Her Majesty the Queen v. Bickramjit Dhaliwal, 2017 ONSC 4250
COURT FILE NO.: 3806/09 DATE: 2017-07-12 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent/Crown – and – BICKRAMJIT DHALIWAL Applicant/Accused
Counsel: Robin Flumerfelt, Counsel for the Respondent / Crown James Lockyer, Counsel for the Applicant / Accused
HEARD: July 6, 2017
BEFORE: The Honourable Mr. Justice C. S. Glithero
RULING ON STAY APPLICATION
1This is an application for an order staying proceedings in the retrial of the applicant on two charges of possession of handguns contrary to s.92(1), a charge of possession of cocaine contrary to s. 5(1) of the CDSA, and a charge of public mischief contrary to s.140(1)(b). The first three offences are alleged to have occurred on December 31, 2007, and the fourth offence is alleged to have occurred on January 1, 2008. Mr. Dhaliwal was convicted at his first trial on September 22, 2010, following a trial by judge and jury. He appealed his conviction and on August 31, 2016 the Court of Appeal ordered a new trial. That retrial is scheduled to commence October 16, 2017.
Summary of the Factual Allegations
2The charges emanate from a family feud. It appears that Bakshish Saraan, the applicant’s sister, fell in love with Parminder Mahal, who was married to Bakshish’s niece, Baban. As this relationship became known, various members of the family took sides over the allegations of infidelity and dishonour. The applicant sided with Bakshish. The applicant’s nephew, Raju Dhariwal, Baban’s brother, sided with Parminder.
3On December 31, 2007 Raju’s wife discovered two handguns and two bags of cocaine under the front passenger seat of the family car and the police were called and seized these items.
4On January 1, 2008 the applicant called the police anonymously from a pay phone and reported that there were drugs and guns in Raju’s car and in his home, and that Raju was a drug dealer and a counterfeiter with terrorist connections. The applicant’s call to the police was recorded, and the recording was played the following day to Raju, who identified the voice of the caller as being that of the applicant. That same day, the applicant was arrested. Drugs and guns were found days later in Raju’s home but there no charges in respect of them.
5The Crown’s theory was that the applicant planted, or arranged to have planted, the guns and cocaine in the car and then made the anonymous call to the police intending to have Raju and perhaps Parminder falsely charged with the gun and drug offences.
Significant Evidence at the First Trial
6The applicant gave evidence denying that he had planted the guns and cocaine in the car. He testified that his sister, Bakshish, called and then met him. She advised him that Parminder had called her and warned her that Raju had guns and drugs in his car and house and was coming after both she and the applicant, and that she should warn him as well. The accused testified that he made the call to the police anonymously and from a pay phone because it was a family dispute and hence a source of embarrassment.
7Bakshish testified that Parminder had telephoned her and advised her of the presence of the guns and drugs in Raju’s car and of Raju’s intention to come after her and the applicant. She further testified that she so advised the applicant of this information, and that the applicant then reported the matter to the police in good faith in that he believed what Bakshish had advised him was true.
The Successful Appeal
8While other grounds of appeal were argued, the Court of Appeal chose to determine the appeal on the basis of issues that developed during the cross-examination of the applicant, and those which developed during the cross-examination of Bakshish.
9The Court of Appeal’s judgment is reported at 2016 ONCA 652. In respect of the applicant’s cross-examination, the court found portions of it to have been improper by calling upon the applicant to explain his theory by way of explanation of the evidence against him. The court held that this line of questioning was improper, and ought not to have been permitted by the trial judge over the defence objection as it would suggest to the jury that there was some obligation on the applicant to offer an explanation to the Crown’s theory, which thereby ran contrary to the presumption of innocence.
10In terms of the grounds of appeal relating to the cross-examination of Bakshish, she was the final defence witness. Her evidence was obviously important in that it supported that of the accused as to why he telephoned the police. Her cross-examination by trial Crown counsel was largely completed, but was put over to the following day for what Crown counsel indicated would be “a few minutes” in duration.
11That next morning, another issue was dealt with first. During a court recess the trial Crown used a courtroom telephone to make a long distance call to Parminder, who was in India. The Crown put the call on speaker phone. Both ends of the conversation were clearly audible to those in the courtroom, which included the applicant, his trial lawyer, Raju and his wife, and the investigating officer, and other observers. Bakshish, whose cross-examination was yet to be completed, was not in the courtroom at the time of the call.
12The essence of the telephone call between the Crown and Parminder was to ascertain whether or not Parminder had indeed phoned Bakshish on January 1, 2008 and warned her that Raju had guns and drugs in his car and in his home and was coming after her and the applicant. Parminder was asked and denied having made such a call, and told the Crown that he had not spoken to her since 2004.
13When the cross-examination of Bakshish continued, the Crown suggested to her that she was aware that he had spoken by telephone that morning to Parminder. She denied such knowledge. The Crown then suggested that she had not spoken to Parminder since 2004, which was the date of a taped call between the two and which became known to family members and was the source of the romantic relationship giving rise to the feud, and which mirrored what Parminder told the Crown in the phone call. Neither defence counsel nor the trial judge took exception to this line of cross-examination.
14The Court of Appeal held that the telephone call made in the courtroom in the presence of participants and others was improper. The trial Crown counsel was cross-examined as part of the fresh evidence application and admitted that Parminder had not been interviewed by the police or Crown and that he had no intention of calling Parminder as a witness. Accordingly, his suggestion to Bakshish as to what he had been told by Parminder was hearsay as the clear inference before the jury was that his questioning arose from his conversation with Parminder. The court concluded that the call to Parminder, in a public courtroom, with others present, using a speaker phone was a deliberate ploy by the Crown to try and influence the evidence of Bakshish, as the court inferred that the Crown intended that Bakshish learn of his telephone call with Parminder prior to the resumption of her cross-examination.
15Because of the improprieties by trial by Crown counsel during the cross-examination of the applicant, and preceding and during the cross-examination of Bakshish, the applicant’s supporting witness, including as it did the introduction of hearsay by the Crown himself, the court concluded that “the Crown’s conduct was sufficiently prejudicial that it deprived the appellant of a fair trial.” The new trial was ordered.
Evidence of Trial Crown Counsel
16The trial Crown gave evidence by affidavit and on cross-examination as part of the fresh evidence application before the Court of Appeal. As a result, it is clear that he made no notes of the telephone call nor did his investigating officer who was present for it. The evidence of the trial Crown was to the effect that he did not appreciate that the defence position was that the applicant admitted making the call to the police, but did so for an innocent purpose, and that he had not known that until the beginning of the defence case when the applicant so testified. It became evident during his cross-examination on the fresh evidence application that in fact the trial transcript showed that trial defence counsel cross-examined two Crown witnesses to have them clearly confirm that it was the applicant’s voice on the taped call to the police. Those two crown witnesses were the applicant’s brother Jaswinder, and Raju. Crown counsel, in so acknowledging, testified “he certainly seems to be nailing him down that position.” But his evidence is that at trial he “just didn’t pick up on that” in the evidence of either witness, and continued on in the belief that the defence was that the applicant did not make the call.
17It also became clear that the Crown nor the police had never interviewed Parminder and that the Crown did not intend to call him as a Crown witness. The Crown had not advised trial defence counsel that he was going to make the call, but relied on the fact that defence counsel was present when the call was made as constituting disclosure to him. The trial Crown acknowledged being aware of those that were present for the call and indeed testified that he wanted everyone to know what he was doing. He eventually agreed that he may have had the idea that Bakshish would hear about his call to Parminder before he continued cross-examining her.
18The applicant alleges further inappropriate conduct by trial Crown counsel. Raju Dhariwal, the main Crown witness, testified that he had the applicant’s son move his car, which was blocking another car, at a party on December 27, 2007, with the suggestion being that that’s how the drugs and guns got planted in Raju’s car. The 14 year old son was called as a defence witness and denied this suggestion, but in cross-examination the Crown suggested that the applicant had paid bills on behalf of the son, an apparent attempt to show reliance on his father, and hence bias on the part of the son towards his father. Trial defence counsel did not object to questions relating to other expenses being paid by the accused on behalf of the son, but objected to this reference to legal expenses as being prejudicial. The trial judge permitted the question. While argued before the Court of Appeal, the court chose not to address this ground of appeal in its decision. Before me, the applicant alleges this to be further improper Crown conduct, which should be taken into account on this application for a stay of the re-trial proceedings.
19It is submitted on behalf of the applicant that there was further unfairness of a similar type, but to a more serious extent during the cross-examination by trial Crown counsel of Bakshish. It was suggested to her in a series of questions that some of her nephews or other “kids in the family” had gotten into a bit of trouble from time to time, and had been arrested. Bakshish countered these questions by asking who Crown counsel was referring to. Rather than answering that, Crown counsel instead suggested to her that Raju had never been in trouble and “he has never been a guy you’d be worried about as an armed, dangerous individual, correct?”, and that she had never heard anything to suggest that he was “carrying a weapon or is a little bit violent or anything of that nature?”.
20Crown counsel had no factual information by way of support for such suggestions of unsavoury backgrounds for members of her family. On being cross-examined as part of the fresh evidence application, he gave various implausible explanations for having made those suggestions. As that cross-examination was structured, it gave rise to the clear inference that there were criminal antecedents for members of the applicant’s family, as contrasted to the opposite for Raju. While argued on appeal, the court chose not to address this ground of appeal in its decision. The applicant urges me to include this further improper Crown conduct as part of the cumulative effect justifying a stay of the re-trial proceedings.
21The applicant also alleges impropriety in that whereas the trial judge had ruled a statement by the applicant to the police to be inadmissible, trial Crown put to Bakshish that the first time the police heard anything about this alleged phone call was during the evidence at trial. The applicant suggests that the series of questions was improper in that it disclosed to the jury that the accused had made a prior statement to the police. I don’t think it to be so clear. What happened is that trial Crown counsel asked the witness why she hadn’t phoned the police to tell them they had made a mistake in arresting the accused, when in fact it was Raju who was armed and was the danger. One of her answers was that Parminder had told her not to tell anyone except the accused. But in the context of this concern, the witness also indicated that she did not phone the police because she believed they would not believe her because they hadn’t believed the accused. As she put it, if they didn’t believe my brother, how could they believe me? I
22In response to that answer, Crown counsel then suggested to the witness that the first time the police had heard anything about Parminder’s call to her was here in the trial. So it was the witness who first mentioned conversation between the accused that the police by her reference to a belief that if they did not believe him, they wouldn’t believe her. But it is the Crown who then in effect tells the jury that the first time the police have heard about a telephone call is during the course of the trial. It was a comment better left unsaid by the Crown, but is made more understandable by the witness’ introduction of the idea that the accused had said something to the police. Indeed, based on the answer given by the witness, the jury would have understood that the accused did tell the police about the phone call but wasn’t believed.
23The applicant also relies on past prosecutorial misconduct on the part of trial Crown counsel in the case of R. v. Singh, 2013 ONCA 315. There the defence appeal was allowed because the Crown had improperly cross-examined the accused on why any of the other Crown witnesses and participants in the crime would have a reason to lie about the accused’s involvement.
24On the applicant’s behalf, it is also submitted that there was questionable conduct on the part of the trial Crown in terms of his actions with respect to the phone call to India and his testimony about it on the fresh evidence application. Crown counsel gave various explanations as to whose idea it was to make the call, varying between whether it was Raju’s idea to do so, or the Crown’s idea, which he then asked Raju about. The Crown admitted he got the telephone number in India from Raju, but that the Crown had no idea whether there would be anybody there to answer the call. When further questioned, he admitted he didn’t remember whether or not Raju had told him Parminder would be there to answer the call. If the latter were the case, the applicant surmises that there was an opportunity for collusion between Raju and Parminder before the call was made.
25The applicant further submits that an adverse inference should be drawn against the Crown on this application by reason of the fact that the Crown has not produced any affidavits from the investigating officer, from Raju Dhariwal, or Parminder Mahal, or called them to give evidence, either for purposes of the fresh evidence application on the appeal or for purposes of this application, when in fact all three of those persons would be in a position to give evidence on these issues surrounding the telephone call. This submission by the applicant is advanced as being parallel to the situation in R. v. Ahluwalia (2001), 149 CCC (3d) 193. Improprieties or failings by the Crown in that case gave rise to a comment by Doherty J.A. that “abuse of process arguments, apart entirely from an entrapment claim, may well be open.” Both counsel argued the applicability of Ahluwalia as a separate aspect of this application. I will deal with it similarly in my analysis.
Requirements for a Stay of Proceedings
26It is clear that a stay of proceedings for an abuse of process is the most drastic remedy that will succeed in only the clearest of cases. See R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309 at para. 30. (Note that this case is also reported as R. v. Piccirilli, (2014), 308 C.C.C. (3d) 445).
27Such applications fall into two categories generally:
(1) “where state conduct compromises the fairness of an accused’s trial (the main category)”; or
(2) “where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual category”)”. See Babos, para 31.
28Babos also enunciates three requirements applicable to both categories:
“1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome (Regan, at para. 54);
There must be no alternative remedy capable of redressing the prejudice; and
Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing this conduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits” (Ibid., at para. 57).”
29On the main category of cases, the question is not only whether the fair trial right has been prejudiced, but also whether that prejudice will be carried forward through the proceedings sought to be stayed, that is whether or not the unfairness is prospective: Babos, para. 34. This is further dealt with at para. 38 where it is made clear that the question is whether allowing the matter to proceed further would do further harm to the integrity of the justice system, but allows that there are cases where proceeding further “would lend judicial condemnation to the impugned conduct”.
30At para. 39 in Babos the court noted that in cases where trial fairness is the issue, often the ordering of a new trial is sufficient to restore the fair trial right. But in cases falling within the residual category, the aim is not to provide relief for a wrong done earlier in the process, but instead the “focus is on whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward”.
31At para. 40 the court made clear that the balancing referred to in the third stage of the test need only be undertaken where there is uncertainty as to whether a stay ought to be granted on a consideration of the first two parts of the test. For cases following in the main category, often the balancing stage will not be necessary as it will have been determined that the fair trial right was not prejudiced, or that any such prejudice can be remedied by means short of a stay.
32The balancing stage is often more important in cases involving the residual category of prejudice to the integrity of the justice system. The court must then decide as between two choices in terms of which “better protects the integrity of the system: staying the proceedings, or having a trial despite the impugned conduct” (para. 41). Things to be considered in that balancing include “the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges he or she faces, and the interests of justice in having the charges disposed of on the merits. Clearly, the more egregious the state conduct, the greater the need for the court to dissociate itself from it. When the conduct in question shocks the community’s conscience and/or offends its sense of fair play and decency, it becomes less likely that society’s interest in a full trial on the merits will prevail in the balancing process. But in residual category cases, balance must always be considered”. (para. 41).
33As held at para. 51, on this residual category the applicant faces an onerous burden, and cases which succeed will be “exceptional “and “very rare”. At para. 36 the Supreme Court also held that usually what is required is more than just past egregious conduct, but rather that the misconduct will continue if the case is allowed to proceed. This same direction was established in R v Zarinchang, 2010 ONCA 286, [2010] O.J. No. 1548 at para. 57 in terms that the focus must be “directed at prospective prejudice, not to redress past prejudice.”, and in R. v Arcand 2008 ONCA 595 at para. 75.
Position of the Applicant
34As to the “main category” here, that of compromising the fairness of the applicant’s trial, counsel acknowledge that there has been no breach of s.11 (b) of the Charter because appellate delay does not count in a Jordan calculation, but alleges that nevertheless the fair trial to which the accused was entitled in 2010 is now scheduled to occur 7 years later. Counsel relies on the general negatives of flowing from delayed trials relating to liberty and the security of the person, prolonged stress and anxiety, and the potential for prejudice in mounting an effective defence as a result of fading memories or lost evidence.
35The applicant also relies on his affidavit and that of his wife sworn in May of this year, speaking of the emotional and financial toll on he and his family by reason of the passage of 9 years since the charges were laid and the restrictions created by the conditions of his release. He lost his employment as a result of these charges and has been unable to find replacement employment and has been diagnosed in 2011 with clinical depression and is on medication. He also swears to the fact that his funds have been depleted by the cost of defending these allegations and he is now unable to retain counsel for the duration of the trial.
36As to the “residual category”, that is state action comprising the integrity of the judicial process, the applicant again relies on Babos as establishing that there are limits to the type of conduct that society will accept in the prosecution of crimes and that there are cases where the conduct is so offensive that the concept of having a trial, even if it can be a fair one, will still be offensive to society’s sense of fair play and decency. He submits that here the circumstances of the telephone call, found by the Court of Appeal to be a “deliberate ploy”, constitutes an abuse falling within the residual category. He also submits that here there was an abuse of process by reason of the alleged failure of the Crown, both on appeal and in this application to produce evidence in admissible form, either by affidavit or production for purposes of cross-examination of the investigating officer, Raju and Parminder so as to clarify issues surrounding the telephone call to India. By analogy to Ahluwalia, the applicant says there are inferences of trial Crown complicity in the making of a staged telephone call, and that there was a resulting duty on the Crown to call explanatory evidence and make it available to the court. It is submitted on his behalf that the “deliberate ploy”, as found by the Court of Appeal, encompasses the inference that the call was staged, in that Parminder had been advised that the call was coming and made aware of what to say.
37The applicant contends that the circumstance here constitutes abuses of process under both trial fairness and the residual categories, and that no remedy short of a stay of proceedings is appropriate.
Position of the Respondent Crown
38The Crown concedes that the handling of the telephone call by trial Crown counsel was wrong and improper, but argues that it falls far short of justifying a stay of proceedings. He stresses that it was the procedure utilized which was wrong, and that the impugned evidence, if proffered in a procedurally correct manner, was proper and admissible. The Crown’s position is the finding by the Court of Appeal of a “deliberate ploy” is properly construed as relating to the handling of the call, and does not go further to reasonably suggest any collusion or concoction of false evidence or involvement therein by trial Crown counsel.
39The Crown contends that the trial fairness category here has already been remedied by the granting of a new trial, which obviously will not repeat the same errors as those giving rise to the successful appeal.
40As to the residual category the Crown contends that the errors here fall far short of undermining of the integrity of the judicial process so as to warrant a stay. Particularly on a balancing of the community’s interests in a trial on the merits, as against the benefits of a stay to maintain the integrity of the process, the Crown maintains that the former clearly prevails.
41The Crown contends that factually here there was no failure here as was found to have taken place in Ahluwalia, and submits that reliance by the applicant on that argument is both misplaced and only unfairly raised at the last minute by the applicant.
Discussion
42I turn first to the contention that there has been a Crown shortcoming here of the nature identified in Ahluwalia. In that case the accused trafficked drugs with an undercover paid agent of the F.B.I. and argued that he had been entrapped. The undercover agent admitted to only one prior conviction, both in chief and under cross-examination. The disclosure to defence counsel corresponded to that evidence of just one prior conviction. After conviction and sentencing, defence counsel learned of additional convictions for a drug and assault with a weapon offences. He sought an explanation from the Crown for the discrepancy. The Crown confirmed that the additional offences were accurate and claimed neither Canadian Crown or police had any knowledge of them until making further enquires of the F.B.I. in responding to the defence request. Defence counsel sought to have both the undercover agent and his F.B.I handler produced for cross-examination so as to ascertain why the full record had not been produced. The Crown refused to do so, or to provide any further explanation for the incomplete disclosure. On appeal, the fresh evidence as admitted and a new entrapment hearing was ordered.
43The Court of Appeal held that it was unnecessary to decide whether the impact of the fresh evidence on the credibly of the agent was in itself sufficient reason to warrant a new hearing, because the fresh evidence raised serious issues of state complicity in the incomplete and misleading disclosure, such call into question the integrity of the entire investigation. The court found that the Crown ought to have recognized the serious concerns raised, ought to have thoroughly investigated the matter, and ought to have shared the results of that investigation with the defence. In so failing, the Crown had failed in its duties to the administration of justice. The circumstances suggested the real possibility that the agent was comfortable in maintaining that there was only one prior conviction because he knew that only that one conviction had been disclosed to the defence, in turn giving rise to the potential of complicity by those making that disclosure. At para. 64, Doherty J.A. indicated that the answer to the serious questions about state involvement could “raise abuse of process concerns apart entirely from entrapment”. At para 74 he held that “The fresh evidence established beyond peradventure that Makdesian committed perjury. It also raises the reasonable possibility of state complicity in that perjury.” (emphasis added)
44By analogy to Ahluwalia, this applicant contends that the Crown failed here to respond to appropriate questions posed by the defence seeking further information about the making of the telephone call to India, and that the Crown failed in its duty to the administration of justice to investigate and provide evidence relevant to what the defence contends to be the logical inferences arising from the making of the telephone call to India. I think it fair to say that both counsel before me were somewhat uncomfortable in bringing forth correspondence between them, and as between Mr. Lockyer and Ms. Joyal, Crown counsel on the appeal. On the day of this hearing, Mr. Lockyer filed four pieces of such correspondence. In response, Mr. Flumerfelt filed a compendium containing 20 pieces of correspondence, which included the four proffered by Mr. Lockyer during his submissions. All of such correspondence was exchanged between counsel prior to the hearing of the appeal.
45In the case relied upon, Ahluwalia, communications between counsel concerning the impugned disclosure and the consequences of it were placed before the Court of Appeal and taken into account by it. Similarly here, it seems to me that the communications between counsel are necessary and admissible (not for the truth of the contents but rather for the fact that they were made) in a determination as to whether there has been any failure on the part of the Crown, by way of analogy to Ahluwalia, as claimed on behalf of the applicant.
46On a review of this correspondence, in my view, it cannot be said that the Crown failed to investigate the circumstances surrounding the making of the telephone call to India, as it was requested to do on behalf of the then appellant. Of particular significance are the following items:
(a) By letter dated February 27, 2013, Crown appeal counsel forwarded to Mr. Lockyear a transcript of a K.G.B. statement of Parminder Mahal, which is 39 pages in length. The investigating officer interviewed the witness by video link on December 12, 2012. In it the witness describes the circumstances of the telephone call by Crown trial counsel to him when he was in India, and describes the history of his communications with Bakshish and denies a telephone call to her on December 31, 2007 warning her that Raju was in possession of guns and drugs and had threatened to harm she or the accused. Importantly to this issue, Parminder indicated a willingness to attend, if necessary, to give evidence in this matter on the appeal and asked only that he be given sufficient notice to make arrangements to travel from Florida, where he was practising dentistry, to Ontario. His willingness to give evidence, as expressed in the transcript, was accordingly made known to the defence by the letter of February 27, 2013. Accordingly, the Crown provided sworn evidence from Parminder denying the call he was alleged to have made to Bakshish, and denying that he had been forewarned of the call from trial Crown counsel or that it was in any way rehearsed, and informed the defence of the willingness of the witness to come to Ontario to give evidence.
(b) By letter dated March 14, 2013, Mr. Lockyer made a number of specific requests for evidence about trial Crown counsel’s call to Parminder, and he added further requests in a letter of April 10, 2013, which in my assessment was appropriately investigated and the results thereof were provided to the defence on a point by point basis in Ms. Joyal’s letter of May 17, 2013.
(c) In a further exchange of correspondence, Mr. Lockyer acknowledged receipt of the information through the Crown from the trial Crown and the investigating officer, but took the position that it would not go before the Court of Appeal unless put properly into affidavit form. In response, the Crown agreed to file an affidavit by trial Crown counsel, and did so.
(d) Mr. Lockyer cross-examined trial Crown counsel before Watt J. on the fresh evidence application. As I read the transcript, the “reasonable inferences” that the telephone call to India was staged and rehearsed were not addressed in this cross-examination. I accept Mr. Lockyer’s submission the he did not seek a stay of proceedings from the Court of Appeal beause that court often (but not always) just orders a new trial and leaves the stay issue to be addressed at the new trial. But, as was done in Ahluwalia, that does not prevent a pursuit of the evidence during the fresh evidence application.
(e) Mr. Lockyer made further requests for information. They were answered by the Crown, except in respect of matters the Crown thought to be inappropriate questions of trial Crown counsel and accordingly advised Mr. Lockyer that those issues could be argued before Justice Watt, who was to preside over the cross-examination. That occurred.
(f) At the request of Mr. Lockyer, Ms. Joyal produced the emails to her from Crown trial counsel in which he provided his responses to Mr. Lockyer’s requests. She further provided to the defence notes made by a summer student in the Crown’s office regarding a telephone interview Ms. Joyal had with Crown trial counsel.
(g) While the applicant’s materials complain that nothing is known about what the investigating officer would say about the telephone call, in fact it appears that on the appeal the defence was provided a written will say as to the officer’s evidence. The defence seems to have accepted that in that there was no further request in respect of his evidence.
(h) In addition, there is a freestanding right on the part of the defence to seek an order permitting the cross-examination of a Crown witness on a fresh evidence application. See R. v. Sihota, [2009] O.J. No. 4590, in which Mr. Lockyer was successful in obtaining such an order.
47In short, it seems to me that the Crown adequately investigated and reported to the defence in respect of the requests that it do so. The only request for production of a witness for cross-examination was complied with as trial Crown counsel was cross-examined on his affidavit with respect to the fresh evidence application. During that process, Watt J.A. made rulings adverse to the defence in respect of the relevancy of the Crown motivation in making the telephone call.
48In para. 17 of the Notice of Application, it is stated that the investigating officer has not provided an affidavit or otherwise provided any evidence of his involvement with respect to the phone call and accordingly, it is unknown what he would say. That is the only item in the Notice of Application which could alert anyone to the possibility of an Ahluwalia argument being in issue. When I was asked, as an out of Region judge, to hear this application, in addition to the hearing date of July 6 (and July 7 which proved unnecessary), another date was reserved in June for the hearing of evidence as both counsel apparently indicated to the case management judge, Justice Durno, that such a potential existed. I was later advised by him that both counsel had indicated that they did not intend to call any evidence so that June date was vacated.
49It was subsequent to that that the applicant’s factum was delivered, and clearly raised the Ahluwalia argument. It seems to me that that vacating of the date set for evidence, on consent, is a fair indication that the defence was satisfied with the information it had as a basis for this application for a stay of proceedings, and did not seek to cross-examine the investigating officer, Raju or Parminder, or anyone else.
50It is to be remembered that Ahluwalia involved a situation where the Court of Appeal found that the Crown had breached a duty to properly investigate and report to the defence in respect of specific defence requests. Because the circumstances there gave rise to a reasonable possibility of state complicity, the Crown failed in its obligations to the administration of justice. From that procedural point of view, that is the obligation of the Crown to make appropriate inquiries and to report when suspicious circumstances so arise, the obligation has been met in this case. From what I can see, every defence request was answered and the only defence request to cross-examine was consented to.
51Ahluwalia has some bearing in another respect. There, the Court of Appeal concluded that the fact that the agent only admitted to the one prior conviction that coincided with the disclosure of that single item by the Crown to the defence gave rise to a reasonable possibility that the agent was comfortable in so doing because of his knowledge that the defence had been provided with nothing contradictory by way of disclosure. In this case, it is sought to suggest, and I am asked to find, that Crown trial counsel was complicit in making a staged telephone call to Parminder in India. Much reliance is placed on the Court of Appeal’s finding that trial Crown counsel used a “deliberate ploy”. It is suggested that while the Court of Appeal did not so find, I should go on to find that the ploy went beyond simply placing evidence before the jury that was hearsay through the Crown, improperly, and rather extended to Crown involvement in making a call that had been previously arranged and rehearsed.
52In my assessment, a fair reading of the Court of Appeal decision in this case does not give rise to the inference that the telephone call to India had been prearranged or in any way rehearsed. I am of the view that the “deliberate ploy” referred only to the procedure used by trial Crown counsel in putting before the jury in hearsay form the contents of the telephone call to India and hence the inference that Parminder would deny making the telephone call as testified to by both Bakshish and the accused in an apparent attempt to influence the evidence of Bakshish. I don’t read anything further into it.
53I am of the view that unlike the “reasonable possibility” of state wrongdoing in Ahluwalia, in this case the alleged wronging amounts at best to rank suspicion. In so finding I take into account the fact that there was no support for the defence contention in any of the materials requested by the defence and supplied by the crown, and from the fact that the suspicions were not even put to trial crown counsel on his cross-examination. While the court of Appeal here at para. 22 found one aspect of the trial Crown’s evidence about why he made the call “unconvincing”, that is a far cry from finding it to constitute perjury, as it is suggested that I do here.
54While counsel argues that it is inconceivable that trial crown counsel would telephone India without any assurance that his call would be answered, or that it if it was that the recipient of the call would deny having made the call which was the foundation of the defence, I don’t see it that way. While the use to which the call was put was wrong, it may well be that the crown thought it was worth a try, and that if it went unanswered there was really nothing lost. If it was answered and Parminder admitted making the call to Bakshish, the defence was present in the court to hear the welcome news. I don’t accept the applicant’s contention that the the circumstances surrounding the making of the call (as opposed to the use that was made of it) are so unbelievable as to support the inferences requested by the defence.
55Turning first to the trial fairness category aspect of this application, I think there to be little concrete evidence that a retrial cannot be a fair one from an evidentiary point of view. Surely the findings and admonitions of the Court of Appeal in this case will serve to ensure that the type of improper cross-examination of the accused and his son will not be repeated, nor will the improper cross-examination as to Bakshish be repeated, except within the limits of proper questioning should the Crown choose to tender the evidence of Parminder, after adequate disclosure of his expected evidence. I am of the view that the questioning referred to in paragraphs 17 and 18 above was improper as well, but it need not be repeated at the re-trial.
56Before me, this applicant seeks only a stay of proceedings, and only that, and does not ask me for orders as to any other relief or remedy so as to make a retrial fair. In terms of the applicant’s ability to fund a retrial, obviously there may be available remedies, but I am not asked to deal with them. As to the contention that the passage of years will cause memories to fade, I have no such evidence in this case. Transcripts are available to assist witnesses other than Parminder. There is no evidence that any witnesses will not be available.
57As to the contention that, understandably, this applicant and his family have undoubtedly been under stress and anxiety, such state will have arisen as a result of the charges. It is true that it has been prolonged for a number of years now because of the appeal and resulting necessity of a retrial, but that is no more than exists in almost any case where a convicted accused successfully appeals and a new trial is ordered. It should be noted that in this case the Crown has consented to several forms of relief requested by the applicant. The penal sum on the recognizance was reduced from $175,000 to $5,000. The term preventing travel out of Canada was removed. The reporting term was deleted on consent. The Crown assisted in having the applicant’s travel documents returned. The Crown assisted the applicant during the case management proceedings, when the applicant did not have counsel. While not eliminating the burden on the applicant, the Crown consented to measures which lessened the burden.
58I am not satisfied that the trial unfairness evident in the first trial will be repeated or furthered by the conduct of a retrial. The trial Crown has been off the case for year now.
59Several cases have been cited to me as examples of situations where stays have, or have not, been granted. In Babos, bullying tactics in order to obtain as plea were found to be unworthy of the Crown’s office and reprehensible but were held not to amount to shocking conduct needed to justify a stay, and as well it was found that an alternative remedy of refusing to allow certain evidence to be admitted would have been a satisfactory remedy.
60The applicant further relies on authorities where a stay has been granted in cases of assault on the accused to get a confession: Singh (2014), 2013 ONCA 750, 305 CCC (3d) 78, or assault by a prison guard of a shackled and handcuffed accused: R. v. Bellusci (2013), 2012 SCC 44, 293 CCC (3d) 565. The applicant also relies on R. v. Tran (2010), 2010 ONCA 471, 257 CCC (3d) 18, where the Ontario Court of Appeal granted a stay in a case of an accused being assaulted by police officers, following which the Crown had a police officer sit at counsel table even though the trial judge had excluded the officer from counsel table. The circumstances of the trial were such as to suggest that the Crown condoned the egregious police misconduct.
61As to the residual category, I remind myself that these offences are serious. Gun charges are always serious. Cocaine charges are always serious. The public mischief charge is also serious and strikes at society’s sense of decency and fair play in that if the Crown’s theory proves successful, the accused will have been shown to have sought the wrongful conviction of one or more others. There is no doubt that there was improper and shameful conduct by trial Crown counsel. It has been identified publicly as such in the judgment of the Court of Appeal. Any informed and thoughtful member of the community would be disheartened to know that such conduct has taken place. While entirely inappropriate, trial Crown counsel’s conduct with respect to the phone call was not the subject of any complaint at trial by the defence. In my estimation, a reasonable and informed member of the community would much more easily be outraged by police brutality being condoned by the prosecution, as occurred in some of the cases relied upon, than he or she would be by an underhanded method of asking an important witness about an important event in a manner offensive to the rules of evidence.
62Neither side has urged on me that any remedy short of a stay would be appropriate in this case. Nor do I see any.
63I am not persuaded that the conduct of the trial Crown in this case and in the Singh case can fairly be viewed as systemic misconduct. It is evidence of two cases involving misconduct in 11 years, and cases where the misconduct involves breaches of the rules of evidence. They certainly are not to be condoned, but nor can they be blown up into a systemic abuse of the fair play duties of a prosecutor.
64In either type of situation justifying a stay of proceedings, such relief is only to be granted in extreme cases, or in the clearest of cases.
65I am not satisfied that this is one of those “clearest of cases”, or that it involves egregious conduct such as to justify the most extreme remedy that is a stay of proceedings. I am satisfied that the applicant’s fair trial right will not be repeated or furthered in a re-trial. I am satisfied that the insult to the integrity of the justice system will not be “manifested, perpetuated or aggravated” by the re-trial. I find that the misconduct in the first trial would not shock the conscience of the community to such a level that only a stay of proceeding will suffice to divorce the conduct from the judicial system so as to preserve its integrity. In doing the balancing between competing interests, as directed by Babos, the seriousness of these allegations, particularly with the result of the public mischief charge, if proven, lead me to conclude that the public interest in the adjudication of the matter outweighs the negative impact on the community’s perception of the integrity of justice in this case.
66The application for a stay of proceedings is dismissed.
C.S. Glithero J.
Date: July 12, 2017