Court File and Parties

Court of Appeal for Ontario Date: 20200312 Docket: C66772

Watt, Fairburn and Zarnett JJ.A.

Between: Her Majesty the Queen Respondent

And: Rupen Balaram-Sivaram Appellant

Counsel: Rupen Balaram-Sivaram, acting in person Andrew Hotke, for the respondent

Heard and released orally: March 9, 2020

On appeal from the conviction entered on February 25, 2019 and the sentence imposed on March 28, 2019 by Justice Michael F. Brown of the Superior Court of Justice.

Reasons for Decision

[1] After a trial before a judge of the Superior Court of Justice sitting without a jury, the appellant was convicted of several offences, including advocating genocide; promotion of hatred; criminal harassment; threatening death and identity fraud.

[2] The appellant was sentenced to a term of imprisonment of three years, which was reduced to five months because of the credit he received for time spent in pre-sentence custody. He was also ordered to comply with the terms of a probation order for a period of two years.

[3] The offences of which the appellant was convicted all arise out of the breakdown of the appellant’s marriage. When that occurred, he began and persisted in a campaign of harassment against his wife, her new partner and her supervisor at work. He then posed as his wife’s new partner and sent several communications which constitute the offences of advocating genocide and promoting hatred.

[4] On appeal, the appellant advances several claims of error in the proceedings below. He says that:

i. he was duped into having a trial by a judge sitting alone, rather than, as was his preference, a trial by a court composed of a judge and jury; ii. the trial judge was biased; iii. an adjournment of the trial prejudiced the presentation of his case, in particular, his examination-in-chief and cross-examination were separated, rather than proceeding sequentially; iv. his right to a trial within a reasonable time was breached; v. his s. 8 Charter right was breached by a delayed search of his computers; vi. his s. 9 Charter right was breached because there were no grounds for his arrest; and vii. the trial judge misapprehended various aspects of the evidence adduced at trial.

[5] In our view, this appeal fails.

[6] The appellant was represented by counsel at trial who, in accordance with the usual practice, signed a re-election form agreeing to a trial by a judge sitting without a jury. We see no basis upon which to interfere with that decision.

[7] Nothing in the record supports any claim of actual or reasonably apprehended bias on the part of the trial judge. Nor does the record support any claims of constitutional infringement.

[8] It does not appear to us that the trial judge misapprehended the evidence adduced at trial. Even if we were to have concluded that any misapprehension of the nature alleged by the appellant did, in fact, occur, we are not persuaded that it was material to the findings of guilt made by the trial judge.

[9] The appeal from conviction is dismissed. The appeal from sentence was not pursued and is dismissed.

“David Watt J.A.” “Fairburn J.A.” “B. Zarnett J.A.”