CITATION: R. v. Jayaraj, 2016 ONSC 836
COURT FILE NO.: 141/12
DATE: 20160202
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
DAVID PRABAKAR JAYARAJ
Appellant
Robert Wright, for the Crown
Appeared in Person
HEARD: October 23, 2015
Reasons for Decision: Summary Conviction Appeal
m.f. bROWN j.
Overview
[1] The Appellant, David Jayaraj (“the Appellant”) was found guilty of assault on November 6, 2012, after a trial before Justice F. Bhabha. The Appellant was sentenced to a conditional discharge with a period of six months probation. The Appellant appeals his finding of guilt and sentence.
[2] The Appellant raised a number of issues in his written factum and in oral argument regarding his trial, but essentially they can be combined into two grounds of appeal:
(1) The verdict should be set aside on the ground that his trial was not fair because the conduct of the trial judge created a reasonable apprehension of bias; and
(2) The verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence.
Factual Background
[3] On November 9, 2010, the Appellant was working as a delivery person in downtown Toronto. Around 8 p.m. that evening, he was picking up a pizza order from a restaurant called Il Fornello, which was located on Yonge Street just north of Delisle Avenue.
[4] While attending at the restaurant, the Appellant parked his car in the driveway of the residential condominium building at 10 Delisle Avenue in front of the loading dock.
[5] The complainant was at that time working as a security officer/concierge for the condominium building. He testified that he saw the car on the security cameras parked in the driveway and went to investigate. When the Appellant returned to his vehicle from the restaurant, the complainant was standing by the vehicle and asked the Appellant to move the car.
[6] A verbal altercation ensued. The complainant alleged that the Appellant then shoved him by grabbing his upper arm and pushing him backwards, such that the complainant stumbled, but was able to catch himself and did not fall. The Appellant entered his vehicle and left the scene. The complainant noted the Appellant’s licence plate number, and phoned the police to report the incident.
[7] The Appellant testified. He did not deny that he pushed the complainant. He testified that the complainant had spat at him and then moved towards him with his hands outstretched. The Appellant testified that he met the complainant’s hands, palm to palm, and pushed him back. The Appellant described a similar incident from four months prior, which he believed demonstrated a pattern of hostility on behalf of the complainant. He testified that he pushed the complainant as a response to the complainant’s actions. He thought the complainant was going to hold the Appellant against the car and continue to spit on him. He believed the complainant was deliberately trying to provoke him, or frame him, as revenge for the incident of four months prior.
[8] Timothy Parker, a resident of the building, witnessed the altercation. His testimony was that he spotted the car parked in the driveway and went inside the building to ask the complainant to do something about it. He then followed the complainant outside, and from his vantage point at the building’s entrance, he was able to see the incident. Mr. Parker testified that he never saw the complainant use force or threaten to use force against the Appellant. He did say that he heard expletives uttered by both parties. Mr. Parker testified that he saw the Appellant shove the complainant against the vehicle. He denied that the complainant had spat at the Appellant.
Reasons for Judgment of the Trial Judge
[9] The trial judge delivered her oral judgment on November 6, 2012. She reviewed the testimony of the complainant, the Crown witness, and the Appellant. She outlined the positions of the Crown and the Appellant.
[10] The trial judge applied the test in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. She assessed the credibility and reliability of the Appellant’s evidence and found that she did not believe his evidence and was not left in a reasonable doubt about his evidence for a number of reasons which she set out. She then turned to the third branch of R. v. W.(D.). She considered a number of inconsistencies in the evidence and was satisfied on the basis of the evidence she did accept that the Crown had proved the guilt of the Appellant beyond a reasonable doubt.
[11] The Appellant argued that the complainant’s story to police and testimony in court differed as to the nature of the assault. The trial judge acknowledged this, but noted the different account described at trial actually served to minimize and underplay the assault. This admission served to enhance the complainant’s credibility or at least refute the Appellant’s allegations that the complainant was deliberately trying to frame the Appellant. The trial judge did not accept that the earlier statement to police, in which the complainant described falling to the ground, was an attempt by the complainant to persuade the police to lay charges.
[12] The Appellant was also able to produce a recording that demonstrated the complainant calling the Appellant a “dumb ass”, though the complainant had testified he never said this. The trial judge considered this evidence but held, “[E]ven if I accept that he was less than forthright with the court, I am not persuaded – at least it does not take it so far for me along the path of rejecting [the complainant’s] account of the assault.”
[13] With regard to the witness, Mr. Parker, the trial judge noted that he was not completely independent, given that he is a resident of the condominium which the Appellant is suing. Even so, the trial judge described Mr. Parker as forthright and honest. He was candid about his memory lapses, attributing them to the passage of time. She found him to be reliable with respect to there being contact between the Appellant and the complainant and on the central issue as to whether the Appellant was acting in self-defence.
[14] There were discrepancies between the accounts of the complainant and Mr. Parker. The trial judge considered the discrepancies in her analysis of credibility and reliability. She concluded that the differences showed a lack of collusion between the witnesses. Furthermore, they were not critical to the issues. In Mr. Parker’s case, the discrepancy enhanced Mr. Parker’s credibility by suggesting a lack of partiality.
[15] The trial judge held, “[O]n the critical point I find that Mr. Uddin’s evidence is corroborated by Mr. Parker’s, that Mr. Jayaraj pushed Mr. Uddin, that it was unexpected.” The trial judge made findings of fact including:
• Mr. Uddin did not spit at Mr. Jayaraj;
• Mr. Uddin did not threaten to spit at Mr. Jayaraj;
• Mr. Uddin did not approach Mr. Jayaraj in the aggressive manner described by Mr. Jayaraj;
• Mr. Uddin was surprised by the push and lost his balance but did not fall; and
• Mr. Jayaraj was likely very frustrated by his prior dealings with Mr. Uddin and by the stresses of his job, and this caused him to behave in the way that he did.
[16] On the whole of the evidence, the trial judge concluded that she was satisfied beyond a reasonable doubt that the Appellant pushed the complainant, was not provoked, and was not acting in self-defence. Accordingly, she found him guilty of assault.
Analysis
Reasonable Apprehension of Bias
[17] Justice Cory succinctly explained the principle of judicial impartiality in R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484, at para. 91:
A system of justice, if it is to have the respect and confidence of its society, must ensure that trials are fair and that they appear to be fair to the informed and reasonable observer. This is a fundamental goal of the justice system in any free and democratic society.
[18] A decision-maker must both be fair and appear fair. As Cory J. put it, at para. 94, “If the words or actions of the presiding judge give rise to a reasonable apprehension of bias to the informed and reasonable observer, this will render the trial unfair.”
[19] The test for reasonable apprehension of bias was set out in de Grandpre J.’s dissent in Committee for Justice and Liberty v. National Energy Board, 1976 2 (SCC), [1978] 1 S.C.R. 369, and has since been consistently endorsed by the Supreme Court of Canada. The two elements of the test are as follows:
The apprehension of bias must be a reasonable one, held by reasonable and right-minded persons; and
The question to be asked is: what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude? Would he think it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly?
[20] The onus for demonstrating bias lies on the person alleging it: see S. (R.D.), at para. 114.
[21] In S. (R.D.), at paras. 32 & 117, the Supreme Court of Canada reiterated the basic premise that judges are assumed to be individuals of conscience and intellectual discipline and presumed capable of deciding a case fairly. The threshold for a successful allegation of perceived judicial bias is therefore high and the presumption of impartiality is not easily displaced: see more recently Yukon Francophone School Board, Education Area No. 23 v. Yukon Territory (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282.
[22] The Court of Appeal for Ontario in Marchand v. The Public General Hospital Society of Chatham (2000), 2000 16946 (ON CA), 51 O.R. (3d) 97 (C.A.), leave to appeal refused [2001] S.C.C.A. No. 66, summarized the applicable principles as follows, at para. 131:
All adjudicative tribunals owe a duty of fairness to the parties who appear before them. The scope of the duty and the rigour with which the duty is applied vary with the nature of the tribunal. Courts, however, should be held to the highest standards of impartiality.
Impartiality reflects a state of mind in which the judge is disinterested in the outcome and is open to persuasion by the evidence and submissions. In contrast, bias reflects a state of mind that is closed or predisposed to a particular result on material issues.
Prejudgment of the merits, prejudgment of credibility, excessive and one-sided interventions with counsel or in the examination of witnesses and the reasons themselves may show bias. The court must decide whether the relevant considerations taken together give rise to a reasonable apprehension of bias.
The threshold for a finding of actual or apprehended bias is high. Courts presume that judges will carry out their oath of office. Thus, to make out an allegation of judicial bias requires cogent evidence. Suspicion is not enough. The threshold is high because a finding of bias calls into question not just the personal integrity of the judge but the integrity of the entire administration of justice.
Nonetheless, if the judge’s words or conduct give rise to a reasonable apprehension of bias, it colours the entire trial and cannot be cured by the correctness of the subsequent decision. Therefore, on appeal, a finding of actual or apprehended bias will ordinarily result in a new trial.
[23] In this case, the trial judge was careful to explain her role to the unrepresented Appellant and ensured he had access to duty counsel. She addressed complaints of the Appellant as they arose throughout the proceedings. Those moments of disagreement between the trial judge and the Appellant are properly understood as the trial judge merely attempting to maintain control of the trial process. Furthermore, there was nothing to indicate the trial judge had decided the matter before hearing all the evidence.
[24] The onus is on the Appellant to establish that there was a reasonable apprehension of bias on a balance of probabilities. Having viewed the trial record as a whole, I am of the view that a reasonable and fair-minded observer would conclude that the trial judge conducted the trial impartially and that the Appellant had a fair trial.
[25] Accordingly, I would not give effect to this ground of appeal.
Unreasonable Verdict
[26] Under s. 686(1)(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46, an appellate court is empowered to allow an appeal where it is of the opinion that the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence.
[27] The Supreme Court of Canada in R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168, at p. 185, confirmed that the question for an appellate court to ask when determining the reasonableness of a verdict is: “[W]hether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered.” This test has been subsequently endorsed by the court numerous times in the past three decades: see for example R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 36, 42; and R. v. H. (W.), 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 26. Although it speaks of a jury, the test is equally applicable to the judgment of a judge sitting without a jury: see Biniaris, at para. 37; and R. v. Smith, 2016 ONCA 25, at para. 74.
[28] A misapprehension of the evidence by the trial judge could lead to an unreasonable verdict (or, indeed, a miscarriage of justice): see R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732. A verdict may also be found unreasonable “if the trial judge has drawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge”: see R. c. P. (R.), 2012 SCC 22, citing R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3 and R. c. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190.
[29] An appellate court must not merely substitute its own opinion for that of the trial judge. The purpose of reviewing, re-examining, and re-weighing the evidence is to assess whether the judge’s verdict is reasonable and could be supported by the evidence: see R. v. P.C. (2001), 2001 24180 (ON CA), 140 O.A.C. 196 (Ont. C.A.), at paras. 12-14.
[30] Much in this case turned on the trial judge’s assessments of credibility of the various witnesses. A trial judge’s assessment as to credibility is entitled to considerable deference. The trial judge has had the advantage of seeing and hearing the witnesses as they gave their evidence. As the Court of Appeal for Ontario has put it, credibility is an issue “our system wisely leaves to trial judges”: see R. v. Tzarfin (2005), 2005 30045 (ON CA), 201 O.A.C. 183 (Ont. C.A.), at para. 10.
[31] In R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6, Fish J. reaffirmed the principles governing an appellate court with respect to the trial judge’s factual findings. He stated, at para. 9:
Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. “Palpable and overriding error” is a resonant and compendious expression of this well-established norm. [Citations omitted].
[32] In my view, the trial judge’s reasons were clear and thorough. As discussed above, she assessed the evidence of each witness and made findings of fact supported by the witnesses’ evidence and her assessment of the witnesses’ credibility. The Appellant has argued that there was no motive established by the Crown for him to push the complainant. The trial judge in her reasons properly noted that the Crown is not required to prove motive. As a matter of law, motive is not an essential element of an offence the Crown must prove. The trial judge indicated that it was likely that the Appellant pushed the complainant because the Appellant was frustrated by his prior dealings with the complainant and the personnel at 10 Delisle Avenue and the exigencies of his job. It was open to the trial judge on the evidence before her to make such findings of fact.
[33] In all the circumstances, the verdict was not unreasonable. I am satisfied that the findings of the trial judge can be supported by the evidence heard at trial. The trial judge made no error in law and made no palpable or overriding error of fact.
[34] Accordingly, I would not give effect to this ground of appeal.
Sentence Appeal
[35] It was not entirely clear from the Appellant’s Notice of Appeal or his Factum whether he wished to also appeal the sentence imposed by the trial judge. When asked in the course of oral argument if he was appealing sentence, the Appellant indicated to me that he wanted everything quashed. He said he did not know what words to use, but he wanted the trial judge’s entire order quashed.
[36] I am assuming for the purposes of this appeal that the Appellant’s intention was also to appeal his sentence of a conditional discharge and six months probation pursuant to s. 813(a) (iii) of the Code, although he did not direct his submissions, in his written factum or in oral argument, to that issue directly.
[37] In any event, I am not satisfied that the sentence imposed by the trial judge should be varied. The standard of review on a sentence appeal is one of great deference to the sentencing judge: see R. v. L.M., 2008 SCC 31, [2001] 2 S.C.R. 163, at paras. 14-15.
[38] Absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit: see R. v. M.(C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, at para. 90.
[39] None of the aforementioned conditions exist in this case in regard to the sentence imposed by the trial judge. There is no basis to interfere with her decision as to sentence.
[40] Accordingly, the appeal as to sentence is dismissed.
Conclusion
[41] In summary, the Appellant received a fair trial. The Appellant has failed to demonstrate a reasonable apprehension of bias. Furthermore, the verdict was not unreasonable and it can be supported by the evidence. The trial judge did not make any errors of law or palpable or overriding errors of fact. Also, there is no basis to interfere with the sentence of the trial judge.
[42] Accordingly, the appeal of the trial judge’s finding of guilt and sentence is dismissed.
[43] The Appellant has asked that the stay of the probation order originally made by Justice Speyer on March 27, 2013, which I extended until the release of my decision in this appeal, continue until 30 days after the date of the release of my decision. In my view, any issues regarding a stay of any orders of probation or otherwise are best left to an appellate court to deal with in the event that leave is sought to appeal my decision. Accordingly, the stay of the probation order will cease as of the date of the release of my reasons for decision in this appeal.
M.F. Brown J.
Released: February 2, 2016
CITATION: R. v. Jayaraj, 2016 ONSC 836
COURT FILE NO.: 141/12
DATE: 20160202
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
DAVID PRABAKAR JAYARAJ
Appellant
REASONS FOR DECISION: SUMMARY CONVICTION APPEAL
M.F. Brown J.
Released: February 2, 2016