COURT OF APPEAL FOR ONTARIO
Weiler, Cronk and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Maher Ibrahim
Appellant
Diane Condo, for the appellant
Gavin MacDonald, for the respondent
Heard: September 8, 2011
On appeal from the convictions entered by Justice Diane M. Nicholas of the Ontario Court of Justice on October 30, 2009, and from the sentences imposed by Justice Nicholas on February 4, 2010.
ENDORSEMENT
1Maher Ibrahim appeals his convictions of assault with a weapon and assault causing bodily harm and the sentences imposed in respect of those convictions.
A. Conviction Appeal
2In support of his conviction appeal, the appellant says that the trial judge erred:
i. in failing to grant his application under s. 11(b) of the Charter for a stay of proceedings for a breach of his right to be tried within a reasonable time;
ii. in failing to apply the proper test on reasonable doubt to credibility issues arising at the trial;
iii. in improperly shifting the burden of proof from the prosecution to the appellant; and
iv. in failing to enter a stay of the assault with a weapon conviction on the basis of the principle in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.
3We would not give effect to any of these grounds of appeal, save and except that related to the application of the principle in Kienapple.
4On the s. 11(b) application, the trial judge was faced with a period of twenty-two and one-half months between the date the information was sworn and the hearing of the s. 11(b) application. She attributed seven and one-half months of this period to the inherent time requirements of the case, two and one-half months to the defence and twelve and one-half months to Crown or institutional delay. We find no error in her characterization of these time periods.
5In her analysis of the s. 11(b) application, the trial judge took into account the relevant factors and made findings fully supported by the evidence adduced on the application. She committed no error.
6The submissions that the trial judge failed to apply the proper test of reasonable doubt on issues of credibility and that she improperly shifted the onus of proof are related.
7The trial judge reviewed the evidence of the principal witnesses, the complainant and the appellant, in detail. She rejected the appellant’s version of events as illogical and incredible in light of the injuries suffered by the complainant as disclosed by the photographs filed as exhibits. She considered the appellant’s testimony to be self-aggrandizing and beyond belief.
8Towards the conclusion of her reasons, the trial judge made specific mention of the first two steps of R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, and expressly found that she neither believed nor had a reasonable doubt about the appellant’s guilt as a result of his testimony. She then concluded, on the whole of the evidence, that the Crown had proven all the essential elements of the offences charged beyond a reasonable doubt.
9We are satisfied, after reading the trial judge’s reasons as a whole, that she was fully cognizant of the principles of W. (D.), applied them correctly, and did not shift the onus of proof from the prosecution to the appellant.
10The final ground of appeal against conviction invokes the Kienapple principle. The appellant says that both convictions arise from the same delict, thus one finding of guilt should be stayed under Kienapple.
11We are satisfied that the same delict underlies both charges. The bodily harm the complainant suffered was caused by the appellant’s use of a shovel. It is the same unlawful use of the shovel that underpins the charge of assault with a weapon. Crown counsel acknowledges on appeal that the Kienapple principle requires the entry of a stay in this case. We agree.
12In the result, the appeal from conviction of assault causing bodily harm is dismissed, but the conviction of assault with a weapon is set aside and a stay is entered on that charge.
B. Sentence Appeal
13As to sentence, the appellant contends that the trial judge erred in failing to impose a conditional sentence for a first offender in the circumstances of this case. The sentence imposed exceeded what the Crown at trial proposed as a fit sentence. According to the appellant, the sentence does not reflect a proper application of the principles of proportionality and deterrence.
14At trial, each party made its own submissions on sentence. There was no joint submission. The trial judge alerted counsel to the possibility that she would impose a sentence beyond the range of a custodial term of four to six months that had been proposed by the Crown. Trial counsel for the appellant (not counsel on appeal), who had sought a conditional sentence of twelve months, did not register any objection.
15The appellant is a mature first offender who committed a serious assault on his spouse, causing her disfiguring injuries by striking her with a shovel. The assault occurred in the context of a crumbling and acrimonious domestic relationship. The sentencing principles that exert the greatest influence in determining the length of the sentence and the manner in which it should be served are denunciation and deterrence. The sentence imposed in cases such as this must also promote a sense of responsibility among spousal abusers and an acknowledgement of the harm done not only to their immediate victims, but equally to the community at large.
16A trial judge always retains an overriding discretion to accept or reject the recommendations of counsel about the sentence that should be imposed. This court has held that a trial judge does not err by exceeding the prosecutor’s suggested sentence, provided that the sentence is reasonable, even in the absence of reasons for departing from the prosecutor’s suggestion. In our opinion, the sentence imposed in this case was reasonable. The fresh evidence does not alter our opinion.
17For these reasons, the appeal against conviction is dismissed, except to the extent of entering a stay on the charge of assault with a weapon. Leave to appeal sentence is granted, but the appeal against sentence is dismissed.
“Karen M. Weiler J.A.”
“E.A. Cronk J.A.”
“David Watt J.A.”
