ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: SCA 46/09
DATE: 20120302

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – VEINTHAN THANGAMYIL Appellant

Daniel Guttman, for the Crown/Respondent
Jonathan Rosenthal, for the Appellant

HEARD: February 14, 2012

KELLY J.

REASONS FOR DECISION

[1] The Appellant was charged with 16 offences contrary to the Criminal Code , R.S.C., 1985, c. C-46. Following a trial before Foster, J. he was found guilty of 12 of those offences arising from three incidents as follows:

a. January, 2008: criminal harassment;

b. February 7, 2008: breach of recognizance; and

c. June 6, 2008: assault (x2), threaten death; theft (x2), mischief; and breach of recognizance (x4).

[2] Although the Appellant raised several issues in written argument, it became clear during oral argument that one ground of appeal regarding conviction required consideration: Did the trial judge err in failing to provide sufficient reasons?

[3] After carefully considering the written materials, oral argument and precedents, I have concluded that the trial judge did give sufficient reasons and the conviction appeal is dismissed. What follows are my reasons.

Factual Overview

[4] The main complainant in these matters is Ms. Sasikumari Karuhaharan. She alleges that the Appellant borrowed approximately $6,000 from her some time after she moved to Canada in 2006. He has only repaid a portion of this loan. The relationship between the two took a turn for the worse when the Appellant asked the complainant for more money and to move into her home.

[5] In January, 2008, the complainant says that the Appellant was following, calling and threatening her. The allegations end on June 6, 2008 when it as alleged that the Appellant assaulted her and stole her purse outside a Tamil temple. It is also alleged that during the same occurrence the Appellant assaulted the complainant’s friend – Mr. Jayananthan Selvarajah.

[6] Although the incidents giving rise to the charges before the Court are not unduly complicated, the trial took place over a period of nine days [1]. The court heard from 19 witnesses [2]. On February 19, 2009 the trial judge gave his reasons for judgment orally.

[7] At the commencement of his reasons, the trial judge acknowledged that the case was a difficult one. He then proceeded to deal with the counts in order of the arraignment, acquitting the Appellant of some offences and convicting him of others.

Analysis

[8] The principles that I bear in mind in coming to my conclusion that the reasons are sufficient have been set out by the Court of Appeal and the Supreme Court of Canada [3]. Most important for the purpose of this analysis is that judges owe an obligation to the losing party to explain why that party lost and in criminal cases, the accused is entitled to know why he was convicted [4].

[9] In my view, the reasons for decision are sufficient because in his analysis of the evidence, the trial judge demonstrated the route he took to his verdict and such analysis permits effective appellate review. Essentially, he convicted where he accepted the evidence of the complainant as corroborated by others or other independent evidence and where he found that the evidence of the Appellant was not believed or did not raise a reasonable doubt.

[10] The path the trial judge took to conviction was set out in his reasons commencing with his analysis of Count 1. In considering the charge of uttering a threat, he said the following about the evidence of the complainant: “I need to be cautious in assessing any allegations, which depend exclusively on the complainant’s evidence”. And that is what he did.

[11] The trial judge convicted the Appellant of criminal harassment on the basis of the complainant’s testimony: that she saw the Appellant two times at her apartment complex and he called her on the phone following which she felt threatened. Her evidence was corroborated by that of a security guard who saw the Appellant at the complex; Mr. Yathavan Selvarajah who testified that when he attended at the complex, he found the Appellant hiding in the bushes; a neighbour (Mr. Stevie Williams) who saw the Appellant in the complex on a later occurrence and that the complainant appeared to be frightened; and various telephone messages, which the trial judge found were attributed to the Appellant. The trial judge also found that the Appellant’s evidence was not believed, nor did it raise a reasonable doubt.

[12] The Appellant submits that the trial judge misapprehended the evidence that it was the Appellant’s voice on the messages. He submits that there was evidence that contradicted such a finding and that the trial judge’s reasons were not sufficient as he did not reconcile such contradictions.

[13] The evidence of the voicemails may be summarized as follows:

a. The Appellant testified that it was not his voice on the voicemails.

b. The complainant testified that the voicemails were from the Appellant.

c. An independent Tamil translator testified. The translator was only able to say that the voice in the voicemails was “male” and belonged to one person.

d. A defence witness listened to the voicemails and testified that the voice on them was similar to that of the Appellants but she was not “sure” that it was his voice.

[14] Based on the evidence at trial, it was open to the trial judge to find that the voice on the voicemails belonged to the Appellant. Although he did not accept the Appellant’s evidence, that does not mean that he misapprehended the evidence.

[15] Although the reasons for convicting the Appellant of Count 3 were brief, it is clear that the trial judge relied not only on the evidence of the complainant, but also on the evidence of the voicemails. The trial judge referred to the voicemails as real evidence as he was entitled to do for the reasons set out above. Although brief, the reasons are sufficient to explain to the Appellant the reasons why he was convicted. They have also permitted me, within the context of circumscribed appellate review, to assess whether the path to conviction demonstrates any reversible error.

[16] When dealing with the allegations of June 6, 2008 the trial judge made certain factual findings. The trial judge began by saying that he accepts “the general thrust of the evidence” of the complainant and Mr. Selvarajah as to what happened that day.

[17] In my view, the reasons are sufficient with respect to counts 6-8. The Appellant knows why he was convicted: the evidence of the two Crown witnesses (the complainant and Mr. J. Selvarajah) was accepted. The Appellant’s version of this occurrence was rejected and his evidence, together with the other evidence, did not raise a reasonable doubt. This demonstrates that the trial judge considered the principles of R. v. W. (D.) [5] in coming to the conclusion that the Appellant was guilty of these counts. The fact that the trial judge also acquitted the Appellant of other offences further demonstrates that he properly approached his consideration of the evidence in accordance with the onus and standard of proof.

[18] The trial judge then went on to deal with counts 9-11: theft of the complainant’s purse, assault of her and two threats. He made certain factual findings accepting the complainant’s evidence where corroborated by others, including an independent witness.

[19] The trial judge said the following about the defence evidence regarding these counts:

a. That he rejected the evidence of the Appellant “about what happened at this juncture of the incident” [in the temple] and that none of the evidence raises a reasonable doubt about being grabbed in the temple.

b. That while a number of defence witnesses were called to testify as to what occurred near the end of the incident “their evidence did not shed much light on the conduct leading up to that point”.

c. That he rejected the version provided by the Appellant because “neither his evidence, nor any of the other evidence at trial raises any doubt in my mind”.

[20] Since the Appellant and various defence witnesses testified with respect to the incidents outside the temple on June 6, 2008, it would certainly have been preferable for the judge to give reasons for his rejection of their evidence. However, in the context of this case, this did not result in reversible error.

[21] In my view, the words of Doherty J.A. in R. v. J.J.R.D. [6] at para. 53 are applicable here:

The trial judge's analysis of the evidence demonstrates the route he took to his verdict and permits effective appellate review. The trial judge rejected totally the appellant's denial because stacked beside A.D.’s evidence and the evidence concerning the diary, the appellant's evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence.

[22] The Appellant did receive some analysis of his evidence both alone and in the context of the evidence as a whole. The trial judge rejected the Appellant’s evidence because “stacked” against that of the complainant and other witnesses that corroborated her evidence, the evidence of the Appellant and the defence evidence did not leave the trial judge with a reasonable doubt. Although not entirely fulsome, it would be fair to say that the Appellant knew why he was convicted on the basis of these reasons.

[23] As a result of the factual findings made with respect to the above-mentioned offences, the trial judge found that the Appellant had breached his probation resulting in four convictions regarding Counts 13-16. His reasons were sufficient in this regard as well.

Conclusion

[24] Although I would not suggest that these oral reasons delivered at the end of a long and difficult trial set the standard for reasons for judgment, I am not satisfied that they are so deficient as to rise to the level of insufficient within the meaning of R. v. Sheppard, supra.

[25] The jurisdiction of the appellate court is limited. It is not the role of this Court to retry the case and substitute its opinion. Although I may have differed in the conclusion at trial, it is not my job to conduct a de novo evaluation of the factual arguments raised at trial, considered and rejected by the trial judge. The words stated by the Court of Appeal in R. v. Drabinsky [7] are apt here:

… Despite the language used to frame the submissions, many are, in reality, attempts to resurrect and reargue factual battles fought and lost at trial. Those arguments cannot succeed in this court.

[26] Despite the capable submissions of Counsel for the Appellant, when read as a whole, it is clear why the trial judge convicted the Appellant of some of the charges but not others. Accordingly, the conviction appeal is dismissed.

Kelly J.

Released: March 2, 2012

COURT FILE NO.: SCA 46/09
DATE: 20120302

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN Respondent – and – VEITHAN THANGAMYIL Appellant

REASONS FOR DECISION Kelly J.

Released: March 2, 2012

[1] November 12, 20, 28, 2008; December 11, 2008; January 5, 9, 16, 21, 30, 2009; and February 5, 2009.

[2] The complainant (Ms. Sasikumari Karunaharan), Mr. Stevie Williams, Mr. Andrew Perras, Ms. Naroshala Parthipan, Mr. Plunasalam Panchacharalinga, Mr. Vigneswaran Ananthamoorthy, Mr. Yathavann Selvarajah, Mr. Jayananthan Selvarajah, Ms. Neetu Gill, Police Constables Windsor, Funchion, Oakes, King, Grondin, McIntyre and Grondin, Sergeant Philip Lee, Ms. Yamini Premnanth and the Appellant.

[3] See: R. v. M. (Y.), 2004 39045 (ON CA), [2004] O.J. No. 2001 (C.A.) and R. v. Sheppard (2002), 2002 SCC 26, 162 C.C.C. (3d) 298 (S.C.C.)

[4] See. R. v. M. (Y.), supra, at para. 21

[5] (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.)

[6] 2006 40088 (ON CA), [2006] O.J. No. 4749 (C.A.)

[7] 2011 ONCA 582, [2011] O.J. No. 4022 (C.A.) at para. 40