ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CRIMJ(P) 2037/12
DATE: 20140603

BETWEEN:

HER MAJESTY THE QUEEN

– and –

HARSIMRAN BAL

Accused

– and –

DALJINDER SIDHU

Accused

D. D’Iorio, for the Crown

P. Zaduk and J. Myers, for the Accused, Harsimran Bal

M. Mirosolin and R. Tomovski, for the Accused, Daljinder Sidhu

REASONS FOR JUDGMENT ON SENTENCE

Daley J.

Overview:

[1] The offenders Harsimran Bal ("Bal") and Daljinder Sidhu ("Sidhu") were tried by a judge and jury on an indictment alleging the offence of second-degree murder in the death of Nitish Khanna ("Khanna").

[2] Following a three-month trial the jury found both offenders guilty of manslaughter and they are now to be sentenced on these verdicts.

The Facts:

[3] The offenders' convictions on manslaughter arise from the brutal, unprovoked and senseless killing of Khanna, which occurred on June 20, 2011 at a restaurant in Brampton.

[4] The offenders and their associates, who were at the restaurant that evening, did not know the deceased or his two friends who were with him.

[5] The offenders along with their associates, and the victim and his friends, were seated at tables in different sections of the restaurant. During the hour or so before the victim's death, a verbal interaction occurred between the offenders and their associates and Khanna and his friends, where insults and vulgar expressions were exchanged. There was no physical interaction between any of the parties during this time within the restaurant.

[6] Near the end of the evening, around the restaurant's closing time, the offender Bal spoke with the victim and his friends during which conversation he suggested that they all go outside to talk. On leaving the restaurant, Khanna and his friends were attacked by several individuals and during this attack, he was beaten with one or two golf clubs and subsequently he was stabbed several times with a golf club shaft which resulted in his death.

[7] The offenders and their associates did not remain at the scene following Khanna's death.

[8] It was submitted to the jury, by counsel for the Crown, that the offenders were culpable for second degree murder based on several modes of participation: whether as a principal actor in the beating and stabbing death of Khanna, as aiders and abettors, or as parties to a common unlawful purpose resulting in his death.

[9] While it was undisputed that both offenders were present at the restaurant with their associates and that they had had some interaction with the victim and his friends, it was the position of the offenders during the trial that they took no part whatsoever in the events which led to Khanna's death.

[10] In considering the fit and appropriate sentence to be imposed, the court is bound to accept as proven, expressly and impliedly, all facts essential to the jury's verdict in accordance with s. 742(2)(a) of the Criminal Code, R.S.C. 1985, c. C-46 (the "Code").

[11] Given the guilty verdicts rendered, I conclude that the jury found as a fact that the essential elements of the offence of manslaughter were established beyond a reasonable doubt.

[12] Where the factual implications of the jury's verdicts are ambiguous or unclear, the court on sentencing must come to its own independent determination of relevant facts, consistent with the jury's verdict: R. v. Roncaioli, 2011 ONCA 378, 271 C.C.C. (3d) 385, at paras. 59 - 60; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 18; R. v. Gauthier (1996), 108 C.C.C. (3d) 231 (B.C.C.A.), at pp. 238-39, 242, and 244.

[13] Further, s. 724(2)(b) of the Code provides that the court may find other relevant facts to have been proven by the evidence, where the party seeking to rely upon such facts proves them beyond a reasonable doubt: Ferguson, at para. 18.

[14] When making findings of fact that may constitute aggravating factors on sentencing, where the offender has led evidence, the principles set out in R. v. W. (D.), [1991] 1 S.C.R., at pp. 757-58 apply.

[15] It was submitted on behalf of the Crown that there are several aggravating factors associated with the offenders' conduct that must be considered in setting the appropriate sentence for each offender.

[16] While some of the aggravating factors are included in, and are implicit from, the jury's factual determinations underlying the findings of guilt for manslaughter, additional findings of fact are required in order to consider the other alleged aggravating factors as to sentence asserted on behalf of the Crown.

[17] In determining the factual foundation for sentencing, the court need not necessarily arrive at a complete theory of facts. The sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in a particular case: R. v. Medwid [2009] O.J. No. 1992 (S.C.), at para. 8.

[18] Two principles govern the sentencing judge's factual determinations: First, the sentencing judge is bound by the express and implied factual implications of the jury's verdict; and second, when factual implications of the jury's verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts. In determining the facts consistent with the jury's manslaughter verdict, it is clearly appropriate to assess the basis on which the jury was instructed that they could reach that verdict. As was noted by Wein J. in Medwid, at paras. 9-11, it is not appropriate to attempt to reconstruct the logical process used by the jury. It becomes speculative and artificial to ascribe a single set of factual findings to the jury unless it is clear that the jury must have found those facts unanimously. Where any ambiguity exists, the trial judge is to consider the evidence and make his or her own findings of fact consistent with the evidence and the jury's finding.

[19] On the evening in question, the offenders were in the company of Manmeet Kang ("Kang") and Manjeet Singh ("Singh") at the time that the victim and his friends left the restaurant. The evidence at trial is clear that Kang and Singh left Canada and travelled to India late in the day on which the victim was killed.

[20] It was the offenders' position at trial that the victim was killed by Kang and Singh, however I find as a fact that it is implicit in the jury's finding of guilt of manslaughter, in respect of both offenders, that they had a direct involvement in the killing on a basis less than required for second-degree murder, whether as a principal actor, as an aider, abettor, or as a party to an unlawful common purpose.

[21] The evidence established that the offender Bal had remained at the restaurant and that for a brief period, Sidhu left in a vehicle driven by one of the individuals from the offenders' table, namely Harjap Rataul (“Rataul”). Sidhu left in that vehicle also in the company of his brother, Amritpal Singh and Singh.

[22] The Rataul vehicle returned to the restaurant shortly after leaving and Sidhu and Singh got out of the vehicle in the restaurant parking lot. Rataul testified that as he was driving from the parking lot, he observed the offenders each standing in the parking lot holding golf clubs in their hands.

[23] It was urged on behalf of the Crown that a finding should be made that the offender Bal was the ringleader and that he armed the others involved with golf clubs as they lay in wait for Khanna and his friends outside the restaurant. It was submitted that based on such a finding, Bal's moral culpability is increased.

[24] I cannot conclude that Bal was the ringleader, beyond a reasonable doubt. There was no evidence that while the offenders and their associates were in the restaurant that evening that Bal was an instigator of any conflict between his group and the victim's group. The evidence of those present was that he remained calm and there is no evidence that he had any particular animus with respect to the victim or his friends.

[25] Bal testified in his own defence and characterized himself as acting like a peacemaker when he suggested that Khanna and his friends go outside of the restaurant for a compromise. While it was urged on behalf of the Crown that the jury must have rejected his evidence on this point given the guilty verdict on manslaughter, I disagree. There was other evidence beyond this connecting Bal with the victim, at the scene where he was stabbed including blood from the victim on his pant leg and evidence from one of the witnesses at the scene tending to indicate that Bal was holding the victim during the attack. This does not necessarily establish that Bal was the ringleader.

[26] On the whole of the evidence as to the nature of Bal's role vis a vis the other individuals in his group, which resulted in the victim and his friends leaving the restaurant and going out into the parking lot, I am left with reasonable doubt as to the nature of his participation and as such, cannot conclude that he was his group's ringleader in facilitating the attack outside the restaurant.

[27] As to the nature of the assault upon the victim, I find that it followed a swarming attack, which was intended to humiliate the victim. He sustained injuries to various parts of his body including the upper and lower back, legs and chest area. He suffered tram track bruises consistent with having been hit by a golf club and a fatal penetrating wound 17 cm into his chest. This was not a spur of the moment or accidental encounter with the victim. At the conclusion of the attack, the victim re-entered the restaurant where he collapsed after having passed through two sets of doors. Witnesses at the scene testified that they did not realize he was so seriously injured given that he walked back into the restaurant on his own.

[28] Following the assault, golf club pieces were disposed of at the scene in the restaurant parking lot and on the roadway nearby. The offenders and their associates, Kang and Singh, left in Bal's motor vehicle and proceeded to stop at a Mac's Convenience Store where they were the subject of video surveillance cameras both inside and outside the store.

[29] In the surveillance video they are seen purchasing drinks and snack foods and talking outside the store. While counsel for the Crown submitted that the offenders' conduct depicted in the surveillance video showed a celebratory attitude among all four men, in my view, such a submission is mere speculation. Assessing the physical movements and the facial expressions of the offenders shown in the video they do not form a reasonable foundation to reach that conclusion.

[30] Following the events at the restaurant, the offenders and their associates returned to the apartment where several of them were staying at Garfella Road, in Toronto, and ultimately the offender Bal left his motor vehicle in the parking lot, and shut off his cell phone. After consulting with counsel, he made arrangements to turn himself into the police the following day. Sidhu was located and arrested within two days thereafter.

[31] Counsel for Sidhu acknowledged that the jury’s finding of guilt with respect to manslaughter includes a finding that he was clearly present at the scene and at least a party to the assault. It was further acknowledged that, on the balance of probabilities, it was proven that Sidhu was an aider and thus a party to the assault upon the victim, this forming a factual finding by the jury that would result in a manslaughter conviction.

[32] I find that both offenders were parties to the offence of assault resulting in the death of Khanna which formed the basis for the jury's finding of guilt on manslaughter.

Position of the Crown:

[33] It was the submission of counsel for the Crown that both offenders be sentenced to 12 years in custody less credit for pre-sentence custody at 1.5 times the time served, along with ancillary orders including the provision of a DNA sample and the granting of a lifetime firearm prohibition.

Position of the Offender Bal:

[34] It was submitted on behalf of Bal that a fit sentence would be in the range of five to six years less pre-sentence time served of 1.5 times the time served in pre-sentence custody.

Position of the Offender Sidhu:

[35] It was submitted on behalf of the offender Sidhu that a sentence of five years in custody less pre-sentence time served of 1.5 times the time in pre-sentence custody would be fit.

Law and Analysis:

[36] Guided by the principles of sentencing set out in ss. 718, 718.1 and 718.2 of the Code and specifically recognizing the fundamental principle of proportionality set out in s. 718.1, the sentence to be imposed must be in keeping with the gravity of the offence and the degree of the offender's responsibility.

[37] Denunciation of the offenders' conduct and general and specific deterrence represent paramount considerations on this sentencing.

[38] In R. v. C.A.M. (1996), 1996 SCC 230, 105 C.C.C. (3d) 327, Lamer C.J. commented on this principle and stated, at p. 364, that it is “a sentencing judge's overriding duty to fashion a ‘just and appropriate’ punishment which is proportional to the overall culpability of the offender.”

[39] The principle of retribution in the context of sentencing was also considered in this case and the court indicated that the principle of retribution bears little relation to vengeance but rather represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm by the offender and the normative character of the offender's conduct: C.A.M., at p. 368.

[40] Although the offenders were not very youthful offenders at the date of the offence, Bal being 20 years old and Sidhu 25, their young ages represents a factor to be considered on sentencing. It was stated by Rosenberg J.A. in R. v. Borde (2003), 2003 ONCA 4187, 63 O.R. (3d) 417 (C.A.), at p. 429:

The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence. Where, as here, the offender has not previously been to penitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives.

[41] Pre-sentence reports ("PSR") were submitted at the sentencing hearing on behalf of both offenders. Counsel for both submitted that, while these reports are generally favourable, certain aspects of each report contained inadmissible and improper statements made by the probation officers.

[42] In the PSR submitted with respect to the offender Bal, the probation officer, in recounting an interview with the officer, noted that he was advised by the investigating officer that Bal's "involvement in the death was more than the peacemaker role he described." Further, the probation officer goes on to state the obvious that the charges "are those of a serious nature where an individual's life has been taken with no cause or reasoning."

[43] In the PSR submitted on behalf of the offender Sidhu, the probation officer stated in part as follows:

On interview the subject declined to converse any aspects of this offence. Instead he advised this writer to defer to his lawyer. Given the information provided in the Crown Summary this violent offence was not impulsive or spontaneous. Instead it was pre-meditated and planned by the parties involved. After a few days of arriving in Canada, rather than take advantage of pursuing his studies and opportunities that Canada affords, the subject knowingly involved himself in the planned violent offence. The circumstances that resulted in a senseless, needless, cruel and vicious taking of a young man's life when he was in the prime are difficult to accept, especially for the victim's family, as well as all law-abiding people. An altercation that went too far and resulted in the loss of a loved one can only bring cold comfort to the victim's family that the offender is before the court.

[44] The preparation and submission of PSRs for use on sentencing is governed by s. 721 of the Code which requires that the report contain specific information, including details as to “the offender's age, maturity, character, behaviour, attitude and willingness to make amends.”

[45] The purpose of the PSR is to assist the court in imposing a fit and just sentence.

[46] Trotter J. in R. v. Green, 2006 ONCJ 364, 71 W.C.B. (2d) 64, considered the proper content of a PSR and stated as follows, at para. 13:

Numerous courts have pronounced on the proper content of pre-sentence reports. In his book The Law of Sentencing (Toronto: Irwin Law, 2001), Professor Alan Manson states at p. 187: “There is judicial agreement that the PSR should not include any facts or commentary which relate to the offence or the offender's role in it.”

[47] Trotter J. further referred, at para. 13, to the comments of Chief Justice MacKeigan in Regina v. Rudyk (1975), 1 C.R. (3d) S 26 (N.S.C.A.), where he stated as follows, at p. S - 31:

I would here urge that a pre-sentence report be confined to its very necessary and salutary role of portraying the background, character and circumstances of the person convicted. It should not, however, contain the investigator's impression of the facts relating to the offence charged, whether based on information received from the accused, the police or other witnesses, and whether favourable or unfavourable to the accused. And if the report contains such information the trial judge should disregard it in considering sentence.

[48] I have concluded that the statements made by both probation officers, as referenced above, were entirely improper and have no place in the PSRs. As such, I have disregarded these inappropriate comments as they are of no assistance to the court in determining fit sentences for these offenders.

[49] Counsel for both offenders made submissions with regard to credit for pre-sentence custody. Counsel for the Crown and the offenders agreed that in accordance with the terms of the Truth in Sentencing Act, S.C. 2009, c. 29, the offenders should be given credit for time spent in pre-sentence custody at the rate of 1.5 to 1.

[50] However, counsel for the offenders asserted that in formulating fit and proper sentences to be imposed, prior to the application of any credit for pre-sentence custody, in determining the basic sentence, the court, in these circumstances, must also take into account secondary or collateral punishment that accrued to these offenders due to the harsh circumstances of their pre-sentence custody. It was submitted that the pre-sentence custody credit of 1.5 to 1 does not take into account the effects of secondary or collateral punishment.

[51] The offenders were held in custody at Maplehurst Correctional Complex up to and throughout their trial. Records relating to both offenders' stays at the correctional centre were submitted on the sentencing hearing. It was submitted that the offenders were subject to harsh circumstances resulting in secondary punishment as a result of double-bunking, lockdowns and lack of appropriate exercise time. As of the date of the sentencing hearing, the records showed that there had been 198 lockdowns for Bal and 183 lockdowns for Sidhu, during which time the offenders would also be deprived of exercise time.

[52] Counsel for the offenders readily acknowledged that the Supreme Court of Canada, in its recent decision in R. v. Summers, 2014 SCC 26 was clear in confirming that the maximum credit for pre-sentence custody is 1.5 days credit for every day spent in detention and as such, no additional credit was sought in these terms.

[53] Counsel for the offenders referred to the Standard Minimum Rules for the Treatment of Prisoners (adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977).

[54] Counsel submitted that rule 9(1) of the Rules of General Application, which reads as follows, must be considered by this court in the context of the offenders' circumstances in reaching a proper sentence:

9. (1) Where sleeping accommodation is in individual cells or rooms, each prisoner shall occupy by night a cell or room by himself. If for special reasons, such as temporary overcrowding, it becomes necessary for the central prison administration to make an exception to this rule, it is not desirable to have two prisoners in a cell or room.

[55] It was urged by counsel for the offenders that they had suffered particularly harsh treatment while in pre-sentence custody and as such, this standard must be factored into determining a proper sentence, prior to the application of the maximum credit of 1.5 to 1.

[56] In Summers, Karakatsanis J., for the court, outlined how trial courts are to calculate credit for pre-sentence custody, at paras. 70-74, which read as follows:

[70] In determining credit for pre-sentence custody, judges may credit at most 1.5 days for every day served where circumstances warrant. While there is now a statutory maximum, the analytical approach endorsed in Wust otherwise remains unchanged. Judges should continue to assign credit on the basis of the quantitative rationale, to account for lost eligibility for early release and parole during pre-sentence custody, and the qualitative rationale, to account for the relative harshness of the conditions in detention centres.

[71] The loss of early release, taken alone, will generally be a sufficient basis to award credit at the rate of 1.5 to 1, even if the conditions of detention are not particularly harsh, and parole is unlikely. Of course, a lower rate may be appropriate when detention was a result of the offender’s bad conduct, or the offender is likely to obtain neither early release nor parole. When the statutory exceptions within s. 719(3.1) are engaged, credit may only be given at a rate of 1 to 1. Moreover, s. 719 is engaged only where the pre-sentence detention is a result of the offence for which the offender is being sentenced.

[72] This means that two offenders, one of whom lost the opportunity for early release and parole, and a second who, in addition to losing those opportunities, was also subject to extremely harsh conditions, will likely both have credit assigned at a rate of 1.5 to 1. The unavoidable consequence of capping pre-sentence credit at this rate is that it is insufficient to compensate for the harshness of pre-sentence detention in all cases. However, this does not mean that credit should be scaled back in order to “leave room at the top” of the scale for the most egregious cases. A cap is a cut-off and means simply that the upper limit will be reached in more cases. It should not lead judges to deny or restrict credit when it is warranted.

[73] Indeed, individuals who have suffered particularly harsh treatment, such as assaults in detention, can often look to other remedies, including under s. 24(1) of the Charter.

[74] The sentencing judge is also required to give reasons for any credit granted (s. 719(3.2)) and to state “the amount of time spent in custody, the term of imprisonment that would have been imposed before any credit was granted, the amount of time credited, if any, and the sentence imposed” (s. 719(3.3)). This is not a particularly onerous requirement, but plays an important role in explaining the nature of the sentencing process, and the reasons for giving credit, to the public.

[57] It was urged on behalf of the offenders that their circumstances were captured in the court's statement at para. 73 of Summers, as quoted above and as a result, this must be reflected in the basic sentence imposed prior to providing the statutory credit for pre-sentence custody.

[58] Apart from having filed records from Maplehurst Correctional Complex relating to lockdowns and the offenders’ conduct in custody, no evidence was offered on their behalf with respect to specific incidents of harsh treatment, for example violence or assaults.

[59] While Canada has officially endorsed the standard minimum rules, as reflected in the Standard Minimum Rules for the Treatment of Prisoners, these rules have not been adopted and implemented by the Parliament of Canada. However, the human rights values reflected in the standard may be an aid in interpreting domestic law and the scope of rights included in the Canadian Charter of Rights and Freedoms (the “Charter”): Baker v. Canada (Minister of Citizenship and Immigration), 1999 SCC 699, [1999] 2 S.C.R. 817, at p. 861.

[60] In the present circumstances, I have concluded that the cases of both offenders do not fall within the circumstances contemplated by the court at para. 73 of Summers, as there is no evidence that they have suffered particularly harsh treatment which would give rise to an entitlement to other remedies, including under s. 24(1) of the Charter. Neither offender sought a specific Charter remedy.

[61] As to the circumstances of Khanna at the time of the assault and killing, I find beyond a reasonable doubt that he was a vulnerable victim in that he was attacked while unarmed and drawn into an ambush situation where golf clubs were used to inflict extreme and fatal injuries to him.

[62] I reach this conclusion, although the victim was otherwise young and healthy, on the basis that he was viciously attacked, in a trapped situation without any forewarning by several men. Given the nature of the attack and the use of golf clubs and a golf club shaft as a stabbing weapon, I find that the “vulnerability” of the victim constitutes an aggravating factor to be considered on sentencing: R. v. Cleyndert (2006), 2006 33851 (ON CA), 71 W.C.B. (2d) 146 (Ont. C.A.), at para. 11.

[63] As to remorse, both offenders made their own submissions at the sentencing hearing and expressed sorrow for the victim and his family's loss. In the PSR filed on behalf of Bal, it is reported that he feels horrible for the family of the victim but minimized his involvement in the victim's death and described himself as a peacemaker with no intention to cause the victim's death.

[64] In the PSR submitted on behalf of Sidhu, he advised the probation officer that "no words could adequately describe his feelings and he never expected to be involved in such a situation."

[65] I accept that both offenders have demonstrated some remorse for the death of the victim and the loss caused to his family. While remorse is a mitigating factor, the lack of remorse is not an aggravating one, and in fixing a sentence that reflects the gravity of the offence, I must ignore the fact that neither of the offenders plead guilty and chose to proceed to trial. In considering whether or not genuine remorse has been shown by either of the offenders as a consideration in sentencing, I find that the offender Bal has not expressed the degree of remorse consistent with the jury's finding of culpability nor has he fully ackn