DATE: 20060420
COURT OF APPEAL FOR ONTARIO
SHARPE, BLAIR and ROULEAU JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Eric Lewis for the appellant
Appellant
- and -
AJITH JEYANANDAKUMAR
Lucy Cecchetto and Lance Beechener for the respondent
Respondent
Heard: January 31, 2006
On appeal from the conviction entered by Mr. Justice John McIsaac of The Superior Court of Justice, sitting with a jury, dated September 27, 2003, and on appeal from the sentence imposed by Mr. Justice John McIsaac dated November 4, 2003.
SHARPE J.A.:
1The appellant raises a multiplicity of issues with respect to his appeal from conviction for aggravated assault, failure to comply with a probation order and from the sentence imposed of seventeen months’ imprisonment and three years’ probation on the aggravated assault and one-month imprisonment (consecutive) on the failure to comply.
2This appeal arises from the same incident as gave rise to R. v. Mahalingan. The appeals were argued together and the reasons for judgment disposing of both appeals are being released at the same time.
FACTS
3I will not repeat here the facts set out in R. v. Mahalingan, but add the following facts that pertain to the case against the appellant.
4As in Mahalingan, the sole issue at trial was identity of the perpetrators of the attack on Perinpanathan and Balasingam. Perinpanathan knew the appellant from seeing him at school and testified that he did not see the appellant on the night of the assault. However, Perinpanathan lost consciousness during the attack.
5Balasingam testified that he was acquainted with the appellant and that earlier on the day of the attack, he telephoned the appellant twice regarding an unrelated incident involving an assault on several youths known as the “Middlefield boys”. Balasingam told the appellant that he had nothing to do with the incident but that he had been asked to help the Middlefield boys. Balasingam testified that the appellant admitted to having participated in the assault on the Middlefield boys and told Balasingam not to get involved. Balasingam said that his calls to the appellant had ended amicably, although he testified that the appellant had yelled at him during the second phone call. Balasingam did not tell the appellant where he would be later that night.
6Balasingam gave three statements to the police after the attack. When first interviewed, he did not place the appellant at the scene and identified only those who attacked him. In statements to the police the next day and the day after, Balasingam identified the appellant as one of the participants in the attack. He told the police and later testified at trial that he saw the appellant attack Perinpanathan with an axe.
7The appellant did not testify but called his uncle, Father Virgil, a Roman Catholic priest, who testified that he heard Balasingam offer not to testify against the appellant if he were paid a bribe. Balasingam denied making such an offer.
8The appellant’s defence at trial essentially was that Balasingam was an unsavoury witness whose evidence was riddled with inconsistencies. The appellant argued that Balasingam demonstrated confusion and uncertainty regarding the appellant’s role in the assault and that it was not until the preliminary inquiry and after the appellant refused to pay him a bribe that Balasingam became certain of the appellant’s involvement in the attack.
ANALYSIS
1. Did the trial judge err in ordering that the potential jurors be identified by number instead of by name pursuant to s. 631(3.1)?
9For the reasons given in the companion appeal, R. v. Mahalingan, I would not give effect to this ground of appeal.
2. Did the trial judge err in admitting evidence of a conversation between the appellant and Balasingam relating to the Middlefield boys and by failing to instruct the jury regarding the limited purpose for which they could use the hearsay evidence of the appellant’s bad character?
10The trial judge admitted the conversation between the appellant and Balasingam relating to the Middlefield boys on the basis that it was part of the narrative leading up to the attack and that it was also relevant to a possible motive for the attack. I see no error in this ruling as I agree that Balasingam’s intervention on behalf of the Middlefield boys on account of the appellant’s assault on them could be taken as evidence of motive for the attack.
11The trial judge gave the following limiting instruction:
The evidence of gang membership or association, has been advanced during this trial for the limited purpose of potentially explaining why this attack took place and why Mr. Perinpanathan and Mr. Balasingam were targeted. However, these defendants are not on trial for gang membership or association. They are on trial for the two offences alleged in the indictment. It would be most unfair of you to compromise the presumption of innocence, or lessen the burden of proof beyond a reasonable doubt, because of this factor.
12I do not accept the submission that the trial judge erred in the manner in which he dealt with the Middlefield boys’ evidence. While he could have given a specific limiting instruction tailored to the evidence relating to the Middlefield boys, in the context of this trial, he was entitled to give a general direction as to gang activities. I am satisfied that the instruction he did give was sufficient to bring home to the jury the use they could and could not make of this evidence.
3. Did the trial judge err by (i) instructing the jury that the injuries of both victims could serve as confirmatory evidence and (ii) failing to deliver an adequate Vetrovec warning?
13The trial judge warned the jury that Balasingam’s evidence should be approached with “extreme caution” and “with the greatest care and caution”. He also succinctly listed the reasons for this warning, namely Balasingam’s lengthy criminal record, the allegation that he had attempted to sell his evidence and the inconsistencies in his various statements. As to the instruction that the injuries to the victims tended to confirm Balasingam’s evidence, the trial judge immediately added that the injuries “in no way confirm the identity of any or any of the persons responsible for this attack”.
14I would not give effect to this ground of appeal. The trial judge warned the jury about how it should approach Balasingam’s evidence. This is a discretionary matter for the trial judge and there is no standard formula to be followed. The issue is whether the instruction equipped the jury to weigh the evidence of the unsavoury witness appropriately. In my view, this instruction accomplished that task and I see no error of principle that would justify the intervention of this court.
15Nor do I see any error in the manner in which the trial judge dealt with the injuries as confirmatory evidence given his specific warning that it did not confirm the identity of the perpetrators of the attack.
4. Did the trial judge err when he failed to connect the concept of absence of evidence to the fact of absence of evidence?
16I see no merit in this submission. I agree with the respondent that on a fair reading of the charge as whole, the meaning of reasonable doubt was communicated to the jury and the jury could not have failed to understand that reasonable doubt could be based on an absence of evidence.
5. Did the trial judge err in failing to review the significant inconsistent statements made by B?
17The trial judge did not review the details of the inconsistencies in Balasingam’s evidence. On the other hand, he clearly explained to the jury that a cornerstone of the defence theory was that Balasingam could not be believed because of the inconsistencies in his evidence and he reminded the jury of the fact that defence counsel had listed those inconsistencies in her closing address. I do not agree that having adequately explained to the jury the appellant’s position on this issue, the trial judge was obliged to go on to identify in detail the specific inconsistencies upon which the appellant relied.
6. Did the trial judge err in failing to adequately outline the theory of the defence?
18As I pointed out in Mahalingan, the trial judge gave a relatively brief and concise jury instruction. While I found that the trial judge failed to present an essential aspect of the theory of Mahalingan’s defence, the same cannot be said of the appellant’s defence. The theory of the appellant’s defence was simple – Balasingam was a dangerous liar who could not be believed. The trial judge outlined for the jury the appellant’s position that Balasingam could not be believed because of his unsavoury past, the inconsistencies in his evidence, and the evidence of Father Virgil relating to the bribe.
7. Did the trial judge err when he refused to recharge the jury after indicating he would do so?
19During the course of submissions as to the adequacy of the charge, the trial judge indicated that he intended to recharge the jury on various points. However, in the end, he decided not to do so. The appellant has failed to satisfy me that the trial judge erred in failing to recharge the jury on any of these points. Accordingly, I see no basis to intervene on the ground that t the trial judge’s appears to have had a change of heart following submissions.
8. Is the verdict unreasonable, unsafe and against the weight of the evidence?
20I see no merit in this ground of appeal. While Balasingam’s evidence was attacked on many fronts, it provided a basis upon which a properly instructed jury could reasonably convict.
9. Did the trial judge err in instructing the jury that gang rivalry was a possible motive for the appellant’s attack on the victim?
21I see no error in the manner in which the trial judge left the issue of gang rivalry vis-à-vis the appellant. There was evidence from which the jury could infer that gang rivalry was a motive for the attack and I have already set out the trial judge’s limiting instruction as to the use that could properly be made of evidence of gang rivalry.
10. Did the trial judge find the appellant guilty of breach of probation in the absence of evidence that the appellant was on probation at the time of the offence?
22I agree with the respondent that although no evidence was tendered at trial as to the probation order, the appellant effectively admitted its existence at the sentencing hearing and waived any right to challenge its existence at trial. As defence counsel put it: “ [the appellant is] not prepared to plead guilty to it, but I’m not asking for another trial, another formal trial before a jury on the issue at any rate, and I don’t want to prolong these matters any more than we already have… If Your Honour is satisfied beyond a reasonable doubt of his guilt, based on Mr. Balasingam’s evidence, you can make a finding”. In my view, the trial judge properly interpreted this to mean that if he was satisfied that the appellant was at the scene of the attack he was entitled to convict him for breach of probation. I see no merit in this ground of appeal.
11. Sentence appeal.
23I see no merit to the submission that the sentence of seventeen months for this serious assault was harsh and excessive, that the trial judge erred in finding certain aggravating factors or that he ignored the principle of parity.
CONCLUSION
24For these reasons, I would dismiss the appeal from conviction, grant leave to appeal sentence and dismiss the sentence appeal.
“Robert J. Sharpe J.A.”
“I agree R.A. Blair J.A.”
“I agree Paul Rouleau J.A.”