R. v. Diaram, 2019 ONCJ 837

ONTARIO COURT OF JUSTICE CITATION: R. v. Diaram , 2019 ONCJ 837 DATE: 2019 10 30 COURT FILE No.: Brampton 3111 998 18 15300 BETWEEN: HER MAJESTY THE QUEEN — AND — BHUWAN DIARAM Before Justice G.P. Renwick Heard on 28, 29, 30 October 2019 Reasons for Judgment released on 30 October 2019 E. Beaton.............................................................................................. counsel for the Crown A. DeMarco..................................................... counsel for the defendant Bhuwan Diaram RENWICK J.: INTRODUCTION [ 1 ] The Defendant faces five counts on the Information.

The Crown has invited me to dismiss count 2. These reasons will consider whether it is proven beyond a reasonable doubt that the Defendant has committed the remaining alleged offences. [ 2 ] The only issues for resolution are the credibility and reliability of the evidence and the findings that flow therefrom and whether they meet the test for conviction. LEGAL PRINCIPLES [ 3 ] The onus during a criminal trial begins and ends with the prosecution to prove the guilt of a defendant beyond a reasonable doubt.

Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trial unless and until the court is satisfied that the charge has been proven beyond a reasonable doubt. The prosecution’s burden of proof never shifts during the trial.

In this case, if at the end of my consideration of the evidence and submissions I am not satisfied that the prosecution has proven any single element of the offences charged beyond a reasonable doubt, and more specifically, if I have a reasonable doubt that the Defendant committed any of these offences, he will be acquitted of the charges. [ 4 ] A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during the trial.

While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. The Supreme Court of Canada has cautioned that there is no mathematical precision to proof beyond a reasonable doubt but it lies much closer to absolute certainty than to proof on a balance of probabilities. [1] If after considering all of the admissible evidence I am sure that the Defendant committed the alleged offence I must

convict him since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt. Likewise, if I am not sure, then I have areasonable doubt and an acquittal must follow. [5] This case involves conflicting evidence and credibility assessments. In assessing witness credibility and reliability I have takeninto account the general capacity of the witness to make their observations, to remember what they perceived, and their ability toaccurately testify to their recollections.

It is also important to determine whether the witness was trying to tell the truth and whether thewitness was sincere, candid, biased, reticent, and/or evasive. A trier of fact is entitled to accept some, none, or all of what a witness sayswhile testifying. [6] A valuable means of assessing the credibility of any witness is to examine the consistency between what the witness said in thewitness box and what the witness has said on other occasions. I must also assess what is testified to in the context of all of the evidence inthe case and not on an isolated basis.

This is true for any inconsistencies and whether these are inconsequential or significant to the case.If the inconsistency is significant, then I must pay careful attention to it when assessing the reliability of the witness' testimony. [7] The role of confirmatory and contradictory evidence can also be important when assessing the evidence of witnesses.

However,confirmatory evidence in particular need not directly implicate the Defendant or confirm the prosecution’s theory in every respect.Rather, the confirmatory evidence should be capable of supporting the relevant aspects of the witness' account. [8] Given the conflicting evidence in this case, I must apply the framework provided by the Supreme Court of Canada in R. v. W.(D.), (SCC), [1991] S.C.J. No. 26, as it is now understood. I rely heavily upon the

article written by Paciocco J.A.entitled, “Doubt about Doubt: Coping with W.(D.) And Credibility Assessment” found at 2017 22 Canadian Criminal Law Review 31.Justice Paciocco breaks down the W.(D.) principles into 5 propositions: (

i) I cannot properly resolve this case by simply deciding which conflicting version of events is preferred; (ii) If I believe evidence that is inconsistent with the guilt of the Defendant, I cannot convict the Defendant; (iii) Even if I do not entirely believe the evidence inconsistent with the guilt of the Defendant, if I cannot decide whether that evidenceis true, there is a reasonable doubt and the Defendant must be acquitted; (iv) Even if I entirely disbelieve evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and (

v) Even where I entirely disbelieve evidence inconsistent with guilt, the Defendant should not be convicted unless the evidence thatis given credit proves the Defendant’s guilt beyond a reasonable doubt. [9] This case also involves circumstantial evidence. The Defendant is found exiting his car with an unguarded meat cleaver lying onthe floor at his feet. There are no direct threats alleged to have been made by the Defendant to anyone. Part of my job is to determine thevalue of the individual circumstances and the collective weight of this evidence.

In order to convict the Defendant of possessing thatcleaver for a purpose dangerous to the public, I must be satisfied that this is the only reasonable inference available on the evidence.[2]In assessing the case, I must consider the evidence cumulatively, and as a whole.

Given that each circumstantial piece of evidence maybe insufficient on its own to support the required inference, I must consider all of the individual pieces of evidence together to determinewhether the prosecution has met its burden. [10] In the next part, I will outline some of the evidence and provide an assessment of the testimony, with references to specific piecesof the evidence.

Although I may not refer to all of what a witness said, I listened to each witness carefully, I have taken detailed notes,and I have assessed the testimony of each witness for intrinsic and extrinsic consistency, plausibility, balance, possible interest, and theirability to observe, recall, and communicate. [11] I do not propose to recapitulate all of the evidence received during this trial.

Suffice it to note that I have used ample and manyopportunities during the trial and subsequent to the completion of the submissions to review my notes, listen to parts of the digitalrecordings of the proceedings, and to review the exhibits. I have thoroughly reviewed the evidence in this case, and I will only discussparts of the evidence where it serves to underscore my findings. Lastly, I have come to no conclusions about any of the testimony I hearduntil all of the closing submissions were made, and my review of the evidence was complete.

FINDINGS [12] There were three main witnesses for the prosecution: Bibi Bashir, Jeyan Krishnapilai Veerasingam, Vannila Sinnadurai andShalena Diaram. Police officers also testified respecting the items found in the Defendant’s car, the service of some documents upon theDefendant, and photographs found in someone’s cellular telephone.

[ 13 ] Overall, I found Ms. Bashir to be an unsatisfactory witness. She was very uncertain about much of her evidence. She was not specific and could not explain why she felt “scared” at various times. Lastly, Ms. Bashir was found to have mislead the police respecting her knowledge of Mr. Veerasingam’s telephone number, and she was inconsistent in at least one area in testifying before me. In the end, I find that it would be unsafe to place much weight on the evidence of Ms. Bashir, where it is not corroborated by other evidence. [ 14 ] Several examples from her evidence support this finding. First, Ms.

Bashir testified in chief that there were more than five occasions when the Defendant had followed her since her separation from him. In cross examination, Ms. Bashir said that this happened 5 or 6 times. Ms. Bashir described four of these alleged occasions. Strangely, in cross examination, Ms. Bashir admitted that she had only told the police about 3 times that she believed that the Defendant had followed her. [ 15 ] Secondly, Ms. Bashir admitted in cross-examination that she had misled the police when she initially indicated that she did not have Mr.

Veerasingam’s telephone number prior to 28 April 2018. [ 16 ] Thirdly, during cross-examination, Ms. Bashir initially denied having told her children about the Defendant’s infidelity. Subsequently, she admitted that she had told her children of her conclusions. [ 17 ] In terms of the value of Ms. Bashir’s evidence, it is slight. There were few details to support her belief that she was being followed by the Defendant, versus merely in the same area at the same time. Moreover, there was a paucity of evidence as to the effect of the apparent sightings of the Defendant or his vehicle upon Ms.

Bashir. [ 18 ] In terms of count 4, a criminal harassment allegation from 28 April until 03 July 2018, the evidence was much the same. On one occasion the complainant testified that she saw through a bedroom window of her home that the Defendant’s vehicle drove by her home and down her street. There was no evidence to support her belief other than the generic description of a Honda Accord motor vehicle.

Even if I accept that this is what the witness saw, without more details, how can I be certain that this was the Defendant’s motor vehicle. [ 19 ] I am not satisfied on any of the evidence that the Defendant was purposely following the complainant either before or after he had been arrested by the police. [ 20 ] Lastly, Ms. Bashir testified that on the day the Defendant was arrested he was angry, and he had a brief telephone call before he left with their son in the Defendant’s Honda Accord. This evidence was corroborated by Shalena Diaram and I accept it as accurate. [ 21 ] Mr. Veerasingam testified.

His evidence was led primarily in respect of count 2. Given that this charge has been abandoned by the prosecutor I need not make much comment on much of this witness’ evidence. Mr. Veerasingam’s testimony was largely uncontroversial and unchallenged. [ 22 ] Ms. Sinnadurai testified about a strange visit to her home on the day when she spoke to police. A man came and told her that her husband was cheating with his wife. She asked his name, he told her “Danny,” and he left. He had no weapons and made no threats, but he was angry, she said. I accept all of this evidence without hesitation.

It was unchallenged and uncontradicted by any other evidence. [ 23 ] Ms. Shalena Diaram testified as the final witness for the prosecution. Her testimony revealed that on the day of the Defendant’s arrest, he had been arguing with the complainant, he was very angry, and he left the home with a cleaver and her brother who had his baseball bat. Although there was much challenge to her evidence that the cleaver that was seized from the Defendant’s car was the one that came from the Defendant’s kitchen, I have no difficulty finding as a fact that it did.

This item is so unusual both as an implement and as something someone would carry on the floor of their car, and given the strength of the witness’ evidence, I accept that this is the exact cleaver that the Defendant took when he left his house on 28 April 2018. The short period of time after he left his residence until the Defendant’s arrest satisfies me that he did not switch cleavers. I find that I need not resolve whether or not the bat introduced in evidence was Ms. Diaram’s brother’s bat, but it likely was, given the timing and location of its discovery by the police.

DISCUSSION [ 24 ] Counts one and four are not proven for several reasons. Ms. Bashir’s evidence was insufficient to satisfy me that the Defendant

was following her, repeatedly, purposefully, and for the purpose of causing her fear. Her evidence does not establish what her state of mind was, nor is there any evidence to prove that if she saw the Defendant’s vehicle on the occasions alleged, it was anything more than mere coincidence. The evidence clearly established that the Defendant worked and lived and spent time in the area where his vehicle was observed.

Consequently, I have a reasonable doubt that he criminally harassed Bibi Bashir as alleged in counts 1 and 4. [ 25 ] Similarly, I have no evidence of the origin of the photographs and the device for which the extraction report was entered into evidence. It is suspicious that there are photographs of the complainant’s home on a phone during this time period, but this evidence cannot establish that the Defendant was not only the possessor of the photographs, which is very much in doubt on the evidence, but that he was the photographer.

Even if I were satisfied that the photographs came from the Defendant’s telephone and he had taken the photographs, I would not find that the Defendant breached his bail order not to attend the residence of Ms. Bashir. There is no evidence that the Defendant attended any closer than several car lengths away from the residence and the bail order clearly restricted the Defendant from attending her residence, rather than her street. [ 26 ] More concerning is the defendant’s behaviour on 28 April 2018. He apparently calls Mr. Veerasingam and tells him he wants to speak with his wife.

This may coincide with the day that he apparently stops at Mr. Veerasingam’s home in an agitated state and informs Ms. Sinnadurai that her husband is cheating with his wife. Clearly, the evidence established that the Defendant left his home with a large butcher knife, which was left on the floor of the driver’s compartment of his car, until it was seized by the police. [ 27 ] I have no evidence that he still had that knife when he approached Mr. Veerasingam’s wife, if in fact this was the same date.

In fact, there is no evidence that he had arrived by car, or that his car was even nearby. [ 28 ] I have no hesitation in finding that the Defendant was extremely upset on 28 April 2018. I accept the combined evidence of Bibi Bashir and Shalena Diaram to this effect. Equally, I accept that the Defendant left home with a large, dangerous knife. This may even coincide with the Defendant’s telephone calls to Mr. Veerasingam and his stated intention to advise Ms.

Sinnadurai of the Defendant’s suspicions regarding their spouses. [ 29 ] Nonetheless, neither the Defendant’s actions, nor his words reveal that he had any intention to threaten or harm Mr. Veerasingam. While it is suspicious that the Defendant would leave his home in an agitated state with a cleaver, that alone is insufficient to prove that he possessed that potential weapon for a purpose dangerous to anyone. From the evidence I accept, the Defendant would have been equally upset with Ms. Bashir, but he did not brandish the knife with her.

CONCLUSION [ 30 ] I am not satisfied that any of the offences alleged are proven beyond a reasonable doubt. [ 31 ] Bhuwan Diaram you are free to go. Released: 30 October 2019 Justice G. Paul Renwick