Court File and Parties
COURT FILE NO.: 18-0552 DATE: 2019 06 03 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – RAJA DOSANJH Accused
COUNSEL: J. Forward and E. Maguire for the Crown J. Greenspan and B.J. Greenshields, for the Accused
HEARD: May 27, 2019
LEMON J.
RULING RE: THE PHRASE “PROFESSIONAL KILLING”
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 to use the phrase “professional killing” as part of its Crown theory in both its opening and closing address to the jury. The Crown does not expect the phrase to come up in the evidence itself. The defence objects.
Position of the Parties
[2] The Crown theory is that Mr. Dosanjh murdered Mr. Sunderani with an automatic weapon outside Mr. Sunderani’s hotel in broad daylight.
[3] The issues for trial are the identification of Mr. Dosanjh as the shooter and whether the murder was “planned and deliberate” for the purposes of first-degree murder.
[4] It is the position of the Crown that its evidence will show Mr. Dosanjh was in concert with one or two other individuals. The shooting was done in “execution style.” The weapon used was “illegal” and identification had been removed. Most of the bullets hit the deceased. The vehicle used by Mr. Dosanjh was rented in another name and was paid for in cash. Apparently, Mr. Dosanjh flew from Toronto to Vancouver and immediately returned to Toronto on the same day with another participant. The deceased’s Blackberry was receiving messages but later remotely restored to factory settings. The Crown submits that all of this would suggest a significant coordination and planning such that it must have been a “professional killing”.
[5] The Crown submits that this is an “umbrella term” and that by the end of the evidence, all of the evidentiary bricks will support the Crown theory of a professional killing. The Crown submits that it is entitled to use that phrase and any concern for propensity reasoning can be resolved by my charge to the jury.
[6] The defence submits that the phrase is prejudicial and not relevant to any issue to be tried. While all of the evidence is admissible with respect to “planned and deliberate” for the purposes of first-degree murder, there is no evidence that this was a “professional killing”. A professional killing would have to be carried out by a “professional killer” which would suggest that Mr. Dosanjh had, both before and after this allegation, carried out similar offences. Accordingly, this will lead to improper propensity reasoning. It is anticipated that the evidence will disclose that Mr. Dosanjh has no record and has not been charged with any offence other than this one.
[7] The defence points out that Mr. Dosanjh is not charged under s. 231(6.1) that would allege the murder to be “for the benefit of, at the direction of or in association with a criminal organization.” That is not the present theory of the Crown.
Analysis
[8] Presently, both parties have confirmed that the two issues for trial are the identification of Mr. Dosanjh as the shooter and whether the Crown can prove “planning and deliberation.” Those may or may not be the issues by the end of the trial.
[9] Presently, however, the Crown concedes that it has no evidence to connect Mr. Sunderani with Mr. Dosanjh. It also does not intend to lead any opinion evidence that would suggest that this shooting has the hallmarks of a “professional killing”.
[10] The Crown says that it does not intend to refer to Mr. Dosanjh as a “professional killer” but only that it was a “professional killing.” That distinction escapes me; both are prejudicial and irrelevant.
[11] The anticipated evidence suggests a high degree of planning and deliberation. However, whether Mr. Dosanjh is a professional killer or not is both irrelevant and prejudicial to the determination of who killed Mr. Sunderani on March 1, 2016. On this evidence, neither I nor the jury, would know how a “professional killing” would have been carried out. Perhaps, to a professional killer, this is the work of an amateur.
[12] In my view, at least at the time of the Crown’s opening, this phrase is irrelevant to the issues to be decided and, very possibly, irreparably prejudicial to the defence.
[13] By the end of trial, the evidentiary “bricks” that the Crown intends to rely upon for its theory may be apparent but they are not now. Neither party may put forward a theory without an evidentiary basis; particularly, one that is prejudicial to the other.
Result
[14] On the basis of the issues and evidence to this point, it is not appropriate that the Crown use the phrase “professional killing” in its opening. The Crown does not suggest that the phrase will be used during the evidentiary phase of the trial. Once the evidence has been completed, for both Crown and defence, we can then re-visit this issue prior to the Crown’s closing address.