R. v. Chand, 2016 ONSC 1694

CITATION: R. v. Chand, 2016 ONSC 1694

COURT FILE NO.: CR-15-70000145-0000

DATE: 20160309

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

RABINDER CHAND

Defendant

COUNSEL:

Emma Evans, for the Crown

John Erickson, for the Defendant

HEARD: March 1-2, 7-8, 2016

REASONS FOR JUDGMENT

Michael G. Quigley J.

[1] Rabinder Chand is charged with knowingly uttering a threat to Stephen Lamonday to cause death to Mr. Chand's wife, Apollonia Chand, contrary to section 264.1 (1) (a) of the Criminal Code. He is also charged with having counselled Stephen Lamonday to commit the indictable offence of murder, which was not committed, contrary to section 464 (a) of the Code.

[2] The allegations are summarily set out in the synopsis prepared for this case, as supplemented by me based on the evidence at trial.

[3] Mr. Chand was married to his wife, Apollonia Chand, for over 40 years. Their marriage ended in an acrimonious divorce with proceedings that were protracted. In her testimony, Ms. Chand likened it apocryphally to "the War of the Roses” and asked me “have you seen the movie?" Whether it was a replay of that Hollywood classic of the last 20 years or not, plainly the divorce was fractious and bitter. Mr. Chand ultimately had to pay some $310,000 out to his former wife, $250,000 for her share of their house and $60,000 for her share of the cottage.

[4] Apollonia Chand used that money in early 2013 to buy a new condominium for herself. He kept his house, the house they had lived in on Kent Avenue, in the Coxwell and Gerrard area of Toronto, and he kept the cottage in Haliburton, near Bobcaygeon. However, he had to put a significant mortgage on the Toronto house to fund those payouts to his former wife, allegedly had to go back to earning some income from a state of semi-retirement, and it is claimed that he was exceptionally upset about this and sought retribution against her.

[5] Stephen Lamonday is an individual who says he has known Mr. Chand for some years. He knows him as “Robert” Chand. Mr. Lamonday is 53 years old. He has a criminal record, although he has kept out of trouble for the past 10 years. He says he has known the accused during that period of time.

[6] While Mr. Lamonday is only 53 years of age, like poor Yorick[^1], the years have not been kind to him. He has the weathered desiccated look of a person at least 20 years older. He is a severe alcoholic by his own admission. He also has crack cocaine and cocaine addictions. He says he does not smoke dope, i.e. Marijuana. He professed to me that he can easily drink what two other men would drink and remain unaffected. He says he regularly drinks 1.5 litres of vodka or other distilled spirits in an evening or in the course of a day, but without dulling his senses in any way.

[7] Apollonia served the divorce papers on Mr. Chand in September of 2012. She moved out before he was served, and resided in various places. Sometime during January or February 2013, some months after Apollonia Chand had moved out of the house, Mr. Chand allegedly offered Stephen Lamonday the opportunity to live in the basement. Mr. Lamonday claimed Mr. Chand needed the additional financial assistance of the $400 per month of rent he was charging.

[8] Both before and after he moved into the basement apartment, Stephen Lamonday claimed that on numerous occasions, possibly 20 or 30 occasions, the accused asked him to find a gun, and then later, whether he knew a person from whom he could purchase a gun, and even later, if he knew someone who could do the job. On each occasion, Mr. Lamonday told him that he could not get it done for him nor did he know of anyone who would be interested in selling one. It is claimed that Mr. Chand advised Mr. Lamonday that he wanted to "kill the bitch" so that he would be better off, presumably because of the money he had had to pay her to settle the divorce.

[9] Then, at one point, it is claimed that the accused stopped asking Mr. Lamonday for a gun, but that he then approached David Winters and asked him to provide him with a gun. Mr. Winters claimed in his testimony that he also refused to comply with that request. He claims that the accused approached him on two separate occasions within days of each other, and that on a third occasion a couple of days later, after he spoke to Stephen Lamonday and told him to tell Mr. Chand to stop bothering him, Mr. Lamonday himself asked Mr. Winters, again on behalf of Mr. Chand, if he could find a gun. Mr. Winters was mightily annoyed and decided it was time this had to be reported to the authorities. So he went to the police and gave a statement on March 19, 2013.

[10] He said the first request from Mr. Chand was “in June, when the CNE was running.” He claimed he remembered because he had been making deliveries during that period from Kitchen Queen where he worked as a deliveryman, to the Kitchen Queen booth at the CNE. The second request from Mr. Chand was “a day and a half or two days later”, and the third request, from Mr. Lamonday on behalf of Mr. Chand was allegedly only “a couple of days after that”, but which Mr. Winters said was in March 2013, just before he reported to the police on March 19.

[11] On Wednesday, February 20, 2013, Mr. Lamonday claimed he was in bed asleep when he heard an argument upstairs in the living room between the accused and a female. Mr. Lamonday had been out that night with his brother and they had been drinking. He acknowledged that he was seriously intoxicated when he got home. The female was allegedly Mr. Chand's recent girlfriend. Mr. Lamonday said when he heard the ruckus, he crept up the staircase to the top to listen, but where he could not be seen. He said he peeked around the corner and could see that both the accused and the girlfriend were very drunk. They were having a drunken discussion about the price of a gun. The female allegedly said that it would cost at least $4,000 for a gun, but Mr. Lamonday said he heard the accused say that that was crazy, because he, Mr. Chand, could get one for only $40.

[12] It was only at that point, notwithstanding the 20 or 30 or more prior claimed requests to obtain a gun for him, that Mr. Lamonday claimed he first became concerned about Mr. Chand's attempts to obtain a gun and became concerned about the safety of Apollonia Chand. He also indicated he became concerned about his own safety. At 10 o'clock that evening, that is 12 to 18 hours after he heard the altercation upstairs in the living room, Mr. Lamonday went to the police and gave a statement about Mr. Chand's attempts to obtain a gun. He said Mr. Chand never specified any particular gun, but just that he wanted “a handgun.”

[13] Not surprisingly, the police commenced an investigation. Detective Lombardi was assigned. He retained the services of D.C. Paul Martin as an undercover (UC) police officer to pose as someone who could provide Mr. Chand with the gun. Mr. Lamonday was in on the ruse. On March 18, but unbeknownst to Mr. Lamonday, D.C. Martin was wearing an authorized wiretap so the conversations were all recorded. The plan was that Mr. Lamonday would go with the UC and drive to Mr. Chand’s house at 31 Kent Avenue. Mr. Lamonday would bring Mr. Chand out to P.C. Martin's vehicle, but tell Chand that P.C. Martin was the person who can supply a gun.

[14] On Monday, March 18, Mr. Lamonday drove with P.C. Martin to Mr. Chand's house on Kent Avenue. P.C. Martin parked the vehicle and Mr. Lamonday then went into the house, or at least up to the front door, and according to Mr. Lamonday’s evidence, he told Mr. Chand, "Rob, I found someone who has a gun. I don't know what kind. I don't know how much he wants for it." Mr. Lamonday claimed that Mr. Chand asked "he's not a cop is he?" and Mr. Lamonday said no.

[15] Then, the evidence is that Mr. Chand came out to the vehicle parked on the side of the road. He got into the front passenger seat. He immediately asked the UC "What kind you got?" He asked again, "What kind you got?" P.C. Martin replied, "What are you looking for?" Mr. Chand replied "I don't know. Whatcha got? How much is it" The word “gun” was never used.

[16] However, the discussion then ended promptly, because the UC wanted to get out of that location. He testified that he was concerned that he might be seen in front of Mr. Chand's house and that it would compromise that he was an undercover police officer. He wanted to go to another location and suggested they go down to the McDonald's that was nearby. Mr. Chand wanted no part of that. He said he was not going anywhere. He said thanks and quickly got out of the UC's car. Later, Mr. Lamonday testified that Mr. Chand had said to him "I didn't like the looks of him, I didn't trust him, so don't bring him back."

[17] The next day, P.C. Martin tried to get a hold of Mr. Chand by telephone. On the first third and fourth occasions he tried to call, his phone calls went straight into Mr. Chand's voicemail and the calls were not returned. On the second time he called, late in the afternoon of March 19, Mr. Chand answered but indicated that he could not speak because he was at his doctor's office. They did not speak again. The next day, Tuesday, March 20, 2013, Mr. Chand was arrested and charged with these offences.

[18] Dealing first with the second count, that of counselling Stephen Lamonday to commit the indictable offence of murder which was not committed, the actus reus and mens rea of the offence is described succinctly by the Supreme Court of Canada in R. v. Hamilton, 2005 SCC 47, [2005] S.C.J. No.48, [2005] 2 S.C.R. 432 at paragraph 29:

In short, the actus reus for counselling is the deliberate encouragement or active inducement of the commission of a criminal offence. And the mens rea consists in nothing less than an accompanying intent or conscious disregard of the substantial and unjustified risk inherent in the counseling: that is, it must be shown that the accused either intended that the offence counselled be committed, or knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of the accused's conduct. (emphasis of Fish J.)

[19] Similarly, in R. v. Meikel, 1983 CanLII 3535 (ON SC), [1983] O.J. No. 488, 9 C.C.C.(3d) 91, (H.C.J.), Callahan J., later C.J.S.C, referred at paragraph 4 to the elements necessary to establish the participation of the person counselled as a participant in the commission of the offence. In that case, the court held that the person counselled was potentially "particeps criminis" as a principle to the fraud, by virtue of section 21(1)(b) and (c) of the Code. If the person counselled participates in the offence, then they become a party to it under the provisions of the Code establishing party liability. Thus, as Callahan J. noted:

Counselling is itself a substantive offence. It is one of the forms of the common law offence of incitement. Counselling is complete the moment the solicitation or incitement occurs; Regina v. Gonzague (1983), 1983 CanLII 3541 (ON CA), 4 C.C.C. (3d) 505, per Martin J.A. at p. 508.

[20] In this case, given the description of actus reus and the mens rea of the offence as described in Hamilton and Meikle, plainly it is foundational that Rabinder Chand can only be convicted of counselling Stephen Lamonday to commit the indictable offence of murder which was not committed, provided I am satisfied beyond a reasonable doubt that Rabinder Chand had the specific intent to murder his wife, Apollonia Chand.

[21] While recklessness might be a component that could apply in other circumstances, it is not relevant here. Mr. Chand can only be convicted of that offence if I am satisfied to the criminal standard that he alone had a specific intention to murder or cause the murder of his wife, and that he counselled Stephen Lamonday to join him in the execution of that plan.

[22] The actus reus of the offence requires me to be satisfied beyond a reasonable doubt that Rabinder Chand asked Stephen Lamonday to get it done for him, or to find somebody for him who would have a gun and who could kill his wife for him.

[23] Turning to the offence of knowingly uttering a threat to Stephen Lamonday to cause death to Apollonia Chand, the offence does not require the specific intent that she be killed. Rather, as specified by the Supreme Court in R. v. Clemente, 1994 CanLII 49 (SCC), [1994] 2 S.C.R. 758, the intent required by s. 264 of the Code may be satisfied in one of two ways. Either a serious threat to kill or cause serious bodily harm must have been uttered with the intent to intimidate or instill fear, or conversely, such a threat must have been uttered with the intent to intimidate or cause fear and with the intent that it be taken seriously.

[24] At the end of the day, this case turns on the credibility and the reliability of the evidence of two witnesses, Stephen Lamonday and David Winters. The evidence of P.C. Martin, while helpful relative to his involvement on March 19, 2013, is incapable on its own of establishing any of the elements of either of the offences. He acknowledged in his evidence what the information was that he needed to satisfy him of the commission of the offences. He wanted to be involved as the UC to find (i) who the intended was target for Mr. Chand, (ii) to find out if money was involved, and (iii) to find proof of the intention that the death of Apollonia Chand was intended to be the result of Rabinder Chand's actions. P.C. Martin said that he understood that it was "a murder for hire", but he acknowledged that he needed to determine that for himself, directly from Mr. Chand’s words or actions, not just from Stephen Lamonday and David Winters.

[25] Crown counsel argues vigorously that I should consider the offence to be proven beyond a reasonable doubt. She argues that Stephen Lamonday had nothing to gain. He received no consideration. While he has a criminal record, his past 10 years have been without incident. She says he was candid and credible and he would not have gone to the police lightly. He was concerned for Mrs. Chand's safety. She acknowledges that there is no question that he has serious substance abuse addictions, but also that there was no evidence at trial of any animosity towards Mr. Chand, and she claimed no reason for him to fabricate.

[26] Moreover, Crown counsel argued that Mr. Lamonday's evidence was confirmed by the evidence of David Winters. She says that Mr. Winters’ evidence established that Mr. Chand certainly wanted to buy "something." Of course he did, but the question is what and can I be satisfied to the criminal standard on his evidence that it was a gun that Chand wished to purchase?

[27] While Crown counsel claims that the memory of these two witnesses is quite good, that their evidence is reliable, and that their evidence is consistent on multiple occasions, that neither of them was prone to exaggeration, all of which may well be true, it still cannot remedy problems which arise relative to the reliability of the witness' testimony. There was no evidence before me of any apparent collusion between Mr. Lamonday and Mr. Winters relative to the allegations against Rabinder Chand, but that also is not enough to establish that evidence ought to be relied upon.

[28] These are very serious offences. They are very serious allegations. They require me to find beyond a reasonable doubt that Mr. Chand had the intent, the specific intent, to murder his wife. The evidence advanced to support that proposition was the existence of an acrimonious divorce proceeding and Mr. Chand being very disturbed at having to pay such a significant amount of settlement to his wife at the end of those proceedings. I can only say that if that was the criteria for establishing specific intent to murder a former spouse, there would be many people involved in the ordinary process of dividing up failed marriages who would find themselves charged with criminal offences.

[29] The reality is that divorce proceedings are acrimonious, highly emotional and frequently bitter involving retribution and the sense of “getting even” between former spouses, so it is not surprising at all that there could be considerable animus between former spouses engaged in a division of a failed marriage after 40 years. Indeed one needs only go up to the Family Law courts a block away and sit in any one of a number of courtrooms for a few hours to see that this is not an uncommon emotion or phenomenon. The mere existence of anger, frustration and bitterness by one spouse at the perceived unfairness of having to pay out half of the value of all marital assets to a former spouse does not constitute grounds, without more, to establish animus of a level of egregious that it can support a finding beyond a reasonable doubt of an intention to murder the former spouse.

[30] In this case, the question is whether I can rely upon the evidence of Stephen Lamonday and David Winters, and whether it causes me to be sure beyond a reasonable doubt that Rabinder Chand (i) intended to kill his former wife, (ii) intended to involve Stephen Lamonday as a principal in that scheme, and (iii) that he uttered a threat to Stephen Lamonday to cause death to his former spouse, Apollonia Chand.

[31] Looking first at Stephen Lamonday, I have very serious concerns about the reliability of his testimony. I do not doubt that he was doing his best to recall the events as they took place, and as he remembers them. I believe he was being sincere in his efforts to do so, but the fact is he has no memory of any significant duration. He is an alcoholic and has been for 40 years. He is a crack cocaine and cocaine addict. He claims that he has never smoked marijuana, and yet David Winters, his friend, testified that he and Stephen Lamonday had smoked dope together. He probably does not remember, or perhaps Mr. Winters is mistaken in his memory. Either is possible in this case.

[32] More importantly, Mr. Lamonday suffered a stroke eight years ago, which he acknowledges causes his memory to fail at about three months after events occur. There were several different and distinct occurrences where Mr. Lamonday’s recollection of events was at complete odds with other evidence. This included his outbursts that Mr. Chand’s daughter was a complete schizophrenic, alcoholic who was off her meds and who was being seriously abused by her husband, with the two of them living a matter of doors down the street from where the parents lived at 31 Kent Avenue. You cannot reconcile that kind of a description of a person's character, behaviour and alleged demeanour with the completely contrasting and docile description provided by Apollonia Chand of her daughter's character, demeanor, and occupation as a nurse;an occupation shared by her daughter’s husband as well.

[33] This is not to say that the daughter could not have these mental weaknesses and still be engaged as a professional nurse, but it is strikingly odd that Apollonia Chand raised not the slightest concern or suggestion of any unusual or disconcerting aspect to her daughter's behaviour, demeanor or mental health when asked those questions. So that in turn reflects questionably on the accuracy of Mr. Lamonday’s assessment of situations and people; a weakness that was displayed in other parts of his evidence as well.

[34] I had an enormous difficulty as well with Mr. Lamonday's description of the events in the living room in the early morning hours of February 20, when Mr. Chand and his girlfriend were allegedly having an intoxicated argument, where the girlfriend says it could cost $4,000 to get a gun, and where Mr. Lamonday reports that Mr. Chand then says "I can get one for $50." This also is a statement that seems quite inconsistent with Mr. Lamonday’s testimony that Mr. Chand was looking to him and to Mr. Winters to get a gun for him, or to get somebody to perform the hit for him, because he was unable to do it himself and was unable to find a gun for himself. It is hard for me to believe that he would have said that he could get a gun for $50 as he appears to have done in Mr. Lamonday's testimony, and at the same time be the person who was unable to find a gun, and who is accused of having bothered Mr. Lamonday 20 or 30 times to find him a gun.

[35] There is also significant inconsistency in Mr. Lamonday's report on the circumstances when Mr. Chand first asks him to get a gun, as between the evidence given at trial and that given at the last trial (which ended in mistrial for unknown reasons before the proceedings were kicked up a notch and brought to Superior Court), and in his original statement to the police. At trial, he said that the first time Mr. Chand asked him for a gun was when they were in Mr. Chand's living room, before Mr. Lamonday moved into the basement of the house, when there was a lot of paperwork on the table. He did not remember, however, that in earlier testimony he had indicated that their first meeting where getting a gun was raised was on the street outside the Kitchen Queen or the Chunny Chuck restaurant on Gerrard Street, with Mr. Chand’s car parked at the edge of the sidewalk, and Mr. Chand allegedly taking drinks out of a bottle contained in the trunk of his vehicle. Mr. Lamonday specifically remembered he did not have a drink on that occasion, but he did not have the memory to distinguish that he recounted two entirely different versions of the first occasion when Mr. Chand is alleged to have asked him for a gun.

[36] Mr. Lamonday acknowledged that he can “drink what two men drink”, and claimed that it does not affect him and has not in any way affected his memory. Even though he has used cocaine and crack cocaine for many years, he was insistent that his memory was unaffected. He claimed to have no difficulty remembering things. Indeed, he went so far as to advance the proposition he believes that it is when people are getting intoxicated together that the truth really emerges, and that was what he considered the truth rather than what people might have said when they were sober. He acknowledged that he was a drug dealer for cocaine and crack cocaine, engaging in numerous transactions in order to pay for his own habit, having been an addict for many years.

[37] Notwithstanding his protestations, however, I did not find his memory to be nearly as good as he thought it was. He agreed that the Crown had to remind him of answers because he could not recall them himself. Nevertheless, he said there was a “high state of confidence in his own mind” about where he was with Rabinder Chand when Mr. Chand first asked him to get him a gun, and despite the stories of the two occasions being irreconcilable.

[38] When asked about his delay in going to the police on February 21, he acknowledged effectively that he was still intoxicated through much of that day from the night before when he had been drinking with his brother. While he claimed to remember the events in the early hours of the morning when the exchange between Rabinder Chand and his girlfriend over a gun took place, Mr. Lamonday was not sure that he went to work that day because he did not know whether he was up to it after the amount that had been drunk the night before. He simply did not know.

[39] He acknowledged that when he heard Mr. Chand talking about wanting a gun, it was frequently when the two of them were drinking together, and he acknowledged that people do vent sometimes, but he was insistent that the more you drink the more you tell the truth.

[40] Stephen Lamonday did not really think that Mr. Chand could or would hurt his wife, but when he was asked too many times about the gun, Mr. Lamonday said that is what caused it “to start to become real in his mind” and then the discussion with the girlfriend in the early hours of the morning was the final straw for him because he agreed that if it not been for that discussion, he would not have believed that Mr. Chand could or would hurt his former spouse. However, he said it was the constant repetition of the threats and asking for the gun that caused him to come to believe that perhaps Mr. Chand’s animus was real.

[41] He was referred to pages 84 to 88 of his police statement. He agreed that he did not ever hear Mr. Chand say that he was going to get a gun to hurt his wife. He said it was not anything that Mr. Chand actually said that caused him to go to the police. He did not go to the police because of what he thought might occur, and he agreed it was likely that he was still under the influence of alcohol that morning and later that day when he was talking to the police. Mr. Lamonday agreed that Mr. Chand did not say that he was going to shoot his wife. That was entirely his conception of what he took from what it was that Mr. Chand was asking him.

[42] Just two more incidents will suffice to establish the basis for my concern. When asked about the occasions when Mr. Chand had asked him to get a gun, he admitted in cross-examination that he was “having a hard time remembering what had transpired.” Finally, relative to the transcript of what transpired in his discussion with Mr. Chand before they went out to the vehicle where P.C. Martin was waiting, on his own evidence it was he who mentioned “gun” or “handgun” and that Mr. Chand had never said the word gun, and yet he told P.C. Martin in the debrief between himself and P.C. Martin after Mr. Chand left the vehicle, almost gratuitously I might add, that it was Mr. Chand who said the word “gun.” But he acknowledged that none of that was recorded, and that it was simply his recollection, but then again he acknowledged that his recollection is unreliable.

[43] Finally, in his examination-in-chief he made a reference to Mr. Chand asking him for “a handgun”, but the evidence showed that he had never previously at any time referenced Mr. Chand asking for a "handgun". The reference on all prior occasions is simply to “a gun."

[44] In the case of Mr. Winter, it will suffice to say that there are very serious reliability issues with his testimony. I do not denigrate the value of his evidence because he has a criminal record, anymore than I do so for Mr. Lamonday. As noted in my summary of the evidence, Mr. Winters’ chronology of the ordering of events, the first two times that Mr. Chand asks him to get him a gun, and the third time when Mr. Lamonday approaches him on behalf of Mr. Chand, could not possibly have happened at the times that he said they happened. The fact that he gave that evidence demonstrates that he has a serious problem with perceptions of time and with placing these events on a continuum of time. He acknowledges that he is a severe dyslexic and that could account for his mix-ups with dates and times and ordering of events, but it does not enhance the reliability of his testimony.

[45] The first of these requests was made, he said, "in June, when the CNE was running", ignoring that the CNE runs in August and is closed for the rest of the year. The second event, that is the second request from Mr. Chand, was made two days later. That would place it in the same timeframe of June or the summer of 2013. Yet the third event, a day and a half later, when Mr. Lamonday came to him and asked him to help get a gun for Mr. Chand, the event that precipitates Mr. Winters going to report to the police, while it is stated to have occurred “a day and a half to two days later”, actually occurred in March 2013, thus either months before or after the first event, and demonstrating plainly the depth of Mr. Winters’ confusion.

[46] Counsel for the defendant claims in his summation of his argument that these allegations made by Mr. Lamonday and Mr. Winters are a product of their imaginations. I would not be that harsh on them. As I said previously, I accept that each of them, given their foggy and uncertain memories and the legitimate reasons for that obvious haze, were doing their best to testify about events as they recalled them regardless of the inconsistencies those testimonies may have presented. It may or may not be probable or possible that these events occurred as the two principal Crown witnesses testified.

[47] The simple fact in this case, however, is that to convict Mr. Chand of the two offences with which he is charged, I must be satisfied beyond a reasonable doubt that (i) he knowingly uttered a threat that he intended to be taken as a threat to Stephen Lamonday to cause death to his former wife Apollonia Chand, (ii) that he specifically intended to kill his wife Apollonia Chand; and (iii) that he specifically counselled and tried to incite Stephen Lamonday to be a participant and to assist him in murdering his wife, a crime that was not committed. These are the elements of the offence as present in this case, on each of which I must be satisfied beyond a reasonable doubt before convictions may be entered.

[48] It will suffice for these purposes to say that I am simply not sure, not satisfied beyond a reasonable doubt, not even sure on a balance of probabilities or higher standard that these events occurred as these two witnesses describe them with the intent that is attributed to Mr. Chand. As such, it necessarily follows that acquittals will be entered on both counts.

Michael G. Quigley J.

Released: March 9, 2016

CITATION: R. v. Chand, 2016 ONSC 1694

COURT FILE NO.: CR-15-70000145-0000

DATE: 20160309

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

RABINDER CHAND

Defendant

REASONS FOR JUDGMENT

Michael G. Quigley J.

Released: March 9, 2016

[^1]: Shakespeare, W., Hamlet, Act V, Scene 1.