



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dhaliwal, 2016 ONCA 652

DATE: 20160831

DOCKET: C53286

Strathy C.J.O., Pepall and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bickramjit Dhaliwal

Appellant

James Lockyer, for the appellant

Lisa Joyal, for the respondent

Heard: May 31, 2016

On appeal from the conviction entered on September 22,
    2010 by Justice David G. Price of the Superior Court of Justice, sitting with a
    jury.

Strathy C.J.O.:

[1]

Bickramjit Dhaliwal appeals his conviction for possession of guns and
    drugs and for public mischief. For the reasons that follow, it is my opinion
    that the conduct of the Crown (who was not counsel on the appeal) deprived the
    appellant of a fair trial. I would therefore allow the appeal and direct a new
    trial.

[2]

The relevant facts can be briefly stated. They take place in the context
    of a family feud over allegations of infidelity and dishonour. The key actors
    are the appellant Bickramjit Dhaliwal, his nephew Raju, his sister Bakshish and
    his nieces husband Parminder. The family was divided into hostile camps as a
    result of allegations of an affair between Parminder and Bakshish.

[3]

The Crowns theory was that the appellant had either planted or arranged
    to plant a gun and cocaine in Rajus car and another gun and cocaine in Rajus
    house. He then made an anonymous telephone call to police to get Raju and Parminder
    charged with possession of the guns and drugs. The plan was foiled, however, by
    Rajus wife, who discovered the gun and drugs in the car and informed her
    husband, who then called police. When police played a recording of the anonymous
    telephone call, Raju identified his uncle Bickramjits voice and the appellant
    was charged.

[4]

The appellant denied having planted the guns and drugs. He testified
    that Bakshish had warned him that Raju had a gun and was coming after both of
    them. He called police because he was concerned for his own safety. He made the
    call anonymously from a pay phone because he did not want the family involved.

[5]

Bakshish also testified at trial. She claimed Parminder had warned her that
    Raju had a gun and was coming after her and the appellant.

[6]

The appellant raises several grounds of appeal and brings an application
    to admit fresh evidence concerning the conduct of the trial Crown. As I would
    allow the appeal based on the Crowns improper cross-examination of the
    appellant and its conduct in the course of the cross-examination of another
    defence witness, I consider only those grounds.

The appellants cross-examination

[7]

During the Crowns cross-examination of the appellant and over a defence
    objection, the trial judge permitted the Crown to cross-examine the appellant
    on his theory of the case.

[8]

The Crown had asked the appellant about discussions with Bakshish
    concerning Parminders warning and the appellants decision to call police. The
    questioning continued:

Q. Whats your theory now? That [Bakshish] had this stuff
    planted and got you to

[9]

Defence counsel objected that the question was improper, because it called
    on the appellant to come up with a theory to defend himself and to identify the
    guilty party.

[10]

The trial judge ruled that the question was proper. The Crowns
    questioning continued:

Q. So, sir, what do you think? Is it, did somebody else frame
    Raju and, and youre just, youve been sort of caught up into it, unknowingly,
    or unwittingly, is that your evidence?

A. That, thats quite possible. See I dont know. I am not
    saying Raju did it, or who did it, I, I have no answers for that. If I did I
    would tell you that.

Q. Right. You must have been pretty suspicious about [Bakshish]
    after you found out that really this had all been planted there, right?

A. I [had] been at the, at the temple when she told me. I
    didnt know of any, any of this information.

Q. Let me begin with this. You agree with me now having seen
    everything that this was all clearly planted on Raju, right?

A. I, this is what I heard that, that they had recovered some
    sort of guns prior to my knowledge.

Q. Right, so this information about him having guns and drugs
    and being able to kill you was obviously, obviously a lie.

A. I, when I learned that was my concern, when I learned that,
    you know, Parminder had called her and let her know that.

Q. You now believe that this was a lie, right?

A. Im sorry?

Q. You now believe that this was a lie?

A. Which was a lie?

Q. That there is actually guns and Raju actually is armed and dangerous
    and also is carrying drugs as well?

A. I dont know whether thats, Ive never said thats a lie. I
    dont know if that, I dont know, in this case whether it is a lie or not
    because the police never told me that.

Q. Well, sir, you appreciate that the guns and drugs were found
    before you made the call, right?

A. Now I know.

Q. You know that?

A. I, I learned afterwards, but at that time were talking
    about on January 2nd, or January 1st, at that time I had no knowledge of
    anything.

Q. So after you got out of jail, once you had had a chance to
    realize what was actually going on here and all the evidence about how the guns
    actually came to be found, you must have said to [Bakshish], Now what is the
    story here, why did you tell me Raju had, had guns and was out to get me when
    in fact this is whats going on? Do you remember that heart to heart with
    [Bakshish]?

A. I, I talked with her and she, again she said that, thats
    what, she received a call and that is what she told me and Im still baffled
    like what, what occurred, and Raju were with him or at his house. Im still
    puzzled by it.

Q. So you still dont think, so even on your evidence you do
    not think [Bakshish] was, was using you to try and get Raju?

A. You know what, anything is possible, this day. Im telling
    you I dont, I dont know exactly what happened, who did what, but this is how
    I got it, just by making a call, just informing the police of information that
    I received and look where I am today.

[11]

This line of questioning was improper. It put an onus on the appellant
    to explain the allegations against him:
R. v. S.(W.)
(1994), 18 O.R.
    (3d) 509, 90 C.C.C. (3d) 242 (C.A.) at 252;
R. v. Vandenberghe
(1995),
    96 C.C.C. (3d) 371 (C.A.) at 373.

[12]

The point was made by the Alberta Court of Appeal in
R. v. Kusk
,
    1999 ABCA 49, 132 C.C.C. (3d) 559, at p. 564:

This mischievous cross-examination wrongly suggests that the
    witness is advocating a certain view, indeed advocating corollaries of that
    view. See
R. v. Baldwin
, [1925] All E.R. Rep. 402, 18 Cr. App. R. 175
    (Eng. C.A.), 178-79 (C.C.A.). That runs together the three roles of witness,
    accused, and defence counsel. When the accused testifies, he is a witness, not
    an advocate. The accused may try to cooperate in answering the forbidden
    question, or he may vaguely feel that something is wrong with it, but not one
    lawyer in 10,000, let alone a lay person, could say on the spot what that wrong
    thing was:
R. v. Baldwin
. Here the accused vaguely saw the point, and
    his answer (quoted above) stumbled toward what the Court of Criminal Appeal
    said in 1925. Yet counsel and the trial judge missed the valid point which he
    was groping to express, albeit incompletely. And the jury may have felt, as the
    Court of Criminal Appeal points out, that inability to answer substantively
    indicated concealment.

[13]

Asking the appellant, in front of the jury to provide his theory of
    the case or to explain the evidence against him undermined the presumption of
    innocence. Permitting the Crown to ask the question, and requiring the appellant
    to answer it, could only have led the jury to believe that he had some
    obligation to provide a theory. The line of questioning should not have been
    permitted.

Bakshishs
    cross-examination

[14]

Bakshish was called as the final defence witness. She testified that Parminder
    telephoned her at home on New Years Day, 2008. He told her that Raju had guns
    in his house and car and was coming after her and the appellant. Parminder
    urged her to tell her brother, Bickramjit, so that he could save himself.

[15]

Bakshish said she then telephoned the appellant at his home. He said he
    was on his way to their temple and asked her to meet him there. At the temple,
    she told him about Parminders telephone call and his warning.

[16]

Bakshishs cross-examination was substantially completed when court
    adjourned for the day. Crown counsel indicated that he expected to complete his
    cross-examination in a few minutes the following morning.

[17]

The next morning, during a lengthy recess before the cross-examination
    resumed, and without notice to defence counsel, Crown counsel asked the
    Registrar whether he could use the courtroom phone to make a long-distance
    call. With the Registrars permission he called Parminder, who was in India.
    The call was made in the courtroom, on the court phone, using the speaker. Crown
    counsel spoke in a loud voice, as though he wanted everyone in the courtroom to
    hear the conversation. Both sides of the conversation were, in fact, clearly
    audible to everyone present. The appellant was in the courtroom, as were his
    counsel, Raju (who had testified earlier) and his wife, and other observers. Bakshish,
    who was still under cross-examination, was not in the courtroom.

[18]

The Crown asked Parminder whether he had telephoned Bakshish on January
    1, 2008, to warn her that Raju had guns and drugs in his car and his home, and
    that Raju was coming after her and the appellant. Parminder said that he had
not
made such a call. The Crown also asked Parminder
    whether he had kept in touch with Bakshish prior to the alleged call, and he
    replied that he had not. The call also touched on other matters that were at
    issue in the trial.

[19]

When court resumed after the call, Crown counsel continued his
    cross-examination of Bakshish. His questions focussed on matters that had been
    discussed in the telephone call with Parminder. She accepted some but not all
    of the propositions put to her by Crown counsel.

[20]

The Crown then asked the following questions and Bakshish gave the
    following answers:

Q. Okay, fair enough. Now I take it it has gone back to you by
    now that I have spoken to Parminder, are you aware of that fact?

A. When?

Q. Today. Did no one tell you I was speaking to Parminder
    today?

A. No.

Q. I made no secret of it. You are not aware of that?

A. No.

Q. Okay. Im going to suggest to you that you have not spoken
    to Parminder once since he recorded you from his office at the Mount Sinai
    Medical Centre [in 2004], do you agree with that or not?

A. No, it's not true.

Q. All right, and this is the end, maam.

A. But, but he had said to me, don't tell, dont take my name,
    and if, if you tell I am going to refuse. He doesn't want the family to find
    out.

[21]

In my view, the Crowns telephone call to Parminder, in the courtroom
    with spectators present, was improper. So was the manner in which the Crown
    used the information obtained on the phone call.

[22]

The Crown admitted on cross-examination on the fresh evidence
    application that he had no intention of calling Parminder as a witness. If he wanted
    to obtain information from Parminder to assist his cross-examination of
    Bakshish, he should have made the call outside the courtroom and made proper
    disclosure to defence counsel. His evidence that he made the call in court for
    purposes of disclosure and transparency is unconvincing when he did not even
    inform defence counsel in advance that he would be making the call.

[23]

The reasonable inference is that he made the call, in public, in the
    courtroom, on a speaker phone, in a loud voice, so that word of Parminders denials
    would get back to the witness, Bakshish, through one of the spectators. This is
    a clear inference from the Crowns question to Bakshish, Did no one tell you I
    was speaking to Parminder today  I made no secret of it.

[24]

The Crown admitted on cross-examination that the possibility of the
    conversation getting back to Bakshish may have been in his mind when he made
    the call in the courtroom. His questions to the witness on cross-examination
    lead to the strong inference that it was his intention.

[25]

I conclude the telephone call to Parminder was a deliberate ploy to
    influence the evidence of Bakshish, an important defence witness who was in the
    middle of cross-examination, through communications that were not part of the
    court record. It was entirely improper.

[26]

It was also improper because it introduced hearsay evidence on a central
    issue, through the mouth of Crown counsel. The Crown acknowledged on
    cross-examination that the jury would have understood from his questioning that
    he had spoken to Parminder.

[27]

In effect, the Crowns questions stated to the witness, and to the jury:

I spoke to Parminder today and he told me that he had not
    called to warn you about Raju having a gun and coming to get you and Bickramjit.

[28]

This not only introduced hearsay to the jury, possibly serving to
    undermine Bakshishs testimony, it put the Crowns own credibility at issue.

[29]

It is impossible to say what the effect of this conduct was on the
    jurys assessment of Bakshishs credibility. What can be said is that it fell
    short of the standard expected of the Crown.

[30]

In
R. v. Logiacco
(1984), 11 C.C.C. (3d) 374 (C.A.), Cory J.A.
    said the following about the role of Crown counsel at pp. 378-79:

It has been said before but perhaps it should be repeated that
    the role of the Crown attorney in the administration of justice is of critical
    importance to the courts and to the community. The Crown prosecutor must
    proceed courageously in the face of threats and attempts at intimidation. He
    must see that all matters deserving of prosecution are brought to trial and
    prosecuted with diligence and dispatch. He must be industrious to ensure that
    all the arduous preparation has been completed before the matter is brought
    before the court. He must be of absolute integrity, above all suspicion of
    unfair compromise or favouritism. The Crown prosecutor must be a symbol of
    fairness, prompt to make all reasonable disclosures and yet scrupulous in
    attention to the welfare and safety of witnesses. Much is expected of the Crown
    prosecutor by the courts. The community looks upon the Crown prosecutor as a
    symbol of authority and as a spokesman for the community in criminal matters.

[31]

It may well be that through inexperience or overzealousness or both the
    Crown momentarily lost sight of his obligations, in the words of Cory J. in
Logiancco
at p. 379.

[32]

In my view, however, there was a reasonable possibility that the jurys
    decision to convict the appellant was influenced by the cross-examination of
    Backshish and the introduction of hearsay through the mouth of the Crown.
    Examined in the context of the whole trial, and taken together with the
    improper cross-examination of the appellant, the Crowns conduct was
    sufficiently prejudicial that it deprived the appellant of a fair trial.

[33]

For these reasons, I would admit the fresh evidence, allow the appeal
    and direct a new trial.

G.R. Strathy C.J.O.

I agree S.E. Pepall
    J.A.

I agree C.W. Hourigan
    J.A.

Released: GRS August 31, 2016


