ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMJ(P) 2037/12
DATE: 20140402
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 – IMPRESSIONS ON DECEASED’S CLOTHING
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 pre-charge conference, counsel for both accused sought a ruling and a resulting order that there was no evidentiary basis to allow the jury to find that the impressions and marks identified on the deceased’s shirt and pants were footwear impressions.
[2] Following the submissions of counsel and a review of the evidence, I gave brief reasons wherein I stated that there was no evidentiary basis to allow the jury to find that the impressions were footwear impressions.
[3] I also ordered that counsel for the Crown shall not submit to the jury in his closing address that it was open to them to find as a fact, that the impressions on the deceased’s clothing were caused by footwear.
[4] These are my reasons for this ruling.
[5] Detective Greg Janisse was assigned as the lead forensic investigator at the crime scene and he supervised the collection and examination of items of evidence collected.
[6] He was trained with respect to footwear, fingerprints, digital enhancement of photographs and death investigations and is employed with the Forensic Identification Bureau with Peel Regional Police.
[7] Detective Janisse testified with respect to the deceased’s clothing and marks and impressions observed by him on the clothing. The deceased’s pants, underwear, shirt and tank top were entered in evidence along with a series of photographs of the clothing.
[8] The detective identified three distinct marks or impressions on the deceased’s pants.
[9] Impression #1 was identified on the front of the right leg of the deceased’s pants, which he described as containing linear markings and some letters which he testified was potentially information being transferred from an object onto the cloth having come into contact with the object.
[10] Impression #2 was identified as being near the left pocket area. The detective testified that there was limited detail on the transfer of this impression and that a fold in the material appears to come together where the impression was made. This impression was in a pyramid-like shape.
[11] Impression #3 was located at the back of the right panel of the pants, which the witness described as having the outline of a blocking design composed of rectangular shapes.
[12] Detective Janisse also identified two impression areas on the back left portion of the deceased’s shirt which were referred to as impressions #4 and #5.
[13] Impression #4 was described as a linear shape made up of two lines that appear to come together into an arrow shape. Impression #5 was described as having two areas of voids along the impression.
[14] The officer explained that there are two general categories of characteristics that may be associated with footwear impressions namely, general characteristics which originate with the manufacturer of the shoe and accidental or specific characteristics that are unique marks associated with the particular shoe which may be related to wear and tear from use.
[15] He testified, with respect to impression #1 in part, as follows:
…And I just want to clarify that any object with a patterned impression, with this kind of detail, could be a potential source for this object. The – – one of the options is – – is footwear because there is a pattern to this particular impression. There is a linear markings that raise wording that appears to go across the side of the impression and it is also important to understand the clothing is also different than a static object or a flat object like a piece – – like – – like ground where it is flat and relative impermeable. Clothing is going to absorb somewhat some of the – – the medium that’s being transferred on to the document. And the clothing is also moving. So unlike a floor or a window, this garment is going to be moving, especially during an incident and coming into any pattern object might appear different than the actual object itself because of the nature of the garment and having that moving property.
[16] Other than describing the other impressions referred to on the deceased’s shirt and pants, Detective Janisse did not offer any evidence or opinion as to the specific cause of the impressions or the identification of the object causing the impressions observed.
[17] Detective Janisse agreed that on examining the sandals worn by Mr. Bal at the time he turned himself in to the police, and the impressions on the deceased clothing, he could not state if the sandals made those impressions.
[18] Similarly, Detective Janisse agreed that on examining Mr. Sidhu’s footwear, which he was wearing at the time of his arrest, and comparing those with the impressions on the deceased’s clothing, he could not draw any conclusions from the impressions on the clothing compared to his footwear.
[19] Detective Janisse did not expressly state that the impressions identified on the deceased’s clothing had been made by footwear. He simply testified that one of the options for the cause of impression #1 was footwear.
[20] He also stated that there are many variables when items transfer an impression onto an object or garment because of the nature of the actual garment and because the impression is not made on a flat surface. Further, he stated that there may be movement involved which blurs the detail of the object making the impression.
[21] There was no evidence offered that any of the impressions identified on the deceased’s clothing matched the general class characteristics of either Mr. Sidhu or Mr. Bal’s footwear. Further, the witness never stated or offered an opinion that the impressions found on the deceased’s clothing were of general characteristics or more specific or accidental characteristics from footwear.
[22] The witness, Bhumin Patel testified that, while he was outside the Tasty Bite Restaurant, he observed Mr. Khanna being held and struck by golf clubs as well as being punched and kicked.
[23] It was the position of counsel for the Crown that the questions as to whether the impressions found on the deceased’s clothing were footwear impressions and whether those impressions were made by the footwear of the either or both of the accused should be left to the jury to apply their common sense and human experience.
[24] It was the position of counsel for both accused that there was no foundational evidence identifying the impressions with any degree of certainty as footwear impressions and as such, it should not be open to counsel for the Crown to suggest to the jury that the impressions were in fact footwear impressions and thereafter infer from that that the impressions were caused by both or either of the accused’s footwear.
[25] Doherty J.A. in United States of America v. Huynh, (2005), 2005 34563 (ON CA), 200 C.C.C. (3d) 305 (Ont. C.A.) in respect of the drawing of inferences in the context of circumstantial evidence stated at para. 7:
The process of drawing inferences from evidence is not, however, the same as speculating even where the circumstances permit an educated guess. The gap between the inference that the cash was the proceeds of illicit activity and the further inference that the illicit activity was trafficking in a controlled substance can only be bridged by evidence. The trier of fact will assess that evidence in the light of common sense and human experience, but neither are a substitute for evidence.
[26] The first step in inference-drawing is that the primary facts, namely the facts that are said to provide the basis for the inference, must be established by the evidence. If the primary facts are not established then any inferences purportedly drawn from them will be the product of impermissible speculation: R. v. Alexander, 2006 26480 (ON SC), at para. 24; R. v. Portillo, 2003 5709 (ON CA) Doherty J.A.
[27] Doherty J.A. also considered the process of drawing of permissible inferences in R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 530, where he stated:
A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from the established facts cannot be made and is condemned as conjecture and speculation.
[28] The factual assertion put forward by counsel for the Crown that the impressions identified by Detective Janisse were footwear impressions was not established in the evidence as a primary fact.
[29] Although Detective Janisse described the impressions on the deceased’s shirt and pants, it was only with respect to impression #1 on the pant leg that he testified that “one of the options” was that this impression was caused by footwear.
[30] Detective Janisse testified as a forensic investigator with specific training in footwear impressions investigation and analysis and he clearly was not in a position to testify even with a modest degree of probability that impression #1 was caused by footwear.
[31] In the result I have concluded that the required primary facts that the impressions on the clothing were caused by footwear were not established in the evidence.
[32] As such the jury could not be left to understand, from Crown counsel’s closing address, that it was open to them to conclude, based on common sense and human experience, that the impressions were caused by footwear and that they could thereafter, considering the whole of the evidence, also draw reasonable inferences that the impressions were caused by either of the accused’s footwear.
Daley J.
Released: April 2, 2014
COURT FILE NO.: CRIMJ(P) 2037/12
DATE: 20140402
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
DALJINDER SIDHU
Accused
– and –
HARSIMRAN BAL
Accused
RULING – IMPRESSIONS ON DECEASED’S CLOTHING
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.
Released: April 2, 2014