R. v. Kullar et al., 2014 ONCJ 485

Information No. 13-1321 Citation: R. v. Kullar et al. , 2014 ONCJ 485 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. KULBIR SINGH KULLAR, CHARNJIT SINGH BOUGHAN and NARANKAR DHILLON R U L I N G O N C R O W N A P P L I C A T I O N BEFORE THE HONOURABLE JUSTICE B.E. PUGSLEY on September 2, 2014 at ORANGEVILLE, Ontario INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 517(1) OF THE CRIMINAL CODE BY ORDER OF JUSTICES OF THE PEACE, M. MCLEOD AND M. EUSTAQUIO-SYME, OF THE ONTARIO COURT OF JUSTICE DATED AUGUST 30, 2013 AND SEPTEMBER 2, 2013 APPEARANCES : F. Kelly/D. Garbaty Counsel for the Crown G. Henderson Counsel for Narankar Dhillon (for D. Locke)

G. Henderson Counsel for Kulbir Kullar (for M. McLachlan) E. Perchenok Counsel for Charnjit Boughan (for N. Rozier) (

i) Table of Contents ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 517(1) OF THE CRIMINAL CODE BY ORDER OF JUSTICES OF THE PEACE, M. MCLEOD AND M. EUSTAQUIO-SYME, OF THE ONTARIO COURT OF JUSTICE DATED AUGUST 30, 2013 AND SEPTEMBER 2, 2013 Ruling on Crown Application. . . . . . . . . . . . . . Page 1

Transcript Ordered: September 2, 2014 Transcript Completed: September 8, 2014 Ordering Party Notified: September 16, 2014 TUESDAY, SEPTEMBER 2, 2014 Pugsley, J (Orally): R U L I N G O N C R O W N A P L I C A T I O N Narankar Dhillon faces a single count of first-degree murder. Originally, Mr. Dhillon had six co-accused, all charged with the same offence. Since last fall, I have pre-tried and case managed, in the Ontario Court of Justice, this matter. On August 25 th , 2014, one of Mr.

Dhillon’s co-accused, Resham Gidhay, pled guilty before me on a charge of manslaughter and was sentenced to prison for 10 years, less time served. Mr. Dhillon now, therefore, has five co-accused. These accused are charged on two separate informations. Mr. Dhillon and two others are scheduled to commence a lengthy preliminary hearing before The Honourable Mr. Justice D.B. Maund on October 14, 2014. The other three accused are set to commence their separate preliminary hearing in February of 2015. Most of the accused were arrested in August 2013. Mr. Dhillon was arrested in October 2013. All are in custody.

The allegation stems from the death of Herminder Bhandal, which took place between August 23 rd , 2013 and August 25 th , 2013. The theory of the Crown’s case is that the co-accused are alleged to have caused the death of Mr. Bhandal while acting at the direction of Mr. Dhillon. Further, Mr. Dhillon is said to have been a principle in the drug community in which the deceased and the co-accused existed. Mr. Gidhay, in the Agreed Statement of Facts that was filed on his plea of guilt, describes Mr. Dhillon’s role in the death of the victim in some considerable detail. The alleged central role played by Mr.

Dhillon, if proven, places him in considerable jeopardy in this preliminary hearing proceeding. Soon after he was first arrested on October 6 th , 2013, Mr. Dhillon retained experienced criminal counsel. That counsel contacted the assigned Crown Attorney on May 28 th , 2014 to advise that she had been discharged as counsel by Mr. Dhillon. Counsel advised that she believed that Mr. Dhillon had secured the services of David Locke to represent him. She hoped that Mr. Locke would take steps to come onto the record to replace her but, ultimately, moved on July 22 nd , 2014 to be removed as counsel of record for Mr.

Dhillon. On that date, I granted counsel’s application. Mr. Dhillon’s matter was adjourned two days to allow Mr. Locke’s office to attend. On July 24 th , 2014, the attending Crown Attorney advised me that the Crown took the position that Mr. Locke and his office were in a conflict of interest due to that office having represented two Crown witnesses in the past. The Crown intended to move before the court to have Mr. Locke removed as counsel of record for Mr. Dhillon on the preliminary hearing. Mr.

Dhillon and his then three co-accused had long been scheduled to appear before me for a confirmation hearing on August 26 th , 2014 to confirm readiness for the preliminary hearing. Accordingly, Mr. Locke went on the record as counsel for Mr. Dhillon on July 24 th , 2014 and I adjourned the matter of the Crown application, if any, to August 26 th , 2014. On August 25 th , 2014, Mr. Gidhay came before me on a freshly laid manslaughter information. He elected to be tried in the Ontario Court of Justice and entered a plea of guilty to manslaughter in connection with Mr. Bhandal’s death.

He is, therefore, no longer a co-

accused and will now be testifying on the preliminary hearing for the Crown. Thus, Mr. Dhillon and his two remaining co-accused, Mr. Charnjit Boughan and Mr. Kulbir Kullar, appeared before me for confirmation and the Crown motion on August 26 th , 2014. Both the Crown and Mr. Dhillon filed comprehensive material on the Crown application. Between the time that the assigned Crown Attorney drafted his material and the hearing of the application, yet another potential conflict was discovered by Mr. Locke’s office. Briefly, Mr.

Locke and/or associated counsel, have had a prior professional relationship with two Crown witnesses and, as newly discovered, Mr. Dhillon’s co-accused, Mr. Boughan. All of this information was discovered by the due diligence of Mr. Locke’s office and Mr. Locke then advised the Crown in a timely way. The Crown intends to call as a witness at the preliminary hearing one Avtar Sidhu. It is alleged that after the victim was tied up, gagged and beaten by five men, the victim was transported from one location to another in a work van loaned by Mr. Sidhu to Mr. Boughan. The van was also connected to another co-accused.

Forensic and other evidence ties the van to the victim. Mr. Gidhay’s anticipated evidence will also tie the van to the victim. The prior professional link between Mr. Locke and Mr. Sidhu is as follows: On September 20, 2009, Mr. Sidhu was charged with a drink/drive offence in Toronto. He retained Mr. Locke. Mr. Henderson of Mr. Locke’s office took carriage of the charge and the matter was completed on April 22 nd , 2010 by a plea of guilty by Mr. Sidhu to the alternative offence of careless driving. The matter was never scheduled for a trial.

Manpreet Padda is a potential Crown witness on the preliminary hearing as well. In his material and in submissions, the assigned Crown Attorney, Mr. Kelly, stated that he does not, at this time, anticipate calling Mr. Padda at the preliminary hearing. Mr. Padda helps connect Mr. Dhillon’s co-accused to a U-Haul truck. Other anticipated evidence also does so. The prior professional connection between Mr. Locke and Mr. Padda is as follows: First, in 2003, Mr. Padda was charged with mischief and retained Mr. Locke. On August 12 th , 2004, Mr. Locke attended for Mr. Padda’s trial. The Crown withdrew the charge.

Second, in 2005, Mr. Padda was charged with aggravated assault and break and enter. Mr. Padda, again, retained Mr. Locke. Mr. Locke’s associate, Mr. Henderson, represented Mr. Padda on a preliminary hearing where Mr. Padda was committed to stand trial. Between the preliminary hearing and the Superior Court trial, Mr. Padda discharged Mr. Locke as counsel and retained other counsel for the trial. Third, in March of 2007, Mr. Padda called Mr. Locke to advised that a bench warrant had been issued for his arrest. Without being retained, Mr.

Locke’s associate, Ms Locke, attended before the Superior Court of Justice and assisted Mr. Padda in having the bench warrant rescinded. Charnjit Boughan is one of Mr. Dhillon’s co-accused. He is represented by Mr. Moon and his office. Mr. Boughan was present at the hearing of the Crown application and was represented by Ms Rozier then. It is not anticipated that Mr. Boughan will be a witness at the preliminary hearing. The past professional link between Mr. Locke and Mr. Boughan is as follows: In the year 2000, Mr. Boughan was charged with two counts of trafficking in heroin. He retained Mr. Locke.

On September 25 th , 2002, Mr. Locke represented Mr. Boughan on his plea of guilt and sentencing. Mr. Locke and his associates have had no ongoing contact with any of the three above- referenced persons since the contact that I have just noted. As already noted, these three prior professional contacts between Mr. Locke and Mr. Sidhu, Mr. Padda and Mr. Boughan, were identified by Mr. Locke as soon as they were known. The Crown, having learned of these prior contacts, quite properly acted immediately to formally address the matter before this court.

That is, they brought on this motion to solve the potential conflict of interest by having Mr. Locke removed as counsel of record for Mr. Dhillon. The Crown points to the potential effect of Mr. Locke’s past professional contact upon the right of Mr. Dhillon, and the other co- accused, to have a fair trial and, even more so, upon the public’s confidence in the fairness of the administration of justice. Further, the Crown notes that the past professional contact became known to Mr. Locke very early in the retainer and not in mid-hearing, such that the court ought to act to prevent Mr.

Locke from being placed into a conflict of interest. The Crown fears that permitting Mr. Locke to act here may lead to an application to quash a committal to trial and the spectre of repeating the entire preliminary hearing again. That risk, it is said, should override Mr. Dhillon’s right to counsel of choice. Indeed, the Crown submits that that right does not contain any right to deliberately choose counsel who are in a conflict of interest. The Crown submits that the matter is easily solved at this point. Mr. Locke should be ordered removed as counsel for Mr. Dhillon. Mr.

Dhillon will then either retain new counsel available for the preliminary hearing dates already set, or will seek an adjournment. If an adjournment is not granted, then he will represent himself at the preliminary hearing. In this way, and in this way only, can the conflict

of interest be avoided. Mr. Dhillon’s position is different. First, he has selected Mr. Locke as his counsel of choice and has retained him accordingly. Mr. Locke is available for the preliminary hearing dates already selected. Mr. Locke himself detected and made public his prior professional contact with Mr. Sidhu, Mr. Padda and Mr. Boughan. Mr. Dhillon submits that any potential conflict of interest can be eliminated by Mr. Dhillon making an informed decision to instruct Mr. Locke not to cross-examine either Mr. Sidhu or Mr. Padda. Mr. Dhillon has taken independent legal advice on this point. Mr.

Dhillon has formally instructed Mr. Locke that he will not cross-examine Mr. Sidhu nor Mr. Padda. In giving these instructions, Mr. Dhillon understands that Mr. Sidhu’s actual evidence may not be the same as his disclosed statements. Mr. Dhillon takes comfort in the fact that, while he does not control the acts of counsel for his co-accused, either or both may cross-examine Mr. Sidhu, gaining information helpful to Mr. Dhillon’s case. Mr. Sidhu may well be cross-examined in the second preliminary hearing set to commence in February. Such cross-examination would also be part of a record available to Mr.

Dhillon should Mr. Sidhu testify at a trial. Further, although the Crown’s submission was that Mr. Sidhu is an important Crown witness, Mr. Dhillon’s submission is that Mr. Sidhu’s evidence is directed towards part of a body of circumstantial evidence and that other evidence will address the same issues at the preliminary hearing here, lessening the importance of Mr. Sidhu’s evidence at that hearing and making it less likely that anything of consequence would arise from Mr. Sidhu’s evidence at the hearing. Mr.

Padda’s evidence is so insignificant, in the context of the preliminary hearing, that the present intention of the Crown is not to call Mr. Padda at all. If he is not a witness, there can be no conflict. If he is called as a witness, the same rationale applies to Mr. Dhillon’s informed decision to instruct Mr. Locke not to cross-examine Mr. Padda. Mr. Boughan does not expect to testify at the preliminary hearing. In any event, he has stated formally, in the presence of counsel, that he has no objection to having Mr. Locke represent Mr. Dhillon at the preliminary hearing. What Mr.

Kelly, on behalf of the Crown, referenced as “the elephant in the room” on this application, is the fact that Mr. Dhillon and his two co-accused are now expecting to engage their preliminary inquiry in just over one month. As already noted, I have pre-tried, case managed and focused the charges against the seven co-accused here since last fall. As one may imagine, it took a great deal of energy on behalf of the court administration here in Orangeville, in Brampton, and at the Regional level, to arrange this roughly six-week hearing.

A secure courtroom in Orangeville for this number of accused and counsel was unavailable. Arrangements were therefore made to have the hearing take place in a large and secure courtroom in Brampton. This was helped by the fact that both Orangeville and Brampton have jurisdiction over the Town of Caledon for criminal matters, Orangeville, by assigned criminal jurisdiction, and Brampton by virtue of Caledon being within the Region of Peel. Orangeville has two sitting Ontario Court of Justice judges, myself and Justice Maund. I case managed this matter, and Justice Maund will be the preliminary hearing judge here.

This meant that His Honour will be unavailable for multiple weeks of the regular Orangeville court activity. Regional resources have, therefore, been freed up and committed to cover the cases that Justice Maund would normally have covered in Orangeville but for this hearing. In other words, several other judges will be potentially moved around within the Region to accommodate this scheduled preliminary hearing. There are two Crown Attorney’s with carriage of this matter. There were four, now three sets of defence counsel, each have one or two lawyers.

All of these professionals have long ago cleared their busy schedules to accommodate the preliminary hearing in this matter. Witnesses and police have also done so since the dates were fixed last winter. In other words, there is a lot of momentum moving towards the successful conduct of the hearing set to start October 14, 2014 and last into January of 2015. The issue of what would likely happen to those plans should Mr. Locke be removed as counsel of record here can be easily anticipated. We are now under six weeks from the start of the hearing.

There are 21,000 plus pages of disclosure and more than 100 hours of video. Realistically, no counsel could conceivable prepare for a multiple-week preliminary hearing such as this in that timeframe, nor could Mr. Dhillon conceivably represent himself. First, he is incarcerated, leading to questions of how he could, himself, access and review the disclosure, let alone prepare for a hearing. Second, throughout this proceeding Mr. Dhillon has been assisted by a Punjabi interpreter. English is not his first language. All of the disclosure is in English. No provision has been made to translate any such documents or

written evidence. To force Mr. Dhillon into this first-degree murder preliminary hearing without counsel would represent a far greater risk of a quashed committal than any risk identified by the Crown at the hearing of this application. So, a successful Crown application will, without doubt, lead to an adjournment of the hearing until Mr. Dhillon can secure new counsel and that counsel can become conversant with the disclosure here. What of Mr. Dhillon’s two co-accused?

Are they to wait in jail until a new date is set, or will their preliminary hearing commence as scheduled and a third hearing be necessary for Mr. Dhillon alone? In the end, the result would be the same, however. Upon a committal, all defendants would have to await the completion of the last hearing until perhaps the fall of 2015, more than two years after the death of Mr. Bhandal. How can such a potential delay enhance the rights of the accused and any public perception of the administration of justice?

I speculate with, in my view, a high degree of accuracy upon this potential end result in an attempt to underline that the issue here, clothed as it is in the no-doubt legally important and interesting issues of competing case law and precedent, has real world effects that go far beyond the issue of Mr. Locke’s colleague pleading Mr. Sidhu out on an HTA offence four-and-a-half years ago. Counsel and the case law here speak of the public interest in maintaining confidence in the administration of justice.

On the other hand, one might ponder, what could be less conducive to such confidence by an informed public than disqualifying Mr. Locke on this case for that reason? The informed public would perhaps be befuddled at such a result, in my view. This is in no way criticism of the Crown bringing this motion on. The matter needs to be resolved and case law requires them to do so. The issue before me is not unguided by precedent.

Both counsel placed helpful case law before me, and each recognizes that the general rule is that counsel owes a duty of loyalty to clients and former clients, including a duty to avoid conflicting interests, to be committed to a client’s cause, to be candid and, mainly, to avoid the misuse of confidential information. Overall, there is an important requirement to protect the public’s perception of the integrity of the administration of justice and that of the persons professionally charged with upholding that integrity.

Balancing that is the Charter -protected right of an accused to be represented by counsel of his or her choice under Sub-section 10(

b) of the Charter . A defendant cannot deliberately choose counsel who are in an obvious conflict and easily point to that protection, however this is a constitutionally entrenched right that cannot be easily dismissed. In other words, competing interests and risks must be balanced. The cases relied upon by counsel here, individually and collectively, illustrate that each fact situation and each alleged conflict must be analyzed on the facts of that case. A recent and characteristically cogent analysis of the law is set out by The Honourable Mr. Justice Durno in R. v.

Tunstead, 2013 ONSC 7137 , found at Tab 23 of the Crown’s case book. In that case there appeared to be facts supporting an obvious conflict. Counsel for one co-accused acted for another co-accused on his bail hearing. The second co-accused was then severed into a different proceeding and would then be testifying against client Number 1. Counsel, therefore, had appeared in a legal proceeding for both clients on the same case, but the court found that the only real conflict was minor. The bail hearing in question was not contested.

After considering the law and balancing the competing interests, the Crown application to remove counsel as counsel of record for Mr. Tunstead was dismissed. Contrast those facts to that in this case. In Tunstead , counsel acted for an accused and a witness in the same case. Similarly, the facts on many other cases referred to here stand in distinct contrast to the facts on the application brought before me. For brevity, I will not cite each case fully; they’re cited in the party’s respective facta and case books. * R. v.

Brissett , 2005 Superior Court of Justice, counsel cross-examining former client about the same criminal matter where counsel had represented that witness. * R. v. Robillard , Ontario Court of Appeal 1986, counsel acted for Crown witness in related proceeding. * CNR v. McKercher , 2013 SCC 39 , civil case where CNR’s lawyer accepted a retainer from a party acting against the CNR . * R. v. Billy , Superior Court of Justice 2009, former client was the murder victim.

* R. v. D.D. , Ontario Court of Justice 2006, the witnesses were all co-accused and potential witnesses against the defendant. * MacDonald Estate , Supreme Court of Canada 1990, a civil case regarding former junior lawyer moving firms and entering into a conflict. * R. v. W.W. , OCA 1995, same counsel for husband and wife. R. v. Neil , Supreme Court of Canada 2002, law firm acting for an accused and retained by a second client who alleged that accused’s misconduct. * R. v. Savory , High Court 1984, counsel acting for accused and witness said to have been wounded by that accused. * R. v.

Baltovich , motion in the Ontario Court of Appeal 2003, that case shows how a work-around for a potential conflict was engineered. * R. v. McCallen, OCA 1999, describes the balancing of conflicts with the defendant’s right to counsel of choice. * R. v. Silvini , Ontario Court of Appeal 1991, counsel acting for both defendants on a conspiracy charge and one client then reneging on his instructions regarding his intention to testify. * R. v. A.S. , a General Division case in 1996, witness was the former spouse of one complainant and the father of another complainant. * R. v.

Brown , General Division 1998, trial matter, conflict was with co-accused who was not a formerly compellable witness who became so when separately charged. And finally, * R. v. Toor , Superior Court of Justice 2010, counsel is surprised in mid-cross-examination that the witness was a former client of the firm. In my view, most, if not all, of the conflicts set out in those cases were obvious and well-established and clear conflicts. The balancing of interests and the risks was weighted towards removal of counsel in most of the cases.

The first question before me is whether a conflict of interest potentially exists here. The second is whether any conflict can be ameliorated such that it no longer exists. Finally, if an incurable conflict exists, how should any competing interests and risks be balanced? Mr. Locke has been forthright in disclosing the potential areas of conflict. He concedes that a technical conflict might well exist. He proposes a work-around. He has received instructions from Mr. Dhillon that he not cross-examine Mr. Sidhu or Mr. Padda. Mr. Dhillon has taken independent legal advice on those instructions. Mr.

Dhillon asserts his Charter right to retain Mr. Locke as his counsel of choice. The Crown submission fears that if Mr. Sidhu’s evidence is not as predicted (he has given three police statements) and if Mr. Dhillon then changes those instructions to Mr. Locke, a worse delay might result. In the Crown’s worst case, Mr. Dhillon, after a presumed committal to stand trial, might move to quash that committal based on the incompetence of counsel. Since counsel agree that no certiorari lies from my decision today, if I get it wrong the only remedy would be a motion to quash the presumed committal.

Such a result is so speculative and remote as to represent no likelihood of occurrence, in my view. The presumed argument would relate to one less important witness to buttress one part of one area of circumstantial evidence. If the committal is that weak, it will never occur at all.

Further, any committal is now no longer likely to be determined by circumstantial evidence. Mr. Gidhay will be called as a witness by the Crown. I heard Mr. Gidhay’s plea and the agreed facts of that plea. If Mr. Gidhay testifies at the preliminary hearing, there will be direct evidence as to Mr. Dhillon’s role here. Mr. Gidhay’s plea, therefore, further diminishes the importance of Mr. Sidhu’s evidence. The Crown does not intend to call Mr. Padda and Mr. Boughan, unopposed to Mr. Locke continuing at the preliminary hearing, will not testify at the hearing in any event. Most importantly, Mr.

Dhillon has firmly made an informed decision to instruct Mr. Locke not to cross-examine Mr. Sidhu, nor Mr. Padda if he is ever called on the preliminary hearing. The Crown worries about a change in instructions or a claim later of not knowing the importance of such an instruction. With respect, tactical decisions by counsel are made every day and are binding upon the defendant. For example, each counsel here has filed a Statement of Issues on the preliminary hearing. That document sets out what witnesses the defendant wishes called at the hearing.

Parties regularly determine that they want to hear from witness A but don’t need to hear from witness B and so on. No one suggests that any great risk exists that in doing so a defendant may later say that “witness B turned out to be more important and my lawyer didn’t want to hear from them and so, please quash the committal.” It needs to be emphasized here that this is not a trial that we are talking about, it is a hearing to test the evidence to see if there is sufficient evidence to put Mr. Dhillon and his co-accused to the hazard of a trial before a jury of their peers.

A decision to waive the cross-examine of a less important Crown witness at this hearing is not the same as a decision to do so at a trial. My only concern today is for the resolution of the question of the continued representation of Mr. Dhillon by Mr. Locke at the preliminary hearing. Boiled down to its essentials, the Crown application concerns the effect of the past professional relationship between Mr. Locke and Mr. Sidhu. Mr. Dhillon faces first-degree murder allegations, allegedly regarding Mr. Bhandal’s death in late August 2013. On September 20 th , 2009, Mr. Sidhu was charged with a drink/drive offence.

On April 22 nd , 2010, over four years before Mr. Bhandal’s death, Mr. Sidhu pled guilty to a Highway Traffic Act offence of careless driving. While secrets and confidences may well have been shared between Mr. Sidhu and Mr. Locke five or six years ago, it is difficult to divine how any such relationship on something so fact specific as an over 80 drink/drive charge could possibly create a real potential conflict today. The offences are just so different and remote from one another, and the result is the same as a traffic ticket. So I am hard put to even find a real conflict here at all.

Even presuming that there is a potential conflict here, Mr. Dhillon’s informed instruction that Mr. Locke not cross-examine Mr. Sidhu or Mr. Padda is a complete answer to such a conflict. To put it plainly, if there is no cross-examination, there is no conflict. On that basis alone, the Crown’s application must be dismissed. To complete the record, however, I will briefly address the issue of the balancing of the competing issues here. I start by noting that, at law, the Crown quite properly brought on this application.

I also observe, however, that it is a serious matter for one party to seek to interfere with the right of a litigant, particularly a criminal defendant, to his or her counsel of choice. There is an observed shortage, particularly here in the Hinterland, of experienced and good criminal defence counsel. Good counsel are popular and may have, and have had a wide clientele over the years. Conflicts of one sort or another seem almost inevitable. Not every such potential for conflict should require counsel to step aside or risk being told to do so by the court.

There is room for trust, discretion and common sense in discussing such potential issues. Next, the Crown fears the possibility of an unprecedented and unpredicted change in Mr. Sidhu’s evidence. Even if such should happen, the Crown has the full protection of the informed waiver of cross-examination in this case. There is scant to zero risk that, that happening with that witness, any committal would be in danger of being quashed. This is a preliminary hearing, not a trial. The stakes here are not as high as the Crown fears, and the risk here, in my view, is very low.

If the risk rose from the mire such that the Crown’s fear becomes more lucid, the Crown, in any event, could re-apply to the inquiry justice to address this issue again. Next, as already said, the public perception of the administration of justice will be in no way damaged here by dismissing the Crown application. On the other hand, the defendants, their families, the victim’s family, the witnesses, the investigators, counsel, and the courts themselves will all be damaged should this long planned for preliminary hearing be displaced by a successful Crown application.

Should the application be granted, the hearing would inevitably be adjourned to allow new counsel to be retained and instructed, and to review the multiple thousands of pages of disclosure. There is absolutely no likelihood that this defendant would ever be compelled to represent himself on a preliminary hearing on first-degree murder charges. Mr. Dhillon’s two immediate co-accused, blameless here, would be forced to await any delayed hearing. The other separately charged co-accused might have their own potential trial delayed to

await the end of Mr. Dhillon’s preliminary hearing. Who can tell where the resulting delay might lead? Next, Mr. Dhillon has the right to counsel of his choice. This is a fundamental constitutional right not lightly dispensed with. On the facts of this case, that right easily overbalances the concerns raised by the Crown on the facts here. In the end, the risk to the Crown’s case and the risk of public disquiet are more than overcome by the risk to Mr.

Dhillon’s legal rights, the risk to the rights of his co-accused, and the risk that the public will have its faith in the justice system diminished by the last minute derailment of a long planned hearing set in place since last winter. Mr. Dhillon has directed that his counsel not cross-examine Mr. Sidhu or Mr. Padda. There is, therefore, no conflict, real or perceived. The Crown application must, therefore, be dismissed. Thank you. F O R M 2 Certificate of Transcript Evidence Act, Subsection 5(2) I, Nancy Byers, certify that this document is a true and accurate transcription of the recording of Regina v.

Kullar, Boughan and Dhillon, in the Ontario Court of Justice held at Court House, 10 Louisa Street, Orangeville, Ontario taken from Recording No. 0611-101- 20140902-090752, which has been certified in Form 1. September 16, 2014 Nancy J. Byers (Date) (Signature of authorized persons)