R v Brar, 2021 ABQB 791

Court of Queen’s Bench of Alberta Citation: R v Brar, 2021 ABQB 791 Date: 20211001 Docket: 210454450Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Gamdur Singh Brar Accused/Applicant _______________________________________________________ Reasons for Decision on Judicial Interim Release of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________

Restriction on Publication Judicial Interim Release – See the Criminal Code ,

section 517 . By Court Order, this decision and the evidence taken, information given or representations made may not be published, broadcast, or transmitted in any way. NOTE: This decision is available from the court file. It may be published after the accused is discharged after a preliminary inquiry or, if the accused is committed to stand trial, after the end of the trial. I. Introduction [ 1 ] Gamdur Singh Brar, the Accused, stands charged with the first-degree murder of Harmanjot Bhattal contrary to s 235(1) of the Criminal Code of Canada and the attempted murder of Satvir Brar contrary to s 239(1) (a.1).

Satvir Brar is the wife of Gamdur Brar and Mr. Bhattal was the nephew of Satvir Brar and Gamdur Brar. [ 2 ] The alleged offences occurred on May 7, 2021. Mr. Brar has been in custody since that day. He now seeks Judicial Interim Release. The Crown is opposed to his release on the grounds that his detention is necessary to ensure his attendance in court; for the protection or safety of the public; and to maintain confidence in the administration of justice. II. Background [ 3 ] The facts or evidence outlined below was adduced by, or on behalf of, the Crown and Mr. Brar during submissions in this bail hearing.

My recitation of any facts or evidence in this decision is merely a recitation of submissions before me and not reflective of any specific fact findings which are solely within the purview of the ultimate trier of fact. In this section, the facts are those alleged by the Crown. [ 4 ] The Accused and Satvir Brar are married and have two children, aged 16 and 12 respectively. They reside in Strathcona County, Alberta. To avoid confusion, I will refer to Satvir Brar as Satvir. I mean no disrespect in doing so. [ 5 ] During the evening of May 6, 2021, the Accused and Satvir had an argument at their home.

Satvir left the home and called her nephew, Harmanjot Bhattal, to come and assist her. Mr. Bhattal picked her up in his car and ultimately drove her to the home of Bramjit Dhillon, the sister of the Accused, arriving sometime after midnight on May 7, 2021. [ 6 ] The Accused was advised, at some point, that Satvir and Mr. Bhattal were at the home of his sister. Satvir called her children, advised them that she was on the way home, and asked them to meet her at a Tim Horton’s location in Sherwood Park. [ 7 ] Satvir and Mr. Bhattal arrived at the Tim Hortons in Mr. Bhattal’s car.

On arrival, she noticed the Accused seated in his vehicle at the nearby Sobeys. [ 8 ] With Mr. Bhattal riding as the passenger, Satvir drove the vehicle south on Clover Bar Road and then east on Baseline Road. They were being followed by the Accused who eventually pulled up beside them. He fired a gun into the passenger side of Mr. Bhattal’s vehicle, shooting and injuring both Satvir and Mr. Bhattal. Satvir was shot in the hands and Mr. Bhattal was shot in the right upper arm. [ 9 ] The two vehicles collided and came to a stop on Baseline Road.

Satvir got out of the car and began running away while being pursued on foot by the Accused. She was able to flag down a passing vehicle driven by one Jesse Christianson, who called 911 and drove her to the hospital. [ 10 ] The Accused returned to the accident scene where he shot Mr. Bhattal twice in the head. Mr. Bhattal died at the scene. [ 11 ] Additional facts or evidence alleged by either the Crown or the defence and relevant to the consideration of Mr. Brar’s release will be referred to in the context of the discussion of each of the three grounds for detention. III.

Discussion [ 12 ] Section 522(2) of the Criminal Code provides that an accused charged with murder shall be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of s 515(10). [ 13 ] Section 515(10) of the Criminal Code provides that the detention of an accused in custody is justified only on one or more of three grounds: (

a) Where detention is necessary to ensure his attendance in court;

(

b) Where the detention is necessary for the protection or safety of the public; (

c) Where the detention is necessary to maintain confidence in the administration of justice. [14] In considering the third ground, the Court must consider: i. The apparent strength of the prosecution’s case; ii. The gravity of the offence; iii. The circumstances surrounding the commission of the offence, including whether a firearm was used; and iv. The fact that the accused is liable for a potentially lengthy term of imprisonment if convicted. [15] In Canadian law, the release of an accused on bail is the cardinal rule and detention is the exception. An accused is entitled tobe presumed innocent and has the right not to be denied reasonable bail without cause, as guaranteed by s 11(

e) of the Charter. Releaseis favoured at the earliest reasonable opportunity and on the least onerous grounds: Criminal Code of Canada s 493.1; R v St. Cloud,2015 SCC 27, [2015] 2 SCR 328 para 70; R v Antic, 2017 SCC 27, [2017] 1 SCR 509 paras 29, 67(d); R v Myers, 2019 SCC 18, [2019]2 SCR 105 paras 1, 25. [16] The onus is on the Accused to establish that his detention is not justified on any of the three enumerated grounds in s 515(10).He has put forward proposed release conditions which he believes will satisfy me that he has met the onus of establishing that he shouldbe released.

The conditions he has put forward include the usual ones as well as the following: he will reside at the home of his sisterand brother-in-law; he will work as a safety supervisor at Khangura Transport, a company owned by his brother-in-law; he will bothreside and work within the home and be there seven days a week, 24 hours per day unless he has prior written permission to be absent; atall times, he will wear an ankle monitoring bracelet programmed so that a monitor will be notified of any breach of his house arrestcondition; and he will have no contact or communication whatsoever with individuals suggested by the Crown.

Further, he will depositup to $20,000 as a cash deposit for bail and sureties will provide up to a further $50,000 or so. [17] I will now consider each of the grounds set out in s 515(10).

A) To Ensure Attendance [18] The Crown argues that the Accused has failed to establish that his detention is not necessary to ensure his attendance in court.The Crown says that, while he does not have a record of failing to appear, he has family ties to India and is facing a significant custodialsentence. The Crown expresses concern that these factors create a flight risk if the Accused is released from custody. [19] I do not share the Crown’s concern. I believe that conditions on the Accused can alleviate any concerns about flight risk, toIndia or elsewhere.

I do note that he has already been required to forfeit his Canadian passport and he has advised the court that he doesnot have an Indian passport. [20] The Accused has lived in Canada for over 20 years and has two children here.

He states that he has close family ties with hissiblings who, he says, have led pro-social lifestyles. [21] In addition to the conditions proposed for his release, I am satisfied from the multitude of letters submitted as characterreferences that his movements within the community would be sufficiently monitored so as to further minimize any risk of his fleeingthe jurisdiction or failing to attend Court. [22] The Accused has satisfied the onus of establishing that his detention is not necessary to ensure his attendance in court.

B) For the Protection or Safety of the Public [23] The second ground provides that the detention of an accused is necessary for the protection or safety of the public where thereis a substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administrationof justice. The substantial likelihood must endanger the protection or safety of the public or interfere with the administration of justice: R v Morales, (SCC), [1992] 3SCR 711. [24] The Accused has no criminal record and says that he has led a prosocial life.

He did enter into a Peace Bond in 2016 which heemphasizes was not a criminal conviction. It was in relation to allegations of sexual assault and common assault. Further, there are manyletters filed on his behalf in which the authors have indicated that they have never observed the Accused to be involved in any violentactivities or aggressive behaviour. He says, and the letters do suggest, that he has a very supportive community behind him that willcontinue to support him and keep him accountable.

I will make the observation at this point that very often, friends and members of anindividual’s community do not know what goes on behind closed doors. That is why, in cases of domestic violence, one must be carefulwhen considering the weight to give to such letters of support. [25] Satvir positively identified the Accused as the one in the vehicle who ultimately gave chase to the vehicle she and Mr. Bhattalwere in.

She told him directly that he shot her, and nobody else did, in an otherwise prohibited discussion while he was in the RemandCentre on May 11, 2021. [26] The combined effect of statements from a number of witnesses has a man matching the description of the Accused chasingSatvir on foot carrying a gun who returned to the accident scene and fired two shots into the head of Mr. Bhattal. The trier of fact will

ultimately determine what inferences, if any, may be drawn from the circumstantial evidence placed before me during this bail hearing. In the circumstances, however, and given that Satvir could positively identify the Accused as the one who chased her, the only inference that can be drawn from the evidence and the only plausible narrative of events is that the person identified as matching the description of the Accused was, in fact, the Accused. [ 27 ] A search warrant was executed at the family home on May 8, 2021.

Police located a gun safe in the master bedroom of the residence in which was found several firearms and various ammunition. Also found in the gun safe was an empty case for a Smith & Wesson .357 magnum revolver and live Winchester .38 Special ammunition. The Accused is the registered owner of a Smith & Wesson .357 magnum. Expert opinion evidence has been provided to the Crown that the revolver is capable of discharging the Winchester .38 special rounds matching the ones found in the Accused’s car.

The revolver used in the shooting of the two victims has not been found. [ 28 ] A forensic assessment of the Accused was completed by Dr. Marc Nesca, a clinical forensic psychologist, and his report of August 18, 2021 was introduced and submitted by the defence. While the report contains information and suggested conditions to support the Accused’s release, Dr. Nesca also provides a risk assessment of the Accused. Notwithstanding a denial by the Accused of any lingering anger towards his wife or further intention to harm her, Dr.

Nesca concludes that he cannot rule out the possibility that the Accused continues to harbour hostility towards her and that there is a moderate risk of imminent violence by the Accused against his wife. [ 29 ] One of the attending RCMP officers at the family home on May 7, 2021 noticed Balkan Brar, the Accused’s brother and RCMP member, speak with the Accused’s 16-year-old son. The conversation was caught on one of the members wireless microphone.

The discussion was in a different language and translated, it appears that the son was asking his uncle whether he should give a statement and his uncle replied “it’s your wish-- don’t give them anything. It’s a family matter.” Rupinder Samagh, Satvir’s sister, told the police in a statement on May 8, 2021 that she received a call from the Accused’s son at 1:30 PM on May 7, 2021 requesting that she not provide a statement to the police about the Accused. [ 30 ] The shooting of Satvir, the Accused’s wife, is a horrific and extreme example of domestic violence at its worst.

Had there not been a passerby at the time, which resulted in the Accused abandoning his chase of Satvir, the outcome would undoubtedly have been far more tragic. [ 31 ] The Accused has had access to weapons and apparently knows where to find them. The weapon used on the night in question has not been found. [ 32 ] I am not satisfied that the conditions put forward by the defence satisfactorily or adequately address the protection and safety of the public and especially Satvir.

However, and notwithstanding these present and serious concerns regarding the Accused’s attitude towards his wife and his ability to access weapons, I am satisfied that additional and onerous conditions to those suggested by the defence can be imposed that would further minimize or eliminate any risks.

These might include a severe restriction on computer and telephone use with full-time remote access to them and the right to inspect them at any time by a probation officer as well as the use of recording devices to monitor all calls. [ 33 ] There is some indication of a lack of cooperation by potential witnesses acting upon the advice of the brother of the Accused, a serving RCMP member.

There is also an indication of a possible attempt by the Accused or someone on his behalf trying to influence a witness on the charges he faced that ultimately resulted in the Peace Bond. [ 34 ] While I am concerned about the Accused, either on his own or with assistance, taking steps to influence potential witnesses and possibly interfere with the administration of justice, I also believe that additional onerous and strict conditions can be put in place to minimize or eliminate this potential risk if the Accused was released. [ 35 ] Accordingly, and while I am not satisfied that the proposed conditions adequately address the protection or safety of the public and possible interference with the administration of justice, I am satisfied that additional strict and onerous conditions can do so such that the detention of the Accused would not be necessary for the protection or safety of the public.

C) Confidence in the Administration of Justice [ 36 ] It must first be recognized that there is no category of offence, including murder, for which bail is not available. In considering this tertiary ground, it is incumbent upon the bail judge to consider all of the circumstances including those set out in s 515(10)(c). In balancing these circumstances, the Court must consider the perspective of the reasonable person with accurate knowledge of the law and who is properly informed about the actual circumstances of the case.

The reasonable person’s confidence in the administration of justice may be undermined not only if the court declines to order detention where detention is justified but also if it orders detention where detention is not justified. i. The apparent strength of the prosecution’s case [ 37 ] Satvir saw the Accused in the car that ultimately followed them. The Accused pulled up beside them and fired gun shots into the passenger side of the vehicle, hitting both Satvir and Mr. Bhattal. He then caused a collision between the vehicles bringing them to rest. Satvir then got out of the vehicle and began running.

The Accused chased her with a gun in his hand. [ 38 ] Jesse Christianson saw Satvir running on the road towards his vehicle with her hands covered in blood. She told him that a man had shot her and was chasing her. She pointed to a male about 40 feet away who matched the Accused’s description and was holding a large silver handgun. [ 39 ] Nigel Wainwright came upon the scene of the collision between the two vehicles. He saw Satvir running westbound on Baseline Road and the Accused chasing her. He then saw the Accused return to the collision scene, walk towards Mr. Bhattal and shoot him in the head.

[ 40 ] Nolan Prince came upon the collision scene. He heard a gunshot and immediately looked towards the scene of the collision. He saw Mr. Bhattal lying on the ground and the Accused standing over him with a pistol in his hand. He then saw the Accused shoot Mr. Bhattal. [ 41 ] I recognize that none of Mr. Wainwright, Mr. Christianson and Mr. Prince actually identified the Accused. Rather, they described an individual who matched the Accused’s description.

However, I am considering the constellation of evidence as to what occurred from the time Satvir first saw the Accused in his car and her identification of him to the point when Mr. Prince saw the man shoot Mr. Bhattal in the head second time. The narrative is fluid and clear. The person who chased Satvir was the same person who returned and shot Mr. Bhattal.

That person was identified by Satvir as the Accused. [ 42 ] At least three other witnesses were at or near the scene of the accident and shootings and provide equally compelling circumstantial evidence both placing the Accused at the scene and identifying him as the shooter. [ 43 ] Witnesses who heard the gunshots fired from the vehicle later identified as that of the Accused, indicate that there were between four and six shots fired. Police later noted two bullet holes in the passenger side of Mr. Bhattal’s vehicle and two bullets were recovered from the passenger side door of the vehicle.

Further, the Accused’s damaged vehicle was found at the scene and seven live Winchester .38 Special ammunition rounds were located on the passenger floor. [ 44 ] A text message was sent by the Accused’s 12-year-old son to his mother at 6:28 AM on May 7, 2021 which reads: “Mom dad killed someone”. This message was sent within three or four minutes of the initial report of a shooting, though it remains unclear as to how the boy knew what had occurred so soon after the events. [ 45 ] These events occurred between 6:15 and 6:30 AM on May 7, 2021.

At 7:25 AM, the Accused called 911, identified himself and said that he was involved in the “incident” on Clover Bar Road. He further advised the 911 operator that he was at the Park Place Funeral Home and did not have any weapons. He and his wife are the registered owners/operators of the funeral home. [ 46 ] The RCMP attended at the funeral home and the Accused was taken into police custody. Gunshot residue was found on the Accused’s hands and face. The blood of a female donor, which has not yet been compared to that of Satvir, was found on the Accused’s shoe.

The Crown’s theory is that the Accused stepped in Satvir’s blood which had been dripping from her hands as he was chasing her. [ 47 ] In a search of the Accused’s home, police found two guns and three or four rifles or shotguns. Importantly, they also found an empty case for a Smith & Wesson .357 magnum revolver and live Winchester .38 Special ammunition. The Accused is the registered owner of a Smith & Wesson .357 magnum revolver.

Expert opinion evidence has been provided that that revolver is capable of discharging the Winchester .38 special rounds matching the ones found in the Accused’s car. [ 48 ] During an otherwise prohibited discussion on May 11, 2021 between the Accused and Satvir, while the Accused was in custody at the Remand Centre, Satvir said to the Accused: “Nobody else shot me, you shot me.” [ 49 ] On the basis of the evidence put before me during this bail hearing, the prosecution’s case appears very strong. ii. The gravity of the offence [ 50 ] The alleged offences are extremely serious.

They are among the most serious offences in the Criminal Code . iii. The circumstances surrounding the commission of the offence [ 51 ] As described above, the circumstances surrounding the offences with which the Accused is charged were egregious. There was an execution style murder of Mr. Bhattal, his nephew, and an extreme example of domestic violence against Satvir, his wife. Dr.

Nesca stated that he could not rule out the possibility that the Accused continues to harbour hostility toward Satvir and opined that there was still a moderate risk of imminent violence by the Accused against Satvir. [ 52 ] The circumstances included the use of a firearm and, notably, the firearm has not been found. iv. Term of imprisonment [ 53 ] If the Accused is ultimately convicted of the murder of Mr. Bhattal, he will face a minimum punishment of life imprisonment.

If he is ultimately convicted of the attempted murder of Satvia, he will face a minimum punishment of imprisonment for a term of four years and a maximum punishment of imprisonment for life. [ 54 ] In

summary, a reasonable person properly informed would know of the evidence outlined above as to the identification of the Accused and the following circumstances: • The Accused fired 4 to 6 shots from a moving vehicle into another moving vehicle on a public roadway to which members of the public have access and were present; • He shot his wife and nephew while they were in that other moving vehicle; • He intentionally caused a collision between the two vehicles on the same public roadway; • He chased his wife on foot with a loaded gun; • He killed his nephew execution style by firing two shots to his head, one while he was lying on the ground.

His nephew was 19 years old and a foreign national from India living in Canada on a student permit. He had only been trying to assist his aunt, the wife of

the Accused, who was facing immediate and extreme danger. • These actions by the Accused were witnessed by random members of the public who happened to be using the public roadway at the time; • The Accused was found with gunshot residue on his hands and face and blood on his shoe; • He continues to harbour hostility toward his wife and exhibits a moderate risk of imminent violence towards her; • He has shown that he has access to guns and the one used in this case has not been found. [ 55 ] This case is one of extreme domestic violence by the Accused against his wife, Satvir Brar, and the execution style murder of their nephew, Harmanjot Bhattal.

On the facts as outlined, I believe that a reasonable person properly informed as to the circumstances of this case would only have confidence in the administration of justice by Mr. Brar’s continued detention in custody. The Crown’s case appears very strong, the offences are extremely serious, the circumstances included the use of a firearm in a case of extreme domestic violence and an execution style murder and Mr. Brar will be liable, if convicted, for a potentially lengthy term of imprisonment.

This constellation of facts greatly outweighs any favourable consideration the reasonable person might give to the community support exhibited in the letters submitted on behalf of the Accused. [ 56 ] The Accused has failed to show cause why his detention in custody is not justified. His detention is necessary to maintain confidence in the administration of justice. IV. Conclusion [ 57 ] Gamdur Brar’s application for judicial interim release under s 522 and s 515(10) of the Criminal Code is denied on the ground that his detention is necessary to maintain confidence in the administration of justice.

Heard on the 30 th day of September, 2021. Dated at the City of Edmonton, Alberta this 1 st day of October, 2021. Eric F. Macklin J.C.Q.B.A. Appearances: Photini Papadatou For the Crown Brian Beresh QC For the Accused