Criminal law Evidence Methods of proof Identification Procedure Trials Motions Directed verdict.
Motions by the accuseds Dhillon, Jagpal, Pannu and Rai for a directed verdict of acquittal. Dhillon also sought the evidence of a victim identifying Dhillon in a photo line-up ruled inadmissible. The offence involved a vicious attack by a group of young men on another group of unarmed men. One victim first told the officer that he did not know the tall person who attacked him. Several weeks later, the victim told the police that his attacker's name was Dhillon. A day later the victim came to the station for a photo line-up. He selected Dhillon's picture from the line-up. The victim knew Dhillon from school and had seen him two months prior to the attack. The victim knew that Dhillon's picture would likely be in the photo line-up. Jagpal was arrested at his residence because a vehicle found at the scene was registered to someone living at that address. The vehicle was not registered in Jagpal's name. At the residence, someone called Jagpal by his nickname, Lucky. Jagpal then identified himself to police. A man named Lucky had been described as one of the attackers. One victim testified that another East Indian male named Lucky was at the scene and was not the attacker.
HELD: Motions allowed. The accuseds were acquitted. The identity evidence was insufficient. The photo line-up was tainted and it was necessary to exclude the photo line-up evidence to ensure a fair trial. The charges against Dhillon were thus dismissed. There was no evidence linking the name Lucky to Jagpal as being the attacker. Although there was some evidence that a man named Rai and a man named Pannu were involved in the attacks, there was no evidence that the two accuseds were involved in the attacks. There was a break in the essential and fundamental link of these accuseds to the crime scene.
Statutes, Regulations and Rules Cited:
Criminal Code, s. 267(a), s. 267(b), s. 268
Charges: S. 268 Criminal Code of Canada S. 267(a) x 4 Criminal Code of Canada S. 267(b) Criminal Code of Canada
A. Esson, Ms Counsel for the Crown
S. Cowan, Esq. Counsel for Mr. Dhillon
E. Royle, Esq. Counsel for Mr. Jagpal
C. Angelini, Esq. Counsel for Mr. Pannu
S. Proudlove, Esq. Counsel for Mr. Rai
¶ 1 N.M. MOSSIP J. The Crown closed its case against the four accused persons before the court. Immediately thereafter, defence counsel, an behalf of these four accused, moved for a directed verdict of acquittal against each of them. In addition, counsel for Gurpreet Dhillon moved to have the evidence of Prabhjot Randhawa, identifying the photo of Mr. Dhillon in a photo line-up presented by officer Bernard, ruled as inadmissible evidence at this trial.
¶ 2 For the reasons that follow, the evidence of the photo line-up is excluded as admissible evidence at this trial. Further, based on that ruling, the motions for directed verdicts brought on behalf of all of the accused before the court are granted.
¶ 3 In the decision of R. v. Charemski, (1998) 123 C.C.C. (3d) 225 (S.C.C.) at p. 229,  1 S.C.R. 679, Mr. Justice Bastarache for the majority said,
"For there to be 'evidence upon which a reasonable jury properly instructed could return a verdict of guilty' in accordance with the Sheppard test, the Crown must adduce some evidence of culpability for every essential definitional element of the crime for which the Crown has the evidential burden."
¶ 4 Upon a review of the evidence adduced by the Crown at this trial, I find there is no evidence with respect to the identity of those accused being the perpetrators of the crimes set out in the indictment upon which a reasonable jury properly instructed could return a verdict of guilty. Identity of a person as having been the person who committed a crime is without question an essential element of a crime for which the Crown has the evidential burden.
¶ 5 I will deal with each accused separately.
¶ 6 Counsel On behalf of Mr. Dhillon brought an application to exclude the photo evidence wherein Mr. Prabhjot Randhawa picked out the photo of Mr. Dhillon when shown a photo line-up by Officer Bernard, the officer-in-charge.
¶ 7 Crown counsel concedes that the photo line-up evidence is tainted, but she submits that this tainting goes to the weight I should give it at the trial, and not to its initial admissibility.
¶ 8 I disagree. I accept the submissions of Mr. Cowan, counsel for Mr. Dhillon, as set out in his brief. Specifically, I accept that on the evidence, the photo line-up procedure in this case is so flawed in at least two respects that it is no evidence and should be excluded.
¶ 9 I find when the victim, Mr. Randhawa, first gave his statement to Officer Bernard, he told him that he did not know the tall person who attacked him. It is not disputed that Mr. Randhawa then spoke to another witness who provided him with some names. He then said he was attacked by a tall man, named "Lumbo". Eventually, a few weeks later -- about a week and a half later I think it was, July 22nd -- he told Constable Bernard that Lumbo's real name was Gurpreet Dhillon. He gave two different versions as to how he got that name.
¶ 10 The day after Mr. Randhawa gave the real name to Constable Bernard, Mr. Randhawa came to the police station to do a photo line-up. Constable Bernard was not clear on the exact words he used, but he candidly agreed that Mr. Randhawa would know that Mr. Dhillon's picture would likely be in the photo line-up that he was going to be shown; Mr. Randhawa then selected Mr. Dhillon's picture. His evidence at trial was he actually knew Mr. Dhillon from high school and he had seen him two months before the attack.
¶ 11 I do not say that it would always be fatal to a photo line-up to follow the procedure Constable Bernard did. It is obviously, based on the recommendations of the Sophanow Inquiry not ideal, but in other cases it might go to the weight to be given at the trial of evidence otherwise admissible.
¶ 12 Here, however, the court has such grave concerns as to the reliability and trustworthiness of the evidence, given the above tainting and the evidence of Mr. Randhawa at this trial, that I find this is an appropriate case, in the interests of justice, to exclude the photo line-up evidence and to ensure a fair trial.
¶ 13 The Crown Attorney conceded that if the photo line-up evidence is excluded, the evidence at this trial against Mr. Dhillon cannot meet the test in Sheppard.
¶ 14 The evidence discloses that Mr. Jagpal at times apparently goes by the nickname Lucky. I accept the evidence of Constable Bernard that when he went to the address where a white SUV bearing a licence plate number identified at the scene of the attack was registered, which vehicle was not registered in Lakhbir Jagpal's name, the evidence discloses that a woman called up the stairs to a man named Lucky, who came down and identified himself to Constable Bernard as Lakhbir Jagpal, whereupon he was arrested. That evidence, albeit weak and circumstantial, might have been enough to meet the Sheppard test, but that is likely as far as it would have gone in any event.
¶ 15 However, the victim who was injured the greatest at the time of the attacks testified at this trial that there was another East Indian male at the scene who was called "Lucky" and he was a different man than the man who attacked him. All other witnesses at this trial who spoke of named persons described a man named "Lucky" as having been the attacker. No one gave any evidence that linked the name "Lucky" to Lakhbir Jagpal, who is the accused before the court as being at the scene as an attacker. There is no evidence which could meet the Sheppard test with respect to Mr. Jagpal, given that there were two Luckys identified at the scene and no one connects the accused, also known as Lucky, to having committed a crime on July 13th, 2002.
¶ 16 Parmjit Pannu and Gurkirat Rai can be dealt with together as the same evidentiary problem arises with respect to both of them.
¶ 17 There ie some evidence that a "Gary Rai" and a "Pannu" were involved in the attacks on July 13, 2002. Further, there is evidence from the investigating officer that a Gary Rai has a formal name of Gurkirat Rai. But from my reading of the evidence, that is as good as it gets. There is no evidence that the two accused before the court are the Gary Rai or the Pannu who were involved in the attacks. There is a break in the essential and fundamental link of a particular accused to a particular crime scene. I do not say that a name might not in some circumstances be sufficient to meet the test in Sheppard. For example, there was a decision of Mr. Justice Campbell, R. v. Brown,  O.J. No. 2152, dated May 29, 2003, where a name, along with a birthdate and an address was some evidence which a trier of fact could weigh in determining whether the Crown has met the burden of proof in a trial.
¶ 18 In this case, I have virtually no physical description of the Gary Rai or Pannu at the scene of the attack. I do not know their ages or their addresses. There was nothing in the evidence at the trial to link the witnesses' evidence of these named assailants to the accused before the court.
¶ 19 I made it clear at the outset of this trial that it was not "in dock" identification for witnesses to identify persons, in this case, certain of the accused, if they knew them before the attack. For whatever reason, Crown counsel did not choose to have several of the witnesses who knew various of the accused before July 13th 2002, identify those persons at this trial, nor did the Crown ask to re-open her case, in order for that link from direct witnesses' evidence to accused before the court to be made. Although it was not determinative of this application, the investigating officer did not identify the Gurkirat Rai before the court, who was also known as Gary Rai, when he arrested him.
¶ 20 Criminal trials are not determined based on coincidence or likelihood, particularly when it comes to the fundamental question of whether the right accused person is before the court. On the evidence I heard, that link was not made to any degree that could meet the test enunciated in Sheppard and enunciated and repeated so clearly by Madam Justice McLachlin in Charemski -- which I have mentioned above -- at page 24 where she says:
"In my opinion, the test for a directed verdict in Canada remains the traditional one: whether a properly instructed jury acting reasonably could find guilt beyond a reasonable doubt. Where it is necessary to engage in a limited evaluation of inferences in order to answer this question, as in cases based on circumstantial evidence, trial judges may do so; indeed, they cannot do otherwise in order to discharge their obligation of determining whether the Crown has established a case that calls an the accused to answer or risk being convicted.
This conclusion is confirmed by the following considerations: it is the only conclusion that satisfies the logic of the trial process; it is the only conclusion that adequately safeguards the accused's rights; it is the rule that prevails in other common law jurisdictions; and it is the view that best harmonizes with the tests established for proceedings analogous to the motion for a directed verdict, such as preliminary inquiries and appeals on the reasonableness of a conviction." [Pursuant to 686 of the Criminal Code]
¶ 21 Applying that test to the evidence adduced by the Crown at this trial, I am satisfied that the applications for a directed verdict of acquittal made on behalf of each accused must be granted. And I do so endorse the indictment that there will be a directed verdict of acquittal for each accused.
¶ 22 Given the above decision, I do not intend to give any more fulsome reasons on the s. 11(b) application that I gave last week.
¶ 23 I would add this: A cowardly and vicious attack by a group of young men took place on another group of unarmed men. I regret that the victims of that attack suffered as they did and that the justice system, in ensuring that such despicable violence is punished, was not able to bring to justice in these attacks. However, there is a reason for everything in my view, even if at one time that reason is not always clear. The police and the Crown had the evidence and the witnesses they had, and the defence counsel in this case did their jobs fairly, fully and ably. I wish to thank all counsel for their assistance and the courtesy and professionalism they showed to each other and to the court throughout this trial.
QL UPDATE: 20050630