R. v. Singh, 2024 BCCA 40

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Singh, 2024 BCCA 40 Date: 20240131 Docket: CA48879 Between: Rex Respondent And Varinder Singh Appellant Before: The Honourable Mr. Justice Hunter (In Chambers) On appeal from: An order of the Supreme Court of British Columbia, dated January 20, 2023 ( R. v. Singh , 2023 BCSC 92 , Vancouver Docket 31562). Oral Reasons for Judgment The Appellant, appearing in person: V. Singh Counsel for the Respondent: M.G. Scott Place and Date of Hearing: Vancouver, British Columbia January 31, 2024 Place and Date of Judgment: Vancouver, British Columbia January 31, 2024

Summary: The applicant applies for leave to appeal a

summary conviction appeal judge’s order dismissing his appeal of a conviction for criminal harassment. Held: Application for leave dismissed. The proposed appeal does not have significance for the administration of criminal justice beyond the immediate case, and the merits of the appeal do not justify leave being granted. [ 1 ] HUNTER J.A. : This is an application for leave to appeal a

summary conviction appeal judgment dismissing the appeal of Mr. Singh from his conviction for criminal harassment. Background Trial Judgment [ 2 ] On October 30, 2020, the applicant, Mr. Singh, was convicted of criminal harassment contrary to s. 264 of the Criminal Code, R.S.C. 1985, c. C-46 , following a judge alone trial in the Provincial Court of British Columbia. [ 3 ] Mr. Singh called no evidence at trial. The Crown called the complainant and an RCMP officer who responded to a call made by the complainant on December 17, 2019. [ 4 ] The evidence at trial established that Mr.

Singh and the complainant met in May 2019 and had an on-and-off relationship which ended in October 2019. Following the end of the relationship, Mr. Singh: attended the complainant’s house after being told that he was not welcome on two occasions; sent numerous abusive and accusatory emails to the complainant’s work email address; called the complainant 15–20 times per day over the course of several weeks, including through the front desk at a hotel she was staying at for a work conference; contacted the complainant’s neighbors and friends; and posted about the complainant on social networks.

The trial judge found that Mr. Singh had “plagued, badgered, and chronically tormented” the complainant and that as a result the complainant’s “psychological well-being was certainly disturbed and she was fearful of Mr. Singh”. [ 5 ] One of the issues at trial was whether, on account of Mr. Singh’s mental health conditions, he had formed the requisite mens rea for criminal harassment. The complainant’s evidence was that Mr. Singh had told her he had obsessive compulsive disorder and on several occasions that he was depressed and suicidal. The judge found that Mr.

Singh was “at least reckless or willfully blind to the impact that his behavior was having on [the complainant], and that any mental health issues he might have had did not impact his ability

to recognize this.” [ 6 ] On March 19, 2021, the judge suspended the passing of sentence and placed Mr. Singh on probation for two years. The judge noted the presence of two mitigating factors, one of which was Mr. Singh’s mental health issues as described in a detailed pre-sentence psychological report.

Summary Conviction Appeal [ 7 ] Mr. Singh filed a notice of appeal in the Supreme Court of British Columbia on April 13, 2021. His primary ground for appeal was ineffective assistance of counsel, based on the allegation that trial counsel had failed to act on his instruction to pursue a finding of not criminally responsible by reason of a mental disorder (“NCRMD”) under s. 16 of the Criminal Code . Mr. Singh was appointed counsel pursuant to s. 684 of the Criminal Code for the limited purpose of adducing fresh evidence in support of that claim. [ 8 ] Mr.

Singh provided a written submission to the court which was supplemented by the written submission of the s. 684 counsel. Mr. Singh declined to provide further oral submissions and the

summary conviction appeal was heard on the basis of the written materials. [ 9 ] The narrow issue on appeal was whether there had been a miscarriage of justice as a result of ineffective assistance of counsel. The fresh evidence adduced by Mr. Singh in support of his claim was described by the

summary conviction appeal judge as follows: [15] The proposed fresh evidence in this case consists of the following:

a) A comprehensive psychological assessment report, jointly prepared by Dr. Karen Whittemore, a psychologist, and Erin Fuller, a practicum student;

b) Two affidavits of Mr. Singh; and

c) Two affidavits of Talia Magder, trial counsel for Mr. Singh. [16] The psychological report was prepared at the direction of the court, prior to sentencing, and considered by the trial judge at those proceedings. By that time, Mr. Singh had discharged Ms. Magder and was represented by Ms. de Jong. [17] The report was based on multiple sources of information, including clinical interview, psychological testing, and review of past medical records of Mr. Singh. Those records showed prior diagnoses of depression and anxiety disorder, possibly OCD, and bouts of suicidal ideation. Mr.

Singh had been admitted to hospital in both India and Canada, as recently as October 2018, related to concerns of anxiety, panic, stress, depression and suicidal ideation. [18] The affidavits of both Mr. Singh and Ms. Magder detail discussions between them, including via email, as part of the trial preparation. Mr. Singh clearly wished to place evidence of his ongoing mental health problems before the trial judge. He raised the issue of being found not criminally responsible on account of mental disorder (NCRMD) with Ms. Magder, by reference to an

article he found online related to s. 16 of the Criminal Code . There is a conflict in the affidavit evidence on the narrow question of whether Mr. Singh explicitly instructed Ms. Magder to pursue a finding of not criminally responsible by reason of mental disorder at trial. Mr. Singh says he gave Ms. Magder such instructions. Ms. Magder deposes that during discussions shortly before trial, she advised Mr. Singh that NCRMD did not apply to his situation, and he did not expressly instruct her to pursue that verdict. [ 10 ] Mr.

Singh argued that the ineffective assistance of counsel was established by his trial counsel’s failure to advance evidence and submissions in support of a verdict of NCRMD, and the resulting miscarriage of justice was the finding of guilt as opposed to a special verdict of NCRMD. [ 11 ] The

summary conviction appeal judge dismissed Mr. Singh’s appeal in reasons indexed at 2023 BCSC 92 . The judge referred to the following paragraph of this Court’s decision in R. v. Aulakh, 2012 BCCA 340 , in which Justice Smith applied the Supreme Court of Canada’s guidance in R. v. G.D.B., 2000 SCC 22 , concerning the manner in which to assess a claim of ineffective assistance of trial counsel brought on the basis of fresh evidence: [68] In

summary, I would propose to consider the appellant’s application to adduce fresh evidence in the following manner: 1. Determine if the fresh evidence is admissible under the rules of evidence (e.g., no hearsay, speculation, opinion or mere argument). 2.

If the fresh evidence complies with the rules of evidence and if it is apparent from the trial record that the fresh evidence could not reasonably have affected the result (assuming the allegations of ineffective representation could be established) there is no miscarriage of justice and the application to adduce fresh evidence and the appeal should be dismissed. 3.

If that determination is not apparent and the fresh evidence in support of the allegation of ineffective representation is relevant to that issue and credible, admit the fresh evidence for the limited purpose of determining the allegation of ineffective representation, an issue that was not adjudicated at trial. At this stage the fresh evidence will not be admissible to determine the substantive issue of whether a miscarriage of justice has occurred. 4.

In considering whether the performance component of the test for ineffective representation has been established, apply the standard of “reasonable professional judgment”, remembering that the appellant must establish the facts underlying the claim of ineffective assistance on a balance of probabilities. 5.

If the performance component of the ineffective assistance of counsel claim is established, consider whether the appellant has established the prejudice component of the test, namely a “reasonable probability” that the outcome of the trial would have been different if the appellant had received the effective assistance of counsel (i.e., if there has there been a miscarriage of justice). If the answer is yes,

the fresh evidence application should be granted, the appeal allowed, and a new trial ordered. If the answer is no, the fresh evidence andthe appeal should both be dismissed. [12] Applying the approach from Aulakh, the

summary conviction appeal judge proceeded to consider the psychological report,which was the fresh evidence relevant to the issue of whether Mr. Singh had suffered any prejudice. [13] In the

summary conviction appeal judge’s view, the content of the psychological report demonstrated “that Mr. Singh hassuffered no prejudice from its absence at trial, in that its reception could not have affected the result” because “nothing in the medicalopinion supports a conclusion that, at the time of the offence, Mr. Singh was suffering from a mental disorder that rendered himincapable of appreciating the nature and quality of his actions, or appreciating that his actions were wrong.” [14] The

summary conviction appeal judge stated in conclusion: [40] The medical opinion could not have impacted the finding at trial that “there is no evidence that [Mr. Singh] was out of touchwith reality or in any way psychotic.” The proposed fresh evidence could not have affected the result. [41] The only impact the report could have had on the trial process was at sentencing, and the trial judge considered it in that context,in holding that Mr. Singh’s moral culpability was reduced because of his mental health issues. [42] It is thus abundantly clear that there has been no miscarriage of justice. [15] The

summary conviction appeal judge dismissed Mr. Singh’s application to adduce fresh evidence and dismissed his appeal. Legal Framework [16] This Court has a discretionary jurisdiction to hear an appeal from a

summary appeal on a question of law alone: Criminal Code,s. 839(1). [17] The principles governing leave to appeal were succinctly stated in R. v. Winfield, 2009 YKCA 9: [12] It is important to keep in mind that an appeal to a court of appeal in a

summary conviction matter is not a second appeal from thetrial court. Rather, it is an appeal from the decision of the

summary conviction appeal court. Accordingly, the focus of a leaveapplication, and the appeal if leave is granted, is on whether any error of law was committed by the

summary conviction appealjudge: R. v. Emery (1981), (BC CA), 61 C.C.C. (2d) 84 at 85 (B.C.C.A.), leave refused, [1981] 2 S.C.R. vii; R. v. M.(C.S.), 2004 NSCA 60, 185 C.C.C. (3d) 471 at para. 26; R. v. R.(R.), 2008 ONCA 497, 234 C.C.C. (3d) 463 at para. 24. [13] To obtain leave to appeal from the decision of a

summary conviction appeal court, the applicant must establish that (

a) theground of appeal involves a question of law alone, (

b) the issue is one of importance, and (

c) there is sufficient merit in the proposedappeal that it has a reasonable possibility of success. The overriding consideration in the exercise of the discretion to grant or refuse leaveis the interests of justice: R. v. Cai, 2008 BCCA 332, 258 B.C.A.C. 235 at para. 26 (Chambers); R. v. Gill, 2008 BCCA 259 at para. 3(Chambers). [18] To succeed on a leave application, the applicant must establish some exceptional circumstance justifying a further appeal:Winfield at para. 14, citing R. v. R.(R.), 2008 ONCA 497 at paras. 27, 37. Leave is to be given sparingly: R. v. Gaudaur, 2010 BCCA 157at para. 3. [19] In R. v.

Klos, 2015 BCCA 360 (Chambers), Justice Frankel adopted the following standard for granting leave to appeal adecision of the

summary conviction appeal court: [33] … The overriding consideration in determining whether to grant or refuse leave is the interests of justice: R. v. AlphaManufacturing Inc., 2009 BCCA 443 at para. 13, 277 B.C.A.C. 17. That leave will be granted sparingly is evinced by the followingfrom R. v. Bresnark, 2013 ONCA 110: [5] A second appeal in

summary conviction proceedings is the exception, not the rule. R. v. R.(R.) (2008), 2008 ONCA 497, 90 O.R.(3d) 641. First, the matter in issue must raise a question of law alone. Even if the proposed appeal involves a question of law alone, thereare only two types of cases in which leave to appeal may be granted. One is when the matter raised has significance to the administrationof justice beyond the particular case and the grounds of appeal are at least arguable.

The other is where the merits appear to be verystrong – particularly if the conviction is serious and the appellant is facing a significant deprivation of his or her liberty. [20] The exceptional nature of granting leave to appeal from a

summary conviction appeal judgment is illustrated by the followingcomments of Justice Doherty, in R.(R.), comments that were expressly adopted at para. 14 in Winfield: [27] The requirement that the applicant obtain leave to appeal in s. 839 provides the mechanism whereby this court can control itssummary conviction appeal docket. Access to this court for a second appeal should be limited to those cases in which the applicant candemonstrate some exceptional circumstance justifying a further appeal. ... [37] In

summary, leave to appeal pursuant to s. 839 should be granted sparingly. There is no single litmus test that can identify allcases in which leave should be granted. There are, however, two key variables — the significance of the legal issues raised to the generaladministration of criminal justice, and the merits of the proposed grounds of appeal. On the one hand, if the issues have significance tothe administration of justice beyond the particular case, then leave to appeal may be granted even if the merits are not particularly strong,though the grounds must at least be arguable. On the other hand, where the merits appear very strong, leave to appeal may be granted

even if the issues have no general importance, especially if the convictions in issue are serious and the applicant is facing a significantdeprivation of his or her liberty. [Emphasis added.] Analysis [21] As I understand his submission, Mr. Singh raises three primary arguments in his application for leave. [22] First, Mr. Singh relies on his assertion that his trial counsel failed to pursue a verdict of NCRMD despite his instructions, whichincluded trial counsel’s failure to request an NCRMD assessment under s. 672.11 of the Criminal Code. [23] Second, Mr. Singh submits that the trial judge and

summary conviction appeal judge erred by relying on their own opinions as toMr. Singh’s psychiatric condition as opposed to an NCRMD assessment. [24] Third, Mr. Singh submits that the

summary conviction appeal judge erred by relying on the pre-sentence psychologicalassessment to conclude that the prejudice component of the ineffective assistance of counsel test had not been met. In Mr. Singh’ssubmission, it was only appropriate to use the pre-sentence psychological assessment for sentencing, and his mental state at the time ofthe offence should have been the subject of an NCRMD-specific assessment. [25] The first issue in deciding whether leave should be granted is whether Mr. Singh raises a question of law alone.

In Klos, JusticeFrankel explained that whether an allegation of ineffective assistance of legal counsel involves a “question of law alone” is not clear: atpara. 34. [26] The Crown’s position is that despite the constitutional underpinnings of the right to a fair trial and effective assistance of counsel,it is doubtful that a secondary appeal concerning ineffective assistance of counsel “inevitably or necessarily raises a question of law”.The Crown does not, however, oppose Mr. Singh’s application on the basis that this Court lacks jurisdiction to hear the appeal.

Given theCrown’s position, and similar to in Klos, I will proceed by considering the application on the basis of the other requirements of the testfor leave. [27] The second requirement for leave is that the appellant raise an issue of general significance to the administration of justice. In myview, Mr. Singh has failed to satisfy this requirement. The

summary conviction appeal that he seeks to challenge involved a fact-specificassessment of fresh evidence provided in support of Mr. Singh’s allegation of ineffective assistance of legal counsel. While I have nodoubt that the appeal is of great significance to Mr. Singh, I am not satisfied that it is of general significance to the administration ofjustice as a whole. [28] In that circumstance, Mr. Singh must demonstrate that his proposed appeal has sufficient merit to meet the exceptionalcircumstance test. I will proceed by discussing each of Mr. Singh’s grounds for appeal in turn.

As I will explain, I am not satisfied thatthe merits of the proposed grounds meet the requisite standard. [29] First, Mr. Singh again relies on the assertion that his trial counsel failed to follow his instructions to pursue a verdict of NCRMD.The evidence he relies on demonstrates that he wished his mental health issues to be raised as part of his defence by his counsel. Counseldid raise these issues as going to the mens rea of the offence, but that argument was not accepted by the trial judge. [30] On appeal, the

summary conviction appeal judge addressed Mr. Singh’s ineffective assistance claim by asking whetherMr. Singh’s fresh evidence was reasonably capable of changing the outcome of the trial. In other words, the judge first consideredwhether Mr. Singh had been prejudiced by the focus on his mens rea, rather than a possible NCR disposition. To succeed on appeal,Mr. Singh would need to show that the judge erred in that conclusion, but he presents no explanation as to how the evidence before theconviction appeal judge could support a contrary finding. [31] Second, Mr. Singh submits that the trial judge and

summary conviction appeal judge improperly relied on their own opinions asto his mental state at the time of the offences. I agree with the Crown’s submission that the record does not support Mr. Singh’scharacterization. At trial, Mr. Singh’s mental health conditions were raised by the complainant on cross-examination. In the

summaryconviction appeal, the judge did not rely on his own opinions but rather those set out in the psychiatric report that Mr. Singh presented asfresh evidence in support of his appeal. In my view, this ground also does not have a reasonable prospect of success because there wasnothing improper about the manner in which the trial judge, and more importantly the

summary conviction appeal judge, treated theevidence concerning Mr. Singh’s mental health conditions. [32] Third, Mr. Singh submits that the

summary conviction appeal judge erred by relying on the pre-sentence psychological report.The thrust of this submission, as I understand it, is that because a pre-sentence psychological report is created for the purposes ofsentencing it may not be used to assess the mental state of the accused at the time the offence was committed. This argument ignores thefact that Mr. Singh relied on the pre-sentence psychological report as fresh evidence in support of his

summary conviction appeal. Icannot see a basis for concluding that the

summary conviction appeal judge erred in considering the psychological report, which wastendered by Mr. Singh on appeal. [33] As the legal issues sought to be raised are not of significance to the general administration of criminal justice, leave to appealwould be supportable only if the merits appeared to be very strong. In my view, the proposed grounds of appeal do not come close tomeeting that standard. [34] I contrast this case with the judgment of this Court in R. v. Warsing (1997), (BC CA), 119 C.C.C. (3d) 385(B.C.C.A.), which was considered but distinguished by the

summary conviction appeal judge. [35] Mr. Warsing had been convicted of two counts of first-degree murder of his stepbrother and sister and one count of attempted

murder of his stepmother. The convictions were serious and Mr. Warsing was facing a significant deprivation of his liberty. On appeal, this Court accepted fresh evidence from an expert who opined that the mental illness the accused was afflicted with at the time of the offence should lead to a finding of NCRMD and ordered a new trial. [ 36 ] Here, Mr. Singh has not faced a deprivation of his liberty. The trial judge took his mental health challenges into account when sentencing him to a suspended sentence. The medical evidence he relies upon does not include an opinion that Mr.

Singh was not criminal responsible for his actions. [ 37 ] For all of these reasons, I am of the view that it would not be in the interests of justice to grant Mr. Singh’s application for leave to appeal the

summary conviction appeal judgment. Disposition [ 38 ] The application for leave to appeal is dismissed. “The Honourable Mr. Justice Hunter”