ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 6/13
DATE: 20140102
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
ARUN BALBAHADUR
Appellant
Kim Walker, for the Crown
Mark C. Halfyard, for the Appellant
HEARD: September 24, 2013
TROTTER J.
INTRODUCTION
[1] On December 12, 2012, the appellant, Mr. Balbahadur, was found guilty of a single count of assault by the Honourable Madam Justice D. Hackett of the Ontario Court of Justice. He received a 12-month conditional discharge. He appeals the finding of guilt, arguing that the learned trial judge misapprehended the evidence in a number of ways. For the following reasons, the appeal is dismissed.
PROCEEDINGS AT TRIAL
(a) The Evidence
[2] The trial was brief, lasting only a couple of hours. The facts and issues were straightforward.
[3] The complainant and the appellant had been in a relationship between 2006 and 2008. It ended. In the months leading up to the incident, had been intimate from time to time. It would appear that the complainant had started to see someone else.
[4] On October 19, 2011, the appellant invited the complainant over to his home. He picked her up in his car. They came home and watched television while lying on the appellant’s bed.
[5] The complainant testified that the appellant made a sexual advance and she told him to stop. The appellant did stop, but according to the complainant, “he was still angry”. The appellant said words to the effect of “if you don’t listen to me, get out.” The complainant grabbed her bag and put on her jacket. She had intended to leave through the front door, but the appellant told her she was not allowed to. The complainant went into the garage. She went to retrieve her umbrella from the appellant’s car. As she did, the appellant pushed her into his car. The complainant said that the appellant started the car and opened the garage door and grabbed her by the hair very hard and would not let go. The complainant said that he had a hold of her for three to four to five minutes and was saying things to her like “you don’t listen to me.”
[6] When the car was out of the garage and in the driveway, the complainant was able to get away and walked towards the bus stop. She testified that the appellant ran after her and grabbed her hair again, running alongside her as she was trying to run away. The complainant said that this lasted for about a minute. She told the appellant to leave her alone and he eventually let go. Shortly afterwards, the appellant sent the complainant a text message saying she was “fucking disrespectful.” The complainant said that she went to the hospital the next day because her neck was swollen. She was given some medication for it, although she was not sure what kind of medication she received.
[7] In cross-examination, the complainant was confronted with a statement she had given to the police shortly after the incident. In this statement, the complainant said that the appellant did not grab her hair until they were outside of the garage and in the driveway. When she was asked to explain the discrepancy, the complainant said that “I can’t remember exactly how it all happened but….it’s how I remember it today.” The complainant remembered the appellant saying “what are you doing trying to get out of a moving vehicle?” The complainant also agreed that she did not tell the police that the appellant had insisted on driving her home after having asked her to leave.
[8] Sgt. Mike Parrott of the Toronto Police Service happened to be at the same hospital as the complainant the day after the event. He was attending to an unrelated matter. The complainant reported head pain to him. Sgt. Parrott saw no visible injuries or swelling. He said “I would have those photographed if I observed something that was visible.” However, the officer said that what the complainant said to him was sufficient to have her sign a medical release form.
[9] The appellant testified that, after exchanging text messages with the complainant on the morning of October 19, 2011, he picked her up in his car at a plaza. They went to his place and were lying in his bed, beneath the covers, watching television. The appellant testified that he asked her about her new boyfriend a couple of times, but she did not really answer him. He said he found the situation a little confusing. The appellant testified that, when the complainant ignored his questions, he told her it was “disrespectful” and asked her to leave.
[10] The appellant and the complainant went downstairs and as she was going towards the front door, the appellant said it was raining and asked her if she would like a ride. She went into the garage to get her umbrella. The appellant said he opened her car door and asked her if she wanted to get in. The complainant apparently said “no”, but got in anyway. The appellant started the car, opened the garage door and began to back into the driveway, all the while continuing to ask the complainant about her boyfriend. When the car was halfway down the driveway, the complainant attempted to get out of the car, but the appellant grabbed her arm. He asked: “What are you thinking? Are you crazy?” The complainant punched him in the chest. When the car came to a stop, the complainant walked away and the appellant went back into his house.
[11] The appellant denied pushing the complainant into his car. He denied grabbing the complainant’s hair at any time, either inside the car or on the sidewalk. However, the appellant admitted to sending her the text message telling her she was “fucking disrespectful.”
[12] In cross-examination, the appellant maintained that he was only interested in dating the complainant casually. When he invited her over on October 19, 2011, he thought there might be a chance of having sexual relations with her, but that is not why he asked her over. Since he had been intimate with the complainant just a few days before, the appellant thought things were moving in that direction with her on that day; that is why he attempted to unbutton her shirt. The appellant initially testified that he asked the complainant about her boyfriend twice. He then admitted that he asked her about four times, even though he said he was only interested in a casual relationship with her.
[13] Throughout his cross-examination, the appellant denied that he was frustrated with the complainant, even though she rebuffed his sexual advance, purportedly refused his offer of a ride home and was being disrespectful to him by not answering his many questions about her boyfriend. When asked whether he was feeling any emotion at the time, the appellant initially said: “I’m – trying to stay – I’m being calm with her.” The appellant said he corrected himself and said that he was “being calm.” The appellant admitted to being frustrated when he sent his text message to the complainant, but denied being frustrated while dealing with her in person.
(b) The Trial Judge’s Reasons
[14] The learned trial judge carefully reviewed the evidence of the complainant and the appellant. She noted deficiencies in both. Defence counsel at trial (not Mr. Halfyard) stressed the inconsistencies between the complainant’s evidence and her statement to the police. However, the trial judge viewed the matter as a discrepancy over timing. As the trial judge said:
A significant area of the complainant’s evidence in cross-examination is the ordering of the grabbing of the hair as opposed to the statement she gave to the police at the time….Obviously, that is different than her testimony in court described earlier. Although the defence suggests that it’s very material, in my view, it is not that material as to which point in time the grabbing took place. [emphasis added]
The trial judge addressed this inconsistency again later in her reasons:
In that respect, I am mindful of the change in the evidence that the complainant described to the police in terms of the ordering of things in her testimony. However, I accept her evidence about the passage of time and I do not find that that is significant in the context of everything that she described and the consistency about the grabbing and him overpowering her desire to leave. That was consistent. There was no other inconsistency brought out between her statement and her testimony. [emphasis added]
[15] The trial judge’s assessment of certain aspects of the appellant’s evidence led her to reject it completely. Significantly, the trial judge was concerned about the appellant’s denial of being frustrated with the complainant that evening. As noted above, at one point during his cross-examination, the appellant said that he was “trying to stay calm.” When the trial judge asked for the evidence to be repeated because she did not hear it, the appellant said “I was staying calm.” This, and his “fucking disrespectful” text message undermined his credibility on this point. Alluding to other problems with his evidence, the trial judge reached the following conclusions:
For all of the reasons with respect to the accused’s testimony, I do not believe his evidence. I reject his evidence. This is not a situation where his evidence might reasonably be true. He has internal inconsistencies and, in my view, has misled the Court about his questioning about the boyfriend and its significance to him that day. This speaks volumes about the nature of this interaction on this date.
The trial judge then considered whether shortcomings in the complainant’s evidence left the Crown’s case short of the standard of proof beyond a reasonable doubt. In the end, the trial judge concluded that the complainant’s evidence was “credible and reliable” and that, on all of the evidence, the Crown had established guilt to the requisite standard.
ANALYSIS
[16] On behalf of the appellant, Mr. Halfyard argues that the trial judge erred in dealing with the evidence of the complainant. He contends that the trial judge was wrong to characterize the inconsistency between her trial evidence and her police statement as minor. He also argues that the trial judge subjected the evidence of the complainant and the appellant to differing standards of scrutiny. Lastly, Mr. Halfyard submits that the trial judge failed to appreciate the “inherent implausibility” of the complainant’s description of the second hair-pulling incident. While styled and argued as three separate grounds of appeal, the appellant’s position essentially boils down to a single complaint with the trial judge’s assessment of credibility.
[17] There is nothing inherently problematic in the trial judge’s characterization of the discrepancy between the complainant’s evidence and her statement as not being particularly “material.” It did not detract from the complainant’s account that the appellant had pulled her hair our of frustration or anger, the inconsistency relating to exactly when her hair was pulled during this short time frame. This case is not like R. v. G.(M.) (1994), 1994 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), in which a majority of the Court found that the trial judge “failed to grasp the importance of the inconsistency.” (p. 355). Here, the trial judge clearly understood the importance of the contradiction from the perspective of the defence, but disagreed with its ultimate impact on the evidence of the complainant. It was entirely within her purview to make this credibility-related assessment.
[18] I am not persuaded that the trial judge employed differing standards of scrutiny to the evidence of the complainant and the appellant. This ground of appeal seems to be argued with great frequency in cases such as this one, where the credibility of the complainant is pitted against the credibility of the accused. A conviction in these circumstances does not necessarily lead to the conclusion that the trial judge used differing standards of scrutiny. It may simply mean that one witness was more credible than the other. As long as the requirements of R. v. W.(D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) are respected, as they were (both explicitly and implicitly) in this case, there is nothing wrong with this analytical outcome.
[19] Undermining credibility findings based on an assertion of uneven scrutiny is no easy task. The Court of Appeal placed this ground of appeal in the broader context of appellate review in R. v. Cloutier (2011), 2011 ONCA 484, 272 C.C.C. (3d) 291 (Ont. C.A.). Writing for the court, Weiler J.A. said at p. 312:
Before dealing with this ground of appeal it is important to bear in mind that, in a trial which turns almost exclusively on an assessment of the credibility of the witnesses, the trial judge enjoys a significant advantage. The trial judge has the benefit of not only hearing what was said but also how it was said. In making his or her assessment of credibility, the trial judge has heard all of the evidence as well as the submissions of counsel. An appellate court simply has a transcript and is guided to a selective review of the trial record on which argument is made. In arriving at his ultimate credibility findings, the trial judge doubtless paid careful attention to what was said. As this court stated in R. v. Howe (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.) at para. 59:
It is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and the accused, or that he failed to expressly set out legal principles relevant to that credibility assessment. To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant. [emphasis added]
The Court of Appeal recently emphasized that a high standard must be met to succeed on this basis: R. v. Jones, 2013 ONCA 245, [2013] O.J. No. 1786 (C.A.), at para. 8.
[20] In this case, the trial judge examined the evidence of the complainant and the appellant with great care and in an even-handed manner. I cannot say that her ultimate conclusions were not an authentic reflection of the quality of the evidence that she had just heard and observed that day.
[21] Lastly, there was nothing inherently implausible in the complainant’s account of her hair being pulled as she ran down the sidewalk towards the bus stop. It is true that the trial judge did not deal with this evidence in any detail in her reasons. However, this was not a matter that was mentioned during trial counsel’s submissions. An assault had been established by what had transpired while the complainant and the appellant were in the car. The second hair-pulling incident was consistent with the appellant’s continued anger/frustration with the complainant and his attempt to control the situation. If there was any implausibility in this evidence, it related to the length of time of this incident, a detail that was of no concern to the trial judge (or trial counsel, it would appear).
CONCLUSION
[22] For these reasons, the appeal is dismissed.
TROTTER J.
Released: January 2, 2014
COURT FILE NO.: 6/13
DATE: 20140102
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
ARUN BALBAHADUR
Appellant
REASONS FOR JUDGMENT
TROTTER J.
Released: January 2, 2014