R. v. Grewall, Grewall and Toor

2000 BCSC 1704 Citation: R. v. Grewall, Grewall and Toor Date: 20001205 2000 BCSC 1704 Docket: X052493 Registry: NEW WESTMINSTER IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: HER MAJESTY THE QUEEN AND: AJIT SINGH GREWALL, SUKHJIT SINGH GREWALL AND SANDEEP SINGH TOOR REASONS FOR SENTENCE OF SANDEEP (SONNY) SINGH TOOR OF THE HONOURABLE MR. JUSTICE ROMILLY Counsel for the Crown: Sean Madigan Q.C. Winston Sayson Counsel for the Accused, Ajit Singh Grewall: Michael Tammen Jeffrey T.J. Campbell Counsel for the Accused, Sukhjit Singh Grewall: David Gibbons, Q.C. Richard Fowler Counsel for the Accused, Sandeep Singh Toor: Adrian F. Brooks Mark R. Jette Date and Place of Sentence: December 4, 2000 NEW WESTMINSTER, BC [1] Ajit Singh Grewall, Sukhjit Singh Grewall and Sandeep Singh Toor were charged that: Count 1 Ajit Singh Grewall, Sukhjit Singh Grewall and Sandeep Singh Toor, on or about the 19th day of April, 1998, at or near Langley, in the Province of British Columbia, did commit first degree murder of Baljit Kaur Grewall, contrary to Section 235(1) of the Criminal Code. Count 2 Ajit Singh Grewall, Sukhjit Singh Grewall and Sandeep Singh Toor, between the 23rd day of December, 1997 and the 20th day of April, 1998, at or near Langley, Surrey and Abbotsford, in the Province of British Columbia, conspired together to cause Baljit Kaur to be murdered, contrary to Section 465(1)(a) and Section 235(1) of the Criminal Code. [2] On October 27, 2000, a jury found the accused, Sandeep (Sonny) Singh Toor guilty of the second degree murder of Baljit Grewall and not guilty of count 2, the charge of conspiracy to murder Baljit Grewall. The co-accused, Ajit Singh Grewall and Sukhjit Singh Grewall, were found guilty, by the same jury of counts 1 and 2, first degree murder and conspiracy to murder Baljit Grewall. Factual Background [3] The theory of the Crown in this case is as follows: the co-accused, Ajit Singh Grewall married the victim, Baljit Grewall, just four months before her murder. Ajit Grewall had the victim take out insurance on her life and then planned her murder with his son, Sukhjit Grewall. On April 19, 1998, Sukhjit and his friend Sonny Toor murdered Baljit Grewall. Sonny Toor drove Sukhjit to the murder scene and Sukhjit Grewall shot Baljit at close range, once in the middle of her forehead and once in her ear. Shortly after the murder, the accused Sonny Toor and Sukhjit Grewall took the murder weapon to Joey Brar for safe keeping. [4] The killing of Baljit Grewall was cruel, callous, cowardly and cold-blooded. Shooting her was an act of mindless violence and brutality. Notwithstanding the submissions of the Crown, however, the jury found the accused Sonny Toor to be less culpable than the other two accused. The jury found Sonny Toor not guilty of conspiracy to murder Baljit Grewall. Thus, at the very least they had a reasonable doubt that he was involved in planning Baljit's death. [5] The Crown's case against Sonny Toor was not as compelling as the case against Ajit Grewall and his son Sukhjit Grewall. By the Crown's own theory, Sonny Toor only drove Sukhjit Grewall to the scene of the crime. It was probably Sukhjit who shot his step-mother, Baljit Grewall. Sonny Toor's attempt to hide the murder weapon is certainly not inconsistent with the Crown's theory that he drove Sukhjit Grewall to the scene of the murder, but that he was not the shooter. I mean no disrespect when I say that defence counsel for the accused Toor made a tactical decision to join counsel for the co-accused in attacking the credibility of the Crown witnesses rather than concentrating on their main defence, Toor's "subjective forseeability" that Baljit would be murdered. The strategy backfired. Position of the Crown [6] The Crown takes the position that the character of Sonny Toor, the nature of Baljit's murder, and the circumstances surrounding her death, suggest that the period of parole ineligibility be fixed at the mid or upper range of the discretionary period. Thus, the Crown seeks a parole ineligibility period of 15 to 18 years. In support of their position, the Crown drew my attention to the following cases: R. v. Shropshire (1995), 102 C.C.C. (3d) 193 (S.C.C.); R. v. Muise (1994), 94 C.C.C. (3d) 119 (N.S.C.A.); R. v. Van Osselaer (June 26, 2000) Docket X049086, New Westminster Registry (B.C.S.C.); R. v. Franz (August 1, 2000) New Westminster X053198 (B.C.S.C.); R. v. Campbell (199), 129 B.C.A.C. 152; R. v. Mooring and Woods (September 22, 2000) New Westminster X041952 (B.C.S.C.); R. v. Spanevello (1998), 115 B.C.A.C. 14. [7] The Crown seeks a lifetime firearms prohibition against the accused, pursuant to s. 109(1) of the Criminal Code. The Crown also requests that I make an order in Form 5.03, pursuant to section 487.051(1)(a) of the Criminal Code, authorizing the taking of samples of bodily substances from Toor that are reasonably required for the purpose of forensic DNA analysis, by means of the investigative procedures described in subsection 487.06(1). Position of the defence [8] Defence counsel submits that Toor merely drove the accused, Sukhjit Grewall, to the scene of the murder. The jury had a reasonable doubt that Toor's involvement in the murder was "planned and deliberate". Defence counsel therefore submits that this is a case where the period of parole ineligibility should be in the range of ten to twelve years. [9] In support of his submissions, he drew my attention to the following cases: R. v. Mafi, infra, R. v. Tan, (unreported) 7 March 1996 (B.C.C.A.); R. v. Hutchison, [1992] Y.J. No. 51 (Y.T.C.A.); R. v. Leahy (1978), 44 C.C.C. (3d) 479 (Ont. C.A.); R. v. Guillemette [1993], B.C.J. No. 2092 (B.C.S.C.); R. v. St-Coeur (1991), 69 C.C.C. (3d) 348 (Que. C.A.); R. v. Barrett, [1999] B.C.J. No. 1913 (B.C.C.A.); R. v. Grimsson (K.A.) (1997), 100 B.C.A.C. and 163 W.A.C. (B.C.C.A.). Circumstances of the Accused, Sandeep (Sonny) Singh Toor [10] The accused was twenty-one years old at the time of the offence. He is presently twenty-four years old. Numerous letters have been filed to support the fact that he is a hard-working, religious, young man who is a good friend and confidante to many. The accused was placed under strict conditions of bail for almost two years for this offence and not once did he breach any of the terms of that bail. [11] Evidence was also led that the accused attended Langara College and that for the past few years, he had been a productive member of his society. Second Degree Murder [12] The possible period of parole ineligibility for second degree murder ranges from ten to twenty-five years: s. 745(c) of the Criminal Code. [13] The jury may make a recommendation about the period of parole ineligibility: s. 745.2 of the Criminal Code. In this case the jury declined to make a recommendation and left the matter of sentencing the accused Sandeep (Sonny) Singh Toor to me. It is trite law that the fact that the jury makes no recommendation is a factor to be taken into account in sentencing, but it is not decisive. It is the judge's role to impose a fit sentence: R. v. Jordan (1983), 7 C.C.C. (3d) 143 (B.C.C.A.). [14] The sentencing judge must decide whether any period of parole ineligibility beyond ten years is fit in the circumstances. The factors to consider (s. 745.5 of the Criminal Code) are: (a) the character of the offender; (b) the nature of the offence and the circumstances surrounding its commission; and (c) the recommendation of the jury, if any, made pursuant to s. 743. [15] The factors to be considered by the court when deciding on parole ineligibility under s. 745.4 of the Criminal Code were decided in R. v. Shropshire, supra. In that case, the court rejected the proposition that parole ineligibility can only be imposed in "unusual circumstances". The court held that "the power to extend the period of parole ineligibility need not be sparingly used." They adopted a passage from the Nova Scotia Court of Appeal in R. v. Doyle (1991), 108 N.S.R. (2d) 1 (N.S.S.C.A.D.), (leave to appeal refused, [1992] 2 S.C.R. vi; 112 N.S.R. (2d) p. 206), at p. 5: It is not the law that unusual circumstances, brutality, torture or a bad record must be demonstrated before the judge may exercise his discretion to move above the ten years minimum. Nor is there any burden on the Crown to demonstrate that the period should be more than the minimum. [16] In Shropshire, it was also established that the trial judge does not have to give specific reasons for increasing the period of parole ineligibility. [17] The judge's function under s. 745.4 is a sentencing and not a parole function. The emphasis ought to be on the protection of society through its expression of repudiation for the particular crime by the particular accused, along with that repudiation's concomitants of individual and general deterrence: R. v. Wenarchuk (1982), 67 C.C.C. (2d) 169 (Sask. C.A.) per Bayda C.J.S. [18] In R. v. Bertrand (1997), 91 B.C.A.C. 298, the court of appeal affirmed my sentencing of the accused to 20 years before eligibility for parole in a case where the accused committed multiple murders. A similar period of parole ineligibility was imposed in R. v. Stewner (1996), 113 Man. R. (2d) 78 (C.A.). In R. v. Spanevello, supra, the court agreed with a sentence of a period of 15 years before parole eligibility on a conviction on a charge of second degree murder. In R. v. Cruz (1998), 124 C.C.C. (3d) 157 (B.C.C.A.), the Court of Appeal upheld a sentence of 18 years before parole eligibility where the accused had no previous record. The accused had met the victim in a bar, shot her four times in the head and burned her body. [19] In R. v. Michelle (1998), 119 B.C.A.C. 163, the court dismissed an appeal from a sentence of life imprisonment without eligibility for parole for 17 years where the accused killed a person to prevent him from testifying against him. In R. v. McInnis (1999), 134 C.C.C. (3d) 515 (Ont.C.A.), the trial judge set a period of 24 years before parole ineligibility although the jury recommended a period of 20 years. The Court agreed with the trial judge, stating that it was up to the trial judge to take into consideration that within days of the murder, the appellant killed another person in circumstances amounting to manslaughter. [20] In R. v. McKnight (1999), 44 O.R. (3d) 263, 135 C.C.C. (3d) 41 (Ont.C.A.) a majority of the Court reduced the period of parole ineligibility of a man convicted of the vicious second degree murder of his wife from 17 years to 14 years due to the fact that the sentence was outside the accepted range for similar homicides. In R. v. Wristen (1999), 141 C.C.C. (3d) 1 (Ont.C.A.), the Court upheld a period of 17 years of parole ineligibility for the brutal murder of a spouse. The Court agreed that the appellant's hiding of the victim's body and his refusal to disclose its whereabouts were circumstances to be considered by the trial judge. [21] In R. v. Truong (2000), 135 B.C.A.C. 316; 2000 BCCA 116, even though there was some suggestion that the accused may have been mentally ill, parole ineligibility of 15 years was upheld in a case where the accused fatally stabbed his spouse's infant born from her new relationship. The accused thought that the removal of the child would open the way for reconciliation with his wife. [22] In R. v. Mafi (2000), 142 C.C.C. (3d) 449 (B.C.C.A.) the majority was of the view that in a case where an accused stabbed two persons to death, the parole ineligibility period should be reduced from twenty years to fifteen years. The majority determined that twenty years of parole ineligibility was not consistent with similar crimes committed in similar circumstances by similar offenders and therefore was not a fit sentence. Although on October 5, 2000 the Supreme Court of Canada refused leave to appeal Mafi, it seems, with respect, that the majority in that case have come dangerously close to overruling the decision of the Supreme Court of Canada in Shropshire. Nevertheless, I am bound by the decision in Mafi. [23] In Mafi, the accused was a waiter in a restaurant. One night when the restaurant was closing he was found removing money from the till. Upon being discovered, he took a twelve inch butcher knife from the kitchen and stabbed the owner fifteen times. He then stabbed the only other person in the restaurant, a female employee, twelve times. Both of the victims who were stabbed by Mafi died as a result of the injuries inflicted on them by him. In reducing the twenty year parole ineligibility that was imposed on Mafi by the trial judge, after the jury had made that recommendation, Lambert J.A. and McEachern C.J.B.C. discussed several principles which I must now consider in sentencing the accused in the case at bar. [24] In paragraphs 20 and 22 of Mafi, Lambert J.A. stated that in determining the period of parole ineligibility, one must consider the function of the Parole Board. The Parole Board will eventually decide if a prisoner is rehabilitated and is to be released when eligible for parole. Increasing the period of parole ineligibility beyond ten years prevents the Parole Board from exercising that function. At paragraph 21, Lambert J.A. stated: To put the matter starkly, the effect, therefore, of increasing the period of parole ineligibility is to keep someone in prison who has been entirely rehabilitated, as far as it is possible to tell, in order to go on denouncing that person, and claiming retribution from that person, for what may well have been an impulsive act committed more than ten years before. [25] Lambert J.A. did not seem to consider deterrence to be a significant factor, stating at paragraph 22 that it is difficult to imagine a person about to commit a non-planned murder being deterred by an increased period of parole ineligibility. He concluded at paragraph 24: So the acceptable range of parole ineligibility must be regarded as being set primarily for the purpose of continuing denunciation of a rehabilitated person. . . . The function of this Court is to try and achieve a measure of consistency in that respect. [26] Lambert J.A. continued on to review several cases of multiple homicides. He concluded that a more acceptable range in the circumstances was 15 years and he allowed the appeal, varying the parole ineligibility periods from 20 years to 15 years. [27] McEachern C.J.B.C., while concurring with Lambert J.A. in the result, gave a separate judgment and reasons. He stated at paragraph 45 that sentencing has become "a very complicated exercise." In his reasons, McEachern C.J.B.C. outlined the various purposes of sentencing and commented briefly upon their application. He did, however, reaffirm the principle of consistency at paragraph 55. [28] Braidwood J.A. in dissent would have upheld the trial judge's imposition of 20 years without parole. He reiterated the principles in Shropshire, which give broad discretion to the trial judge to increase parole ineligibility, and framed the question to be asked at paragraph 98 as whether the trial judge's sentence is "clearly unreasonable" or "demonstrably unfit." After reviewing the facts of the case and several other cases of second degree murder, Braidwood J.A. found that it was not, and would have dismissed the appeal. Analysis [29] I have read all of the authorities that have been referred to me by both counsel for the Crown and defence. I have also referred to the authorities discussed above. In none of the cases do I find the justification for the type of parole ineligibility requested by the Crown in this case. [30] With respect to the character of the offender, all I can glean from the intercepted communications is that he appeared to be involved in some drug dealings with his co-accused, Sukhjit Grewall. I have already discussed the nature of the offence and the circumstances surrounding it, and it is clear that Mr. Toor's role in the murder does not mandate that I impose a substantial further period of parole ineligibility. The finding of the jury places most of the blame on Ajit and Sukhjit Grewall. [31] In addition to the cases to which I have already referred, I have considered the following factors: the culpability of the accused; the character of the accused; the circumstances of the murder; the fact that the jury refused to make a recommendation for parole ineligibility; the victim impact statements in this case; and the decision in Mafi, supra. In light of those considerations, it is my view that the period of parole ineligibility that should be imposed against this accused is 12 years. [32] The accused is therefore sentenced to life imprisonment with parole ineligibility of 12 years. In addition, I order a lifetime firearms prohibition against the accused, pursuant to s. 109(1) of the Criminal Code. I also make an order in Form 5.03, pursuant to s. 487.051(1)(a) of the Criminal Code, authorizing the taking from Sandeep (Sonny) Singh Toor, for the purpose of forensic DNA analysis, any samples of one or more bodily substances that is reasonably required for that purpose, by means of the investigative procedures described in sub-s. 487.06(1). "S.R. Romilly, J." The Honourable Mr. Justice S.R. Romilly This Judgment was released from the New Westminster Registry on December 4, 2000 and is date stamped accordingly.