COURT OF APPEAL FOR ONTARIO DATE: 20221026 DOCKET: C68318

Tulloch, Thorburn and George JJ.A.

BETWEEN

His Majesty the King Respondent

and

Wisam Saleh Appellant

Counsel: Jessica Zita and Heather Gunter, for the appellant Brent Kettles, for the respondent His Majesty the King

Heard and released orally: October 21, 2022

On appeal from the conviction entered on June 13, 2019 by Justice Khatira (Kathy) J. Jalali of the Ontario Court of Justice.

REASONS FOR DECISION

OVERVIEW

[1] The Crown alleged that the appellant, Mr. Saleh, robbed the complainant on September 5, 2016, and robbed and forcibly confined her on October 12, 2016. The appellant denied these allegations and asserted that he had been framed. The complainant was the key witness for the Crown and the appellant testified in his own defence. The appellant was convicted of two counts of robbery and one count of forcible confinement and received a sentence of 23 months followed by three years’ probation.

[2] The appellant appeals his convictions only. (He abandoned his sentence appeal at the appeal hearing). He claims (1) his evidence was subjected to uneven scrutiny resulting in a reversal of the burden of proof; and (2) the trial judge failed to assess whether the elements of forcible confinement had been proven at trial.

THE EVIDENCE

The Complainant’s Evidence

[3] The complainant is a sex worker, and she testified that she met the appellant three times. The first was in August 2016, for sexual services.

[4] On September 5, 2016, the complainant met the appellant again to receive sexual services and asked that she continue to provide sexual services after the first half hour. She refused as the appellant had not prepaid for the next half hour. The appellant demanded the return of his money and when she went to the kitchen to get the money to return to him, he attacked her and demanded she give him all of her money. She says he took her cellphone and deleted his information.

[5] The third attendance was on October 12, 2016. The complainant said that she received a text from someone wanting to procure her sexual services, and they made arrangements to meet. She engaged in fellatio with him, but when she opened the door to let him leave, the appellant entered and covered her mouth, while the client grabbed her hands.

[6] The complainant said the appellant demanded to know where the money was and they tasered her in the chest, punched her, and bent her arm. They asked her for the passwords to four cellphones she had and stole them. She eventually escaped out her window onto her balcony and started shouting for help, which caused them to run away.

[7] The complainant said she later called one of her phones. She believed that the appellant’s friend picked up then hung up. The next day she called the appellant’s number and she believed he picked up. The appellant told her his cousin attacked her and that he would bring her phones back, but when she called later, the number was no longer in service.

Evidence Corroborating the Complainant’s Evidence

[8] The complainant’s evidence was corroborated by:

a. surveillance footage of the appellant outside her apartment just before the first robbery; b. photographs of her injuries; c. the appellant’s admission at trial that his cellphone had been connected to a cell tower at the apartment building for 26 minutes on the second occasion when she was robbed for the first time; d. surveillance footage showing him outside the complainant’s apartment prior to October 12, 2016. The appellant paced the hallway for approximately 15 minutes and checked the stairwell. After spending 36 minutes in the apartment, the appellant and another person ran away toward the stairwell without looking back; and e. the appellant’s admission that he changed his cellphone number on October 13, 2016.

The Appellant’s Evidence

[9] The appellant testified in his defence. He denied ever robbing or forcibly confining the complainant. He said he was there to purchase marijuana from another person named Eric who was in the apartment, and whom he alleged, ran a brothel out of the apartment.

[10] In September 2016, he claims he was called by Eric to buy six pounds of marijuana for $8,000. On cross-examination he conceded that this could have happened on October 14, 2016 after the date of the alleged robberies. Eric called him to pick him up as he had samples for him, and while they were driving toward the apartment, they were stopped by the police. The appellant was cautioned but Eric was arrested. The appellant said Eric blamed him for his arrest. Eric told him he would not see his $2,200 deposit or his passport again.

[11] The appellant says he therefore devised a plan to get his passport from the apartment on October 12, 2016. His friend went into the apartment and then came out to bring him in. When he walked in, he saw the complainant with other girls watching television, and Eric and his brother were sitting on the couch. There was a verbal argument until Eric’s brother brought out a replica gun, at which point he and his friend ran out. The appellant said that the next day, Eric called him and said that he knew someone who worked for Wireless Wave and could find out his address from his phone number, so he decided to change his phone.

ANALYSIS OF THE TRIAL JUDGE’S REASONS AND CONCLUSION

[12] The trial judge adverted to the process of assessing evidence and the burden of proof set out in R. v. W.(D.), [1991] 1 S.C.R. 742, and stated that this case raises issues of credibility. She instructed herself that “one version of events cannot be pitted against another in isolation, but I must look at the totality of the evidence” and noted “[t]here is no onus on the accused to prove anything, and the burden of proof never shifts to the accused.”

[13] The trial judge then addressed the issues before her: whether the appellant robbed the complainant on September 5, 2016, and whether he robbed and forcibly confined her on October 12, 2016.

[14] The trial judge did not believe the appellant’s evidence, and was not left with any reasonable doubt about his guilt. She held that his story did not make sense, and his version of the story was inconsistent with the physical evidence and video footage. She held that his explanation for how he knew the complainant made no sense, as he said he only met her fleetingly yet she was able to pick him out of a photo lineup. This would be more consistent with her evidence that they met on several occasions. Furthermore, the appellant’s version was inconsistent with the complainant’s injuries and the video surveillance which showed him “lurking” outside her apartment and checking the stairwell that he and his friend later took as they fled the building.

[15] The appellant’s story was inconsistent on an important point: he said that the incident in which he and his friend were stopped in a car could have happened on October 14, 2016, after the robbery, which the trial judge stated “would destroy Mr. Saleh’s version completely”. Moreover, his friend did not testify nor did the appellant give his friend’s last name so that the information could be verified.

[16] The appellant also testified that he subconsciously pulled his phone out of his jacket pocket because his jacket was loose. Only after watching the video for a third time did the appellant finally admit that he had pulled the phone from his trouser pocket. The inconsistency was important to the manner of the robbery and to the complainant’s credibility as she had testified that immediately upon entering his apartment, the appellant pulled out a taser that appeared to be a cellphone.

[17] After concluding that the appellant’s evidence left her with no reasonable doubt as to the appellant’s guilt, the trial judge moved on to assess whether the Crown had proven its case beyond a reasonable doubt.

[18] She held that the complainant’s evidence was “compelling, and each part logically connected to the next part” and corroborated by the video footage, the timing of the encounter, and her documented injuries.

[19] While the trial judge found the complainant to be a credible and reliable witness, she noted three inconsistencies in her evidence: (1) whether the appellant’s friend’s hood was up when he first knocked on her door on the third occasion; (2) whether the appellant deleted his information from her phone or forced her to do it on the second occasion; and (3) how she remembered the appellant’s phone number to call him the day after the third occasion. However, the trial judge found these inconsistencies to be “very minor in nature” and were not on the core details of the robberies and confinement.

[20] The appellant does not assert that any of the trial judge’s factual findings reflect a palpable and overriding error, or that they were made in the absence of any evidence. He alleges that his evidence was subjected to uneven scrutiny.

[21] The trial judge gave specific and detailed reasons, grounded in the evidence, for not believing the appellant and for holding that, on view of the evidence as a whole, she was satisfied beyond a reasonable doubt that the appellant was guilty of the above offences.

[22] Trial judges’ credibility assessments are owed deference and are not to be interfered with, absent palpable and overriding error, as triers of fact are best placed to review the evidence, draw proper inferences, and assess the credibility of witnesses. A trial judge is entitled to deference in determining the significance of inconsistencies in the evidence, and how those inconsistencies bear on the assessment of the credibility of witnesses. Appellate courts therefore view uneven scrutiny arguments “with skepticism, seeing it as little more and nothing less than a thinly-veneered invitation to re-assess the trial judge's credibility determinations and to re-try the case on an arid, printed record”: R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 3, at para. 23; see also, R. v. G.F., 2021 SCC 20, at paras. 80-81 and 99-101.

[23] The trial judge did not apply stricter scrutiny to the appellant’s evidence. Nor did she shift the burden of proof onto him. Rather, she weighed all the available evidence and determined that he was not telling the truth. She made no error in doing so. For these reasons, the first ground of appeal fails.

[24] In respect of the second ground of appeal raised by the appellant, we disagree that the trial judge failed to conduct any legal analysis into whether the offence of unlawful confinement was proven at trial.

[25] A complainant is unlawfully confined if, for any significant period, she is coercively restrained or directed contrary to her wishes so that she cannot move about according to her own inclination and desire. In R. v. Ally, 2022 ONCA 558, this Court expressed skepticism that a “significant period” is a distinct essential element under s. 279(2) of the Criminal Code. Rather, it is “one aspect of a description often used to explain the confinement element of the actus reus of unlawful confinement”: at para. 96. Although unlawful confinement is a continuing offence, the offence is complete when the complainant is restrained against his or her will: R. v. Sundman, 2022 SCC 31, 471 DLR (4th) 191, at para. 21; R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, at para. 24.

[26] The complainant testified that on October 12, 2016, the appellant, assisted by his friend, pushed her, covered her mouth, and put his hands around her neck. He held her there, unable to breathe, for more than two minutes. They punched and tasered her several times and then took her into the kitchen where she was tasered again. The appellant asked his friend to check the apartment for money while he held the complainant on her knees. The complainant said the appellant’s friend watched her in the bedroom for what she guessed to be at least 15 minutes. Eventually, she jumped out the window after which the appellant and his friend ran away. This evidence, accepted by the trial judge, is sufficient to constitute forcible confinement.

[27] In any event, there is no requirement that the complainant be physically restrained. Fear, threats, intimidation and psychological tactics can all create an atmosphere of forcible confinement in the absence of any physical restraint. The fact that the complainant was not physically controlled at all times cannot be equated with her having the freedom to move about as she wished: R. v. Sundman, at para. 21. The complainant clearly said she was not at liberty to leave and was only able to leave the bedroom by escaping through the window onto the balcony and yelling for help.

[28] While the trial judge’s reasons on this issue are not extensive, her reasons were clear and her findings linking the evidence to the verdict can be logically discerned. The trial judge adverted to the fact that unlawful confinement was a separate offence from robbery and that all elements of an offence have to be proven by the Crown beyond a reasonable doubt. Her reasons were sufficient: G.F., at paras. 69-71; R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, at para. 20. The second ground of appeal therefore fails.

[29] For the above reasons, this appeal is dismissed.

“M. Tulloch J.A.” “J.A. Thorburn J.A.” “J. George J.A.”