Sukhdeep Singh Sandhu written reasons by Judge Patrick Chen

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

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[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.

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[4] I have heard evidence from the Accused and from the following defence

witnesses:

Forensic psychiatrist Dr. Stanley Semrau, the Accuseds 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 Accuseds 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

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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 longshoremens 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 Accuseds 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.

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[10] Prior to driving to his cousins 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 cousins house, parked his car and left for the

banquet hall driving his cousins Honda, picking up his cousins 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. Sidhus 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. Sidhus head from about a foot away. The gun

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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. Sidhus 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 Ill 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 Bunwaits

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. Sidhus 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.

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[20] Another bullet ricocheted into Inderjit Gills neck as he turned towards the

sound of the shots fired. That bullet entered the left side of Mr. Gills 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 Dhariwals 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

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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 wont 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 52 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.

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[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 Mushis 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

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hands up at all times. The Accuseds 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 drivers

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 drivers

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 drivers seat. A pair of gloves and a running shoe were found

outside of the drivers 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 ACCUSEDS 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.

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[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. Hes 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 Accuseds actions that night.

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HISTORICAL BACKGROUND RELEVANT TO THE ACCUSEDS MENTAL STATE

[38] The Accuseds 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 Accuseds 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 Accuseds odd behaviours were

caused by his heavy use of marijuana which he used to medicate his Crohns

disease (an inflammation affecting the bowels). Manny Sandhu testified that the

Accused ceased using marijuana in 2011 or 2012.

[40] However, according to Manny Sandhus evidence, despite ceasing his use of

marijuana, the Accuseds 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 Crohns disease

was having lunch with them and stated no, I cant eat that, I have Crohns 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

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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 familys concern about the Accuseds 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 theyd 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 Accuseds 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 Crohns

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 Accuseds

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 Sandhus 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

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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 couldnt 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 Crohns 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 brothers symptoms with her cousin Sunny, who was a

psychiatric nurse. Sunny suggested that the Accused could be suffering from

psychosis.

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[49] Mandeep, Sunny and Sunnys 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 Accuseds situation. They also wanted to

know how normal or abnormal the Accuseds 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 peoples 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 nave. 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

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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 mothers 2 sisters suffer from

depression and are receiving medication for it.

[54] Ramin Sandhu, the Accuseds sister-in-law, has been married to the

Accuseds 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 Accuseds behaviour changing

during his teens, particularly after he contracted his Crohns 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 Accuseds 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

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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 Sandhus 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 Accuseds 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 Accuseds 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 Accuseds 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 20s, especially after he contracted Crohns

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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 Gurdeeps 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 wifes 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

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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 longshoremens 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 Accuseds 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. Sidhus voice - saying that Mr.

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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 Accuseds 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

Daves 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 Crohns disease and was constantly making fun of him because of it. He

testified that was embarrassed by what he perceived as Mr. Sidhus 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.

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[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 Accuseds 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.

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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 Accuseds 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.

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[76] In addition, on Dr. Robertsons instructions, the Accused had also been

injected, against his will, with medications to stabilize his mood.

[77] When asked in cross-examination whether the Accuseds 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 Accuseds

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

Accuseds family members and with staff at the Forensic Psychiatric Hospital

(FPH).

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[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 Crohns disease. The voices told the

Accused that Ricky Sidhu had a gun hidden on him. Those voices and Ricky

Sidhus 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. Laxs 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. Laxs report, he stated:

If the Court finds that events occurred as indicated by Mr. Sandhus 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.

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[83] However, it is clear from both his testimony and his report that Dr. Lax was

troubled by inconsistencies in the Accuseds reporting to him, by inconsistencies

between the Accuseds reporting and the evidence of other witnesses, and by

inconsistencies between the Accuseds 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

Accuseds 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. Laxs 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 Accuseds 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:

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If the Court finds that Mr. Bunwaits 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. Sidhus 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. Bunwaits statement to police.

[86] I find that throughout Dr. Laxs 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 dont know. I dont keep a diary. A similar or even identical response to this question happened repeatedly over multiple interviews.

[88] Dr. Laxs conclusions at paragraphs 151 and 152 of his report, under the

heading Summary, Opinion and Recommendations read as follows:

The evidence from Mr. Sandhus 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

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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

Accuseds general medical records, the police disclosure file and 32 character

reference letters. He also conducted interviews of the Accuseds 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

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that the Accused was suffering from paranoia to the extent that he was concerned

with his fitness to stand trial.

[92] Notwithstanding Dr. Semraus assessment that the Accused was still actively

mentally ill during the 2nd and 3rd 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 persons behaviour or speech refers to them when it doesnt.

[95] With respect to delusional beliefs, Dr. Semrau noted the following

indications:

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(a) The Accuseds long-held but irrational belief that his Crohns disease was caused by Ricky Sidhu poisoning him by slipping

mercury into his drink.

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

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

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

(e) The Accuseds belief that someone had broken his grandmothers legs.

[96] According to Dr. Semraus evidence, delusions, and peoples 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

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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 its 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 voices instruction

should be followed, or not.

[98] With respect to hallucinations, Dr. Semrau noted the Accuseds 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, someones in the closet, or someone broke their

leg, giving the Accused warnings and information about things. According to the

Accuseds report to Dr. Semrau, the voices wouldnt 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 Accuseds 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

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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. Sandhus 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. Sandhus mother has been recently hospitalized with symptoms which may be similar.

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For the most part the onset of symptoms of paranoid schizophrenia is age-related, typically occurring during teenage years or the early 20s. 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. Semraus 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. Sandhus 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

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improves sufficiently to continue treatment under less restrictive circumstances.

[104] In Dr. Semraus 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. Semraus opinion, the other shooting victims were not intended victims

in the Accuseds mind but were persons who ended up getting in the way of the

Accuseds 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. Semraus opinion was that the Accused understood that he was using a

gun that would be likely to harm people. However the Accuseds acts - in terms of

their purpose - were not properly appreciated by him. Dr. Semraus 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.

Semraus opinion, the Accuseds 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.

Semraus opinion, the Accused would not have been able to turn his mind to their

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moral wrongfulness and was therefore unable to know that his actions were wrong.

Dr. Semraus 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. Semraus 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

Accuseds 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

Accuseds 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.

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[110] According to Dr. Semraus 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 didnt simply stay home, the Accused said he didnt know except he wanted

to do his cousin Dave a favour by being his designated driver. Dr. Semrau then

asked why he didnt just stay in the car when they arrived at the banquet hall

parking lot. The Accused again said he didnt 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. Semraus 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.

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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. Semraus 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 Accuseds 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. Semraus

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.

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[117] I have considered the Accuseds 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. He brought 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 Accuseds 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 to fire the gun 2 or 3 more times with the gun pointed at Mr. Sidhus

head when it misfired or jammed.

[119] I have considered the Accuseds post-offence conduct. He fled the scene in

his cousin Davinder Sandhus Honda. He stopped by the side of the road and,

when Constable Mushi activated his emergency lights and sirens, he drove off

again, turning into the farmhouse driveway after about 30 or 40 meters. Despite

Constable Mushis warning to him to keep his hands in the air, the Accused threw

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, [1951] B.C.J. No. 152,

where OHalloran, J.A. stated at paragraph 11:

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The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal

demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency

with the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded,

experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful

exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly 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 on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind.

[122] I have found these comments of OHalloran, J.A. to be very useful on many

occasions in the past. However, it is my view that they are not as helpful in

situations where the Court is considering the evidence of witnesses who are

suffering from active mental illness characterized by disorganized thinking, paranoid

delusions and hallucinations. The usual inferences that one might draw from

inconsistency of such evidence with the probabilities that the practical and informed

person would readily recognize as reasonable in that place 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 a finding that he was not criminally

responsible. Crown submits that the court should not accept the truth of the

Accuseds evidence as to what 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 his behaviour. Dr. Semraus opinion

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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 hypothesis that the

Accuseds actions were motivated by paranoid schizophrenia symptoms resulting in

an inability to rationally appreciate the nature 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 on inside the Accuseds mind,

when he was shooting his gun that night at the banquet hall. Even if the Accused

had paranoid delusions that he was being persecuted by Mr. Sidhu, if he used

those delusions as justification for shooting Mr. Sidhu, whether out of revenge or as

a means of stopping the persecution, or to pre-empt future attacks, as long as he

appreciated the nature and quality of his acts and knew that 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 this alternative hypothesis could have

been in the Accuseds mind at the time of the shootings, there is no factual or

evidentiary basis for that view 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 schizophrenia symptoms that included delusions,

disorganized thoughts, ideas of reference and especially auditory hallucinations -

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voices that he found to 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 shoot him 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. Semraus opinion, the fact that the

Accused would not confirm that voices told him to shoot Mr. Sidhu, gave more

credence to the information he was providing. Dr. Semrau testified that in past

cases he had been involved in where hed found fabrication, feigning of mental

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 had no 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 of alternative hypotheses, i.e.

alternative explanations for the Accuseds 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 virtual strangers to each other. There was

no recent history of any conflict, animus or hostility between them or of any serious

conflict of interests. 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 were longshoremen or their friends and

family. Many of them knew the Accused, who is also a longshoreman, from work.

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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 Accuseds evidence and in his

reporting to the experts. I have considered the Accuseds 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 Accuseds 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.

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[134] Notwithstanding the frailties of that evidence noted above, the only direct

evidence as to what was going on inside the Accuseds 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 Accuseds 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 Accuseds 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

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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 2nd and 3rd 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.

Semraus first interview, in terms of the Accuseds 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 Accuseds 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 2nd and 3rd

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. Semraus review of collateral information to be more thorough,

especially that obtained from the Accuseds family members about the Accuseds

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

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be important to forming reliable opinions about the Accuseds 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 Accuseds 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 Accuseds acts on the

night of the offenses. It is therefore not clear, from Dr. Laxs opinion, that the

NCRMD explanation for the Accuseds 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 Accuseds 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.

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[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

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IN THE PROVINCIAL COURT OF BRITISH COLUMBIAREGINAv.SUKHDEEP SINGH SANDHUREASONS FOR JUDGMENTOF THEHONOURABLE JUDGE PATRICK CHENCounsel for the Crown: Mr. Kerr ClarkCounsel for the Defendant: Mr. Danny MarkovitzPlace of Hearing: Richmond , B.C.Dates of Hearing: April 7, 8, 10, 11, 14, 15, 16, 17, May 1 & 15, 2014Date of Judgment: July 9, 2014

Documents

Sukhdeep Singh Sandhu written reasons by Judge Patrick Chen