Court File and Parties

COURT FILE NO.: CR 15 744 DATE: 20170616 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – AMANDEEP JODHA, MANJOT CHADDE, and GURVIR DEOL

COUNSEL: M. Stevens, for the Crown J. Freeman, for Amandeep Jodha D. Paradkar for Manjot Chadde R. Posner, for Gurvir Deol

HEARD: February 16, 17, 18, 19, 22, 23, 24, 25, 26, 29, 2016 March 1, 2, 3, 4, 7, 8, 9, 10, 30, 2016 April 6, 22, 2016 July 5, 22, 2016 September 12, 19, 2016 April 26, 27, 28, 2017 May 1, 2, 3, 4, 8, 9, 10, 2017 June 16, 2017

REASONS FOR JUDGMENT

TZIMAS J.

INTRODUCTION

[1] The three accused, Amandeep Jodha, Manjot Chadde, and Gurvir Deol were charged with aggravated assault against Manpreet Hundal, pursuant to section 268 of the Criminal Code of Canada and assault with a weapon against Kamaldeep Hundal, pursuant to section 276 (a) of the Criminal Code.

[2] The incident, out of which these charges arose, occurred on March 18, 2013 in the City of Mississauga, by the IMAX theatre located at 309 Rathburn Road West, close to Square One Shopping Centre and Sheridan College. Iknoor Gill (Iknoor) and Amandeep Jodha (Amandeep), two of the actors in this incident had certain differences between them. Others may have also been implicated in those differences. Following-up on a fight between these two individuals, which took place on March 13, 2013, Iknoor and Amandeep, as well as their respective supporters agreed to meet on March 18, 2013 by the IMAX theatre, allegedly to settle their differences once and for all. The meeting quickly devolved into a violent brawl and resulted in injuries to the two complainants, Manpreet and Kamaldeep Hundal.

[3] Amandeep and the two other accused, Manjot Chadde and Gurvir Deol were aligned together. The Hundal brothers were aligned with Iknoor Gill. On the evidence before the court there may have been as many as 16 to 20 young men who either participated in the brawl or watched from a distance. As many as 3 or 4 of them may have worn bandanas and more than one individual wore either a turban or a patka. Many of the guys were said to be dressed in black.

[4] The only issue for this court is the identification of the two individuals who injured the Hundal brothers. The Crown’s theory of the case was that Amandeep formed a common intention with his cousin Sukhdeep, Manjot and Gurvir to bring weapons to the fight that was set for the late afternoon of March 18, 2013.

[5] Having been beaten badly by Iknoor on March 13, Amandeep wanted to ensure that he won this round and arranged for his friends to be there with weapons. The Crown relied on certain evidence to identify Manjot as the individual, who assaulted Kamaldeep with a hatchet/axe, and Gurvir as the individual who brought a blade and who stabbed Manpreet.

[6] All three accused challenged the Crown’s theory. They raised numerous concerns over the credibility of each and every Crown witness and concluded that the Crown failed to prove the charges against the three accused beyond a reasonable doubt.

[7] Virtually at the conclusion of this trial, the accused also brought a joint application for a stay of proceedings based on a violation of s.11(b) of the Charter.

[8] For the reasons that follow, I am not satisfied that the Crown has proven its case against the three accused beyond a reasonable doubt. On the evidence before the court one might construct as many as three or four different but cogent theories of what might have occurred in the late afternoon of March 18, 2013. Each witness gave two to three contradicting versions of what occurred. Apart from being able to conclude that the accused were part of a group of 16 to 20 who attended at the fight, I am unable to find beyond a reasonable doubt that the three accused were the ones to harm the Hundal brothers or that they formed any common purpose to bring weapons to the fight that eventually occurred. Accordingly, I find the three accused, Amandeep Jodha, Manjot Chadde and Gurvir Deol not guilty of aggravated assault and assault with a weapon against Kamaldeep and Manpreet Hundal.

[9] In light of the outcome, the stay application is dismissed as moot. In any event, I note that in all likelihood I would have dismissed the application. My reasons for that conclusion are outlined below.

Background Facts

[10] The following facts are not in dispute.

[11] Amandeep had a fight on March 13, 2013 on the Sheridan College grounds with Iknoor. Amandeep lost the fight.

[12] A rematch was arranged on March 18, 2013 for that afternoon. It occurred sometime between 4:00 p.m. and 5:00 p.m. by the IMAX Theatre located in Mississauga, close to Square One Shopping Centre and Sheridan College. The various witnesses who testified contended that the match was supposed to be a one-on-one fight between Amandeep and Iknoor. They also contended that each side brought a number of other guys with them who would be there for protection and for the purposes of preventing one guy from being “jumped” by the other.

[13] The young men who attended on Amandeep’s side included, Sukhdeep Jodha, Satnam Saini, Amarpreet Banga, Gurkireth Banga, and allegedly Manjot Chadde and Gurvir Deol. There were also three additional unidentified individuals who were said to be Amandeep’s friends, who arrived in a CR-V Honda, and who allegedly watched the fight from a distance. Those who attended on Iknoor Gill’s side included Manpreet and Kamaldeep Hundal, Amrik Kanda, Aranjot Singh, Sandeep Mann, and somebody by the name of Eddie. There was also a minor who came to the fight but remained in one of the cars and clearly did not participate in the incident.

[14] The confrontation quickly devolved into a grand fight that lasted for a couple of minutes. In that chaos, some of the guys pulled out weapons, which included a hatchet, some tire irons and possibly a knife or some kind of blade. Kamaldeep was hit in the head with an axe and received a one-inch cut for which he later required stitches. Manpreet was stabbed. He sustained a 5 centimetre deep stab wound into the left chest beside the nipple that penetrated through the chest, lung, diaphragm and perforated the stomach. He also sustained a laceration to the front right shoulder. He required surgery to repair both the chest and the shoulder injuries.

[15] With the exception of Kamaldeep and possibly Iknoor, everyone ran off and dispersed when Manpreet yelled that he was stabbed. Kamaldeep took care of his brother until the ambulances arrived and took both brothers off in separate ambulances to the hospital.

[16] The three accused were arrested at some point after midnight.

Position of the Parties

a) Crown

[17] The only issue for this Court is the identification of the individuals who caused the injuries to the Hundal brothers. As the Crown put it in her submissions, who were the men who assaulted Kamaldeep and Manpreet?

[18] To her credit, Crown counsel acknowledged that the Court did not hear the exact same account of what happened from any two witnesses because each of the five witnesses came to Court with a very different perspective and vantage point. She did however submit that even with all the frailties in the testimony of the witnesses, the evidence pointed to certain consistencies across the testimonies and therefore permitted a number of inferences to be drawn in support of a guilty verdict for all three accused.

[19] The point of departure for the Crown’s theory was the fight between Iknoor and Amadeep that occurred on March 13. Amandeep felt humiliated by his loss, he was angry and he wanted to put Iknoor “in his place”. To ensure that he won this fight, he and his cousin Sukhdeep, decided to call on a number of Sukhdeep’s friends and some of Amandeep’s friends to come to a fight. They also told their friends bring weapons for good measure. Counsel submitted that the weapons had to be there by design and at the request of Amandeep and Sukhdeep because none of the people who came with the weapons had any personal differences with Iknoor to support a conclusion that they brought the weapons on their own initiative. The weapons must also have come only from Amandeep’s allies because on the evidence before the court, nobody said that they saw any weapons in the hands of Amandeep’s opponents.

[20] Consistent with that plan, Amandeep called Iknoor in the afternoon of March 18 and invited him to a rematch for later that day. Iknoor agreed. The rematch would take place in the vicinity of the IMAX theatre around 4:00 p.m. or so. Amandeep, Sukhdeep and Satnam then drove to Manjot’s home to pick him up and proceeded to the fight. They parked their car near the IMAX theatre and met with some other guys. Gurvir, who was among these guys, was overheard to be telling Manjot that he had a blade with him. Counsel submitted that the plan was for Manjot and Gurvir to grab Iknoor and take the fight somewhere else. Consistent with that plan, when the guys who were aligned with Amandeep saw Iknoor and his group, Amandeep pointed Iknoor out to them and they tried to isolate him away from his allies. When Iknoor resisted, the weapons were drawn and chaos ensued.

[21] Crown counsel grounded this theory primarily on Iknoor’s evidence. She submitted that Iknoor’s testimony ought to be accepted by the court as both reliable and true. She explained that Iknoor testified in a detailed fashion because he was in a position to know what occurred on March 13 and what followed on March 18. His testimony concerning his intention was credible in light of the events of March 13. He acceded to Amandeeps invitation to have a one-on-one rematch on March 18. He was with some of his friends when Amandeep called him to invite him to the rematch and so they came along to the fight and were prepared to back him up if necessary.

[22] Crown Counsel invited the court to accept the characterization of Iknoor as the diplomat who was reluctant to fight and whose original objective in coming to the fight on March 18 was to negotiate a resolution to the dispute with Amandeep. Consistent with these objectives, the Crown submitted that there was no evidence that Iknoor ran away from the scene when Manpreet yelled that he was stabbed but called the police and stayed behind until the ambulances arrived. In light of this portrayal, the Crown submitted that the Court could rely on Iknoor’s evidence that almost all of the guys were wearing black clothes, that only one of the guys was wearing a turban and that this was the guy who had a hatchet, and who assaulted Kamaldeep with it.

[23] The Crown also submitted that the court could rely on aspects of Sukhdeep’s evidence. Like Iknoor, counsel argued that Sukhdeep was deeply invested in the fight. He was in a position to know the details of how the fight of March 18 came about since he, together with Amandeep, was one of the architects of the fight. He did not come to Court to paint himself as an innocent party but rather, came clean when he was asked about the instances when he lied to the police.

[24] With respect to the evidence from the two victims, Kamaldeep and Manpreet, the Crown submitted that much of their testimony coincided with Sukhdeep’s evidence. These brothers did not plan the fight. Kamaldeep went at Iknoor’s invitation to be there for back-up and Manpreet had no plan to fight; he drove his brother to the IMAX theatre. With respect to Kamaldeep’s evidence and the discrepancies between a statement he gave to the police at the hospital on the night of March 18 and his subsequent recorded statement, as that related to the description of the person with the hatchet, the Crown submitted that the initial police statement was presumptively inadmissible and unreliable.

[25] Finally, with respect to Satnam, the Crown agreed that the court had to be very careful with his evidence. She acknowledged that Satnam was clearly sympathetic to Amandeep, that he never gave a statement to the police, that he held back details from Amandeep’s counsel concerning his acquaintance with Manjot and his identification of Amarpreet Banga as one of the individuals holding a tire iron and that in short, and he engineered his evidence to give Amandeep deniability to the charges.

[26] Even with these significant hurdles, counsel submitted that the court could rely on some of Satnam’s evidence that was confirmatory in nature. For example, Satnam confirmed much of Sukhdeep’s evidence that related to both March 13 and March 18. He confirmed that Amandeep was the one to call Iknoor on the night of March 13 following their fight to tell him that he would be calling the police and that he would be in trouble. He also confirmed that it was Amandeep who remained upset with Iknoor and who described Iknoor as the one who continued to cause trouble when on the morning of March 18, Satnam, Sukhdeep and Amandeep drove by Sheridan College and allegedly saw Iknoor giving them the finger. Satnam was also in Sukhdeep’s car on March 18 and observed the fight when it occurred. Finally, in some instances, when Satnam tried to engineer his evidence he unwittingly contradicted other evidence before the court. Counsel argued that the court could rely on those contradictions to satisfy itself that Satnam was not trying to actively mislead the court. If his aim were to mislead, he would have taken care to avoid those contradictions.

[27] In light of these submissions, counsel concluded that the court had sufficient evidence to find beyond a reasonable doubt that Manjot was the person with the hatchet / axe who assaulted Kamaldeep. Gurvir was the one with the blade who stabbed Manpreet and Amandeep was party to the fight with the further inference that he had one of the tire irons, and that in any event, having asked the guys to bring weapons to the fight, he was reckless as to the harm that the weapons could cause.

b) Defence Positions

[28] Defence counsel for all three accused submitted that the Crown failed to meet its burden of proof. They submitted that on the evidence before the court it was impossible to find the three accused guilty of the noted charges beyond a reasonable doubt. They all expressed very significant concerns over the credibility and the reliability of each and every witness who testified and cautioned the court of the inherent dangers of drawing any inferences from their evidence.

i) Defence for Gurvir Deol

[29] Turning specifically to the positions of each accused and beginning with Gurvir’s submissions, counsel reminded the court that each accused stood separately before the court and that the liability of each defendant had to be considered separately. Counsel noted that each of the three men stood in fundamentally different positions both in relation to the incident at issue and to each other.

[30] Specifically regarding Gurvir, counsel submitted that he stood in a very different position from his co-accused. The Crown could not possibly meet the burden of proof that he was either a principal, armed with a knife, or that he was party to the fight. First, the only person who purported to identify Gurvir as one of the people who was at the fight was Sukhdeep. Nobody else identified him. Furthermore, there was no evidence of Gurvir being observed to be in possession of a weapon, be that a knife, a tire iron, an axe, or any other instrument, sharp-edged, blunt or otherwise. More significantly, nobody testified that Gurvir stabbed or assaulted anyone. Even Sukhdeep, who purported to place him at the scene of the fight, did not say that he saw Gurvir with a knife or that he was the one to stab Manpreet. All Sukhdeep said was that he overheard Gurvir saying something about a blade.

[31] Against such deficiencies, the evidence that touched on Gurvir’s presence at the fight, if he was there at all, tended to suggest that somebody other than Gurvir stabbed Manpreet. Gurvir came to the IMAX theatre on his own. There was no evidence that he was privy to any of the plans or conversations concerning the brawl. He was not in the car with Sukhdeep, Amandeep, Satnam, or Manjot. He also had no connection to the fight of March 13 and there was no evidence that he had any knowledge of that event.

[32] With respect to the weapons, there was no evidence that weapons were drawn or that they were in plain view when the guys arrived at the IMAX. When the men advanced, there was no evidence that any weapons were seen by anyone. Rather, they were drawn immediately before the melee. Furthermore, it was never clear on the evidence as to who or how many men had weapons. Counsel went further to suggest that if there were any air of reality to the evidence that Amandeep, whose issues with Iknoor were at the core of this melee, was unaware of the existence of any weapons, there was that much less support for any inference that Gurvir knew about the existence any weapons.

[33] Specifically with respect to Sukhdeep’s evidence, counsel cautioned the court on the dangers of receiving his evidence at all, particularly in light of the Crown’s significant reliance on his evidence. Sukhdeep was originally one of the accused in this matter. Given Sukhdeep’s agreement to give a statement to the police, with the probable likelihood that the charges against him would be withdrawn, counsel likened him to jailhouse informers who testify in the hope of some advantage regarding their sentence or other advantage.

[34] Relying on the cautions for such witnesses by the Honourable Peter deC. Cory in The Report of the Inquiry Regarding Thomas Sophonow, and the discussion in R v. Sauve on how unsavoury witnesses can be convincing liars and can effectively conceal their true motives for testifying, counsel noted that Sukhdeep was such a character. He gave information to the police for the purpose of improving his own position. He was in a unique position to concoct events as he had direct knowledge of what happened. He was disreputable and unsavoury. He actively misled the court and he deflected the responsibility over the fight to others.

[35] The extent to which his evidence was calibrated to suit his partisan interests and the extent of his mendacity was reflected in his contradictory evidence concerning his own criminal record, his spotting of Iknoor at the fight, his various contradictory exchanges with the police about his own role, the number of people who were present at the fight, the clothing worn by those people, the number of people who were masked, the exchange he overheard over the blade, and the bleeding on Gurvir’s lip. Taken together, the evidence on these issues was internally inconsistent and outright misleading.

[36] Counsel raised similar concerns with Satnam’s evidence and pointed out his willingness to mislead and his admissions that he withheld certain evidence from Amandeep’s lawyer and the court. His focus exclusively on two men in black with hankies on their faces was no more than an attempt to deflect responsibility away from his cousin Amandeep. Finally, counsel described Satnam’s assertions that he did not understand that the charges against Amandeep were serious or that he had no understanding of the nature of the conflict between Amandeep and Iknoor as outrageous, particularly given Satnam’s complementing evidence that he was intimately involved in the phone exchanges between Amandeep and Iknoor.

[37] With respect to the Hundal brothers, counsel highlighted an evolution in their respective narratives about the events of March 18. In his statement to the police, Manpreet could not give a description of the person who stabbed him. By the time he testified at trial he described the person who stabbed him to be six feet and with a heavy set. To the police he said that when he was stabbed he was surrounded by everyone. At the trial he said that everyone ran away when he got stabbed. In Kamaldeep’s immediate conversation with the police, he described the person who stabbed his brother as “thin”. In his formal statement to the police, that description changed. Counsel submitted that seeing Gurvir in court allowed the Hundal brothers to recalibrate their evidence and to tailor their descriptions to fit Gurvir’s description. Against this evolution, the most significant aspect of Manpreet’s evidence related to his observation that the person who stabbed him used his right arm. It was agreed by all parties that Gurvir is left-handed. Counsel submitted that this fact alone would exclude Gurvir as the person who stabbed Manpreet.

[38] Finally, with respect to Iknoor, counsel described him as very dodgy. His description of the fight had a number of contradictions and vague descriptions. He thought he saw somebody with a tire iron but he did not know who it was.

ii) Defence for Amandeep Jodha

[39] Counsel for Amandeep submitted that the Crown had failed to make out a case that Amandeep was either a principal or that he had a common purpose to bring weapons to the fight. For the Crown to succeed on a theory of common purpose, the Crown would have to establish beyond a reasonable doubt that Amandeep knew that weapons would be brought to the fight. Counsel cautioned that in light of the contradictory and unreliable evidence before the court, the court could not reach such a conclusion safely.

[40] The only person to put a weapon into Amandeep’s hands was Iknoor. But Iknoor’s narrative was replete with inconsistencies. He took great pains to present himself as a peace-maker but then he admitted that he sat on top of Amandeep at one point in the fight. He also admitted to fighting Amandeep on March 13 when Amandeep was said to be drunk out of his mind. Such behaviour did not align itself with the image of a peace-maker. He was also prepared to deny, exaggerate, and distance himself from the dispute.

[41] Nobody else saw Amandeep with a weapon. Sukhdeep and Satnam specifically denied seeing Amandeep holding a tire iron. Moreover, the people with weapons were taller and heavier than Amandeep. Furthermore, given Amandeep’s limited English skills one could not conclude that he would have understood the exchanges in the car between Sukhdeep and Manjot concerning the hatchet, even if such a conversation took place.

[42] In the absence of any corroborative evidence, the Court would have to overcome the various difficulties with Iknoor’s testimony before it could accept his evidence that Amandeep had a tire iron in his hands. Ultimately, counsel concluded that one way or the other there was no evidence that Amandeep was a principal or formed a common intention to bring weapons to the fight. If the Court were to reject Iknoor’s evidence but accept Sukhdeep’s and Satnam’s evidence, then Amandeep did not have any weapons and was unaware of any plan to bring weapons to the fight. Similarly, if the Court were to reject all of the evidence, then again, Amandeep had no weapons and was unaware of any plan to bring weapons.

iii) Defence for Manjot Chadde

[43] Manjot’s counsel submitted that the Crown’s theory of the case depended entirely on circumstantial evidence. Against that theory there were some overriding undisputed facts: Manjot did not have any problems with Iknoor and he hardly knew Amandeep. He was not at the fight on March 13. His connection to the dispute was minimal at best and it was only through Sukhdeep. That raised the question as to why Manjot would be so angered over people he did not know and then show up with a weapon and go into a rage? If Sukhdeep were to be believed that he did not ask Manjot to fight and did not ask him to bring any weapons, the suggestion that Manjot was the man with the axe at the fight and that he brought it on his own initiative becomes all the more implausible and inexplicable.

[44] Complementing these frailties were inconsistencies in the description of the man with the axe. Sukhdeep, Iknoor and Manpreet said that the person with the axe wore a mask the whole time. Kamaldeep said that the mask slipped off during the incident. Some thought the person was wearing a hoodie. Manpreet never saw his attacker wearing a hoodie. Kamaldeep, Sukhdeep and Iknoor thought the attacker wore it all the time. Manpreet thought that the man wore a proper turban. Sukhdeep described it as a du-rag. Iknoor called it a patka, and Kamaldeep was not sure about a head covering at all because he thought that the man wore his hoodie the whole time.

[45] Specifically concerning the Crown’s theory, counsel cautioned over the inherent dangers of wrongful conviction when a guilty verdict is dependent entirely on one witness or witnesses who are proven liars and wholly unreliable. In this instance, he submitted that the Crown’s case rested entirely on Sukhdeep’s evidence. The totality of Sukhdeep’s deceit, his substantial inconsistencies, and the dramatic changes in his testimony rendered his evidence incapable of supporting a conviction against Manjot. Counsel described his evidence as being riddled with land mines. Stepping on one land mine would trigger the explosion of several others. His modus operandi in his testimony was to cover up, to deny, and then to lie or deflect the blame on others. He admitted to this behavioural pattern only when he got caught. Counsel outlined several instances in Sukhdeep’s testimony to illustrate his point.

[46] Counsel expressed similar concerns for Satnam’s testimony and urged the court to find him entirely incredible and unreliable. He said that his evidence was tainted and “all over the map”. On the one hand he could not remember the details concerning the incident. On the other, he was able to recall specific details that were remarkably similar to the details outlined by Sukhdeep. In counsel’s view, there was no way that Satnam could recall the details that he did at trial unless he was coached by somebody about what to say.

[47] For the balance of the witnesses, counsel raised concerns over the range of multiple inconsistencies. With respect to Iknoor, counsel submitted that his evidence was unreliable. He described Iknoor to be engaged in reverse engineering. He knew that he would be confronted with evidence at the trial about the fight and so he tried to come up with contradictory explanations. He asked to have an interpreter at the trial when it was apparent from his video statement to the police that he was fluent in English. His admission that he wanted to have an interpreter to “fix” his mistakes from the Preliminary Inquiry undermined his own credibility.

[48] Counsel also raised specific concerns over the in-dock identification of Manjot by the various witnesses. He submitted that such identification could be deceptively credible. Relying on R v. Khela 2009 SCC 4, [2009] 1 S.C.R. 104, Counsel cautioned the Court about the risks of a wrongful conviction where the finding of guilt for an accused rests on the testimony of a single witness of doubtful credit or veracity. He added that any confirmatory evidence had to be independent of the unsavoury, (Vetrovec) witness. Moreover, the independent confirmation would have to relate to other evidence that would support the credibility of the unsavoury witness in question. In other words, the confirmatory evidence would have to be capable of restoring the trier’s faith in the relevant aspects of the witness’ account. Finally, the more profound the issue of a witness’ trustworthiness issues, the more cogent the confirmatory evidence would have to be.

[49] Counsel likened this case to R. v. Tebo where the only direct evidence to the effect that the accused was the person who participated in the robbery came from an in-dock identification of him. The problem in that case was that the complainant was not shown a photographic line up. The Ontario Court of Appeal concluded that even if the jury were entitled to consider the in-dock identification, the jury should have been told forcefully that it should give virtually no weight to it. In R v. Sandhu, the court found the evidence to be inadmissible because its prejudicial value outweighed its probative value.

[50] In this instance, counsel noted that the complainants were not shown any photographic line-up. Other than Sukhdeep, neither of them knew Manjot prior to the fight. Manpreet adopted his preliminary inquiry evidence that he assumed the man with the axe to be Manjot on the basis of his build and the turban he was wearing but he also argued that he never saw Manjot’s face. The Hundal Brothers and Iknoor each gave different and contradictory descriptions of the man with the axe. The description of a tall-built guy with a turban could apply to any number of Sikh men in the community. In these circumstances, counsel urged the court to either reject the in-dock identification at trial as inadmissible or to otherwise give it no weight.

Analysis

[51] There is one overriding difficulty with this case: on the evidence before the court, it is impossible to come to any findings concerning the identity of the perpetrators. Although there is no question that Manpreet and Kamaldeep, who participated in the fight, were injured, Manpreet, much more severely than Kamaldeep, it is impossible to know who among the as many as 16 – 20 guys assaulted them. It is also difficult to conclude that there was any one particular common intention to bring weapons to the fight or that the common intention was formed only on one side of the fight.

[52] On the evidence before the court, the fight happened very quickly and chaos ensued. As many as two to three individuals were masked. Upwards of eight people were dressed in black. A number of individuals had tire irons. There may have been as many as 16 - 20 guys at the fight. None of the witnesses actually testified to seeing Manpreet being stabbed or Kamaldeep being hit in the head. The descriptions of the person wielding an axe and the person who commented on having a blade provided by the various witnesses who testified, taken at their best, did not extend beyond generic ones that could describe any number of men with a height in the range of six feet or so, who are Sikh, and who may or may not have worn turbans, patkas, or du-rags.

[53] As to the existence of a common purpose, the evidence suggests that the guys who went to the fight may have had different and possibly competing intentions. The evidence supports a finding that Amandeep wanted to have a rematch following his humiliating loss in his fight with Iknoor on March 13 but does not extend to a common purpose to bring allies to the fight, and much less to the idea that those friends would have been told to bring weapons to the fight. Just as that first match was one-on-one, if Amandeep’s objective were to vindicate his own reputation, one would expect Amandeep to pursue a one-on-one rematch. Anything other than that would suggest that he could not fight his own battles and needed the intervention or support of others. The fact that it was Sukhdeep who rounded up his friends to come to the fight suggests that he may have had his own objectives or reasons to encourage his cousin to have another fight with Iknoor.

[54] Similarly, at Iknoor’s end, the guys who were aligned with him were impatient to get the fight going. Manpreet was into marital arts, as was his friend, Eddie. The evidence before the court is sufficient to support the inference that Iknoor and his allies saw Amandeep’s invitation to a rematch as an an opportunity for a fight.

[55] Finally, with respect to the weapons, there was no credible evidence that Amandeep called for weapons or that he had any of his own. The suggestion that Amandeep had a tire iron in his pocket made no sense, particularly since he did not own his own car or drive there in his own car. If he wanted to have a weapon, one might expect him to bring an object that would be more readily available to him.

[56] In contrast to this observation, Kamaldeep’s deliberate efforts to collect the tire irons on the ground even when his brother was critically injured raises a very strong possibility that Iknoor and his friends, including the complainants, were the ones who brought the tire irons to the fight. It further raises the possibility that Iknoor and his allies were just as reckless with the tire irons as whoever it was who brought the other weapons. It makes no sense that Kamaldeep would have had the foresight or reason to collect the tire irons if they did not belong to him or his friends. Why would he seek to protect his opponents, especially when one of them may have injured his brother?

[57] Specifically with respect to the witnesses who testified, I find that none of them were reliable. They all presented with internal inconsistencies and contradictions. Their stories evolved from widely divergent accounts to a narrative that coalesced mainly around Manjot, but also Gurviv, as the two principal perpetrators. This gave the court grave concerns about making any findings and obliterated any possibility of findings of guilt beyond a reasonable doubt.

[58] For starters, with the exception of Satnam, the versions of events described by each of the witnesses varied in material ways between their statements to the police, their evidence at the preliminary inquiry and then at trial. In the case of Sukhdeep and Iknoor, the various permutations to the narrative shifted depending on the particular advantage that each witness sought to achieve at a particular point in time.

[59] Most illustrative of the evolution in the core narrative was Sukhdeep’s admission that from the beginning he tried to mislead the police to protect himself. Upon his arrest, he told the police that he was not at the fight: “I know what this is about, but I wasn’t there.” In his cross-examination at trial, he admitted that his answer was planned to mislead the police. But in his testimony at the preliminary inquiry when confronted with this particular statement he denied having said it at all, even though by then he was under oath and even though his agreement to testify at the preliminary inquiry held out the prospect that the charges against him would be dropped. At the trial Sukhdeep was given the opportunity to refresh his memory and to explain the contradiction between his statement to the police and what he said at the preliminary inquiry. Even when he was shown both statements he tried to suggest that his blatant lie at the preliminary inquiry concerning his initial statement to the police on March 19 was not a lie.

[60] Moreover, Sukhdeep’s method of denying, covering up, minimizing and when caught in the lie, deflecting and blaming others was endemic to his testimony. Although the outer contours of his narrative could be held to support aspects of the Crown’s theory, time and again Sukhdeep admitted that he would lie to get away from trouble. This admission undermined his overall credibility. In this regard I accept the submissions from all three accused that in behaving in this manner, Sukhdeep exhibited all the qualities of a jailhouse informer. I further agree with Mr. Paradkar’s caution that Sukhdeep’s testimony was riddled with land mines. To even try to parse out the truths from Sukhdeep’s clear misrepresentations would run the risk of a wrongful conviction.

[61] The suggestion that Iknoor should be considered a peacemaker in the whole dispute was unsupported by the evidence. If he were such a peacemaker, and he had concerns that Amandeep and his friends would show up at a fight with weapons, why would he go at all and why not suggest a peaceful way to resolve whatever difference was in play between himself and Amandeep or possibly even Satnam? When measured against his actual conduct, Iknoor’s view of himself as a peace-maker was preposterous and outright dishonest.

[62] To illustrate this finding I note that at the preliminary inquiry he said that he did not have any knowledge about the tire irons. He suggested that they must have just been there. When pushed he said that Sukhdeep had a tire iron. Then at trial the narrative shifted remarkably with a deliberate attempt to put the tire irons in Amandeep’s hands. In cross, he retreated to a narrative that returned the tire irons in Sukhdeep’s hands. Furthermore, in his description of the fight, Iknoor converted his role of a peacemaker to that of a victim. He said at trial that the two guys with the hoodies and the bandanas took a hold of him and tried to bring him to the back of the IMAX theatre. But then he said that these same two guys were the ones who assaulted the Hundal brothers. Considering that the whole melee unfolded over no more than a couple of minutes and that there was chaos during those two minutes, Iknoor’s account would have the perpetrators doing very different things simultaneously. That just could not be.

[63] In the case of the Hundal brothers and their testimony, I find that they were motivated primarily by their wish to identify the perpetrators and to bring them to justice. Their narrative evolved to coincide with the narrative that was gradually coalescing around the identities of Manjot and Gurvir. This was evident in the different descriptions that they gave for the perpetrators. Going chronologically, in his statement to the police, which was very detailed, Manpreet described the person who stabbed him as a “random guy” and said that he did not see his face. He said he could not remember what the person was wearing. Similarly, Kamaldeep said that he did not see the face of the man with the axe. He was focused on the axe when he saw it come out and he said that he did not have any time to look at him or to size him up. In short, neither complainant identified Manjot or Gurvir as the persons who did the stabbing or the assault with the axe. They merely placed them at the fight with weapons.

[64] By the time of the trial, almost three years after the incident, both Manpreet and Kamaldeep gave substantial descriptions of the perpetrators that coincided with the physical descriptions for Manjot and Gurvir. By then, the complainants would have seen Manjot and Gurvir both at the preliminary Inquiry and at trial. Kamaldeep thought that the mask on one of the guys slipped and that he caught a glimpse of the person with a blade. At trial he thought that the man with the axe had a turban of sorts but he also agreed that he told the police that he was not sure if that person wore a turban or any head covering other than a hoodie. When challenged on his memory of the perpetrators, Kamaldeep’s descriptions were vague and general that could correspond to any number of individuals who were Sikh or Punjabi.

[65] Manpreet’s explanation that he remembered things differently at the time of the trial was far from convincing; it did not make any sense. Kamaldeep was not asked to explain any particular differences but he readily admitted that he did not get a good look at the person with the axe. If anything, considered in its totality, the complainants’ respective testimony on the accuseds’ identities underscored its evolution, causing the court to question the respective reliability.

[66] As a further concern, in light of the admission by both brothers that they talked about the incident with family and friends, I find that their evidence was tainted and unreliable.

[67] On the specific issue of Kamaldeep’s varying description of the man with the blade, I note the following. Kamaldeep purported to give an initial statement to the police right at the hospital. The police officer recorded the description of that person as “thin”. In his subsequent formal statement to the police Kamaldeep did not describe that person as “thin”. At trial Kamaldeep insisted that the description “thin” was incorrect. This was a critical point for Gurvir, because the court’s acceptance of the initial police report would disqualify him as the perpetrator with the blade given his height and substantial build.

[68] The Crown challenged the accuracy of the officer’s initial report by noting the various other flaws and the circumstances under which Kamaldeep provided that particular statement. Counsel for Gurvir submitted that the report should be admitted and accepted as reliable because Kamaldeep adopted everything else in the report.

[69] Given the number of other inconsistencies in Kamaldeep’s testimony and his fundamental admission that he did not see the face of the person with the knife, I don’t find it necessary to rule on either the admissibility of the initial police report or the weight to be given to it. I note parenthetically that had this report been the only source of evidence, I would have been inclined to admit it, but the weight to be given to it would have been limited. While I recognize the sense of urgency described by the officer to obtain a statement as soon as possible given the circumstances of the incident, the officer should have used reliable means to record his statement. The technology exists and existed in 2013 for the officer to obtain a better recording of Kamaldeep’s statement. Morever, even with all the urgency in play, one has to wonder about the reliability of Kamaldeep’s statement given his own injury and the fact that Manpreet’s life was in question at that particular point in time.

[70] Finally, with respect to Satnam’s testimony, I find that he presented a narrative designed to offer a version of events that would benefit his cousin Amandeep and possibly Sukhdeep. Not having given any statement to the police at any time, and not having participated in the preliminary inquiry, Satnam’s purported ability to recall minute details only regarding those aspects of the incident, which if believed, would offer a defence for Amandeep was highly suspect. This concern was validated by Satnam’s own admission that he was selective as to when and how he disclosed certain information. The concern was further validated by his admission that he had numerous opportunities to talk about the incident with family, friends and with Amandeep.

[71] I have to wonder whether Satnam was pressured by the extended family to come to court with a version of events that he may or may not have fully grasped but that he was asked to present to the court. His admission that he spoke about the incident with Amandeep on a number of occasions, and that he also spoke about it with family and friends would support such a conclusion. This would explain some of his more ludicrous responses as well as certain inconsistencies which he did not appreciate to be undermining his own credibility. This concern alone also raised the prospect of significant tainting of the evidence with the consequent implication that Satnam’s testimony is simply unreliable.

[72] Satnam may have also had a distinct motive to lie. On the evidence before the court a plausible alternative theory to the case was that the original dispute was between Iknoor and Satnam over Iknoor’s girlfriend. Such a theory could be supported by the evidence that the phone call from Iknoor on March 13 was received on Satnam’s phone and that Satnam was the one who attended Sheridan College with Iknoor. It would also explain Satnam’s very evident attempt to distance himself from his own involvement in the fight and go as far as to suggest that he did not know Iknoor, as well as the various inconsistencies in his narrative.

[73] Apart from concerns with Satnam’s reliability or motives underlying his testimony, there is no getting around the observation and finding that as Satnam got deeper into his testimony and was confronted in cross-examination with difficult questions his answers became that much more extraordinary, implausible and incoherent. One illustration of this was his engagement with the question as to what the original dispute was even about. Quite incredibly he testified that to the day of his testimony he still did not know what the dispute was about and when pushed he suggested that even Amandeep did not know:

Mr. Posner: Q. Okay. So when you got into that car after the stabbing, at that – at that point you had no idea what this controversy was about, right? That’s your evidence?

A. Still did not have any idea.

Mr. Posner: Q. That’s interesting. I’m asking you however, is it your position that when you drove away in a car after a stabbing when – that you had no idea, not even the slightest clue what the controversy was that needed to be worked out?

A. I do not know what had happened between Iknoor and Aman.

Q. Right. So you – you said you and Amandeep were in the same position, you were both …

A. Yes.

Q. ….peacemakers, yeah?

A. Yes.

Q. Okay. Now if you’re a peacemaker you need to know what the conflict is about. Do you agree with that?

A. That is why we had gone to talk, talk about it.

Q. Well, just a moment. We know that on March 18 th you, you had already witnessed your cousin and good friend Amandeep get violently assaulted by Iknoor, right?

A. Yes.

Q. Well. By – at that point when you went home that night, you knew there was some heavy-duty conflict and controversy between Amandeep and Iknoor right?

A. We felt there must be something that he came over, but what it was, did not know that.

Q. Okay. So, so you said to Amandeep – your – your cousin you’re testifying for, you said to him either that night, or I assume it’s that night or when he sobered up, man, what was that all about? What’s the problem between you two?

A. Yes. He said even I don’t know.

[74] While I am prepared to recognize that Crown counsel did her best to advance a plausible theory of what happened in this case, that theory could not possibly get over the hurdle of guilt for any of the accused beyond a reasonable doubt. The fact of the assaults on the Hundals is undeniable. But the particular actors are in doubt. Given the multiple and conflicting versions of events and the evolution of those versions, I am unable to decide whom to believe. Worse than that, I cannot believe any of the witnesses.

[75] The law is clear that where after a careful consideration of all the evidence the trier of fact is unable to decide whom to believe, the trier of fact must find the accused not guilty, see R. v. H.(C.W.) (1991), 68 C.C.C. (3d) 146 (BCCA).

[76] It is also important to remember that the court’s role is not to investigate, identify perpetrators, or reconcile competing versions of what happened. The court’s task is to determine whether the Crown has proven each and every element of an offence beyond a reasonable doubt. In this instance, the only question is whether the Crown was able to prove beyond a reasonable doubt that Manjot, Gurvir and Amandeep are guilty of assault and aggravated assault. In all the circumstances of this case, I am not satisfied that I can come to such a conclusion.

11 (b) Application

[77] The three accused brought a joint application for a stay of proceedings based on a violation of s. 11(b) of the Charter. Given the particular trajectory of this trial, the repeated difficulties with scheduling, and the bringing of the application, virtually at the conclusion of the trial, counsel were encouraged to hold off on their submissions until after the outcome of the trial on its merits. Defence counsel insisted that they preferred to argue the application in its entirety even if the court were to reserve its decision. The court, with some reluctance agreed to the proposed approach, even though it prolonged the trial by an additional two days.

[78] In light of the outcome of the case, the issue of delay is moot and I do not need to rule on the Application. However, since I heard submissions, I feel obliged to comment on its probable outcome on the merits. Having regard for the very able and thorough submissions by all of the parties, I would have dismissed the application for three overriding reasons. First, I find that the delays that were identified in the period between March 2013 and February 2016 were the result of a combination of defence delay and inherent delay. Second, the delays during the trial were due in part to a miscalculation over the length of the trial by both the Crown and the defendants. Then, in the course of the trial, there was a convergence of illnesses of a jury member, of counsel, of a witness, and then even one of the accused. These problems were compounded with difficulties with late disclosure of certain Facebook communications. These difficulties I consider to amount to a combination of exceptional circumstances and inherent delay.

[79] The third round of delays developed with the need to find an additional two weeks of trial at the end of March 2016 so that the defendants could proceed with their respective defences. Amandeep was already into his defence but the belief was that he required one to two additional days. The other two accused each said that they required two days. There was then an anticipated need for closing submissions with the result that in April 2016, the estimated additional time for the trial was two weeks. That resulted in the setting of dates into November and December 2016. Further difficulties with scheduling arose when counsel for Amandeep, now Justice Alison Mackay, was appointed to the Ontario Court of Justice. (Thankfully the most recent appointment of Jaki Freeman, Amandeep’s second counsel, also for the Ontario Court of Justice, will not have an impact on the conclusion of this case).

[80] The sum of these delays can only be described to be the result of exceptional circumstances, inherent delay and some defence delay. I expressly reject the suggestions that the Crown should have considered a severance application as late as September 2016, well after its own case was closed and the defence was in progress. Given the stage of the trial, and keeping in mind that the Crown had concluded its case, I doubt that such an application, even if it were brought, would have been granted, or that it would have expedited the trial. Similarly the suggestion that the Crown should have changed her schedule in April and agreed to the four dates that all of the defendants said they could attend, when the representation by the defendants at that time was to the effect that the three accused needed six to eight additional trial dates, was unfair and unconvincing. Counsel for all parties have the responsibility to bring forward estimates for the time they require for their case, and then take the corresponding responsibility of those estimates if they turn out to be inaccurate. The fact that the accused changed their strategies by the time the trial resumed and only used a fraction of the time they requested does not change their original request back in April of 2016.

Conclusion

[81] In light of the above analysis, I find Amandeep Jodha, Manjot Chadde and Gurvir Deol not guilty of aggravated assault and of assault with a weapon. The 11(b) Application for a stay is dismissed as moot.

Tzimas J.

Released: June 16, 2017