Court File and Parties

COURT FILE NO.: 18-0552 DATE: 2019 07 23

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – RAJA DOSANJH Applicant

COUNSEL: J. Forward and E. Maguire for the Crown B.J. Greenshields and J. Greenspan, for the Applicant/Accused

HEARD: July 15, 2019

LEMON J.

RULING RE: CROWN RECORDS AND THEORY

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 defence objects to the admissibility of a variety of documents, and seeks a ruling that the Crown cannot put the Crown’s proposed theory of liability to the jury.

[2] After hearing argument, I said:

For written reasons to follow, I can rule on the defence notice of objection dated July 7, 2019 (para. 15) as follows:

i. Any objection to the Crown’s theory of liability to be put before the jury is adjourned, at least, until the end of the Crown evidence.

ii. The hotel records from the Best Western and Hampton Inn are admissible.

iii. The telephone records relating to Kuldeep Kaur Nagra and Bhupinder S. Kaur are admissible.

iv. The B.C. police surveillance records for October 14 - 26, 2016 are admissible.

Two other issues were raised in argument.

i. With respect to any evidence of handwriting in any of the documents, I will need the assistance of counsel as to that issue in my charge to the jury, per R. v. Abdi, 34 O.R. (3d) 499.

ii. The Air Canada records with respect to Mr. Sunderani are not admissible.

[3] These are those reasons.

Background

[4] Mr. Dosanjh is charged with first degree murder. We have commenced the fifth week of the trial. The parties dispute who is at fault for the delay in bringing this motion. I make no determination of that issue and it is not part of my analysis.

[5] Mr. Sunderani was shot and killed March 1, 2016 outside the Guelph Comfort Inn. Guelph City Police tracked the vehicle allegedly driven by the shooter to a rental agency in Mississauga, Zoom Rent-a-Car. Zoom produced the rental agreement with respect to that vehicle. It disclosed that Jaspinder Nagra rented the vehicle and Avtar Nagra was an authorized driver. It is the Crown’s theory that Mr. Dosanjh used the vehicle to carry out the murder. That part of the theory is not a surprise to the defence.

[6] The evidence in issue that the Crown seeks to adduce is:

a) Best Western (Toronto Airport Hotel) records (registration in the name Jaspinder Nagra); January 30 – February 1, 2016.

b) Hampton Inn, Guelph records (registration in the name Jaspinder Nagra); for the periods January 30 to February 1, 2016 and February 3 to 5, 2016.

c) Telephone records relating to “Kuldeep Kaur Nagra” and “Bhupinder S.Kaur” (record holders that the Crown alleges to be Jaspinder Nagra and Avtar Nagra, respectively);

d) British Columbia RCMP surveillance of Jaspinder Nagra and Avtar Nagra on October 14, 25 and 26, 2017.

e) Air Canada records relating to Mr. Sunderani.

[7] When the defence first objected to the relevance and admissibility of these records, the Crown provided its theory to support the relevance of the documents. In response, the defence submits, in short, that the Crown theory is speculation. Accordingly, with no proper theory to support the evidence, the evidence should be inadmissible.

Authorities

[8] In R. v. Kinkead, Laforme J. was asked to exclude photographs. He stated at para 3:

Today the test that must be applied by a court when considering this issue is found in R. v. P.(R.) . That is:

1. The judge must determine the probative value of the evidence assessing its tendency to prove a fact in issue in the case including the credibility of the witnesses .

2. The judge must determine the prejudicial effect of the evidence because of its tendency to prove matters which are not in issue ... or because of the risk that the jury may use the evidence improperly to prove a fact in issue.

3. The judge must balance the probative value against the prejudicial effect having regard to the importance of the issues for which the evidence is legitimately offered against the risk that the jury will use it for other improper purposes, taking into account the effectiveness of any limiting instructions.[Citations removed]

[9] With respect to the concept of prejudice, Dambrot, J. in R. v. A.D. said at paras 7 and 8 :

First, any consideration of the balancing of probative value against prejudicial effect must now be informed by the judgment of Binnie J. in R. v. Handy . From that judgment, I take the following principles concerning the evaluation of probative value:

1. The issue in question must first be identified - probative value cannot be assessed in a vacuum, but requires consideration of whether it tends to advance or refute a live issue;

2. The relative importance of that issue should be assessed; and

3. The strength of the inference should be assessed - the degree of relevance of the evidence to the issue identified, and its cogency in establishing the inference sought to be drawn obviously bear on the probative value of the evidence.

The judgment of Binnie J. in Handy also provides guidance with respect to the assessment of prejudice. Specifically, Binnie J. divided the considerations to be taken into account when examining prejudice into four categories, namely:

1. Moral prejudice - this relates to the risk of an unfocussed trial and of a wrongful conviction in a criminal case arising from the improper inference of guilt from evidence of general disposition or propensity. The concern is that a conviction, or a finding, may be based on prejudice rather than proof.

2. Reasoning prejudice - this relates to a concern about distracting the jury from their proper focus. The distraction can flow from:

a. Inflammatory evidence;

b. The creation of a distracting side issue; and

c. The undue consumption of time.

3. Unfairness to the witness.

4. Unfair surprise. [Citations removed].

[10] The defence relies upon R. v. Figliola, 2018 ONCA 578. There, Doherty, J.A. said at paras 28 and 29:

The Crown can advance alternative theories of liability. However, like defences advanced by an accused, a theory of liability can be left with the jury only if there is “an air of reality” in the evidence to that theory. Subject to fairness concerns peculiar to individual cases, a theory of liability should be left with a jury if a properly instructed jury, acting reasonably, could convict based on that theory.

The reasonableness component of the “air of reality” test incorporates a limited weighing of the evidence by the trial judge. The trial judge must determine whether there is a sufficient evidentiary basis for a properly instructed jury, acting reasonably, to render a conviction based on that theory of liability.

Analysis

[11] There is no dispute that the documents in issue have been disclosed as appropriate.

[12] While I will deal with each group of documents in turn, the issue cannot be resolved by looking at each document or group of documents to determine, on its own, whether it is relevant. The defence looks at each document or groups of documents and alleges speculation. I do not see that as the way to proceed. Rather, when viewed as a whole, the documents in issue support the Crown theory.

[13] The vehicle in question was apparently rented by someone other than Mr. Dosanjh. Without more, the rental agreement means little. However, the balance of the records in issue builds a potent picture of Mr. Dosanjh’s connection to the Nagras, the vehicle and the scene of the killing.

[14] None of the records in issue raise any moral prejudice to Mr. Dosanjh. Hotel records, bank records and phone records are unlikely to do that. There are no propensity concerns or inflammatory evidence in the videos. Relative to the length of this trial, there will be little time invested in putting the evidence before the jury.

[15] As will be seen, when assembling all of the evidence, there is more than an air of reality to the Crown theory.

British Columbia Surveillance

[16] The defence seeks to exclude surveillance evidence from October 14, 25, 26, 2016. The defence submits that it “can conceive of no legitimate evidentiary purpose for this evidence unrelated to the Crown's proposed Nagra conspiracy theory and therefore objects to this evidence".

[17] That evidence can be summarized as follows. I have taken liberally from the Crown factum to be clear on its theory of the case. The significance of the disputed documents starts with the Zoom rental of the Infiniti QX60 by the Nagras.

[18] On October 14, 2016 RCMP officers observed Jaspinder Nagra driving two vehicles. One is a 2007 BMW and the other is a grey Honda. Both are registered to Kuldeep Nagra. On the same day, Jaspinder Nagra attended a restaurant and an officer seized his straw. This straw was sent to the Centre of Forensic Science.

[19] The Crown submits that this evidence is relevant for two main reasons.

[20] The DNA cast-off was analyzed and it showed that Jaspinder Nagra is excluded as a source of DNA from the gun and the steering wheel of the QX60. Accordingly, this evidence will help the jury to understand that there is no association through DNA between the QX60 and Jaspinder Nagra. In light of the fact that the QX60 was apparently rented by Jaspinder Nagra at the time, this is important evidence for the jury.

[21] Further, Jaspinder Nagra was seen by officers driving two vehicles registered to Kuldeep Kaur Nagra. This is important because in addition to the sharing the same last name, these two people share vehicles and an address (one of which was used by Jaspinder Nagra at the Best Western hotel). The Crown seeks to prove that the phone number registered to Kuldeep Nagra (with a user name of Jay N.) is a phone used by Jaspinder Nagra. The fact that Jaspinder Nagra drives Kuldeep Nagra's cars makes this more likely. If Jaspinder Nagra uses Kuldeep Nagra's cars, it is more likely that Jaspinder Nagra also uses phones registered to Kuldeep Nagra. Therefore, the evidence is relevant.

[22] Further, on October 26, 2016, Mr. Dosanjh is seen by surveillance attending at 1103 London Road and then at 17th Avenue, Burnaby (the accused's residence according to the Westminster Credit Union documents). This evidence needs to be considered in light of the October 25, 2016 evidence.

[23] On October 25, 2016, Avtar Nagra is seen at two homes: 1103 London Road and 17th Avenue, Burnaby. On October 26, 2016, Mr. Dosanjh is seen at the same two addresses. This evidence shows that the two are associated and go to the same houses including Mr. Dosanjh's home.

Hotel Records

[24] Both sets of hotel records need to be seen in light of a variety of other documents that have been admitted or are not in dispute here.

[25] On Jan 22 - 25, 2016, Avtar Nagra flew from Vancouver to Toronto and returned.

[26] On January 28, 2016, Mr. Dosanjh flew from Toronto to Vancouver, landing at 8:47 pm.

[27] On January 29, 2016, Mr. Dosanjh, Jaspinder Nagra, and Avtar Nagra flew together from Vancouver to Toronto. This was a single booking and Mr. Dosanjh was the booker.

[28] On January 30 to February 1, 2016, the Best Western hotel was rented for three people under the name of Jaspinder Nagra with same credit card as the Zoom rental. The room registration has three names listed: Jason, Bob, and Al.

[29] On the same dates, January 30 - February 1, 2016, a room in the Guelph Hampton Inn was reserved in the name of Jaspinder Nagra.

[30] For the period, January 30 - Feb 5, 2016, the Zoom rental contract is opened in name of Jaspinder Nagra with an alternate driver of Avtar Nagra.

[31] For the period, Feb 3 - 5, 2016, the Guelph Hampton Inn has a registration in name of Jaspinder Nagra.

[32] There is an additional Zoom rental contract opened in name of Jaspinder Nagra using same credit card as first contract for the period February 5, 2016 - March 2, 2016.

[33] On February 5, 2016, Avtar and Jaspinder Nagra fly back to Vancouver.

[34] On Feb 28, 2016, Mr. Dosanjh changed his flight from Feb 28 to March 3, 2016.

[35] On March 3, 2016, Mr. Dosanjh flew from Vancouver to Toronto.

[36] The Crown submits that these records, independently, have some probative value. For example, the Best Western hotel records contain Jaspinder Nagra's phone number and this is additional proof that the Kuldeep Nagra phone is used by Jaspinder Nagra. Similarly, the Air Canada flight records which show Avtar Nagra as the primary booker, contain the phone number 778-836-7284. This is additional evidence that this number was used by Avtar Nagra at a time more proximate than his bank records.

[37] Additionally, the Best Western and Guelph Hampton hotel records both have the signatures and initials of Jaspinder Nagra. These signatures and initials can be compared to Zoom rental documents and inspection sheets. Mr. Dosanjh's credit union records contain a specimen of his signature. Ultimately, the Crown seeks to submit that it was Mr. Dosanjh who initialled the inspection sheets on March 1 and March 2, 2016. By comparing the initials and handwriting of the Best Western and Guelph Hampton records, the jury is in a better position to consider the handwriting on the Zoom contracts.

[38] Most importantly, however, these records, combined, support the inference that Mr. Dosanjh was using the assumed name of Jaspinder Nagra between January 30 and March 2, 2016.

[39] Put differently, a reasonable inference exists that Mr. Dosanjh was the real renter of the QX60 on March 1, 2016. Avtar and Jaspinder Nagra had flown back to British Columbia and could not be the renters. Moreover, the second contract in the name of Jaspinder Nagra was opened on the date that he flew back to BC. It is reasonable to infer that he opened this contract for the benefit of Mr. Dosanjh.

[40] It is also important to prove that the Nagras were not in Ontario when Mr. Sunderani was killed since the vehicle used in the shooting was rented in the name of Jaspinder Nagra. The fact that Mr. Dosanjh rented the QX60 in someone else's name is also evidence that Mr. Dosanjh was attempting to hide his identity when the vehicle was rented. This supports the inference that Mr. Dosanjh was using the vehicle for the killing of Mr. Sunderani.

[41] Similarly, a reasonable inference exists that Mr. Dosanjh was using the assumed name of Jaspinder Nagra at both the Best Western Mississauga and the Guelph Hampton Inn. First, a reasonable inference exists that the three people staying at the Best Western were trying to hide their identities. While the actual reservation was in the name of Jaspinder Nagra, the guest registration card is in the name of Jason, Bob, and Al - generic first names. This supports the inference that the people staying at the Best Western did not want their names to be traceable. Given the proximity in time of the room reservation to when Mr. Dosanjh, Avtar Nagra, and Jaspinder Nagra flew into Toronto Pearson, it is reasonable that the three used the room. This inference is further supported by proximity in location. This Best Western hotel is proximate to Pearson International airport and Zoom.

[42] Additionally, the Best Western and Guelph Hampton Inn records show that these hotel rooms were rented in the name of Jaspinder Nagra for some of the same days - January 30 - February 1, 2016. In the ordinary course, one does not rent two hotel rooms in two different cities for the same night. It is open to the jury to find that these hotel rooms were used by Mr. Dosanjh. The proximity of the Guelph Hampton Inn to the Guelph Comfort Inn lends additional support for the fact that this stay was related to the killing of Mr. Sunderani.

[43] The manner of killing suggests that this was a planned shooting requiring some knowledge of the victim's habits. A reasonable inference exists that Mr. Dosanjh used the Hampton Inn to gather this knowledge.

Phone Records

[44] The Crown seeks to tender the phone records of Jaspinder Nagra (registered to Kuldeep Nagra) and Avtar Nagra (registered to Bhupinder Kaur) for two main purposes.

[45] The phone records confirm that Jaspinder and Avtar Nagra were actually in British Columbia on March 1, 2016. Their flight records suggest that they returned to Vancouver on February 5, 2016; however, their banking and phone records confirm that they remained in British Columbia. In particular, there are 79 cell sites registered on the phone of Jaspinder Nagra that are all in Vancouver or Burnaby, BC. There are 38 cell sites registered on the phone of Avtar Nagra that are all in Vancouver or Burnaby, BC. When combined with the banking records and plane records, there is a strong inference that these two people were in BC at the time of the shooting. The Crown seeks to prove that both men were in BC when the QX60 was at the shooting. Put differently, it is more likely that Mr. Dosanjh was the renter of the QX60 because Jaspinder and Avtar Nagra were not.

[46] The phone records also show an association between Mr. Dosanjh and the Nagras. This is important because, on the Crown theory, Mr. Dosanjh assumed the name of Jaspinder Nagra for a protracted period of time. A reasonable inference exists that Mr. Dosanjh was able to assume the identity of Jaspinder Nagra because of the relationship of the parties. This is particularly so in relation to the Zoom rental vehicles. The Zoom documents show that Jaspinder Nagra opened a new contract on February 5, 2016; the day he was flying back to BC. Therefore, it is clear that he was not renting the vehicle for himself. It is more likely that he would give that car to someone with whom he enjoyed a relationship than to a total stranger. The stronger the relationship and level of trust, the more likely one is to give someone a rental car. The strength of the association between these three people is important for the jury to understand. It will allow the jury to understand how Mr. Dosanjh could be in the possession of a rental vehicle in someone else's name. This is the same reason that the BC surveillance evidence that shows Avtar Nagra and Mr. Dosanjh at the same residences is relevant.

[47] To this end, Janet Embry, a crime analyst with the Guelph Police, has analyzed the phone record data. She is able to show an association between the three based on their phone records. That the two are close associates is also supported by the fact that the return airfare for Avtar and Jaspinder Nagra (on February 5, 2016) and Mr. Dosanjh (on March 3, 2016) were paid for with the same credit card: 5191 XXXX XXXX XXXX 5545.

[48] Additionally, the phone records of Mr. Nagra are relevant because they demonstrate that he continued to be in contact with Zoom after he returned to British Columbia and while the contract was still open. This is additional evidence that Mr. Dosanjh was able to enjoy the benefit of the Zoom rental vehicles as a result of the co-operation of Mr. Nagra.

Analysis

[49] In my view, the theory of the Crown is tenable before the jury and the disputed evidence is admissible. One of the facts in issue concerns the driver of the “get away car”. The car was rented by the Nagras. The Crown seeks to show that it was driven by Mr. Dosanjh. Excluding the Nagras is a step along the way. A connection between the three, both socially and geographically, is a step towards connecting Mr. Dosanjh to the vehicle. Mr. Dosanjh’s DNA is on the gun found at the scene. Gunshot residue is found in the car. These and other pieces of evidence weave the documents in issue into a narrative whole. They are probative of the identity of the shooter.

[50] As I have summarized above, there is no moral prejudice to Mr. Dosanjh in such records. There is no reasoning prejudice that amounts to a reason to exclude them.

Air Canada Records

[51] The records in issue show that on Feb 13, 2016, Mr. Sunderani flew to Montreal. On Feb 28, 2016, Mr. Dosanjh changed his flight from Feb 28 to March 3, 2016. On Feb 29, 2016, Mr. Sunderani returned to Toronto. He was shot March 1, 2016.

[52] The Crown submits that the flight records of Mr. Sunderani are relevant when considered in light of Mr. Dosanjh's flight records. Mr. Dosanjh was initially scheduled to fly from Toronto to Vancouver on February 28, 2016. On that day, he changed his reservation to March 3, 2016. The Crown submits that it is open to the jury to find that Mr. Dosanjh changed his reservation because he could not kill Mr. Sunderani before February 28, 2016 because Mr. Sunderani had travelled to Montreal between February 13 and February 29, 2016. The flight records of Mr. Sunderani explain why Mr. Dosanjh changed his flights. This is additional circumstantial evidence that Mr. Dosanjh was involved in the killing of Mr. Sunderani.

[53] In submissions, the Crown acknowledged that there will be no evidence to show any reason to believe that Mr. Dosanjh knew of the change in schedule for Mr. Sunderani. Without that connection, I agree with the defence that this theory is speculative. As such, there is reasoning prejudice. There is no rational path from one change of flights to another without a presumption of guilt in the first place. Accordingly, this evidence is irrelevant and inadmissible.

Handwriting Analysis

[54] The defence objects to the Crown submitting to the jury that it can compare the handwriting on the various documents. The defence points out that the Crown has obtained two different experts’ opinions with respect to the handwriting but those reports do not support the Crown’s case.

[55] One report concluded that “I am unable to identify or eliminate a single writer as having written the questioned initials on [the Zoom rental inspection sheets, agreement forms and credit card slips.]” The second confirmed that the report writer was “unable to identify or eliminate the writer of the known initials on the banking documents (Dosanjh), as having written the initials on the Zoom documents”.

[56] R. v. Abdi, 116 C.C.C. (3d) 385, appears to put this issue to rest. There, Robins J.A. said at paras 22 to 25:

. . . In my opinion, the common law rule has not been ousted by s.8 of the Act . This section does not preclude a trier of fact from comparing disputed handwriting with admitted or proved handwriting in documents which are properly in evidence, and drawing inferences therefrom. In these circumstances, a trier of fact may make the comparison in the absence of witness testimony as to the genuineness or otherwise of the disputed writing.

Triers of fact routinely draw inferences from relevant identifying evidence by, for instance, looking at photographs, listening to a person's voice on tape, or examining the state of items of clothing. Drawing conclusions from this type of evidence is within the mandate of the trier of fact. The same considerations, in my opinion, are applicable to a comparison of documents, as in this case, that are already in evidence.

The recent decision of the Supreme Court of Canada in R. v. Nikolovski is apposite to this situation. . . . Speaking for the majority of the court, Cory J. said at p.416:

Although triers of fact are entitled to reach a conclusion as to identification based solely on videotape evidence, they must exercise care in doing so. For example, when a jury is asked to identify an accused in this manner, it is essential that clear directions be given to them as to how they are to approach this task. They should be instructed to consider carefully whether the video is of sufficient clarity and quality and shows the accused for a sufficient time to enable them to conclude the identification has been proved beyond a reasonable doubt. If it is the only evidence adduced as to identity, the jury should be reminded of this. Further, they should be told once again of the importance that, in order to convict on the basis of the videotape alone, they must be satisfied beyond a reasonable doubt that it identifies the accused.

In my opinion, the same approach should be taken here. A trier of fact's comparison of handwriting without the assistance of an expert or lay witness is analogous to a trier of fact's comparison of the accused with video evidence. The trier of fact should similarly be entitled make the comparison. Depending on the distinctiveness of the writings in issue, the comparison does not necessarily require expertise or particular knowledge of the relevant handwriting. The question, as in most cases involving identifying evidence, is the weight to be attached to the evidence and the manner in which the trier of fact is to be cautioned in this respect.[Citations removed]

[57] In this case, the jury will be able to compare the handwriting samples as argued by the Crown and as charged by me. The result may well have been different had the Crown’s expert found no comparison; that would knowingly mislead the jury. Here, however, the expert could express no opinion one way or the other. Accordingly, this can be left to the jury to consider.

Crown Theory

[58] The defence submits that the Crown’s proposed “Nagra theory” of liability is speculative and lacks the necessary evidentiary foundation to put before the jury. It submits that the gaps in the evidence are such that no properly instructed jury, acting reasonably, could convict the accused on the basis of this Crown theory of liability without improperly substituting speculation, conjecture or guess for reasonable inferences bridged by the evidence.

[59] The defence submits that I should rule that the Crown cannot put such a theory to the jury even at this stage of the trial. I declined to do so.

[60] The Crown proposed to call 17 more witnesses. While it may be that some of those witnesses are simply to admit the various documents in issue, neither I nor counsel know exactly what they will say. That is the nature of trials.

[61] Many of the cases relied upon by the defence to argue that a theory of the Crown had no air of reality were cases that dealt with how a jury trial judge should have dealt with the charge. Those will, in due course, be helpful to all of us to make sure that the charge is proper. However, those cases do not stand for the proposition that such evidence is inadmissible from the outset.

[62] None of the evidence to be led by the Crown is prejudicial to the defence. There is nothing to make that evidence inadmissible. What can be made of the evidence, once admitted, will, perhaps, require a further ruling. But it cannot make the evidence inadmissible from the outset.

[63] In R. v. Kelly, 2017 ONCA 920, Doherty J.A. was again helpful at para 30 - 35. There, he said:

The Crown is not bound to prove its case according to any factual or legal theory. Liability for an offence charged is determined by an application of the law relating to parties to an offence, found primarily in s. 21 of the Criminal Code , to the facts as found by the jury or trial judge. Culpability depends on the evidence and the legal principles applicable to that evidence. The Crown is entitled to rely on any route to liability available on the evidence

The defence must be taken to know that liability depends on an application of the applicable legal principles to the evidence. There is nothing per se unfair in the Crown relying on different or alternate theories of liability, as long as each is rooted in the evidence. The argument that the Crown should be bound by the particular theory it advances is essentially an argument in favour of a formalistic pleadings-type approach to criminal justice, or perhaps a plea for the return of the now discredited “sporting theory” of criminal justice. The contemporary approach favours the adjudication of criminal allegations on their merits.

The general rule that the Crown can rely on any legal basis of culpability available on the evidence is circumscribed by the overriding need to ensure trial fairness and, specifically, the accused’s right to make full answer and defence. There can be circumstances in which the defence, based on particulars provided by the Crown, specific representations made by the Crown, or the overall conduct of the trial, is justifiably led to believe that the accused’s potential liability is limited to a specific factual or legal theory and conducts the defence accordingly. In those circumstances, the defence may be able to successfully argue that any departure from the specific basis of liability put forward, especially after the evidence is complete, would unfairly prejudice the accused’s ability to make full answer and defence.

The trial judge also erred in holding that the defence was entitled to expect that the potential liability of the accused would be limited to the specific factual theory advanced by the Crown. The Crown does not, by advancing a particular theory, impliedly limit its case to that theory. If it is important to the defence that the Crown’s case be limited to the theory advanced by the Crown, and if the defence intends to rely on that limitation in shaping the defence, the defence must take steps to properly limit the Crown’s case. The defence can request formal particulars, or at least seek a clear and unqualified statement from the Crown that it is relying exclusively on the factual basis advanced in its theory of the case. The defence cannot simply sit back upon hearing the theory of the Crown, and at the end of the Crown’s case submit that reliance on any other theory of liability automatically works an unfairness on the accused. [Citations removed].

[64] Here, the defence submitted that it would be prejudiced in its defence if the Crown were not limited in its theory of the case. It was submitted that the defence did not know how to cross examine the witnesses without knowing the theory it had to meet. Doherty J.A., in Kelly , made clear that “ It is incumbent on the defence to demonstrate prejudice, justifying the limiting of the Crown’s case to a particular theory.” The submissions of the defence do not rise to that level.

[65] In any event, the Crown, by its response has set out one of the possible theories. The evidence of Mr. Dosanjh’s DNA on the murder weapon also clarifies a significant theory.

[66] At that stage of the trial, I did not have the evidence to make the determination of proper theories to put to the jury. By the end of the Crown case, the defence might be able to put this argument forward but it is premature at this point.

[67] As set out above, the Crown’s present theory and the evidence to support it is sufficient to allow the Crown to lead the evidence presently in issue.

“Justice Lemon”

Lemon J.

Released: July 23, 2019

COURT FILE NO.: 18-0552 DATE: 2019 07 23 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – RAJA DOSANJH Accused RULING RE: Crown Theory Lemon J. Released: July 23, 2019