ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMJ(P) 2037/12
DATE: 20140402
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DALJINDER SIDHU
Accused
– and –
HARSIMRAN BAL
Accused
D. D’Iorio, for the Crown
M. Mirosolin and R. Tomovski, for the Accused, Daljinder Sidhu
P. Zaduk and J. Myers, for the Accused, Harsimran Bal
RULING RE: ABANDONMENT DEFENCE
PUBLICATION BAN:
Pursuant to subsection 648(1) of the Criminal Code,
no information regarding this portion of the trial shall be published in any document
or broadcast or transmitted in any way before the jury retires to consider its verdict.
DALEY J.
[1] In the course of the pre-charge conference, counsel for both accused submitted that the defence of abandonment should be left with the jury.
[2] Following counsels’ submissions and after considering the relevant evidence, with my detailed reasons to follow, I concluded that there was an air of reality to the defence of abandonment so far as the accused Harsimran Bal was concerned but not with respect to the accused Daljinder Sidhu.
[3] In the result, the defence of abandonment was left with the jury in respect of Bal but not with respect to Sidhu.
[4] These are my reasons for this ruling.
[5] It was the position of both of the accused that they had no role nor any form of participation in the death of Nitish Khanna at the Tasty Bite Restaurant on June 20, 2011.
[6] As an alternate to the primary defences put forward on behalf of the accused, they each wished for the defence of abandonment to be left with the jury on the basis that if they had been involved in any form of participation leading to the assault and death of Khanna, they stopped and had withdrawn from any form of participation in the criminal activities related to Khanna, prior to his stabbing death.
[7] Dr. Jeffery Tanguay, the forensic pathologist who testified on behalf of the Crown, stated that the fatal injury upon Khanna was the penetrating injury to his right upper chest, which was referred to in his evidence as injury A – 1. He testified that he could not exclude the shaft of the broken golf club as the instrument used to cause this penetrating injury.
[8] He also testified that the deceased sustained three other penetrating injuries along with several blunt force injuries which would not have been fatal.
[9] The mechanism of his death was internal bleeding from the aorta and lungs as a result of the penetrating injury A – 1.
[10] Both accused were present at the Tasty Bite Restaurant on the evening in question. Bal testified at this trial as to the events of the evening including what transpired following his initial contact with Khanna at his table within the restaurant and then outside in the parking lot.
[11] Bal also testified as to the actions of Sidhu on that evening. Sidhu did not testify during this trial.
[12] As to the actions of Sidhu, Harjap Rataul testified that Sidhu, along with Manjeet Singh and Amritpal Singh, all left the Tasty Bite Restaurant together with him in his vehicle. Following a phone call to his vehicle, Rataul testified that he shortly thereafter returned to the parking lot area of the restaurant. On reaching the parking lot both Sidhu and Manjeet Singh got out of the vehicle and walked towards the location where Bal was standing. Rataul testified that he then observed both accused each holding a golf club.
[13] On the other hand, Bal testified that after Manjeet Singh paid the bill in the restaurant he, Manmeet Kang, Sidhu and Manjeet Singh all proceeded to leave through the front doors of the restaurant. Rataul and Amritpal Singh were not in the parking lot of the restaurant when they went outside.
[14] Bal testified that both Manmeet Kang and Manjeet Singh were angry at the man who had called Rataul names in the restaurant and that while speaking with them in the parking lot, after leaving the restaurant, they stated “let them come out we’ll talk with them and fight with them”. In response, Bal testified that he stated, “we are not going to fight, it’s late and we are going home” – to which Kang and Singh responded “no”.
[15] Prior to Bal going back into the restaurant to speak with Khanna and his friends, he testified that Manmeet Kang and Manjeet Singh remained in the parking lot outside the restaurant with him and Sidhu. At this time Sidhu was leaning on Bal’s car and in response to the comments made by Kang and Manjeet Singh, Bal testified that Sidhu stated “leave it – why fight now – the one the incident occurred with left.” Bal also testified that he stated to his companions, “we should not fight but should compromise –somjata”. Bal testified that he saw Kang pick up two or three rocks and put one or two in his pockets and began tossing one in his hand.
[16] Bal further testified that Sidhu, who stated he wasn’t feeling well, asked to sit in his car following which Bal gave his car keys to Kang to unlock the car. Sidhu then got into the front passenger seat of the vehicle as Bal was proceeding to the front door to re-enter the restaurant.
[17] Bal testified that Kang had armed himself with rocks and wanted to fight. He did not know that Kang and Singh had taken the golf clubs from the trunk of his vehicle. He testified that he went into the restaurant to speak with Khanna and his friends about a compromise and he denied any intention of doing this for the purpose of an ambush.
[18] After speaking with Khanna and his friends in the restaurant, and on leaving the restaurant with them, he testified that he observed that his car was not parked where he had left it and he saw Kang and Manjeet Singh standing near the handicapped parking spot at the front of the restaurant. At this point he observed that they each had a golf club in their hands. He testified that at first he did not observe the golf clubs as they were hidden behind their backs.
[19] Within approximately 30 seconds from leaving the doorway of the restaurant Bal observed Kang and Manjeet Singh swinging the golf clubs. He first observed Kang swing a golf club, which was intact, and he struck Rupinder Dhaunauta three or four times and then he observed Kang following Bhumin Patel towards the roadway adjacent to the parking lot.
[20] Bal testified that he then observed Manjeet Singh strike Khanna with a golf club while he was on the ground. He testified that he stated to Manjeet Singh, “don’t hit”. He tried to pull Manjeet Singh off Khanna at which point Manjeet Singh made a motion with his elbow and said “move back – otherwise you will get hurt.”
[21] Bal testified that he got between Khanna and Singh and that he pushed Singh a little and then went and got in his car. Bal testified that Manjeet Singh was the only person who attacked Khanna.
[22] He testified that during this attack by Manjeet Singh, he initially stopped it and there was a separation between Khanna and Singh at which point they were calling each other names and then they resumed fighting.
[23] After Bal got into his vehicle, he and Sidhu had a similar vantage point as to what was happening and he observed Khanna go back into the restaurant. Bal testified that when he first observed Kang with a golf club outside the restaurant it was intact and then when they were in his car, he observed that he only had part of a golf club, namely the grip end of the shaft.
[24] On getting into his car, the keys were in the ignition Manjeet Singh and Kang got into the vehicle and they drove off southbound on Torbram Road and on reaching its intersection with Derry Road, Bal turned left at which time Kang opened the door of the vehicle and threw a golf club piece out.
[25] The four men proceeded back to the apartment at Garfella Road and while en route stopped at a Mac’s Convenience Store. Video of their activities both outside and inside the store is shown in the security video evidence.
Analysis:
[26] The law with respect to the defence of abandonment as established in R. v. Kirkness, 1990 57 (SCC), [1990] 3 SCR 74, and R. v. Whitehouse 1940 244 (BC CA), [1941] 1 D.L.R. 683 (B.C.C.A.) was recently formulated by the Supreme Court of Canada in R v. Gauthier, 2013 SCC 32, 2013 S.C.C. 32, 360 D.L.R. (4th) 1.
[27] The Crown’s case against the accused is based on all four modes of participation under s. 21(1) and (2) of the Criminal Code, namely as a principal, aider or abettor or as a party to a common unlawful purpose resulting in the death of the victim.
[28] In reformulating the test for whether the defence of abandonment applies and in order to adapt it specifically to the various degrees and forms of participation in crimes, Wagner J. stated the test as set forth in paras. 50–52 of Gauthier, which read as follows:
[50] One who is a party to an offence on the basis that he or she did or omitted to do anything for the purpose of aiding any person to commit the offence, or abetted any person in committing it (s. 21(1) of the Criminal Code), or on the basis that he or she had formed with other persons an intention to carry out an unlawful purpose and to assist each other therein and that an offence was committed in carrying out the common purpose (s. 21(2) of the Criminal Code), may raise the defence of abandonment if the evidence shows
(1) that there was an intention to abandon or withdraw from the unlawful purpose;
(2) that there was timely communication of this abandonment or withdrawal from the person in question to those who wished to continue;
(3) that the communication served unequivocal notice upon those who wished to continue; and
(4) that the accused took, in a manner proportional to his or her participation in the commission of the planned offence, reasonable steps in the circumstances either to neutralize or otherwise cancel out the effects of his or her participation or to prevent the commission of the offence.
[51] I recognize that there will be circumstances, even where the accused is a party within the meaning of s. 21(1) of the Criminal Code, in which timely and unequivocal communication by the accused of his or her intention to abandon the unlawful purpose will be considered sufficient to neutralize the effects of his or her participation in the crime. But there will be other circumstances, primarily where a person has aided in the commission of the offence, in which it is hard to see how timely communication to the principal offender of the person’s intention to withdraw from the unlawful purpose will on its own be considered reasonable, and sufficient to meet the test set out in the preceding paragraph.
[52] In conclusion, and more specifically in the context of s. 21(1) of the Criminal Code, the defence of abandonment should be put to the jury only if there is evidence in the record that is capable of supporting a finding that a person who was initially a party to the carrying out of an unlawful purpose subsequently took reasonable steps in the circumstances either to neutralize the effects of his or her participation or to prevent the commission of the offence.
[29] As to whether the evidentiary record gives the proposed defence of abandonment the requisite air of reality, in Gauthier, Wagner J. stated, at para. 60 as follows:
[60] In my view, the appellant’s evidence that she communicated her withdrawal from the deadly plan and that her communication was timely and unequivocal is insufficient for the purposes of the air of reality test. To meet that test, it is not enough to simply identify “some evidence” or “any evidence”; the evidence must be “reasonably capable of supporting the inferences required for the defence to succeed” (Cinous, at paras. 82 – 83).
[30] The reformulated test for the availability of the defence of abandonment applies to all forms of participation as provided for in s. 21 of the Criminal Code.
[31] The air of reality test was considered in R. v. Cairney, 2013 SCC 55, 2013 S.C.C. 55, 365 D.L.R. (4th) 306, where McLachlin C.J. for the majority in considering whether the defence of provocation had an air of reality referred to the court’s decision in R .v. Mayuran, 2012 SCC 31, [2012] 2 S.C.R. 162, where Abella J. described the appropriate approach to the air of reality test, at para. 21:
In determining whether a defence has an air of reality, there must be an examination into the sufficiency of the evidence. It is not enough for there to be “some evidence” supporting the defence (Cinous, at para . 83). The test is “whether there is (1) evidence (2) upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true” (Cinous, at para. 65). For defences that rely on direct evidence for defences like provocation that include an objective reasonableness component, the trial judge must examine the “field of factual inferences” that can reasonably be drawn from the evidence (Cinous, at para. 91).
[32] With respect to the defence of abandonment, Wagner J. in Gauthier stated, at para. 35 that,
The defence of abandonment had to be submitted to the jury only if there was evidence in the record that was reasonably capable of supporting the necessary inferences in respect of each of the elements of this defence.
He then went on to reformulate the defence of abandonment as requiring the four elements outlined above.
[33] McLachlin C. J. in R. v. Pappas, 2013 SCC 56, 2013 S.C.C. 56, 365 D.L.R. (4th) 331) at para. 22 stated:
The air of reality test requires courts to tread a fine line: it requires more than “some” or “any” evidence of the elements of a defence, yet it does not go so far as to allow a weighing of the substantive merits of a defence (R. v. Mayuran, 2012 SCC 31, [2012] 2 S. C. R. 162, at para. 21).
[34] It was also stated by McLachlin C.J. in Pappas, at para. 25 that “where the evidence requires the drawing of inferences in order to establish the elements of the defence, the trial judge may engage in a limited weighing to determine whether the elements of the defence can reasonably be inferred from the evidence.” The limited weighing of the evidence that may be conducted is similar to that conducted by a preliminary inquiry judge when deciding whether to commit an accused to trial (at para. 22).
[35] I have concluded that the evidence presented by the accused Bal, when considered in the context of the whole of the evidence, is evidence that would be reasonably capable of supporting the inferences required for the defence of abandonment to succeed.
[36] As to the first element of the test set forth in Gauthier namely the intention to abandon or withdraw from the unlawful purpose, Bal testified that prior to re-entering the restaurant while he was in the parking lot, he stated to Kang, Manjeet Singh and Sidhu, “we should not fight but should compromise – somjata.”
[37] After having exited the restaurant and upon observing Manjeet Singh striking Khanna with a golf club, Bal testified that he stated to Manjeet Singh, “don’t hit” and that he tried to pull Manjeet Singh off Khanna, at which point Manjeet Singh made a motion with his elbow and stated “move back – otherwise you will get hurt.” Initially Manjeet Singh stopped the assault upon Khanna but it then resumed and Bal got into his vehicle.
[38] The evidence presented demonstrates an expressed and unequivocal intention by Bal of abandoning or withdrawing from the unlawful purpose of assaulting Khanna.
[39] As to the second element of the defence of abandonment, the communication of this abandonment was timely in that it was stated prior to his re-entering the restaurant and was stated to Messrs. Kang, Manjeet Singh and Sidhu.
[40] The statement made by Bal before re-entering the restaurant combined with his statement to Manjeet Singh, upon observing him striking Khanna with a golf club, would amount to unequivocal notice to Manjeet Singh that Bal did not wish to continue and that he had had abandoned the unlawful purpose of the assault.
[41] As to the fourth element of the defence, namely the requirement that the accused take proportional and reasonable steps in the circumstances to neutralize or otherwise cancel out the effects of his participation, Bal testified that he did intervene and tell Manjeet Singh not to strike Khanna. Manjeet Singh and Khanna were separated for a brief period by Bal getting between them, following which the attack resumed. After being advised by Singh that he should move back otherwise he would be hurt, Bal got into his vehicle.
[42] This evidence, if accepted, would demonstrate steps taken by the accused which would be proportional in an effort to neutralize or cancel out the effects of his participation in the unlawful purpose of assaulting Khanna.
[43] As to Bal, I have concluded that the defence of abandonment should be left with the jury for consideration as there is an air of reality to the evidence in the record that is capable of supporting a finding that he was initially a party to the carrying out of the unlawful purpose of assaulting Khanna. Having unequivocally communicated his intention to withdraw from the unlawful purpose, Bal took reasonable steps in the circumstances to either neutralize the effects of his participation or to prevent the commission of the assault.
[44] As to Sidhu, while it was the evidence of Bal that prior to Bal re-entering the restaurant, Sidhu stated to him and to Messrs. Kang and Manjeet Singh, “leave it – why fight now – the one the incident occurred with left,” on the whole of the evidence available with respect to Sidhu’s conduct, I have concluded that the four elements of the test for the defence of abandonment have not been satisfied.
[45] Sidhu’s statement, as noted, standing alone and considered in the context of the whole of the evidence, is not sufficient to meet the air of reality test.
[46] The evidence available from Bal is that Sidhu stated he was not feeling well and for that reason, he proceeded to sit in the front passenger seat of Bal’s vehicle. Upon leaving the restaurant with Khanna and his friends, Bal proceeded to the parking lot where Messrs. Kang and Manjeet Singh were located and Sidhu was in the vehicle.
[47] Bal testified that after his attempts at intervening between Manjeet Singh and Khanna failed, he entered the driver’s seat of his vehicle and he stated that both he and Sidhu had the same vantage point and were able to see where Khanna and Manjeet Singh were located.
[48] Although it was Bal’s evidence that Sidhu got into his vehicle because he was not feeling well, the video evidence from the Mac’s Convenience Store security video does not give support to any inference that Sidhu was too unwell to take proportional steps to intervene in the unlawful assault upon Khanna.
[49] There is no evidence that Sidhu took any other steps to meet the four test requirements for the defence of abandonment.
[50] The evidence available with respect to Sidhu’s conduct and statement is not reasonably capable of supporting the inference that is required for the defence of abandonment to succeed. As stated by Wagner J. in Gauthier, at para. 46:
Thus, merely communicating in unequivocal terms their intention to cease participating in the commission of the offence will not be enough “to break the chain of causation and responsibility”, to repeat the words of Sloan J. from Whitehouse.
[51] Thus, for these reasons, the defence of abandonment is not left with the jury to consider in respect of the accused Sidhu.
Daley J.
Released: April 2, 2014
COURT FILE NO.: CRIMJ(P) 2037/12
DATE: 20140402
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
DALJINDER SIDHU
Accused
– and –
HARSIMRAN BAL
Accused
RULING RE: ABANDONMENT DEFENCE
PUBLICATION BAN:
Pursuant to subsection 648(1) of the Criminal Code,
no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
Daley J.
Released: April 2, 2014