



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brar, 2020 ONCA 578

DATE: 20200911

DOCKET: M51582
    (C64824)

Pepall J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent
    (Responding Party)

and

Sukhchain Brar

Appellant
    (Applicant)

Alexander
    Ostroff, for the applicant

Rebecca De
    Filippis, for the responding party

Heard: August 21,
    2020 by video conference

REASONS
    FOR DECISION

INTRODUCTION

[1]

On December 8, 2017, the applicant, Sukhchain Brar, was convicted of the
    first-degree murder of his wife. He was sentenced to life imprisonment without
    parole for 25 years. His application for Legal Aid to fund his appeal was
    refused. He now applies for an order under s. 684(1) of the
Criminal Code, R.S.C.
    1985, c. C-46
for the appointment of counsel.

APPLICABLE LEGAL PRINCIPLES

[2]

Under s. 684(1), the court may appoint counsel if, in its
    opinion, it appears both desirable in the interests of justice that the
    applicant should have legal assistance and the applicant does not have
    sufficient means to obtain that assistance. The section is to be interpreted in
    a manner that is consistent with s. 7 of the
Canadian Charter of Rights and
    Freedoms
. The order is exceptional, and the applicant bears the burden of
    proof:
R. v. Staples
, 2016 ONCA 362 at paras. 33, 40.

(a)

Interests of Justice

[3]

To succeed in establishing that the appointment of counsel is desirable
    in the interests of justice, an applicant must show that:

i)

the appeal is arguable; and

ii)

it is necessary that counsel be appointed having
    regard to: (a) whether the applicant is capable of effectively advancing the
    grounds of appeal without a lawyer; and (b) whether the court will be able to
    properly decide the appeal without the assistance of defence counsel.

(i)

Is the Appeal Arguable?

[4]

At his trial before a judge and jury, the applicant pled guilty
    to manslaughter but not guilty to first-degree murder. He testified that the
    deceased had erratically confronted and attacked him while they were on a truck
    trip to Arkansas. He said she grabbed him around the throat and refused to let
    go, and told him that he was not a man, that Jinder was a man, and that the
    J tattoo on her chest stood for Jinder, who she said was the father of their
    youngest child. The applicant struck the deceased with a mallet, but he
    testified that he did not know where or how many times. He then set fire to the
    truck. The deceaseds cause of death was a combination of blunt force injuries
    and smoke inhalation.

[5]

The defence argued at trial that the deceased provoked the applicant by
    choking him while disclosing her affair and saying that their child was a
    product of the affair.

[6]

The applicant proposes to advance various grounds of appeal. He submits
    that the trial judge erred in his charge to the jury on the indictable offence
    component of provocation and that, furthermore, the amended provocation
    provision in s. 232(2) of the
Criminal Code
is constitutionally invalid.

[7]

These do not appear to be strong arguments given that the jury found
    that the murder was planned and deliberate. Implicitly, the jury found that the
    applicant had formed an intention to kill before he and the deceased left on
    their trip. As the Crown observes, a planned and deliberate murder is the
    antithesis of a provoked one. As a result, even assuming that the trial judge
    erred as the applicant argues, the Crown may well successfully invoke the
    curative proviso. On this record, it is difficult to see how any mistake
    relating to provocation would have affected the verdict. I also note that the
    constitutional issue was not raised at trial, and it is not clear that this
    would be an appropriate case for this court to entertain the issue for the
    first time on appeal.

[8]

The applicant also proposes to argue that first-degree murder was an
    unreasonable verdict. However, I agree with the Crown that on the available
    record, this was a strong planning and deliberation case and the verdict
    appears to be one which a properly instructed jury, acting judicially, could
    reasonably have rendered. There was evidence of motive, namely, that the
    marriage was breaking up, the deceased was having an affair that the applicant
    knew about, and he may have been upset about the deceased moving to India.
    Further, he had made a threat, at a minimum, of reputational harm. There was
    also evidence capable of supporting an inference that the murder was planned,
    including that the applicant had arranged for the deceaseds will to designate him
    as her beneficiary shortly before their trip to Arkansas, and that a mallet and
    such significant quantities of gasoline were not usually in the truck.

[9]

Having said that, in my view, the applicant has an arguable case with
    respect to his other ground of appeal. He intends to submit that the trial judge
    erred in his after-the-fact conduct instructions. The trial judge did not have
    the benefit of this courts decision in
R. v. McGregor
, 2019 ONCA 307.
    Arguably, he did not clearly delineate the evidence to which the instruction
    applied; did not clearly explain the permitted and prohibited uses of the
    after-the-fact conduct evidence, including which pieces of it, if any, were
    admissible to prove
mens rea
and planning and deliberation; and failed
    to provide an instruction on the need to consider and reject alternative
    explanations before using evidence of after-the-fact conduct to support
    inferences of guilt.

[10]

In
    conclusion, while I consider some of the grounds of appeal to be unpersuasive,
    at least one is arguable. I am not prepared to conclude that the appeal is
    devoid of merit. This part of the test has been met.

(ii)

Is the Appointment Necessary?

[11]

This
    engages a consideration of the complexities of the arguments and the
    applicants ability to make arguments in support of the grounds of appeal.

[12]

The Crown concedes that the applicant cannot
    advance his grounds of appeal on his own. The conviction and the sentence are
    extremely serious. The applicant lacks legal training, is not fluent in
    English, and required an interpreter at trial. The issues raised are complex. I
    conclude that he would be unable to effectively advance his grounds of appeal
    without a lawyer. He has met this element of the test.

(b)

Insufficient Financial Means

[13]

The applicants evidence is that he has no
    income, no savings, and no assets. At trial, he paid $324,750 in legal fees.
    His family will not lend him more money. Some family members are unable to do
    so, while others have already lent him funds to assist with legal fees and are
    unable to assist any further in the absence of any prospect of repayment. He
    has been incarcerated since his arrest in 2016 and hence is not working.

[14]

He was denied funding from Legal Aid on the
    basis of financial ineligibility arising from his treatment of the proceeds of
    sale from the matrimonial home. He caused half of the proceeds of sale from the
    matrimonial home to be paid into court in trust for his three children and used
    the remainder for his legal fees for his trial counsel. The Childrens Aid
    Society of Peel had brought an application seeking an order that one-half of
    the net proceeds of sale be paid into court in trust for the three children.
    The day before the motion was to be heard, the applicant signed a direction
    instructing his real estate lawyer to pay the funds into court. Legal Aid
    denied funding on the basis that the payment was not made pursuant to a court
    order and the applicant had failed to give priority to the payment of his legal
    fees.

[15]

Applicants for a s. 684 order must be clear and
    transparent in disclosing their financial circumstances:
R. v. Staples
,
    at para. 40. The Crown complains that this applicant was not. In particular,
    counsel asserts that he failed to explain why he transferred half of the house
    proceeds in trust for his children. Although the applicants disclosure was not
    exemplary, I do not find this argument to be persuasive.

[16]

The three children were 15, 11, and 6 when their
    mother died in 2016, and the funds were paid into court in July 2017. They
    reside with their maternal grandmother, who is their guardian. It is clear that
    the request for the applicant to pay half of the matrimonial home proceeds into
    court emanated from the Childrens Aid Society, which was seeking security for
    the support of the children. I do not accept the Crowns argument that in
    paying the funds into court in trust for his three motherless children, one of
    whom was under the age of ten, he wrongfully failed to prioritize preserving
    funds for his legal defence.

CONCLUSION

[17]

In my view, the applicant has met his onus. It
    is desirable in the interests of justice that he be represented. I am also
    satisfied that he has insufficient means to obtain such representation.
    Accordingly, his s. 684 application is granted. As requested, I am appointing
    James Lockyer of Lockyer Campbell Posner to act as his counsel.

S.E.
    Pepall J.A.


