CITATION: R. v. Grewal, 2017 ONSC 4099

COURT FILE NO.: 2/16

DATE: 2017 06 30

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

R. Fetterly, for the Crown

• and -

RAJMAN GREWAL

T. Wylie, for the Defendant

HEARD: May 29-June 20, 2017

REASONS FOR RULINGS

FAIRBURN, J.

A. Overview

[1] Sukpal Pannu was a transport truck driver. On December 12, 2014, he set out with a load destined for Vancouver. He knew that there was an illegal substance secreted within his load. The contraband went missing once he reached Vancouver and so he returned to Toronto by air. Mr. Pannu was kidnapped a couple of days later. He was held for five days before he escaped from a house in Chateauguay, Quebec.

[2] Mr. Grewal was charged with the kidnapping. The trial commenced with jury selection on May 29, 2017 and ran almost continuously until the jury brought back a verdict of guilty on June 20, 2017. During the course of the trial, counsel raised issues upon which rulings were made. These are my written reasons for the rulings.

B. Modes of Participation

(i) Overview

[3] Crown counsel takes the position that there is evidence upon which the jury could find that Mr. Grewal was either a principal perpetrator or an aider to the crime of kidnapping. The Crown asks that both modes of participation be left with the jury.

[4] The defence takes the position that the Crown prosecuted this case as if it were only pursuing one mode of participation, that Mr. Grewal was an aider to the crime of kidnapping. The defence argue that the Crown should be precluded from relying upon both s. 21(1) (a) and (b) of the Criminal Code. While the defence acknowledge that there may be evidence that supports both modes of participation, leaving both modes is said to be unfair because it could dilute the burden of proof.

(ii) Air of Reality Test

[5] The question is whether there is an air of reality to both modes of participation. As noted by Watt J.A. in R. v. Huard, 2013 ONCA 650, at para. 60, the “air of reality standard controls whether a particular basis of liability, whether a definition of an offence or a mode of participation will be open for the trier of fact to consider”. Where there is an air of reality to a mode of participation in a crime, the trial judge has a duty to give the instruction related to that mode: R. v. Shafia, 2016 ONCA 812, at para. 349.

[6] The air of reality test calls upon the trial judge to determine whether, based on the evidence as a whole, there is a “real issue to be decided by the jury” and not how the jury should decide the issue: R. v. Cinous, 2002 SCC 29, at para. 54. The sole question is whether the evidence reveals “some evidence on the basis of which a reasonable jury, acting judicially, could make the factual findings necessary to ground liability on the particular basis advanced”: Huard, at para. 60.

(iii) Section 21(1)(a): Principal Perpetrator

[7] Under s. 21(1)(a) of the Criminal Code, a person is a party to an offence if he “actually commits it”. A person may commit an offence by personally doing everything necessary to commit the offence. This is true if the person acts alone or in combination with others.

[8] In R. v. Vu, 2012 SCC 40, Moldaver J. reviewed the elements of kidnapping. He held that the majority in the court below “accurately summarized the basic elements of the offence of kidnapping”. Adopting how Finch C.J.B.C. had summarized the elements, Moldaver J. held that the actus reus of kidnapping requires that there “be an abduction of a person and moving him or her to a place (“carrying away” or “asporation”), against the victim’s will, which can be accomplished either by force or fraud”.

[9] Justice Moldaver went on to describe the mens rea for kidnapping as being one of the intents described in s. 279(1) of the Code: Vu, at para. 47. In this case, Crown counsel relies upon intent to confine. Section 279(1)(a) reads: “every person commits an offence who kidnaps a person with intent to cause the person to be confined … against the person’s will”.

[10] There is more than ample evidence that supports an air of reality to principal perpetrator liability. I will only review some of it to demonstrate the point:

(a) There is evidence suggesting that the genesis of the kidnapping lies in a stolen shipment of contraband that Mr. Grewal asked Mr. Pannu to deliver to British Columbia.

(b) Mr. Pannu testified that Mr. Grewal brought three boxes, weighing between 15 and 20 kg each, to a warehouse on December 12, 2014. According to Pannu, he and Mr. Grewal secreted the three boxes into larger Sony television boxes. After everything was loaded into the truck, Mr. Pannu set out for B.C.

(c) Mr. Pannu testified that while he slept in his transport truck on the side of a roadway, just outside of Vancouver, the shipment of contraband was stolen. He also testified that only he and Mr. Grewal knew about where the shipment was stored.

(d) After it had gone missing, Lakhvinder Dhaliwal (a relative and business partner of Pannu) heard Mr. Pannu and Mr. Grewal speaking about the value of the stolen contraband. While its contents were unknown, it was worth millions of dollars.

(e) Mr. Dhaliwal testified about things he heard Mr. Grewal say, including that he did not believe Mr. Pannu’s story about how the contraband went missing.

(f) Mr. Pannu and his mother, Ajmer Pannu, both testified about the circumstances surrounding his taking.

(g) Mr. Pannu returned to Toronto on December 17th. There was a meeting at the Pannu residence that night. Mr. Grewal, Mr. Dhaliwal and another attended. Mr. Pannu testified that they discussed the stolen shipment. Mr. Grewal said he would get back to Mr. Pannu respecting next steps.

(h) Dhaliwal testified that at the meeting, Mr. Grewal discussed a lie detector test. Mr. Pannu testified that while he was still in Vancouver, Mr. Grewal had told him during one of their many phone conversations (all of which are chronicled by phone records), to wait in Vancouver for a lie detector test to be done.

(i) Mr. Pannu testified that he was scared.

(j) Both Mr. Pannu and his mother, Ajmer, testified about the night of December 19, 2014. They saw Mr. Grewal pull into the Pannu driveway in his distinctive Hummer. Based upon a phone discussion that was happening at the time, the phone records establish that it was just after 8:00 p.m.

(k) Ajmer testified that she looked out of the living room window when she saw the lights to the Hummer enter the driveway. The Hummer pulled up to the front of the house, close to the window out of which Ajmer was looking.

(l) Mr. Grewal and another man emerged from the front of the vehicle. Both Pannu and his mother testified about how Mr. Grewal and the other man went to either side of Mr. Pannu, took him by the arms or biceps, and put him into the back passenger’s side of the Hummer.

(m) Mr. Pannu testified that he did not want to get into the vehicle, that he tried to step back, but that he was pushed in. As well, there were two men in the back seat who pulled him in.

(n) While Ajmer Pannu may well have some credibility and reliability issues that require attention, issues arising from alleged prior inconsistent statements, resolving these issues is not the function of a trial judge when considering whether there is an air of reality to a mode of participation.

(o) After Mr. Pannu was in the vehicle, Mr. Grewal drove away.

(p) Mr. Pannu testified that while he was in the backseat of the Hummer, a dark coloured cap was placed over his head so that he could not see. A binding was placed on his wrists, so that his hands were bound to the back.

(q) While still in the Hummer, Mr. Pannu testified that his cell phone rang. His mother testified that she called him shortly after she saw him get into the Hummer and the vehicle drive away. While there is no call registered on his cell phone records, a witness from Rogers Communications testified that when a call that does not connect, it will not necessarily leave a record on the receiving end. Ajmer testified that the phone did not ring and no one answered.

(r) Mr. Pannu testified that when the phone rang, Mr. Grewal asked who was calling and someone else answered that it was “house”. Mr. Pannu heard someone say to take the battery out.

(s) Mr. Pannu testified that the Hummer was driven for some distance and then stopped. He heard the men talk about another vehicle joining them. Then the Hummer was driven to a house where Mr. Pannu was taken into the basement.

(t) Once in the basement, Pannu testified that he was beaten and strangled with a wire. He was hit in the face with metal, which Mr. Pannu believed to be a firearm. At one point, the hood that had been placed over his head was lifted to permit a man to place a shotgun in his mouth.

(u) Mr. Pannu testified that he was still bound in the basement. He testified that he overheard Mr. Grewal saying that they wanted to do a test on him. He also heard Mr. Grewal speaking about getting Lakhvinder Dhaliwal.

(v) While Mr. Pannu was confronted during cross-examination with a prior inconsistent statement, suggesting he was uncertain as to whether he heard Mr. Grewal’s voice in the basement, upon re-examination he returned to his position that he heard Mr. Grewal’s voice in the basement. Again, while any alleged prior inconsistent statements will require the jury’s attention, it is not the function of a trial judge to resolve these issues on an application of this nature.

(w) While Mr. Pannu’s journey from the first basement was long, covering other locations, including a warehouse around Montreal, and the home from where he ultimately escaped five days later, the last time that Mr. Pannu heard Mr. Grewal’s voice was in the first basement.

[11] It is unnecessary to further review evidence to show the clear air of reality requiring that the jury be left with an instruction under s. 21(1) (a) of the Criminal Code. There is ample evidence that Mr. Grewal, along with another or others, took Mr. Pannu by force and against his will from Mr. Pannu’s home to another location. On Mr. Pannu’s evidence alone, Mr. Grewal was physically involved in grabbing him by the biceps, pushing him into the truck and driving away. On Mr. Pannu’s own evidence, Mr. Grewal was driving while a hood was placed over his head and bindings were placed on his wrists. Mr. Grewal was also in the basement of the first home, where Mr. Pannu was kept bound and beaten. Mr. Grewal was overheard in the basement speaking about next steps.

[12] This constitutes clear evidence capturing the entire actus reus of the crime, taking Mr. Pannu by force against his will. It also constitutes evidence upon which the jury could find that, in doing these things, Mr. Grewal intended the natural consequences of his actions, to confine Mr. Pannu. There is clear evidence upon which a reasonable jury, acting judicially, could come to the factual determinations necessary to find Mr. Grewal was a principal party in the kidnapping of Sukhpal Pannu.

(iv) Section 21(1)(b): Aiding

[13] As for aiding, it involves doing something for the purpose of assisting the principal perpetrator or perpetrators. Section 21(1)(b) maintains that a person is a party to an offence when he or she “does or omits to do anything for the purpose of aiding any person to commit it.” As this case is about doing, not omitting, I will not address omitting further. In this case, there is evidence upon which a jury, “acting judicially, could make the factual findings necessary to ground liability” on the basis of aiding in the kidnapping of Mr. Pannu: Huard, at para. 60.

[14] Aiding has both a conduct and fault requirement. In a doing (not omitting) case, the conduct must involve doing something that assists the principal or principals in committing the offence. It is about doing something to help the main actor or actors.

[15] The fault or mens rea requirement draws its meaning from “for the purpose” in s. 21(1)(b). This contains two requirements: knowledge and intent.

[16] As for knowledge, the aider must know that the perpetrator intends to commit the crime, although the aider need not know exactly how it will be committed: R. v. Briscoe, 2010 SCC 13, at para. 17. In Briscoe, Moldaver J. referred to knowledge as the pre-requisite to intent. As for intent, the aider must intend to assist the principal in the commission of the offence. While he or she need not desire that the offence be “successfully committed”, knowing that the principal intends to commit a crime, the aider must intend to assist the principal in its commission: Briscoe, at para. 16.

[17] Perhaps importantly in this case, based upon the evidence as it unfolded from Mr. Grewal when he testified, aiders can help in a kidnapping even after the victim has already been taken. In Vu, the court determined that while a kidnapping is complete in law when the victim is taken, it is not complete in fact. It is a “continuing offence that includes the victim’s ensuing confinement”: Vu, at paras. 6-7. Therefore, people who aid principals in the confinement of a victim after he has already been taken, can be liable as aiders to a kidnapping. As Moldaver J. noted in Vu, at para. 59:

In my view, the well-established principles of s. 21(1) criminal liability apply with equal force to continuing offences that have been completed in law but not in fact. In particular, where an accused – with knowledge of the principal’s intention to see a continuing offence through to its completion – does (or omits to do) something, with the intention of aiding or abetting the commission of the ongoing offence, party liability is established.

Applying that principle to this case, once it is understood that kidnapping is an aggravated form of unlawful confinement, which continues until the victim is freed, there is no reason in law or logic why a person who learns that the victim has been kidnapped and nonetheless chooses to participate in the kidnapping enterprise, should not be found liable as a party to the offence of kidnapping under s. 21(1) of the Code.

[18] There is ample evidence supporting an air of reality to Mr. Grewal’s participation as an aider to the kidnapping of Mr. Pannu. Indeed, depending upon the factual determinations made by the jury, Mr. Grewal’s own evidence could support this mode of participation, which participation could be excused on the basis of the duress. I will now review Mr. Grewal’s evidence that supports this observation.

[19] Mr. Grewal testified that he only did what he did, drive to the Pannu residence, because a white man had pointed a gun at him, threatened him and instructed him to drive there. Mr. Grewal testified that the man told him to drive to Paul’s place, not to fuck around, not to play games, that they knew where Mr. Grewal and his family lived, not to call the “pigs”, and that if he did (call the “pigs”), that they would make sure he regretted it. Mr. Grewal also testified that on route to Mr. Pannu’s residence, the man with the gun instructed him to pull over, at which point two black males entered the back of the Hummer. Mr. Grewal could hear a gun being racked in the backseat while he drove. He was scared.

[20] Mr. Grewal’s version of what occurred at the Pannu residence is fundamentally different from that of Mr. Pannu and Pannu’s mother. Mr. Grewal testified that he and the man who had pointed the gun at him got out of the Hummer. Mr. Pannu approached them. After the white gunman said a few things to Mr. Pannu, the man then guided Pannu to the Hummer by placing his hand on Pannu’s elbow. During cross-examination, Mr. Grewal demonstrated how Pannu and the white male walked toward the Hummer. It appeared as though they walked close to one another, with the man lightly placing his hand on Pannu’s elbow. There was no pushing or pulling. It was described as a guiding action.

[21] The gist of Mr. Grewal’s evidence was that Pannu went willingly to the Hummer and willingly entered the backseat. Mr. Grewal testified that he never touched Mr. Pannu.

[22] Once Mr. Pannu was in the vehicle, Mr. Grewal testified that he was instructed by the white man in the front seat to drive for just a couple of minutes, at which point he was told to pull over. Mr. Grewal testified that Mr. Pannu was not bound and nothing was placed over his head while in the Hummer.

[23] Another vehicle then met the Hummer and parked close by. Mr. Grewal testified that all of the men then exited the Hummer and entered the other vehicle. Before Mr. Pannu walked to the other vehicle, he told Mr. Grewal that he would call him in half an hour. Again, the gist of the evidence was that Pannu willingly went to the other vehicle.

[24] Before the other car drove off, Mr. Grewal was told by the original man who had pointed the gun at him, that they were just going to ask Mr. Pannu some questions and then he would be back. Mr. Grewal was reminded not to get the “pigs involved”. Mr. Grewal testified that he did not see Mr. Pannu again.

[25] While the Crown and defence have diametrically opposed versions of what happened in the initial stages of what occurred during the evening of December 19, 2014, what is not in dispute is that after Mr. Grewal was no longer with Mr. Pannu, he encouraged at least three people not to get the police involved: Ajmer Pannu, Mandeep Pannu (Pannu’s wife), and Lakhvinder Dhaliwal.

[26] Ajmer testified that shortly after she initially attempted to call her son, Mr. Grewal called her back. This call is reflected on the phone records. She asked Mr. Grewal why they had taken her son and Mr. Grewal is purported to have told her that they would be back in half an hour.

[27] Ajmer testified that when Mr. Grewal arrived at her residence without her son, he was upset and apologizing to her. He said “Auntie, don’t phone the police”. He told her that the men in the vehicle had pointed guns at his head and said not to call the police and that her son would be back in 10 minutes.

[28] Ajmer called Mr. Dhaliwal while Mr. Grewal was still present. Mr. Grewal spoke to Dhaliwal and also told him not to call the police. Mr. Dhaliwal testified that while on the phone with Mr. Grewal, Dhaliwal questioned why he “don’t call the police”. Mr. Grewal assured him that Pannu would be back “shortly”, that they were not to call the police, and that Dhaliwal should “come here”.

[29] Mr. Dhaliwal also testified about another conversation he had with Mr. Grewal, where Dhaliwal thought he was being threatened by the accused. Mr. Grewal is purported to have told Dhaliwal that he would see the “consequences” of making a call to the police. Dhaliwal testified that later that night, three cars parked close to his house, one of which he thought was the accused’s vehicle. Mr. Dhaliwal testified about seeing flashes of light, like pictures were being taken by a camera.

[30] Finally, it is not in dispute that Mr. Pannu’s wife and Mr. Grewal spoke on their cell phones at 9:36 p.m., about 90 minutes after Mr. Pannu was last seen. Mandeep asked Mr. Grewal where her husband was and he said: “I don’t know, where is he?” He then told her that Mr. Pannu was with “other people” and that they had to ask him some questions. He did not respond when Mandeep asked him who the other people were, yet he assured her that he would “bring him back”. He told her not to make a 9-1-1 call.

[31] Mandeep eventually called the police. An officer arrived at the Pannu residence at just before 10:30 p.m. At around 10:40 p.m., the officer called Mr. Grewal’s cell phone and spoke to him.

[32] Although Mr. Grewal cannot recall parts of the conversation, among other things, the officer testified that Mr. Grewal denied having been to the Pannu residence that day, denied knowing Mr. Pannu’s whereabouts, said that he had spoken to Pannu two hours previously, and told the officer to talk to Dhaliwal who knew everything. Mr. Grewal is also said to have told the officer that he was being chased and that he had to go. The call was then disconnected.

[33] While Mr. Grewal agrees that he told three people not to call the police, he says that it was because he was fearful for his safety, that of his family and, indeed, he testified that he was concerned about Mr. Pannu’s safety if the police got involved. According to Mr. Grewal, this was his sole intention in encouraging others not to call the police.

[34] There is evidence upon which a reasonable jury, acting judicially, could find the facts necessary to support a determination that Mr. Grewal aided the principals in the kidnapping of Mr. Pannu. Even if the jury had a doubt about whether Mr. Grewal physically touched Mr. Pannu, they may still find as a fact that Mr. Pannu was taken by force against his will from his residence. If so, Mr. Grewal’s driving alone could constitute an act done for the purpose of aiding the principals in the kidnapping.

[35] As well, even if the jury were to accept or have a doubt about Mr. Grewal’s evidence that Mr. Pannu essentially entered the Hummer and other vehicle willingly, there is no dispute that Pannu was kidnapped at some point after he left the Hummer. Based upon the evidence at trial, it is open to the jury to find as a fact that by the time that Mr. Grewal was telling others not to call the police, he knew full well that his friend had been kidnapped. In coming to this conclusion, the jury may consider the fact that Mr. Grewal apologized to Ajmer. They may also consider the fact that he left his friend in the company of men who had at least two firearms, one of which had been pointed at him. They may also consider the fact that when he told Mandeep not to call 9-1-1, Mr. Pannu had already been gone for about 90 minutes.

[36] If the jury were to find as a fact that Mr. Grewal knew Mr. Pannu had been kidnapped, they could find that by actively dissuading others from getting law enforcement involved, Mr. Grewal was intending to assist the principals in the kidnapping. This assistance was offered by way of encouraging others not to do as they would otherwise do, call the police involved. By keeping law enforcement at bay, in accordance with Vu, the jury could find that Mr. Grewal intended to assist what he knew to be an ongoing intentional confinement of Pannu who had been taken against his will.

[37] There is an air of reality to both modes of participation and both need to be left with jury.

(v) Thatcher Instruction

[38] In light of the conclusion that both modes of participation should be left for the jury’s consideration, an R. v. Thatcher, 1987 CanLII 53 (SCC), [1987] 1 S.C.R. 652 instruction is required so that the jury understands that, while they are required to be unanimous on whether the Crown has proven Mr. Grewal’s guilt beyond a reasonable doubt, they need not be unanimous as to the mode of participation.

[39] While the defence argued that Thatcher is a dated authority and that perhaps it is time to reconsider its wisdom, it remains entirely sound and binding law. As noted by LeBel J. in R. v. Pickton, 2010 SCC 32, at para. 58, “a jury need not be unanimous on the nature of the accused’s participation in the offence, so long as it is satisfied that the accused either committed the offence personally or, alternatively, aided and abetted another to commit the offence, provided the jury is satisfied beyond a reasonable doubt that the accused did one or the other.” While LeBel J.’s judgment was a partially concurring one, his expression of principle in the passage just cited was and is a non-contentious articulation of the Thatcher principle that remains well embedded in our law.

[40] There is no need to address this argument further. Thatcher is good and binding authority.

(vi) Conclusion

[41] If there is an air of reality to multiple modes of participation, there is an obligation to leave them for the jury’s consideration. For the reasons set out above, the evidence supports leaving for the jury’s consideration principal and aider liability. Where more than one mode of participation is left, the jury must be instructed in accordance with Thatcher. Thatcher remains good law. Section 21(1)(a) and (b), accompanied by a Thatcher instruction, must be left.

C. Spousal Privilege

[42] Crown counsel called Karanjit Singh to testify at trial. Mr. Grewal is married to Ms. Singh. She had relevant evidence to give, including when she last saw her husband on the night that Mr. Pannu was taken and when she next spoke with and saw her husband. During the course of her evidence, the defence objected to her being questioned about what she had said to her husband (not what he said to her) about various things. Ultimately, Crown counsel was precluded from pursuing this line of questioning.

[43] At the time of the offence in 2014, s. 4(2) of the Canada Evidence Act [CEA] would have precluded Ms. Singh from being a competent or compellable witness for the Crown. Section 4(2) has been revised since that time, removing the bar from prosecutorial compulsion: “No person is incompetent, or uncompellable, to testify for the prosecution by reason only that they are married to the accused”.

[44] Counsel agree that s. 4(2) of the CEA, in its current form, has retrospective application so that Ms. Singh may be compelled to testify. I agree with counsels’ position. For the most part, where legislative provisions affect substantive rights, they do not apply retrospectively. Where they are procedural in nature, and do not impact substantive rights, they enjoy retrospective application: R. v. Dineley, 2012 SCC 58, at paras. 10-13; R. v. Bengy, 2015 ONCA 397, at paras. 40-45.

[45] Counsel agree that s. 4(2) has undergone a procedural change and that it does not impact substantive rights. Moreover, it is Ms. Singh’s privilege to assert. I am content that she retained independent legal counsel and, while counsel did not appear before this court, Ms. Singh attended court with her lawyer’s letter. While the letter asserts s. 4(3) CEA privilege over her husband’s communications, it does not suggest that she is not a compellable and competent witness for the Crown. Indeed, I was informed by Crown counsel that he pre-vetted his intended general questions for Ms. Singh with her counsel in advance and counsel was content.

[46] Section 4(3) reads: “[n]o … wife is compellable to disclose any communication made to her by her husband during their marriage.” This provision grants the receiver of the communication the right to assert a testimonial privilege in respect to the received communication: R. v. Nguyen, 2015 ONCA 278, at para. 62.

[47] Once Ms. Singh commenced her evidence, and having canvassed the matter first with counsel, she asserted her s. 4(3) privilege before the jury. The procedure set out in R. v. D.Z. (1995), 1995 CanLII 893 (ON CA), 99 C.C.C. (3d) 477 (Ont. C.A.) was followed. The jury was given two mid-trial instructions in accordance with the suggested instructions in D.Z. Her testimony continued.

[48] Close to the end of the first court day on which Ms. Singh testified, Crown counsel asked some questions about text messages that she had sent to her husband. Crown counsel was not attempting to elicit Mr. Grewal’s responses. Mr. Wiley raised an objection on the basis of relevance.

[49] In considering the issue of relevance, Crown counsel expressed the view that duress was potentially in play and he did not wish to be accused of splitting his case should Mr. Grewal testify. Moreover, with or without his evidence, given Ajmer Pannu’s evidence that had already been elicited, that Mr. Grewal told her that the men in the Hummer had pointed guns at his head, the Crown took the position that duress was already in play.

[50] Crown counsel maintained that the text communications between Mr. Grewal and his wife, where she was telling him about having taken the children to the movies and what movie they were seeing, and that their youngest child was sleeping at home, was a communication that was inconsistent with one that a person who just had a gun pointed at them would be having. Should Mr. Grewal testify, the Crown planned to elicit his half of the communication, including that he said “awe” in response to his wife’s comment about their sleeping child. Crown counsel argued that this is not the kind of thing that someone who just had a gun pointed at them would say.

[51] Mr. Wiley argued that duress was not yet live as his client had not testified and may not. If his client testified, Mr. Wiley submitted that he would not object to the Crown re-opening its case to recall Ms. Singh to testify. At this stage, though, it was the defence position that there was no relevance to what Ms. Singh may have said to her husband.

[52] It is important to stay focussed on what s. 4(3) of the CEA actually protects. It does not protect communications themselves. Rather, it is a testimonial privilege that protects a married (Nguyen, at para. 131) wife or husband from being compelled to testify about the things communicated by his or her husband or wife. Justice Charron addressed this distinction in R. v. Couture, 2007 SCC 28, at para. 41:

Section 4(3) creates a spousal privilege in respect of marital communications. The question of privilege was not really an issue at common law because spouses, with few exceptions, were not competent to testify. The concept of spousal privilege was therefore created by statute after legislation in the 19th century made spouses competent witnesses. The privilege is testimonial in nature, giving a right to withhold evidence but the communications themselves are not privileged. [emphasis added]

[53] As noted by McIntyre J. in dissent in R. v. Lloyd, 1981 CanLII 219 (SCC), [1981] 2 S.C.R. 645, at pp. 654-55, “it is a testimonial privilege giving a right to withhold evidence, but it cannot be said that the information itself is privileged [emphasis added]”. While McIntyre J.’s comments are made in his dissenting judgment, the passage just set out was cited in Couture. See also the very helpful ruling of Walsh J. in R. v. Oland, 2015 NBQB 247, at paras. 11-12, rev’d on appeal, 2016 NBCA 58, but not on this point. Indeed, on this point, the ruling of Walsh J. was specifically upheld, see Oland, NBCA para. 39.

[54] While the content of relevant communications will sometimes be excluded, typically this will only arise where there is a statutory provision, such as s. 189(6) of the Criminal Code, precluding their admission: R. v. Siniscalchi, 2010 BCCA 354, at para. 53. As the text messages were not obtained pursuant to a Part VI authorization, s. 189(6) is not operative in this case.

[55] Following input from counsel, and based upon the authorities just reviewed, the court understood that the Crown would be seeking the admission of the relevant text messages that were already in the Crown’s possession. Based upon this understanding, an initial ruling was given, immediately after which the court was informed that the Crown would not be seeking the admission of the actual text messages. With this understanding in place, the basis upon which the initial ruling had been predicated fell away.

[56] What Ms. Singh said to her husband was irrelevant if the jury was not to discover what Mr. Grewal said in response. Moreover, the jury would be left to speculate about what the accused said in response to his wife’s text messages, speculation that could be prejudicial to the accused.

[57] Despite the fact that duress was already in play because of Ajmer Pannu’s testimony that Mr. Grewal told her that guns had been pointed at his head, what Ms. Singh said to her husband (as opposed to what he said to her) had virtually no probative value. When compared with the prejudice that could arise from the jury being left to wonder what Mr. Grewal said in response to his wife’s comments, the evidence was ruled inadmissible. While the Crown was permitted to explore the timing of the communications between husband and wife, Mr. Grewal’s communications were inadmissible by virtue of s. 4(3) of the CEA and Ms. Singh’s were inadmissible on the basis of irrelevance and potential prejudice.

[58] I simply note by way of observation that, in the end, this largely became a non-issue because Mr. Grewal testified and did not assert s. 4(3) privilege. He testified about the full content of the communications. He also gave explanations for why he said what he said. Certain text messages were also confirmed by him in his evidence and filed as exhibits. The Crown did not seek to recall Ms. Singh.

D. Defence of Duress

(i) Overview

[59] Mr. Grewal took the position that Mr. Pannu willingly left his home and that the kidnapping commenced after he had left the Hummer and gone to the other vehicle. As such, the primary defence position was that, while there was a kidnapping, Mr. Grewal was not involved in it. If the jury found that Mr. Grewal was involved in the kidnapping, then the defence maintained that there was an air of reality to duress and the jury should be instructed in accordance with this excuse.

[60] Crown counsel maintained that there was no air of reality to duress and it should be kept from the jury’s consideration. This submission hinged on what the Crown submitted was an obvious and clear avenue of escape, particularly when Mr. Grewal retreated to his Toronto home for a number of days while Mr. Pannu’s whereabouts remained unknown.

[61] Defence counsel responded that whether there was a safe avenue of escape could only be considered up to the point when, on the accused’s evidence, Mr. Pannu left the Hummer and got into the other vehicle. As the men with the guns were present right up to that point in time, there was a clear air of reality to the suggestion that there was no safe avenue of escape and duress should be left.

[62] I concluded that there was an air of reality to duress and it was left for the jury’s consideration. My reasons are as follows.

(ii) The facts underlying duress

[63] Mr. Grewal testified that a man pointed a gun at his mid-section, which he later said was his face and then back to his stomach area. (He told Ajmer Pannu that the men had pointed guns at his head.) Regardless of where the gun was pointed, or how many guns were pointed at him, the jury heard evidence that Mr. Grewal was threatened with a gun or guns. The jury also heard evidence about two men getting into the back seat of his Hummer with another gun.

[64] The verbal threats have been previously reviewed, including that Mr. Grewal was told not to fuck around, be a hero or play games. He was told that they knew where he and his family lived and so he should do as he was told. He was also told that the men just needed to ask Pannu a few questions and that the accused should not go to the “pigs” or he would regret it.

[65] Mr. Grewal testified that he honestly believed that there would be serious consequences if the police were called. He was fearful for his family, Mr. Pannu and himself. He also testified that he believed that Mr. Pannu would return in 30 minutes because this is what Pannu told him as he left the Hummer to get into the other vehicle.

[66] Mr. Grewal and his wife own a home in Toronto. The accused testified that later during the evening of December 19th he asked a friend to drive him there. According to Mr. Grewal, the police officer (whose evidence was previously reviewed), called him while he was on his way to that location. Mr. Grewal said that after he spoke to the officer, he threw his phone out of the car window. The accused stayed at the Toronto house until he turned himself into the authorities on December 28th. He did not call his wife between December 20 and 23, 2014.

[67] During the time that he stayed at the Toronto residence, Mr. Grewal watched CP News and knew that Mr. Pannu remained missing. Mr. Grewal acknowledges that he did not answer the door when the police came knocking on December 20, 2014. He also acknowledges that in the days following Pannu’s kidnapping, he left the residence to buy food and walked to purchase a cell phone.

(iii)The excuse of duress

[68] Duress has a dual statutory and common law existence. Section 17 of the Criminal Code provides the excuse to principal actors, provided that the offence with which they are being prosecuted does not fall within a list of exclusions. “Forcible abduction” is a listed exclusion.

[69] The common law fills in the gap for aiders, abettors and those operating with a common intention: R. v. Ryan, 2013 SCC 3, at para. 83; R. v. Paquette (1976), 1976 CanLII 24 (SCC), 30 C.C.C. (2d) 417. As noted in R. v. Aravena, 2015 ONCA 250, the s. 17 list of exclusions do not apply at common law. As LeBel and Cromwell JJ. observed in Ryan, at para. 83, “[t]his results in the rather incoherent situation that principals who commit one of the enumerated offences cannot rely on the defence of duress while parties to those same offences, however, can.”

[70] The parties agree that the defence of duress applies in this case. They do not distinguish between the two modes of participation. While one might suggest that the inclusion of “forcible abduction” in s. 17 may cover kidnapping, there is some authority suggesting to the contrary: R. v. Robins (1982), 1982 CanLII 3804 (QC CA), 66 C.C.C. (2d) 550 (Queb. C.A.). See also the discussion of Robins in R. v. Mena (1987), 1987 CanLII 2868 (ON CA), 34 C.C.C. (3d) 304 (Ont. C.A.), at paras. 39-41 and the discussion of this point in R. v. Li (2002), 2002 CanLII 18077 (ON CA), 156 O.A.C. 364, at paras. 13-16. The positions taken and the agreement of counsel make it unnecessary to address this issue. At a minimum, common law duress clearly applies to aiders to a kidnapping.

[71] There must be an air of reality to duress before it can be considered by the jury: Ruzic, at para. 44; Li, at para. 33. In the context of self-defence, McLachlin C.J. and Bastarache J. held in Cinous, at para. 47, that there is no air of reality where a jury, acting reasonably, cannot acquit on the basis of the accused’s evidence, even if it is accepted as true. Assuming there is an air of reality to duress, it will be left for the jury’s consideration and Crown counsel holds the burden of proving beyond a reasonable doubt that the accused did not act under duress.

[72] There are six elements to statutory and common law duress, the third one being that there is no safe avenue of escape: Ryan, at para. 81. This is the element that the Crown focusses on as being without an air of reality.[^1] If there is no air of reality to the suggestion that there was no safe avenue of escape, then there is no air of reality to duress and the jury cannot be asked to consider whether the accused’s conduct should be excused on this basis.

[73] Whether the accused did not have a safe way to avoid the harm threatened is to be considered on a modified objective test. The focus is on whether a “reasonable person in the same situation as the accused and with the same personal characteristics and experiences would conclude that there was no safe avenue of escape or legal alternative to committing the offence”: Ryan, at para. 65.

[74] Crown counsel maintains that a reasonable person in Mr. Grewal’s circumstances would have undoubtedly sought help during the period of time that he stayed at his Toronto residence. He had time to go buy food. He had time to go buy a cell phone. He clearly had time to seek assistance.

[75] While Crown counsel provided numerous authorities said to support the proposition that an accused cannot say he has no safe avenue of escape when he has opportunities to seek help along the way, the factual matrix of these authorities is fundamentally different than this case. The authorities focus on an accused’s clear opportunities to avoid the harm threatened while he continues to take actions that form part of the actus reus of the crime. This case involves a more uncommon situation where the temporal parameters of the accused’s actions do not coincide with the temporal parameters of the offence.

[76] As previously noted, kidnapping is a continuing offence that includes the victim’s confinement: Vu, at paras. 6-7. Mr. Pannu was taken on December 19th and did not escape until December 24th, meaning that while the kidnapping started on December 19th, the offence had a factual life of almost six days. Despite the length of the crime, there is no evidence to suggest that Mr. Grewal was involved in the offence after the night of December 19th or, at the very latest, into the early morning hours of the next day.

[77] The legal question for determination is whether the factual underpinnings for the existence of no safe avenue of escape can be gleaned from the accused’s conduct following his acts constituting his commission of the offence. If the answer is yes, then there is considerable force to Crown counsel’s position that there is no air of reality to duress in this case. After all, once he was at the house in Toronto, away from the men with the guns, Mr. Grewal clearly could have done any number of things, including contact the authorities to let them know what had happened.

[78] To answer the question for determination, it is important to focus on the purpose of duress. It is not a defence, but an excuse for those who commit involuntary acts. It rests on the principle of fundamental justice that people should only be held criminally accountable for their voluntary actions: R. v. Ruzic, 2001 SCC 24, at para. 43; Aravena, at para. 46. As noted in Ruzic, at para. 47: "only voluntary conduct - behaviour that is the product of a free will and controlled body, unhindered by external constraints - should attract the penalty and stigma of criminal liability". See also: R. v. Hibbert, 1995 CanLII 110 (SCC), [1995] 2 S.C.R. 973, at paras. 50-53.

[79] Voluntary conduct lies at the heart of the criminal law because it is how a person chooses to act that is deserving of criminal sanction. As Doherty and Pardu JJ.A. noted in Aravena, at para. 46, “voluntary conduct” is the “bedrock principle of the criminal law”:

Criminal liability requires voluntary conduct. Voluntariness reflects individual choice and with choice comes responsibility for one’s actions. Society can properly hold individuals to account if they choose to act. [emphasis added]

[80] It is against this understanding of duress, focussed as it is on excusing involuntary actions, that its elements must be assessed. When considering whether there is an air of reality to no safe avenue of escape, the court must consider whether a reasonable person would conclude that at the time that he committed the offence, there was no “legal alternative” available: Ryan, at para. 65. The real question for determination is whether, at the time that he acted, the accused had a choice to do otherwise; a safe way to avoid the harm threatened. If there is no air of reality to the suggestion that he had no legally safe alternative to committing the actus reus of the offence – no safe avenue of escape – then duress should be held from the jury’s consideration.

[81] When considered in this way, the relevant period of time for consideration runs between and including when the threat is made and the accused’s commission of the offence. In other words, the period of time leading up to and including the commission of the acts that are said to constitute the offence. Once the accused has completed his involvement in the crime, we no longer ask whether he had a “legal alternative to committing the offence” (Ryan, at para. 65) or a “reasonable alternative” (Ruzic, at para. 61) to committing the crime.

[82] Importantly, this is not to say that what an accused does or does not do after his involvement in the crime is irrelevant to the assessment of duress. Quite to the contrary. His conduct following his acts may well shed light on what he did, why he did it and whether he had a choice in the matter. In other words, it can be powerful after-the-fact conduct evidence. Indeed, in this case, Crown counsel asked for and was granted an after-the-fact conduct instruction relating to the accused’s retreat to the Toronto residence.

[83] When considering whether there is an air of reality to the suggestion of no safe avenue of escape, though, the time frame for consideration must remain focussed on the period of time leading up to and including the accused’s acts that are said to constitute the actus reus of the offence; those acts that he says he had no legal alternative but to commit.

(iv) Applying the Legal Principles to this Case

[84] There is an air of reality to duress in this case.

[85] Mr. Grewal’s testimony supports the elements of duress. For instance, there is evidence that Mr. Grewal was threatened with serious bodily harm or death. The combination of having the gun pointed at him, being told that the men knew where he and his family lived, and that he should do as he was told or he would be sorry, clearly constitutes evidence of a threat to cause bodily harm or death.

[86] There is also evidence upon which a reasonable jury could find that he reasonably believed that the threat would be carried out. There is also evidence that he did what he did because of the threat and that his actions were not disproportionate to the harm threatened.

[87] As for whether he had a safe avenue of escape, this element should be considered in relation to the circumstances between and including the threat and Mr. Grewal’s commission of the offence. As for his acts constituting the actus reus of the offence, this includes any act that a reasonable jury, properly instructed, could find was part of the commission of the offence. As previously discussed, this includes acts right up to the time when Mr. Grewal was encouraging others not to call the police, acts that the jury could find were committed in the context of the accused aiding others in Pannu’s kidnapping.

[88] While Mr. Grewal maintains that the safe avenue of escape should only be considered up to the point that Mr. Pannu left the Hummer, the accused’s testimony does not exclusively govern the assessment of the actions that constitute the actus reus of the crime. All of the evidence must be taken into account.

[89] In this case, there is a significant body of evidence suggesting that Mr. Grewal’s acts, for which he says he should be excused, extend well beyond Mr. Pannu getting out of the Hummer. As previously reviewed, there is evidence that Mr. Grewal was in the basement of the first home where Pannu was held. There is also evidence about his encouragement of others not to call the police, over a period of time after Pannu had gone missing. If the jury were to find as a fact that these acts constitute part of the commission of the crime, then the jury would have to consider, on an objective modified test, if the Crown had proven beyond a reasonable doubt that Mr. Grewal had a safe way to avoid the harm threatened during this period of time.

[90] Once Mr. Grewal was away from the men with the guns, and out trying to convince others not to call the police, he had an opportunity to seek a legal means by which to avoid the harm threatened. Despite this fact, he provided evidence about why he did what he did and why he did not seek help. In all of the circumstances, it cannot be said that, up to the time that his last actions were taken, there is no air of reality to the suggestion that he had no safe avenue of escape.

(v) Whether the jury must be unanimous as to the reason for why duress fails

[91] Despite holding a few pre-charge conferences, and distributing draft charges in advance, the defence raised an objection to the charge on duress on the same morning that the jury was to be charged.

[92] Counsel objected to the jury being instructed that while Crown counsel must prove beyond a reasonable doubt that at least one of the pre-conditions to duress was absent, that the jurors need not agree on the same element. Counsel argued that this could confuse the jury and lead to an inconsistent verdict. While counsel fairly acknowledged that this was part of the standard specimen instruction, he maintained that this case was really about whether the Crown had proven beyond a reasonable doubt that the accused had a safe way to avoid the harm threatened and the jury should be so instructed.

[93] This objection was dismissed and the jury was charged.

[94] Once duress is left with the jury, it is not for the accused to prove that he acted under duress. It is for Crown counsel to prove that he did not. In brief compass, the Crown can do this by proving beyond a reasonable doubt that any of the elements of duress are absent: (1) that the accused was not threatened with death or bodily harm; (2) that the accused did not reasonably believe the threat would be carried out; (3) that the accused had a safe way to avoid the harm threatened; (4) that the threat did not cause the accused to act; or (5) that the harm caused by the accused was disproportionate to the harm threatened.

[95] I start with the observation that both the specimen instruction from Watt’s Manual of Jury Instructions and the Canadian Judicial Council Instructions incorporate what I would refer to as a quasi-Thatcher instruction. In David Watt, Watt’s Manual of Jury Instructions, Duress, Final 67, the suggested instruction reads as follows:

It is for Crown counsel to satisfy you beyond a reasonable doubt that what (NOA) did was voluntary, the result of his/her free choice. To do that, Crown counsel must prove beyond a reasonable doubt that at least one of these essential elements of duress is absent. All of you do not have to agree on the same element. [Emphasis added]

[96] The instruction then goes on to review the elements of duress, explaining that if “you are satisfied beyond a reasonable doubt that any of these elements does not apply” then the accused is not excused from criminal liability as a result of duress.

[97] As for the Canadian Judicial Council Instructions on Duress, this instruction maintains that unless Crown counsel proves beyond a reasonable doubt that “at least one” of the conditions for duress is absent, then the accused must be acquitted. The instruction goes on to review the conditions that the Crown must prove beyond a reasonable doubt and then suggests as follows:

If each of you finds that the answer to one or more of these questions is “yes” [that the Crown has proven it beyond a reasonable doubt, then], the defence of duress fails. It does not matter if you do not all agree on which of these questions is answered “yes”.

If you agree that the answer to all five questions is “no”, then the conditions for duress are present and you must acquit (NOA).

[98] The instruction concludes with a summary of the elements of duress, reminding jurors that if they have found that the Crown has proven beyond a reasonable doubt that at least one of the elements of duress does not apply, then the defence of duress fails. It goes on: “To repeat, if each of you finds that the answer to one or more of these questions is ‘yes’, the defence of duress fails. It does not matter if you do not all agree on which of these questions is answered ‘yes’ [emphasis added]”.

[99] There is good reason that both sets of standard jury instructions include this legal direction to jurors. In accordance with Thatcher, reviewed earlier in these reasons, if jurors can be apart in their view as to the accused’s mode of participation in a crime, there is no reason that they must be unanimous in how the Crown has proven beyond a reasonable doubt that the accused was not acting under duress or, put a different way, what the accused did was voluntary. I say this for a few reasons.

[100] It is a well-established principle of law that different jurors may be convinced beyond a reasonable doubt of an accused’s guilt by the existence of different facts: R. v. Bouvier (1985), 1984 CanLII 3453 (ON CA), 11 C.C.C. (3d) 257 (Ont. C.A.), at p. 264, aff’d 1985 CanLII 17 (SCC), [1985] 2 S.C.R. 485n. As noted by Martin J.A. in Bouvier, “the standard of proof beyond a reasonable doubt does not apply to individual items of evidence, or the separate pieces of evidence which make up the Crown’s case, but to the total body of evidence upon which the Crown relies to prove guilt.”

[101] When it comes to duress, there are different things that the Crown can prove beyond a reasonable doubt, each of which will cause the legal excuse to fail. These elements are much like findings of fact, each of which could be dispositive of the legal result. Like findings of fact, or modes of participation, that can drive individual jurors to legal conclusions, there is no reason that the jurors must be unanimous in how they arrive upon those conclusions. Some jurors may be satisfied beyond a reasonable doubt that Mr. Grewal was an aider and others that he was a principal actor. What is critical is that the jurors join in unanimity on the end result, that the Crown has proven beyond a reasonable doubt that the accused committed the offence.

[102] Equally, when it comes to duress, jurors should not be required to make a choice on matters of “legal indifference”: Thatcher, at para. 73. From a legal perspective, it does not matter which or how many elements of duress each juror finds the Crown has disproven beyond a reasonable doubt. For instance, it does not matter whether one is satisfied beyond a reasonable doubt that there was no threat and another that there was a safe way to avoid the harm threatened. Both of these findings lead to the same legal conclusion: duress fails.

[103] Like modes of participation, it is not legally significant how individual jurors come to their findings, provided that, in the end, they are unanimous that the Crown has proven beyond a reasonable doubt that the defence of duress has failed. The jurisprudence is clear that it fails if any one of its elements are disproven beyond a reasonable doubt. Individual jurors can get to this conclusion in different ways. What matters is that all 12 come to the conclusion that they are satisfied beyond a reasonable doubt that at least one of the essential elements of duress is absent. This conclusion means that duress fails and the accused will not be excused for his voluntary conduct.

Fairburn, J.

Released: June 30, 2017

[^1]: Crown counsel also argued that there was no air of reality to duress because Mr. Grewal was part of a criminal association and subjected himself to the threats he ultimately endured. There was insufficient evidence supporting this suggestion. As such, when duress was left, the Crown’s request for an instruction on this basis was also dismissed.