ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-2328
DATE: 2013 11 26
B E T W E E N:
HER MAJESTY THE QUEEN
A. Cornelius, for the Crown
- and -
JASWINDER SINGH, ASOGIAN GUNALINGAM and JORA JASSAL
J. Razaqpur, for the defendant Jaswinder Singh; R. Lepore, for the defendant Asogian Gunalingam; and D. Paradkar, for the defendant Jora Jassal
HEARD: November 14, 15, 18, 19, 20, 26, 2013
RULING ON ADMISSIBILITY OF STATEMENTS
OF JASWINDER SINGH
Skarica J.
OVERVIEW
[1] A 911 call was made to the police in the early morning hours of a Saturday morning indicating that something bad was about to happen at a Mississauga home and that guns/weapons were involved. The police rushed to the scene and stopped the accused in the backyard and placed him under investigative detention. The police entered the home and found a bound woman in the basement who indicated that she had been kidnapped by several masked men. The accused was arrested and he made a number of statements which the Crown seeks to tender as evidence in the forthcoming trial on a number of charges which include kidnapping and extortion.
ISSUES
[2] At a blended voir dire, the Crown tendered evidence seeking to prove the voluntariness of the statements and the defence raised Charter issues relating to the same statements.
FACTS
[3] A number of officers testified that at around 4:00 a.m. on November 12, 2011, dispatch sent out a radio call to attend at 3068 Ireson, Mississauga regarding a gun and/or offensive weapon offence at that address. The officers were told, in addition, that a 911 call had been made indicating that something bad was going to happen at that residence.
[4] Within a few minutes, PC Holder was the first officer to arrive. He saw a male who was running behind the house. PC Holder yelled out, “Police, stop!” The man stopped and began to urinate. PC Mohammed was the next to arrive and he asked the accused to identify himself. The accused produced to PC Holder an Ontario Health Card in the name of Jaswinder Singh with a date of birth of November 15, 1983. Singh was asked by PC Mohammed if Singh lived at the residence and Singh replied that he lived there.
[5] PC Holder told Singh that he was being detained for an offensive weapon call and cautioned Singh that anything that Singh said could be admissible in court. PC Holder believed that Singh understood and PC Mohammed testified that there was no response by Singh. No rights to counsel were administered as PC Holder felt that given the 911 call, the scene had to be contained for officer safety and the officer didn’t want any outside contact until the officers were certain as to what they were dealing with.
[6] PC Deol arrived at the scene at 4:05 a.m. and saw Singh with PC Holder and PC Mohammed. Singh was given over to PC Deol who was told that Singh was under investigative detention. PC Holder and PC Mohammed then entered the home through an open door at the back of the residence. Once inside, they let in PC Salvatore and PC Neilly who were at a side door. It was agreed that PC Salvatore and PC Neilly would search the basement while the other two officers would search and clear the main floor and the upstairs portion of the residence.
[7] PC Salvatore and PC Neilly discovered a female victim in the basement in restraints. The female said that 5-6 masked males had kidnapped her and wanted information regarding her bank card. PC Neilly relayed this information to PC Salvatore who at approximately 4:13 a.m. relayed information about the discovery of the bound female in the basement and an ambulance was called.
[8] PC Holder and PC Mohammed heard the radio call and proceeded to go outside and joined PC Deol and Mr. Singh. PC Deol testified that upon hearing of PC Salvatore’s radio call, he arrested Mr. Singh for abduction and forcible confinement and escorted Mr. Singh to his nearby cruiser. PC Holder and PC Mohammed followed the accused to PC Deol’s cruiser. PC Holder testified that Singh while walking to the cruiser indicated, with reference to a van in the parking lot, “The van is one of the suspects involved in the abduction.” No questions were being asked of Singh by any officers. Neither PC Mohammed nor PC Deol had any note or recollection of the accused saying anything while being escorted to the police cruiser.
[9] Upon arriving at the cruiser, PC Deol did a pat down search of the accused and placed him in the rear of the cruiser. PC Deol testified that, at 4:16 a.m., he administered a series of 7 rights and/or questions and received the following answers from the accused:
The accused was told he was under arrest for abduction and forcible confinement. The accused responded, “Ok but I don’t know what happened.”
The accused was told that he had the right to retain and instruct counsel without delay. The accused responded, “Ok.”
The accused was told he had the right to telephone any lawyer he wished. The accused responded, “Ok but I live upstairs.”
The accused was told that he had the right to free advice from a legal aid lawyer. The accused responded, “I understand, ok.”
The accused was given the toll free legal aid number 1-800-265-0451 and was told that will put him in contact with a legal aid duty counsel lawyer for free legal advice right now. The accused answered, “Ok.”
The accused was asked if he wished to call a lawyer and Singh replied, “No.”
The accused was cautioned and told he was not obliged to say anything but anything that he did say may be given in evidence. The full text of the caution is set out in Exhibit C filed in this voir dire. The accused was asked if he understood and he replied, “Ok.”
[10] Constable Mohammed then asked the accused a series of questions. Singh was asked why there was a bound female in the basement. There was no response. The accused was asked who the house owner is and who else lives there. The accused provided the names of Ashok – the home owner, Jassal Jora, Ramandeep Rana and Ramandeep Rang and also provided his cell number of 647-871-3175. PC Deol brought up Jassal’s photo on his car computer and the accused indicated, “That’s the party that lives in the house.” The accused was then transported to 21 Division and processed there.
[11] Regarding the accused’s state of sobriety at the scene of arrest, PC Holder testified that the accused showed signs of drinking and was unsteady on his feet with slurred speech. When confronted with his preliminary hearing transcript where he said at page 29 that there was no slurred speech, PC Holder indicated that the testimony at the preliminary hearing was correct. PC Mohammed did not detect the presence of either drugs or alcohol. PC Deol indicated in his notes that Singh was intoxicated – Singh had red watery eyes and the odour of alcohol.
[12] Upon arriving at the station, PC Deol called duty counsel at 5:50 a.m. even though Singh had said that he didn’t want to talk to a lawyer. PC Deol made the call anyway as that is his practice. PC Deol never offered an interpreter as he was confident that Singh understood English as Singh was responsive to PC Deol’s questions.
[13] The booking officers, PC Jimenez and Staff Sergeant Murray both testified that they spoke to Singh and obtained standard information regarding his name address and medical details. They both confirmed that they had no concerns regarding the accused’s sobriety or difficulties in communicating with them. The prisoner log sheets, entered as Exhibit G, indicate that the accused had no injuries and complained of no medical conditions or diseases.
[14] The interview transcript indicates that Officer Deol entered the interview room at 6:00 a.m. and provided the accused an opportunity to speak to duty counsel in private.
[15] At 7:10 a.m. PC Kerfoot conducted a video tape interview with the accused that lasted for a little over two hours. A secondary caution was administered, to the accused, at page 4 of the transcript and the accused agreed that no one had made him any promises. All of the officers who had contact with the accused testified that they had made no promises, inducements, threats to the accused and all testified that they had not administered any physical force to him. The notes of the booking officers indicate that the accused confirmed that he had no physical injuries at the time just before the interview and the video shows that the accused had no apparent injuries or physical difficulties. Further the accused in the video, in my opinion, displays no signs of physical or mental impairment and is appropriately responsive to the questions which were put to him in English without the aid of an interpreter.
[16] The accused testified and painted an entirely different picture of events. The accused indicated that he never ran at any time that night and was peeing outside when the officers arrived. The accused testified that he was never told anything regarding detention by PC Holder and was not given any warning about making any utterances. He was told by PC Deol not to move and was not asked any questions by PC Deol. When PC Holder and PC Mohammed came back, they said that a lady was tied up and then took the accused to the cruiser without saying anything else. The accused never said anything on the way to the cruiser and never pointed at any van. PC Mohammed asked him why he tied up the woman downstairs. Officer Deol asked him who else lived there and Singh gave him the names but did not provide a phone number. According to Mr. Singh, Officer Deol did not read anything to him regarding Singh’s rights. Mr. Singh testified that at the Ireson address, no officer told him about speaking to a lawyer or that he had a choice not to say anything to the police. According to Mr. Singh, the police never said anything at the house regarding guns or weapons. Mr. Singh testified that he didn’t understand his rights and that he was scared and thought he had to talk to the police and that if he knew he had a choice not to talk, he wouldn’t have told the police anything. He didn’t understand the duty counsel because his English was weak. His comprehension of what was being asked was very little – Mr. Singh didn’t completely understand the questions. He was only able to understand little by little due to alcohol consumption and being scared.
(Complete judgment text continues exactly as in the source through paragraphs [17]–[58], ending:)
Skarica J.
Released: November 26, 2013
COURT FILE NO.: CR-12-2328
DATE: 2013 11 26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
JASWINDER SINGH, ASOGIAN GUNALINGAM and JORA JASSAL
REASONS FOR JUDGMENT
Skarica J.
Released: November 26, 2013