2017 QCCA 1332, 2017 QCCA 1332

Kumar c. R. 2017 QCCA 1332 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-005846-157 (500-01-011365-076) DATE: SEPTEMBER 6, 2017 CORAM: THE HONOURABLE NICHOLAS KASIRER, J.A. MARIE ST-PIERRE, J.A. MARTIN VAUCLAIR, J.A. VIJAY KUMAR (SARBJIT SING KHATRIA) APPELLANT – accused v.

HER MAJESTY THE QUEEN RESPONDENT – prosecutor JUDGMENT [ 1 ] Vijay Kumar has appealed a judgment of the Court of Quebec, District of Montreal (the Honourable Judge Dominique Wilhelmy), rendered orally on May 23, 2008, declaring him guilty of assault causing bodily harm, uttering threats to cause death or bodily harm, obstruction of justice, kidnapping, extortion and forcible confinement. The victim of these crimes was his former spouse Rama Kiram Puri. The judge also found him guilty of theft of Ms Puri’s credit cards and mischief in respect of property valued over $5,000.

He was sentenced to 48 months of imprisonment, reduced to 31 months after taking into account a period of pre-trial detention, which sentence has been wholly served. [ 2 ] Over seven years after the trial, this Court granted the appellant’s motion to extend the time within which he could appeal the judgment. The ground of appeal is that trial judge did not have in hand all the evidence that would have allowed her to render a proper verdict such that, in the circumstances, the appellant did not have the full and fair defence to which he was entitled.

In service of this argument, the appellant seeks to adduce fresh evidence pursuant to section 683(1) Cr.C . This evidence includes reports from experts that indicate the appellant is weak of intellect. This information, says the appellant, would have had an impact on the evaluation by the judge of his credibility at trial.

He argues that the fresh evidence could reasonably be expected to have affected the outcome of his trial, specifically that it could have changed the trial judge’s finding that his steadfast denial that he committed the crimes was not credible. [ 3 ] The appellant is self-represented, although written argument, prepared by counsel, was filed on his behalf. [1] *** [ 4 ] The appellant lived with Ms Puri between 2000 and 2007. During this period, they had three children.

According to testimony given by Ms Puri at trial, the appellant repeatedly assaulted and threatened her over the course of their relationship, sometimes in front of the children. [ 5 ] In 2006, charges for assault causing bodily harm were brought against the appellant at the behest of Ms Puri. She was pregnant at the time.

In March 2007 in proceedings before the Municipal Court, he entered a guilty plea to one such charge and received a sentence of 90 days imprisonment, to be served in the community, followed by a two-year period of probation, as well as an order not to enter into contact with the victim. [ 6 ] According to Ms Puri, several days after the judgment in 2007, the appellant sought her out at her residence and assaulted her again in front of the children, resulting in her hospitalization.

She said the appellant then came to the hospital, threatened her, assaulted her there and insisted that she relinquish custody of the children. Soon thereafter, Ms Puri said he forced her, under threat of bodily harm, to leave for India, and that he took certain of her identification papers and credit cards. Without her authorization, she said, multiple transactions took place in her bank accounts and the appellant solicited credit cards in her name.

During her absence, he took charge of the children. [ 7 ] Ms Puri returned to Montreal on July 9, 2007, with the assistance of Bernard Clavette, a social worker from the office of the Direction de la protection de la jeunesse, and Ms Puri’s parents. An order was issued by the Youth Division of the Court of Quebec requiring the appellant to permit Ms Puri to retrieve the children from his care. When Mr Clavette attended his residence to do so, accompanied by two educators and several police officer, the appellant was aggressive and struck and damaged Mr Clavette’s car with his hand.

[8] In September 7, 2012, charges for various offences relating to episodes of domestic violence in 2006 and 2007, as well ascharges of theft and mischief, were brought against the appellant. [9] At the trial, Ms Puri testified for the prosecution as to the instances of assault, kidnapping, confinement and threats.

Sheexplained the circumstances of her forced departure to India as well as the theft of her identity papers and credit cards by the appellant.Mr Clavette testified, as did, among others, a police investigator in respect of the use of Ms Puri’s credit cards and bank accounts. [10] The appellant testified in his defence. He denied all acts of violence against Ms Puri, including the conduct that resulted in hisprior guilty plea. He stated that Ms Puri’s injuries, including a broken nose for which she was hospitalized, were self-inflicted.

He said henever used her credit cards or accessed her bank account without her express authorization. He admitted that he had damaged MrClavette’s car, but said it was done unintentionally. *** [11] In reasons rendered orally, the judge explained her evaluation of the evidence using the method proposed by the Supreme Courtin R. v. W.D.[2] In regard of the first leg of that test, she observed that if she believed the testimony of the accused in which he deniedcommitting the offences, she was bound to acquit him. She decided the appellant’s testimony was not credible.

On this point, thetranscript of the trial judgment reads as follows: La première étape de R. c. W.D. qui fait en sorte que je dois acquitter l’accusé, si je crois son témoignage, je dirai sur cette question quemonsieur a témoigné d’une façon totalement décousue, non crédible. Son témoignage est truffé d’incohérences, j’irais même jusqu’à direde mensonges. J’en arrive à cette conclusion lorsque je regarde la façon dont il décrit… la façon dont il explique comment il se fait qu’il était enpossession des documents de madame.

Lorsqu’il nous explique le départ de madame, cette explication, qui est fournie par l’accusé, esttotalement invraisemblable. Son explication, quant aux dépenses effectuées avec les cartes de crédit de madame qui étaient en sapossession, dépenses qui sont effectuées pendant l’absence de madame, son explication est totalement farfelue. Selon lui, il ne sait pasqui a dépensé l’argent sur la carte de crédit de madame alors qu’elle était absente et qu’il les avait en main.

Quant aux voies de fait qu’il aurait infligés à madame, c’est tout aussi farfelue et l’absence de crédibilité de monsieur est confirmée parson témoin, son propre témoin, monsieur Ramsingh (ph), de qui j’avais noté il y a de cela quelque temps, qu’il s’agissait, selon moi, d’untémoignage de complaisance qui était fabriqué de toutes pièces. [Transcribed as recorded in the original.] [12] The trial judge proceeded with the other two legs of the test in W.D. She gave an account of the whole of the evidence,including the testimony of Ms Puri and that of Mr Clavette, among others.

She explained why she believed Ms Puri, noting in particularthat she gave a precise account of the details of the events and convincingly described the atmosphere of violence created by theappellant. The judge observed that she was aware that “dans cette histoire, beaucoup de gens ont utilisé des identités qui ne sont pas lesleurs, beaucoup de gens autres que l’accusé, mais ce n’est pas le propos de ce dossier”.

The judge noted that she was convinced, beyonda reasonable doubt, that the various assaults and threats to the person of Ms Puri had been committed by the appellant and that thealleged threats proffered by him were true, including his threat seeking to prevent her from testifying and requiring that she withdraw thecomplaints she had lodged with the police. [13] She reviewed the evidence relating to the alleged theft and misuse of the credit cards, noting that the appellant had the cards inhand when unauthorized transactions occurred.

She stated in the judgment: “Il y a des retraits bancaires et il y a toutes sortes de retraits etc’est monsieur qui avait les cartes en main. Alors, je ne sais pas qui a fait ces retraits, qui a utilisé ces cartes.

Ce qui est étonnant c’est queça soit monsieur qui les avait”. [14] The judge found the appellant guilty of ten of the twelve charges brought against him, and ordered a conditional stay ofproceedings on one count of assault and one count of uttering threat to cause death or bodily harm. *** [15] In its judgment granting the appellant’s motion for an extension of time to bring his appeal and referring the motion to bringfresh evidence to this bench, the Court made plain that the success or failure of the appellant’s grounds of appeal depend on the outcomeof his motion to bring fresh evidence.[3] The Court wrote: [1] Nous sommes d’avis, sans aucunement préjuger du fond, que la requête pour preuve nouvelle soulève des questions qui mériteraientexamen par une formation de la Cour et que la requête pour prolongation du délai d’appel, considérée à la lumière de ce qu’expose larequête pour preuve nouvelle, satisfait aux conditions de l’arrêt Lamontagne c.

Reine [ (QCCA)]. [16] As noted above, if the fresh evidence is declared admissible, the appellant proposes to argue that the judge would not have heldthat the appellant lacked credibility at trial and that the verdict should accordingly be set aside. [17] The fortunes of the appeal thus turn on the admissibility of the fresh evidence. If the evidence were to be admitted, theappellant contends that the proper redress would ordinarily be the ordering of a new trial.

But, he argues, given that the sentence hasbeen served, it would be appropriate here for the Court to order a stay of proceedings. [18] In the event the motion for fresh evidence is dismissed, the appeal should be dismissed as there is no further argument advancedthat would justify that the judgment be disturbed. At the hearing on appeal, Mr Kumar reiterated his view that the victim and theprosecution witnesses had told lies at the trial. He added that he had not assaulted his former spouse and not stolen her credit cards.

Hestated that he was a responsible, law-abiding person who had never done anything wrong in his life.

*** [19] We turn first to the motion for fresh evidence. [20] The proposed new evidence is composed of four distinct documents: 1) an expert report, prepared by psychologist Hubert Van Gijseghem, and dated May 12, 2008, which sought to evaluate the parentalcapacity of the appellant and Ms Puri, as well as the best interest of the children.

The report was filed in child protection proceedingsbefore the Youth Division of the Court of Quebec that took place at about the same time as the criminal trial (hereinafter the “VanGijseghem Report”); 2) a report prepared by Eric Bergeron, a psychologist with Corrections Canada, dated November 30, 2009, which sought to evaluate therisk of a repeat offence by the appellant in connection with his possible parole (hereinafter the “Bergeron Report”); 3) a report prepared by Dr Chantale Bouchard, a psychiatrist at the Institut Philippe-Pinel, dated April 30, 2015, for the purposes ofevaluating whether the appellant could be held criminally responsible for a charge of criminal harassment he was facing at that time(hereinafter the “Bouchard Report”); and 4) a report prepared by handwriting expert André Münch, dated May 11, 2010, drawn up at the request of counsel for the children,concerning the authenticity of Ms Puri’s signature on certain documents (hereinafter the “Münch Report”). [21] In his written argument, the appellant points to excerpts in the Van Gijseghem Report in which the psychologist records that“Monsieur est aux prises avec un retard mental très important”.

His weak intellect is so marked, wrote Mr Van Gijseghem, that it causedthe psychologist to doubt whether he could have committed the economic crimes – “fraude et traffic d’humains et d’autres fabricationsde faux” – that Ms Puri alleged in the child protection file before the Court of Quebec. Referring to the Bergeron Report, the appellantnotes that the psychologist Bergeron agreed that he is a person with an “intelligence limitée”.

Moreover, notes the appellant, in the 2015Bouchard Report, the psychiatrist Bouchard arrived at the conclusion that he could not be held criminally responsible for charges ofharassment brought against him in 2014 given his “état psychotique”. [22] Finally, the appellant seeks to introduce the report of handwriting expert Münch to show that two disputed signatures in respectof documents in the child protection case cannot be positively attributed to Ms Puri, suggesting that it is a sign of her general dishonesty. [23] Taking the four reports into account, argues the appellant in his brief, it is reasonable to conclude that the judge’s evaluation ofhis testimony as unbelievable, incoherent, fantastical and mendacious would have been different had she been apprised of the evidence ofthe appellant’s weak intellect.

In other words, the appellant contends that his testimony was wrongly understood as lacking in credibilityby the judge when in fact it merely appeared to be incoherent because of his weak intellect. At a new trial, he argues, with the freshevidence in hand, a court could reasonably be expected to come to a more favourable view of his credibility or, at the very least, that histestimony could have raised a reasonable doubt as to guilt of the offences charged.

As for the handwriting expertise, the appellant saysthis suggests that Ms Puri is dishonest and, had the judge known of this, she could reasonably be expected not to have considered hertestimony as worthy of belief. [24] At the hearing, after hearing the argument of the respondent that the fresh evidence submitted was inadmissible on appealbecause it could have no impact on the judgment, the appellant stated that the reports were wrong in unspecified respects. [25] Should these materials be admitted as fresh evidence on appeal? [26] In R. v.

McGown,[4] the Court of Appeal for Ontario explained the rules governing the admissibility of fresh evidence onappeal as follows: [57] Under s. 683(1) of the Criminal Code, this court may receive fresh evidence on appeal “where it considers it in the interests ofjustice” to do so. [58] There is no dispute as to the criteria for receipt of fresh evidence under s. 683(1).

They require that the proposed fresh evidence: i)could not have been adduced at trial, through the exercise of due diligence; ii) is relevant, in that it bears upon a decisive or potentiallydecisive issue in the trial; iii) is credible, in the sense that it is reasonably capable of belief; and iv) is such that, if believed, and whentaken with the other evidence at trial, it could reasonably be expected to have affected the result. To this must be added that the duediligence criterion will not be applied as strictly in criminal cases as in civil cases: Palmer v.

The Queen (1979), , [1980] 1S.C.R. 759, at p. 775; Shulman, at para. 43. [59] In Truscott (Re), 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92, this court clarified and restated the Palmer criteria, in thisfashion: [The Palmer] criteria are well known. They encompass three components: 1) Is the evidence admissible under the operative rules of evidence?

2) Is the evidence sufficiently cogent in that it could reasonably be expected to have affected the verdict? 3) What is the explanation offered for the failure to adduce the evidence at trial and should that explanation affect the admissibility of the evidence? [ 27 ] It may be recalled that the appellant is not required to show that the evidence would have necessarily influenced the result at trial, but that, at the same time, fresh evidence must be more than merely credible and reliable to be admitted on appeal. Writing of the requirement that fresh evidence must be “cogent”, Watt, J.A. observed in R. v.

Dooley : [5] [104] I do not believe it is helpful for an appellate court to attempt to measure the impact that “fresh” evidence may have against the balance of probabilities standard. That standard is ill suited to predictions about the possible outcome of a hypothetical trial that included the “fresh” evidence.

The language used in Palmer captures the essence of the analysis that must be performed, and I see no reason to attempt to restate the Palmer criterion using different language. [105] An appellate court must determine whether the proffered evidence raises a concern over the validity of the trial verdict sufficient to justify a new trial, by examining the proffered evidence in the context of the trial record and deciding whether “if believed it could reasonably ... be expected to have affected the result.” However, evidence that meets this level of cogency, contemplated in Palmer , will not always be admitted.

An appellate court must still address other factors relevant to the interests of justice. [106] The interests of justice inquiry mandated by s. 683(1) explores interests broader than those of the individual appellant, including an interest in preserving the integrity of the trial process. That integrity depends in large measure on the recognition that the outcome of a properly conducted trial should be taken as final and determinative of the lis between the parties.

Verdicts that fall too easily under the weight of fresh evidence demean the significance of the trial and diminish the validity of all verdicts. [ 28 ] The principal issue in the case at bar is whether the new evidence proposed by the appellant meets the cogency requirement set out in Palmer and explained in the judgments quoted above. Is the evidence sufficiently cogent that it could reasonably be expected to have affected the verdict at the appellant’s trial in 2008? [ 29 ] The Court is of the view that none of the four documents meet the test for admitting fresh evidence on appeal.

The appellant has failed to establish that the fresh evidence, when taken into account with the other evidence adduced at trial, could reasonably be expected to have affected the result. [ 30 ] The Münch Report does not constitute cogent evidence that could have had an influence on the outcome of the trial. Even if one were to assume it was relevant evidence, the report does not allow for any meaningful inferences to be drawn about Ms Puri’s credibility in the criminal case brought against the appellant.

The documents for which the signatures are allegedly forged are not reproduced in their entirety and the reader has little or no sense of the context in which the allegations were made or of any response that Ms Puri might have had to the suggestion that the signatures are forged.

Moreover, the handwriting expert himself took care to say that his conclusions were offered with “une certaine réserve” given that the documents he analyzed were not originals but in fact copies of “mediocre quality”. [ 31 ] As for the three reports that speak to the appellant’s psychological condition, it should first be said that they are not offered to establish that he was not criminally responsible for the acts he allegedly committed in 2006 and 2007 under

section 16 Cr.C . Instead, the appellant has submitted the new evidence simply to show that the judge erred, or may have erred, in deciding that his testimony was incoherent and unbelievable at the 2008 trial. [ 32 ] The Van Gijseghem Report is not, strictly speaking, new evidence. It is dated May 12, 2008. The trial ended on May 23, 2008.

But even leaving that aside, the report should nevertheless be considered inadmissible on appeal because it does not meet the cogency test of Palmer : this evidence, if believed, could not reasonably be expected to influence the guilty verdict on the charges relating to the domestic violence, theft and mischief. It is true that the psychologist concluded that the appellant’s weak intellect was such that he could not possibly have committed sophisticated economic crimes. But the appellant was not tried on charges of sophisticated economic crimes.

His testimony that the judge chose not to believe related to his denial of having committed violent acts against the person of his spouse, as well as his denial of the theft of her credit cards and mischief resulting from the appellant having struck Mr Clavette’s car.

As the psychologist Van Gijseghem himself observed in the report, a person of weak intellect can commit acts of domestic violence, indeed such a person could well be considered to have weak self-control which might explain “violences intrafamiliales”. [ 33 ] The Bergeron Report is similarly not cogent evidence that could reasonably be expected to affect the result of the appellant’s trial. The psychologist Bergeron concluded, in connection with the parole application, that the risk of repeat offending for domestic violence by the appellant was high.

Mr Bergeron also considered that the appellant had a weak intellect, but he was of the view that “[l]’intelligence limitée de Monsieur, combinée avec une rigidité cognitive notable, ne viennent qu’accentuer le risque de récidive, compte tenu de la difficulté à comprendre et accepter l’encadrement et d’une plus mauvaise gestion des impulsions”.

Far from impugning the finding that the appellant’s denials at trial lacked credibility, this fresh evidence appears compatible with the view that the appellant’s story at trial was unbelievable, as the trial judge held. [ 34 ] The Bouchard Report also fails to meet the cogency test in Palmer . It is true that the psychiatrist concluded that, in 2014, the appellant suffered from psychiatric health problems that would justify, in her view, a finding that he was not criminally responsible pursuant to

section 16 Cr.C . for harassment charges. The finding, however, is focussed on a series of very different events that took place well after the conduct in 2006 and 2007 giving rise to the charges in the present case. The appellant was said by the psychiatrist Bouchard to have had a “délire de nature érotomane” in respect of the woman who he allegedly harassed which affected his understanding of his real relationship with her, and precluded him from discerning right from wrong. The Bouchard Report does not suggest that the appellant’s medical condition affected his conduct in 2006-7 in respect of the domestic violence, much less that it would

explain the manner in which he testified at the trial in 2008. On the contrary, the psychiatrist described the appellant’s thinking as follows: “La pensée: vitesse normale, discours cohérent, bien articulé dans l’ensemble”. This comment suggests that the appellant’s speech is not inherently incoherent. As fresh evidence, it would appear to have no possible impact on the trial judge’s 2008 finding on credibility. [ 35 ] In

summary, the fresh evidence would not, if believed, reasonably be expected to have affected the result of the appellant’s trial in 2008. It is not reasonable to say that this evidence of the appellant’s limited intelligence would have given rise to a different conclusion as to his credibility.

It is not reasonable to conclude that it is incompatible with the judge’s finding that his testimony was incoherent and unbelievable when he denied committing the acts of domestic violence, theft and mischief which resulted in his conviction at trial. [ 36 ] The motion for fresh evidence should be dismissed. [ 37 ] The Court takes note of the appellant’s statement at the hearing on appeal that the victim lied at trial and that he told the truth. We note further that he presented his views calmly and with dignity.

His statement, however, cannot be the basis for disturbing the trial judge’s findings on the weight to be afforded to the evidence adduced at trial. In the absence of a demonstration of an error or law or a palpable and overriding error of fact, the Court cannot set aside the findings of fact on which the guilty verdict rests. There being no further basis for impugning the judgment of the Court of Quebec, the appeal must be dismissed. [ 38 ] FOR THE AFOREMENTIONED REASONS , the Court: [ 39 ] DISMISSES the motion for fresh evidence; [ 40 ] DISMISSES the appeal. NICHOLAS KASIRER, J.A. MARIE ST-PIERRE, J.A.

MARTIN VAUCLAIR, J.A. Mr Vijay Kumar (Sarbjit Sing Khatria) In person Mtre Julie Pelletier Director of Criminal and Penal Prosecutions For the respondent Date of hearing: August 31, 2017