R. v. Sandhu Date:, 2014 BCPC 148

Citation: R. v. Sandhu Date: 20140709 2014 BCPC 0148 File No: 58028 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SUKHDEEP SINGH SANDHU REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE PATRICK CHEN Counsel for the Crown: Mr. Kerr Clark Counsel for the Defendant: Mr. Danny Markovitz

Place of Hearing: Richmond , B.C. Dates of Hearing: April 7, 8, 10, 11, 14, 15, 16, 17, May 1 & 15, 2014 Date of Judgment: July 9, 2014 [ 1 ] The Accused has been charged with the following counts: Count 1: Attempted murder of Jaspaul Ricky Sidhu, using a firearm, contrary to Section 239(1) (a)(

i) of the Criminal Code ; Count 2: Aggravated assault of Inderjit Singh Gill, contrary to Section 268(2) of the Criminal Code ; Count 3: Aggravated assault of Amrit Singh Bunwait, contrary to Section 268(2) of the Criminal Code ; Count 4: Aggravated Assault of Rajinder Dhariwal, contrary to Section 268(2) of the Criminal Code ; Count 5: Intentional discharge of a restricted or prohibited firearm while being reckless as to the life or safety of another person, contrary to

Section 244.2(3) of the Criminal Code ; Count 6: Possession of a firearm, a Heckler and Koch 9mm handgun, knowing that he was not the holder of a licence under which he may possess the firearm and a registration certificate for the firearm, contrary to Section 92(1) of the Criminal Code ; Count 7: Possession of a loaded prohibited or restricted firearm, a Heckler and Koch 9mm handgun, without being a holder of an authorization or licence under which he may possess the prohibited or restricted firearm in that place and a registration certificate for the firearm, contrary to Section 95(1) of the Criminal Code . [ 2 ] All of these offences are alleged to have occurred on or about January 16, 2013 at the Riverside Banquet Hall at 14500 River Road, Richmond, British Columbia. [ 3 ] I have heard evidence from the following Crown witnesses: RCMP: Corporal Baltzer, Corporal Howard, Constable Lee, Constable Mushi, Constable Zentner, Corporal Bradshaw, Constable Simpson, Constable Opoku and Constable Hazell.

Victims: Jaspaul Singh (Ricky) Sidhu, Rajinder Dhariwal, Inderjit Gill and Amrit Bunwait. Other civilian witnesses: Davinder Singh Sandhu, Amarjit Dhinsa, Rupinder Jit Mann, Jaspreet Singh Banwait, Amraj Singh Bains. Experts: Psychiatrists, Dr. Stuart Lax and Dr. Christopher Robertson. [ 4 ] I have heard evidence from the Accused and from the following defence witnesses: Forensic psychiatrist Dr. Stanley Semrau, the Accused’s brother Gurdeep Sandhu, his sister Mandeep Sandhu, his sister-in-law Ramin Sandhu and his cousin Majinder (“Manny) Sandhu. [ 5 ] A set of admissions was filed as Exhibit 1 in this trial.

Issues [ 6 ] Virtually all of the facts regarding these offences are not in dispute. The Accused has conceded, and I have found, that the Crown has established, prima facie, the Accused’s guilt on each count beyond a reasonable doubt. The Accused submits that he is not criminally responsible for his actions by reason of a mental disorder (NCRMD) as described in

Section 16 of the Criminal Code . “Defence of mental disorder 16.

(1) No person is criminally responsible for

an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong. Presumption

(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities. Burden of proof

(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.”

[ 7 ] The Crown submits that the Accused has not satisfied the burden upon him to rebut the presumption contained in Subsection (2). The Crown concedes that the Accused suffers from the mental disorder of paranoid schizophrenia. The issue is whether the Accused has established, on a balance of probabilities, that his mental disorder, at the time of the offences, rendered him incapable of appreciating the nature and quality of his actions or of knowing that his actions were wrong.

The Events at the Riverside Banquet Hall [ 8 ] On the evening of January 16, 2013, a crowd of over 100 people attended a party at the Riverside Banquet Hall on River Road in Richmond to celebrate the induction of a number of new members into the longshoremen’s union. This was an auspicious occasion and cause for celebration as members generally have to work 10 to 12 years as casual labour before being allowed to enter the union.

It would appear that there is a certain amount of nepotism involved in the process of gaining membership into the union, as a number of witnesses testified that they were assisted in gaining membership by fathers who were long-time union members. Once a union member, longshoremen are allowed a great many privileges, including a much higher salary, choice of shifts, and job security, basically for the rest of their lives.

Virtually all of the people attending the party were longshoremen and their friends and family, including the Accused and the victims. [ 9 ] On the day of the party, the Accused’s cousin, Davinder Sandhu (also a longshoreman), asked the Accused to come to the party and be the designated driver for him and his friend Amrit Dhinsa. He wanted to drink alcohol and knew that the Accused did not drink alcohol.

The Accused initially said he did not wish to go, but ultimately agreed to do his cousin the favour. [ 10 ] Prior to driving to his cousin’s house, the Accused put on a bullet-proof vest and loaded his gun, a Heckler and Koch 9mm semi-automatic handgun with the serial numbers obliterated. He brought the handgun as well as an extra magazine clip of ammunition for it. The Accused had purchased the handgun about 2 years earlier and the vest about a year earlier.

The Accused has never been the holder of a licence or authorization under which he could legally possess the firearm or a registration certificate for the firearm. [ 11 ] The Accused drove to his cousin’s house, parked his car and left for the banquet hall driving his cousin’s Honda, picking up his cousin’s friend Amrit Dhinsa en route.

When they arrived, Davinder Sandhu and Amrit Dhinsa were dropped off while the Accused went to park the car. [ 12 ] Inside the banquet hall, about 100 people had already gathered while approximately another 20 were in the parking lot. [ 13 ] Jaspaul (Ricky) Singh Sidhu went to the party with his friend Amrit Bunwait. They met up there with another friend, Amraj Bains, who had been dropped off by his wife. As he was walking towards the bar, Mr. Sidhu saw the Accused coming towards him. Mr.

Sidhu thought the Accused would pass by him but, instead, the Accused drew a gun, pointed it at his head, and shot him from close range. The bullet entered the left side of Mr. Sidhu’s nose, shattered his right cheekbone and exited through his right ear. [ 14 ] Mr. Sidhu fell to his hands and knees. The Accused stood over him with the gun pointing at the right side of Mr. Sidhu’s head from about a foot away. The gun misfired or jammed. Mr. Sidhu and Mr. Bunwait could hear it “click” at least 3 times. The Accused tried to unjam the gun by moving the slide mechanism back and forth several times. At that point, Mr.

Bunwait hurdled over Mr. Sidhu and pushed the Accused, who fell backwards onto the buffet table. Mr. Sidhu crawled away, attempting to find cover under a table. Mr. Bunwait assisted him by pulling him by his collar. [ 15 ] At some point, Mr. Sidhu’s friend Amraj Bains came up from behind the Accused, grabbed him around the neck and tried to wrestle the gun away from him. The Accused told him “let go of me or I’ll shoot you”. Mr. Bains released the Accused who then fled. [ 16 ] The scene at the banquet hall after Mr. Sidhu was shot was chaotic with people scurrying for cover and running towards exits.

Tables and chairs were pushed and overturned during the confusion. [ 17 ] While Mr. Sidhu was crawling to find cover under a table with Amrit Bunwait’s assistance, more shots were fired by the Accused. [ 18 ] A second bullet struck Mr. Sidhu, entering his left side, tearing through his stomach and intestines and exiting through the back of his right leg. A third bullet entered Mr. Sidhu’s left thigh where it still remains, as doctors have determined that more damage would result by trying to remove it than by leaving it there. [ 19 ] Another bullet struck Mr. Bunwait while he was attempting to assist Mr.

Sidhu, going through both of his thighs. [ 20 ] Another bullet ricocheted into Inderjit Gill’s neck as he turned towards the sound of the shots fired. That bullet entered the left side of Mr. Gill’s neck under his jawbone, hit his C3 and C4 vertebrae which fractured, but managed to turn the bullet, so that it ended up protruding slightly out the back of his neck. [ 21 ] Another bullet grazed the inside of Rajinder Dhariwal’s left leg. He appears to have made a full recovery. [ 22 ] Mr. Sidhu spent 3 weeks in the hospital where he was fed intravenously. He was not able to eat solid food for many months.

The doctors placed a plate over his right cheek and performed reconstructive surgery on his right abdomen. Four screws hold the plate over his cheek in place and he can still feel the screw under his right eye. Pieces were cut out of his large and small intestine. He has a large scar from his stomach to his waist where he was stapled back together after surgery. The vision in his right eye has deteriorated and he has lost some of the vision in that eye. Mr. Sidhu returned to work in February, approximately 13 months after the incident and is currently assigned light duties.

Although he cannot perform all the tasks he handled previously, he has now returned to his work as a crane operator. [ 23 ] Inderjit Gill spent 3 days in the hospital and wore a neck brace for about 3 months. He had to wait until March 4 to have the bullet removed from his neck as the doctors wanted his vertebrae to heal more before attempting surgery. He still has 3 pieces of shrapnel in his neck, the largest of which is approximately 5mm long. Mr. Gill tried to return to work after about a year but had to stop

after about a month, as the work was aggravating his injury. He still cannot feel the left side of his throat when he swallows, and has a tingling sensation running from the left side of his head branching down to his left shoulder and chest. He has difficulty breathing and experiences numbness in his lips. He can no longer handle his former job as a “holdman” working on ships, as that work causes him pain and his hands to tremble. Mr. Gill is currently taking physio and massage therapy.

He is considering seeking different kinds of work within the union that won’t aggravate his injury. [ 24 ] Amrit Bunwait spent 3 days in the hospital and has not been able to work since the incident. He still cannot walk without the assistance of crutches. Post-Offence Conduct [ 25 ] Constable Mushi was driving eastbound on River Road with his passenger Constable Zentner in an unmarked police SUV, when they received a dispatch reporting of multiple complaints of shooting at the Riverside Banquet Hall.

The dispatch advised that the suspect was an East Indian male approximately 30 years old and approximately 5’2” tall, wearing a black jacket and toque. [ 26 ] As Constable Mushi was making a 3-point U-turn intending to turn westbound, he saw an older model blue Honda approaching eastbound from the direction of the banquet hall at an extremely high rate of speed. Both Constables testified that the Honda almost hit their SUV as it sped by them. [ 27 ] Constable Mushi noted that the driver was a dark-skinned male wearing a black jacket and a hoodie pulled over his head.

He also noted that the driver appeared to have a fixed gaze, made no eye contact, did not look at their vehicle or react in any way to the fact that the police SUV was across the roadway making a U-turn. Constables Mushi and Zentner felt that this vehicle might be involved in the shooting at the banquet hall and decided to follow it. Constable Mushi made another U-turn to head eastbound again and attempted to close the distance between their vehicles without activating his emergency lights and siren. [ 28 ] The Honda pulled over to the side of the road when Constables Mushi and Zentner were about 100 meters away.

At that point, Constable Mushi activated his lights and siren. According to Constable Mushi’s evidence, the driver of the Honda reacted to the siren and began to quickly drive away again. [ 29 ] About 30 to 40 meters later, the Honda made a right turn into a driveway at 18560 River Road. Constable Mushi followed the Honda which came to a stop at the end of the paved roadway in the area of 3 large greenhouses. Constable Mushi stopped the police SUV about 3 to 4 feet behind the Honda.

Both Constables exited the SUV, unholstered their service pistols, identified that they were RCMP officers and commanded the driver to stop his vehicle and to put his hands up. [ 30 ] The Accused complied initially. However, when Constable Mushi commanded the Accused to reach for his ignition with his left hand, the Accused put both hands down, moved around in the vehicle and threw a jacket or clothing item into the back seat. Constable Mushi commanded the Accused again to keep his hands up at all times. The Accused’s hands went up again.

Constable Mushi commanded the Accused to turn the ignition off with his left hand while keeping his right hand up in the air. This time the Accused complied. Constable Mushi then commanded the Accused to keep his right hand up while slowly opening the driver’s side door with his left hand. However, the Accused again put both hands down, moved around again in the Honda and threw some items out of the open driver’s side window. [ 31 ] When the Accused exited the Honda, he was wearing a grey short-sleeved shirt.

However, a black jacket was found in the back seat and a bullet-proof vest was found in the driver’s seat. A pair of gloves and a running shoe were found outside of the driver’s side of the Honda, where the Accused had thrown them. The match to the running shoe was found outside the Riverside Banquet Hall. A magazine clip containing ten 9mm bullets was found just west of the Honda.

The Heckler and Koch semi-automatic handgun was found the next morning in a grassy area near to where the Honda had stopped. [ 32 ] The Accused was arrested by Constable Mushi and has remained in custody since the night of the incident. The Accused’s Relationship With the Victims [ 33 ] The Accused had been a longshoreman for many years and was known by many of the people attending the party that night at the Riverside Banquet Hall. [ 34 ] Mr. Sidhu and the Accused were close friends in high school but had a falling out in October of 2002 or 2003 when, according to the evidence of Mr.

Sidhu, the Accused and his friends viciously attacked him. After that incident, their friendship ended. For the next 10 years, they barely spoke to each other. After high school, they would see each other at work, as both became longshoremen. Both of their fathers are also longshoremen and their respective parents had been friends. [ 35 ] Mr. Sidhu testified that he had no reason to think that the Accused would try to shoot or harm him that evening. When asked in cross-examination why the Accused might want to harm him, Mr. Sidhu stated: “ I know what kind of person he is, his mentality.

He’s a person who wants to be feared. He wants to be the tough guy .” [ 36 ] Mr. Sidhu also stated that he felt the Accused was jealous of his car and his lifestyle. [ 37 ] Neither Rajinder Dhariwal nor Inderjit Gill have any relationship with the Accused beyond being co-workers. At the time of these offences, they did not know the Accused by name. Amrit Bunwait, who is not a longshoreman, did not know the Accused at all on the night of the shootings. Other than Mr.

Sidhu, who confirmed that he and the Accused had not spoken for over 10 years and had become virtual strangers to each other, none of the victims were able to offer any explanation or motive for the Accused’s actions that night.

Historical Background Relevant to the Accused’s Mental State [ 38 ] The Accused’s cousin, Majinder Sandhu (“Manny”), has known the Accused his entire life. They would meet at family gatherings and saw each other more often after 2004 when they both became longshoremen. It was then that Manny Sandhu noticed that the Accused’s behaviour had become quite odd.

The Accused would relate thoughts to him that he described as “mumbo jumbo” and exhibit symptoms of paranoia. [ 39 ] At first, Manny Sandhu thought that the Accused’s odd behaviours were caused by his heavy use of marijuana which he used to medicate his Crohn’s disease (an inflammation affecting the bowels). Manny Sandhu testified that the Accused ceased using marijuana in 2011 or 2012. [ 40 ] However, according to Manny Sandhu’s evidence, despite ceasing his use of marijuana, the Accused’s paranoia became progressively more severe at that time.

The Accused would make special visits to female relatives to give them pepper spray, instructing them to carry it with them when out of their houses. The Accused would also express his suspicions that there were hostages in their houses. [ 41 ] On one occasion, when a female co-worker who also had Crohn’s disease was having lunch with them and stated “no, I can’t eat that, I have Crohn’s disease” , the Accused thought she was making fun of him. On other occasions, when the Accused saw Manny Sandhu speaking with Ricky Sidhu, he would say “ Hey, you guys were laughing over there.

Were you talking about me ?” Whenever the Accused saw Manny Sandhu talking and laughing with others, he would ask Manny Sandhu what they had been laughing about. Manny Sandhu testified that the Accused was expressing so many paranoid thoughts that sometimes he just would not answer and ignore him. Manny Sandhu felt the Accused was delusional. [ 42 ] Manny Sandhu testified that the family’s concern about the Accused’s mental state reached a peak in 2012. He testified that at that point, everyone in the family thought something was wrong with the Accused, and that they’d all “had it” with him.

He recalled that an appointment was made for the Accused to seek professional help but the Accused refused to go. According to Manny Sandhu, after that, the Accused stopped expressing his rambling paranoid thoughts and became “super quiet” . The family then thought the Accused was getting better and put their efforts to get him to a mental health professional “on the back-burner” . [ 43 ] Mandeep Sandhu, the Accused’s sister, is three years older than the Accused and is a registered nurse working in acute care at a hospital.

She testified that she discovered about 3 years ago that her brother was suffering from Crohn’s disease. She could tell he was not managing well with it and tried to discuss it with him, but he would not talk about it with her. She then provided the Accused with her textbook so that he could read about it. She testified that the Accused’s behaviour started changing around that time.

He was becoming more introverted, staying at home more, and stayed in his room much of the time. [ 44 ] The Accused, according to Mandeep Sandhu’s evidence, would do things that struck her as odd, come up with a rationale for his actions when she questioned them but, when questioned further, would be very short with her.

For example, when she questioned why the Accused would shut all the blinds on a nice sunny day, he would reply curtly, “this is private, people can look inside your house” . [ 45 ] The Accused planted trees around the house for privacy and surrounded the house with video surveillance cameras notwithstanding that his family was against the idea. [ 46 ] Mandeep Sandhu testified that, the Accused became obsessed with the idea that a chip could be placed inside peoples’ brains that would enable others to see inside their thoughts.

When she disagreed with him, the Accused would initially stop talking about it, but then would later blurt out that the reason she couldn’t find anything on-line about it, was because it existed only in the military. Mandeep felt these were purposeless conversations and a waste of her time. [ 47 ] Mandeep Sandhu also testified that her brother was also obsessed with the idea that his Crohn’s disease had been caused by mercury poisoning, despite her advice that there was no basis for such a belief. [ 48 ] Mandeep Sandhu would constantly tell the Accused that he was being paranoid.

It reached a point where she became concerned for his mental health. She discussed her brother’s symptoms with her cousin Sunny, who was a psychiatric nurse. Sunny suggested that the Accused could be suffering from psychosis. [ 49 ] Mandeep, Sunny and Sunny’s sister Meena went to the psychiatric department at Royal Columbian Hospital to seek advice as to what their options were and how they should address the Accused’s situation.

They also wanted to know how normal or abnormal the Accused’s behaviours were. [ 50 ] They were able to speak to an East Indian psychiatrist named Raj, who referred them to EPI, or the Early Psychosis Intervention program, run out of an office on East Hastings Street. When they went there, they were able to speak to a staff member and obtain some pamphlets. The staff member advised them that, under the Mental Health Act , unless the Accused was presenting as a danger to himself or others, he could not be placed into such a program involuntarily.

The staff member suggested that they could talk to him to try to persuade him to participate in the program, but that it would then have to be his decision. [ 51 ] One day, while the Accused was talking to Mandeep Sandhu again about the chip that could be placed inside people’s brains, and teaching her how to make three left turns instead of a right turn, to find out who was following her, she became annoyed and told him he was being crazy. She suggested that he go for testing to find out what was really going on.

The Accused became angry, insisted that the things he was expressing were real, and that she was being naïve. He then stormed out of the house and ended their conversation.

[ 52 ] Mandeep Sandhu testified that their mother also has a mental health issue and was once admitted to the psychiatric ward for 2 weeks. The doctors informed the family that their mother had been suffering from mental illness for 20 to 25 years. They did not provide a formal or specific diagnosis but did prescribe her Seroquel, an anti-psychotic.

She continues to be a mental health patient supported in the community by a mental health team which checks on her regularly, sometimes coming to the house. [ 53 ] Mandeep Sandhu also testified that her mother’s 2 sisters suffer from depression and are receiving medication for it. [ 54 ] Ramin Sandhu, the Accused’s sister-in-law, has been married to the Accused’s elder brother, Gurdeep Sandhu, for 15 years. She is a registered nurse in the oncology department.

For the first 10 years of her marriage to Gurdeep, they lived in the same house as the Accused and his parents. [ 55 ] Ramin Sandhu testified that she noticed the Accused’s behaviour changing during his teens, particularly after he contracted his Crohn’s disease. According to her evidence, the Accused became very hard to get along with, started fighting with his siblings, missing school, having “attitude issues” and having problems with authority figures, parents and siblings.

He also started using marijuana heavily at that time, which led to Gurdeep and her moving out and into their own home, as she did not want that influence around her son. [ 56 ] Ramin Sandhu also testified as to the Accused’s paranoid behaviours. He would come to her home, go through her closet and look behind her doors. He would go into her tenants’ suite when they were not home. She would tell the Accused that the tenants were not home but he would not believe her. He brought surveillance cameras to their home and persuaded her husband to put them up.

He would also phone her to ask what she was doing, then call her husband to check on her answers. He would sometimes call their home and hang up without saying anything. He would tell her husband and her that their phones were being tapped. Sometimes he would call to inquire about extended family members. When he came to their home, he would park down the street instead of in their driveway.

He also brought her pepper spray to carry for her protection, saying it was because she worked night shifts. [ 57 ] According to Ramin Sandhu’s evidence, the Accused would show up randomly at family members’ houses unannounced, ask them many questions, but never answer any from others about himself. He would present with a very flat facial expression. [ 58 ] Ramin Sandhu testified that the family was becoming increasingly concerned about the Accused’s psychiatric health after a physical altercation he had with his brother (her husband) Gurdeep. The family decided that the Accused needed psychiatric help.

She felt that the Accused’s behaviours were progressing to paranoia. Although the Accused never self-reported having delusions, she inferred that he was experiencing them from his actions, such as the way he would go through their house when he visited. She testified that he was becoming increasingly withdrawn and quiet. [ 59 ] Gurdeep Sandhu, the Accused’s elder brother, described him as having extreme mood swings in his early teens. He noted a more pronounced change in the Accused when he reached his 20’s, especially after he contracted Crohn’s disease.

According to the evidence of Gurdeep Sandhu, the Accused was becoming “edgier” and more paranoid. The Accused would look at people with a blank stare and, when asked what was going on, he would reply “nothing” but just keep staring. He would sometimes appear to be lost in his own thoughts, talking about things. A few years previous, the Accused came to Gurdeep’s home and went through the entire house, looking into closets, bedrooms and behind sofas.

When his wife asked the Accused why he was doing that, he would reply that people were after them, without saying who they were. [ 60 ] One time, in 2011, Gurdeep told the Accused that he needed to stop these behaviours and that he should get some help. The Accused then replied that their grandmother had her legs broken and that someone was coming after their family. Gurdeep testified that this was not true. He testified that his wife’s grandmother had been confined to a wheelchair after suffering a stroke about 5 years ago, but their own grandmother had had no problems with her legs.

EVIDENCE OF THE ACCUSED [ 61 ] The Accused testified on his own behalf. According to his testimony he did not notice that he was hearing voices for a long time. The voices he heard were so strong that he never realized they were not real. He described these voices as being as real to him as the voice of any other person talking to him. He first began to suspect the voices were not real when they started telling him to do things that did not make sense to him - like jumping off a building or hitting his head against a wall.

He finally realized he was hearing voices that were not real when, on one occasion, he obeyed a voice telling him to cut himself on his leg. When he went to the hospital he told the doctors that he had been attacked by people trying to rob him because he did not want people thinking he was crazy. [ 62 ] The Accused testified that he would tell his cousin Manny (Majinder Sandhu) that people were holding his family hostage and hiding in the basement or attic. Manny told him he was crazy and needed help. The Accused testified that he did not realize then that he needed help.

He also did not want people thinking he was crazy and did not want to be put into a hospital, so he stopped talking to family members about his paranoid delusions. He never did speak to people outside the family about them. [ 63 ] The Accused testified that on the evening of January 16, 2013 his cousin Dave (Davinder) asked him for a favour - to be his designated driver to drive him and a friend to the longshoremen’s party at the Riverside Banquet Hall. The Accused agreed but heard voices telling him to bring a gun and the bullet-proof vest for protection which he obeyed.

According to the Accused’s testimony, he had no intention of shooting anyone that night. [ 64 ] After arriving at the banquet hall, the Accused went to the washroom and when he came out he heard voices telling him that Mr. Sidhu was going to kill him. He looked at Mr. Sidhu who he perceived to be having his hands in his pockets and fidgeting around as though he was reaching for something, which he thought to be a gun. At that point he heard voices - including Mr. Sidhu’s voice - saying that Mr. Sidhu was going to kill him. According to the Accused, he felt he had to shoot Mr. Sidhu before Mr.

Sidhu shot him. [ 65 ] The Accused’s recollection was that he shot at Mr. Sidhu once before someone came to try to wrestle the gun away from him. According to the Accused, while they were wrestling, the gun discharged 3 or 4 more times. He did not recall deliberately shooting the gun more than once. He did not recall shooting Mr. Sidhu while he was on the ground or crawling. He did recall being tackled to the ground. He recalled hearing voices screaming at him to leave, which he did, in his cousin Dave’s car. He did not recall driving at an

excessive rate of speed or trying to evade the police. He testified that he threw the gun away because voices told him to. [ 66 ] The Accused testified that he believed Mr. Sidhu had poisoned him, causing his Crohn’s disease and was constantly making fun of him because of it. He testified that was embarrassed by what he perceived as Mr. Sidhu’s mocking of him, rather than angry, and had no intention of shooting Mr. Sidhu. He is now prepared to accept that Mr.

Sidhu was not making fun of him. [ 67 ] The Accused is currently receiving medication of 400mg of the anti-psychotic drug Seroquel plus 10mg of another anti- psychotic, Olanzapine. He also takes other medication for anxiety. The Accused testified that despite the medication, he still hears voices that he still has difficulty determining are real or not. He does now realize that some of the voices that sound completely real to him are, in fact, not real. [ 68 ] The Accused testified that he did not want to talk to either Dr. Lax or Dr.

Robertson and just wanted to get out of the interview room during their sessions. He testified that during the period of these interviews, hospital staff were holding him down and injecting him with what he believed, at the time, to be poison. [ 69 ] The Accused testified that he realizes today that Mr. Sidhu was not armed that night, and that he has injured 4 innocent people. He apologized to them during his testimony. He stated that, after hearing from all the witnesses at the trial and speaking with his Counsel, he now realizes that there is something wrong with him.

He stated that his only wish now is to get better with continuing treatment and medication. The Expert Evidence [ 70 ] Three expert witnesses testified at this trial. Dr. Stuart Lax, an expert in the field of forensic psychiatry and a licensed physician in British Columbia, and Dr. Christopher Robertson, a psychiatrist and a licensed physician in British Columbia, testified for the Crown. Dr. Stanley Semrau, an expert in forensic psychiatry, able to provide opinion evidence on the mental state of the Accused at the time of the violent acts of January 16, 2013, testified for the Accused. [ 71 ] Dr.

Robertson was the psychiatrist who prepared the Accused’s fitness report while Dr. Semrau and Dr. Lax were the psychiatrists who conducted NCRMD assessments of the Accused. Reports from all three experts have been filed as exhibits in this trial. Expert Evidence of Dr. Robertson [ 72 ] Dr. Robertson prepared a court-ordered fitness assessment on April 19, 2013. Prior to this assessment, the Accused had been certified under the Mental Health Act by Dr. Kerr who had found him paranoid, disorganized and psychotic. Dr. Robertson found the Accused fit and decertified him upon discharge. [ 73 ] Dr.

Robertson testified that the Accused presented after his arrest as hostile and uncooperative, refusing to listen to staff direction or to speak to a psychiatrist hired by his lawyer. The Accused was placed in segregation due to behavioural issues. He only came out of his cell while handcuffed and with 2 or more officers escorting him. The Accused was maintained in the seclusion room for his entire admission at Forensic Psychiatric Hospital. [ 74 ] It took multiple attempts by Dr. Robertson before the Accused would cooperate sufficiently for a fitness assessment. Dr.

Robertson testified that the Accused was guarded in his answers and possibly paranoid. He was reluctant to being interviewed and often refused to answer questions from physicians, nurses and other staff. [ 75 ] In his report, Dr. Robertson tried to place the Accused’s guardedness and possible paranoia into context stating at paragraph 24: “It has to be taken into consideration his circumstances in which he is potentially facing a lifetime in jail and does not appear to be terribly familiar with the Court process.

He has also been locked up in a small room for months and wanted to speak to his lawyer.” [ 76 ] In addition, on Dr. Robertson’s instructions, the Accused had also been injected, against his will, with medications to stabilize his mood. [ 77 ] When asked in cross-examination whether the Accused’s uncooperative and hostile actions could be indicia of paranoia, Dr. Robertson answered that some of these indicia could be interpreted that way but that he was not sure. Later in cross-examination, Defence Counsel put to Dr.

Robertson a letter from the Accused’s brother Gurdeep describing the Accused presenting with a blank expression, speaking in riddles, not processing information provided to him, and appearing to see things that were not there, concerning the safety of his family and others. Defence Counsel asked Dr. Robertson whether these were clear indications of delusions. Dr. Robertson answered affirmatively, “delusions and possibly hallucinations” . Expert Evidence of Dr. Lax [ 78 ] Dr.

Lax prepared a report for the purpose of determining whether, at the time of the offences the Accused was suffering from a mental disorder so as to be exempt from criminal responsibility, as defined in

Section 16 of the Criminal Code . [ 79 ] Dr. Lax interviewed the Accused 10 times between August 26, 2013 and October 4, 2013. He also reviewed a wide range of collateral information including medical and psychiatric reports, reports to Crown Counsel, multiple witness statements and hospital records. He also had telephone conversations with the Accused’s family members and with staff at the Forensic Psychiatric Hospital (FPH). [ 80 ] The Accused told Dr. Lax that, on the night of the shootings, he heard voices telling him to put on the bullet-proof vest, load the gun and bring it with him to the party. The Accused told Dr. Lax he did not hear the voices again until he saw Ricky Sidhu at the

banquet hall making fun of his Crohn’s disease. The voices told the Accused that Ricky Sidhu had a gun hidden on him. Those voices and Ricky Sidhu’s voice told him Ricky Sidhu was going to kill him. The Accused told Dr. Lax that he had no intention of killing Ricky Sidhu but just wanted to shoot him so that Ricky Sidhu would not shoot him first. He told Dr. Lax that the only shot he fired intentionally was the first shot and that other shots went off inadvertently as he was being tackled. [ 81 ] Dr.

Lax testified that virtually every time he interviewed the Accused, the Accused would insist on reading from notes despite repeated requests to give spontaneous answers. According to Dr. Lax’s evidence, the Accused was able to answer spontaneously to questions not related to the index offences but unable or unwilling to do so when the questions related to the offences. When asked questions about material not in his notes, the Accused would become irritable, vague and provide contradictory answers. [ 82 ] At paragraph 138 of Dr. Lax’s report, he stated: “If the Court finds that events occurred as indicated by Mr.

Sandhu’s self-report, it is likely that symptoms of a mental illness prevented him from at least knowing the moral wrongfulness of his actions on the day of his arrest.” [ 83 ] However, it is clear from both his testimony and his report that Dr. Lax was troubled by inconsistencies in the Accused’s reporting to him, by inconsistencies between the Accused’s reporting and the evidence of other witnesses, and by inconsistencies between the Accused’s reporting and his actions both before and after the shootings at the banquet hall. [ 84 ] Dr.

Lax questioned in his report why the Accused would attend the party even though it was reasonable to assume he was likely afraid for his safety given he listened to voices to bring a gun and a bullet-proof vest, the only time he had brought these items out of the house. Dr. Lax questioned why the Accused did not simply flee when he saw Ricky Sidhu. Dr. Lax noted the inconsistency between the Accused’s evidence that he was not speeding and that he stopped when he heard the police lights and sirens, with the evidence of the police. Dr.

Lax’s opinion was that this suggested the Accused had some understanding that what he had done was at least legally wrong. Dr. Lax questioned why, if the Accused thought his actions were justified, he would throw the gun, the magazine clip, the gloves and shoe out of the window when he was stopped by police. [ 85 ] Dr.

Lax also noted the contrast between the Accused’s report to him that he had only tried to shoot Ricky Sidhu once and that other shots were fired inadvertently while others were trying to wrestle the gun from him, with the account of Amrit Bunwait that the Accused tried to shoot Ricky Sidhu again in the head 2 or 3 times when the gun jammed, and then shot at him again a number of times while he was trying to drag Ricky Sidhu away and under a table. At paragraph 141, Dr. Lax wrote: “If the Court finds that Mr. Bunwait’s account is the way the events unfolded, namely that Mr.

Sandhu continued trying to shoot and potentially trying to kill Mr. Sidhu after the first shot, it is not clear to me why Mr. Sandhu would consider any of the shots after the first one in self-defense. It was reported that after the first shot to Mr. Sidhu’s face, Mr. Sidhu was trying to get away. It is not clear why Mr. Sandhu could not have then fled after he shot Mr. Sidhu once. Mr. Sandhu has been adamant that he was not trying to kill Mr. Sidhu. As well, he has denied the events occurred as indicated by Mr. Bunwait’s statement to police.” [ 86 ] I find that throughout Dr.

Lax’s involvement with the Accused, in preparation for the NCRMD report, the Accused was a most uncooperative subject for him. Dr. Lax confirmed this at paragraph 142 of his report: “Mr. Sandhu was an extremely difficult historian, which has made this assessment less than straightforward. During every interview I had with him, he was quite reluctant to answer my questions spontaneously.” [ 87 ] Later in that same paragraph, Dr. Lax wrote: “Eventually, it appeared that he had memorized parts of his notes to tell me because I had frequently asked him to speak with me spontaneously.

When he did speak to me spontaneously about his current symptoms, he would provide vague answers, such as saying the voices ‘come and go. Sometimes they are a whisper. Sometimes they are loud. I don’t know. I don’t keep a diary’. A similar or even identical response to this question happened repeatedly over multiple interviews.” [ 88 ] Dr. Lax’s conclusions at paragraphs 151 and 152 of his report, under the heading “Summary, Opinion and Recommendations” read as follows: “The evidence from Mr. Sandhu’s account and collateral from family indicated that Mr.

Sandhu likely has been experiencing psychotic symptoms for about the last 2 to 3 years. These symptoms improved when he stopped frequently smoking marijuana, but paranoid symptoms continued, which suggests that Mr. Sandhu suffers from an underlying psychotic disorder. It is possible that there is also an underlying substance abuse disorder, but Mr. Sandhu has denied this. Collateral indicated that he was experiencing paranoid symptoms in the years prior to his arrest, which suggests that he was experiencing psychotic symptoms on the day of his arrest as well. It is possible that Mr.

Sandhu followed command auditory hallucinations that night telling him to shoot Mr. Sidhu in self-defense. These symptoms of his mental disorder could very well have caused him to be unable to know the wrongfulness of his actions on that night. However, given there is no agreed statement of fact, there are concerns about the inconsistency between his self-reported symptoms and his presentation currently and in the past, and given his reluctance during this assessment period to give a spontaneous, unrehearsed account of his past symptoms, it is not clear to me on the balance of probabilities that Mr.

Sandhu was experiencing symptoms of a mental disorder to the point that he was unable to know the wrongfulness of his actions on the night of his arrest. It is therefore not

clear to me whether an NCRMD finding applies in this case.” Expert Evidence of Dr. Semrau [ 89 ] Dr. Semrau was qualified by consent as an expert in forensic psychiatry, able to provide opinion evidence on the mental state of the Accused at the time of the violent acts of January 16, 2013. He had the opportunity to review the reports of both Dr. Robertson and that of Dr. Lax during his preparation of his own report. [ 90 ] Dr. Semrau conducted 3 interviews of the Accused. He also reviewed the Accused’s general medical records, the police disclosure file and 32 character reference letters.

He also conducted interviews of the Accused’s brother, Gurdeep, his sister-in-law Ramin, his sister Mandeep and his cousin Majinder (“Manny”). [ 91 ] Dr. Semrau testified that the first interview was unsuccessful and yielded no useful information other than significant evidence that the Accused was seriously mentally ill. The Accused would not cooperate with him even though Defence Counsel had asked him in advance to cooperate. Dr. Semrau formed the opinion that the Accused was suffering from paranoia to the extent that he was concerned with his fitness to stand trial. [ 92 ] Notwithstanding Dr.

Semrau’s assessment that the Accused was still actively mentally ill during the 2 nd and 3 rd interviews, the Accused gradually became more forthcoming. Dr. Semrau testified that the Accused was frightened and reluctant to disclose things that would make him feel persecuted and in danger, and needed re-assurance that it was alright to tell him and that he should tell him those things. [ 93 ] Dr. Semrau found that the Accused would make illogical jumps in conversation, indicating a disorganized thought process. Dr.

Lax was not able to detect any disorganized thought process in the Accused during his interviews. [ 94 ] As a result of his interviews with the Accused and his family members, Dr. Semrau has formed the opinion that the Accused is likely suffering from paranoid schizophrenia. Dr. Semrau testified that he based this assessment on what he described as four cardinal symptoms of schizophrenia: Delusional beliefs: particularly paranoid delusions; Hallucinations: usually auditory hallucinations with paranoid schizophrenics Disorganized speech and thought processes: thoughts or speech which have no flow or theme.

Illogical jumps or leaps in the thought process. “Ideas of Reference”: where a patient has a true or accurate perception of something happening but interprets it illogically, such as a paranoid

interpretation that a person’s behaviour or speech refers to them when it doesn’t. [ 95 ] With respect to delusional beliefs, Dr. Semrau noted the following indications: (

a) The Accused’s long-held but irrational belief that his Crohn’s disease was caused by Ricky Sidhu poisoning him by slipping mercury into his drink. (

b) The Accused’s belief that Ricky Sidhu was making fun of his Crohn’s disease, even though he had never witnessed this happening. (

c) The Accused’s belief that he was being followed when driving and making evasive manoeuvres to detect or prevent it. (

d) The Accused’s belief that his immediate and extended family members were in danger, such as people hiding in their houses or holding them hostage. (

e) The Accused’s belief that someone had broken his grandmother’s legs. [ 96 ] According to Dr. Semrau’s evidence, delusions, and people’s reactions to them, can create challenges in making an assessment. For example, when the Accused mentioned his paranoid fears to his cousin Manny (Majinder Sandhu), Manny told him that his beliefs were “crazy”. Dr. Semrau testified that the Accused would struggle with his ambivalence to those beliefs and the fact that other people would dismiss them and consider him “crazy” if he disclosed them. According to Dr.

Semrau, this type of situation often results in patients self-censoring, editing and being reluctant to disclose their beliefs, or being secretive because of the fear that such disclosure would assist those who might want to harm them. According to Dr. Semrau, this can cause patients suffering from delusions to become fearful, not knowing who to trust. They may even believe their own Defence Counsel to be part of the conspiracy against them and not trust them or confide in them, fearing that it may add to their persecution. [ 97 ] Dr.

Semrau testified that hallucinations were usually auditory with paranoid schizophrenia. They could sometimes be visual but not commonly. According to Dr. Semrau, the ways patients respond to hearing voices is variable and may be dependent on their degree of insight. Sometimes a patient will have an unshakeable belief that the voices are real and authoritative, i.e. that the things said are true and that it’s appropriate to act on the instructions received from them. However, sometimes the voices may be experienced as being alien, evil or tormenting.

Typically, there will be variations in the extent to which the patient accepts or rejects what the voices are

saying, which can lead to internal debates as to whether what the voice says is true, or not, and whether the voice’s instruction should be followed, or not. [ 98 ] With respect to hallucinations, Dr. Semrau noted the Accused’s report to him that he had “heard a lot of voices in my head for the last few years” . He told Dr. Semrau that the voices were unknown to him and he did not recognize them. However, at one of the last interviews with Dr. Semrau, the Accused suggested that at least one of the voices he heard was that of Ricky Sidhu. The Accused reported that he heard anywhere from one to 2 voices.

Examples of what these “voices” would say would be things like, “someone’s in the closet”, or “someone broke their leg”, giving the Accused warnings and information about things. According to the Accused’s report to Dr. Semrau, the voices wouldn’t usually command him to do things but sometimes they would. Sometimes these voices would command the Accused to do things that would be wrong to do. [ 99 ] Dr. Semrau testified that the Accused’s conduct of being very guarded is quite typical for a paranoid schizophrenic. According to Dr. Semrau, the difficulties Dr.

Robertson and hospital staff had in obtaining information from the Accused is typical with people suffering from paranoid schizophrenia. Practical and necessary things such as putting the Accused in isolation and injecting him, over his objections, with medication, could lead to increased feelings of persecution, creating a vicious cycle impeding the flow of the information necessary for a proper assessment. [ 100 ] On page 4 of his report at paragraph 3, under the heading “Basis of Opinion - Comments” , Dr. Semrau stated: “It is likely that Mr.

Sandhu’s memories of the events surrounding the offenses have been to some extent distorted by active mental illness symptoms at the time of the offenses and subsequent psychotic thought processes. Thus I did not receive from Mr. Sandhu an entirely coherent or logical account of his thinking or actions in relation to these offenses. This is a very common problem in the evaluation of individuals who have been actively mentally ill at the time of serious offenses.

In fact if the account provided by an accused of such offenses is completely clear, logical and coherent, that in itself raises major concerns regarding the genuineness of their purported memories of the events and their associated mental state. Nevertheless the resulting difficulty is that a completely satisfying, entirely logical account of behaviour and mental state is typically not available under such circumstances, as is the case with Mr. Sandhu in relation to these offenses.” [ 101 ] Under the heading “Mental Illness Causation” at pages 7 and 8 of his report, Dr.

Semrau provided this explanation regarding the cause of paranoid schizophrenia: “Paranoid schizophrenia is a mental disorder which is incompletely understood, but thought to involve significant alterations in brain structure, function and chemistry. There is clear research indicating that it is a fairly strongly genetic/hereditary disorder, which may be consistent with information provided by family members to the effect that Mr. Sandhu’s mother has been recently hospitalized with symptoms which may be similar.

For the most part the onset of symptoms of paranoid schizophrenia is age-related, typically occurring during teenage years or the early 20’s. However, various factors may precipitate or accelerate the onset of symptoms, including emotional stresses generally and some particular forms of drug use.” [ 102 ] At page 8 of his report, under the same heading, Dr. Semrau stated: “Perhaps even more importantly, there is a history of Mr. Sandhu making fairly substantial use of marijuana over a number of years.

There are various research studies indicating that although marijuana is relatively harmless when used in moderation for most people, for a small minority of vulnerable individuals, the usage of marijuana (and some other drugs) can act to accelerate/precipitate the onset of paranoid schizophrenia symptoms.” [ 103 ] Dr. Semrau’s opinion regarding the Accused is described on page 3 of his report under the heading “Opinions

Summary/Overview” :

(1) Mr. Sandhu has suffered from a serious mental illness for a number of years, most likely paranoid schizophrenia.

(2) It is very likely that Mr. Sandhu was suffering from active symptoms of paranoid schizophrenia at the time of the offenses.

(3) It is very likely that Mr. Sandhu’s behaviour in relation to the offenses was motivated and determined primarily by paranoid schizophrenia symptoms.

(4) During the commission of the offenses, Mr. Sandhu was fully aware at the concrete physical level that he was using a firearm which was likely to seriously harm or kill the victims.

(5) Due to paranoid schizophrenia symptoms, Mr. Sandhu incorrectly believed that he was acting in self-defense.

(6) As a result of the paranoid schizophrenia symptoms, Mr. Sandhu was unable to properly appreciate the nature and quality of his acts and unable to know that they were wrong, either legally or morally.

(7) Mr. Sandhu continues to suffer from paranoid schizophrenia. He requires ongoing psychiatric treatment including medications in order to treat these symptoms. Such treatment would be best provided initially in a secure psychiatric facility until he hopefully improves sufficiently to continue treatment under less restrictive circumstances.

[ 104 ] In Dr. Semrau’s opinion, the shootings of the victims at the banquet hall were the result of paranoid delusions in combination with auditory hallucinations. He explained that the chronic paranoid delusions set the stage and the last straw or triggering event was the auditory hallucinations - voices warning him that Mr. Sidhu was about to kill him - in combination with the “idea of reference”

interpretation of Mr. Sidhu having his hands in his pockets, as fidgeting and reaching for a gun. [ 105 ] In Dr. Semrau’s opinion, the other shooting victims were not intended victims in the Accused’s mind but were persons who ended up getting in the way of the Accused’s primary attack on Mr. Sidhu. Dr. Semrau regarded the shooting of the other victims as “part of the same package” as the shooting of Mr. Sidhu, and that there was no separate motivation with respect to the shootings of them. [ 106 ] Dr. Semrau’s opinion was that the Accused understood that he was using a gun that would be likely to harm people.

However the Accused’s acts - in terms of their purpose - were not properly appreciated by him. Dr. Semrau’s opinion was that the Accused felt the purpose of his acts was pre-emptive self-protection when, in fact, they were unjustified acts of violence against innocent parties. In Dr. Semrau’s opinion, the Accused’s appreciation of the nature and quality of his acts would therefore have been impaired. [ 107 ] With respect to whether the Accused knew his acts were wrong, in Dr.

Semrau’s opinion, the Accused would not have been able to turn his mind to their moral wrongfulness and was therefore unable to know that his actions were wrong. Dr. Semrau’s opinion was that the Accused was prevented from knowing, or even from focussing on, the moral wrongfulness of his actions by his paranoid delusions combined with the auditory hallucinations. In Dr. Semrau’s opinion, the Accused would only have been able to focus on his perceived necessity to act as he did. [ 108 ] Asked about the level of confidence he had in his opinions regarding the Accused, Dr.

Semrau testified that the total body of information available to him was of a scope and quality to provide reasonably confident conclusions. On the other hand, he also testified that it was not possible to come to a conclusion about the Accused’s mental state with a high level of confidence, as frailties of memory, distortions and uncertainties were involved with respect to almost all of the information he received.

Notwithstanding however, that it was not possible to have a highly confident conclusion, at the end of the day, he was still reasonably confident of his conclusions because of the scope of information that was available to him. [ 109 ] Areas that troubled Dr. Semrau in his analysis included the question of whether or not the Accused expected Mr. Sidhu to be at the party or not, and the Accused’s preparation in terms of putting on the vest and taking the gun, when he had never worn the vest before and had rarely taken the gun out of the house. According to Dr.

Semrau there is no satisfactory answer as to why both of those things happened that day. Dr. Semrau described these troubling points as “loose ends” in his clinical analysis, resulting in his conclusions and opinions being reasonably confident rather than very confident. [ 110 ] According to Dr. Semrau’s evidence, when he asked the Accused why he brought the gun and vest out with him on this occasion when he had not done so before, the Accused said he heard voices telling him to do so and felt fearful. [ 111 ] Dr.

Semrau testified that when he asked the Accused, if he felt so much fear, why he didn’t simply stay home, the Accused said he didn’t know except he wanted to do his cousin Dave a favour by being his designated driver. Dr. Semrau then asked why he didn’t just stay in the car when they arrived at the banquet hall parking lot. The Accused again said he didn’t know why and could not explain why he went inside the party. [ 112 ] Dr.

Semrau conceded that these were more “loose ends” - the common-sense inconsistency and illogicality of having such fears and then taking actions that would heighten the risk to himself. [ 113 ] However, according to Dr. Semrau, it is not unusual for there to be “loose ends” in a NCRMD determination. He also suggested in his evidence that these were really “loose ends” from the perspective of a sane person. Dr. Semrau cautioned against what he described as the “trap thinking” of considering what a sane person would or should do. According to Dr.

Semrau’s evidence, while these inconsistencies would stand out to a person of sound mind, a person with a mental illness could not be expected to act as rationally. Things illogical or defying common sense may fit a person who is delusional and disorganized, as one cannot expect logical consistency from a person who is not of sound mind.

ANALYSIS [ 114 ] Were the acts of the Accused on the night of January 16, 2013 at the Riverside Banquet Hall committed while he was suffering from a mental disorder that rendered him incapable of appreciating the nature and quality of his acts or of knowing that his acts were wrong? [ 115 ] Crown Counsel submits that Dr. Semrau’s opinions are dependent on the information provided to him by the Accused, that the information from the Accused is unreliable or fabricated and that the court should be sceptical of opinions based on such evidence.

Crown Counsel submits that the illogicality and inconsistencies in the Accused’s evidence, should lead to adverse inferences against the Accused with respect to the issue of his criminal responsibility for his actions. The Crown submits that, as a result of such inferences, the Accused has not met the burden upon him of overcoming the presumption that he was not suffering from a mental disorder so as to be exempt from criminal responsibility. [ 116 ] Where there is a conflict between the evidence of the Accused and that of other witnesses, I accept that of the other witnesses.

However, that is not because I believe the Accused is being dishonest. It is because I agree with Dr. Semrau’s opinion that the Accused may not be a good historian as a result of his mental illness. Accordingly, I find that the events that took place at the Riverside Banquet Hall on the night of January 16, 2013 unfolded as the Crown witnesses described them. [ 117 ] I have considered the Accused’s pre-offence conduct. He had purchased the handgun 2 years previously, with the serial

numbers deleted. He had purchased the bullet-proof vest one year previously. He loaded the handgun prior to leaving his house. Hebrought the handgun and a full extra clip of ammunition with him and he wore the vest, the first time he had done all of those things. [118] I have considered the Accused’s acts during the commission of the offences. He shot Mr. Sidhu at close range. He shot Mr.Sidhu when he was either hunched over or on his knees, and while he was crawling and being dragged under a table. He attempted tofire the gun 2 or 3 more times with the gun pointed at Mr.

Sidhu’s head when it misfired or jammed. [119] I have considered the Accused’s post-offence conduct. He fled the scene in his cousin Davinder Sandhu’s Honda. He stoppedby the side of the road and, when Constable Mushi activated his emergency lights and sirens, he drove off again, turning into thefarmhouse driveway after about 30 or 40 meters.

Despite Constable Mushi’s warning to him to keep his hands in the air, the Accusedthrew the gun, the ammunition clip, his gloves and a shoe out of the window of the Honda before exiting. [120] Normally, these are all factors that would lead to inferences of planning, deliberation and a guilty mind. [121] Crown provided the case of Faryna v. Chorney, (BC CA), [1951] B.C.J.

No. 152, where O’Halloran, J.A.stated at paragraph 11: “The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to anexamination of its consistency with the probabilities which a practical and informed person would readily recognize as reasonable inthat place and in those conditions.

Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced andconfident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilfulexaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quitehonestly mistaken. For a trial Judge to say ‘I believe him because I judge him to be telling the truth’, is to come to a conclusion onconsideration of only half the problem.

In truth it may easily be self-direction of a dangerous kind.” [122] I have found these comments of O’Halloran, J.A. to be very useful on many occasions in the past. However, it is my view thatthey are not as helpful in situations where the Court is considering the evidence of witnesses who are suffering from active mental illnesscharacterized by disorganized thinking, paranoid delusions and hallucinations.

The usual inferences that one might draw frominconsistency of such evidence with the probabilities that the practical and informed person would readily recognize as reasonable in thatplace and in those circumstances, may not be fair or appropriate, in the case of the mentally ill. [123] Crown submits that the Accused has reconstructed events to present himself in a manner that would be more favourable to afinding that he was not criminally responsible.

Crown submits that the court should not accept the truth of the Accused’s evidence as towhat was in his head at the time of the shootings, i.e. that he was hearing voices that caused him to shoot Mr. Sidhu. [124] Dr. Semrau, in fact, considered the alternative hypothesis of the Accused engaging in post-offence fabrication to excuse hisbehaviour. Dr.

Semrau’s opinion was that this hypothesis was extremely unlikely, mainly because of multiple reasonable sources,including family members, providing evidence of pre-offence paranoid behaviours, which was consistent with his favoured hypothesisthat the Accused’s actions were motivated by paranoid schizophrenia symptoms resulting in an inability to rationally appreciate thenature and quality of his acts, and rendered him unable to know that they were wrong, either legally or morally. [125] I agree that, at the end of the day, whether the Accused was criminally responsible for his acts depends on what was going oninside the Accused’s mind, when he was shooting his gun that night at the banquet hall.

Even if the Accused had paranoid delusions thathe was being persecuted by Mr. Sidhu, if he used those delusions as justification for shooting Mr. Sidhu, whether out of revenge or as ameans of stopping the persecution, or to pre-empt future attacks, as long as he appreciated the nature and quality of his acts and knewthat they were wrong, he would not be exempt from criminal responsibility. [126] Dr. Semrau also considered this alternative hypothesis.

However, he found that, while it was plausible that elements of thisalternative hypothesis could have been in the Accused’s mind at the time of the shootings, there is no factual or evidentiary basis for thatview and, in fact, the Accused had specifically denied the existence of those elements in his interviews. [127] The question is whether the Accused was, at the time of the shootings, experiencing a range of paranoid schizophreniasymptoms that included delusions, disorganized thoughts, ideas of reference and especially auditory hallucinations - voices that he foundto be real and compelling, and that caused him to believe that he was in imminent danger of being shot by Mr.

Sidhu if he did not shoothim first. [128] Dr. Semrau testified that it is quite difficult to feign a mental illness and that he saw none of that with the Accused. In Dr.Semrau’s opinion, the fact that the Accused would not confirm that voices told him to shoot Mr. Sidhu, gave more credence to theinformation he was providing. Dr.

Semrau testified that in past cases he had been involved in where he’d found fabrication, feigning ofmental illness or feigning the role of the mental illness in their offence, those clients had often said “the voices made me do it” or “I hadno control, I had to obey the voices” or something similar. [129] An important part of the analysis employed by Dr. Semrau in coming to his conclusions was his consideration and rejection ofalternative hypotheses, i.e. alternative explanations for the Accused’s behaviour that day, many of which I have already described above. [130] The Accused and Mr.

Sidhu had not spoken to each other in over 10 years. According to Mr. Sidhu they had become virtualstrangers to each other. There was no recent history of any conflict, animus or hostility between them or of any serious conflict ofinterests. There is no evidence of any motive the Accused might have had for his actions that night. [131] The Accused was known to many of the people attending the party in the banquet hall that night, virtually all of whom werelongshoremen or their friends and family. Many of them knew the Accused, who is also a longshoreman, from work. The Accused

made no attempt to conceal his face. Clearly, any rational person would have realized that he would be recognized and identified as the shooter that night. [ 132 ] The Accused was only a year or two from qualifying for induction as a union member himself - a status coveted by all longshoremen. Union membership would have afforded the Accused with life-long job security, higher pay, shift privileges, a pension and the potential of being able to extend employment as a longshoreman to his sons and future generations of sons after that.

By his actions that night, the Accused has likely lost the ability to ever again work as a longshoreman again. CONCLUSION [ 133 ] I have considered the inconsistencies in the Accused’s evidence and in his reporting to the experts. I have considered the Accused’s pre-offence and post-offence conduct and his actions during the commission of these offences. I have considered the inferences that could be drawn from that conduct, of planning, deliberation and a guilty mind. I have also considered the negative inference that could be drawn from the Accused’s refusal to undergo a psychological test.

I have then re-considered the potential negative inferences that could be drawn, in the context of a person suffering from the severe mental illness of paranoid schizophrenia. All three experts who testified at this trial are ad idem with respect to that diagnosis of the Accused. Crown counsel has conceded that this diagnosis is correct. [ 134 ] Notwithstanding the frailties of that evidence noted above, the only direct evidence as to what was going on inside the Accused’s mind at the time of the offences, was that from the Accused himself.

Other than the potential negative inferences that could be drawn that I have noted above, the only other evidence on that point is the opinion evidence from the 2 experts who conducted NCRMD assessments of the Accused, Dr. Lax and Dr. Semrau. [ 135 ] Both Dr. Lax and Dr. Semrau were aware of, and did consider, all the inconsistencies in the Accused’s version of what occurred, the inconsistencies between his version and his actions as described by other witnesses, and inconsistencies between his version and how he presented (in the report of Dr. Lax). Dr.

Semrau described these inconsistencies as “loose ends”. [ 136 ] Dr. Lax ultimately concluded that he was not able to find, on a balance of probabilities, that the Accused was experiencing symptoms of a mental disorder to the point that he was unable to know the wrongfulness of his actions and that it was not clear to him whether a NCRMD finding would apply to the Accused. However, Dr. Lax did acknowledge that such a conclusion was possible. Dr.

Lax, in fact, stated in his conclusion that symptoms of the Accused’s mental disorder could very well have caused him to be unable to know the wrongfulness of his actions that night. [ 137 ] Of the expert evidence I have heard at this trial, I find the opinions of Dr. Semrau to be the most thoroughly considered, comprehensive and detailed. Notwithstanding the opinion of all experts, and the agreement of both counsel, that the Accused suffers from paranoid schizophrenia, Dr. Semrau was the only expert to provide the Court with a detailed explanation, and a better understanding, of this illness.

Notwithstanding that he conducted far fewer interviews with the Accused than Dr. Lax, I find that Dr. Semrau was able to obtain more and better quality information from the Accused. Dr. Semrau acknowledged that the Accused was uncooperative during his first interview of him and that he obtained no useful information at that interview. [ 138 ] By the 2 nd and 3 rd interviews, notwithstanding that the Accused continued to exhibit symptoms of an active mental illness, Dr. Semrau was able to gain some trust from the Accused and more cooperation, enabling more reliable information.

It would appear from the evidence, that the interviews conducted by Dr. Lax, and particularly the one by Dr. Robertson, did not progress beyond the level of Dr. Semrau’s first interview, in terms of the Accused’s cooperation and the ability to obtain useful information from the Accused. [ 139 ] It would appear from the evidence, that Dr. Semrau made it a priority to gain the Accused’s confidence for his interviews, to a greater degree than did Dr. Lax, and to a far greater degree than Dr. Robertson. In that regard, I find the 2 nd and 3 rd interviews conducted by Dr.

Semrau were far more successful than those of either Dr. Lax or Dr. Robertson, in terms of obtaining useful information from the Accused. I also found Dr. Semrau’s review of collateral information to be more thorough, especially that obtained from the Accused’s family members about the Accused’s pre-offence behaviours. Given the difficulty all experts had in gleaning information directly from the Accused, I agree that this information from family members would be important to forming reliable opinions about the Accused’s mental state at the time of the offenses. [ 140 ] Dr.

Semrau was the only expert who carefully considered all of the alternative hypotheses that could possibly explain the Accused’s conduct on the night of the offences, and compared them, to determine which hypothesis was the more probable. In contrast, Dr. Lax did not, in arriving at his opinion, consider or evaluate the probability of alternative explanations for the Accused’s acts on the night of the offenses. It is therefore not clear, from Dr. Lax’s opinion, that the NCRMD explanation for the Accused’s acts, is not still the most probable one.

In my view, it is not possible to arrive at a proper balancing of probabilities in a vacuum, without considering alternative hypotheses. There is no absolute scale for measuring, passing or rejecting probability. [ 141 ] After considering, weighing and balancing all of the evidence that I have heard at this trial, I find that there is no better explanation for the Accused’s actions on the night of the offences than the one Dr. Semrau has provided in his report.

Accordingly, I find that it is more probable than not that, at the time of these offenses, the Accused was suffering from a mental disorder that rendered him incapable of appreciating the nature and quality of his acts, or of knowing that what he did was wrong. I find that the Accused was not, therefore, criminally responsible for his acts, as described in

Section 16 of the Criminal Code , with respect to all counts. [ 142 ] I deem it appropriate, and I do hereby order, that the Accused now be referred to the Review Board of British Columbia with respect to rendering a disposition. I further order that this decision and copies of the expert reports that have been filed at this trial - from Dr. Robertson, Dr. Lax and Dr. Semrau - be provided to the Review Board of British Columbia to assist them in determining the appropriate disposition with respect to the Accused.

___________________________ P. Chen Provincial Court Judge