Court File and Parties
COURT FILE NO.: CR-14-250 DATE: 2016-06-06 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Kelly Slate and Keeley Holmes on behalf of the Crown
- and -
MANDEEP PUNIA and SKINDER PUNIA Robert Richardson and Eric Neubauer, on behalf of the Accused Mandeep Punia Peter Copeland on behalf of the Accused Skinder Punia
TRIAL RULINGS
COROZA J:
INTRODUCTION
[1] Mandeep Punia was charged with second degree murder. Skinder Punia was charged with being an accessory after the fact to murder. The jury rendered its verdict on April 30, 2016, finding Mandeep guilty of manslaughter and Skinder guilty of accessory to manslaughter.
[2] During the trial in order to keep things moving, I gave a number of oral reasons for ruling with reasons to follow. These are those reasons. They address the following areas:
a. What is the effect of an error by the registrar in relation to the exercise of peremptory challenges during jury selection? b. Should a Vetrovec warning be given to the jury in relation to the evidence of Supinder Litt? c. Should a “Bero instruction” be given in relation to the conduct of the Peel Regional Police? d. Should provocation be left with the jury?
PEREMPTORY CHALLENGE RULING
(a) Background
[3] This ruling deals with an issue that arose during jury selection on January 25, 2016, in relation to the exercise of peremptory challenges.
[4] During jury selection, the court registrar erroneously called upon counsel for Mandeep to exercise or not exercise a peremptory challenge at a moment when, if the correct order was followed in accordance with s. 635 of the Criminal Code, the Crown should have been called upon. Mr. Neubauer, counsel for Mandeep, exercised a peremptory challenge.
[5] The error came to light immediately after the challenge was exercised. However, by the time I raised the issue with counsel and the error was discovered, the potential juror had left the courtroom. After hearing submissions from counsel and considering the issue, I made a ruling that the saving provision in s. 643(3) of the Criminal Code meant that the failure to comply with the directions of s. 635 did not affect the validity of the proceeding. With the agreement of all of the parties, I directed that jury selection would continue but the Crown would be called upon first two times in a row to equalize the number of times each side was called upon.
(b) The Error
[6] Jury selection started on January 20, 2016, with judicial pre-screening of the pool of jurors pursuant to s. 632 of the Criminal Code. The pre-screening continued on January 21. On January 22, 2016, 10 groups of 20 prospective jurors were drawn from the drum and instructed to return at staggered intervals the following week: see R. v. White, 2009 ONSC 42049, [2009] O.J. No. 3348 (S.C.).
[7] Additionally, six prospective “static triers” were selected and asked to return on Monday, January 25, 2016. In this case there was a challenge for cause relating to both pre-trial publicity and racial bias.
[8] Counsel agreed that an order under s. 640(2.1) excluding all unsworn and sworn jurors from the courtroom was appropriate in this case. Thus the use of “static triers” was required pursuant to s. 640(2.2): see R. v. Noureddine, 2015 ONCA 770, 128 O.R. (3d) 23.
[9] On Monday, January 25, two static triers were selected from the group of six prospective “static triers” following the vetting procedure discussed by Code J. in R. v. Jaser, 2014 ONSC 7528, at para. 44, and Dambrot J. in R. v. Riley (2009), 2009 ONSC 22571, 247 C.C.C. (3d) 517 (Ont. S.C.) at paras. 22-24. The formal jury selection process then commenced.
[10] Each prospective juror was called into the courtroom and sworn or affirmed. Some raised issues and were excused by me. Each juror not excused was challenged for cause and found acceptable or not acceptable by the triers. If the jurors were found acceptable, counsel for each accused and the Crown were alternately asked whether they challenged the prospective juror peremptorily.
[11] In accordance with s. 635 of the Criminal Code, the defence was asked first in respect of the first juror who was found acceptable by the triers. The Crown was asked first in respect of the second acceptable juror, each side alternated thereafter. Pursuant to an agreement between defence counsel, when it was the defence’s turn to be called upon, they alternated being called upon first to exercise their peremptory challenge. Section 635(2) of the Code presumes that the accused will be called upon in the order their names appear in the indictment unless, as in this case, a different order is agreed upon by them.
[12] Juror #5669 was the twenty-third prospective juror called into the courtroom. They were the fourteenth juror found acceptable by the triers of the challenge for cause. If the correct order was followed, the Crown would be called upon first to exercise or not exercise a peremptory challenge in relation to Juror #5669.
[13] However, the court registrar first asked Mr. Neubauer, counsel for Mandeep, whether he wished to exercise a challenge. Mr. Neubauer challenged the juror and Juror #5669 was excused from the courtroom. The result was that the defence had been called upon first two times in a row, despite the requirement in s. 635(1) that the Crown and defence be called upon alternately.
[14] This procedural error was recognized before the jury selection process continued. I heard submissions from counsel about what remedy, if any, was required. Counsel for Mandeep, Mr. Richardson, submitted that he was not claiming any prejudice and he was content to continue jury selection despite the error. Mr. Copeland for Skinder, submitted that there was potential for prejudice because the Crown could very well have exercised a challenge if they had been called upon properly. The result was that the Crown was able to hold onto a challenge that could work to their advantage. Mr. Copeland also submitted that I should be mindful that errors that go to the composition of the court could not be cured on appeal by the curative proviso under s. 686(1)(b)(iv) of the Code.
(c) The Law
[15] All counsel referred me to R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A.). The Court in Robowtham held that the former s. 643 saving provisions applied only to irregularities and had no application where the error is such that the accused has been deprived of a statutory right, or where the error deprived the accused of a right to a trial by a jury lawfully constituted.
[16] However, section 643(3) provides for a saving provision in relation to failures to comply with the provisions of s. 635 and other jury selection sections. The sections are directory rather than compulsory:
643 …
Sections directory
(3) Failure to comply with the directions of this section or section 631, 635 or 641 does not affect the validity of a proceeding.
[17] In R. v. W.V., 2007 ONCA 546, Sharpe J.A. observed, at para. 20:
[20] Certain aspects of the jury selection procedure are directory in nature. Parliament has recognized this in s. 643(3) by describing the procedures outlined in ss. 631, 635, 641 and 643 as being “directions” and stating that the failure to comply with such directions “does not affect the validity of a proceeding.” It is significant that Parliament excluded s. 640 from the list of sections covered by this saving provision. [Emphasis added.]
(d) Analysis
[18] I am mindful that because Mr. Neubauer exercised the peremptory challenge, there were potential trial fairness consequences for the error. If the jury selection was to continue, given that counsel would now be operating with one less peremptory challenge than they would potentially otherwise have available (for instance if the Crown had challenged the juror before Mr. Neubauer was called on), their subsequent decisions to challenge or not challenge may be affected.
[19] I am satisfied that Rowbotham had no application to the circumstances of this case. The Court of Appeal in that case held that saving provisions in the Criminal Code (then in force) applied “only to irregularities” and had “no application where the error is such that the accused has been deprived of a statutory right, or to an error depriving an accused of the right to a trial by a jury lawfully constituted” (at p. 33).
[20] The decision in Rowbotham pre-dated the current version of s. 643. Prior to the enactment of An Act to amend the Criminal Code (jury), S.C. 1992, c. 41, section 643, as it was then drafted, contained no reference to s. 635. Indeed, the procedure envisaged by the modern s. 635 was first enacted in that statute, replacing the Crown stand-aside regime in the wake of the Supreme Court of Canada’s declaration of invalidity in R. v. Bain, [1992] 1 S.C.R. 91.
[21] Accordingly, Rowbotham was decided in an entirely different statutory context than the regime now applicable. The sections I am dealing with in this case were not yet part of the Code at the time Rowbotham was released. At present, section 643(3) clearly includes in its saving ambit failures to comply with the directions of s. 635. The only issue that s. 635 addresses is the order in which peremptory challenges are to be exercised. To find that s. 643(3) does not apply to s. 635 procedural errors would render the reference to that section in s. 643(3) meaningless.
[22] This interpretation is consistent with the Court of Appeal’s interpretation of s. 643(3) and Rowbotham in R. v. Brown (2006), 215 C.C.C. (3d) 330 (Ont. C.A.), at para. 28, in the context of a failure to strictly comply with s. 631:
Finally, amicus places particular emphasis on this court’s decision in R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A.). That case was decided under the former provisions of the Criminal Code. In short, the trial judge in Rowbotham failed to follow mandatory provisions of the Criminal Code concerning the order in which jurors stood aside by the Crown were recalled. The result of the trial judge’s decision was that the jury was continuously expanded without the stand-asides being reached. This court was particularly concerned that the trial judge may have been motivated by an attempt to redress the balance between Crown and defence (see p. 37). In doing so, the trial judge deprived the accused of a statutory right. That is not what occurred here. Even if the process violated s. 631(4), the accused were not prejudiced in any way. The departure from the strict requirements of s. 631, which did not prejudice the accused nor deprive them of any benefit, does not undermine the validity of the trial. This is confirmed by s. 643(3) of the Criminal Code, which provides that: “Failure to comply with the directions of … section 631 … does not affect the validity of the proceeding.” [Footnote omitted and emphasis added.]
[23] I am satisfied that the procedural error that occurred in this case is saved by the operation of s. 643(3). [1] While the error was no doubt regrettable, it was a momentary error that was recognized immediately with the opportunity to implement an appropriate remedy. Significant cost and time would have been required to declare a mistrial and convene a new panel. While regrettable, the Criminal Code makes it clear that it was not a fatal error.
(e) Remedy
[24] Having determined that the error was procedural and a mistrial was not required, I decided that the most appropriate remedy would be to call upon the Crown first to exercise or not exercise a peremptory challenge in relation to the next two jurors. All parties suggested that this was a fair solution to the problem. This was to “equalize” the number of times each side had been called upon since the defence had, in effect, been called upon twice in a row as a result of the registrar’s error.
[25] Ultimately, the jury in this case was selected with peremptory challenges to spare for both the Crown and defence counsel. If Mandeep had exhausted all of her peremptory challenges before the jury was selected, a ruling about whether another peremptory challenge should be restored to her may have been required. Since that situation did not occur, and counsel for Mandeep did not object to the continuation of the jury selection, I am satisfied that there was no trial unfairness.
VETROVEC WARNING RE: SUPINDER LITT
[26] During the pre-charge conference, defence counsel submitted that I should provide a warning to the jury about Supinder Litt, the mother of the accused Mandeep.
[27] Supinder was a crucial Crown witness. First, Supinder testified that a few days after the alleged stabbing, Mandeep admitted to her that she made a mistake and, in the presence of Kulwant Litt, acknowledged that she had stabbed Poonam. Kulwant is Mandeep’s father and Supinder’s husband. Second, Supinder’s evidence was potentially independent and confirmatory evidence that the jury could look to when assessing Kulwant Litt’s evidence. Kulwant’s hearsay statements were the critical pieces of evidence for the Crown and the subject of a prior hearsay ruling in this case. Kulwant was a Vetrovec witness and the jury was told that they should exercise caution when looking at his evidence and that it was dangerous for them to rely on these statements without independent and confirmatory evidence to support his assertions implicating the accused.
[28] Defence counsel requested that I give the jury a strongly worded Vetrovec warning for Supinder. The Crown objected to such an instruction. I was not persuaded by the defence submissions and I declined to subject Supinder’s evidence to a Vetrovec warning. I agreed with Crown counsel that Supinder was not a witness of unsavoury character: see R. v. Cain, 2015 ONCA 815, at para. 73. Supinder was not a co-accused, nor was she charged with accessory to murder. Supinder explained to the jury why she did not go to the police with Mandeep’s admission.
[29] However, I was persuaded by Mr. Neubauer’s submissions that because Supinder was a central witness to the trial, some instruction was necessary to bring home to the jury that her evidence should be carefully examined. I therefore told the jury that they should scrutinize Supinder’s evidence very carefully and that there were specific reasons that they should be cautious of her evidence, all of which I highlighted in my charge. I am confident that after hearing two thorough cross-examinations of this witness and my final instructions, the jury was equipped with a full understanding that Supinder’s evidence had to be carefully looked at before they could find her evidence to be confirmatory of what Kulwant said happened in his statements.
BERO INSTRUCTION RE: PEEL REGIONAL POLICE
[30] Cst. Atwal and Cst. Aujla testified for the Crown. They were not impressive witnesses. There was evidence before the jury that their note taking was not complete. More significantly, for some unexplained reason three important recordings were incomplete or absent. First, there was an incomplete recording of a conversation that Kulwant had with Cst. Aujla at the Monte Carlo Inn just prior to his video statement at 180 Derry Road. Second, a conversation that both officers had with Supinder at the Cordgrass residence where she disclosed for the very first time that Mandeep had admitted stabbing Poonam was not recorded. Finally, there was no recording of the police making an offer to Kulwant to act as an agent. The fact that an offer had been made was later confirmed by Cst. Atwal on video just before Kulwant had been arrested.
[31] There was no explanation for the absence of any of these recordings or the lack of complete and accurate notes.
[32] Mr. Copeland argued that I should instruct the jury that the Crown was under an obligation to preserve this evidence and because they failed to do so, the failure to preserve this crucial evidence could raise a reasonable doubt: see R. v. Bero (2000), 151 C.C.C. (3d) 545 (Ont. C.A.).
[33] I was not persuaded that I should instruct the jury in the fashion set out in Bero.
[34] In this case, there was no application by the defence that the failure to preserve any of the recordings was a Charter breach or that a stay should be granted. So, this was not a Bero-like case. In Bero, the trial judge had evidence before him that the Crown failed to preserve evidence and removed from the jury’s consideration whether the absence of evidence could raise a reasonable doubt. There was absolutely no evidence on this record that the police deliberately failed to preserve recordings resulting in a breach of the accused’s right to make full answer and defence or that the Crown failed to preserve evidence: see R. v. Perlett, 2006 ONCA 29983, [2006] O.J. No. 3498 (C.A.), at para. 61.
[35] In fact, the evidence showed that there was an attempt to record Kulwant’s conversations at the Monte Carlo Inn and Supinder’s conversations at the Cordgrass residence but for some unexplained reason there were problems in both recordings. Therefore, I could not make a finding on this record that there was a deliberate attempt to not preserve evidence. I simply told the jury that there was no explanation for the absence of these recordings and that the failure to record the conversations was a mystery.
[36] However, in the end, I did tell the jury that a reasonable doubt could arise from the absence of evidence. Moreover, I told the jury that if they had complete recordings of what Kulwant and Supinder told the police it may have helped them in deciding the case and that if the absence of the evidence put them in a position where they were unable to decide key credibility issues of witnesses such as Kulwant and Supinder, then they could find that they could not assess the reliability of their evidence.
[37] In summary, while I did not give a Bero instruction, I did inform the jury of the shortcomings of the Crown’s case including the failure to record Supinder and Kulwant at critical times during the investigation. I am confident that the jury understood that they could consider these issues in considering whether the Crown had proven the case beyond a reasonable doubt: see R. v. Laing, 2016 ONCA 184, at para. 46.
PROVOCATION
(a) Overview
[38] During the pre-charge conference, Mr. Copeland raised the issue of leaving provocation as an available defence to the jury. Although Skinder was not advancing provocation as a defence, Mr. Copeland submitted that if it was an available defence on this record, then I was duty bound to leave the defence with the jury. Mr. Copeland submitted that the defence was available.
[39] Mr. Richardson submitted that Mandeep was not advancing provocation as part of her defence, and she would rather not have the jury’s attention drawn to aspects of Kulwant’s evidence to explain the defence to the jury. I took counsel’s submission to mean that the defence was incompatible with Mandeep’s position at trial (that Kulwant committed the murder, not Mandeep). However, Mr. Richardson eventually agreed with Mr. Copeland’s submission that I may be legally obligated to leave it with the jury. If it was going to be left, Mr. Richardson submitted I should deal with it in a cursory fashion.
[40] Ms. Slate argued that there was no air of reality to the defence, particularly with the subjective element of the defence and she opposed leaving the defence with the jury.
(b) The Law
(i) Air of Reality Test
[41] Any defence with an “air of reality” should go to the jury: see R. v. Cinous, [2002] 2 S.C.R. 3, at para. 51.
[42] A defence meets the air of reality test if there is “evidence upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true”.
[43] In this case, Skinder and Mandeep do not advance provocation. However, as Mr. Copeland has pointed out, that does not resolve the issue. A trial judge must put to the jury all defences that arise on the facts, regardless of whether they have been specifically raised by the accused. What is essential is that the record contains evidence which, if accepted by the jury, would constitute a valid defence to the charge laid. Where such evidence appears, it is the duty of the trial judge to call the attention of the jury to that evidence and instruct them on the evidence: see R. v. Gauthier, [2013] 2 S.C.R. 403; R. v. Cairney, [2013] 3 S.C.R. 420; and R. v. Gill, 2009 ONCA 124, 241 C.C.C. (3d) 1.
[44] Accordingly, I must identify the evidence that is most favourable to the accused and assume it to be true, regardless of whether it was adduced or mentioned by the accused. I must not enquire into whether the witnesses are credible or assess the probative value of this evidence. If each element of a defence is supported by direct evidence or may reasonably be inferred from circumstantial evidence, I must put this defence to the jury.
(ii) Provocation under s. 232 of the Criminal Code
[45] The offence allegedly took place in 2009 and Mandeep was arrested in 2012. Section 232 of the Code (provocation) was amended in July 2015 by the Zero Tolerance for Barbaric Cultural Practices Act, S.C. 2015, c. 29. Since the murder allegedly took place before July 15, 2015, if provocation was to be left with the jury it would be the instruction given to juries before the section was repealed and amended. The defence of provocation in s. 232 is a partial defence. More specifically, it operates as an excuse that has the effect of reducing murder to manslaughter when certain requirements are met.
[46] The requirements of s. 232 are made up of two elements, one objective and the other subjective. First, there must be a wrongful act or insult of such a nature that it is sufficient to deprive an ordinary person of the power of self-control as the objective element. Second, the subjective element requires that the accused act upon that insult on the sudden and before there was time for their passion to cool: see R. v. Tran, [2010] 3 S.C.R. 350.
[47] The Crown argued, however, in the absence of Mandeep’s testimony or anything in her statements, there was no air of reality to the subjective element of the defence.
(iii) The Subjective Element of Provocation
[48] Justice Charron described in Tran the subjective element of provocation as follows: (1) the accused must have acted in response to the provocation; and (2) on the sudden before there was time for his or her passion to cool.
[49] In other words, the accused must have killed because he or she was provoked and not because the provocation existed and “the suddenness requirement serves to distinguish provocation from an act of revenge”: see R. v. Krasniqi, 2012 ONCA 561, 291 C.C.C. (3d) 236, at para. 51.
(c) Analysis
[50] In my view, applying the air of reality test, I am obligated to leave the defence with the jury. I say this upon examining the totality of the evidence led by the Crown.
[51] First, Kulwant described that the stabbing took place after an exchange of words and a fight. The jury could find that Mandeep stabbed Poonam out of anger, with her passions inflamed or as a result of a loss of self-control if they accepted his statement that Poonam was taunting Mandeep about an affair that she had before her marriage to Skinder. According to Kulwant, during the fight Poonam set Mandeep off and she reacted with “sudden rage” and “anger”. Kulwant told Manjinder that when he was in the kitchen area and saw that Poonam’s throat had been cut, Mandeep kept saying “I will not spare her even if I die”: see Exhibit 57, at p. 17. He also told Manjinder that during this time Mandeep was “so bold…fully..she was thundering!”: see Exhibit 57, at p. 17. Kulwant also told the police that as Mandeep passed him she told Poonam “you will remember what you said to me”.
[52] Second, Kulwant also described that Poonam had said the following to Mandeep “you were loitering like dogs, a bitch going after a dog”. There is evidence, on this record, that in the Punjabi language this is a grave insult. This evidence came from a number of sources including Cst. Atwal, a Punjabi speaking officer who testified for the Crown. He acknowledged that calling someone a dog in the Punjabi language was a serious slur.
[53] After anxious consideration, I accept that there is some evidence, albeit weak, that is capable of supporting the inferences needed to make out the subjective element of the defence of provocation. If the jury accepts Kulwant’s evidence in the context of a fight that appears to have started when Poonam came home from work, the jury could potentially find that Mandeep must have acted in response to a grave insult on the sudden before there was time her passion to cool. The Crown’s theory was that Poonam apparently knew about an affair that Mandeep had in India and that the fight was about something she said about this affair. When I consider the evidence of Kulwant, the entire sequence of events happened quickly. There is evidence that as a result of what Poonam said to Mandeep, she was enraged, her passions were inflamed and she was killed in the heat of blood: see R. v. Faid, [1983] 1 S.C.R. 265, at pp. 278-279.
[54] I find that this is a close call. However, it is not my function to determine if the defence will succeed. The question I must ask myself is whether a properly instructed jury acting reasonably could have a reasonable doubt as to whether the elements of the defence of provocation are made out: see Cairney.
[55] More recently, Justice Doherty in R. v. Hill, 2015 ONCA 616 held:
[68] The limited weighing of the evidence contemplated by the air of reality test requires that the trial judge determine whether the evidence viewed as a whole is reasonably capable of supporting a credible narrative of events that would warrant an acquittal on the charge of murder by a jury properly instructed on the elements of provocation. A credible narrative does not exist where the only evidence of provocation consists of isolated shreds of evidence ripped from the context of the narrative as a whole. [Emphasis added.]
[56] He went to add:
[70] However, as pointed out in Pappas, at para. 33: What would suffice to cause an ordinary person to lose self-control is a question of degree that the jury is well placed to decide, and which, in cases of doubt should be left to the jury.
[57] I would describe this as one of those “cases of doubt” as described in Hill. As a result, provocation was left with the jury.
RESULT
[58] In summary, I made the following trial rulings in this case:
a. The procedural error by the registrar during the exercise of peremptory challenges is saved by the operation of s. 643(3) of the Criminal Code; b. A Vetrovec instruction was not given in relation to Supinder Litt; c. A Bero instruction was not given in relation to the conduct of the Crown or the Peel Regional Police; and d. The defence of provocation was left with the jury.
Coroza J. Released: June 6, 2016
COURT FILE NO.: CR-14-250 DATE: 2016-06-06 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN - and - MANDEEP PUNIA and SKINDER PUNIA TRIAL RULINGS Coroza J.
Released: June 6, 2016