COURT FILE NO.: 14-2310
DATE: 2021/10/13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
Bhupinder Gill
– and –
Gurpreet Ronald Accused
Counsel:
Jason Neubauer and Brian Holowka for the Crown
James Harbic and Robert Harbic for Bhupinder Gill
Michael Spratt for Gurpreet Ronald
HEARD: November 25, 2020
RULING REGARDING DISCREDIBLE CONDUCT/ HEARSAY STATEMENTS OF DECEASED
Anne London-weinstein j.
[1] The Crown seeks to introduce evidence of discreditable conduct. The evidence is relevant to the issue of whether Mr. Gill and Ms. Ronald bore animus toward Jagtar Gill. The existence of animus is evidence of motive, which is some evidence to assist in identifying the killer of Jagtar Gill. The Crown theory is that Mr. Gill and Ms. Ronald were having an affair. A divorce was not possible and therefore Mr. Gill and Ms. Ronald planned and murdered Mrs. Gill in order that they could be together.
[2] The discreditable conduct evidence is contained in admissions alleged to have been made by both accused to Susanne Shields. Ms. Shields was a psychic, clairvoyant and purveyor of feng shui. The Crown also seeks to have admitted a further body of evidence contained in hearsay statements of the deceased, Jagtar Gill to her long time friend Barbara Reynolds. Ms. Reynolds also was Jagtar Gill’s supervisor at work, When Jagtar Gill got married, Ms. Reynolds held a bridal shower for her in her home.
[3] Discreditable conduct evidence is inadmissible where the prejudicial effect of the evidence exceeds the probative value of the evidence, the burden resting with the party seeking to introduce the evidence. Hearsay evidence is prima facie inadmissible, the burden resting with the party seeking to introduce the evidence to establish on a balance of probabilities that the evidence either is admissible as a common law exception to the prohibition against the receipt of out of court statements introduced for the truth of their contents, or that the evidence is admissible under the principled approach, being both necessary and meeting the requirements of threshold admissibility in regard to reliability.
Discreditable Conduct Evidence:
[4] I will deal with the evidence of the statements alleged to have been made by Mr. Gill and Ms. Ronald first. The statements were alleged to have been made to Ms. Susanne Shields.
[5] Prior to re-election in this matter, the defence urged me to entirely exclude the evidence of Ms. Shields, relying on my residual discretion to exclude evidence where its probative value is outweighed by the prejudicial effect of the introduction of the evidence. In regard to a hearsay application, it is clear that it is the credibility and reliability of the declarant and not the recipient who is relating the statement, which is to be considered when looking at threshold reliability under the principled approach. See R. v. Blackman, 2008 SCC 37 at para 39.
[6] The defence raised several arguments as to why the evidence of Ms. Shields should be completely excluded. I canvassed these reasons in the related hearsay statements of the deceased to Susanne Shields ruling. Ms. Shields claimed to hear deceased persons speak to her. She claimed to have heard Jagtar Gill speak to her after Jagtar Gill was murdered. Her evidence evolved and was inconsistent between her statement to police, the preliminary hearing and the first trial. In summary, the defence submits that she is manifestly not credible and completely unreliable. I considered all of these arguments, but in my view the prejudicial effect of the introduction of the evidence proposed to be lead through Ms. Shields did not exceed its probative value. While the re-election to judge alone does not completely eliminate the potential for moral or reasoning errors, it reduces the possibility. In my view the alleged admissions of Mr. Gill and Ms. Ronald to Ms. Shields have probative value which is not exceeded by the prejudicial effect of the evidence. The evidence is relevant to the issues outlined by the Crown, including motive and animus. Concerns relating to reliability and credibility will impact the weight afforded her evidence, not its admissibility.
[7] Mr. Gill is alleged to have told Susanne Shields that he did not like his wife. Mr. Gill and Ms. Ronald are alleged to have expressed to Ms. Shields that they loved each other and wanted to be together. This profession of love and desire to be together is alleged to have taken place at a life coaching session on April 22, 2012. They are alleged to have sought guidance on how they might be together. It was during this same session that Mr. Gill is alleged to have indicated to Ms. Shields that he disliked his wife. He is alleged to have told Ms. Shields that he called his wife a Nazi, that he hated his wife, and that he disrespected his wife in front of the children. He is alleged to have added that he would not, and could not, divorce her because his culture did not permit divorce. Divorce aside, he is alleged to have said he would do anything to be rid of her.
[8] During this same session, Ms. Ronald is alleged to have expressed hatred toward Jagtar Gill, calling her the devil and saying that she wanted to be rid of her. She is alleged to have repeated this sentiment over the following months.
[9] Ms. Shields remained in contact with Mr. Gill and Ms. Ronald as she provided feng shui services to them as they renovated and sold homes.
[10] She is alleged to have observed Mr. Gill calling his wife hurtful names and encouraging the Gill children to also be disrespectful of their mother. Mr. Gill is alleged to have also directed his wife to serve him meals and clear his dishes. Ms. Shields will indicate that she confronted Mr. Gill about this conduct, but he reminded her that she was in his home where his rules applied.
Analysis:
[11] I begin with some general observations regarding the admissibility of discreditable conduct evidence. Since this motion was first argued, Mr. Gill and Ms. Ronald re-elected to be tried before me sitting as a trial judge alone, without a jury, pursuant to s. 473 of the Criminal Code and with the consent of the Crown Attorneys assigned to this case, and the Attorney General.
[12] An assessment of the admissibility of evidence of discreditable conduct can take the form of similar fact conduct evidence, or simply be evidence of discreditable conduct which is not alleging similar acts, but rather relates to specific individual items of evidence which are argued to be relevant to a material issue at trial, but which also raise the risk that the trier of fact will fall into reasoning errors by virtue of the introduction of the evidence. In this case, the Crown seeks to admit discreditable conduct evidence which is not in the form of a similar fact allegation, but rather relates to discreet utterances and acts which are said to be relevant to explaining the relationship between the parties, which is argued to be relevant to motive.
[13] There is a potential risk of moral prejudice to the accused. The risk is that he or she may be convicted because they are viewed as a “bad persons” rather than based on proof that he, or she, committed the offence. Moral prejudice refers to the danger that the evidence will be used by the trier of fact to infer guilt based on the “forbidden chain of reasoning…from general disposition or propensity.” R. v. K. (C.P), 2002 23599 (ON CA), [2002] O.J. No. 4929 at para 30 (C.A.) para 139.
[14] Further, there is a potential for reasoning prejudice against the accused, meaning the risk of distracting or confusing the jury, or of undue consumption of time, and the danger that the trier of fact may have difficulty disentangling the subject matter of the charge from the discreditable conduct evidence.
[15] The risk of moral prejudice is reduced where the offence charged is significantly more troubling than the discreditable conduct evidence. R. v. Talbot (2002), 2002 23584 (ON CA), 161 C.C.C. (3d) 256 (Ont. C.A.). The risk of moral prejudice is considered to be modest where the allegations of discreditable conduct involve prior acts of aggression against the same victim. This consideration is based on the assumption that evidence of prior threats or abuse of the victim is so closely related to the specific charge that it is unlikely that the trier of fact would resort to the prohibited inference. R. v. Dupras, (2003) 2003 BCCA 124, 173 C.C.C.(3d) 55 (B.C.C.A.).
[16] Reasoning prejudice is related to the potential for distraction of the trier of fact from the focus of the charge itself. Distraction can assume different forms. Talbot, supra. Reasoning prejudice can be akin to “moral prejudice” in that a trier of fact may be deflected from engaging in a rational assessment of the case by sentiments of disgust or condemnation. Or, the trier may be distracted by the risk that there is conflict regarding the accuracy of the discreditable conduct evidence. If this happens, an accused person may be unable to effectively respond, due to the passage of time, or surprise, or the distraction of having to defend the charge as well as litigate secondary issues as to whether the discreditable conduct evidence even occurred. David M. Paciocco & Lee Steusser The Law of Evidence, 7th Edition (Toronto: Irwin Law, 2020) at page 81, referencing R. v. Handy, [2002] 2 S.C.R. 908, 2002 SCC 56.
[17] Finally, in instances where there are separate incidents being proved, as in a similar fact evidence application, there is a risk that the trier of fact might confuse the similar acts with the charge. R. v. Shearing (2002), 2002 SCC 58, 2 C.R. (6th) 213 para 69.
[18] The risk of prejudice is considered to be reduced in a judge alone trial, as opposed to trial with a jury. The Ontario Court of Appeal has indicated it regards prejudice to be considerably reduced in a judge alone trial. See R.v. B.(T.) (2009), 2009 ONCA 177, 95 O.R. (3d) 21 at para 26-29 (C.A.)
[19] In B.(T.), supra, Borins J.A., commented that it is “counterintuitive that similar fact evidence could be excluded in a non-jury trial based on the trial judge’s determination that the evidence would confuse him or induce him to put more weight on it than logically justified.” Para 27.
[20] This conclusion, as noted in Paciocco, supra, at page 82, would suggest that probative value is the “principal driver of admissibility in a judge alone trial.” However, the Paciocco text notes an important caveat, which is that even judges can struggle to overcome the tainting effect that discreditable information which is given undue attention during a trial can have. The authors note that in regard to reasoning prejudice, the superior ability of judges to focus on material issues does little for the impact that admission can have on the length and complexity of the trial. The admission of discreditable conduct evidence can also absorb attention and resources.
[21] I found that the alleged statements made by Mr. Gill and Ms. Ronald in the presence of Ms. Shields which the Crown seeks to have admitted on this application are admissible in this judge alone trial. This evidence includes Ms. Shield’s alleged observations made of Mr. Gill’s conduct toward his wife in the presence of his children in the Gill home. I found that the proposed evidence was relevant to the issues set out by the crown, and that the prejudice which would be engendered by the introduction of the evidence, both in terms of potential moral prejudice and reasoning prejudice was minimal within the particular circumstances of this trial. The fact that Ms. Ronald is alleged to have repeatedly called Jagtar Gill a devil, and spoken ill of her is relevant to the issue of whether she bore animus toward Jagtar Gill. Animus is relevant to motive, which is relevant to establishing the identification of Jagtar’s killer.
[22] While describing one’s spouse as a Nazi, acting disrespectfully and encouraging one’s children to be rude to their mother is evidence which reflects poorly on Mr. Gill, it is not remotely comparable in terms of moral reprehensibility to the offence for which Mr. Gill is charged.
[23] This same observation is true of the other discreditable evidence proposed in relation to both Mr. Gill and Ms. Ronald. In terms of reasoning prejudice, the evidence is discreet and its introduction will not raise the different types of reasoning prejudice discussed above.
Hearsay Statements of the Deceased to Barbara Reynolds:
[24] I also found that the hearsay statements of the deceased to Ms. Barbara Reynolds regarding divorce not being an option for her and indicating that she wished to stay in the marriage for the sake of her children to be admissible. I did not find that the other hearsay statements of the deceased sought to be introduced by the Crown were admissible for reasons which I will explain. Necessity is obviously established as Jagtar Gill is deceased.
[25] Jagtar Gill is alleged to have confided in her friend and co-worker Barbara Reynolds that she was unhappy in her marriage. When Ms. Reynolds raised the issue of divorce, Jagtar Gill’s response was that divorce was not an option for her and that she was resigned to stay in the marriage for the sake of her children.
[26] The evidence is hearsay, but in my view, it is admissible as a present intention exception to the hearsay rule. It is a statement of Jagtar Gill’s present state of mind (emotion, intent, motive, plan) where the person’s statement to that effect is admissible where her state of mind is relevant. It is a prerequisite condition to admissibility that the statement is made in a natural manner and not under circumstances of suspicion. This last requirement provides the required reliability which is also a condition precedent to admission.
[27] If the statements are explicit statements of a state of mind, they are admitted as exceptions to the hearsay rule. If those statements permit an inference as to the speaker’s state of mind, they are regarded as original testimonial evidence and admitted as circumstantial evidence from which a state of mind can be inferred. The result is the same, whichever route is taken. R. v. P.(R) (1990), 58 C.C.C. (3D) 334 at 341 (Ont. H.C.J.)
[28] The fact that Jagtar Gill did not regard divorce as an option is relevant to the assessment of whether the accused may have had motive to kill his wife. It is one piece of circumstantial evidence, when considered with other evidence, which could give rise to an inference that the accused had a motive to kill his wife. The fact that Jagtar Gill is alleged to have admitted to her friend that she was unhappy in her marriage is also relevant to contradict Mr. Gill’s assertion that the marriage was a happy one. This is relevant to his credibility. The issue of whether the marriage was a happy one is also relevant to motive. How much weight can be afforded that evidence as it relates to motive, given that the vast majority of people in unhappy marriages resort to divorce rather than murder, will be determined after all of the evidence has been heard.
[29] I found that there were sufficient circumstantial guarantees that the statements were inherently trustworthy enough to warrant admission. See R. v. Bradshaw, 2017, SCC 35, [2017] 1 SCR 865. The statements were made to a friend from work with whom Jagtar Gill had a good and close relationship. They were made in circumstances which were free from any suspicion of concoction as referenced in R. v. Starr 2000 SCC 40, [2000] 2 SCR 144. The statements were made in the context of ordinary conversation between close, long time friends, which is an accepted indicator of reliability. See R. v. Pasqualino, 2008 ONCA 554 at para 43, 233 C.C.C. (3d) 319. These utterances would have also been admissible under the principled approach, given the reliable circumstances in which the statements were made. The reliable manner in which the utterances were made offset the dangers posed by the lack of contemporaneous cross-examination.
[30] These utterances of Jagtar Gill are admissible as an exception to the prohibition against the receipt of hearsay evidence under the present state of mind exception.
[31] I found the other alleged statement of Jagtar Gill to the effect that if she left that she would take the children with her, to be inadmissible. I found that this alleged utterance contradicted her statement that leaving the marriage was not an option for her and she wished to stay in the marriage for the children. I found the proposed evidence would likely have changed under cross-examination given the contradiction between the two statements. There were substantive reliability concerns. R. v. Bradshaw, 2017 SCC 35, [2017] 1 SCR 865.
Evidence of Control of Jagtar Gill by her husband:
[32] The Crown also sought to introduce evidence that Jagtar Gill told Ms. Reynolds that Mr. Gill would not allow her to have a cell phone, that she had to give her Filtran severance money to Mr. Gill and that she was not allowed to spend money without asking him.
[33] I found the hearsay evidence regarding Mr. Gill not permitting his wife to have a cell phone, her saying she had to turn over her Filtran severance money, and her not being permitted to spend money without his permission to be inadmissible due to concerns I had with threshold reliability. See R. v. Bradshaw, 2017 SCC 35, [2017] 1 SCR 865 There was proposed evidence in this case from Ms. Shields that Mr. Gill and the children called his wife Nazi woman because she had a strong personality and would give orders to other family members. I found this evidence to be at odds with evidence that Jagtar Gill was cowed by Mr. Gill, or that she could not purchase a cell phone if she wanted one, or that she would tolerate being financially controlled by her husband.
[34] There is proposed evidence that Mr. Gill regarded his wife bossy and domineering. It is hard to reconcile this evidence with evidence that Jagtar was cowed by Mr. Gill. I also found that while the prejudicial effect of this evidence pales in comparison to the offence which Mr. Gill is charged with, so does the probative value.
[35] I found the evidence relating to Jagtar Gill saying she had to turn over her Filtran severance cheque to her husband to be equivocal at best. Given the evidence in this case which contradicts the inference that Mr. Gill controlled Jagtar Gill, I found the evidence to be of negligible probative value. Since the evidence is in the form of hearsay, with contradictory evidence giving rise to threshold reliability concerns, I exercised my discretion and declined to admit it.
Anne London-Weinstein J.
Released: October 13, 2021
COURT FILE NO.: 14-2310
DATE: 2021/10/13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty The Queen
Bhupinder Gill
– and –
Gurpreet Ronald
Accused
ruling regarding discreditble conduct
Anne London-Weinstein J.
Released: October 13, 2021