Court File and Parties

Court File No.: 18-0552 Date: 2019 03 04 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Applicant – and – Raja Dosanjh, Respondent

Counsel: J. Forward, for the Crown J. Greenspan and B.J. Greenshields, for the Accused

Heard: February 20, 2019

Before: Lemon J.

Ruling Re: Voluntariness

Restriction on Publication

A Non-Publication Order is made pursuant to ss. 645(5) and 648(1) of the Criminal Code of Canada that publication of this ruling is prohibited.

The Issue

[1] Mr. Dosanjh is charged with first degree murder. On February 26, 2017, he was interviewed by investigating officer, Brian Welsh. The Crown seeks a ruling that the statements made by Mr. Dosanjh were voluntary.

[2] The response filed by the defence reads:

The defence does not admit the statement of the accused is voluntary. The defence puts the Crown to its burden of proving voluntariness beyond a reasonable doubt.

[3] In a prior ruling, I endorsed, with the consent of the defence:

The defence puts the Crown to its onus to prove the voluntariness of the statement but not [sic] particular issue relating to its admissibility. The defence raises no issues with respect to any promises, threats, or oppressive circumstances.

[4] At the end of the evidence and the Crown’s submissions, the defence made no submissions. I found that, for reasons to follow, the statement was voluntary. These are those reasons.

Background

[5] The entire interview between Detective Welsh and Mr. Dosanjh was on tape. Mr. Dosanjh was arrested and interviewed in Burnaby, British Columbia. Officer Welsh is a Guelph police officer; he attended in Burnaby to interview and return Mr. Dosanjh to Ontario.

[6] The interview is an hour and 20 minutes long and commenced at approximately 8:20 p.m., British Columbia time. It is acknowledged by the defence that Mr. Dosanjh was provided in advance with his appropriate Charter rights and cautions. He had already spoken to his counsel of choice.

[7] Throughout the interview, Mr. Dosanjh appears calm and relaxed. From time to time, he smiles and laughs.

[8] On at least 20 occasions, he declines to answer questions. Mr. Dosanjh confirms that he understands what the officer is telling him. Indeed, he is asked if he understands so many times that he asks the officer to presume that he understands unless he says otherwise. He appears to cautiously choose which questions to answer.

[9] The video confirms that Mr. Dosanjh had been provided with food. Although Mr. Dosanjh complained of the length of his bed and had back pain, that would not be unusual for a man as tall as Mr. Dosanjh. He does not appear to have been distracted by back pain from the questioning and answering. There is no evidence that he was.

[10] The bulk of the interview is made up of Officer Welsh’s description of the evidence against Mr. Dosanjh. There is, in fact, very little questioning of Mr. Dosanjh; rather, the interview was predominantly Officer Welsh’s recitation of that evidence. Officer Welsh stated that he did not lie about that evidence. Throughout, Officer Welsh is polite, respectful and calm. He testified that he made no promises or threats or inducements to Mr. Dosanjh.

Authorities

[11] The Crown has provided me with the leading authorities of R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 and R. v. Singh, 2007 SCC 48, [2007] S.C.J. No. 48. Those cases refer to confessions; however, the principles apply to any statement that may be made by Mr. Dosanjh.

[12] Those cases require that I make a contextual analysis and consider all of the factors that may arise in a given interview. I should consider whether the statement would be inadmissible as a result of a "fear of prejudice or hope of advantage" or some form of “quid pro quo” in order to gain the statement. I find none here.

[13] I must also consider whether there are conditions that amount to oppression of Mr. Dosanjh such that he might have answered in any way to escape those conditions. This would include the use of fabricated evidence. As set out above, none of that arises here.

[14] A further step in the analyses is to consider any doubt that might arise from the lack of an “operating mind” on the part of Mr. Dosanjh. The evidence makes clear that he is choosing when and when not to participate in the conversation. There is no evidence that his mind is affected in any way during the interview.

[15] A final consideration in determining whether a confession is voluntary or not is the police use of trickery that shocks the community. There is none on this record.

Analysis

[16] Applying these well-known principles to the evidence and videotape, there is nothing that raises a reasonable doubt about Mr. Dosanjh’s voluntary involvement with Officer Welsh.

[17] Accordingly, I have no doubt that Mr. Dosanjh voluntarily chose to speak to Officer Welsh and find that Mr. Dosanjh’s statement is admissible.

“Justice Lemon” Lemon J. Released: March 4, 2019