‘The judge failed to properly leave the burden of proof on the Crown’
THE B.C. Court of Appeal, in a decision released on May 8, unanimously ruled that a new trial must be ordered for Surrey chiropractor Dr. Maninder Singh Badyal, who was convicted on June 8, 2017, by a Surrey provincial court judge.
Badyal, owner of Absolute Health and Wellness Clinic in Surrey, was charged with a single count of fraud over $5,000 in respect of fees charged to ICBC for services that he allegedly did not provide. The billings were in respect of 13 patients. The judge found that fraud was established in respect of 11, according to court documents.
The B.C. Court of Appeal ruling noted: “Three issues arise on this appeal. First, Dr. Badyal contends that the judge made inappropriate use of witnesses’ prior consistent statements in assessing their reliability. Second, he says that the trial judge incorrectly applied the principles that govern the reception and use of similar fact evidence. Finally, he says that the judge did not consistently observe the principle that the Crown bears the burden of proof in a criminal case and applied an overly stringent standard in scrutinizing defence evidence.”
The summary of the ruling states: “The judge was entitled to use prior consistent statements to rebut the defence theory that patients had, through passage of time, forgotten about routine treatment that they received. She made only limited and appropriate use of the statements. The similar fact evidence was admissible, as it was all directly relevant to the charge. The judge was required to satisfy herself that, in using it to bolster her assessment of the reliability of a witness, its probative value exceeded potential prejudicial effect. She did so, and her findings are entitled to deference.”
However, the summary notes that several statements in the judge’s reasons suggest that she required the accused to conclusively establish a defence. “The judge’s failure to explain why the evidence concerning a computer billing system did not serve to raise a reasonable doubt is particularly troubling. In light of these indications that the judge failed to properly leave the burden of proof on the Crown, a new trial must be ordered,” it states.
Justice Harvey Groberman’s ruling was concurred in by Chief Justice Robert Bauman and Justice Gail Dickson.
For the full ruling, visit:
https://www.bccourts.ca/jdb-txt/ca/20/01/2020BCCA0127.htm
