) ) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 369

CITATION : R. v. Bhimsen, 2013 ONSC 369 COURT FILE NO.: 1808/12 DATE: 2013-01-17 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – COLIN BHIMSEN Appellant ) ) ) ) ) ) ) ) Jacob Sone, for the Crown Jack McCulligh, for Mr. Dhimsen/Appellent ) ) HEARD: January 14, 2013 REASONS FOR JUDGMENT MURRAY J. [ 1 ] This is an appeal from a judgment of the Honourable Justice E. Allen of the Ontario Court of Justice, dated February 27, 2012. [ 2 ] The accused was convicted of assault with a weapon and uttering a death threat contrary to sections 267 (

a) and 264.1 (1) (

a) of the Criminal Code of Canada . The complainant in both cases was his spouse Kavita Prashad. The charges arose out of incidents which took place on February 21, 2011. [ 3 ] In the course of the trial, evidence was adduced by the complainant about a previous incident which occurred on February 19, 2011. The evidence with respect to the February 19 incident on arose in re-examination of the complainant by the Crown in reply to questions asked by defence counsel in cross-examination.

There was no objection by defence counsel to this line of questioning. [ 4 ] In re-examination, the complainant indicated that she was assaulted on February 19, 2011. The complainant's evidence was that the accused returned home at approximately 6:00 or 6:30 a.m. in an intoxicated condition. According to the complainant, alcohol had been a problem in the past and she had had “enough of it” and that she told him to pack his bags and leave. He refused to go. An altercation then occurred in which she alleged that the accused pushed her and followed her into the master bedroom. He refused to leave.

She was holding her infant child and barely had enough time to put her child into the bassinet when he started choking her and telling her that she had ruined his life and that she was the worst thing that ever happened to him. The complainant testified that she was unable to breathe when he was choking her and that as soon as he let go, she telephoned her father reporting to him that the accused had just choked her and that she needed him to come to her house.

According to the complainant, her father told her to call the police and she told him that she did not want the police involved and just wanted the accused to leave. The complainant testified that the accused called 911 and reported that she had assaulted him. She said after the police arrived they came up to the bedroom where she was with her daughter. She said the officer asked what happened and she told the police what happened. Her evidence was that the police saw the marks on her neck that resulted from the assault by the accused.

She testified that the officer asked her to press charges and that she told the officer that she did not want the accused arrested and that she just wanted him out of her life. [ 5 ] The evidence of the accused was that on February 19th he had been assaulted by the complainant who hit him on the back of the head with a glass mug causing injury and that as a result of this attack he called 911.

The accused also testified that he had reported this assault to the police and that he had showed the police various injuries that he had sustained as a result of the assault by the complainant, including a bruised lip, swollen head and multiple scratches to his arms. [ 6 ] Constables Bhalla and Brown of the Peel Regional Police were the police officers who responded to the 911 call on February 19 th and were both involved in the investigation of the incident. Both officers attended the residence of the complainant and the accused at 278 Vintage Gate and both officers testified.

Constable Brown testified that he was the first officer who knocked on the door and that the accused answered the door. Constable Brown testified that he spoke both with the complainant and with the accused and that neither individual reported any assaultive behaviour by the other. Constable Brown also indicated that the accused did not report that he had been hit on the back of the head and did not point to any signs of injury on his body.

[ 7 ] Constable Bhalla arrived at 5:44 a.m. While Constable Brown had a conversation with the accused, Constable Bhalla spoke to the complainant and testified that the complainant did not report any assaultive behaviour by the accused and did not show him any injuries on her body. [ 8 ] In sum, the trial judge was faced with evidence from the complainant, the accused and the police that was contradictory. 1.

The complainant's evidence was that she had been choked by the accused on the morning of February 19, 2011, that she had spoken to the police on that morning and reported to the police that she had been choked and that the police saw the marks on her neck resulting from the choking which had taken place earlier that morning. The complainant denied that she had assaulted the accused. 2.

The evidence of the accused was that on February 19 th the complainant had assaulted him by hitting him on the back of the head with a glass mug causing injury, that he had reported this assault to the police who investigated after his 911 call and that he had showed the police a bruised lip, that his head was swollen and multiple scratches to his forearms, and that he reported this assault by the complainant to the police. The accused denied that he had choked the complainant. 3.

Constable Bhalla, who attended at the matrimonial home on February 19 th as a result of the accused's 911 call interviewed the complainant. He testified that the complainant did not report anything in the way of assaultive behaviour by the accused and that she did not show him any injuries on her body. 4. Constable Brown testified that he spoke both with the complainant and with the accused and that neither individual reported any assaultive behaviour by the other party.

Constable Brown also indicated that the accused did not report that he had been hit on the back of the head and did not point to any signs of injury on his body. [ 9 ] It is apparent from the evidence related to the incident of February 19, 2011 that there are serious issues of credibility arising from the evidence of the parties and of the police. The complainant alleges she was choked and reported the incident to the police and that they saw her injuries. Neither police officer corroborated this reporting by the complainant of being choked. Neither police officer corroborated seeing injuries.

The accused denied assaulting the complainant on February 19 th . [ 10 ] In the course of his closing submissions, the Crown adverted to the conflicting evidence related to February 19 th , noting that the complainant did not call the police regarding the incident and did not make any report to the police about what happened. The Crown stated: “She (the complainant) didn't raise it (the incident of February 19, 2011) in-chief. It was only in re-examination that I asked her about it in response to defence counsel's questioning. In re-examination she indicated she was assaulted on the 19th.

It wasn't reported to the police now she says she did report the police. That's something your honour is going to have to consider in your deliberations when you consider her credibility.” [ 11 ] How did the trial judge deal with this conflicting evidence relating to the incident of February19, 2011 in considering the credibility of the complainant?

The judge stated as follows: There are some problems with both his evidence and the evidence of his wife in that both of them claim to have described fairly serious assaults to the police about 48 hours prior to these events and the police have said with respect to both that neither of them reported an assault. I really do not know what to make of that.

Particularly the fact that they both say they gave these reports to the police makes me wonder about perhaps the accuracy of the police evidence but I am really left unable to make any determination one way or the other as a result of the evidence as to what was said the police 48 hours prior to this. In my view it is apparent that these injuries were not seen by the police.

I do have a lot of difficulty with the idea that if the police were shown recent injuries and particularly if they had been shown what he says were large bumps on his head that they would have simply overlooked that but again the evidence is so unsatisfactory in that area that I do not draw any conclusion from (what) happened previously at all. [ 12 ] The trial judge, in convicting the accused, found him to be an incredible and unreliable witness whose evidence did not raise a reasonable doubt. He found the complainant to be a thoughtful and honest witness and described her evidence as “compelling and truthful”.

He concluded that he was satisfied beyond a reasonable doubt on all the evidence in this case that the complainant was telling the truth about what happened and that the accused did in fact commit the offences with which he was charged. Analysis [ 13 ] The evidence of the complainant and the accused relating to the February 19, 2011 incident was evidence which had to be considered by the trial judge in determining the credibility of the complainant.

The trial judge noted that there were some problems with the evidence of the complainant and the evidence of the police in that neither the complainant nor the accused reported an assault, but concluded: “I really do not know what to make of that.” He then speculates about “perhaps the accuracy of the police evidence”.

The trial judge further stated that: “I do have a lot of difficulty with the idea that if the police were shown recent injuries and particularly if they had been shown what he says were large bumps on his head that they would have simply overlooked that but again the evidence is so unsatisfactory in that area that I do not draw any conclusion from (what) happened previously at all.” The trial judge had difficulty with the notion that if the police were shown recent injuries by the accused that they would have simply overlooked or ignored such injuries and concludes that “the evidence is so unsatisfactory in that area that I do not draw any conclusion from (what) happened previously at all.” [ 14 ] The prosecution's case rested on the evidence of the complainant.

With respect, the assessment of the credibility of the complainant could not be made without an assessment of the evidence about what happened on February 19, 2011. The existence of a conflict between the evidence of the complainant and the evidence of the police may not be fatal when it comes to a determination of her credibility but the trial judge must consider that conflict, make findings and factor such findings into his deliberations when determining the credibility of the complainant and the strength of the Crown's case.

If the trial judge were to have made a finding that the complainant was not truthful in her testimony about what she told the police on February 19 th , or that she had not been candid with the

police in her reporting to them on February 19 th , these would have been findings to be taken into account in assessing her credibility and in deciding whether the case was proven beyond a reasonable doubt. Respectfully, it was not sufficient for the judge to conclude that he does not really know what to make of the conflict in evidence and speculate about the accuracy of the police evidence. [ 15 ] The complainant testified that she was assaulted by the accused on February 19, 2011 and that she sustained injuries which were observed by the police.

The trial judge expresses that he has “a lot of difficulty with the idea that if the police were shown recent injuries and particularly if they had been shown what he says were large bumps on his head that they would have simply overlooked that.” The trial judge appears to accept the police evidence that neither the complainant or the accused reported any assaultive behaviour on February 19 th and that neither the complainant or the accused pointed out to the police any injuries sustained by them.

The trial judge assumes that the police would not overlook seeing injuries on the accused if he had pointed them out to the police or if they have been visible to them. The trial judge’s statements suggest that because the police would not likely overlook seeing injuries on the accused if he had sustained them may well be a factor to be taken into account in coming to the conclusion that the evidence of the accused is not credible. The complainant testified that she had been choked by the accused on 19 February and that the police had seen injuries on her neck sustained as a result.

As noted above, the police testified that on February 19 the complainant did not report any assault by the accused and that they saw no injuries. If the trial judge were to have found as a fact that the police did not see injuries on the accused and that she did not report an assault to him, those findings of fact ought to have been taken into account with respect to assessing the credibility of the complainant and whether the case has been proven beyond a reasonable doubt. [ 16 ] Appellate courts have often been admonished not to substitute their view of credibility for that of the trial judge.

It goes without saying that every contradiction in evidence does not have to be explained by a judge in assessing credibility. However in this case, there was a significant contradiction between the evidence of the complainant and that of the accused, and also between the evidence of the complainant and the police with respect to what occurred on February 19 th . The reasons given by the trial judge demonstrate a failure to consider these significant conflicts - in particular the conflict between the evidence of the complainant and the evidence of the police.

The trial judge stated that he did not draw any conclusion from the conflicting evidence. Respectfully, the trial judge ought to have considered this evidence in assessing the complainant's credibility and whether the Crown proved its case beyond a reasonable doubt. In my respectful opinion, the failure by the trial judge to consider the evidence amounts to a real and palpable error. Conclusion [ 17 ] For the reasons outlined above, I conclude that the manner in which the trial judge dealt with the evidence renders the convictions unsafe and that such convictions must be set aside and a new trial directed.

MURRAY J. Released: January 17, 2013 CITATION : R. v. Bhimsen, 2013 ONSC 369 COURT FILE NO.: 1808/12 DATE: 2013-01-13 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – COLIN BHIMSEN Appellant REASONS FOR JUDGMENT MURRAY J. Released: January 17, 2013