COURT OF APPEAL FOR ONTARIO

DATE: 20050510

DOCKET: C41309

RE: HER MAJESTY THE QUEEN (Respondent) and ABDUL MALIK (Appellant)

BEFORE: GOUDGE, SIMMONS and ARMSTRONG JJ.A.

COUNSEL: Richard Litkowski, Duty counsel for the appellant Amy Alyea, for the respondent

HEARD: April 26, 2005

On appeal from the conviction entered and the sentence imposed by Justice E.G. Ewaschuk of the Superior Court of Justice on January 9, 2004.

E N D O R S E M E N T

[1] The appellant advanced four grounds of appeal against his conviction on four counts of parental abduction.

[2] First, the appellant asserted that the trial judge erred in dismissing the contested aspect of his O'Connor[^1] application without examining the records in issue. We disagree. On our review of the record, the trial judge concluded that the appellant failed to meet the stage one O'Connor application test of likely relevance. We see no basis for interfering with the trial judge's conclusion. The parties had already agreed on disclosure of records likely to reveal relevant interactions between the appellant's wife (the “complainant”) and the C.A.S. in the seven to eight month period immediately preceding the children’s departure. Even though the complainant agreed that the trial judge could examine the more dated records in issue, it remained open to the trial judge to conclude that they would add nothing to the material already produced, and simply because of their age could not meet the likely relevance threshold.

[3] Second, the appellant submitted that the trial judge compromised his right to a fair trial by intervening continually and unnecessarily during defence counsel's cross-examination of the complainant and by interrupting defence counsel's closing address to the jury. We would not give effect to this ground of appeal. Our review of the relevant transcripts indicates that many of the trial judge's interventions during cross-examination were proper, as they were directed to addressing interpretation problems, controlling the complainant or correcting the form of counsel's questions. Although there were other interventions that would have been much better avoided, the number and quality of inappropriate interventions did not compromise the appellant's right to a fair trial.

[4] The trial judge interrupted defence counsel's closing address on three separate occasions. Two of these interruptions were necessary to deal with interpretation problems. The trial judge interrupted defence counsel a third time only to correct defence counsel's understanding of the trial judge's impending instructions to the jury.

[5] Third, the appellant submitted that the trial judge erred by admitting an untranslated videotape of the complainant speaking over the telephone, purportedly to three of her four children soon after the children were located. The videotape was admitted as demeanour evidence. The appellant contends that this evidence was highly prejudicial and that, in any event, the trial judge failed to explain its proper use.

[6] Although we consider that the videotape had minimal probative value, we do not agree that the appellant was prejudiced by its admission. The trial judge instructed the jury that the videotape could be used in assessing the complainant's credibility, but explained the subjective nature of demeanour evidence and cautioned the jury against affording it too much weight. Particularly in light of this limiting instruction, admitting the videotape created at most marginal potential for prejudice.

[7] Fourth, the appellant contended that the trial judge erred by instructing the jury that it was open to them to find that the appellant had committed certain other crimes, i.e., welfare fraud, unlawful confinement of the complainant in Pakistan, and forgery; and that they could use that evidence in assessing the appellant’s credibility. The appellant asserts that, particularly because he was not charged with any other offences and had no criminal record, the impugned instruction was highly prejudicial. Further, the appellant points out that he did not testify at trial and the trial judge did not refer to his videotaped statement when the trial judge explained the potential use of the discreditable conduct evidence in assessing credibility.

[8] We would not give effect to this ground of appeal. Although we agree that it would have been preferable had the trial judge not used the term crime(s), in our view, considered in its entirety the impugned instruction did not prejudice the appellant. In particular, we note that there was evidence at trial capable of establishing that the appellant had engaged in discreditable conduct that would constitute the offences to which the trial judge referred. The trial judge was obliged to refer the jury to this evidence and caution them concerning its potential use.

[9] Further, the point of the trial judge’s instruction was twofold: first, to caution the jury that they could not use the discreditable conduct evidence to conclude that the appellant has a propensity to commit crimes; and second, to explain that the only permissible use of the discreditable conduct evidence was in assessing the appellant’s credibility. Viewed, in this context, using the word crime as opposed to discreditable conduct caused no significant prejudice. Moreover, the main issue at trial was credibility and the trial judge used the same language in relation to the complainant. Significantly, defence counsel at trial did not object.

[10] Finally, we note that immediately prior to the impugned instruction, the trial judge instructed the jury that the appellant’s out-of-court statements, including his exculpatory statement to the police, could be used for the purpose of proving the truth of their content. It would have been obvious to the jury that the trial judge’s comments about assessing the appellant’s credibility related to these statements.

[11] Based on the foregoing reasons the conviction appeal is dismissed. The appellant also requested leave to appeal the sentence imposed of twenty-eight months imprisonment in addition to credit for time served of twenty months. In our view, the sentence imposed was within the range and we see no error in principle in the trial judge’s reasons. Accordingly, leave to appeal sentence is granted but the appeal against sentence is dismissed.

“S. T. Goudge J.A.”

“Janet Simmons J.A.”

“Robert Armstrong J.A.”

[^1]: R. v. O’Connor (1995), 1995 51 (SCC), 103 C.C.C. (3d) 1 (S.C.C.).