R. v. Ramcharan, 2013 MBCA 89

Citation: R. v. Ramcharan, 2013 MBCA 89 Date: 20131001 Docket: AR 12-30-07723 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Alan D. MacInnes Madam Justice Holly C. Beard BETWEEN : HER MAJESTY THE QUEEN ) S. A. Inness ) for the Appellant Respondent ) ) R. N.

Malaviya - and - ) for the Respondent ) ) Appeal heard and KRISEN RAMCHARAN ) Decision pronounced: ) September 27, 2013 ) (Accused) Appellant ) Written reasons: ) October 1, 2013 HAMILTON J.A. [ 1 ] The accused appealed his convictions by judge alone for aggravated assault, utter threats (two counts), forcible confinement and breach of his recognizance for consuming alcohol. [ 2 ] At the end of the appeal hearing, we gave our decision dismissing the appeal, with brief reasons to follow.

These are our reasons. [ 3 ] The convictions arise from events that occurred in the apartment of the accused and his wife, the complainant. Their three-year-old daughter was present at the time.

The accused had consumed alcohol that night when he was under a recognizance not to do so. [ 4 ] The judge accepted the complainant’s evidence that the accused threatened to kill her and their daughter if the complainant did not leave the apartment; that, at one point, the accused “terrorized” her and their daughter by holding their daughter in the air over the balcony railing; and that the accused forced her to stay in the apartment when she attempted to leave to get help.

These findings underpin the convictions for utter threats and forcible confinement. [ 5 ] The judge also accepted the evidence of the complainant that she was pushed over the balcony by the accused and that later, in the apartment, she awoke to the accused performing CPR on her because she had lost consciousness after he stuffed a sock into the back of her mouth to stop her screaming which had the effect of preventing her from breathing. [ 6 ] Three independent witnesses testified at the trial with respect to screams that they heard from a female voice, either from the apartment or the balcony.

One of these witnesses could not see what was happening as he was in the apartment below. The two others were in the building across from the apartment. They testified that, when they looked out, they saw two people struggling, with one punching the other.

One of the witnesses saw the larger individual (a male) on the balcony lift the other (a much smaller female) as if to throw that person off the balcony and then heard the female yell “No, no” and saw her grabbing at the railings. [ 7 ] The judge was very impressed with these witnesses and found that they strongly corroborated the complainant’s testimony. [ 8 ] The accused asserted that the convictions were unreasonable. He argued that notwithstanding some corroboration of the complainant’s evidence about what occurred on the balcony, the findings of guilt were unreasonable given the combination of

inconsistencies and contradictions in her evidence. This argument raises questions concerning the judge’s findings of fact andcredibility. As such, the standard of review is palpable and overriding error. We see no merit to this ground of appeal. The judge wasaware of inconsistencies in the complainant’s evidence and the accused’s arguments related to them. The judge gave examples of themin his oral reasons.

He concluded that, given the “violent treatment” and being “traumatized” “she cannot be expected to be accurate inall of the facts,” but that the “essence of [her] description of the events was … very believable.” He was entitled to accept the evidencethat he did and his findings of fact are entitled to deference.

The accused has not demonstrated that the judge made any error in hisfinding, let alone a palpable and overriding one. [9] The judge convicted the accused of aggravated assault because he was satisfied beyond a reasonable doubt that theaccused had endangered the complainant’s life by pushing her over the railing of the balcony while she was 14 storeys above the ground,and when he stuffed the sock in her mouth to the point that she could not breathe and, therefore, lost consciousness. In doing so, herelied on the R. v.

De Freitas (D.A.) (1999), (MB CA), 134 Man.R. (2d) 78 (C.A.), in which Twaddle J.A., for thecourt, agreed with the decision of Moldaver J. (as he then was) in R. v. Melaragni (1992), (ON SC), 75 C.C.C. (3d)546 (Ont. (Gen. Div.)). [10] The accused asserted that the judge erred in law because De Freitas stands for the proposition that facts that only havethe potential to endanger, and did not in fact endanger, are not sufficient to meet the test for endangerment of life for aggravated assault. He argued that the findings of the judge did not, in law, demonstrate this.

These arguments raise a question of law and the applicablestandard of review is correctness. [11] We agree with the Crown that the judge made the required findings to sustain the convictions for aggravated assault. For example, he stated that he was “satisfied beyond a reasonable doubt that, by pushing [the complainant] over the railing of the balconywhile she was 14 storeys up, the accused endangered her life.” We are of the view that the judge did not err, in fact or in law, by soconcluding. [12] The judge accepted the complainant’s evidence about the sock and its effect when stuffed in her mouth.

Those findingsare entitled to deference. Again, in our view, he made no error in law when he concluded that the accused endangered the complainant’slife by stuffing the sock in her mouth, to the point that she could not breathe and, therefore, lost consciousness. [13] It is for these reasons that the appeal was dismissed. J.A. I agree: J.A. I agree: J.A.