COURT OF APPEAL FOR BRITISH COLUMBIA
|
Citation: |
R. v. Patel, |
|
|
2017 BCCA 459 |
Date: 20171215
Docket: CA44802
Between:
Regina
Respondent
And
Jatin Patel
Appellant
Restriction on Publication: A publication ban has been mandatorily imposed under s. 486.4(2) of the Criminal Code in cases involving sexual offences to ban the publication, broadcasting or transmission in any way of evidence that could identify a complainant or any witness under the age of 18. This publication ban applies indefinitely unless otherwise ordered.
Section 16(4) Sex Offender Information and Registration Act (“SOIRA”): This section provides that no person shall disclose any information that is collected pursuant to an order under SOIRA or the fact that information relating to a person is collected under SOIRA.
|
Before: |
The Honourable Madam Justice Fenlon (In Chambers) |
On appeal from: An
order of the Supreme Court of British Columbia, dated
September 8, 2017 (R. v. Patel, 2017 BCSC 1596,
New Westminster Docket No. X079567)
Oral Reasons for Judgment
|
Counsel for the Appellant: |
G. Botting |
|
Counsel for the Respondent: |
J. Caldwell |
|
Place and Date of Hearing: |
Vancouver, British Columbia December 15, 2017 |
|
Place and Date of Judgment: |
Vancouver, British Columbia December 15, 2017 |
Summary:
Application for leave to appeal the dismissal of a summary conviction appeal. The appellant, Mr. Patel, was convicted of sexual offences after grabbing a girl’s buttock in a grocery store. The trial turned on the assessment of credibility and the judge ultimately believed the complainant’s evidence. Mr. Patel’s appeal to the Supreme Court of British Columbia was dismissed. Held: leave to appeal denied. While the appeal raises a legal issue and is important to Mr. Patel, there is no possibility an appeal of the reviewing judge’s decision would succeed. The reviewing judge applied the correct legal principles, carefully reviewed the evidence and concluded the trial judge’s findings were not plainly erroneous or otherwise unreasonable.
[1] FENLON J.A.: Mr. Patel seeks leave to appeal the September 8, 2017 order of Justice Verhoeven dismissing his summary conviction appeal.
[2] On August 24, 2015, Mr. Patel was convicted of touching for a sexual purpose and sexual assault. Only the sexual touching charge was entered, in accordance with R. v. Kienapple, [1975] 1 S.C.R. 729.
[3] On October 8, 2015, Mr. Patel was sentenced to time served plus one day, for a total sentence of 90 days.
[4] The facts underlying Mr. Patel’s conviction may be summarized as follows.
[5] On the evening of February 6, 2015, A.R. went to a grocery store in Surrey with her 13-year-old daughter, I.R. (the complainant), and her eight-year-old-son. Mr. Patel was at the same grocery store that evening, and walked by A.R. and her children as they were in an aisle selecting ice-cream toppings. The Crown alleged that as Mr. Patel walked by, he grabbed or pinched I.R.’s buttock.
[6] Mr. Patel, I.R. and A.R. all testified at trial. I.R. testified that when Mr. Patel walked past her, he pinched or grabbed her right buttock for about five seconds. She said she did not react instantly but told her mother what happened almost immediately after.
[7] A.R. testified that when she saw Mr. Patel entering the toppings aisle in the grocery store, she thought she saw him staring at her daughter’s buttocks. She said she watched him closely as he passed by, but did not see him touch her daughter. After Mr. Patel passed by, A.R. said her daughter said “Mom, he just touched my butt.” A.R. confronted Mr. Patel, but Mr. Patel denied touching I.R. He said that if he did touch I.R. it was an accident.
[8] Mr. Patel agreed that he came across A.R. and her children at the grocery store, and that he walked by them in the toppings aisle. However, he denied staring at I.R.’s bottom and denied pinching, grabbing or deliberately touching her. He said he responded to A.R.’s accusations to placate her by saying if he did touch her daughter it was an accident.
[9] His Honour Judge Hamilton convicted Mr. Patel after a summary conviction trial. The trial turned on the assessment of the witnesses’ credibility – in particular the credibility of the complainant and the accused.
[10] Mr. Patel appealed his conviction to the Supreme Court of British Columbia. He relied on s. 686(1)(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46, which provides that a verdict may be set aside on appeal where it is unreasonable or unsupported by the evidence. Mr. Patel argued the trial judge made palpable and overriding errors in misapprehending the facts and made unreasonable factual determinations not supported by the evidence.
[11] His primary arguments on appeal were as follows:
· If the touching occurred, the complainant’s mother would have seen it. The fact that she did not see it meant the judge should have concluded it did not happen.
· The complainant’s evidence that she was grabbed for five seconds but did not reflexively react was implausible.
· The trial judge should have considered the possibility that the complainant was prejudiced or predisposed because of her mother’s comment that Mr. Patel looked creepy and because she was self-conscious about her clothing.
[12] Justice Verhoeven dismissed the appeal.
Application for Leave to Appeal
[13] Mr. Patel now applies for leave to appeal that dismissal under s. 839(1) of the Criminal Code. That section provides that appeals to this Court may be brought from summary conviction matters but they are restricted to questions of law.
[14] An appeal to this Court from a summary conviction is not a second appeal from the trial court. Rather, it is an appeal from the summary conviction appeal court. As such, “the focus of a leave application, and the appeal if leave is granted, is on whether any error of law was committed by the summary conviction appeal judge”: R. v. Winfield, 2009 YKCA 9 at para. 12.
[15] The court in Winfield stated that in order for leave to be granted to the Court of Appeal from a summary conviction appeal decision, the applicant must establish that:
(a) the ground of appeal involves a question of law alone;
(b) the issue is one of importance; and
(c) there is sufficient merit in the proposed appeal that it has a reasonable possibility of success.
[16] The overriding consideration in determining whether to grant leave to appeal is whether it would be in the interest of justice to do so: Winfield at para. 13.
[17] Mr. Patel’s proposed appeal is that the verdict was unreasonable, that is, that no reasonable jury, properly instructed, could have reached a guilty verdict: R. v. R.P., 2012 SCC 22 at para. 10. He submits the verdict is unreasonable because the complainant’s mother – who was carefully watching Mr. Patel – did not see any physical contact. He also relies on other findings which he says are not reasonably supported by the evidence.
[18] I conclude that Mr. Patel has made out the first part of the test for the granting of leave.
[19] This case raises principles that are well-settled and so is not of general importance to the administration of justice. However, as set out in R. v. R.R., 2008 ONCA 497, the importance of the case to the appellant alone may suffice to meet this criterion if the grounds of appeal are strong.
[20] I accept that the conviction in this case and the opportunity to overturn it are of great importance to Mr. Patel. Sexual touching of a 13 year old girl has a profound reputational impact. Mr. Patel is also awaiting a decision as to whether he will be designated a dangerous offender in relation to an unrelated criminal proceeding. This offence falls between the two offences involving another 13 year old girl that are the subject matter of the dangerous offender proceeding. I accept it could have some impact on his designation and sentencing. That, too, underscores the importance of this matter to Mr. Patel.
[21] However, the proposed appeal is not a strong one in my view — quite the contrary — and that brings me to the third criterion.
[22] As I noted at the outset of these reasons, the merit that I must consider relates to the appeal from the Reviewing Judge’s decision.
[23] The Reviewing Judge carefully and thoroughly instructed himself on the legal principles he was to apply on an appeal from summary conviction in which the appellant relies on s. 686(1)(a)(i) of the Criminal Code to set aside a verdict on the ground it is unreasonable or cannot be supported by the evidence:
[21] A convenient summary of the applicable legal principles is set out in in the decision of Justice Rogers in R. v. Jalifi, 2015 BCSC 1085 at paras. 21 to 22:
[21] The function of the summary conviction judge is to determine whether the trial judge could reasonably have reached the conclusion that the appellant was guilty beyond a reasonable doubt: R. v. W.(R.), [1992] 2 S.C.R. 122; R. v. Grosse (1996), 29 O.R. (3d) 785 (Ont. C.A.). An appeal judge must consider the evidence at trial, and must, to a limited extent examine and weigh it. That exercise has a limited purpose though, and that is to assess whether the evidence is reasonably capable of supporting the trial judge's conclusions. If it is, the appeal court is not entitled to substitute its own view of the evidence for that of the trial judge: R. v. Burns, [1994] 1 S.C.R. 656.
[22] When it comes to reviewing the trial court's findings of fact, an [appellate] court must give due deference to the trial judge. See, for example Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, where Iacobucci and Major JJ. said at paras. 22 and 24:
[T]rial courts are in an advantageous position when it comes to assessing and weighing vast quantities of evidence. In making a factual inference, the trial judge must sift through the relevant facts, decide on their weight, and draw a factual conclusion. Thus, where evidence exists which supports this conclusion, interference with this conclusion entails interference with the weight assigned by the trial judge to the pieces of evidence.
[22] In R. v. R.P., 2012 SCC 22, in discussing the test under s. 686(1)(a)(i), Deschamps J., for the majority of the Supreme Court of Canada, stated as follows:
9 To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v. Yebes, [1987] 2 S.C.R. 168, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, determine whether the verdict is one that a properly instructed jury or a judge could reasonably have rendered. The appellate court may also find a verdict unreasonable if the trial judge has drawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge (R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 4, 16 and 19-21; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190).
10 Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact. A court of appeal that reviews a trial court's assessments of credibility in order to determine, for example, whether the verdict is reasonable cannot interfere with those assessments unless it is established that they "cannot be supported on any reasonable view of the evidence" (R. v. Burke, [1996] 1 S.C.R. 474, at para. 7).
[23] Thus, questions of witness credibility are questions of fact, which must be given substantial deference on appeal. To repeat, credibility assessments must not be interfered with on appeal unless they “cannot be supported on any reasonable view of the evidence”.
[24] Similarly, findings of fact must be given significant deference by an appellate court. The phrase “palpable and overriding error” is often applied. This phrase was explained in R. v. Clark, 2005 SCC 2, at para. 9 by Fish J. for the Court:
…Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. "Palpable and overriding error" is a resonant and compendious expression of this well-established norm: see Stein v. The Ship "Kathy K", [1976] 2 S.C.R. 802; Lensen v. Lensen, [1987] 2 S.C.R. 672; Geffen v. Goodman Estate, [1991] 2 S.C.R. 353; Hodgkinson v. Simms, [1994] 3 S.C.R. 377; Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby Hospital, [1994] 1 S.C.R. 114; Schwartz v. Canada, [1996] 1 S.C.R. 254; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33.
[24] The Reviewing Judge then grappled with each of the appellant’s arguments raised before him and raised again before me on this application for leave.
[25] The judge had read the entire transcript of the proceedings. He applied the correct test, whether there was evidence to support the judge’s findings, and whether they were incompatible with the evidence or plainly erroneous or otherwise unreasonable. For example, with respect to the clearest issue raised on appeal of how the trial judge could have found Mr. Patel guilty when the complainant’s mother said she did not see Mr. Patel touch her daughter even though she was staring right at him, the Reviewing Judge said:
[36] It is indeed somewhat difficult to understand how A.R. would not have seen the pinch or grab of her daughter's buttock by Mr. Patel if she was paying as careful attention to him as she said she was. In my view the trial judge was required to consider this evidence, and did so, expressly. The trial judge suggested a possible rationale for it. He reasoned that A.R. was focused on Mr. Patel's eyes and therefore may have missed the movement of his hand.
[37] I have reviewed the transcript in full. Other possible explanations for the failure of A.R. to see the touching may also have been available from the evidence. A.R. testified that Mr. Patel passed by them very slowly and closely, only two to four inches away. As she described it, her eight-year-old son was between her and her daughter as Mr. Patel approached from their right-hand side. For one reason or another, her line of sight may have been obscured, or her daughter may have been turned in such a way that she did not see Mr. Patel's hand come in contact with her daughter's buttock. Whatever the explanation, the point is that it cannot be said that the trial judge failed to consider the relevant evidence, or that his conclusion that Mr. Patel did in fact touch the complainant is plainly contradicted by the evidence that A.R. did not see it, or has been shown to be incompatible with that evidence, or is plainly erroneous or otherwise unreasonable.
[Emphasis added.]
[26] In my view, there is no reasonable possibility of success on an appeal to this Court from the Reviewing Judge’s decision. I therefore conclude that it is not in the interests of justice to grant leave to appeal.
“The Honourable Madam Justice Fenlon”