IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

R. v. Sanghera,

 

2012 BCSC 1036

Date: 20120712

Docket: 25797

Registry: Vancouver

Regina

v.

Boby Sanghera
Navdip Sanghera
Charanjit Rangi
Savdip Sanghera
and
Jaspreet Virk

Before: The Honourable Madam Justice H. Holmes

Ruling re Admissibility of Evidence of Other Firearms-Related Items Seized from a Garage as Evidence of Opportunity and Access

Counsel for the Crown:

Mark Sheardown
Alisia Adams
Samiran Lakshman

Counsel for the Accused, Boby Barjinder Sanghera:

Brian Coleman, Q.C.
Jeremy Fung

Counsel for the Accused, Navdip Singh Sanghera:

David Fai

Counsel for the Accuseds, Charanjit Singh Rangi and Savdip Sanghera:

Colleen Elden

Counsel for the Accused, Jaspreet Singh Virk:

Adi Glouberman

Place and Date of Trial:

Vancouver, B.C.

January 9-13, 16-18, 20, 23-27, 30-31, 2012
February 2-3, 7-8, 13-14, 17, 20-24, 27, 2012
March 1-2, 5-9, 12-15, 19-23, 26-30, 2012
April 2-5, 11, 16, 18-20, 2012

Place and Date of Ruling:

Vancouver, B.C.

July 12, 2012

INTRODUCTION

[1]             These are my reasons for denying the Crown’s application, during a trial for numerous offences concerning firearms, to lead evidence of firearms-related items found in a garage, including:

·                 the sawed-off butt portions of two long guns

·                 a pistol magazine loaded with 9mm ammunition

·                 two boxes of 9mm ammunition, and

·                 five boxes of 40 calibre ammunition.

[2]             The garage was a detached one, situated on residential property on East 63rd Avenue in Vancouver, where Boby Sanghera, one of the five accused, lived with other people.

[3]             The Crown submitted that evidence of these items was relevant to two groups of charges on the indictment:

1.               four of the accused (Boby Sanghera, Navdip Sanghera, Charanjit Rangi, and Jaspreet Virk) were charged with offences relating to the possession on November 8, 2008 of three loaded semi-automatic pistols hidden behind the glove box of the rented Chrysler in which they were travelling; and

2.               Navdip Sanghera and Savdip Sanghera were charged with various offences relating to the possession and transfer in late January 2009 of a fourth semi-automatic pistol. 

[4]             The Crown submitted that evidence of the items seized from the garage weeks or months before (on October 14, 2008) would show that the accused had access to firearms and the opportunity to possess them, and were therefore more likely to have been in possession of the guns that are relevant to the firearms-related charges against them.

[5]             Also, the Crown submitted that evidence of the 9mm ammunition found in the garage increases the likelihood that Navdip Sanghera and Savdip Sanghera were in knowing possession in late January 2009 of the fourth gun, as it used the same type of ammunition.  Forensic analysis of the fourth gun, alleged to have been possessed and transferred in January 2009, indicated that it was used in two drive-by shootings on November 1, 2008.  Those shootings were not the subject of charges on the indictment; however, the Crown led evidence to suggest that some or all of the accused had a motive to commit them. 

DISCUSSION

[6]             The Crown’s position has two main flaws.  First, it assumes connections between the items in the garage and the accused that have but tenuous support in the evidence.  Second, the proposed evidence does not survive the scrutiny which evidence of bad character must undergo. 

1.       No Clear Link

[7]             On the evidence, any link between the items seized from the garage and Boby Sanghera is not strong.  Between those items and Navdip Sanghera, Charanjit Rangi, Jaspreet Virk, or Savdip Sanghera, the link is almost non-existent. 

[8]             The home on the property on which the detached garage was located was occupied by several other adults in addition to Boby Sanghera and his wife and child or children.  Evidence in the voir dires and the trial suggested that these included at least the following:  Udham Sanghera (who is Boby Sanghera’s father), Udham Sanghera’s wife, and at certain times a Gordon Taylor, who may have occupied the basement rather than the house proper. 

[9]             The evidence does not disclose which, if any, of Boby Sanghera or those adults or any others who may have lived in the house customarily used the garage or stored items in it.  The evidence therefore does not support an inference that the firearms-related items in the garage were necessarily or even likely Boby Sanghera’s, or that he necessarily had access to them. 

[10]         Any such inference in relation to Navdip Sanghera, Charanjit Rangi, Jaspreet Virk, or Savdip Sanghera is even weaker.  On the evidence, any association between those accused and the items in the garage is through their alleged relationship with Boby Sanghera as his cousins (in the cases of Navdip Sanghera and Savdip Sanghera) and, the Crown says, as his “associates” (in the cases of all four).  However, even if the items in the garage were Boby Sanghera’s, relationship with him -- whether through family ties or through social or other association -- does on its own indicate access to his property.  The evidence establishes no more than that some of the accused were in or around the house on occasion; there is no evidence that they were habitually there, or that they ever visited or used the garage.

[11]         In my view, the proposed basis for admission of the evidence also relies in part on potentially circular reasoning.  The charges alleging possession of the three guns in the Chrysler on November 8, 2008 will be unsupported by any direct evidence about the reason the four accused were in the Chrysler, or where they were going.  The Crown’s case that they were in joint possession of the hidden guns will be entirely circumstantial, relying in part on associations among the accused which the Crown will attempt to prove.  Because of this, there is danger in allowing the evidence that is said to establish those associations among the accused to also support the admission of another category of evidence to  support identical inferences that the four accused acted together in possessing the three guns in the Chrysler.

[12]         For these reasons, the evidence of the firearms-related items can be given very little weight in support of the Crown’s propositions.

2.       Fails Character Evidence Inquiry

[13]         I conclude also that the proposed evidence would amount to evidence of discreditable conduct inviting a conclusion based not on a logically probative connection to the issues in the trial, but rather on the reasoning that the accused are people who would have a tendency to commit these types of offences. 

[14]         Character evidence may be admissible if it is relevant to an issue in the trial and its probative value outweighs its prejudicial effect.  However, as Charron J.A., as she then was, warned in R. v. B. (L.) (1997), 35 O.R. (3d) 35 at 55, 116 C.C.C. (3d) 481 (C.A.), the danger is “that the trier of fact, in relying on the evidence of discreditable conduct, may conclude that the accused committed the offence with which he is charged based, not on the strength of the evidence which has a connection to the issues in the case, but rather, on the strength of the evidence that he is ‘a bad person’ who would have a tendency to commit this offence”.  

[15]         Discussing how evidence of discreditable conduct may properly relate to an issue in the trial, where the sole issue was the identification of the seller of drugs to an undercover police officer, Charron J.A. posited first a situation where evidence that the accused was a drug dealer would not be admissible because, unless the sale had distinctive features, nothing connects the evidence to the issue of identification: B.(L.), at 57-58: 

... No matter what probative value can be attached to the fact that he is a major dealer in drugs, the evidence would not be admissible since it is not connected to an issue in the case other than the accused's general disposition to commit the type of offence with which he is charged.  If, on the other hand, the sale of the cocaine to the police agent had been carried out in unusual circumstances which bore some distinctive features and the evidence of prior drug dealings bore many of the same features, a connection may well be made to the issue of identification, and the evidence could be admitted if its probative value exceeded its prejudicial effect.

[16]         Charron J.A. then distinguished the situation where, for example, the issue is the identification of the owner of drugs found in an apartment inhabited by the accused and roommates, all of whom are drug dealers: B.(L.), at 58:

Consider further the situation if Lepage's two roommates were also major drug dealers.  The evidence that Lepage is a major drug dealer could still be said to have some general probative value toward proving possession, but it can readily be seen that it provides no assistance with respect to the issue in the case, that is, whether Lepage, as opposed to his two roommates, was the owner of the drugs.  The evidence should therefore not be admitted since it is not probative of any fact in issue beyond general propensity.

[17]         The present situation falls closer to the latter situation than it does to the former.  In this case, there is no evidence analogous to the roommate evidence to indicate that the accused were more likely to have possessed the firearms on November 8, 2008 or in late January 2009 than were the other people in the group (or mathematical set) consisting of all of those who may have been in possession of the guns. 

[18]         For example, there is no evidence about the previous renter or renters of the Chrysler that would allow for an assessment of the relative likelihood of, for example, that person, on one hand, and one or more of the accused, on the other hand, possessing the hidden guns.  Moreover, as among the four accused who were in the Chrysler when the guns were seized, relative likelihood can play no part, because the Crown’s position is that all four accused were in joint possession. 

[19]         Therefore, the Crown’s position that evidence of previous possession of firearms-related items increases the likelihood of the accused’s possession of the guns on November 8, 2008 and in late January 2009, amounts to a submission that their possession is more likely than not, rather than that it is more likely than possession by others.  This comes close to the “forbidden line of reasoning” that the accused are the type of people “who would have a tendency to commit this offence”: B.(L.), at 58. 

[20]         The Crown relies on R. v. Riley, [2009] O.J. No. 1374 (S.C.J.), where Dambrot J. admitted on many bases, including as evidence of opportunity and means, evidence about the accused’s membership in gangs and participation in gang activities that included gun offences. 

[21]         In Riley, the accused were charged with first degree murder, attempted murder, and murder-related offences committed for the benefit of a criminal organization, in relation to a shooting which left one victim dead and the other wounded.  Dambrot J. explained in helpful detail how “bad character evidence” that shows an accused’s opportunity and means to commit the crime may be relevant and admissible, like evidence of motive, where the evidence increases the likelihood that the accused committed the crime.  He concluded, at para. 109, that:

... At the very least, the evidence shows that the accused had access to guns and knew how to use them.  This in turn is relevant to whether or not the accused could have participated in the shooting...

[22]          Mr. Lakshman submits that Dambrot J.’s reasoning applies equally here, but I do not agree.  In Riley, as in R. v. Kinkead (2003), 67 O.R. (3d) 57 (C.A.), on which Dambrot J. relied, the pertinent issue in the trial was the identity of the person who used the murder weapon or weapons, and the evidence in question related directly to the accused’s previous possession of guns (Riley) or knives (Kinkead) which might have been those very weapons.  Here, by contrast, the issue in the trial is the identification of the person or persons in possession of the three guns on November 8, 2008 and the fourth gun in late January 2009, and most of the evidence in issue (except for the evidence of 9 mm ammunition) is said to relate to the possession or use of items related to entirely different guns.

[23]         At best, and assuming proven association between Boby Sanghera (or Navdip Sanghera, Charanjit Rangi, Jaspreet Virk, or Savdip Sanghera, as the case may be) and the items in the garage, the evidence of access to or opportunity to possess firearms could relate only to the type of items found there, not the actual items.  The police removed the actual items during the search of the garage weeks or months before the events supporting the charges now in issue. 

[24]         The Crown’s position seems therefore to imply that the accused were people who, unlike most members of the community, were willing and able to gain unlawful access to firearms and ammunition, a position which comes close to suggesting a propensity for unlawful gun possession, and therefore bad character.  

CONCLUSION

[25]         It is not at all clear that the proposed evidence is logically probative of an issue in the trial.  If it is, its probative value is certainly outweighed by its prejudicial effect, because it relies fundamentally on “propensity reasoning” from evidence which can be given very little weight.  

[26]         The Crown’s application to tender the evidence was denied for those reasons.

“H. Holmes, J.”

The Honourable Madam Justice H. Holmes