R. v. Dhaliwal

2017 BCSC 2215 R. v. Dhaliwal IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Dhaliwal, 2017 BCSC 2215 Date: 20171204 Docket: X080237 Registry: New Westminster Regina v. Sukhdeep Singh Dhaliwal, Chaten Singh Dhindsa, Gurpreet Singh Dhudwal, Davjit Singh Randhawa, Karnjit Singh Randhawa and Ravinder Singh Samra Before: The Honourable Madam Justice Ross Ruling on Severance Application by the Accused, Gurpreet Singh Dhudwal Counsel for the Crown: K.S. Pechet Counsel for the Accused, Gurpreet Singh Dhudwal: V. Williams Place and Date of Trial/Hearing: New Westminster, B.C. November 23, 2017 Place and Date of Judgment: New Westminster, B.C. December 4, 2017 Introduction [1] The accused Gurpreet Dhudwal brought an application pursuant to s. 591(3)(b) of the Criminal Code, R.S.C. 1985, c. C-46 and ss. 10(b) and 24(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, for an order that he be severed from the remaining accused and granted his own trial. On November 23, 2017, I dismissed the application with reasons to follow. These are the reasons. [2] Mr. Dhudwal was charged with assault causing bodily harm in concert with co-accused Sukhdeep Dhaliwal, Chaten Dhindsa, Davjit Randhawa, Karnjit Randhawa and Ravinder Samra. The charge arises from an incident that occurred on December 6, 2015. The Crown alleges that the complainant Dharminder Brar was lured to a location in Surrey by Chaten Dhindsa. He was then set upon by the accused, beaten with fists and weapons resulting in injury to his face, neck, shoulders and back. [3] Mr. Dhaliwal entered a guilty plea and has been sentenced. The trial for the remaining accused is set for 15 days with a jury to commence March 5, 2018 with jury selection on February 27, 2018. That date was set by Associate Chief Justice Cullen on July 20, 2017. The date was set to accommodate the calendars of the greatest number of defence counsel while remaining within the R. v. Jordan, 2016 SCC 27, deadline of mid-June 2018. Mr. Dhudwal's counsel was not available for the March date that was set, although she was available for other dates within the Jordan timeframe, both before and after the March date. [4] Mr. Dhaliwal submits that he is in this situation because of Crown delay and that he is entitled to severance from the co-accused due to the fact that scheduling the trial on a date when his counsel was not available breaches his rights to counsel and to counsel of choice and impairs his right to a fair trial. Chronology [5] Mr. Dhudwal was arrested on December 6, 2015, the date of the incident. He was granted judicial interim release on December 11, 2015. Disclosure was provided in three tranches. The second and most significant production occurred on June 7, 2016. The final disclosure was provided on August 24, 2016. [6] Rusty Antonuk was the Crown with conduct of the matter during this period. Mr. Antonuk deposed that he appeared in court on February 17, 2016 on this matter. It was adjourned to April 1, 2016 for the accused to make their selection and fix dates. He deposed that in the period between April 2016 and September 15, 2016 there were roughly ten appearances, which resulted in adjournments owing to further requests for disclosure, applications by counsel to change the bail status of a given accused or periodic absences of properly instructed defence counsel. [7] The matter was arraigned on September 15, 2016, at which time some of the co-accused elected to have a preliminary hearing. The matter was adjourned to arrange dates. On October 4, 2016, the dates for the preliminary hearing were confirmed in court. The dates scheduled were October 11 to 13, 2017. The judicial case manager had offered dates in June but the Crown and two of the defence counsel were not available. All defence counsel were available for dates offered in August but the Crown was not available. [8] Counsel for Mr. Dhudwal states that Mr. Antonuk was not available from October 4, 2016 to October 9, 2017 and that this whole period should be considered Crown delay in setting this matter down. However, it appears that the availability of Crown counsel in fact only resulted in approximately two months' delay; the period from August 21, 2017 to October 9, 2017. As noted, the accused collectively were not prepared to make elections and set dates until September 2016. The first available dates for a preliminary hearing were in June but not all of the defence counsel were available. [9] On May 9, 2017, a direct indictment was preferred. The Crown states that it became clear that with a preliminary hearing date of October 2017, setting a trial date before the Jordan limits would not be possible. Accordingly, the direct indictment was preferred in order to complete the trial within those limits. [10] There were a number of appearances in the period between May 11, 2017 and July 20, 2017. The Crown was pressing to set dates. Initially, defence counsel were not prepared to fix dates in the absence of a synopsis, trial plan and witness lists from the Crown. In addition, Mr. Dhindsa had not retained counsel and requested additional time to do so. On some occasions, progress was impeded by the absence of properly instructed counsel. The calendars of defence counsel were not compatible. [11] On June 29, 2017, Mr. Justice Bernard provisionally fixed dates for trial commencing April 9, 2018. He put the matter over for a week for the dates to be confirmed. On July 6, 2017, the dates were not confirmed because some of the counsel were not present. [12] As noted, the March trial date was set on July 20, 2017 by Associate Chief Justice Cullen. The March date was selected because it was available for a greater number of the defence counsel. Ms. Williams, Mr. Dhudwal's counsel was not available for the March dates. [13] Mr. Dhudwal deposed in an affidavit sworn November 4, 2017: 8. I am advised by my lawyer and verily believe to be true that she is not available for my trial dates due to other matters. I am advised and verily believe to be true that she advised the court of her unavailability when the dates were set. 9. I am advised by my counsel and verily believe to be true that both she and the court had earlier dates available, but those dates were not unavailable for some of my co-accuseds' lawyers. I was also available for trial earlier than March of 2018. 10. My counsel has tried to find me alternate counsel to be my lawyer, but we have not been able to locate anyone of sufficient competency or skill or that I can afford. My lawyer contacted Jeremy Fung, Scott Wright, Isaac Ferbey, and Bill Jessop. None of those lawyers are able to take my case on either due to scheduling issues or conflicts on the file. 11. I am employed on a full time basis. I am advised and verily believe to be true that I will not qualify for legal aid funding. 12. I have already paid my counsel, as we had preliminary hearing date set and we were prepared to go to court then. 13. If my trial goes ahead in March, I will not be able to have my counsel of choice and may end up being self represented. The prospect of this causes me great anxiety and stress as I know the Crown is asking for significant jail time should I be convicted. I have no real experience with the criminal justice system and would find representing myself to be a really bad idea. [14] Counsel submits that Mr. Dhudwal has been diligent in attempting to move the matter forward. He is not the author of any of the delay. Ms. Williams had availability to earlier and other dates within the Jordan limits. Today the application will unfairly deny Mr. Dhudwal the opportunity to be represented by counsel of choice and may deprive him of a fair trial in the event that he is unrepresented at trial. Severance [15] Section 591(3)(b) of the Criminal Code provides: 591 (3) The court may, where it is satisfied that the interests of justice so require, order (b) where there is more than one accused or defendant, that one or more of them be tried separately on one or more of the counts. [16] For severance to be granted, a trial court must be satisfied in the exercise of its discretion that the interests of justice require severance. The interests of justice include the interests of all participants in the criminal justice system, including those of the accused, the co-accused, and the community as represented by the prosecution. [17] The interests of justice "encompass the accused's right to be tried on the evidence admissible against him, as well as society's interest in seeing that justice is done in a reasonably efficient and cost-effective manner": R. v. Last, 2009 SCC 45 at para. 16; and R. v. August, [1996] B.C.J. No. 836 (S.C.) at para. 21. [18] The onus is on the accused seeking a separate trial to show, on a balance of probabilities, that the interests of justice require severance: Last at para. 24 and August at para. 32. [19] Last is the most recent Supreme Court of Canada decision which dealt with severance. In Last, the issue before the Court related to the severance of counts. Writing for the Court, Deschamps J. outlined a non-exhaustive list of factors to be considered during a severance application. Many of the factors also apply in the context of severance of accused. At para. 18, Deschamps J. states: [18] The factors identified by the courts are not exhaustive. They simply help capture how the interests of justice may be served in a particular case, avoiding an injustice. Factors courts rightly use include: the general prejudice to the accused; the legal and factual nexus between the counts; the complexity of the evidence; whether the accused intends to testify on one count but not another; the possibility of inconsistent verdicts; the desire to avoid a multiplicity of proceedings; the use of similar fact evidence at trial; the length of the trial having regard to the evidence to be called; the potential prejudice to the accused with respect to the right to be tried within a reasonable time; and the existence of antagonistic defences as between co‑accused persons: R. v. E. (L.) (1994), 94 C.C.C. (3d) 228 (Ont. C.A.), at p. 238; R. v. Cross (1996), 112 C.C.C. (3d) 410 (Que. C.A.), at p. 419; R. v. Cuthbert (1996), 106 C.C.C. (3d) 28 (B.C.C.A.), at para. 9, aff'd [1997] 1 S.C.R. 8 (sub nom. R. v. C. (D.A.)). [20] There is a strong presumption in favour of joint trials where the accused are alleged to have engaged in a joint criminal enterprise. For those persons who are alleged to have conspired to or have committed a crime in concert, separate trials are the exception and not the norm, see R. v. Crawford, [1995] 1 S.C.R. 858 at para. 30; and R. v. Chow, 2005 SCC 24 at para. 47. [21] In Crawford at para. 30, the Supreme Court of Canada held there are " strong policy reasons for accused persons charged with offences arising out of the same event or series of events to be tried jointly". Those policy reasons include: a) Joint trials are more likely to uncover the truth. b) Joint trials avoid inconsistent verdicts. c) Joint trials are more efficient. d) Joint trials are less disruptive for witnesses. See Crawford; and R. v. Suzack (2000), 141 C.C.C. (3d) 449 (Ont. C.A.). [22] Severance has been addressed in the context of delay post-Jordan in a number of cases. In R. v. Vassell, 2016 SCC 26, Moldaver J., for the Court, noted at para. 6 that: In many cases, delay caused by proceeding against multiple co-accused must be accepted as a fact of life and must be considered in deciding what constitutes a reasonable time for trial. [23] He noted further, however, that the Crown must be vigilant in such cases to fulfill its obligation to bring all of the accused to trial within a reasonable time. The Crown cannot close its eyes to what he described at para. 7 as: the circumstances of an accused who has done everything possible to move the matter along, only to be held hostage by his or her co-accused and the inability of the system to provide earlier dates. [24] While severance must be considered in such a circumstance, it is also clear that the important policy rationales for maintaining joint trials remain a relevant consideration, see R. v. Ny, 2016 ONSC 8031 at para. 45. Our Court of Appeal stated in R. v. Singh, 2016 BCCA 427 at para. 81 that "[s]everance is not a panacea when delay issues arise in a multi-party indictment." [25] In considering severance of co-accused in order to mitigate delay, it is important to bear in mind the potential implications to the judicial system and the potential to create even more delay. In Ny, Fairburn J. noted at para. 46: The implications of proceeding too quickly to sever accused, simply because the ceiling is approaching, are obvious and striking. This is particularly true in jurisdictions like Brampton, where judicial and courthouse resources are long stretched to beyond their limits. The implications of conducting virtually the same trial more than once would be profound and potentially add to delay in the system: R. v. Koruz, 1992 ABCA 144, at para. 83, aff'd R. v. Schiewe, [1992] S.C.C.A. No. 299. [26] Thus it is clear that at a certain point, the public interest in pursuing a joint trial must give way to protect other rights, such as the right to be tried in a reasonable time. However, as Gattrell J. noted in R. v. S.M., 2016 ONCJ 793 at para. 49: In almost every case with multiple jointly-charged accused different defence counsel will have differing schedules. There will always be an accused who is available for trial earlier than his or her co-accused. This does not mean that it will be in the interests of justice to sever in all such cases. Right to Counsel and Counsel of Choice [27] The applicable principles with respect to the right to counsel and to counsel of choice include: a) The right to retain and instruct counsel must be exercised with reasonable diligence, see R. v. Brydges, [1990] 1 S.C.R. 190 at para. 14; b) The right to counsel of choice is not absolute. It is subject to reasonable limitations. In considering such an issue, the court must balance the individual right, public policy and public interest in the administration of justice and basic principles of fairness, see R. v. Hart, 2002 BCSC 1174 at para. 14; c) The right to counsel of choice is a right that will defer to the necessity of a joint trial, see R. v. Agarwal, 2007 ABQB 775 at para. 47; d) The right to counsel of choice in a joint trial must be balanced against the right of the co-accused to be tried within a reasonable time, see R. v. Millard, 2017 ONSC 4548 at para. 9; and e) The right to counsel of choice is a right to counsel of choice who can proceed with the trial on the date set for the trial, see Re Chimienti [1980] O.J. No. 400 (H.C.J.) at para. 7; and Hart at para. 17. [28] In addition, in R. v. Bacon, 2011 BCSC 135, Madam Justice Stromberg-Stein stated at para. 26 with respect to the right to counsel of choice in state-funded cases that: · Within reason, the court will protect an accused person's right to choose counsel; · Absent compelling reasons, the courts will not interfere with an accused person's choice of counsel; · Courts will avoid actions that result in accused persons being improperly or unfairly denied the opportunity to be represented by the counsel of choice; Discussion [29] Counsel is critical of the conduct of the Crown in this matter. In particular, counsel notes that disclosure was not complete until August 2016. The majority of the disclosure was provided in June 2016. Counsel submits that there is no explanation why it took the Crown six months to provide that disclosure. [30] Counsel attributes delay from October 2016 to October 2017 to the lack of availability of then Crown counsel Mr. Antonuk. However, as noted earlier, it appears that the Crown's schedule in fact only accounted for the delay from August 21, 2017 to October 2017. [31] Counsel acknowledges that delay also arose from the circumstances of the co-accused. However, counsel notes that Mr. Dhudwal has made consistent efforts to move the matter along and that none of the delay can be laid at his feet. [32] Counsel submits that while Bacon was concerned with the issue of state-funded counsel, the same principles in relation to counsel of choice apply to circumstances, as in the present case, where the accused will not be state funded. It was counsel's submission that the delay in the present case has created a circumstance in which Mr. Dhudwal has been unfairly deprived of the opportunity to be represented by counsel of choice. [33] I agree that there has been delay in the present case, some of which can be attributed to the Crown and some occasioned by the co-accused. However, in my view, the Crown has been proactive in taking steps to ensure that each of the accused is tried within a reasonable time including preferring the direct indictment, undertaking to make the Crown available for whatever trial date was set, and pressing to have dates set. Moreover, while it is the case that Ms. Williams was available for trials set on dates other than the March dates, it does not appear from the record before me that there was a date prior to the June Jordan deadline when all defence counsel were available. In addition, it is not the case that counsel's availability was ignored. The date selected was the one that was the best fit given the calendars of all of the defence counsel. [34] In my view, this is not a case in which there was unfairness in the setting of the trial date. Rather, this is an example of a circumstance in which the right to counsel of choice must be balanced against the right of the co-accused to be tried within a reasonable time. [35] Mr. Dhudwal deposes that he has been unable to retain new counsel and that he might be unrepresented at trial if severance is not granted. However, Mr. Dhudwal had seven months from the time the date was fixed to secure counsel who would be available to meet the trial dates. In my view, this was a reasonable amount of time in the circumstances. I note that in Hart, the accused was charged with kidnapping and sexual assault. Counsel for the accused was involved in a murder trial that was postposed and conflicted with the date set for Mr. Hart's trial. Mr. Justice Parrett dismissed the adjournment application, noting at paras. 30 and 31: [30] In balancing the public policy aspects of the administration of justice and the basic principles of fundamental fairness against the reasons advanced for the adjournment of this trial, I am driven to conclude that this trial must proceed as scheduled. [31] Mr. Kennedy and Mr. Hart have decisions they must make. If Mr. Kennedy, as a result of this decision, must cease to represent Mr. Hart, the accused has four months to find counsel to prepare this case. [36] As noted earlier, the right to retain and instruct counsel must be exercised with diligence. It appears from Mr. Dhudwal's affidavit that the extent of effort to secure counsel has been to contact four possible replacements. In my view, that does not satisfy the requirement for the exercise of diligence. I note that R. v. Pereira, 2007 BCSC 1315, involved a multi-party, multi-count indictment. Mr. Justice Romilly dismissed an application for severance brought by one of the accused, Mr. Violette. One of Mr. Violette's arguments had been that he could not afford counsel for the lengthy trial involving all accused and all counts, but could afford to be represented if he was severed from the co-accused, which he argued was appropriate given that he was implicated in only a fraction of the counts (para. 39). A similar argument was rejected in Agarwal at para. 53. [37] I am satisfied that setting the trial date in July 2017 for a date in March 2018 when his counsel was not available did not create a prejudice to Mr. Dhudwal's right to a fair trial or to his right to retain and instruct counsel such that the interests of justice require severance. In the result, Mr. Dhudwal has not met his burden to displace the presumption in favour of joint trials where the accused are alleged to have engaged in a joint criminal enterprise. [38] The application is dismissed. "Ross J."