COURT FILE NO.: 18-0552
DATE: 2019 07 26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RAJA DOSANJH
Accused
J. Forward and E. Maguire for the Crown
J. Greenspan and B.J. Greenshields, for the Accused
HEARD: July 17, 2019
LEMON J.
RULING RE: CELL TOWER EVIDENCE
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 lead cell tower evidence with respect to Mr. Dosanjh’s cell phone. The defence objects to that evidence. I have ruled that the evidence is admissible for written reasons to follow. These are those reasons.
Background
[2] Mr. Dosanjh is charged with the first degree murder of Mr. Sunderani on March 1, 2016. Mr. Sunderani was killed in front of the Guelph Comfort Inn. The murder occurred shortly before 4:30 p.m. on that date. This jury trial is now in its fifth week. As part of the Crown evidence, Robert Constanzo provided evidence of the location of what the Crown alleges to be Mr. Dosanjh’s phone on the date of the murder.
[3] The evidence to date indicates that Mr. Dosanjh is ordinarily a resident of Burnaby, British Columbia.
[4] Mr. Constanzo testified that Rogers Communications Canada records indicate that this cell phone was in Ontario on March 1, 2016. It was in the Caledon area at 10:51 a.m. local time and in Brampton at 8:17 p.m. No cell sites were recorded between those times. There were text messages sent to the phone in that time period but they were not received. From the records, there is no indication that the phone was on between 3:36 and 5:18 p.m. as the texts were not received by the phone at that time. There is no objection to this evidence.
[5] From the records, Mr. Constanzo said that it is likely that the phone was not connected. That could be because it was turned off, on airplane mode or there were no sites in that area. It is also possible that it was not recorded by Rogers, but that was “unlikely”.
[6] Mr. Constanzo also testified where the phone was on February 10, 12, and 15, 2016. The cell tower records indicate that on those dates, the phone travelled from the west side of the Greater Toronto area to locations just east of Guelph and then returned. These are the records that are in dispute.
[7] On February 10, 2016, the cell phone traveled from Vaughn at 2:03 p.m. On Mr. Constanzo’s evidence, the phone was likely turned off from 2:35 p.m. to 6:43 p.m. at which time it was just east of Guelph. It then travelled to Milton.
[8] On February 12, 2016, the phone was located in Vaughn and then was apparently unconnected between 12:01 p.m. and 3:22 p.m. when it was located just east of Guelph and returned to Mississauga.
[9] On February 15, 2016, the phone was located in Halton Hills at 2:20 p.m. and was apparently off from that time until 4:23 p.m., when it appeared just south of Guelph. At that time, it was tracked eastbound until 4:41 p.m. in Mississauga.
Position of the Parties
[10] The defence submits that the records related to the February dates are inadmissible because the Crown’s theory to find them relevant is based on speculation. The lack of evidence of Mr. Dosanjh’s whereabouts on the February dates is not evidence of anything relevant to the issues at trial.
[11] In response, the Crown submits that the three dates together can show that Mr. Dosanjh consciously turned off his phone in a pattern consistent with his conduct on March 1, 2106. Combined, they show that he was endeavoring to hide his location while he was planning and then attending at the shooting. The Crown submits that this is circumstantial evidence to allow an inference that he was planning the murder.
Analysis
[12] It appears that the principle issues in this case will be the identity of the shooter and whether the murder was planned and deliberate.
[13] In R. v. Kinkead, [1999] O.J. No. 1498, 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:
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.
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.
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]
[14] Circumstantial evidence of where Mr. Dosanjh was days before the shooting cannot assist with identifying him as the shooter. I agree with the defence that this evidence can only confirm where Mr. Dosanjh’s phone was at the particular times and dates; it can tell us nothing else. There is no other evidence about Mr. Dosanjh’s activities on the February dates. One could only find this to be useful evidence if Mr. Dosanjh were already found to be the shooter. There is a risk here that the jury will use it in the opposite direction. It is not helpful to the deliberations on identity.
[15] However, if the jury finds that Mr. Dosanjh did commit the murder, the evidence would be relevant to the issue of planning and deliberation. If the jury accepts that it was he who did the shooting, they could well find that it was his phone that was turned off on March 1, 2106. The fact that the same circumstances took place on recent days prior to the shooting, could assist the jury with finding that Mr. Dosanjh did the same things in the process of planning the murder. For that purpose, the evidence is admissible.
[16] The defence agrees that evidence may be admissible for some purposes but not others. The purpose of this evidence will need to be made clear to the jury in the charge.
Result
[17] Accordingly, the evidence is admissible for the issue of planning and deliberation but not with respect to the issue of identity.
“Justice Lemon”
Lemon J.
Released: July 26, 2019
COURT FILE NO.: 18-0552
DATE: 2019 07 26
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
RAJA DOSANJH
Accused
Ruling re: cell tower evidence
Lemon J.
Released: July 26, 2019