R. v. Malik and Bagri

2004 BCSC 812.err1.doc R. v. Malik and Bagri

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Malik and Bagri, 2004 BCSC 812 Date: 20040616 Docket: CC010287 Registry: Vancouver Between:

HER MAJESTY THE QUEEN

AGAINST RIPUDAMAN SINGH MALIK and AJAIB SINGH BAGRI Before: The Honourable Mr. Justice Josephson Ruling Re: Defence Application Regarding the Admissibility of Hardial Singh Johal's Diary Counsel for the Crown: J.C. Bellows, Q.C. M.M.M. Dufresne M.A. Mereigh Counsel for the Defendant, Ripudaman Singh Malik: S.M. Coristine R.J. Fernyhough J. Rai Counsel for the Defendant, Ajaib Singh Bagri: M. Code M. Tammen N. Harris Dates and Place of Hearing: June 3, 4 and 14, 2004 Vancouver, B.C.

OVERVIEW [1] Mr. Malik seeks to have the 1985 Pocket Pal day-planner (the "Pocket Pal") of Hardial Singh Johal ("Mr. Johal") admitted for the truth of its contents. He is supported by Mr. Bagri in this application. [2] The sole issue on this voir dire is whether the Pocket Pal meets the test for necessity and reliability under the principled approach to the rule against hearsay as set out in R. v. Smith (1992), 75 C.C.C. (3d) 257 and R. v. Khan (1990), 59 C.C.C. (3d) 92.

THE FACTS [3] The RCMP seized the Pocket Pal from a table in the living room of Mr. Johal's home pursuant to a search warrant executed on November 6, 1985. The Pocket Pal was copied and returned to Mr. Johal. The majority of the writing contained therein was in Punjabi. [4] The June 18, 1985 entry relates to a meeting which took place at the home of Talwinder Singh Parmar that day. The translated entry reads as follows: Talked to the lawyer on the phone regarding the Indo-Cana Times' case. In the evening there was a meeting about Indo-Canadian paper at Sardar Talwinder Singh's house, Malik and others came. [5] The Crown will seek a sinister inference to be drawn from this association of alleged co-conspirators five days before the Air India/Narita incidents and one day before the purchase of the tickets enabling the alleged transport of the luggage containing the bomb. Mr. Malik submits that this journal entry provides a potentially innocent explanation for the meeting and thus should be available to the Court when considering the totality of the evidence in this case. There was evidence on the voir dire that Mr. Malik, Mr. Johal and Mr. Parmar were all involved in litigation against the Indo-Canadian Times newspaper in and around the time period in question. [6] The fact that a meeting took place at Mr. Parmar's home on June 18, 1985 has previously been established through

admissions of fact entered earlier in the trial. In short, C.S.I.S. agents conducting surveillance on Mr. Parmar's house observed Mr. Malik and Mr. Johal arrive at the house and the three engage in conversation while seated on the floor. [7] Mr. Johal was never charged in relation to the subject matter of this case. He died in November, 2002. POSITION OF MR. MALIK i) The Nature of the Document [8] Mr. Malik submits that there is no issue that Mr. Johal was the author of the Pocket Pal. His personal information is recorded at the front of the document, it was found in his home and a witness familiar with his handwriting testified that the majority of the entries contained therein were in Mr. Johal's writing, including the passage in issue. [9] Mr. Malik further submits that the only reasonable inference from the Pocket Pal is that it was used by Mr. Johal to keep a record of past events. While it is not suggested that the document is a comprehensive or complete record of Mr. Johal's daily activities, there is no reason to doubt the reliability of the entries contained therein. ii) The Application of a Lower Threshold of Admissibility to Defence Applications to Adduce Hearsay [10] Mr. Malik submits that a more flexible standard of admissibility is applicable where the defence seeks to introduce hearsay evidence. This principle is based on an accused's broad right to make full

answer and defence and may result in a court admitting hearsay evidence which would not necessarily meet the traditional standards of admissibility which would apply on a Crown application. In support of this proposition, Mr. Malik relies on R. v. Finta (1994), 88 C.C.C. (3d) 417 (S.C.C.) at pp. 527-528, R. v. Brown (2002), 162 C.C.C. (3d) 257 (S.C.C.) at 274-275 and R. v. Kimberley (2001), 157 C.C.C. (3d) 129 (Ont. C.A.). iii) The Necessity Issue [11] Mr. Malik submits that the necessity requirement under Smith and Khan is satisfied on the basis that Mr. Johal is deceased and that the writing provides a potentially innocent explanation for a meeting upon which the Crown places great significance in its conspiracy theory. Mr. Malik also points out that, though unopposed, the Crown has already successfully applied to have Mr. Johal's testimony from Mr. Reyat's manslaughter trial admitted for the truth of its contents on the basis of the principled exception to the rule against hearsay. iv) The Reliability Issue [12] Mr. Malik submits that the very nature of the information contained in the Pocket Pal and the manner in which it is recorded provide a circumstantial guarantee of reliability sufficient to meet the relaxed test for threshold reliability. In particular, Mr. Malik points to the following: (i) the document is in calendar form, leaving no ambiguity over dates; (ii) the

entries are in the past tense indicating that the events described had already occurred; (iii) the entries are unemotional and factual in content; (iv) the entries appear to have been written naturally and without influence of others; (v) the entries appear to have been made with some contemporaneity to the events described; (vi) Mr. Johal had no reason to lie in the document as there was no suggestion that he was under police surveillance or that it would eventually be seized; (vii) in addition to innocuous information, the Pocket Pal also contains potentially incriminating references unlikely to have been included had the document been fabricated; i.e., there is a reference to Mr. Johal having been present at a January 1985 meeting in India with "hijackers", as well as references to a number of other meetings he had with Mr. Parmar and Mr. Gill for which no purpose is noted; and (viii) The entry for June 18, 1985 is not complex and does not require any subjective interpretation. [13] Mr. Malik submits that the majority of the Crown's submissions regarding the completeness of the document and the suggestion that Mr. Johal did not record anything which would tend to inculpate him in the conspiracy are issues going to ultimate reliability and the weight to be placed on the document at the end of the trial. Further, as submitted on behalf of Mr. Bagri, the Crown's submission

concerning the prejudice it would suffer as a result of its inability to conduct a cross-examination is simply not germane to the matters at issue in this voir dire. With the analytical framework falling squarely within the principles set out in Smith and Khan, supra, the lack of cross-examination is a factor to be considered in relation to the issues of ultimate reliability and the weight to be assigned to the evidence at the end of the trial.

THE POSITION OF THE CROWN i) The Nature of the Document [14] The Crown, while not admitting that Mr. Johal was the author of the Pocket Pal, ultimately conceded that it was reasonably open to the Court to find that the evidence on the voir dire supported that conclusion. ii) The Application of a Lower Threshold of Admissibility to Defence Applications to Adduce Hearsay [15] The Crown did not address this submission in their written or oral argument. iii) The Necessity Issue [16] The Crown submits that a party seeking to lead hearsay evidence pursuant to the principled exception to the hearsay rule must exhaust any possibility that there are other witnesses who could offer direct evidence of similar quality to the hearsay evidence sought to be admitted. [17] In that regard, the Crown submits that Mr. Malik could have called his wife or one of the widows of Mr. Parmar or Mr. Johal to testify as to why their husbands attended Mr. Parmar's house for the meeting on the date in question. The Crown did not support this proposition with any evidence that these people were either present at the meeting or had any direct knowledge of its purpose. iv) The Reliability Issue [18] The Crown's arguments regarding threshold reliability centered on the prejudice it would suffer as a result of its inability to conduct a cross-examination on the Pocket Pal and the content and nature of the

entries therein. In addition, the Crown submits that, at best, the evidence in issue may be relevant only to Mr. Johal's view of the purpose of the meeting, not that of Mr. Malik. [19] The Crown submits that the circumstances relating to the making of the document and the nature of the information it contains lead to the conclusion that it is an inaccurate, incomplete and self-serving record. In that regard, the Crown relies on the following factors: (i) many of the entries relate to trivial and/or mundane circumstances which "an ordinary person would likely never consider would warrant an after the fact notation"; (ii) none of the entries are written as a reminder of future events; (iii) there is no notation of various telephone contacts Mr. Johal had with Mr. Reyat in the days leading up to the bombing; (iv) there is no notation of Mr. Johal being at the airport on the morning of June 22, 1985; (v) there are no references to the explosions and loss of life in relation to the Narita bomb and the crash of Air India Flight 182; and (vi) if Mr. Johal was a co-conspirator, he would have had a strong motive to create a false and exculpatory record of his association with others involved in the conspiracy.

CONCLUSION 1. Authorship [20] I find that Mr. Johal was the author of the Pocket Pal, including the entry made in relation to the meeting on June 18, 1985.

2. Analytical Framework [21] There is no disagreement between the parties that the appropriate analytical framework to be applied to this issue is that set out by the Supreme Court of Canada in R. v. Smith and R. v. Khan, supra. The law in relation to this principled approach to the admissibility of hearsay has been canvassed in previous rulings in this trial and need not be repeated.

3. Necessity [22] The proposed evidence contained in the Pocket Pal is necessary. Mr. Johal is deceased. There is no other witness who, on the evidence before me, can offer direct evidence of the purpose of the meeting. Unless they were present, the spouses of those attending could only offer hearsay evidence of what, if anything, they had been told by others regarding the purpose of the meeting. The Crown does not suggest that the spouses of Mr. Malik or Mr. Johal were present. While the meeting took place at the Parmar residence, direct surveillance revealed only the presence of the three male participants in the meeting, with no suggestion of Ms. Parmar being present or in a position to overhear discussions.

4. Reliability [23] Determining threshold reliability for hearsay evidence advanced by the defence is a highly subjective process, particularly using the "relaxed" standard advanced by the authorities. On the surface, the document simply records Mr. Johal's past attendances at various locations on some days and not others. On a few occasions, he recorded the purpose of those attendances. [24] The primary obstacle to a finding of reliability at a threshold level is possible motive to lie if Mr. Johal was a party to the conspiracy consistent with the Crown's theory. If so, a significant motive to misrepresent or withhold evidence regarding potentially inculpatory activities would exist because of the obvious potential of the document falling into the hands of police, as it did. On the other hand, one could ponder why he would even record having a meeting with two alleged co-conspirators the day before the ticket purchases enabling the alleged offences. Absent the surveillance evidence, it might have been the Crown advancing this document as evidence of that fact. [25] It is my view that, on this application, the evidence in support of the Crown's position that Mr. Johal had a motive to lie when creating the entries in the Pocket Pal is not sufficient to create a barrier to admissibility on a threshold level. It may be that the evidentiary foundation for this issue is different at

the end of the trial when it comes to dealing with the issue of ultimate reliability and the weight to be given to the information contained in the document. Further, the inability to cross-examine goes to ultimate, not threshold, reliability on an application of this nature. [26] The risk of admitting potentially exculpatory hearsay evidence is that an accused may be wrongly acquitted. That risk, though significant to the administration of justice, is less so than the risk of a wrongful conviction when the Crown seeks to admit potentially inculpatory hearsay evidence under this exception to the hearsay rule. [27] In this case, the risk of a wrongful acquittal by the admission of the evidence is slight in the extreme. A consideration of all factors affecting ultimate reliability at the end of the trial will minimize any potential prejudice to the Crown. Declining to admit the evidence, on the other hand, would increase the risk of a wrongful conviction, if only slightly. [28] While a "relaxed" standard is to be employed on an application of this nature, that does not equate to no standard at all. There still must be a careful examination of the circumstances in which the document was created to determine whether threshold reliability has been established. Having reviewed the entirety of the Pocket Pal and the evidence concerning its seizure by the police, I am satisfied,

largely for the reasons advanced by Mr. Malik as outlined above, that it meets the test for threshold admissibility and may be admitted for its truth. "I.B. Josephson, J." The Honourable Mr. Justice I.B. Josephson June 17, 2004 - Revised Judgment The names of defendants' counsel were reversed. Counsel for Mr. Malik are: S.M. Coristine, R.J. Fernyhough, and J. Rai. Counsel for Mr. Bagri are: M. Code, M. Tammen and N. Harris.