Court of Appeal for Ontario

Citation: R. v. Brar, 2020 ONCA 578 Date: 2020-09-11 Docket: M51582 (C64824)

Before: Pepall J.A. (Motion Judge)

Between:

Her Majesty the Queen Respondent (Responding Party)

and

Sukhchain Brar Appellant (Applicant)

Counsel: Alexander Ostroff, for the applicant Rebecca De Filippis, for the responding party

Heard: August 21, 2020 by video conference

REASONS FOR DECISION

INTRODUCTION

[1] On December 8, 2017, the applicant, Sukhchain Brar, was convicted of the first-degree murder of his wife. He was sentenced to life imprisonment without parole for 25 years. His application for Legal Aid to fund his appeal was refused. He now applies for an order under s. 684(1) of the Criminal Code, R.S.C. 1985, c. C-46 for the appointment of counsel.

APPLICABLE LEGAL PRINCIPLES

[2] Under s. 684(1), the court may appoint counsel if, in its opinion, it appears both desirable in the interests of justice that the applicant should have legal assistance and the applicant does not have sufficient means to obtain that assistance. The section is to be interpreted in a manner that is consistent with s. 7 of the Canadian Charter of Rights and Freedoms. The order is exceptional, and the applicant bears the burden of proof: R. v. Staples, 2016 ONCA 362 at paras. 33, 40.

(a) Interests of Justice

[3] To succeed in establishing that the appointment of counsel is “desirable in the interests of justice”, an applicant must show that:

i) the appeal is arguable; and

ii) it is necessary that counsel be appointed having regard to: (a) whether the applicant is capable of effectively advancing the grounds of appeal without a lawyer; and (b) whether the court will be able to properly decide the appeal without the assistance of defence counsel.

(i) Is the Appeal Arguable?

[4] At his trial before a judge and jury, the applicant pled guilty to manslaughter but not guilty to first-degree murder. He testified that the deceased had erratically confronted and attacked him while they were on a truck trip to Arkansas. He said she grabbed him around the throat and refused to let go, and told him that he was not a man, that “Jinder” was a man, and that the “J” tattoo on her chest stood for Jinder, who she said was the father of their youngest child. The applicant struck the deceased with a mallet, but he testified that he did not know where or how many times. He then set fire to the truck. The deceased’s cause of death was a combination of blunt force injuries and smoke inhalation.

[5] The defence argued at trial that the deceased provoked the applicant by choking him while disclosing her affair and saying that their child was a product of the affair.

[6] The applicant proposes to advance various grounds of appeal. He submits that the trial judge erred in his charge to the jury on the indictable offence component of provocation and that, furthermore, the amended provocation provision in s. 232(2) of the Criminal Code is constitutionally invalid.

[7] These do not appear to be strong arguments given that the jury found that the murder was planned and deliberate. Implicitly, the jury found that the applicant had formed an intention to kill before he and the deceased left on their trip. As the Crown observes, a planned and deliberate murder is the antithesis of a provoked one. As a result, even assuming that the trial judge erred as the applicant argues, the Crown may well successfully invoke the curative proviso. On this record, it is difficult to see how any mistake relating to provocation would have affected the verdict. I also note that the constitutional issue was not raised at trial, and it is not clear that this would be an appropriate case for this court to entertain the issue for the first time on appeal.

[8] The applicant also proposes to argue that first-degree murder was an unreasonable verdict. However, I agree with the Crown that on the available record, this was a strong planning and deliberation case and the verdict appears to be one which a properly instructed jury, acting judicially, could reasonably have rendered. There was evidence of motive, namely, that the marriage was breaking up, the deceased was having an affair that the applicant knew about, and he may have been upset about the deceased moving to India. Further, he had made a threat, at a minimum, of reputational harm. There was also evidence capable of supporting an inference that the murder was planned, including that the applicant had arranged for the deceased’s will to designate him as her beneficiary shortly before their trip to Arkansas, and that a mallet and such significant quantities of gasoline were not usually in the truck.

[9] Having said that, in my view, the applicant has an arguable case with respect to his other ground of appeal. He intends to submit that the trial judge erred in his after-the-fact conduct instructions. The trial judge did not have the benefit of this court’s decision in R. v. McGregor, 2019 ONCA 307. Arguably, he did not clearly delineate the evidence to which the instruction applied; did not clearly explain the permitted and prohibited uses of the after-the-fact conduct evidence, including which pieces of it, if any, were admissible to prove mens rea and planning and deliberation; and failed to provide an instruction on the need to consider and reject alternative explanations before using evidence of after-the-fact conduct to support inferences of guilt.

[10] In conclusion, while I consider some of the grounds of appeal to be unpersuasive, at least one is arguable. I am not prepared to conclude that the appeal is devoid of merit. This part of the test has been met.

(ii) Is the Appointment Necessary?

[11] This engages a consideration of the complexities of the arguments and the applicant’s ability to make arguments in support of the grounds of appeal.

[12] The Crown concedes that the applicant cannot advance his grounds of appeal on his own. The conviction and the sentence are extremely serious. The applicant lacks legal training, is not fluent in English, and required an interpreter at trial. The issues raised are complex. I conclude that he would be unable to effectively advance his grounds of appeal without a lawyer. He has met this element of the test.

(b) Insufficient Financial Means

[13] The applicant’s evidence is that he has no income, no savings, and no assets. At trial, he paid $324,750 in legal fees. His family will not lend him more money. Some family members are unable to do so, while others have already lent him funds to assist with legal fees and are unable to assist any further in the absence of any prospect of repayment. He has been incarcerated since his arrest in 2016 and hence is not working.

[14] He was denied funding from Legal Aid on the basis of financial ineligibility arising from his treatment of the proceeds of sale from the matrimonial home. He caused half of the proceeds of sale from the matrimonial home to be paid into court in trust for his three children and used the remainder for his legal fees for his trial counsel. The Children’s Aid Society of Peel had brought an application seeking an order that one-half of the net proceeds of sale be paid into court in trust for the three children. The day before the motion was to be heard, the applicant signed a direction instructing his real estate lawyer to pay the funds into court. Legal Aid denied funding on the basis that the payment was not made pursuant to a court order and the applicant had failed to give priority to the payment of his legal fees.

[15] Applicants for a s. 684 order must be clear and transparent in disclosing their financial circumstances: R. v. Staples, at para. 40. The Crown complains that this applicant was not. In particular, counsel asserts that he failed to explain why he transferred half of the house proceeds in trust for his children. Although the applicant’s disclosure was not exemplary, I do not find this argument to be persuasive.

[16] The three children were 15, 11, and 6 when their mother died in 2016, and the funds were paid into court in July 2017. They reside with their maternal grandmother, who is their guardian. It is clear that the request for the applicant to pay half of the matrimonial home proceeds into court emanated from the Children’s Aid Society, which was seeking security for the support of the children. I do not accept the Crown’s argument that in paying the funds into court in trust for his three motherless children, one of whom was under the age of ten, he wrongfully failed to prioritize preserving funds for his legal defence.

CONCLUSION

[17] In my view, the applicant has met his onus. It is desirable in the interests of justice that he be represented. I am also satisfied that he has insufficient means to obtain such representation. Accordingly, his s. 684 application is granted. As requested, I am appointing James Lockyer of Lockyer Campbell Posner to act as his counsel.

“S.E. Pepall J.A.”