Court File and Parties

Court File No.: CR14-2310 Date: 2016/05/12 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: May 9, 2016

Ruling on Severance

Parfett J.

[1] The accused, Gurpreet Ronald requests the severance of her charges from those of her co-accused, Bhupinderpal Gill. For the reasons that follow, the application for severance is dismissed.

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] The Crown’s theory is that Mr. Gill and Ms. Ronald conspired together to kill Jagtar Gill in order to further their mutual intention to live together.

[5] In a previous ruling, I decided that evidence of prior discreditable conduct of Ms. Ronald could be elicited by Mr. Gill with a view to raising a reasonable doubt regarding his participation in the death of his wife.

[6] Ms. Ronald now brings this application for severance.

Legal Principles

[7] Under section 591(3)(b) of the Criminal Code, the court may, where it is satisfied that the interests of justice so require, order that one or more co-accused be tried separately on one or more of the counts. Under section 591(4), an order under subsection (3) may be made before or during the trial but, if the order is made during the trial, the jury shall be discharged from giving a verdict on the counts in respect of the accused or defendant who has been granted a separate trial.

[8] The onus for establishing that severance is in the interests of justice lies with the party moving for severance and it must be established on a balance of probabilities.

[9] The Ontario Court of Appeal has noted that accused seeking severance must “overcome…the presumption that two co-accused, who are jointly charged and are said to have acted in concert, should be tried together. The policy behind this rule is that the full truth of the incident is more likely to emerge if all participants give their accounts on one occasion.

[10] The most often cited criteria for determining whether severance should be awarded were first enunciated in R. v. Weir:

1. Whether the accused have antagonistic defences;
2. Whether important evidence in support of one accused that would be admissible at a separate trial is not admissible on a joint trial;
3. That evidence which is admissible against one accused but inadmissible against another might prejudice that other accused;
4. That a confession admissible only against one accused might prejudice another accused; and
5. That on separate trials, one of the co-accused would become compellable as a defence witness, whereas she would not be on a joint trial.

[11] Weir remains good law and has been followed in numerous decisions. However, these are not mandatory rules of law, nor a closed set of factors. The essential question is: is severance in the interests of justice? According to the Ontario Court of Appeal:

The interests of justice encompass those of the accused, the co-accused, and the community as represented by the prosecution. The trial judge must weigh these sometimes competing interests and will direct severance only if the accused seeking severance satisfies the trial judge that severance is required. To satisfy that burden, the accused must overcome the presumption that co-accused who are jointly charged and are said to have acted in concert, should be tried together.

[12] The presumption in favour of trying jointly charged accused together has two main foundations, which must be weighed against any possible prejudicial effect. First, severance of trials may lead to inconsistent verdicts. Second, separate trials generally lead to extra costs and delays in the court system. There is a third principle that weighs in the balance, which is that trying alleged co-conspirators together advances the truth-seeking function of a criminal trial.

[13] Where the defendants raise antagonistic defences, a joint trial is favoured. The reason for this preference is set out in R. v. Suzack,

Separate trials where co-accused are blaming each other for the crime raise not only the danger of inconsistent verdicts, but also a real concern that the truth will not be discovered at either trial. It is axiomatic that the truth of an allegation is best tested through a process which requires the accuser to confront the accused with the allegation and gives the accused a chance to respond to the allegation. If co-accused who are blaming each other for a crime are allowed to do so in separate trials, neither jury will have the benefit of that process. If the accused are tried separately it is highly unlikely that either jury will hear the complete story.

[14] In R. v. Last, the Supreme Court of Canada reviewed the jurisprudence on severance and made the following observations:

1. The absence of specific guidelines for granting severance requires that deference be afforded to a trial judge’s ruling to the extent that she acts judicially and the ruling does not result in an injustice;
2. The ultimate question faced by a trial judge in deciding whether to grant a severance application is whether severance is required in the interests of justice, as per s. 591(3) of the Criminal Code. The interests of justice encompass the accused’s right to be tried on the evidence admissible against her, as well as society’s interest in seeing that justice is done in a reasonably efficient and cost-effective manner; and
3. Factors courts rightly use include: the general prejudice to the accused; the legal and factual nexus between the counts; the complexity of the evidence; whether the accused intends to testify on one count but not another; the possibility of inconsistent verdicts; the desire to avoid a multiplicity of proceedings; the use of similar fact evidence at trial; the length of the trial having regard to the evidence to be called; the potential prejudice to the accused with respect to the right to be tried within a reasonable time; and the existence of antagonistic defences as between co-accused persons.

[15] Where, as here, the reason for the severance application is the admission of evidence potentially prejudicial to one accused, but of assistance to the co-accused, appellate courts have observed repeatedly that ‘an accused’s right to a fair trial does not … entitle that accused to exactly the same trial when tried jointly as the accused would have had had he been tried alone.’

[16] That said, it is nonetheless important to engage in a balancing of the competing interests of each accused. A severance will be granted if that is the only available method of ensuring that both accused receive a fair trial – one that does not result in an injustice to an accused. As noted in R. v. Sheriffe,

Sheriffe recognizes that a joint trial requires a balancing of the interests of both accused when one adduces bad character evidence about the other. The right of one accused to make full answer and defence entitles that accused to adduce evidence of extrinsic misconduct by the other accused that Crown counsel would not be able to adduce as part of the Crown's case. But the accused against whom the bad character evidence is adduced is equally entitled to have his fair trial rights respected. In extreme cases, by a severance. But more usually, by jury instructions that carefully confine the bad character evidence to its legitimate purpose.

[17] As part of deciding the severance application, the trial judge must determine whether a limiting instruction is capable of successfully balancing the competing interests of co-accused in a joint trial. The jury must be told what the specific evidence is, how it can use the evidence in considering the case of the accused and, how it cannot use the evidence in considering the case against the co-accused. The Ontario Court of Appeal specifically approved the Watt Jury Instructions on this point and went on to say:

Some will say that a jury could not possibly follow the … instruction. I do not pretend that there is no risk that the jury would not follow that instruction. Like any limiting instruction, there is a risk that the jury will not abide by it. As long as we maintain trial by jury, however, courts must proceed on the basis that juries accept and follow the instructions given to them by the trial judge. That is not to say that in a specific case a trial judge could not decide that the risk of misuse of propensity evidence offered by one co-accused could not be adequately addressed by a limiting instruction. If a trial judge reached that conclusion, he or she will have no choice but to order severance. It would, however, be wrong for a trial judge to accept as a general proposition that a jury would not or could not abide by a limiting instruction.

[18] This position is in keeping with the Supreme Court of Canada’s comments in R. v. Corbett that,

In my view, it would be quite wrong to make too much of the risk that the jury might use the evidence for an improper purpose. This line of thinking could seriously undermine the entire jury system. The very strength of the jury is that the ultimate issue of guilt or innocence is determined by a group of ordinary citizens who are not legal specialists and who bring to the legal process a healthy measure of common sense. The jury is, of course, bound to follow the law as it is explained by the trial judge. Jury directions are often long and difficult, but the experience of trial judges is that juries do perform their duty according to the law.

[19] I note in passing that for some time now it has been the practice of trial judges to provide the jury with appropriate instructions as soon as evidence which can only be used for a limited purpose is introduced. Moreover, written copies of the final instructions – that repeat the instructions regarding the limited purpose for which the evidence can be used – are provided to the jury to review during their deliberations. In my view, these practices serve to increase the probability that the jury will properly use the evidence.

Positions of counsel

[20] Defence counsel for Ms. Ronald argues that the admission of the prior discreditable conduct evidence will require his client to respond to the following allegations:

a. Mr. Gill’s theory of fatal attraction; b. Ms. Ronald is a violent person; c. Ms. Ronald has attacked her husband on four occasions and has beaten him daily throughout their relationship; d. She has been violent towards her daughter; and e. This killing was a planned and deliberate attack on Jagtar Gill.

[21] Defence counsel also contends that the effect of having to address these issues – some of which are extraneous to the main issues at trial - will inevitably complicate and lengthen the trial and possibly result in the jury being confused and unable to focus on the real issues in the trial.

[22] Furthermore, Defence alleges that jury instructions will not eliminate the risk of inappropriate cross-pollination or propensity reasoning and that the court should not resort to a limiting instruction unless there is a valid reason to do so.

[23] Finally, Defence states that other considerations such as avoidance of inconsistent verdicts, avoidance of a multiplicity of trials, and the right to be tried within a reasonable time cannot be permitted to trump Ms. Ronald’s right to a fair trial.

[24] Counsel for Mr. Gill takes no position with respect to Ms. Ronald’s application to sever.

[25] The Crown responds by arguing that there are two important considerations in relation to the admission of the prior discreditable conduct: first, the evidence linking Ms. Ronald to the death of Jagtar Gill is strong and second, there is a significant disparity between the prior discreditable conduct and the acts alleged in the indictment.

Analysis

[26] I note at the outset that it is not uncommon in joint trials involving violent offences for one accused to lead evidence of his co-accused’s violent disposition in order to suggest the co-accused was more likely to have perpetrated the crime. This type of evidence sometimes – but not routinely – leads to a severance of accused.

[27] It is also important to recall that the only evidence relating to prior discreditable conduct that was ruled admissible are the four incidents in which Ms. Ronald is alleged to have brandished a knife during the course of arguments with her husband. Other evidence relating to regularly beating her husband and also beating her daughter was not part of the original application by Mr. Gill and was not ruled on. Counsel for Ms. Ronald argued that he would have to elicit this evidence as part of refuting the allegations that his client brandished a knife.

[28] As I noted in my previous ruling on prior disreputable conduct, this evidence is not admissible against Ms. Ronald. Therefore, there is nothing for Ms. Ronald to refute.

[29] In assessing the level of prejudice that could flow from the jury hearing the prior discreditable conduct, I note there is a significant body of both direct and circumstantial evidence linking Ms. Ronald to the death of Jagtar Gill. This evidence includes:

• Ms. Ronald’s blood (mixed with Jagtar Gill’s blood) was found on the inside and outside of a partial latex glove found near the victim’s body on the first floor of the home;
• Ms. Ronald’s blood was found on the carpet upstairs near the entrance to the master bedroom inside the Gill home;
• Ms. Ronald’s blood was found inside the master bedroom and the ensuite bathroom;
• Ms. Ronald was questioned by police on the day of the killing. The police officer noticed a bandage on Ms. Ronald’s hand. In a follow-up interview the day after the killing, Ms. Ronald appeared to hold that hand inside a fold on her coat. Ms. Ronald explained the injury by stating that she cut herself with a knife in her kitchen;
• On February 5, Ms. Ronald was seen by police going to a hiking trail, where she exited her car and walked a short distance down a trail before returning to her car within three minutes;
• On April 15, a maintenance worker with the National Capital Commission discovered a knife and latex glove fragment near the trail on which Ms. Ronald had been observed in February;
• The knife bore the victim’s blood;
• The partial latex glove was a forensic match (per report of the Centre of Forensic Sciences) to the partial glove found at the scene of the murder, near Jagtar Gill’s body; and
• The partial latex glove bore Ms. Ronald’s blood, mixed with Jagtar Gill’s blood.

[30] Consequently, even if the jury were to misuse the evidence relating to Ms. Ronald’s propensity for violence, it could not have a significant impact in the face of the Crown’s evidence.

[31] As noted earlier, Defence counsel for Ms. Ronald asserts that the court should not resort to a limiting instruction unless there is a valid reason to do so. The jurisprudence makes it clear that prior to determining whether severance is required in the interests of justice the court must consider whether a limiting instruction would mitigate any potential prejudice to the co-accused. Moreover, although it is never possible to eliminate the possibility the jury will misuse the evidence, the court should proceed on the basis that the jury will follow the instructions it is given.

[32] In these circumstances, it is my view that the potential prejudice arising from Mr. Gill eliciting evidence of Ms. Ronald’s propensity for violence is low and can be mitigated with an appropriate limiting instruction. Consequently, the application for severance is denied.

Madam Justice Julianne Parfett Released: May 12, 2016