R. v. Singh, 2025 ONSC 2445
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
Respondent
– and –
Bhagwant Singh
Appellant
Kyrstin Krainz, for the Crown
Matthew Gourlay and Jacob Roth, for the Appellant
HEARD: February 26, 2025
On appeal from the convictions on charges of assault x 4 entered by C. Malott J. of the Ontario Court of Justice on November 9, 2022.
REASONS FOR DECISION
INTRODUCTION
1The appellant, Bhagwant Singh, was convicted of four counts of assault against his wife, Balwinder Kaur Mann, contrary to s. 266 of the Criminal Code, R.S.C., 1985, c. C-46. The appellant was sentenced to 15 days’ jail, consecutive on each count (a global sentence of 60 days imprisonment) less pre-sentence custody, and three years’ probation.
2The trial was conducted on September 27, 2022, September 28, 2022; and October 24, 2022. The trial judge rendered judgment on November 9, 2022, and the appellant was sentenced on May 2, 2023.
3The Crown called one witness, Balwinder Kaur Mann (the complainant). The appellant was self-represented. He and his father, Manohar Singh Mann, testified at trial. The appellant’s evidence spanned two days as the trial judge allowed him to reopen his defence on the day set for submissions. The appellant also called several police officers as witnesses, but their evidence is not relevant to the issues in this appeal.
4The appellant was also assisted by s. 486 counsel, Mr. Kenneth Golish.
5Credibility was the main issue at the trial. In reaching her decision to convict, the trial judge rejected the evidence of the appellant and accepted the evidence of the complainant.
STATEMENT OF THE CASE
6The appellant and the complainant married in India in 2003. Later that year, the complainant immigrated to Canada, where the appellant had lived since 1997. The appellant and the complainant eventually had three children together. The children were 18, 17 and 15 years old at the time of the trial.
7The complainant testified that she was “unhappy” for most of the 17-year marriage as the appellant regularly demeaned and degraded her underemployment or unemployment, a recurrent source of conflict in the marriage. She said that the appellant physically and verbally abused her and that the abuse escalated over the last six months of the relationship.
8For most of the marriage, the appellant was the primary earner, and the complainant was mainly a stay-at-home parent. She was a physician in India but could not transfer her accreditation to Canada. The appellant owned a real estate company, which the complainant worked at for two years.
9In 2019, the complainant secured employment as a personal support worker (“PSW”), a job she held until after the appellant’s arrest.
10Near the end of September 2020, the appellant’s parents were staying with the appellant and the complainant. When not in India, the appellant’s parents would stay with him and the complainant for months at a time or at the residence of another son who lived in Brampton.
11One morning, the appellant’s father asked the complainant what was going on in her marriage. She said the appellant was “hurting” her and that she would not “take it anymore”. The two then traded insults, which resulted in the appellant’s father becoming very angry and making degrading and disrespectful comments to the complainant.
12In October 2020, a month after the incident involving the appellant’s father, the complainant ordered the appellant’s parents to leave, which they did. The complainant’s dispute with the appellant’s parents exacerbated the tension between her and the appellant, and they started to sleep in separate bedrooms. The appellant and complainant were not on “talking terms” after she ejected his parents from the home.
13The complainant considered leaving the appellant but hoped that something would change, so she gave him one more chance on October 14, 2020. On that date, she approached the appellant in the bedroom about improving their marriage and attending counselling. She also brought up how their marriage was impacting their three children. The appellant responded by yelling at her, calling her a “freeloader”.
14During the argument, she told him “You don’t deserve me. You don’t deserve a family” and for “17 years I tolerated you, you family, your relative”. According to the complainant, the appellant became very angry and punched her in the head and kicked her in the stomach. She then called the police and reported the assault. The appellant was subsequently arrested and then released on conditions to stay away from the house.
15The complainant explained that she called the police after the assault because she knew nothing was going to change. She testified that she had initially held off calling the police because she did not want to give the children a broken home - but ultimately decided she needed protection from the abuse.
16One week later, on October 21, 2020, the complainant attended the police station for a video interview. During this interview, the complainant alleged for the first time that in addition to the October 14, 2020, incident, the appellant assaulted her on three other occasions:
a. June 2020: The appellant chased the couple’s son outside after he did something the appellant did not like. When the complainant asked the appellant what happened, he kicked her in the stomach three or four times with his shoes on. The complainant claims that he kicked her so hard, she soiled herself.
b. August 2020: After the coupled argued in the bedroom, the appellant chased the complainant to the living room. He then kicked her two or three times in the stomach.
c. September 2020: The complainant told the appellant about the argument she had with his father the day before and said that she wanted the appellant’s father to leave. The complainant testified that the appellant got angry and accused her of stirring trouble. She testified that the appellant kicked her in the stomach maybe three or four times during this argument.
17The appellant denied ever assaulting the complainant.
18The complainant testified that she called a domestic violence hotline after the September 2020 incident (inadvertently in the United States). She also said that between the September and October 2020 incidents, she called and talked to people at the Hiatus House (a local shelter for abused woman). After reporting the October 14, 2020, incident to the police and then separating from the appellant, she contacted a lawyer and initiated family court proceedings.
19After separation, the children lived primarily with the complainant in the matrimonial home and the appellant exercised his parenting time on weekends.
20As indicated, at the conclusion of the trial, the appellant was convicted on all four counts.
ISSUES AND THE LAW
21Appellant’s counsel maintains that the guilty verdicts ought to be set aside for the following reasons:
a. That the trial judge erred by providing insufficient reasons for judgement, particularly surrounding the issue of credibility. This is a question of mixed fact and law.
b. That the trial judge erred by preventing the appellant from calling two witnesses based on an erroneous understanding of hearsay, and
c. That the trial judge erred by providing inadequate assistance to the self-represented person.
ANALYSIS
General Powers of a Summary Conviction Appeal Court
22The powers of an appeal court on a summary conviction appeal against conviction are set out in s. 686(1)(a) of the Criminal Code, as follows:
(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or
(iii) on any ground there was a miscarriage of justice.
23If a verdict is set aside, the court may, pursuant to s. 686(2) of the Criminal Code, do the following:
(2) Where a court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction and
(a) direct a judgment or verdict of acquittal to be entered; or
(b) order a new trial.
Grounds of Appeal
A. That the trial judge erred by providing insufficient reasons for judgement, particularly surrounding the issue of credibility.
24The defence argues that the trial judge’s reasons must justify and explain the result and, to do so, must articulate what was decided and why it was decided. In this case, where the determination of credibility was key, the trial judge’s reasons were, according to the appellant, conclusory and did not meaningfully grapple with the key issues that bore on the complainant’s credibility. For instance, there is evidence suggesting that the complainant’s substantial animus towards the appellant and her desire to secure a favourable result in family law proceedings may have motivated her to fabricate the allegations. However, the trial judge did not sufficiently address these areas in her decision which precludes a reviewing court from determining whether the trial judge grappled with the complainant’s motive, which is an error. The defence also submits that the trial judge failed to assess other key deficiencies in the complainant’s evidence, including the following:
a. The August 2020 assault involved the appellant chasing after her. The complainant testified however that she was shocked to see him right before he kicked her in the stomach - even though her back was turned to him.
b. The complainant claimed that she had recorded the appellant verbally abusing her but said she could not produce these recordings to the police because she had erased them.
c. The complainant spoke in a whisper when she called the police to report the appellant even though she was outside, and he was inside the home.
25The defence also asserts that the trial judge’s reasons for finding the appellant was not a credible witness is bereft of any real analysis. Further, that the trial judge did not meaningfully explain why she rejected the appellant’s denials of the criminal allegations, as well as his claim that the complainant did not contribute to the house and that she always reacted aggressively and intimidatingly, but the appellant never did.
26Finally, the defence submits that the trial judge’s decision contained several misapprehensions of the evidence. She found incorrectly that (1) the appellant did not argue with the complainant (he testified that he did), (2) he denied saying anything about the complainant not having a better job (he disagreed that he called her a freeloader but admitted that he encouraged her to find a job), (3) he had a happy family with no issues (he said there were no issues until 2018), and (4) he never complained about anything (he said that he only complained about being the family’s main provider).
27The Crown argues that when considered as a whole, the trial judge’s decision is not only sufficient, but confirms that Her Honour grappled with the issue of credibility. In this regard, the trial judge found that the appellant’s testimony conflicted in a material way with his father’s evidence, which tarnished his credibility. On the issue of motive, the Crown submits that the trial judge was not entitled to rely on myths and stereotypes about what a domestic abuse victim should or should not do when determining if they are credible, such as escaping an abusive relationship and initiating divorce proceedings. According to the Crown, the trial judge was only required to address in her decision the key issues at trial, which were credibility and reliability – and she did so adequately.
Analysis
28In her decision, the trial judge correctly noted that there was “no corroboration of the complainant’s testimony: no photos, no medical records, no other witnesses…” and that she was “still legally allowed to convict if I accept Ms. Mann’s version of events and reject Mr. Singh’s version of events.”
29The trial judge also properly instructed herself on the basic legal principles and the W.(D.) instruction, including the third step, by saying: “[f]inally, even if I am left in doubt by the evidence of the accused, I still must be convinced beyond a reasonable doubt based on the Crown’s evidence, that of Ms. Mann, of the guilt of Mr. Singh.”
30The sum total of trial judge’s reasons for accepting the complainant’s evidence is as follows:
I found Ms. Mann to be a very credible and reliable witness. Her evidence was completely unshaken in cross-examination. Any discrepancies in her evidence or failings in her memory were extremely minor, peripheral and irrelevant. I accept her version of events.
Mr. Singh suggested that this case was concocted by Ms. Mann at the urging of her mother to get him out of the house. I do not accept that. Overall, I do not think any evidence regarding Ms. Mann’s extended family is relevant to this case.
31The trial judge convicted the appellant after rejecting his version of events and then finding that the Crown had satisfied its onus by proving each element of each offence beyond a reasonable doubt.
32In R. v. Watson, 2024 ONCA 397, 172 O.R. (3d) 473, the Court of Appeal set out the principles with respect to the adequacy of reasons by a trial judge, at paras. 12-13, as follows:
12 It is well-settled that the adequacy of judicial reasons must be assessed functionally: see e.g., R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869; R. v. Braich, 2002 SCC 27, [2002] 1 S.C.R. 903; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788. As stated in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 15, "reasons must be sufficient to fulfill their functions of explaining why the accused was convicted or acquitted, providing public accountability and permitting effective appellate review."
13 In R.E.M., McLachlin C.J.C. explained further, at para. 17:
These purposes are fulfilled if the reasons, read in context, show why the judge decided as he or she did. The object is not to show how the judge arrived at his or her conclusion, in a "watch me think" fashion. It is rather to show why the judge made that decision. [Emphasis in original.]
Quoting from this court's decision in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), she added:
[T]he description in Morrissey of the object of a trial judge's reasons is apt. Doherty J.A. in Morrissey, at p. 525, puts it this way: "In giving reasons for judgment, the trial judge is attempting to tell the parties what he or she has decided and why he or she made that decision" (emphasis added). What is required is a logical connection between the "what" -- the verdict -- and the "why" -- the basis for the verdict. The foundations of the judge's decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded.
Later in her reasons, McLachlin C.J.C. observed that "a trial judge is not obliged to discuss all of the evidence on any given point, provided the reasons show that he or she grappled with the substance of the live issues on the trial": R.E.M., at para. 64.
33I agree with the defence that the trial judge’s reasons for accepting the complainant’s evidence were, in certain parts, conclusory. More importantly, I also agree with the defence that the trial judge did not meaningfully grapple with the key issues that bore on the complainant’s truthfulness, namely, motive to fabricate. Although the defence raised other areas of concerns as noted above in para. 16, I am not obliged to reconcile every frailty in the evidence (see R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 56), nor do I consider these areas as having more than a minor impact on the complainant’s credibility. Instead, I find that the central or critical issues that the trial judge failed to address when considering alleged deficiencies in the complainant’s evidence are the following: (1) the complainant’s substantial and escalating animus towards the appellant, and (2) the complainant securing a favourable result in family law proceedings.
Animus Towards the Appellant
34In her decision, the trial judge found that the appellant became “angry” and “controlling” of the complainant when he believed that she failed to hold up her end of a deal by becoming a doctor or assisting the appellant with the upkeep of properties that he had placed in her name. The trial judge appeared to have considered this evidence before determining that the appellant was not a credible witness and rejecting his evidence. However, what the trial judge did not do in her decision, respectfully, is to consider the potential relevance of this and other evidence on the issue of whether the complainant had a motive to fabricate her testimony. The trial judge referred to several areas of evidence in her decision that may have been relevant on the issue of motive. These include the following:
The appellant would not pay the fees for the complainant to join a real estate company other than his.
The complainant helped the appellant with his open houses and his paperwork without formal pay.
The appellant disapproved of the complainant being a PSW, saying it was beneath her.
According to the complainant, the marriage was physically and mentally abusive, which worsened in the six months preceding the appellant’s arrest.
Much of the conflict in the home surrounded the appellant calling the complainant a freeloader and complaining that she did nothing to contribute to the household while he earned and paid for everything.
35The trial judge also made findings that the appellant did not approve of the life that the complainant lived nor of her circle of friends.
36The complainant testified that she had been unhappy for most of the seventeen-year marriage. She said that the appellant would taunt and degrade her and would often tell her that she did nothing and lived and ate for free. The complainant testified that even though she wanted to work, he prevented her from doing so through his controlling behaviour. She complained that the appellant told her that she did not do enough to take care of the children or the household. The appellant would tell her that as a PSW, she worked as a janitor and was nothing. When she became very sick with COVID in May 2020, the appellant did not take care of her. When he later assaulted her in June 2020, he said that when she was sick (with COVID) he should have left her to die. She complained that the appellant also disrespected her after her father-in-law said that her children were the product of a sexual encounter with her husband, because he did not act as a husband should have. Within a few days of the October 14, 2020, assault, the appellant was angry with her because she refused to contact a person who wanted to sell their house.
37The trial judge relied on this evidence, and the appellant’s denials of same, before she ultimately rejected his testimony, but there was no mention of what if any relevance this evidence may have had on the complainant’s credibility.
Events leading up to the Family Court Proceedings
38On the issue of the family court proceedings, the trial judge stated the following:
They were married for seventeen years before separating following Mr. Singh’s arrest on these charges. They are currently separated and in the process of getting a divorce. In my view, any other details regarding the divorce, including when Ms. Mann contacted a lawyer and any details about the family court proceedings are not relevant to the case before the court.
39The trial judge told the appellant when he complained again at trial that he was the only one who maintained the upkeep of the rental properties, even after the separation, that this was not a “family law proceedings”. While I am not entirely clear what the trial judge exactly meant by family court proceedings, I believe that many of the circumstances leading up to and underlying the family court proceedings were potentially highly relevant on the issue of whether the complainant had a motive to be untruthful. In this regard, there is a significant body of evidence that suggests the complainant may have been motivated to fabricate allegations to secure a favourable result in the family law proceedings.
40The complainant testified that shortly after having an argument with her father-in-law in September 2020, she both ejected the appellant’s parent from her home where they lived for a good part of 17 years and then began sleeping in a bedroom separate from the appellant. Between the September and October incidents, the complainant also admitted that she had contacted a domestic violence hotline in the U.S. and then later talked to people at a local shelter for abused woman. On the day she was assaulted the complainant testified that she considered leaving the appellant.
41The complainant’s evidence in relation to when she contacted a lawyer was arguably equivocal. Initially, she testified that she did not talk to a lawyer before she reported the appellant to the police but then, when questioned further, testified that she did not “remember” if she had talked to a lawyer at that point. Eventually she repeated that she had not contacted a lawyer before she had contacted the police.
42The complainant did admit that she initiated divorce proceedings after separation and had contacted a divorce lawyer before providing her video statement to the police on October 21, 2020. It was on this date that the complaint for the first time disclosed to the police the assaults from June, August, and September 2020. Just before the video statement started, she also disclosed for the first time two other assaults from 2003 and 2012. Finally, the complainant and her three children remained in the home after separation because bail conditions from the assault charges prevented the appellant from attending at the residence (the appellant testified that a week before the trial started, the eldest son started to live with him).
43Section 486 counsel squarely put to the complainant during cross-examination that she reported the appellant to the police because she wanted a separation and him removed from the matrimonial home. The complainant denied this by saying “[i]f he had that day, at least, little bit tried little bit to, little bit positively, I would never have called the police.” She went on to explain that she had hoped that something would change until the last minute so she would not give her children a broken home.
44The appellant also raised the complainant’s motive to fabricate both when he testified the first time and then again after his case was re-opened. He testified that just one week before the complainant reported him to the police, she asked him to leave the home, but he refused, telling her to leave instead. This alleged incident was only one week after the complainant had “kicked” his parents out of the house.
45The appellant advised the trial judge in final submissions that the complainant had contacted the Hiatus House before his arrest and then a lawyer after his arrest but before she gave her video statement. The appellant emphasized a few times that it was only when she asked him to leave the home, and he refused, did she call the police to get “rid” of him. He theorized that “the only way for her to keep everything,” and to “walk away from the marriage and keep the kids and the house,” was to call the police. He summed up his position by stating the following:
The evidence in front of the court is that she kicked out my parents, they obliged to her, she asked me to leave a week or two later and I refused, and that was the point where she started coming up with the story. Had I walked away from the house and had she kept the house and the kids would have stayed behind, her motive was accomplished.
46In her final submissions, the Crown anticipated that the appellant would argue that the complainant had a motive to lie about the assault allegations. The Crown reminded the trial judge that the complainant had denied the suggestion “put directly to her” by s. 486 counsel that she had fabricated the assaults to obtain the matrimonial home. The Crown argued further that contrary to what the appellant suggested, the complainant’s credibility had not been weakened because she had contacted a family lawyer or pursued family court proceedings.
47The trial judge failed, respectfully, to mention or consider the potential relevance of the events leading up to and underlying the family court proceedings on whether the complainant had a motive to lie. This was something that the trial judge was obligated to do, at least in some fashion, particularly in circumstances where the complainant’s credibility and reliability were so critically important.
Sufficiency of reasons regarding the complainant’s credibility
48I have reviewed the evidence at trial, counsel’s submissions, and the trial judge’s reasons for finding the appellant guilty on four counts of assault. I am aware that credibility findings are the province of the trier of fact: R. v. Ignacio, 2021 ONCA 69, 70 C.R. (7th) 134, at para. 60. I am also aware that if credibility is a determinative issue, deference is in order and intervention will be rare: R.E.M., at para. 32. If it is alleged that a trial judge’s decision is deficient, that deficiency must rise to the high threshold that would permit appellant intervention: R. v. J.C., 2023 ONCA 101, at para. 3. As explained in J.C., the proper approach for appellate review of sufficiency of reasons is as follows at para. 5:
Appellate intervention is justified where deficiencies in the reasons amount to an error of law because they foreclose meaningful appellate review: Sheppard, at paras. 25, 28. Appellate review of the sufficiency of reasons follows a function approach and, proceeding with deference, requires the reading of reasons in the context of the evidence, the submissions of counsel and the live issues at trial: R. v. R.E.M., at para. 55. [Citations omitted].
49Although I find, as I will discuss soon, that the trial judge provided sufficient reasons for rejecting the appellant’s testimony, I am not satisfied, after reviewing the decision as a whole, why the trial judge accepted the complainant’s evidence beyond a reasonable doubt. A central position taken by the defence at trial was that the complainant had a motive to fabricate. It cannot be overstated how significant this factor can be on the issue of credibility. In R. v. W.B. (2000), 2000 CanLII 5751 (ON CA), 49 O.R. (3d) 321 (C.A.), at para. 120, the Court of Appeal said this about motive to fabricate:
It is difficult to think of a factor which, as a matter of common sense and life experience, would be more germane to a witness' credibility than the existence of a motive to fabricate evidence.
50Once raised, it was incumbent on the trial judge to consider evidence of motive to fabricate - but she failed to do so: Ignacio, at para. 35; R. v. J.L., 2024 ONCA 36, 434 C.C.C. (3d) 407, at para. 4. More specifically, while the trial judge considered the complainant’s credibility within the context of the state of the relationship between the parties, she did so independently of and without reference to the issue of motive to fabricate.
51Assessing credibility is a delicate task that for several reasons may be difficult for a judge to verbalize: R.E.M., at para. 49. But in this case, the trial judge’s reasons consisted, respectfully, of little more than conclusory statements about the complainant’s credibility without her properly analyzing a substantial body of evidence that suggested a motive to lie: J.L., at para. 28. A summary of this evidence includes, but is not limited to, (1) the appellant’s history towards the complainant of abusive, degrading and controlling behaviour, (2) the complainant ejecting the appellant’s parents from the family home approximately one month before the assault, (3) the complainant contacting a domestic violence hotline, a local shelter for abused woman, and possibly a divorce lawyer before she reported the appellant to the police, (4) the complainant considering whether to leave the appellant as of the day of the assault, (5) the appellant being arrested and then released on bail conditions to stay away from the family home after the assault complaint (6) the complainant initiating family court proceedings and then remaining afterwards in the family home with the children, and finally (7) the complainant disclosing several other assaults in a videotaped statement that she provided to the police a week after her initial complaint.
52Even though motive to fabricate was not addressed by the trial judge, it was a relevant and a key argument raised by the parties at the trial. The appellant, and even Crown counsel, referred to the various elements related to this issue during submissions. When cross-examining the complainant, s. 486 counsel zeroed in on and explored several events during the later stages of the marriage that may have caused the complainant to have strong feelings of animosity towards the appellant. The appellant argued during submissions that the complainant was motivated to claim falsely that she had been assaulted so that she could remain in the house after the two separated. The Crown countered by stating that the defence argument had “no basis in law” because of the legal entitlement that she believed the complainant had in the family law proceedings. The Crown also submitted that just because the complainant may have contacted a family lawyer and initiated family court proceedings, this does not mean that her evidence could not be trusted or that her claim that the appellant assaulted her was not credible.
53The Crown elaborated on this argument at the appeal by asserting that the trial judge should not rely on myths and stereotypes about what a domestic abuse victim should or should not do when determining whether her testimony about the assault was credible. While that may be so, and certainly a court should be careful about myth-based reasoning when assessing credibility, it was ultimately for the trial judge to determine whether the complainant’s behaviour before she contacted the police was potentially relevant in relation to the veracity of her assault allegations against the appellant. Respectfully, the trial judge neither referred to or considered evidence or submissions from counsel, including the Crown, on motivate to fabricate when she assessed the credibility of the complainant’s testimony.
54The complainant’s motive to fabricate was a live and central issue at this trial, yet it is not possible to know from her reasons if the trial judge acknowledged this issue or its potential significance. While it is clear that the trial judge found the complainant to be a credible and reliable witness, I do not know why she did so or the basis for that finding, especially considering the body of evidence which suggests that the complainant had a possible motive to lie. As the court in J.L. explained, at para. 38:
While there may be a valid explanation for rejecting the defence theory that the complainant had a motive to fabricate, the trial judge’s reasons do not allow for this court to assess whether and how the trial judge grappled with this issue. [Citations omitted.]
55With the greatest respect, I find that the trial judge committed a palpable and overriding error by failing to consider the critical issue of motive to fabricate when assessing the complainant’s credibility, thereby foreclosing meaningful appellate review. I also believe that I am unable, based on the evidence, to “…step into the shoes of the trial judge, weigh the evidence, and redo [the trial judge’s] assessment of credibility and reliability,” as the reasons for conviction were not, in my view, patent on the record: J.C., at para. 13; see also Watson, at para. 17.
Insufficient Reasons for Rejecting the Appellant’s Evidence
56The defence argues that the trial judge’s reasons for finding the appellant not credible was bereft of any analysis and does not explain why his denial of the criminal allegations were rejected. The defence also submits that the trial judge’s insufficient analysis contained several misapprehensions of the evidence, which I outlined above in paragraph 28.
57The Crown, on the other hand, argues that when the reasons are considered as a whole and in the context of the evidence, there is a sound basis for rejecting the appellant’s evidence, including the presence of inconsistencies between his evidence and his father’s evidence and his repeated denial of involvement in the matrimonial issues.
58It is clear from a reading of the trial judge’s reasons as a whole that her assessment of the appellant’s evidence involved more than the short paragraph referred to by counsel for the appellant. In that one paragraph, the trial judge stated the following:
Mr. Singh said that they had a happy family with no issues. He testified that he never complained about anything even though he said that Ms. Mann never did anything to contribute to the house. He said that she always got upset and reacted aggressively and negatively, acted intimidating while he never did any of those things. Even Mr. Singh’s own father didn’t agree that they didn’t argue and that Mr. Singh never said anything about Ms. Mann not having a better job. Overall, I found Mr. Singh not to be a credible witness and I do not accept his version of events.
59While the trial judge certainly rejected different parts of the appellant’s evidence in a rather conclusory way, such as his claim that the complainant did not contribute to the housework or care for the children or when he denied calling her a freeloader – I find that when the assessment of the appellant’s testimony by the trial judge is viewed within the context of the evidence as a whole, it was obvious why she was not at all impressed with his testimony and properly rejected it.
60The trial judge outlined attempts by the appellant to minimize his mistreatment of the complainant during the marriage and his ongoing problem with the complainant not holding up her end of the deal to become a doctor in Canada (or get a respectable job after she obtained a master’s degree or her real estate license) – all of which had a negative impact on his credibility. She also identified the ongoing frustration that he had as a result of the complainant contributing little to the upkeep of investment properties that he had so generously put in her name. The trial judge essentially summed all this up by stating the following:
He discussed it at length almost ten times during the course of the trial. It is clear Mr. Singh is preoccupied on this point almost to the point of obsession. There is no question in my mind that he is angry about this, angry about her not becoming a doctor and controlling of her. Much of Ms. Mann’s version of events as to the surrounding circumstances of the conditions of their marriage were essentially confirmed through Mr. Singh even as he was trying to deny it.
61The trial judge’s reasons also refer to both the appellant’s misguided attempts to portray the complainant, and not him, as the aggressor in the marriage as well as the existence of an inconsistency between the testimony of the appellant and his father, namely, that the appellant did not argue with the complainant, which is contradicted by his father (although it appears that the appellant testified at times that he did argue with the complainant) – an issue that I will discuss again soon.
62When I look at the trial judge’s decision in its entirety, I am satisfied that she provided adequate, albeit succinct, reasons why she rejected the appellant’s testimony.
63The defence argues that the trial judge’s analysis of the appellant’s testimony contained several misapprehensions of the evidence. While that may be so, I do not believe that when these few areas are assessed within the context of the appellant’s entire trial testimony, anything really turns on it. For instance, as I noted above, it is claimed that the trial judge was wrong when she said in her decision that the appellant never argued with the complainant. The appellant did testify on at least two occasions that “they would have some arguments”, stating at one point that it happened a couple of times. However, this appears to be inconsistent with other parts of his testimony and is certainly at odds with the overall impression that he was attempting to leave with the court - that it was the complainant and not him who was always the aggressor. A good example of this is when the appellant testified as follows:
But I just want to put on record that the negativity was always coming from her side, aggression or anything was coming from her side, I always stayed content. I always stayed calm, and I just ignored the comments.
64The defence claims that the trial judge’s reasons failed to state accurately that the appellant had testified that the family was always happy, neglecting to state that this was only until 2018. But his evidence in this regard, as in other areas, is somewhat equivocal. At one point, he testified that:
She never showed any signs of unhappiness before [she had kicked the appellant’s parent out of the house in September 2020]. It’s all made up after the fact. She was a happy wife. She had everything what she could have dream about of Canadian life... She never had put any efforts, and I never complained about that until, like, late – later months when she kind of took it offensive when I suggested to her she should be serious about her career.
Until 2018, there was no issue in our family whatsoever.
65I am not surprised that the trial judge was unable to precisely capture certain arguably ambiguous areas of the appellant’s testimony in her decision. In any event, I am satisfied after considering all the reasons given by the trial judge for rejecting the appellant’s evidence, that any misapprehension of the evidence would not have affected the outcome: R. v. Kwok, 2023 ONCA 458, 427 C.C.C. (3d) 462, at para. 55. I also find that apparent misstatements by the trial judge about the appellant never complaining about anything and his denials about saying anything about the complainant not having a better job (even though the trial judge incorrectly stated that it conflicted with his father’s testimony) had no impact on the outcome of the trial. Further, I am of the view that while the judge may have gotten some of the appellant’s evidence wrong, none of this could be characterized as critical or essential to her overall assessment of the appellant’s credibility and certainly not to the level necessary that would result in a miscarriage of justice: R. v. S.R., 2022 ONCA 192, 79 C.R. (7th) 162, at paras. 14-15.
B. That the trial judge erred by preventing the appellant from calling two witnesses based on an erroneous understanding of hearsay
66It appears that the Crown advised the court before the trial started that the appellant had asked her office to assist him to subpoena two civilian witnesses, the complainant’s mother and her friend, Rupinder Pal Kaur. The two witnesses had accompanied the complainant to court but were not under subpoena to testify either for the defence or the Crown. Nothing further was said or done about the witnesses before the complainant completed her testimony and the Crown’s case ended. The Crown then raised the issue again and sought direction from the court on whether the two witnesses should be bound over and testify for the defence when an interpreter was available the next day.
67After having a discussion with the appellant, s. 486 counsel offered to assist. He subsequently advised the court, “I say certain things in part to assist Mr. Singh in his defence, and also to help the court if I can”. Section 486 counsel went on to say, “If I may suggest a couple of things to Mr. Singh that he may not want to call those two civilian witnesses. I may recommend that they’re not of any assistance to him, but if he wants to pursue that, that may be…”
68The court responded by saying, “Well, it’s his call ultimately to make.”
69The Crown told the court that while she could “work” on Kaur re-attending court the next day, her preference was to excuse her from testifying The following exchange then took place after the trial judge asked the appellant, “Why is it that you feel that [the complainant’s mother’s] testimony is going to be relevant when she doesn’t live in this country?”:
Bhagwant Singh: Because she is the controlling mother, as she is putting all this negativity in her mind from day one.
The Court: Yes, but you can’t cross-examine her about conversations that she had with Ms. Mann, that’s hearsay.
Bhagwant Singh: The hearsay could become a reality if she confirms some of the incidents, but again I leave that up to you if you see it relevant or not.
The Court: Well, my concern is that she isn’t an eyewitness, she isn’t – she wasn’t here, she was never here. So, how is she going to be able to testify to anything that she observed or did in relation to the allegations, when she wasn’t a party to the allegations and she can’t testify about what Ms. Mann told her?
Bhagwant Singh: That’s fine. If she chose not to, that’s fine with me. I will, I will not insist. If she thinks that it is not relevant, or she doesn’t need to be here, that’s fine, I will just leave it at that.
70When asked if he had any further comments, s. 468 counsel told the trial judge that he did not think it was a “wise decision” to call either witness. The complainant’s mother was subsequently excused from testifying by the trial judge. The trial judge explained to the appellant that he could not cross-examine the mother about conversations she had with the complainant because “that’s hearsay.”
71The court proceeded to ask the appellant if the friend had something to say about “what she saw or what she heard that you may or may not have done, or is she only going to be there to testify about conversations that she may have had, which are hearsay and irrelevant?” The appellant replied by saying, “Yeah, that’s – basically Ms. Mann has brought her name into the interview with police officers, and when they asked if she discussed these things with anybody and it is Ms. Mann who mentioned her name.” The appellant went on to say that he wished to cross-examine Kaur on what the complainant told her.
72The court decided to release Kaur as a potential witness, explaining that she was not an eyewitness to the events and that her testimony would also constitute nothing but hearsay.
73The defence argues that the trial judge misapplied the rule of hearsay to the appellant’s case by suggesting that any out-of-court statement is hearsay, even though it was not being tendered to prove the truth of its contents. The appellant sought to call the complainant’s mother for a proper non-hearsay purpose, namely, as evidence of a person’s state of mind. In the instant case, the appellant wished to elicit evidence from the mother about why the complainant spoke to the police – and - to establish from the friend possible inconsistencies. According to the defence, it is impossible to know if the excluded evidence would have been probative because the trial judge prevented it from being heard; the trial judge should at the very least have heard from these two witnesses and ruled on the admissibility of their evidence as it came out.
74The Crown submits that the trial judge was rightly concerned about the relevance of the testimony, especially after s. 486 counsel advised the court that calling these two witnesses was “not a wise decision.” It is further argued by the Crown that it is entirely speculative that the witnesses would provide testimony in support of the appellant, let alone evidence that the mother may have influenced the complainant to concoct the story that she was assaulted by him. Further, the trial judge also had a duty to respect the time allotted for matters before deciding whether to call witnesses whose evidence may not be relevant to any live issues at trial.
75I agree with the defence.
76Section 650(3) of the Criminal Code states:
An accused is entitled, after the close of the case for the prosecution, to make full answer and defence personally or by counsel.
77R. v. Cook (1960), 1960 CanLII 449 (AB SCAD), 127 C.C.C. 287 (Alta. S.C. (A.D.)), is a case in which the trial judge refused to permit counsel for the accused to call a witness for the defence at a murder trial. The witness had previously given evidence at the trial for the Crown and was cross-examined by the defence but not in respect to certain matters upon which the defence counsel wished to examine him. Before ordering a new trial, Johnson J.A. found at paragraph 40 that the refusal by the trial judge to permit defence counsel to call a witness was a denial of the right to full answer and defence.
78The Supreme Court of Canada in R. v. Beland, 1987 CanLII 27 (SCC), [1987] 2 S.C.R. 398, at p. 422, referred to Cook when finding that s. 577(3) (now s. 650(3)) of the Criminal Code “gives an accused the right to call such witnesses and evidence as he may consider necessary”.
79Further, in R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, at para. 43, the court had the following to say about restricting the ability of an accused person from calling evidence at their trial:
The Canadian cases cited above all pertain to evidence tendered by the Crown against the accused. The question arises whether the same power to exclude exists with respect to defence evidence. Canadian courts, like courts in most common law jurisdictions, have been extremely cautious in restricting the power of the accused to call evidence in his or her defence, a reluctance founded in the fundamental tenet of our judicial system that an innocent person must not be convicted. It follows from this that the prejudice must substantially outweigh the value of the evidence before a judge can exclude evidence relevant to a defence allowed by law.
80The appellant attempted unsuccessfully to subpoena the complainant’s mother and Kaur, however both ended up attending court with the complainant on the first day of the trial. The appellant advised the court after the close of the case for the Crown that he wished to call both individuals as defence witnesses. When asked by the court about the relevance of the complainant’s mother’s evidence, the appellant advised that it was to demonstrate that “she is putting all this negativity in [the complainant’s] mind from day one,” and “[t]he hearsay could become reality if she confirms some of the incidents…” In relation to Kaur, he advised the court that he wished to cross-examine the complainant on facts that she may have told Kaur.
81I find the appellant, who was unrepresented, attempted as best he could to explain why the testimony from the complainant’s mother may be relevant to his defence. It appears from what he told the court that the appellant believed the complainant’s mother may have played a role in influencing the complainant to make criminal allegations against him. It also appears that the appellant may have wanted to cross-examine Kaur to establish possible inconsistencies between what the complainant said to the police or on the stand and what she said to Kaur.
82While it would certainly have been risky for the appellant to call and question witnesses in chief whose interest would presumably be contrary to his and attempt, at least in the case of the complainant’s mother, to have her admit that she unduly influenced her daughter to bring assault charges against him, it was, as the trial judge acknowledged, “his call ultimately to make” - unless the prejudice of the proposed evidence substantially outweighed its probative value – such as if the testimony constituted inadmissible hearsay. In this case, because the trial judge determined that the proposed testimony was inadmissible hearsay, she released both witnesses from having to testify on behalf of the defence.
83I am satisfied that while limited and imperfect, the appellant nonetheless provided sufficient reasons to the trial judge to demonstrate that the out-of-court statements that he attempted to tender from these two witnesses were potentially relevant and admissible for non-hearsay purposes, namely, as evidence of the complainant’s state of mind (why she contacted the police) (see R. v. Ahmed, 2013 ONCA 473, at para. 2) and to establish possible inconsistencies between what the complainant may have said on different occasions: see R v. F.J.U., 1995 CanLII 74 (SCC), [1995] 3 S.C.R. 764 at para. 22. Although the complainant was not confronted with the anticipated evidence of these two witnesses before she completed her testimony, a violation of the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.), had the appellant been allowed to call them, a simple remedy would have been for the trial judge to simply recall the complainant: R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at para. 120.
84I do not agree, as the Crown argues, that the trial judge was overly concerned with upsetting the time that had been allotted for this matter had the defence been allowed to call two additional witnesses and then recall the complainant. However, any concerns that the trial judge may have had in this regard would have been subordinate to the appellant’s important right to make full answer and defence. I also attach little weight to the fact that s. 486 counsel advised the court that it was unwise for the appellant to call these witnesses. It was not his call to make, as he was not retained to advise the court of his thoughts on the matter.
85The appellant is presumed to know his case best, and it appeared that he believed that calling these witnesses was necessary for him make full answer and defence. In fact, as it relates to the anticipated testimony of the complainant’s mother, the appellant testified that the complainant’s father had “spilled a lot of information” to him about the mother apparently having some role in bringing the “false allegations” against him.
86From my perspective, there is nothing about this evidence or what the appellant told the trial judge to show that he was wrong about its potential relevance or that the prejudice associated with the evidence would substantially outweigh its probative value. The importance that the appellant attached to this evidence is reflected in both his testimony and final submissions. On these occasions, the appellant often referred to the apparent influence that the complainant’s mother, Kaur, and others, had on the complainant at the relevant times. At one point, the appellant testified as follows:
So, that was the only reason I wanted to bring her friend and her mom testifying in the court, so that court could see the whole story, what is happening behind the scene. It is not Ms. Mann’s fault at all. She’s being fed this by nasty people…
87And then in final submissions the appellant said this:
Had I the opportunity to cross-examine [the complainant’s mother and friend], I believe this would have been proved that – how much control they had on her and how she’s influenced in making any decision in her life by them.
88Finally, the defence noted that in her reasons the trial judge had rejected the appellant’s suggestion that the complainant fabricated the allegations “at the urging of her mother to get him out of the house,” and then found that “any evidence regarding Ms. Mann’s extended family” was not relevant to this case. Had the appellant been allowed the opportunity to call the complainant’s mother, he may very well have been able to muster the evidence required to support his claim.
89A trial judge should always exercise extreme cautious when considering whether to restrict the power of an accused person to call evidence in their defence. With respect to the circumstances of this case, I respectfully find that the trial judge was in error when after wrongly determining that their proposed evidence was hearsay and inadmissible, she prevented the appellant from calling two defence witnesses. I agree with the defence that since it is unknown what either witness would have said or the value of that evidence, the trial judge should, at the very least, have heard from these witnesses first and then ruled on the admissibility of their evidence as it came out. She did not do that.
C. That the trial judge provided insufficient assistance to the self-represented accused
90As a result of my findings in relation to the first two grounds, I find that it is unnecessary to address the third ground of appeal.
DISPOSITION
91The trial judge in this case is a seasoned and respected jurist who presides over a high-volume court in Windsor. This was a difficult case. The accused person was unrepresented and inexperienced in conducting a trial. Many unforeseen issues were raised and otherwise properly dealt with by the trial judge. However, even the most experienced trial judge will on rare occasions commit errors during the frenzied pace of a trial. This was one of those rare occasions.
92Accordingly, it is for all the above reasons that the appellant’s appeal from his convictions on the first and second ground is allowed, the convictions quashed, and a new trial is ordered on all four counts.
Brian D. Dubé
Justice
Released: In writing – May 23, 2025
COURT FILE NO.: CR-23-5866
DATE: 20250523
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
Bhagwant Singh
REASONS FOR DECISION
Justice B. Dubé
Released: In writing - May 23, 2025