R. v. Sandhu, 2018 BCPC 122

Citation: R. v. Sandhu 2018 BCPC 122 Date: 20180518 File No: 221809-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. GURTARN SINGH SANDHU REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.I.S. SUTHERLAND Counsel for the Crown: J. Lopes and A. Willms Counsel for the Defendant: W.B. Smart, Q.C. and R. Robb Place of Hearing: Surrey , B.C. Date of Hearing: February 5-8, 2018; February 13-16, 2018; March 13-14, 2018 Date of Judgment: May 18, 2018 INTRODUCTION

[1] At the conclusion of a housewarming gathering in the early morning of March 26, 2017, an altercation took place between theaccused, Gurtarn Sandhu and Jaspreet Dhaliwal. The tragic result of the altercation was the death of Mr. Dhaliwal, having been fatallystabbed by Mr. Sandhu. [2] Mr. Sandhu has been charged with Manslaughter as a result of the altercation. He defends the charge on the basis that he wasacting in self-defence when he stabbed Mr. Dhaliwal. The sole issue in the trial before me is whether the force used by Mr. Sandhu thatultimately resulted in the death of Mr. Dhaliwal was unreasonable in all of the circumstances. Self-Defence:

Section 34 of the Criminal Code [3] Before embarking on a review of the facts it is worth providing a

summary of the legal principles that apply in Mr. Sandhu’scase. This

summary will provide some context to the review of the facts. [4] Section 34(1) states: 34(1) A person is not guilty of an offence if

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is beingmade against them or another person;

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person fromthat use or threat of force; and

c) the act committed is reasonable in the circumstances. [5] The three part test laid out in s. 34(1) is a subjective and modified objective test. This means that the accused’s subjectivebelief regarding the severity of the threat, the need to use force to defend against it, and the amount of force to use, still lies at the core ofthe defence, however those beliefs must be based upon objectively measured reasonable grounds (R. v. Pétel, (SCC),[1994] S.C.J. No. 1.). In other words, the accused’s appreciation of the situation and his belief as to the required reaction must besupported on an objective basis (R. v.

Reilly, (SCC), [1984] 2 S.C.R. 396; at p. 404). This allows someone to act in self-defence, even if mistaken about the threat faced, provided the mistake was reasonable. [6] Whether the accused’s belief was reasonable takes into account matters personal to the accused, such as his or hercircumstances and past experiences. (R v. Lavallee, (SCC), [1990] 1 S.C.R. 852; R v.

Charlebois, 2000 SCC 53, [2000] 2 S.C.R. 674; at paras. 14-15). [7] As can be seen, there are three core elements to the defence of self-defence: 1) A reasonable perception of force or a threat of force against a person; 2) A defensive purpose associated with the accused’s actions; and 3) The accused’s actions must be reasonable in the circumstances. It is the third of these three elements that is at issue in the present case. [8] Section 34(2) of the Criminal Code gives guidance in determining whether the accused’s actions were reasonable in thecircumstances.

Section 34(2) of the Criminal Code states: 34(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances ofthe person, the other parties and the act, including, but not limited to, the following factors:

a) the nature of the force or threat;

b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential useof force;

c) the person’s role in the incident;

d) whether any party to the incident used or threatened to use a weapon;

e) the size, age, gender and physical capabilities of the parties to the incident;

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of forceand the nature of that force or threat; f.1) any history of interaction or communication between the parties to the incident;

g) the nature and proportionality of the person’s response to the use or threat of force; and

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. [9] The weight to be attributed to the enumerated and any additional factors is in the discretion of the trial judge. [10] In the present matter, Mr. Dhaliwal died from the force applied by the accused. As discussed below, I am satisfied that his

death was unintended. The question the court must answer then is not whether Mr. Dhaliwal’s death was excessive, but rather, whetherthe degree of force applied by the accused was unreasonable in the circumstances (R. v. Kandola (1993), (BC CA), 80C.C.C. (3d) 481 (B.C.C.A.) at p. 488; R. v. Jeffrey, [2009] B.C.J. No. 958; at para. 141). In other words, the focus of the inquiry is onthe reasonableness of the act and not the consequences. [11] Furthermore, an accused is not required at law to wait until they are assaulted, or to retreat, before acting in self-defence.

However, as noted in s.34 (2), the imminence of the threat, the existence of alternative means of responding to it, and how the accusedresponded, are among the factors the court is required to consider in determining whether the accused’s actions were reasonable in all ofthe circumstances. [12] Another important contextual consideration in the legal analysis is that when weighing the proportionality between the threat tothe accused and the force he used, it must be acknowledged that there was not time for calm and detached reflection, allowing him tocarefully or precisely calculate the minimally required response (Jeffrey; para. 141; R v.

S.L., [2016] B.C.J. No. 36). In Kandola, thisimportant consideration was described at para. 28: It would be inconsistent with this principle to expect a person, who is under attack of sufficient magnitude to warrant resort to potentiallydeadly force, even though no deadly intent is present, to stop and reflect upon the risk of deadly consequences which might result fromtaking such defensive action. [13] It is well established at law that a “tolerant approach” is required to the objective analysis of the degree of force used (Kandola,para. 20). The following often quoted passage in Palmer v.

The Queen (1971), 55 Cr. App. R. 223 at p. 242, adopted at paragraph 27 ofKandola captures this sentiment: If there has been an attack so that defence is reasonably necessary, it will be recognized that a person defending himself cannot weigh toa nicety the exact measure of his necessary defensive action. [14] In the present case, if the accused reasonably believed he needed to use the knife as he did, he was not expected while underattack to stop and reflect upon the exact amount of force required to protect himself. [15] Finally, the burden of proof requires mention. Mr.

Sandhu does not have to prove that he acted in self-defence; in the particularcontext of the present case - that the degree of force he used was reasonably necessary to defend himself in the circumstances. Rather,the burden is on the Crown to establish beyond a reasonable doubt that the degree of Mr. Sandhu’s use of force was not reasonable in thecircumstances. Background Circumstances [16] On the evening of March 25, 2017, Amraj Aulakh hosted a social gathering to celebrate moving into a new home. Approximately 12 adult friends and family attended. Drinking and socializing took place well into the next morning.

By all accounts,the gathering had been pleasant, with everyone having a good time. There were no problems up until the incident which took placeshortly before 6:10 a.m. [17] Guests started leaving in the early morning hours. By the time Amraj Aulakh went to bed at approximately 5:30 a.m. therewere only the accused, his wife, Jessica Rai-Sandhu (“Jessica”), Akash Sandhu (“Akash”), and the deceased still up. The accused andJessica had each met the deceased once in passing on separate occasions prior to the house warming gathering.

Akash did not know anyof the three prior to the evening. [18] The four were standing around the kitchen island socializing. The accused and Jessica were on one side of the island with thedeceased on the opposite side. [19] Things turned when Jessica mentioned to the deceased that she knew who his ex-girlfriend was. At that point, the deceased’smood quickly changed.

He became angry and upset, and started yelling at Jessica, repeatedly demanding to know how she knew his ex-girlfriend’s name. [20] According to Akash, Jessica seemed very calm and started walking toward the deceased, speaking in a calm voice trying tosettle him. She remembers the deceased remaining in one place as Jessica approached. However, Jessica’s efforts to calm the situationdid not appear to be working. [21] Akash was uncomfortable with the change in mood but not scared and at no time thought the confrontation would becomephysical. She decided to leave.

As she left the kitchen the deceased was still yelling at Jessica. She did not see the altercation thatfollowed. About one to two minutes after leaving the kitchen, she heard a female screaming, which I infer to be Jessica. On her way upthe stairs to the kitchen, she heard the accused yell for the host, Amraj Aulakh. [22] When she got to the kitchen, she saw the deceased lying on the kitchen floor near the patio doors, with the accused on his kneesovertop, trying to apply pressure to stop the bleeding from the deceased’s wounds.

He asked her to apply pressure as well to stem thebleeding. [23] When the first police officer arrived, the accused, in response to the officer’s questions, told the officer he had stabbed thedeceased because “he came and attacked me and my wife”, and that he was protecting them. The accused pointed out the knife, whichwas on the floor, close to the accused and the deceased. [24] When the paramedics arrived, the accused was still applying pressure to the deceased’s wounds in order to stop the bleeding. [25] There is no dispute that the accused caused the death of the deceased by stabbing him.

An autopsy revealed three stab woundsto the deceased; one on the left side of his chest, another in his left lower abdomen, and a third in the right upper arm.

[26] According to Cst. Irvine, who arrested the accused at the scene and transported him to the Surrey RCMP Detachment, theaccused did not appear to be intoxicated or injured and did not complain of injury. At some point, while with Cst. Irvine, the accused,without prompting said the deceased had attacked his wife, and that the accused grabbed a knife because he is not a fighter. [27] The police observed Jessica to be intoxicated and distraught.

No injuries were observed to her, and she did not complain of anyinjuries. [28] Samples of bodily fluids from the deceased showed high amounts of alcohol and cannabis compounds. His blood-alcohol levelat the time of the incident was estimated to be at a level associated with moderate to severe intoxication. [29] Two police expert witnesses testified in the areas of blood stain pattern analysis and crime scene examination.

Their evidenceleads by way of logical inference from established facts to the following conclusions. [30] The location of the stabbing was in the open area separating the kitchen from the living room and near the kitchen island. Afterbeing stabbed, the deceased retreated to the nearby patio doors, where he handled the doors, including the handle and deadbolt, beforecollapsing at its base. He remained lying at its base until eventually moved by paramedics. [31] Jessica had blood stains on her top and pants.

The blood pattern evidence establishes that blood stains on the left shoulder of hertop and back left leg of her pants came from the deceased after he was stabbed, and while both he and Jessica were standing. Defence Evidence [32] Defence evidence was called at trial. The effect of this evidence on the trial is described in R. v. W.(D), (SCC),[1991] 1 S.C.R. 742. It is not necessary to set out each part of the analysis in these reasons.

Applied to self-defence, the question iswhether the defence evidence, believed in whole or in part, or even disbelieved, but when considered with all of the evidence, creates areasonable doubt about whether the accused acted in self-defence. i. Evidence About the Accused [33] Three character witnesses were called by the defence. A

summary of their evidence is that the accused does not have areputation in the community as an aggressive person or someone who is quick to be involved in a physical confrontation. ii. The Evidence of Jaskirat (“Jessica”) Rai-Sandhu [34] Jessica and the accused had been married three years by the time of trial.

She testified that she had not discussed the incident atany time with her husband prior to trial on the advice of counsel. [35] At the time of the incident Jessica was approximately 5”10’’ and 150 lb. [36] She had met the deceased briefly once before and thought he was nice and that he had a good personality. [37] Jessica confirmed that the evening was pleasant and without any tension until she mentioned to the deceased his ex-girlfriend’sname. [38] She described the deceased becoming “really angry”, and repeatedly yelling at her, asking how she knew his ex-girlfriend’sname.

She tried verbally to calm him down, but he kept getting louder and more angry. In her testimony at trial, she said the deceased’sreaction left her feeling embarrassed, nervous, and scared. This contradicted a statement she made to the police about two hours after theincident, where she twice said that she was laughing when the deceased reacted as he did. When confronted with the contradiction attrial, she said she did not mean laughing in a literal sense. [39] Jessica recalls the deceased getting closer to her in his agitated state, and shoving her.

Her next recollection is seeing theaccused kneeling over the deceased, assisting him in the aftermath to the stabbing. [40] At that point she decided to video on her phone the accused and the deceased, as it was her “natural instinct” to do so. Thevideo is approximately 13 minutes long and was tendered as evidence at trial. [41] In her evidence, Jessica said it was while she was filming that she first heard what had happened when the accused said hestabbed the deceased because he attacked him and Jessica. Captured in the video was her telling the police that the accused anddeceased got into an argument.

In direct examination she testified that she said it because this was the last thing she could recall. Incross-examination, she said it was based on what the accused had said in the video. She also told the police in the video that the accusedwas just standing up for her. At trial, she testified that she said that because it was the only thing that made sense to her. [42] I have difficulty accepting Jessica’s explanations at trial about what she meant when she made her comments in the video.

Sheadmitted to being intoxicated at the time and has no recollection of critical events of the evening, despite being intricately involved. Indeed, she was close enough to the deceased for him to drip blood on her after he was stabbed but still standing, yet she has norecollection of it. Her pants and shirt had blood on them, but she has no recollection of how it got there. Nor does she recall what she didimmediately after the stabbing other than making the video.

These are some examples, but not all, of gaps in her memory that rendermany aspects of her evidence of the events unreliable. [43] Jessica’s statement to the police about two hours after the incident was internally inconsistent. One example is whether theaccused stepped in between Jessica and the deceased. In her statement to the police, she said the deceased was pushing her around, andthen the accused stood in front of her, after which she did not know what happened.

Later in her statement she said she recalled thedeceased angrily coming toward her, and the next thing she saw was him lying on the floor and blood all over her hands. She also said ina few places that the accused never intervened while the deceased was angry at her. She also contradicted herself between her evidence

at trial and her statement to the police. [ 44 ] In argument it was pointed out that she still would have been feeling the intoxicating effects of the alcohol she drank when she made her police statement, and that may account for some of the contradictions. That may well be the case, and if so, it certainly renders the accuracy of her recollection of what actually happened and what she meant in the video, to be suspect. [ 45 ] Jessica’s evidence shifted during her testimony at trial.

She also testified that her recollection of some of the details of the evening changed over time. [ 46 ] In the end, I accept Jessica’s evidence up to the point of the deceased reacting strongly to her mention of his ex-girlfriend’s name. Indeed this was also supported by Akash’s evidence. However, I do not find her to be a reliable witness as to what happened from that point onward. [ 47 ] I will now turn to the evidence of the accused. iii.

The Evidence of the Accused [ 48 ] The accused’s evidence is comprised of his testimony in court, admissible spontaneous statements he made that were captured in Jessica’s video, and the statement to Cst. Irvine, subject to limits on its use. Although I will outline the accused’s evidence at this point, additional parts of his evidence will be mentioned in the analysis

section of these Reasons. [ 49 ] At the time of the incident the accused was 27 years of age, approximately 6’3” and weighed approximately 196 lbs. He worked for an electrical company at construction sites. [ 50 ] The accused did not consider himself a fighter, and was unsure of his ability to defend himself in a physical confrontation with another adult male. He had been the victim of an attack by more than one person approximately five or six years earlier that resulted in a concussion, broken nose, and bruising.

He had a surgically repaired left wrist from an injury four years earlier. [ 51 ] At the party, the accused did not recognize the deceased or remember that they had met briefly once before at a job site until reminded by the deceased. They got along at the party, and the deceased seemed nice according to the accused. [ 52 ] Shortly before the incident, the accused, Jessica, the deceased, and Akash were standing around the kitchen island socializing and getting along fine. The accused was relatively sober. [ 53 ] Things turned when Jessica mentioned to the deceased that she knew who his ex-girlfriend was.

At that point, the deceased’s mood quickly changed. He became angry and upset, and aggressively started yelling at Jessica, repeatedly demanding to know how she knew his ex-girlfriend’s name. [ 54 ] Jessica unsuccessfully attempted to calm him down by walking towards the deceased and speaking in a calm voice that it was no big deal. In his direct evidence, the accused said he was doing the same, and also moved in the direction of the deceased, but was behind Jessica.

He said the deceased was moving toward the living room area away from the island. [ 55 ] In trying to calm the deceased, the accused told him to stop being a “bhander” (a Punjabi word that literally translates to “monkey”, but is sometimes used derogatorily as “idiot”). This only exacerbated the situation. According to the accused, the deceased verbally reacted by screaming, “oh I’m a bhander, you’re calling me a bhander”, and grabbed Jessica by the arms near her shoulders and threw her to the floor. He then went directly for the accused “as if he was possessed”.

The accused said he was still verbally trying to calm him down. [ 56 ] The accused testified he had never been more scared in his life, and did not know what was going to happen other than that the deceased wanted to hurt him. He did not feel he could protect himself or Jessica with his hands, because he had never been in a consensual fight before. [ 57 ] The accused said he then took a step back towards the kitchen island, and reached across his body with his right hand to grab a knife that was sitting on the island. He said he did not intend to use it, other than to protect himself and ward off the deceased.

When he turned back, the deceased was within a foot of him, and they started fighting. They grabbed each other, and punches were thrown by both parties, while the knife was in his hand. Indeed he only punched with the hand that had the knife because it was his dominant hand and punching with his left hand would hurt due to his previous injury. [ 58 ] According to the accused, the deceased stopped fighting, took a few steps back and looked like he was about to collapse. The accused could see blood on the floor. He then tossed the knife aside and helped the deceased to the floor near the back patio doors.

The accused testified that he did not realize he had stabbed the deceased until that moment, and was not even sure if he was actually making contact when he was trying to punch the deceased. Once on the floor he applied pressure to the deceased’s wounds to stop the bleeding. [ 59 ] In the video made by Jessica while the accused and Akash were assisting the deceased, the accused said the deceased’s arm appeared to be the only place he was bleeding. [ 60 ] The accused testified that he was not specifically looking for a knife, he just wanted anything to deter the deceased.

Further, he did not intend to cause death or serious injury to the deceased, rather his intention throughout was just to get the deceased to stop attacking him. [ 61 ] He said, thinking back, he did not know what the deceased was going to do when he approached the accused; if the deceased subdued him whether he would then return to attack Jessica. [ 62 ] The accused said he did not remember seeing Jessica after she was thrown until he saw her sitting against the fridge while he

was applying pressure to the deceased’s wounds. [ 63 ] The accused acknowledged in cross-examination that the deceased never came around to the side of the island where he and Jessica were, and, in fact, while he was yelling at Jessica he had moved away and back from the island toward the living room. It was then that Jessica approached the deceased. [ 64 ] The accused suffered no injuries from the altercation. The Credibility and Reliability of the Accused [ 65 ] I accept the evidence of the accused that the deceased’s mood abruptly changed when Jessica mentioned his ex-girlfriend’s name.

This was supported by the evidence of other witnesses. [ 66 ] I do not find the blood pattern evidence detracts from or contradicts the accused’s evidence. [ 67 ] There are aspects of the accused’s evidence that deserve specific mention and I will turn to those aspects now. I . The Accused’s Spontaneous Statements [ 68 ] The accused made spontaneous statements captured on Jessica’s video. To paraphrase, the accused said he stabbed the deceased because he felt the deceased attacked him and his wife, and that he was attempting to protect them. [ 69 ] To Cst.

Irvine, the accused spontaneously said words to the effect that the deceased attacked his wife, and that an altercation occurred where he grabbed the knife because he does not consider himself a fighter. This statement cannot be used for its truth, but rather as circumstantial evidence to assess the accused’s credibility. It is consistent with his evidence at trial, however, I bear in mind that the statement, according to Cst. Irvine, is a paraphrasing of what was said by the accused as it was recorded by Cst. Irvine in his notes approximately 2 - 2 ½ hours after it was made.

I do not attribute much weight to this statement. II . The Accused’s Statements to the Police [ 70 ] The accused made three statements to the police shortly after the incident. Those statements were made during interviews that took place the day of the incident on March 26, 2017, from 4:47 p.m. - 10:15 p.m.; and 10:44 p.m. - 11:35 p.m.; and the next day, March 27 th from 11:40 a.m. to 1:47 p.m. [ 71 ] I accept the evidence of the accused that at the time of his statements, he was tired, hungry, physically weak, and emotionally drained.

His first two statements were the product of a lengthy session with the police, with only a half-hour break. He had been advised by counsel not to provide a statement, and so, at times, he provided information about what happened, but stopped short of providing a fulsome account. Nevertheless, his testimony at trial can be measured against his statements to the police in weighing his credibility and the reliability of his evidence. [ 72 ] In his evidence in chief, the accused said it was when he called the deceased a “bhander” that the nature of the deceased’s hostility changed.

The deceased became more upset, directed his anger toward the accused, and came at him. In cross-examination, he agreed that this was a very important moment in the incident. Yet, he made no mention to the police of his comment to the deceased. In fact, in his statement to the police the next day, he told them that he did not say anything to the deceased. [ 73 ] Despite this contradiction, I accept the accused’s evidence that he called the deceased a “bhander”. It is particular and specific and does not necessarily advance the accused’s case as one would expect from fabricated evidence.

Nor does it paint the accused in a better light. I do note that in his evidence the accused testified that there was more conversation with the deceased than calling him a “bhander”. His police statement contradicts that evidence. [ 74 ] In his evidence at trial, the accused said that he and the deceased fought before the accused was stabbed. He described it as a “tussle with grabbing and punching” that lasted “maybe a couple of seconds” and that it was in the course of that fight that the deceased was stabbed.

However, during his statement to the police on March 27th, he told them he only had the knife for about “a second” before stabbing the deceased. Further, that he wasn’t sure if he struck the deceased before stabbing him, and later said that he did not strike the deceased before stabbing him. He also told the police in the statement that the deceased would not have any injuries other than the stab wounds, which implies the deceased was stabbed right away without a fight .

When the statement to the police was put to him at trial, the accused said what he meant was that he did not know if he was making contact with the deceased during the fight. I note that during the fight the deceased would have been inches away. One would think that a person would know if contact was being made in the circumstances. [ 75 ] As to the critical events leading to and during the stabbing, it is not surprising that the accused would not be able to say with precision what exactly happened, given the encounter was unexpected, spontaneous, quick, and highly stressful.

The inconsistencies between his statements to the police and evidence at trial suggest he is trying to piece it together in a way that makes sense to him. This in turn makes me unable to accept his evidence of what exactly happened when the deceased came to him and physical contact took place as reliable. [ 76 ] Turning to the consistency of the accused’s evidence with that of other witnesses, as mentioned, the accused’s evidence about the events of the evening prior to the incident is consistent with other witnesses.

As to the incident itself, the only witnesses who were present for all or part of the incident were Jessica and Akash. Jessica’s evidence is of limited assistance in assessing the credibility and reliability of the accused’s evidence because of the concerns I have already mentioned about her reliability. Akash’s evidence is also limited because she only saw the beginning of the incident. Nevertheless, an aspect of her evidence as compared to the accused’s is worthy of mention. [ 77 ] The accused’s description of the deceased after his mood changed was “extremely enraged”; “going nuts”; “as if possessed”;

“I’ve never seen anything like it before, he was just so angry, he was getting out of control”; “he started going ballistic”. This seems inconsistent with Akash’s view that she was not scared and at no time thought the confrontation would become physical, and Jessica approaching the deceased, as opposed to trying to distance herself out of fear. Having said that, I accept that Akash did not see the deceased, and Jessica did not approach him, at the height of his agitation which appears to have been after being called a “bhander”. [ 78 ] An aspect of the accused’s evidence raises a credibility concern as well.

He testified that he has no recollection of where Jessica was between the time the deceased was stabbed and seeing her videotaping while sitting against the fridge. I accept that the accused was likely distracted by the events of the stabbing and the immediate aftermath, however, as previously discussed, Jessica was in close enough proximity to the deceased for him to bleed on her while he was still standing.

It is difficult to understand how the accused could not account for Jessica’s whereabouts, even if only briefly, when she was obviously in contact with the deceased immediately after the accused stabbed him. [ 79 ] I am mindful, and have instructed myself, that I can accept or reject all of a witness’ evidence, or accept parts and reject other parts of their evidence. In the end, I do not necessarily accept the accused’s rendition of what happened during critical moments of the encounter. I do accept though that the deceased pushed or threw Jessica and then came at him quickly. Nothing contradicts this evidence.

Further, that in arming himself with a knife that was close by on the kitchen island, his intention was to ward off the deceased. However, events happened quickly, and the accused acted out of intense fear. Analysis (

i) The Accused’s Intention [ 80 ] I accept the accused’s evidence at trial that he did not intend to kill the deceased. Indeed, his efforts to assist the deceased afterward support this conclusion. (ii) The Accused’s Subjective Belief [ 81 ] I find that the accused had a subjective belief that he needed to respond to the threat the deceased posed in the manner he did - by using the knife.

This is supported by the evidence of the accused that I do accept of his inexperience with physical conflict, his previous victimization, his perception of the degree of the deceased’s hostility toward him and, to a much lesser degree, his statement to Cst. Irvine that provides some circumstantial evidence supporting his evidence at trial of his subjective belief. [ 82 ] The critical issue is whether the accused’s subjective belief was objectively reasonable. (iii) The Objective Reasonableness of the Accused’s Subjective Belief: The Factors in s. 34(2) of the Code

a) The nature of the force or threat. [ 83 ] The deceased became agitated and hostile and was the initial aggressor. He pushed or threw Jessica before aggressively coming toward the accused. Although the accused concluded the deceased was coming toward him to hurt him, he knew at the time the deceased was unarmed and thus, it was reasonable to conclude a weaponless physical assault at the hands of the deceased is what he was, at least initially, in for. [ 84 ] No physical force was exerted by the deceased or explicit threats made to the accused prior to the accused arming himself.

The threat came from the deceased’s words and conduct. [ 85 ] Once armed with the knife, the extent of any force that may have been exerted by the deceased was grappling and punching.

b) The extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force . [ 86 ] The confrontation was relatively sudden, unexpected, quick, and spontaneous. The first indication things would turn physical was when the deceased grabbed Jessica just before he came toward the accused.

It was reasonable to conclude when the deceased came toward him that use of force by the deceased was imminent. [ 87 ] Other reasonable alternatives available to the accused to respond to the deceased’s imminent use of force were retreating behind the counter that was just steps away and using it as a barrier between them and also, engaging in a weaponless fist fight. [ 88 ] I do not accept as reasonable the suggestion that the accused could have left the room once the deceased became agitated. It was reasonable to attempt to diffuse the situation verbally, rather than simply retreating with matters unresolved.

Jessica was ensconced in that process when things became physical. It would not have been reasonable to leave her behind at that point. The altercation with the accused followed quickly on the heels of the deceased pushing Jessica, leaving the accused with few options. Leaving Jessica and the deceased alone in the room while the accused retreated was not a reasonable one.

c) The person’s role in the incident. [ 89 ] The accused tried to calm the deceased down. His misguided attempt to do so was by calling the deceased a “bhander”. It was not something that alone contributed to the deceased’s enraged state, but it exacerbated it – there had been no physical contact between anyone until the accused said it. [ 90 ] After seeing his wife grabbed and the deceased come toward him, he grabbed the knife and ultimately stabbed the deceased.

d) Whether any party to the incident used or threatened to use a weapon . [ 91 ] No party made any verbal threats to use a weapon.

[ 92 ] The accused possessed and used the only weapon in the altercation. He armed himself with the knife before there was any physical contact between him and the deceased but while physical contact seemed inevitable. He stated his initial intention was to deter the deceased from assaulting him. In the end he used it by stabbing the deceased.

e) The size, age, gender and physical capabilities of the parties to the incident. [ 93 ] At the time of the incident, the accused was approximately 6’2” and weighed approximately 196 lbs, and Jessica was approximately 5’10” and weighed approximately 150 lbs.

The deceased was approximately 5’7” and weighed approximately 154 lbs. [ 94 ] The accused had a surgically reconstructed left wrist approximately four years earlier that has resulted in some debilitation, and a belief by the accused that punching with his left hand would be somewhat painful. [ 95 ] The accused did not consider himself a fighter, was inexperienced as a fighter, and was not confident he would fare well in a fight.

He had been the victim of a significant assault by strangers approximately six years earlier. [ 96 ] The accused was relatively sober and the deceased intoxicated at the time of the incident.

f) The nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat. [ 97 ] The accused and deceased were virtual strangers to one another prior to the evening in question, having only met briefly on one prior occasion. f.1) Any history of interaction or communication between the parties to the incident . [ 98 ] At the party, the parties had positive social interaction until moments before the incident when Jessica mentioned the deceased’s ex-girlfriend’s name.

g) The nature and proportionality of the person’s response to the use or threat of force . [ 99 ] The accused perceived that Jessica had been thrown, and that the deceased was coming unarmed to fight him. The accused did not know the deceased’s intentions, other than reasonably assuming he was coming to fight. He did not know the deceased’s fighting capability. The accused did not know the extent of any potential assault by the deceased.

In response, the accused armed himself with a knife. [ 100 ] His initial intention may have been to use the knife to scare off the deceased, but he ended up stabbing him three times; once in his left chest; once in his lower left abdomen; and once in his right upper arm. The accused had no injuries from the altercation. Neither did Jessica. [ 101 ] It is difficult to accept the accused’s evidence that after he grabbed the knife, he had no time to do anything but keep it in his hand and punch with that hand, because the deceased was on him too quick.

In other words, that he acted instinctively in punching back, albeit with the knife in his hand. He could not have forgotten he had the knife in his hand given he had just made a conscious decision to pick it up. He could have simply dropped the knife and fought back. [ 102 ] I do accept, however, that the deceased was on him quick. Further, that the accused’s primary purpose in arming himself with the knife was to keep the deceased away, and that he did not intend to seriously injure or kill the deceased during the incident.

Other Relevant Considerations [ 103 ] I do not find Jessica was injured in the altercation with the deceased. Although, no doubt pre-occupied by the dramatic and tragic events of the evening, and intoxicated, she did not complain of injury, and none were noted by the police at the scene. Photographs taken days later showing bruising to her left knee is not probative of what occurred given her concession that she was not sure when or how she got the bruises.

CONCLUSION [ 104 ] The question is whether the court is satisfied beyond a reasonable doubt that when viewed from someone standing in the accused’s position, with his history and background, that the use of the knife as he did was unreasonable. [ 105 ] I am mindful of the high standard the Crown must meet of disproving, beyond a reasonable doubt, that the degree of force used by the accused was reasonable. A reasonable doubt is based on reason and common sense that logically flows from the evidence or lack thereof.

The Crown is not required to disprove that the degree of force was reasonable to an absolute certainty. However, if I believe the degree of force was probably or most likely unreasonable, that is not sufficient to reach the beyond a reasonable doubt standard and the accused is entitled to the benefit of that doubt. [ 106 ] As noted above, I do not accept important parts of the accused or Jessica’s evidence as accurate. In fact, I find the gaps in their evidence, and what I believe to be the reconstructed parts of their recollections to be troubling.

Despite that, I must still consider whether the defence evidence, when considered in the context of all of the evidence, leaves me with a reasonable doubt. [ 107 ] I accept that the accused was not experienced in physical confrontation and not confident in his fighting ability. Being the victim of a significant assault 5 or 6 years earlier probably contributed to this lack of confidence. While he lacked confidence in his own fighting ability he was uncertain of the fighting capability of the deceased.

Certainly people of smaller stature can be very capable and dangerous fighters. [ 108 ] The deceased was the aggressor. Events unfolded quickly between Jessica being grabbed, the deceased coming at the accused,

and the accused stabbing him. They left little time for the accused to carefully consider the nature of the threat or force the deceased presented, consider his options for responding to that threat, and consider the degree of force required to repel it before acting as he did. [ 109 ] As noted, it is for the Crown to prove beyond a reasonable doubt that the degree of force used by the accused was unreasonable.

The tolerant approach to the analysis of the objective reasonableness of the accused’s use of force is particularly prominent when considered with the Crown’s burden and the standard of proof in mind. [ 110 ] The accused was under sufficient attack to warrant using force to repel the attack. He acted out of fear and probably in accordance with self-preservation instincts. He had little time to weigh all of his options.

Even taking a tolerant approach to the objective analysis of the reasonableness of the accused’s use of the knife to defend himself, I conclude that he probably, or most likely, overreacted in an unreasonable and thus unjustified way. But as noted above, “most likely” or “probably” falls short of the very high standard of proof beyond a reasonable doubt. [ 111 ] After considering all of the circumstances and balancing the factors listed in s. 34(2) of the Code, I find the accused, Mr. Sandhu, not guilty. The Honourable Judge J.I.S. Sutherland Provincial Court of British Columbia