Court File and Parties

COURT FILE NO.: CR-21-40000092-0000 DATE: 20220414

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN - and - eden gidharry

COUNSEL: S. Pearl, for the Crown J. Kaldas and A. Wong, for Mr. Gidharry

HEARD: April 4, 5, 6, 7 and 8, 2022

KELLY J.

Reasons for Judgment

[1] On March 20, 2020, Mr. Eden Gidharry went to work at Commercial Bakeries armed with two samurai swords and one dagger type knife. He entered the office of Mr. Steven Brain, the plant manager. Using the swords, Mr. Gidharry slashed Mr. Brain, causing significant injuries to the area of his right underarm and his right leg. Mr. Gidharry also swung the sword causing the laptop screen of Mr. Brain’s computer to be split in two.

[2] Mr. Gidharry was charged with attempted murder, aggravated assault, and assault with a weapon. At the commencement of trial before me, sitting without a jury, Mr. Gidharry pleaded guilty to aggravated assault and carry concealed weapons contrary to ss. 268(2) and 88(1) of the Criminal Code, R.S.C., 1985, c. C-46 respectively.

[3] Mr. Gidharry pleaded not guilty to attempted murder committed contrary to s. 239(1) of the Criminal Code. In a pre-trial application (where Mr. Gidharry testified), I concluded that a statement made by him following his arrest, saying that he had to kill “Steve” (Mr. Brain), was admissible.

[4] At trial, various police officers and three civilian witnesses testified. Photographs and surveillance videos were made exhibits. Mr. Gidharry did not testify at the trial proper.

[5] After hearing Mr. Brain’s testimony, I found Mr. Gidharry guilty of aggravated assault and carry concealed weapons. For the reasons set out below, I find Mr. Gidharry guilty of attempted murder.

Legal Framework

[6] Counsel agree that the issue, for consideration, is whether Mr. Gidharry intended to kill Mr. Brain. In coming to my conclusion that Crown Counsel has proven the essential element of intent to kill beyond a reasonable doubt, I have borne in mind the reasons of A. Campbell J. in R. v. Odulate et al [2001] O.J. No. 4029 (S.C.J.) where he repeats his own reasoning in R. v. Rajanayagam [2001] O.J. No. 393 (S.C.J.) at para. 99:

The mere fact that A. stabs and wounds V. with life threatening results is not, alone, any evidence of intent to kill.

For attempted murder there must be some additional evidence from which the trier of fact may infer that the stabber intended something more than the actual consequence of the wound.

Some wounds, by themselves alone, provide such evidence. Other stab wounds do not. It is impossible to draw a bright line between the two. It is entirely a question of degree having regard to all the circumstances including the nature of the wound, the vital nature of the area wounded, the nature of the combat, the evidence or lack of evidence of premeditation or spontaneity or threat or plan, the presence or absence of evidence of a defensive motivation, the persistence with which the stabbing is repeated or not, whether or not the intent to kill has been established. [3]

Factual Overview

[7] At the time of the incident, Mr. Gidharry was an employee in the shipping and receiving department of Commercial Bakeries. Mr. Brain was the plant manager. Mr. Brain testified that he was aware that Mr. Gidharry worked at the bakery and had greeted him on occasion. That was the extent of their relationship. That changed in the days leading up to the offences.

March 18, 2020

[8] Two days before the incident, on March 18, 2020, Mr. Gidharry attended at Mr. Brain’s office unannounced. Mr. Brain described Mr. Gidharry as “distraught, angry, upset and unsettled”. Mr. Brain’s assistant, Ms. Carmelina Pulla, was present.

[9] Mr. Gidharry complained that other employees in the plant (“Victor” and “Colin”) were asking about his personal life and his weapons collection (i.e., his swords). Mr. Gidharry wanted Mr. Brain to be aware and to do something about it. Mr. Brain told Mr. Gidharry that he would, and he did.

[10] Mr. Brain spoke with Victor first. Thereafter, Mr. Brain invited Mr. Gidharry to another meeting. Initially, Mr. Gidharry did not wish to meet with Mr. Brain, but he eventually did so.

[11] During the second meeting, Mr. Gidharry seemed calm. Mr. Brain told him that he had spoken with Victor and assured Mr. Gidharry that no one would be inquiring about his personal life anymore. Mr. Gidharry responded, saying something like, “I know what he is up to” or, “I know what he is doing”.

[12] Mr. Gidharry mentioned that he had to inform the police that he possessed the swords. Mr. Brain confirmed that he should do so.

[13] At some point, Mr. Gidharry asked Mr. Brain about his religion. Mr. Brain responded, telling Mr. Gidharry that it was none of his business. Mr. Gidharry then explained that he does meditation and asked Mr. Brain if he did too. Mr. Brain replied that he did not. Mr. Brain found the comments about meditation to be “out of the blue” and he tried to change the subject. The meeting ended.

March 19, 2020

[14] The next day (March 19, 2020), Mr. Brain met with Colin and then with Colin and Mr. Gidharry. Mr. Brain believed that the meeting with Colin and Mr. Gidharry was a good one. However, Mr. Gidharry mentioned meditation again.

[15] Mr. Gidharry said that he had seen Mr. Brain when he was meditating. Mr. Brain inquired as to whether that was “good or bad”. Mr. Gidharry replied that it was “bad” but provided no details of what that meant. Mr. Gidharry also mentioned something about chakras.

[16] Mr. Gidharry told Mr. Brain that he had gone to the police station to make a report (presumably about his weapons) but that he was not given access. He had to ring a bell to get into the police station but was not able to enter. Mr. Brain told Mr. Gidharry not to worry and that they were “all good here”. Although Mr. Brain found some of the conversation with Mr. Gidharry to be “strange”, he thought that the meeting went well.

March 20, 2020

[17] The next day, (March 20, 2020), Messrs. Brain and Gidharry arrived at the Commercial Bakeries plant at approximately 8:00 a.m. Mr. Brain was in his office looking at his security monitors when he heard the alarm in the plant. He described this as “unusual”. Mr. Brain believed that an emergency exit had been engaged or that a fire alarm had been set off. He became more concerned because he saw a lot of employees running and exiting the packaging plant.

[18] Although Mr. Brain did not see Mr. Gidharry on the security surveillance videos in the plant, the video shows Mr. Gidharry walking through it. He is carrying the two samurai swords as he does.

[19] Mr. Brain testified that the plant door is close to his office. He heard it open. He looked up. Mr. Gidharry had entered his office. Almost immediately thereafter, he was assaulted by Mr. Gidharry.

[20] I will now outline the evidence that leads me to the conclusion that Mr. Gidharry intended to kill Mr. Brain when he assaulted him.

a. Mr. Brain’s Evidence

[21] Mr. Brain described the assault as follows:

a. Mr. Gidharry entered his office. He had one sword in each hand. They were in the air pointing away from Mr. Gidharry and towards him. b. Mr. Gidharry came around the desk and stood directly in front of Mr. Brain. Mr. Brain described that Mr. Gidharry was “pretty much” right next to him. c. Mr. Brain saw Mr. Gidharry raise the sword overhead. It started coming towards him. In response to that action and in “pure reflex”, Mr. Brain raised his right arm to protect his head and his neck as he believed that to be the trajectory of the sword. To be more specific, Mr. Brain testified that he believed “the path and direction as well as the force of the strike” was directed to his head and/or neck area. That is why he moved the way he did – to protect his head and neck. The first strike with the sword hit Mr. Brain in the area of his right armpit. d. The second strike was to his leg. The second strike was also the result of an “over the head motion” with the sword in the hand of Mr. Gidharry. e. As Mr. Gidharry was striking him, Mr. Brain heard Mr. Gidharry grunting. Mr. Brain described the noise as an “exertion of force”, a “sign of attack”. f. Mr. Brain positioned his office chair between he and Mr. Gidharry to create some space. He asked Mr. Gidharry, “what are you doing?” Mr. Gidharry responded, saying something like, “you were in my head all night”. g. Mr. Gidharry then started moving around the office. He raised the sword and swung it down, splitting the computer screen of the laptop that sat on Mr. Brain’s desk. The computer was open, and it was immediately in front of Mr. Brain at the time. Mr. Brain was startled. h. Ms. Pulla then entered the office. Mr. Brain heard her beg Mr. Gidharry to stop and asked why he was doing this. Mr. Brain heard Mr. Gidharry reply saying something like, “Steve was after him” or “in his head all night”. Mr. Brain heard Mr. Gidharry say that he went to the police and rang the bell, but they would not let him in. i. Mr. Vinh Tu (also known as “Claudio”) then entered the office. Mr. Brain observed him use a chair to buffer himself from Mr. Gidharry. Mr. Gidharry was moving back and forth in front of the desk with the swords still in his hands. j. Mr. Brain does not recall hearing Mr. Gidharry threaten to kill anyone. k. The police arrived thereafter. At that time, Mr. Brain fell to the floor. He believed that he did so because of his injuries and utter relief. He had thought he was going to die. He left by ambulance.

[22] Mr. Brain described his injuries as follows:

• To his right side: The area of his armpit, was cut open.
• To his right leg: His leg was sliced open from the area above his knee to his ankle. Flesh was hanging from the bone. His medial collateral ligament (“MCL”) was cut. The blood loss was significant. Muscle was cut from the leg and he has less muscle in it now.

b. Ms. Carmelina Pulla

[23] Ms. Pulla was in the office area of the plant when Mr. Gidharry entered. Shortly after 8:00 a.m., she heard the alarm and exited her office to check on the keypad. When she did, she heard glass crashing. She looked over and saw Mr. Gidharry in Mr. Brain’s office.

[24] Ms. Pulla observed Mr. Gidharry with the two swords in either hand. They were raised at his waistband area and pointing towards Mr. Brain. She then noticed the damaged laptop and saw that Mr. Brain, himself, was injured. He was bleeding on the right side. He then dropped to the floor. That is when she noticed that his leg was slashed.

[25] Ms. Pulla moved to the left side of the desk and asked Mr. Gidharry what he was doing. She heard Mr. Gidharry utter the word kill, which will be discussed further below. He said something about a police station and that it was closed or about to close. He suggested that she knew what was going on. She denied that she did.

[26] Ms. Pulla observed Mr. Tu come into the office. He was holding a chair in front of him. Mr. Gidharry still had the swords raised. Eventually, Mr. Gidharry lowered the swords. She grabbed a coat to try to stop Mr. Brain’s bleeding.

[27] Ms. Pulla described that this was an extremely traumatic occurrence. She was afraid for her life. That said, she remembers what happened vividly.

c. Mr. Vinh Tu

[28] Mr. Tu (also known as Claudio) is an employee in the bake shop. He was close to Mr. Brain’s office when he looked inside and saw Mr. Gidharry with a sword pointed at Mr. Brain’s left side. Mr. Gidharry was approximately one metre from Mr. Brain when he observed this. They were both behind the desk.

[29] Mr. Tu told Mr. Gidharry to stop and calm down. He did. He did not hear Mr. Gidharry say anything. Ms. Pulla told him to call 911. He left the office and did so. He returned to the office as the police were taking Mr. Gidharry away.

d. Toronto Police Service Evidence

[30] When members of the Toronto Police Service (“TPS”) attended at the office of Mr. Brain, they found Mr. Brain in distress and Mr. Gidharry armed with two samurai swords and a dagger type knife.

[31] Mr. Gidharry was told to put the swords down following which he said, “my issue is not with you guys”. He complied with the police orders, placing the two swords on the desk. Photographs of the samurai swords were filed. There is a handle on both knives. The blade is significantly long.

[32] P.C. Steven MacDonald stated that he observed a knife protruding from the pants of Mr. Gidharry. He put Mr. Gidharry into a headlock and removed the knife from his pants. A photograph of the knife was filed. It looks like a dagger and was contained in a sheath when it was found.

Analysis

[33] Based on the above facts, I am satisfied beyond a reasonable doubt that Mr. Gidharry attempted to murder Mr. Brain on March 20, 2020 when he attacked him with a samurai sword. I come to this conclusion for the following reasons:

a. Mr. Gidharry had an issue with Mr. Brain. He advised Mr. Brain that he had meditated the day before the incident and that he had seen Mr. Brain. He described that as “bad”. b. On the date in question, Mr. Gidharry attended at the Commercial Bakeries plant. He was not in uniform. He was armed with two samurai swords and one dagger type knife. As such, the attack was planned as opposed to spontaneous. c. Mr. Gidharry walked through the plant carrying the two samurai swords in his hands and the third dagger type knife concealed in his waistband. People are seen fleeing the plant at the same time. The reasonable inference to draw is that people saw Mr. Gidharry with the swords, they were scared, ran away and the alarm was pulled. d. There is no evidence that Mr. Gidharry attacked anybody in the plant as he walked to Mr. Brain’s office. This leads to the inference that Mr. Brain was the intended target. e. When he entered Mr. Brain’s office, Mr. Gidharry was armed with the two samurai swords and the dagger type knife. Both swords were pointed towards Mr. Brain when he did so. f. Mr. Gidharry quickly approached Mr. Brain behind his desk. Almost immediately, he raised the samurai sword above his head. I am satisfied that Mr. Gidharry intended to assault Mr. Brain in the head and neck area (both vital areas of the body). He was unsuccessful in making contact there only because Mr. Brain raised his arm to protect his head and neck. g. Mr. Brain was slashed under the armpit on the right side of his body, causing significant bleeding. h. Thereafter, Mr. Gidharry did not stop assaulting Mr. Brain. He slashed Mr. Brain a second time in the right leg, causing profuse bleeding as described by Mr. Brain and others. Photos from the office taken after the incident also corroborate the significant blood loss. i. Thereafter, Mr. Gidharry moved from the back of the desk to the front. He was now face to face with Mr. Brain (with the desk between them) as he raised the samurai sword above his head. He brought it down with such force that it slashed the screen of the laptop computer, splitting it in two. Mr. Brain was extremely close to Mr. Gidharry and the sword when this occurred. j. When Mr. Tu entered the office, he described that Mr. Gidharry was behind the desk, adjacent to Mr. Brain. As such, Mr. Gidharry must have moved back behind the desk, closer to Mr. Brain as Mr. Tu entered the office after the assaults. k. Although both Mr. Tu and/or Ms. Pulla were in the office with Mr. Gidharry (for approximately six minutes before the police arrived), no attempts were made to injure them. When the TPS arrived, Mr. Gidharry advised that his issue was not with them. As such, Mr. Brain remained the subject of Mr. Gidharry’s attention, even when others entered the office. l. Although there were no further assaults on Mr. Brain after Mr. Tu and Ms. Pulla entered the office, I find that Mr. Gidharry had the intention to kill Mr. Brain based on what happened before they arrived. m. The location of the injuries to Mr. Brain were significant. Mr. Gidharry missed hitting Mr. Brain in the head and neck area because Mr. Brain moved but he was stabbed in the armpit area, close to the chest. The stab to the leg was significant, severing his MCL. n. The bleeding, in and of itself was tremendous.

[34] While I am satisfied that the intention to murder is proven on the facts outlined above, there are also utterances made by Mr. Gidharry to “kill” that I have considered in coming to my conclusion.

a. Ms. Pulla

[35] Ms. Pulla testified as follows with respect to the utterances to kill made by Mr. Gidharry when she entered the office:

• At trial: After Ms. Pulla saw that Mr. Brain was injured and his laptop was damaged, she asked Mr. Gidharry, “what are you doing?” He said that he was going to “kill Steve” and that he was not afraid to die.
• After Mr. Tu entered, Ms. Pulla testified that she heard Mr. Gidharry say something like, “he was not afraid to kill us too”.
• To the police: At the commencement of her statement to police taken inside a cruiser immediately following the incident (i.e. at 9:11 a.m.), Ms. Pulla told police that Mr. Gidharry said, “Get out of here or else I’ll kill you too. I’m not afraid to die”.
• Later in the statement, she reported that Mr. Gidharry said, “I don’t care if he dies, I am going to kill you too, meaning me.”

[36] Ms. Pulla testified that she is 100% confident that Mr. Gidharry said the things that he did when she was in the office in reference to killing Mr. Brain. When asked to explain the difference between her evidence at trial and her statement to police, Ms. Pulla testified that she is sure that Mr. Gidharry said that he was going to kill Mr. Brain and that he was not afraid to die. She explained that she may not have told the police that, that day because “there was a lot going on that morning”.

[37] When asked about the utterances in re-examination, Ms. Pulla could not remember if the utterances referred to in her statement were made when Mr. Tu came into the office, but she believed that Mr. Gidharry was suggesting that he was not afraid of killing the two of them, “meaning us”.

[38] Counsel for Mr. Gidharry submits that the words attributed to Mr. Gidharry by Ms. Pulla at trial are not reliable because her evidence is inconsistent with what she said in her statement to police immediately following the incident when things were freshest in her mind. Further, counsel for Mr. Gidharry asks me to find that the use of the word “too” should be understood as numerical (i.e., “two”). In other words, the statements should be read and understood as, “Get out of here or I’ll kill you two” (meaning Ms. Pulla and Mr. Tu) as opposed to being in addition to Mr. Brain.

[39] Based on the entirety of the circumstances, I find that the logical meaning of the word used by Mr. Gidharry is “too”. Mr. Gidharry had issues with Mr. Brain. He had slashed him twice before Ms. Pulla and Mr. Tu came into the office. The logical inference is that his threat was that he was going to kill them “too” (i.e., in addition to Mr. Brain).

[40] Although the context in which the word “kill” was used varied between Ms. Pulla’s report to police and at trial, I am satisfied that Mr. Gidharry used the word kill and that it was used in reference to Mr. Brain. At the time he made the utterance to kill, Mr. Brain was the only person injured at the hands of Mr. Gidharry. Despite Mr. Gidharry being in the office with both Ms. Pulla and Mr. Tu for some time before the police arrived, he never slashed or attempted to assault them.

b. D.C. Gravelijn

[41] In a statement that I ruled admissible, D.C. Gravelijn testified that he heard Mr. Gidharry say that he had to kill “Steve” after he answered questions about his address. D.C. Gravelijn’s evidence about what Mr. Gidharry said at that time is as follows:

So he stated that a spell was put on him but Steve was causing visions to persuade his seven chakras, that he was reading his mind and that he had to kill him. He said that he had to – he had previously attended a police station. He had taken a Jane bus and that when he went there to speak to the police about this, he was provided with pencil and paper to make his complaint or his statement. He was completely calm during the entire time, and he had stated that he’d attended to kill Steve due to the spell/curse and that he had gotten that suggestion in his stomach while he was meditating … I don’t recall if it was the night previous but he had stated that he’d had a dream that Steve would come to him in his dream that he had to defecate in his mouth in order to break the spell, and that Steve was able to vomit it out so the spell – he wasn’t able to break the curse. [4]

[42] Counsel submits that the utterances recorded by D.C. Gavelijn in his notebook are not reliable because they are neither video nor audio recorded. Further, D.C. Gravelijn’s evidence is not reliable because he did not record anything in his notebook about the defecation incident and only remembered it a year later when testifying at the preliminary hearing.

[43] While I accept that it would have been ideal if the utterances made by Mr. Gidharry to D.C. Gravelijn were video or audio recorded, D.C. Gravelijn had not intended to take any statements from Mr. Gidharry when he entered the interview room. He wished to know his address and if anyone lived with him to determine if there were any other victims. He had his notebook with him to record that information. When Mr. Gidharry started to volunteer other information, he recorded it in his notebook to the best of his ability. The circumstances giving rise to the utterances drove the method of creating the record.

[44] Further, there is indicia of reliability in the content of the notes recorded. Essentially, all that D.C. Gravelijn knew when he went into the room was that there was a stabbing, that the victim had suffered significant injuries and Mr. Gidharry had no records in the Versadex system. He did not know anything else, including the name of the victim.

[45] What D.C. Gravelijn recorded includes details that are similar to what other witnesses heard and what can be heard on the video surveillance. For example:

Evidence of what D.C. Gravelijn recorded from Mr. Gidharry	Other evidence that makes what D.C. Gavelijn heard Mr. Gidharry say, reliable
That he had to kill “Steve”.	Prior to speaking to Mr. Gidharry, D.C. Gravelijn did not know the name of the victim was “Steve” Brain. Further, Ms. Pulla heard Mr. Gidharry make a reference to “kill” during the incident.
That he had gotten the suggestion to kill Mr. Brain while meditating.	Before the incident, Mr. Gidharry had told Mr. Brain that he saw Mr. Brain while meditating and that that was “bad”. While Mr. Gidharry was alone in the cruiser, he is overheard on the in-car camera system saying the following, “The man …They want to fuck with my brain. Magic man. Whole night last night. Magic. I don’t give a … right now. Yeah.”
That he made a reference to chakras.	Mr. Gidharry had mentioned chakras to Mr. Brain before the incident. Upon his arrest and heard on the in-car camera audio, Mr. Gidharry told TPS, “I’m a seven-chakra master. I purge easily”.
That he had previously attended at a police station.	Mr. Gidharry had mentioned that he was going to report the possession of his swords to police when speaking to Mr. Brain before the incident. Both Mr. Brain and Ms. Pulla heard Mr. Gidharry refer to his attendance at the police station during the incident. Video surveillance was played of Mr. Gidharry being escorted to the police cruiser. While Mr. Gidharry is not visible, he can be heard saying something as follows: “I went to report [sorcery] [5] problems. I go to the cops, and they told me to come back. I said I am gonna [sic] hurt somebody. He says come back so I am coming back.”

[46] Based on the above evidence, I am satisfied that Mr. Gidharry used the word “kill” when in the presence of D.C. Gravelijn. As I have stated above, Mr. Gidharry was the only victim who had suffered significant injuries at the hands of Mr. Gidharry. I find that he intended to kill Mr. Brain as he advised D.C. Gravelijn.

Conclusion

[47] For these reasons, I am satisfied beyond a reasonable doubt that Mr. Gidharry attempted to murder Mr. Brain on March 20, 2020. As such, in addition to the convictions for aggravated assault and carry concealed weapons, he is convicted of attempted murder.

Kelly J.

Released: April 14, 2022

Footnotes

[1] [2001] O.J. No. 4029 (S.C.J.), at page 16

[2] [2001] O.J. No. 393 (S.C.J.), at para. 19

[3] See also: R. v. Ancio (1984), 10 C.C.C. (3d) 385 (S.C.C.)

[4] At the time these offences were committed, the pandemic had just started in Toronto. Det. Grave testified that all police divisions in Toronto were closed for “walk-in traffic or people”.

[5] The audio is not perfectly clear, but I believe that the word “sorcery” was used.