ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. Singh, et al., 2015 ONSC 7089
COURT FILE NO.: CR-12-2328
DATE: 20150311
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
ENDORSEMENT
(CORBETT APPLICATION-ASOGIAN GUNALINGAM)
Coroza J.
[1] Mr. Gunalingam is being tried by a jury on charges of kidnapping, extortion, and assault. At the conclusion of the case for the Crown, he has applied for an order preventing the Crown from cross examining him on his criminal record.
[2] Mr. Gunalingam’s criminal record consists of three entries. The first two entries relate to convictions on February 8, 2010, for failing to comply with recognizance and uttering threats. The third entry is for uttering threats on February 10, 2012.
[3] I have reviewed the submissions and authorities submitted by counsel. The leading case is the Supreme Court of Canada’s decision is R. v. Corbett.[^1] I have also reviewed the Ontario Court of Appeal’s decision in R. v. Batte.[^2]
Analysis
[4] A trial judge has discretion to exclude or edit prior convictions of the accused. The factors that should be taken into account in the exercise of the judge’s discretion are:
i) the nature of the previous conviction;
ii) the remoteness or nearness of the conviction to the present charge;
iii) whether it is a conviction for a similar offence (in which case there is a greater risk of prejudice to a fair trial); and
iv) the nature of the defence attack on the Crown witnesses, in particular, whether the accused attacks the credibility of the Crown witness, especially where that attack is based upon his/her prior record.
[5] The ultimate question is whether the probative value of the prior convictions exceeds the risk of prejudice through improper jury use of the previous conviction to find guilt based on bad character.
[6] I have no difficulty in accepting that Mr. Gunalingam’s conviction for failing to comply with a court order has a direct bearing on his testimonial credibility.[^3] The jury may find this conviction to be very relevant if Mr. Gunalingam testifies. I do not think there is a risk that they will use this conviction to automatically jump to the conclusion that he is a person of bad character and likely committed the offences on the indictment. Therefore, the conviction has significant probative value that exceeds any risk of prejudice.
[7] I take a different view of the convictions for uttering threats. I accept that the prior convictions are not similar to the charges on this indictment. However, the jury has heard that the complainant was repeatedly threatened by a curly haired man during the kidnapping and her confinement. The Crown’s theory appears to be that this curly haired man is Mr. Gunalingam. The Crown does not formally advance the prior convictions of Mr. Gunalingam as similar acts admissible at this trial. In the end, even with the presumption that jurors will listen to limiting instructions, there is a small risk that the jury may reason that, because Mr. Gunalingam has two prior convictions for uttering threats, he is therefore the type of person to commit kidnapping, extortion, and assault.
[8] The Crown argues that because Mr. Gunalingam has repeatedly challenged the police evidence and made a direct allegation of planting evidence, permitting cross-examination on the entire record is necessary to prevent a serious imbalance in how the jury looks at all of the witnesses.
[9] Mr. Lepore, counsel for Mr. Gunalingam, disputes this submission and submits that this is not a case of pitting the credibility of police witnesses against Mr. Gunalingam. Counsel argues that Mr. Gunalingam has challenged not the credibility of the witnesses but the reliability of the evidence presented by the Crown.
[10] I am not persuaded by the Crown submission.
[11] There is a distinction between an attack on the character of Crown witnesses initiated by the defence and attempts by the defence to respond to the prosecution's evidence in a way that incidentally impacts on character.[^4]
[12] I am not satisfied that Mr. Gunalingam has actually suggested that the police planted evidence in this case to secure a conviction against the accused. I do not think his counsel ever put this specific assertion to any police witness. Instead, the attack on the police witnesses in this case is directed at the lack of credit of their account of events. For example, Cst. Getty has testified that he seized Mr. Gunalingam’s wallet from the Morningstar address. Cst. Getty has also testified that he does not know what happened to the wallet after he arrived at 21 Division and lodged Mr. Gunalingam into the booking area. Counsel is entitled to repudiate Cst. Getty’s assertion that he seized a wallet or point out that Cst. Getty’s evidence is inconsistent with that of Cst. O’Connor, who apparently seized a wallet belonging to Mr. Gunalingam at the Ireson address.
[13] Furthermore, counsel challenged Cst. O’Connor’s evidence by showing him police photographs that do not purport to show the wallet in the location where he says he seized the wallet from. Questioning and challenging the officers of their account in this way is not the kind of character attack of witnesses that took place in Corbett and does not create the potential for the kind of imbalance discussed in that case.
[14] Finally, counsel was also entitled to explore the fact that the identification document seized by Cst. Getty has gone missing since being placed in the locker at the booking area at 21 Division. Again, I do not view this as the type of attack on the Crown witnesses that was contemplated by Corbett. This is a challenge to the nature of a police investigation based on facts that even some of the police witnesses do not dispute.
[15] I have concluded there is no need on this record to balance the picture for the jury as there was in Corbett. Therefore, while the convictions for utter threats have some relevance to credibility it is outweighed by the potential prejudicial effect.
Conclusion
[16] The defence application is allowed in part. The two convictions of uttering threats shall be excluded from the evidence at trial. Otherwise, the criminal record disclosing that Mr. Gunalingam has a conviction for failing to comply with a recognizance is admissible.
Coroza J.
Released: March 11, 2015
CITATION: R. v. Singh, et al., 2015 ONSC 7089
COURT FILE NO.: CR-12-2328
DATE: 20150311
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
JASWINDER SINGH, ASOGIAN GUNALINGAM and JORA JASSAL
ENDORSEMENT
(CORBETT APPLICATION-ASOGIAN GUNALINGAM)
Justice Coroza
Released: March 11, 2015
[^1]: 1988 80 (SCC), [1988] 1 S.C.R. 670, [1988] S.C.J. No. 40 [Corbett]
[^2]: 2000 5750 (ON CA), [2000] O.J. No. 2186, (2000) 133 O.A.C. 3 (Ont.C.A.) [Batte]
[^3]: See R. v. Thompson, 2000 5746 (ON CA), [2000] O.J. No. 2270, 133 O.A.C. 126 (C.A.) and R. v. Fullerton 2011 ONSC 1601, [2011] O.J. No. 1313]
[^4]: Batte at para. 46.