ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

COURT FILE NO.: SCA(P) 616/14
DATE: 20151120

B E T W E E N:

HER MAJESTY THE QUEEN

M. Michaud, for the Crown

Respondent

• and -

GURKIRAT SIDHU

L. Sandhu, for the Appellant

Appellant

HEARD: October 16, 2015

REASONS FOR JUDGMENT

[On appeal from the decision of Currie J.
dated July 24, 2014]

André J.

[1] Mr. Gurkirat Sidhu (“Mr. Sidhu”) appeals his conviction of four counts of assault and two counts of threatening death. He submits that the learned trial judge erred in law by failing to properly assess the credibility of the complainant, to resolve the inconsistencies in the evidence and by improperly concluding that the Crown had proven its case against him beyond a reasonable doubt. The Crown submits that the trial judge properly considered all the evidence and committed no error in fact or in law in reaching his verdict.

SUMMARY OF THE EVIDENCE

Kiran Sidhu’s Evidence

[2] Kiran Sidhu (“Ms. Sidhu”), Mr. Sidhu’s wife, testified that Mr. Sidhu was very controlling and physically abusive during the course of their marriage. Ms. Sidhu described four separate incidents during which Mr. Sidhu assaulted and threatened her.

First Incident

[3] The first incident took place on February 4, 2013, when Ms. Sidhu wanted to watch a television show. Mr. Sidhu did not want her to see the program. He took possession of her phone. When Ms. Sidhu tried to retrieve it, Mr. Sidhu pulled her hair and twice hit her on the top of her head with an open hand. She started to cry. Ms. Sidhu hid her bank card out of fear that Mr. Sidhu would take it from her. Mr. Sidhu threatened to kill her.

[4] Ms. Sidhu then called 911. Two officers attended at her residence on February 4, 2013. Ms. Sidhu gave a statement to the police about the incident earlier that day and about other incidents in the past: see Transcript of the Evidence, June 12, 2014, page 22, lines 13-14; Transcript of the Evidence, July 21, 2014, page 2, lines 24-27 and page 9, lines 24-27.

Second Incident

[5] Ms. Sidhu testified that during the Christmas season Mr. Sidhu’s cousin, Harcharan Gill, was visiting the couple. Ms. Sidhu, her son and Ms. Gill went to a local Tim Hortons restaurant for coffee. Ms. Sidhu called Mr. Sidhu to tell him that she had gone to Tim Hortons. He became irate and verbally abusive. He told her not to return home. Upon her return home Ms. Sidhu apologized for her actions but advised Mr. Sidhu that she would not be controlled by him. Thereupon, he struck her with an open hand and pulled her hair: see Transcript of the Evidence, June 12, 2014, page 33, lines 1-8 and page 24, line 15.

Third Incident

[6] Ms. Sidhu testified that during Halloween in 2012, she became embroiled in an argument with Mr. Sidhu regarding the cost of a Halloween costume for their child. Mr. Sidhu became angry and started to hit her. He slapped her one or two times. He stated to her: “[I]f you don’t listen to me I’m going to hit you more”: see Transcript of the Evidence, June 12, 2014, page 37, line 7 to page 40, line 20.

Fourth Incident

[7] Ms. Sidhu testified that in August 2012, she observed messages from a woman (Parmjit Dhillon) on Mr. Sidhu’s phone. Ms. Sidhu confronted him but he took his phone and went “wherever he had to go”. The next day (Saturday) Ms. Sidhu against asked about the woman. Ms. Sidhu picked up Mr. Sidhu’s phone and suggested they call Ms. Dhillon’s husband. Mr. Sidhu then hit her so much that her nose started bleeding. He hit her in the head and face, and pulled her hair. He hit her more than ten times. He also said that if she told Ms. Dhillon’s husband he would kill her. See Transcript of the Evidence, June 12, 2014, page 44, line 5 to page 46, line 32; page 48, line 33 to page 49, line 1; page 51, lines 30-32; page 53, lines 10-12.

[8] When asked why she had not called the police prior to February 4, 2013, Ms. Sidhu replied that it was her second marriage. She could not get married a third time because of the stigma which she would experience in her community. She also noted that Mr. Sidhu was bigger and heavier than herself.

Cross-Examination of Ms. Sidhu

[9] Ms. Sidhu repeatedly denied that she had fabricated the evidence against Mr. Sidhu to enable her to get out of the relationship. She also denied that:

a) The Christmas 2012 incident involved a verbal argument over her decision to take her son into the cold.

b) The February 4, 2013, incident involved her decision to feed the couple’s son yogurt while he was ill and that the argument over the television started with Mr. Sidhu’s objections over her decision to view a television show about the Kardashians. Ms. Sidhu “totally disagreed” that nothing physical happened that day: see Transcript of the Evidence, June 12, 2014, page 120, line 25; page 127, line 25.

c) The Halloween 2012 incident was merely an argument over a costume, it did not involve any assaultive behaviour: Transcript of the Evidence, June 12, 2014, page 127, line 26; page 128, line 20.

d) She fabricated the allegations to get her parents on her side and to gain “leverage in family court”: Transcript of the Evidence, June 12, 2014, page 128, line 25; page 139, line 4.

[10] Ms. Sidhu testified that she made notes about the incidents which she believed she gave to Cst. Saran.

Constable Hogarth

[11] The officer testified that upon her arrival at the Sidhu residence, Ms. Sidhu was emotional and distraught and that her eyes were puffy. She recalled seeing Ms. Sidhu with a piece of paper with handwritten notes but Ms. Sidhu did not give her the paper. The officer testified in cross-examination that she had a clear recollection of seeing the notes in Ms. Sidhu’s possession.

Constable Gallagher

[12] Constable Gallagher testified that upon his arrival at the Sidhu residence, Ms. Sidhu was crying and in a state of panic. He also observed a small laceration on her arm: see Transcript of the Evidence, June 12, 2014, page 22, lines 13-14; page 2, lines 24-27; page 9, lines 24-27.

[13] Constable Gallagher also testified that Ms. Gallagher was in possession of handwritten notes at her residence but he did not seize them from her.

Mr. Sidhu’s Evidence

[14] Mr. Sidhu testified that he never took Ms. Sidhu’s cell phone from her. With respect to the February 4, 2013, incident, he noted that there was an argument over feeding their son yogurt, and over Ms. Sidhu wanting to watch Kim Kardashian. He got up to leave and his wife took the remote control. He went outside but then realized he had forgotten his wallet. He went inside to retrieve his wallet, then went to Shopper’s Drug Mart for lozenges, then to Esso for gas. He denied assaulting or threatening his wife: see Transcript of the Evidence, July 21, 2014, page 27, line 19; page 32, line 16.

[15] With respect to the Christmas 2012 incident, Mr. Sidhu testified that he discovered his wife was at Tim Hortons and an argument ensued. He did not feel their son should be out in the cold. He testified that he was concerned for the safety “for both of them”. He said he was worried they might slip on the ice. He testified that upon returning home, he went upstairs and slept. He denied any physical altercation or threat had taken place: see Transcript of the Evidence, July 21, 2014, page 32, line 26 to page 35, line 8.

[16] With respect to the alleged incident on Halloween 2012, Mr. Sidhu testified about an argument at Square One. The argument continued at home. He denied any physical altercation or making any threats to Ms. Sidhu: see Transcript of the Evidence, July 21, 2014, page 35, line 9 to page 36, line 23.

[17] Regarding the August 2012 incident, Mr. Sidhu testified that it occurred in August or September. He denied any intimate relationship with Parm Dhillon. He testified that he treated her like a sister. He said that his wife saw some text message from Parm. Mr. Sidhu returned home from work, and Ms. Sidhu confronted him about the text. He testified that he hugged his wife and began to cry. He said that no physical altercation took place: see Transcript of the Evidence, July 21, 2014, page 36, line 24 to page 41, line 17.

[18] During cross-examination, Mr. Sidhu denied that his wife had accused him of having an inappropriate relationship with Parm or that she had displayed jealousy. He testified that when he was at home she would use the laptop “once in a while”. He testified that she took all of his property but returned the laptop: see Transcript of the Evidence, July 21, 2014, page 55, lines 6-16; page 62, lines 23-25.

[19] Regarding the February 4, 2013, incident, Mr. Sidhu testified that he objected to yogurt being given to his son because it would make him sick. He agreed that both Ms. Sidhu and himself were angry. He testified that the two were arguing. He stated that he was watching his movie when his wife started yelling at him. He then decided to get medicine for his child. Ms. Sidhu was very angry. He went to Shopper’s Drug Mart to get lozenges for his son. He has no idea how his wife’s arm got scratched: see Transcript of the Evidence, July 21, 2014, page 62, line 26 to page 73, line 1.

[20] With respect to the alleged Christmas 2012 incident, Mr. Sidhu testified that Ms. Sidhu hung up the phone on him. He did not suggest they take a cab home from Tim Hortons. He said that he did not want them to slip and it was slushy.

TRIAL JUDGE’S DECISION

[21] The learned trial judge noted on page 1 of his Reasons for Judgment, that he was “guided and bound by the principles set out in R. v. W.D.” He noted that the Crown bore the burden of proving the charges beyond a reasonable doubt “on all of the essential elements of the offence.”

[22] The trial judge dismissed two of the threatening charges at the request of the Crown.

[23] He proceeded to review the testimony of all the witnesses. With respect to Ms. Sidhu’s testimony concerning the February 4, 2013 incident, Justice Currie noted at page 13 of his Reasons for Judgment, that:

Ms. Sidhu, the complainant’s testimony, in relation to that incident, had what is sometimes referred to as a ring of truth. She appears to have a clear recollection of what transpired. She was detailed in her description and her recollection of her son’s involvement, again, was clear and very descriptive.

[24] The trial judge rejected Mr. Sidhu’s testimony and found that it was incapable of raising a reasonable doubt. He noted at page 14 of his Reasons for Judgment that:

Mr. Sidhu … testified that none of this ever happened. Mr. Sidhu testified that it was a complete fabrication. He also testified that he wants to reconcile with his wife. That does not make sense to me. Here is a woman who has made up all of these stories about abusive, controlling, assaultive behaviour.

[25] The trial judge later concluded:

Mr. Sidhu testified that on February the 4th, that is the day the police were called, he let her do what she wanted. Those were his words. That is, nothing ever happened that morning, there was no argument, there was no assault. He simply left for work – or I’m sorry, he left to go to the pharmacy to get some cough syrup for their son.

I do not accept the evidence of the defendant in that regard. The emotional condition of Ms. Sidhu when the police arrived that day is, in my view, indicative of something having happened that morning. I accept her evidence as to what she described transpired on the morning of February 4th. I do not believe Mr. Sidhu, the defendant, when he tells the court that nothing happened that morning and he let her do what she wanted.

[26] The trial judge further noted, at page 15 of his Reasons for Judgment, that:

Ms. Sidhu’s evidence was believable, it was detailed, it described an ongoing scenario that she was living through as a result of the defendant’s controlling and abusive behaviour. I do not believe Mr. Sidhu in his denials. I do not find that his evidence raises a reasonable doubt in my mind.

[27] The trial judge then concluded at page 16 that:

On all of the evidence, that is, Ms. Sidhu’s, Mr. Sidhu, the defendant, and the evidence of the police officers, which corroborates, to a certain extent, the evidence of the complainant, vis a vis, her keeping a diary of sorts of incidents involving the defendant; the complainant’s emotional state when they found her at home on February the 4th, and a small injury to her arm, which goes unexplained, but is consistent with what Ms. Sidhu described in terms of protecting herself while the defendant was holding her while the defendant was holding her and striking her.

In the result, on all of the evidence before me, including that of the defendant, I am satisfied beyond a reasonable doubt that six of the eight counts have been proven.

THE APPELLANT’S POSITION

[28] Mr. Sidhu’s counsel makes the following submissions:

(1) The trial judge erred in principle in finding Ms. Sidhu to have been a credible witness.

(2) The trial judge erred in failing to draw an adverse inference against the Crown given its failure to call Harcharan Gill as a witness.

(3) The trial judge failed to consider Mr. Sidhu’s evidence and whether it raised a reasonable doubt.

(4) The trial judge improperly applied R. v. W.(D.) in his assessment of Mr. Sidhu’s guilt.

(5) The trial judge erroneously assumed that the different dates for the alleged offences in the Information and at trial did not prejudice Mr. Sidhu’s case.

CROWN’S POSITION

[29] The Crown submits that the trial judge properly analyzed the evidence and applied the appropriate legal test in finding Mr. Sidhu guilty of the offences.

ANALYSIS

[30] This appeal raises the following issues:

(1) Did the trial judge err in principle in finding Ms. Sidhu to have been a credible witness?

(2) Did the trial judge err in failing to place any significance to the Crown’s failure to call Harcharan Gill as a witness?

(3) Did the trial judge err in failing to consider whether Mr. Sidhu’s evidence raised a reasonable doubt?

(4) Did the trial judge err in law by failing to apply the legal principles set out in R. v. W.(D.)?

(5) Did the trial judge err by concluding that the discrepancy between the dates of the alleged offences in the information and the trial evidence was of little consequence?

ISSUE NO. ONE – Did the trial judge err in principle in finding Ms. Sidhu to have been a credible witness?

[31] Before answering this question, it is important to review the standard of appellate review with respect to a trial judge’s finding of credibility. Absent palpable or overriding error, factual findings by a trial judge should be afforded considerable deference: see R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 49; R. v. Cresswell, 2009 ONCA 95, at para. 14.

[32] In Waxman v. Waxman (2004), 2004 39040 (ON CA), 186 O.A.C. 201 (C.A.), at paras. 296-297, leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 291, the Court of Appeal described “palpable and overriding error” as follows:

The “palpable and overriding” standard addresses both the nature of the factual error and its impact on the result. A “palpable” error is one that is obvious, plain to see or clear: [Citation omitted.] Examples of Examples of “palpable” factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference.

An “overriding” error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a “palpable” error does not automatically mean that the error is also “overriding”. The appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error: [Citation omitted.]

[33] A trial judge has considerable latitude in his or her appreciation of the evidence and the inferences to be drawn therefrom in the assessment of the credibility of witnesses. Accordingly, all factual findings are open to a trier of fact, except unreasonable ones: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 32, 33, 37 and 42.

[34] In reviewing the learned trial judge’s factual determinations, the test is not whether the appellate judge would have arrived at a different factual conclusion but whether it was open to the trial judge to make the factual conclusion that he or she did.

[35] In R. v. R.E.M., at para. 49, the Supreme Court of Canada noted that, “where credibility is a determinative issue, deference is in order and intervention will be rare”.

[36] Finally, the Ontario Court of Appeal noted in R. v. Creswell, at para. 4, that “reasons for credibility findings need not consider or answer each and every argument or each and every piece of evidence”.

[37] Mr. Sidhu’s counsel submits that the trial judge erred by failing to address the inconsistencies in Ms. Sidhu’s evidence and the inconsistencies between her evidence and the investigating officers.

[38] For example, Ms. Sidhu testified that she did wish it to be known publicly that her marriage to Mr. Sidhu was her second marriage. When pressed during cross-examination, she stated that she did not care if people knew that she had been twice divorced. Second, she told the police on February 4, 2013, that in one of the incidents, Mr. Sidhu caused her nose to bleed after he struck her. However, both officers testified that they had no recollection or notation of Ms. Sidhu telling them about a bleeding nose. Ms. Sidhu also failed to mention the bloody nose in her video statement. She explained this omission by stating that when she spoke about the incident, the interviewing officer left the room and that when he returned, he asked her about another incident.

[39] In the first place, the trial judge was not obliged to assess every inconsistency in the Crown’s evidence. Whether Ms. Sidhu’s community would have reacted negatively to the fact that her marriage to Mr. Sidhu was her second marriage is not germane to the fundamental issue of whether the Crown had proven beyond a reasonable doubt that Mr. Sidhu assaulted Ms. Sidhu.

[40] Second, the trial judge addressed the issue regarding the bleeding nose. He concluded that the officers could well have omitted to make a note about it. Furthermore, even if Ms. Sidhu did not suffer a bloody nose on account of Mr. Sidhu’s action, it was nevertheless open to the trial judge to find Ms. Sidhu to have been a credible witness.

[41] The trial judge provided reasons for this finding. They include:

(1) Her evidence was believable.

(2) Her evidence was detailed.

(3) The evidence of the officers corroborated, to a certain extent, Ms. Sidhu’s evidence vis-à-vis – her keeping a diary of the incidents which the officers saw, the officer’s description of her emotional state on February 4, 2013, and Cst. Gallagher’s observation of a small injury to her arm which was consistent with Ms. Sidhu’s testimony that Mr. Sidhu held her arm while striking her.

[42] Based on this evidence, it was open to the trial judge to find Ms. Sidhu to have been a credible witness.

[43] Accordingly, this ground of appeal must fail.

ISSUE NO. TWO – Did the trial judge err in failing to place any significance to the Crown’s failure to call Harcharan Gill as a witness?

[44] Neither the Crown nor the defence has a proprietary interest in any witness. The Crown had no obligation to call Ms. Gill as a witness. Accordingly, it would have been improper for the trial judge to have drawn an adverse inference against the Crown for failing to call this witness. As the Supreme Court of Canada noted in R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168 at pp. 190: “The Crown has a discretion as to which witnesses it will call in presenting its case to the court. This discretion will not be interfered with unless the Crown has exercised it for some oblique or improper reason.” There is no indication in this case that the Crown had such a motive. In any event, Mr. Sidhu had the option or discretion of calling this witness during his trial.

[45] For the above reasons, this ground of appeal must fail.

ISSUE NO. THREE – Did the trial judge err failing to consider whether Ms. Sidhu’s evidence raised a reasonable doubt?

[46] This ground of appeal raises two issues, namely:

(1) Whether the trial judge considered the second branch of the R. v. W.(D.) test, and;

(2) Whether the trial judge provided adequate reasons for rejecting the evidence of Ms. Sidhu.

[47] The trial judge considered the three branches of the test for findings of credibility set out in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. On page 15 of his Reasons for Judgment, he stated that:

I do not believe Mr. Sidhu in his denials. I do not find that his evidence raises a reasonable doubt in my mind.

[48] Second, it is clear that the trial judge did not view his task of assessing credibility as being merely a credibility contest between Mr. and Mrs. Sidhu. Indeed, one of his reasons for finding Ms. Sidhu to have been a credible witness was that in many respects, her testimony was corroborated by that of the two police officers.

[49] Third, the trial judge provided reasons why he rejected Mr. Sidhu’s evidence. On page 14 of his reasons, he noted that:

He also testified that he wants to reconcile with his wife. That “does not make any sense to me”. Here is a woman who has made up all of these stories about abusive, controlling, assaultive behaviour.

[50] Fourth, the trial judge stated that he did not believe Mr. Sidhu’s evidence that nothing happened on February 4, 2013, in terms of an argument or any assaultive behaviour. He reasoned that the police officer’s observations of Ms. Sidhu were “indicative of something having happened that morning”. In other words, the trial judge relied on Ms. Sidhu’s testimony and that of the police officers in rejecting Mr. Sidhu’s testimony.

[51] In my view, it was entirely appropriate, based on the facts of this case, for the trial judge to do so.

[52] As noted by the Court of Appeal in R. v. J.J.R.D. (2006),