WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.—

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect to each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) Failure to comply with order.— Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Court: Ontario Court of Justice

Court File No.: Orangeville (Caledon) 131312

Between:

Her Majesty the Queen

— AND —

Kulbir Singh Kullar Charnjit Singh Boughan Narankar Dhillon

Before: Justice Douglas B. Maund

Heard on: October 17, 2014

Reasons for Ruling released on: November 3, 2014

Counsel

For the Crown: Ms. D. Garbaty and Mr. Fraser Kelly

For the accused Kullar: Mr. M. McLachlan

For the accused Boughan: Mr. M. Moon

For the accused Dhillon: Mr. D. Locke

RULING

Maund, J.:

Background

[1] The three accused before the Court, Kulbir Singh Kullar, Charnjit Singh Boughan and Narankar Dhillon are charged that between August 23rd and August 25th, 2013 they committed the first degree murder of Herminder Bhandal contrary to Section 235(1) of the Criminal Code of Canada. The preliminary hearing in respect to these charges commenced in Brampton on October 14th last.

[2] The Crown brings an Application to permit the audio/video recording of the testimony of certain witnesses. It is the intention of the Crown to call witnesses at this preliminary hearing who are alleged to have been directly involved in the commission of the offence or who are the associates or family of one or more of the Accused.

[3] The essential theory of the Crown in this case, as yet untested in this early stage of the preliminary hearing, is that the murder of the deceased, Herminder Bhandal, was carried out by five accused persons who were associates of Narankar Dhillon. It is alleged that the murder was directed by Mr. Dhillon in retaliation for the suspected theft by Mr. Bhandal of a significant amount of drugs and cash from the sale of drugs.

[4] Originally there were seven accused in two separate proceedings. At this date, Resham Singh Gidhay and Jagjeet Singh, who were originally charged with first degree murder have entered pleas of guilty to the offences of manslaughter and have been sentenced. Along with Mr. Dhillon, Mr. Kullar and Mr. Boughan are before me on this preliminary hearing. The remaining accused are Jagdeep Singh Jassar who is also charged with first degree murder and Jaskarn Singh Johal who is charged with being an accessory after the fact to the murder of Mr. Bhandal, contrary to Section 240 of the Criminal Code.

[5] Mr. Jassar and Mr. Johal are charged on a separate information. Their preliminary hearing is scheduled to commence on February 9th, 2015.

[6] The Crown seeks by this Application an Order permitting the videotaping of the evidence of ten potential witnesses. Only nine of these witnesses are potentially available to attend as witnesses at this time.

Proposed Witnesses

a) WITNESSES DIRECTLY ASSOCIATED WITH THE COMMISSION OF THE ALLEGED OFFENCE

There are five and potentially six witnesses in this first category:

i) Resham Singh Gidhay – As I have already noted, Mr. Gidhay entered a plea of guilty to manslaughter on the basis of an agreed statement of facts which was filed with the Court. He made three statements to the police including a fully sworn KGB statement which was captured by video. The Crown anticipates that Mr. Gidhay will implicate Mr. Dhillon, Mr. Kullar and Mr. Boughan and will describe their roles in the events leading up to the death of the deceased.

ii) Jagjeet Singh – Mr. Singh has also entered a plea of guilty to manslaughter. Both his agreed statement of facts which was filed with the Court as well as a four hour sworn and videotaped KGB statement implicates all three accused before this Court.

iii) Jagdeep Singh Jassar – Mr. Jassar has given an unsworn video statement in which he described his role in these events and the role of the other parties, including the accused before me. He remains subject to the first degree murder charge in separate proceedings.

iv) Jaskarn Singh Johal – As already indicated, Mr. Johal is subject to the charge of accessory in the separate proceeding. According to the Crown, no statement or video interview has been given by Mr. Johal which might implicate either himself or the other Accused parties in these offences. The Crown intends to call Mr. Johal concerning his role in these events.

v) Banderjit Singh – It is my understanding that Banderjit Singh has not been charged in relation to this offence. The Crown indicates that Mr. Singh is currently in custody on unrelated matters and has given a sworn KGB statement. The Crown anticipates that, when called to testify, Mr. Singh will indicate that along with Mr. Gidhay and a person known as Sukwinder Dhuga, he attended Mr. Dhillon's house. He will say that they were promised twenty thousand dollars to kidnap Mr. Bhandal who was known by the name of Robbie. Mr. Singh and Mr. Dhuga were said to have subsequently backed away from any involvement in this plan after some initial discussion.

vi) While Mr. Dhuga remains a potential witness for the Crown and gave a sworn KGB statement, the Crown is not aware of his current whereabouts at this time. If available to give evidence, the Crown anticipates Mr. Dhuga will give similar evidence to that of Banderjit Singh.

b) FAMILY AND ASSOCIATES OF NARANKAR DHILLON

i) The Crown has placed three of Mr. Dhillon's daughters under subpoena to give evidence in this preliminary hearing, namely, Dilpreet Dhillon, Harpreet Dhillon and Jaskiran Dhillon.

ii) All three of Mr. Dhillon's daughters gave sworn KGB statements. The Crown anticipates that they will testify in relation to certain evidence which may implicate their father, Narankar Dhillon. The Crown indicates that Dilpreet Dhillon will corroborate the exchange of a motor vehicle at a Mr. Greek restaurant which involved a witness by the name of Fernando. Harpreet Dhillon will indicate that Mr. Kullar arrived at the family home on Saturday, August 24th and was looking for her father. She also would give evidence concerning Mr. Dhillon's long standing addiction to heroin. Finally, Jaskiran Dhillon would testify that she knew the deceased, known to her as Robbie, and that she heard her father arguing with the deceased prior to his death. She heard him being accused by Mr. Dhillon of having stolen from him. She indicated in her statement that her father was "kind of angry with Robbie" and she heard him yelling at him a few times.

iii) The last proposed witness in connection with this Application is a man named Odiashou Israel. The Crown anticipates that part of Mr. Gidhay's evidence will be that, at the critical time, he was at a garage in Bolton where he had been taking drugs. When he awoke at the garage, Mr. Israel, a man he knew as the "Iraqi" was there. The Crown contends that Mr. Israel's fingerprints were found at the scene. The intention of the Crown in calling Mr. Israel is to determine what he was doing at the crime scene and to explain his handling of various items found there.

Issue and Position of the Parties

[7] The Crown submits that the evidence of these witnesses is vulnerable and that a more complete record is essential in this preliminary. The Crown argues that, in the event that the witnesses should later become hostile, refuse to be sworn or otherwise unavailable at trial, the Crown may seek to tender their evidence from their preliminary testimony pursuant to Section 715(1) of the Criminal Code. Alternatively, the Crown might seek admission of their KGB statements pursuant to the hearsay rule exceptions.

[8] The Crown also argues that the sworn evidence of these witnesses, fully tested by cross-examination on this preliminary hearing, may also be potentially admitted in the related preliminary hearing pursuant to Section 540(1) of the Criminal Code.

[9] The position of counsel on behalf of Mr. Dhillon, Mr. Kullar and Mr. Boughan is that this Court, in the conduct of a preliminary hearing, has no jurisdiction to order videotaping of this evidence. And further, Defence submits that, even if the Court has such jurisdiction, it should decline to do so. They argue that this procedure is not necessary or required and that the Crown has other tools at their disposal to present such evidence.

Statutory Framework

[10] There is no explicit provision in either the Criminal Code or the Courts of Justice Act which deals with the issue of videotaping these proceedings.

[11] The general powers of a Justice conducting a preliminary hearing are set out in Section 537(1)(i) of the Criminal Code:

"A Justice acting under this part may, (i) regulate the course of the inquiry in any way that appears to the Justice to be consistent with this Act and that unless the Justice is satisfied that to do so would be contrary to the best interests of the administration of justice, is in accordance with any admission of fact or agreement recorded under section 536.4(2) or agreement made under section 536.5."

[12] Section 715(1) of the Criminal Code permits the reading in of preliminary hearing evidence at trial:

Where, at the trial of an accused, a person whose evidence was given at a previous trial on the same charge, or whose evidence was taken in the investigation of the charge against the accused or on the preliminary inquiry into the charge, refuses to be sworn or to give evidence, or if facts are proved on oath from which it can be inferred reasonably that the person

(a) is dead,

(b) has since become and is insane,

(c) is so ill that he is unable to travel or testify, or

(d) is absent from Canada,

and where is it proved that the evidence was taken in the presence of the accused, it may be admitted as evidence in the proceedings without further proof, unless the accused proves that the accused did not have full opportunity to cross-examine the witness.

[13] Section 540(1) of the Criminal Code deals with sound recordings only.

Taking evidence: "where an accused is before a Justice holding a preliminary inquiry, the justice shall

(a) Take the evidence under oath of the witnesses called on the part of the prosecution and allow the accused or counsel for the accused to cross-examine them; and

(b) Cause a record of the evidence of each witness to be taken

(i) In legible writing in the form of a deposition, in Form 31, or by a stenographer appointed by him or pursuant to law, or

(ii) In a province where a sound recording apparatus is authorized by or under provincial legislation for use in civil cases, by the type of apparatus so authorized and in accordance with the requirements of the provincial legislation."

[14] Further, section 540(7) of the Criminal Code permits the admission of evidence considered credible or trustworthy at preliminary hearings:

(7) A justice acting under this Part may receive as evidence any information that would not otherwise be admissible but that the justice considers credible or trustworthy in the circumstances of the case, including a statement that is made by a witness in writing or otherwise recorded.

[15] Section 136 of the Courts of Justice Act prohibits the taking of motion pictures or visual recordings at a court hearing subject to the stated exceptions including subparagraph (3):

"(3) Subsection (1) does not apply to a photograph, motion picture, audio recording or record made with authorization of the judge,

(a) where required for the presentation of evidence or the making of a record or for any other purpose of the court hearing;"

Analysis

[16] While I am aware of unreported cases I have encountered both in practice as counsel and as a Justice of this Court where videotaping of preliminary evidence has been permitted, there is a dearth of caselaw on point with the exception of R v Boyce [2009] O.J. No. 4023 (SCJ). The defence position is that the decision in Boyce is dispositive of the Crown's Application.

[17] Clearly the jurisdiction of a Justice conducting a preliminary hearing under the authority of the Criminal Code is purely statutory. As noted by Justice Seppi in Boyce at paragraph 23:

"A preliminary inquiry judge's jurisdiction is statutory and not inherent. In R. v. Doyle, the court held that the powers and jurisdiction of a justice acting under the Code are circumscribed by the provisions of the Code itself. There is no inherent jurisdiction of the court to control its own processes, rather "the careful and detailed procedural directions mentioned in the Code are of necessity exhaustive … the power of a magistrate or justice acting under the Criminal Code [are] entirely statutory."

[18] None of the provisions of the Criminal Code which govern the conduct of preliminary hearings deal with the videotaping of evidence explicitly. The issue I must determine is whether the power to order videotaping at a preliminary arises by implication from the Criminal Code or from enabling provincial statutory authority.

[19] The decision of the Superior Court of Justice in Boyce does not stand for the broad proposition that the videotaping of the evidence of a witnesses at a preliminary inquiry is never permissible. The Court held in Boyce that there was no jurisdiction for the Order made by the preliminary hearing Justice, to permit the videotaping of a very limited portion of the evidence of one of the Crown witnesses. As stated by the reviewing Justice in Boyce at paragraph 37, the preliminary hearing Justice "ordered the videotaping procedure for the purpose of creating photo line-up evidence that in his view should be permitted 'for the reasons that people videotape line-up in a [police] division." The Order of the preliminary Justice in Boyce would have resulted in the creation of particular evidence which might be used at trial in Superior Court. The videotaping would capture only a small part of the evidence of one witness.

[20] The decision in Boyce that the preliminary hearing Justice lost jurisdiction was decided on distinct and unique facts and is distinguishable. This Application by the Crown is to capture all of the evidence of certain witnesses and is based on an entirely different argument.

[21] In Boyce, the Court referred to the decision of the Ontario Court of Justice in R. v. Sandham (January 18, 2007 London 06-3079) also referred to as the "Bandittos preliminary inquiry". In that preliminary, videotaping was permitted where hand signs were said to have been an integral part of the evidence given by a witness. Accordingly videotaping was directed as required for the making of a more complete record within the meaning of Section 136(3)(a) of the Courts of Justice Act.

[22] The Crown submits that the decision in Boyce should not be read restrictively. Moreover, and perhaps more importantly, the position of the Crown is that in cases where the witnesses are hostile or their evidence may be unavailable to the Crown at trial, the Court must consider the potential future need for the application of Section 715(1) at trial.

[23] R. v. Saleh 2013 ONCA 742, [2013] O.J. No. 5554 (Ont.C.A.) was decided in 2013 after Boyce. The Ontario Court of Appeal dealt with the issues in relation to the admission of preliminary inquiry evidence pursuant the Section 715 where a witness implicated in the offence subsequently refused to testify at trial. While the preliminary evidence was admissible pursuant to the terms of this section of the Criminal Code, the Court assessed whether the trial Judge had adequately considered the impact on trial fairness of the inability to cross-examine the uncooperative witness in the presence of the jury.

[24] Justice Watt, in his reasons concerning the issue of trial fairness at paragraphs 91 to 94 of Saleh, states the following at paragraph 91:

"First the trial judge failed to consider the manifest unreliability of Yegin in assessing whether the admission of his evidence would operate unfairly to the appellant. Under Potvin, the focus on the trial judge's concern was to be the protection of the appellant from unfairness. The evidence at issue came from a witness who was present at the shooting. He was charged with the same murder as the appellant. He had a substantial motive to assign blame to others; in particular, to the appellant. His account of events evolved over time, changing when he was confronted with physical findings that belied his version of the events. Yet the jury never saw this witness (as a result of his own conduct), or viewed his cross-examination." (emphasis added)

[25] The Crown argues that in cases where the evidence of unsavoury or co-accused witnesses is necessary to present their case, the preservation of this evidence at the preliminary by video tape and the ability of the jury to view this evidence at trial, including cross-examination, may later become crucial. And given the self interest and motivations of such witnesses, there is a reasonable prospect that they may refuse to testify, or be unavailable for other reasons.

[26] A more recent decision released on October 22, 2014 which may be relevant to this issue is R v Kanagalingam [2014] O.N.C.A. 727 (Ont.C.A.). Kanagalingam was also a case which dealt with the potential vulnerabilities of preliminary hearing evidence. That is, cases involving co-conspirators who had pleaded guilty and gave a version when they testified at the preliminary hearing which implicated the accused, but later recanted their preliminary testimony at trial.

[27] Kanagalingam was not strictly on point as it dealt with the admissibility of KGB statements as opposed to Section 715 evidence. However it is analogous as it highlights the significance in such cases of a visual record of evidence to be available for later consideration by the jury. In my view, both Saleh and Kanagalingam have implications for Justices conducting preliminary hearings in similar circumstances.

[28] The Defence submits that, apart from lack of jurisdiction, there is no evidentiary basis for the court to permit the videotaping of evidence. And accordingly, it has not been established that, in the words in Section 136(3)(a) of the Courts of Justice Act, this procedure is "required for the presentation of evidence or the making of a record or for any other purpose of the court hearing." Some fact situations where this request is made by the Crown are more straightforward. For example, where a witness on a preliminary is in declining health. However, I do not agree that the basis for this Application is entirely speculative. I agree with the Crown that the evidence of those alleged to have been involved in this offence are subject to obvious potential vulnerabilities. Considering the events said to have been associated with these allegations, the possibility that the evidence of one or more of these witnesses might become unavailable at trial is real.

[29] What this Court is being asked to do in this Application is not to create a particular type of evidence as was requested by the Defence as in Boyce. This Court is asked to exercise its jurisdiction merely to preserve, by visual as well as the usual audio record, the evidence of certain witnesses which may not be otherwise available to be viewed as well as heard by a jury at trial on a successful Section 715 application. My jurisdiction arises by implication from statutory authority and is entirely consistent with the best interests of the administration of justice, in my view.

[30] The circumstances of this charge creates a reasonable apprehension that the Crown may, if it is required to do so, attempt to introduce evidence pursuant to the provisions of Section 715 of the Criminal Code. Such video recording would be the best evidence available for consideration by the jury. In my view a jury should not be deprived of important potential evidence. The opportunity to cross examine such witnesses at a preliminary is an important element for a trial Judge to consider in permitting a Section 715(1) application. With respect, I am unable to see any mischief or prejudice to the Defence by the Court preserving a visual record as requested by the Crown.

[31] I also do not accept the argument that permitting this Application would open the flood gates to video requests at all preliminary hearings. I do not anticipate such a result. A preliminary hearing Justice remains the gatekeeper and would be obliged to ensure that such Orders were restricted to those relatively rare cases where required. And the fact that the Crown has other evidentiary tools at its disposal, such as the KGB statements, does not detract from the merits of this Application.

Decision

[32] Accordingly, I conclude that the videotaping of the evidence of the proposed witnesses shall be permitted:

1. Resham Singh Gidhay,
2. Jagjeet Singh,
3. Jaskarn Singh Johal,
4. Jagdeep Singh Jassar, and
5. Banderjit Singh

In the event that Sukwinder Dhuga is produced and compelled to attend as a witness in this preliminary hearing, his testimony may also be video recorded.

[33] The testimony of the remaining witnesses Dilpreet Dhillon, Harpreet Dhillon and Jaskiran Dhillon as well as Odiashou Israel may not be video recorded. They are not implicated in the offence and I am not persuaded that the videotaping of their evidence is required or potentially necessary.

[34] Finally, counsel spoke briefly to the issue of lack of notice of this Application to these named witnesses during argument. This issue was not dealt with by the Court in Boyce. This Application requests the preparation of a video record from evidence to be heard and otherwise recorded in open court. That video record will be controlled by the Court and will not be subject to general release or publication. In any event, I am not persuaded that there is a privacy interest for persons compelled as witnesses before a preliminary hearing or trial to give evidence in open court.

[35] Accordingly, the videotaping of the said witnesses shall be permitted. All copies of the videotapes of evidence shall not be released to the Crown or to the three accused parties unless further ordered by the Court. In the event of committal for trial, the Superior Court of Justice will, of course, then assume jurisdiction. Such videos shall be marked as Exhibits in this proceeding and sealed, subject to any further Order of the Court.

Released: November 3, 2014

Justice D.B. Maund