CITATION: R. v. Punia, 2016 ONSC 2988

COURT FILE NO.: CR-14-250

DATE: 2016-02-24

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Kelly Slate, Veronica Puls, and Keeley Holmes on behalf of the Crown

• and -

MANDEEP PUNIA and SKINDER PUNIA

Robert Richardson, Eric Neubauer, and Usma Ashraf on behalf of the Accused Mandeep Punia Peter Copeland and Kendra Stanyon, on behalf of the Accused Skinder Punia

HEARD: October 12, 15, 16, 19, 20, 21, 22, 23, 26, 27, 28, 29, November 9, 12, 13, 23, 24, December 1, 2015

K.G.B. RULING[^1]

COROZA, J.

Overview

[1] Mandeep Punia is charged with second-degree murder. It is alleged she killed her sister-in-law, Poonam Litt.

[2] Skinder Punia is charged with being an accessory after the fact to that murder.

[3] Mandeep and Skinder are married.

[4] Kulwant Litt is the father of Mandeep. He is the father-in-law of Skinder. He was the father-in-law of Poonam Litt. Mr. Litt's son, Manjinder was Poonam's husband. Manjinder and Mandeep are siblings.

[5] Kulwant is also charged with being an accessory after the fact to murder. He has given four statements that are the subject of this hearsay voir dire. Arguably, some of the statements implicate Mandeep and Skinder.

[6] The Crown’s theory of the case is that on February 4, 2009, Mandeep got into a fight with Poonam. Kulwant was initially present but went to get Skinder to help resolve the conflict. When he returned, Mandeep had stabbed Poonam. Kulwant took Poonam’s two-year-old daughter Kiranjot from her and cleaned her up. Manjinder and his mother Supinder Litt were in India at the time.

[7] The Crown alleges that Poonam’s body was wrapped up in a plastic mattress bag and placed in a green family minivan. Surveillance at a neighbouring residence recorded the van leaving at about 1:00 am on February 5, 2009, and returning at 4:00 am. During this period, it is alleged that Kulwant and Skinder drove to Caledon and disposed of the body at 17535 Willoughby Road. They returned to the site several days later and attempted to remove clothing and burn the body, but had limited success given the cold temperatures.

[8] Mandeep, Skinder and Kulwant told the police that Poonam had left on the morning of February 5, 2009, to walk to work but never arrived. The aforementioned surveillance did not record Poonam on that morning, although it had on previous dates.

[9] In February 2012, the remains of Poonam’s body were discovered by the property owners of 17535 Willoughby. Around this time, Kulwant started talking about the events of February 2009. He spoke with a relative in India, Mohan Singh Thind, about the murder. Mohan later recorded a subsequent conversation with Kulwant in which the events as alleged by the Crown are detailed (Statement #1). Mohan told Manjinder, who then became a police agent and recorded conversations between himself and Kulwant on April 9, 2012, after Manjinder picked Kulwant up at the airport and Kulwant directed Manjinder to the location of Poonam’s body (Statement #2). Kulwant then gave a video statement to the police on April 12, 2012, during the course of which he was arrested (Statement #3) and a video statement on April 30, 2012, after he was arrested (Statement #4).

[10] This case was tried before Lemon J. and a jury in May of 2015. At that trial Kulwant testified that he knew nothing about the death of Poonam Litt. Accordingly, the Crown brought an application pursuant to section 9 of the Canada Evidence Act, R.S.C. 1985, c. C-5, and the principles of R. v. B.(K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740.

[11] Prior to ruling on the issue, Lemon J. declared a mistrial. On consent, the parties have agreed to re-litigate the K.G.B. issue before me, but prior to jury selection. On consent, the parties filed Kulwant’s evidence before Lemon J. for the purpose of this voir dire and they agree that necessity has been established since Kulwant has given testimony that is inconsistent with the prior statements from 2012. As Watt J.A. noted in R. v. Taylor, 2015 ONCA 448, 325 C.C.C. (3d) 413, “[t]he authorities regard recantation as satisfaction of the necessity requirement” (at para. 69). The Crown again brings an application for the admission of four hearsay statements given by Kulwant for the truth of their contents.

Facts on the Voir Dire

[12] I heard from seven witnesses on this voir dire.[^2] Counsel also responsibly filed a number of agreed statements of fact as Exhibits and very comprehensive application records.

[13] I do not intend to provide a comprehensive summary of the evidence for the purposes of this ruling. I have listened to the witnesses and reviewed the application records. The following chart summarizes the important facts for this ruling:

February 4, 2009

• Alleged date of the murder
• Manjinder and Supinder are in India
• Poonam is believed to be seen on a neighbour’s surveillance camera walking to work in the afternoon
• Poonam’s last cell activity is at 2:39 pm
• Red Honda believed driven by Kulwant is seen leaving the neighbourhood (believed he took the car to Poonam)
• Kulwant is believed to be seen returning on foot
• Red Honda believed to be driven by Poonam returns around 8:00 pm

February 5, 2009

• Green van believed to be the family van seen leaving at 1:00 am, returning at 4:00 am
• Poonam doesn’t show up for work – Her employer, Dr. Sharma, makes calls looking for her
• Poonam is reported missing

February 6, 2009

• Det. McCann and Cst. Aujla attend 159 Cordgrass Cres.

February 7 or 8, 2009

• Manjinder and Supinder return from India

February 11, 2009

Mandeep Punia, Skinder Punia and Kulwant Litt give videotaped statements to the police

July 18, 2009

Kulwant polygraph interview – reiterates story from February 11, 2009 interview

September 2009

Cameron Sylvester locates part of bra and dark brown hair on Willoughby Road property – not reported

March 20, 2010

• Kulwant post-polygraph interview with the police – maintains story
• Search warrant executed at 159 Cordgrass Cres. – blood evidence search

May 13, 2010

Mandeep Punia and Kulwant Litt are arrested for the murder of Poonam Litt, but both are later released without charge – Cst. Atwal arrests Kulwant

April 2011

• 159 Cordgrass Cres. is sold
• Manjinder, Supinder and Kiranjot rent the basement apartment from the new owners
• Kulwant moves to Malton

February 22, 2012

Poonam’s remains are discovered in Caledon

February 23, 2012

• First OPP press release
• Article published on thestar.com

February 24, 2012

• Second OPP press release
• Article published in the print Toronto Star

February 28, 2012

• Manjinder Litt gets in touch with PC Aujla and forwards him the recording from Mohan Singh Thind
• Kulwant Litt flies to India, having quit his job. He has a return ticket for July 29, 2012

March 20, 2012

Manjinder Litt returns to Canada and becomes a police agent

March 23, 2012

• Manjinder calls Kulwant in India as a police agent
• Manjinder convinces his father to come back to Canada earlier

April 9, 2012

• Kulwant returns to Canada from India at Manjinder’s request (as a police agent)
• Kulwant and Manjinder travel to an area in Caledon in close proximity to where the remains were discovered

April 10, 2012

Manjinder recorded conversations with Kulwant continue

April 11, 2012

Manjinder recorded conversations with Kulwant continue

April 12, 2012

• Cst. Aujla and Sgt. Cowan meet with Kulwant and Manjinder at a hotel and attempt to recruit Kulwant as an agent
• Kulwant provides a video statement to the police – PC Atwal conducts the interview. Kulwant is arrested for accessory after the fact partway through the interview

April 14, 2012

Second search at 159 Cordgrass Cres. – Blood saturation stains located in the kitchen area

April 30, 2012

Kulwant provides a video statement to the police

June 18, 2013

Translated transcript of a phone call with Mohan Singh Thind tape allegedly certified by Rajinder Singh

May 2015

First trial starts in front of Lemon J. with a jury

June 22, 2015

Kulwant testifies in front of the jury at the first trial

June 23, 2015

Kulwant testifies on the hearsay application at the first trial

Content of the Statements

[14] I have reviewed all four statements. The Crown has provided helpful summary charts of the contents of the four statements. They can be found at Vol. I, tab 4 of the Crown’s Application Record. I will very briefly summarize them here:

1. Statement #1 – Audio recorded phone conversation – Kulwant Litt and Mohan Singh Thind – February 2012

• Mohan Thind testified before me that Kulwant had called a few days prior to recording this call and he discussed the murder and disposal of Poonam’s body. Mohan testified that Kulwant wanted Mohan to pass this information to his son Manjinder. Mohan decided to record the conversation if Kulwant called back. He believed that the second call occurred in late February but he could not recall the specific date. The call is entirely in Punjabi. The call has been translated by Rajinder Singh.
• Kulwant discusses how Skinder would become angry when Kulwant dropped off the car for Poonam in the cold weather.
• There is description of the fight, the stabbing, and the attempts to destroy the body and clothing.

2. Statement #2 – Audio recorded conversation – Kulwant Litt and Manjinder Litt – April 9, 2012

• Manjinder was acting as a police agent. He wore a bodypack recording device. After picking up Kulwant from the airport Kulwant and Manjinder drive to the scene of where the body was dumped, on Kulwant’s instructions. During the drive, Kulwant describes the murder at the outset of the recording. They are also followed by police officers and surveillance is conducted.
• There is a discussion of:
  • Skinder’s displeasure with Kulwant taking the car to Poonam
  • An affair (possibly Mandeep’s)
  • Detailed parsing of the fight, the stabbing, the knife used and subsequent suffocation with a pillow
  • Disposal of body/location, and the use of polythene sheet to wrap body

3. Statement #3 – Videotaped Police Interview – April 12, 2012

• After initially meeting Cst. Aujla and Sgt. Cowan at the Monte Carlo Inn, Kulwant subsequently attends the homicide bureau of the Peel Regional Police. He is initially out of custody, not under arrest, and he is not cautioned. There is no KGB warning at the outset of the video and the statement is not sworn.
• There is a discussion of:
  • Skinder’s displeasure with Kulwant taking the car to Poonam
  • The fight, the stabbing and subsequent suffocation of Poonam
  • The clean-up and disposal/destruction of body
  • Cover-up of what happened
• At one point during the interview, Cst. Atwal formally makes Kulwant an offer to act as a police agent and he is given his right to counsel. Kulwant agrees.
• However, during the interview, that offer is rescinded, Kulwant is arrested, given his right to counsel, is cautioned and the interview continues.

4. Statement #4 – Videotaped Police Interview – April 30, 2012

• At this time Kulwant is in custody. Cst. Aujla speaks to him on video. There is no KGB warning and the video is not sworn.
• There is a discussion of “duty to tell the truth”.
• Kulwant says: “I am trapped here because of telling the truth … If I had lied to you I wouldn’t have been trapped”.
• Kulwant says he did not see whether Poonam stabbed herself or if Mandeep stabbed her. He also states that he did not see whether Skinder suffocated Poonam with pillow or not.

The Issue

[15] Kulwant’s statements are hearsay. Hearsay evidence is presumptively inadmissible. However, the Crown seeks admission of the statements pursuant to the principled exception to the hearsay rule. The exception is a case by case exception based on the criteria of necessity and reliability.

[16] The parties agree that necessity has been established because Kulwant recanted the four statements at the previous trial and it is anticipated that will not change in this trial. The accused oppose the admission of Kulwant’s statements on the basis that they lack the sufficient indicia of reliability to be admitted for the truth of their contents.

The Law

[17] As the trial judge, on this motion I make a preliminary assessment of threshold reliability. If I am satisfied that the Crown has met its burden, it is for the jury to decide what ultimate reliability to assign the statements. The Crown carries the burden of establishing necessity and reliability on a balance of probabilities.

[18] It is important to remind myself that I play a limited role on this voir dire. It is crucial to the integrity of the fact-finding process that ultimate reliability not be pre-determined on the voir dire. I am exercising only an evidentiary gatekeeping function. Watt J.A. noted in Taylor, at para. 70:

It is for the trial judge to determine whether the proponent of the evidence has established threshold reliability. Where the evidence is admitted, it is for the jury to determine how much or little they will believe of it and rely upon it in reaching their conclusion about the adequacy of the case for the Crown.

[19] Since the central underlying concern with hearsay is the inability to test the evidence, the reliability criterion seeks to identify those cases in which the general inability to challenge memory, perception, narration, and sincerity has been sufficiently overcome to justify receiving the evidence despite its presumptive inadmissibility.

[20] The reliability requirement is usually met in two different ways, neither of which excludes consideration of the other: see R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 61-63. One way is for the Crown to demonstrate that no real concern arises from the fact that the statement is offered in hearsay form because its truth and accuracy can nevertheless be sufficiently tested. In other words, there is a presence of adequate substitutes for testing truth and accuracy (“procedural reliability” factors).

[21] The other way is to demonstrate that there is no real concern about the truth of the hearsay statement because of the circumstances in which it was made (“substantive reliability” factors). This involves a content based assessment.

[22] Although these two routes to reliability are not mutually exclusive, the appellate jurisprudence on this issue suggests that in the case of a prior inconsistent statement where the declarant is available, the inquiry commences with an assessment of whether there are factors that support procedural reliability. If these factors are sufficient to test the statement’s truth and accuracy, then a consideration of substantive reliability is not necessary and the ultimate reliability of the statement can be assessed by the trier of fact: see R. v. Devine, 2008 SCC 36, [2008] 2 S.C.R. 283, at paras. 24 and 29.

[23] The appellate jurisprudence also holds that where the declarant is available for cross-examination, the admissibility inquiry is less focused on the question of whether there is reason to believe the statement is true, than it is on the question of whether the trier of fact will be in a position to rationally evaluate the evidence. The trial judge looks for adequate substitutes for the process that would have been available if the evidence had been presented in the traditional form: through the witness, in court in the presence of the trier of fact, under oath or affirmation, and subject to contemporaneous cross-examination.

[24] The jurisprudence of our Court of Appeal has held that the availability of the declarant for meaningful cross-examination at trial goes a long way towards satisfying the requirement for adequate substitutes and will often suffice to establish threshold reliability. When the statement is recorded on video, the case for admission is enhanced. Moldaver J.A. (as he then was) in R. v. Trieu (2005), 2005 CanLII 7884 (ON CA), 74 O.R. (3d) 481 (C.A.), put it this way, at para. 76:

Accepting that cross-examination “goes a substantial part of the way” towards ensuring that the triers of fact can adequately assess reliability see R. v. U. (F.J.), [1995 CanLII 74 (SCC)](https://www.canlii.org/en/ca/scc/doc/1995/1995canlii74/1995canlii74.html), [1995] 3 S.C.R. 764, at para. [39]], I believe that when the triers also have a videotape of the declarant making the statement, the two in combination go virtually “all of the way” to providing the triers with the tools they need to adequately assess reliability.

[25] The majority of the Supreme Court of Canada in R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 35, confirms that the most powerful factor favouring admissibility of a prior inconsistent statement is the opportunity to cross-examine at trial.

[26] In summary, cross-examination goes a long way to satisfying the requirement for adequate substitutes for testing the evidence.

[27] If, however, the trial judge concludes that threshold reliability depends on the inherent trustworthiness of the statement (i.e. substantive reliability), the judge must inquire into those factors tending to show that the statement is true. Justice Watt in R. v. J.M., 2010 ONCA 117, 251 C.C.C. (3d) 325, helpfully set a list of non-exhaustive factors that judges may look to in this “content based assessment”, at para. 54:

The proponent of a hearsay statement who attempts to satisfy the reliability requirement on the basis of the circumstances in which the statement was made does not have the luxury of scrolling down a fixed and exhaustive list of factors. Relevant circumstances include, but are not limited to:

i. the timing of the statement in relation to the event reported;

ii. the absence of a motive to lie on the part of the declarant;

iii. the presence or absence of leading questions or other forms of prompting;

iv. the nature of the event reported;

v. the likelihood of the declarant’s knowledge of the event, apart from its occurrence; and

vi. confirmation of the event reported by physical evidence. [Emphasis added.]

[28] The approach to assessing threshold reliability is functional and the relevance of any one factor will depend on the particular dangers arising from the hearsay nature of the evidence and the available means, if any, of overcoming them.

[29] Finally, if the criteria of necessity and reliability are established, I still retain a residual discretion to exclude the statement where, to give some examples:

1. it is the product of police coercion or other misconduct that would “undermine the veracity of the indicia of reliability” or bring the administration of justice into disrepute: B.(K.G.), at pp. 801-804; R. v. Hamilton, 2011 ONCA 399, 271 C.C.C. (3d) 208, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 547, [2012] S.C.C.A. No. 46, [2012] S.C.C.A. No. 151, [2012] S.C.C.A. No. 166, at paras. 140-148;

2. the oath, warning, and video record were made in circumstances that make them suspect and “undermine the veracity of the indicia of reliability”: B.(K.G.), at p. 801; Hamilton at paras. 143-144; or

3. the potential prejudicial effect of the evidence exceeds its potential probative value: R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 51; R. v. Humaid (2006), 2006 CanLII 12287 (ON CA), 81 O.R. (3d) 456 (C.A.), at para. 57; R. v. Chretien, 2014 ONCA 403, 309 C.C.C (3d) 418, at para. 45.

Positions of the Parties

Crown’s Position

[30] Ms. Slate argues that Kulwant is available for cross-examination and the statements are recorded in some fashion. The two statements to the police were video-taped. The statements to Mohan Thind and Manjinder Litt were audio recorded. The absence of a sworn statement or KGB warning does not render the statements inadmissible. Ms. Slate reminds me that the jurisprudence has held that the presence of an oath is the least important element of the KGB trinity and Kulwant was aware of the solemnity of the statements.

[31] Ms. Slate goes on to argue that if procedural reliability alone does not establish threshold reliability, in combination with substantive reliability, it does. There is ample evidence to support the narrative offered in Kulwant’s 2012 statements:

1. Surveillance evidence showing Poonam did not leave the house on February 5, 2012;

2. Evidence the family van left at 1:00 am and returned at 4:00 am;

3. Blood saturation stains and a spatter stain in an area of the house consistent with where Kulwant indicated Poonam was stabbed and lay following her death;

4. Poonam’s remains were located where Kulwant said he and Skinder disposed of the body and a cut and burned bra was located nearby; and

5. Supinder Litt has testified on this voir dire that when she returned from India, she found a sock with blood on it in the basement. When she confronted Kulwant about the sock he told her what had happened. Apparently, Mandeep heard her crying and came downstairs and apologized for making a mistake.

[32] These factors support the trustworthiness of the statements, and thus substantive reliability is enhanced.

Respondent’s Position

[33] Mr. Copeland primarily argued the application on behalf of both accused. He raises several issues regarding the procedural reliability of the statements:

1. The absence of an oath, affirmation, any strong warning to tell the truth;

2. The incomplete nature of some of the recordings;

3. The absence of an adequate record of some the interactions between Kulwant and the police prior to Statement #3 that would prevent the jury from having an accurate account of what happened during these periods of time prior to the video interview;

4. The impact of the quality of translation (or lack thereof) on the jury’s ability to assess the statements; and

5. The impact of the quality of translation (or lack thereof) on the accused’s ability to cross-examine Kulwant on the statements.

[34] Mr. Copeland argues that Kulwant had a strong motivation to lie during these statements. Kulwant had ample opportunity to fabricate in the three years following the events, and had a motive to present a version of events which might lead to reconciliation with his son. He was arrested for this murder in May 2010, but released without charge. Kulwant had a strong incentive to minimize his role and shift responsibility to others. Kulwant repeatedly lied to police during the investigation and is a classic unsavory witness whose testimony ought to be subject to a Vetrovec instruction. His evidence therefore is inherently unreliable.

[35] Mr. Copeland downplays the confirmatory evidence identified by the Crown. He argues that this evidence does not pertain to the essential issues in this trial – the identity of the killer, motive for her death, and the degree of culpability of any perpetrator. Mr. Copeland also challenges the evidence of both Manjinder and Supinder on this voir dire and submits that the evidence is so unreliable that it cannot be used to confirm Kulwant’s statements.

Analysis

Statement #1

[36] Statement #1 is the audio taped phone conversation between Kulwant and Mohan Singh Thind in February 2012.

[37] I am not satisfied that threshold reliability has been established.

[38] First, while an audio record is available, it is incomplete. Mohan Thind was not an impressive witness, in the sense that he has a poor recollection of events. As Mr. Copeland points out, the phone records filed as an exhibit indicate we only have about 10 minutes of a 27 minute call. I am unable to accept Mohan’s evidence that the important part of the call was recorded and the missing portion only consisted of introductory pleasantries.

[39] Second, we do not have a record of the first conversation earlier in February 2012 which provides the context for this (partially) recorded call. Mohan testified that it was this call where Kulwant told him about the details of the murder but Mohan did not make notes and is a poor witness.

[40] Third, I am satisfied that there are questions about the accuracy of the transcribed translation of this recorded call. If there are issues with the accuracy of the transcript, it becomes unclear whether or not the jury has a complete record of the statement. This is especially true where the transcript is a translation of a foreign language. In this case, the Crown relied on a certified translator to translate this statement – Rajinder Singh.

[41] Mr. Singh was skillfully cross-examined by Mr. Copeland. After hearing his evidence, I am satisfied that the quality of the source audio recording creates serious issues with the accuracy of this transcript.

[42] In my view, Mr. Singh’s inability to translate translation accurately is directly related to the quality of the audio source. Simply put, the translation of the call is bad because the audio is bad. Mr. Singh testified that translating this call was difficult because there was background noise from a temple, and Kulwant had a tendency to speak very quickly.

[43] As for substantive reliability, there has been no real suggestion that Mohan induced Kulwant to give the statement and given the circumstances, it is more of a spontaneous record. Mohan is not a police officer and he did not speak to Kulwant regularly. It appeared to be a call out of the blue. However, in the end, I am concerned that the jury does not have a complete record to test the truth and accuracy of the statement. It seems to me that the first call is required to understand the context of the recorded second call. Applying the functional approach, I find that threshold reliability has not been met.

Statement #2

[44] Statement #2 consists of a number of “bodypack” audio recording sessions recorded on April 9, 2012. After the Mohan Thind call became known to Manjinder, he became a police agent and convinced Kulwant to return to Canada. Manjinder wore a hidden bodypack recording device which captures the conversation between himself and his father. The audio commences with Manjinder picking Kulwant up at the airport. They discuss in detail what Kulwant said happened to Poonam on February 4, 2009. From the airport, Kulwant directs Manjinder to the location where Poonam’s body had been disposed of. Police aircraft surveillance tracked the pair’s movements.

[45] There is a complete audio record from the time Manjinder meets Kulwant at the airport to the site where Poonam’s body was left and afterwards. Mr. Copeland says that this is not a complete record. He argues that since Rajinder Singh’s translation of Statement #1 was inadequate, I can infer that Statement #2 (which was also translated by Mr. Singh) is also littered with errors. I disagree.

[46] While Mr. Copeland pointed out a few sessions from Statement #2 that may have been missing some words and a phrase, I do not think that I can simply extrapolate the inadequacy of the translation of Statement #1 to the translation of Statement #2. The quality of the audio captured by the bodypack recording device is clearly better than that of the recorded phone conversation.

[47] Moreover, there is confirmatory evidence. First, while making these statements, Kulwant is in the act of taking Manjinder to the area where Poonam’s body was discovered in Caledon. The surveillance confirms that this generally in the location where the Poonam’s remains were actually found.

[48] I am not persuaded that I should find that piece of confirmatory evidence is suspect because there is a strong possibility that Kulwant was tipped off to the discovery of the remains after it was reported in English media. I acknowledge that this is a possibility but I observe that the reports were imprecise in their description of the location of the body. There is also no direct evidence that Kulwant read any of the published statements about the location of the body. His evidence before Lemon J. was that he did not really read English newspapers. While there may be an available inference that he read the media coverage about the discovery of the remains in this case, I am not prepared to draw that inference on this record. It also seems to me that this is really an issue that can be put to Kulwant before the jury.

[49] Second, blood evidence from the family home discovered in April of 2012 confirms the location of Poonam’s killing according to Kulwant’s statements. Cst. Kastelic’s evidence at Volume 3 of the Crown’s Application Record is helpful in that regard.

[50] All of this external evidence, which is in my view is reliable, tends to confirm in a meaningful way the reliability of the out-of-court statements, and does compensate for some of the shortcomings of the statements such as an absence of an oath.

[51] Finally, Kulwant Litt is available for cross-examination. He does not deny making the statement, he just denies its truth. Kulwant now says he knew the location of the body in Caledon because it came to him in a dream.

Kulwant’s Motive to Lie

[52] Mr. Copeland argues that Kulwant had a powerful motive to lie given that Kulwant himself had been arrested for the murder in 2010. He also suggests that Kulwant was motivated to reconcile with Manjinder, so that they could live together again and Kulwant could retire into Manjinder’s care. When Manjinder convinced Kulwant to return to Canada in April 2012, he was acting as a police agent.

[53] There is no question that Kulwant’s evidence should be approached with caution. But I agree with the Crown that issue is for the jury to decide. I also think it is significant that when Kulwant provided these statements to his son, Kulwant was still a man who had not been charged with any crime. He was estranged from his son and meeting him for the first time in a long time. Furthermore, his confession to his son implicated himself as an accessory to murder and his daughter for murder. As Moldaver J. noted in R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, “Confessions derive their persuasive force from the fact that they are against the accused’s self-interest. People do not normally confess to crimes they have not committed” (at para. 102).

[54] In R. v. Kanagalingam, 2014 ONCA 727, 315 C.C.C. (3d) 199, Blair J.A. explained that there is no rule necessitating exclusion of a witness’s statements if the witness had a motivation to lie, at para. 38:

The proposition that there is a rule excluding admission of a witness statement where the witness may be motivated to lie and to implicate another person is counter-intuitive to the notion of discretion, and has been rejected by this Court in R. v. Hamilton, 2011 ONCA 399, 271 C.C.C. (3d) 208, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 547, [2012] S.C.C.A. No. 46, [2012] S.C.C.A. No. 151, [2012] S.C.C.A. No. 166. …

Statement #3

[55] This statement is video recorded. The quality of the video is excellent. The video enables the trier to assess demeanor. This is, as the Crown submitted, the “gold standard”.

[56] While there is an absence of an oath, this is not an absolute requirement. Evidence from which it can reasonably be inferred that, when the statement was made, the declarant appreciated the solemnity of the occasion and the importance of telling the truth may serve as a proxy for an oath. One must recall that being interviewed in a police room with the video rolling was not a new experience for Kulwant. He had been interviewed a number of times by the police before April 12, 2012. In fact, he had been arrested for murder and released without charge in May of 2010. I also note that Cst. Atwal does not provide him with a standard police caution but gives him a warning at the outset of the interview that the statement could be used against him or others.

Police Misconduct and Inducement

[57] Mr. Copeland argues that procedural reliability is impugned by the conduct of the police surrounding the taking of the statement and the absence of a complete record of the police’s interaction with Kulwant.

[58] In the days after Kulwant arrived in Canada on April 9, 2012, and after he took Manjinder to the site where the body was discovered, Manjinder spoke with Kulwant about meeting with the police to discuss what had happened. Cst. Aujla and Sgt. Cowan met with Kulwant and Manjinder at a hotel, the Monte Carlo Inn. Eventually, the police and Kulwant travelled to the homicide bureau at 180 Derry Road where the videotaped interview is recorded.

[59] On video, the police make Kulwant an offer to become a police agent. The circumstances are not entirely clear when this starts and whether it constitutes an inducement.

[60] There was some suggestion that this occurred sometime during a gap between the discussion at the Monte Carlo Inn and the video recorded statement at 180 Derry Road. However, Kulwant in his testimony says that the police were not really talking to him on the way to the police station.

[61] There is no doubt that there was some off the record discussion with Kulwant about becoming an agent. Kulwant testified that the police spoke to him off the record but that it occurred during a break in the interview. He says that the discussion was with Cst. Atwal. Cst. Atwal did not attend at the Monte Carlo Inn, nor was he in the van that drove Kulwant to 180 Derry Road from the hotel.

[62] The evidence on this issue from Kulwant and the police is confusing. There is a lack of clarity about whether the offer to become a police agent was first made before or after Kulwant’s statement to the police started.

[63] This is not Kulwant’s trial. I must only be satisfied on a balance of probabilities that threshold reliability has been established. Kulwant’s statement is not being introduced against him as an accused and thereby subject to a voluntariness analysis (which must be proven beyond a reasonable doubt).

[64] I have considered Mr. Copeland’s forceful argument that there is a serious unexplained gap in the interactions between Kulwant and the police before the April 12^th video statement and there is a serious question of police inducement and the voluntariness of the statement. There is also evidence that supports Mr. Copeland’s argument that the police surreptitiously recorded the interview at the hotel and induced Kulwant to be an agent.

[65] I agree with Mr. Copeland that Cst. Aujla and Cst. Atwal were not impressive witnesses. Cst. Aujla’s evidence about what happened at the Monte Carlo Inn and Cst. Atwal’s recollection of any off record discussions with Kulwant were extremely poor. Both officers testified that they were not “calling the shots” but were operating under the direction of other senior officers in charge of the case.

[66] In Hamilton, the Court of Appeal for Ontario held, at para. 144:

[144] …When the indicia of reliability are found to exist, normally this will justify the admission of a statement for its truth. But there may be cases where the trial judge is concerned that the indicia of reliability are a façade – and in such circumstances, the voluntariness branch of the confessions rule provides a ready-made guide to assist trial judges in making their threshold reliability determination. For example, if a trial judge were to entertain a real concern that a witness’ statement was the product of police coercion and the witness simply told the police “what the police wanted to hear”, this would necessarily undermine the veracity of the indicia of reliability and render the proposed statement inadmissible for its truth. In that sense, the residual discretion vested in trial judges may be seen as a safety valve. It ensures that the decision to admit a statement for its truth does not devolve into a merely mechanical exercise.

[67] I observe that my analysis may have been different if I was required to determine whether the statement was proven voluntary beyond a reasonable doubt. However, this is an application to introduce the hearsay statement of a witness pursuant to the principled exception and I must only be satisfied on a balance of probabilities that the “statement was not the product of coercion of any form, whether it involves threats, promises, excessively leading questions by the investigator … or other forms of investigatory misconduct”: B.(K.G.), at p. 802; Hamilton, at para. 128. The jurisprudence is clear that there are no hard and fast rules that all witness statements taken in contravention of the traditional confessions rule must necessarily be rejected as evidence of the truth of their content: Hamilton, at paras. 126-160; R. v. Mullings, 2014 ONCA 895, leave to appeal to S.C.C. refused, [2015] S.C.C.A. No. 253, at paras. 31-42; R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at paras. 120 and 123 [Rothstein J., dissenting].

[68] When I consider that Kulwant is available for cross-examination, and that the defence is not hampered by a lack of memory, a claim of privilege or a refusal to answer questions I am satisfied that procedural reliability is met. Kulwant does not deny the making of any of these statements but simply says it was not true and he was lying.

[69] The jury will also have the opportunity to assess Kulwant’s demeanor on April 12^th. I have watched the interview. Kulwant seems coherent, responsive and not under the influence. There is nothing oppressive or coercive about the interview. Although Kulwant testified he had been drinking at the hotel, there is no evidence of impairment on the video.

[70] The jury will be able to assess the following responses at the outset of his interview to Cst. Atwal and Cst. Aujla:

ATWAL: You, at this time, I, I am also a police officer here. You have been brought here. You want to talk about Poonam murder case and whatever you are going to tell us, you are going to tell us voluntarily. There is no pressure on you, nothing like that. If you-whatever you tell, right, that will be used in evidence in court, against you or against someone else.

LITT: Okay.

ATWAL: You understand that? Nobody has brought you here under coercion right and the second thing is that if you have talked to any other person, ok, any police officer or have talked to any other responsible person, then I want to tell you now that, that those given statements will not have any impact on the statements that will be given now.

LITT: Okay.

ATWAL: Right? At this point nobody has scared you to come here or threatened you to come here.

AUJLA: The main thing is that we met; did I scare or threat you to come here?

LITT: No, you did not.

AUJLA: Okay. Did I give you any threat?

LITT: Yeah, I, myself, called you.

AUJLA: You called me yourself. I did not scare or threaten you.

LITT: No.

AUJLA: Did I swear at you?

LITT: No.

AUJLA: Did I promise you or any promise that if you tell me then I will let you go? Did I make any such promise?

LITT: No. Nothing.

AUJLA: No, no. You tell me clearly.

LITT: No, no.

AUJLA: If I made such, any such promise to you. Okay.

LITT: No.

AUJLA: I did not give any threat of any kind. You called me to the hotel on your own.

LITT: I called you.

AUJLA: You asked me, that’s why I came to see you. And you told me the story voluntarily.

LITT: Yeah, alright.

AUJLA: Alright, and this is the main thing. Well, this is what is written in here, alright, now after this, Atwal Sahib (Cst. Atwal) will be talking to you. You tell him the story the way you want to tell him.

LITT: Yeah, alright. [Emphasis added]

[71] While there is the concern about the gaps in the evidence from the police, there are a whole array of indicia of reliability in this case which favour admission:

1. Kulwant is available for cross-examination (arguably sufficient on its own);

2. Blood evidence which confirms Kulwant’s narrative (particularly the pooling under the carpet runner);

3. Video surveillance of Kulwant taking Manjinder to the precise location of where the body was disposed of; and

4. The attendance at the location of the body precedes the attendance at the Monte Carlo Inn and the subsequent interview.

[72] I am prepared to say that much of the police conduct here is concerning. One would expect that during a murder investigation that no gaps should exist.

[73] That being said, I have no evidence the police were coercive, oppressive or that Kulwant’s will was overborne. The interview was free flowing and there is no evidence that he was threatened. I cannot say that Statement #3 is the product of police coercion or other misconduct that would “undermine the veracity of the indicia of reliability” or bring the administration of justice into disrepute. Nor am I of the view that Kulwant was telling the police simply “what the police wanted to hear”. For the purposes of this application, I cannot find that the statement was given involuntarily. I reject the submission that I should exercise my discretion and exclude this statement on that basis.

[74] Arguably, Kulwant’s decision to talk was driven by his desire to make things right for his son and this statement builds upon the narrative established in Statement #2. It will be for the jury to decide.

Statement #4

[75] Statement #4 is a shorter statement and is videotaped. However, at this point, Kulwant has been arrested and he is in custody. Cst. Aujla testified that the purpose of this interview was to enlist Kulwant as an agent.

[76] Although it is videotaped, the view of Kulwant is not ideal because he is not caught entirely in the best sitting angle. However, he is in the corner of the screen and the jury can assess his demeanour and he can be clearly heard.

[77] More significantly, Kulwant’s statements here tend to confirm the truth of what was said in the previous police statement. The statement is actually a refusal to assist the police as an agent because, according to Kulwant, telling the truth “trapped” him.

[78] Kulwant advised Cst. Aujla that listening to his son led to his arrest. He says that if he had not told his son “…it would have kept going as it is”. He is upset that his son Manjinder was taping his conversations.

The Evidence of Supinder and Manjinder Litt

[79] Manjinder and Supinder both testified on the voir dire. They were both unimpressive witnesses. While it is clear that Supinder was in distress during her testimony she was a very difficult witness to follow and her evidence is full of inconsistencies. I do not think the Crown denies that there are some concerns with respect to their evidence and the Crown concedes that there has always been an opportunity for Manjinder and Supinder to collude. For example, there was evidence of a April 9, 2012, meeting involving Manjinder, Supinder and Kulwant. At this time, Manjinder can be heard whispering to his mother on the bodypack recording. His explanation for why he did so was problematic.

[80] That being said, I must not lose focus here. A good portion of this voir dire was spent highlighting and extracting the blemishes in the accounts and statements of both of these witnesses. I agree with the Crown that the credibility and reliability of both of these witnesses has nothing to do with the threshold reliability of Kulwant’s statements. To the extent, however, that the Crown relies on Supinder’s evidence that Kulwant and Mandeep made admissions to her a few days after she arrived back from India to bolster the substantive reliability of Kulwant’s statements. I do not rely on this evidence for that purpose. I agree with Mr. Copeland’s position that no confirmatory weight can be given to her evidence given the problems with her evidence. I need not say more about this evidence.

Conclusion

[81] The law is clear that the formalities articulated in B.(K.G.) are helpful but not essential. After consideration, I find that this is a close call but in the end I am satisfied that the Crown has met its burden on the application with respect to Statement #2, #3, and #4. I am satisfied that procedural reliability has been established for all three statements. First, Kulwant is available for cross-examination. Second, the statements are substantially recorded by means of video or audio. This does not assist in determining whether or not the statements are true, but confirms the accuracy of the record of what was said. That has value as part of the whole picture.

[82] A content-based assessment of the statements also leads to the conclusion that substantive reliability has been met. In the context of this case, I have a statement by a father telling his son what happened to his wife. Another reasonable interpretation of this statement is that it is a statement against Kulwant’s own interest.[^3] Most people who are not intoxicated, under duress or coercion, or mentally ill do not make up statements of this nature that put themselves in jeopardy. That supports reliability.

[83] Furthermore, when Kulwant made the statements to his son on April 12^th, he had no motive to lie (i.e. blame Mandeep and Skinder to free himself). Kulwant did not know he was being recorded and he did not know that Manjinder was recording him. Arguably, as he put it, if he had kept quiet, they would all continue to escape prosecution.

[84] Finally, there is a ring of truth in the statements which are confirmed by way of external evidence when I consider Kulwant’s knowledge of the body disposal site, the surveillance videos and the blood in the kitchen.

[85] Simply put, I am the gatekeeper, not the final arbiter. What is before me unlatches the gate, so to speak, on a balance of probabilities.

[86] It is for the jury to assess the statements, the circumstances in which they were given, and to assess Kulwant’s anticipated recantation in his testimony. The whole tapestry is for the jury to sort out and there is no unfairness to the accused.

[87] I have concluded that threshold reliability has been met with Statements #2, #3 and #4. However, Mr. Copeland argued this motion as an “all or nothing” admissibility motion. Counsel, in his submission, explicitly argued that if Statement #3 was to be admissible for the truth, then all the statements should go in on a similar basis so that the entire picture would be presented to the jury, and so defence would not have to go through the exercise of exploring and trying to elicit the inconsistencies in all of the statements in cross-examination.

[88] Mr. Copeland argued that having all the statements and the inconsistent statements before jury is the best the defence can do in terms of challenging the statements. The Crown is not opposed to this and I am not about to question the tactical decisions made by very experienced defence counsel.

[89] As for any other statement that has been translated, I do not agree that it is unfair to allow the Crown to be selective as to which statements they seek to introduce as part of its case. I agree with the Crown that nothing prohibits the Respondents from cross-examining Kulwant Litt on any prior out of court statement that he has made. The Crown is not opposed to the jury having access to other transcripts of other recordings if it will assist the defence in advancing their position.

[90] It is not unusual and in fact responsible for the Crown to be selective in their approach to adducing evidence. The Crown is often required to undergo a cost/benefit assessment as to whether evidence is relevant. Even if it is, there is a second question of whether there is a danger that a jury will be distracted by extraneous evidence. It seems to me that if the Crown stood up asking for all of the tapes to go in, an objection from the defence regarding relevance might closely follow.

[91] Accordingly, in light of Mr. Copeland's position, Statements #1 to #4 are substantively admissible in these proceedings as proof of the truth of their contents.

Coroza J.

Date: February 24, 2016

CITATION: R. v. Punia, 2016 ONSC 2988

COURT FILE NO.: CR-14-250

DATE: 2016-02-24

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MANDEEP PUNIA and SKINDER PUNIA

K.G.B. RULING

Coroza, J.

DATE: February 24, 2016

[^1]: I released a “bottom line” endorsement on January 15, 2016 with reasons to follow. These are my reasons. The trial continues.

[^2]: Kulwant, Manjinder, Supinder, Mohan, Cst. Aujla, Cst. Atwal and Rajinder Singh (a translator who translated some of the recordings from Punjabi to English).

[^3]: Though I acknowledge that “[d]eclarations by available witnesses are not admissible pursuant to the general statement contrary to penal interest exception”: S. Casey Hill, David M. Tanovich & Louis P. Strezos, McWilliams’ Canadian Criminal Evidence, 5th ed., looseleaf (Toronto: Canada Law Book, 2014), at p. 7-167.