CITATION: R. v. Singh et al., 2015 ONSC 7261
COURT FILE NO.: CR-12-2328
DATE: 2015 01 26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
C. Coughlin and A. Bernstein, 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 defendant Jora Jassal
ENDORSEMENT
(RULING ON CO-CONSPIRATORS’ EXCEPTION)
Coroza J.
Overview
The accused are charged with kidnapping, extortion, and assault. All of the charges relate to the kidnapping of V.B. from her home on November 11, 2011. V.B. has testified that one of the men that took her was a man with curly hair and that another man was her former boyfriend Vajinder Singh.
Ms. B. was taken to a house in Malton and held captive by Vajinder, the curly haired man, and a third man wearing a mask. She was rescued by the police on November 13, 2011.
The police have been unable to locate Vajinder.
Issue
Gurvinder Singh is the next Crown witness. Gurvinder is a former friend of Vajinder. He is also a former boyfriend of Ms. B.. The Crown seeks to lead statements made by Vajinder to Gurvinder.
Gurvinder will testify that he had a conversation with Vajinder two to four months prior to the kidnapping. In that conversation, Vajinder told him he was looking for revenge against Ms. B. because she falsely accused him of sexually assaulting her.
Gurvinder will also testify that, five days before Ms. B. was kidnapped, Vajinder arranged to meet Gurvinder at Square One shopping centre in Mississauga. At that meeting, Vajinder asked Gurvinder if he would like to have sex with Ms. B. and that he would film the sex. Gurvinder declined. Vajinder asked Gurvinder if he knew anyone else who might be interested in having sex on camera with Ms. B..
Since Vajinder is not before the Court, defence counsel argue that this evidence is hearsay.
The Crown submits that the hearsay evidence proffered through Gurvinder falls under the co-conspirators’ exception to the hearsay rule. That exception allows a finder of fact (in this case the jury) to use hearsay statements of a declarant made in the furtherance of a common design against all other knowing participants in the design. The test for admissibility of these statements has been set out by the Supreme Court of Canada in R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938.
The underlying rationale for the rule is based on agency principles. In cases of joint ventures to commit criminal acts, it is accepted that each party to the joint venture implicitly authorizes the other parties to the joint venture to act and speak on his behalf in furtherance of the joint venture. Therefore, acts and declarations of one party to the joint venture could be admitted as evidence against the others.[^1]
In the alternative, the Crown submits that:
i) the evidence is admissible to show Vajinder’s motive for the kidnapping;
ii) the statements are declarations against penal interest;
iii) the statements are declarations of present intention; and
iv) the evidence is admissible to corroborate Ms. B.’s credibility because it refutes the suggestion made during cross examination that Ms. B. delayed disclosure deliberately for the purposes of protecting Vajinder.
Does the Trial Judge have the Authority to Screen the Evidence?
The Crown argues that I should not screen the statements for admissibility and that the evidence ought to go to the jury with a proper instruction. The ruling in Carter holds that, in a case to be tried by a jury, it is for the jury to determine whether and how any particular statement or act is to be used as part of the case against any accused.[^2]
I acknowledge that the holding in Carter is that it is up to the trier of fact to decide what to do with co-conspirators’ statements that are made in furtherance of the conspiracy. However, I do not agree that I have no gatekeeping function to play in screening this evidence. There is support for the position that, where an objection is raised by the defence, the trial judge must determine whether the statements are capable of being in furtherance of the joint venture. The role has been described as a modest one. The trial judge must determine whether there is some evidence upon which a jury could find that the declarations were made in furtherance of the joint venture.[^3] This requires that, at the time the statements were made, a joint venture was already in existence.
Moreover, Gurvinder’s testimony about these conversations can only be admitted as evidence if it is relevant to a material issue in the case.
The basic threshold requirement for the admission of all evidence is that the moving party (in this case the Crown) must satisfy me that the evidence is relevant to a fact in issue. Evidence is only relevant if it has a tendency, as a matter of logic and human experience, to make the existence of a fact in issue more probable or likely.[^4]
The Co-Conspirators’ Exception Does Not Apply
I do not find the Crown’s arguments relating to the co-conspirators’ exception to be persuasive.
The Crown argues that, given the close proximity in time between the Square One meeting and the kidnapping, being five days, the jury can infer that there was a already a joint criminal enterprise in existence when Gurvinder and Vajinder met at Square One. The Crown argues that the goal of the joint venture was to kidnap and extort Ms. B., and that this crystallized on November 11, 2011, when she was taken from her home.
In my view, Vajinder’s offer to film Gurvinder having sex with Ms. B. because he was seeking revenge does not tend to show the existence at that time of an ongoing joint enterprise. If anything, it simply shows that Vajinder was actively recruiting men to film a sex video. There is no direct or circumstantial evidence that has been led in this case to show that there was an ongoing criminal enterprise involving the accused and Vajinder to kidnap and extort Ms. B. as of November 6, 2011.
In conclusion, I find that the statements made to Gurvinder do not fall within the co-conspirator’s exception. I find that the Crown has not shown the conversations two months before the kidnapping or at Square One to implicate the accused together with Vajinder in a joint enterprise to kidnap, extort, and then assault Ms. B.. If there is no evidence of an ongoing joint enterprise on November 6, 2011, in my view, the exception to the rule cannot apply.
The Evidence is Not Relevant
Since the statements are not capable of being found to be co-conspirators’ statements in furtherance of a joint venture, they should not be left with the jury. To leave them with the jury would introduce irrelevant and immaterial evidence that has the potential to confuse and distort the process.
The Crown argues that, even if I do not find that the co-conspirators’ exception applies, the evidence is nonetheless admissible as against Vajinder. I do not agree.
First, the Crown relies on the common law hearsay exception for statements made by a non-party against his penal interest. I do not agree. For the exception to apply, the declaration must be made in circumstances that the declarant should have apprehended a vulnerability to penal consequences as a result.[^5] I do not see how that is possible in light of the circumstances surrounding how Vajinder made the statement. Gurvinder is expected to testify that he was friends with Vajinder when these statements were made. There is no evidence that Vajinder would know that the statements would be held against him.
Second, the Crown argues that the evidence is admissible against Vajinder to show his motive. The Crown argues that, although Vajinder is not before the Court, he has played a significant role in the trial. Ms. B. has testified that Vajinder was a party to her kidnapping, and the Crown suggests that motive, while not essential, is in fact always relevant.
Vajinder is not being tried by this jury. The jury has already heard that Vajinder was involved in her kidnapping. The jury has also heard extensive evidence that the men who kidnapped her demanded that she provide them money and her financial details. I do not see how Vajinder’s motive to seek revenge and film a sex video with other men is relevant to whether the accused were principals or parties to the offences on the indictment.
Third, the Crown also relies on the present intention exception to the hearsay rule.
I do not agree that this exception applies in this case. Evidence of Vajinder’s intention does not, as a matter of common sense or logic, permit any inference related to the accused’s intentions or actions, unless it can somehow be said that the accused were joint declarants with Vajinder. As outlined previously, I have concluded that, at the time he made these statements to Gurvinder, there is nothing to suggest that Vajinder was in an ongoing plan with the accused to kidnap, extort, or assault Ms. B..
Finally, the Crown submits that the hearsay evidence is admissible to corroborate Ms. B.’s testimony and refute the suggestion that she delayed disclosing his name in her initial police interview because she wanted to protect him.
It is true that the defence has called into question Ms. B.’s motivation in delaying the disclosure of Vajinder’s name to the police. However, I am not persuaded that this evidence is necessary to properly assess Ms. B.’s credibility. I say this for several reasons.
First, I was not shown any authority that suggests that hearsay evidence can be used to corroborate the complainant’s credibility. Second, Ms. B. explained why she delayed disclosure of Vajinder’s name in cross examination. Therefore, to the extent that the jury needs an explanation as to why she delayed disclosure, the jury was already provided with the explanation during her testimony. Third, this is not a central theme of this case. The issue is not material. None of the defence counsel in this case really take issue with Ms. B.’s testimony that Vajinder was one of her abductors.[^6] The issue for the jury to decide on this trial is the identity of the other abductors and whether it has been shown beyond a reasonable doubt that the accused were principals or parties to the kidnapping and extortion. Admitting statements against Vajinder is not relevant or material to these issues.
There is a serious risk that to allow this specific hearsay evidence into this trial will confuse the jury and distort the process. I would therefore exercise my discretion to exclude this evidence.
Conclusion
The application to lead statements made by Vajinder to Gurvinder two to four months prior to the kidnapping and on November 6, 2011, at Square One is dismissed. However, the Crown is permitted to lead evidence of a meeting at Square One if necessary to refresh Gurvinder’s memory as to the phone number that he believed was associated with Vajinder. The contents of the discussion do not have to be referred to in leading this evidence.
In light of my conclusion, it is not necessary for me to address in detail the arguments advanced by the defence relating to the principled approach to hearsay. Mr. Lepore specifically sought to argue that I ought to consider the reliability of the evidence of the hearsay recipient. I did not find his argument persuasive because counsel will have every opportunity to cross examine Gurvinder as to his recollection and the circumstances of his conversations with Vajinder.
Justice Coroza
Released: January 26, 2015
COURT FILE NO.: CR-12-2328
DATE: 2015 01 26
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
(RULING ON CO-CONSPIRATORS’ EXCEPTION)
Justice Coroza
Released: January 26, 2015
[^1]: See R. v. Chang (2003), 2003 CanLII 29135 (ON CA), 173 C.C.C. (3d) 397, 17 O.A.C. 37 (Ont. C.A.) at para. 55.
[^2]: See also Chang (2003), 2003 CanLII 29135 (ON CA), 173 C.C.C. (3d) 397, 17 O.A.C. 37 (Ont. C.A.) and R. v. Mapara, 2005 SCC 23.
[^3]: See R. v. Magno, 2012 ONSC 4001 at paras. 7 to 11 and 28 to 31. The analysis of my colleague Ducharme J. is persuasive and I adopt it. See also R. v. Bogiatzis, 2010 ONCA 902 at para.42.
[^4]: R v. Watson, 1996 CanLII 4008 (ON CA), 1996, 108 CCC (3d) 310 (Ont. C.A.) at para 33.
[^5]: R v. O’Brien, 1977 CanLII 168 (SCC), [1977] S.C.J. No. 65, [1978] 1 SCR 591 at paras. 23-24; R v. Demeter, 1975 CanLII 685 (ON CA), 1975, 10 OR (2d) 321, 25 C.C.C. (2d) 417 (Ont. C.A.) at para. 17.
[^6]: Mr. Razaqpour conceded as much during his oral submissions. All counsel adopted Mr. Razaqpour’s submissions.