Dallin Lane Singharath Appellant v. His Majesty the King, 2023 SKCA 6

Restriction on Publication An order has been made in accordance with s. 486.5 of the Criminal Code directing that any information identifying specific witnesses shall not be published. Court of Appeal for Saskatchewan Docket: CACR3380 Citation: R v Singharath , 2023 SKCA 6 Date: 2023-01-06 Between: Dallin Lane Singharath Appellant And His Majesty the King Respondent Before: Caldwell, Schwann and Leurer JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Schwann In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr.

Justice Leurer On appeal from: 2020 SKQB 178 , Saskatoon Appeal heard: October 18, 2022 Counsel: Katherine Pocha for the Appellant Dean Sinclair, K.C., for the Respondent Schwann J.A. I. INTRODUCTION [ 1 ] Tyler Applegate was shot and seriously wounded in the backyard of his home. He died from his injuries several weeks later. Dallin Singharath was charged with the second degree murder of Mr. Applegate. A Court of Queen’s Bench judge, sitting alone, found Mr.

Singharath guilty as charged and sentenced him to life imprisonment with no possibility of parole for 13 years. [ 2 ] The sole issue at trial was whether Mr. Singharath possessed the necessary intent to commit second degree murder when he shot and killed Mr. Applegate. The trial judge found the shooting was not accidental and, after considering the whole of the evidence, concluded that Mr. Singharath “knew the reasonable and probable consequence of his actions would be either to cause Mr.

Applegate’s death or to cause him grievous bodily harm which would likely cause his death, and was reckless whether death ensued or not” ( R v Singharath , 2020 SKQB 178 at para 110 [ Trial Decision ]). [ 3 ] Mr. Singharath appeals against his conviction. He argues that the inference drawn by the trial judge about his mental intent was unreasonable and not supported by the evidence and, further, that the trial judge erred by failing to consider whether the evidence supported an inference other than guilt. [ 4 ] For the reasons expressed below, I see no such errors. Mr.

Singharath’s appeal must, therefore, be dismissed. II. BACKGROUND [ 5 ] In the early morning of July 22, 2017, John Doe was seen loitering around a Mac’s convenience store in a residential neighbourhood of Saskatoon. [1] He was waiting for his friend, Fred Doe, to give him a ride. In the course of doing so, John Doe went into the alley behind the Mac’s store and urinated beside an elm tree that was adjacent to the Applegate’s backyard fence. Jay Cook, Mr. Applegate’s brother-in-law and next-door neighbor, witnessed John Doe relieving himself. Both Mr. Cook and Mr.

Applegate confronted John Doe with what they considered to be disrespectful behavior. They chased him to a nearby park where heated words were exchanged, but no violence ensued. [ 6 ] A few minutes after that interaction, Fred Doe arrived on the scene in a black truck. Fred Doe was accompanied by Mr. Singharath and Jane Doe. While the witnesses gave slightly different accounts of what John Doe had said to them in the truck immediately after they picked him up, John Doe testified that he told his compatriots that he wanted to confront the two men with whom he had had the heated exchange. [ 7 ] Mr.

Applegate’s common law spouse, Kathy Cardinal, was standing on the back deck of the Applegate home, facing the alley, at the same time these events unfolded. She observed what transpired next and testified to the following sequence of events that she said took place in fairly rapid order:

(

a) a black truck slowly drove down the back alley behind their house; (

b) three men exited the truck and walked towards the Applegate’s back fence; (

c) Mr. Applegate stepped off the back deck, wrapped a dog leash around his arm and walked toward the back fence; (

d) Mr. Applegate stopped about four feet from the fence – at which point, he picked up a child’s bicycle and held it in front of him; (

e) Ms. Cardinal then heard someone (whom she believed was Mr. Cook) shout out, “Gun”, which was followed immediately by the sound of a gunshot; (

f) Mr. Applegate dropped the bicycle; and (

g) Mr. Applegate was helped into the house, where he later went into medical distress. Ms. Cardinal estimated the time that elapsed from when the black truck showed up behind their house until her husband was shot was less than one minute. She did not see a gun. [ 8 ] Mr. Singharath, John Doe and Fred Doe immediately returned to the truck. With Jane Doe now in the driver’s seat, they fled the scene. The foursome initially went to John Doe’s apartment, where they changed clothes and Mr. Singharath showered. A short while later, Mr. Singharath, Fred Doe and Jane Doe drove to Jane Doe’s apartment in Prince Albert.

Mr. Singharath left the gun in Jane Doe’s apartment, where it was later seized by the police. Mr. Singharath and Fred Doe were arrested two days later in Edmonton, Alberta following a police pursuit. [ 9 ] A document entitled “Admissions and Agreed Statement of Facts” [statement] was entered as an exhibit at trial. The salient portions from that statement are as follows: 1. Tyler Applegate (“Tyler”) was killed as the result of complications from a gunshot wound. The gunshot wound was received on July 22, 2017 … . 2. Tyler died in hospital at the Royal University Hospital on August 10, 2017.

Tyler’s family, after medical consultation, made the decision to remove him from life support. There were no intervening acts that contributed to or caused his death. Relevant medical records can be tendered without witnesses attesting to their accuracy or continuity. 3. The firearm used to shoot Tyler Applegate was a sawed-off and modified .22 caliber rifle. This firearm meets the definition of a prohibited firearm in the Criminal Code . This firearm was recovered from [Jane Doe’s] apartment pursuant to a search warrant on July 25, 2017. … 7.

Dallin Singharath fired the firearm which shot [and] struck and subsequently killed Tyler Applegate. 8. Dallin Singharath before and after the shooting was in a Nissan Titan truck (“Nissan Titan”) stolen from Prince Albert. [ 10 ] As noted in the statement, the firearm used by Mr. Singharath was a sawed off, modified .22 calibre rifle. The evidence at trial revealed the following about that firearm: (

a) it could only be loaded one bullet at a time; (

b) it did not have a safety mechanism; and (

c) it required very little force to activate the trigger. John Marshall, a firearms expert, was called as a witness for the Crown. In his opinion, the firearm was a functioning weapon. He also opined that, because there was no magazine in the magazine well, care needed to be taken in loading it and that the best way to do so was by holding the gun with the barrel pointed downward. [ 11 ] John Doe and Jane Doe each testified for the Crown. Fred Doe was called as a witness by the Court.

Although there were slight differences in their recounting of what transpired at the time of the shooting, they were consistent in the fact that when the truck arrived behind the Applegate house, Mr. Singharath, John Doe and Fred Doe immediately exited it and lined up in the back alley behind the Applegate fence. Fred Doe said he heard John Doe shout out, “These are my boys, you want to go now?” as they walked toward the back of the Applegate fence. [ 12 ] None of those three witnesses saw the firearm in the truck.

Aside from Jane Doe, none saw it immediately prior to the shooting, although Fred Doe was aware of the fact that Mr. Singharath had a firearm in his possession. Jane Doe testified that after Mr. Singharath left the truck, she saw the firearm in his hand and then saw him raise and fully extend his arm, pointed in the direction of the Applegate house. Fred Doe testified that, even though he stood slightly forward of Mr. Singharath, through his peripheral vision, he was able to see Mr. Singharath fire the weapon. [ 13 ] Mr. Singharath did not testify in his own defence. III. THE TRIAL DECISION

[ 14 ] Relying on the statement and the evidence led at trial, the trial judge concluded that Mr. Singharath had caused Mr. Applegate’s death and that his death had occurred as a consequence of Mr. Singharath being in possession of a prohibited weapon for a purpose dangerous to the public peace or for purposes of committing an offence. The only contentious issue at trial was whether Mr. Singharath possessed the requisite state of mind to be convicted of second degree murder.

On that point, the trial judge observed as follows: [13] … For culpable homicide to constitute murder, the burden is on the Crown to prove, beyond a reasonable doubt, one of two possible states of mind on the part of an accused. In one respect, the Crown must prove that the accused intended to kill the deceased.

Alternatively, the Crown must prove that the accused intended to cause the deceased bodily harm, which he or she knew was likely to kill the deceased and was reckless whether death ensued or not. [ 15 ] The trial judge went on to note, proof of the necessary state of mind “does not depend on evidence of an accused person making express or explicit statements of intention” (at para 14). Rather, he said, a conclusion as to an accused’s state of mind could be drawn from evidence demonstrating “1) what an accused did or did not do; 2) how an accused did or did not do it; and 3) what an accused said or did not say”.

This required him to “assess the words and conduct of an accused person at the time of, and after, the unlawful act that caused the death”. Those actions, taken together, he said, “may shed light on an accused person’s state of mind at the relevant time” (at para 14). [ 16 ] In determining whether Mr.

Singharath had the requisite state of mind, the trial judge said it was open to him to “conclude or infer, as a matter of common sense, that a person usually knows what the predictable consequences of his or her actions are, and that such a person means to bring them about. … The concept for drawing such a conclusion or inference has come to be known as the ‘common sense inference’” (at para 16). [ 17 ] The trial judge carefully reviewed the jurisprudence pertaining to the common sense inference of intent, with particular emphasis on the Supreme Court decision in R v Walle , 2012 SCC 41 , [2012] 2 SCR 438.

After canvassing the applicable jurisprudence, the trial judge attentively scrutinized the evidence (see paragraphs 28–82), with an eye to Mr. Singharath’s state of mind based on, as he said, “the attendant circumstances, such as what was done, how it was done and what, if anything, was said” (at para 97). In assessing those matters, the trial judge made the following findings of fact: (

a) Mr. Singharath’s state of mind was not affected by the consumption of illicit drugs or alcohol; (

b) Mr. Singharath was familiar with the firearm in question – he kept it in his possession while it was loaded and would have been aware of its unique features, such as the absence of a magazine, the receiver being taped to the body of the firearm and that it did not have a functioning safety; (

c) Mr. Singharath believed the firearm was functional, and it, in fact, required 5.5 pounds of pressure to fire; (

d) When he entered the truck, John Doe had made his intentions known to everyone, namely that they were to go to the Applegate residence to fight the two individuals who had confronted him for urinating next to their property; (

e) John Doe’s testimony was confirmed by Fred Doe, and, in any event, there was no other reason for the three of them to have attended the Applegate residence; (

f) Mr. Singharath brought and physically carried a loaded firearm to a scene that he expected would evolve into a serious confrontation; and (

g) Mr. Singharath fired the weapon at a distance of 20 to 22 feet from Mr. Applegate. [ 18 ] The trial judge considered but rejected the possibility that the shooting was accidental. He described that suggestion as “nothing more than a belief” that had been postulated by John Doe and Jane Doe (at para 109). Referring to the testimony of those two witnesses, the trial judge said this: [109] … when each of them were asked whether there were any facts within their knowledge tending to support the suggestion [of an accidental discharge], they had none.

Moreover, there is no evidence of the accused having explained to anyone that this was an accident, whether by text message, recorded telephone calls or otherwise. In my view, there is simply no air of reality to the defence of accidental discharge. [ 19 ] Based on the totality of the evidence adduced at trial, the trial judge found he was able to draw an inference of intent.

He concluded on this point by stating: [110] … In sum, the evidence, viewed as a whole, satisfies me, beyond a reasonable doubt, that when the accused pulled the trigger of the subject firearm, in the circumstances described, he knew the reasonable and probable consequence of his actions would be either to cause Mr. Applegate’s death or to cause him grievous bodily harm which would likely cause his death, and was reckless whether death ensued or not. He thereby committed second degree murder. [ 20 ] It was on that basis that Mr.

Singharath was found to have had the requisite intent to be guilty of the second degree murder of Mr. Applegate. IV. ISSUES [ 21 ] I understand Mr. Singharath to make the following arguments on appeal: (

a) the trial judge erred in law by drawing a common sense inference respecting his intent, without considering whether the

evidence supported any other reasonable inference; (

b) the verdict was unreasonable and could not be supported by the evidence because (

i) there was an insufficient evidentiaryfoundation for the trial judge to have drawn the inference that he drew respecting intent, and (ii) the trial judge misapprehended variouspieces of material evidence; and (

c) the reasons were inadequate. V. ANALYSIS A. The common sense inference [22] In determining whether an accused had the requisite state of mind, a trial judge may infer that a sane and sober person intendsthe natural and probable consequences of their actions. This is known as the common sense inference. It is a permitted inference, not apresumption. In Walle, the Supreme Court described the inference as providing a tool or “marker” for triers of fact “against which tomeasure the rather amorphous concept of intent” (at para 63).

In assessing the specific intent required for murder, triers of fact mustconsider “the whole of the evidence that could realistically bear on the accused’s mental state at the time of the alleged offence” (at para65).

That said, as the Court observed, a trier of fact may resort to the common sense inference in deciding whether intent had been provedwhere there is no evidence “that could realistically impact on whether the accused had the requisite mental state at the time of the offence,or if the pertinent evidence does not leave [the trier of fact] in a state of reasonable doubt about the accused’s intent”(at para 67).

Putanother way, a trier of fact may not apply the common sense inference if they have a reasonable doubt based on the whole of the evidence,and in assessing that issue as the Supreme Court cautioned, a trier of fact “must carefully consider the evidence that points away from it”(at para 63): see also R v Daley, 2007 SCC 53, [2007] 3 SCR 523; R v Seymour, (SCC), [1996] 2 SCR 252 at para 20; Rv Mulligan, (SCC), [1977] 1 SCR 612; R v Giannotti (1956), (ON CA), 115 CCC 203 (Ont CA); andDavid Watt, Watt’s Manual of Criminal Evidence (Toronto: Thomson Reuters, 2022) at §12.02 — Inference of State of Mind. [23] Mr.

Singharath does not take issue with the general proposition that a trier of fact may infer that an accused engaged in conductwith the intent to bring about the natural and probable consequences of their actions. As I understand his argument, Mr. Singharath assertsthat an inference that he had acted with the intent necessary to be guilty of murder was not open to the trial judge from the evidenceadduced at trial. He is critical of what, he describes, is the trial judge’s failure to consider whether the evidence supported anotherinference, such as that the shooting was accidental. According to Mr.

Singharath, the trial judge was obliged to discount all otherreasonable and possible explanations for the shooting of Mr. Applegate before he could draw an inference of intent. [24] The British Columbia Court of Appeal grappled with a somewhat similar argument in R v Weng, 2022 BCCA 332. On appeal,Mr. Weng asserted that the trial judge failed to come to grips with key legal and factual questions that required resolution and that hisfailure to do so made his conviction unsafe. As Mr.

Weng argued, if the trial judge had sifted through the evidence and conducted acomprehensive analysis of it, the judge could reasonably have concluded that he had “impulsively fired the shots in the context of arapidly escalating confrontation driven by fear, anger and excitement” (at para 74).

If the trial judge had directed his mind to thepresumption of innocence, the evidence led by the defence and the arguments advanced at trial, it would have “negated the common senseinference and left the judge with a reasonable doubt on the issue of intent” (at para 74). [25] The British Columbia Court of Appeal rejected Mr. Weng’s argument.

It noted that, while a trier of fact is obliged to considerall of the evidence that could realistically bear on an accused’s mental state before resorting to the common sense inference to make afinding of intent, a trier of fact is not obliged “‘to refer to every item of evidence considered or to detail the way each item of evidence wasassessed’” (at para 76, quoting with approval from R v J.M.H., 2011 SCC 45 at para 32, [2011] 3 SCR 197).

That said, the Court in Wengalso noted that, in undertaking an analysis of the evidence to determine if a common sense inference could be drawn, a trier of fact mustconsider “the cumulative effect of all evidence related to defences, justifications or excuses such as intoxication, self-defence andprovocation, even where each defence has been rejected” (at para 68). See also R v Sheepway, 2022 YKCA 3 at para 46. [26] With those comments in mind, I return to the matter at hand. [27] Mr.

Singharath’s argument cannot be considered in a vacuum; it must be assessed in light of what was before the trial judge andthe strategy pursued at trial. Mr. Singharath called no evidence in his defence, choosing instead, as he was entitled to do, to rely on thepresumption of innocence and the Crown’s burden of having to prove intent beyond a reasonable doubt. To that end, Mr. Singharath reliedlargely on the testimony of John Doe and Jane Doe, who, at times, were less than cooperative witnesses for the Crown, as well as thetestimony of Fred Doe, who, as noted, had been called as a witness by the Court.

His position was that their evidence, combined with thefact that the shooting took place in less than a minute from the time he arrived on the scene, pointed to the likelihood that the shooting wasaccidental and not intentional. Had the trial judge considered this body of evidence, Mr. Singharath argues, it would have led him (the trialjudge) to find reasonable doubt about whether he (Mr. Singharath) possessed the intent necessary to commit second degree murder. [28] To be clear, the law does not require Mr. Singharath to rebut the Crown’s case; he was entitled to the presumption of innocencethroughout.

However, what that meant in the context of his defence was that the trial judge was left with only the Crown’s evidence andthe testimony of Fred Doe to assess. As discussed below, I see no indication that the trial judge misapprehended that body of evidence orthat he failed to consider whether the shooting was accidental. [29] To conclude, when the reasons are read as a whole, I am satisfied that the trial judge considered all of the evidence presented attrial in determining whether the Crown had proven beyond a reasonable doubt that Mr. Singharath possessed the requisite intent.

Herecognized that the common sense inference of intent was permissive and not presumptive and that “conclusions as to the accused’s stateof mind can be drawn from evidence of all the attendant circumstances, such as what was done, how it was done and what, if anything,was said” (Trial Decision at para 97). More importantly, in assessing Mr.

Singharath’s subjective intent, the trial judge understood that,before he could draw an inference of intent, he was obliged to – in the words of Walle – consider “the whole of the evidence that couldrealistically bear on the accused’s mental state at the time of the alleged offence” (at para 65). I see no indication that he failed to follow

that direction or failed to consider the possibility that the shooting was accidental. In fact, he did so on a reasoned basis. As I see it, thisground of appeal is really a complaint about the trial judge’s

interpretation of that evidence and the weight he assigned to it. B. The common sense inference is not presumptive [30] In a related argument, Mr. Singharath submits the trial judge grasped onto an inference of intent too readily, as if it were apresumptive principle of law. To advance this argument, Mr. Singharath contrasts the facts in his matter to those in Walle, where he saysthe evidence was more compelling and provided a solid basis for an inference of intent to be drawn. For instance, in Walle, (

a) the accusedwas five feet away from the victim and had pointed the firearm at the victim’s chest, (

b) the accused had fired the murder weapon on afew prior occasions before the shooting, (

c) the accused had a motive to shoot the victim, (

d) the accused backed down a ramp whileholding the gun, but the victim continued toward him, (

e) the accused admitted that he panicked and went crazy, (

f) the trial judgedisbelieved the accused, and (

g) the trial judge found as fact that the accused knew the safety was off and the gun was loaded. [31] I am not persuaded by this argument. As discussed above, the trial judge understood that he was required to “consider all theevidence presented at a trial, and apply common sense to that evidence, to determine whether it proves, beyond a reasonable doubt, therequisite state of mind” (Trial Decision at para 15). He meticulously examined the jurisprudence pertaining to the use and reliance on aninference of intent and, in reference to Giannotti, understood that it was not presumptive.

He also drew from the jurisprudence in R vRobinson, (SCC), [1996] 1 SCR 683, Seymour, Daley, Walle, R v Wolff, 2019 SKCA 103, 380 CCC (3d) 223, and R vMcKay, 2020 SKQB 28. [32] The trial judge quoted extensively from Walle. In particular, he cited the following passages which makes clear that thecommon sense inference of intent is permissive, not presumptive, and that, before acting on it, a trier of fact must carefully consider theevidence that points the other way (Walle): [63] In my view, instructing a jury on the common sense inference serves a useful purpose.

It provides the jury with a marker againstwhich to measure the rather amorphous concept of intent. A proper instruction also sounds a cautionary note. The jurors are admonishedthat the inference is permissive, not presumptive, and that before acting on it, they must carefully consider the evidence that points awayfrom it. That is important.

Left to its own devices, a jury might too readily turn to common sense for an answer, especially in cases like thepresent one, where common sense might suggest that anyone who fires a gun into a person’s chest at close range would surely be aware ofthe consequences. [33] In my view, the trial judge’s reasons reflect a correct understanding of the law with respect to when the common senseinference of intent may be drawn by a trier of fact. As discussed below, I find he applied it appropriately to the evidence. There was nolegal misdirection. While I agree with Mr.

Singharath that the facts in Walle were very compelling, that does not mean that a commonsense inference was not open to the trial judge in the circumstances before him. As detailed below, it plainly was. C. The verdict was not unreasonable 1. Section 686(1)(a)(

i) of the Criminal Code [34] Mr. Singharath’s appeal under this head is grounded in allegations of two separate, but somewhat related, errors. He says theverdict is unreasonable and cannot be supported by the evidence because (

a) there was an insufficient evidentiary foundation for the trialjudge to have drawn the inference that he drew with respect to intent, and (

b) the trial judge misapprehended some of the materialevidence. In advancing this argument, I understand Mr. Singharath to invoke s. 686(1)(a)(

i) of the Criminal Code, which permits appellateintervention where the verdict is “unreasonable or cannot be supported by the evidence”. [35] A guilty verdict is unreasonable if it is unsupported by the evidence. In assessing that question, an appellate court mustdetermine if “the verdict is one that a properly instructed jury or a judge could reasonably have rendered” (R v R.P., 2012 SCC 22 atpara 9, [2012] 1 SCR 746): see also R v Biniaris, 2000 SCC 15 at para 36, [2000] 1 SCR 381, and R v C.P., 2021 SCC 19 at para 28, 457DLR (4th) 553. Appellate intervention is also warranted under s. 686(1)(a)(

i) where the verdict is plainly contradicted by the evidencerelied on by the trial judge in support of an inference or finding or is shown to be “incompatible with evidence that is uncontradicted andnot rejected by the judge …” (R v Brunelle, 2022 SCC 5 at para 10, 412 CCC (3d) 489). [36] Although the Biniaris analysis requires an appellate court to review the evidence, that direction is not to be taken as an open-ended invitation to retry the case or take a different view of it than that taken by the trier of fact: “If a conviction is possible on the record,it is not sufficient that a different trier of fact might have acquitted” (R v Lee, 2010 ABCA 1 at para 7, 328 DLR (4th) 695). [37] Mr.

Singharath’s unreasonable verdict argument is principally grounded in alleged flaws in the trial judge’s analysis of theevidence, which, he says, resulted in a misapprehension of the evidence sufficient to warrant appellate intervention. For a misapprehensionof the evidence to result in a miscarriage of justice, it must relate to evidence that was central to the finding of guilt.

A misapprehension ofthe evidence engages the following points made by Doherty J.A. in R v Morrissey (1995), (ON CA), 97 CCC (3d) 193(Ont CA): [93] … Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential

part in thereasoning process resulting in a conviction then, in my view, the accused’s conviction is not based exclusively on the evidence and is not a“true” verdict. Convictions resting on a misapprehension of the substance of the evidence adduced at trial sit on no firmer foundation thanthose based on information derived from sources extraneous to the trial. If an appellant can demonstrate that the conviction depends on amisapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of amiscarriage of justice.

This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction. [38] The standard expressed in Morrissey is stringent. The alleged misapprehension must go to the substance, not the detail, and itmust be material to the reasoning of the trial judge. Further, as set out in R v Lohrer, 2004 SCC 80, [2004] 3 SCR 732, “the errors thus

identified must play an essential part not just in the narrative of the judgment but ‘in the reasoning process resulting in a conviction’” (atpara 2, quoting Morrissey at para 93). [39] A misapprehension can refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of theevidence, or a failure to give proper effect to the evidence. The following was noted in Morrissey: [89] … In cases tried without juries, a finding that the trial judge did misapprehend the evidence can, however, figure prominently in anargument that the resulting verdict was unreasonable.

An appellant will be in a much better position to demonstrate the unreasonablenessof a verdict if the appellant can demonstrate that the trial judge misapprehended significant evidence. [40] Justice Fish in R v Sinclair, 2011 SCC 40, [2011] 3 SCR 3 (in dissent, but not on this point), discussed the connection betweena misapprehension of the evidence and a finding of an unreasonable verdict: [12] … a verdict based on an erroneous understanding of the evidence with regard to a material matter cannot support a finding of guilt.As mentioned earlier, I agree as well that this sort of misapprehension of the evidence may well render the verdict at trial “unreasonable”within the meaning of s. 686(1)(a)(

i) of the Criminal Code. [13] In R. v. Morrissey (1995), (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), Doherty J.A. explained thatmisapprehensions of the evidence include not only a mistake as to the substance of the evidence, but also “a failure to consider evidencerelevant to a material issue” and “a failure to give proper effect to evidence” (p. 218). I agree with Justice Doherty that “[i]n cases triedwithout juries, a finding that the trial judge did misapprehend the evidence can … figure prominently in an argument that the resultingverdict was unreasonable” (p. 220 [at para 89]). 2.

Errors alleged in the trial judge’s assessment of the evidence [41] Mr. Singharath puts forth several examples to support his contention that the trial judge fundamentally misunderstood oroverstated the evidence. [42] First, Mr. Singharath says it was significant that none of his compatriots – John Doe, Jane Doe and Fred Doe – saw the firearmin the truck beforehand or had discussed its use when they confronted Mr. Applegate. In fact, as he points out, each of those witnessesexpressed surprise to the point of being shaken by how things unfolded with the shooting of Mr.

Applegate. [43] I see no evidence of any misapprehension of this body of evidence by the trial judge. He commented on the fact that John Doe,Jane Doe and Fred Doe were unaware that Mr. Singharath had a firearm in the truck prior to the fatal shooting and that Mr. Singharath hadnot shown it to them or discussed its presence in any way. However, their absence of knowledge was inconsequential to the charge againstMr. Singharath because, as the Crown correctly observes, Mr.

Singharath’s state of mind was not linked to whether his compatriots knewhe had a firearm in his possession or whether he had discussed its use with them in advance of the shooting. Moreover, even if they hadknown Mr. Singharath had a firearm on his person, that fact alone says nothing about Mr. Singharath’s state of mind. While evidence ofthat sort may have been relevant if the Crown had charged him with the first degree murder of Mr. Applegate on the basis that it wasplanned and deliberate, the Crown was not required to prove those elements to secure a conviction for second degree murder. [44] Second, Mr.

Singharath asserts the trial judge exaggerated the gravity of the moment in making the observation thatMr. Singharath took a loaded firearm “to a scene he expected would evolve into a serious confrontation” (at para 103). Since everyone inthe truck believed they were going to the Applegate property to confront and fight Mr. Applegate and Mr. Cook, Mr. Singharath submitsthe adjective serious reveals an unnecessary, more sinister tone than was otherwise warranted by the evidence at trial. [45] I disagree. The evidence was clear and strong enough to support the conclusion drawn by the trial judge.

The four people in thetruck went to the Applegate property to confront the two individuals who had verbally chastised John Doe. John Doe testified about twoguys in the back alley waving their arms and “talking smack”, which, he said, “triggered us to go back there”. Although there was noevidence of any concrete plan as to what would transpire once they got there, John Doe believed there would be some form of physicalaltercation. [46] Fred Doe testified to similar effect. He recalled that John Doe had recounted how two individuals had verbally accosted himand had then asked if they (Fred Doe and Mr.

Singharath) wanted to do something about it. He also testified that John Doe had shoutedsomething along the lines of, “These are my buddies”, when they walked toward the Applegate property. [47] When this evidence is considered as a whole, it was open to the trial judge to conclude that their collective plan was toaggressively confront Messrs. Applegate and Cook. I see nothing untoward in attaching the word serious to the planned encounter. [48] Third, as the entire incident lasted no more than a minute, and was, therefore, fleeting in nature, Mr.

Singharath suggests thebrevity of events meant the discharge of the firearm was likely accidental and that this inference was the more probable explanation; butthe trial judge failed to consider it. [49] Respectfully, the trial judge was alert to the short length of time between when the truck arrived in the back alley and whenMr. Applegate was shot. Mr. Singharath’s submission that the trial judge failed to consider the possibility of an accidental discharge, orwhether it raised a reasonable doubt about his intent, is inconsistent with how the trial judge addressed that issue.

As mentioned above, hedid consider it but found the argument had no air of reality. He as follows: [109] Having identified my five conclusions from the evidence, there is one other matter I should address before stating my finalconclusion. In the course of this trial, it was suggested that the accused’s shooting of Mr. Applegate was accidental, or that the possibilityof it being accidental raises a reasonable doubt. In my view, there is no basis in fact for this suggestion. The belief that the discharge of thesubject firearm was accidental is nothing more than a belief.

In the evidence, this belief was only expressed by John Doe and Jane Doe.That said, when each of them were asked whether there were any facts within their knowledge tending to support the suggestion, they hadnone. Moreover, there is no evidence of the accused having explained to anyone that this was an accident, whether by text message,

recorded telephone calls or otherwise. In my view, there is simply no air of reality to the defence of accidental discharge. [ 50 ] The trial judge plainly saw the suggested inference as little more than speculation, ungrounded in any evidentiary foundation. As mentioned, Mr. Singharath did not testify nor did he offer any other evidence to support his theory of an accidental discharge. The suggestion that the weapon went off accidentally comes from the unfounded opinion expressed by John Doe and Jane Doe.

For his part, John Doe did no more than say that the shooting was probably accidental because “it was over nothing”. When questioned further about anything he saw or heard that would cause him to believe the shooting was accidental, he replied, “I don’t know”. [ 51 ] Jane Doe’s testimony was similarly unsupportive of the inference Mr. Singharath says the trial judge failed to consider. She expressed contradictory opinions: one that on the bare facts the shooting did not “seem very accidental”, and the other that, without being able to say why, it could have been an accident.

When the Crown pressed her about the basis for her belief, the following exchange took place: Q Okay. What was there about pointing the gun at the house and firing a shot that was accidental, in your mind? A I mean, that doesn’t seem very accidental, but it’s not like he was -- I mean, he could be aiming it at the house; right? But it’s not like he was intending to -- Q Okay. A -- shoot anyone. Q I don’t -- again, you can’t get inside his head. And I wasn’t asking you that -- A M-hm. Q -- particularly; but was there anything about the actions that you saw.

I mean, an accident could be, Oh, my -- my papers fell on the floor, I didn’t mean to have that happen. Was there anything like that about this situation? A I -- I would guess no. Q Well, and I would ask you to do more than guess. Was there anything you saw that -- that would lead you to believe this was an accident? A No. [ 52 ] I see no merit in Mr. Singharath’s argument on this point. The testimony of John Doe and Jane Doe about the shooting being accidental amounted to nothing more than speculation about why any firearm might be discharged – nothing tied it to the case at hand.

Setting aside whether their thoughts about what Mr. Singharath might have been thinking at the time in question were even admissible, those witnesses offered no tangible basis to support their opinion: neither saw nor heard anything that substantiated their belief. Moreover, as the trial judge observed, there was no evidence that Mr. Singharath had commented or remarked to anyone in the aftermath of the shooting about the firearm having gone off accidentally. Simply put, the trial judge did not err in finding that the defence of accidental discharge had no air of reality. [ 53 ] The next piece of evidence Mr.

Singharath highlights is Jane Doe’s testimony that he had aimed and fired the firearm in the direction of the house and, as Mr. Singharath says, by implication, not at Mr. Applegate. Mr.

Singharath says this evidence was directly relevant to the trial judge’s analysis of his state of mind and that it should have been given considerable weight because Jane Doe was the only witness who had testified about the direction in which he had aimed the weapon. [ 54 ] The trial judge was aware of Jane Doe’s testimony on this point, but he was also mindful that her testimony and that of John Doe and Fred Doe varied with respect to such things as the truck’s location in the back alley or where each of them stood relative to the others, particularly Mr. Singharath.

He understood that Jane Doe was the only witness who had testified that Mr. Singharath stood outside of the truck and had aimed the weapon in the direction of the Applegate home. [ 55 ] The differences in the witnesses’ accounts of where Mr. Singharath stood undoubtably played a role in the weight assigned to Jane Doe’s evidence. Furthermore, her testimony was far from clear or even persuasive. According to Jane Doe’s version of events, she had remained in the truck when the three men exited from it. She said John Doe and Fred Doe stood slightly ahead of Mr.

Singharath, that the back fence and a nearby parked car blocked her view of the Applegate’s backyard and that she was unable to see if there were any people in the backyard. All told, it is easy to see why her evidence – even if believed – was not given much weight about how things had transpired outside of the truck or precisely where Mr. Singharath was aiming, and why it was found to have little bearing on the determination of his state of mind when he pulled the trigger. [ 56 ] The final piece of evidence asserted to have been misapprehended by the trial judge concerned the firearm.

The firearm, its functionality and Mr. Singharath’s familiarity with it were circumstances that led the trial judge to draw an inference about Mr. Singharath’s intent: [99] … the evidence also satisfies me, beyond a reasonable doubt, that the accused had at least basic familiarity with the subject firearm. In my view, an inference of this familiarity with the subject firearm can be drawn from the fact that he kept it in his possession while loaded. This inference would also extend to the accused’s awareness of certain obvious things about the subject firearm.

These were the fact that there was no magazine, the receiver was taped to the body of the subject firearm and the subject firearm did not have a functioning safety. [100] As to whether the accused knew that the subject firearm was functional, there is no evidence before the Court of the accused having fired it at any time before July 22, 2017. That said, the fact that he carried the subject firearm, and loaded it at some point, suggests that the accused believed it was functional. [ 57 ] Mr.

Singharath claims the trial judge failed to appreciate how the missing safety mechanism played a role in his analysis and, in any event, failed to direct his mind to the possibility of a different inference being drawn from this set of facts, i.e., that without a safety, an accident was more likely to have occurred. Mr. Singharath questions how, and upon what evidence the trial judge concluded that he had a basic familiarity with the firearm, beyond the mere fact that it was in his possession.

As he put it in his written submissions, “there was no evidence upon which the trial judge could properly infer or be satisfied beyond a reasonable doubt [Mr. Singharath] knew the firearm was loaded”. Mr. Singharath asserts the mere fact that the firearm was in his possession did not, on its own, provide a proper basis for the trial judge to infer that he knew it was loaded or functional.

[58] With respect, the trial judge was clearly aware of the facts contained in the statement and the testimony of Mr. Marshall that thegun did not have a safety mechanism and had been modified for use as a handgun. He also knew the Crown had not led any evidence thatMr. Singharath had fired the weapon prior to shooting Mr. Applegate. Nonetheless, the trial judge was satisfied from the evidence thatMr. Singharath believed it was functional. Mr. Singharath challenges that finding. Since there was no evidence that he had fired the gunbefore the incident in question, Mr.

Singharath wonders how the trial judge could have even reached that conclusion. He also says thisfinding – that it was loaded – was not proven beyond a reasonable doubt. [59] Notably, the trial judge also had the evidence of a series of messages from Mr. Singharath’s mobile device, which were senteight days prior to the shooting. In those messages, Mr. Singharath told the recipient, “I got .22”, and then asked about getting a “clip”,presumably meaning a magazine. As the trial judge noted, the recipient of those messages responded by asking Mr. Singharath to “showme the feed slot where [the magazine] goes”.

Furthermore, the trial judge’s inference that the firearm was loaded was grounded in theevidence of the expert witness who had testified about the difficulty loading this makeshift firearm. While it is true that no one sawMr. Singharath in possession of the firearm when they were in the truck or observed him load it, Jane Doe said she saw him with it justbefore it went off. This fact, together with the other circumstances, provided ample support for the inference the trial judge drew aboutwhat Mr. Singharath may have believed. [60] Moreover, the finding that Mr.

Singharath was familiar with the firearm was a preliminary finding of fact, which is decided onthe balance of probabilities, not on the beyond a reasonable doubt standard. The Supreme Court addressed this point in R v Arp, (SCC), [1998] 3 SCR 339: 70 More generally, in R. v. Evans, (SCC), [1993] 3 S.C.R. 653, it was held that a preliminary finding of fact governingthe use of evidence is normally subject to the civil standard of proof, whether the finding is made by the trial judge at the stage ofadmissibility or by the jury at the outset of their deliberations.

The type of evidence at issue in Evans was an admission by the accused.Sopinka J., writing for a majority of the Court, stated as follows, at p. 668: This Court has affirmed that preliminary questions of fact by the trier of fact may be decided on a balance of probabilities. [Citing Carter,[ (SCC), [1982] 1 SCR 938].] … If there is some evidence to permit the issue to be submitted to the trier of fact, the matter must be considered in two stages.

First, apreliminary determination must be made as to whether, on the basis of evidence admissible against the accused, the Crown has establishedon a balance of probabilities that the statement is that of the accused. If this threshold is met, the trier of fact should then consider thecontents of the statement along with other evidence to determine the issue of innocence or guilt. (Emphasis added) [61] While Arp admits of some limited exceptions (see paragraphs 71–73), that decision continues to be good law concerning thestandard of proof for preliminary findings of fact.

The Arp principle was recently cited favourably by Ryan-Froslie J.A. in R v Faucher,2020 SKCA 27, where she said, “The criminal standard of proof beyond a reasonable doubt only applies to the elements of an offence andthe issue of guilt. It does not apply to individual pieces of evidence …” (at para 53). 3. Conclusion on the unreasonable verdict argument [62] The Crown was required to establish each element of the offence, including that Mr. Singharath possessed the intent necessaryto commit murder, in order to prove his guilt. I am satisfied that, in finding Mr.

Singharath guilty of the second degree murder ofMr. Applegate, the trial judge did not misapprehend the evidence in any way and carefully considered the whole of it in coming to hisverdict. As discussed, he could only draw a common sense inference about Mr. Singharath’s intent if he were satisfied that Mr. Singharath“knew the reasonable and probable consequence of his actions would be either to cause Mr.

Applegate’s death or to cause him grievousbodily harm which would likely cause his death, and was reckless whether death ensued or not” (Trial Decision at para 110). [63] I see no indication that the trial judge, in answering that question, failed to consider evidence that was relevant to a materialissue, made a mistake about the substance of the evidence or failed to give proper effect to the evidence.

While it was open to him to haveweighed the evidence differently, or to have drawn different inferences from it, the fact that he did not does not amount to amisapprehension of the evidence: R v Beaudry, 2007 SCC 5 at para 62, [2007] 1 SCR 190. Nor do I find the guilty verdict to beunreasonable. Based on the evidence accepted by the trial judge, it was a conclusion that a properly instructed trier of fact could havereasonably rendered.

While a verdict may be unreasonable if the trier of fact drew an inference or made a finding of fact essential to theverdict that is plainly contradicted by the evidence or is shown to be “incompatible with evidence that was not otherwise contradicted orrejected” (R.P. at para 12), none of that exists here. [64] This ground of appeal is of no merit. D. The reasons were not insufficient [65] Mr. Singharath asserts the trial judge’s reasons are insufficient, preclude appellate review and thereby warrant intervention. Inmaking this argument, Mr.

Singharath points to the fact that the trial judge devoted only 14 of the 111 paragraphs of the Trial Decision tohis analysis of the issue of mens rea – and, even then, failed to discuss or analyze the evidence that undermined a common sense inferenceof intent. Mr. Singharath says the trial judge’s failure to grapple with the evidence that either pointed to the possibility that the firearm wasdischarged accidentally or otherwise undermined an inference of intent makes it “difficult to assess the correctness of the decision”.

Thereasons, such as they are, leaves him “wondering whether his arguments at trial were fully considered”. [66] It is accepted law that trial judges are obliged to deliver sufficient reasons for a verdict. Reasons are important; they holdjudges “accountable to the public, ensuring transparency in the adjudicative process and satisfying both the public and the parties that

justice has been done in a particular case” ( R v G.F. , 2021 SCC 20 at para 68 , 459 DLR (4th) 375): see also R v Sheppard , 2002 SCC 26 at paras 15 , 42 and 55, [2002] 1 SCR 869.

Where the lack of reasons is raised as a ground of appeal, the question to be asked is whether the reasons “are sufficient in the context of the case for which they were given” ( G.F . at para 68 ). [ 67 ] In considering this ground of appeal, the Supreme Court in G.F. reminded appellate courts to take a functional and contextual approach to its review of a trial judge’s reasons and not to “finely parse the trial judge’s reasons in a search for error” (at para 69): see also R v Chung , 2020 SCC 8 at paras 13 and 33 , 443 DLR (4th) 393.

The task, rather, is to “assess whether the reasons, read in context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permits effective appellate review” ( G.F. at para 69 ): see also R v R.E.M. , 2008 SCC 51 at para 17 , [2008] 3 SCR 3. [ 68 ] Reasons must be both factually and legally sufficient. Factual sufficiency refers to what the trial judge decided and why.

As noted in G.F. , factual sufficiency is a low bar: “It will be a very rare case where neither the aggrieved party nor the appellate court can understand the factual basis of the trial judge’s findings” (at para 71). That said, the pathway to the result must be intelligible: Sheppard at para 60 . [ 69 ] Legal sufficiency, on the other hand, speaks to an aggrieved party’s ability to meaningfully exercise their right of appeal: “Lawyers must be able to discern the viability of an appeal and appellate courts must be able to determine whether an error has occurred … .

Legal sufficiency is highly context specific and must be assessed in light of the live issues at trial” ( G.F. at para 74 ). [ 70 ] I am not persuaded by Mr. Singharath’s argument on this point. This was a 39-page, 111-paragraph decision. While length is not determinative of the sufficiency of reasons for appellate review purposes, it is a strong indicator in this case, particularly given the substantive content of the Trial Decision .

I say that because the trial judge provided a comprehensive statement of the law that addressed “the matters of law raised in this case, including the presumption of innocence, the requirement of proof beyond a reasonable doubt, the essential elements of the offences charged and the proof necessary to establish those elements” ( Trial Decision at para 3).

That discussion was followed by a thorough canvassing of the evidence and statements on the conclusions, inferences and findings of fact drawn from the evidence, and, finally, the trial judge’s cogent application of the law to those findings. [ 71 ] Further, with the first two elements of the offence effectively conceded, the issue at trial was narrow. The trial judge clearly understood that the only issue before the court was whether Mr.

Singharath had the requisite state of mind for second degree murder and that, as noted above, “conclusions as to the accused’s state of mind can be drawn from evidence of all the attendant circumstances, such as what was done, how it was done and what, if anything, was said” (at para 97). [ 72 ] Succinctly put, the reasons in this case are sufficient in that they tell Mr. Singharath what the trial judge decided and why. The trial judge found Mr. Singharath guilty of second degree murder because he was satisfied from the totality of the evidence that Mr.

Singharath possessed the requisite intent for murder when he shot Mr. Applegate. Neither are the reasons flawed because of legal insufficiency. Mr. Singharath was able to discern the viability of an appeal from conviction based on the trial judge’s reasons; moreover, this Court was not hampered from being able to determine whether an error of the sort alleged had occurred. [ 73 ] To conclude, I am satisfied that the Trial Decision , read in context and as a whole, in light of the live issue at trial, detailed what the trial judge decided and why he decided it in a manner that permits effective appellate review.

As such, I find this ground of appeal to be without merit. VI. CONCLUSION [ 74 ] The appeal is dismissed. “Schwann J.A.” Schwann J.A. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Leurer J.A.” Leurer J.A.