COURT FILE AND PARTIES

COURT FILE NO.: CRIMJ(P) 2037/12

DATE: 20140402

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DALJINDER SIDHU

Accused

– and –

HARSIMRAN BAL

Accused

D. D’Iorio, for the Crown

M. Mirosolin and R. Tomovski, for the Accused, Daljinder Sidhu

P. Zaduk and J. Myers, for the Accused, Harsimran Bal

RULING – POLARIS SECURITY VIDEO

PUBLICATION BAN:

Pursuant to subsection 648(1) of the Criminal Code,

no information regarding this portion of the trial shall be published in any document

or broadcast or transmitted in any way before the jury retires to consider its verdict.

DALEY J.

[1] During the course of the cross-examination of the accused Harsimran Bal, counsel for the Crown sought to cross-examine him with respect to the security video material obtained by the police from Polaris Trucking (“Polaris”), a business located immediately to the north of the Tasty Bite Restaurant where the homicide occurred.

[2] Counsel for the Crown also indicated an intention to make submissions in his closing address to the jury suggesting that it would be open to them to find that the two passenger vehicles depicted in the security video entering Polaris at approximately 1:55 a.m. on June 20, 2011, were the vehicles of Bal and of the Crown witness Harjap Rataul, namely a Hyundai Accent and a Mazda 3.

[3] Counsel for both accused objected to both the proposed questioning of Bal and to any submissions to the jury regarding the two vehicles depicted that would suggest that these were the vehicles of Bal and Rataul.

[4] Following submissions from counsel I ruled, with my reasons to follow, that counsel for the Crown shall not cross-examine Bal with respect to the Polaris security video nor make any submission to the jury in his closing address regarding this video or stating to the members of the jury that was open to them to find as a fact, that the two vehicles depicted in the video were the vehicles of Bal and Rataul.

[5] These are my reasons for this ruling.

Factual Background:

[6] The Polaris property is equipped with a motion activated security video system. The video recording for the day in question was seized by the investigating officers. This video material was introduced in evidence by the Crown through its witness, Constable Rick Gut.

[7] The video depicts two vehicles in the driveway area of the Polaris property just prior to 2:00 a.m. on June 20, 2011. This driveway area is immediately adjacent to the property occupied by the Tasty Bite Restaurant.

[8] Constable Gut testified at trial that he did not know if the two vehicles depicted in the security video from Polaris had anything to do with this case.

[9] Rataul gave no evidence that he drove his Mazda 3 motor vehicle into the Polaris properties’ driveway on the evening in question, nor did he testify that he met with the accused Bal on the Polaris property that evening.

[10] He testified that he and Amritpal Singh left the restaurant in his vehicle, along with Daljinder Sidhu and Manjeet Singh and shortly thereafter returned to the front parking lot area of the Tasty Bite Restaurant whereupon Sidhu and Manjeet Singh got out of the vehicle.

[11] Rataul further testified that he entered the parking lot of the restaurant and turned his vehicle around in a u-turn fashion, at which time he stated that he observed both accused holding golf clubs. He, and Amritpal Singh, who remained in his vehicle, then left the scene.

[12] During the examination-in-chief of Rataul, counsel for the Crown did not question him with respect to the Polaris security video and the two vehicles depicted in it.

[13] Neither counsel for the accused cross-examined Rataul regarding the video nor did they question or suggest to him that he and the accused Bal had driven their vehicles onto the Polaris driveway area that evening.

[14] Counsel for both accused opposed counsel for the Crown cross-examining Bal regarding the video and as to whether he can identify his or Rataul’s vehicle in the video.

[15] Counsel for the Crown indicated that he wished to question the accused regarding this and to suggest to him that he and Rataul had a rendezvous in the Polaris driveway a few moments prior to the attack upon the deceased, Nitish Khanna in the parking lot of the Tasty Bite Restaurant.

[16] Counsel for the Crown also indicated that he intended on stating in his closing submissions to the jury that the vehicles in question belonged to Bal and Rataul and that they met on the Polaris property to plan the attack upon Khanna.

[17] Rataul’s evidence in both examination-in-chief and cross-examination was simply that he left the restaurant and returned shortly thereafter to drop off the two individuals, following which he left the scene. He did not testify as to any meeting with Bal on the Polaris property.

[18] Counsel for the accused based their objection to the proposed line of questioning of Bal regarding the video and to Crown counsel’s proposed closing statement to the jury on several basis including:

(1) there was a lack of a good-faith basis for cross-examining Bal regarding the Polaris video;

(2) such examination of Bal would violate the rule in Browne v. Dunn, (1893), 6 R (H. L.); and

(3) both the cross-examination and the proposed submission to the jury would result in irreparable prejudice to the accused and impact significantly on trial fairness.

[19] At the time counsel for the Crown quite properly alerted counsel and the court of his intended line of questioning of Bal and the proposed submissions to be made in his closing address, counsel agreed that a voir dire could be conducted regarding the issue of whether or not there was a good-faith basis for counsel for the Crown to cross-examine the accused on these issues.

[20] It was submitted by counsel for the accused that they had been advised by counsel for the Crown that the Crown would not be relying upon the evidence contained in the Polaris security video.

[21] A copy of an e-mail sent by one of the counsel representing Sidhu to his co-counsel, dated September 16, 2013 was produced, which related to a telephone call he had with counsel for the Crown. A hard copy of this e-mail was marked as a lettered exhibit. The e-mail stated: “I called Crown. Crown is no longer relying on the video. Zaduk may.”

[22] Counsel for Sidhu shared the information in this e-mail with counsel for Bal following its receipt.

[23] During the course of submissions on this evidentiary hearing, counsel for all parties submitted a written agreed statement of fact which stated as follows:

On Sept. 16 Mr. D. (counsel for the Crown) told Mr. W. (counsel for the accused, Mr. Sidhu) that in light of HR’s (Harjap Rataul’s) evidence it was the Crown’s position that there was no evidence linking the cars in the video to the events.

[24] Counsel for the Crown acknowledged that these facts are accurate and he and counsel for the defence submitted that I accept these agreed facts, without any further evidence on the communication between counsel. This avoided the prospect of counsel having to testify in a voir dire as to discussions they had prior to trial.

[25] In addition to the agreed statement of fact, counsel for the Crown also advised that in testifying at the preliminary hearing regarding the two vehicles depicted in the Polaris security video, Constable Gut had marked still photographs taken from the security video with post-it notes identifying the vehicles shown in the video as being a Mazda 3 and a Hyundai Accent. The officer testified at the preliminary hearing that he believed that these were the makes and models of the two vehicles shown in the security video.

[26] Contrary to the officer’s evidence at the preliminary hearing, counsel for the Crown stated that he had informed counsel for the accused, in advance of the trial, that Constable Gut would not offer any evidence as to the make or model of the vehicles depicted in the Polaris video in his trial evidence. In his evidence during the trial, the officer testified that he did not know if the two cars had anything to do with this case or not.

[27] Counsel for the Crown further advised that in testifying at the preliminary hearing regarding the Polaris security video evidence, Rataul testified, when shown the two vehicles in the video, that he did not recall the vehicles being there on the evening in question and further, that the vehicles had nothing to do with him or his friends.

[28] Counsel for both accused stated that they had conducted the defence of the charges against their clients on the evidence from the preliminary hearing and the statements made by counsel for the Crown, to the effect that the Polaris video would not be relied upon as evidence linking Bal and Rataul in a suggested rendezvous or meeting related to the attack upon Khanna.

[29] It was submitted by counsel for the accused that, in view of the representations made, they did not pursue defence options that were otherwise open to them, including cross-examination of Rataul with respect to the vehicles shown in the video, the retaining of a car recognition expert, and the examination-in-chief of Bal with respect to the identification of the two vehicles in the video.

[30] During the course of the submissions on this evidentiary hearing counsel for the Crown advise that Rataul was not available to be recalled as he had left for India.

[31] As to whether counsel for the Crown had a good-faith basis for seeking to cross-examine Bal regarding these two vehicles, counsel submitted that he did have such a good-faith basis as it was his personal belief that the vehicles depicted in the Polaris security video were those of Rataul and Bal.

[32] Counsel’s right to conduct a full cross-examination of a witness must be balanced with the rights of the accused to a fair trial. Cross-examination must have a good faith basis, and that basis may be found in counsel’s belief as to a certain set of facts or circumstances.

[33] In considering whether the proposed cross-examination of Bal has a good-faith basis and whether trial fairness concerns have arisen, the position put forward by the Crown in presenting its case must be examined and assessed in the context of the Crown having closed its case and the accused Bal having begun to answer the Crown’s case.

[34] In considering an accused’s reliance upon the Crown’s stated position, R. Clark J. stated in R. v. I.C., 2010 ONSC 32, 249 C.C.C. (3d) 510, at para. 89:

Further, I accept, of course, that, even in the absence of an agreement or undertaking, there are times the Crown will not be permitted to change its position when the defence has reasonably relied on that position to its detriment; Horan, supra, makes that plain. See also R. v. S.G.G., 1997 311 (SCC), [1997] 2 S.C.R. 716, where the Court held that the Crown must not be allowed to change its case it has presented once the accused has begun to answer it.

[35] Nordheimer J. in R. v. J.S.R. (2008), 2008 92004 (ON SC), 237 C.C.C. (3d) 326, with respect to the Crown changing its theory of liability, stated at para. 17:

[T]here is a point at which the prosecution can be held to the position that it has advanced throughout the proceedings. In other words, there comes a point at which the prosecution cannot alter its position regarding the basis upon which it asserts that an accused person should be found guilty. This reality was recognized in R. v. M.B.P., 1994 125 (SCC), [1994] 1 S.C.R. 555 where Chief Justice Lamer said, at para. 42 (QL):

In other words, I agree with the respondent’s counsel in this case that there comes a point when “enough is enough”, and a mistake or omission by the Crown must necessarily become fatal. Once the defence starts to “meet the case”, thus revealing its own case, the Crown should, except in the narrowest of circumstances, be “locked into” the case which, upon closing, it has said the defence must answer. The Crown must not be allowed in any way to change that case. To hold otherwise would be to undermine the guiding principle against self-incrimination. The thorny issue would be, of course, where that point is reached.

[36] While there is no suggestion of an agreement or undertaking on the part of the Crown with respect to the Polaris security video, I have concluded that on the cumulative effect of the Crown’s position with respect to the evidence contained in the video as outlined above, the accused and their counsel reasonably relied upon the position expressed by counsel for the Crown and most notably, the change in the evidence of Constable Gut from that given by him at the preliminary hearing, to the accused’s detriment. This is particularly so given that the proposed questioning arose after the Crown had closed its case and where there was no opportunity for Rataul to be recalled given his absence from Canada.

[37] In considering whether the reasonable and detrimental reliance gives rise to the need for a remedy, it must also be considered as to whether there was a good-faith basis for the proposed cross-examination of Bal on the basis suggested by counsel for the Crown.

[38] The good faith basis requirement for cross-examination was fully set forth by Justices Major and Fish in R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at paras. 46 – 48 which reads as follows:

46 This appeal concerns the constraint on cross-examination arising from the ethical and legal duties of counsel when they allude in their questions to disputed and unproven facts. Is a good faith basis sufficient or is counsel bound, as the trial judge held in this case, to provide an evidentiary foundation for the assertion?

47 Until the trial judge, and with respect, we believe that a question can be put to a witness in cross-examination regarding matters that need not be proved independently, provided that counsel has a good faith basis for putting the question. It is not uncommon for counsel to believe what is in fact true, without being able to prove it otherwise than by cross-examination; nor is it uncommon for reticent witnesses to concede suggested facts — in the mistaken belief that they are already known to the cross-examiner and will therefore, in any event, emerge.

48 In this context, a “good faith basis” is a function of the information available to the cross-examiner, his or her belief in its likely accuracy, and the purpose for which it is used. Information falling short of admissible evidence may be put to the witness. In fact, the information may be incomplete or uncertain, provided the cross-examiner does not put suggestions to the witness recklessly or that he or she knows to be false. The cross-examiner may pursue any hypothesis that is honestly advanced on the strength of reasonable inference, experience or intuition. The purpose of the question must be consistent with the lawyer’s role as an officer of the court: to suggest what counsel genuinely thinks possible on known facts or reasonable assumptions is in our view permissible; to assert or to imply in a manner that is calculated to mislead is in our view improper and prohibited. [Emphasis in original.]

[39] While counsel for the Crown may have believed that the two vehicles depicted in the Polaris video were linked to Rataul and Bal, I have concluded that on the record this was not a reasonably held belief. There is no evidence whatsoever indicating that vehicles belonging to these individuals were present in the Polaris driveway on the evening in question.

[40] Although Constable Gut testified under oath during the preliminary hearing that he had identified the two vehicles as a Hyundai Accent and Mazda 3, the same type of vehicles driven by Bal and Rataul, his trial evidence was that he did not know if these vehicles had anything to do with this case.

[41] Further, the agreed statement of facts submitted by counsel clearly reflect that counsel for the Crown advised counsel for the accused on September 16, that it was the Crown’s position that there was no evidence linking the cars in the video to the events in question.

[42] In all of the circumstances, I have concluded that Crown counsel’s personal belief as to the identity of these vehicles was not reasonably held and standing alone, cannot form a good-faith basis for the proposed cross-examination of Bal.

[43] In reaching this conclusion I have considered all of the information available to counsel for the Crown as disclosed as well as the position taken by Crown counsel with respect to the video evidence and his communication with counsel for the accused as to its relevance.

[44] Both the proposed cross-examination of Bal and the proposed submissions in his closing address regarding the relevance of this video and the vehicles depicted would result in significant unfairness to both accused.

[45] It was noted by Justices Major and Fish in Lyttle, at para. 51:

A trial judge must balance the rights of an accused to receive a fair trial with the need to prevent unethical cross-examination. There will thus be instances where a trial judge will want to ensure that “counsel [is] not merely taking a random shot at a reputation imprudently exposed or asking them groundless question to waft and unwarranted innuendo into the jury box.

See: Michelson v. United States, 335 U.S. 469 (1948), at p. 481, per Jackson J.

[46] Both the proposed cross-examination and closing submissions would clearly lead the jury to impermissible speculation as to identity of the vehicles depicted as well as the persons within the vehicles.

[47] Further, I reached the conclusions expressed in terms of overall trial fairness to the accused based on counsel’s failure to give notice to the witnesses the cross-examiner later intends to impeach. Notably, at no time did counsel suggest to Rataul that his vehicle was depicted on the Polaris property with another vehicle parked next to it on the evening of the homicide: see Browne v. Dunn; Lyttle, at paras.64-67.

[48] The proposed line of questioning of Bal was clearly intended for the purpose of impeaching and undermining not only his evidence but also that of Rataul, without having first confronted Rataul and providing both him and the accused with an opportunity to explore, by cross-examination, the contents of the Polaris security video during the course of the Crown’s case.

[49] For these reasons I ruled that counsel for the Crown shall not cross-examine Bal with respect to the Polaris security video nor make any submissions to the jury in his closing address regarding the video or stating to the jury that it was open to them to find as a fact, that the vehicles depicted in the video were the vehicles of Bal and Rataul.

Daley J.

Released: April 2, 2014