COURT FILE NO.: SCA (P) 426/20
DATE: 2021 08 16
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
R. Mullins, for the Respondent
Respondent
- and -
SUKHPAL MANGAT
H. Locke, for the Appellant
Appellant
HEARD: July 12, 2021
REASONS FOR JUDGMENT
[On appeal from the judgment of Blacklock J. dated December 5, 2019]
Dennison J.
Overview
[1] The appellant, Mr. Mangat, was convicted of assault with a weapon on December 5, 2019. The trial judge found that the appellant struck the complainant, Mr. Hashmi, with a hatchet, inflicting injuries on the complainant’s hands and forearm. The trial judge was satisfied beyond a reasonable doubt that the appellant attacked the complainant with the hatchet that resulted in the complainant’s injuries.
[2] The appellant submits that the trial judge made four errors in convicting the appellant. Therefore, the four issues to be resolved on this appeal are as follows:
- Did the trial judge fail to consider certain evidence that resulted in a miscarriage of justice?
- Did the trial judge apply an uneven level of scrutiny to the appellant’s evidence as compared to the complainant’s evidence?
- Did the trial judge err in his consideration of the complainant’s motive or absence of motive?
- Did the trial judge improperly apply the principles of R v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742?
Summary of the Evidence
[3] There is no dispute that the complainant owed the appellant $3,500. In June 2017, the complainant signed a contract with the appellant for a work placement, which included learning to drive a manual truck. The complainant trained for one week but then ceased further contact with the company.
[4] The appellant tried to contact the complainant to obtain the monies owed. In August 2017, the appellant engaged a collection agency. The complainant met with the collection agency and arranged to make payments. The complainant paid the collection agency $1,000 five days prior to the meeting with the appellant. The appellant testified that he did not know before the meeting that the complainant had paid the collection agency this money.
[5] The appellant and complainant dispute whether the meeting on September 23, 2017, was initiated by the appellant or the complainant. The appellant denied initiating the meeting because he had already sent the file to a collection agency. He believed the complainant came to the office to obtain his job again. Regardless, there were texts between the complainant and appellant showing that the parties were to meet at the appellant’s office. The complainant testified that he called the appellant to speak amicably in person to request the collection agency not be involved. The complainant also testified that the appellant texted him on September 21 or 22, 2017, saying it “would be bad” if the complainant did not come to see the appellant. The complainant believes the appellant deleted these texts in the washroom.
[6] On September 23, 2017, the complainant attended the appellant’s business. He had a plastic bag from a grocery store containing the collection agency papers, his marriage papers from the day prior, his phone, and his car keys.
[7] The appellant and complainant dispute what happened next. Given the importance of this evidence, and the significant differences between the complainant’s evidence and the appellant’s evidence, it is helpful to summarize their respective accounts of events.
The Complainant’s Evidence
[8] The complainant testified that he sat across a table from the appellant. He asked the appellant not to proceed with the collection agency and agreed to pay the monies owed. He explained why he left work and placed the bag on the table to show the appellant the documents he had. Two other people came into the office and the complainant was asked to wait outside. The complainant was unsure if he left his bag and phone on the table. The tone was civil.
[9] After a few minutes, the complainant returned to see if the meeting was over, and he waited for the appellant. After the two individuals left, the complainant and appellant had a further discussion. During this discussion, they swore at each other.
[10] The complainant testified that the appellant took a hatchet from underneath the table and stood up and hit him once on the right forearm using his right hand. The complainant stood up and put his hands in front of his face, with his palms facing out. He was hit in the left hand, in the fat underneath the thumb halfway across the palm. He was also cut in the two middle fingers of his right hand. After the appellant struck the complainant five to six times, the complainant was bleeding a lot and felt dizzy. He expressed difficulty remembering what happened after this point.
[11] The appellant seemed to realize what he had done and put a piece of cloth on the complainant’s right forearm. In cross-examination, the complainant stated that the appellant took his t-shirt off and wrapped the t-shirt on the complainant’s forearm. Later, the complainant seemed unsure if the appellant put on the same t-shirt that was used to wrap his forearm before the police arrived. He was also unsure if it was a t-shirt or a cloth that was used to wrap his arm. There is no dispute that the appellant was wearing a shirt when police arrested him and that there was virtually no blood on the shirt he was wearing.
[12] The complainant testified that the appellant took the complainant’s phone and called the police, telling the police that the complainant had hit him and that his life was in danger. The appellant then approached the complainant with the hatchet and told the complainant to hold the ax by the handle or he would hit him again. The appellant held the ax by the neck with a cloth, presumably to avoid having his fingerprints on the hatchet.
[13] After that the appellant went to the washroom with the complainant’s phone. At that point, the complainant went outside and asked a nearby shop to call 911. He then went to his car and waited for police.
[14] In cross-examination, the complainant denied that he told the appellant he was a “Dogar” and “do you know who you are dealing with.” The complainant denied bringing the hatchet and smashing the computer with the hatchet but agreed that there were cut marks at the bottom of the plastic bag he brought.
[15] The complainant agreed he knew that both he and the appellant had been arrested at the time he gave his statement to police. The complainant did not recall whether he told the police that the appellant had sent him threatening messages. He explained that he was not able to communicate very well at the interview as he was not okay. The complainant also agreed that in his initial statement he said he was standing when the attack took place, but at trial he testified that he was sitting.
[16] The complainant testified that he was on a student visa and had married to remain in Canada. He also agreed that he had been arrested by police in the past for domestic assault, which resulted in at least one peace bond. He also testified that he sued the appellant for attacking him with the hatchet based on his wife’s advice.
The Appellant’s Evidence
[17] The appellant testified that he was sitting at his desk at approximately 2 p.m. when the complainant arrived at his office. The complainant had a plastic bag with him. The appellant testified that he paid little attention to the bag and believed that the complainant put it on the floor beside him to the right. Some students arrived shortly thereafter and filled their water bottles and left after the complainant told them to leave.
[18] The complainant demanded that the appellant tell the collection agency to stop calling. The appellant advised it was out of his hands and went to the washroom.
[19] When the appellant returned from the washroom, the complainant was standing beside the appellant’s computer with the hatchet. The complainant hit the computer with the hatchet, and it fell to the ground. The complainant swore and moved towards the appellant. The complainant was holding the hatchet with one hand on the shaft. The appellant grabbed the hatchet by the rubber handle with one hand and held onto the complainant’s right arm with the other.
[20] The complainant grabbed the appellant by his hair and the two struggled with the hatchet. The appellant let go of the hatchet with one hand to pry the complainant’s hand from his hair. The complainant then put his right hand on the metal section of the shaft of the hatchet and his left hand held the blade with his fingers wrapped around the head of the hatchet. The appellant’s hand was still on the hatchet and he pushed the complainant backwards with the other hand. The hatchet fell and the appellant ran to the back door, taking a portable office phone and a cell phone.
[21] The appellant testified that he hid under some containers in the back of the unit and called 911 using the portable office phone, which he did not realize had disconnected. Later the appellant stated that he could not recall if the phone was disconnected, or if he hung up. The appellant called a second time from a different area from his cell phone, which he remembered was in his pocket. He told 911 where he was and that the complainant brought a knife in a bag.
[22] The appellant denied taking off his t-shirt to wrap the complainant’s arm or forcing the complainant to hold the hatchet after the assault. The appellant does not know how the complainant sustained his injuries.
The 911 calls and the Police’s Arrival
[23] Two police officers, PC French and PC Carroll responded to the 911 call.
[24] PC French testified that when he arrived on scene the complainant was yelling, very upset and not being co-operative. He was very excited, and police tried to calm him down. The complainant’s shirt was covered in blood. The complainant had a large gash that had bled a lot, and his bone was showing on the inside of his right arm. The complainant had a blood-soaked wrap around his left hand which was leaking blood.
[25] When PC French entered the office, he saw blood droplets and the hatchet on the floor. A cell phone, laptop and computer screen were on the floor and the desk was clear.
[26] PC Carroll seized the appellant’s clothing. There was some dried blood on the pants and a drop of blood on his shirt. After interviewing the complainant and appellant, PC Carroll went with the complainant back to the office. PC Carroll retrieved the complainant’s cell phone and the bag of documents from the complainant’s trunk. PC Carroll could not recall if the phone was on the table, but it was located quickly.
Trial Judge’s Reasons
[27] The trial judge reviewed the law with respect to the Crown’s burden to prove all essential elements of the offence beyond a reasonable doubt, as well as the Crown’s obligation to prove beyond a reasonable doubt any legal justification, such as self defence.
[28] The trial judge did not believe the appellant’s evidence. He noted that his evidence had “certain contradictory behaviour and scenarios” which were “wildly out of step with human experience.” The trial judge also noted the appellant’s evidence was “difficult to square with the complainant’s injuries … and content of some of the exhibits.”
[29] The trial judge addressed the appellant’s submissions that the complainant had a motive to lie. The trial judge noted that the complainant was attempting to secure status in Canada at the time of these events. The trial judge noted that “becoming embroiled in serious criminal activity would not assist him in that regard.” The trial judge also noted that at the time of the event the complainant had already met with the collection agency and paid $1,000 of the $3,500 owed. In considering motive, the trial judge highlighted the discrepancy between the complainant’s motive to lie and the significant injuries the complainant suffered.
[30] The trial judge also considered the inconsistency in the appellant’s evidence that the complainant made threats over the phone days before this incident, yet the appellant believed the complainant was coming to see him to continue working for him.
[31] In rejecting the appellant’s evidence, the trial judge noted that the appellant’s version of events required the trial judge to accept that the appellant “simply went to the washroom and left the complainant alone in the office.” The appellant went to the washroom despite the complainant previously threatening the appellant, telling two other individuals to leave the building, refusing to leave when requested, and acting in a threatening manner.
[32] The trial judge also noted that when the appellant returned from the washroom, the complainant had the hatchet and knocked a computer off the appellant’s desk. Instead of running through the available back door, the appellant chose to engage the complainant in close quarters.
[33] The trial judge did not accept the appellant’s evidence that during a struggle for the hatchet, the appellant managed to grab the hatchet by the rubber handle. As he explained, the complainant was at least as big and strong as the appellant and for some reason the complainant grabbed the head of the hatchet with his palm wrapped around the cutting edge. The trial judge found that “it would be sheer folly to try to grab the head of the hatchet … Even if the complainant wanted to gain some advantage by putting two hands on the ax, he could have simply put one hand on top of the other.”
[34] The trial judge also found that the cuts to the complainant’s palm were not consistent with the appellant’s description of how the wounds were inflicted. The cuts to the complainant’s right hand appeared to be oriented in two different directions. The cut on the left hand ran across the fat of the complainant’s thumb, not straight across the palm from one side to the other, as would be expected based on the appellant’s evidence.
[35] The injuries suffered by the complainant were consistent with the complainant’s evidence that he held his hands above his face with his palms somewhat turned out. The trial judge also noted that the appellant provided no rational explanation for the cut to the bone on the complainant’s right forearm.
[36] The trial judge accepted that the appellant appeared to be “highly distressed” during the 911 calls. The trial judge found that the calls had “a number of odd features” when viewed in the context of the evidence of the case. Instead of staying on the line, the appellant appeared to hang up more than once. He did not effectively give the officers his location, and hung up when the 911 operator tried to ask him questions about what occurred. He did not phone the police back for several minutes. There was also an inconsistency in the appellant’s version of events on the 911 calls. In one call, the appellant stated that he ran out of the building and left the complainant there. In another call, he stated that the complainant ran away. The trial judge also found it odd that when the appellant broke down emotionally, he said, “he [the appellant] has a problem.” The trial judge found this an odd way to describe what the appellant had experienced, even allowing for some linguistic issues.
[37] In considering the complainant’s evidence, the trial judge agreed with the defence that the complainant’s evidence raised a number of concerns. These concerns included that the complainant was subject to collections for debt owed to the appellant, and that he was trying to gain status to remain Canada, allegedly doing so without much basis. He had an interest to shift the blame from himself, as he was bound by a peace bond vis-à-vis his wife and has been involved in one other domestic dispute.
[38] The trial judge also accepted that the complainant was not always directly responsive to the questions asked and at points was inconsistent as to whether he actually saw events or assumed they occurred.
[39] The trial judge also considered some of the actions the complainant attributed to the appellant to be counterintuitive. For example, the fact that such an explosive attack occurred in the way he described. The trial judge found it counterintuitive for the appellant to put paper towels or cloth on the complainant’s arm, force him to hold the hatchet following the events, and have the foresight wherewithal to delete certain texts. The trial judge considered these frailties, but held that the attack was traumatic and “involved some physical shock” for the complainant. The trial judge also reasoned that the passage of time made it understandable that some of the events were not clear.
[40] The trial judge also found that while some of the features of the complainant’s evidence first appeared “bizarre” they became less so when one considers that the complainant did not reply to the appellant repeated efforts to obtain the $3,500 he was owed. The trial judge found the complainant’s conduct would “understandably lead to a degree of real frustration” for the appellant. It was not clear at the time of the assault if the appellant was aware that the complainant had made any payments for the money owed.
[41] The trial judge considered the complainant’s evidence that eventually there was blood everywhere, which seemed to make the appellant realize the seriousness of what he did so that he wrapped the complainant’s arm in some cloth or towels. After the complainant told the appellant that he was going to call the police, the appellant told the complainant to hold the hatchet at the handle or else he would continue the attack.
[42] The trial judge held that the “injuries suffered by the complainant were consistent with the complainant’s version of event and provided powerful support to the thrust of his evidence Ultimately, the trial judge was satisfied beyond a reasonable doubt that the accused attacked the complainant and struck him with the hatchet that resulted in the injuries suffered by the complainant.
Analysis
Issue #1: Did the trial judge fail to consider certain evidence that resulted in a miscarriage of justice?
[43] The appellant submits that the trial judge failed to consider three crucial pieces of evidence in his judgment:
I) the cuts on the plastic bag;
II) the 911 calls; and
III) the complainant’s evidence about the t-shirt.
[44] It is the appellant’s position that the trial judge should have considered these three pieces of evidence because they go to the core issues about the complainant’s credibility. The appellant submits that had the trial judge considered these pieces of evidence, it would have at least raised a reasonable doubt about the complainant’s evidence. The trial judge therefore misapprehended the evidence, amounting to a miscarriage of justice.
[45] The Crown submits that the trial judge did not err in failing to consider the cuts to the plastic bag and t-shirt because the evidence was peripheral to the trial judge’s reasoning for convicting the appellant. The trial judge also properly considered the 911 calls.
[46] A misapprehension of evidence includes “a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to the evidence”: R v Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at para. 83. The reviewing court must consider whether the trial judge’s failure to consider a piece of evidence was central to the trial judge’s reasoning for convicting the appellant: R. v. Alboukhari, 2013 ONCA 581, 310 O.A.C. 305, at paras. 26-30. Moreover, “the fact that the appellant would have had the trial judge draw inferences from the evidence different from the ones [the trial judge] did draw does not constitute a “misapprehension” of the evidence”: R. v. Piccinini, 2018 ONCA 433, at para. 10.
[47] An appellate court should not interfere with “the trial judge’s findings of credibility if the core of the complainant’s allegations against the appellant remain largely intact on a review of the entirety of the evidence”: R. v. R.A., 2017 ONCA 714, 355 C.C.C. (3d) 400, at para. 46.
[48] I do not find that the trial judge’s failure to mention any of the plastic bag and t-shirt amounts to a misapprehension of the evidence. These pieces of evidence were not central to the trial judge’s reasoning that it was the appellant who took the hatchet and harmed the complainant without lawful excuse. These pieces of evidence relate to peripheral matters that go to the general credibility of the complainant.
[49] Turning first to the cuts on the plastic bag. The significance of the cuts on the bag hinged on the trial judge drawing an inference, proposed by the appellant, that the cuts were caused by the hatchet being brought by the complainant in the bag. This inference would support the appellant’s version of events that the complainant attacked the appellant.
[50] The complainant testified that he did not bring the hatchet in the plastic bag. Indeed, the appellant did not notice any hatchet in the bag at the time. The trial judge accepted the complainant’s evidence that the appellant came at him with the hatchet. The failure to mention the bag in coming to that conclusion is not a misapprehension of evidence. There was scant evidence to support the inference the appellant sought the court to draw. In those circumstances, the trial judge was not required to address the cuts in the plastic bag.
[51] The appellant also submits that the complainant’s credibility would have seriously been undermined had the trial judge considered the inconsistency in the complainant’s testimony as to whether the appellant used a cloth (or napkin), or the appellant’s t-shirt to wrap the complainant’s hand. The failure to consider this evidence amounted to a misapprehension of the evidence that could have affected the outcome.
[52] With respect, I disagree. The trial judge was aware of this inconsistency in the complainant’s testimony given the submissions of counsel. It also formed part of the Crown’s s. 9(2) application.
[53] A trial judge need not address every inconsistency in a witness’s evidence. They are however required to address how they resolved a major inconsistency. “Inconsistencies about which an honest witness is unlikely to be mistaken can demonstrate a “carelessness about the truth””: R. v. R.C., 2021 ONCA 419, at para. 37.
[54] There is no dispute that when police arrived the complainant’s hand was wrapped covered with a material of some sort. The trial judge ultimately accepted that it was a cloth or napkin, implicitly rejecting the complainant’s evidence that it was the appellant’s t-shirt.
[55] Whether it was the appellant’s t-shirt or a cloth was not central to the trial judge’s reasoning in finding that the appellant hit the complainant with the hatchet. It was a peripheral issue. The inconsistency went to the complainant’s credibility and reliability. The trial judge considered the complainant’s credibility and inconsistencies in his evidence, and ultimately accepted his testimony. As the trial judge noted, “the attack the complainant describes would have been traumatic and involved some physical shock.” I do not find that the fact the trial judge did not resolve the inconsistency of whether it was a t-shirt or cloth amounts to a misapprehension of the evidence that could have affected the outcome of the trial.
[56] Finally, turning to the 911 calls. The trial judge did consider the 911 calls. In essence of the appellant’s argument on this point is about uneven scrutiny of the evidence. The appellant submits that the trial judge was critical of the appellant’s 911 calls, but failed to acknowledge that in the first call the appellant tried to give his address, despite the dispatcher not requesting it. The appellant submits that the trial judge failed to appreciate the appellant’s hysterical state of mind and instead put great weight on the appellant telling 911 that the complainant had run away. The appellant submits that had the trial judge considered this evidence, it would have raised a reasonable doubt.
[57] The trial judge appreciated the appellant’s state of mind. The trial judge held that the appellant “appears to have been highly distressed during these calls.” Whether the appellant tried to give his address on the first call does not undermine the number of other features that the trial judge found odd about the calls. The appellant hung up on 911 more than once and did not call back right away.
[58] It was open to the trial judge, on the evidence, to find that the 911 calls did not support the appellant’s evidence that he was attacked by the complainant. There is no misapprehension of the evidence that amounts to a miscarriage of justice.
Issue #2: Did the Trial Judge Apply an Uneven Level of Scrutiny to the Appellant’s Evidence as Compared to the Complainant’s Evidence?
[59] It is an error of law to subject the evidence of the defence to a higher level of scrutiny than the evidence of the Crown: R. v. Rhayel, 2015 ONCA 377, 22 C.R. (7th) 78, at para. 96; R. v. H.C., 2009 ONCA 56, 241 C.C.C. (3d) 45, at para. 62.
[60] An argument that the trial judge applied a different level of scrutiny to the defence’s evidence than to the Crown’s evidence “is a notoriously difficult ground of appeal to succeed upon because a trial judge’s credibility determinations are entitled to a high degree of deference”: R. v. Kiss, 2018 ONCA 184, at para. 83. Such arguments are often seen as a veiled invitation to reassess the trial judge’s credibility determinations: Kiss, at para. 83; R. v. Aird, 2013 ONCA 447, at para. 39.
[61] It is not enough to show that a different trial judge could have reached a different credibility assessment or failed to say something in assessing the credibility of the complainant and accused. To succeed, the appellant must point to something in the reasons or on the record that makes it clear that the trial judge applied different standards in assessing the defence and Crown evidence: R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (C.A.), at para. 59; Kiss, at para. 83.
[62] I do not find that the trial judge applied an uneven scrutiny to the appellant’s evidence as opposed to the complainant’s evidence. Rather, the appellant seeks to have this court reassess the credibility findings of the appellant and the complainant.
[63] The trial judge reviewed the frailties in the appellant’s evidence, of which there were many, but the trial judge also raised a number of concerns with the complainant’s evidence. These concerns included the complainant’s motive to shift the blame to the appellant because the complainant sued the appellant and was trying to remain in the country. The trial judge found that the complainant was not directly responsive to questions and seemed inconsistent as to whether he actually saw events or assumed they occurred. The trial judge also considered that the complainant attributed some actions to the appellant that seemed counterintuitive.
[64] In assessing the evidence of the appellant and complainant, it was open to the trial judge to find that the complainant faced more trauma than the appellant which may account for some of the inconsistencies. The complainant suffered a serious physical injury. While the trial judge recognized that the appellant was highly distressed on the 911 calls, the appellant had no physical injuries that could have added to his trauma or impaired his ability to recall events.
[65] The fact that the trial judge did not accept the appellant’s version of events does not mean the trial judge unevenly considered the evidence of the complainant and appellant. The appellant’s version of events was not consistent with extrinsic physical evidence. The cuts to the complainant’s fingers appear to be oriented in different directions. The cuts on the left hand ran across the fat of the complainant’s thumb and not across the complainant’s palm, as one would have expected based on the appellant’s demonstration during testimony. The trial judge was entitled to consider this evidence in assessing the appellant’s credibility.
[66] This ground of appeal is dismissed.
Issue #3: Did the Trial Judge err in his Consideration of the Complainant’s Motive or Absence of Motive?
[67] Crimes may or may not be committed for some motive. Similarly, a witness may have a motive to give evidence in a certain manner.
[68] There is a distinction between an absence of evidence of motive to fabricate, and a proved absence of motive. In other words, just because there is no apparent reason for a motive to fabricate, it does not mean the witness was telling the truth: R. v. B. (R.W.) (1993), 24 B.C.A.C. 1, at para 28. Courts must be careful in recognizing this distinction.
[69] I do not find that the trial judge made a finding that the complainant had no motive to fabricate. The trial judge considered the evidence that suggested the complainant had a motive to fabricate. When reviewing the complainant’s evidence, the trial judge stated that there were a number of features that had to be considered in deciding this case, given the burden on the Crown. This evidence included that the complainant sued the appellant and that he was trying to obtain status in Canada and that this might provide a motive to try to shift the blame away from himself. While the trial judge considered this evidence, the trial judge made no finding that the complainant had no motive to fabricate.
[70] At its highest, the trial judge may have found an absence of evidence of a motive to fabricate. The trial judge was entitled to consider this absence of evidence alongside any motive to fabricate in assessing the credibility of the complainant: R. v. Ignacio, 2021 ONCA 69, 400 C.C.C. (3d) 343, at paras. 38-40, referring to R. v. Batte (2000), 2000 CanLII 5751 (ON CA), 49 O.R. (3d) 321, at paras. 120-121.
[71] I also do not find that the trial judge found that the appellant had a proven motive to fabricate. The trial judge held that some of the bizarre features of the complainant’s evidence made more sense when one considers other evidence. This evidence included that the appellant was owed money and had made repeated efforts to obtain it. The trial judge did not find that the appellant had a proven motive, rather the trial judge was considering the various motives of the parties in assessing their credibility as he was entitled to do.
[72] In submissions, the appellant raised the issue of who had a motive to lie in closing submissions. The appellant’s counsel submitted that the person with the real motive was the complainant, and asked the trial judge to consider, “who needed the meeting, why it was conducted in the office, what was there to gain by Mangat in calling the meeting.” The trial judge reasons reflect that he understood the issues raised by the appellant’s counsel. The trial judge considered the evidence that supported both a motive and a lack of motive in assessing the credibility of the appellant and the complainant, as he was entitled to do.
Issue #4: Did the Trial Judge Improperly Apply the Principles of W. (D.)?
[73] The appellant submits that the trial judge shifted the burden to the appellant to prove that the complainant did not suffer his injuries from another accident. In support of his argument, the appellant refers to this portion of the trial judge’s reasons:
The accused has not appeared to have suffered any real injury in the struggle. While giving evidence he pointed to a point on his wrist and on one of his fingers and I can say that from his demonstration to me, I could not see any visible scarring, and he himself suggested that he had bled very little, even assuming for the moment he had suffered any injury at all.
On the other hand, the injuries suffered by the complainant are in my view completely consistent with the complainant’s version of the physical actions he describes and thus provide powerful support to the thrust of his evidence.
[74] In essence, the appellant’s argument is that the trial judge worked backwards from the injuries and determined that, because the complainant received the worse of the injuries, the appellant was guilty.
[75] The trial judge’s reasons must be read as a whole; the paragraph relied upon by the appellant cannot stand alone. The reviewing court is not to “finely parse the trial judge’s reasons in a search for error”: R. v. G.F., 2021 SCC 20, at para. 69.
[76] There is no basis to find that the trial judge reversed the burden of proof in this case. The trial judge referred to W. (D.), but did not outline the elements of the three-part test to be followed when assessing credibility of witnesses if two different versions of events exist. There is no mechanical requirement to do so. The trial judge is presumed to know the law, particularly in applying general principles.
[77] Throughout the trial judge’s reasons he referred to the onus on the Crown to prove the offence beyond a reasonable doubt. He started his analysis outlining this principle.
[78] The trial judge then considered the appellant’s evidence. The appellant’s evidence was not rejected because he did not prove that the complainant’s injuries were the result of an accident. Rather, the trial judge explained in detail why he rejected the appellant’s evidence. The trial judge did not accept that the appellant would just go to the washroom if the complainant was acting in a threatening manner. Nor did the trial judge accept that rather than run when the appellant saw the complainant with the hatchet, as it appeared he could have done, he stayed and somehow grabbed the hatchet. The trial judge also rejected the appellant’s evidence that the complainant held onto the hatchet by the blade as opposed to putting one hand over the other. In assessing the appellant’s credibility, the trial judge also considered the appellant’s actions after the incident.
[79] The injuries suffered by the complainant were not consistent with the appellant’s version of events, which played a role in undermining the appellant’s credibility. It does not mean that the trial judge reversed the onus.
[80] The trial continued to apply the proper burden when considering the complainant’s evidence. The trial judge noted, “the complainant’s evidence was characterized by a number of features that need to be considered in this matter, particularly given the criminal burden.” In other words, the trial judge recognized that it was not enough to reject the appellant’s evidence, but that he must accept the complainant’s evidence beyond a reasonable doubt. The trial judge went on stated that the injuries suffered by the complainant were consistent with the “complainant’s version of the physical actions he describes and thus provide powerful support to the thrust of his evidence”. The trial judge did not work back from the injuries. Rather he assessed the complainant’s and appellant’s evidence in light of the physical evidence as he was entitled to do.
[81] Finally, in his concluding remarks, the trial judge found that the criminal standard had been proven to find the appellant guilty. In addition, the trial judge held that there was nothing in the record that could raise a reasonable doubt that the appellant’s actions would properly fall within the definition of self defence.
[82] There is no basis to find that the trial judge reversed the onus in this case.
Conclusion
[83] The appeal is dismissed.
Dennison J.
Released: August 16, 2021
COURT FILE NO.: SCA (P) 426/20
DATE: 2021 08 16
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
SUKHPAL MANGAT
Appellant
REASONS FOR JUDGMENT
Dennison J.
Released: August 16, 2021