



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Randhawa
,









2019 BCCA 15




Date:  20190116

Docket:  CA45077

Between:

Regina

Respondent

And

Gursher Singh
Randhawa

Appellant




Before:



The Honourable Mr. Justice Tysoe

The Honourable Mr. Justice Harris

The Honourable Madam Justice Griffin




On appeal from:  An
order of the Supreme Court of British Columbia,
dated October 13, 2017 (
R. v. Randhawa
, Vancouver Docket No. 27071).




Counsel for the Appellant:



P.J. Wilson, Q.C.





Counsel for the Respondent:



M.A. Street





Place and Date of Hearing:



Vancouver, British
  Columbia

December 14, 2018





Place and Date of Judgment:



Vancouver, British
  Columbia

January 16, 2019









Written Reasons by:





The Honourable Madam Justice Griffin





Concurred in by:





The Honourable Mr. Justice Tysoe

The Honourable Mr. Justice Harris








Summary:

The appellant challenges his
conviction for aggravated assault and possession of a weapon for a dangerous
purpose. He argues the trial judge erred in instructing the jury on
self-defence, and says that the charge properly should have required juror
unanimity on each element of the defence of self-defence. Held: Appeal
dismissed. The Crowns burden of proof in disproving the defence of
self-defence only requires it to prove that one of the three elements of the
defence does not apply. The trial judge properly instructed the jury that unanimity
was required only on the ultimate conclusion that the defence did not apply. In
any event, a functional approach demonstrates that the instruction was clear
that on the facts of this case, jury unanimity was required to determine that
the defence failed on its third element, whether his actions were reasonable in
the circumstances.

Reasons for Judgment of the
Honourable Madam Justice Griffin:

Introduction

[1]

The appellant, Mr. Randhawa, was involved in a bar brawl on May 25,
2014, that led to him brandishing a knife and stabbing six people.

[2]

On October 13, 2017, a jury found Mr. Randhawa guilty of five
counts of aggravated assault contrary to s. 268(2) of the
Criminal Code
,
R.S.C. 1985, c. C-46, and one count of possession of a weapon for a
dangerous purpose contrary to s. 88(1) of the
Code
.

[3]

The sixth person stabbed by Mr. Randhawa did not testify and Mr. Randhawa
was acquitted in relation to that charge.

[4]

At trial, Mr. Randhawa did not contest the underlying conduct establishing
the elements of the offences. Instead, he relied on the defence of self-defence.

[5]

Mr. Randhawa challenges his conviction on the basis that the trial
judge erred in instructing the jury on self-defence.

[6]

The portion of the trial judges charge at issue was based on model jury
instructions produced by the Canadian Judicial Council. Those instructions
treat the three constituent elements of the defence of self-defence as not
requiring juror unanimity, so long as the jury is unanimous in agreeing that
the Crown has proven at least one of the three required elements of the defence
does not apply and that the defence has therefore failed. The Crown submits
that this is a proper charge.

[7]

Mr. Randhawa argues that the charge properly should have required
juror unanimity on which element of the defence of self-defence the Crown had
proven did not apply.

Background

[8]

The bar brawl began after Mr. Randhawa attempted to take a
photograph of two women on the dance floor and a man was in his way. They
argued and a fight ensued, with a number of men joining in.

[9]

The room was dark with flashing strobe lights and loud music. There were
inconsistencies in the witnesses evidence at trial as to what exactly
happened. There was evidence that Mr. Randhawa was in the fight, ended up
at the bottom of a pile of men, fought his way up and pulled out a knife waving
it around him, slashing or stabbing people. Mr. Randhawa was seen the next
day with black eyes, a bruised, puffy and scratched face, and walking with a
limp.

[10]

Mr. Randhawa testified that he felt that there were bodies swarming
around him, he was punched in the face and upper body, and bodies were hurled
on top of him. His knee was bent awkwardly. He felt there were ten to twelve
hands punching him during parts of the fight, five or six men beating him. He
testified in direct as follows:

Q         Various people said that you used a knife; is
that true?

A          Yes, sir. I pulled a knife out of my pocket
and started swinging at people.

Q         When did you do that?

A          After Id already been on the ground once.
The beating wasnt stopping. People were still trying to get at me, while I was
on the ground there, and I figured I had to -- I had to use one, just to get
out of there.

Q         Why did you pull the knife out?

A          To be honest, I was scared. I was getting
beaten up really badly. I was outnumbered by, like I said, a huge, huge amount
of people. And I just really wanted to get out of there. Like, I didnt know
what was going to happen to me.

Q         Why were you scared?

A          To
me, at the time, it felt a little bit confusing. Like, I didnt understand why
there was such a severe sort of fight happening in that situation. There was --
like, you would think after you hit the ground once people would stop. Like,
just some punches were exchanged, but you

would think the fight would end,
and it wasnt. And I was a brown guy in a club with five or six other brown
guys. I dont know if any of youve been to a nightclub but the script sort of
-- you know, Ive seen it before where, you know, people get jumped and stuff. You
hear stories about brain damage and all sorts of things like that. And for all
I knew these guys were gangsters. I didnt know what they were.

Q         And why did you strike out with a knife?

A          I just didnt see
any other way of getting out of the situation. You know, fighting back with punches
wasnt getting me anywhere and I just sort of wanted to get people away from
me. I really wasnt trying to hurt anyone. Like, I didnt try to hit anyone in
the face, or anything like that. I just wanted to get out of there.

[11]

Mr. Randhawa was 26 years old at the time of the offence. He was
just under six feet tall and weighed approximately 180 pounds.

[12]

Mr. Randhawa was cross-examined about his recollection of events
and the sequence of the fight, as well as the manner in which he pulled the
knife out of his pocket, opened it and swung it around him. He admitted to stabbing
one of the victims in the stomach and stabbing a bouncer in the arm. He
admitted to inflicting serious wounds on six people that night.

[13]

In addition to witness testimony about the fight, the jury was shown videotape
of the events towards the end of the fight.

Submissions at trial

[14]

Both the defence and Crown counsel agreed that the issue at trial was
whether the Crown had proven beyond a reasonable doubt that Mr. Randhawa
was not acting in self-defence.

[15]

The parties agreed that s. 34 of the
Code
governed the
defence. It provides:

34  (1)   A person is not
guilty of an offence if

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

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

(c)   the act
committed is reasonable in the circumstances.

(2)

In determining whether the act committed is
reasonable in the circumstances, the court shall consider the relevant
circumstances of the person, the other parties and the act, including, but not
limited to, the following factors:

(a)   the nature of the force or
threat;

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

(c)   the person's role in the
incident;

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

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

(f)    the nature, duration and
history of any relationship between the parties to the incident, including any
prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or
communication between the parties to the incident;

(g)   the nature and
proportionality of the persons response to the use or threat of force; and

(h)   whether the act committed was in response to a use or
threat of force that the person knew was lawful.

[16]

In closing statements to the jury, both the defence and the Crown
emphasized the jury should not have much difficulty determining the first two
questions required by s. 34 of the
Code
. Instead, their focus would
be on the third question: was Mr. Randhawas conduct reasonable in the
circumstances of the case? The defence described this to the jury as the
critical question; the Crown described it as the focus [of their] entire
deliberation and the nub of the case.

Jury Charge

[17]

The trial judge provided the jury with a
written charge, which he then read out to them. He supplemented the written
charge with an oral review of the evidence.

[18]

The trial judge reviewed the basic
information required for most criminal juries, including the importance of
impartiality, the presumption of innocence and the burden of proof on the Crown
to prove guilt beyond a reasonable doubt.

[19]

The trial judge outlined the essential
elements of the offences and advised the jury that the position of the Crown
and defence was that these were not seriously in dispute. He instructed the
jury that he expected they would have little difficulty in finding that the
Crown had established the essential elements, given Mr. Randhawas acknowledgement
that he stabbed each of the complainants. The trial judge instructed the jury
that the central issue for you to decide is whether Mr. Randhawa acted in
self defence (at para. 69).

[20]

The trial judge explained how the jury
should approach the issue of self-defence as follows:

[73]      Mr. Randhawa
does not have to prove that he acted in self defence. It is for the Crown to
prove beyond a reasonable doubt that he did not.

[74]      To decide whether
the Crown has proved beyond a reasonable doubt that Mr. Randhawa did not
act in self defence, you will have to consider three questions:

1.         Has
the Crown proved beyond a reasonable doubt that Mr. Randhawa did not
believe on reasonable grounds that force was being used against him?

2.         Has
the Crown proved beyond a reasonable doubt that Mr. Randhawa did not
commit the act for the purpose of defending or protecting himself from the use
of force?

3.         Has
the Crown proved beyond a reasonable doubt that Mr. Randhawas act was not
reasonable in the circumstances?

[75]
If you find that
the answer to one or more of these questions is yes, the defence of self
defence fails. It does not matter if you do not all agree on which of these
questions is answered yes.

[76]      If you all agree
that the answer to all three questions is no, the conditions for self defence
are present and you must acquit Mr. Randhawa.

[Emphasis
added.]

[21]

Mr. Randhawa submits the trial judge
erred in the above para. 75 of the charge.

[22]

At paras. 80

93 of the charge, the trial judge reviewed in detail
the evidence on each of these three questions relating to self-defence.

[23]

In describing the evidence in relation to
the first two questions, the trial judge told the jury that, in the
circumstances, they would have little difficulty in concluding that the answer was
no.

[24]

In respect of the third question, the trial
judge described the jurys task this way:

Has the Crown
proved beyond a reasonable doubt that Mr. Randhawas act was not
reasonable in the circumstances?

[90]      This question relates to Mr. Randhawas
conduct and requires you to decide whether that conduct was reasonable in the
circumstances as Mr. Randhawa knew or believed them to be.

[91]      Anyone who defends or protects himself or another
person cannot be expected to know exactly how to respond or to deal with the
situation or to know how much force to use to achieve his purpose. What is
reasonable may include several alternatives. This issue here is not whether Mr. Randhawa
believed on reasonable grounds that he had no other course of action available
to him, but rather whether what Mr. Randhawa did was a reasonable thing to
do in the circumstances as he knew or reasonably believed them to be.

[92]      In determining whether the act committed was
reasonable in the circumstances, you must consider all of the circumstances,
including but not limited to:

·

The nature of the force or threat;

·

The extent to which the use of force was imminent and whether
there were other means available to respond to the use or potential use of
force;

·

Mr. Randhawas role in the incident;

·

Whether any of the other people involved used or threatened to
use a weapon;

·

The size, age, gender and physical capabilities of those involved
in the incident;

·

The nature, duration and history of any relationship among the
people involved in the incident, including any prior use or threat of force,
and the nature of that force or threat;

·

Any history of interaction or communication among the people
involved in the incident;

·

The nature and proportionality of Mr. Randhawas response to
the use or threat of force; and

·

Whether Mr. Randhawas act was in response to a use of
threat of force that Mr. Randhawa knew was lawful.

[93]      Both Mr. Wilson on
behalf of Mr. Randhawa and Mr. MacFarlane for the Crown submitted
that this is the critical issue that you will have to decide. Was Mr. Randhawas
use of a knife reasonable in the circumstances? You have heard evidence from a
number of people about what happened at the bar in the late evening of May 24
and the early morning of May 25, 2014. As both counsel noted, no clear story
emerges which may not be surprising given the setting, the conditions in the
bar, the fact that most of the people involved had been drinking and the
passage of time. It is for you to decide based on all of the evidence that you
heard, whether Mr. Randhawa acted reasonably in the circumstances. Use
your common sense, life experience and knowledge of human nature in your
assessment of the evidence to answer this question.

[25]

After he had just explained, as set out
above, that the critical issue for resolution would be whether Mr. Randhawas
use of a knife [was] reasonable in the circumstances, the trial judge then
reviewed the positions of the parties for the jury. In so doing, he focussed on
each partys position regarding this third component of self-defence.

[26]

The trial judge also explained the
concept of jury unanimity:

[
100]    A verdict, whether one of guilty or not
guilty, is the unanimous decision of the jury. To return a verdict requires
that all of you agree on your verdict. While your verdict on the offences with
which Mr. Randhawa has been charged must be unanimous, your route to the
verdict need not be. You could all be satisfied of Mr. Randhawas guilt
beyond a reasonable doubt even though individually you have different views of
the evidence. Similarly, you could all have a reasonable doubt about Mr. Randhawas
guilt, but not agree why. It matters not, provided that your verdicts on the
offences of assault with a weapon and aggravated assault are unanimous.



[103]    If you cannot reach a
unanimous verdict, you should notify the sheriff in writing. He or she will
bring me your message.



[107]    Any verdict you reach must be unanimous. Unless you
are unanimous in finding Mr. Randhawa guilty, you cannot convict him. Nor
can you return a verdict of not guilty unless you agree unanimously that he is
not guilty.

[108]    Each of you must make
your own decision whether Mr. Randhawa is guilty or not guilty of each
count. You should reach your decision only after consideration of the evidence
with your fellow jurors. Your duty is to try to reach a unanimous verdict.
However, you are entitled to disagree if you cannot reach a unanimous verdict
after a sincere consideration of the facts and the law and an honest discussion
with your fellow jurors.

[27]

After the judge finished delivering the charge, the defence objected to para. 75
of the charge, submitting that unanimity was required with respect to a yes
answer on the three components of self-defence because these were elements of
the offence. The Crown disagreed. The trial judge declined to make a correction
to his charge in this regard. After discussion with the parties, the trial judge
did make some additional comments to the jury on other matters.

[28]

During deliberations, the jury sent a question to the court regarding
the correct approach to determine whether Mr. Randhawas conduct was
reasonable. The question was:

When we the jury are determining
whether or not Mr. Randhawas conduct was reasonable in the circumstances,
is that reasonableness based on our thoughts now, looking at the circumstances,
or as Mr. Randhawa knew or believed them to be at the time?

[29]

After hearing submissions from counsel, the trial judge provided the
jury with a response to the question. The response is not challenged on this
appeal, and included the following explanation:

Reasonableness
is an objective standard. It requires you as the jury and the judges of fact to
consider Mr. Randhawas actions through the eyes of the reasonable person.
Now one definition of a reasonable person is as follows.



The reasonable
person is a person of the same age, gender, physical capabilities as well as
past interactions and communications with the complainants as Mr. Randhawa.
A reasonable person cannot be expected to know exactly what course of conduct
or how much force is necessary in self-defence.

While reasonableness is an objective
standard, Mr. Randhawas subjective belief about the circumstances facing
him is a relevant consideration, but it is not determinative. That subjective
belief must be based on reasonable grounds. In other words, Mr. Randhawas
understanding or belief of the circumstances must be reasonable.

Issue on Appeal

[30]

Mr. Randhawa agrees that the only real issue for the jury to decide
in this case was the third question in the defence of self-defence: whether the
Crown had proven that the use of force was not reasonable. Mr. Randhawa
submits that the trial judge needed to instruct the jury of the need for
unanimity in answering that question.

[31]

Mr. Randhawa submits that the instruction that told the jury [i]t
does not matter if you do not all agree on which of these questions is answered
yes (at para. 75), opened up the possibility that the jury could have
rejected the defence of self-defence even though they were not unanimous about
whether the Crown proved that Mr. Randhawas conduct was not reasonable.

[32]

The Crown submits that so long as it proved to each juror that one
element of the defence of self-defence did not apply, such that all members of
the jury agreed the defence did not apply, the jury did not need to be
unanimous on which question they answered yes.

Analysis

[33]

For ease of reference I will repeat the
criteria in s. 34(1) of the
Code
:

34  (1) A person is not guilty of an offence if

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

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

(c)  the act committed is reasonable in the circumstances.

[34]

Mr. Randhawa accepts that once there is an air of reality to the defence,
the Crown need only prove beyond a reasonable doubt one of the three elements
of self-defence set out in s. 34(1) of the
Code
does not apply:
R. v. Borden,
2017 NSCA 45 at para. 91;
R. v. Cormier
,
2017 NBCA 10 at para. 40. This is because all three
criteria in s. 34(1) must be present for the defence to be available.

[35]

Mr. Randhawa argues that it flows from this premise, logically,
that the jury must be unanimous in concluding that the Crown has disproved one
of the three elements of the defence. More precisely, Mr. Randhawa submits
that the jury must be unanimous on which of the three elements of the defence the
Crown has disproved.

[36]

Mr. Randhawa submits that if the jury was not unanimous on the
third element of self-defence, which was the only real issue for the jury to
decide in this case, then he was entitled to an acquittal.

[37]

There is little authority on this issue.

[38]

In
R.
v. Dagenais,
2012 SKCA 103, the
Saskatchewan Court of Appeal considered the argument that the jury should have
a unanimous view about each element of the defence to run contrary to common
sense:

[32
]      The final argument advanced
by Mr. Dagenais concerns the defence of self-defence. He takes issue with
the trial judge's instructions to the jury to the effect that jurors were not
required to be unanimous in their individual assessments of the elements of
self-defence so long as they were unanimous with respect to the bottom-line,
i.e.
as long as they were unanimous about whether or not the defence had been made
out. Mr. Dagenais says this was wrong in principle. In his view, the trial
judge should have instructed the jurors that they were required to have a
unanimous view about each element of the defence.

[33
]      We are not prepared to accept
this argument. Counsel for Mr. Dagenais acknowledges that he has no legal
authority for it. We are not inclined to break new ground on this front.

[34]
Simply
put, Mr. Dagenais submission on this point runs counter to common sense
in that, if accepted, it could result in an accused person being acquitted even
though each of the jurors agreed that he or she had no defence. Further, it
also runs counter to the basic principle, reflected in
cases such as
R. v. Thatcher
,
[1987] 1 S.C.R.
652
, to the effect that the members of a jury are required to agree
only on the ultimate verdict
, not on the precise path to that verdict.

[39]

The Appeals Court of Massachusetts recently
reached a similar conclusion, noting that, it is the absence of
self-defense, and not the theory thereof, that is subject to the reasonable
doubt standard:
Commonwealth
v. Humphries,
91 Mass. App. Ct. 1101
(2017), citing
Commonwealth
v. Rodriguez,
370 Mass. 684 at 689
(Sup. Ct. 1976). In
Humphries,
the court held there was no requirement
that the jury be unanimous as to how the absence of self-defence was proved.

[40]

Case law out of the Court of Appeals of Texas is
consistent with this approach. That court described the defence of self-defence
as analogous to the manner and means by which the specific
actus reus
element [of the offence charged] was committed and on which the jury is not
required to unanimously agree:
Harrod v. State
, 203 S.W.3d 622 at 627 (Tex.
App. Ct., 5th Dist. 2006).

[41]

Mr. Randhawa submits that this Court should not follow
Dagenais
as it misconstrues the case it relies on,
R. v.Thatcher
,
[1987] 1 S.C.R. 652, and
is incorrect.

[42]

Mr. Randhawa submits that
Thatcher
merely stands for the
proposition that jurors need not be unanimous on the factual pathway each
relies on to reach a conclusion that the Crown has proven or disproven an
element of an offence or defence, respectively. However, they still need to be
unanimous that the Crown has proven an essential element of an offence, or
negated an essential element of a defence, beyond a reasonable doubt.

[43]

The trouble I have with Mr. Randhawas argument is that it equates the
application of the Crowns burden of proof in disproving the defence of
self-defence with the Crowns burden of proof on elements of an offence. The
application of these burdens of proof are not analogous. In order to meet its overall
burden of proof, the Crown has to satisfy the trier of fact that it has proved
each element of an offence beyond a reasonable doubt. In contrast, the Crown only
has to satisfy the trier of fact that it has disproved one element of the
defence of self-defence beyond a reasonable doubt.

[44]


As such, juror unanimity is required only on
the ultimate conclusion: whether the Crown proved beyond a reasonable doubt
that the accused did not act in self-defence. This is precisely how the trial
judge instructed the jury in this case.

[45]

I agree with the logic identified in
Dagenais
. If this Court were
to accept Mr. Randhawas argument, it could lead to the strange result
that an accused would be acquitted because the Crown failed to disprove the
defence of self-defence, even though each juror unanimously agreed, but in
their own ways, that they were satisfied beyond a reasonable doubt that the
defence did not apply.

[46]

Regardless of the above analysis, I am also satisfied that in the
present case there could be no question in the jurors minds that the only issue
for them to decide was the third element of self-defence. Taking a functional
approach to the whole of the jury instruction, the instruction made it clear
that: there was no basis for concluding the Crown had established that the
defence failed on either of its first two elements; the Crown had to establish
that the defence failed on its third element; and jury unanimity was required
to determine that the defence failed on its third element.

[47]

Additionally, the jurys question to the court made it clear that the
third element of the defence was the jurys focus. The trial judges response
was that reasonableness required you as the jury  to consider Mr. Randhawas
actions through the eyes of the reasonable person. The jury could not be
confused that the one issue they had to decide was, on the facts of this case, something
that they had to all agree on: that Mr. Randhawas conduct was not
reasonable in the circumstances.

Conclusion

[48]

I would therefore dismiss the appeal.

The Honourable Madam Justice Griffin

I AGREE:

The
Honourable Mr. Justice Tysoe

I AGREE:

The Honourable Mr. Justice Harris


