IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
R. v. Sihota, |
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2009 BCSC 12 |
Date: 20090107
Docket: 139101
Registry: Victoria
Regina
v.
Randeep Ricky Sihota
Before: The Honourable Madam Justice Humphries
Reasons for Judgment
| Counsel for the Crown |
D. Murray, Q.C. |
| Counsel for the Accused |
S.R. Chamberlain, Q.C. |
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Date and Place of Trial/Hearing: |
November 26 – 28; |
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Vancouver, B.C. |
[1] Randeep Ricky Sihota is charged with second degree murder in respect of the death of Terry McLean, on February 1, 2004, in Victoria, B.C. He is also charged with attempted robbery and break and enter with intent to commit an indictable offence.
OVERVIEW
[2] The victim, Mr. McLean, lived in a large house in Oak Bay, situated on Humber Road, which is a cul-de-sac off Beach Drive. There were five people living in the house. Mr. McLean had been a student at the University of Victoria, but was no longer attending university at the time of these events. He was engaged in a cocaine trafficking business.
[3] The theory of the Crown is that three men, Mr. Sihota, Mr. Biros and Mr. Sproule, formed a plan to break into the house on Humber Road to steal a large amount of money they had been told could be found there. They expected that approximately half a million dollars would be easily located in the house in one of the bedrooms. They did not expect anyone to be home. Mr. Sihota took a baseball bat and duct tape with him as the three men went to the house sometime after midnight, in the early morning hours of Sunday, February 1, 2004. Mr. Biros and Mr. Sproule were reluctant to continue in those circumstances, especially after having looked in the living room window on their arrival and discovering someone asleep on a sofa. Mr. Sihota persuaded them to continue, but the duct tape was left on the lawn.
[4] According to the Crown’s theory, the three entered the house. Biros and Sproule began ransacking the bedrooms, and at some point they heard sounds of conflict downstairs. They raced down, saw Sihota attacking the person in the living room and ran. Sihota followed, bringing part of the baseball bat with him.
[5] The police were called to the scene by one of Mr. McLean’s roommates at around 3:30 a.m. Mr. McLean had been the victim of an extensive beating and died of head injuries from a blunt object.
[6] Evidence called at trial established that the barrel end of a broken baseball bat was found at the scene beside the body when the police arrived. A repeater pellet pistol was lying nearby. A roll of duct tape was found on the lawn outside the house. $700 in cash was found on the floor of the ransacked master bedroom. $3,000 and some cocaine were found in a chair in the dressing room to the master bedroom. Subsequent evidence identified the master bedroom as occupied by Mr. McLean.
[7] Following a crime boss scenario conducted by undercover police officers some months later, arrests were made. In 2006, Mr. Biros entered into an agreement to testify for the Crown in exchange for a being allowed to plead to break and enter and attempted robbery, with a stay of proceedings entered on a charge of manslaughter. He is serving a sentence of imprisonment of four years. Mr. Sproule was convicted at trial of break and enter in 2007 and is serving two and one-half years.
[8] The Crown’s case rests primarily on the evidence of Mr. Biros. There are many reasons to be cautious about his testimony. He has entered into a beneficial plea agreement, he has an unsavoury background, although no convictions, and his evidence is at odds in many ways with previous statements and with things he told the undercover policemen masquerading as the crime boss and his henchmen. While Mr. Biros professes to have changed his ways as a result of some unexplained epiphany, much of what he said rang false. It would be unsafe to rely on his evidence and dangerous to base a conviction on it unless it is confirmed in a manner that establishes its reliability. Even so, his evidence is so frail that even where there is corroboration for particular pieces of it, that corroboration is of assistance only for those specific portions of the evidence and does not assist in establishing his overall reliability. While the law as set out in R. v. Vetrovec [1982] 1 S.C.R. 811 and the cases that followed it does not require such a stringent approach, it is my view that it is necessary in the circumstances here in order to ensure a fair trial.
[9] One of the important things Biros told the crime boss, which differed from his evidence at trial, was that the beating was done by a young man named J.D. Bassi, since deceased. During the crime boss scenario, Mr. Biros was presented with a fax purportedly obtained from the police by the all powerful crime boss, listing suspects in the murder. Biros said one of the listed suspects, Ravi Nutt, also by then deceased, was not at the Humber Road house, but J.D. Bassi was, and so was he, Sproule and Sihota.
[10] The Crown put in, by admission, the cell phone records of a phone owned by Mr. Bassi, Sr., which he used for his business and let his son, who lived with him, use after 6:00 p.m. The phone would be returned to Mr. Bassi Sr. when his son got home. The admissions contain a list of phone numbers and registered owners of those numbers. The records establish that the phone was used from Abbotsford through the night of January 31/February 1, 2004, with calls in the late evening to phone numbers listed in the admissions that Mr. Bassi testified he had never called. One of the numbers called numerous times on the evening of January 31, 2004 was that of Ravi Nutt. Calls from that cell phone, situated in Abbotsford, continued through to just after midnight, and recommenced at 9:00 a.m., originating from West Vancouver, then returning to Abbotsford. None of the numbers called as of 9:00 a.m. on February 1, 2004 were numbers listed in the admissions, except for Mr. Bassi Sr.’s own home phone number.
[11] According to Biros’ evidence at trial, J.D. Bassi was not at the Humber Road house that night. Only the three of them were there – himself, Sproule and Sihota. Biros testified that as he ran down the stairs to get out of the house, he looked into the living room and saw Sihota standing in an attack position with a bat, and Mr. McLean in a defensive position holding himself.
[12] Mr. Sproule, who had refused to testify at the preliminary hearing of this matter and had not testified at his own trial, was called as a witness in the trial, although the Crown had never had an opportunity to interview him. He testified he went along on this occasion at the request of Biros, and he received all his information from him. As Sproule was upstairs looking for the money, he grew angry with Biros because the money was supposed to be easy to find, but they could not locate it. Biros went downstairs 5 – 10 minutes before Sproule did, and when Sproule finally decided to leave, he glanced into the living room. He saw Biros and Sihota in the room and a body on the floor. He ran to the car, and the other two followed close on his heels.
[13] That is the basic overview of the Crown’s case. The defence did not call evidence.
[14] I will now review Mr. Biros’ and Mr. Sproule’s evidence in more detail.
BIROS’ EVIDENCE
[15] Biros said he was approached by Sihota who told him there was about half a million dollars stashed in a mansion in Oak Bay. He was told it would be an easy score; it was in a bedroom or a safe and no one would be home. Biros had known Sihota for six to eight months by this time. Biros said he and Sihota went to look at the house that day, but Sihota needed more information so a meeting with Sihota’s sources of information was set up at Camosun College. Biros, Sihota and Sproule met with two men, Matt Fadden and Sean Gurney, in a parking lot of the college in the early afternoon. Biros said he and Sproule held back and did not participate in the meeting. After the meeting, he, Sihota and Sproule drove by Humber Road a few times during the afternoon. He said they could see the driveway on their drive-by’s and could see there were two or three cars at the house.
[16] Biros testified that at some point in the evening, about 7:00 or 8:00 p.m. when it was dark, they saw there were no or fewer cars in the driveway, and presumed no one would be home. They were all wearing black clothes, toques and neck warmers that could be pulled over their faces. According to Biros, this was at the instance of Sihota. They took Biros’ vehicle, and parked on a nearby street. Biros said they did not discuss the roles they would play; they were just excited about the money.
[17] Biros said the three crept onto the property through a hole in the hedge that borders Humber Road. Sihota was carrying a bat and a roll of duct tape. Biros said Sihota told them he brought those items along for intimidation. After some confusion over the sequence of events, Biros claimed that the three of them went to the back of the house, noting smashed glass all over the grass. This detail was never touched on again or explained by any witness.
[18] Biros said they looked in the living room window. They saw a person sleeping on the couch on the far side of the room. This startled them, and they returned to the treed area at the side of the driveway in front of the house to decide what to do. Biros said both he and Sproule were reluctant to continue with the venture. Biros said Sihota encouraged them to go in, pointing out that the person was surrounded by beer bottles and was probably passed out. Sihota said if the person woke up, he would use the bat for intimidation. Biros and Sproule questioned the necessity for tape again and it was left on the lawn.
[19] Biros said they tried the front door but it was locked. They went in another door to the left, which accessed the left side of the house. They searched a bedroom and found nothing. He and Sproule went upstairs and searched two other bedrooms, including the master bedroom. He said they tried to be quiet, but they were making noise. Sihota came in briefly to ask if they had found anything; he had the bat with him. Biros also recalled searching a loft bedroom located in a separate wing of the house. They did not find any drugs or money. Neither Biros nor Sproule was asked about the $700 found by the police in plain sight on the floor of the master bedroom.
[20] The search came to an end when they heard a commotion downstairs: swearing and loud voices from two people. Biros said they looked at each other and ran downstairs. Biros testified that he saw Sihota through the living room door, in an attack stance with a bat. Mr. McLean was in a defence mode, holding his side. Biros and Sproule ran for the car. Sihota showed up 5 – 10 minutes later with the handle part of the bat in his hands.
[21] Biros said Sihota said that the person wouldn’t tell him where the money was and had stood up to him. He had to beat him up and had beaten the crap out of him.
[22] They drove to Biros’ house which was nearby. Sihota threw the broken bat out the window on the way to Biros’ house. When they got to Biros’ house, Sproule left right away. Sihota suggested they throw away their clothes because they had been involved in a serious incident and did not want a connection to it. Biros went in and changed his clothes. He drove Sihota to his cousin’s house. Sihota changed, threw his clothes to Biros, and Biros took them and put them and his own clothes into a dumpster on Shelbourne Street.
[23] Biros said he then went to his girlfriend’s, who was with Sihota’s girlfriend, Ms. Marlinga. Sihota got a ride there separately. The four of them drove in Biros’ car to an all night coffee shop. They stayed there all night. Later he dropped Sihota and his girlfriend off at Ms. Marlinga’s place, and he went home with his girlfriend.
[24] Biros said the three agreed that they would never talk about the events. At some unspecified time, Sihota told him if they got any heat for this incident, to blame it on J.D. Bassi who had been killed several months after this incident.
[25] Later in 2004 and on into 2005, Biros became involved in a series of crime boss scenarios put together by undercover police officers which led to his arrest in April of 2005 as he and Sproule were at the airport preparing to leave for Greece.
[26] When Biros was called to account by the crime boss for “bringing heat” on the organization, he testified he “spat out a story quickly in fear of his life.” He told the undercover police officer posing as the crime boss that J.D. Bassi had been there, along with Sihota, himself, and Sproule. At one point he brought Sproule into the crime scene scenario. No evidence of Sproule’s interaction with the “criminal organization” was before the court.
Cross of Biros
[27] Mr. Chamberlain’s detailed cross-examination of Biros fully exposed the frailties of his evidence.
[28] When taken in the context of other evidence, Biros’ account of the timing of the meeting at Camosun College (mid afternoon) and the subsequent events at Humber Road (early evening) are not sustainable. Biros could not explain why he drove the group to Camosun College if he had no intention of and did not participate in the meeting with Gurney and Fadden. He could not explain why he, 23 years old at the time, would simply follow along with 19 year Sihota. He agreed it was silly to expect a small-time drug trafficker like Mr. McLean to have a large amount of cash readily available somewhere in an unlocked house. He agreed they had no plan to get into a safe if there was one. Biros’ only response was to say the thought of the money made them blind.
[29] Mr. Biros testified that they drove by Humber Road several times waiting until there were no cars there, indicating no one was home. At one point, there no cars; when they went to change and returned, there was one. He agreed, however, that they could not see the garage from the street, nor could they see the front door of the house.
[30] Biros did not, according to his evidence, bother shampooing his car seats or ensuring that Sihota’s clothes were in a bag before putting them in his car, although he agreed Sihota’s clothes would have had blood on them given his account of the events, and that Sihota had sat in his car when they left Humber Road.
[31] Biros insisted he told the undercover police officer posing as the main contact for the criminal organization that he would not do anything involving drugs or violence, but the notes of the officer who played the primary contact, put to Biros in cross examination, do not include a reference to refusing to use violence. In fact Biros boasted of his violent acts and offered to assist with tasks that would involve violence, including homicide, and said he would provide an alibi if required, even to the point of perjuring himself in court. Despite his continued refusal to have anything to do with drugs, he agreed he transported suitcases for the criminal organization without knowing what was in them.
[32] The undercover police officers’ criminal organization scenarios drew to a close when Biros was told their big project was in jeopardy because the crime boss had learned that Biros was under investigation for something. Apparently coincidentally, Biros had been interviewed by the police a few days before. He had been told by the police he was a suspect, but appeared confident that he had dissuaded them.
[33] In one of the final scenarios in the crime boss sting, a fax was produced to Biros by one of the crime boss’s assistants, purportedly from the police. This faxed document named him, Sihota, Sproule, J.D. Bassi and Ravi Nutt as suspects, along with the information that someone was talking to the police and that DNA analysis was expected to result in arrests in the next two weeks. This caused Biros great apprehension. He testified he feared for his own safety, not only because of the possibility of arrest, but because he was convinced he had almost brought this big organization down and he was frightened of the members of the organization, whom he thought were connected to mobsters from Montreal and the United States. However, he was also convinced that the crime boss could fix it all.
[34] During the interview with the crime boss, Biros was told “there was a rat in the woodpile”. Biros told the crime boss that he only cared about Aaron Sproule, not Sihota. This was one consistency in his evidence: at trial he still maintained his support and admiration for Sproule. Biros told the crime boss he would have to coach Aaron Sproule on the story of what had occurred that night. He brought Sproule into the scenarios at one point, but no further evidence was led of any conversations involving Sproule and the crime boss.
[35] Biros told the crime boss that J.D. Bassi had been with the three of them that night, he was a hot head with a violent temper and he had started smashing the victim with a bat and killed him. Biros said he had cleaned everything and had been completely covered in gloves and other clothing; he did not see how his DNA would be there.
[36] On another occasion, Biros also told the crime boss that he had not actually seen anyone do anything - he just heard about it later.
[37] Biros said the bat had been thrown out in a dumpster, but he also mentioned that it might have been broken and part of it might have been left at the house. He told the crime boss that he had not seen the bat, and the others had told him they had taken care of the bat. He also mentioned that there had been some “masking tape,” but said it was not left at the house, “they” told him they threw it somewhere down the road.
[38] Biros testified that the notion of a piece of the bat being left at the scene came from having seen Sihota come back to the car with the handle of the bat.
[39] After his initial meetings with the crime boss in which Biros said he feared for his life and “spat out a story,” and when the atmosphere had calmed down, he told the crime boss he himself had just been tagging along, as he was not really a violent person.
[40] Biros’ statements to the police following his arrest while the plea arrangement was being worked out are full of inconsistencies, particularly with respect to sequences of events after the group left Humber Road. It appears that he tried to convey that he and Sihota dumped the clothes together, but eventually had to agree that he had been alone when he got rid of the clothes. He told various versions of getting rid of the bat – that it had gone in the dumpster with the clothes, then that one of the guys might have broken a bat on the victim and a piece of it might have been left at the scene. He later told the police in a statement that the handle of the bat had been thrown out with the clothes, or “a shard” of it was thrown out the window of the car by Sihota.
[41] It was not until the second interview with the police following his arrest that Biros mentioned Fadden and Gurney. He identified Fadden by name and said the other man was “a white kid with an East Indian name”. It was suggested to him in cross-examination that he had not mentioned them before because he did not want to the police to talk to them and learn that he had been involved in the planning. He denied this and said it was because he did not want to implicate anyone else.
[42] All of Biros’ inconsistencies were explained by him in one of three ways. Whenever he was confronted with an inconsistency between what he had testified to in court and what he had told the crime boss, he said he had been frightened for his life and “just spat out a story.” He said his concern was not so much whether the crime boss would be able to fix the impending charges, although he was confident that he could do so; his concern was what these men in the criminal organization might do to him. It does appear that his account to the crime boss was designed to minimize his involvement and deflect attention away from his role in the events that were apparently threatening to bring down the organization.
[43] In respect of the inconsistencies in the interviews with the police, he repeated over and over that he was “trying to piece it together” or that he “was trying to jog [his] memory.”
SPROULE’S TESTIMONY
[44] Sproule testified that he and Biros had been friends since junior high school. At some point he met Sihota.
[45] In January of 2004, Biros asked him to come along on the Humber Road rip-off to watch out for him, and to wear something dark. He went to the Camosun College meeting in Biros’ car that night. There were two males there he did not know. He stayed back, and did not look at them or pay attention. He was very apprehensive. Sihota and Biros were standing close to the two guys. Sproule said he was not close enough to hear any conversation. The meeting ended.
[46] He, Biros and Sihota drove towards Humber Road. They drove past the house and Biros pointed it out from Beach Drive. Sproule said he could not see into the driveway. Biros parked on a side street.
[47] They walked across the yard and stopped at a tree and bushes and talked about how and where they would get in. Sproule said he noticed a car in the driveway; there might have been discussion about it and whether it meant someone was home, but he did not recall, and said he relied on Biros who had told him no one was supposed to be home.
[48] Sproule said he was uncertain about the layout of the house and yard as it was pitch black when he was there. They walked to the back yard and across the grass. They went in a glass entry. Sproule said he does not remember a weapon, a bat, or duct tape. He said he did not look in the house, and did not notice the other two look in, but he did notice a light on. He trusted Biros who had told him no one would be home.
[49] He followed Biros into a foyer and up a flight of stairs. He said that was where Biros had told him the money was. Biros seemed to know where the money would be found so he stuck close to him. They looked through some bedrooms; they found nothing. He does not recall Sihota coming upstairs. Biros went downstairs. Sproule stayed upstairs for another 5-10 minutes searching and then got fed up. He said he did not hear anything specifically from downstairs; he heard noise but did not know if he was making it, as there was noise as they pulled the rooms apart.
[50] Sproule said he walked downstairs and saw Biros and Sihota standing in the room straight ahead that looked like a living room area. He walked toward the room, got to the doorway, and saw that there appeared to be somebody lying on the floor. He ran to the car, and the other two were there a few steps behind him. He did not deny that there was discussion about the person on the floor, but he claimed not to remember it and could not recall any exact words. He said there was panic, he was upset, swearing.
[51] They drove to Biros’ house, which was a few blocks away. His car was at Biros’ house. He went home. He threw the clothes he’d been wearing into a dumpster because he did not want to keep the clothes he had worn in that house.
[52] He went to see Biros the next morning, after hearing a parent mention at a hockey practice he was coaching, that someone had died in an incident in Oak Bay. He later saw Sihota at a party but does not recall ever speaking to him again.
Cross of Sproule
[53] Sproule said he did not search any bedrooms on the first floor or in the loft area. He did not search the attic space upstairs, which was hidden behind some shelves that had been pulled out and left on the bathroom floor. He agreed he did not try to be quiet as he ransacked the bedrooms because he believed the house was empty.
[54] Sproule said he was wearing dark clothes, gloves and something covering his face. He said Sihota had similar clothing, but did not recall if he had a toque.
[55] Sproule agreed that he cannot remember how long Biros had been gone before he went downstairs. He said he could not say for sure whether Sihota came upstairs or not, but he did not recall seeing him. When he saw Biros and Sihota standing in the living room, he thought they were relatively close to each other, but he believed Sihota was nearer the door.
POSITIONS OF CROWN AND DEFENCE
[56] Before analyzing the evidence of Biros and Sproule in the context of all of the evidence, I will set out the basic positions of the Crown and defence in order to give context to that discussion.
[57] The Crown says it has proven the charge of second degree murder in a number of ways: first, if Biros’ evidence is accepted, then Sihota is the principal offender. Alternatively, the Crown says Sihota is a direct participant as a co-principal; in the second alternative, he was an aider and abettor and is guilty of murder under s. 21(1) of the Criminal Code. The Crown also advanced an argument under s. 21(2) – common unlawful purpose.
[58] Mr. Murray submitted that in each case, although the Crown cannot prove exactly what occurred, it has proven the intent required for murder because of the prolonged nature of the beating.
[59] The Crown submits that Sihota was the mastermind behind this plan, and was the one prepared for violence. According to Gurney and Fadden, Sihota set up the meeting at Camosun College; Gurney told Sihota what car Mr. McLean drove and that he might have a weapon, which would prompt Sihota to anticipate the need for one of his own. They all wore disguises, thus suggesting they were prepared for someone to be in the house. According to Biros and Sproule, Sihota was downstairs alone for some time.
[60] While intent to murder might not have been present going into the house, Sihota had a contingency plan, which is evident by his taking the bat. At some point it became necessary to use the contingency plan. Once the prolonged beating began and continued, the assailant or assailants must have intended to cause death or to cause grievous bodily harm that was likely to cause death and were reckless whether death ensued or not. At the very least, the Crown has proven the intent required for manslaughter – an unlawful act, inherently dangerous, with a foreseeable risk of more than transitory harm.
[61] The defence concentrated on the frailties of Biros’ evidence, which are well-established. Mr. Chamberlain says the central core of Biros’ evidence must be accepted for the Crown to succeed. Otherwise there is no evidence Sihota was even there at the house, except from Sproule, whose evidence should itself be suspect. All Fadden and Gurney do is put Sihota in on the planning. The evidence potentially confirming Sihota’s presence all comes from unsavoury witnesses and is unreliable. However, if the court finds Sihota was there at the house, the defence concedes he is guilty of the charge of break and enter with intent.
[62] The defence contends it is necessary to accept Biros’ evidence to give the factual underpinnings for an attempted robbery – that is that Mr. Sihota took a bat, prepared for violence, and entered the house knowing someone was home. Sproule denies any knowledge of the bat or of seeing anyone through the window, but defence contends that the most likely scenario is that Biros and Sproule did the beating, leaving the younger Sihota, who was not their friend, to take the blame.
[63] The defence contends that given the nature of the beating, and the information ostensibly available to the crime boss, it would have been obvious that one person could not have done the beating. Therefore Biros, to cover himself and Sproule, brought in J.D.Bassi during his account to the crime boss. Mr. Chamberlain did not take issue with the Crown’s primary contention that whoever inflicted such a beating would have the intent for murder, not manslaughter. However, the defence says the Crown’s case rests on Biros and nothing he says should be accepted.
CONFIRMATORY EVIDENCE OF BIROS AND/OR SPROULE
Presence of Sihota at Humber Road
[64] I will first consider the evidence in respect of the issue of whether Mr. Sihota was at the Humber Road house. In keeping with the general approach to Mr. Biros’ evidence, this entails a consideration of whether there is independent evidence to support Biros’ evidence on this issue.
[65] The Crown called two other witnesses who testified that they had met with Sihota that night, prior to these events taking place: Matt Fadden and Sean Gurney.
[66] Matt Fadden testified that he knew Sihota. He also knew Biros. He had never met Sproule. Fadden said Sihota asked him if he knew anyone with drugs or money. Fadden told Gurney about Sihota’s inquiry. Gurney said he knew someone, and Fadden relayed that to Sihota. A meeting was arranged at Camosun College to pass on the whereabouts of the person’s residence to Sihota. Fadden said all five people participated in the conversation at the parking lot; Gurney told them where the house was and that there was money in the house. Fadden knew that the person’s name who lived in the house was Terry, but did not know his last name.
[67] Sean Gurney admittedly lied to the police when first questioned about these events and only cooperated upon being granted immunity. Gurney testified that he also knew Sihota. Gurney said he and his friend, Matt Fadden, who was also a friend of Sihota’s, met in the Camosun College parking lot so he could tell Sihota where the house was located where money might be found. Gurney knew Terry McLean from having bought cocaine from him once, and he had also driven a friend, Robbie, to Mr. McLean’s house to buy cocaine. Gurney said there were three people in the parking lot, but the other two stayed back. All he could tell was one was taller. As an aside, Sproule appears to be noticeably taller than Biros. Gurney said he did not know Biros, although he had heard his name, and did not know Sproule.
[68] Gurney said he told Sihota that he had heard there was a large amount of money at Terry McLean’s house, and that Mr. McLean had sold large amounts of cocaine. Gurney gave no evidence as to possible locations of the money in the house. Gurney said he also told Sihota that Mr. McLean drove a silver sedan, and that there might be a weapon in the house. Then he, Sihota and Fadden left the parking lot in Gurney’s car so he could show Sihota where the house was. They then returned with Sihota to the parking lot, where Gurney repeated what he had told Sihota to the other two. Contrary to Gurney’s evidence, none of Fadden, Biros or Sproule recalled anyone leaving the parking lot and returning during the meeting. Gurney said he and his friend Robbie tried to contact Mr. McLean that night around midnight in order to buy some cocaine but were unsuccessful.
[69] Biros testified that he and Sihota spent the remainder of the early morning of February 1, 2004 with their girlfriends at an all night coffee house. This was confirmed by Ms. Marlinga, who was Sihota’s girlfriend at the time. She testified she had tried to reach Sihota many times during the evening of January 31, 2004, and eventually arranged to meet him after midnight at the Tillicum Mall parking lot. Ms. Marlinga did not recall if Sihota and Biros arrived together, but she recalled that the four of them went to the coffee house in her girlfriend’s car. This would have been about 1:30 a.m., and they stayed until 5:00 or 6:00 a.m.
[70] Sproule also supported Biros’ evidence that Sihota was with them that night. He was not challenged on this evidence, and the narrative he gave in overall terms is consistent in itself and generally with that of Biros.
[71] There is reason to be cautious with respect to all of these witnesses, except perhaps Ms. Marlinga. Their motivations are suspect to varying degrees. As I have mentioned, Biros’ evidence has to be scrutinized with the utmost care and is of little or no weight without corroboration. Gurney has cooperated only after being granted immunity, and both he and Fadden had expected to profit from this venture. Sproule has already been tried and convicted. There is no suggestion that he entered into any immunity agreements, but his memory was conveniently selective.
[72] Nevertheless, after a consideration of all of their evidence in the context of the evidence as a whole, I am satisfied beyond a reasonable doubt that Sihota was with Biros and Sproule when all three entered the Humber Road house, with the intent to steal money they thought was there, and that he remained in the house until the three of them left, and he stayed with Biros for the rest of the night, except for the time between changing his clothes and meeting up with their girlfriends after Biros went to the dumpster.
Timing; presence of car at house
[73] The house on Humber Road is large. It has six bedrooms, four bathrooms, and a large living room overlooking the ocean. It is set back from Humber Road, which is itself a cul-de-sac off Beach Drive. The house is surrounded by a high hedge. The driveway is circular, and passes under a porte cochère at the main entrance to the house. There is a large detached garage some distance from the house which is not visible from the road. From the pictures provided to the court, it appears that the porte cochère is not visible from the road either, as it is screened by trees.
[74] Jennifer Jorgensen was called as a witness. She used to live in the Humber Road house, and dated Terry McLean for awhile. She no longer lived there at this time. She was aware that Mr. McLean was trafficking in cocaine. She said the front door to the house was always unlocked. She was in contact by phone and text with Mr. McLean on the night of January 31, 2004, up to about 11:45 p.m., and did not hear from him again.
[75] The only occupant of the house called as a witness was Eric Brown. He said five people lived in the Humber Road house. He was also aware that Mr. McLean was trafficking cocaine. He had gone downtown with his brother on January 31, 2004 and came home about 2:30 a.m. or 3:00 a.m. He found the body on the floor of the living room. He called the police. He testified that Mr. McLean’s car, a gray Saturn, was parked under the porte cochère at the front door. Cst. Henderson, who responded to the call at 3:25 a.m., also noted the gray car there.
[76] Biros said the group had driven by and noticed two cars. Then they drove by again and the cars were gone. They went to change and when they came back, there was one car there.
[77] According to another witness, Jason Stearn, Mr. McLean had left the house at some point to sell him some cocaine at a pub on Cook Street around 11:00 to 11:30 p.m., so there would have been a period of time in which there were no cars there. However, according to Biros and Sproule, there was a gray car visible off to the right of the house when they entered the premises. According to Gurney, Sihota had been told that Mr. McLean drove a silver car.
[78] It is difficult to understand how repeated drive-bys of a house on a cul de sac, behind a high hedge, would serve the purpose of ensuring that no one was home. In any event, I am satisfied that the gray car was at the front of the house and clearly visible when Sihota, Biros and Sproule entered the property, and the only reasonable inference from the presence of that car is that there was obviously someone home, and it was likely Mr. McLean. Of course, the presence of a person in the house was confirmed when, according to Biros, they saw a person on the couch through the living room window.
[79] I am also satisfied that the timing of the events was much later than Biros reported, and was between midnight and the time Biros and Sihota met up with their girlfriends, which was, according to Ms. Marlinga, sometime around 1:30 a.m.
Items found at the scene
[80] As mentioned earlier, the police found a roll of duct tape outside on the lawn of the house on Humber Road. As well, a portion of the barrel end of a broken baseball bat was found beside the body of Mr. McLean. These were items that Biros mentioned to the crime boss as having been discarded or left at the scene; the part of the bat found in the house supports Biros’ evidence that it was the handle of the bat that was brought back to the car.
[81] Mr. Brown testified that he vaguely recalled an unpainted wood-grained bat at the house. The piece of the bat found near Mr. McLean’s body is painted blue; it is old and scuffed, with the remains of letters that appear to spell “Tough Stuff.”
[82] This piece of bat has been broken lengthwise, is about 18” long, and tapers to a sharp point, lending support for Biros’ description of the broken piece as “a shard.” The first approximately six inches of the remaining piece has blood on it; the remainder is clean wood, with two tiny blood spots near the pointed end.
Number of weapons and assailants
Pathologist’s evidence
[83] The pathologist, Dr. Straathos, testified that Mr. McLean was subjected to a beating of, at a conservative estimate, forty blows, with more than one type of surface. Mr. McLean died as a result of injuries to his brain. Some of the blows to the back of the head were consistent with having been made by a baseball bat. There was a series of blows to the forehead that had a patterned shape of parallel and elliptical abrasions with a laceration across them. There were many parallel lines of bruising on Mr. McLean’s left arm and shoulder, right forearm, and mid- back. There was also a pronounced U-shaped injury on the upper left back, along with several sets of parallel marks.
[84] Dr. Straathof said these sets of parallel marks were consistent with a much slimmer rigid elongated weapon, around 1 centimetre across, possibly with a rounded surface along its length. He was of the opinion that these marks were not caused by any portion of a baseball bat, based on his knowledge and experience of baseball bats. There are also three unexplained elliptical injuries, including the one on the forehead, about 2 centimetres across, that appeared to have been caused by being struck with something like the end of a hollow pipe. Dr. Straatfhof was of the opinion that none of the injuries could have been caused by the pellet pistol.
[85] Dr. Straathof surmised that if there were an instrument that had different surfaces that could inflict the blunt blows consistent with the bat, plus the narrow elongated marks of the parallel bruises, as well as the elliptical abrasions, then perhaps one instrument was used. However, he could not hypothesize about the nature of a weapon that could make all three types of injuries, and nothing was suggested to him that might account for the different types of blows. Defence counsel attempted to get Dr. Straathof to agree that the different surfaces of the broken bat might account for all three types of injuries, but although pressed to say it was possible, Dr. Straathof said it was not impossible that some of the other marks might be accounted for but it was extremely unlikely. The doctor was also urged to agree that the parallel marks of bruising separated by “sparing,” that is pale skin, which he said was indicative of a rounded elongated instrument, were really sets of two separate blows. Once again, though pressed, the doctor said it was extremely unlikely.
[86] It does indeed seem not only extremely unlikely, but inexplicable that there would be approximately 10 sets of parallel bruises about .8 – 1.2 centimetres apart on various parts of the body that could be explained by two blows each in close proximity. The parallel sets of bruises, which vary in length from approximately 4 centimetres to 19 centimetres, are clearly related to one blow each. Dr. Straathof would not offer any conjecture on what weapon would cause such injuries, other than that it was an elongated rounded rigid linear object.
[87] Dr. Straathof measured the barrel of the bat in court. The bat appears to be smaller than a standard bat, with a barrel of 1 ¾”. Nevertheless, I accept the evidence of Dr. Straathof, which in my view is also clear from the photographs, that these sets of parallel bruises were not made by a baseball bat.
[88] While the doctor was able to say only that some of the injuries were consistent with a baseball bat and others were not, his speculation that one weapon with various different surfaces could have created all the injuries only has significance if the baseball bat is ignored. However, there was a broken baseball bat at the scene, and a portion of the broken surface of the bat was covered with the blood of Mr. McLean. Therefore I am satisfied beyond a reasonable doubt that the bat was used as a weapon against Mr. McLean. The bat could not have made the other two types of injuries. Therefore, on a consideration of all of the evidence, I am satisfied beyond a reasonable doubt that more than one weapon was used.
[89] I realize that the Crown does not have to prove specific pieces of evidence beyond a reasonable doubt, but rather must satisfy the trier of fact that it has proven the elements of the offence beyond a reasonable doubt on the evidence as a whole. However, there are certain pieces of evidence that are so crucial to the court’s train of reasoning in respect of the consideration of the proof of the elements of the offence that it would be unfair to subject them to a lesser standard (R. v. Kyllo, 2001 BCCA 528; R. v. Flynn (1996) 111 C.C.C. (3d) 521 (B.C.C.A.).
Use of weapons and number of assailants
[90] I will deal first with the pellet pistol that was found on the floor near Mr. McLean.
[91] Ms. Jorgensen testified that Mr. McLean obtained the pellet pistol to shoot cans on a camping trip. She said he kept it in his sock drawer when she lived in the house and she never saw it anywhere else in the house. When Ms. Jorgensen lived in the house, Mr. McLean’s bedroom was the one off the living room. After she moved out, Mr. McLean moved into the master bedroom she had occupied upstairs, which is one of the rooms ransacked by Biros and Sproule. Other than the identification of the pistol as the one seized, it was not touched on in evidence. Biros was asked in cross examination if anything else was ever used as a weapon, to which he answered “no,” but neither Biros nor Sproule were asked about the pistol.
[92] Both Biros and Sproule say they searched upstairs while Sihota searched the main floor, although he might have come upstairs to ask if they had found anything. Mr. Brown’s bedroom on the main floor, which was also thoroughly ransacked, could only be reached from inside the house by going through the living room, although it also has a door to the outside through a sunroom. According to Biros and Sproule, neither of them searched that room.
[93] Both Biros and Sproule say that Sihota was in the living room with Mr. McLean. Biros says he saw Sihota through the door way to the living room, standing in an attack mode, as Biros ran out of the house with Sproule. Sproule said Biros went downstairs some minutes ahead of him – he initially said 5 to 10 minutes, but later said he could not remember how long it was - and Sproule saw Biros and Sihota standing in the living room with a body on the floor before he ran out of the house, closely followed by the other two. There was no suggestion in the evidence, and it was not put to him in cross-examination, that Sproule was ever in the living room.
[94] There are other pieces of evidence, in addition to the use of two weapons, which are consistent with Sproule’s evidence that there were two people in the room with Mr. McLean.
[95] It is reasonable to assume that there must have been a purpose to the beating. Otherwise, the three, who were completely disguised and covered in black, could simply have run, if, as was suggested by Biros, they woke Mr. McLean up while ransacking the bedrooms simply to find money.
[96] Both Crown and defence suggest Mr. McLean was beaten so he would tell the would-be robbers where the money was. But if persuasion was the purpose of the beating, at least initially, it is reasonable to consider that Mr. McLean would have fought back or run if he had been faced with only one attacker.
[97] Mr. Brown testified that their house was messy, but the living room was not turned upside down when he left. According to the photographs put in through the blood spatter expert, Sgt. Gallant, the living room is indeed messy, with pizza boxes and a few other items on the floor, but the room is not destroyed, as one might expect if a struggle had ensued or Mr. McLean had a chance to fight back. The sofa on which he was lying watching TV, according to Mr. Brown and Biros, has its cushions tossed back and turned over, but aside from that, there is little disturbed in the room. The coffee table right beside the sofa is not turned over; glasses, beer bottles, dishes and a large ketchup bottle remain upright, although the glass top has been pushed askew and one of the legs of the table near Mr. McLean’s head has blood on it. Two other coffee tables in the room are covered with upright soft drink and beer bottles.
[98] There were numerous blows to the back, neck, arms, legs, and feet, which would not kill Mr. McLean or render him unconscious. Some required significant force; some only moderate force. Dr. Straathof testified that some of the injuries to the hands, forearm and upper arm are consistent with defensive wounds. These blows were not, according to the evidence of Dr. Straathof, which I accept, made with a baseball bat.
[99] Mr. McLean died of blows to the head, and several, but not all, of those blows were consistent with having been made by a baseball bat. Although Mr. McLean’s hands are covered in blood, Dr. Staathof testified that the blood was from another source. It is obviously these blows to the head, which were made with at least two different weapons, that caused the extensive blood loss that is reflected in the blood spatter pictures. According to Sgt. Gallant, those blows occurred when the victim was on the ground. The cast off spatter can be seen having flown up and back onto the sofa near the window and on the window itself. The arc of heavy blood stain on the carpet, ending in the pool beneath Mr. McLean’s head, shows he died on the carpet. These blows were the only ones to cause bleeding and the only blood elsewhere in the room is cast off blood, aside from one patch of transfer blood on the end of the sofa. The only reasonable inference is that these blows, which, according to Dr. Straathof would have left Mr. McLean unconscious, must have been the last blows struck and were struck with two different weapons.
[100] In the context of all of the evidence, including the number and location of the injuries, the varying nature and significance of them, and the state of the room, the only rational conclusion is that the weapons were used by two assailants; this is consistent with the evidence of Mr. Sproule that both Biros and Sihota were in the living room with the body of Mr. McLean.
Who participated in the beating?
[101] While I find Mr. Biros’ evidence frail in the extreme, and in the absence of corroboration by other reliable evidence, I do not place any weight on what he says, including his account of Sihota’s confession in the car immediately after the event, the inescapable facts remain: Mr. McLean is dead as a result of a prolonged beating. There were at least 40 blows inflicted on him. There were at least two weapons applied to him.
[102] There were three men in the house. I do not accept that J.D. Bassi was there, given the phone records and the evidence of Sproule. It is unwarranted speculation to suggest that J.D. Bassi might have obtained the cell phone from his father on January 31, lent it to a friend who called Ravi Nutt several times while J.D. Bassi rushed to Victoria, participated in this event, and returned home to Abbotsford to retrieve the phone and give it back to his father. As well, neither Gurney nor Fadden mentioned J.D. Bassi’s presence at the pre-crime meeting at Camosun College.
[103] It was clear from the remarks of counsel in argument that both the Crown and the defence were of the view that Sproule was not forthcoming and was protecting himself, although he has already been tried and sentenced. As mentioned, the first time the Crown was able to speak to Sproule was when he was on the stand. He had apparently made no previous statements, except whatever occurred between him and the crime boss, which was not before me.
[104] The Crown provided some information in its opening – that Sproule had been tried of break and enter and attempted robbery in the summer of 2008 and convicted of break and enter. No evidence was led from Sproule about this, but he did testify that he is serving a sentence of 2 ½ years.
[105] Nevertheless, there is no evidence before me that Sproule entered into a plea agreement, or that he has any criminal history aside from the present offence.
[106] Sproule denied any knowledge of the conversation at Camosun, what the house looked like, that anyone had a bat or tape, that they looked in the living room window, that he knew anyone was in the house, that there was any conversation about someone being home, even though Biros said Sproule was reluctant to continue after learning that a person was in the house, or that he could recall any specific words from anyone once they were back in the car.
[107] Sproule may well be shading his evidence to avoid acknowledging his awareness of the potential use of violence as the three entered the house, that is, evidence that would have been relevant to the charge of attempted robbery of which he was acquitted: that one of them had a bat and that a person was home. However, on the whole, his evidence is not subject to the same frailties as is Biros.’ Because of the way the investigation proceeded and the order in which witnesses were called, the Crown did not know Sproule was going to say Biros was in the living room with Sihota while Biros was on the stand. Biros had it put to him several times by Mr. Chamberlain that he was the person who had done the beating and of course denied it. He was not asked if Sproule was in the living room. Nor was Sproule.
[108] It was not suggested to Sproule in cross-examination that he was involved in the beating, and there is no suggestion otherwise that he did anything other than ransack the rooms.
[109] Sihota was known to Matt Fadden and Sean Gurney. Fadden also knew Biros, and Gurney had heard of him. Neither Fadden nor Gurney knew Sproule. It was Sihota who set up the meeting with Fadden and Gurney. The group used Biros’ car to get to the house. Although Biros and Sproule had been friends since junior high school, the event at Humber Road was something in which Biros and Sihota were more closely aligned, rather than Biros and Sproule. It was Sihota and Biros who stayed together the rest of the night and whose girlfriends were friends. On any of the many differing accounts Biros gave, Biros was consistently concerned with cleaning up and disposing of his and Sihota’s clothes.
[110] Sproule said he went home on his own as soon as he could, which is consistent with Biros’ evidence. I am satisfied beyond a reasonable doubt that Sproule was not in the living room and was not involved in the beating.
[111] Taking the evidence as a whole, I accept Sproule’s evidence that Biros went downstairs some minutes ahead of him while he continued to search the rooms upstairs unsuccessfully. I accept that he ran out of the house after looking into the living room and seeing Sihota and Biros there with Mr. McLean, who was lying on the floor. This is also consistent with the evidence of Biros that he went downstairs after hearing noises at some point, presumably Mr. McLean waking and finding Sihota in the living room, although of course, Biros says Sproule went downstairs with him, which I do not accept.
[112] While the Crown’s primary theory is that one man, Sihota, might have used more than one weapon, and defence suggests that it is likely two were used but it was Biros and Bassi or Biros and Sproule who used them, the only logical and reasonable inference from the evidence as a whole is the Crown’s alternative position: that there were two assailants with two weapons, and those two assailants were Biros and Sihota.
THE LAW
[113] Section 21 of the Criminal Code states:
Every one is a party to an offence who
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it;
(c) abets any person in committing it.
[114] According to the Ontario Court of Appeal in R. v. Sparrow (1979) 51 C.C.C. (2d) 443, a view that was subsequently adopted by the Supreme Court of Canada in R. v. Thatcher [1987] 1 S.C.R. 652:
…it is appropriate, where an accused is being tried alone and there is evidence that more than one person was involved in the commission of the offence, to direct the jury with respect to the provisions of s. 21 of the Code, even though the identity of the other participant or participants is unknown, and even though the precise part played by each participant may be uncertain. It is, in my view, however, improper to charge the jury with respect to the liability of the accused as a party under s. 21 where there is no evidence proper to be left with the jury that more than one person was actually involved in the commission of the offence.
[115] For the reasons I have given, I am satisfied beyond a reasonable doubt that there were two people involved in the beating, and that one of them was Sihota. He participated in a lengthy and vicious beating culminating in the death of Mr. McLean. If two people participate in a beating which results in death, it is not necessary to establish who struck the fatal blow (R. v. Biniaris [2000] 1 S.C.R. 381). The twelve blows to the head establish beyond a reasonable doubt that the assailants either intended to cause death or were intending to cause bodily harm that is likely to cause death and were reckless whether death ensued. In light of the joint participation in this beating, it does not matter which one struck the specific blows that were the immediate cause of death. Mr. Sihota is therefore a co-principal in the offence of second degree murder.
[116] Based on a consideration of all of the evidence, the Crown has proven beyond a reasonable doubt that Randeep Ricky Sihota is guilty of second degree murder.
[117] It is clear from the above review of the evidence and my findings that the Crown has proven the charge of break and enter with intent beyond a reasonable doubt.
[118] The count of attempted robbery is more difficult because of the theory advanced by the Crown. Robbery is stealing with the use of violence. According to the Crown, the evidence of Biros provides the necessary intent for robbery - that is that they went there to steal a large sum of money they were told was there, and Sihota took the bat with him, anticipating violence. However, Biros’ evidence on that alleged purpose is difficult to accept because it makes little sense. Gurney did indeed testify that he told the three the location of a house where they could steal money and cocaine, but he did not apparently tell them the amount or where it could be found. Biros’ and Sproule’s evidence that they expected almost half a million dollars to be easily located in a bedroom or in a safe is weak, although their evidence that they actually did expect to find something is supported by the ransacking of all the rooms. The nature and extent of the beating is not consistent with going to the residence simply to steal money, in the hope that no encounter with Mr. McLean would occur.
[119] As well, without some corroboration, it is not safe to rely on Biros’ evidence that it was Sihota who took the bat to the house in the anticipation of violence. Sproule denied any knowledge of the bat, or of any factors that might give rise to a potential for violence. There is no doubt there was a bat, and it was used on Mr. McLean, but it could have been Biros himself who took the bat. Since there was a part of the bat left at the house, Biros had no choice but to mention it, but he initially told the police that he had disposed of the shard of the bat himself, only later saying Sihota threw it out the window. Although I have found that there was another weapon used, there is no evidence of what it was, and whether it was taken to the house by Sihota and/or Biros, or was acquired there, or what happened to it.
[120] However, I do accept that Sihota entered the house knowing someone was there. Whether the primary motive was to steal, or to steal this fantastical sum of money that was supposedly lying about, the rooms were ransacked in an obvious effort to find something. Two weapons were used in a violent beating and I accept that Sihota participated in the violence. There is no other inference available from all of the evidence but that the beating and the search are related, even if the version of events given by Biros is suspect.
[121] Although the Crown has not adduced evidence that anything was taken – in fact the only evidence before the court is that nothing was found - steps were taken to carry out the intent to rob, that is, the beating together with the ransacking of the rooms. Proof of those steps is required for a charge of attempted robbery. I find on a consideration of all of the evidence that the Crown has proven the charge of attempted robbery beyond a reasonable doubt, but will hear counsel on whether the principle in R. v. Kienapple applies, given this analysis and the findings that have led to proof of this count.
“M.A. Humphries J.”
The Honourable Madam Justice M.A. Humphries