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 re admissibility of prior discreditable conduct

Parfett J.

[1] Defence counsel for Mr. Gill seeks to elicit evidence of prior discreditable conduct of Ms. Ronald.

Background

[2] The Applicant, Bhupinderpal Gill, and the co-accused Gurpreet Ronald were charged with the first degree murder of Jagtar Gill, wife of the Applicant.

[3] It is alleged that on January 29, 2014, Mr. Gill left the family home in the company of his daughter to run some errands. It was Mr. Gill’s day off and his daughter was not at school due to the fact it was exam period.

[4] They left Jagtar Gill at home. She was recovering from surgery, was sedated and was lying on the living room couch. Mr. Gill was gone from the home for approximately two hours. When he returned, his daughter and his nephew – who they had picked up from school earlier in the morning – entered the home. They discovered the body of Jagtar Gill who it appeared had been beaten and stabbed.

[5] Police learned that Mr. Gill and Ms. Ronald had been having an affair. They also established that there was DNA from an unknown female left at the scene. Through a ruse, police were able to link this DNA to Ms. Ronald. They also linked her DNA to a partial latex glove Ms. Ronald was seen discarding. The partial glove matched a glove left at the scene.

[6] Jason Ronald, Ms. Ronald’s husband was interviewed by police in July 2014, several months after Ms. Ronald’s arrest. He revealed to police that during the course of three separate domestic disputes, Ms. Ronald had brandished a kitchen knife. During the course of this application, Jason Ronald was called as a witness to provide further details of these incidents. He testified there was also a fourth incident that closely resembled the other three.

Positions of the parties

[7] Mr. Gill’s position at trial is that if Ms. Ronald killed Jagtar Gill, she did it alone and without any participation by him. In his view, the evidence of the use of knives in a situation of domestic abuse is relevant to his defence.

[8] Defence counsel for Ms. Ronald argues that the evidence of the four knife incidents involving Ms. Ronald’s husband, Jason Ronald is neither relevant nor probative. In addition, he contends the proposed evidence is highly prejudicial to his client.

[9] Crown counsel argues that the proposed evidence has only modest probative value, but on the other hand, the evidence should be admitted because its probative value is not substantially outweighed by its prejudicial effect.

Legal Principles

[10] There is no general prohibition against the defence leading similar acts or other discreditable conduct against a co-accused. [1] As noted in Kendall:

The prosecution is not allowed to adduce evidence against an accused as to disposition as a matter of policy. With the exception of possible prejudice to a co-accused, of which more will be said later, there does not appear to be any policy reason for preventing an accused from adducing evidence to show the disposition of another person to commit the crime where such evidence is relevant. On the contrary, absent any compelling reasons to the contrary, it is essential that as a matter of policy an accused be permitted to adduce by way of defence any relevant evidence unless it is excluded by some evidentiary rule. [2]

[11] However, before evidence of prior discreditable conduct may be adduced against a co-accused, the accused must nonetheless meet the criteria for admission of prior discreditable conduct. The only difference being that the balance between probative value and prejudicial effect is different. Specifically, the accused must demonstrate that the probative value of the proposed evidence is not substantially outweighed by its prejudicial effect.

[12] The factors to consider prior to admitting prior discreditable conduct are as follows:

• The strength of the proffered evidence must be assessed. Is the proposed evidence capable of belief? If not, the analysis ends there.
• What is the live issue at trial to which it is said the proposed evidence relates? Is that issue important to the trial?
• Having examined the proposed evidence to assess whether it is capable of belief, it must be determined whether that evidence is capable of supporting the inferences sought by the party seeking to proffer the evidence. In other words, in the present case, does the evidence sought to be admitted tend to make the theory advanced by the accused more likely than not? If not, the analysis need go no further.
• If the evidence is capable of supporting the inferences sought by the accused, then the potential prejudice to the co-accused must be assessed. The court must consider the potential for moral prejudice and also the potential for reasoning prejudice against the co-accused. [3]
• Finally, in the case of prior discreditable evidence being proffered by one accused against another, the prejudicial effect of the evidence must not substantially outweigh its probative value. Any residual prejudice is dealt with by a limiting instruction to the jury.

[13] In R. v. Pollock [4], the Court of Appeal had this to say about the issue of relevance:

[S]ince evidence of propensity or bad character can carry a very grave risk of prejudice to the fair trial of the accused against whom the evidence is led, it is incumbent on the trial judge to examine closely the probative value of the evidence and the purposes for which the evidence is tendered. In my view, in a joint trial, counsel’s mere assertion that the evidence is necessary for the accused to make full answer and defence is not sufficient given the grave potential for prejudice to the fair trial of a co-accused. There must be some evidentiary foundation to support this assertion. [5]

[14] This step in any analysis involves both the assessment of whether the evidence is capable of belief and whether there is an evidentiary foundation for the assertion the evidence is relevant.

[15] Assuming the evidence sought to be admitted can support the inferences the accused wants to draw, the next step in the analysis is to balance the probative value against its prejudicial effect. Prejudice in the context of a trial does not mean the evidence would operate unfortunately for the co-accused, but rather whether it would operate unfairly. [6] Prejudice has been defined as encompassing two aspects: moral prejudice and reasoning prejudice. Moral prejudice relates to the possibility that the jury could convict an accused based on propensity and not proof. [7] Reasoning prejudice relates to the possibility that the evidence would unduly distract jurors from the issues at trial and/or it would be too time-consuming or complex to elicit the evidence relative to its probative value. [8]

[16] If the accused meets the test for admissibility, then any residual prejudice to the co-accused must be dealt with by way of a limiting instruction. [9] This limiting instruction indicates not only what the jury may use the evidence for, but also how it cannot use the evidence. [10] There is necessarily a tension that exists in a joint trial, particularly where the accused anticipate presenting antagonistic defences. However, that fact does not automatically engender an unfair trial.

[17] In R. v. Suzack the Court outlined the interplay between the constitutional rights of each individual accused and the realities of a joint trial. It indicated:

Where accused are tried jointly, each is entitled to the constitutional protections inherent in the right to a fair trial. Those protections include the right to make full answer and defence and the right to be shielded from evidence which unfairly prejudices an accused. An accused’s right to a fair trial, does not, however, entitle that accused to exactly the same trial when tried jointly as the accused would have had had he been tried alone. In joint trials, one accused may elicit evidence or make submissions in support of his defence that are prejudicial to the other accused and could not have been elicited or made by the Crown. In those cases, the respective rights of each accused must be balanced by the trial judge so as to preserve the overall fairness of the trial. [11]

[18] It is the need to balance the rights of both accused that makes a limiting instruction mandatory when evidence prejudicial to one accused is elicited by a co-accused.

Analysis

[19] The four alleged incidents, in chronological order, are as follows:

1. Sometime after the birth of their second child in 2004, Ms. Ronald and her husband got into a dispute. The origin of the dispute was the amount of time and money Mr. Ronald spent drinking with his friends. Ms. Ronald grabbed a kitchen knife and threatened Mr. Ronald with it. Mr. Ronald was easily able to disarm Ms. Ronald;
2. In 2008, when Mr. and Ms. Ronald were living in Fitzroy Harbour, there was another dispute where Ms. Ronald again grabbed a kitchen knife. Mr. Ronald disarmed her. The cause of this dispute was the slow pace of renovations. Mr. Ronald was a stay at home father at the time and he was also supposed to be renovating the house for resale;
3. Sometime in 2012, there was yet another argument. Mr. Ronald left the kitchen, where the spouses had been arguing and walked past the bottom of the stairs, heading towards the living room. His daughter was sitting on the bottom of the stairs. When Ms. Ronald followed with a knife in her hand, she saw her daughter and attempted to make light of the incident. She never actually attacked Mr. Ronald; and
4. In September 2013, Ms. Ronald discovered a used condom in a rental property the Ronalds were in the process of selling. She confronted Mr. Ronald and he admitted to an extramarital affair. Ms. Ronald was very angry and grabbed a kitchen knife. As in the previous incidents, Mr. Ronald disarmed her before any harm came to him. However, during the course of this incident, Mr. Ronald received a minor cut to his hand.

[20] The initial three incidents are related in a statement Mr. Ronald gave to police in July 2014 after his wife’s arrest on the homicide. They were never the subject of any criminal charges. In his testimony, Mr. Ronald indicated he never spoke to anyone about these incidents because he was embarrassed and ashamed. As noted earlier, during his testimony, Mr. Ronald related a fourth incident, which is third in the chronology.

[21] Defence counsel for Ms. Ronald focussed on two points in relation to this evidence: that it has no probative value and that the prejudicial effect far outweighs any possible probative value.

[22] Defence counsel for Mr. Gill indicated that the issues to which he believes this evidence relates are twofold. He stated that Mr. Gill’s involvement in the homicide is limited to the alleged planning and deliberation of Jagtar Gill’s death. He pointed out that his client was not in the home when the killing occurred and there is strong circumstantial evidence that Mrs. Gill was killed by Ms. Ronald. Therefore, evidence pointing to Ms. Ronald as the more likely of the two accused to be the killer is relevant. In addition, evidence suggestive of the fact that the killing was more spontaneous than planned is also relevant.

[23] The foundation for the assertion that this evidence is relevant lies in the theory that this killing was based on a fatal attraction. Defence asserts that Mr. Gill and Ms. Ronald had an affair that ended in October 2013, although they remained friends. He contends that Mr. Gill ended the affair and indicated to Ms. Ronald that he would not give up his wife and children for her. According to Defence, Ms. Ronald could not accept the end of the affair and entirely of her own volition, killed Mr. Gill’s wife.

[24] Defence points to testimony the Crown intends to lead in support of this theory. Mr. Gill gave a statement to police in which he confirmed that he and Ms. Ronald had had an affair, but that he ended the affair in October 2013, some six months prior to their arrest on the homicide. A friend, Mr. Scott Fewer, who was aware of the affair, indicated in his police statement he observed that Ms. Ronald was possessive, bold, immature, a ‘tough cookie’ and ‘a bit off the wall’. He also confirmed the end date of the affair in that he stated Ms. Ronald had not been coming around Mr. Gill’s residence as much in the period leading up to the death of Jagtar Gill. Ms. Suzanne Shields, a life coach, stated to police that Ms. Ronald was attached to Mr. Gill. Finally, there is the evidence of Mr. Ronald that his marriage was in serious difficulties and that Ms. Ronald was controlling.

[25] Defence counsel for Ms. Ronald pointed out – and I agree – there are some reliability concerns with respect to Mr. Ronald’s evidence. During cross-examination, it was apparent his memory was sometimes deficient. He also admitted he had consumed both alcohol and marijuana at the time of these incidents. Indeed, he indicated that his consumption of alcohol in particular was a source of friction in the marriage. That said, however, I find that Mr. Ronald’s allegations contain sufficient detail to be capable of belief. His explanation for why it took so long for him to reveal the abuse in his marriage is also believable. The fact he did not complain to the police about these alleged assaults does not in my view detract from his credibility. The reliability issues go to weight and would be a matter for the jury to decide.

[26] Before this evidence of prior discreditable conduct can be admitted, it must first be determined whether it is relevant to an important and live issue in the trial. The Crown theory in the present case is that Mr. Gill was involved in planning his wife’s death and its execution. Mr. Gill denies any involvement whatsoever in the death of his wife.

[27] As noted earlier, counsel for Mr. Gill argues that the evidence is probative in relation to two issues: who killed Jagtar Gill and whether the death was planned and deliberate.

[28] In my view, there is a problem with the first assertion. The Crown is not alleging that Mr. Gill actually killed his wife. Quite the contrary, the evidence indicates clearly that Mr. Gill could not have killed his wife. Consequently, the evidence that Ms. Ronald is predisposed to be violent and to use knives will not advance Mr. Gill’s assertion that he was not the person who killed Jagtar Gill. It is already conceded by the Crown he was not that person. Therefore, on this issue, the evidence has no probative value.

[29] On the other hand, evidence that Ms. Ronald was prone to violence and to use knives when angered is relevant to the issue of whether this killing was planned by both accused or whether it is more likely that Ms. Ronald acted on her own and the killing was spontaneous. The proposed evidence therefore, has some probative value with respect to this issue.

[30] The final aspect to be determined is whether the probative value of this evidence is substantially outweighed by its prejudicial effect. In my view, the risk of moral prejudice is not strong. While an allegation of domestic violence using weapons is serious, it pales in comparison with the allegation in the present case of a brutal homicide.

[31] The more critical issue is the risk of reasoning prejudice.

[32] As set out in R. v. Handy, the risk of reasoning prejudice encompasses the following:

The major issue here is the distraction of members of the jury from their proper focus on the charge itself aggravated by the consumption of time in dealing with allegations of multiple incidents involving two victims in divergent circumstances rather than the single offence charged. [12]

[33] At this point in time, Mr. Ronald’s allegations are unproven. However, the utility of this evidence is that it could raise a reasonable doubt on the issue of Mr. Gill’s involvement in a plan to kill his wife. Defence does not have to actually prove the allegations. Mr. Gill needs only to demonstrate the evidence is sufficiently capable of belief that it could serve to raise a reasonable doubt. Conversely, and more importantly, Ms. Ronald is not required to disprove these allegations. Given this evidence relates solely to planning and deliberation of Mr. Gill, the evidence would not and could not, assist the jury with respect to any issues relating to Ms. Ronald. Therefore, the risk of prejudice to Ms. Ronald is low.

[34] In addition, the jury will be told in no uncertain terms that this evidence has no bearing on the issue of Ms. Ronald’s guilt. Any residual prejudice to Ms. Ronald can be dealt with by the appropriate limiting instruction to the jury.

[35] Consequently, the prejudicial effect of this evidence is not substantially outweighed by its probative value. The application to admit Mr. Ronald’s evidence concerning the four incidents of domestic violence involving a knife is granted with the proviso that it is admissible only on the issue of planning and deliberation.

Madam Justice Julianne Parfett

Released: April 19, 2016

Footnotes

[1] See R. v. Kendall at para. 55; R. v. Creighton at para. 30; R. v. Suzack, leave to appeal to SCC refused, 152 C.C.C.(3d) vi; R. v. Marks, at paras. 14-18. [2] Kendall, at para. 55. [3] Factors are drawn from R. v. K. (C.P.) at pp. 495-497. [4] R. v. Pollock [5] At para. 106. [6] R. v. L.B. at para. 22. [7] R. v. Handy, 2002 SCC 56 at para. 139. [8] At para. 144. [9] Suzack, supra. Note 1 at para. 114. See also, R. v. Earhart, 2010 ONCA 874 at para. 78. [10] Suzack, supra. Note 1 at para. 127. [11] At para. 111. [12] At para. 144.