[20] The Crown then asked the following questions and Bakshish gave the following answers:

Q. Okay, fair enough. Now I take it it has gone back to you by now that I have spoken to Parminder, are you aware of that fact?

A. When?

Q. Today. Did no one tell you I was speaking to Parminder today?

A. No.

Q. I made no secret of it. You are not aware of that?

A. No.

Q. Okay. I’m going to suggest to you that you have not spoken to Parminder once since he recorded you from his office at the Mount Sinai Medical Centre [in 2004], do you agree with that or not?

A. No, it's not true.

Q. All right, and this is the end, ma’am.

A. But, but he had said to me, don't tell, don’t take my name, and if, if you tell I am going to refuse. He doesn't want the family to find out.

[21] In my view, the Crown’s telephone call to Parminder, in the courtroom with spectators present, was improper. So was the manner in which the Crown used the information obtained on the phone call.

[22] The Crown admitted on cross-examination on the fresh evidence application that he had no intention of calling Parminder as a witness. If he wanted to obtain information from Parminder to assist his cross-examination of Bakshish, he should have made the call outside the courtroom and made proper disclosure to defence counsel. His evidence that he made the call in court for purposes of disclosure and transparency is unconvincing when he did not even inform defence counsel in advance that he would be making the call.

[23] The reasonable inference is that he made the call, in public, in the courtroom, on a speaker phone, in a loud voice, so that word of Parminder’s denials would get back to the witness, Bakshish, through one of the spectators. This is a clear inference from the Crown’s question to Bakshish, “Did no one tell you I was speaking to Parminder today … I made no secret of it.”

[24] The Crown admitted on cross-examination that the possibility of the conversation getting back to Bakshish may have been in his mind when he made the call in the courtroom. His questions to the witness on cross-examination lead to the strong inference that it was his intention.

[25] I conclude the telephone call to Parminder was a deliberate ploy to influence the evidence of Bakshish, an important defence witness who was in the middle of cross-examination, through communications that were not part of the court record. It was entirely improper.

[26] It was also improper because it introduced hearsay evidence on a central issue, through the mouth of Crown counsel. The Crown acknowledged on cross-examination that the jury would have understood from his questioning that he had spoken to Parminder.

[27] In effect, the Crown’s questions stated to the witness, and to the jury:

I spoke to Parminder today and he told me that he had not called to warn you about Raju having a gun and coming to get you and Bickramjit.

[28] This not only introduced hearsay to the jury, possibly serving to undermine Bakshish’s testimony, it put the Crown’s own credibility at issue.

[29] It is impossible to say what the effect of this conduct was on the jury’s assessment of Bakshish’s credibility. What can be said is that it fell short of the standard expected of the Crown.

[30] In R. v. Logiacco (1984), 1984 CanLII 3459 (ON CA), 11 C.C.C. (3d) 374 (C.A.), Cory J.A. said the following about the role of Crown counsel at pp. 378-79:

It has been said before but perhaps it should be repeated that the role of the Crown attorney in the administration of justice is of critical importance to the courts and to the community. The Crown prosecutor must proceed courageously in the face of threats and attempts at intimidation. He must see that all matters deserving of prosecution are brought to trial and prosecuted with diligence and dispatch. He must be industrious to ensure that all the arduous preparation has been completed before the matter is brought before the court. He must be of absolute integrity, above all suspicion of unfair compromise or favouritism. The Crown prosecutor must be a symbol of fairness, prompt to make all reasonable disclosures and yet scrupulous in attention to the welfare and safety of witnesses. Much is expected of the Crown prosecutor by the courts. The community looks upon the Crown prosecutor as a symbol of authority and as a spokesman for the community in criminal matters.

[31] It may well be that through inexperience or overzealousness or both the Crown “momentarily lost sight of his obligations”, in the words of Cory J. in Logiancco at p. 379.

[32] In my view, however, there was a reasonable possibility that the jury’s decision to convict the appellant was influenced by the cross-examination of Backshish and the introduction of hearsay through the mouth of the Crown. Examined in the context of the whole trial, and taken together with the improper cross-examination of the appellant, the Crown’s conduct was sufficiently prejudicial that it deprived the appellant of a fair trial.

[33] For these reasons, I would admit the fresh evidence, allow the appeal and direct a new trial.

“G.R. Strathy C.J.O.”

“I agree S.E. Pepall J.A.”

“I agree C.W. Hourigan J.A.”

Released: “GRS” August 31, 2016