Court File and Parties
COURT FILE NO.: 18-0552 DATE: 2019 06 03
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: May 13, 2019
LEMON J.
RULING RE: ANTE-MORTEM STATEMENTS
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] The Crown seeks a pre-trial ruling with respect to ante-mortem hearsay statements of the deceased. After hearing submissions, I dismissed the application for reasons to follow. These are those reasons.
Background
[2] Mr. Dosanjh is charged with the first degree murder of Ali Sunderani on March 1, 2016. Mr. Sunderani was killed outside the Guelph Comfort Inn during daylight hours. The automatic weapon the killer used was left behind at the scene. It is the Crown’s position that this was a professional killing and that Mr. Dosanjh was the murderer. It is submitted by the Crown that given Mr. Sunderani’s history of drug dealing, it is more likely than not that he would be killed in the manner he was than someone who was not involved in the drug trade.
[3] Although the application, as filed, sought a number of pieces of evidence, in argument, only the following are requested to be entered by the Crown.
[4] Mr. Sunderani has two entries on his criminal record from November 17, 2009. One is a conviction for Possession of a Schedule I Substance for the Purpose of Trafficking and the other is for Conspiracy to Traffic a Schedule I Substance. He received a concurrent jail sentence of four years.
[5] The Crown also seeks to enter statements from Mr. Sunderani’s girlfriend, Theoni Bakopoulos.
[6] The Crown submits that Ms. Bakopoulos was in a relationship with Mr. Sunderani starting in 2009 and ending in October, 2013. However, they remained close friends up until the time of Mr. Sunderani’s death.
[7] Ms. Bakopoulos was aware that Mr. Sunderani had two phones – his iPhone which she used to contact him and a BlackBerry. Mr. Sunderani described this phone to her as a “PGP” phone and “encrypted”. In March 2015, Mr. Sunderani asked Ms. Bakopoulos to carry this phone in her purse to Mexico. She told him “if it is something you can’t bring with you, then leave it at home”.
[8] Secondly, the Crown seeks to have admitted from Ms. Bakopoulos that, in the summer of 2015, Mr. Sunderani asked her to open a bank account in her name for him. He requested that she give him the bank card. Ms. Bakopoulos declined to open the account and was angry at Mr. Sunderani for making such a request of her.
[9] The Crown also wishes to have the evidence of John Melehes admitted. Mr. Melehes is the owner of a local Guelph restaurant at which Mr. Sunderani was a frequent visitor. In 2016, Mr. Sunderani asked Mr. Melehes to “drive” for him. Mr. Sunderani explained to Mr. Melehes that he needed someone to go to a parking lot and open the trunk. Someone else would drop something in and close it. According to the proposal, Mr. Melehes would then drive to another vacant parking lot and open his trunk. Mr. Sunderani advised Mr. Melehes not to look at anyone on such a trip. Mr. Sunderani advised Mr. Melehes that if he agreed, that he would be “handsomely rewarded”. Mr. Melehes did not agree.
[10] Further, on March 1, 2016, Mr. Sunderani was at the restaurant. Mr. Sunderani told Mr. Melehes that he had “that feeling like there is something that is not right”. He described that two men were at the hotel and he did not get a good vibe from them, even though they were simply eating breakfast and reading the newspaper.
Positions of the Parties
[11] The Crown wishes to introduce this evidence to show that Mr. Sunderani was engaged in drug dealing, an apparently dangerous activity. This would make it more likely that he would be killed in the manner that he was rather than someone who was not engaged in drug dealing. Accordingly, this evidence provides a motive for some person to kill Mr. Sunderani.
[12] The Crown submits that these pieces of evidence, combined together, provide a reason for Mr. Sunderani to be killed in an execution style killing. Someone involved in drug dealing and with a history of drug dealing, is more likely to be killed in the manner the deceased was killed than someone who was not. “Absent this evidence of Mr. Sunderani’s background, the jury is left with a misleading picture of the life of Mr. Sunderani and why he was killed. This evidence is essential narrative”.
[13] The Crown also makes a number of submissions to support the admissibility of the hearsay evidence of Ms. Bakopoulos if found to be relevant. For reasons to follow, I need not analyze those arguments.
[14] In response, the defence submits that the evidence first needs to be relevant before it can be admissible. The defence submits that the evidence is not relevant because there is no nexus between the evidence and the issues of identity or Mr. Dosanjh’s statement of mind. The Crown has conceded that it cannot connect its theory of motive to the accused. Further there is no nexus between the unknown third party that apparently wanted Mr. Sunderani harmed and Mr. Dosanjh. Since there is no evidence that Mr. Sunderani and Mr. Dosanjh were known to one another, the proposed evidence of Mr. Sunderani’s state of mind is irrelevant.
[15] As the Crown acknowledges that there is no evidence connecting Mr. Sunderani to Mr. Dosanjh, this evidence cannot assist with a determination of motive. Without any personal link between Mr. Dosanjh and Mr. Sunderani, motive cannot be established. However, submits the defence, motive is not an issue that need be proved by the Crown. Accordingly, this evidence is irrelevant to the issues between the parties.
[16] The defence also points out that there is no evidence to suggest that Mr. Sunderani was trafficking drugs after his 2009 conviction. Accordingly, the Crown’s application is to adduce evidence “for the purpose of submitting a theory to the jury that the deceased was involved in some unknown activity, with some unknown criminal group, which provided some unknown motive for the unknown criminal group to carry out a “professional killing” of the deceased”.
[17] Finally, the defence submits that this evidence would be prejudicial. The evidence would invite the jury to speculate that if Mr. Sunderani were the victim of a professional killing carried out at the behest of unknown drug lords, the evidence linking the accused to the killing means that the accused was either a member of the gang or the type of person that such a gang would enlist to settle its scores or both. However, there is no evidence to support this proposition; Mr. Dosanjh has no criminal record and has never been charged with a criminal offence before this one. The defence submits that the evidence is therefore inflammatory and will distract the jury from the issue to be decided, that is, whether Mr. Dosanjh is identified by admissible evidence.
Analysis
[18] I fail to see any relevance to the issues to be tried between the parties.
[19] In R. v. J.M. 2018 ONCA 1054, [2018] O.J. 6741, Nordheimer J.A. said at para. 19:
Before determining whether to allow the prosecution to lead this evidence, the trial judge had to conclude that the evidence was relevant to an issue that the jury had to decide.
[20] In R. v. Diu, [2000] O.J. 1770, Sharpe J.A. (para. 50) confirmed that whether evidence is relevant or not will depend upon the issues raised by the case.
[21] In R. v. Seaboyer, [1991] 2 S.C.R. 577, McLachlin J. said:
It is fundamental to our system of justice that the rules of evidence should permit the judge and jury to get at the truth and properly determine the issues. This goal is reflected in the basic tenet of relevance which underlies all our rules of evidence. In general, nothing is to be received which is not logically probative of some matter requiring to be proved and everything which is probative should be received, unless its exclusion can be justified on some other ground. A law which prevents the trier of fact from getting at the truth by excluding relevant evidence in the absence of a clear ground of policy or law justifying the exclusion runs afoul of our fundamental conceptions of justice and what constitutes a fair trial.
The problem which arises is that a trial is a complex affair, raising many different issues. Relevance must be determined not in a vacuum, but in relation to some issue in the trial. Evidence which may be relevant to one issue may be irrelevant to another issue. What is worse, it may actually mislead the trier of fact on the second issue. Thus the same piece of evidence may have value to the trial process but bring with it the danger that it may prejudice the fact-finding process on another issue.
The law of evidence deals with this problem by giving the trial judge the task of balancing the value of the evidence against its potential prejudice. Virtually all common law jurisdictions recognize a power in the trial judge to exclude evidence on the basis that its probative value is outweighed by the prejudice which may flow from it.
Professor McCormick, in McCormick's Handbook of the Law of Evidence (2nd ed. 1972), put this principle, sometimes referred to as the concept of "legal relevancy", as follows at pp. 438-40:
Relevant evidence, then, is evidence that in some degree advances the inquiry, and thus has probative value, and is prima facie admissible. But relevance is not always enough. There may remain the question, is its value worth what it costs? There are several counterbalancing factors which may move the court to exclude relevant evidence if they outweigh its probative value. In order of their importance, they are these. First, the danger that the facts offered may unduly arouse the jury's emotions of prejudice, hostility or sympathy. Second, the probability that the proof and the answering evidence that it provokes may create a side issue that will unduly distract the jury from the main issues. Third, the likelihood that the evidence offered and the counter proof will consume an undue amount of time. Fourth, the danger of unfair surprise to the opponent when, having no reasonable ground to anticipate this development of the proof, he would be unprepared to meet it. Often, of course, several of these dangers such as distraction and time consumption, or prejudice and surprise, emerge from a particular offer of evidence. This balancing of intangibles -- probative values against probative dangers -- is so much a matter where wise judges in particular situations may differ that a leeway of discretion is generally recognized.
This Court has affirmed the trial judges' power to exclude Crown evidence the prejudicial effect of which outweighs its probative value in a criminal case, but a narrower formula than that articulated by McCormick has emerged. In Wray, the Court stated that the judge may exclude only "evidence gravely prejudicial to the accused, the admissibility of which is tenuous, and whose probative force in relation to the main issue before the court is trifling". More recently, in Sweitzer v. The Queen, an appeal involving a particularly difficult brand of circumstantial evidence offered by the Crown, the Court said that "admissibility will depend upon the probative effect of the evidence balanced against the prejudice caused to the accused by its admission". In Morris, the Court without mentioning Sweitzer cited the narrower Wray formula. But in R. v. Potvin, La Forest J. (Dickson C.J. concurring) affirmed in general terms "the rule that the trial judge may exclude admissible evidence if its prejudicial effect substantially outweighs its probative value".[Citations removed]
[22] At present, the issue is only whether it was Mr. Dosanjh who fired the weapon that killed Mr. Sunderani. The Crown acknowledges that it has no evidence connecting Mr. Dosanjh to Mr. Sunderani. Therefore, says the Crown, given Mr. Sunderani’s background, the only motive must be a professional killing.
[23] However, a lack of evidence of motive does not prove motive. It is simply a lack of evidence.
[24] And motive and the reason for the killing are not necessary to be proven; the only issue at present appears to be identity.
[25] In its written submissions, the Crown submits that where hearsay evidence is admitted, the trial judge must provide the jury with instructions to assess the evidence as necessary. Further, the Crown submitted that the fact that Mr. Sunderani was a drug dealer would have no impact on Mr. Dosanjh and that the jury can be instructed that is the case.
[26] Here, however, the jury can equally be instructed that they need not concern themselves with the “why” of the offence. I can confirm that the Crown is not required to prove motive. Rather, the jury must focus on the relevant “who”. Like almost all jurors, they can be advised that it would be an unusual case where the jury would be able to say “now we know everything about this case”.
[27] In argument, I asked the Crown where this evidence would be placed in the jury charge to summarize the relevant evidence to the relevant issues. The Crown submitted that it would be a part of the narrative and that a common sense inference could be made that since there was no evidence of any connection between Mr. Dosanjh and Mr. Sunderani, the latter’s death would be characteristic of a professional killing.
[28] I do not agree. A review of irrelevant evidence as part of “narrative” is exactly what a jury charge should not have. Rather, the trial judge should review the relevant evidence as it relates to the issues to be decided: See: R. v. Newton 2017 ONCA 496.
[29] Further, suggesting to the jury that they could make common sense inferences on a lack of evidence to support the Crown’s case would invite exactly the prejudice submitted by the defence.
[30] In summary, without more, the Crown seeks to suggest that since Mr. Sunderani had a seven year old conviction for drug trafficking and unexplained requests to a girlfriend and an associate along with an unexplained fear on the critical day, he must have been a drug dealer who had done something to someone to generate a motive to kill him. And that someone must have hired Mr. Dosanjh to do the killing since there is no other connection between the two that the Crown has uncovered.
[31] In the usual jury charge the jury is instructed:
You are entitled to come to common sense conclusions based on the evidence that you accept. You must not speculate, however, about what evidence there might have been or permit yourselves to guess or make up theories without evidence to support them.
[32] The Crown theory on this evidence is speculation. It is not relevant to the issues to be decided. Unless and until the issues between the parties change, this irrelevant evidence is inadmissible.