DATE: 20011214 DOCKET: C30729
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) v. MOHAMMAD KAFEEL QAZI (Appellant)
BEFORE:
LABROSSE, ABELLA and CHARRON JJ.A.
COUNSEL:
Brian Greenspan,
for the appellant
Ian Bulmer,
for the respondent(s)
HEARD:
December 10, 2001
RELEASED ORALLY:
December 10, 2001
On appeal from his conviction by Justice John G. J. O’Driscoll (sitting with a jury) on July 30, 1998 and from the sentence imposed on October 8, 1998.
E N D O R S E M E N T
[1] The appellant was convicted of related sexual offences by a court composed of a judge and jury. He was sentenced to five years’ imprisonment. He appeals both his conviction and sentence.
[2] The appellant was found guilty of sexual assault, sexual interference, and invitation to sexual touching in relation to a young female. The appellant was a friend of the complainant’s family and at times a tenant in the family home. The offences were committed when the complainant was between six and nine years of age. The sexual activities ranged from rubbing to forced intercourse. A medical examination confirmed that the complainant had suffered a rupture of her hymen that was consistent with vaginal intercourse, among other possible causes.
[3] The appellant neither testified at trial nor did he call any other evidence.
[4] The appellant raises two grounds:
Evidence relating to the complainant’s previous disclosure; and
Alleged oath-helping evidence.
[5] In the first ground, the appellant challenges the lack of a direction to the jury with respect to the complainant’s evidence of previous disclosure. At trial, the appellant made an allegation of recent fabrication, namely, that the complainant fabricated the allegations of abuse to avoid returning to Toronto from Vancouver. The complainant’s evidence of previous disclosure was admissible to rebut that allegation. She was not cross-examined on that evidence. Had the jury been specifically instructed on this issue, the jury would have to have been told that they could use this evidence to negate the allegation of recent fabrication. In the circumstances, the lack of direction clearly enured to the appellant’s benefit. Such a direction would have seriously diluted the defence advanced. No request was made at trial for a limiting instruction.
[6] We would not accede to this ground of appeal.
[7] With respect to the second ground, we are of the view that, in the context of the whole trial, the oath-helping was so inconsequential that even if this evidence were not properly admissible, it could not reasonably have affected the verdict.
[8] Finally, we are of the view that the sentence is well within the proper range for an offence of this nature.
[9] In the result, the appeal from conviction is dismissed, leave to appeal sentence is granted, and the appeal from sentence is dismissed.
(signed) “J. M. Labrosse J.A.”
(signed) “R. S. Abella J.A.”
(signed) “Louise Charron J.A.”