COURT FILE NO.:14-2310
DATE: 2021/10/12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
Bhupinder Gill
– and –
Gurpreet Ronald Accused
Jason Neubauer and Brian Holowka for the Crown
James Harbic and Robert Harbic for Bhupinder Gill
Michael Spratt for Gurpreet Ronald
HEARD: November 26, 2020
RULING REGARDING DISCREDIBLE CONDUCT OF MS. RONALD
Anne London-weinstein j.
[1] I provided an oral ruling on this matter previously. These are my reasons.
[2] Mr. Gill and Ms. Ronald are being tried a second time after being convicted in 2016 of first degree murder in the death of Mr. Gill’s late wife, Jagtar Gill. Ms. Gill’s body was bludgeoned and stabbed. It is the theory of the Crown that Mr. Gill and Ms. Ronald conspired together in the murder of Ms. Gill.
[3] On behalf of Mr. Gill, Mr. Harbic seeks to lead evidence to augment his defence that Ms. Ronald acted alone. Mr. Harbic proposes to call Ms. Ronald’s former spouse to testify regarding four occasions where Ms. Ronald is alleged to have tried to attack him with a knife. Mr. Harbic argues that the evidence is essential to his ability to make full answer and defence on behalf of Mr. Gill. The evidence advances his theory that Ms. Ronald was volatile, unpredictable and given to resort to knives when angered. The evidence provides some basis for the argument that Ms. Ronald may have confronted Ms. Gill on her own, become angry and attacked her with a knife.
[4] The four knife incidents are as follows:
Sometime after the birth of their second child in 2004, Ms. Ronald and her husband became embroiled in a dispute regarding Mr. Ronald’s alcohol consumption with his friends. Ms. Ronald is purported to have grabbed a kitchen knife and threatened Mr. Ronald with the knife. He disarmed her of the knife.
In 2008, when Mr. and Ms. Ronald were living in Fitzroy Harbour, a dispute arose regarding the slow progress being made in regard to house renovations. Ms. Ronald again is alleged to have seized a kitchen knife and threatened her husband with the knife.
In 2012, another argument arose. Mr. Ronald left the kitchen where the spouses had been arguing and walked past the bottom of the stairs where his daughter was seated. When Ms. Ronald followed him with a knife in her hand, she saw her daughter and attempted to make light of the incident. She did not attack Mr. Ronald.
In September 2013, Ms. Ronald discovered a used condom in a rental property and became angry, grabbing a kitchen knife. Mr. Ronald disarmed her however, he sustained a minor injury to his hand.
[5] On behalf of Ms. Ronald, Mr. Spratt argues that the evidence is of limited probative value and its admission will exact too great a prejudicial toll on the fair trial rights of Ms. Ronald to warrant reception into this trial. In a related motion, Mr. Spratt sought severance on behalf of Ms. Ronald should the evidence be admitted. That severance motion has been abandoned when both accused re-elected to be tried before me without a jury. If the motion had not been abandoned, I would not have granted it, given my conclusion that the accused should be tried together and my view that an instruction to the trier as to the permissible use of the evidence is sufficient to ameliorate any prejudicial effect of the proposed evidence. This is particularly true now that this is a judge alone trial.
[6] Mr. Neubauer on behalf of the Crown, concedes that the evidence is sufficiently probative to be admitted, but maintains the Crown position that Mr. Gill and Ms. Ronald acted in concert.
[7] I have determined that the probative value of the evidence is not substantially outweighed by the prejudicial impact of the evidence and that the evidence is admissible for reasons explained further below.
[8] The ability to make full answer and defence is a principle of fundamental justice. It is one of the pillars of criminal justice on which we heavily depend to ensure that the innocent are not convicted. R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326 at p.336.
[9] The guarantee of the ability to make full answer and defence is guaranteed by s.7 of the Charter which reads: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
[10] An accused person may adduce evidence of a co-accused’s prior acts of violence to demonstrate the propensity of the co-accused to commit the offence with which both accused have been charged. R. v. Valentini, 1999 CanLII 1885 (ONCA) at p. 15.
[11] A co-accused’s right to make full answer and defence affords latitude which would not be available to the Crown. In R. v. Creighton, 1995 CanLII 138 (SCC), [1995] S.C.J. No.30 both the accused and the co-accused, Crawford were charged with murder. Crawford made no statement to the police. He testified at trial and blamed Creighton, who did not testify. Counsel for Creighton cross-examined Crawford on his failure to give a statement to police. Counsel for Crawford criticized Creighton for his failure to testify in his closing address to the jury. The Crown would have been prohibited from commenting at all on an accused person asserting his right to remain silent.
[12] The Court discussed the appropriate course when the protected rights of two individuals come into conflict. See Creighton para. 36. A balance must be achieved that fully respects the importance of both sets of rights. The court noted that Charter rights are not absolute in the sense that they cannot be applied to their full extent regardless of the context. Application of Charter values must take into account other interests, and in particular other Charter values which may conflict with their unrestricted and literal enforcement.
[13] The proposed evidence supports the inferences for which Mr. Harbic seeks to use it. I do not agree that there is no basis to support the theory that Ms. Ronald acted alone, which is the theory of Mr. Gill’s defence. For example, Mr. Gill’s sister will testify she told her brother she would attend the home on the morning of the homicide. A phone was placed near Mrs. Gill prior to Mr. Gill leaving the home. Mr. Gill allowed his daughter and her cousin, who was also a child, to enter the house first and witness the gruesome brutality of the murder scene. He will testify he would not have exposed his child to such a macabre scene if he knew his wife’s murdered body was in the home. Mr. Gill’s position is that the sexual relationship between himself and Ms. Ronald had ended prior to the homicide. Police were unable to establish evidence to contradict that assertion, although I note there was frequent contact between them, by telephone, text and in person.
[14] The passage of time has diminished the probity of the proposed evidence to a certain degree. However, the datedness of some of the evidence relates to the potential weight which it may be afforded, and not to its admissibility. Despite its dated nature, the evidence is relevant and material.
[15] I have found that the discreditable conduct evidence relates to Ms. Ronald, it is probative of a material issue in this trial, that being whether Ms. Ronald acted alone. I would not characterize the probative value of this evidence as slight, which was the description afforded to this body of evidence by the Crown.
[16] The right to make full answer and defence as a principle of fundamental justice in the criminal context is not unqualified however, relevant evidence can be excluded where such exclusion is justified by a ground of law, or policy, such as where the evidence is unduly prejudicial or likely to distort the fact-finding process. R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577 at 609.
[17] Having found that the evidence is sufficiently probative to a material issue in this trial to justify admission, I turn to the resultant prejudice which Ms. Ronald will suffer. The risk of moral prejudice being engendered against Ms. Ronald is diminished by the fact that these incidents, while violent, pale in comparison to the index offence in this case.
[18] In terms of reasoning prejudice, the prohibited form of reasoning is not a complex one for a trial judge to understand. I will instruct myself that the proposed evidence can only be used by Mr. Gill to raise a doubt in his case and cannot be used in any fashion to inculpate Ms. Ronald. I have also considered that Mr. Ronald bears animus toward Ms. Ronald and I accept the submission from Mr. Spratt that the witness may be voluble and free wheeling in the manner in which he delivers his evidence. I will expect counsel to exercise control over the witness and I will intervene if it is necessary. This concern is greatly reduced in a judge alone trial.
[19] I will instruct myself that the evidence may be used to raise a doubt as to the culpability of the accused, but it cannot in any circumstances be used against the co-accused in establishing her guilt.
[20] An accused in a joint trial does not lose the constitutional right to a fair trial by virtue of the fact that he or she is being tried jointly. An accused’s right to a fair trial does not however, entitle that accused to exactly the same trial when tried jointly as the accused would have been had he been tried alone. Creighton, 497.
[21] In my view, the respective fair trial rights of both accused are best balanced by the admission of the evidence. I invited counsel to submit whatever additional submissions they felt were relevant to this motion at the time of the re-election to judge alone. I did not receive additional submissions and so proceeded on the original material provided, with the knowledge that this is now a judge alone trial.
Anne London-Weinstein J.
Released: October 12, 2021
COURT FILE NO.:14-2310
DATE: 2021/10/12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty The Queen
Bhupinder Gill
– and –
Gurpreet Ronald
Accused
ruling regarding discreditble conduct of ms. ronald
Anne London-Weinstein J.
Released: October 12, 2021