ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-2328
DATE: 20151112
B E T W E E N:
HER MAJESTY THE QUEEN
A. Bernstein, C. Coughlin for the Crown
— and —
JASWINDER SINGH, ASOGIAN GUNALINGAM and JORA JASSAL
J. Razaqpur, for the accused Jaswinder Singh; R. Lepore, for the accused Asogian Gunalingam; and F. Davoudi, for the accused Jora Jassal
TRIAL RULINGS
Coroza J.
[1] On November 11, 2011 V.B. was at her home getting ready for work, when the doorbell rang. Her daughter had left for school. A man with dark skin and curly hair told her he was a fence contractor and that he was selling fencing equipment in her subdivision. This man forced his way into her home and Vajinder Singh (Vajinder), the ex-boyfriend of Ms. V.B., joined him.
[2] Ms. V.B. was taken to her basement, where her top was removed. The two men took photographs of her topless. She was then blindfolded, tied up and taken to another house located at 3068 Ireson Court in Malton, Ontario. She was held captive at 3068 Ireson Court for three days and tied up to a bed. A third man, wearing a balaclava was also present.
[3] Ms. V.B. testified that, during her captivity, she was assaulted, confined and threatened by the curly-haired fence contractor, and the man wearing a balaclava. The men demanded money from her and demanded that she disclose her financial information to them.
[4] Ms. V.B. was rescued on the early morning hours of November 13, 2011. A 911 call was placed and the police attended the Ireson residence. The police officers who responded to the 911 call discovered Ms. V.B. tied to a cot in the basement and Jaswinder Singh (Jaswinder) in the backyard.
[5] Asogian Gunalingam (Mr. Gunalingam) was arrested in an apartment at Morningstar Drive early that morning on November 13, 2011. Police officers seized a pair of Mr. Gunalingam’s pants upon his arrest. The officers found Ms. V.B.'s cheque and driver’s licence in the pockets of Mr. Gunalingam’s pants.
[6] Jora Jassal (Mr. Jassal), another co-accused, turned himself in a few days later. A balaclava found inside the Ireson home contained Mr. Jassal’s DNA.
[7] The accused were all charged with the kidnapping, extortion and assault of Ms. V.B.. There was no serious contest to the allegation that Ms. V.B. had been kidnapped. The issue for the jury was whether they were satisfied that all of the accused were involved in the kidnapping. Jaswinder testified and denied that he was part of a plan to kidnap Ms. V.B.. He denied aiding any of the other accused in the scheme. Mr. Gunalingam and Mr. Jassal both advanced alibi defences, denying involvement in the offences. Mr. Gunalingam denied he was the curly haired fence contractor. Mr. Jassal denied he was the man wearing a balaclava.
[8] Pre-trial applications began on September, 2014. Jury selection started in November, 2014. The evidence was concluded in May, 2015 and the jury returned with the verdict on May 12, 2015.
[9] The jury found Mr. Gunalingam and Mr. Jassal guilty of the charges. Jaswinder was acquitted of all charges. On June 5, 2015, I sentenced Mr. Gunalingam to a global sentence of thirteen years less pre-sentence custody. On the same date, I sentenced Mr. Jassal to a global sentence of twelve years.
[10] This was a lengthy trial. Each accused brought a number of pre-trial and mid-trial applications. In order to keep the trial moving, I delivered a number of oral judgments with a promise of additional written reasons to follow. These are the written reasons.
TRIAL RULINGS
[11] These reasons deal with the following issues:
- A mistrial application because of improper Crown re-examination;
- Application by the accused to hold a voir-dire in relation to cell phone tower evidence;
- Application by the Crown to receive Gurvinder Singh’s evidence by video-link;
- Application to exclude a photograph of Jaswinder Singh shown to Gurvinder Singh;
- A motion for a directed verdict by Jaswinder Singh;
- A mistrial application relating to the interpretation provided by Punjabi interpreter Dave Duhre;
- Application by Jaswinder Singh to replay his entire video statement to police;
- Application by Jaswinder Singh to ask questions about Juddinex Masilamany;
- A mistrial application after the Crown’s closing address;
- A Crown request that the jury be instructed on the co-actors exception to the hearsay rule;
- A Crown request that the jury be instructed on “abetting” pursuant to s. 21 of the Code;
- A Crown request that the jury be instructed on the law regarding fabricated statements as “after the fact” conduct;
- A Crown request that the jury be instructed on the rule in Browne v. Dunn
1. Mistrial Application Because of Improper Crown Re-examination
[12] At trial, I dismissed Mr. Gunalingam’s application for a mistrial due to the improper re-examination of the complainant, Ms. V.B., by Crown counsel.
[13] In summary, Ms. V.B. spoke to the police on November 13, 2011. After her release from captivity, she was taken to the police station after her release and provided a video-taped interview to Cst. Bender of the Peel Regional Police. During the police interview, Ms. V.B. described the ”fence contractor” who approached her door as medium in height and build, wearing a dark suit, dark skinned with an Asian accent, curly hair and glasses.
[14] During Ms. V.B.Ms. V.B.'s interview, at 12:15:55 p.m., the interviewing officer asks Ms. V.B. to elaborate on her description of the “fence contractor” as being “Asian”. Ms. V.B. gives a verbal response at a very low volume and does so again when she is asked to repeat herself. She then indicates that she does not know the “fence contractor’s” background.
[15] Detective Doran was the designated officer-in-charge of the case and reviewed Ms. V.B.'s Nov. 13, 2011 police statement. On March 13th, 2014 he made the following entry in his notebook: “…The victim makes reference to Sri Lankan male party as the main guy who is a money lender and that her dentist cousin owes $300k. They made attempts to get him and then took her to make him pay” [emphasis added.]
[16] Detective Doran’s notes were provided to defence counsel during the spring or early summer of 2014.
[17] The Crown began calling evidence in November of 2014. During the week of December 15th, 2014, Crown counsel commenced and completed his examination-in-chief of Ms. V.B.. The Crown did not lead evidence that Ms. V.B. referred to the “curly haired man” as being Sri Lankan during her police interview on November 13, 2011. There was also no mention of the curly haired man being Sri Lankan in her evidence in chief.
[18] Mr. Lepore conducted his cross-examination of Ms. V.B. from December 19th, 2014 to January 5th, 2015. Ms. V.B. was examined on all issues including those surrounding the physical description and likely ethnic origins of the “curly haired man”. Mr. Lepore confirmed with Ms. V.B. that she could not be specific about the curly haired man’s ethnic origins. Mr. Lepore also confirmed with Ms. V.B. of what she told the police, that the curly haired man looked Asian.
[19] Mr. Lepore completed his cross-examination of Ms. V.B. at 1 p.m. on January 5th, 2015. Counsel for Mr. Jassal, Mr. Davoudi, then commenced his cross examination of the complainant until 1:20 p.m. The Court then took the lunch break.
[20] During the lunch break, Det. Doran informed Crown counsel that he had some recollection of watching Ms. V.B.'s Nov. 13, 2011 police interview. Det. Doran recollected that she may have identified the “curly haired man” as Sri Lankan. Det. Doran reviewed the interview during the lunch hour using ear phones and with the volume maximized. He located the relevant portion of the interview and informed Crown counsel that he believed Ms. V.B. had twice indicated that the man in question was “Sri Lankan”.
[21] Crown counsel then listened to the interview and held a similar opinion. Due to the fact that Ms. V.B. was under cross-examination, the Crown did not feel it appropriate or permissible to have her listen to the relevant portion of her statement prior to resuming court.
[22] During re-examination, however, the Crown asked Ms. V.B. to listen to the relevant portion of her interview in front of the jury. The relevant portion was played at a maximum volume and Ms. V.B. asked the Crown to replay the portion three times. After listening to the portion, Ms. V.B. testified that she “seemed” to say Sri Lankan to Cst. Bender and that her memory was refreshed about the ethnic origin of the curly haired man. Mr. Lepore did not object and he requested that the Crown play a further portion of the interview.
[23] At the conclusion of the re-examination, Mr. Lepore brought a mistrial application. The basis for that application was that the Crown had split its case and that Crown counsel ambushed him with the re-examination.
[24] Whether or not to declare a mistrial is an exercise in discretion. The test is whether a mistrial is needed to prevent a miscarriage of justice. The Supreme Court of Canada described the relevant considerations with respect to mistrials in R. v. Burke:
This determination will necessarily involve an examination of the surrounding circumstances. Injustice to the accused is of particular concern, given that the state with all its resources acts as the singular antagonist of the individual accused in a criminal case. This factor should be balanced against other relevant factors, such as the seriousness of the offence, protection of the public and bringing the guilty to justice.
[25] The Ontario Court of Appeal in R. v. Toutissani, at para. 9 has held that the declaration of a mistrial, like the declaration of a stay, should be granted only as a last resort, in the clearest of cases and where no remedy short of that relief will adequately redress the actual harm caused.
[26] I find that the Crown’s re-examination of Ms. V.B. was improper. The questions that Crown counsel wanted to ask her should have been vetted in the absence of the jury. However, I reject the submission that the Crown intentionally ambushed the defence by proceeding in this fashion. I accept Crown counsel’s submission that, from their perspective, the only way to refresh Ms. V.B.'s memory was to ask her the question about her statement in re-examination; they could not approach the witness because she was in the middle of cross examination. Though it would have been better if the question was vetted in the absence of the jury, sometimes incorrect judgment calls during criminal trials arise where the time for reflection is very limited. The Crown’s mistake was not deliberate. In my view, the lack of deliberate conduct here was a significant factor to be considered in determining that the effect of the Crown’s actions were inadvertent.
[27] More importantly, there were other remedies that could cure any perceived prejudice outlined by Mr. Lepore. Ultimately, I offered Mr. Lepore a choice of a limiting instruction to the jury or permission to cross examine Ms. V.B. on this point. In my view, Mr. Lepore could have conducted an effective cross-examination as to whether Ms. V.B. actually did believe the curly haired man was of Sri Lankan descent or whether she was simply repeating what she thought she said on the tape. In the end, Mr. Lepore requested a limiting instruction. I gave the jury a direction to ignore this aspect of Ms. V.B.'s evidence because the manner in which it was elicited was unsatisfactory. I am confident that the remedy cured any prejudice.
(Decision continues with the remaining numbered paragraphs exactly as in the source, ending with:)
Coroza J.
Released: November 12, 2015
COURT FILE NO.: CR-12-2328
DATE: 20151112
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
JASWINDER SINGH, ASOGIAN GUNALINGAM and JORA JASSAL
Coroza J.
Released: November 12, 2014