COURT FILE NO.: CR-23-371 DATE: 2024 11 05
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R v. Gurkirat Singh and Manpreet Singh
BEFORE: Fowler Byrne J.
COUNSEL: Seeta Scully, for the Crown Carolyn Gandy, for Gurkirat Singh Sukhwant Baidwan and Eric Tweel, for Manpreet Singh
HEARD: October 15, 2024 and October 21, 2024
Endorsement
[1] The two accused were charged with Aggravated Assault and Assault Causing Bodily Harm. The trial took place between October 15 and October 29, 2024. On October 29, 2024, Gurkirat Singh was found guilty of Aggravated Assault and Manpreet Singh was found guilty of Assault.
[2] During the trial, counsel raised several issues which required rulings. In order to expedite matters, I provided my bottom-line ruling, with reasons to follow. These reasons are with respect to two of those issues:
a. Should Dr. Avery Nathens and Mr. Jaskeerat Singh Mann (“Mann”) be permitted to give evidence by videoconference? and
b. Should Samneek Guraya be permitted to give identification evidence from a video that was made an exhibit at trial?
A. Application under s. 714.1
[3] The Crown has brought an Application pursuant to s. 714.1 of the Criminal Code, R.S.C. 1985, c. C-46, to allow two witnesses to testify by videoconference at the trial in this matter.
[4] The parties consented to such an order with respect to Dr. Avery Nathens. This ruling only refers to Mann’s evidence.
1. Facts
[5] Mann is not related or associated to either of the accused or to the victims of the alleged offenses. He was an individual who was present at the same bowling alley where the alleged assault occurred. He witnessed an assault and took a video of the event. He provided a copy of the video the police.
[6] At the same time that he was filming the alleged assault, another individual was filming the assault from a different angle. This other individual did not stay, but provided this video to Mann, who delivered it to the police, along with his own video. Both videos are less than 20 seconds in length.
[7] It was not anticipated that Mann would give any evidence regarding the identity of the two accused, which was a key issue at trial. The Crown intends to call him to give evidence about how he took the video and acquired the other video. He is expected to give evidence about what he saw, as shown in the video. Mr. Mann may also testify that he saw the two accused earlier in the bowling alley. He believes he exchanged pleasantries with one of the victims earlier in the evening before the alleged assault. That is the extent of his involvement. He is one of several eyewitnesses to the alleged offences. The defence has submitted that Mann may give other evidence, but no details of that other evidence was provided.
[8] It is also not disputed that the Crown served this application only 11 days prior to the commencement of trial, and the supporting affidavit was served 6 days prior to trial. This is clearly short notice. The Crown had given no earlier indication that it intended to bring this Application because it only ascertained that Mann had moved to Edmonton in August 2024, and then that he moved to Abbottsford, British Columbia, at the beginning of October 2024. Mann was never served with a subpoena, but was willing to testify nonetheless.
[9] Counsel for Manpreet Singh was able to serve responding materials, which I accepted on the day the application was argued. The Affiant, Detective Constable Saini, was present and gave evidence in support of the application and was cross-examined on her evidence.
2. Issues
[10] I have been asked to decide two issues:
a. Should I grant leave to the Crown to hear this application despite the late service? and
b. Should I grant leave for Mann to give evidence remotely, by videoconference, in accordance with s. 714.1 of the Criminal Code?
3. Analysis – Leave to Bring Application
[11] Rule 6.05(1) the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), S.I./2012-7 (“CPR”), allows the timelines set forth therein to be abridged. Rule 2.01 gives a judge the authority to dispense with compliance with any rule only where and to the extent it is necessary in the interests of justice to do so. Finally, r. 3.02 permits a judge to make an order extending or abridging any time prescribed by these rules or in an order in accordance with r. 2.01, on such terms as are just.
[12] Pursuant to r. 34.03, if an applicant has failed to comply with the rules governing an application, the application shall not be heard unless the presiding judge grants leave, after taking into account all the circumstances of the case, including but not limited to:
a) the nature of the applicant’s non-compliance with these rules;
b) the apparent merits of the application as reflected in any materials filed and any submissions made in the proceeding;
c) the right of the applicant to raise issues, including issues relating to the admissibility of evidence and to have those issues determined on their merits;
d) the right of other parties to have a reasonable opportunity to respond to any issues raised by an applicant;
e) the need for an expeditious determination of pre-trial applications and the orderly conduct of trial proceedings;
f) the history of the pre-trial applications and the proceedings;
g) any notice given to other parties about the issues raised in the pre-trial applications;
h) any prejudice to any other party in the proceeding;
i) the nature of the issues raised and the extent of their impact on the course of the trial or other proceeding;
j) any explanation advanced for failure to comply with these rules; and
k) any other factors the judge considers relevant to his or her determination.
[13] Having considered these factors, I have determined that leave to argue this application should be granted. In so deciding, I have considered a number of factors.
[14] First, the Crown did not become aware that Mann had left Ontario until approximately 60 days prior to trial. A subpoena was prepared but when the officer in charge spoke to Mann on October 3, 2024, and asked whether he had received the subpoena, she learned for the first time that he had moved to British Columbia. The Crown advised the defence immediately and raised the issue of him testifying remotely.
[15] In these circumstances, although rushed, the Crown brought the application. The defence had full opportunity to respond to the application, cross-examine the Affiant and make submissions. I have accepted their materials. I have also considered that trial was imminent and that the Crown had to make arrangements one way or the other, for this witness to attend.
[16] I have not been made aware of any other delay on the part of the Crown.
[17] In these circumstances, I see no prejudice to the Respondents if this application is permitted to proceed, and thus I abridged the notice period requirement.
4. Analysis – Evidence by Videoconference
[18] Section 714.1 of the Criminal Code states that I may order that a witness give evidence by videoconference if I believe that it would be appropriate having regard to all the circumstances, which include:
a. the location and personal circumstances of the witness;
b. the costs that would be incurred if the witness were to appear in person;
c. the nature of the witness’ anticipated evidence;
d. the suitability of the location from where the witness will give evidence;
e. the accused’s right to a fair and public hearing; and
f. the nature and seriousness of the offence.
[19] Section 714.1 is not to apply only in exceptional circumstances, even if credibility is a central issue or where remote evidence would be that of a complainant. The nature of the evidence is only one of several factors to consider in determining whether I should exercise my discretion and permit evidence to be given from outside of the court: R v. Rutaihwa, 2020 ONCJ 470, [2020] O.J. No. 3840 at para. 15-16; R. v. Mefcalfe, 2018 ONSC 4925, [2018] O.J. No. 4637, at para. 12.
[20] I have considered the various factors set out in s. 714.1.
[21] Clearly, the charges are serious. One victim was seriously injured.
[22] I have also considered the personal circumstances of Mann. At the time of the trial, he resided in British Columbia. He just started a new job and was on probation. Although he did not ask his employer, he was concerned that he would put his new job at risk if he left during his probation period. If he was permitted by his employer to travel to Ontario to testify, he would lose at least 3 days of income, which he cannot afford to lose.
[23] I also note that the Affiant provided an estimate that it would cost approximately $1,800 to transport Mann to Ontario and put him in a hotel in order to testify. This would be a cost to be incurred by the Crown.
[24] Mann gave a statement to the police shortly after the events, early in the morning of April 16, 2022. His statement was recorded both by video and audio. From the transcript of that statement, I am able to anticipate the nature of his evidence. He indicated that the individuals who allegedly committed the assault were in the bowling lane beside him. He also indicated that he exchanged a few words with one of the victims while in line while waiting for a lane. He had met none of them before. He did not identify the accused. He provided the police with his videos and described what he saw. His evidence was anticipated to align with his statement, that he actually saw what is depicted in the videos.
[25] The identity of the two accused was a key issue. Mann has nothing personally to add to that issue. The most relevant part of his evidence would be his videos that would be played to the jury. Those videos were played in court, not through the remote link. Those videos would appear exactly the same whether Mann introduced them personally in court, or whether they were introduced remotely. His physical presence in the courtroom would not impact the quality or integrity of those videos in any way.
[26] As for how he will give his evidence, the officer in charge had already met with the witness by videoconference. In that videoconference, Mann could be clearly seen. Mann had access to a laptop and a phone and had a good internet connection. He had a private space from which he could testify. There would be no one with him that was involved in the case, and thus he could not be influenced in any way.
[27] I do not find that remote testimony by Mann would impact the accused’s right to a fair and public hearing. He has had advance disclosure of Mann’s anticipated evidence and his videos. Mann would be available for cross-examination at trial. Mann’s evidence would be public to anyone who attended. It will be part of the court record. His videos were made exhibits. His personal credibility was not seriously at issue, as he had nothing personally to add to the issue of identity. His videos could be introduced by others who appeared in them and could identify themselves and what they saw.
[28] After considering all these factors, I find that it would be appropriate to allow Mann to testify remotely. The Accused’s ability to make full answer and defence will not be impacted.
B. Analysis – Eyewitness Evidence by Samneet Guraya
[29] Samneet Guraya was anticipated to be a key witness for the Crown. From the statement she provided to the police, it was clear that she had a prior relationship with the men in the video and could identify some or all of the assailants in the videos.
[30] Prior to her starting her evidence, the defence raised the issue that Ms. Guraya should be precluded from giving identification evidence, because the Crown did not bring a “Leaney Application”. The Crown disagreed that this was a situation where a Leaney Application was required.
[31] A Leaney Application is an application brought by the Crown when it attempts to have a witness identify someone they recognize in surveillance video or in a photo. This type of evidence may be admissible if it is determined that the witness had a prior acquaintance with the accused and is in a better position than the trier of fact to determine whether the recorded image is that of the accused: R. v. Leaney, [1989] 2 S.C.R. 393, 50 C.C.C. (3d); R v. Berhe, 2012 ONCA 716, 113 O.R. (3d) 137, at para. 14.
[32] In the circumstances before me, it is clear that Ms. Guraya has a prior acquaintance with the two accused which put her in a better position than the jury to determine if the two accused were it the videos.
[33] Prior to being shown the videos, Ms. Guraya testified that she had been dating Gurjinder Singh, one of the other individuals present that night, for almost 10 months prior to the events of April 15, 2022. She indicated that she had known Gurjinder’s friends for three or four months prior to that night. In this time period, she would see them once to three times per week when they all hung out together. Many of those times were spent in a white car, smoking weed and watching funny videos. She had visited Gurjinder at his basement apartment, where she believed he lived with his friends Gurkirat and Manjot. She knew the third friend, Mani lived with his family.
[34] Ms. Guraya also testified that all four men picked her up on April 15, 2022 in their car, and they all went to the bowling alley. She testified that they had beer and food and bowled during the evening. One of them gave her his bank card to buy some food.
[35] It was only after giving this foundational evidence that Ms. Guraya was shown a number of videos. Most of them were from the surveillance videos provided by the bowling alley and introduced earlier into evidence. After pointing out the two accused, their two friends, and herself in various surveillance videos, she then gave evidence about what happened outside of the bowling alley just before, during and after the assaults occurred. She was able to explain who was outside and what they did. After that evidence was provided, she was then showed the two videos that were introduced by Mann. She identified the two accused and others in those videos.
[36] Clearly, even before shown any video evidence, Ms. Guraya was able to establish a pre-existing relationship of at least three or four months with the two accused and their friends. It was a relationship where she saw them several times a week. She knew their car and where they lived. On this basis, Ms. Guraya was able to identify some of the individuals in the videos, and it was appropriate that she be permitted to give this evidence.
C. Conclusion
[37] For the foregoing reasons:
a. Mann was permitted to give evidence by videoconference; and
b. Ms. Guraya was able to give evidence identifying the two accused in the various videos before the court.
Fowler Byrne J.
DATE: November 5, 2024
COURT FILE NO.: CR-23-371 DATE: 2024 11 05
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R v. Gurkirat Singh and Manpreet Singh
COUNSEL: Seeta Scully, for the Crown Carolyn Gandy, for Gurkirat Singh Sukhwant Baidwan and Eric Tweel, for Manpreet Singh
ENDORSEMENT
Fowler Byrne J.
DATE: November 5, 2024