Court File and Parties
COURT FILE NO.: CR14-2310 DATE: 2016/04/19 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – Gurpreet Ronald and Bhupinderpal Gill Defendants
Counsel: Brian Holowka and Jason Neubauer, for the Crown Michael Smith and Jessica Abou-Eid, for the Defendant, Gurpreet Ronald James Harbic, for the Defendant, Bhupinderpal Gill
HEARD: February 9-10 & April 7, 2016
Ruling on Admissibility of Statements
Parfett J.
1The Crown requests a ruling on the voluntariness of statements made by both accused to the police.
Background
2The accused, Bhupinderpal Gill and Gurpreet Ronald, are jointly charged with the first degree murder of Mr. Gill’s wife, Jagtar Gill. Mrs. Gill’s body was found on January 29, 2014. She had been beaten and stabbed. Mr. Gill was out shopping with his daughter and nephew at the time of his wife’s murder. However, shortly after the death the police learned of an affair between Mr. Gill and Ms. Ronald. A ruse led them to discover that DNA left at the scene belonged to Ms. Ronald.
3Both accused were interviewed several times by police. Crown now seeks to have these statements admitted in evidence.
Statements made by Bhupinderpal Gill
4At 13:02 on January 29, 2014, Cst. Tina Gallichon was dispatched to a home in the Barrhaven area of Ottawa regarding a possible suicide. When she arrived she spoke to Mr. Gill in an effort to get a timeline for events prior to the 911 call. Mr. Gill was upset, stone-faced and appeared in shock. He was unable to give a clear timeline. He stated he had gone to the library and had picked up his nephew from school. However, he could not say when he had left the house or whether his daughter had been with him the whole time. Given the possibility of suicide, Cst. Gallichon asked Mr. Gill about whether his wife was depressed. He said wife was not depressed and there had been no indication of problems. He also advised Cst. Gallichon that his wife had just had surgery the day before.
5Mr. Gill was asked to come to the station to speak to police on January 29, 2014. He was driven to the station by a brother-in-law. This statement was videotaped. Sgt. Gerry Kinnear was the officer who interviewed Mr. Gill. He indicated that Mr. Gill was considered to be a person of interest in the investigation at this time. It had been established that Mr. Gill was not the person who had killed Jagtar Gill, so it was unknown what, if any, involvement he had in the homicide.
6Mr. Gill was asked to swear to tell the truth before the interview began and he agreed to do so. Sgt. Kinnear indicated to Mr. Gill that he was conducting the interview for the purpose of ascertaining Mr. Gill’s ‘personal knowledge or involvement in the sudden death of Jagtar Gill’. [1]
7Sgt. Kinnear also interviewed Mr. Gill the next day – January 30, 2014. Mr. Gill was invited to come to the station and he arrived with some family members. That interview was also videotaped. On the second occasion, Mr. Gill is not sworn. Sgt. Kinnear indicated he did not feel it was necessary and he simply reminded Mr. Gill that he was expected to tell the truth. On this occasion, the police were looking for clarification of certain pieces of information. Specifically, police wanted to advise Mr. Gill that his wife’s death was a homicide and therefore they needed to know the position of his wife’s body when he first saw it. In addition, they wanted to know more about his phone service and why there had been problems calling 911. They were seeking permission to search his computer and his wife’s cellphone. Finally, the police wanted to know why Mr. Gill had told the 911 operator that someone had been in the house.
8Sgt. Kinnear testified that at the time of the second interview of Mr. Gill, the police had received some information that Mr. Gill and Ms. Ronald had been having an an affair. However, the information was little more than rumour at the time and had not had a significant impact on Mr. Gill’s status in the police investigation.
9Sgt. Kinnear asked Mr. Gill questions concerning the knives that had been found in the sink. The police knew at the time of this interview that Mrs. Gill had been stabbed and two knives had been found in the kitchen. Mr. Gill stated he moved the knives and washed them. He indicated he had used the knives earlier in the day and feared police would find his fingerprints on them. This explanation also did not change Mr. Gill’s status in the investigation.
10Sgt. Kinnear had a couple of further telephone conversations with Mr. Gill dealing with the return of house keys and other minor issues.
11On April 7, 2014, Sgt. Chris Benson telephoned Mr. Gill to advise him there would be an arrest in the case. Sgt. Benson noted that Mr. Gill seemed disinterested and was more concerned with the safe that was in police possession and that he wanted returned.
12On April 13, 2014, Sgt. Douglas Edgar was asked to go to Mr. Gill’s residence and arrest him. He went to the residence and arrested Mr. Gill. He read Mr. Gill his right to counsel, caution and secondary caution. Mr. Gill indicated he understood and wanted to speak with his sister. Mr. Gill was compliant throughout the arrest. There was some unrelated conversation between Mr. Gill and Sgt. Edgar while they waited for another officer to come and take Mr. Gill to the station. Cst. Williams transported Mr. Gill to the station. He was told by Sgt. Edgar to caution Mr. Gill a second time, not to engage in conversation with him, but to take notes if Mr. Gill did say anything.
13Sgt. Chris Benson was asked to conduct the third interview with Mr. Gill. Mr. Gill had contacted police indicating he wanted to speak to them about a steel bar. This bar had been the subject of a recent press release. [2] The press release stated that a bar had been found in a wooded area and police were looking for assistance with its origin. No mention was made in the press release to the Gill homicide. Sgt. Benson testified that during the forensic search of the Gill residence, the police had found a blood-stained steel bar in the basement. They replaced the bar with an identical one and installed a camera focussed on the area where the bar had been hidden. They were aware that Mr. Gill had retrieved the bar and thrown it into the wooded area where police then ‘found’ it. Sgt. Benson stated that the press release was designed to provoke a response. When it did, they decided to arrest Mr. Gill.
14In the telephone conversation with Sgt. Benson, Mr. Gill stated that he had found the bar in his basement. [3] Sgt. Benson indicated that he cut Mr. Gill off and told him that they would talk more at the station. At the start of the interview, Sgt. Benson reiterates both cautions although he does not use the format set out in police duty books. He also asked Mr. Gill if he had spoken with a lawyer and whether he was satisfied with the advice received. Mr. Gill confirmed he understood the cautions, had spoken to a lawyer and was satisfied. The interview is approximately four and a half hours long. The tone is largely conversational. At one point in the interview, Mr. Gill asks Sgt. Benson whether he is going to slap him. Sgt. Benson’s face is turned away from the camera. However, he testified that he was surprised by Mr. Gill’s statement and did not know what had precipitated it as he did not believe his demeanour had changed in any way.
15The statement is exculpatory. Mr. Gill is presented with the discrepancies between his earlier statements and the evidence found by the police. He is also caught out in lies concerning how the steel bar came to be retrieved by him. Mr. Gill agreed with Sgt. Benson that his lies made him look guilty, but he remained adamant he was not involved in his wife’s death.
16During the course of the interview, Mr. Gill asks for and is provided with a coffee. In addition, he has a bottle of water. Mr. Gill is never asked if he wanted food or a bathroom break, nor did he ask for either of these items.
Statements made by Gurpreet Ronald
17On January 29, 2014, Cst. Gallichon met a woman outside the Gill residence. She later understood this woman to be Gurpreet Ronald. She spoke to Ms. Ronald, who asked if everything was alright. When asked, Ms. Ronald indicated that she was a neighbour who lived nearby. Cst. Gallichon advised Ms. Ronald that Mrs. Gill had passed away.
18On January 29, 2014 at approximately 9:30pm, Sgt. Alison Cookson and her partner, Cst. Jason Bond, were canvassing homes around the Gill residence. Prior to starting the canvassing, Sgt. Cookson and Cst. Bond had been advised there had been a suspicious death at the Gill residence. They had very little else in the way of information. Their job was to find out if any of the neighbours had noticed anything unusual at the Gill residence or if they knew the Gills and could provide some background information. They spoke to a neighbour who indicated that another neighbour’s children played with the Gill children. Consequently, the officers went to that residence. It was the Ronald residence.
19Gurpreet Ronald came to door. Ms. Ronald was reluctant to allow the police entry because her children were sleeping and she did not want to wake them. She advised them that her husband was not present, but that his aunt was staying with them. Then she said they could come in if they spoke quietly. Sgt. Cookson indicated that she and Cst. Bond were in plain clothes but had identification and advised Ms. Ronald they were police officers.
20In answer to a question regarding what she had done during the day, Ms. Ronald said she had gone shopping at 1:30pm, then had an appointment at 2:30 and returned home to meet her interior designer at 3pm. She advised police that she had not noticed anything suspicious that day, but she had received a message from a co-worker indicating that Jagtar Gill had died of a heart attack. When Ms. Ronald was asked about her relationship with Gill family, she said she was not close with them. She indicated she knew Mr. Gill from work because they were both bus drivers working for OC Transpo. They were also both Indian families but did not socialize because of different schedules. On the other hand, Ms. Ronald indicated she worked as a hairdresser during her spare time and cut Mrs. Gill’s hair as well as that of the Gill children. In addition, their children sometimes associated. She recalled that on one occasion her family joined the Gills for a barbecue at their residence.
21In cross-examination, Sgt. Cookson agreed that she and Cst. Bond had spent considerably more time talking to Ms. Ronald than anyone else during the canvass. She agreed they did not tell Ms. Ronald that she did not have to answer their questions or could cut the interview short. Sgt. Cookson also agreed that they did not tell Ms. Ronald how long they would be there, but added that she could not have because she herself did not know. Sgt. Cookson testified that the purpose of the canvassing was to gather information and the police left the Ronald residence once they felt all their questions had been answered. At that point in time, Sgt. Cookson noted she did not have enough background to be able to assess whether Ms. Ronald was telling the truth although some aspects of the interview were such that she felt something was a bit ‘off’. Sgt. Cookson stated she thought it was odd that Ms. Ronald did not pick her husband up from his evening out when there was another adult at home. This fact was noteworthy enough to put in her report. She also felt there was a discrepancy between the assertion that the Ronalds were not close to the Gills and the fact Ms. Ronald was their hairdresser. However, Sgt. Cookson also felt Ms. Ronald’s definition of closeness might be different than hers.
22On January 30, 2014, Sgt. Cookson was asked to conduct a sworn interview with Ms. Ronald. During the canvassing, only the Ronalds indicated they knew the Gills. As a result, Sgt.son stated the police wanted to get as much background information as possible from both Mr. and Ms. Ronald. She arranged for both of them to attend the station. The interview with Ms. Ronald was videotaped. At the outset, Ms. Ronald swears to tell the truth. The interview that follows expanded on the relationship between the Ronald family and the Gill family. There were some discrepancies between this interview and the earlier one conducted at Ms. Ronald’s home.
23At the end of the interview, Ms. Ronald is leaving the room when she has a dizzy spell. Sgt. Cookson directed Ms. Ronald to sit down in the ante-room. Another officer gets a Pepsi for Ms. Ronald. There is no videotape of this interaction but it is captured on audio tape. Sgt. Cookson asked Ms. Ronald about a bandage she noticed on Ms. Ronald’s left hand. Ms. Ronald indicated that she had cut her hand while cutting onions or potatoes. Sgt. Cookson testified this bandage caused her to have some suspicions concerning whether Ms. Ronald had some involvement in Jagtar Gill’s death. Sgt. Cookson stated that when she asked Ms. Ronald about the injury, she pulled her hand away and then put it in the pocket of her jacket. All of this behaviour led Sgt. Cookson to believe that there were more questions that needed answering.
24In cross-examination, Sgt. Cookson indicated that although the discrepancies between the two interviews and the bandage created some suspicions, it was not until she later learned of the affair between Mr. Gill and Ms. Ronald that she believed Ms. Ronald was a suspect in the death of Jagtar Gill.
25The following day, Ms. Ronald telephoned Sgt. Cookson to advise her she had telephoned Mr. Gill the morning of Jagtar Gill’s death.
26On April 8, 2014, Ms. Ronald is arrested and brought to the station. She has an opportunity to speak to counsel. The cellblock sergeant, Sgt. Bond escorted Ms. Ronald back to her cell. Ms. Ronald asks for soap but is told that only hand sanitizer is available. Sgt. Bond also asked Ms. Ronald if she had had lunch. Ms. Ronald indicated she had not and that she was vegetarian. According to Sgt. Bond that left very few options for food and Ms. Ronald was given a muffin and a bottle of water. Ms. Ronald also asked to call her husband. Sgt. Bond indicated she advised Ms. Ronald that she could only permit a call to a lawyer, but Ms. Ronald could call her lawyer and ask him to call her husband. Ms. Ronald declined.
27Sgt. Cookson again interviews Ms. Ronald. However, on this occasion Ms. Ronald is under arrest. Sgt. Cookson cautioned Ms. Ronald again. This interview contrasted sharply with the previous interview. In the earlier interview Ms. Ronald is chatty and animated. In this interview, she is withdrawn and responds to Sgt. Cookson’s questions with ‘no comment’. Ms. Ronald indicated she was cold at the outset of the interview and she is given a jacket to wear. She is also given water and food when she asked and is taken to the bathroom. The interview is exculpatory.
28At the end of the evidentiary portion of the voir dire, counsel for Mr. Gill indicated that he was disputing the voluntariness of the three videotaped interviews, but none of the other statements Mr. Gill made to police. Counsel for Ms. Ronald indicated that the only statement they were disputing was the January 30th statement.
General Legal Principles
29At this time, there is no Charter of Rights [4] application with respect to any of the statements at issue. Accordingly, the burden of proof is on the Crown. It is trite law that before a statement made by an accused person to a person in authority can be admitted in evidence, it must be proven beyond a reasonable doubt that it was given voluntarily. [5]
30The concept of voluntariness is defined to address both reliability and fairness concerns, in particular the need to treat accused persons fairly by not allowing coercive state tactics. At the same time, the confessions rule also seeks to protect an accused’s rights while not unduly hampering society’s need to investigate and solve crimes. [6]
31The companion to the confessions rule is the Charter enshrined right of an accused to remain silent. As noted in R. v. Singh:
Although historically the confessions rule was more concerned with the reliability of confessions than the protection against self-incrimination, this no longer holds true in the post-Charter era. Both the confessions rule and the constitutional right to silence are manifestations of the principle against self-incrimination. [7]
32Although originally the confessions rule was more concerned with the reliability of confessions than the protection against self-incrimination, this no longer holds true in the post-Charter era. Both the confessions rule and the constitutional right to silence are manifestations of the principle against self-incrimination. [8]
What the common law recognizes is the individual’s right to remain silent. This does not mean, however, that a person has the right not to be spoken to by state authorities. The importance of police questioning in the fulfilment of their investigative role cannot be doubted. One can readily appreciate that the police could hardly investigate crime without putting questions to persons from whom it is thought that useful information may be obtained. The person suspected of having committed the crime being investigated is no exception. Indeed, if the suspect in fact committed the crime, he or she is likely the person who has the most information to offer about the incident. Therefore, the common law also recognizes the importance of police interrogation in the investigation of crime. [9] [emphasis in original]
33The confessions rule has evolved over the course of its existence. Historically, it was primarily focussed on reliability. [10] Consequently, the preoccupation was with police behaviour that might negatively affect the reliability of the resulting statement. The classic formulation of the test for voluntariness was whether there had been any promises, threats or inducements that might have led the accused to speak to the police. Increasingly in modern times, however, the focus has been on the suspect’s right to freely choose whether to speak to police and how police behaviour may have impacted on that choice. [11] .
34The test as set out in R. v. Oickle [12] reflects that change of focus. It broadens the concept of voluntariness and defines four criteria that the Crown must prove did not occur:
- Promises, threats or inducements;
- Lack of operating mind;
- Oppressive atmosphere; and
- Other police trickery.
35The present confessions rule has a broader scope than the rights relevant to statements that are contained in the Charter. First, the burden of proof is different – on the Crown, not the accused. The standard of proof is also different – the Crown must establish beyond a reasonable doubt that the pre-trial statement was voluntary. Finally, a violation of the confessions rule leads to an automatic exclusion of the statement. [13]
36Any analysis concerning voluntariness is contextual in nature. [14] No one factor will trump other factors in determining whether a given statement was voluntary. The factors that affect the analysis include factors that are relevant to the accused and to the police. These factors are the ones derived from Oickle. [15]
37The only factor which has been raised in the present application is oppression. Oppression is primarily concerned with external factors that may influence a person to confess even in the absence of any threats, promises or inducements. Oppression may exist where the suspect has been:
- Deprived of food, clothing, water, sleep or medical attention;
- Denied access to counsel;
- Subjected to excessively aggressive, intimidating questioning for a prolonged period of time; and
- Presented with non-existent evidence. [16]
38The caselaw contains some compelling examples of oppression. As a single example, in R. v. Hoilett, the suspect was left naked in a cold cell for an hour and a half, was only given some light clothes, deprived of sleep and refused both warmer clothes and a tissue.
39It is not enough for the court merely to find oppressive behaviour. There must be a ‘nexus, or connection between the police conduct and the decision to speak. Context is critical.’ [17]
40As noted earlier, in assessing whether a statement is voluntary, the Supreme Court of Canada has made it clear that the analysis must be contextual. In Oickle, the Court noted:
[A] court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession’s voluntariness, taking into account all the aspects of the rule discussed above. [18]
41In addition, the Court notes that it is important to keep in mind the twin goals of the confessions rule: to protect the rights of the accused, without unduly limiting society’s need to investigate and solve crimes. [19] Finally, although the test is an objective one, the analysis must take into account the particular circumstances of each individual accused. [20]
42Another factor that may come into play is whether the accused is a suspect in a crime at the time of the statement or becomes a suspect during the course of the statement. If the police are merely seeking information from people they believe are witnesses or persons of interest, there is no need for a caution. [21] On the other hand, if the accused is viewed as a suspect, in other words implicated or involved in the crime, failure to caution him/her could be significant in the circumstances of the case. [22] As noted in R. v. J.R.,
If [an accused or a suspect] has not been apprised of his right to counsel or that his lies could be used against him at trial, perhaps in a way he may not understand, he would not be aware of the full implications of what is at stake in telling those lies to the police. In the interests of trial fairness a suspect or an accused must be apprised of such implications or given the opportunity to be apprised of them by a lawyer before the statement can be said to be truly voluntary. [23]
43The failure to caution a suspect after receiving information that “would alert any reasonably competent investigator to the realistic prospect” the accused had been involved in the crime is a significant consideration on the issue of voluntariness. [24] Consequently, knowing how to draw the line between someone who is merely a witness or person of interest and someone who is a suspect is important.
44A great deal of ink has been spilled in the search for a precise formulation of when a person becomes a suspect and therefore, should be cautioned prior to being interviewed. As noted in R. v. A.D. [25],
In the end, I do not see a great deal of difference in these various formulations. The trigger for an expectation that the police will give a person being questioned a caution respecting the right to silence must be less than reasonable grounds to believe that the person committed an offence, but must surely be more than speculation, knowledge that other persons suspect that person, or even reliable information that, to use the words of the Major Case Manual, a person’s “background, relationship to the victim or the opportunity to commit the offence may warrant further inquiry”. [26]
45The importance of drawing the line appropriately stems from the need to balance a suspect’s right to silence with the state’s need to properly investigate crimes. Therefore, the court should not be overly expansive because to “cast the net wider than this is to overemphasize an individual’s right to silence at the cost of stifling legitimate police investigation.” [27]
Analysis
46The application of the law to the facts differs depending on which statement is under consideration.
Statements made by Bhupinderpal Gill on January 29th and 30th, 2014
47Counsel argues that Mr. Gill ought to have been cautioned prior to the first two statements made on January 29 and 30th respectively. He states that as the deceased’s husband, Mr. Gill was clearly more than a witness in the eyes of the police.
48Sgt. Kinnear testified that during both these statements Mr. Gill was considered a person of interest but not a suspect. The police knew Mr. Gill had not been in the house when Mrs. Gill was killed but they did not know whether he was nonetheless implicated in her death. On cross-examination, Sgt. Kinnear was asked whether a spouse was always a suspect in a suspicious death. Sgt. Kinnear indicated there was no hard and fast rule. However, he did state that Mr. Gill was a person of interest because it was unknown who had caused his wife’s death and consequently, members of her family were part of the investigation.
49At the time of the first of these two statements, the police were not yet sure the deceased had been killed. The preliminary assessment by the paramedics on scene was that it might have been a suicide. However, it was certainly classified as a suspicious death. Police knew that Mr. Gill could not have killed his wife because he was out shopping with his daughter and his nephew at the time his wife died.
50By the next day, January 30th, the police knew they were dealing with a homicide. However they did not have any credible suspects at that time. They knew Mr. Gill had washed two knives that had originally been found beside the deceased. They knew there was blood on the stairs leading up to the second floor, and more blood in the master ensuite bathroom but they did not know whose blood it might be, whether the deceased’s or someone else’s. They had received information from a family friend that he believed Mr. Gill and Ms. Ronald were having an affair. However, this latter information was considered to be no better than rumour and had not had any impact on the investigation.
51Counsel for Mr. Gill contended that the statement made at the beginning of the January 29th interview that it was for the purpose of determining Mr. Gill’s ‘personal knowledge or involvement’ in the death of Jagtar Gill was evidence that the police suspected Mr. Gill of involvement in his wife’s death. Sgt. Kinnear testified that this wording was standard and he was reading from a form that ultimately Mr. Gill would be asked to sign as part of the process of swearing to tell the truth. He denied that it meant the police believed Mr. Gill was a suspect. Crown argued that this statement in fact would have made it clear to Mr. Gill that this was a solemn occasion and it was incumbent on him to treat the process seriously.
52In my view, the use of the standard form could not by itself and in the absence of other evidence, suggest the police had decided Mr. Gill was a suspect. At the point in time when these two statements were made, Mr. Gill’s relationship with the victim warranted ‘further inquiry’ [28] by the police and that is why they were interviewing him. However, they did not know who might have killed Jagtar Gill and therefore, had no information to connect Mr. Gill to the person who had actually committed the offence. Given that situation, there is no possibility the police could conclude there was a realistic prospect that Jagtar Gill’s death may have been caused by Mr. Gill. Consequently, no caution was required prior to either of the statements from January 29th or 30th.
53Counsel for Mr. Gill contended there were several questions asked during the interviews that indicated the police regarded Mr. Gill as a suspect. He was asked, for instance, about the status of his relationship with his wife and also he was asked questions regarding how the knives ended up in the kitchen sink. [29] In my view, this assertion is an example of using hindsight to imbue certain questions with more meaning than they had at the time. There is no question police would later come into possession of information that suggested the Gill marriage was not a happy one. In addition, police observed other behaviour by Mr. Gill that ultimately led them to conclude that Mr. Gill washed the knives in an attempt to conceal evidence. However, they did not have such information at the time of these interviews and therefore, I cannot find these questions were evidence Mr. Gill had become a suspect.
54Counsel also suggested that Mr. Gill’s statement that he had a ‘brain freeze’ and was struggling to recall details of the crime scene was further indication Mr. Gill’s decision to speak was not voluntary. [30] I cannot agree. Both these statements viewed in their entirety, leave the impression Mr. Gill was doing his best to assist the police with their investigation. His ‘brain freeze’ was nothing more than Mr. Gill’s attempt to explain some of his lapses in memory.
55Counsel for Mr. Gill is not alleging any promises, inducements or threats. However, he is alleging that Mr. Gill’s first language is not English and he was unfamiliar with the justice system. He suggested that these facts also militated in favour of Mr. Gill being cautioned prior to his interview. I was not provided with any authority indicating that persons whose first language is other than English (or French) must be cautioned prior to speaking to police. In any event, although Mr. Gill’s English was not perfect, it was apparent that Mr. Gill understood Sgt. Kinnear’s questions and he responded appropriately. There might be situations where language difficulties could impact on the issue of voluntariness, but that is not the case here.
Statement made by Bhupinderpal Gill on April 13, 2014
56Counsel for Mr. Gill acknowledges that Mr. Gill was appropriately cautioned and provided an opportunity to speak to counsel prior to the start of this interview. However, he alleges the interview was conducted in an oppressive manner. Specifically, he argues that Mr. Gill was told he was a liar on multiple occasions during the course of the interview and this behaviour served to wear down Mr. Gill’s ability to choose freely whether to speak.
57This interview is different from the two earlier ones in that Mr. Gill had been arrested. The officer speaking to him is not being sympathetic to a grieving husband. The tone is more forceful. The officer asked questions and when Mr. Gill made a statement the officer knew to be a lie, he confronted Mr. Gill with that lie. However, the statement was exculpatory.
58Counsel pointed to several examples of behaviour he contended was indicative of the fact that Mr. Gill’s ability to choose to speak voluntarily had been undermined. In one example, the following exchange occurs:
BG: I mean I have done these stupid mistakes clearly but I’m not involve into killing my wife. CB: And we’re supposed to believe that? BG: No, you’re not. CB: No, ‘cause that’s not the truth. BG: No, that’s the truth. If I’m in your place I won’t believe but that’s the truth. Other than that I can’t say anything. [31]
59This exchange is one example of several similar exchanges in which Mr. Gill agrees with the officer that his actions are suspicious and make him look guilty, but he goes on to deny any involvement in his wife’s death. The position Mr. Gill took during this interview is that he did a number of stupid things that could make him look guilty, but he did not have anything to do with his wife’s death. He maintained this position throughout the interview and never deviates from it.
60Counsel also pointed to an exchange in which Mr. Gill asks Det. Benson ‘Are you gonna slap me?’ Det. Benson replies ‘I’m not gonna slap you. Why would I do that?’ Mr. Gill adds ‘It looks like [you’re] angry’ and Det. Benson responds ‘I just want you to tell me the truth.’ Counsel argues it is not possible to see Det. Benson’s face and therefore it was possible Det. Benson was being aggressive. The only evidence on this point came from Det. Benson who testified that this question surprised him as he did not think his demeanour had changed. He also indicated Mr. Gill was smirking when he asked the question. Det. Benson stated that Mr. Gill smirked on several occasions during the interview. I accept Det. Benson’s evidence and find that Mr. Gill was not afraid of Det. Benson. Nothing that occurred before or after this exchange indicates that Det. Benson was being inappropriately aggressive in his questioning.
61In a separate exchange, Mr. Gill tells the officer there is no point in continuing the questioning and the officer should not waste any more time on him. [32] None of Mr. Gill’s behaviour would suggest that he lost his ability to decide whether or not to speak to the police. Quite the contrary. As noted earlier, Mr. Gill never resiled from his position that despite what the police may have decided, he was not involved in his wife’s death.
62Consequently, I find that the Crown has demonstrated beyond a reasonable doubt that all three of these statements by Mr. Gill are voluntary.
Statement made by Gurpreet Ronald on January 30, 2014
63Counsel for Ms. Ronald argues that Ms. Ronald was a suspect at the time of this statement and ought to have been cautioned prior to this interview.
64At the outset of this interview, Ms. Ronald is sworn to tell the truth. Sgt. Cookson tells her that the purpose of the interview is to determine Ms. Ronald’s ‘knowledge or involvement’ in the homicide.
65As noted earlier, the test for determining whether, despite what the police may say about the person’s status, that person is in fact a suspect is: do the police have information that “would alert any reasonably competent investigator to the realistic prospect” the person had been involved in the crime? As a result, the information in the possession of the police at the time of the interview will determine whether, viewed objectively, the person is a suspect.
66At the time of Gurpreet Ronald’s interview, the police had the following information:
- Jagtar Gill’s death was a homicide;
- someone entered the house beat and stabbed Mrs. Gill;
- a witness believed Mr. Gill and Ms. Ronald were having an affair. However, at that time, this information was being treated by the police as nothing more than an unsubstantiated rumour;
- Mr. Gill and Ms. Ronald had spoken to one another by cellphone the day of Jagtar Gill’s death;
- there was blood at the crime scene that might have come from someone other than the deceased, but as yet they had no evidence of that; and
- Mr. Ronald stated he and his wife had been living separately for some time. In addition, Mr. Ronald had been having an affair and Ms. Ronald knew about it.
67During the course of the interview, Ms. Ronald told Sgt. Cookson that her marriage was good. She indicated as well that on that morning, Mr. Gill drove by her house and his daughter waved at her.
68Ms. Ronald also provided some information that Sgt. Cookson described as odd. Ms. Ronald told her that she had gone to the grocery store to buy cauliflower, saw Mr. Gill was there and spoke to him, and that Mr. Gill had three heads of cauliflower so she decided not to buy any and left the store. Ms. Ronald also stated that the day of the killing, she had decided to check on a trailer left at her father-in-law’s house. It was winter, the trailer was in a snow-covered field and the purpose of checking on it was to see if there was any air left in the tires. Objectively viewed, both these tales are odd.
69The question, however, is whether putting all this information together it can be concluded that either at the outset of the interview or at some point during the interview, Ms. Ronald became a suspect.
70There is no question that at the outset of the interview there was no evidence to suggest Ms. Ronald was implicated in the homicide. Information that the Ronald marriage was over, an unsubstantiated allegation of an affair between Ms. Ronald and Mr. Gill and the knowledge they had spoken on the telephone that day would not lead a reasonable person to conclude Ms. Ronald might be involved in the homicide. At that time, there was still no information to believe Mr. Gill was involved in the homicide in any way.
71Ms. Ronald does provide information during the interview that might lead an observer to conclude she and Mr. Gill were closer than she originally indicated. She tells Sgt. Cookson that Mr. Gill helped with some of the renovations on her home, she had known him for seven years, they were both bus drivers, they were good friends, Mr. Gill and she communicated several times a day, and she was closer to Mr. Gill than Mrs. Gill. The story of the aborted trip to buy cauliflower and the information Mr. Gill drove by her house and Mr. Gill’s daughter waved to her also indicated a close friendship between the two accused. However, Ms. Ronald also stated she and Mr. Gill would not see one another much outside of work.
72In my view, the information that Mr. Gill and Ms. Ronald were good friends does not add much to the earlier information. Without any indication that Mr. Gill was involved in the homicide, this information is food for thought but nothing more.
73Counsel points to some questions Sgt. Cookson asked as evidence she viewed Ms. Ronald as a suspect. She asked Ms. Ronald what she thought had happened and later why she thought the homicide had occurred. [33] The suggestion these questions indicated Sgt. Cookson viewed Ms. Ronald as a suspect suffers from the same problem noted earlier that these questions are being viewed through the lens of information that came later.
74The discovery after the interview had ended that Ms. Ronald had a bandage on her hand and she seemed to be concealing it from Sgt. Cookson certainly had the effect of changing Ms. Ronald’s status from mere witness to a person who warranted further investigation. However, once again, it was not sufficient to cause Sgt. Cookson to view Ms. Ronald as a suspect.
75Counsel’s position that at the outset of the interview, Ms. Ronald ought to have been cautioned or at the very least told that the information she provided during this interview might later be used against her is very much to ‘cast the net wide’ and to ‘overemphasize an individual’s right to silence at the cost of stifling legitimate police investigation’.
76I find the Crown has demonstrated beyond a reasonable doubt that this statement was voluntary.
Conclusion
77For reasons set out above, I find that the statements made by Mr. Gill and Ms. Ronald are voluntary and are therefore, admissible at trial.
Madam Justice Julianne Parfett Released: April 19, 2016
COURT FILE NO.: CR14-2310 DATE: 2016/04/19 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN – and – Gurpreet Ronald and Bhupinderpal Gill Defendant Ruling on admissibility of statements Parfett J.
Released: April 19, 2016
[1] Page 5, January 29, 2014 interview [2] Exhibit #4 [3] Exhibit #10 [4] Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11. [5] R. v. Sabri (2002), 159 O.A.C. 192 (C.A.) at 196. [6] R. v. Hodgson, [1998] 2 S.C.R. 449. [7] R. v. Singh, 2007 SCC 48, [2007] SCJ No. 48 at para. 21. [8] R. v. Singh, 2007 SCC 48, [2007] SCJ No. 48 at para. 21. [9] At para. 28. [10] At para. 21. [11] At para. 30. [12] 2000 SCC 38, [2000] SCJ No. 38. [13] Oickle, supra. Note at para. 30 [14] R. v. Papadopoulos, [2006] O.J. No. 5423 (S.C.J.). [15] Ibid at para. 8. [16] Oickle, supra. Note at para. 60. [17] R. v. Roy, [2002] OJ No 5541 (SCJ), at para. 240, aff’d, (2003), 180 CCC(3d) 298 (OCA). [18] At para. 71. [19] At para. 33. [20] At para. 42. See also Singh at para. 36. [21] R. v. Pomeroy, 2008 ONCA 521, [2008] O.J. No. 2550 (C.A.) at paras. 32, 36-37. [22] R. v. J.R., [2003] OJ No. 718 at para. 18 [23] At para. 21. [24] R. v. Worrall, [2002] O.J. No. 2711 at para. 104. [25] [2003] OJ No. 4901. [26] At para. 75. [27] R. v. Chui, 2015 ONSC 552, [2015] OJ No. 382 (SCJ) at para. 39, citing R. v. Carroll, [2009] OJ No. 3993 (SCJ) at para. 72. [28] A.D., supra. Note 25 at para. 75. [29] Page 57 pf January 29 statement and p.13-14, 38, 43 and 45-46 of January 30 statement. [30] Page 68 of January 29 statement and p. 10 and 45 of January 30 statement. [31] Page 113 of April 13 statement. [32] Page 127 of April 13 interview. [33] Page 45 and p. 93 of the January 30 interview.
