R. v. Ghuman Date:, 2015 BCPC 237

Citation: R. v. Ghuman Date: 20150527 2015 BCPC 0237 File No: 80980 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GURJIT SINGH GHUMAN ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G.J. BROWN Counsel for the Crown: E. Sabourin Counsel for the Accused: D. Gable Place of Hearing: Abbotsford , B.C. Date of Hearing: April 23 24, 2015 Date of Judgment: May 27, 2015

[ 1 ] THE COURT : These are my Reasons for Judgment in the matter of R. v. Gurjit Ghuman, file number 80980-1. INTRODUCTION [ 2 ] Gurjit Ghuman, the accused, is a community support worker, and one of his clients was Dalvir Tiwana (Dalvir), then a 20- year-old young man suffering from an autism disorder. [ 3 ] The two of them were out on a visit in Abbotsford, B.C. on January 15, 2014. Towards the end of that visit, Dalvir was eating a pizza and drinking Coke at Deluxe Pizza with Mr. Ghuman. An unfortunate incident then occurred. Dalvir became upset that he could not finish his Coke in Mr.

Ghuman's car, and he ran off. Mr. Ghuman ran after Dalvir and used a great deal of force to restrain and push Dalvir back to the car. Some witnesses were concerned and the police were called. There is a store surveillance video of part of the incident. [ 4 ] Mr. Ghuman was ultimately charged with assault contrary to s. 266 of the Criminal Code . The issue is whether or not the Crown has proven beyond a reasonable doubt that Mr. Ghuman assaulted Dalvir. [ 5 ] This is a difficult case.

On the one hand, a support worker is dealing with a young man with an autism disorder who has acted out in anger and is running towards traffic; on the other hand, the witnesses see, and the video portrays, a support worker using a great deal of force, including a kick and what appear to be punches to the mid-section. [ 6 ] I must decide whether Mr. Ghuman was acting reasonably in the circumstances, and s. 34 and possibly 43 of the Criminal Code come into play.

CASE FOR THE CROWN Ranvir Tiwana : [ 7 ] Ranvir Tiwana is the father of the complainant, Dalvir Tiwana, and he gave his evidence with the assistance of a Punjabi interpreter. Mr. Tiwana, Sr. is the father of three children and Dalvir is the eldest. The family live all together in Abbotsford, B.C. [ 8 ] Mr. Tiwana, Sr. testified that Dalvir has an autism disorder. When Dalvir was four years old, his pre-school teachers noticed that his behaviours were unusual and he was assessed with autism by Sunny Hill Hospital.

As a youngster, Dalvir had trouble listening to instruction, he would easily become angry and it was hard to calm him down. When Dalvir was a teenager, Mr. Tiwana, Sr. observed that Dalvir could become very agitated around the household and he had difficulty controlling his emotions. Dalvir was on medication until two years ago. Dalvir did graduate, but with low grades, and he had virtually no friends during or following high school. [ 9 ] Since becoming an adult, Dalvir has had the assistance of Community Living B.C., the Ministry and the accused, a support worker. Mr.

Ghuman was Dalvir's first community support worker as an adult. CLBC arranged for the services of Mr. Ghuman in January of 2014 because Dalvir was bored and he needed to socialize. [ 10 ] Mr. Tiwana, Sr. did say he had concerns about Dalvir and he expressed these concerns to the family doctor in mid-January of 2014. Mr. Tiwana, Sr. had concerns about controlling Dalvir's behaviour and whether medication could be of assistance. Since the incident, Dalvir still is not working but he is taking some college courses. [ 11 ] According to Mr. Tiwana, Sr., prior to the incident of January 15th, 2015, Mr.

Ghuman had taken Dalvir out on four occasions with each visit being about four hours long. There had been no problems during those visits. [ 12 ] On January 15th, 2014, Mr. Tiwana, Sr. had been sleeping in the day because he had worked a night shift; however, he did meet Mr. Ghuman at the door at about 10:00 a.m. The visit was to be from 10:00 a.m. until about 2:00 p.m., and Mr. Ghuman planned to take Dalvir to the library and maybe outside. [ 13 ] On that same day, Mr. Tiwana, Sr. heard his doorbell ring at 1:00 p.m. and Mr. Ghuman had returned with Dalvir early. Dalvir was very upset and angry.

Dalvir said he was beaten, and he went into the house to call the police. Dalvir was bleeding from his nose and his lip was swollen. Mr. Ghuman was in a hurry, but he had explained to Mr. Tiwana, Sr. that Dalvir was angry because he was not allowed to finish his Coke in Mr. Ghuman's vehicle. Dalvir had apparently thrown an open Coke can inside the vehicle. Mr. Tiwana, Sr. saw Dalvir throw a plastic flower pot at Mr. Ghuman's vehicle. The police then arrived. [ 14 ] In cross-examination, Mr.

Tiwana, Sr. stated that although Dalvir was 20 years old at the time of the incident in January of 2014, his emotional age was much younger. There were times when his two daughters were scared of Dalvir. Even Mr. Tiwana, Sr. could barely physically control Dalvir; there were times when he had to be physical with Dalvir for the benefit of him and the family. Also during cross-examination, Mr. Tiwana, Sr. admitted that there were earlier times when Dalvir would call the police if he were upset. Dalvir's behaviours were more or less the same, whether or not he was on medication. [ 15 ] Mr.

Tiwana, Sr. stated that he expected Mr. Ghuman to keep Dalvir safe and to teach him how to behave. [ 16 ] In re-direct, Mr. Tiwana, Sr. said that if Dalvir got angry in his presence he would talk to him to get him to understand the situation. When Dalvir was smaller he would sometimes have to hold onto him to calm him down. He has never had to punch or kick him to calm him down. Dalvir Tiwana [ 17 ] Dalvir Tiwana is now 21 years old. Although he spoke slowly, he was quite responsive to the questions posed in court. Dalvir is currently taking a warehousing course.

He has never worked, but he hopes to in the future. He likes to go shopping in Abbotsford,

and he can drive. A long time ago Dalvir had a support worker for periods after school, but Mr. Ghuman was his first support worker when he was an adult. Dalvir believed that he had eight or nine visits with Mr. Ghuman prior to January 15, 2014. [ 18 ] On January 15th, 2014, Dalvir first saw Mr. Ghuman at 10:00 a.m. and he went with him in Mr. Ghuman's car. He thinks they went to the mall and the library. For the last part of the visit they went to Deluxe Pizza on McCallum Road in Abbotsford. Dalvir had pizza and a Coke. [ 19 ] Things were fine until Dalvir asked Mr.

Ghuman if he could take his Coke with him in the car. Mr. Ghuman said that he better finish the Coke in the pizza place and not bring it in the car. Dalvir argued with Mr. Ghuman because he wanted to take the Coke home with him. In his anger, Dalvir poured pop on the front windshield of Mr. Ghuman's car. [ 20 ] Dalvir testified that he was still angry and that he was starting to swear. Mr. Ghuman reacted by talking "rough" with Dalvir, and Dalvir responded in kind. When Mr. Ghuman was trying to retrieve something from the backseat of his car, Dalvir threw his open pop can into the backseat. Mr.

Ghuman reacted angrily and he threw the pop can out of his car at Dalvir's legs. [ 21 ] Dalvir began running away from Mr. Ghuman to a traffic light post where there was a yield sign. Mr. Ghuman began running after him. Mr. Ghuman came up to Dalvir at the yield sign and put his arm over Dalvir's neck. Dalvir said that he had already stopped at the yield sign before Mr. Ghuman put his arm around his neck. Mr. Ghuman swung Dalvir sideways so that Dalvir fell on the ground near the yield sign. Mr. Ghuman was yelling and swearing at him and saying, "Look what you did to my car." Mr.

Ghuman picked Dalvir up and hit him on the back, the face and the head. This all happened by the traffic light and the pizza store parking area. When Mr. Ghuman first made Dalvir fall on his knees and hands at the yield sign, Dalvir did try to push and kick Mr. Ghuman. Mr. Ghuman then pushed Dalvir to the parking lot. [ 22 ] Mr. Ghuman pushed Dalvir against the walls of the stores in the parking lot. Dalvir was bleeding from his knee, elbow, mouth and nose. Eventually Mr. Ghuman pushed him into his car and took him home. [ 23 ] Dalvir was hurt and he felt scared. Mr. Ghuman was driving home fast and with anger.

Dalvir admitted he was swearing at Mr. Ghuman in the car. [ 24 ] When Dalvir got home he called the police. He had also called the police earlier at the store parking lot, right after he had dumped the Coke on the windshield. At his home, Dalvir heard Mr. Ghuman tell his dad the story. Dalvir then gave his version and went upstairs to call the police. Dalvir admitted he threw a plant at Mr. Ghuman's car. [ 25 ] In cross-examination, Dalvir said he was five foot ten inches tall and almost 130 pounds at the time of incident. Dalvir admitted that he sometimes got mad in his home. Even in prior visits with Mr.

Ghuman he would get mad and Mr. Ghuman would try to "figure it out." During cross, Dalvir believed that Mr. Ghuman was reaching for a booklet when Dalvir threw the pop into the car. He admitted that he had thrown the pop on the windshield and in the car because he was mad. Also during cross, Dalvir said that when Mr. Ghuman pushed him to the ground at the yield sign, Mr. Ghuman yelled, "Look what you did to my car." Mr. Ghuman swung Dalvir away from traffic, towards the store parking. Dalvir further testified in cross that when Mr.

Ghuman was dragging him back to his car he grabbed the store door and that is when his head and face hit the store wall. Brij Sharma [ 26 ] Mr. Sharma is the owner of Deluxe Pizza. On January 15, 2014 he saw Mr. Ghuman and Dalvir come into the store and order food. After they left the store Mr. Sharma saw something "going on" at the black car. He said the skinny guy (i.e. Dalvir) threw a Coke can in the backseat. Both men then ran around the whole driveway. [ 27 ] The skinny guy went to a red light and the other guy (i.e. Mr. Ghuman) grabbed him from the back. Mr.

Sharma went in and out of his store two or three times, watching this. The skinny guy was on the ground with blood on him and he was yelling, "Help me." Mr. Sharma told the two men to leave or he would call the cops. [ 28 ] Specifically, Mr. Sharma saw blood on the skinny guy's face, ear and the side of his mouth. The police later came and made a copy of a video obtained from a surveillance camera in Mr. Sharma's store. The Video [ 29 ] I have studied the video from Deluxe Pizza a number of times. The video starts with Dalvir running up the parking lot to a traffic island. Mr. Ghuman is running after him.

I only then see legs, but it appears that Dalvir does stop on the island momentarily and then Mr. Ghuman grabs him from behind. [ 30 ] The two bodies come into full view again as Mr. Ghuman is pushing Dalvir back towards the car along the sidewalk adjacent to Deluxe Pizza. Mr. Ghuman pushes Dalvir against the store wall quite hard. Mr. Ghuman then appears to punch Dalvir in his mid-

section twice, although the movements are slower than regular punches, and afterwards Mr. Ghuman is reaching in side Dalvir's jacket. Dalvir then grabs a store door and Mr. Ghuman drags Dalvir away from the door onto the ground and he delivers a small kick. The two struggle for a while and Dalvir appears to be holding onto a post. Activity calms down and Dalvir reaches for something on the ground. [ 31 ] Mr. Sharma comes out and it is clear he is concerned. Mr. Ghuman pushes Dalvir down the sidewalk. As Dalvir gets closer to the camera it is clear he is upset. The whole video is only about a minute-and-a-half long.

Lisa Dorman [ 32 ] Ms. Dorman is an employee with CIBC and she had a view of the incident from her co-worker's office on the second floor. Ms. Dorman saw two men running across McDougall Street and they seemed to be in a fight. The stockier one (in my view this is Mr. Ghuman) grabbed the younger and thinner one (Dalvir) towards what was then a Package Express store. The stockier one threw punches. He also smashed the head of the thinner one against the wall of the store, according to Ms. Dorman. The younger one tried to open the door of the Package Express and the other individual closed the door on his head.

Then the stockier one dragged the younger one to the end of the parking lot and put him in the passenger seat of a car and drove off. Ms. Dorman could see the licence plate of the vehicle and she wrote it down. She could not recall if the thinner person ever hit the stockier person. In cross-examination, Ms. Dorman did not agree that the bigger one was "escorting" the smaller one to the car. CASE FOR THE DEFENCE Gurjit Ghuman [ 33 ] Mr. Ghuman is 34 years old and he spoke in a manner that suggested he had suffered from some sort of brain injury. Mr. Ghuman is married.

He attended Steinburg College and received a diploma in Community Support Work. He had previously graduated from high school with honours. [ 34 ] When Mr. Ghuman was 14 he suffered a brain injury. He made a near full recovery, but for a minor limp with his right leg. Mr. Ghuman wanted to help those less fortunate than himself, given what he had gone through as a teenager. Mr. Ghuman had been a community support worker for about ten years. At the time of the incident he was with the Children's Foundation. Now he is with Bayshore Home Health Therapy.

Of course he has no criminal record; if he did he could not work in this field. [ 35 ] CLBC had contracted with Children's Foundation to work with Dalvir Tiwana. It was felt Mr. Ghuman was well-suited to work with Dalvir. Mr. Ghuman expected to be with Dalvir about three days per week with visits of four hours in duration. Mr. Ghuman had a meeting with Dalvir and Mr. Tiwana, Sr. prior to starting this support work. Prior to the incident, Mr. Ghuman had met Dalvir three or four times. [ 36 ] Mr. Ghuman testified that he received training in the event of an incident.

Essentially this was non-violent crisis intervention training in the event of an outburst or a client getting out-of-hand. The goal was the safety and protection of the client. Mr. Ghuman also had training with St. John Ambulance, the Justice Institute and Douglas College. Mr. Ghuman felt that he was expected to act in Mr. Tiwana, Sr.'s stead. [ 37 ] On January 15th, 2014, Mr. Ghuman and Dalvir did some pre-planned activities. Dalvir indicated he was hungry, so Dalvir had lunch at Deluxe Pizza. Mr. Ghuman asked Dalvir to finish his Coke at the premises. Dalvir Tiwana got mad and poured the Coke over Mr.

Ghuman's windshield. Dalvir was having an outburst. He was trying to phone someone. [ 38 ] Mr. Ghuman felt that his behaviour was escalating so he went to his car to get the phone number for Mr. Tiwana, Sr. Dalvir lobbed the Coke can into the backseat of the car while Mr. Ghuman was attempting to reach his father. Suddenly, Dalvir ran into a busy intersection. Mr. Ghuman gave chase, used what he learned in training, and brought Dalvir back to the side of the building. Mr. Ghuman was restraining Dalvir because he was trying to get loose. Mr.

Ghuman indicated that Dalvir did open a store door and both of them collided with the door and fell. Dalvir was looking to run again and Mr. Ghuman was exhausted so he kicked him out. He then walked Dalvir to the car. [ 39 ] Mr. Ghuman confirmed that he ran after Dalvir because Dalvir was his responsibility and was concerned about the traffic and the busy intersection. In the video it appears Mr. Ghuman is striking Dalvir with his hand, but Mr. Ghuman explained that he was trying to take Dalvir's cell phone two or three times. Dalvir then put the phone in his pocket, so Mr.

Ghuman knew it was out of the way. [ 40 ] When Mr. Ghuman returned Dalvir to his home, Dalvir's father explained that these sort of incidents happened on a regular basis. Dalvir was about to throw an ornament at Mr. Ghuman, but Mr. Ghuman and the father talked Dalvir out of that behaviour. Dalvir later came outside with a phone and handed it to Mr. Ghuman. The police were on the phone and asked Mr. Ghuman if Mr. Ghuman would wait there. Dalvir then lobbed a plant pot at his car. Mr. Ghuman was later arrested. [ 41 ] Mr.

Ghuman stated that he never intended to harm Dalvir and his actions did not arise out of anger or frustration. [ 42 ] In cross-examination, Mr. Ghuman denied that he was punching Dalvir. He was trying to grab the cell phone so it would not be lost. Mr. Ghuman felt that the blood on Dalvir's lip was a result of him being pinned against the door by Mr. Ghuman. Also during cross, Mr. Ghuman described the kick more as a tap. He was exhausted and he did not want Dalvir taking off. He also admitted that he may have called Dalvir a name when the pop can was thrown in his car.

HAS THE CROWN PROVEN AN ASSAULT BEYOND A REASONABLE DOUBT? [ 43 ] There is not a large dispute about the facts. The video portrays a key part of the incident and the various witness accounts do not differ too greatly. Mr. Ghuman himself admits to using force on Dalvir, including a kick. However, he says he never punched Dalvir; he was reaching for his cell phone. He also does not admit to being angry, although he concedes he may have called Dalvir a name. A W.D . analysis is required for these certain discrepancies, and I will explore that below. [ 44 ] On the face of it, even by Mr.

Ghuman's account, there is an assault as defined by s. 265 of the Criminal Code . Mr. Ghuman is applying force intentionally to Dalvir. This force includes a hard push against a store wall and a quick trip kick. Although Mr. Ghuman

describes the movements of his right hand as "reaching in" to get his cell phone, the video portrays slow-paced strikes to Dalvir's mid-section. Ms. Dorman also testified that there were punches. [45] In my view, the Crown has led sufficient evidence proving beyond a reasonable doubt that Mr. Ghuman applied intentionalforce to Dalvir. The only remaining issue is whether s. 34 or s. 43 of the Criminal Code apply, and it boils down to whether Mr.Ghuman's use of force was reasonable in the circumstances.

SECTION 43 [46] At the outset, I must say that I am declining to apply s. 43 to this case. In my view, that

section is not applicable because Dalvirwas over the age of majority when this incident occurred. He was

Section 43 does stipulate that a person standing in the place of aparent is justified in using force by way of correction toward a pupil or child who is under the person's care. The force cannot exceedwhat is reasonable in the circumstances. [47] The case of R. v. Ogg-Moss, (SCC), 1984 2 SCR 173, makes it clear at pages 8 and 9 that the word "child" in s.43 refers to a person chronologically younger than the age of majority.

That case uses some dated language, but it rules that a mentally-retarded adult is not a "child", even if he exhibits childish or childlike characteristics. [48] The Ogg-Moss case is highly distinguishable from the present case, but I am still left with the Supreme Court of Canada'sdefinition of "child". In Ogg-Moss a counsellor hit a severely-disabled 21-year-old patient with a spoon after he spilled his milk. In ourcase, Mr. Ghuman is alleging that he is using force to protect Dalvir from harm such as traffic. I would also add that Dalvir is quitehigh-functioning, despite having a form of autism.

SECTION 34 [49] I must therefore turn to s. 34 of the Criminal Code. Mr. Ghuman is not guilty of an assault if he can satisfy the following threeconditions: (

a) He believed on reasonable grounds that force or the threat of force was being used against Dalvir. This mental element is a combinedsubjective/objective test. In my view, Mr. Ghuman subjectively believed there was a threat of force against Dalvir. He believed Dalvircould run into traffic and he was responsible for his client. There are also reasonable grounds for Mr. Ghuman's belief. Dalvir wasupset, he was acting unpredictably, and he was running towards traffic. I appreciate that Dalvir is quite independent and he even drives,but he is also a person who can act out unpredictably and somewhat aggressively. (

b) The act that constitutes the assault is committed for the purpose of defending Dalvir from that use or threat of force. In my view, Mr.Ghuman's intent was to use force for the purpose of protecting Dalvir from running into traffic or running away. He expressed this intentin his evidence. Although he was no doubt frustrated by Dalvir's behaviour, especially the throwing of the pop can in his backseat, hewas not acting primarily out of anger. Mr. Ghuman was in a difficult and rapidly-evolving situation; it would have been unwise for himto simply abandon his client. (

c) The act committed is reasonable in the circumstances. This is the main issue in this trial, in my view, and one has to look at thecontext. Although reasonableness is evaluated objectively, one also has to factor Mr. Ghuman's subjective perceptions into the equation. Dalvir does suffer from a form of autism and historically has had difficulty controlling his anger. Even his sisters have been veryconcerned about his behaviour. [50] On January 15th, 2014, Dalvir's behaviour escalates because he could not take his pop in Mr. Ghuman's car. Dalvir then runsoff, though Mr. Ghuman is responsible for him.

I suppose one could second-guess bot Mr. Ghuman's rigid stance about no pop in thecar and the manner in which he interacted with Dalvir at that stage, but the court ought not to measure these judgment calls to a nicety. What is clear is that once Dalvir is running, there is simply no time for verbal de-escalation tactics. [51] What followed from there is of greater concern. I have no difficulty with Mr. Ghuman pursuing Dalvir in attempting to restrainhim. Dalvir is behaving erratically and he is on a traffic island. The push against the store wall is hard, but Dalvir is not that muchsmaller than Mr.

Ghuman and some force is required to restrain Dalvir. Even the trip kick may not be unreasonable, or at least the actionraises a reasonable doubt about an assault, because Mr. Ghuman is becoming exhausted and he has had trouble restraining his client. The trip kick is far from an ideal restraint measure, but again I am not measuring these actions to a nicety. [52] My chief concerns are what appear to be two strikes to Dalvir's mid-section. Mr. Ghuman's assertion that he was reaching in toget Dalvir's cell phone makes little sense when one observes the video. The reaching looks more like slow punching.

Moreover, theprotection of a cell phone has no connection to Dalvir's safety and protection. [53] Although I do not believe Mr. Ghuman's explanation about reaching in, the video and his evidence raise a reasonable doubtabout such actions being an assault. The blows are rather slow and appear to be designed to slow Dalvir down or subdue him at a timewhen both men are struggling greatly. This action appears to be the furthest thing from non-violent intervention, but again, I ought to notmeasure these actions to a nicety.

Dalvir is not easy to restrain, he has been running into an area of traffic, and then he resists all attemptsat restraint. Mr. Ghuman may not have been following the non-violent intervention policy correctly, in fact I am sure of that, but thatdoes not make his behaviour criminal. I note that the policy focuses on physical holds as opposed to what is to be done where a client iscontinually resisting and running away. I am not approving of what Mr. Ghuman did, in fact I think he obviously needs more training inthis area. However, I cannot say that Mr.

Ghuman clearly acted in an unreasonable way in these unique circumstances. His actions wentbeyond restraint but were not an assault when I look at all of the circumstances. I appreciate that other witnesses felt than an assault hadoccurred here, but they do not know the context. CONCLUSION [54] Could you please stand up, Mr. Ghuman?

[ 55 ] Taking into account the above analysis, I have a reasonable doubt that an assault occurred here. This was a close call, I can tell you, but you are acquitted of the charge. G.J. BROWN Provincial Court Judge