ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-2328
DATE: 2013 12 20
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 21, 22, December 9, 10, 11, 12, 13, 16, 20, 2013, at Brampton
RULING ON ADMISSIBILITY OF STATEMENTS
OF ASOGIAN GUNALINGAM AND CHARTER APPLICATIONS REGARDING EXCLUSION OF EVIDENCE
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 Jaswinder Singh 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. Jaswinder Singh was arrested and he made a number of statements which are the subject of another ruling – see R. v. Jaswinder Singh [2013] ONSC 7310.
[2] A van was parked in the driveway at the Mississauga home (3068 Ireson Court). The licence plate of the van – 719 8ZP – was searched on the police computer by PC Getty. The registered owner was listed as Nicholas Victorbalaratnam of 3420 Morningstar, Unit 134 in Mississauga. This residence was very near to 3068 Ireson and the police were able to attend at the Morningstar address within minutes of locating the kidnapped female at 3068 Ireson.
[3] The accused, Asogian Gunalingam, answered the door, at the Morningstar address, and was subsequently arrested. Both before and after the arrest, the accused 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. Further, during the arrest, the police seized a pair of black pants belonging to the accused. Within the pants were the accused’s wallet, driver’s licence and also, driver’s licence and blank cheque belonging to the victim. The police are currently unable to locate the accused’s wallet and the accused’s driver’s licence.
ISSUES
[4] 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.
[5] In addition, the defence brings two Charter applications:
Exclusion of evidence regarding the discovery of the accused’s black pants and its contents;
An order staying the proceedings due to the disappearance of the accused’s wallet and driver’s licence.
FACTS
POLICE EVIDENCE
[6] A number of officers testified that at around 4:00 a.m. on November 12, 2011, Peel police 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.
[7] 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 male to identify himself. The male 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.
[8] 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. Singh was left in the custody of PC Deol and PC Holder and PC Mohammed entered the home.
[9] PC Salvatore and PC Neilly, police officers with the Peel Police Service, also entered the home. 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 bankcard. 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.
[10] 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 Mr. Singh saying anything while being escorted to the police cruiser.
[11] PC Getty, (on his own accord, according to his testimony), ran a check on the licence plate - 719 8ZP - of the GMC white van parked at the driveway of 3068 Ireson and discovered that the registered owner was Nicholas Victorbalaratnam of 3420 Morningstar, Unit 134, Mississauga. The Morningstar address was a residence in a nearby apartment complex.
[12] At approximately, 4:47 a.m., Sgt. Hewison and PC Crook, Peel police officers, attended at Unit 134 of 3420 Morningstar. The accused, Mr. Gunalingam, answered the door. When asked about who owns the van, the accused indicated that he drives the van. Mr. Gunalingam indicated that he lives at the address on Morningstar as that is the address of his surety. Mr. Gunalingam indicated he usually lives at 3068 Ireson. Mr. Gunalingam further indicated that he owns 3068 Ireson and rents it out to 3 East Indian males. The accused was told about the kidnapped female in the basement and was asked if the police could come into the residence. Mr. Gunalingam invited the police into the apartment.
[13] Meanwhile, another Peel police officer, PC Getty who had been standing guard nearby in the apartment complex, approached Unit 134 and saw that Sgt. Hewison and PC Crook were talking to the accused. PC Getty overheard part of the conversation outlined above between the two officers and the accused. The officers did not have any type of warrant. PC Getty indicated that due to Gunalingam’s admission to driving the van and Victorbalaratnam being registered as the owner of the van, neither individual would at that point have been free to leave.
[14] All three officers entered the apartment. According to Sgt. Hewison, the registered owner of the van, Mr. Victorbalaratnam, was seated on the couch. There were as least one other female in the residence.
[15] Sgt. Hewison directed PC Getty and PC Crook to effect an arrest on the two males for robbery, abduction, forcible confinement and kidnapping. PC Getty arrested the accused Mr. Gunalingam and PC Crook arrested Mr. Victorbalaratnam.
[16] PC Getty advised the accused he was under arrest for forcible confinement, kidnapping, and abduction. PC Getty asked the accused for ID after effecting the arrest. PC Getty testified that the accused advised that his wallet was in a pair of black pants that were in view draped over a chair in the dining room which was part of the livingroom where the arrest took place. PC Getty indicated that his notes contain a reference, “male advises that black pants on chair are his.” There was no reference in his notes to asking for ID. PC Getty indicated that the pants were on a chair in the dining room and not on a table and not in the hallway. PC Getty indicated that he had no warrant to arrest the accused and no search warrant to search the premises. PC Getty indicated that they attended at the apartment to continue their investigation.
[17] PC Getty testified that he grabbed the pants and felt the wallet “lump” in the pocket and seized the pants. PC Getty’s evidence was basically that he seized the pants after asking for ID and the accused stated that his wallet was in the black pants draped over a chair in plain view nearby. PC Getty’s intention in seizing the pants was to get the wallet from the pants. PC Getty agreed that there was nothing to prevent him from looking at the wallet in the apartment. Constable Crook had no recollection of a pair of pants being seized. Sgt. Hewison testified that after the accused were placed under arrest, PC Getty grabbed a pair of pants on the way out. Her understanding was that the accused had told someone he was wearing those pants that day and Sgt. Hewison agreed that the purpose of seizing the pants was that the pants were potential evidence that might have some bearing on what happened at the Ireson address.
[18] PC Getty escorted the accused to the cruiser and advised the accused of his rights to counsel at the cruiser outside. The accused, after the rights were read to him from a pre-printed form, and indicating he understood his rights, told PC Getty that he did not want to phone a lawyer, stating, when asked if he wanted to phone a lawyer, “No, I will talk to a detective at the Division.” This all took place at approximately 5:07 a.m.
[19] PC Getty testified that the accused was then given the standard police caution advising the accused of his right to silence. The accused was not handcuffed. Later in cross-examination, PC Getty was confronted with his testimony at the preliminary hearing where PC Getty stated that the accused was handcuffed upon arrest. The accused was then transported to 21 Division arriving at 5:17 a.m.
[20] At 5:27 a.m., the accused was turned over to the booking officer, Staff Sergeant Murray. The seized black pants, belonging to the accused, was turned over to Murray by PC Getty. According to PC Getty, Staff Sergeant Murray searched the pants and located a driver’s licence belonging to the abducted female in the pants pocket. Staff Sergeant Murray testified that it was PC Getty who did the search in front of Staff Sergeant Murray.
[21] In cross-examination, PC Getty testified that he searched the pants pocket in the cruiser when they were stopped for a light on the way to the Division station. PC Getty felt the wallet and took Gunalingam’s driver’s licence from the wallet, placed it into his notebook in his chest pocket, and put it into property later. PC Getty agreed that the police video at the station shows PC Getty withdrawing the accused’s driver’s licence from his chest pocket and no wallet is observable. PC Getty indicated that he put the wallet back in the black pants after taking out the licence.
[22] The police video, taken at the station during the booking procedure, (entered as Exhibit U), clearly shows that PC Getty takes out his notebook and there is a rectangular document similar to a driver’s licence sticking out of the notebook. PC Getty made no notes of any details of the driver’s licence but indicates that it is the accused’s driver’s licence. The precise details of the driver’s licence cannot be ascertained from looking at the video. PC Getty is seen to take a variety of items out of the pants (i.e. money, papers, blackberry phone pouch and belt) but at no time is any wallet taken out. No wallet appears to be in the pants. The last time PC Getty saw it was in the cruiser when he put the wallet back in the black pants. Accordingly, it can be inferred to have been lost at some time from the wallet being in the cruiser to the search at the booking station.
[23] The police booking procedure video also shows Staff Sergeant Murray take a second rectangular piece of identification (the victim’s driver’s licence) from the same pair of black pants. Staff Sergeant Murray placed this document in his vest pocket. The driver’s licence belonging to the accused can be seen to be placed in a property bag along with other items taken from the black pants.
[24] PC Jimenez can also be seen in the video filling out a form which includes a property list of items seized from the accused (Exhibit K). PC Jimenez made no note of a driver’s licence or a wallet seized from the accused. PC Jimenez testified that the current practice is to seal property bags but couldn’t recall in this instance if this property bag was sealed. The property bag was placed in a locker subsequently – locker #6. He has no notes of anyone accessing the bag except for a cell phone seizure. PC O’Connor testified that after he interviewed the accused he looked at Exhibit K and attended the property locker. There is no sign out sheet there and the property locker was not locked. PC O’Connor accessed the accused’s property bag and believes it was unsealed. He took out a variety of items but he doesn’t recall taking out the accused’s driver’s licence and has no notes or knowledge of anything regarding the accused’s driver’s licence and wallet. He did seize a cell phone as indicated by PC Jimenez. PC O’Connor subsequently attended at 3068 Ireson on Sunday, November 13, 2011 pursuant to a search warrant and did seize a wallet belonging to the accused. A picture, of this wallet and contents, is filed as Exhibit H and the wallet was stored in a location different from the property bag.
[25] It appears that PC Getty has testified to varying versions regarding the timing of the discovery of the accused’s driver’s licence in the pants pocket. At the preliminary hearing at page 84, PC Getty initially testified that he searched the wallet in the cruiser but later on at page 84, PC Getty testified that he took the wallet out at the scene and the driver’s licence was in the wallet. At page 83 of the preliminary hearing, PC Getty testified that this search took place at the police station and he took the driver’s licence from the wallet at the police station. At this voir dire, the officer testified that he took the driver’s licence from the wallet in the cruiser, while stopped at a stop light, on the way to the Division. When asked which version was correct, PC Getty testified that the driver’s licence was seized between the scene and the Division but conceded that there is nothing in his notes regarding asking the accused for ID or searching the accused’s wallet for ID.
[26] The two officers, – PC Getty and Sgt. Hewison - directly involved in the arrest of the accused Gunalingam, testified that they did not notice any difficulties in communicating with the accused in English and with the accused communicating with them in English. Neither noticed any symptoms of impairment.
[27] PC O’Connor did the video interview of the accused. He was told that the accused had been arrested at 4:55 a.m. and had been read his rights to counsel but had indicated that he did not want to talk to a lawyer. PC O’Connor was also told a driver’s licence belonging to the female victim – Ms. V.B. – had been found in the rear pocket of a pair of pants belonging to the accused Mr. Gunalingam.
[28] The interview commenced at 6:42 a.m. and this was the first contact by PC O’Connor. PC O’Connor testified that the accused was not impaired/intoxicated and he could not recall any odour of alcohol.
[29] The video shows that no rights to counsel were read at that time, but at page 8 of the video statement, there is a reference to the accused indicating that he did not want to call duty counsel. The accused at page 8 of the video statement further confirms that he told the arresting officer he did not want to talk to a duty counsel or a lawyer but just wanted to speak to a police officer. The accused indicates on the video that he wanted just to speak to a police officer because he, the accused, is straightforward. In PC O’Connor’s opinion, while English was not the accused’s first language, the accused understood everything that was being said in English.
[30] At page 4 of the video transcript the accused is read the secondary caution and the accused responds by asking the officer to tell him “the charges.”
[31] PC O’Connor makes reference to the accused smelling of beer and it smells like more than one beer at pages 36, 37 and 100 of the video transcript. PC O’Connor testified that despite English not being the accused’s first language and despite the fact that the accused had consumed alcohol and showing some signs of unusual demeanour (shaking), it was PC O’Connor’s opinion that the accused was able to understand what was going on. If there had been a language issue, PC O’Connor testified that an interpreter would have been arranged.
[32] PC O’Connor was involved in the search of 3068 Ireson pursuant to a search warrant and he located Mr. Gunalingam’s wallet on the kitchen counter and within the wallet, Mr. Gunalingam’s health card and social insurance card were located.
[33] The evidence of all the police officers, who had significant contact with the accused, was that there were no promises or inducements given to the accused. I find that there were no threats or use of force. There was no air of oppression. The police video clearly establishes that the accused was not impaired and had an operating mind and was appropriately responsive to the questions being put to him. In fact, the accused seemed very confident speaking to the police and a viewing of the video clearly establishes that the accused understood English sufficiently to understand the questions that were put to him and make appropriate responses when he wished to do so. My viewing of the video reveals an individual who was doing everything in his power to convince the police of his innocence. The accused was fully appraised of his rights and waived his right to counsel with the full knowledge that he had a right to call duty counsel.
(Complete judgment text continues exactly as in the source.)
Skarica J.
Released: December 20, 2013
COURT FILE NO.: CR-12-2328
DATE: 2013 12 20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
JASWINDER SINGH, ASOGIAN GUNALINGAM and JORA JASSAL
RULING ON ADMISSIBILITY OF STATEMENTS
OF ASOGIAN GUNALINGAM
Skarica J.
Released: December 20, 2013