R. v. Sekhon Date:, 2014 BCPC 321

Citation: R. v. Sekhon Date: 20141218 2014 BCPC 0321 File No: 36588-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JAGDEV SINGH SEKHON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: J.P. Benning Counsel for the Defendant: S.W. Sheets Place of Hearing: Duncan , B.C. Date of Hearing: November 27, 2014 Date of Judgment: December 18, 2014

[1] Mr. Sekhon is charged with a single count of theft of property valued at less than $5000. The property in question consists ofbales of cedar and balsam boughs, alleged to have been unlawfully harvested by Mr. Sekhon from the lands of Timberwest ForestProducts (“Timberwest”). Such items are harvested commercially and sold to florists. [2] Timberwest Forest Products is a large forest company, which owns some fee-simple lands and some forest tenures on Crownlands. I will refer to those collectively as “Timberwest lands”. Mr.

Ingram is a retired police officer who provides security services undercontract to Timberwest. One of Mr. Ingram’s duties is to administer a program by which Timberwest issues permits to individuals toharvest on Timberwest lands ornamental vegetation (such as the tree boughs in issue in this case) to individuals (like Mr. Sekhon). Priorto 2011, Mr. Ingram had issued a number of such permits to Mr. Sekhon., and came to know him well in the course of their businessdealings. He had often seen Mr. Sekhon’s truck, and had attended at Mr. Sekhon’s home.

In 2011, Timberwest increased the fees whichit charged for such permits. Mr. Sekhon did not accept the fee increase and stopped purchasing permits. [3] On November 8, 2013, Mr. Ingram was driving on a public highway near Mesachie Lake, British Columbia. There are largeareas of Timberwest lands in the area. Mr. Ingram observed Mr. Sekhon driving his truck in the opposite direction. The cargo bay of Mr.Sekhon’s truck was covered with a tarpaulin, in a manner consistent with a load of tree boughs. Mr. Ingram followed Mr.

Sekhon to Mr.Sekhon’s home, where both men stepped out of their vehicles and a conversation ensued. [4] Mr. Ingram says that, during the conversation, Mr. Sekhon admitted that he had harvested a quantity of cedar and balsamboughs from Timberwest lands, that the boughs were in the back of his truck, and that he had no permit or other permission fromTimberwest to harvest those boughs. Those admissions, if Mr. Sekhon made them, are the only evidence to support the Crown’s case. [5] Mr.

Sekhon says that he had purchased the boughs in Jordan River from a man named “Rod”, as he had often done in the past.He says that he told Mr. Ingram that, but that Mr. Ingram did not accept his assertion. He says that, after a protracted and aggressiveseries of questions from Mr. Ingram, he finally shrugged and said, in effect: “OK, if you don’t believe me, have it your own way - I cutthe boughs from Timberwest lands”. He says that statement was untrue. [6] Mr. Sekhon says that the actual events leading up to his confrontation with Mr. Ingram were as follows. Mr.

Sekhon oftenreceives telephone calls from a person whom he knows only as “Rod”. Rod is of First Nations descent, and lives near Jordan River,about 80 km southwest of the point where Mr. Ingram first saw Mr. Sekhon’s truck on the day in question. Rod harvests boughs of thekind which Mr. Sekhon sells, and telephones Mr. Sekhon when he has boughs to sell. Mr. Sekhon meets Rod at a gas station in JordanRiver and pays him in cash. He records such transactions in a ledger book which he keeps at his home. He normally purchases boughsfrom Rod once or twice a week. Mr. Sekhon has no telephone number or address for Rod.

On the day in question, Mr. Sekhon received acall from Rod, drove to Jordan River to meet him at the gas station, bought the boughs from him and returned to his home. It was duringthe latter stages of the homeward journey that he was observed by Mr. Ingram. [7] I must apply to this evidence the well-known process of analysis set out in R. v. W.(D.) (SCC), [1991] 1 S.C.R.742: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. I am also guided by the following comments of the Prince Edward Island Court of Appeal in R vs J.M.H. 2012 PEICA 6; [2012] PEIJ#10 @ paragraphs 30 - 31: Our courts have stated that proof beyond a reasonable doubt is not satisfied by belief of a complainant coupled with disbelief of anaccused.

Correct application of the principle in W.(D.) involves going on from step one to step two to analyze and consider whether thatevidence nevertheless raises a reasonable doubt, and if not, then going on to step three and determining whether the evidence taken as awhole raises a reasonable doubt ... Proper application of the third step involves moving the focus from the evidence of the accused to theCrown's evidence and assessing it in its own right (in relation to all the evidence) on the criteria of coherency, reliability, credibility.

Thisgoes toward the issue of whether the Crown has satisfied the burden of bringing evidence that can prove guilt beyond a reasonable doubt.... The Supreme Court of Canada recently stated in R. v. J.H.S. 2008 SCC 30, at para. 8, that a series of decisions has affirmed andreaffirmed that where credibility is a central issue in a jury trial, the judge must explain the relationship between the assessment ofcredibility and the Crown's ultimate burden to prove the guilt of the accused to the criminal standard.

The third step in W.(D.) stresses that the onus is on the Crown to prove the guilt of the accused beyond a reasonable doubt. It is possiblethat the trial judge would disbelieve the accused but still find the Crown had not proved guilt beyond a reasonable doubt. [8] Mr. Sekhon’s version of events is not inherently improbable. Many people earn a casual living in the forest, sometimes withoutlawful authority. If this were a civil case, I would draw an adverse inference from Mr.

Sekhon’s failure to call Rod (with whom he is infrequent contact) as a defence witness and from his omission to tender in evidence the relevant pages from his ledger. However, suchinferences must be drawn with more caution in criminal cases: R vs Solomon [2002] OJ #5128; R vs Lapensee [2009] OJ # 3745; 2009ONCA 646; 99 OR (3d) 501. In the end, I think it possible that Mr. Sekhon’s version of events might be true. I am fortified in thatconclusion by two serious flaws in Mr. Ingram’s evidence:

a. During his evidence in chief, he asserted, categorically and in strong terms, that, given the location at which he first observed Mr. Sekhon’s truck on the day in question and its direction of travel, the only places from which the boughs could have been obtained were on Timberwest lands. In cross-examination, he was forced to concede that Mr. Sekhon might have come from the Jordan River area, where there are many sources of boughs which are not on Timberwest lands. b. In cross-examination, Mr. Sheets suggested to Mr. Ingram that Mr. Sekhon’s first language is not English.

I infer that the suggestion was made in support of an inference that the conversation reported by Mr. Ingram consisted of a misunderstanding derived from linguistic difficulties. I have no doubt that Mr. Ingram perceived that to be the purpose of the question. Mr. Ingram resolutely denied that he was aware that English was not Mr. Sekhon’s first language. I had the opportunity to observe Mr. Sekhon in the witness box. Making due allowance for the possibility that he exaggerated his accent while giving evidence, it remains clear that no one could possibly believe English to be Mr. Sekhon’s first language.

He appears to be quite fluent, and I do not think that there was any real possibility of a linguistic misunderstanding in his conversation with Mr. Ingram, but I simply do not believe that Mr. Ingram was unaware that Mr. Sekhon’s first language was not English. The two items noted lead me to conclude that Mr. Ingram was willing to overstate his evidence in the interest of obtaining a conviction. That conclusion renders it unsafe for me to convict Mr. Sekhon on the strength of Mr. Ingram’s evidence. [ 9 ] Mr. Sekhon is acquitted. December 18, 2014 __________________________ T. Gouge, PCJ