COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Khinda, 2023 ONCA 198
DATE: 20230320
DOCKET: C69255
Roberts, Nordheimer and Thorburn JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Kulwant Khinda
Appellant
Jessica Zita, for the appellant
Dana Achtemichuk, for the respondent
Heard: March 15, 2023
On appeal from the convictions entered by Justice Hafeez S. Amarshi of the Ontario Court of Justice on December 28, 2020, and from the sentence imposed on July 28, 2021.
REASONS FOR DECISION
[1] Kulwant Khinda appeals his convictions for assault causing bodily harm and forcible confinement. The complainant in this case is the appellant’s spouse. The appellant also seeks leave to appeal his sentence of 7 months’ incarceration and asks that a 12-month conditional sentence be imposed followed by 12 months probation. At the conclusion of the hearing, we dismissed the appeal with reasons to follow. These are our reasons.
[2] The background facts are that, on the day in question, the complainant noticed the withdrawal of a significant sum of money from the couple’s joint line of credit. The couple had a history of arguments over money. When the appellant arrived home, the complainant questioned him about the withdrawal. He denied having made it. The complainant then asked for proof that the appellant had paid the rent. The appellant reacted angrily and started hitting the complainant.
[3] The assault spanned between 30-40 minutes. During the assault, the complainant attempted to get the car keys from the appellant, who refused to give them up. Eventually, however, the appellant did so, and the complainant left the home. The complainant drove around for a bit but then returned home because of concern for her two children. Upon arriving home, the complainant called her brother for assistance.
[4] Her brother came to the home. He took pictures of the complainant’s injuries. The parents of both the complainant and the appellant were called to come to the home. The appellant’s parents urged the complainant not to call the police. Given the extent of the injuries, the complainant’s brother eventually took the complainant to the hospital for treatment. The matter was not reported to the police at that time.
[5] The appellant’s version of the events was different. The appellant denied assaulting the complainant or arguing with her on the day in question. He said that the complainant had fallen down the stairs in the home while he was resting in the bedroom. He said that he picked the complainant up and put her to bed. The appellant said that he urged the complainant to go to the hospital, but the complainant refused. The appellant did not call an ambulance.
[6] The appellant says that he called the complainant’s brother. He says that her brother was also unable to convince the complainant to go to the hospital. It was only after all of the parents came to the home that the complainant agreed to go to the hospital.
[7] The trial judge convicted the appellant of assault causing bodily harm and forcible confinement. He observed that credibility and reliability were central issues in the case. He concluded that the appellant was not a credible witness. The trial judge noted that the appellant’s evidence was internally inconsistent. For example, the appellant described the complainant’s injuries as serious, but then also said that they were not so serious as to require that an ambulance be called. The trial judge also noted that many aspects of the appellant’s evidence were contradicted by other evidence, including that of the complainant, her brother, and her mother.
[8] On the other hand, the trial judge found the complainant to be a credible witness. The trial judge found the complainant to be frank in her evidence; that she testified carefully; and that she did not attempt to guess or fill any gaps in her evidence. The trial judge also noted that some parts of the complainant’s evidence were confirmed by other witnesses, including her mother and her brother. In the end, the trial judge accepted the complainant’s evidence as to what had occurred.
[9] The appellant raises a number of grounds of appeal. He asserts that:
• the trial judge erred in rejecting the defence submission that the photographs of the injuries were inconsistent with an assault of 30-40 minutes;
• the trial judge erred in rejecting the defence submission that the complainant’s evidence was suspect because she did not go to the police after she left the home;
• the trial judge failed to properly consider and give effect to inconsistencies in the complainant’s evidence;
• the trial judge improperly rejected the appellant’s evidence simply because he denied the allegations.
[10] None of the criticisms made by the appellant with respect to the trial judge’s analysis and conclusions are made out on the record before us. The trial judge gave careful and thorough reasons, in which he reviewed the evidence in detail. He did not believe the appellant and he gave reasons for that conclusion. The trial judge then proceeded to consider and accept the complainant’s evidence. He noted that portions of her evidence were confirmed by other witnesses.
[11] In terms of the specific grounds raised:
• the trial judge found that the photographs of the injuries appeared to be equally consistent with an assault and a fall down the stairs. He said that without expert evidence that the injuries were only consistent with one of those explanations, he could not accept the defence submission that they could only have been caused by a fall. The trial judge did not make any error in so concluding. In particular, he did not err in his application of R. v. Theoret, 2018 ONCA 700;
• the trial judge found that there may be many reasons why a person in the complainant’s situation would not go to the police. He was entitled to reject the defence submission that the failure to report to the police undermined the complainant’s credibility. While there is some issue over whether the trial judge was correct when he said that this issue was not put to the complainant in order that she could respond to it, nothing turns on that issue especially since the complainant did provide an explanation for why she acted as she did;
• the trial judge did not fail to consider all aspects of the complainant’s evidence in reaching his credibility conclusion. He explained why he reached the conclusion that he did and his analysis and conclusion on that issue is entitled to deference;
• the trial judge did not reject the appellant’s evidence simply because it was a general denial. The trial judge gave detailed reasons for rejecting his evidence. He merely recounted that, at its core, the appellant’s evidence consisted of denials and nothing more.
[12] The appellant essentially asks us to reweigh the evidence in this case. That is not our role. The appellant must demonstrate that the trial judge either committed an error of law or made a palpable and overriding error of fact. He has failed to establish either.
[13] In terms of the sentence appeal, the appellant has not demonstrated any error in principle in the trial judge’s reasons for sentence. This was an assault in a domestic context and a serious assault at that. The trial judge properly took into account the appellant’s rehabilitation prospects and other mitigating factors, including the potential reconciliation between the appellant and the complainant. Having balanced all the relevant factors, he was entitled to conclude that a period of incarceration was required to adequately denounce the conduct and to deter others from similar acts. The sentence is fit. There is no principled basis on which this court could interfere with the sentence that he imposed.
[14] The appeal is dismissed. While we would grant leave to appeal sentence, that appeal is also dismissed.
“L.B. Roberts J.A.”
“I.V.B. Nordheimer J.A.”
“J.A. Thorburn J.A.”