Court File and Parties

COURT FILE NO.: CRIMJ(P) 1987/16 DATE: 2018 09 11

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN C. Coughlin and V. Aujla, Crown Counsel RESPONDENT

• and -

PRABHJEET SINGH L. Salloum, Counsel for Prabhjeet Singh

ABHIJEET NAGRA R. Gadhia, Counsel for Abhijeet Nagra

DILSHER SINGH N. Rozier and K. Perchenok, Counsel for Dilsher Singh APPLICANTS

HEARD: February 13th, 2018

REASONS FOR DECISION- MOTION ON EXCLUSION OF POST-INCIDENT STATEMENTS

LEMAY J.

[1] The three accused in this case are each charged with one count of unlawful act manslaughter. The charges arise out of an incident that took place on March 6th, 2015 at Fresh Line Foods.

[2] Early in the morning of March 6th, 2015, the three accused and the deceased, Gurvinder Singh, were all working at Fresh Line as cleaners on the night shift. They were using water hoses and other tools to clean the machinery in the plant.

[3] There was an interaction between the three accused and the deceased, in which two of the accused held Gurvinder Singh down, and the third accused, Mr. Prabhjeet Singh put an air hose near the posterior of Gurvinder Singh. Injuries resulted. Although Gurvinder Singh was treated in hospital, including undergoing several surgeries, he succumbed to his injuries on March 18th, 2015.

[4] Abhijeet Nagra was one of the people that took Gurvinder Singh to the hospital just before 6:00 a.m. on March 6th, 2015. Prabhjeet Singh arrived at the hospital around 8:00 a.m. the same day.

[5] While at the hospital, Abhijeet Nagra and Prabhjeet Singh had conversations with both Gurmail Singh and Harjinder Jhaj. A portion of those conversations were about the circumstances that resulted in Gurvinder Singh’s injuries.

[6] On February 12th, 2018, the first day that we were scheduled to hear evidence, counsel for Prabhjeet Singh brought a motion to exclude the entirety of the evidence of Gurmail Singh and that portion of the evidence of Harjinder (Harry) Jhaj that dealt with what Abhijeet Nagra and Prabhjeet Singh had told Gurmail Singh and Mr. Jhaj about what had happened to cause Gurvinder Singh’s injuries.

[7] I was provided with the Preliminary Inquiry testimony for both Mr. Jhaj and Gurmail Singh. The evidence that the Crown seeks to call, and Prabhjeet Singh seeks to exclude, relates to statements allegedly made to both Mr. Jhaj and Gurmail Singh that the accused had put the air around Gurvinder Singh’s legs, rather than close to his anus.

[8] I heard from all parties on this issue. I reserved my decision at the conclusion of argument on February 13th, 2018. The jury had been directed to return on February 14th, 2018, and I advised the parties at 9:45 that morning that Prabhjeet Singh’s motion was dismissed for written reasons to follow. These are those reasons.

Background

a) The Evidence On the Voir Dire

[9] There was no oral evidence called on the voir dire. Instead, I was provided with transcripts from the preliminary inquiry, and referred to the evidence provided by Harjinder (“Harry”) Jhaj and Gurmail Singh at the preliminary inquiry. Harry Jhaj was the principal of the temporary agency (Just N Rush) that employed the three accused. Gurmail Singh was the cousin of Gurvinder Singh.

[10] The statements in question involve comments that were made to both Gurmail and to Mr. Jhaj at the hospital the morning that Mr. Gurvinder Singh had been transported there and was undergoing treatment.

[11] Specifically, both Mr. Jhaj and Mr. Gurmail Singh remember being told by the two boys who were at the hospital that they had applied the air hose to Gurvinder Singh’s legs, rather than to his anus. There are nuances to these statements that were explored in both the preliminary inquiry and at trial. However, this is the essence of the evidence. I should also note that, in argument, there was a dispute over whether Mr. Jhaj and Mr. Gurmail Singh had sufficiently identified the authors of the statements.

[12] It was agreed that these statements were not made by Dilsher Singh as he was not present at the hospital.

b) The Proceedings Thus Far

[13] This case was the subject of a preliminary inquiry in the Ontario Court. Both Mr. Jhaj and Gurvinder Singh testified, and both provided testimony about the statements that Prabhjeet Singh seeks to exclude. The accused were committed to stand trial on December 14th, 2016.

[14] In the Superior Court, the matter was originally set down for a six week trial starting on November 14th, 2017. I was assigned as the trial Judge. As a result, I convened a Trial Management Conference (“TMC”) with the parties. Part of the purpose of this TMC was to determine what preliminary matters were outstanding.

[15] Indeed, I was advised that some of the matters between the parties had been resolved. I was advised that the only preliminary matters that were left were a motion by the Crown to take a view and a motion over the terms of the challenge for cause question.

[16] For reasons that are not necessary to review here, the trial was adjourned until late January. Pre-trial motions were scheduled for the week of January 29th, 2018, and the jury selection was to begin on January 31st, 2018.

[17] The motion to take a view and the motion over the terms of the challenge for cause question were argued on January 29th and January 30th, 2018. At the conclusion of the argument on the second day, I asked the parties if there were any further pre-trial matters. I was advised that there were not.

[18] The jury was duly picked, and the selection completed on February 5th, 2018. As part of the jury selection process, the Crown attorney read out a list of potential witnesses on three separate occasions, once for each jury panel. Mr. Jhaj and Mr. Gurmail Singh were both on that list. There were less than twenty (20) witnesses on the list that was read.

[19] After the jury was picked, the expectation was that we would proceed to start the evidence on February 12th, 2018. The Crown’s case was expected to take two to three weeks.

[20] The Crown then provided counsel for all accused with a final list of witnesses that would actually testify on February 8th, 2018. Counsel for Prabhjeet Singh raised this issue for the first time on February 9th, 2018. No notice of motion was prepared for the start of trial on February 12th, 2018.

[21] At the beginning of the day on February 12th, 2018, I was advised that Prabhjeet Singh was bringing this motion to exclude the evidence of Mr. Gurmail Singh, and those portions of Mr. Jhaj’s testimony that dealt with the statements at the hospital. No motion materials were filed.

[22] I required the filing of a notice of motion prior to the commencement of the argument on this motion on February 13th, 2018.

The Positions of the Parties

[23] Counsel for Prabhjeet Singh argues that the post-incident evidence should not be admissible because there is no evidence of concoction. Further, the evidence is prejudicial and has no probative value.

[24] Crown counsel argues that this motion should be dismissed because it was not brought in a timely way. In the alternative, Crown counsel argues that the post-incident evidence is probative. On the Crown’s theory, this evidence demonstrates that the accused knew that the use of the air hose was dangerous, and were attempting to minimize their responsibility for what happened.

[25] Counsel for Abhijeet Nagra took the position that any issues with the evidence provided by Mr. Jhaj and Mr. Gurmail Singh could be dealt with through cross-examination and it was not necessary to exclude their evidence completely. However, she did view the motion as being meritorious, although brought late in the proceeding. As this evidence did not involve Dilsher Singh at all, his counsel took no position on whether it should be admissible.

Issues

[26] There are two issues that must be decided on this motion:

a) Should Prabhjeet Singh’s motion be dismissed on a summary basis because of non-compliance with the Criminal Proceeding Rules. b) Should Prabhjeet Singh’s motion to exclude the testimony of Gurmail Singh and the portions of Mr. Jhaj’s testimony dealing with post-incident statements be granted?

Issue #1- Summary Dismissal

[27] Mr. Coughlin argues that this motion should be dismissed because it was not brought in a timely way. In support of this argument, he points to the Rules, the Report of the Chief Justice’s Advisory Committee on Criminal Trials in the Superior Court of Justice (May, 2006) (“the Report”), and to the Supreme Court of Canada’s decision in R. v. Jordan, 2016 SCC 27.

[28] Counsel for Mr. Prabhjeet Singh conceded that this application would have been most conveniently brought as a pre-trial motion. However, they also stated that “the defence is not capable of or obligated to anticipate all of the irrelevant evidence that the Crown may seek to lead.”

[29] The problem with this statement is that both Mr. Jhaj and Mr. Gurmail Singh testified at the preliminary inquiry, and it was clear what evidence they were expected to give if called to testify at trial. Further, they were both listed on a list of less than twenty witnesses. In my view, it should have been within the defence’s contemplation that the Crown would seek to call Mr. Jhaj and Mr. Gurmail Singh at trial and that the Crown would seek to admit the testimony about what Mr. Prabhjeet Singh and Mr. Nagra told them about where the air hose was applied.

[30] I also reject Mr. Salloum and Mr. Grill’s submission that they only became aware of the relevant case-law and principles in the few days before trial and that this was reasonable. The case that they seek to rely on for this proposition is R v. Oland, 2016 NBCA 58. This case was decided more than a year before trial. In addition, however, the reasoning in Oland, supra is not a significant departure from existing case-law. In coming to its conclusion, the New Brunswick Court of Appeal relied on a number of cases. Chief among them were the Ontario Court of Appeal’s decision in R v. Coutts, [1998] O.J. No. 2555, leave to appeal denied [1999] 1 S.C.R. xii (note)), which is a twenty year old case as well as the Ontario Court of Appeal’s decision in R v. O’Connor, 62 O.R. (3d) 263) which is nearly as old and has been cited more than a hundred times since it was decided.

[31] The issues around post-offence conduct have been a concern for a long period of time. There is nothing in Oland, supra that is critical to Mr. Prabhjeet Singh’s argument on the issue of the post-offence conduct in this case. It is an argument that, at law, should have been seen by defence counsel without needing the recent discovery of the decision in Oland to crystallize it.

[32] In addition, the witnesses, and their evidence, were well known to all of the parties more than a year before the trial. The fact that the Crown might use the statements allegedly made by two of the accused to Mr. Gurmail Singh and Mr. Jhaj as “post-incident” conduct was also something that should have been obvious to even a casual reader of the preliminary inquiry transcripts. Finally, Watt’s specimen jury instructions contain instructions on the issue of post-offence conduct.

[33] In oral argument, I was also advised that Mr. Grill had been suffering from significant cognitive issues as a result of a concussion. I was not provided with any medical documentation in support of this position. However, my understanding is that this was a relatively recent issue, having arisen in October of 2017 (see R. v. Singh, 2018 ONSC 1533 at paragraphs 6 and 23). Again, this does not explain the delay in bringing this motion.

[34] It must be remembered that the trial in this matter was set for November of 2017, and I convened a pre-trial conference in October of 2017. I would have expected that most, if not all, of the planning for pre-trial motions would have been done before Mr. Grill’s medical issues arose.

[35] Having established that there was no good explanation for the delay in bringing this motion, I turn to the authorities and arguments provided by Mr. Coughlin.

[36] I start with the Rules. Rule 31.04(1) requires at least thirty days’ notice of an application to exclude presumptively admissible evidence. Rule 31.05 sets out a lengthy list of items that is to be included in the materials filed with the Court. In this case, virtually no notice was given of this motion, and none of the formal materials required by the Rules were filed until I requested them. At that point, all I received was the Form 1 and some loose cases. In short, this motion was clearly brought contrary to the Rules.

[37] Then, there is the Report. It states (at paragraph 311) that judges have an inherent jurisdiction to decline to hear pre-trial applications where the applicant has not complied with the Rules. The report also sets out in a number of places several policy reasons why judges should have, and should exercise, that discretion. Those policy reasons include:

a) Ensuring that Court resources are used in an efficient and expeditious manner. b) Ensuring that trial judges have the proper information necessary to exercise a screening function, and determine whether the motion has merit. c) Providing opposing counsel with an opportunity to respond to motions in a timely way.

[38] Finally, Jordan, supra states that a culture of delay and complacency has developed in the criminal justice system. As Moldaver, Karanakatsakis and Brown JJ. noted (at paragraph 40):

As we have observed, a culture of complacency towards delay has emerged in the criminal justice system (see, e.g., Alberta Justice and Solicitor General, Criminal Justice Division, “Injecting a Sense of Urgency: A new approach to delivering justice in serious and violent criminal cases”, report by G. Lepp (April 2013) (online), at p. 17; Cowper, at p. 4; P. J. LeSage and M. Code, Report of the Review of Large and Complex Criminal Case Procedures (2008), at p. 15; Canada, Department of Justice, “The Final Report on Early Case Consideration of the Steering Committee on Justice Efficiencies and Access to the Justice System” (2006) (online), at pp. 5-6). Unnecessary procedures and adjournments, inefficient practices, and inadequate institutional resources are accepted as the norm and give rise to ever-increasing delay. This culture of delay “causes great harm to public confidence in the justice system” (LeSage and Code, at p. 16). It “rewards the wrong behaviour, frustrates the well-intentioned, makes frequent users of the system cynical and disillusioned, and frustrates the rehabilitative goals of the system” (Cowper, at p. 48).

[39] When all of these sources are considered, it is clear that a trial judge has discretion to decline to hear a motion because it has not been properly filed. It is also clear that there are good policy reasons for declining to hear these types of motions. Permitting these motions to be heard at the last minute will only encourage counsel to continue in their complacent ways.

[40] As Crown counsel noted in his argument, this type of motion is a regular part of the criminal trials that take place before this court, and it should not be. I have considerable sympathy for Mr. Coughlin’s statement that these types of motions are going to continue until trial judges demonstrate that there are consequences for this type of behavior.

[41] However, there are also reasons why these motions should be heard on their merits.

[42] Trial judges should not visit the failure of defence counsel to adequately prepare his or her case on their client, the accused. This is not a civil case, where counsel’s ill-preparedness can be the subject of a later claim for damages against that counsel. The accused’s liberty interests are at stake, and the Court must protect those interests. However, when these types of motions arise, trial judges should have pointed criticism for the counsel who bring them.

[43] I see no alternative but to permit this motion to be heard. I must also observe that there was no good reason offered by Mr. Salloum or Mr. Grill for failing to bring this motion in a timely way. With judicial resources as limited as they are, the Court must be able to expect more of counsel.

Issue #2- Should the Evidence be excluded?

[44] As noted above, Prabhjeet Singh argues that the evidence about the statements made at the hospital should not be received as there is no independent evidence of concoction. In support of that submission, Counsel points to the decision in R v. Oland, supra.

[45] In Mr. Salloum’s view, there are three separate reasons why the evidence should not be received. First, it is not clear as to who made the statements at the hospital, or precisely what was said. Secondly, the evidence must be relevant to an issue at trial. Finally, in counsel’s view, the Crown’s allegation amounts to a claim that Prabhjeet Singh and Abhijeet Nagra lied to the relatives of the deceased. This is a powerfully prejudicial claim to make about an accused and should not be permitted in the absence of independent evidence showing both an intentional falsehood, and that the intentionally false statement was given for the purpose of concealing their involvement in the offence. Counsel asserts that such evidence is not present in this case, as there is no evidence of falsehood.

[46] In the course of argument, I was referred to a number of other cases, including R. v. Bennett, 177 O.A.C. 71), R. v. Shafia, 2016 ONCA 812, R. v. Louangrath, 2016 ONCA 550, and R. v. Evans, [1993] 3 S.C.R. 653).

[47] I will deal with each of the points raised by Mr. Salloum in turn. First, however, I will briefly summarize the law in this area.

a) The Legal Principles

[48] The statements in this case are a form of post-offence conduct. This is a complex area that has been the subject of numerous appellate decisions. I have considered the case-law that counsel has provided to me, as well as the passages from other cases cited therein.

[49] The most relevant principles that emerge from this consideration are as follows.

[50] First, post-offence conduct evidence includes both acts and statements of the accused. In this case, we are concerned with statement allegedly made by two of the accused.

[51] Second, post-offence conduct carries an increased risk that it will be used for speculative and prejudicial reasoning. This is, in part, because it looks backwards and can result in the trier of fact inferring guilt in order to draw conclusions about guilt.

[52] Third, as a result of this enhanced risk, the case-law repeatedly draws a distinction between statements made by an accused which are disbelieved and those that are concocted in order to avoid culpability. In order to establish concoction, there must be independent evidence to show that the accused fabricated the statement. It is only if there is independent evidence of concoction that the statements in this case can be used to determine whether an assault actually took place.

[53] Fourth, the independent evidence of concoction can be found in the circumstances in which the statement is made.

b) The Applicant’s Arguments

[54] The Applicant’s first argument concerns, in many ways, the weight to be given to the evidence. However, the Applicant sought this ruling in advance of hearing the testimony at trial. As a result, this argument may easily be disposed of. The question of whether to believe certain witnesses, and the question of what facts to find as a result of the evidence that is tendered is a question for the jury.

[55] On my reading of the preliminary transcripts, and anticipating cross-examination (and, potentially, testimony from the accused), it is possible that the jury may have conflicting evidence on whether these statements were made by Mr. Singh and Mr. Nagra at the hospital, as well as precisely what was said. However, this is not a case like R v. Ferris, 1994 ABCA 20, where there was no context to the statements. Both Mr. Jhaj and Mr. Gurmail Singh testified at the preliminary inquiry as to what they claim was said to them by one or more of the accused. There is sufficient context for the jury to be able to weigh these statements, and it is up to the jury to determine what portions of the evidence (if any) given by Mr. Jhaj and Mr. Gurmail Singh they accept.

[56] However, there is a threshold admissibility question that must also be addressed. This admissibility question engages counsel’s second and third arguments, and concerns whether there is sufficient evidence, independent of the evidence showing that the statements are merely false, to demonstrate that the statement was fabricated. I will answer this question by considering whether there is independent evidence that could be used to conclude that these statements were concocted, rather than merely being false. Then, I will address the question of whether the evidence is relevant to an issue at trial.

[57] Counsel for the Crown argues that the independent evidence can arise from the circumstances in which the statements were made. In this case, the circumstances include the video of the incident itself, as well as the fact that the statements were made to a close relative of the deceased and the accused’s employer. Mr. Salloum argues that the chain of inferences that the Crown is seeking to rely on is not obvious or supportable.

[58] I agree with the Crown’s position. In my view, each of these circumstances is capable of providing independent evidence of fabrication. I start with the video of the incident. There are at least two possible interpretations of this video. The video could be used to demonstrate that this was a “prank” gone wrong, rather than any criminal conduct on the part of the accused. Alternatively, given the way that the deceased was attempting to avoid having the air hose applied to his buttocks area and escape being held down on the table, it could be argued that the accused had taken the “prank” beyond what the deceased was either expecting or prepared to tolerate. If this second explanation is accepted by the trier of fact, then it would demonstrate that the accused knew that they had done something wrong, and had a reason to fabricate a different version of events.

[59] Then, there are the identities of the people that these statements were made to. Mr. Jhaj was the employer of the three accused. Mr. Gurmail Singh was the deceased’s nearest relative at the hospital. Both of them would have been very concerned about what had happened to the deceased, and it would arguably have been in the interests of the accused to minimize their involvement in the incident. In other words, there is room to argue that the accused had an interest in telling their employer and Mr. Gurmail Singh a false version of events.

[60] In the circumstances, therefore, there is independent evidence that could establish the necessary fabrication. The evidence of the statements that the accused are alleged to have made at the hospital is, therefore, admissible.

[61] I should also separately address the issue of whether this evidence is relevant to an issue at trial. In Oland, supra, as in many other cases, the post-offence conduct relates to the question of who committed the offence. In Mr. Salloum’s view, Mr. Prabhjeet Singh and Mr. Nagra admitted in their out-of-court statements that they were the ones who used the air hose on the deceased. As a result, in Mr. Salloum’s view, it is not open to the Crown to argue that they were concocting a statement to minimize their involvement, as this is not the same as denying one of the elements of the offence.

[62] I disagree. In this case, the trier of fact will have to determine whether there was an assault on the deceased. If there was no assault, and the air hose was applied with consent, then an acquittal is a realistic outcome. It is, therefore, reasonable for the Crown to argue that the accused fabricated a story because they wanted to minimize their involvement in the events and have the people at the hospital, who were their employer and the deceased’s next of kin, accept that this was just horseplay.

[63] Finally, there is the claim of prejudice. In my view, any prejudice that results from the admission of this evidence can be addressed by a proper limiting instruction to the jury. Indeed, in his argument, Mr. Salloum suggested that the limiting instruction for receiving this evidence was impossible to write, as there was no clarity as to who made the statements at the Hospital. I immediately responded to this submission by orally providing Mr. Salloum with a proposed limiting instruction. It was similar to part of the instruction that was ultimately used in the jury charge.

[64] Similarly, in Oland, the Court was not concerned with whether the evidence had been admitted, as the test for admission was properly met in that case. Instead, the Court was concerned with ensuring that the jury had the proper instructions as to what use could be made of this evidence. In Oland, the Court of Appeal concluded that the post-offence evidence was admissible, but that the trial judge had erred by not explaining the difference between a mere falsehood, and the requirement to find that the falsehood had been concocted (see paragraph 74).

[65] In this case, the evidence is also admissible. It will be up to counsel and myself, with the input of counsel, to write the proper limiting instruction on the evidence.

Conclusion

[66] For the foregoing reasons, I decline to dismiss the Application as untimely. However, it is dismissed on its merits.

LEMAY J Released: September 11, 2018

COURT FILE NO.: CRIMJ(P) 1987/16 DATE: 2018 09 11 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN RESPONDENT - and - PRABHJEET SINGH, ABHIJEET NAGRA and DILSHER SINGH APPLICANTS REASONS FOR JUDGMENT LEMAY J Released: September 11, 2018