Her Majesty the Queen v. Jitesh Bhogal
COURT FILE NO.: CR-19-4707
DATE: 20201127
Decision delivered orally and in writing – November 27, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Jitesh Bhogal
Applicant
Counsel:
Kimberley M. Bertholet and Ilana L. Mizel, for the Crown
Peter Thorning and Maureen Salama, for the Applicant
HEARD: November 9, 10, 11, 12, 13, 16, 17 and 18, 2020
RULING ON admissibility of defence evidence
Pomerance J.:
[1] Jitesh Bhogal is charged with first degree murder. It is alleged that he broke into the home of A.T., sexually assaulted her, and killed her. The cause of death was neck compression and suffocation. Several injuries were detected on the body of the deceased, including injuries to the wrist suggestive of binding and anogenital injuries. She suffered blunt force trauma to her head and multiple bruises to her face and extremities. The accused cannot be excluded as the donor of DNA found on the deceased’s right breast. A trace sample of DNA from another individual was found on the deceased’s right breast. The trace sample is too small to permit extraction of a DNA profile, or even identification of the gender of the person who deposited it.
[2] The trace sample of DNA is the foundation for the defence assertion that someone other than the accused was present at the house on the night of the killing. According to Jennifer McLean from the Centre of Forensic Sciences (CFS), a shower would have washed away the trace sample; therefore, it was deposited some time after A.T. had last showered.
[3] The defence wishes to argue that someone other than the accused was responsible for the events in question. The defence relies upon the trace DNA. It also seeks to introduce evidence of animus between A.T. and her neighbours and evidence of illegal and dangerous activities at the house next door to A.T. The defence’s position is that someone other than the accused perpetrated the sexual offence, the killing, or both.
[4] This motion evolved over time. At its inception, it was characterized as a motion to introduce evidence of alternate suspects. The defence position was that the other perpetrator was someone from within a group of individuals who lived at or frequented the house next door to A.T. The accused did not point to any specific individual as a potential perpetrator. Nor could he do so. There is no evidence to link any specific individual to the crime.
[5] As framed, the motion did not fit into the traditional framework governing alternate suspects. There are two categories of alternate suspect defences – those involving known suspects and those involving unknown suspects. In the known suspect category, the defence must be able to point to evidence establishing a link between the crime and a known individual: see R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27.
[6] In the unknown suspect category, the defence must be able to point to evidence that another person – whose identity is unknown – is linked to the crime: see R. v. Grant, 2015 SCC 9. The common situation is one in which the unknown person committed another crime, very similar to the crime before the court. If the accused could not have committed the other crime, perhaps because he was in jail at the time, this casts doubt on whether he committed the crime charged.
[7] What is clear is that in both instances – known and unknown suspect defences – the defence must be able to point to a specific person as the alternate perpetrator. The identity of that specific individual may be known, or it may be unknown. The defence does not apply where the accused posits a group of potential perpetrators, without identifying one of them and without linking any one of them, by evidence, to the crime.
[8] While this is not an alternate suspect defence in the classic sense, it is, nonetheless, open to the accused, as it is any accused, to assert that he is not the perpetrator of the crime. Implicit in that assertion is the allegation that the crime was committed by someone else. The accused is not under any obligation to identify who that other perpetrator was. The accused may simply say: “whoever it was, it was not me”.
[9] During an exchange with the court, Mr. Thorning agreed that he is not advancing an alternate suspect defence in the classic sense. He agreed that the defence is more in the nature of a denial by the accused and a consequential assertion that it was someone else. The defence argues that, in the context of that more general defence, the contextual evidence regarding animus with neighbours and criminal activity in the neighbourhood is relevant and should be admitted.
[10] The Crown argues that the defence position is speculative and should not be placed before the jury. It is said that the evidence of animus between A.T. and neighbours is not relevant. Nor is evidence of criminal activities next door to A.T.’s home. The Crown further argues that it is speculative to suggest that the trace sample of DNA came from an alternate perpetrator. The Crown says that it is likely a transfer of DNA from someone who lived with A.T., namely her young son. Therefore, whether characterized as an alternate suspect defence or something else, the Crown argues that the evidence suggesting a perpetrator other than the accused should not be admitted at trial.
[11] I will deal first with the trace of DNA found on A.T.’s breast. The Crown argues that this trace sample is very small and likely to have been the product of a transfer of DNA. For example, if A.T. had her son’s DNA on her hands and touched her breast, this might have transferred some of her son’s DNA to her body. The other possibility posited by the Crown is that the person who swabbed the breast might have been the donor of the trace sample. The Crown argues that the trace sample, consisting of three percent of the total DNA, is not probative of anything.
[12] The possibilities posited by the Crown may be accurate, or they may not be. It is conceivable that the trace sample was deposited in other circumstances, by someone else. It is conceivable that the trace sample was deposited by someone who was involved in the commission of the crime. Those possibilities are no more speculative than those posited by the Crown. The inability to test the sample forecloses any certainty over how it was deposited or by whom.
[13] In the context of an alleged sexual assault and homicide, the presence of unidentified DNA on A.T.’s breast is relevant circumstantial evidence in what is an entirely circumstantial case. It will be for the jurors to determine what inferences they draw from the whole of the evidence including the trace DNA. The accused is entitled to place that evidence before them as evidence potentially capable of raising a reasonable doubt on the issue of identity.
[14] What of the other evidence?
[15] About four months before A.T.’s death, she posted a tweet in which she said: “If I end up dead, my next-door neighbours did it. I wish this was a joke”. A.T. captured a number of pictures and videos of her neighbours on her cell phone, including photographs depicting the front of the next-door rooming house located at 1372 University Avenue, Windsor, ON. She posted two videos of her neighbours on YouTube entitled: “The Irony of Screaming Shut Up” and “Same Neighbour. Different Night.” Other evidence, including the testimony of Richard Dennis at the preliminary, supported the existence of an animus between A.T. and the people who frequented the house next door. In addition, the defence wants to ask witnesses with direct knowledge about the drug offences and violent crimes that occurred at that location.
[16] The evidence sought to be introduced by the defence sets a context for the homicide. It describes relationships and events that were temporally and/or physically proximate to the event. The defence position is based on a generalized assertion that there was crime in the neighbourhood; that people were selling drugs; that there were violent individuals in the vicinity of A.T.’s home; and there was ill will between A.T. and some of these individuals. The evidence is not being led to prove that one of the neighbours committed the crime. The accused need not prove that, or anything else, at his trial. The evidence is context – part of the backdrop – to be considered by the jury in assessing whether the evidence, or lack of evidence, can support inferences other than the guilt of the accused see: R. v. Villaroman, 2016 SCC 33, [2016] 1 SCR 1000. The evidence meets the test of relevance, has probative value, and is a critical part of the accused’s defence to a charge of first degree murder. Even if the probative value of the evidence is modest, it can only be excluded, if probity is substantially outweighed by prejudicial effect. That is not the case here.
[17] Let me deal with the tweet. The Crown argues that this evidence is prejudicial because the jury may infer from the tweet that A.T. was afraid of her neighbours. The Crown asserted that this inference would be “truth distorting” and, therefore, prejudicial. However, it can only be said to be truth distorting if one is aware of what the “truth” is. We do not have direct evidence of what was in A.T.’s mind when she wrote the tweet.
[18] As for the hearsay issue, the tweet is not being introduced for proof of its truth. There is no truth asserted. A.T. is not making an explicit or implied statement about a past event. Nor is she in a position to accurately forecast a future event. The tweet is evidence from which one might infer A.T.’s state of mind. Whether she was fearful, angry, irritated, or offering sarcastic commentary is not known. It will be for the jury to consider this evidence, along with the evidence as a whole.
[19] The same may be said of the other evidence of animus and illegal activities. The accused is charged with a serious crime. He is entitled to test the Crown’s case and introduce evidence that is capable of casting doubt on the Crown narrative. The Crown argues that there is no air of reality to the suggestion that someone other than the accused committed the crime. However, to accede to that suggestion would be, in effect, to declare Mr. Bhogal guilty of the offence before the trial begins. That is neither my role, nor my intention. The viability of defences – their ultimate air of reality - will be assessed at the conclusion of the evidence. For now, the contextual evidence is relevant and does not attract the type of substantial prejudice necessary for exclusion.
[20] The Crown argues that the jury might speculate on the meaning of the tweet and on the effect of the other defence evidence. The jury that tries Mr. Bhogal will be instructed on the difference between reasonable inferences and rank speculation. They will be instructed on the law as it relates to circumstantial evidence, the presumption of innocence, and the standard of proof beyond a reasonable doubt. We must presume that the jury will follow these instructions and that they are capable of intelligently evaluating the evidence before them.
[21] Therefore, I rule that the evidence of A.T.’s social media activity regarding the house next door is admissible, as is other evidence demonstrating animus between A.T. and her neighbours. In addition, evidence of criminal activity in the house next door is admissible so long as it is not of a hearsay character.
[22] During argument, the Crown advised that, if the tweet is admitted, the Crown may wish to introduce a host of ante mortem statements made by A.T. to others about her neighbours. This, it is said, will help to prove that the tweet was more about noise complaints than it was fear. This evidence was not proffered by the Crown on the present motion. I advised the Crown that I would need to consider the admissibility of that evidence before it is introduced to the jury. As such, I invite the Crown to bring an application should it wish to chart that particular course.
Original signed by Justice Renee M. Pomerance
Renee M. Pomerance
Released: Orally and in writing - November 27, 2020
COURT FILE NO.: CR-19-4707
DATE: 20201127
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Jitesh Bhogal
Ruling on admissibility of defence evidence
Pomerance J.
Released: Orally and in writing – November 27, 2020