WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486(1), (2), or (3) of the Criminal Code shall continue. These sections of the Criminal Code provide:
- (1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may order the exclusion of all or any members of the public from the court room for all or part of the proceedings if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.
(2) For the purpose of subsection (1), the “proper administration of justice” includes ensuring that.
(a) the interests of the witnesses under the age of eighteen years are safeguarded in all proceedings; and
(b) justice system participants who are involved in the proceedings are protected.
(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 172, 172.1, 173, 212, 271, 272 or 273 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, reference to the circumstances of the case, the reason for not making an order. R.S., c. C-34, s. 442; 174-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s. 15; 2005, c. 43, ss. 4 and 8(3)(a).
CITATION: R. v. Ahmadi, 2010 ONCA 639
DATE: 20101001
DOCKET: C50489
COURT OF APPEAL FOR ONTARIO
MacPherson, Sharpe and MacFarland JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Shahmahmood Ahmadi
Appellant
Howard L. Krongold and Leonardo S. Russomanno, for the appellant
Dena Bonnet, for the respondent
Heard and released orally: September 30, 2010
On appeal from the conviction entered on September 8, 2008, and the sentence imposed on April 28, 2009, by Justice Robert Pelletier of the Superior Court of Justice, sitting with a jury.
ENDORSEMENT
[1] The appellant Shahmahmood Ahmadi appeals his conviction for sexual assault by Pelletier J. of the Superior Court of Justice on September 8, 2008. He also appeals the one year custodial sentence he received on April 28, 2009; he seeks either a conditional sentence or a shorter term of imprisonment.
[2] The appellant’s conviction arose from an alleged sexual assault on a seriously intoxicated 16-year old girl in the apartment of one of the appellant’s friends in Ottawa.
[3] On his conviction appeal, the appellant makes four submissions.
[4] First, the appellant contends that the trial judge erred in failing to consider the effect of the contradictory evidence with respect to anal penetration on the complainant’s reliability as a whole. The complainant testified that one of the components of the appellant’s assault on her was anal penetration. The medical evidence from the complainant’s visit to a hospital a day after the alleged assault did not confirm that this took place.
[5] We do not accept this submission. The trial judge did scrutinize this aspect of the complainant’s testimony on two separate occasions. First, in his review of the evidence and, before he made his assessment of the complainant’s overall credibility, the trial judge specifically referred to the fact that her account of anal penetration was contradicted by the medical evidence. We are therefore not persuaded that he failed to take that contradiction into account when assessing her credibility as a whole. When he turned to the contradiction the second time to consider whether the Crown had proved sexual assault causing bodily harm, he did not reject the complainant’s evidence, but rather declined to find the element of bodily harm had been proved beyond a reasonable doubt. This careful scrutiny did not preclude the trial judge from finding that other aspects of the sexual assault, especially those confirmed by corroborative evidence, did occur.
[6] Second, the appellant contends that the trial judge erred with respect to corroborating or confirmatory evidence. The trial judge initially decided that the complainant’s evidence could only be relied on where corroborated, given her level of intoxication. The appellant submits that he erred by relying on certain evidence as being confirmatory of the sexual assault.
[7] We disagree. Some of the evidence criticized by the appellant in this submission was indeed directly corroborative of the sexual assault – for example, the injuries the complainant suffered after she left the Tim Horton’s store with the appellant and his friend. The other evidence, although not directly corroborative of the sexual assault, was confirmatory of the complainant’s account of the events generally, and was used as such by the trial judge.
[8] Third, the appellant submits that the trial judge erred by misapprehending the evidence about the appellant’s failure to respond to the calls made by Ms. Redmond, who was concerned that the young complainant was late returning to the Tim Horton’s store.
[9] We do not accept this submission. In our view, the trial judge properly understood the telephone communications – and lack thereof – between the appellant and Ms. Redmond in the early morning hours of the night in question.
[10] Fourth, the appellant asserts that the trial judge erred in drawing an adverse inference against the appellant on the basis that the appellant’s friend who, according to the complainant’s testimony, stood in the bathroom and watched the sexual assault, did not testify at the trial.
[11] We disagree. The trial judge’s observation in this domain was a straightforward common sense observation – if the complainant wanted to concoct a story about a violent sexual assault, it would be unlikely that she would insert into the story a close friend of the appellant who might well be able to contradict her story in whole or in part if it were concocted. The trial judge was entitled to regard this point as one telling in favour of the complainant’s credibility.
[12] On the sentence appeal, we can see no basis for interfering with the one year custodial portion of the sentence. The sexual assault was made on a young girl in a vulnerable position. A custodial sentence was entirely appropriate.
[13] The appeal is dismissed.
“J. C. MacPherson J.A.”
“Robert J. Sharpe J.A.”
“J. MacFarland J.A.”