Her Majesty the Queen v. Gurpreet Ronald and Bhupinderpal Gill, 2016 ONSC 3127

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: April 19, 2016

Reasons for decision re editing of Accused statements

Parfett J.

[1] The statement of the accused, Bhupinderpal Gill given April 14, 2014 and the statement of Gurpreet Ronald given April 8, 2014 were ruled voluntary on April 19, 2016. The accused now ask that the statements be edited.

Background

[2] The Applicant, Bhupinderpal Gill, and the co-accused Gurpreet Ronald were charged with the first degree murder of Jagtar Gill, wife of the Applicant. It is alleged that on January 29, 2014, Mr. Gill left the family home in the company of his daughter to run some errands. Mr. Gill was gone from the home for approximately two hours. When he returned, they discovered the body of Jagtar Gill who it appeared had been beaten and stabbed.

[3] Police learned that Mr. Gill and Ms. Ronald had been having an affair. They also established there was DNA from an unknown female left at the scene. Through a ruse, police were able to link this DNA to Ms. Ronald.

[4] Ms. Ronald was arrested on April 8, 2014 and Mr. Gill was arrested April 14, 2014. They both gave exculpatory statements to police.

[5] The Crown theory is that the two accused acted in concert to kill Jagtar Gill. They planned her death. Mr. Gill ensured there was no one other than Mrs. Gill in the home on the morning of January 29, 2014. He left out knives and a steel bar as readily available weapons. Ms. Ronald did the actual killing while Mr. Gill was out of the home, thereby creating an alibi.

Legal Principles

[6] The basic principles in relation to the editing of voluntary statements can be summarized as follows:

• Editing of a statement may at times be necessary because of the inclusion of irrelevant or unnecessarily prejudicial evidence, but such editing must not affect the tenor of a relevant statement;
• Edited statements must be free from unnecessary prejudice, but the remaining portions must retain their proper meaning;
• The jury should have as much as possible of a statement said to constitute an admission in order to place it into context for the purpose of determining its truth;
• Even though substantively irrelevant, contextual evidentiary relevance may allow admission; and
• The extent of the admissibility of that contextual evidence and probative value must still, however, be weighed and balanced against its prejudicial effect. [1]

[7] These principles arise out of more general common law evidentiary principles, which hold that,

Judicial discretion to exclude, on policy grounds, evidence which is relevant and, hence, prima facie receivable, is one of the organizing principles of our law of evidence…If, upon a prejudicial effect versus probative force analysis, the trial judge determines that the receipt of otherwise relevant evidence would have a negative effect on the truth-finding function of the trial, that evidence will be excluded….In this context, prejudice refers, among other things, to any unfairness to the accused occasioned by the admission of the evidence….The discretion described above is not a creature of statute but is interwoven by the common law throughout the fabric of the law of evidence. [2]

[8] Most of the cases dealing with editing of statements are highly fact specific. However, from those cases, it can be gleaned that certain topics are more likely to be found to be irrelevant:

• The officer’s opinion concerning the strength of the Crown’s case [3];
• Officer’s opinion concerning the quality of the police investigation [4];
• Expounding on the theory of the police/Crown at length and/or multiple times without any meaningful response by the accused [5];
• Making references to evidence that does not exist [6];
• Officer soliloquy, commentary, opinion, misstatement of the inferences arising from attempts to exercise the right to silence or character disparagement [7];
• Opinion concerning the veracity or credibility of a witness or of the accused; [8]
• Accused’s criminal record [9];
• Other discreditable conduct or bad character evidence [10].

[9] In a joint trial, these factors can take on added importance. The general principle where it is alleged that accused persons acted together to commit an offence is that they should be tried together. [11] There are several policy reasons that support this general principle:

• Multiple trials are expensive and not an efficient use of judicial resources;
• Witnesses are required to testify multiple times, often with respect to very difficult subject-matter; and
• There is a risk of inconsistent verdicts, especially in the face of antagonistic defences. [12]

[10] Ultimately, the jurisprudence is clear that the full truth about an incident is more likely to come out if all accused are tried jointly. [13] As noted in R. v. Suzack,

Where accused are tried jointly, each is entitled to the constitutional protections inherent in the right to a fair trial. Those protections include the right to make full answer and defence and the right to be shielded from evidence which unfairly prejudices an accused. An accused's right to a fair trial does not, however, entitle that accused to exactly the same trial when tried jointly as the accused would have had had he been tried alone. [14]

[11] At its most fundamental, an accused has a right to a trial that is fundamentally fair, but not one that is perfect or even one of impeccable fairness. [15]

[12] Where statements made by different accused will be introduced at trial, it is critical that the jury be advised that one accused’s statement is admissible only against that accused and cannot be used to assess the guilt or innocence of another accused. [16] As noted in R. v. Largie,

To balance the competing interests of co-accused in a joint trial, the authorities conclude that a carefully crafted jury instruction about the permitted and prohibited use of evidence of limited admissibility is the best way to achieve that balance. Absent alteration of the paradigm of trial by jury, constitutionally guaranteed in cases such as this, we proceed on the basis that juries accept and follow judicial instructions. [17]

[13] However, there may be situations where the statement of one accused is so highly prejudicial in relation to the co-accused that the only remedy is severance. However, in general, any prejudice to the co-accused can be managed through editing. Editing ‘can go a long way to ensuring that the jury will not be exposed to evidence whose probity is overborne by the prejudice it will cause.’ [18]

Editing

[14] Before embarking on the process of editing, it appears to me to be important to comment on the various theories of the parties. As noted earlier, the Crown theory is that the accused worked together to plan the death of Jagtar Gill. They allege that Mr. Gill left his wife alone in the house in a vulnerable condition, having previously left knives and a steel bar available as weapons. Ms. Ronald is alleged to be the person who actually killed Mrs. Gill using the knives and the steel bar. After returning home, it is alleged Mr. Gill washed the knives and hid the bar in the basement.

[15] Mr. Gill adamantly denies any involvement in the death of his wife and asserts that Ms. Ronald acted entirely on her own. Ms. Ronald denies being the killer or having any other involvement in the killing.

[16] Mr. Gill’s primary objection to his statement is the number of times the officer calls him a liar or otherwise questions his honesty. However, Mr. Gill’s statement to police is a carefully constructed attempt by the officer to expose Mr. Gill’s lies bit by bit in an effort to persuade him to ultimately own up to his role in the murder of his wife. The effort fails in that Mr. Gill does not admit any involvement in the killing. Nevertheless, the statements made by Mr. Gill will have an impact on his credibility before the jury, particularly given his assertion that he will testify in his own defence.

[17] It is against this backdrop that the proposed edits of Mr. Gill’s statement must be assessed. The detailed portions of the proposed edits are set out in Appendix A along with the reason for the proposed edit, and my response. However, in general, where the officer comments on the credibility of the accused, advises the accused this is his opportunity to tell the truth or expresses his opinion concerning the guilt of the co-accused, those segments are to be excised. They are probative of nothing and are prejudicial to one or other of the accused.

[18] Ms. Ronald is also seeking to have her statement edited. Crown and Defence have come to an agreement regarding those edits and they are set out in Appendix B.

Madam Justice Julianne Parfett Released: May 12, 2016