Her Majesty the Queen v. Gurpreet Ronald and Bhupinderpal Gill, 2016 ONSC 2970

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: February 11, 2016

Ruling on Admissibility of Hearsay Statements and Prior Discreditable Conduct of the Accused

Parfett J.

[1] The Crown requests the admission of hearsay statements of the deceased and evidence of prior discreditable conduct of the accused.

Background

[2] The accused, Bhupinderpal Gill and Gurpreet Ronald, are jointly charged with the first degree murder of Mr. Gill’s wife, Jagtar Gill. On January 29, 2014, Mrs. Gill was found dead in her home. She had been beaten and stabbed.

[3] At the time of Mrs. Gill’s death, Mr. Gill was out shopping with his daughter and nephew. 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.

[4] Surveillance, wiretap and other evidence, led the police to believe that Mr. Gill and Ms. Ronald planned Jagtar Gill’s murder. It is the Crown’s theory that divorce was not an option for Mr. Gill and the accused were determined to be together. Consequently, they planned the murder.

[5] Suzanne Shields came forward and spoke to police on January 31, 2014 about her knowledge and observations concerning a relationship between Mr. Gill and Ms. Ronald. Ms. Shields met Ms. Ronald when she was her hairdresser. When Ms. Ronald began working as a bus driver, she continued to cut Ms. Shields’ hair in her home. In addition, Ms. Shields and her husband offered advice to Mr. and Ms. Ronald as they renovated and sold various homes. On a part-time basis, Ms. Shields offered consulting services as a medium, life coach and ‘feng shui’ consultant. She met Mr. Gill when Ms. Ronald asked her to assist them in her capacity as a life coach with the complexities of their relationship. Later, Ms. Shields also met Jagtar Gill when Mr. Gill hired her to stage their house using the principles of ‘feng shui’ in order to assist with its sale. Ms. Shields’ relationship with both Mr. Gill and Ms. Ronald came to an end in the fall of 2012 when Mr. Gill became upset with the lack of progress on the sale of his home. He blamed Ms. Shields for this lack of progress. Ms. Ronald took Mr. Gill’s side in the dispute and consequently, Ms. Shields’ relationship with both of them ended.

Hearsay Statements of the Deceased

[6] As noted earlier, Ms. Shields met Jagtar Gill when she was hired by the Gills. During the period of June 2012 to approximately September 2012, Ms. Shields regularly visited the Gill house. Ms. Shields indicated that she believed she developed a relationship with Mrs. Gill.

[7] While there, Jagtar Gill spoke to her about several concerns she had regarding Ms. Ronald and the state of her marriage. Specifically, Mrs. Gill asked Ms. Shields whether her husband was cheating on her or whether Ms. Shields believed that Mr. Gill and Ms. Ronald were having an affair. She also expressed upset about the amount of time that Ms. Ronald spent in her home and the lack of privacy. Mrs. Gill told Ms. Shields that Ms. Ronald would give directions to her children and she felt she was being ‘overridden as a mom’. She told Ms. Shields she was not happy with the fact Ms. Ronald was moving into a house just around the corner from her. She believed this fact would exacerbate the problems. On one occasion, and in answer to a question about a lack of family photos, Mrs. Gill told Ms. Shields that Mr. Gill did not buy her things or bring her flowers.

[8] Ms. Shields was aware of the affair between Mr. Gill and Ms. Ronald but could not give Mrs. Gill any information given her earlier professional relationship with Mr. Gill and Ms. Ronald. On the other hand, Ms. Shields said she encouraged Mrs. Gill to talk to her husband about her concerns. Additionally, Ms. Shields suggested that Mrs. Gill speak with friends and family about the situation.

[9] Mrs. Gill also spoke with Barbara Reynolds. Ms. Reynolds was a co-worker of Mrs. Gill at Filtran Electronics. They met in approximately 1993 before Mrs. Gill was married. Ms. Reynolds indicated that her relationship with Mrs. Gill was close, although confined to work. Ms. Reynolds stated she also knew Mr. Gill, who worked at Filtran for several years. She said she had a good relationship with him.

[10] Mrs. Gill told Ms. Reynolds she was unhappy in her marriage but could not talk to her family about it. When Ms. Reynolds suggested a divorce, Mrs. Gill told her that divorce was not an option and she felt she had to stay in the marriage for the sake of her children.

Prior Discreditable Conduct of Mr. Gill

[11] Mrs. Gill was laid off from work in 2013 and, shortly before she left, she advised Ms. Reynolds that Mr. Gill beat her. She stated that sometimes she would fight back. Mrs. Gill did not provide any details of the physical abuse other than to say she could not speak to family members about the problem. No injuries were ever observed by Mrs. Reynolds.

[12] In addition, Mrs. Gill indicated to Ms. Reynolds that Mr. Gill would not allow her to have a cellphone, he did not let her visit her family and he controlled the money in the family. In Mr. Gill’s January 29th statement to police, he confirmed that his wife did not have a cellphone and that he did not ‘believe in two’ as it cost more money. On the other hand, Ms. Shields indicated that she met Mrs. Gill’s father at the house on several occasions.

Legal Principles re Hearsay

[13] The basic rule of evidence is that all relevant evidence is admissible. There are a number of exceptions to this rule and principle among them is the rule in relation to hearsay. Hearsay is presumptively inadmissible. Hearsay is defined as an out of court statement made by one person to another that a party wishes to elicit for the truth of its contents. [1] The essential defining features of hearsay are:

1. the statement is adduced as proof of its contents; and
2. the opportunity for a contemporaneous cross-examination of the speaker is absent. [2]

[14] There are a number of traditional exceptions to the hearsay rule, including an exception for statements relating to a deceased’s state of mind. [3] Though the prevailing model for hearsay evidence is the principled approach, discussed below, the traditional exceptions to the hearsay rule remain presumptively in place. [4] Evidence that comes within one of these traditional exceptions is admissible unless it can be shown in a particular case that it is either unnecessary or unreliable. [5]

[15] As with all statements, statements used to establish the declarant’s state of mind are only hearsay where adduced for the truth of their contents, not where they are admitted simply to establish that they were said. [6]

[16] The state of mind exception “arises when the declarant’s statement is adduced in order to demonstrate the intentions, or state of mind, of the declarant at the time when the statement was made”. [7] To be admissible, the statement must “be of a present existing state of mind, and must appear to have been made in a natural manner and not under circumstances of suspicion”. [8]

[17] Further, the state of mind of the declarant must be relevant to the matters before the court. [9] Under this exception, courts can admit evidence to demonstrate the existence of a particular mental state, or to support an inference that the declarant followed through on the stated intended course of action. [10]

[18] “State of mind” has been only vaguely defined in the case law and commentary. In The Law of Evidence, “state of mind” is defined as including “emotion, intent, motive, [or] plan. [11] The British Columbia Court of Appeal has identified statements expressing “pain, suffering, design, motive, intent and emotion” as falling within this exception. [12]

[19] The traditional exception for statements demonstrating contemporaneous state of mind is that they are generally made in a situation where the declarant “was bent on no expedition of mischief or wrong, and the attitude of affairs at the time entirely explodes the idea that such utterances were intended to serve any purpose but that for which they were obviously intended.” [13] These statements thus possess certain indicia of reliability. Further, contemporaneous statements may provide the court with “the best and most direct evidence of that person’s state of mind.” [14]

[20] The state of mind exception cannot be used to permit the admission of hearsay to show the state of mind or intentions of a third person. [15] However, the state of mind of a deceased may contribute to proving motive by showing that her relationship with the accused was acrimonious or that the two had recently engaged in a dispute. [16] In addition, the evidence cannot be used “to establish that past acts or events referred to in the utterances occurred.” [17]

[21] Any proposed hearsay that does not fit within a traditional exception may nonetheless be admitted if it meets the test for the principled exception to the hearsay rule. [18]

[22] The Supreme Court summarized the principled approach in R. v. Khelawon:

(a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place. (b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance. (c) In “rare cases”, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case. (d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire. [19]

[23] The two main inquiries are into the reliability and necessity of the hearsay evidence.

Reliability

[24] The question under the principled approach is threshold reliability, not ultimate reliability. The Supreme Court explained in R. v. Starr that “[t]hreshold reliability exists where there is a circumstantial guarantee of trustworthiness. It does not mean that the hearsay is true or even likely to be true, but rather it asks whether the circumstances are such that there is sufficient reliability for the hearsay to be properly assessed by the jury.” [20]

[25] The reliability requirement is aimed at identifying those cases where the inability to test hearsay evidence is overcome to the extent that the court can justify receiving the evidence. There are two main ways to meet the reliability requirement:

1. Demonstrate that there is no real concern about whether the statement is true or not because of the circumstances in which it came about; and
2. Demonstrate that the truth and accuracy can be tested through means other than cross-examination. [21]

Necessity

[26] For the purposes of this inquiry, “necessity” must be interpreted as “reasonably necessary.” [22] The Supreme Court explained in R. v. Smith that necessity refers to “the necessity of the hearsay evidence to prove a fact in issue.” [23] Hearsay evidence will be necessary where “relevant direct evidence is not, for a variety of reasons, available.” [24] These reasons can include unavailability of witnesses or the improbability of producing evidence of the same value from other sources. [25]

Legal Principles in Relation to Prior Discreditable Conduct

[27] Evidence of an accused’s prior discreditable conduct is presumptively inadmissible. However, it may be admissible if it relates to something more than bad character or propensity and its probative value outweighs its prejudicial effect. [26]

[28] In assessing the probative value of the proposed evidence, consideration should be given to such matters as:

i. The strength of the evidence; ii. The extent to which the proposed evidence supports the inferences(s) sought to be made from it (this factor will often correspond to the degree of similarity between the prior misconduct and the conduct forming the subject-matter of the charge); and iii. The extent to which the matters it tends to prove are at issue in the proceedings. [27]

[29] Such evidence may also be admitted “as part of the narrative to provide context for other events, as well as to establish motive or animus.” [28]

[30] Prior discreditable conduct may take on particular importance in the context of a domestic homicide where prior abuse may provide information concerning the nature of the relationship, demonstrate animus or establish a motive for the killing. [29] As noted in R. v. Moo:

This evidence, which often discloses misconduct other than that charged, not only demonstrates the nature of the relationship between the parties, but also may afford evidence of motive and animus relevant to establish the identity of the deceased’s killer and the state of mind with which the killing was done. [30]

[31] Evidence of prior discreditable conduct is prejudicial to an accused if it is misused by the jury. A jury may misuse such evidence in three ways:

1. By finding that the accused is a ‘bad person’ and therefore more likely to have committed the offence charged;
2. By punishing the accused for the discreditable conduct by finding him or her guilty of the offence charged; or
3. By confusing the jury and deflecting their attention from the main purpose of the trial. [31]

[32] However, if the probative value of the evidence outweighs its potential prejudicial effect, then a limiting instruction can serve to minimize any prejudice. Such an instruction will advise the jury how the evidence of prior discreditable conduct may be used and how it cannot be used. [32]

Analysis

[33] Defence counsel argue that any statements made to Ms. Shields should not be admitted because she is inherently unreliable. Defence counsel for Mr. Gill asserts that Ms. Shields has little if any credibility given her assertion she is a clairvoyant and medium and given she accepted a cash payment for the meeting with the accused and thereby defrauded Revenue Canada. I have difficulty with the assertion that a person who believes they are clairvoyant is necessarily an unreliable witness. Their belief has little to do with their capacity to observe, remember and communicate accurately – the hallmarks of reliability. [33] In addition, I do not find the fact Ms. Shields accepted a cash payment substantially undermines her ability to testify as to what Mrs. Gill told her.

[34] Defence counsel for Ms. Ronald also points out that Ms. Shields had problems with her memory and some of her testimony was vague. In addition, counsel notes that the relationship between Mr. Gill and Ms. Shields ended badly. When the Gill’s house did not sell as rapidly as Mr. Gill would have liked, he blamed Ms. Shields. According to Ms. Shields, Mr. Gill was quite abusive. Later Ms. Ronald spoke to Ms. Shields about the issue of the sale of the house and she was also abusive to Ms. Shields. Consequently, there was no further contact between the parties. All of these concerns, in my view, do not impact on threshold reliability and are better dealt with by the jury. Ms. Shields is available for cross-examination and her credibility and reliability can be examined at that time.

Relevance

[35] Crown contends that all the proposed evidence – whether hearsay statements or prior discreditable conduct – is relevant to important issues in this trial. The Crown’s theory is that the two accused were having an affair, divorce was not perceived to be an option for Mr. Gill, and they were determined to find a way to be rid of Mrs. Gill so they could be together. Consequently, evidence of animus toward the deceased and evidence of motive are relevant to that theory. In addition, evidence of the dynamic within the marriage is relevant to the issue of Mr. Gill’s involvement in the homicide.

[36] Defence contends that the statements are not relevant because they lack detail and are remote in time to the homicide. The statements are brief and consequently do not contain a lot of detail. However, Ms. Shields’ evidence provides some context for each of the statements and, in my view, the brevity of the statements does not detract from their relevance.

[37] Ms. Shields’ relationship with Jagtar Gill covers a relatively short period of time – from June 2012 to September 2012. The homicide occurs in January 2014. Therefore, there is a period of approximately 15 months between Ms. Shields’ last dealing with Jagtar Gill and the homicide. The affair between Mr. Gill and Ms. Ronald began in 2007 and either ended in September 2013 or was still ongoing in January 2014 depending on which evidence is accepted.

[38] The dynamic of a domestic relationship and the attitudes of the parties to that relationship is a pattern of behaviour that can change, but is more likely to endure. This is why such evidence is frequently admitted in cases of domestic abuse or homicide. [34] Consequently in my view, remoteness in time is less important than it might be in other circumstances. In this case, the evidence is not actually that remote in time given the affair at a minimum continued for another year after Ms. Shields’ last contact with the Gills or the Ronalds. There is some contemporaneous indication of continuing tension in the Gill marriage from another witness – Scott Fewer – and there is no evidence of an intervening event or other evidence that would suggest the dynamic of the relationship had changed. Therefore, the gap in time between the statements and the homicide does not impact their relevance.

[39] Jagtar Gill’s statements about her concerns regarding an affair between her husband and Ms. Ronald and her indication that all was not well in her home must be viewed against the backdrop of the statements made by Mr. Gill and Ms. Ronald to Ms. Shields indicating they were having an affair and demonstrating animus towards Mrs. Gill.

[40] Defence counsel also raised the nature of the relationship between Ms. Shields and Jagtar Gill as something that impacted negatively on the reliability of the statements. I disagree. I note that both Ms. Shields and Ms. Reynolds indicated that Jagtar Gill told them she could not confide in her family. In my view, that statement explains why Jagtar Gill would confide in people who are not family or even close family friends.

Statements Made by the Deceased

[41] The statements made by the deceased to Ms. Shields cover three topics: first, concern that her husband was having an affair with Ms. Ronald, second, concern that Ms. Ronald was playing too great a role in her home, and finally, that Mr. Gill did not treat her well.

[42] The first two topics clearly relate to Mrs. Gill’s state of mind. As such they are admissible as an exception to the hearsay rule. They were made in a natural manner and in circumstances that do not raise any suspicions. In addition, as noted earlier there is evidence to suggest Jagtar Gill was correct in her suspicions. This evidence provides further indicia of reliability for Mrs. Gill’s statements.

[43] The last topic, which relates to the fact that Mr. Gill did not buy her things or bring her flowers, is not evidence of Mrs. Gill’s state of mind. If this statement is to be admitted, it must meet the criteria of the principled exception to the hearsay rule. The focus of the analysis is on the issue of reliability as necessity is made out. The context in which this statement was made was a comment by Ms. Shields that a family photograph was nice, followed by a question of whether there were more such family mementos. The response in my view was spontaneous. There was no motive to lie on the part of Mrs. Gill. In my view, the context and nature of the response provide sufficient indicia of reliability to pass the threshold test.

[44] The statements made by Jagtar Gill to Barbara Reynolds are that she was unhappy in her marriage and she did not perceive divorce to be an option. Both these statements relate to the deceased’s state of mind. The indication from Ms. Reynolds is that these statements flowed from general conversations she and Mrs. Gill were having regarding their families. There is no indication of any suspicious circumstances. They are consequently admissible.

Prior Discreditable Conduct by Mr. Gill

[45] The conduct alleged by Ms. Reynolds is:

• Mr. Gill would not allow Mrs. Gill to have a cellphone;
• Mrs. Gill was obliged to give all her severance money to her husband;
• Mrs. Gill could not visit her family; and
• Mr. Gill physically abused Mrs. Gill.

[46] To be admissible, this evidence must be relevant to an issue at trial and its probative value must not be outweighed by its prejudicial effect.

[47] The first three items are relevant to the dynamic of the relationship between Mr. Gill and the deceased. The fact that Mr. Gill would not allow Mrs. Gill to have a cellphone is confirmed by Mr. Gill in his statement to police. The fact that Mrs. Gill had to give her severance money to Mr. Gill is in part corroborated by Ms. Shields’ observation that Mr. Gill was very anxious about money. Consequently, I find that this evidence has sufficient indicia of reliability to be admitted. The prejudicial effect is minimal. The discredit created by this evidence is minor and will not lead to either reasoning or moral prejudice. However, the statement that Mrs. Gill could not visit her family is directly contradicted by the fact that Ms. Shields met Mrs. Gill’s father at the Gill residence. In the circumstances, I find that this statement does not present sufficient indicia of reliability to be admitted.

[48] The evidence of physical abuse is also problematic. This evidence is very vague, contains no detail, has no timeline, has no other corroborative evidence such as injuries and was never repeated to any other person. Furthermore, there is contradictory evidence from the Gill’s daughter, who indicated she never observed any physical abuse. In my view, this evidence is entirely lacking in any indicia of reliability and consequently cannot meet the first step for admission.

Conclusion

[49] For the reasons set out above, I make the following rulings:

• The statements made by the deceased to Ms. Shields expressing concern that her husband was having an affair with Ms. Ronald, concern that Ms. Ronald was playing too great a role in her home, and that Mr. Gill did not treat her well, are admissible;
• The statements made by the deceased to Ms. Reynolds that she was unhappy in her marriage and that she did not perceive divorce to be an option are admissible;
• The alleged prior discreditable conduct alleged by Ms. Reynolds that Mr. Gill would not allow Mrs. Gill to have a cellphone, and that Mrs. Gill was obliged to give all her severance money to Mr. Gill, are admissible;
• The statement that Mr. Gill would not allow Mrs. Gill to visit her family and the alleged prior discreditable conduct outlined by Ms. Reynolds that Mr. Gill physically abused Mrs. Gill is not admissible.

Madam Justice Julianne Parfett Released: May 02, 2016

Footnotes

[1] R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787 at para. 34. [2] Ibid, at para 35. [3] R. v. Starr, 2000 SCC 40, [2002] 2 SCR 144, at para. 168. [4] Khelawon, at para. 42. [5] Starr, at para. 42. [6] See e.g. R v. Borbely, 2013 ONSC 45, at para. 7. [7] R. v. Smith, [1992] 2 S.C.R. 915, at p. 925. [8] Starr, at para. 168. [9] R. v. Simpson, [1988] 1 S.C.R. 3, at p. 22. See also R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at paras. 59-66. [10] Starr, at para. 169. [11] David Paciocco & Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law, 2015) at p. 188; same definition from earlier edition cited favourably in R. v. Klimovich, 2012 ONSC 1202, at para. 29. [12] R. v. Chahley (1992), 72 C.C.C. (3d) 193, at p. 207. [13] Starr, at para. 7. [14] Smith, at p. 926. [15] Griffin, at paras. 55-57. [16] Ibid, at para. 63. See also R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at paras. 51-52. [17] Smith, at p. 927. [18] Khelawon, at para.42. [19] Ibid, at para. 42 [20] Starr, at para. 54 [21] Khelawon, at paras. 61-63. [22] R. v. Khan, [1990] 2 S.C.R. 531, at p. 546. [23] Smith, at p. 933. [24] Ibid, at p. 934. [25] Ibid. [26] R. v. J.A.T., 2012 ONCA 177, 290 O.A.C. 130, at paras. 51, 54. [27] R. v. L.B. (1997), 35 O.R. (3d) 35 (C.A.), at para. 23. [28] J.A.T., at para. 54. [29] R. v. Cudjoe, 2009 ONCA 543, 251 O.A.C. 163, at para. 64. [30] 2009 ONCA 645, 253 O.A.C. 106, at para. 98. [31] J.A.T., at para. 52. [32] Ibid, at para. 53. [33] See R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at para. 32. [34] See R. v. D.S.F. (1999), 43 O.R. (3d) 609 (C.A.), at para. 22; R. v. D.D. (2005), 204 O.A.C. 55 (C.A.), at para. 16; and R. v. P.S., 2007 ONCA 299, 223 O.A.C. 293, at para. 36.