



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dosanjh, 2020 ONCA 571

DATE: 20200910

DOCKET: M51701 (C68127)

Strathy C.J.O. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Raja Dosanjh

Applicant/Appellant

Alan D. Gold, for the applicant/appellant

Deborah Krick, for the respondent

Heard: August 11, 2020 by video conference

[1]

The applicant seeks an order under s. 680(1) of
    the
Criminal Code
, R.S.C. 1985, c. C-46, directing a panel of this
    court to review the decision of Miller J.A. dismissing his application for bail
    pending the determination of his appeal.

A.

Background

[2]

The applicant was convicted of first-degree
    murder on August 1, 2019 after a five-week trial by judge and jury.

[3]

The murder in question occurred on March 1, 2016.The
    victim was shot multiple times at point-blank range as he was exiting his car
    at a Comfort Inn in Guelph, Ontario where he worked. The murder weapon, a
    submachine gun equipped with a silencer and with its serial number defaced, was
    found at the scene. The shooter arrived and departed in an SUV that had been
    rented by the applicant earlier that day.

[4]

The identity of the killer was the only issue at
    trial. The evidence relied upon by the Crown included:

a.

the computer Infotainment system from the
    rented SUV, which enabled the police to trace the movement of the vehicle from
    the rental agency to the family home of the applicants brother-in-law in
    Mississauga, then to the Comfort Inn where the killing occurred, and finally to
    the applicants family home where he was staying;

b.

uncontested evidence that the applicant obtained
    the SUV from a rental agency in Mississauga around 1:15 p.m. on March 1, 2016,
    the shooting occurred at 4:38 p.m. on March 1, 2016, and the applicant returned
    the vehicle to the rental agency at 9:46 p.m. on March 2, 2016;

c.

the discovery of gunshot residue on the
    passenger door of the SUV;

d.

the presence of the applicants DNA on the grip
    of the submachine gun; and

e.

a similarity in the clothing worn by the
    applicant on the day of the murder and that worn by the shooter.

[5]

The defence relied on the evidence of a Crown
    eyewitness who identified the shooter as white. The applicant is of East Indian
    descent and is described as having brown skin.

[6]

The applicant was denied bail pending trial. Hoy
    A.C.J.O. directed a review of that bail decision by a panel of this court. The
    panel dismissed the application on February 27, 2018:
R. v. Dosanjh
,
    2018 ONCA 193.

[7]

On May 13, 2020, the bail judge dismissed the
    applicants request for bail pending appeal of his conviction. He noted that
    there was no real dispute about the first two grounds set out in s. 679(3) of
    the
Criminal Code
. The focus of the parties debate was s. 679(3)(c):
    whether the applicants detention was necessary in the public interest. He
    accepted the Crowns submission that there were serious public safety concerns
    arising out of the aggravated nature of the killing and the evidence at trial about
    the applicants involvement in high-level drug trafficking. On the merits of
    the appeal, he found that the applicants
Charter
ground was not
    strong, and that the other grounds of appeal were weak. The bail judge
    concluded that the enforceability interest significantly outweighed the
    reviewability interest, and that the applicants detention was justified.

B.

Submissions

[8]

Mr. Gold, on behalf of the applicant, submits
    that the bail judge erred in his analysis under s. 679(3)(c) of the
Criminal
    Code
. Mr. Gold contends that the bail judge failed to take a prospective
    approach to the public safety issue. He submits that despite the applicants
    admitted involvement in marijuana trafficking, there was no evidence linking
    him to dangerous weapons. The bail judge did not consider why the applicants
    release proposal, a $1 million bail package and strict house arrest, did not
    address any residual public safety concerns.

[9]

On the issue of public confidence in the
    administration of justice, Mr. Gold identifies several potential grounds of
    appeal, including an allegedly erroneous jury instruction on identification
    evidence, and a
Charter
argument based on police dishonesty in
    obtaining a warrant for the rented SUVs Infotainment system.

[10]

Ms. Krick, on behalf of the Crown, submits that
    the bail judge appropriately determined that there were substantial public
    safety concerns associated with the applicants potential bail. The applicant
    has been convicted of first-degree murder and he had accessed a submachine gun
    with a silencer to carry out a brutal crime in broad daylight in a public
    place. He was a high level drug trafficker in an inherently violent business.
    The public safety concerns, by its very nature, could not be addressed by the
    proposed release plan.

[11]

Ms. Krick also submits that the bail judge did
    not err in assessing the applicants grounds of appeal as weak. The need for
    enforceability in this case is pressing, and public confidence in the
    administration of justice would be undermined if the applicant were to be released.

C.

Analysis

[12]

In
R. v. Oland
, 2017 SCC 17, [2017] 1 S.C.R.
    250, at para. 61, the Supreme Court of Canada set out the principles that
    should guide a panel of an appellate court when reviewing a decision of a
    single judge under s. 680(1):

Ultimately, in my view, a panel reviewing a
    decision of a single judge under s. 680(1) should be guided by the following three
    principles. First, absent palpable and overriding error, the review panel must
    show deference to the judges findings of fact. Second, the review panel may
    intervene and substitute its decision for that of the judge where it is
    satisfied that the judge erred in law or in principle, and the error was
    material to the outcome. Third, in the absence of legal error, the review panel
    may intervene and substitute its decision for that of the judge where it
    concludes that the decision was clearly unwarranted.

[13]

These principles inform the test to be applied
    by a chief justice when considering whether to direct a review by a panel of an
    appellate court. In particular, the chief justice must determine whether it is
    arguable that the bail judge committed material errors of fact or law in
    arriving at the decision, or that the decision was clearly unwarranted in the
    circumstances:
Oland
, at para. 64.

(1)

The public interest criterion of s. 679(3)(c) in
    the
Criminal Code

[14]

The framework for analysis of the public
    interest criterion was set out by this court in
R. v. Farinacci
(1993), 109 D.L.R. (4th) 97 (Ont. C.A.) and confirmed by the Supreme Court of
    Canada in
Oland
. Arbour J.A. identified two components of the public
    interest criterion: public safety and public confidence in the administration
    of justice. The analysis of the bail judge focused on these components and so
    will my reasons.

(2)

Public safety

[15]

I am not satisfied that it is arguable that the
    bail judge made material errors of fact or law with respect to his conclusions
    on the public safety component.

[16]

The public safety component is concerned with
    the protection and safety of the public should an applicant be released pending
    appeal:
R. v. Ruthowsky
, 2018 ONCA 552, at para. 8. The issue is
    whether the applicant is likely to commit an offense while on bail pending
    appeal:
R. v. Badgerow
, 2017 ONCA 670, 42 C.R. (7th) 411, at para. 28.
    The proposed plan of release is therefore a relevant consideration:
R. v.
    Iraheta
, 2018 ONCA 229, at para. 12.

[17]

In this case, the fact that the applicant may
    meet the test in s. 679(3)(b) and surrender into custody is not enough to allay
    lingering public safety concerns:
Oland
, at para. 50. The applicants
    DNA on the grip of the submachine gun was compelling evidence that he was either
    the shooter or a participant in the shooting. The jury heard and rejected the
    possibility that the applicants DNA may have been innocently transferred from
    the handle of a duffle bag used to transport marijuana. It is a reasonable
    conclusion that the applicant used or had access to the very dangerous
    prohibited weapon used in the killing.

[18]

I also do not accept the submission that the
    applicants admitted involvement in high-level marijuana trafficking was
    irrelevant to the public safety analysis. There was evidence that he was moving
    duffle bag quantities of marijuana. The bail judge reasonably concluded that individuals
    who are involved in the drug trade at this level pose a danger to public
    safety.

[19]

These considerations  the appellants apparent
    access to a very dangerous weapon and his involvement in high level drug
    trafficking  raise public safety concerns that may not be fully mitigated by a
    release plan.

(3)

Public confidence in the administration of
    justice  the reviewability interest

[20]

I turn to the issue of public confidence in the
    administration of justice. The public confidence component of the public
    interest criterion balances two competing interests: reviewability and
    enforceability. Achieving this balance mandates a judicial assessment of, on
    one hand, the need to review convictions and, on the other, the need to respect
    the general rule regarding the immediate enforceability of judgments:
Oland
,
    at paras. 24-25.

[21]

The statutory criteria in s. 515(10)(c)  used
    to assess whether pre-trial detention is in the public interest  inform the
    reviewability and the enforceability interests on an application for bail
    pending appeal:
Oland
, at paras. 31-32. In particular, the
    reviewability interest hinges on the strength of the appeal while the
    enforceability interest turns on the seriousness of the offense:
Oland
,
    at paras. 37, 40.

[22]

The applicant raised a number of grounds of
    appeal. The bail judge determined that most of the grounds were weak and
    focused his analysis on the
Charter
ground. I agree with the bail
    judge that most of the grounds put forward by the applicant are weak. I will
    address the instruction on eyewitness evidence ground and the
Charter
ground, which in my view are the strongest.

(a)

The instruction on eyewitness evidence

[23]

The applicant submits that the trial judge erred
    by giving the jury a caution about accepting the identification evidence of a
    Crown witness named Mr. Thakar. Mr. Thakar was one of three people at the
    Comfort Inn who witnessed the shooting. The defence at trial described Mr.
    Thakars evidence as one of the pillars of its case.

[24]

Mr. Thakar did not identify the applicant as the
    shooter. He gave a description of the person who he said he saw for a few
    seconds. This person was of fair white complexion with less hair on his
    head. He could not remember whether he saw the front or side of the persons
    face, but he saw the top of his head, which appeared to be balding.
    Immediately after the shooting, Mr. Thakar called 911 and identified the
    shooter as white. The 911 tape was played for the jury.

[25]

A second witness said that the shooter was
    wearing a light grey fitted sweater and sweat pants and described the shooter
    as thin and very tall. A third witness said that the hood of the shooters
    sweat suit was up and that he was tall and skinny.

[26]

The applicant was acknowledged to be very tall
    and thin. He was described by an employee at the rental car agency as having
    fair skin.

[27]

The trial judge instructed the jury to be very
    cautious about relying on eyewitness testimony in your determinations. He then
    explained the dangers associated with eyewitness testimony and encouraged the
    jury to consider all the evidence in reaching their verdict.

[28]

The trial judge also gave the jury a specific
W.(D.)
instruction before his review of Mr. Thakars evidence. He told them that if
    they accepted Mr. Thakars evidence that the shooters scalp was white, the applicant
    could not have been the shooter and they were required to acquit him. They were
    also required to acquit him if they were left in reasonable doubt by Mr.
    Thakars evidence.

[29]

The applicant submits that the trial judge erred
    in cautioning the jury with respect to the evidence of Mr. Thakar, whose
    description of the shooter was a crucial piece of evidence favouring the
    defence. I would not accept this submission.

[30]

Mr. Thakar was called by the Crown and some of
    his evidence assisted the Crown while some assisted the defence. He is properly
    regarded as a mixed witness. Regardless of whether his testimony at trial
    could be characterized as description evidence or identification evidence,
    the trial judges instructions on Mr. Thakars testimony are in line with the
    authorities of this court:
R. v. Vassel
, 2018 ONCA 721, 365 C.C.C.
    (3d) 45;
R. v. Sheriffe
, 2015 ONCA 880, 333 C.C.C. (3d) 330, leave to
    appeal refused, 2016 CanLII 82916. These authorities confirm that it is not an
    error for a trial judge to caution the jury concerning the inherent frailties
    of eyewitness evidence and the reasons for the caution, provided that the
    instructions do not amount to the equivalent of a
Vetrovec
caution,
    expressly or implicitly undermine the defences position, or shift the onus of
    proof onto the defense. In my view, the impugned instruction did none of these
    things. On the contrary, the
W.(D.)
instruction with respect to Mr. Thakars
    evidence made the significance of his evidence very clear.

(b)

The
Charter
issue  failure to quash
    search warrant

[31]

This ground of appeal relates to the police
    search and seizure of the computer Infotainment system from the SUV rented by
    the applicant and used to transport the shooter to the scene of the killing. The
    Infotainment system led to the recovery of the vehicles GPS tracking log. The
    log showed that the vehicle travelled from the rental agency parking lot to the
    family home of the applicants brother-in-law in Mississauga. The vehicle
    remained in the driveway for a number of minutes, with its motor running, and
    then drove to the north part of Guelph, stopping on two occasions. It subsequently
    drove to the Comfort Inn parking lot near where the victim was shot. After the
    shooting, it moved out of Guelph and ultimately back to Mississauga, making
    stops at a mosque, a strip mall, and the residence of the applicants
    brother-in-law. The vehicle ended up at the applicants family home. The following
    day, it was returned to the rental agency.

[32]

The search also recovered the contact list from
    the cell phone of the applicants brother-in-law, which was uploaded to the
    Infotainment system when he paired his phone in order to listen to music. The
    list included contact information for the applicant.

[33]

The applicant sought at trial to exclude this
    evidence pursuant to s. 24(2) of the
Charter
, based on breaches of ss.
    7 and 8. The trial judge heard the application over four days and gave thorough
    reasons for dismissing it:
R. v. Dosanjh
, 2019 ONSC 4551.

[34]

The Crown had conceded that there was a search
    of the Infotainment system prior to the warrant being obtained. That
    warrantless search was made known to the issuing justice but was described in
    the ITO as having been due to an error. The officer-in-charge (OIC) of the
    investigation (who was not the affiant of the ITO) testified that he had told
    the officers who conducted the warrantless search that they were not to access
    the Infotainment system but were simply supposed to determine whether they
could
access the system. The trial judge rejected this
    evidence and found that the OIC had told those conducting the search that no
    warrant was required. He also found that the OIC did not provide accurate
    information to the affiant of the ITO.

[35]

The trial judge, however, did not determine that
    the actions of the OIC invalidated the warrant. The trial judge accepted the
    evidence of the affiant that she did not know about the misleading information.
    The trial judge also found that the affiant had no reason to believe that
    anything was amiss or that she had to make further inquiries.

[36]

In his balancing under s. 24(2) of the
Charter
,
    the trial judge found that while the OICs false testimony was the most serious
    instance of police misconduct in the case, the
Charter
breach fell in
    the modestly serious range. This is because the evidence put before the
    issuing justice was correct as far as the affiant knew. The OICs false
    testimony did not have an effect on the applicant and did not amount to a
    subversion of the legal process. None of the evidence from the Infotainment
    system was acted upon in any significant way before the warrant was obtained. In
    addition, the OIC was dealing with the new and evolving area of police search
    and seizure both technologically and legally.

[37]

The trial judge then proceeded to consider the
    impact of the breach on the
Charter
-protected rights of the applicant
    and societys interest in the adjudication of the case on its merits. The trial
    judge held that the applicants expectation of privacy was reduced because the
    information was taken from someone elses car, which the Crown argued he had no
    right to be driving since he had lied about his identity when he rented it. As
    for the evidence obtained from the search, the trial judge determined that it
    was reliable and important to the Crowns prosecution of the case. The trial
    judge concluded that the admission of the Infotainment evidence would not bring
    the administration of justice into disrepute.

[38]

In assessing the validity of the warrant, the
    impact of the warrantless search, and the misconduct of the OIC, the trial
    judge referred to well-established principles articulated by this court in
R.
    v. Nguyen
, 2011 ONCA 465, 273 C.C.C. (3d) 37, and
R. v. Paryniuk
,
    2017 ONCA 87, 134 O.R. (3d) 321, leave to appeal refused, 2017 CanLII 36654. In
    assessing the seriousness of the police misconduct under s. 24(2) of the
Charter
,
    he referred to
R. v. Pino
, 2016 ONCA 389, 130 O.R. (3d) 561,
R. v.
    Lai
, 2019 ONCA 420, 438 C.R.R. (2d) 1, and
R. v. Harrison
, 2009
    SCC 34, [2009] 2 S.C.R. 494, at para. 26.

[39]

Considering the trial judges extensive reasons
    on the admissibility of the Infotainment evidence, the applicant fairly
    characterizes this ground of appeal as being one of first impression. The
    bail judge evaluated the applicants submissions and noted that it would be a
    difficult appeal, necessitating not only a favourable development in a
    contested area of s. 8 and s. 24(2) doctrine, but a finding of palpable and
    overriding error in the trial judges findings of fact and credibility
    assessments. The bail judge could not conclude that the
Charter
ground of appeal was strong.

[40]

The trial judges decision to admit the
    Infotainment evidence under s. 24(2) will be entitled to considerable deference
    on appeal:
R. v. Côté
, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 44.
    The applicant has identified no palpable and overriding error in the trial
    judges assessment of the evidence, no unreasonable finding, and no error of
    law that would justify interfering with his decision: see
R. v. Law
,
    2002 SCC 10, [2002] 1 S.C.R. 227, at para. 32.

[41]

The applicant has not persuaded me that it is
    arguable that the bail judge committed material errors of fact or law, or that his
    decision was clearly unwarranted.

D.

Conclusion and Disposition

[42]

In my view, this is the type of very serious offence
    described in
Oland
, at para. 50, where lingering public safety
    concerns and relatively weak grounds of appeal result in the enforceability
    interest outweighing the reviewability interest.

[43]

For these reasons, the application for a review
    of the decision of the bail judge is dismissed.

G.R.
    Strathy C.J.O.


