COURT FILE NO.: CRIMJ(P) 1987/16
DATE: 2018 04 05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
C. Coughlin and V. Aujla, Crown Counsel
RESPONDENT
- and -
PRABHJEET SINGH
L. Salloum, Counsel for Prabhjeet Singh
ABHIJEET NAGRA
R. Gadhia, Counsel for Abhijeet Nagra
DILSHER SINGH
N. Rozier and K. Perchenok, Counsel for Dilsher Singh
APPLICANTS
HEARD: March 2nd, 2018
REASONS FOR DECISION- DIRECTED VERDICT APPLICATION
LEMAY J.
[1] The three accused in this case are each charged with one count of unlawful act manslaughter. The charges arise out of an incident that took place on March 6th, 2015 at Fresh Line Foods in Mississauga.
[2] The matter has been proceeding before me with a jury. Evidence started on February 12th, 2018, and the Crown closed its case on February 28th, 2018. Immediately after the close of the Crown’s case, counsel for Mr. Dilsher Singh advised that she would be bringing an application for a directed verdict on behalf of her client. Counsel for Mr. Nagra advised that her client would be joining in this application. Counsel for Mr. Prabhjeet Singh stated that he would not be taking a position on this application. The Crown opposes the application.
[3] The matter was argued on March 2nd, 2018, on the basis of materials that the parties filed, and oral argument. I dismissed the application for written reasons to follow. These are those reasons.
The Evidence So Far
[4] We have heard testimony from a number of witnesses, and received two separate videos into evidence. One of the videos is a recording of the actual incident. I do not intend to review this evidence in detail, as it is not my role to find facts. I am making no factual conclusions on the evidence that has been presented so far and nothing in these reasons should be taken as a factual conclusion. However, a summary of the evidence heard to date is necessary to understand my reasons for dismissing the application.
[5] The incident on March 6th, 2015 involves the application of an air hose to the posterior area of Mr. Gurvinder Singh. Mr. Gurvinder Singh subsequently succumbed to injuries that flowed from air entering his body. The accused were all charged with unlawful act manslaughter.
[6] There are five pieces of evidence that are relevant to my determination on the directed verdict motion. First, there is the videotape of the actual incident. It shows a portion of the factory floor, and the largest machine in the video has been described by a number of witnesses as a melon peeler.
[7] A summary of what appears to be shown on the videotape is as follows:
a) A couple of minutes before the incident takes place, Mr. Gurvinder Singh, the deceased, appears to put an air hose next to the posterior of Mr. Nagra.
b) Then, Mr. Nagra appears to grab Gurvinder Singh. Mr. Dilsher Singh and Mr. Prabhjeet Singh then approach Gurvinder Singh.
c) Mr. Nagra moves Gurvinder Singh towards the conveyor belt on the melon peeler, while Dilsher Singh tries to remove the air hose from Gurvinder Singh’s hand. There are efforts by all three of the accused to attempt to get the air hose from Gurvinder Singh’s hand.
d) Ultimately, Prabhjeet Singh gains control of the air hose, Mr. Nagra continues to pin down Gurvinder Singh, and Dilsher Singh comes around to the other side of the conveyor belt and holds down one of Gurvinder Singh’s arms.
e) Prabhjeet Singh by-passes the safety on the air hose, and turns it on. He then approaches Gurvinder Singh who is kicking, and trying to brush Prabhjeet’s hand away. The other two accused are holding Gurvinder Singh.
f) Mr. Nagra and Dilsher Singh continue to hold Gurvinder Singh, while Prabhjeet Singh applies the air nozzle in the area of Mr. Gurvinder Singh’s buttocks.
g) The accused then release Gurvinder Singh, who staggers away and then collapses to the floor.
[8] Second, there is the evidence from two employees of Fresh Line Foods. They both testified that the compressed air system operated at approximately 90 to 110 pounds per square inch (“PSI”). As a result, if air came out of one of the air hoses unregulated by a nozzle, it was likely coming out with a pressure of 90 to 110 pounds per square inch (“PSI”).
[9] Then, there is the evidence of a Mr. Gurmail Singh, who was a relative of Gurvinder Singh. Counsel for Dilsher Singh stated that the evidence of Gurmail Singh disclosed the following two points:
a) That Mr. Gurmail Singh had no concerns when he was advised that Gurvinder Singh had been engaged in horseplay with an air hose, which is equipment he uses in the course of his own employment.
b) That Mr. Gurmail Singh suggested that his concerns arose after speaking with doctors. At that point, he learned about the injuries that Gurvinder Singh suffered, and developed an unfounded belief that the air hose had actually been inserted into Gurvinder Singh’s rectum.
[10] My review of my trial notes does not show precisely the same evidence, particularly as it relates to the use of the air hose at Gurmail Singh’s workplace. However, for reasons I will outline below, it is not necessary for me to resolve this discrepancy.
[11] Then, there is the evidence of Dr. Rebekah Jacques. In her testimony, Dr. Jacques testified that:
a) An injury to the colon of the type that Mr. Gurvinder Singh suffered from can arise from air pressure as low as 4 PSI.
b) The injury is not caused by the pressure of the air, but by the rapid rate at which the air is introduced.
c) The mechanism of injury does not require the air to be directed at the anus because of the fact that the body forms a funnel towards the anus.
d) Injuries like the one that the deceased suffered can occur from a distance, and even where the air is introduced over clothing.
[12] Finally, a video was filmed by one of the investigating officers the next day. It shows the same air hose used to injure Gurvinder Singh being used on a peeled pineapple by another one of the investigating officers. The effects of the air on the pineapple are shown in the video.
[13] As I have said, I am not making findings of fact. However, these were the key points of evidence that the parties pointed to in advancing their arguments.
The Arguments of the Parties
[14] Prabhjeet Singh is not taking a position on this motion. For the purposes of this motion, Dilsher Singh and Mr. Nagra both accept that there is evidence from which a properly instructed jury could infer that an unlawful act took place. However, they both argue that there is no evidence before the Court from which a properly instructed jury could infer that a reasonable person applying an objective standard could have foreseen that an injury could have resulted from using the air hose in the manner in which the accused used it.
[15] In support of this position, counsel for Dilsher Singh argues that I must determine whether there is any evidence that would satisfy the jury of the question before it. Counsel argues that there is an absence of evidence in this case. Counsel also argues that the evidence that the accused were not trained on the use of the air hoses is also relevant to the directed verdict application. She also argues that the inferences that the Crown seeks to draw are speculative, and are not properly inferences that should be permitted. Finally, she argues that the fact that there was harm in this case is not a fact that should be considered in assessing whether the harm was objectively foreseeable.
[16] Counsel for Mr. Nagra adopted these submissions, and also argued that there is no objective understanding that the behavior of the accused in this case would cause objective harm.
[17] Counsel are seeking a directed verdict of acquittal. In the alternative, counsel for Dilsher Singh argues that the jury should only consider the lesser included charge of assault.
[18] Mr. Coughlin argues that there is evidence from which the jury could infer that a reasonable person could have objectively foreseen the risk of bodily harm which was neither trivial nor transitory. In particular, he points to the sequence of events on the videotape, the video of the pineapple, the sound that the air hose makes when it is being used, and the fact that the safety had to be by-passed to turn the air hose on as being evidence from which the jury could conclude that a reasonable person would have foreseen the risk of bodily harm.
The Law
[19] There are two points of law that must be considered in determining this motion. First, there are the elements of the offence. Second, there is the test that the Court must apply in a directed verdict. I will set out the legal principles relating to each issue.
a) The Elements of the Offence
[20] In this case, the charge is unlawful act manslaughter. It has two elements. First, there must be an unlawful act. For the purposes of this motion, I do not need to consider the issue of an unlawful act, as it was conceded by counsel for the purposes of this motion.
[21] Second, there must be objective foreseeability of bodily harm. Bodily harm is harm that is neither trivial or transitory (see, for example, R. v. Groulx 2013 ONCA 690 at paragraph 17).
[22] The objective foreseeability test is set out by McLachlin J. (as she then was) in R. v Creighton (1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3). In explaining the nature of the objective test, she stated (at paragraphs 119 and 120):
I agree with the Chief Justice that the rule that the morally innocent not be punished in the context of the objective test requires that the law refrain from holding a person criminally responsible if he or she is not capable of appreciating the risk. Where I differ from the Chief Justice is in his designation of the sort of educational, experiential and so-called “habitual” factors personal to the accused which can be taken into account. The Chief Justice, while in principle advocating a uniform standard of care for all, in the result seems to contemplate a standard of care which varies with the background and predisposition of each accused. Thus an inexperienced, uneducated, young person, like the accused in R v. Naglik, 1993 CanLII 64 (SCC), [1993] 3 S.C.R. 122, could be acquitted, even though she does not meet the standard of the reasonable person (reasons of the Lamer C.J., at pp. 145-146). On the other hand, a person with special experience, like Mr. Creighton in this case, or the appellant police officer in R v. Gosset, supra, will be held to a higher standard than the ordinary reasonable person.
I must respectfully dissent from this extension of the objective test for criminal fault. In my view, considerations of principle and policy dictate the maintenance of a single, uniform legal standard of care for such offences, subject to one exception: incapacity to appreciate the nature of the risk which the activity in question entails.
[23] It is clear that the test for determining whether the risk of bodily harm was foreseeable is an objective one, and it does not consider the different knowledge bases of different people.
b) The Test for a Directed Verdict
[24] The test for a directed verdict is the same as a test for a committal in the Provincial Court. A description of the test is provided in R v. Charemski (1998 CanLII 819 (SCC), [1998] 1 S.C.R.679) where McLachlin J. stated (at paragraph 22):
If the evidence is all direct evidence, the trial judge’s task on a motion for a directed verdict is quite simple. An absence of evidence on an essential element will result in a directed acquittal. The existence of evidence on every essential element will result in dismissal of the motion. It remains only for the jury to decide who it chooses to believe and what evidence it decides to accept or reject. Where the case is based on circumstantial evidence, i.e., where any of the elements are not established by direct evidence, the task of the trial judge is more complicated. The Crown adduces evidence from which is submits facts in issue can be inferred from facts not in issue. In order to determine whether a properly instructed jury could reasonably convict, the judge must determine whether, assuming the circumstantial facts are proved, it would be reasonable to make the inference necessary to establish the facts in issue.
[25] Although McLachlin J. was speaking in dissent, the only disagreement in Charemski was over whether sufficient evidence had been led in that case. As a result, the test in Charemski is the applicable test (see R. v. Papadopoulos [2004] O.J. No. 2766 (S.C.J.) at paragraph 44)
[26] There are some other relevant principles that emerge from the case law. In particular, in R. v. Arcuri (2001 SCC 54, [2001] 2 S.C.R. 828), it is noted that the preliminary inquiry judge does not himself draw inferences from the evidence (see paragraphs 30 and 33). Similarly, on a directed verdict it is not my task to draw inferences from the evidence.
[27] In addition, Arcuri addresses the question of whether the task of a preliminary inquiry judge changes if the defence leads exculpatory evidence. McLachlin C.J. concludes that the test is essentially the same, regardless of whether the defence leads exculpatory evidence (see paragraph 29). Similarly, where there is exculpatory evidence before the jury in the Crown’s case, the test for a directed verdict does not change.
Analysis and Conclusions
[28] Defence counsel correctly argue that the fact that the deceased actually suffered an injury does not, in and of itself, mean that the injury was reasonably foreseeable when the objective standard is applied. Therefore, my analysis of whether bodily harm to Gurvinder Singh was reasonably foreseeable should not be affected by the fact that bodily harm actually resulted.
[29] Defence counsel argue that the fact that the accused were not trained on this air hose is a relevant consideration in assessing the objective foreseeability of risk. I disagree. The test in Creighton, supra is clear that objective foreseeability is not based on the amount of training that a party has received. It is an objective test that applies equally to the rich, the poor, the wise and the inexperienced, regardless of any peculiar knowledge they may have.
[30] Defence counsel also argue that the evidence of Gurmail Singh tends to support an inference that the reasonable person would not have foreseen the risk of bodily harm in this case. That may be true, although I have a different recollection of Gurmail Singh’s evidence than defence counsel does. However, it is not relevant. It is not my role to weigh the evidence; instead, it is my role to determine whether there was evidence that, if believed, could be relied upon by a properly instructed jury to conclude that it was reasonably foreseeable that the activities that the accused engaged in could have led to bodily harm.
[31] In other words, on this motion I must take the Crown’s case at its highest. In making my assessment, I should not be weighing the potentially exculpatory evidence against the inculpatory evidence. I should only be assessing whether there is, in fact, inculpatory evidence. Weighing the exculpatory evidence against the inculpatory evidence at this stage of the process risks usurping the function of the jury (see R. v. Coke [1996] O.J. No. 808 at paragraph 10)
[32] This brings me to the evidence of the pathologist. Counsel for Dilsher Singh and Mr. Nagra argue that the pathologist’s evidence demonstrates that an injury could have been suffered by Gurvinder Singh even if the air had been introduced to his rectal area at a level as low as 4 or 5 PSI, and even if the air nozzle had been pointed away from Mr. Gurvinder Singh’s anus. Counsel argue that this evidence demonstrates that the injury was not reasonably foreseeable because of the low level of air pressure that would be required to cause an injury.
[33] I reject this position for two reasons. First, this argument focuses on the minimum air flow required to cause an injury rather than on the risk of injury associated with the use of this air hose in the way that these accused used it. The question before the jury is not whether harm was reasonably foreseeable from the use of any air hose, with any volume of air. The question before the jury is whether it was reasonably foreseeable that this air hose, in this case, used the way that the accused used it could have caused harm.
[34] Similarly, the fact that the air hose did not have to be pointed at Gurvinder Singh’s anus to cause the injury is irrelevant. There is evidence in this case (from the video) from which the jury can infer that the air hose was, as a matter of fact, pointed at Gurvinder Singh’s anus.
[35] The question before the trier of fact is not whether harm would have been reasonably foreseeable in different circumstances. The mere fact that the harm could have been caused in different circumstances where use of an air hose would appear unlikely to actually cause harm does not change whether it was reasonably foreseeable that harm would be caused in the factual circumstances before this jury.
[36] To put it another way, the fact that the same harm could result from using an air hose with air pressure of 100 PSI and with air pressure of 10 PSI does not mean that the harm is not foreseeable in either case. The fact that the outcome (some harm) might be the same in two different cases does not mean that the objective foreseeability of harm has to be the same in those two different cases.
[37] The second problem with this argument is the evidence in this case. As long as there is evidence from which a properly instructed jury could conclude that there was an objectively foreseeable risk of bodily harm from using the air hose in the proximity of Gurvinder Singh’s posterior, then the accused cannot meet the test for a directed verdict.
[38] In this case, the evidence that the jury, if properly instructed, could rely on to find objective foreseeability of bodily harm includes the following:
a) The events in the video. These are open to more than one interpretation, as there is no sound. However, one interpretation that is open to the jury is that Mr. Gurvinder Singh put the air hose next to Mr. Nagra’s posterior and that the accused decided, in return, to put the air hose next to Mr. Gurvinder Singh’s posterior. From this fact the jury can infer, even though it is not seen, that the air hose was put next to Gurvinder Singh’s posterior.
b) The events in the pineapple video. This video has sound, and the sound that the air hose makes when it is turned on might support a finding that bodily harm from the use of the hose in the way that these accused used it was objectively foreseeable. Similarly, the damage that appears to be caused to the pineapple by the air from the air hose might also support a conclusion of objective foreseeability of bodily harm.
c) The evidence from witnesses about the power of the air hose, and the noise that it makes, may be sufficient for a jury to draw inferences about the reasonable foreseeability of harm from holding this air hose close to someone’s body.
d) The common sense and life experiences of the jury could cause them to conclude that an air hose that pumps out compressed air that is pressurized between 90 and 110 PSI is objectively dangerous when held close to another person.
e) The evidence from the video could also cause a trier of fact to infer that Gurvinder Singh does not want to give up the air hose and, once it has been turned on, he does not want it near his body. This evidence could also be used to infer objective foreseeability of harm.
[39] Most importantly, however, there is Mr. Coughlin’s final observation about the evidence. To turn the air hose on in the way that Prabhjeet Singh did, it was necessary to by-pass a safety mechanism. It is certainly reasonable for a jury to conclude that bypassing a safety mechanism made the use of the air hose unsafe and dangerous. As a result, a jury could conclude that there was a risk of bodily harm in using the air hose in the manner in which Prabhjeet Singh used it. There is also evidence, being the pineapple video and the sound that the air hose makes when turned on, that a jury could conclude that all three accused knew that the safety mechanism had been bypassed and that all three of the accused should have been aware of the risk of bodily harm that would flow from using the air hose.
[40] I make no comment on the strength of this evidence, as I am not the trier of fact. However, I should deal briefly with the argument that all of the inferences in this case are speculative. In support of this argument, Ms. Rozier pointed to R. v. Morrisey ((1995) 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 at 530). In that case, Doherty J.A. stated that inferences have to flow logically and reasonably from established facts. Otherwise, they are speculation and should not be permitted.
[41] In this case, all of the inferences that I have set out above flow logically and reasonably from the facts. It does not require a speculative leap, for example, to conclude that a loud air hose emitting air at a fast rate could cause bodily harm when it is held close to another person’s body. The Crown seeks to have the jury draw reasonable inferences from the evidence before them.
[42] For the foregoing reasons, the application for a directed verdict is dismissed.
LEMAY J
Released: April 5, 2018
COURT FILE NO.: CRIMJ(P) 1987/16
DATE: 2018 04 05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
RESPONDENT
- and -
PRABHJEET SINGH, ABHIJEET NAGRA and DILSHER SINGH
APPLICANTS
REASONS FOR JUDGMENT
LEMAY J
Released: April 5, 2018