CITATION: R. v. Gill, 2017 ONSC 5137
COURT FILE NO.: CrimJ(P) 361/17
DATE: 20170829
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
AMRITPAL GILL
Defendant/Applicant
C. Nadler for the Crown
M. Quigley for the Defendant/Applicant
HEARD: August 25, 2017
ENDORSEMENT ON SEVERANCE APPLICATION
Ricchetti, J.:
[1] At the conclusion of the Defence submissions, the Defence’s application for severance was dismissed with reasons to follow. These are those reasons.
THE CHARGES
[2] Mr. Gill is married to Bhupinder Sandu.
[3] Mr. Gill was charged with assaulting Ms. Sandhu on September 25, 2015. Mr. Gill was released on a Recognizance with various terms (“Recognizance”). The terms included non-communication with Ms. Sandhu.
[4] Subsequent to Mr. Gill’s release, the allegations regarding the current charges arose. The current charges can be broken down into three groups by the date of the offences:
June 9, 2016
• Mr. Gill called Ms. Sandhu’s home and threatened to kill her. Later that day he attended at the home and threatened to kill Ms. Sandhu and her family;
• Ms. Sandhu left her home to call the police;
• Mr. Gill left the home with Ms. Sandhu’s children;
• Ms. Sandhu reported the matter to the police;
• The Police found Mr. Gill the next day at work. He had Ms. Sandhu’s keys. The children were found with Mr. Gill’s family;
• Mr. Gill was charged. This group of charges include communicating with Ms. Sandhu, threatening to cause death and breaching various terms of the Recognizance including not to contact Ms. Sandhu and failing to remain in his residence.
June 23, 2016
• Mr. Gill broke into Ms. Sandhu’s home with another man;
• Mr. Gill threatened to kill Ms. Sandhu. Mr. Gill showed her a hand gun. Mr. Gill tied up Ms. Sandhu with zip ties. Mr. Gill suggested that he knew persons who could kill her. He “racked” the hand gun twice in Ms. Sandhu’s presence;
• Mr. Gill repeatedly asked Ms. Sandhu why she had charged him with the June 9 incident;
• Eventually, Mr. Gill left the home;
• Ms. Sandhu reported the matter to the police;
• Mr. Gill was charged. This group of charges include breaking and entering, unlawful confinement, possession of a handgun, uttering a death threat, and breaches of the Recognizance;
• The police issued a warrant for Mr. Gill’s arrest and began actively looking for him.
July 13, 2016
• Mr. Gill was stopped by the police on July 13, 2016;
• Mr. Gill gave the police a false name and attempted to flee;
• When apprehended, Mr. Gill was placed in the rear of the cruiser without a pat down search;
• Other officers arrived to assist. Mr. Gill was taken from the cruiser and searched;
• The police then searched the back of the cruiser where Mr. Gill had been seated. Secreted in the back seat area of the cruiser, the police found two cellphones, a handgun (similar to what Ms. Sandhu described was used June 23, 2016) and a loaded magazine;
• Mr. Gill was charged. This group of charges include various weapons charges relating to the hand gun and the ammunition and breach of the Recognizance.
[5] The trial on the three group of charges are contained in one Indictment. Trial is scheduled for November 14, 2017 – two and a half months from now.
THE APPLICATION
[6] The Defence seeks to sever the three sets of charges.
THE POSITION OF THE PARTIES
[7] The Defence position is:
a) The three sets of charges are separate, unrelated events;
b) The Defendant may wish to testify on one set of charges and not on others; and
c) The Defendant may wish to argue that some evidence, which might be admissible on one set of charges is not admissible on the other set of charges.
THE LAW
[8] Section 591(3)(a) of the Criminal Code provides:
(3) The court may, where it is satisfied that the interests of justice so require, order
(a) that the accused or defendant be tried separately on one or more of the counts;
[9] The principles to be applied on a severance application were described by the Supreme Court in R. v. Last, 2009 SCC 45:
[16] The ultimate question faced by a trial judge in deciding whether to grant a severance application is whether severance is required in the interests of justice, as per s. 591(3) of the Code. The interests of justice encompass the accused’s right to be tried on the evidence admissible against him, as well as society’s interest in seeing that justice is done in a reasonably efficient and cost-effective manner. The obvious risk when counts are tried together is that the evidence admissible on one count will influence the verdict on an unrelated count.
[17] Courts have given shape to the broad criteria established in s. 591(3) and have identified factors that can be weighed when deciding whether to sever or not. The weighing exercise ensures that a reasonable balance is struck between the risk of prejudice to the accused and the public interest in a single trial. It is important to recall that the interests of justice often call for a joint trial. Litchfield, where the Crown was prevented from arguing the case properly because of an unjudicial severance order, is but one such example. Severance can impair not only efficiency but the truth-seeking function of the trial.
[18] The factors identified by the courts are not exhaustive. They simply help capture how the interests of justice may be served in a particular case, avoiding an injustice. Factors courts rightly use include: the general prejudice to the accused; the legal and factual nexus between the counts; the complexity of the evidence; whether the accused intends to testify on one count but not another; the possibility of inconsistent verdicts; the desire to avoid a multiplicity of proceedings; the use of similar fact evidence at trial; the length of the trial having regard to the evidence to be called; the potential prejudice to the accused with respect to the right to be tried within a reasonable time; and the existence of antagonistic defences as between co‑accused persons: R. v. E. (L.) (1994), 1994 1785 (ON CA), 94 C.C.C. (3d) 228 (Ont. C.A.), at p. 238; R. v. Cross (1996), 1996 5992 (QC CA), 112 C.C.C. (3d) 410 (Que. C.A.), at p. 419; R. v. Cuthbert (1996), 1996 8341 (BC CA), 106 C.C.C. (3d) 28 (B.C.C.A.), at para. 9, aff’d [1997] 1 S.C.R. 8 (sub nom. R. v. C. (D.A.)).
ANALYSIS
Ms. Sandhu’s recanting of her original statements
[10] The Defence points to the fact that Ms. Sandhu has now provided two affidavits which recant the events which form the basis of the charges.
[11] In my view, this does not assist the Defence.
[12] Ms. Sandhu had previously given statements, shortly after the events, which form the basis of the charges in June.
[13] How or why Ms. Sandhu now gives a different version of the events is not known nor, in my view, particularly relevant to a severance application. A KGB application by the Crown is expected at trial. Should the KGB application be granted, it will be up to the trier of fact to decide whether to accept the first version of facts given by Ms. Sandhu, the second version of facts given by Ms. Sandhu or neither version. The jury will make this determination on the assessment of all the evidence, including the viva voce evidence of Ms. Sandhu.
[14] While the recanting by Ms. Sandhu may affect the strength of the Crown’s case, this factor, is not relevant to determining whether a severance should be granted. If anything, this suggests that Ms. Sandhu’s conflicting evidence be put before one trier of fact to ensure a consistent determination of her credibility and the finding of facts relating to these charges based on her evidence.
The ADMISSIBILITY OF THE EVIDENCE ON ALL COUNTS
[15] The first major difficulty is that, even if the three groups of charges are severed, much of the evidence will be admissible on the trial of the severed counts. For example:
a) The nature of the relationship between Ms. Sandhu and Mr. Gill is relevant to both the June charges;
b) The terms of the Recognizance and Mr. Gill’s repeated breaches of the Recognizance are relevant to both June charges and the reason for Mr. Gill’s arrest on July 13;
c) The June 9 and June 23 events are inextricably related. The June 23 charges cannot be tried without the context of the June 9 charges and visa versa for a full and proper understanding of the context of both charges; and
d) The June 23 charges are relevant to the July 13 charges because they are connected by the handgun, the reason for the arrest and the attempt to deceive and flee from the police. For example, Ms. Sandhu can testify that the hand gun found in the cruiser on July 13 is similar to the hand gun used in the June 23 incident. They are also connected by the post offence conduct of Mr. Gill;
[16] The Defence submits that a similar fact application by the Crown would not be successful. The Crown does not have to establish “similar fact” for the Crown to adduce relevant evidence described above. In this case, many of the facts relating to each set of charges has a high degree of relevance to the other charges. As a result, the fact there will be no similar fact application has little or no bearing, in the circumstances of this case, as to whether severance should be granted.
Prejudice
[17] The Defence must do more than simply say he will be prejudiced at trial unless severance is granted. A bald assertion is not sufficient. Some level of detail as to what prejudice would arise must be described. The alleged prejudice must be something more than theoretical.
[18] In this case, there is nothing but bald assertions of prejudice.
Testify on one set of charges
[19] The Defence submits that Mr. Gill may want to testify on one set of charges and not others.
[20] The Defence fails to provide a rationale why Mr. Gill would testify on one set of charges and not the other. Certainly, no serious rationale is advanced on this application. I am not satisfied that there are circumstances which objectively establish a rationale for testifying on some counts but not others. See Last para. 26.
[21] The Defence submission that Mr. Gill might want to testify on the July 13 charges but not the June charges makes little sense because the July 13 charges relate to the possession of the handgun – did Mr. Gill put the handgun found under the seat in the cruiser after he was arrested and placed in the cruiser? Even if the charges were severed, Mr. Gill could still be cross-examined on the events of June 23 when Ms. Sandhu was confined and threatened with a similar hand gun by Mr. Gill and another man. This evidence would be relevant to the ownership or possession of the hand gun by Mr. Gill. This negates any reason why Mr. Gill would only testify on the July 13 charges.
[22] I am satisfied that the strong legal and factual nexus amongst the groups of charges means that cross-examination will necessarily be permitted on the facts underlying the other charges. Several examples suffice:
a) On the June 23 charges, the trier of fact is entitled to know that, despite a Recognizance, Mr. Gill had threatened to kill Ms. Sandhu on June 9, Ms. Sandhu reported the events to the police and, shortly thereafter, Mr. Gill re-attended at Ms. Sandhu’s residence, confined her, threatened her and asked her why she had charged him for the June 9 events. The events of June 23 need context and that context includes the events of June 9.
b) The same can be said for the July 13 charges. The events of July 13 are relevant to the June 23 charges. After the June 23 events, a warrant was issued for Mr. Gill’s arrest. By giving a false name and attempting to flee may be admissible as post offence conduct. In addition, the possession of a similar hand gun by Mr. Gill on June 23 is relevant to the weapons offences on July 13. This is highly corroborative evidence.
[23] As a result, it is difficult to imagine an objectively rationale reason how Mr. Gill would be prejudiced unless severance was granted.
Other Factors
[24] There is a strong legal and factual nexus between the three sets of counts including the parties involved and the short time frame over which they occurred.
[25] There is a real concern of inconsistent verdicts, particularly given that Ms. Sandhu has recanted. One jury might accept the first version. One jury might accept the latter version. One jury might not know what to believe. It is clearly in the interests of justice that one trier of fact hear all the evidence of Ms. Sandhu at one time and assess it one time.
[26] The facts regarding these charges are not complex. The jury will not likely be confused by a relatively simple and straightforward set of facts.
[27] The trial date is fast approaching. A severance could likely delay the trial on at least one set of charges if severance is granted.
[28] There will be a multiplicity of proceedings if severance is granted. This factor favours not granting severance. Ms. Sandhu would have to testify three times, once on each set of charges.
Other Defence Submissions
[29] The Defence submits that the jury might engage in propensity reasoning and credibility cross-pollination.
[30] The Defence submits that “if the jury finds the Applicant not credible while testifying with respect to one set of counts, the jury might presume he was also not credible with respect to others”. I do not accept this submission. Limiting instructions on the use of evidence on count to count could and, no doubt, would be provided to the jury.
[31] The Defence submits that the Crown must establish a “real rationale for a joint trial”. The Defence is wrong. The Crown is entitled to join counts into one Indictment. The Defence has the onus to show that a severance should be granted. See R. v. Arp 1998 769 (SCC), [1998] 3 S.C.R. 339 at para. 52.
CONCLUSION
[32] Weighing the above factors, which favor dismissing the Defence application, in particular, the very strong factual and legal nexus of the allegations over the short period of time and the admissibility of a significant amount of the evidence on all the charges, this court is not satisfied that the interests of justice require a severance in this case. Certainly, the Defence has failed to discharge its onus.
[33] The Defence application is denied.
Ricchetti, J.
Released: August 29, 2017
CITATION: R. v. Gill, 2017 ONSC 5137
COURT FILE NO.: CrimJ(P) 361/17
DATE: 20170829
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
AMRITPAUL GILL
ENDORSEMENT ON SEVERANCE APPLICATION
Ricchetti J.
Released: August 29, 2017