DATE: 20050517

DOCKET: C41524

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – SAYED ZEWARI (Appellant (Applicant))

BEFORE: WEILER, GOUDGE and FELDMAN JJ.A.

COUNSEL: Sayed Zewari In person

Lou Strezos Duty Counsel

Nadia Thomas for the respondent

HEARD: May 16, 2005

On appeal from conviction by Justice R.J. Richards of the Ontario Court of Justice dated February 18, 2004.

E N D O R S E M E N T

[1] This was an in person prisoner appeal from conviction and sentence on five counts of assault, harassment and threatening of his wife. The appellant has served his sentence, but is in custody on an immigration hold. The appellant elected to proceed with the appeal without an interpreter and advised that he was able to understand. Duty counsel assisted the appellant on the appeal and raised five grounds of appeal against the conviction, all arising out of the reasons for judgment. The five grounds are:

(1) The trial judge failed to properly apply the correct burden of proof as required by R. v. W.D., [1991] 1 S.C.R. 742.

(2) In assessing the credibility of the appellant, the trial judge was unable to fully understand the appellant’s evidence because of problems with the interpreter.

(3) The trial judge’s reasons for judgment were deficient by failing to address and explain why alleged inconsistencies in the evidence given by the Crown witnesses did not raise a reasonable doubt.

(4) The trial judge appeared to say that he used the evidence on different counts to corroborate the evidence on other counts.

(5) The trial judge did not refer to the good character evidence in assessing the credibility of the appellant.

[2] We reject each of these grounds. In our view, the reasons for judgment were sufficient and do not display any of the errors alleged on behalf of the appellant.

[3] The trial judge instructed himself on the application of W.D. at the opening of the reasons. The appellant alleges that at the conclusion of the reasons, by specifically mentioning only that he did not believe the appellant and that he accepted the evidence of the Crown witnesses and was satisfied beyond a reasonable doubt of the guilt of the appellant, the trial judge conflated the first two tests from W.D. by not saying that the evidence did not leave him with a reasonable doubt. In the circumstances of this case and in the context of these reasons, by rejecting the evidence of the appellant and accepting the evidence of the complainant and other Crown witnesses, the trial judge clearly concluded that the evidence as a whole did not raise a reasonable doubt.

[4] In evaluating the credibility of the appellant’s evidence, the trial judge adverted to the difficulties a witness has when an interpreter is required. However, in acknowledging that problem, the trial judge was not saying that he did not understand the appellant, but rather that he was sensitive to the issue but satisfied that he understood the evidence given by the appellant.

[5] A trial judge is not required to mention every piece of evidence. In this case, the trial judge referred to the defence submission that the Crown witnesses were not credible, and to five examples raised by the defence. He rejected this argument in part on the basis that the issues challenged were marginal, that is of marginal relevance in the case, and because he found the evidence given by the complainant, the complainant’s sister and the complainant’s colleagues to be direct and sincere. These reasons were not merely conclusory, as in R. v. Maharaj (2004), 186 C.C.C. (3d) 247, and were sufficient to explain the reason he rejected the appellant’s denial.

[6] The trial judge stated that the court “does accept the evidence submitted by the witnesses for the Crown which in all counts save and except number five corroborate each other in some fashion.” In our view, based on the reasons as a whole, the intent of this statement by the trial judge was not that he was using the evidence relevant to one count as, in effect, similar fact evidence to corroborate on other counts, but rather that there was evidence on each count by more than one witness to corroborate each other on that count.

[7] The trial judge referred at the opening of his reasons to the fact that the appellant called two good character witnesses. Although he did not say why the evidence of those witnesses was not enough to raise a reasonable doubt, it is clear that he did not overlook their evidence in arriving at his ultimate conclusion.

[8] In our view, the reasons of the trial judge were sufficient and raise no error that would allow this court to interfere. The appeal is therefore dismissed.

Signed: "Karen M. Weiler J.A."

"S.T. Goudge J.A."

"K. Feldman J.A."