DATE: 20051122

DOCKET: C42805

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and ABDULAZIZ MOHAMMED FARAH (Appellant)

BEFORE:

BORINS, JURIANSZ and LAFORME JJ.A.

COUNSEL:

P. Andras Schreck

for the appellant

John Pearson

for the respondent

HEARD & RELEASED ORALLY:

November 15, 2005

On appeal from the conviction entered September 14, 2004 and the sentence imposed December 10, 2004 by Justice John F. Hamilton of the Superior Court of Justice, sitting alone.

E N D O R S E M E N T

[1] This is an appeal by the appellant from his conviction for aggravated assault. He also seeks leave to appeal from the sentence imposed. The charge was based on an altercation that occurred in a high school during which it is alleged that the appellant stabbed a fellow student. It was the appellant’s defence that he had no knife, did not stab the complainant and could not explain how the complainant was injured. No knife was ever recovered.

[2] In questioning the appellant, the trial judge was pressing him to explain how the complainant came to be injured, and went on to convict him when the appellant was unable to provide an explanation that in the view of the trial judge was more “probable” or “plausible” than the Crown’s theory. The appellant did not know how the complainant came to be injured and there was no onus on him to explain the injury.

[3] What occurred in this case is similar to what took place in R. v. Robert (2000), 143 C.C.C. (3d) 330 (Ont. C.A.), where Sharpe J.A. said it was not for the defendant to satisfy the trial judge that an accidental cause of a fire, the defendant having been charged with arson, was made out as a “reasonable inference” or as a “reasonable conclusion” from the “proven facts”. Rather it was for the Crown to prove beyond a reasonable doubt that there was no other reasonable inference than the guilt of the accused.

[4] In this appeal, as for the appellant’s defence that he did not stab the victim who must have been injured in the altercation by some other means, the trial judge considered only whether this explanation was “more plausible” than the theory of the Crown. He never considered whether it raised a reasonable doubt.

[5] From our review of the trial judge’s reasons we are not satisfied that he ever came to grips with the critical issue, the one that prevails in every case, whether the Crown has proved the guilt of the accused beyond a reasonable doubt. Consequently, in our view, the finding of guilt is unsatisfactory and cannot stand.

[6] We would allow the appeal, set aside the finding of guilt and order that there be a new trial. In the circumstances of course, it is not necessary to deal with the appeal from sentence.

“S. Borins J.A.”

“R. G. Juriansz J.A.”

“H. S. LaForme J.A.”