ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-12-2328
DATE: 2014 01 20

B E T W E E N:

HER MAJESTY THE QUEEN

C. Coughlan, 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: January 15,16,17, 2014

REASONS FOR MID-TRIAL RULING ON STATEMENTS OF JASWINDER SINGH

Skarica J.

OVERVIEW

[1] The Crown, after a voir dire, obtained a pre-trial ruling that certain oral statements made by the accused Jaswinder Singh were voluntary and admissible at trial. At trial, the Crown sought to introduce those oral statements but indicated, in the absence of the jury, that the officer’s evidence, regarding the exact wording of Mr. Singh’s oral statements was somewhat different from the evidence that I had summarized in my pre-trial ruling. The “new” version gave the oral statements, arguably, a more inculpatory interpretation and also, had the effect of implicating the co-accused more directly to the crimes charged. The defence for the co-accused brought an application requesting that the oral statements in the “new” version be edited to eliminate prejudice to the co-accused.

FACTS

PRE-TRIAL RULING

[2] In my pre-trial ruling, I summarized Constable Mohammed’s evidence (see paragraph 10 of R. v. Singh et al, 2013 ONSC 7310 (S.C.J.)) as follows:

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.

[3] A review of the transcript of the pre-trial proceedings reveals that the accused indicated that the cell number provided belonged to the homeowner, Ashok. Constable Mohammed initially indicated at the pre-trial motion that he asked the question regarding the bound female and that is where he got the list of names. However, when the Crown and defence counsel then got into further detail regarding the exact responses to exact questions being asked, the officer testified in the manner summarized in paragraph 2 above. Regarding the photo of Mr. Jora Jassal, the specific evidence outlined in the transcript was that the officer asked who lived in the house and after giving Mr. Jassal as one of the four names, Mr. Jassal’s photo was produced on the police computer and Mr. Singh confirmed that the photo was of Mr. Jassal.

TRIAL PROCEEDINGS – “NEW” VERSION TO BE INTRODUCED

[4] At the trial, the Crown advised that the officer’s evidence was different than what is summarized in paragraphs 2 and 3 above. The defence objected and a voir dire was held. Normally, this would be done without calling evidence but in these unusual circumstances, I required evidence to be called in order to determine exactly what the new evidence was. Constable Mohammed was called by the Crown in the absence of the jury. Constable Mohammed’s testimony in chief now is that he asked Mr. Singh, “Why is there a bounded female in the basement?” Mr. Singh’s response was that he gave two names and a phone number. The phone number was 416-871-3176. The two names were Ashok (a nickname for the co-accused Mr. Gunalingam) and Jora Jassal (the other co-accused). The officer then asked either who was there or lives there or who owned or was present at the residence. The answer was Ramandeep Rang and Ramandeep Rana and the homeowner was Ashok. The names were then queried and Jora Jassal’s picture came up on the cruiser’s computer and Mr. Singh indicated, “That was that party and he was involved and he resides at the Ireson address.” In his notes, Mr. Jassal is marked as a suspect but Constable Mohammed could not say why.

[5] I believe that it can be reasonably argued that the “new” version, now being tendered by the Crown, is considerably more inculpatory as the “new” version now gives a direct response to the question regarding the reason for the victim being bound and has the accused, Singh, an alleged party to the crimes charged, naming two other parties to the crime alleged. Further, the “new” version implicates the co-accused more directly in the crime as opposed to the previous testimony, at the pre-trial motion, that the four named people were just living at the home where the victim was discovered. I will deal with the cross-examination of Constable Mohammed at the voir dire in a moment.

PRELIMINARY HEARING PROCEEDINGS

[6] It should be noted that, at the preliminary hearing, Constable Mohammed testified in a manner consistent with his pre-trial motion testimony but without the details that are being proffered in the “new” version. For example, at page 45, in response to questions by the Crown in chief, Constable Mohammed testified that he asked Singh who the house owner was and who else lived there and Constable Mohammed testified that the four names he received were Ashok, the owner, Jora Jassal, Ramandeep Rang and Ramandeep Rana. The Crown asks specifically if Mr. Singh provided two names or four names and Constable Mohammed indicated that there was an error in his notes and four names were provided. At page 47, Constable Mohammed testifies that the picture of Jora Jassal came up and he asked Mr. Singh if it was Jora Jassal and Mr. Singh said yes. At page 48, Constable Mohammed indicates that he asked Mr. Singh who the homeowner was and Constable Mohammed confirmed that the name Ashok was provided but there is nothing in his notes or evidence that Ashok was involved in the events of that evening. At page 49, 50, Constable Mohammed indicates that the name Ashok was given in response to a specific question regarding who the home owner was but this question is not in his notes. At page 57 defence counsel asks Constable Mohammed to be more precise regarding the evidence surrounding these oral statements. Defence counsel asks, “you’re asking him who is present at the residence, who lives at the residence, who owns – what exactly are you asking him?” Constable Mohammed responds, “Those similar questions you just posed.” The officer indicates he didn’t note the exact question but that he asked who lived at the residence, who is the owner, do you have any roommates. The officer then wrote down the four names that Mr. Singh provided. Defence counsel asked, at page 58 of the preliminary hearing, “But you can’t tell us the question that was put to Mr. Singh that elicited those four names; is that correct?” Constable Mohammed confirmed that was correct. With respect to Jora Jassal, Mr. Paradkar asks at page 61 of the preliminary hearing, that the officer cannot say with any specificity how the context under which his name came up and the officer confirms that is fair

[7] In re-examination at the preliminary hearing, the Crown asks, what was the accused’s response to the question: “Why is there a bounded up female in his basement?” The officer’s answer at page 63 of the preliminary transcript is, “Didn’t have a response for me.” The Crown refers the officer to his notes and asks, “What does it say after basement?” The officer indicates, “That is when he gives me two names” and then refers to page 79 and 80 of his notes. The preliminary hearing justice cautions the Crown to “let him answer undirected.” The Crown shortly thereafter summarizes, “so can you shed some light on the – and I appreciate you may not recall verbatim. But you’re – you ask him this question, why is there a bounded up female in your basement.” The officer answers, “Mm-hmm.” The Crown then asks, “And you say he responds with two names.” The officer answers, “That’s correct.” These questions by the Crown and answers by the officer are again confirmed at pages 63-64 of the preliminary transcript.

[8] Constable Mohammed was cross-examined on a relatively small portion of his preliminary hearing evidence at the pre-trial motion previously heard before me.

[9] In cross-examination at the current voir dire, Constable Mohammed was confronted with his prior testimony at both the pre-trial motion and preliminary hearing (as summarized above) by all three counsel. The gist of Constable Mohammed’s evidence was that he confirmed his prior testimony at both proceedings and also confirmed that he had told the truth. Constable Mohammed confirmed, that both at the preliminary hearing and at the pre-trial motion, he testified that he got no response from Mr. Singh to the question, “Why was there a bounded female in the basement?” Yet despite admitting that his notes were not the greatest and that they don’t contain exact wording and that there were errors in the notes, Constable Mohammed maintained that he was confident that the “new” version is what occurred.

[10] Further, Constable Mohammed admitted that the “new” version was different from the version given in the past in several ways i.e. that four names were given to his question and that the prior version contained only a confirmation that the picture on the police computer was Mr. Jassal. Constable Mohammed agreed that the “new” version was much more helpful to the prosecution than the earlier version. There was no notation in Constable Mohammed’s notes that Ashok was a suspect. Constable Mohammed agreed that, with respect to the new version that he was of the belief that Ashok and Jassal were involved in the kidnapping of Ms. B. and were clearly implicated. He was directed to page 49 of the preliminary hearing that there was nothing in his evidence or notes that Ashok was involved in the events of the evening. Constable Mohammed agreed that there is no mention in his notes that Ashok was a suspect regarding the kidnapping. Constable Mohammed confirmed his prior testimony that he didn’t provide any names or information to any other officers or ask further questions of Mr. Singh despite being aware that information gathering and developing information about suspects is important in serious cases. Constable Mohammed confirmed that it was absolutely clear from his evidence, on numerous different occasions, at the preliminary hearing and the pre-trial motion that the names of Ashok and Jassal came about as a result of questions regarding who lived and owned the home at Ireson. Finally, in conclusion of the cross-examination by Mr. Paradkar, the officer was given the version sworn to in prior testimony that there was no response to the question, ‘Why was there a bounded up female in the basement?” and that there were four names given in response to questions as to who lived at and owned the residence. The officer was asked, “You agree with me that is how it went down?” and Constable Mohammed responded, “Yes.”

[11] However in re-examination, Constable Mohammed indicated that he would testify to the “new” version. He had no answer for why he depicted Jora Jassal as a suspect at page 80 of his notes.

[12] After reviewing Constable Mohammed’s testimony at the voir dire, the only explanation that Officer Mohammed gives, for only now, after over two years since the event and contrary to testimony at two earlier occasions closer to the event, is that he made an honest mistake and that he is confident in the “new” version. Constable Mohammed testified that the “new” version is what he truly believed what happened.

[13] I believe that it can fairly be said that any competent officer, upon discovering that one arrested accused is implicating two other individuals in a very serious crime, that officer would pursue some type of avenue to further investigate or at least pass on the information to other officers and would make notes of what was done in that regard. Constable Mohammed admits that he did not do this. Upon Constable Mohammed’s own admissions, his notes contain errors and could be far more precise and the officer cannot remember exact specifics with reference to numerous details. He testified on two occasions (truthfully, according to him), over two years, regarding a different version and now, not even on the eve of trial but at the trial, is now confident of a different version that has the advantage of (1) providing a more inculpatory statement made by Mr. Singh and (2) pointing the finger more strongly at the co-accused.

[14] Given all the inconsistencies as outlined above, I have no hesitation in coming to the conclusion that the evidence of Constable Mohammed regarding the “new” version and the explanation for its’ recent appearance is not reliable and/or credible.

ISSUES

[15] The issues that must be resolved by this trial ruling are as follows:

1. Does Constable Mohammed’s “new” version of the accused’s oral statements impact my earlier rulings as to voluntariness and admissibility of the oral statements by the accused, Mr. Singh;

2. The co-accused claim that the “new” version is highly prejudicial to them and that since the statements of Mr. Singh are not admissible against the co-accused, Mr. Singh’s oral statements should be edited to exclude unnecessarily prejudicial and/or irrelevant evidence.

LAW

ISSUE #1 – IMPACT ON EARLIER RULINGS

[16] With reference to the admissibility of statements, the role of a trial judge is solely to determine whether the Crown has proven the voluntariness of a statement beyond a reasonable doubt. It is for the trier of fact, the jury, to determine if the statement was made and what exactly the accused said. I have found the “new” version to be not credible but for me to make any ruling other than regarding voluntariness would be, in my opinion, usurping the function of the jury.

[17] In R. v. Lapointe 1983 3558 (ON CA), [1983] O.J. No. 183 (C.A.) affirmed [1987] S.C.J. No. 37 (S.C.C.), Justice Lacourciere indicates at paragraphs 26, 37:

26 While it is true that, on a voir dire, the trial judge may have a duty to decide whether the accused has the capacity to give a free and voluntary statement, the question of the authenticity of the statement falls to be determined by the trier of fact at the conclusion of the trial. The entire ruling under appeal is tainted with the confusion of capacity with authenticity. I will deal with each area under a separate heading.

Authenticity of the Statement

37 Questions regarding the accuracy of the recording of an accused person's words by reason of unconscious editing on the part of the police have to do with the authenticity of the statement and do not fall to be decided by the judge on the voir dire. If he does so, as apparently the learned trial judge did in the present case, he is usurping the function of the trier of fact. The twelve bilingual jurors at this trial were eminently capable of resolving the issues of accurate or inaccurate recording of the respondents' words, of unconscious or deliberate inaccuracy, editing or deliberate fabrication. They are issues of authenticity and are not to be confused with issues of admissibility. See Lessard v. R., supra.

[18] See also my earlier ruling, R. v. Singh, 2013 ONSC 7310 (S.C.J.) at paragraph 25.

[19] In my earlier ruling regarding the admissibility of Jaswinder Singh’s statements, I indicated at paragraph 27 that the statements (the “old” version) made to Constable Mohammed were given in sufficient detail that I could assess voluntariness and at paragraph 32 concluded that all of Mr. Singh’s statements were voluntarily made.

[20] Now there is a “new” version that differs from the statement that I ruled on earlier. Further, I find that it is not a credible version. What impact does that have on my earlier ruling regarding the admissibility of Mr. Singh’s statement or statements?

[21] In R. v. Blackman (2006), 2006 42356 (ON CA), 84 O.R. (3d) 292 (C.A.), affirmed 2008 SCC 37, the Ontario Court of Appeal held, at paragraph 76:

[76] I would also reject the appellant's argument that the evidence of the Statements was inadmissible in the light of all the evidence tendered at trial. I agree with the view of the Nova Scotia Court of Appeal expressed in R. v. Johnson, 2004 NSCA 91, [2004] N.S.J. No. 280, 188 C.C.C. (3d) 214 (C.A.), at para. 35, that appellate scrutiny of a trial judge's decision to admit evidence at trial following a pre-trial voir dire must be confined to consideration of the evidence on the voir dire and the trial judge's assessment of that evidence. Pre-trial decisions regarding the admission of evidence cannot be reviewed retrospectively through the application of hindsight, based on a subsequently changed evidential landscape.

[22] I appreciate that both Blackman and Johnson deal with appellate review of pre-trial voir dires. However, if an appeal court, limits itself only to reviewing admissibility based on what was before the judge on the voir dire, how can I justify doing any different? This is particularly so given that in many trial situations, the trial evidence may end up varying from the voir dire evidence. If every time that occurred and if that opens the door to another voir dire on the admissibility of evidence previously ruled admissible (or inadmissible for that matter), trials could become extremely lengthy and unmanageable with juries being asked to stay away for many days. The whole pre-trial procedure was designed to avoid that problem and was designed to allow for evidentiary determinations to be completed before the trial so that the trial could proceed efficiently with minimal delays and not require the jury to be absent for lengthy periods of time. No authority was provided to me that suggests that I have the jurisdiction to review and overrule my pre-trial rulings during the trial itself.

[23] Mr. Razaqpur, on behalf of the accused, Singh, referred me to R. v. Moore-McFarlane 2001 6363 (ON CA), [2001] O.J. No. 4646 (C.A.) paragraphs 57-79. However, these paragraphs – see especially paragraph 67 - refer to the difficulty of the Crown proving voluntariness beyond a reasonable doubt where proper recording procedures are not followed. However, as I have indicated, I do not believe there is any authority for me to deal with voluntariness issues during the trial after they have already been determined during my pre-trial ruling.

[24] Mr. Razaqpur also invited me to engage in a hearsay necessity/reliability analysis regarding the admission of these statements – see R. v. Hall [2011] O.J. No. 5110 (S.C.J.) at paragraphs 14 -20. However, as indicated in Hall itself, at paragraph 20, I am bound by Justice Doherty’s decision, in R. v. Foreman (2002), 2002 6305 (ON CA), 62 O.R. (3d) 204 (Ont. C.A.) at para. 37, that admissions are admitted without the need for any necessity/reliability analysis (and see more recently, R. v. Osmar 2007 ONCA 50, [2007] O.J. No. 244 (C.A.) at paragraph 53. The Hall case also deals with admissions made to persons not in authority. These admissions are admissible on a balance of probabilities that the statement is that of the accused – see R. v. Hall, supra at paragraph 14 and R. v. Evans, 1993 86 (SCC), [1993] 3 S.C.R 653 at paragraph 32. The statements of Mr. Singh were made to a person in authority and must be proven voluntary beyond a reasonable doubt and in the course of that enquiry a reliability analysis takes place – see R. v. Moore-McFarlane, supra, at paragraphs 61-67 and R. v. Osmar, supra, at paragraph 53. As required by the case law, I dealt with the reliability aspect of Mr. Singh’s statements in my previous ruling regarding voluntariness, R. v. Singh, supra, at paragraphs 20-24. As indicated, I have already ruled on the voluntariness issue and I am not prepared to revisit that issue without some authority giving me the jurisdiction to do so.

[25] Accordingly, the “new” version has no impact on my earlier ruling regarding voluntariness. I have ruled that Mr. Singh’s statements are voluntary and the new evidential landscape cannot be used to disturb that finding. Regarding the credibility of the “new” version, it is the role to the jury to decide whether or not to believe the “new” version, the “old” version or any other or no version at all.

ISSUE #2 – SHOULD THE “NEW” VERSION BE EDITED DUE TO ITS IMPACT ON THE CO-ACCUSED?

[26] A trial judge has discretion to exclude evidence that is otherwise relevant, material and otherwise compliant with the rules of admissibility. The very learned Justice Watt outlines the extent of this discretion in R. v. Spackman, 2012 ONCA 905, [2012] O.J. No. 6127 (C.A.) as follows at para. 115:

Exclusion of Evidence under the General Exclusionary Discretion

115 A judge presiding in a criminal trial has a well-established discretion to exclude evidence that is relevant, material, and otherwise compliant with the rules of admissibility. This discretion, rather its exercise, involves a cost-benefit analysis, an inquiry into whether the value of the proposed evidence to the correct disposal of the litigation is worth its cost to the litigation process: Mohan, at pp. 20-21. As held in Mohan, at pp. 20-21, a trial judge may exclude evidence in the exercise of this discretion where:

i. the probative value of the evidence is overborne by its prejudicial effect;

ii. the introduction of the evidence would involve an inordinate amount of time not commensurate with its value to the determination of the dispute; or

iii. the evidence is misleading because its effect on the trier of fact, especially a jury, is disproportionate to its reliability as proof.

[27] In R. v. Olah, 1997 3023 (ON CA), [1997] O.J. No. 1579 (C.A.), the Ontario Court of Appeal recognized that a trial judge has the power to edit a co-accused’s statements in prejudicial or highly prejudicial circumstances. Justice Osborne, indicated at paragraphs, 40, 41, 46:

40 The trial judge was concerned with the number of references to Ruston that Olah made in his statements, and also with the number of damaging references he made about Ruston that were not necessary to Olah's narrative. He cited as examples Olah's comments about Ruston's criminal record; his statement that Ruston wanted to complete the commission of the planned offence before he was 18 because of the significantly reduced penal consequences under the Young Offenders Act; and Olah's observation that Ruston said that the reason for the killing was that "we only did it for a good time." The trial judge understandably characterized these comments, which were unnecessary to the narrative Olah was providing, as "highly prejudicial" to Ruston.

41 On May 13, 1991, the trial judge concluded that if Olah's statements were to be admitted at trial, "... the risk of prejudice to Ruston is significant and a separate trial should be ordered for him." However, the trial judge went on to hold that Olah's statements should be edited to remove what the trial judge characterized as "gratuitously offensive comments attributed to or related to Ruston." Pending the editing of Olah's statements, the trial judge stated that he would reserve judgment on Ruston's severance application. Although the trial judge referred to reserving judgment on the severance application, it appears to me that he adjourned it so that Olah's statements could be edited.

46 The trial judge recognized that even what remained of Olah's statements after the extensive editing process which was undertaken would cause prejudice to Ruston unless the jury were cautioned in very clear and specific terms as to the use that the jury could make of Olah's statements. During the trial, the trial judge instructed the jury on four separate occasions that Olah's statements to the police were not evidence against Ruston. In his charge the trial judge resurrected this warning. He instructed the jury that they must consider the evidence as it related to Olah and Ruston separately and he directed the jury that Olah's statements to the police were not evidence against Ruston. To illustrate, near the beginning of his charge, the trial judge emphasized the need to consider the evidence against each accused separately. He said:

You must consider the evidence for or against each one of the accused separately, and bring in a verdict separately on each accused. Simply because you may find one accused guilty on a particular count, does not oblige you to come to the same finding of the other accused. Similarly, if you find one accused not guilty on certain counts, it does not obli