COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Brar,

 

2013 BCCA 193

Date: 20130429

Docket: CA039189

Between:

Regina

Respondent

And

Gurpal Singh Brar

Appellant

 

Before:

The Honourable Madam Justice Ryan

The Honourable Mr. Justice Hinkson

The Honourable Madam Justice A. MacKenzie

On appeal from: Supreme Court of British Columbia, June 29, 2011
(R. v. Brar, 2011 BCSC 1338, Vancouver Docket 23857)

Counsel for the Appellant:

T. C. Paisana

Counsel for the (Crown) Respondent:

C. G. Baragar

Place and Date of Hearing:

Vancouver, British Columbia

March 22, 2013

Place and Date of Judgment:

Vancouver, British Columbia

April 29, 2013

 

Written Reasons by:

The Honourable Madam Justice MacKenzie

Concurred in by:

The Honourable Madam Justice Ryan

The Honourable Mr. Justice Hinkson


 

Reasons for Judgment of the Honourable Madam Justice MacKenzie:

[1]             The appellant, Gurpal Singh Brar, stabbed and killed his co-worker, Sukhjit Singh Johal, after a verbal and physical altercation at their workplace on May 12, 2006.  Mr. Brar was charged with second degree murder and tried in the Supreme Court of British Columbia in Vancouver. 

[2]             Madam Justice Stromberg-Stein, sitting without a jury, found Mr. Brar guilty of second degree murder on June 29, 2011.

[3]             The two issues at trial were whether Mr. Brar had the requisite intent for murder when he stabbed Mr. Johal and whether Mr. Brar acted in self-defence.

[4]             The Crown called as witnesses eleven employees who saw various parts of the two altercations, a pathologist, and a police officer.  Mr. Brar neither testified nor called other evidence.

[5]             Mr. Brar appeals from his conviction on the basis the trial judge misapprehended certain material evidence and erred in her assessment of the Crown witnesses’ demeanour and credibility.  He asks this Court to set aside the conviction and order a new trial.

[6]             For the following reasons, I find no merit in either ground and would dismiss the appeal.

Background

[7]             Mr. Brar and Mr. Johal worked at Nickels Custom Cabinets in Richmond, British Columbia.  They did not get along after a falling out over carpooling and a subsequent argument at work.

[8]             On May 12, 2006, Mr. Brar and Mr. Johal were working in separate areas of the shipping building, about 70 feet apart.  At one point, Mr. Brar was in the washroom with Mr. Johal and Jagdeep Gill, another colleague and a close friend of Mr. Johal.  Mr. Brar swore at Mr. Johal, who did not respond.

[9]             Two altercations occurred shortly after lunch in two separate work areas and in front of numerous witnesses.  First, Mr. Brar approached Mr. Johal’s workstation in the shipping building.  The two men exchanged insults and eventually punches. Mr. Brar threw the first punch.  Their co-workers separated the two men and broke up the fight.  Several witnesses saw a blade of some sort in Mr. Brar’s fist and observed blood on Mr. Johal’s stomach area.

[10]         Following this first altercation, Mr. Brar challenged Mr. Gill to a fight.  Mr. Gill picked up a piece of wood and Mr. Brar ran from the shipping building to the main building.  Mr. Gill and Mr. Johal chased after him.  One witness heard Mr. Brar yell twice, “He’s going to kill me.”  Other witnesses also noted Mr. Johal was struggling to run and appeared injured.

[11]         In the main building, Mr. Johal and Mr. Brar exchanged one punch each to the neck and shoulder area.  Mr. Gill hit Mr. Brar two to three times over the head with a piece of wood.  None of the witnesses observed a blade in Mr. Brar’s hand in the main building.

[12]         During these altercations, Mr. Brar inflicted three stab wounds upon Mr. Johal; they were in his left upper arm, his left upper abdomen, and his lower left chest.  The wound in Mr. Johal’s lower left chest was fatal and Dr. Charlesworth, the pathologist who performed the autopsy on Mr. Johal, testified that although it was an immediate life-threatening injury, there could be a delay between injury and death.

[13]         A paring knife with Mr. Johal’s blood on the blade was recovered from Mr. Brar’s right front pocket after the altercations.  Mr. Brar’s work-issued knife, an X‑Acto knife, was never recovered.  Based on the evidence, including that of Dr. Charlesworth and the size of the X-Acto knife handle, the judge found the paring knife was the only knife capable of causing the fatal wound.

The Trial Judge’s Reasons

[14]         The trial judge articulated the issues at trial as being whether Mr. Brar had the requisite intent for murder when he stabbed Mr. Johal and whether Mr. Brar acted in self-defence.

[15]         The defence position at trial was that during the first altercation in the shipping building, Mr. Brar only stabbed Mr. Johal in the arm with his work-issued X‑Acto knife.  Mr. Brar then grabbed the paring knife and fled to the main building as Mr. Johal and Mr. Gill chased him.  The defence contended Mr. Brar inflicted the other two stabbings, including the fatal one, with the paring knife in self-defence during the second altercation in the main building, after Mr. Johal and Mr. Gill attacked him.

[16]         The Crown’s position was that Mr. Brar did not act in self-defence; instead, he armed himself with the paring knife and challenged Mr. Johal to a fight in the shipping building.  The Crown submitted the evidence established that, using the paring knife, Mr. Brar stabbed Mr. Johal three times in the shipping building during the first altercation.

[17]         The judge began her analysis by reviewing the presumption of innocence and the requirement for proof beyond a reasonable doubt.  She then undertook a detailed review of the evidence.  She noted, at para. 7, the evidence was largely undisputed, with the most significant dispute being whether Mr. Brar inflicted the fatal stab wound to Mr. Johal in the shipping building, or afterward in the main building.

[18]         The judge recognized, at para. 66, both minor and significant inconsistencies in the evidence of all the witnesses, but found their collective evidence nonetheless revealed what had occurred.  She found, at para. 67, the witnesses gave their evidence in a frank and forthright manner, were not deceptive or biased, and were credible and reliable.

[19]         The judge summarized her findings of fact as follows:

[92]      In summary, Mr. Brar and Mr. Johal had a falling out over carpooling. They had an earlier disagreement at work and both were reprimanded. They were not talking to each other on May 12. That day, Mr. Brar swore at Mr. Johal in the washroom and Mr. Johal did not respond. That day, Mr. Brar told Mr. Kainth that he was quitting to start his own business. Mr. Brar left his own work area. Mr. Brar had no reason to go to Mr. Johal’s work area some 70 feet away. He went armed with a paring knife hidden in his fist. Mr. Johal was working.

[93]      Mr. Brar challenged Mr. Johal to a fight while armed with a knife. He stabbed Mr. Johal three times on the left side. One stab wound was fatal. The fatal wound had the knife thrust into Mr. Johal deliberately, forcefully, and to the hilt of the blade. Other men were trying to separate the two. Only Mr. Johal was stabbed.

[94]      Mr. Uppal returned Mr. Brar to his work station. Mr. Brar challenged Mr. Gill and then fled fearful for his life once he realized a furious Mr. Gill, armed with a stick, and Mr. Johal were coming after him.

[95]      At some point before he entered the main building, he concealed the knife in his pocket. None of the many witnesses saw him with a knife in the main building. No knife was involved in the altercation in the main building. The one and only punch Mr. Brar delivered to Mr. Johal in the main building was at shoulder level or above.

[96]      What happened afterwards in the main building where Mr. Gill struck Mr. Brar over the head with the stick two or three times does not impact the evidence of Mr. Brar’s intent in the shipping building when he approached the unsuspecting Mr. Johal and engaged in a fight while armed with the knife concealed in his fist.

[Emphasis added.]

[20]         The judge concluded:

[97]      I am satisfied beyond a reasonable doubt that Mr. Brar stabbed Mr. Johal to death meaning to cause Mr. Johal’s death or meaning to cause Mr. Johal bodily harm that he knew was likely to cause his death and was reckless whether death ensued or not.

[98]      In light of my findings of fact, I conclude that there is no air of reality to self-defence under s. 34(2) of the Criminal Code. Mr. Brar was not unlawfully assaulted by Mr. Johal. Mr. Brar did not have a reasonable apprehension of death or grievous bodily harm. Mr. Brar did not have a reasonable belief that it was not possible to preserve himself from harm except by killing Mr. Johal. What occurred here was an armed confrontation of an unsuspecting Mr. Johal, initiated by Mr. Brar, obviously because Mr. Brar did not like Mr. Johal.

[21]         The trial judge found Mr. Brar guilty of second degree murder.

Discussion

[22]         Mr. Brar advances two grounds of appeal, submitting the trial judge erred:

1.       in misapprehending evidence at trial; and

2.       in assessing the Crown witnesses’ demeanor and credibility. 

1.  Did the trial judge err in misapprehending evidence at trial?

[23]         The parties agree the relevant law is discussed in R. v. Morrissey (1995), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193 (C.A.), where Doherty J.A. described at 221 (C.C.C.) when a misapprehension of evidence will result in a miscarriage of justice:

            When will a misapprehension of the evidence render a trial unfair and result in a miscarriage of justice? The nature and extent of the misapprehen­sion and its significance to the trial judge’s verdict must be considered in light of the fundamental requirement that a verdict must be based exclusively on the evidence adduced at trial. Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction then, in my view, the accused’s conviction is not based exclusively on the evidence and is not a “true” verdict. Convictions resting on a misapprehension of the substance of the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneous to the trial. If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.

[Emphasis added.]

[24]         The principles set out in Morrissey were affirmed in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732:

[2]        Morrissey, it should be emphasized, describes a stringent standard. The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but “in the reasoning process resulting in a conviction”.

[Emphasis added.]

[25]         Mr. Brar submits the trial judge erred in misapprehending:

i)        the evidence of Mr. Sandhar;

ii)        evidence of the knife used in the first altercation; and

iii)       evidence of blood seen on Mr. Johal after the first altercation.

[26]         At trial, the defence theory that the fatal stabbing occurred during the second altercation in the main building was critical to an evidentiary foundation for self-defence because no question of self-defence arose in the first altercation in the shipping building.  Maintaining this position on appeal, Mr. Brar submits that these misapprehensions were of critical importance in this case, as they led the trial judge to conclude the stabbings all occurred during the first altercation in the shipping building and thus there was no air of reality to the defence of self-defence.  Mr. Brar says that had the judge not misapprehended the evidence, she would have been more likely to find the fatal stabbing occurred during the second fight, when Mr. Brar was scared for his life. 

i)  Mr. Sandhar’s Evidence

[27]         Mr. Brar submits the judge’s conclusion that all the Crown witnesses were credible and reliable cannot stand, given the evidence at trial.

[28]         The Supreme Court of Canada in R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, addressed the test applicable to a review of a finding of credibility by a trial judge:

[10]      … the appeal court must defer to the conclusions of the trial judge unless a palpable or overriding error can be shown. It is not enough that there is a difference of opinion with the trial judge….  A succinct description of the overall approach appears in R. v. Burke, [1996] 1 S.C.R. 474, at para. 4, where this Court stated that “it is only where the Court has considered all of the evidence before the trier of fact and determined that a conviction cannot be reasonably supported by that evidence that the court can … overturn the trial court’s verdict”.  With respect to the credibility of witnesses, the same standard applies.  In Lavoie v. R., [2003] Q.J. No. 1474 (QL), at para. 37, Nuss J.A. of the Quebec Court of Appeal stated that a trial judge’s assessment of the credibility of witnesses “will not be disturbed unless it can be demonstrated that he committed a palpable and overriding error” (citing Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33).

And in conclusion, Bastarache and Abella JJ., for the majority, said:

[24]      It was not open to the Court of Appeal to disagree with the trial judge’s assessment of credibility unless her reasons demonstrated an overriding error in her appreciation of the law or the evidence. In the absence of any such error or insufficiency in the trial judge’s reasons, we would allow the appeal and restore her verdict.

[29]         Gagnon, at para. 11, also contained a caution for appellate courts against ignoring the unique position a trial judge enjoys in being able to see and hear the witnesses and substituting their own assessment of credibility. The Court has repeated this warning many times, including in R. v. R.E.M, 2008 SCC 51, [2008] 3 S.C.R. 3 at para. 48.

[30]         The Supreme Court of Canada recently affirmed the principle that a reviewing court must show great deference to the trier of fact’s assessment of credibility, given its advantage in seeing and hearing the evidence:  R. v. W.H., 2013 SCC 22 at paras. 27, 30-34.  It is rare for an appellate court to overturn a trial judge’s findings of credibility and reliability.

[31]         Thus, Mr. Brar must persuade this Court that the trial judge made an overriding and palpable error in her appreciation of the evidence, as he takes no issue with her appreciation of the law.

[32]          To this end, Mr. Brar argues the judge erred in her assessment of Mr. Sandhar’s evidence.  He submits Mr. Sandhar was an important witness because he was the only one to testify that he saw a stabbing during the first altercation.  This was critical to the Crown’s theory that the stabbing happened during the first altercation and weighed against the defence theory that the fatal stabbing happened during the second altercation.

[33]         Mr. Brar says Mr. Sandhar’s evidence could not be reconciled with that of the other witnesses.  In particular, he points to the following discrepancies in Mr. Sandhar’s evidence:

·       Mr. Sandhar testified he was standing between Mr. Johal and Mr. Brar when the first altercation occurred in the shipping building and Mr. Sidhu was not present.  However, Mr. Sidhu testified he alone was standing between Mr. Johal and Mr. Brar during the first altercation, two other witnesses testified that both men were present, and another witness testified that only Mr. Sidhu was there.  This evidence was material to Mr. Brar’s belief he was being attacked by multiple persons and thus relevant to the defence of self-defence.

·       Mr. Sandhar testified he saw Mr. Brar punch Mr. Johal from his elbow to his chest.  However, the nature of the wounds suffered by Mr. Johal is not consistent with this version of the event.  The forensic evidence established that Mr. Johal’s wounds on his arm and on his chest were caused by two different blows, not one continuous blow, consistent with the defence theory that the arm wound was inflicted during the first altercation and the other wounds were inflicted during the second altercation.

·       In his statement to the police, Mr. Sandhar said he saw Mr. Gill grab a stick in the shipping building.  However, at trial, he testified he did not see Mr. Gill grab a stick.  This discrepancy was important in assessing Mr. Sandhar’s credibility.

·       Mr. Sandhar said he did not follow Mr. Brar, Mr. Johal, and Mr. Gill to the main building after the first altercation.  However, four other witnesses gave evidence to the contrary.  This is relevant in assessing Mr. Sandhar’s credibility and is material to the defence theory that Mr. Brar perceived he was attacked by several persons and he feared for his life.

[34]         Mr. Brar says these discrepancies in Mr. Sandhar’s evidence should have weighed on the judge’s assessment of his credibility.

[35]         In my view, Mr. Brar has failed to demonstrate an overriding and palpable error in the judge’s assessment of Mr. Sandhar’s evidence.  The trial judge specifically addressed Mr. Sandhar’s inconsistent statement about seeing Mr. Gill grab a stick, his assertion that he waited to go to the main building after the first altercation, and his testimony that he did not see Mr. Sidhu involved in the fight (paras. 18-19).  She also referred in general to inconsistencies in the witnesses’ evidence (para. 66), most of which she did not consider material.  With respect, it was for the trial judge to assess the significance of these discrepancies, and in the context of the evidence as a whole, they are not material.  

[36]         As the Crown points out, the record supports the trial judge’s finding that four people witnessed the initial altercation in the shipping building: Messrs. Sidhu, Sandhar, Dhesi and Do.  Their evidence was remarkably consistent and the record supports the trial judge’s finding that it was unbiased.  Their evidence was also consistent with that of Mr. Uppal regarding events following that fight.

[37]         Mr. Brar also submits Mr. Sandhar “was not a cooperative witness, and was argumentative and evasive with counsel”, as reflected in the following passage from the cross-examination of Mr. Sandhar: 

Q         Okay.  You didn’t really talk to Mr. Brar because you were friends with Mr. Johal, is that correct?

* * *

A          What -- what talk?

Q         You just avoided him, you -- you tended to avoid Mr. Brar.

A          Why -- why should -- why should I avoid him?  Am I to just share anything with him?  He talks to me on work, and I also talk to him on work.

* * *

Q         You were asked by Constable Bansi, Question 7, “What kind of relationship do you have with Gurpal?”

* *  *

Q         And your reply was, “I really don’t talk to Gurpal much.  I have other friends and relatives that work here, so I don’t have much contact with him here.”

A          Yes, I said that.

Q         “I have never gotten into an argument with him.”

A          Yes, I never had.

Q         “I tend to avoid him.”

A          Yes, I talk to me as much as he talk to me.  I work -- I work in the paint shop, and I was -- my leaving paint shop, I am not to come to see them on this side.  Sometime I used to come to help them.

[38]         However, in my view, it was particularly the trial judge’s privilege to determine whether Mr. Sandhar was uncooperative, argumentative or evasive as Mr. Brar now asserts.  It is neither correct nor possible for this Court, on review, to make a different assessment of Mr. Sandhar’s credibility from this passage, or to say the trial judge was wrong in her findings of credibility.  We cannot substitute our opinion for hers.  And what might be characterized as uncooperative to Mr. Brar is easily characterized as cooperative and honest, and consistent with Mr. Sandhar’s earlier statement to the police officer, and perhaps as mere confusion by the question.

[39]         As a whole, I find no merit in the argument that the trial judge misapprehended the evidence of Mr. Sandhar in any material respect, or erred in her assessment of his credibility.

ii)  Evidence of the Knife

[40]         Mr. Brar also argues the trial judge materially misapprehended the evidence of a knife, which was critical in assessing whether the fatal stabbing occurred during the first or second altercation.

[41]         It is not disputed that Mr. Brar used the paring knife Mr. Uppal found in his pocket to inflict the fatal wound.  However, Mr. Brar’s position at trial was he used the work-issued X-Acto knife during the first altercation and the paring knife during the second altercation to inflict the fatal wound when he was scared for his life.  Thus, the defence theory of self-defence depended upon there being two knives involved in the altercations.

[42]         The trial judge concluded Mr. Brar used the paring knife to inflict all three stabbings, including the fatal stabbing, during the first altercation.  She said:

[79]      The evidence establishes Mr. Brar went to Mr. Johal’s work area to engage Mr. Johal in a confrontation. Mr. Dhesi saw Mr. Brar walking a bit fast from Mr. Brar’s side of the building to where Mr. Johal worked on the other side of the building. Mr. Dhesi saw Mr. Brar had a blade in his hand. Mr. Sandhar was the first to speak, asking Mr. Brar, “What are you doing here?”  In response, Mr. Brar said in a loud tone to Mr. Johal words to the effect of “Why” or “How are you looking at me?”  Mr. Johal responded to the same effect, saying “As you are looking at me the same way I am looking.”  Mr. Sandhar told them, “Both of you are looking at each other the same way. Wait until a break and talk to the supervisor about it.”  Both men were standing close together yelling unpleasant obscenities in and shouting at each other in Punjabi, “You want to fight with me,” and, “I dare you to touch me.” 

[80]      The fight was on with Mr. Brar throwing the first punch and Mr. Johal responding. Mr. Brar punched with both hands. Mr. Sidhu described it as a forward-and-backward poking motion. Three to four punches were exchanged. No one else was engaged in the fight. Mr. Sidhu and Mr. Sandhar were not fighting with Mr. Brar. No one held Mr. Brar so Mr. Johal could punch him. Mr. Sidhu, Mr. Sandhar, Mr. Dhesi, Mr. Do, and Mr. Uppal broke up the fight. It was a confusing scene.

[81]      What Mr. Johal did not know was that Mr. Brar had come armed with a knife concealed in his fist. When the fighting stopped, Mr. Sidhu and Mr. Uppal saw a blade in Mr. Brar’s fist, but the handle was not visible. They assumed it was a work knife. The paring knife was not a work knife. Mr. Uppal, who worked with Mr. Johal, had never seen the paring knife which he recovered from Mr. Brar’s pocket. This was a knife later analysed to have Mr. Johal’s blood on it.

[82]      The only work-issued knife was an X-Acto knife with a brightly coloured handle and a blade that has markings and breaks easily. Mr. Brar’s X-Acto knife was not found at his work station. Located in his right front pant pocket was the black-handled paring knife with Mr. Johal’s blood on the blade. This is the knife that was capable or is capable of causing the three stab wounds. While the non-fatal wounds could be caused by an X-Acto knife, the inference to be drawn is that it was the paring knife that caused the fatal wound, as the blade nicked the rib and it is likely an X-Acto blade would have broken off depending on how hard it hit the rib.

[83]      Following the first fight in the shipping building, Mr. Brar challenged Mr. Gill to a fight saying, “You come on, too,” or “If you want to come, come on.”  Mr. Gill, who had been summoned by Mr. Sandhar, picked up a piece of wood and Mr. Brar ran for his life chased by Mr. Gill and Mr. Johal.

[84]      Just before Mr. Brar ran from the shipping building, Mr. Uppal saw in Mr. Brar’s right hand something stainless steel with a two to three-inch edge. Mr. Klassen did not mention seeing a knife when Mr. Brar ran out of the shipping building screaming fearfully twice, “He’s going to kill me,” but he also did not notice that Mr. Gill had a stick. In the main building, Mr. Fuchs did not notice anything in Mr. Brar’s hands. Mr. Gill did not see any object in Mr. Brar’s hands. When Mr. Brar came through the tunnel, Mr. Kainth saw nothing in Mr. Brar’s hands. Mr. Schellenberg saw nothing in Mr. Brar’s hands. Mr. Uppal later recovered the paring knife with Mr. Johal’s blood from Mr. Brar’s front pant pocket. Mr. Brar’s work knife is unaccounted for. It had a big colourful handle not readily concealed in a fist. Clearly at some point, probably during his interaction with Mr. Klassen and before he entered the main building, Mr. Brar pocketed the paring knife that he used to stab Mr. Johal.

[85]      Once the fight in the shipping building was broken up, Mr. Sidhu went to the washroom to check an injury to his right cheek where he had been punched by Mr. Johal. He had blood on the right arm of his jacket and Mr. Johal had been on his right side. Mr. Dhesi saw that Mr. Johal had blood in the area on the inside of his lower left sleeve. Mr. Gill said Mr. Johal was bleeding from his left arm by the elbow. Mr. Do said Mr. Johal had a bloodstain on his stomach area, but he did not see blood on Mr. Johal’s arm. Afterwards, Mr. Do went to the washroom and saw a bloodstain on his own sweater in the stomach area. Mr. Do had held Mr. Johal.

[86]      Mr. Kainth said when Mr. Johal came through the tunnel into the main building, he was bent over with a hand on his left side. He was not walking straight. He was apart from the others entering the tunnel. He had a hard time kind of jogging, not too fast or too slow. Mr. Schellenberg said when Mr. Brar entered the building, Mr. Johal was following Mr. Brar and Mr. Gill at a slower pace, noticeably injured. Mr. Johal’s left arm was tucked at his side at 90 degrees with his hand in a fist at mid-chest. There was a bloodstain on his shirt below the elbow. He was hunched over on his left side trying to run, but he could not run as fast. In cross-examination, Mr. Schellenberg also gave evidence that there was blood on Mr. Johal’s sweater near his left lower elbow and his abdomen/stomach area.

[87]      Clearly, the blood observed by the witnesses did not originate from the wound to the left tricep. Given the manner in which Mr. Johal was holding his arm and the fact that the blood was on the inside of the sleeve of the left arm, it had to be coming from his chest and abdomen wounds.

[88]      In the fight in the main building when Mr. Brar was spun around by Mr. Gill and Mr. Johal punched him, Mr. Schellenberg saw blood on Mr. Johal’s shirt on his left side torso between his hip and the beginning of his ribs. In the exchange between the three men, Mr. Schellenberg did not see Mr. Brar inflict the three stab wounds that he observed when he later cut Mr. Johal’s shirt off in the first aid room.

[89]      Mr. Brar did not inflict any stab wound or wounds when he punched Mr. Johal the one and only time in the main building. All contact was above shoulder level and Mr. Brar had nothing in his hands. Clearly, the three stab wounds, including the fatal stab wound, were inflicted in the fight in the shipping building, notwithstanding Mr. Johal in the main building saying, “Look what he did to me” at the same time that Mr. Brar said the same with respect to his head injury.

[90]      Mr. Johal received three stab wounds. The two to the left arm and central abdomen were not life-threatening, but would bleed. The fatal wound to the lower left chest would bleed profusely into the chest cavity, but if upright, little blood would be seen at first. If laying down, there would be a lot of blood, but Mr. Johal was not laying down.

[91]      There was a delay between injury and death. As described by Dr. Charlesworth, post-injury activity is common ranging from one to 15 minutes. In this case, clearly, Mr. Johal’s functioning was within this range and his functioning deteriorated as he wound down to certain death. Mr. Schellenberg, who had a Level 3 first aid certificate, described this in his evidence. Once Mr. Gill struck Mr. Brar, Mr. Johal was not involved any more. Mr. Johal made one attempt, but did not have the strength to keep fighting. Mr. Johal was leaning more on the left side. He did not have confidence in his feet. He was swaying and off-balance. His arm was still tucked in the same 90-degree position. He was looking down his front toward himself. When taking Mr. Johal to the first aid room, Mr. Schellenberg was carrying his weight, although Mr. Johal was able to walk.

[43]         Mr. Brar says the trial judge erroneously held that Mr. Uppal saw a blade in Mr. Brar’s hand when the fighting stopped in the shipping building when in fact Mr. Uppal only claimed to have seen a blade in Mr. Brar’s hand after he and Mr. Brar got back to their workstation.

[44]         Mr. Brar further argues the evidence of two witnesses, Messrs. Sidhu and Sandhar, is consistent with their having seen a partially extended X-Acto knife, rather than a paring knife, during the first altercation in the shipping building.  He also says the trial judge erred in noting the X-Acto knife would be difficult to conceal in a fist because of the colour and size of its handle when there was no evidence at trial as to the colour of the knives issued at Nickels or the size of Mr. Brar’s fist.  Mr. Brar notes that his X-Acto knife was never found. 

[45]         Again, I cannot agree the trial judge misapprehended the evidence as asserted.  Mr. Brar says the trial judge was mistaken in saying, at para. 81, that Mr. Uppal saw a blade in Mr. Brar’s hand when the fighting stopped in the shipping building.  I note that Mr. Uppal said he saw a blade in Mr. Brar’s hand after the two men got back to their workstation.  This was indeed after the fighting stopped in the shipping building, so the judge was not mistaken.  Also, she accurately recorded this evidence earlier, at para. 38, when describing Mr. Uppal’s evidence.

[46]         Furthermore, the judge also said Mr. Uppal saw a blade in Mr. Brar’s hand, “Just before Mr. Brar ran from the shipping building” (para. 84).  This too is accurate, as Mr. Uppal saw the blade when the two men went back to their workstation in the shipping building, right before Mr. Brar fled to the main building.

[47]         Thus, the trial judge did not misapprehend this “knife” evidence.  Furthermore, the judge recorded several other aspects of the evidence to support her conclusion that Mr. Brar inflicted all three stabbings with the paring knife during the first altercation.

[48]         None of the witnesses observed a knife in the hands of either Mr. Brar or Mr. Johal during the second fight.  At the end of the event, when Mr. Uppal asked Mr. Brar where “the knife” was, Mr. Brar gestured downward and Mr. Uppal reached into Mr. Brar’s right pant pocket and pulled out a black-handled paring knife, not a work knife, that when analyzed was shown to have Mr. Johal’s blood on it.  There is no evidence that Mr. Brar exchanged knives when Mr. Uppal accompanied him back to their workstation between the first and second altercation, or that Mr. Brar had an opportunity to do so.  Continuity of the knife in Mr. Brar’s possession appears to be established on the evidence.  All in all, the defence theory of two knives is only speculation.

[49]         As the Crown points out and the record supports, Mr. Dhesi testified that he saw a blade in Mr. Brar’s hand as he first approached Mr. Johal’s workstation.  Mr. Sandhar saw the “blade portion” of a knife in Mr. Brar’s fist with about two inches of the blade showing.  Immediately after the punching stopped, Mr. Sidhu saw about an inch of the “stainless steel portion” of a knife in Mr. Brar’s right hand.  Mr. Uppal made the same observation after returning Mr. Brar to his workstation.

[50]         None of the witnesses who saw the blade portion of the knife saw a handle.  Based on an admission that exhibit 7, an X-Acto knife, was representative of one of the Nickels work-issued X-Acto knives, and based on a demonstration in which a witness was asked to hold the knife in the way he had observed Mr. Brar holding it, I agree with the Crown that the judge was entitled to observe that the only work-issued knife was an X-Acto knife with a brightly coloured handle, not readily concealed in a fist and with a blade that has markings and breaks easily.

[51]         During the hearing of this appeal, we viewed and handled exhibit 7, the representative X-Acto knife.  In doing so, we were able to confirm that it was open to the trial judge, based on exhibit 7 and the demonstration before her, to conclude that the X-Acto knife handle is “not readily concealed in a fist”.

[52]         In summary, the record does not support Mr. Brar’s contention the judge materially misapprehended the evidence when she found Mr. Brar inflicted the three stab wounds with the paring knife during the first altercation in the shipping building.

iii) Evidence of Blood

[53]         Finally, Mr. Brar contends the trial judge materially misapprehended the evidence when she said:

[85]      Once the fight in the shipping building was broken up, Mr. Sidhu went to the washroom to check an injury to his right cheek where he had been punched by Mr. Johal. He had blood on the right arm of his jacket and Mr. Johal had been on his right side. Mr. Dhesi saw that Mr. Johal had blood in the area on the inside of his lower left sleeve. Mr. Gill said Mr. Johal was bleeding from his left arm by the elbow. Mr. Do said Mr. Johal had a bloodstain on his stomach area, but he did not see blood on Mr. Johal’s arm. Afterwards, Mr. Do went to the washroom and saw a bloodstain on his own sweater in the stomach area. Mr. Do had held Mr. Johal.

[86]      Mr. Kainth said when Mr. Johal came through the tunnel into the main building, he was bent over with a hand on his left side.  He was not walking straight. He was apart from the others entering the tunnel. He had a hard time kind of jogging, not too fast or too slow.  Mr. Schellenberg said when Mr. Brar entered the building, Mr. Johal was following Mr. Brar and Mr. Gill at a slower pace, noticeably injured. Mr. Johal’s left arm was tucked at his side at 90 degrees with his hand in a fist at mid-chest.  There was a bloodstain on his shirt below the elbow.  He was hunched over on his left side trying to run, but he could not run as fast.  In cross-examination, Mr. Schellenberg also gave evidence that there was blood on Mr. Johal’s sweater near his left lower elbow and his abdomen/stomach area.

[87]      Clearly, the blood observed by the witnesses did not originate from the wound to the left tricep. Given the manner in which Mr. Johal was holding his arm and the fact that the blood was on the inside of the sleeve of the left arm, it had to be coming from his chest and abdomen wounds.

[Emphasis added.]

[54]         Mr. Brar says the judge erred in relying on Mr. Dhesi’s evidence that he saw blood on the inside of Mr. Johal’s lower left sleeve after the first altercation, when Mr. Johal’s sweater showed no blood in that area.  In its closing submissions at trial, the Crown conceded Mr. Dhesi’s mistake and brought this error in his evidence to the judge’s attention as follows: 

            Now, [Mr. Dhesi] saw Mr. Johal was injured immediately after the [first] fight was ended.  It was his recollection that he saw blood on the inside of Mr. Johal’s left sleeve in the forearm area.

            Now, his evidence regarding the injury is corroborated by Dr. Charlesworth.  The deceased did in fact have a stab wound on his left arm.  Mr. Dhesi was mistaken about the location of the bloodstain, but that’s his recollection.  The left arm of Mr. Johal’s sweatshirt, which is Exhibit 4, does in fact have blood staining on the left arm, but on the outside of the arm and higher than Mr. Dhesi’s recollection.

            What’s important here is that the witness recalls seeing the left arm bloodied, the sleeve.  My Lady, when I’m referring to “left arm” I’m talking about the clothing.

            Again, he recalls that, and this is corroborated by both by the physical evidence that’s Exhibit 4, as well as Dr. Charlesworth and the injuries photographed in the -- in Exhibit 2, the autopsy photographs.  He had the right arm, just the wrong location on that arm.

[Emphasis added.]

[55]         Mr. Brar submits the trial judge’s misapprehension of Mr. Dhesi’s evidence was material, as it formed the basis of her inference, at para. 87, that the blood the witnesses observed on Mr. Johal’s sweater after the first altercation originated from his chest and abdomen wounds.  This inference, in turn, supported the judge’s critical conclusion the fatal stabbing occurred during the first altercation in the shipping building and therefore there was no air of reality to self-defence.  Mr. Brar says this material misapprehension of evidence resulted in a miscarriage of justice, necessitating a new trial. 

[56]         I agree the judge misapprehended Mr. Dhesi’s evidence.  The question is whether this is a material error that meets the stringent standard described in Lohrer. If the error is only peripheral, there is no miscarriage of justice.

[57]         In my view, the judge’s reliance on Mr. Dhesi’s mistaken evidence is not material for several reasons.  First, as the judge says in para. 87, “Clearly, the blood observed by the witnesses did not originate from the wound to the left tricep” (emphasis added).  She therefore refers to more witnesses than Mr. Dhesi as having seen the location of the blood on the shirt after the first altercation.

[58]         It is not disputed there was a large bloodstain on the stomach area of Mr. Johal’s sweatshirt when it was seized after the second altercation; the issue is when the wound occurred that caused the bleeding in the torso area.  Other witnesses saw blood on Mr. Johal’s torso or stomach area before the second altercation, supporting the judge’s conclusion the fatal stabbing occurred during the first altercation.  Both Mr. Do and Mr. Schellenberg observed bloodstains on Mr. Johal’s sweater near his abdomen and stomach area before the second altercation.  Mr. Schellenberg was the paramedic and he examined the wounds after both fights and said the wound to Mr. Johal’s arm was not of a severe nature.  Significantly, none of the witnesses to the second altercation in the main building observed Mr. Brar inflict any blows to Mr. Johal’s torso or stomach area and no witnesses saw Mr. Brar holding a knife during the second altercation.

[59]         Secondly, the judge’s misapprehension of the evidence in para. 87 of her reasons must be considered in the larger context of the judge’s reasoning as a whole to determine its materiality.  As her paras. 79-91 quoted above demonstrate, the judge’s analysis of the different pieces of evidence is intertwined.  In my view, the flaw in Mr. Brar’s argument is it artificially divides the judge’s reasons into “planks” of evidence, including the “knife plank”, the “blood plank”, and the “function of Mr. Johal plank”.  However, the reasons are not divisible into separate planks of evidence that exist in airtight compartments.  Instead, her analysis must be read as a whole; her findings regarding the knife, the blood, and Mr. Johal’s function after the first altercation cannot be separated from the reasoning as a whole on the critical issue of when Mr. Brar inflicted the fatal wound.

[60]         It was the cumulative effect of a variety of features of the evidence that led the judge to conclude that all three stabbings (including the fatal stabbing) occurred during the first altercation.  These included:

1.       eye witnesses to both altercations and their essential consistency on important matters;

2.       witnesses who saw a blade (but no handle) in Mr. Brar’s hand immediately after the first altercation and just before Mr. Brar ran from the shipping building;

3.       the manner in which Mr. Johal held himself and moved, obviously injured, from the shipping building to the main building;

4.       none of the witnesses to the second altercation saw a blade in either man’s hand;

5.       Mr. Brar and Mr. Johal each punched the other only once and at shoulder level or above in the second altercation;

6.       the forensic evidence about the three wounds and the nature of the knife used, including that an X-Acto knife was less likely to have caused the fatal wound than a paring knife;

7.       Dr. Charlesworth’s evidence that the fatal wound was an immediate life-threatening injury, but there could be a delay between injury and death;

8.       the paring knife was found in Mr. Brar’s pocket when Mr. Uppal asked him where “the knife” was, and no other knife was found;

9.       Mr. Johal’s DNA was analyzed to be on the paring knife;

10.     the handle of the X-Acto knife is of a size and colour that it is “not readily concealed” in a fist; and

11.     evidence of witnesses who saw blood on Mr. Johal’s sweater in the stomach/abdomen area after the first altercation, but before the second altercation.

[61]         It was the judge’s analysis of the evidence as a whole that led to the conclusion.  If her reliance on Mr. Dhesi’s mistaken evidence is removed from her reasoning as a whole, it is my view the remainder of the whole remains stable and the reasoning sound.  This, in my view, makes the error peripheral, and not material.

[62]         In short, I cannot agree the misapprehension that Mr. Dhesi saw blood on the inside left sleeve of Mr. Johal’s sweater before the second altercation can be characterized as “material” within the meaning of Lohrer.  Instead, it was peripheral to the judge’s reasoning as a whole upon which the conviction was based.

2.  Did the trial judge err in assessing the witnesses’ demeanour and credibility?

[63]         Mr. Brar submits the trial judge erred in her assessment of the evidence of the Crown witnesses.  Specifically, Mr. Brar says the judge did not address the glaring inconsistencies between the witnesses’ evidence and reached her conclusion that the witnesses were all credible and reliable on the basis of their apparent honesty and demeanour, rather than on an assessment of their testimony in light of the entire evidence. 

[64]         In addressing credibility and reliability, the trial judge said this:

[63]      I have reviewed some of the evidence. I have carefully considered all of the evidence presented during the trial to determine how much or little of the testimony of each witness I believe and rely on, bearing in mind I may believe some, none, or all of the evidence given by a witness. Some factors I have kept in mind are whether the witness seemed honest, whether there was any reason why the witness would not be telling the truth, whether the witness appeared to have an interest in the outcome of the case or any reason to give evidence more favourable to one side than the other. Other factors I have considered include the ability and the opportunity of the witness to make accurate and complete observations about the events, the circumstances in which the observations were made, and the ability of the witness to remember and articulate events.

[64]      Some of the witnesses testified through interpreters. Some of the witnesses were not particularly sophisticated and had limited ability to express themselves. Their vantages varied as did their attention once drawn to the unfolding short-lived and confusing events. The passage of time has impacted their abilities to remember precise details.

[65]      Of importance is the reasonableness and consistency of the witness’ account having regard to what the witness may have said on an earlier occasion and to what other witnesses have said about the same events. Any explanations for any inconsistencies assist in assessing whether the inconsistency is the result of a deliberate lie or an honest mistake.

[66]      Reasonable doubt applies to the credibility of witnesses. Credibility and reliability of witnesses are key factors in determining the issues in this case. There are inconsistencies internally and externally in relation to the evidence of all the witnesses. Some of the inconsistencies are minor. Others are more significant. Some inconsistencies are expected given the perspectives of the various witnesses as well as a significant passage of time since the events of May 12, 2006. I am mindful of the frailties of eyewitness evidence and the fact people experience time and events differently and recount them differently. As I have reviewed the evidence of the witnesses, I have referred to inconsistencies. There are some minor discrepancies in the accounts, most of which I do not consider material. Despite the inconsistencies, the witnesses’ versions, while not exact in all detail, which would be suspect given that the events were sudden and unexpected, mesh together to reveal what occurred.

[67]      All the witnesses gave their evidence in a frank and forthright manner. I do not consider any of the witnesses to be deceptive or biased. None sought to minimize or exaggerate the roles of either Mr. Brar or Mr. Johal in the events. I find the witnesses to be credible and reliable.

[65]         It is evident the judge considered the classic factors that affect an assessment of credibility.  Her findings on credibility were not based on demeanour alone.  For example, the judge did consider the testimony of each witness in light of all the evidence and found, despite some inconsistencies, that the evidence was generally consistent and the witnesses’ versions of the events “mesh together to reveal what occurred” (para. 66).

[66]         Mr. Brar has failed to identify any material misapprehension of the evidence, and is unable to show the judge made any palpable and overriding error in her assessment of credibility.  It is not for this Court to substitute its own assessment of credibility for that of the trial judge.

[67]         There is no merit to this ground of appeal.

Conclusion

[68]         For these reasons, I would dismiss the appeal.

“The Honourable Madam Justice MacKenzie”

I agree:

“The Honourable Madam Justice Ryan”

I agree:

“The Honourable Mr. Justice Hinkson”