B.C.’s Court of Appeal has rejected the case of a man convicted of criminal harassment, including calling a woman 15 to 20 times a day.
Varinder Singh was convicted in provincial court in 2020 following a complaint made by the woman in December 2019.
In his Jan. 31 decision rejecting Singh’s application for leave to appeal, Justice John Hunter said evidence at trial established Singh and the woman met in May 2019 and had an on-and-off relationship ending that October.
Hunter said after the relationship ended, Singh went to the woman’s house after being told that he was not welcome on two occasions; sent numerous abusive and accusatory emails to her work email address; called 15 to 20 times per day over several weeks, including through the front desk at a hotel she was staying at for a work conference; contacted her neighbours and friends; and posted about her 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,’” Hunter said.
One of the issues at trial was whether, due to Singh’s mental health conditions, he had formed the requisite mens rea, or understanding of wrongdoing, for criminal harassment.
Hunter said trial evidence was that Singh had told the woman he had obsessive compulsive disorder and on several occasions that he was depressed and suicidal.
Still, Hunter said, the trial judge found that Singh was “at least reckless or willfully blind to the impact that his behaviour was having on the woman” and that any mental health issues he might have had did not impact his ability to recognize that.
On March 19, 2021, the trial judge put Singh on probation for two years.
Singh appealed, citing ineffective assistance of counsel. He claimed his trial lawyer had failed to act on his instruction to pursue a finding of not criminally responsible by reason of a mental disorder (NCRMD).
A B.C. Supreme Court judge denied that summary appeal of the case on the same grounds in early 2023. Singh had sought to bring forward new evidence, including a pre-sentencing psychological assessment prepared for the trial.
“The medical opinion could not have impacted the finding at trial that ‘there is no evidence that [Mr. Singh] was out of touch with reality or in any way psychotic,’” Justice Michael Tammen ruled. “The proposed fresh evidence could not have affected the result.”
That denial resulted in the new appeal.
Singh added two new grounds of appeal. He claimed the trial judge and summary conviction appeal judge erred by relying on their own opinions on Singh’s psychiatric condition as opposed to an NCRMD assessment.
He also claimed Tammen erred by relying on the pre-sentence psychological assessment to conclude that the prejudice component of the ineffective assistance of counsel test had not been met.
Hunter said Singh submitted the report should have been used at sentencing, and that his mental state at the time of the offence should have been the subject of an NCRMD-specific assessment.
Hunter rejected Singh’s ineffective assistance of trial counsel argument saying his lawyer had raised mental health issues that were rejected by the trial judge.
Further, Hunter said, there was nothing improper about the way Tammen treated evidence about Singh’s mental health.
And, third, the judge rejected the argument about introducing the pre-sentencing report as evidence because the report was for sentencing, not an indication of Singh’s mental state at the time of the offence.
“Mr. Singh has not faced a deprivation of his liberty,” Hunter said.
“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 (criminally) responsible for his actions.”
