CITATION: R. v. Kulasingam, 2016 ONSC 1201

NEWMARKET COURT FILE NO.: 11-09978-01

DATE: 20160217

ONTARIO SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL

BETWEEN:

Her Majesty the Queen

Respondent

— and —

Shapeskanna Kulasingam

Appellant

COUNSEL:

Ms. Izadi, Counsel for the Appellant

Mr. J. Costain, Counsel for the Crown, Respondent

HEARD: July 21, 2015

H.K. O’Connell J.

JUDGMENT ON APPEAL

[1] Mr. Kulasingam was tried at Newmarket on a four count information, on the dates of April 02^nd and 3^rd, 2013.[^1]

[2] At the conclusion of the two day trial, four of the five counts were dismissed by the court.[^2] The one remaining count for the court’s consideration was count 1, namely that the accused did, by deceit, falsehood, or other fraudulent means, defraud Meridian Credit Union of money of a value not exceeding five thousand dollars.

[3] The learned judge convicted the Appellant of that count on May 30^th, 2013 with sentence imposed on the same date.

[4] For clarity there is no issue on this appeal that the dismissal of the other 4 counts on the indictment has any direct bearing on the conviction entered on count 1.

[5] The Appellant appeals his conviction and sentence.

Position of the Appellant on the Conviction Appeal

[6] The Appellant argues that the verdict was unreasonable and not supported by the evidence; that the trial judge misapprehended the evidence; and that the reasons of the trial judge fail to adequately explain the basis for the conviction.

The Verdict was Unreasonable

[7] Counsel for the Appellant, Ms. Izadi, notes that this case was entirely circumstantial. The Crown was tasked with proving beyond a reasonable doubt that the only logical inference from the proven facts was that the Appellant installed the skimming device on the bank machine.

[8] It is argued that this was not the only reasonable inference available on the evidence, and as a consequence the verdict is unreasonable and that the appeal should be allowed. The court should substitute a finding on not guilty, or in the alternative, a new trial should be ordered.

[9] It was for the Crown to disprove the possibility that someone else had installed the device.

[10] In support of the unreasonable verdict argument, counsel referenced 10 points in her factum at paragraph 21, all of which it is said establish a reasonable inference that someone else, and not the Appellant, installed the skimming device on the machine.

The Reasons do not allow for Meaningful Appellate Review

[11] If the court does not find favour with this portion of the Appellant’s argument it is argued in the alternative that the reasons for conviction do not allow for meaningful appellate review. Counsel argues that the reasons are absent material references to the evidence “that tended to weigh against, or cast doubt on the Crown’s theory that the Appellant was the person who had installed the devices.” (see factum of the Appellant, page 14, paragraph 23)

[12] Given this error in the reasons, the Summary Conviction Appeal court cannot undertake meaningful appellate review.

[13] To round out her submissions on this point, Ms. Izadi states at paragraph 24 of her factum:

The ease with which an innocent person in the Appellants’ position could find himself facing criminal charges merely for being in the wrong place at the wrong time is disturbing, and reinforces the importance of trial judges properly applying the criminal standard of proof and giving reasons that permit meaningful appellate review.

Position of the Appellant on the Sentence Appeal

[14] The Appellant argues that he should have been discharged. The learned judge failed, in his brief reasons for discounting a discharge, to properly address the “ best interests of the accused,” but rather focused on the incorrect legal standard in relation to the public interest portion of the analysis.

[15] Had the trial judge addressed the best interests of the Appellant, given his age and that he was a first offender and was gainfully employed, and the consequences of a conviction to him, the trial judge would have imposed a discharge.

[16] The trial judge further erred in finding that an entire class of frauds, those perpetrated via skimming devices, discounted resort to a discharge as an option for this offender.

[17] Indeed a discharge for the Appellant would actually advance the societal interest, something that the learned judge erred in principle in not considering.

[18] Finally the trial judge appears to have discounted a discharge because of the fact that the appellant exercised his right to a trial.

[19] I will not repeat the exercise here, but counsel cited case law that she argues supports the imposition of a discharge.

[20] This court should allow the sentence appeal, and substitute an absolute discharge, given that the Appellant has served the probationary term of his suspended sentence.

Position of the Crown, Respondent

The Verdict was Reasonable

[21] The Crown argues that the trial judge gave reasons that illustrate that the verdict was a reasonable one. The evidence was sufficient to show that the appellant installed the skimming devices on the ATM. The findings of fact are sound and the inferences drawn are likewise subject to deference.

[22] It is important to note that the trial judge had the advantage of seeing and hearing the witnesses at trial. A review based on the record is absent that ability.

[23] The entirety of the evidence, upon review, must be assessed. In cases involving circumstantial evidence, proof beyond a reasonable doubt is based on the only rational inference that can be drawn from the circumstantial evidence. That is the exercise the trial judge engaged in, and his findings are entirely reasonable.

[24] Applying the requisite principles, and having considered the totality of the evidence, it cannot be said that a finding of guilt could not be made in the case at bar.

[25] The trial judge referenced that it was a possibility that the Appellant could have been banging on the ATM to get a card out of the machine, however the trial judge in the context of all of the evidence rejected this possibility given the totality of the evidence.

[26] The ‘inference of possibility’ was rejected by the trial judge, as he was entitled to do, on a considered acceptance of the evidence by the trial judge.

[27] The trial judge was likewise entitled to find, based on the evidence that he accepted, that the fraud by installment of the skimming device on the ATM was perpetrated by the Appellant, even though the Appellant could not be eliminated as the only person with the exclusive opportunity to install the device.

[28] The appellate court can consider the failure of the Appellant to testify at trial in considering the reasonableness of the verdict at trial.

[29] Absent evidence of an explanation for what the Appellant was doing at the ATM, which could have emanated from the Appellant, and given that the defence theory without such evidence was mere speculation, the verdict cannot be considered to be unreasonable.

[30] All said there were no reasonable inferences available to the trial judge that were inconsistent with the Appellant’s guilt.

The Trial Judge did not misapprehend the Evidence

[31] In addition the Crown argues that the trial judge did not misapprehend the evidence. There is no showing of such by the Appellant. There is no basis to suggest that the trial judge failed to consider the evidence relevant to a material issue, made a mistake as to the substance of the evidence, or failed to give proper effect to the evidence.

The Trial Judge provided reviewable Reasons

[32] Finally, in response to the Appellant’s argument that the trial judge did not provide sufficient reasons, the Crown argues that the reasons, although short, are up to the task of informing the reader of the functional need to know why judgment was rendered as it was.

[33] The reasons belie any argument that the appellate court cannot review the reasons for sufficiency.

[34] Finally, a reading of the reasons in conjunction with the record as a whole, make it plain that the reasons are sufficient for appellate review.

[35] Even if this court finds that the reasons are deficient for appellate review, this court can review the record and comfortably come to the conclusion that on this record, the verdict is entirely sustainable such that the proviso can be applied.

Position of the Crown on the Sentence Appeal

[36] Sentencing decisions are entitled to substantial deference on appeal. Provided that the sentence is not manifestly unfit and otherwise reasonable, this court should not interfere.

[37] The Appellant does not suggest that the sentence is unfit or excessive, but rather that the “best interests of the accused” was not explicitly addressed by the trial judge.

[38] In conjunction with this error, the Appellant argues that the trial judge applied the incorrect legal standard with respect to the public interest component of a discharge.

[39] The Respondent reminds that for imposition of a discharge both statutory requirements of section 730(1) of the Criminal Code must be met. The Respondent notes that the Appellant did not make submissions on whether a discharge would be in the best interests of the Appellant. The Crown argued that a discharge would be contrary to the public interest.

[40] Given the record, it is reasonably inferable that the part of the test for the granting of a discharge, namely that it would be in the best interests of the Appellant, was not an issue as between the parties.

[41] However, the trial judge found that a discharge was contrary to the public interest. Having made that finding, providing it was reasonably made, makes the failure to impose a discharge completely justifiable given the conjunctive nature of the test for the imposing of a discharge.

[42] The trial judge considered the relevant factors in determining that the offender should not be discharged. This is not a case where the trial judge penalized, improperly, the right of the Appellant to a trial, but rather a fair reading of the record in respect of the reasons for sentence illustrates that the decision to impose a suspended sentence was a sound one, and ought not to be disturbed on appeal.

Decision

The Reasons are Sufficient[^3]

[43] I will start with the sufficiency of the reasons. The reasons were delivered on May 30, 2013. They consume 8 pages of transcript. The reasons refer to the evidence that was tendered and the trial judge’s findings in relation to that evidence. The trial judge correctly set out the law of fraud, an issue that is not germane to this appeal.

[44] In short, although the Respondent notes that the reasons are short, that is no reason to suggest that they are not up to the task for appellate review. Indeed brevity is not a sin, but rather given the manner in which these reasons were crafted in this case, a virtue. This trial took parts of 2 days of trial time. It was short and succinct. The evidence was not complicated nor mired in legal complexity.

[45] I find that the reasons are clearly sufficient for appellate review. They are cohesive, succinct and direct the reader on a clear path of how the learned judge came to the conclusion that he did.

The Verdict was Reasonable[^4]

[46] The trial judge was called upon to do what trial judge’s do each and every day, make findings of fact based on the evidence, and apply the legal test for the utility of that evidence to the need of the Crown to prove its case beyond a reasonable doubt.

[47] In this case, which was circumstantial in large degree, the trial judge applied the law to the evidence and the facts that he found based on that evidence, to find that he was satisfied beyond a reasonable doubt that the Appellant was guilty.

[48] Implicit in his finding is the fact that the only logical reason for conviction based on the circumstantial evidence, is that the trial judge was satisfied beyond a reasonable doubt of the guilt of the accused.

[49] I reject the argument that the trial judge erred in his finding of drawing the only reasonable inference from the activity at the ATM, namely that the Appellant was the installer of the device that was placed on the machine to allow for fraud to occur.

[50] In this regard, the trial judge found that although the placement of the skimming device by another person was a logical possibility, given that one witness testified that was possible that the Appellant was trying to free a stuck card from the machine, the trial judge went on to say expressly that that possibility was “not a realistic one in light of the other evidence.”

[51] The trial judge had already found that he accepted the evidence of the Crown, including the motion of the Appellant’s body at the machine. The trial judge’s reference to a ‘logical possibility’ cannot be read in isolation. It is clearly qualified by that fact that he rejected that possibility when juxtaposed with the evidence that he accepted. Reasons have to be read in their totality.

[52] The verdict is therefore reasonable and admits of no error in its reasoning trail of a failure of the trial judge to apply the test that in a circumstantial case, the only reasonable inference to be drawn from the proven facts, is that of guilt.

[53] Finally, although I need not technically resort to the fact that the accused did not testify, something that is germane on appellate review in discerning whether a verdict is reasonable, I find given the findings of the trial judge in the absence of evidence from the defence, that the finding of guilt was well anchored and constructively assessed by the trial judge in accord with the correct legal principles.

There was no Misapprehension of the Evidence[^5]

[54] I cannot find any material, much less immaterial, misapprehension of the evidence by the trial judge. I remind again that this was a simple factual case. There is no merit to the argument that the trial judge erred in his consideration of the evidence such that he misapprehended it in a material way, failed to give proper effect to the evidence or made a mistake as to the substance of the evidence.

The trial judge considered the evidence as he was entitled to do, and made the findings he was entitled to make.

The Sentence

[55] It cannot be said that the sentence was unfit, or mired in judicially misconceived application of the relevant principles. Nor, I find, can it be said that the trial judge erred in principle in his consideration of the discharge provision of the Criminal Code. In this respect I agree with Crown counsel’s analysis as set out in its factum.

[56] Although at first blush the trial judge’s comment about the imposition of a discharge not being in the public interest after a trial, is somewhat troubling, it cannot be ignored that the trial judge imposed sentence on the same date that he rendered judgment and heard submissions on sentence. This experienced trial judge was not ‘punishing’ the Appellant for having a trial, which had that occurred, would have been a clear error.

[57] A fair reading of the reasons for sentence satisfy me that the trial judge directed himself to why a discharge was not in the public interest. The judge expressly referenced the submissions of counsel made on sentencing, immediately prior to imposition of the sentence. The landscape of the offender’s background, and the nature of the offence committed, were very much in the sights of the sentencing judge.

[58] Under all of the circumstances the reasons of the trial judge for not imposing a conditional discharge are not open to appellate intervention. The appeal against conviction and sentence is therefore dismissed.

The Honourable Mr. Justice H.K. O’Connell

DATE RELEASED: February 17, 2016

[^1]: The information contained 5 counts, but count 5 related to another accused and did not implicate the appellant.

[^2]: Counsel moved for a directed verdict of acquittal on counts 2, 3, and 4. The Crown conceded that count 4 should be dismissed; that although there was some evidence proffered on count 3, the Crown was not able to prove the count beyond a reasonable doubt and invited the court to dismiss that count; and in relation to count 2 the Crown argued the court could convict so a directed verdict was not available, however the court found that a directed verdict of acquittal on that count was appropriate.

[^3]: The reasons must explain the verdict; provide public accountability; and permit effective appellate review: R. v. R.E.M., 2008 SCC 51. The reviewing court must consider the reasons in conjunction with the evidence as a whole, the arguments advanced and an appreciation of the purposes or functions for which the reasons are delivered: R. v. Vuradin, 2013 SCC 38. As Watt J.A. said in R. v. Wolynec, [2015] O.J. No. 5051, “A trial judge is not obliged to detail his or her finding on each morsel of evidence or controverted fact, provided that the findings linking the evidence to the verdict can be logically discerned.”

[^4]: The bounty of law on the test for an appellate court to assess the reasonableness of a verdict, is readily available. The test is to focus on the verdict and to assess its reasonableness measured against the evidence as a whole. If having done so a properly instructed jury could convict, acting reasonably, then the verdict is sound. In Wolynec, Watt J.A, notes that there is an expanded scope in judge alone trials for a review for unreasonableness. Where a trial judge renders a verdict that is illogical or irrational, appellate intervention is necessary. Likewise, if a trial judge draws an inference or makes a finding of fact that is plainly contradicted by evidence or is “demonstrably incompatible with evidence that is not otherwise contradicted or rejected by the trial judge” the verdict will be unreasonable. Watt J.A. also noted that the conclusion reached at trial is the focus of the unreasonable verdict analysis. The verdict must be in error. As his Lordship stated: “no per se rule requires a conclusion that a verdict is unreasonable every time an error in reasoning appears, even an error that is demonstrably incompatible with the evidence adduced at trial.” See: R. v. Sinclair, 2011 SCC 40. Watt J.A. further noted that “unreasonable verdicts of the nature marked out under this expanded review for unreasonableness are extremely rare.”

[^5]: See R. v. Lohrer, 2004 SCC 80.