COURT FILE NO.: CR-18-1087
DATE: 2019 12 11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
H. Gluzman, for the Crown
- and -
AMAAR VERMA
D. Paradkar, for the accused
HEARD: August 7, 8 and 9, and September 10, 2019
REASONS FOR JUDGMENT
PETERSEN J.
INTRODUCTION
[1] On May 22, 2017, a physical altercation occurred between two men at the home of Amaar Verma in Mississauga. Mr. Verma was one of the men involved in the fight. The other man was Rajibir Grewal. They were childhood friends who had recently reconnected after a period of estrangement.
[2] The Crown alleges that Mr. Verma was the instigator. He is accused of attacking Mr. Grewal by stabbing him multiple times with knives, in the back of the neck, head and shoulder. Mr. Verma denies this allegation. He alleges that Mr. Grewal started swinging a knife at him. He testified that he grabbed the knife from Mr. Grewal in order to defend himself and, during the ensuing struggle, inadvertently cut Mr. Grewal’s neck.
[3] Both Mr. Verma and Mr. Grewal were injured as a result of the fight. Both men received medical treatment for their respective injuries, including stitches/staples to close their lacerations. Both men subsequently gave statements to the police about the incident. Each accused the other of being an unprovoked knife-wielding assailant. During his police interview, Mr. Verma admitted to intentionally cutting and stabbing Mr. Grewal, but he asserted that he was acting in self-defence. At trial, Mr. Verma maintained his assertion of self-defence, but also claimed that he had not intentionally stabbed or cut Mr. Grewal.
[4] The police charged Mr. Verma with committing an assault with a weapon, contrary to s.267(a) of the Criminal Code, R.S.C. 1985, c.C-46. Mr. Verma pleaded not guilty to the charge.
ISSUES
Elements of the Offence Charged
[5] Under s.267(a) of the Criminal Code, an assault with a weapon is committed when a person carries, uses or threatens to use a weapon in committing an assault. The definition of “assault” in the Criminal Code includes not only the intentional application of force to another person without their consent (s. 265(1)(a)), but also the threat “by an act or a gesture, to apply force to another person” if the accused “has, or causes that other person to believe upon reasonable grounds that he has, present ability to effect his purpose” (s.265(1)(b)).
[6] There is no dispute that, at some point (either prior to or during the altercation) Mr. Verma took hold of a knife with which he cut Mr. Grewal’s neck. The knife constitutes a weapon within the meaning of the Criminal Code. Whether or not Mr. Verma intended to cut Mr. Grewal is an issue in dispute. His actions would, in any event, constitute an assault because, at minimum, he intentionally held the knife in a manner that threatened to apply force to Mr. Grewal. The essential elements of the offence charged are therefore established beyond a reasonable doubt.
[7] Consequently, the only issue for me to determine is whether Mr. Verma was acting in self-defence.
Self-Defence
[8] Based on the evidence at trial, particularly Mr. Verma’s testimony, I find that there is an air of reality to the defence of self-defence. The Crown therefore has the burden to prove, beyond a reasonable doubt, that Mr. Verma did not act in self-defence.
[9] Section 34 of the Criminal Code states:
(1) A person is not guilty of an offence if
(a) they believe on reasonable grounds that force is being used against them … or that a threat of force is being made against them …;
(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves … from that use or threat of force; and
(c) the act committed is reasonable in the circumstances.
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the
incident;
(g) the nature and proportionality of the person’s response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
[10] There are three requirements to self-defence: (i) the accused must have an objectively reasonable belief that force is being used or that a threat of force is being made against him, (ii) the accused’s subjective purpose in responding to the perceived threat must be to protect himself and (iii) the act committed by the accused to protect himself must be objectively reasonable in the circumstances: R. v. Bengy, 2015 ONCA 397, at para. 28.
[144] The Crown argues that none of these requirements is present in this case. The Crown may, however, disprove self-defence by demonstrating beyond a reasonable doubt that any one of the requirements is not met: R. v. Filli, 2017 ONSC 2883, at para. 156.
Credibility Issues
[11] Mr. Verma’s credibility is a critical issue. The principle of reasonable doubt applies to that issue: R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at para. 10.
[12] Mr. Grewal’s credibility is also a central issue. The Crown’s case rests heavily on his testimony, in addition to physical evidence. He and Mr. Verma gave conflicting evidence regarding who instigated the fight and how the physical altercation unfolded. Their respective versions of the incident cannot be reconciled.
[13] I am mindful that my verdict must not be based on a choice between Mr. Verma’s evidence and that of Mr. Grewal. Rather, the question is whether, on the whole of the evidence, I am left with a reasonable doubt about Mr. Verma’s guilt: R. v. Y. (C.L.), 2008 SCC 2, at para. 6. I may accept some, none or all of each witness’s testimony.
[14] If I accept Mr. Verma’s testimony (or part of his testimony) and on the basis of that evidence, I believe he was acting in self-defence, or have a reasonable doubt as to whether he was acting in self-defence, then I must find him not guilty of the offence charged. However, even if I do not accept Mr. Verma’s evidence, I must consider it in conjunction with all of the other evidence to determine whether the Crown has established beyond a reasonable doubt that he did not act in self-defence: R. v. Reid (2003, 2003 CanLII 14779 (ON CA), 65 O.R. (3d) 723 (Ont.C.A.), at para. 72; R. v. Ibrahim, 2019 ONCA 631, at para. 62.
EVIDENCE
Uncontested Facts
[15] Many of the facts preceding the physical altercation, as well as those in the aftermath of the altercation, are not in dispute. The following is a summary of the uncontested evidence.
[16] Mr. Verma and Mr. Grewal have known each other for most of their lives. They attended the same primary school and grew up living on the same street. They often visited each other’s homes. They are familiar with each other’s families. By their early 20s, they considered themselves to be “best friends”.
[17] Mr. Verma and Mr. Grewal have mutual friends named Harpreet and Mandeep. These four men socialized together regularly. Mr. Verma was very close to all of them. When his mother died in September 2013, Mr. Grewal assisted in her burial. All three friends attended the funeral. All were supportive of Mr. Verma in his grief.
[18] Mr. Verma has an ex-girlfriend named Jasmine. She was a mutual friend of his and Mr. Grewal. Mr. Verma began dating her in 2012. It became a serious relationship. Mr. Verma testified that he wanted to marry her.
[19] One week after his mother died in late September 2013, Mr. Verma went to New York to pursue studies. He lived there for a couple of years. Jasmine moved there to be with him. They cohabited for about a year in New York, then Jasmine returned to Toronto in September 2014. They maintained a long-distance relationship until Mr. Verma moved back to Ontario in September 2015.
[20] While Mr. Verma was living in New York, Mr. Grewal and Jasmine occasionally worked out together at a gym. Mr. Verma was aware of this. On a few occasions, when Mr. Verma returned to Mississauga from New York for visits, he went to the gym with them.
[21] When Mr. Verma returned to live in Ontario in September 2015, he moved into his father’s home in Mississauga. His brother Armaan was studying and living in Toronto at the time but would come home to Mississauga on weekends. Mr. Verma was still in a relationship with Jasmine, but they were not cohabiting. He testified that the relationship “wasn’t really going anymore”. His relationship with Jasmine ended sometime in early 2016.
[22] Between September and November 2015, Mr. Verma was in regular phone and text message contact with Mr. Grewal and their mutual friends Harpreet and Mandeep. In November 2015, those three friends visited Mr. Verma’s home in Mississauga. The reason for their visit and what transpired during the visit are matters in dispute. It is, however, uncontested that Mr. Verma did not see any of the three friends again until May 2017.
[23] In May 2017, Mr. Verma communicated with Harpreet and Mandeep. He suggested that they get together. Harpreet already had plans with Mandeep and Mr. Grewal, so he invited Mr. Verma to join them. The four men met at a sports bar called Boar N Wings in early May 2017, then went to a car show together in Woodbridge. This was the first time that Mr. Verma had seen any of the three other men in approximately eighteen months.
[24] At Boar N Wings, Mr. Grewal informed Mr. Verma that he was engaged to be married. He invited Mr. Verma and Mr. Verma’s brother and father to his wedding. At some point during the evening, Mr. Verma mentioned that he would like to have the three friends over to his house for a barbecue on the upcoming long weekend. He followed up with them in the days following by text message to try to fix a date. They settled on Monday, May 22, 2017 for a barbecue at his house.
[25] That Monday, May 22, 2017, Mr. Verma’s father asked him and his brother to paint the deck of the house. They agreed to do so. They went out to lunch with some family members, intending to start painting later in the day.
[26] Mr. Verma testified that he planned to do the painting in the evening, after the dinner barbecue with his friends. However, he and his brother changed into raggedy clothes after lunch, in preparation for the painting and to do some yard work. Mr. Verma dressed in sweatpants and a sweater. He clipped a utility knife to his waistband. The utility knife is a black fixed-blade knife. It was in a closed sheath.
[27] Mr. Verma messaged his friends to confirm what time they were coming over for the barbecue. Harpreet and Mandeep each responded by text around 3:00 or 4:00 PM and canceled their attendance. Mr. Verma communicated with Mr. Grewal to confirm that he was still coming. It is undisputed that Mr. Grewal specifically asked Mr. Verma whether anyone else was going to be there. Mr. Verma advised that his brother Armaan was home. Mr. Grewal said that he was busy but agreed to drop by. Whether or not he agreed to stay for a barbecue dinner is a matter of dispute.
[28] Mr. Grewal rode his motorcycle to Mr. Verma’s house around 5:30 PM. He was wearing full riding gear. When he arrived, he removed his helmet but kept his motorcycle jacket and riding boots on. He was wearing a sweater underneath his jacket. He used his cell phone to call Mr. Verma from the driveway to advise that he had arrived. Mr. Verma exited the house to greet him on the porch. They shook hands and Mr. Verma put his arm around him in a polite hug.
[29] They went inside the house. Mr. Verma closed the door behind them. Then Mr. Grewal bent over to untie his boot laces.
[30] The details of what happened next are contested. It is, however, undisputed that a physical fight ensued, in which both men were wounded by knife cuts.
[31] Mr. Verma’s brother Armaan was home at the time but was not present when the altercation started. Other tenants of the property were nearby, but none witnessed the beginning of the fight.
[32] Armaan eventually broke up the fight by pulling Mr. Verma off Mr. Grewal, who was pinned on the ground face down with Mr. Verma on his back. By that point, the front door to the house had been opened by bystanders, who stood in the doorway watching.
[33] Mr. Grewal left the house immediately after Armaan pulled Mr. Verma off him. He ran onto a neighbour’s lawn and lay face down on the grass. There is little evidence about Mr. Verma’s movements after Mr. Grewal exited the home, other than his testimony that he started looking for his eye-glasses, which had come off during the fight.
[34] Someone other than Mr. Verma or Mr. Grewal called 911. Ambulances and police cruisers arrived about five minutes after the call was dispatched.
[35] Four police officers who attended the scene testified during the trial. They described what they observed and what they did upon their arrival. Their evidence was largely uncontested and may be summarized as follows.
[36] Mr. Grewal was conscious and lying face down on the grass of the neighbour’s lawn when the police cruisers arrived at Mr. Verma’s address. There was a lot of blood on the back of his head and neck.
[37] Constables Tisdelle and Delmare approached Mr. Verma’s residence while Constable Johnson attended to Mr. Grewal’s wounds. When the ambulance arrived shortly thereafter, paramedics removed Mr. Grewal’s clothing. Cst. Johnson seized the clothing as evidence. Mr. Grewal received first aid and was then transported to hospital by ambulance for further medical treatment.
[38] Mr. Verma’s brother Armaan exited the house as the police officers approached. There was blood on the front of his shirt and on his arms and hands. He was holding two knives. One of the knives was the black fixed-blade utility knife that had been clipped to Mr. Verma’s waistband. The other knife was a folding-blade knife. The officers instructed him to put the knives down, which he did. He laid them down in the grass just beyond the front porch to the house.
[39] Constable Tisdelle testified that Armaan was “emotionally distraught” and appeared to be “in a state of panic”. Armaan needed help and direction, “as if he did not know what was happening”.
[40] Mr. Verma was inside the house when the police arrived. He was covered in blood. Constable Tisdelle testified that Mr. Verma appeared to be in a “state of shock”. He recalled that Mr. Verma could not respond directly to questions, was “staring off straight” and was making utterances about things unrelated to what he was being asked. He noted that Mr. Verma could not follow directions, was unsteady on his feet, and was having trouble controlling his breathing.
[41] Constable Tisdelle advised Mr. Verma that he was under arrest for assault with a weapon. Mr. Verma was not handcuffed because he had wounds on his hands, specifically a cut between his thumb and index finger on his left hand and a cut in the middle of his index finger of his right hand. Constable Tisdelle described both cuts as “open and actively bleeding”. Constable Tisdelle searched Mr. Verma incident to his arrest and found Mr. Verma’s passport on his person. Paramedics provided first aid to Mr. Verma and transported him by ambulance to a hospital for further medical treatment.
[42] Constable Delmar entered Mr. Verma’s residence twice that evening. The first time, upon arrival at 5:56 PM, was to check for other possible victims. He found no other individuals in the house. The second time he entered the premises was at 6:46 PM. He went inside to retrieve clean clothing for someone who was covered in blood and not wearing any shoes (he could not remember who). He recalled that he walked down the main hallway from the front foyer, turned left and then went into a bedroom on the right. Mr. Verma confirmed that this was his bedroom.
[43] Constable Delmar observed blood on the floor in the foyer area and a blood trail extending from the foyer to the kitchen and to the bedrooms at the end of the hallway. He said there was blood “throughout the hallway”. Mr. Verma confirmed during his cross-examination that there was a trail of blood leading from the foyer (where the fight occurred) to his bedroom at the end of the hall.
[44] None of the officers took any photos or videos to document the scene.
[45] The police seized the clothes that Mr. Verma was wearing as evidence.
[46] Constable Kenneth White seized both knives at 6:31 PM and placed them in evidence bags. He was wearing gloves when he collected the knives. He observed and made a note of blood on the handle of the folding-blade knife. He could not recall whether the blade on that knife was open or closed when he seized it. He recalled that the black fixed-blade knife was sheathed when he seized it. He did not observe any blood on the fixed-blade knife.
[47] Mr. Verma and Mr. Grewal were taken to different hospitals. Mr. Verma’s wounds were cleaned, sutured and bandaged. He required 10 stitches for the cut on his left hand and 7 stitches for the cut on the index finger of his right hand. He was not given any medication for pain or to prevent infection.
[48] Mr. Grewal’s wounds were also cleaned and closed. He suffered four stab wounds that required staples or sutures: a 3 cm wound to the rear left side of his scalp, a 4 cm wound to the back of his left shoulder, a 3 cm wound to his left hand (between his thumb and index finger) and an 8 cm wound to the left side of the back of his neck. He required 7 stitches on his left hand, 6 staples on his left shoulder, 13 stables on the back of his neck and 8 staples on his scalp. He was treated with a medication that is used to prevent excessive blood loss caused by major trauma. He was also given intravenous antibiotic medication to prevent infection and fentanyl for pain management.
[49] Both men also had additional minor cuts and scratches on their fingers and hands. Mr. Grewal had a cut across the bridge of his nose and Mr. Verma had a small cut on his forehead. Neither Mr. Grewal nor Mr. Verma had any injuries prior to their physical altercation on May 22, 2017.
[50] Mr. Grewal spoke to a police officer about the incident while he was at the hospital. He and Mr. Verma both went to the police station after they were discharged from hospital. They were interviewed by police and their injuries were photographed. Prior to giving their respective police statements, both were cautioned. Mr. Verma was aware that he was under arrest for assault with a weapon. Mr. Grewal had not been charged but he was aware that he could be charged in connection with the incident.
[51] There is no dispute that Mr. Verma’s statement to the police was voluntary.
[52] Constable Rose Ferraro testified at trial. She did not attend the scene at Mr. Verma’s home. She was briefed about the incident at the police station shortly after midnight on the night of the altercation. She was tasked with collecting and processing some of the evidence.
[53] Among other things, Constable Ferraro swabbed Mr. Verma’s hands at around 1:21 AM. She used one swab per hand, employing the same swab on the back and the palm of each hand. She also photographed both knives. She testified that she examined them visually under regular white light. She observed what appeared to be blood on the folding-blade knife. She removed the fixed-blade knife from its sheath. She did not see obvious signs of blood on it. However, she acknowledged that a visual examination might not detect blood.
[54] Constable Ferraro did not observe any fingerprints on either knife. She stated that the handles would not be conducive to fingerprinting, but she was confident that she would have noticed had there been any fingerprints on the bloody blade of the folding knife. She did not conduct or arrange for fingerprint testing of either knife.
[55] Constable Ferraro sent the folding-blade knife to the Centre of Forensic Sciences for DNA testing. She gave two reasons for why she did not also send the fixed-blade knife for testing: (1) she had been told, during her briefing, that the folding-blade knife was the only knife used in the incident and (2) she did not observe any blood on the fixed-blade knife. The hearsay evidence regarding what she was told during her briefing is admissible and relevant to why she did not submit the fixed-blade knife for DNA testing, but it will not be relied upon for the truth of its content. Its reliability cannot be ascertained since the source of the information that only the folding-blade knife was used in the incident is unknown.
[56] Another officer took a consent buccal swab from Mr. Grewal, which was submitted for DNA testing.
DNA Evidence
[57] Expert DNA evidence was tendered jointly by the parties as an agreed statement of facts, accompanied by a Biology Report. The report was authored by Heather Shacker, a Forensic Scientist employed in the Biology Section of the Centre of Forensic Sciences. The parties agree and this Court confirms that Ms. Shacker is qualified to give expert evidence in the areas of:
(a) The examination and interpretation of items for the presence of blood.
(b) The interpretation of DNA typing results in autosomal and Y Short Tandem Repeat (STR) systems.
(c) Body fluid identification and DNA analysis and interpretation, including the deposition, transfer and persistence of body fluids/DNA.
[58] Peel Regional Police provided Ms. Shacker with the buccal swab from Mr. Grewal, from which she generated a DNA profile. She was not given a sample from which a DNA profile for Mr. Verma could be generated.
[59] Ms. Shacker was given the folding-blade knife, the sweater worn by Mr. Verma during the fight, and the two swabs taken from Mr. Verma’s hands. She analyzed the results of tests performed on these items to ascertain the presence of blood and to determine whether relevant DNA profiles suitable for comparison could be generated.
[60] According to Ms. Shacker’s uncontested findings, the testing detected blood on the knife, on Mr. Verma’s sweater, and on both of Mr. Verma’s hands. Her report sets out the following conclusions:
(a) A major DNA profile (“Profile 1”) was generated from a swab of blood on the blade of the knife. Mr. Grewal could not be excluded as the source of Profile 1. The probability that a randomly selected individual unrelated to Mr. Grewal would coincidentally share this major DNA profile is 1 in 68 quadrillion. At least one other minor contributor was present, but a DNA profile could not be developed from the sample.
(b) Another major DNA profile (“Profile 2”) was generated from a swab of blood on the handle of the knife. The contributor of Profile 2 is unknown. At least one other minor contributor was present, but that sample did not contain a sufficient amount of DNA to be suitable for comparison.
(c) Technicians also swabbed an area of the handle of the knife that did not appear to have any blood on it. Profile 2 was a major DNA contributor on that swab. There were at least two other minor contributors present, but the samples did not contain sufficient amounts of DNA to be suitable for comparison.
(d) Two bloodstained areas of Mr. Verma’s sweater were cut out and tested, one on the lower front right of the sweater and one on the right side of the hood. The bloodstained swab of Mr. Verma’s right hand was also tested. Profile 2 was the sole contributor found on each of these samples.
(e) Profile 2 was also a major contributor on the bloodstained swab of Mr. Verma’s left hand. Profile 1 was determined to be a minor contributor, but a complete profile could not be developed. According to Ms. Shacker’s report, the probability that a randomly selected individual unrelated to Mr. Grewal would coincidentally share this minor DNA profile is 1 in 13 million.
[61] From this uncontested expert DNA evidence, I draw the following inferences:
(a) Mr. Grewal’s blood was on the blade of the folding-blade knife and on Mr. Verma’s left hand. Someone else’s blood was also on the blade, but it is not possible to identify the source.
(b) Another unidentified person’s blood was on the handle of the knife, on two spots on Mr. Verma’s sweater, and on Mr. Verma’s hands. I conclude, on a balance of probabilities, that this was Mr. Verma’s blood.
[62] Crown counsel asks me to infer that Mr. Grewal never held the folding-blade knife because his DNA was only found on the blade and was not found on the handle of the knife. I am not prepared to draw that inference from the DNA evidence. While it is true that the major contributor (Profile 2) to the DNA found on the handle of the knife was not that of Mr. Grewal, the DNA from other minor contributors was found on both the bloody and clean parts of the handle. The samples of the other minor contributors did not contain sufficient amounts of DNA to be suitable for comparison. They could not be compared to Mr. Grewal’s DNA profile, so it is impossible to exclude Mr. Grewal as a contributor to the DNA found on the knife’s handle.
[63] In my view, the DNA evidence is inconclusive and does not assist the Crown in disproving that Mr. Verma acted in self-defence.
November 2015 Visit to Mr. Verma’s Home
[64] The visit by Mr. Grewal, Harpreet and Mandeep to Mr. Verma’s house in November 2015 is relevant to the issue of motive in this case. The Crown’s theory is that Mr. Verma believed Mr. Grewal was having an affair with his girlfriend Jasmine and that his jealousy and sense of betrayal motivated his assault on Mr. Grewal in May 2017. As discussed in more detail below, Mr. Grewal testified that Mr. Verma accused him of having sex with Jasmine during the visit in November 2015.
[65] Mr. Grewal stated that he, Harpreet and Mandeep went to visit Mr. Verma at his home in November 2015 because “something happened medically” with Mr. Verma and they wanted to “see how he was doing”. Mr. Verma denied that he had any medical issues. He stated that his friends came to visit him because of his mother’s passing. When he was challenged about this evidence during cross-examination, on the basis that his mother had died two years earlier, Mr. Verma responded that he was still grieving her death because he had left home a week after she died in September 2013 and had been separated from his family for two years.
[66] Mr. Verma testified that nothing out of the ordinary happened during the November 2015 visit at his home. Mr. Grewal, on the other hand, stated that the visit left him “scared and confused”. Mr. Grewal testified that Mr. Verma poked him in the chest and tapped him in the crotch area when they greeted each other outside his home. Mr. Grewal demonstrated the tapping motion by gesturing with a flick of the back of his hand. He said Mr. Verma did not hurt him, but that Mr. Verma’s strange behaviour scared him. Mr. Verma denied poking or tapping Mr. Grewal as alleged.
[67] Mr. Grewal testified that, during the November 2015 visit, Mr. Verma “seemed not in touch”. He said the conversation did not have a regular flow. He stated that Mr. Verma was just blurting random things out and there was no structure to the conversation. Mr. Grewal found this to be confusing and disconcerting.
[68] Mr. Grewal also testified that, at some point during the visit, Mr. Verma asserted that his girlfriend Jasmine was “star fishing all of you guys”. Mr. Grewal did not know what the expression meant, but he felt it was accusatory. He said Mr. Verma also directly accused him of “fucking my girlfriend”. Mr. Grewal did not understand why Mr. Verma was saying these things. Mr. Verma denied making any of these comments attributed to him.
[69] Mr. Grewal testified that, when he left Mr. Verma’s house in November 2015, he felt “completely soured” about their friendship. He said he had no contact whatsoever with Mr. Grewal thereafter until May 2017, when the four friends gathered at Boar N Wings and went to a car show together.
[70] Mr. Verma insisted that the visit with his friends in November 2015 was not unusual and that there was “no change” in his relationships with them afterward. At one point during his cross-examination, Mr. Verma asserted that he got together with them between the visit to his home in November 2015 and January 2016, but he later resiled from that assertion and admitted that he did not see any of them in person during that time. He testified that, although he did not see them in person, he had regular text and phone call contact with all three of them between November 2015 and January 2016.
[71] Mr. Verma stated that he and Mr. Grewal did not stop communicating with each other until January 2016. He testified that he messaged Mr. Grewal regarding his girlfriend Jasmine around that time. He recalled writing words to the effect, “you guys have been going to the gym together, is there anything I need to know?” He said he asked if Mr. Grewal was “sleeping with” Jasmine. According to Mr. Verma, Mr. Grewal responded negatively to the question. Mr. Verma testified that he accepted that answer and believed Mr. Grewal. He denied accusing Mr. Grewal of “fucking” his girlfriend.
[72] Although Mr. Verma claimed that he accepted Mr. Grewal’s denial of any romantic or sexual involvement with Jasmine, he acknowledged that he had no further contact with Mr. Grewal until May 2017. He said “it got awkward… I got busy and had to deal with life”. Later in his testimony, he twice reiterated that the reason he did not communicate with Mr. Grewal for 16 months was because he was “busy”. At one point, he stated that he assumed Mr. Grewal was busy as well.
[73] Mr. Verma testified that he continued to communicate with Harpreet and Mandeep after January 2016. His evidence regarding the frequency of those communications shifted during his testimony. In chief, he testified that he had a “couple of phone calls here and there” with them between January 2016 and the meeting at Boar N Wings in May 2017. During his cross-examination, he initially suggested that he may have seen Harpreet in person during that time period, but stated that he could not recall. Later, he conceded that he did not see either Harpreet or Mandeep in person during those sixteen months, but he implied that he was in regular contact with them. When he was reminded of his earlier testimony about having only a “couple of phone calls here and there” with them during that sixteen-month time frame, he stated that he meant a couple of phone calls “every month”. That meaning was clearly not what he had originally conveyed during his examination-in-chief.
[74] Crown counsel put to Mr. Verma on cross-examination that the reason he did not see any of his three close friends in roughly a year and a half was because something unusual happened when they visited him at his house. Counsel asked, “Something uncomfortable happened at your house in November 2015, something out of the ordinary, would you agree with that?” Mr. Verma answered, “I lost my mom, yeah”. This response made no sense, since his mother had passed in September 2013. Shortly thereafter, Crown counsel again put to Mr. Verma that “something out of the ordinary” had occurred between him and his friends at his house in November 2015. He responded, “That’s not true. I was busy.” He provided no particulars of what was keeping him busy.
Friends’ Reunion at Boar N Wings
[75] Mr. Verma’s and Mr. Grewal’s evidence regarding their reunion with Harpreet and Mandeep at Boar N Wings in May 2017 was substantially similar. Mr. Grewal testified that the conversation at dinner was stilted, which he attributed to Mr. Verma’s halting speech. Mr. Verma testified that Mr. Grewal was more quiet than usual. It was obviously somewhat awkward for both of them, but they both confirmed that the meeting went smoothly. Both recalled Mr. Grewal inviting Mr. Verma and Mr. Verma’s father and brother to his upcoming wedding. Both also recalled Mr. Verma inviting all three friends to his home for a barbecue.
Communications on May 22, 2017
[76] Both Mr. Verma and Mr. Grewal recalled exchanging text messages and speaking to each other on the phone after the reunion at Boar N Wings, in the days leading up to May 22, 2017. They discussed the barbecue invitation to Mr. Verma’s house.
[77] Mr. Grewal testified that he explicitly told Mr. Verma that he was scared to go and that their friendship could not easily be repaired. He recalled Mr. Verma responding that he was “working on making things better” and “giving you my all”. Mr. Grewal thought Mr. Verma seemed genuine, so he agreed to meet him briefly at his house “to test the waters”. Mr. Verma denied that Mr. Grewal expressed fear to him and denied making the comments attributed to him.
[78] Mr. Grewal testified that he remained hesitant to meet with Mr. Verma. He said he feared Mr. Verma might harm him physically, which is why, when they texted each other on May 22, 2017, he asked whether anyone else would be home. He stated that he felt reassured when Mr. Verma told him Armaan was there. He remembered telling Mr. Verma that he could not stay for dinner.
[79] Mr. Verma confirmed that Mr. Grewal asked him, on May 22, 2017, whether anyone else would be there. He recalled telling Mr. Grewal that Armaan was home. However, he denies Mr. Grewal saying he would not stay for dinner.
Mr. Grewal’s Testimony about the Altercation
[80] The following is a summary of Mr. Grewal’s testimony regarding what transpired after he entered Mr. Verma’s house on May 22, 2017. This summary does not represent my findings of fact, but rather Mr. Grewal’s account at trial, which is disputed by Mr. Verma.
[81] Mr. Grewal leaned forward to untie his laces. He was not kneeling, but rather was bent over at his hips, reaching for his footwear. He felt a sudden blow to the back of his neck. He stood upright. There was blood spilling over his shoulder. He looked at Mr. Verma, who was holding two knives, one in each hand, blades pointing downward. In order to defend himself, he reached for Mr. Verma’s hands. He got hold of only one of Mr. Verma’s wrists.
[82] Mr. Verma used his hip to get Mr. Grewal off balance. He tripped Mr. Grewal, who fell face down on the floor. Mr. Verma got on his back. Mr. Grewal was still holding one of Mr. Verma’s wrists. He held that wrist against his right side with both of his hands as he lay on the ground pinned underneath Mr. Verma.
[83] Mr. Verma was holding a silver blade knife in the hand that was held against Mr. Grewal’s side. Mr. Verma’s other hand was free. Mr. Grewal felt more blows to his left shoulder and to the top left side of his head. It felt like a sharp edge, like a knife. Mr. Verma must have been using his free hand, because the other hand was held against Mr. Grewal’s side.
[84] Mr. Grewal said, “Amaar you have to stop doing this. If you don’t stop, I will die.” Mr. Verma responded, “that’s right, you’re going to die today”.
[85] The front door to the house opened and people were standing there. Mr. Grewal did not recognize them. He called out, “Help! Help! Call an ambulance!” He noticed Armaan standing nearby and yelled to him, “Help me! He’s trying to kill me!” Armaan ran toward them. Armaan must have got on Mr. Verma’s back because Mr. Grewal felt more weight on his own back.
[86] Mr. Grewal thought he was going to die. There was a lot of blood and he felt his energy draining. He started feeling faint but did not lose consciousness. He was telling Armaan to choke Mr. Verma. Armaan responded, “I am trying to choke him”. Mr. Verma’s body suddenly went limp and Mr. Grewal was able to free himself.
[87] Mr. Grewal testified during his examination-in-chief that his left hand was cut by a knife while the three men were getting up off the ground. His description of how this injury occurred changed during his cross-examination. He later said that Armaan had pulled Mr. Verma off him and was holding Mr. Verma from behind, but Mr. Verma’s arms were free with knives in his hands. Mr. Grewal stated that he was still in close proximity to them and that Mr. Verma made one last swing and cut him one last time on his left hand.
[88] Mr. Grewal left the house immediately after he got up from the ground and freed himself from Mr. Verma’s hold. He grabbed a t-shirt by the door on his way out to apply pressure to his wounds and try to stop the bleeding. People outside were telling him that an ambulance had been called. He lay down on his stomach on the neighbour’s lawn, with the t-shirt on the back of his neck, and waited for emergency responders to arrive.
Mr. Verma’s Testimony about the Altercation
[89] Mr. Verma’s account of the incident is radically different from that of Mr. Grewal. The following is a summary of Mr. Verma’s testimony. It does not represent my findings of fact, but rather Mr. Verma’s account at trial.
[90] After they entered the house, Mr. Grewal bent over to untie his laces. Mr. Verma was leaning against a wall, waiting for Mr. Grewal to remove his shoes. When Mr. Grewal got up, Mr. Verma saw a knife in his right hand. Mr. Grewal started swinging the knife at him. Mr. Verma raised his arms to deflect the knife with his hands. He grabbed the knife from Mr. Grewal in order to defend himself. He grabbed the blade of the knife, then he took hold of the handle. He got cut by the knife on his left hand between his thumb and index finger and also on his right index finger.
[91] Mr. Grewal came towards him again. Their heads and chests made contact as they started wrestling. Mr. Verma put his left hand on Mr. Grewal’s right shoulder. He was holding the folding-blade knife by the handle in his right hand. He put his right forearm on Mr. Grewal’s neck. He was trying to get away from Mr. Grewal. He lost his balance and fell backwards. As he fell, the knife in his right hand made contact with Mr. Grewal’s neck.
[92] Mr. Verma fell to the floor. Mr. Grewal fell on top of him. The knife was still in Mr. Verma’s right hand. It did not come into contact with any part of Mr. Grewal’s body when they fell.
[93] Mr. Verma pushed Mr. Grewal off him, to the side, and said, “What’s wrong with you?” in a normal tone of voice. Mr. Grewal was then on the ground on his stomach. Mr. Verma got on Mr. Grewal’s back to restrain him. The knife at that point was loose, somewhere underneath Mr. Grewal.
[94] Mr. Verma testified during his evidence-in-chief that Mr. Grewal did not say anything throughout the physical altercation. During his cross-examination, he testified that he could not remember what Mr. Grewal was saying. He agreed that Mr. Grewal may have said that he wanted the police called and may have said that he wanted an ambulance called.
[95] Mr. Verma pinned Mr. Grewal on the ground and got on his back because he needed to defend himself. He called out for his brother, “Armaan, help! Help!” Armaan came, grabbed him and pulled him off Mr. Grewal.
[96] At that point, Mr. Grewal left the house. The folding-blade knife was left behind on the floor. Mr. Verma told Armaan that Mr. Grewal had been trying to kill him. He asked Armaan to call their father and 911.
[97] Mr. Verma did not threaten Mr. Grewal. He did not say that Mr. Grewal was going to die. He never “stabbed” or “cut” Mr. Grewal that night. The knife in his hand merely “came into contact with” with Mr. Grewal’s neck unintentionally when they were wrestling each other, as they fell.
[98] Mr. Verma had his black fixed-blade utility knife clipped to his belt, on his hip, inside the sheath, throughout the entire fight. He never used it during the altercation. Armaan grabbed the utility knife from him and took it outside with the other folding-blade knife after Mr. Grewal left. Mr. Verma had never seen the folding-blade knife before.
ANALYSIS
Mr. Verma’s Alleged Motive
[99] Some aspects of Mr. Verma’s testimony are improbable. For example, his stated reason for his friends’ visit to his home in November 2015 is that they came to see how he was doing after his mother’s death, but his mother had passed away more than two years earlier. Although he left Ontario only a week after his mother’s death, it was not as though he had no contact with any of his friends in the following two years. He and Mr. Grewal had been going to the gym together with Jasmine during trips that Mr. Verma made home from New York. It would be absurd, in these circumstances, for Mr. Grewal to visit Mr. Verma in November 2015 to see how he was coping with his mother’s death.
[100] Mr. Verma’s explanation for the ensuing prolonged period of separation from his three friends and the prolonged lack of any communication with Mr. Grewal also strains credulity. These were his closest friends, people with whom he had socialized regularly since childhood. It is not believable that he would have gone eighteen months without seeing any of them for no reason other than that he was busy. Moreover, if that explanation were true, there would be no cause for the awkwardness between him and Mr. Grewal when they met at Boar N Wings in May 2017.
[101] For the above reasons, I reject Mr. Verma’s testimony that nothing unusual happened during the friends’ visit to his home in November 2015. Something out of the ordinary clearly occurred. I accept Mr. Grewal’s account of what transpired as a credible explanation for the rift that developed in their friendship thereafter. Mr. Grewal’s testimony about Mr. Verma’s unexplained antagonistic conduct during the November 2015 visit is consistent with the totality of the evidence. It not only accounts for the rift in their friendship, it also accounts for why Harpreet and Mandeep did not see Mr. Verma again for 18 months thereafter – he had accused all of them of having sex with his girlfriend (i.e., the “star fishing” comment). Moreover, it accounts for Mr. Grewal’s reluctance to visit Mr. Verma’s home on May 22, 2017.
[102] I accept Mr. Grewal’s testimony that he was fearful of what might happen if he went to Mr. Verma’s house. His apprehensiveness is corroborated by the undisputed fact that he asked Mr. Verma whether anyone else would be there before he confirmed that he would go. I also accept Mr. Grewal’s account of the brief conversation he had with Mr. Verma regarding his apprehension. His account is consistent with the totality of the evidence.
[103] I conclude that Mr. Verma falsely denied his antagonistic conduct toward Mr. Grewal and the accusatory comments he made to his friends in November 2015. He also downplayed the rift that developed in his friendship with Mr. Grewal as a result of his conduct and comments that day. This was, in my view, a self-serving attempt to minimize the anger he felt toward Mr. Grewal based on his suspicion that Mr. Grewal was having sex with his girlfriend. I conclude that Mr. Verma gave an alternate, less antagonistic, and untruthful account of how he confronted Mr. Grewal with his suspicions about Jasmine’s infidelity (by casual text message in January 2016) in order to mitigate the evidence of motive tendered by the Crown.
[104] Based on the evidence that I have accepted, I conclude that Mr. Verma possessed a motive to assault Mr. Grewal. Proof of motive is not, however, sufficient to establish that Mr. Verma intentionally stabbed Mr. Grewal, nor is it sufficient to disprove that Mr. Verma was acting in self-defence when he did so.
Minor Inconsistencies in the Evidence
[105] Turning to the central evidence about what transpired inside Mr. Verma’s house on May 22, 2017, both the Crown and Defence counsel point to various inconsistencies between each of the key witness’s testimony at trial and their prior statements to the police. Both counsel ask me to find that the opposing witness is not credible due to these inconsistencies. As explained below, I have concluded that some of the inconsistencies are material, but many are trivial and of no consequence to my credibility findings.
[106] By all accounts, the physical altercation on May 22, 2017 started suddenly and was over quickly. Mr. Verma testified that “everything happened so fast.” The fight was frantic, physically violent and emotionally charged. Both men were injured during the altercation. There was a lot of blood. Regardless of who initiated the fight, there would have been little time for either man to process cognitively what was happening as they reacted instinctively to the fluid dynamics of the fight.
[107] The two men could reasonably be expected to register and retain certain key elements of the incident, such as who initiated the attack, whether they themselves wielded a knife at any point during the fight, what injuries they sustained and how the fracas ultimately ended. But neither man could reasonably be expected to know or to remember accurate details of precisely how the altercation unfolded, such as the sequence of their movements, the placement of their limbs, how each injury was sustained or the exact manner in which they fell to the ground.
[108] Their capacity to make observations during the fight was impeded by the adrenaline that would have been coursing through their veins and their necessarily narrow focus on self-preservation during the fight. Moreover, their recollections of details of the incident would naturally fade with the passage of time. Their testimony at trial was given two and a quarter years after they gave their statements to the police. Minor variations in their accounts of what transpired are therefore not indicative of falsehood but rather likely reflective of the frailties of human observation in chaotic circumstances and the fallibility of memory over time.
[109] Examples of prior inconsistent statements or omissions made by Mr. Verma that I find to be inconsequential include the following:
(a) Mr. Verma told the police that, after he and Mr. Grewal entered his home on May 22, 2017, Mr. Grewal removed his shoes before straightening up with a knife in hand. At trial, Mr. Verma testified that Mr. Grewal bent over to untie his laces but ultimately kept his shoes on.
(b) Mr. Verma told the police that, at the beginning of the fight, he “got pushed him up against the wall”. At trial, he testified that he was already leaning against the wall waiting for Mr. Grewal to remove his shoes when Mr. Grewal came toward him wielding a knife.
(c) Mr. Verma told the police that he asked his brother Armaan to “call dad” after the fight broke up. At trial, Mr. Verma initially testified that he asked Armaan to call 911. During his cross-examination, when his prior inconsistent statement to the police was put to him, he acknowledged the inconsistency and stated that he asked his brother to “call 911 and dad”.
(d) Mr. Verma told the police that, when they were wrestling, he and Mr. Grewal fell to the ground beside each other. At trial, he testified that Mr. Grewal fell on top of him and that he then pushed Mr. Grewal off him to the side. On both occasions, he stated that he subsequently got on top of Mr. Grewal’s back to restrain Mr. Grewal.
(e) Mr. Verma did not mention to the police that the folding-blade knife got caught underneath Mr. Grewal when they were on the floor. This omission does not, in my view, constitute a material inconsistency. He may not have been asked by the police about the location of the knife at that point in the altercation.
(f) During his police interview, Mr. Verma stated that he “always carries” the utility knife with him. He reiterated that he carries it “all the time”. When asked why, he responded, “just in case something happens”. At trial, he denied carrying the knife all the time. He testified that he usually had it with him. He said he used it for such things such as camping, cutting rope, cutting boxes at his workplace and doing yard work. He stated that he had it on him the day of the fight because he intended to use it to cut bushes in his father’s yard.
[110] In my view, these minor inconsistencies in Mr. Verma’s statements do not, either individually or collectively, undermine his overall credibility.
[111] Examples of similarly inconsequential prior inconsistent statements or omissions made by Mr. Grewal include the following:
(a) When Mr. Grewal gave an initial statement to a police officer at the hospital, and later during his interview at the police station, he did not mention the antagonistic meeting at Mr. Verma’s house in November 2015. This omission does not, in my view, constitute a material inconsistency, particularly since Mr. Grewal did mention to the police that Mr. Verma had previously accused him of cheating with his girlfriend.
(b) Mr. Grewal told the police that “everything seemed fine” when he, Harpreet and Mandeep met with Mr. Verma for dinner at Boar N Wings the week prior to the altercation. At trial, he disagreed with Defence counsel’s suggestion that Mr. Verma “appeared normal” during that dinner. He stated that Mr. Verma’s “speech was very slow” and that Mr. Verma “seemed like he was medicated”.
(c) With respect to the fight on May 22, 2017, there was inconsistency in Mr. Grewal’s descriptions of how he came to be lying face down on the ground with Mr. Verma on his back. The first time that he described the alleged attack to the police, he said:
And while I was untying my riding boots, that’s when I felt the first blow to my head. And when I felt the blow, immediately there was blood everywhere. And I saw a knife in his hand. So right away, I went for his hands and his wrists, to try to tie them down. At this point he was trying to wrestle me back, and we both fall on the floor.
About a minute and half later, toward the end of the police interview, Mr. Grewal described the begining of the fight a second time. He said,
I was bent over untying my laces and I just felt one big blow. And like that’s … and I got up. And I just felt blood coming out, like a tonne of blood right away. And he’s standing there watching me. And then I just went to grab his hands. And I grabbed his hands and we struggled and that’s when we fell and he got on top of me.
When Mr. Grewal described the incident during his examination-in-chief at trial, he stated that, when he went for Mr. Verma’s hands, Mr. Verma “used his hip” to get him off balance, causing him to fall to the floor. During his cross-examination, he acknowledged that he did not tell the police that Mr. Verma used his hip to bring him down, but he insisted that Mr. Verma intentionally tripped him.
[112] Defence counsel argues that Mr. Grewal’s testimony about how Mr. Verma tripped him was materially inconsistent with his prior statement to the police. Defence counsel submits, moreover, that Mr. Grewal’s testimony was a serious exaggeration designed to portray Mr. Verma as an aggressor.
[113] In my view, the difference between Mr. Grewal’s statement to the police and what he said at trial about how he and Mr. Verma came to be on the floor arises not from embellishment but rather from additional details provided during his testimony. Mr. Grewal did not explicitly tell the police that the fall to the ground was accidental. Had he done so, then I would agree that his evidence at trial would be materially inconsistent with his prior police statement. What he told the police is that they fell to the ground when Mr. Verma tried to wrestle him back. At trial, he specified that Mr. Verma used his hip to get him off balance before they fell. In other words, he provided more detail about the wrestling than what he gave during his police interview. The additional detail during his testimony lead to articulation of his belief that Mr. Verma had intended to trip him when they fell. This was not clearly expressed in his prior statement to the police, but nor was it contradicted by his statement to the police. I consider this omission in his police statement to be a minor discrepancy, not one indicative of deliberate exaggeration.
[114] Defence counsel also points to an inconsistency in Mr. Grewal’s descriptions of how he sustained the cut on his left hand as evidence of embellishment during his testimony. To understand this submission, it is necessary to recall Mr. Grewal’s account that, while he was pinned to the ground with Mr. Verma on his back, he used both his hands to hold Mr. Verma’s right hand against his right side. The folding-blade knife was in Mr. Verma’s immobilized right hand. Mr. Grewal gave varying accounts of what happened next.
[115] During his interview with the police, Mr. Grewal stated,
At that point, I told his brother Armaan, I’m like, “Armaan, I have his hand secured, just choke him out…. He’s like, “I’m trying to.” So while he’s trying to do that, [Mr. Verma] finally lets go of me. And while he lets go of me, we’re both trying to get up and he, while he’s trying to free his hand from my, like my grip, that’s when this one happened [indicating the cut on his left palm].
[116] At trial, during his examination-in-chief, Mr. Grewal stated that Mr. Verma “sliced” his left hand. He said he was not sure which knife Mr. Verma used. He stated that it happened when he was trying to free himself. He recalled that he was on his hands and knees and that Armaan was behind Mr. Verma, pulling Mr. Verma off him. He testified that his left hand was sliced “in the process of all of us getting up”.
[117] When asked about his left-hand injury during his cross-examination, Mr. Grewal repeated that Mr. Verma sliced his hand while he was getting up. Defence counsel asked him how that happened. He responded that Armaan was holding Mr. Verma from behind, but Mr. Verma’s “arms were free with knives in his hands”. He said he was still in close proximity to them and Mr. Verma “did one last swing and cut me one last time on my hand.” Defence counsel then put to Mr. Grewal the inconsistency of his statements about this issue and suggested that Mr. Verma had not actually swung the knife at him. Mr. Grewal responded, “I don’t know if he was swinging. I don’t know what he was trying to do. I was just trying to convey one last cut.”
[118] I agree with Defence counsel that there is a material inconsistency in Mr. Grewal’s statements on this topic. The description that he gave to the police and that he initially provided during his examination-in-chief unambiguously conveyed that the final cut he sustained to his left hand was incidental to the three men getting up off the floor. In contrast, the description he gave during his cross-examination portrayed Mr. Verma as unrelenting in his knife attack, even as his brother pulled him off Mr. Grewal. Mr. Grewal’s subsequent explanation that he merely meant to convey a final cut is not credible because the words he used cannot reasonably be construed as such. He unequivocally conveyed that Mr. Verma, despite being restrained by Armaan, deliberately took a final swing at him with a knife and cut his hand.
[119] I conclude that Mr. Grewal embellished his testimony on this point during his cross-examination. I therefore reject his statement about the final swinging of a knife by Mr. Verma.
[120] Despite this embellishment, I do not believe that Mr. Grewal was deliberately trying to mislead the court. When he gave his evidence-in-chief about the cut to his hand, it was substantially the same as what he had told the police more than two years earlier. His evidence-in-chief did not include any exaggeration. It was only later during his cross-examination that he engaged in brief hyperbole, which he quickly retracted when given the opportunity to do so. He did not insist that Mr. Verma was “swinging” a knife at him after the fight was broken up by Armaan. Rather, he candidly admitted that he did not know what Mr. Verma was trying to do at that point. I conclude that the embellishment was a careless slip, not a deliberately misleading or false sworn statement.
[121] In my view, all the above-discussed inconsistencies in Mr. Grewal’s statements are minor. They do not, either individually or collectively, cause me to question his overall credibility.
Significant Inconsistencies in the Evidence
[122] What I do find troubling about Mr. Grewal’s version of the events is a significant omission in his statements to police about the presence of two knives. As noted above, when he first described the alleged attack by Mr. Verma during his police interview, he said he stood up from unlacing his boots, after feeling a blow to the back of his head, and “saw a knife in [Mr. Verma’s] hand” (emphasis added). In his description to the police of what transpired after they fell to the ground, he said,
And somehow in a very lucky way I had his [Mr. Verma’s] wrist right here pinned [indicates right side]. So he’s, he’s straddling me on my back and I’m on the floor on my chest. His arm is around here and I have his wrist like this with his hand on the knife, and I’m screaming for help. [emphasis added]
[123] Toward the end of the police interview, when he recounted the attack a second time, he explained why he went for Mr. Verma’s hands. He said, “And I saw a knife in his hands. Like, I saw a knife, so I’m like, hands immediately.” At that point, the officer asked him, “What did the knife look like? Do you remember?” Mr. Grewal answered, “Oh yeah” and proceeded to give a description.
[124] Mr. Grewal never mentioned during his police interview that he saw a second knife in Mr. Verma’s hands during the attack. Nor did he mention a second knife to the officer who spoke to him at the hospital. Approximately one week prior to the trial, when Mr. Grewal met with the Officer in Charge to prepare his testimony, he told the OIC that Mr. Verma had used two knives to attack him, one in each hand. He testified at trial that he volunteered that information to the OIC without any prompting about a second knife. He acknowledged that this was the first time he mentioned a second knife to the police.
[125] I am troubled by this omission because it is not the sort of detail that an innocent stabbing victim of an unprovoked attack would likely overlook in making a statement to the police. Defence counsel submits that this is yet another example of dishonest embellishment by Mr. Grewal. He further submits that Mr. Grewal’s failure to mention a second knife to the police corroborates Mr. Verma’s testimony that the fixed-blade utility knife was never removed from its sheath or used during the altercation. Defence counsel argues that Mr. Grewal never saw the utility knife on May 22, 2017. If that argument is correct, then Mr. Grewal’s testimony about the second knife was fabricated, which would constitute a serious blow to his overall credibility.
[126] Mr. Grewal was cross-examined about his failure to mention a second knife during the police interview. He readily admitted that he did not specifically mention it but pointed out that he told the police he reached for Mr. Verma’s “hands and wrists” to try to tie them down. He emphasized that he used the plural of “hands” and “wrists” when speaking to the police. He explained, “the reason why I said I went for his hands, both his hands, is because there were knives in both hands”.
[127] Mr. Grewal also readily acknowledged that he did not give descriptions of both knives to the police. He explained that he only described the knife that he saw clearly, namely the one that he had pinned to his right side during much of the altercation. He stated that he only saw the second knife once briefly, when he first stood up after receiving a blow to the back of his neck.
[128] Although I am troubled by this material inconsistency in Mr. Grewal’s statements, my concern is alleviated by his explanations, which I find to be credible based on the totality of the evidence. My reasons for accepting his explanations are as follows.
[129] Mr. Grewal’s testimony about Mr. Verma using two knives as weapons is consistent with the injuries that Mr. Grewal sustained. Mr. Verma stated that he got the small cut above his eye “through wrestling… from the tussle”. Neither he nor Mr. Grewal were able to explain the cause of the small cut on the bridge of Mr. Grewal’s nose. They were also unable to explain how Mr. Grewal received the small cuts on his right-hand fingers. Given the swift and chaotic nature of the physical altercation, it is not surprising that they could not recall or recount with precision how and when every minor injury was caused. However, it is reasonable to expect that they could provide at least some general description of how the major injuries were inflicted.
[130] Mr. Grewal and Mr. Verma both proffered descriptions of the cause of the more serious lacerations to their hands. They also provided competing descriptions of how the left back side of Mr. Grewal’s neck came to be cut open: Mr. Grewal testified that it was from the initial blow he received while bent over to untie his boot laces, while Mr. Verma testified that it was unintentionally inflicted while they were wrestling, incidental to their fall to the ground.
[131] However, with respect to the lacerations on the back of Mr. Grewal’s left shoulder and back left side of his head, Mr. Verma was unable to offer any explanation of how those injuries could have occurred. In my view, those two lacerations had to have been caused by the sharp blade of a knife; they could not have simply resulted from the tussle of the fight, particularly since the laceration on Mr. Grewal’s shoulder required penetration of several layers of Mr. Grewal’s clothing, including his motorcycle jacket and sweater. Furthermore, given the location of those two lacerations on his body, they could only have been inflicted by a person who was behind him or was standing in front of him when he bent forward. There is no allegation that those wounds were inflicted while he was leaning forward to untie his laces. There is no evidence that he bent over again at any point during the altercation. It is undisputed that he ended up on the floor, with his chest facing down, and with Mr. Verma on his back at that point. I conclude that the wounds to his shoulder and head must have been inflicted while he was on the ground.
[132] On either witness’s account, the folding-blade knife was not being used to cut Mr. Grewal (intentionally or otherwise) at that time: Mr. Verma said that the folding-blade knife was caught underneath Mr. Grewal; Mr. Grewal said it was pinned to his side in Mr. Verma’s immobilized right hand. Mr. Grewal testified that he felt blows to his shoulder and to the top left side of his head while he was pinned to the ground. Mr. Grewal stated that Mr. Verma must have been using his free left hand, because his right hand with the folding-blade knife was immobilized. Mr. Grewal acknowledged that he could not see what Mr. Verma was using to strike him but he testified that it “felt like a sharp edge, like a knife”.
[133] It is notable that Mr. Grewal’s testimony about when and how the lacerations on his shoulder and head occurred is the only evidence explaining the lacerations on Mr. Grewal’s shoulder and head. Mr. Verma had no explanation for how Mr. Grewal sustained these wounds. Mr. Verma testified that, after he unintentionally cut the back of Mr. Grewal’s neck with the folding-blade knife, the knife did not make contact again with Mr. Grewal’s body. He said it ended up under Mr. Grewal while Mr. Grewal was on his stomach. He also said his utility knife remained sheathed on his waist throughout the fight. This simply cannot be true, given the stabbing injuries to the back of Mr. Grewal’s shoulder and head.
[134] I note that although Mr. Grewal did not provide any explanation for the lacerations on Mr. Verma’s hands, he was not asked to do so during his testimony.
[135] Crown counsel asked me to conclude that Mr. Verma admitted, during his police interview, that he climbed on top of Mr. Grewal when Mr. Grewal was on his stomach and proceeded to stab Mr. Grewal from behind. Mr. Verma denied that he made such an admission. I find that portion of the video-recorded police interview to be confusing. There are compound questions being asked by the officer and the answers are therefore ambiguous. Moreover, Mr. Verma is responding verbally but with incongruous body language. I am not prepared to find that he made an admission to the police about stabbing Mr. Grewal in this manner, but I am convinced, beyond a reasonable doubt, that he did just that.
[136] Moreover, based on the totality of the evidence, I am satisfied that two knives were used as weapons during the incident, and that one of them was used by Mr. Verma intentionally to stab the back of Mr. Grewal’s left shoulder and the back of his head while they were on the ground.
[137] I note that the evidence of Armaan’s movements, both during and after the fight, is consistent with Mr. Grewal’s account of the incident, including the involvement of a second knife in the attack. It is undisputed that Armaan pulled Mr. Verma off Mr. Grewal. Had Mr. Verma been calling his brother for help, as he alleges, it would make no sense for Armaan to respond in that way. Armaan’s actions assisted Mr. Grewal, not Mr. Verma. His actions are consistent with Mr. Grewal’s testimony that it was he who was calling Armaan for help.
[138] Moreover, Armaan took the fixed-blade utility knife from Mr. Verma and brought it outside with the other folding-blade knife. Armaan did not testify at trial, so there is no evidence explaining his actions, but I query why he would take the utility knife from Mr. Verma and produce it for the police if it was still in its sheath on Mr. Verma’s hip and had not been used during the fight.
[139] I recognize that the forensic evidence does not corroborate the use of a second knife during the attack, but nor does it exclude that possibility. The forensic evidence is simply unhelpful on this point. No fingerprint or DNA testing was performed on the fixed-blade utility knife. The only forensic evidence I have about that knife is Constable Ferraro’s testimony that she visually inspected it and did not observe blood or fingerprints. As she conceded, a visual inspection might not have detected the presence of blood.
[140] I reject Mr. Verma’s account of what transpired on May 22, 2017 for the above reasons and also because of significant prior inconsistent statements that he made during his police interview, which undermine his credibility. Specifically, Mr. Verma told the police: “I stabbed him…. I stabbed on his – on his neck.” He repeatedly stated that he “stabbed” Mr. Grewal, but asserted that he did so only once after grabbing the knife from Mr. Grewal in self-defence. In contrast, at trial, he asserted that he did not stab Mr. Grewal. He said the blade of the knife “made contact with” Mr. Grewal’s neck while they were wrestling. When asked about his prior inconsistent statement to the police, he stated that Mr. Grewal “got stabbed”. After further cross-examination on this point, he reluctantly agreed that he stabbed Mr. Grewal. Similarly, he testified during his examination-in-chief that he did not cut Mr. Grewal, yet he told the police, “I cut him.” When he was confronted with this prior inconsistent statement during his cross-examination, he was only willing to acknowledge that Mr. Grewal “got cut”. Crown counsel then asked, “by you?” and he agreed but insisted, “not intentionally”.
[141] During his police interview, Mr. Verma asserted multiple times that he was acting in self-defence when he stabbed Mr. Grewal, but at no time did he suggest that his actions were unintentional. At trial, he not only testified that he was acting in self-defence, but also insisted that the cut to Mr. Grewal’s neck was inadvertent. This is not a trivial discrepancy that can be dismissed. It is not an inconsistency caused by omission, nor one related to a detail that might reasonably be misremembered. Mr. Verma would have known and would surely recall, despite the chaotic nature of the fight, whether or not he deliberately stabbed Mr. Grewal.
[142] I conclude that Mr. Verma knowingly misrepresented one of the injuries he inflicted on Mr. Grewal as accidental when he testified about the incident at trial. He repeatedly stated that the knife merely “made contact with” Mr. Grewal’s neck. When he was given the opportunity to confirm that he stabbed and cut Mr. Grewal intentionally, as he had stated previously to the police, he became recalcitrant. He insisted that he did not intentionally cut Mr. Grewal, even in self-defence. I find this evidence to be not credible.
[143] Other aspects of Mr. Verma’s evidence were also not credible. For example, he testified that he spoke calmly and in a “normal” tone of voice after Mr. Grewal attacked and cut him with a knife, saying “what’s wrong with you?”. This is implausible. I agree with Crown counsel’s submission that this was an overstated attempt by Mr. Verma to paint himself in a reasonable light.
[144] Similarly, I agree with Crown counsel’s submission that Mr. Verma’s claim that he grabbed the knife from Mr. Grewal by the blade was a farfetched attempt to portray his injuries as defensive. The knife in question is a dangerous instrument. Notwithstanding the cuts on his hands, it is not believable that Mr. Verma could have gripped its sharp blade with sufficient force to wrest it from Mr. Grewal’s hand.
[145] These deliberate falsehoods and exaggerations, combined with Mr. Verma’s dishonest denial of what transpired at his house in November 2015, and his minimization of the rift in his friendship with Mr. Grewal, seriously undermine his credibility overall. His testimony was implausible, self-serving, materially inconsistent with prior statements, and contradicted by the undisputed evidence of Mr. Grewal’s injuries. The Crown has satisfied me, beyond a reasonable doubt, that Mr. Verma’s account of how the fight began and how it unfolded is not credible and must be rejected in its entirety.
[146] Mr. Grewal, in contrast, was a credible witness who testified in a forthright manner, with only one minor embellishment that he quickly retracted. I accept his testimony of how the fight began with an unexpected blow to the back of his neck while he was bent over untying his laces. I also accept as credible his account of how the fight unfolded from then onward, except for the embellishment (which he retracted) about Mr. Verma taking one last swing at him after Armaan broke up the fight.
Evidence of Post-Offence Conduct
[147] Mr. Verma acknowledged that Mr. Grewal may have asked for the police and for an ambulance to be called. I accept Mr. Grewal’s testimony that he did so. His conduct in that regard and his actions after he left the house – leaving the folding-blade knife behind and lying down on the neighbour’s lawn to wait for emergency services – are consistent with the behaviour of an innocent victim.
[148] Mr. Verma’s conduct after the fight, in contrast, is inconsistent with the behaviour of a person who harmed someone while acting in self-defence. In particular, Mr. Verma went to his bedroom to retrieve his passport after Mr. Grewal left the house. He denied doing this during his cross-examination, but his denial is contradicted by the physical evidence at the scene.
[149] There was a trail of blood from the entrance of the house, where the fight took place, to Mr. Verma’s bedroom. Mr. Verma was bleeding from cuts on his hands, so it is likely that he (as opposed to Armaan) created that trail of blood. He could not have been looking for his eyeglasses in his bedroom, because he had been wearing them at the beginning of the fight, so they would have been in the vicinity of the front entrance of the house. I conclude that Mr. Verma went to his bedroom to retrieve his passport. There is no other rational explanation for him having his passport on his person when he was arrested. He had dressed in raggedy clothes to paint the deck and do yard work earlier in the day. He had no cause to carry his passport on his person prior to Mr. Grewal’s arrival at the house.
[150] My finding that Mr. Verma retrieved his passport after the fight constitutes evidence of after-the-fact conduct. As set out by the Court of Appeal for Ontario in R. v. Peavoy, 1997 CanLII 3028 (ON CA), [1997] O.J. No. 2788 (Ont. C.A.), at paras. 26-27:
Evidence of after-the-fact conduct is commonly admitted to show that an accused person has acted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person. The after-the-fact conduct is said to indicate an awareness on the part of the accused person that he or she has acted unlawfully and without a valid defence for the conduct in question. It can only be used by the trier of fact in this manner if any innocent explanation for the conduct is rejected. That explanation may be expressly stated in the evidence, such as when the accused testifies, or it may arise from the trier of fact's appreciation of human nature and how people react to unusual and stressful situations. It is for the trier of fact to determine what inference, if any, should be drawn from the evidence.
[151] Mr. Verma did not provide an explanation for why he was carrying his passport when he was arrested. I am unable to conceive of any innocent explanation for him securing his passport after the fight. I infer that he was intending to flee, but the police arrived within minutes and thwarted his opportunity to do so. His intention to flee is inconsistent with his asserted defence of self-defence.
CONCLUSION
[152] Based on the totality of the evidence, and for all the reasons expressed above, I am left with no doubt that Mr. Verma intentionally stabbed Mr. Grewal repeatedly with knives in an unprovoked attack on May 22, 2017. The Crown has established beyond a reasonable doubt that Mr. Verma was not acting in self-defence. Specifically, the Crown disproved the first two requirements of self-defence. I am satisfied, beyond a reasonable doubt, that (i) Mr. Verma did not have an objectively reasonable belief that force was being used or that a threat of force was being made by Mr. Grewal against him and that (ii) Mr. Verma’s subjective purpose in stabbing Mr. Grewal was not to protect himself.
[153] I therefore find Mr. Verma guilty as charged.
Petersen J.
Released: December 11, 2019
COURT FILE NO.: CR-18-1087
DATE: 2019 12 11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
AMAAR VERMA
COUNSEL: H. Gluzman, for the Crown D. Paradkar, for the accused
REASONS FOR JUDGMENT
Petersen J.
Released: December 11, 2019