COURT FILE NO.: CR14-2310 DATE: 2016/05/02 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: April 5 & 8, 2016
Reasons for decision re Section 8 Charter
Parfett J.
[1] The Applicant, Gurpreet Ronald requests a finding that the General Warrant issued pursuant to s. 487.01 of the Criminal Code of Canada [1] and granted on February 25, 2014 breached s. 8 of the Canadian Charter of Rights and Freedoms [2] and any evidence acquired as a result of that warrant be excluded pursuant to s. 24(2) of the Charter. For the reasons set out below, I find there was no breach of s. 8 of Charter and the warrant is therefore valid.
Background
[2] The two accused, Bhupinderpal Gill and Gurpreet Ronald are jointly charged with the first degree murder of Mr. Gill’s wife, Jagtar Gill.
[3] On January 29, 2014, Jagtar Gill was found dead in her residence in Barrhaven, Ontario. During the examination of the scene, officers seized a piece of blue latex glove found near the deceased’s body. This piece of glove was examined for DNA and it was determined that it contained the DNA of two females, one of whom was the deceased. The other source was unknown.
[4] On January 31, 2014, police learned that the two accused had been having an affair for several years. Between February 1, 2014 and February 28, 2014, they conducted surveillance on Gurpreet Ronald. Amongst other goals, the police hoped to obtain cast-off DNA. They were not successful and ultimately they concocted a ruse in order to obtain Ms. Ronald’s DNA. They sought the General Warrant in order to trespass on Ms. Ronald’s property and conduct the ruse.
[5] The DNA collected from Ms. Ronald as a result of the ruse was a match for the DNA found on the piece of latex glove.
Legal Principles
[6] A warrant is presumed valid and the Applicant bears the onus of demonstrating her rights have been violated under s. 8 of the Charter and that the evidence obtained pursuant to the warrant should be excluded pursuant to s. 24(2) of the Charter. [3]
[7] In assessing the validity of a search warrant, the reviewing justice must examine the material that was before the issuing justice as amplified on review to determine whether there was any basis for the order. This jurisdiction was described by the Supreme Court of Canada in R. v. Garofoli as follows:
The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge. [4]
[8] A number of decisions subsequent to R. v. Garofoli have confirmed the limited jurisdiction of the reviewing judge. In R. v. Araujo, the Court affirmed that,
In looking for reliable information on which the authorizing judge could have granted the authorization, the question is simply whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued. [5]
[9] In R. v. Pires, the Court stated,
[T]here is a relatively narrow basis for exclusion. Even if it is established that information contained within the affidavit is inaccurate, or that a material fact was not disclosed, this will not necessarily detract from the existence of the statutory pre-conditions. The likelihood that the proposed challenge will have an impact on the admissibility of the evidence will depend on the particular factual context. In the end analysis, the admissibility of the wiretap evidence will not be impacted under s. 8 if there remains a sufficient basis for issuance of the authorization. [6]
[10] Section 487.01 of the Criminal Code provides,
487.01 (1) A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 may issue a warrant in writing authorizing a peace officer to, subject to this section, use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person’s property if
(a) the judge is satisfied by information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use of the technique, procedure or device or the doing of the thing;
(b) the judge is satisfied that it is in the best interests of the administration of justice to issue the warrant; and
(c) there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done.
[11] The statutory criteria for issuance of a General Warrant are therefore that there are reasonable and probable grounds to believe the following:
- An offence has been committed;
- Information concerning the offence will be obtained through the use of the proposed technique;
- The judge is satisfied it is in the best interests of the administration of justice to issue the warrant; and
- No other provision that would provide for a warrant authorizing the proposed technique.
[12] Reasonable and probable grounds are defined as ‘credibly based probability’ and the standard ‘envisions a practical, non-technical and common-sense probability as to the existence of the facts and the inferences asserted.’ [7]
[13] An affiant is expected to outline all information he or she asserts leads to the conclusion that evidence of a crime will be obtained through the use of the proposed technique. In so doing, the affiant must provide all information that is relevant and material to the statutory criteria as well as the limitations of any of the information in the affiant’s possession. [8] Importantly in the context of this application, the Court of Appeal also noted that,
There is no obligation on applicants to anticipate, and to explain away in advance, every conceivable indicia of crime they did not see or sense and every conceivable investigative step they did not take at the time in order to counter the creative arguments of able defence counsel on a review hearing many months or years after the event. [9]
[14] While circumstances may occur where an affiant will have to negative something they did not do, in most cases the fact that something was not seen, sensed or done “will lead to the sensible inference that whatever it is, was not seen, not heard or not done”. [10]
Analysis
[15] Defence counsel for Ms. Ronald alleges that the statutory pre-conditions for a s. 486.01 General Warrant have not been met. He concedes there is evidence that an offence had been committed and that the proposed technique – entering on Ms. Ronald’s property in order to have her complete a survey and lick an envelope – would yield information concerning the offence. In addition, it is agreed by the parties that s. 487.01(1)(c) is not applicable to this case. However, he contends that given the material non-disclosure and misleading information that was provided in the Information to Obtain (ITO), the issuing judge could not have been satisfied it was in the best interests of the administration of justice to issue the warrant.
[16] Crown argues – and I agree – there was neither material non-disclosure, nor misinformation. With all due respect to Defence counsel for Ms. Ronald, he is trying to spin gold from straw.
[17] The material non-disclosure relates to the failure of Det. Benson to mention that on February 6, the Ronalds’ garbage was seized, searched and photographed, but ultimately discarded. Defence counsel contends that this garbage contained the DNA the police sought and that the only basis for seizing the garbage was to obtain a DNA sample. On cross-examination, Det. Benson indicated that while he was aware the police had seized the Ronalds’ garbage, he did not know why they had done so. He disagreed with defence counsel’s suggestion that the garbage was a ‘gold mine’ of DNA. He advised the court that as far as he was aware, garbage would contain the DNA of a great many individuals and therefore was useless as a comparator to the unknown female DNA found at the scene. No evidence to the contrary was presented. In any event, the evidence is clear that no DNA sample was taken from the garbage.
[18] Furthermore, defence counsel alleges that the statement at paragraph 74 of the ITO that ‘Ronald is not an individual who discards items that may contain suitable DNA’ is an example of Det. Benson misleading the issuing justice. He contends there were in fact several opportunities for the police to obtain a suitable DNA sample, but they did not take those opportunities so as to obviate the necessity of the General Warrant. Specifically, on February 11 Ms. Ronald was seen bringing several pizza boxes into her house and also on February 11 she was observed at a cinema with her family. She bought drinks and popcorn. Finally, on February 13, Ms. Ronald was seen chewing gum. Defence counsel suggests that on each of these occasions police had opportunities to obtain Ms. Ronald’s DNA but they did not take them.
[19] Det. Benson was questioned about these opportunities to obtain cast-off DNA. He agreed these events occurred but denied any opportunity arose for obtaining an appropriate DNA sample. The surveillance notes state the following with respect to the observations made on February 11:
12:20 – Target [Ms. Ronald] out of 1 for 1 Pizza with 4 boxes of pizza and back into van. 12:57 – Van inside garage at [Ronald residence]. Target got 4 pizza boxes out of van and into house. 17:05 – Target and aunt over to the food counter [at the cinema], bought one large popcorn, one large drink. 4 kids have one straw each. Target and aunt no straw. Target handed one of the kids the popcorn and one of the large drinks.
[20] On February 13, the following observations are made:
16:07 – Target observed talking on cell phone while chewing gum. 23:08 – Target never exited bus or provided opportunity for cast-off seizure to this point.
[21] Defence counsel did not explain how these observations amounted to opportunities to obtain cast-off DNA of Ms. Ronald. In my view, the most that can be said of these observations is that they might have presented opportunities to collect Ms. Ronald’s DNA, but they did not.
[22] The garbage collection is an example of non-disclosure that is immaterial. The evidence does not reveal why the garbage was collected and I cannot agree with Defence counsel that the only possible reason for its collection was to obtain DNA relating to his client. There may have been other reasons. We will never know. The only conclusion that can be drawn from this evidence is that no DNA evidence was sought and the explanation proffered for this fact is reasonable. At paragraph 74, Det. Benson states that the police attempted to obtain Ms. Ronald’s DNA and failed. Even if the fact of the garbage collection had been added to the ITO, it would not have changed anything about paragraph 74.
[23] The same must be said for the observations made on February 11 and 13. No DNA was obtained. Paragraph 74 says no DNA was obtained. It is an accurate statement. I find there is no material non-disclosure or misinformation contained in that paragraph.
[24] Even if I agreed with Defence counsel that paragraph 74 contained material non-disclosure and misinformation and I excised it from the ITO, it would have no impact on the reliability of the remaining information or the fact there were reasonable and probable grounds to believe that obtaining a sample of DNA from Ms. Ronald would provide information in relation to the murder of Jagtar Gill.
[25] Viewed as a whole, the ITO contains the following salient, reliable information:
- Jagtar Gill was killed during the morning hours of January 29, 2014;
- Bhupinderpal Gill was not in the home when the death occurred;
- Mr. Gill persuaded his daughter to leave the house with him and join him while he ran several errands;
- Jagtar Gill was therefore left alone in the house and she was recovering from recent surgery;
- The phone wires in the basement had been removed from their box rendering the land line useless;
- Mr. Gill and Ms. Ronald were in communication that morning;
- Mr. Gill and Ms. Ronald were believed to be in a relationship;
- Mr. Gill and Ms. Ronald had told Ms. Shields in 2010 they wanted to be together and both demonstrated rancour towards Jagtar Gill;
- Mr. Gill told Ms. Shields that divorce was not an option for him;
- Mr. Gill washed knives found near the body of Jagtar Gill and concealed a steel bar containing Mrs. Gill’s blood;
- Police found a piece of a latex glove near the body of Jagtar Gill;
- This glove yielded two DNA samples; one of which was that of Jagtar Gill and one of which was that of an unknown female; and
- When Ms. Ronald was interviewed on January 30, 2014, she was seen to be concealing a bandage on her left hand. She told police she had cut herself opening a potato bag.
[26] In my view, this information was sufficient to justify the issuance of the warrant. Consequently, I find there was no breach of s. 8 of the Charter of Rights. Given this finding, I do not need to address the issue of s. 24(2) of the Charter.
Madam Justice Julianne Parfett
Released: May 2, 2016
COURT FILE NO.: CR14-2310 DATE: 2016/05/02 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN – and – Gurpreet Ronald and Bhupinderpal Gill Defendants Ruling on admissibility of statements Parfett J.
Released: May 2, 2016
[1] R.S.C. 1985, c. C-46 [2] Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11. [3] R. v. Pires, 2005 SCC 66, [2005] 3 S.C.R. 343, at paras. 12 & 13. [4], [1990] 2 S.C.R. 1421, at p. 1452. [5] 2000 SCC 65, [2000] 2 S.C.R. 992, at para 51 [emphasis in original]. [6] Pires, at para. 30. See also R. v. Beauchamp, 2015 ONCA 260, 333 O.A.C. 260. [7] R. v. Sanchez (1994), 20 O.R. (3d) 468 (G.D.), at paras. 28 and 29. [8] R. v. Nguyen, 2011 ONCA 465, 281 O.A.C. 118, at para. 51 [9] Ibid. [10] Ibid, at para. 50.