COURT FILE NO.: CR-18-1867-00AP
DATE: 20210901
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SHANCHAYAN RAJASINGAM
Appellant
Amy Barkin, for the Crown
Uma Kancharla, for the Appellant
HEARD: August 6, 2021
REASONS FOR DECISION
On Appeal from the Judgment of Justice J.F. Kenkel of the Ontario Court of Justice on December 19, 2019: R. v. Rajasingam, 2019 ONCJ 932.
CHARNEY J.:
Introduction
[1] The Appellant was convicted on December 19, 2019 of the charge of failing to comply with a condition of his recognizance, namely, “remain in your residence at all times”, contrary to s. 145(3) of the Criminal Code of Canada.
[2] This appeal raises three issues:
(a) Did the trial judge err in finding that the only logical conclusion or inference based on the evidence before him was that the Appellant was guilty beyond a reasonable doubt? The Appellant argues that the trial judge relied on inadmissible hearsay evidence, engaged in speculation and failed to consider other logical inferences consistent with the circumstantial evidence relied on to find the Appellant guilty.
(b) Did the trial judge fail to consider whether the Appellant had the subjective mens rea required for a conviction under s. 145(3) of the Code?
(c) Did the trial judge err in his determination that a custodial sentence was the appropriate sentence for breach of recognizance of the term of house arrest in this case?
[3] For the reasons that follow, I would dismiss the appeal of both conviction and sentence.
Facts
[4] On March 5, 2018, Officers Snooks and Rocco conducted a bail compliance check on the Appellant. They attended the surety’s residence in Kleinberg, Ontario, at 7:26 a.m. and stayed there for about 35 minutes. The Appellant was on a recognizance to remain at that address at all times, unless he was in the presence of his surety. The recognizance did not contain a condition that the Appellant present himself at the door of the residence to assist the police in monitoring the bail compliance.
[5] Mr. Elamurugan acted as the Appellant’s surety, and the total amount of the surety was $50,000 “if the said accused fails in any of the conditions hereunder written.”
[6] Only the two officers gave evidence at the trial. They testified that when they came to the residence they were invited in by the surety’s wife and remained in the foyer of the home. The officers testified that the surety’s wife informed them that the Appellant was not in the home. She called for the surety to come speak to the officers, and the surety also informed the officers that the Appellant was not in the home.
[7] The surety and his wife told the officers different stories about where the Appellant was, but they both confirmed that the Appellant was not in the home. The surety’s wife told the officers that the Appellant lived with his mother in Scarborough. The surety told the officers that the Appellant was at a Tim Horton’s. The surety explained to the officers that his wife did not know that the Appellant slept in the home. The surety’s wife told the officers that she may not be aware of the situation because she and her husband were not on the best of terms, and that the husband slept on the third floor of the house, while she slept on the second floor with her two children.
[8] While in the home the officers confirmed the identity of the surety and confirmed that he was aware of the conditions on the recognizance and his responsibilities as a surety. The surety informed the officers that the Appellant did not have a cell phone so he could not call him. At no time during the 35 minutes that the police were in the home did the Appellant appear or indicate his presence in the home. At no time did the surety go to look for the Appellant in the home.
[9] The officers left a business card and told the surety that the Appellant should contact a lawyer and surrender himself to the police, as he would be arrested for failing to comply with his recognizance.
[10] The Appellant was arrested when he attended court in Scarborough the next day.
[11] Given the information provided by the surety, the officers did not call out the Appellant’s name, nor did they conduct a search of the house to confirm that the Appellant was not there. The house is approximately 3000 square feet.
[12] Neither the surety nor his wife were called as witnesses at the trial. The Appellant did not testify. No other evidence was called by the Crown or the Defence.
[13] The defence conceded that the Crown had proved that the accused was bound by the bail conditions alleged on the date in question and that the Crown could prove the identification of the accused as the person bound by those conditions.
[14] The trial judge agreed with the defence that the statements of the surety and his wife to the police officers were hearsay, and therefore not admissible for the truth of their contents. He found, however, that these statements informed the officers’ investigation, and they were admissible to explain why the officers did not take further steps such as calling out the Appellant’s name or conducting a room to room search of the residence.
[15] The trial judge agreed that the Crown’s case was based on circumstantial evidence, and, based on the Supreme Court of Canada’s decision in R. v. Villaroman, 2016 SCC 33, the Crown must prove that guilt is the only reasonable inference flowing from the evidence as a whole. Since the defence bears no burden of proof, inferences consistent with innocence do not have to be based on proven facts, but may arise from the circumstantial evidence or from the absence of evidence. The trial judge noted, however, at para. 6 of his Reasons, that “Villaroman does not authorize an ‘anything-is-possible’ analysis which moves away from logical or reasonably possible inferences into conjecture and speculation”.
[16] The defence argued that another reasonable inference flowing from the evidence is that the Appellant was in the home, but was not aware that the police were there and asking for him. Defence argued that the surety might have lied to the police about the Appellant’s whereabouts.
[17] The trial judge rejected this alternative inference, and held that, on the evidence as a whole, he was unable to identify any reasonable inference that was inconsistent with guilt. He provided the following reasons, at paras. 9 and 10:
Considering the evidence as a whole, I find the Crown has proved that the only reasonable inference on all of the evidence is that the accused was not in the residence at the time the police attended, and was in breach of his recongnizance.
Mr Rajasingam would have identified himself to the police and confirmed his compliance with his bail conditions, if he was present in the home and aware that the police were there. Even without a specific condition in that regard, it would make absolutely no sense for him to hide from the police and knowingly generate a further criminal charge, arrest, and loss of his bail. Mr. Elamurugan was the surety for the $50,000 house arrest recognizance. He had a legal obligation and very strong financial incentive to enforce compliance with its terms. Both officers made the purpose of their visit plain and advised that the accused would be arrested for breach if he was not in the home. It is not rational or credible that the surety would create a false criminal charge for Mr. Rajasingam and risk loss of the monies he pledged if the accused was actually in the home. It is not credible that Mr. Elamurugan would be so careless in his duties as a surety that he would not know whether or not the accused was in the house at the time. On the evidence as a whole, I’m unable to identify any reasonable inference that is inconsistent with guilt.
Analysis
(i) Reasonable Alternative Inferences
[18] The Appellant argues that the trial judge erred in relying on ungrounded assumptions and inadmissible evidence in his assessment of the evidence.
[19] The Appellant argues that the trial judge erred in drawing an inference, absent evidence, that the surety would not risk losing his $50,000 surety by lying to the police about the Appellant’s location. This error arose from two interrelated errors. First, the trial judge relied on common sense when he concluded that the surety had a financial incentive to present the Appellant to the police if the Appellant was in the home. The Appellant argues that the trial judge could not reach this conclusion without objective facts from which such an inference may be drawn.
[20] Second, the Appellant argues that the trial judge relied on inadmissible hearsay in coming to this conclusion.
[21] These two errors, it is argued, led the trial judge to reject other reasonable possible inferences that would raise a reasonable doubt about the Appellant’s guilt.
[22] Dealing with the first argument, the Appellant relies on the decision of the Ontario Court of Appeal in R. v. JC, 2021 ONCA 131, where the Court cautioned trial judges against making “ungrounded common sense assumptions” and “stereotypical inferences”.
[23] While trial judges, and juries, may use common sense to identify inferences that arise from the evidence, triers of fact must avoid speculative reasoning and stereotypical inferences about human behaviour. The Court distinguished “common sense” from “ungrounded common sense assumptions”, at paras. 59 – 61:
To be clear, there is no bar on relying upon common-sense or human experience to identify inferences that arise from the evidence. Were that the case, circumstantial evidence would not be admissible since, by definition, the relevance of circumstantial evidence depends upon using human experience as a bridge between the evidence and the inference drawn.
Nor is there any absolute bar on using human experience of human behaviour to draw inferences from the evidence. If there was, after-the-fact conduct evidence about things such as flight or the destruction of evidence would not be allowed. Such evidence is relevant because human experience tells us that these behaviours, flight and destroying evidence after a criminal act, are generally undertaken to hide guilt. An absolute bar on using human experience of human behaviour to draw inferences would also mean that evidence that an accused drove a protesting sexual assault complainant to a secluded location could not be used as proof of his intention or her lack of consent. The inferences to be drawn from that evidence depend on common-sense conclusions about what a person acting in a particular manner is likely to be thinking.
Properly understood, the rule against ungrounded common-sense assumptions does not bar using human experience about human behaviour to interpret evidence. It prohibits judges from using “common-sense” or human experience to introduce new considerations, not arising from evidence, into the decision-making process, including considerations about human behaviour.
[24] The Court explained the Rule Against Stereotypical Inferences at paras. 63 – 65 and 68 (citations omitted):
The second relevant, overlapping rule is that factual findings, including determinations of credibility, cannot be based on stereotypical inferences about human behaviour. I will call this “the rule against stereotypical inferences”. Pursuant to this rule, it is an error of law to rely on stereotypes or erroneous common-sense assumptions about how a sexual offence complainant is expected to act, to either bolster or compromise their credibility... It is equally wrong to draw inferences from stereotypes about the way accused persons are expected to act…
First, like the rule against ungrounded common-sense assumptions, the rule against stereotypical inferences does not bar all inferences relating to behaviour that are based on human experience. It only prohibits inferences that are based on stereotype or “prejudicial generalizations...
[25] The distinction between “common sense” and “ungrounded common sense assumptions” is not always easy to apply in practice.
[26] In my view, the trial judge’s observation that the surety had a strong financial incentive to present the Appellant to the police if he was in the home when the police were there, is neither an “ungrounded common sense assumption” nor a “stereotypical inference”. It was a common sense inference that arises from human experience and, equally importantly, from the legislative policy in s. 515(2)(c) of the Criminal Code, which authorizes the Court to require a surety to pledge funds as a condition of the recognizance. The legislative policy, based on human experience, recognizes that financial risk promotes compliance.
[27] This “common sense” observation is reflected in statements by the Supreme Court of Canada that have recognized the “financial incentive” and “coercive power” inherent in a financial surety, see: R. v. Antic, 2017 SCC 27, at paras. 4, 48 and 49:
A cash deposit and a monetary pledge both give an accused the same financial incentive to abide by his or her release order.
A recognizance creates the same financial incentive for the accused to comply with the terms of release as does a cash deposit.
A pledge and a deposit perform the same function: the accused or the surety may lose his or her money if the accused person breaches the terms of bail. Release with a pledge of money thus has the same coercive power as release with a cash deposit. (Emphasis added.)
[28] The trial judge’s “common sense” observation that a significant financial pledge incentivizes a surety to ensure compliance with the terms of the recognizance is consistent with these statements from the Supreme Court of Canada. It is also the reason why judges considering a proposed plan of release carefully review the financial assets of the proposed surety to ensure that the financial risk is real, see for example: R. v. Shahid, 2020 ONSC 6308, at para. 26.
[29] Accordingly, I am of the view that the trial judge did not err in relying on the surety’s “very strong financial incentive to enforce compliance with its terms” when assessing the evidence or the inferences that could be drawn from the evidence. No expert evidence was required to enable the trial judge to make this common sense observation.
[30] Dealing with the second argument, the trial judge held that the statements of the surety and his wife to the police officers were hearsay, and therefore not admissible for the truth of their contents. He found, however, that these statements informed the officers’ investigation, and they were admissible to explain why the officers did not take further steps such as calling out the Appellant’s name or conducting a room to room search of the residence.
[31] While the surety’s statement to the police was hearsay, the surety’s conduct was not hearsay. The surety was informed that the police were at the residence to conduct a bail check and that the Appellant would be arrested for failing to comply with his recognizance. The police remained in the residence for approximately 35 minutes. At no time did the surety take the police to the Appellant, attempt to contact the Appellant, or go to look for the Appellant in the home. This was compelling circumstantial evidence that the Appellant was not in the home, and has much the same import as the hearsay statements that were excluded. On this basis, I do not accept the Appellant’s argument that the trial judge relied on the hearsay evidence that he ruled could only be used for a specific purpose.
[32] This leads to the issue of whether the trial judge erred in rejecting other reasonable possible inferences that would raise a reasonable doubt about the Appellant’s guilt.
[33] The trial judge correctly summarized the legal principles set out by the Supreme Court of Canada in Villaroman. In particular, he noted that since the defence bears no burden of proof, inferences consistent with innocence do not have to be based on proven facts but may arise from the circumstantial evidence or from the absence of evidence.
[34] That said, he concluded, at para. 10, that the other inferences proposed by the defence were not rational or credible. It is important to point out that the trial judge was not assessing the credibility (ie. believability) of the surety when he made this statement, he was assessing the credibility (ie. believability) of the other proposed inferences.
[35] In Villaroman the Supreme Court confirmed, at para. 30, that inferences that may be drawn from circumstantial evidence “must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense”.
[36] The Supreme Court stated, at paras. 36 – 37 (citations omitted):
A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.
When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt … I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”… “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.
[37] The Supreme Court also adopted the following statement from the Alberta Court of Appeal:
The second is from R. v. Dipnarine, 2014 ABCA 328, 584 A.R. 138, at paras. 22 and 24-25. The court stated that “[c]ircumstantial evidence does not have to totally exclude other conceivable inferences”; that the trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible.
[38] In the present case, the trial judge considered the alternative inference “in light of human experience and common sense” (Villaroman, para. 30), but, concluded that it was “not rational or credible that the surety would create a false criminal charge for Mr. Rajasingam and risk loss of the monies he pledged if the accused was actually in the home”. He clearly considered this alternative inference to be unreasonable, a conclusion that, based on the evidence and the law, he was entitled to reach. The trial judge did not err in this regard.
(ii) Objective/Subjective Intent
[39] The second argument raised by the Appellant is that the trial judge failed to consider whether the Appellant had the subjective mens rea required for a conviction for breach of a term of bail.
[40] The Appellant relies on the Supreme Court of Canada’s decision in R. v. Zora, 2020 SCC 14, which was released by the Supreme Court six months after the Appellant was convicted.
[41] The issue in Zora was whether the mental element for the crime of breaching a bail condition is to be assessed subjectively or objectively.
[42] In Zora, one of the bail conditions was that the accused present himself at the door of his residence within five minutes of a peace officer attending to confirm his compliance with his curfew. The accused testified that he was in his bedroom but could not hear the doorbell when the police came to the door. The summary conviction appeal judge held that objective mens rea was sufficient for a conviction under s. 145(3) of the Criminal Code and that the accused’s behaviour was a marked departure from what a reasonable person would do to ensure that they complied with their bail conditions. This finding raised the issue of whether the failure to comply with the recognizance required proof of objective or subjective mens rea.
[43] The Supreme Court concluded, at para. 4, that the Crown must establish that the accused committed the breach knowingly or recklessly. Writing for the Court, Martin J. described, at para. 109, what the Crown must establish to prove the subjective mens rea for s. 145(3):
Subjective mens rea generally must be proven with respect to all circumstances and consequences that form part of the actus reus of the offence …Therefore, subjective mens rea under s. 145(3) can be satisfied where the following elements are proven by the Crown:
The accused had knowledge of the conditions of their bail order, or they were wilfully blind to those conditions; and
The accused knowingly failed to act according to their bail conditions, meaning that they knew of the circumstances requiring them to comply with the conditions of their order, or they were wilfully blind to those circumstances, and failed to comply with their conditions despite that knowledge; or
The accused recklessly failed to act according to their bail conditions, meaning that the accused perceived a substantial and unjustified risk that their conduct would likely fail to comply with their bail conditions and persisted in this conduct.
[44] The Supreme Court allowed the appeal, but found that an acquittal would not be appropriate, and ordered a new trial on the two counts of failing to appear at the door.
[45] One of the concerns with a requirement of subjective mens rea is the difficulty the Crown might face in proving an accused’s knowledge or wilfull blindness if the accused does not testify. The Supreme Court explained that the accused does not have to testify for the Crown to prove subjective intent. The Court stated, at para. 120:
Finally, I do not accept that a subjective fault requirement would make it too difficult for the Crown to prove an accused’s knowing or reckless failure to comply with bail conditions. …Courts may infer subjective fault for failure to comply charges, whether or not the accused decides to testify. After considering all the evidence, the trier of fact may be able to conclude beyond a reasonable doubt that the accused had the state of mind required for conviction based on the common sense inference that individuals “intend the natural and probable consequences of their actions”. (Emphasis added.)
[46] The Appellant acknowledges that he signed his bail conditions, but argues that there was no evidence that he knowingly failed to comply with the bail conditions or was wilfully blind to the circumstances. He argues that the trial judge “applied an objective standard in reasoning what the Appellant would have done if he had known that the Officers were there.” Since there was no evidence that the Appellant knew the officers were present in the home, he argues that the mens rea component required by Zora is not met.
[47] The Crown argues that since the trial judge concluded that the Appellant was not in the home when the police came, the objective/subjective intent issue raised in Zora does not arise in our case.
[48] The issue of objective/subjective intent does not appear to have been raised by the defence in its argument before the trial judge, and the issue was not directly addressed in his reasons.
[49] In Zora it was clear from the summary conviction appeal judge’s reasons that the accused had been convicted on the basis of objective mens rea. Similarly, in the case of R. v. Lepp, 2020 ONSC 6061, Dawe J., sitting as the summary conviction appeal judge, held, at para. 36, that the trial judge’s reasons indicated that he was applying an objective mens rea standard.
[50] In my view, there is nothing in the trial judge’s reasons in this case to suggest that he interpreted s. 145(3) as requiring objective rather than subjective intent. Based on his factual findings, this was not an issue. After considering all of the evidence as a whole, the trial judge concluded that the Appellant was not at home when the police conducted the bail check. Had the Appellant been at home, he would not have been in violation of his bail terms and the issue of his mens rea would not have arisen because there would have been no actus reus.
[51] The trial judge expressly rejected the defence theory that the accused might have been in the home but hiding or unaware that the police were looking for him. As such, the issue of objective/subjective intent raised in Zora does not apply in this case. Read as a whole, the trial judge’s reasons appear to infer subjective fault from the nature of the breach.
[52] The fact that the Appellant had signed his bail conditions is evidence that he had knowledge of those conditions. If the trial judge’s factual finding that the accused was not at home is accepted, this is a case in which a conviction may be “based on the common sense inference that individuals ‘intend the natural and probable consequences of their actions’”. Having found that the Appellant was not in the home when the police conducted their bail check, the trial judge’s finding of guilt was based on the Appellant’s subjective mens rea.
[53] As indicated, the trial judge did not directly address the mens rea issue because it was not raised in the argument before him. If his failure to reference this issue was an error, it is my view that the Appellant’s conviction should be upheld by applying the “curative proviso” in s. 686(1)(b)(iii) of the Criminal Code. This provision, which applies to summary conviction appeals through the operation of s. 822, allows a court to dismiss an appeal on the grounds that there “was ‘no substantial wrong or miscarriage of justice’ despite an error of law”: The burden is “appropriately placed on the Crown to satisfy the reviewing court that despite the error no substantial wrong or miscarriage of justice has occurred”: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 23.
[54] In Zora and Lepp the courts declined to apply the curative proviso because the trial judge had applied the wrong fault standard. In my view the trial judge did not apply the wrong fault standard in this case. At worst, the trial judge’s reasons in this case did not directly address an issue that was not raised in argument before him. That said, given the trial judge’s finding that the Appellant was not in the home when the police conducted the bail check, I am satisfied that the trial judge would have inevitably found that the Crown had proven that the Appellant had the requisite subjective mens rea for the reasons given at para. 52, supra.
(iii) Sentence
[55] The trial judge sentenced the Appellant to 30 days in jail. The Crown had sought a 60 day sentence and the defence had sought a suspended sentence and probation. Pretrial custody in the amount of 5 days was deducted making the total time to serve 25 days.
[56] The trial judge considered a psychological report submitted by the defence that showed that the Appellant has symptoms of PTSD and has had psychological counselling for alcohol abuse and stress management. He considered as mitigating factors the fact that the Appellant’s criminal record was dated.
[57] The trial judge also noted that house arrest is a last resort prior to committal to custody pending trial and is imposed when necessary for public safety. The strict terms of the bail and the amount of the surety bail were meant to impress on the Appellant the importance of compliance with the terms.
[58] The trial judge imposed a custodial sentence for the following reasons:
Where a compliance check reveals that a person is not at the address where they were ordered confined and not with their surety, general deterrence typically requires that a custodial sentence be imposed. Without some meaningful sanction for a blatant breach, the public trust in the bail system would be eroded and the courts would not have confidence that a release of others on like terms would be complied with. I agree with the Crown that a custodial sentence is required.
[59] The trial judge considered the Appellant’s specific circumstances, and indicated that he was satisfied that the Appellant could serve a custodial sentence, and that a conditional sentence was not appropriate because the evidence showed that the Appellant would not comply with such an order. He stated:
A suspended sentence would not provide for general deterrence. It would not specifically deter Mr. Rajasingam from disregarding court orders in the future.
[60] The trial judge indicated that the Crown’s proposed sentence of 60 days was likely the correct sentence, but that given the accused’s psychological report he would reduce the sentence to 30 days to be served intermittently on weekends.
[61] The Appellant argues that the trial judge erred in imposing a custodial sentence because his analysis was not “case specific”. He argues that suspended sentences have been found to have a deterrent effect in certain cases, and that the trial judge did not give sufficient consideration to the Appellant’s PTSD.
[62] Sentencing is a highly discretionary, individualized process. As appellate courts have repeatedly stated, trial judges are given wide latitude to fashion a sentence they consider to be just and appropriate.
[63] A summary conviction appeal court hearing a sentence appeal does not treat the appeal like a new sentencing hearing. An appellate court may intervene only if the trial judge made an error in principle, failed to consider or overemphasized an aggravating or mitigating factor, or imposed a demonstrably unfit sentence: R. v. Lacasse, 2015 SCC 64, at paras. 11, 39 – 44, 51-52; R. v. Proulx, 2000 SCC 5, at paras. 123 – 125; R. v. Friesen, 2020 SCC 9, at paras. 25 – 26.
[64] In my view, the sentencing judge made no error in sentencing the Appellant to 30 days. He noted the appropriate factors and considered both aggravating and mitigating factors.
[65] Nor is there any basis to conclude that a 30 day custodial sentence is demonstrably unfit or clearly excessive (Lacasse, at para. 52). The trial judge properly weighed the various principles and objectives of s. 718 of the Criminal Code, and took into account the Appellant’s individual circumstances, including the psychologist’s report. The sentence of 30 days falls within the range of sentences appropriate for the breach of the term of bail found in this case.
Disposition
[66] For the foregoing reasons, the appeal of conviction and sentence is dismissed.
Justice R.E. Charney
Released: September 1, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
SHANCHAYAN RAJASINGAM
Appellant
REASONS FOR DECISION
Justice R.E. Charney
Released: September 1, 2021