Court File and Parties

COURT FILE NO.: CR-21-15535AP DATE: 2023/06/28

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING – and – AHMAD HASAN Appellant

COUNSEL: M. Karimjee, for the Crown Self-Represented, for the Appellant

HEARD: December 7, 2022, March 1, 2023 and May 1, 2023

Reasons for Decision J. Parfett

Endorsement

[1] The Appellant was convicted after trial of one count of criminal harassment, contrary to s. 264(3) of the Criminal Code. He appeals from that conviction.

Evidence at Trial

[2] The Appellant, Mr. Ahmad Hasan, met the complainant in August 2021, when he was an Uber driver, and he gave her a ride home. They spoke during the ride and ultimately, Mr. Hasan asked the complainant whether he could see her again. The complainant agreed and gave him her cellphone number. They exchanged several text messages and arranged to meet on August 12, 2021.

[3] There was no clear plan for the evening. Initially, they went to the Appellant’s house so that he could change clothes. Mr. Hasan offered the complainant some food and later they sat on a couch, talking. At some point, Mr. Hasan tried to kiss the complainant and she rebuffed his advances. Eventually, they left the house and drove to a beach. They walked on the beach and the Appellant continued to try and kiss the complainant. The complainant asked to be taken home. According to the complainant, Mr. Hasan drove around the city instead of taking her directly home, but eventually he did take her home.

[4] The next day, the complainant sent a text message to the Appellant indicating that she did not wish to see him again and wishing him well. She also blocked his number.

[5] The complainant was not working that day. She later learned from her manager that Mr. Hasan had gone to her workplace. Mr. Hasan confirmed that fact in one of his texts.

[6] On August 14, 2021, the Appellant continued to send texts to the complainant. These were sent in the early hours of that morning. The complainant testified that she did not see these messages until she woke up later that day.

[7] In the messages, Mr. Hasan seemed initially to accept the complainant’s rebuff, but later he began sending texts indicating that he wanted to see her again. At some point in this process, Mr. Hasan realized the complainant had blocked his number and he began using a second number.

[8] When the complainant went to work on August 14, her manager told her he had noticed Mr. Hasan and warned her to be careful and that he believed Mr. Hasan might be potentially dangerous.

[9] The complainant blocked Mr. Hasan’s number twice, but he continued to contact her throughout her shift using different numbers.

[10] The text messages were filed in evidence at the trial. They vary in tone from friendly and cheerful to insistent and angry. Mr. Hasan told the complainant that he loved her and wanted her to be the mother of his children. He also referred to the complainant as a “bitch”.

[11] On the advice of her co-workers, the complainant called the police, who advised her that they would speak to Mr. Hasan. They did so, but Mr. Hasan continued to text the complainant. In total, Mr. Hasan sent two text messages after the police spoke to him.

[12] In her evidence, the complainant stated that the quantity and nature of the texts scared her because it seemed to her that the situation was out of control. In cross-examination, the complainant also stated she was scared because of the time she spent in Mr. Hasan’s company on August 12. Specifically, she indicated,

I was fearful because, well the whole interaction I felt unsafe, I felt vulnerable and out of control. It was very out of control. He portrayed a lot of emotional changes… really quickly from very angry to very calm and I felt that he was unstable and that any wrong word I said would backfire on me.

[13] Later in cross-examination, the complainant testified that, after looking at her messages received on August 14, she expressed concern to her colleagues, and she sought their help because she was scared. One of her colleagues also testified and corroborated the complainant’s emotional state.

[14] According to the evidence, there were 76 calls or texts sent on August 14, 2021, a handful of which came from the complainant.

[15] Mr. Hasan testified in his own defence. His evidence in relation to how he and the complainant met on August 7, 2021, and the subsequent arrangement to meet on August 12 concurs with the evidence given by the complainant.

[16] Where the evidence begins to diverge is with respect to the events of August 12. Mr. Hasan testified that it was the complainant who asked to see his house, not the other way around. He agreed with the complainant that he offered her something to eat and that they shared some salmon and cheese. Mr. Hasan indicated that he provided several options to the complainant for the evening and did not insist on going to the beach. However, he agreed that ultimately, he took her to a beach near his home in east end Ottawa. After the beach, Mr. Hasan denied he drove the complainant around the city and stated that he took the complainant directly home.

[17] Mr. Hasan testified that after the evening at his home and the beach, the only communications he had with the complainant were via cellphone. He agreed that he went to the complainant’s work the next day and stated it was because he was concerned about her. He was unaware at that point that the complainant had blocked his number. He stated he left her a note and some money.

[18] Mr. Hasan confirmed that he received a text from the complainant telling him that she did not want to see him again. However, he testified that he wanted the complainant to give ‘this relationship another chance’. In addition, he testified that,

I couldn’t go to work that night, I was thinking of her all the time. And that evening I tried to – not to think of her, to just let it go without thinking of her. And it happened so fast, and I hate when I am – when I wake, I, I admit that I lost control over myself, I couldn’t control my feelings for her. I found myself loving her and I, I tried not to contact her again, but I found myself sending to her a message saying to her that I’m thinking of her.

[19] Mr. Hasan testified that he became aware of the fact the complainant had blocked his number and therefore, he had to find another way to communicate with her. In his arguments on appeal, Mr. Hasan advised the court that he found the fact his number had been blocked was disrespectful.

Trial Decision

[20] The trial judge provided an oral decision in this matter. She noted that the issues in the case were first, whether the text messages from Mr. Hasan caused the complainant to fear for her safety and secondly, whether that fear was reasonably held.

[21] The complainant and Mr. Hasan’s credibility was at the heart of the trial judge’s analysis.

[22] The trial judge found as follows:

When I consider the totality of the evidence, I accept that Mr. Hasan’s repeated communications with [the complainant] harassed her, and clearly caused her to be distressed, tormented or badgered. Mr. Hasan knew this or was reckless or wilfully blind about it. He repeatedly, continually communicated with her even after being warned by police not to do so. After he realized she had blocked his number, he understood this to mean that she did not want to communicate with him anymore but continued and even persisted in communicating with her.

The evidence on this record is clear. This caused [the complainant] to fear for her safety. I accept her evidence that when she arrived at her place of work her manager informed her of Mr. Hasan’s visit on the Friday night and she then saw the text he had managed to send her from a different number. I accept her evidence that she started to become fearful then. This feeling of fear for her safety was increased when she received further texts from him from another number after having blocked him a second time. Her evidence is clear, convincing, and unshaken on this element. It is also corroborated by her co-worker’s evidence…

[23] With respect to Mr. Hasan’s evidence, the trial judge states,

I also conclude that a reasonable person in [the complainant’s] situation would have feared for their safety as well. Mr. Hasan was not accepting her polite ending of their communication….

In his own evidence, he felt completely out of control. This was after only one date together. It is not just the repeated and continued communications, but also the content themselves that creates the reasonable fear for her safety. He goes from expressing his deep love for her, talking abut their life together to his hate for her and insulting her and calling her derogatory names.

[24] The trial judge indicated that Mr. Hasan’s evidence did not raise any doubt in respect of the elements of the offence and she found him guilty.

Issues on Appeal

[25] The Appellant raises two issues on this appeal.

[26] The first is an allegation of ineffective representation by counsel and the second is unreasonable verdict.

1. Ineffective Representation of Counsel

[27] Crown counsel brought a motion for summary dismissal of this aspect of the appeal. Evidence and argument were heard over the course of two days.

[28] Defence counsel, Natasha Calvinho, was originally requested to act as s. 486.3 counsel to cross-examine the complainant. However, shortly before the start of the trial, she took on the role of amicus to assist Mr. Hasan in presenting his case. The trial judge made this appointment due to Mr. Hasan’s contumelious behaviour.

[29] Ms. Calvinho was cross-examined on her affidavit. In her affidavit, she confirmed that initially, she had been appointed as s. 486.3 counsel to cross-examine the complainant and later as amicus.

[30] Ms. Calvinho detailed the difficulties she encountered with Mr. Hasan during the trial. She described him as difficult and indicated that he regularly interrupted, talked over other people, yelled, described the process as a farce and called both her and the judge “bitch”. This evidence is borne out in the transcripts.

[31] Ms. Calvinho denied that she prevented Mr. Hasan from presenting evidence. Rather she stated that she ensured that evidence was presented in accordance with the rules of evidence. In addition, she indicated that she attempted to ensure that Mr. Hasan did not put evidence before the court that could have harmed his defence.

[32] Mr. Hasan cross-examined Ms. Calvinho at length.

Legal Principles in relation to allegations of ineffective trial counsel

[33] There is a three-part test used to determine whether trial counsel was ineffective or incompetent. The Appellant bears the onus of proof on a balance of probabilities with respect to each part.

[34] An appellant must establish,

• The facts on which the claim is grounded;
• The incompetence of the representation provided by trial counsel; and
• A miscarriage of justice as a result of the incompetent representation by trial counsel.

[35] The case of R. v. Kuffuor, [2022] O. J. No 234, citing para. 48 of R. v. Fiorilli, 2021 ONCA 461, sets out what factors should be considered on each branch of the test. It states,

In regard to the factual component, allegations of incompetent or ineffective representation must be assessed in light of the strong presumption of competence in favour of counsel. A cautious approach should be adopted by the court when dealing with allegations against trial lawyers made by convicted individuals not wishing to face the sentences imposed.

In regard to the performance component, the appellant must demonstrate that counsel’s acts or omissions amount to incompetence, with incompetence measured against a reasonableness standard. The appellant must show that the acts or omissions of counsel could not have been the result of reasonable professional judgment. In that regard, there is a broad spectrum of professional judgment that might be considered reasonable. Whether trial counsel acted reasonably must be assessed at the time decisions were taken and not in hindsight after a conviction has been entered.

[36] The third branch of test relates to miscarriage of justice. Miscarriage of justice may occur because the ineffective representation impacted the fairness of the adjudicative process, or it may relate to the reliability of the verdict. In the present case, the Appellant has focussed his arguments on the reliability of the verdict.

[37] It is important to note that in the present case, counsel was acting as amicus and Mr. Hasan was self-represented at trial. The role of an amicus is not identical to the role of defence counsel. As noted in R. v. Imona-Russel, 2019 ONCA 252,

In CLA, the majority and the dissent agreed on the general principles applicable to the scope of amicus orders. Fish J. added several observations… for which he cited with approval Durno J. in R. v. Cairenius,

While the amicus may, in some circumstances, be called upon to “act” for an accused by adopting and defending the accused’s position, his role is fundamentally distinct from that of a defence counsel who represents an accused person either pursuant to a legal aid certificate or under a Rowbotham order. Furthering the best interests of the accused may be an incidental result, but is not the purpose of an amicus appointment.

[38] Consequently, in assessing the ineffectiveness of counsel, the standard to be applied is ineffectiveness in the context of the duties of an amicus.

Analysis

[39] Mr. Hasan alleges that Ms. Calvinho did not effectively cross-examine the Crown’s main witness – the complainant. He alleges that there were significant discrepancies between the complainant’s statements to police and her testimony at trial.

[40] I was provided with the complainant’s statement to the police. It does not differ in any significant way from her testimony.

[41] He also alleges that amicus would not explore areas of evidence that he believed were fundamental to his defence. Specifically, he indicated that he wanted to explore events that occurred on August 12 during the date with the complainant. In his view, these events explained his later actions.

[42] I have great difficulty with this argument. The charge against Mr. Hasan was one of criminal harassment relating to events on August 14. Prima facie, what occurred during the date on August 12 was irrelevant to the charge of criminal harassment. At most, it served as background narrative. In order to explore those events, it was incumbent on the Appellant to show how those events could advance his defence.

[43] My understanding of Mr. Hasan’s position on that point is that, if the complainant was a willing participant to his advances during the date – something that the complainant denied – then he was justified in attempting to pursue a relationship with her despite the fact she had indicated clearly she did not wish to do so.

[44] Both Crown counsel and amicus had been careful to avoid exploring this area to the extent possible. No allegation of sexual assault had been made and to explore it during this trial ran the risk that a trial on a charge of criminal harassment would become a trial of sexual assault. Mr. Hasan perceived the risk, but stated in his argument that the mere fact that the complainant stated that she was reluctant to accept his advances meant that he was required to defend himself on that point.

[45] The trial involved a charge of criminal harassment, not sexual assault, and the complainant’s evidence regarding her unwillingness to engage in kissing or hugging, did not affect the trial judge’s determination on the issues relevant to criminal harassment.

[46] Although the complainant testified that she was fearful as a result of the events of August 12, the trial judge restricted her findings in relation to the complainant’s fear to the events of August 14.

[47] Even assuming the complainant was a willing participant, she nonetheless had the right to refuse any further contact and Mr. Hasan was obliged to accept her decision. Consequently, exploring this facet of the case would not have advanced Mr. Hasan’s defence.

[48] Amicus’ decision to focus the cross-examination on the events of August 14 fell well within the parameters of acceptable professional judgment and, therefore, I do not find any error in amicus’ handling of this aspect of cross-examination.

[49] To the contrary, amicus advised in her testimony that the only area open to her to cross-examine on was whether the complainant reasonably feared for her safety.

[50] I agree. The text messages were acknowledged by Mr. Hasan to have been sent by him to the complainant. There were numerous text messages sent in a single day. The complainant told Mr. Hasan she was not interested in pursuing a relationship with him and she blocked his number. Mr. Hasan kept changing his number and the complainant was obliged to keep blocking Mr. Hasan’s number. Mr. Hasan did not even stop his communications after he was advised to do so by police.

[51] Amicus thoroughly explored the issue of the complainant’s fear in cross-examination. That the complainant was not shaken on this point was no reflection on the skill and ability of the amicus.

[52] To the extent that Mr. Hasan’s appeal of his conviction for criminal harassment is based on the allegation of ineffectiveness of counsel, the appeal is dismissed.

2. Unreasonable Verdict

[53] Mr. Hasan’s second argument on this appeal is that the verdict was unreasonable, and the evidence did not support the trial judge’s findings.

Standard of Review

[54] The standard for appellate review is set out in R. v. Biniaris, 2000 SCC 15. The Supreme Court of Canada cites the traditional test of whether a properly instructed jury, acting judicially, could reasonably have rendered the impugned verdict, and then goes on to comment:

That formulation of the test imports both an objective assessment and, to some extent, a subjective one. It requires the appeal court to determine what verdict a reasonable jury, properly instructed, could judicially have arrived at, and, in doing so, to review, analyze and, within the limits of appellate disadvantage, weigh the evidence.

[55] In Biniaris, the Court also indicated that in reviewing a trial judge’s reasons for judgment an appellate court may be able to identify a flaw in the evaluation of the evidence, or in the analysis. If so, then the appellate court could reverse the trial judge’s decision. However, trial judges are entitled to be accorded deference with respect to their findings of fact, particularly where findings of credibility are made. As noted in Biniaris,

Any judicial system must tolerate reasonable differences of opinion on factual issues. Consequently, all factual findings are open to the trier of fact, except unreasonable ones embodied in a legally binding conviction. Although reasonable people may disagree about their appreciation of the facts, a conviction, which conveys legality, authority and finality, is not something about which reasonable people may disagree. A conviction cannot be unreasonable, except as a matter of law, in which case it must be overturned.

[56] As other courts have noted, a verdict is unreasonable if the trier of fact made a ‘palpable and overriding error’ and its functional equivalents, including ‘clearly wrong’, and ‘not reasonably supported by the evidence’. H.L. v. Canada (A.G.), 2005 SCC 25, [2005] 1 S.C.R. 401 at para. 110.

[57] In reviewing a trial judge’s decision, the quality of the reasons provided is important. Trial judges have a duty to give reasons for their decisions. As noted in R. v. Y.M., 2004 ONCA 39045, “this duty applies to their credibility assessments as much as to their fact finding and legal analysis. In some cases, the failure to explain or justify a credibility finding may disentitle a trial judge to the appellate deference ordinarily accorded to these findings.”

Analysis

[58] In the present case, the trial judge gave an oral decision. In it she indicated what the issues were, what the burden of proof was, and she recited the test in R. v. W.D., 1991 SCC 93 in relation to credibility assessment. She was clearly alive to the relevant issues in the case.

[59] This case was not a difficult one. Much of the evidence was admitted. The case turned on the credibility of the complainant in respect of the issue of whether she feared for her safety and whether that fear was reasonable in all the circumstances.

[60] Mr. Hasan argued that the verdict was unreasonable because the complainant lied during her evidence and there were significant discrepancies between her evidence at trial and both her written statement to police and her videotaped statement. Mr. Hasan could not point to any significant discrepancies. Those that he did point to were minor, such as whether the complainant gave her cellphone number to Mr. Hasan or he gave her his number or they exchanged cellphone numbers. In my view, there were no significant differences between the complainant’s statements to police and her testimony.

[61] Mr. Hasan had difficulty with some of the trial judge’s comments on what constituted criminal harassment, particularly when her comments were not reflected in the wording found in the Criminal Code. I do not intend to deal with these arguments as the trial judge’s comments were consistent with the caselaw.

[62] Much of Mr. Hasan’s argument focussed on the reasonableness of the complainant’s fear. He stated that the complainant could not have been fearful if she went to work after reading his text messages from the night before. This argument makes no sense. The complainant’s evidence was that she was upset by the texts. She also indicated that her emotions increased as she continued to receive texts during her shift despite having blocked Mr. Hasan’s number on two occasions. Ultimately, she decided, with the advice of her colleagues to go to the police. As noted earlier, she stated that she was scared by the cumulative effect of the texts, and she felt the situation was out of control.

[63] Secondly, Mr. Hasan argued that it was not the complainant who was scared; it was her colleagues. That argument is untenable. The complainant’s unshaken evidence was that she feared Mr. Hasan.

[64] As the caselaw states, considerable deference is owed to the trial judge’s assessment of credibility and findings of fact. In my view, the trial judge’s decision in the present case is amply supported by the evidence and was not unreasonable.

[65] The appeal is dismissed.

Justice J. Parfett Date: June 28, 2023