R. v. Manowar, 2010 ONCA 871
CITATION: R. v. Manowar, 2010 ONCA 871
DATE: 2010-12-17
DOCKET: C50997
COURT OF APPEAL FOR ONTARIO
MacPherson, Simmons and Gillese JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Azaad Manowar
Appellant
DOCKET: C51188
BETWEEN
Her Majesty the Queen
Appellant
and
Azaad Manowar
Respondent
Counsel:
Greg Skerkowski, for Her Majesty the Queen
Anil Kapoor and Senem Ozkin, for Azaad Manowar
Heard and released orally: December 14, 2010
On appeal from the conviction entered on June 9, 2009, and the sentence imposed on September 17, 2009, by Justice Thomas R. Lederer of the Superior Court of Justice, sitting without a jury.
By the Court:
A. CONVICTION APPEAL (C50997)
[1] The appellant was charged with five criminal offences – sexual assault, unlawful confinement, utter a threat to cause death, utter a threat to cause bodily harm, and choking with intent to assist in committing sexual assault. The charges arose out of a sexual encounter with the complainant in the early evening of November 10, 2006.
[2] In a judgment on June 9, 2009, Lederer J. of the Superior Court of Justice convicted the appellant of the first four of the above-noted charges and acquitted him of the choking charge.
[3] The appellant appeals his convictions on three grounds:
(1) the trial judge misapprehended material evidence;
(2) the four guilty verdicts are inconsistent with the acquittal for choking; and
(3) the trial judge failed to adequately consider the defence theory at trial.
(1) Misapprehension of evidence
[4] The appellant submits that the trial judge misapprehended significant portions of the evidence at trial with respect to three areas that materially contributed to the guilty verdicts.
[5] First, the appellant asserts that the trial judge erred by stating that all 11 voicemail messages from the appellant to the complainant on November 11, 2006 had been left before 10:30 a.m., whereas in fact the messages were left between 2:59 and 10:34 p.m.
[6] Even if the trial judge did commit this factual error (it appears he did in one place but did not in a second place), nothing turns on it. It was the contents of these messages, not their timing, that were central to the trial judge’s reasoning. As the trial judge put it:
[T]he assertion of the accused that the events of November 10, 2006, were a friendly and understanding end to a long relationship is simply not believable. The absence of credibility in this is underscored by the telephone messages he left the following day. The language used cannot be interpreted, as the accused would have it, as expressions of concern mitigated by frustration of the moment. There is no understanding and no acceptance in these messages.
[7] Two of the messages left between 9:30 and 10:30 p.m. recorded the appellant as saying this to the complainant:
Message 8: I hope you…go party and fucking with the guy again okay if you have then all hell will break loose later okay I just wanted you to know that goodbye.
Message 9: Why aren’t you answering your phone I’m getting madder and madder.
[8] These messages lend strong support to the trial judge’s rejection of the appellant’s interpretation of them.
[9] Second, the appellant contends that the trial judge erroneously found that, after having been dropped off at her home by the appellant after the sexual encounter, the complainant was crying to A.A., her new boyfriend, in the first of two telephone calls they had that evening. The relevance of this, says the appellant, is that it was only in the second call that A.A. told the complainant that he had been watching her house when the appellant dropped her off. This provoked the complainant to cry and falsely allege a sexual assault.
[10] In his testimony in chief, A.A. referred to the complainant crying during the first telephone conversation; in re-examination he said it was the second conversation. Again, nothing turns on this minor point. The trial judge mentioned it only in passing and did not use it to bolster the complainant’s credibility. Moreover, and importantly, the complainant had told A.A. about the appellant and her proposed meeting the day before; accordingly, she had no reason to spontaneously fabricate a sexual assault by the appellant.
[11] Third, the appellant submits that the trial judge misapprehended the evidence about Belfield Road, thus undercutting the appellant’s assertion that it was the complainant, not him, who chose the secluded area for the sexual encounter.
[12] We do not accept this submission. There was no evidence that the complainant was familiar with the unlit warehouse parking lot on Belfield Road where the sexual encounter took place. Her conceded familiarity with Belfield Road generally did not make it more likely that she directed the appellant to that specific location. Accordingly, the trial judge was entitled to attribute “no weight to this consideration in coming to a decision in this case.”
(2) Inconsistent Verdicts
[13] The appellant contends that since the complainant’s allegation that he had choked her was an integral part of her sexual assault narrative, the acquittal for choking and the conviction for sexual assault are inconsistent verdicts.
[14] We disagree. The trial judge did not reject the complainant’s evidence about choking. Indeed, he accepted and relied on it to conclude, as a matter of law, that the offence of choking to assist in the commission of the offence of sexual assault was not made out. The complainant’s testimony was that during the sexual assault the appellant twice placed his hands on her throat. However, as the trial judge observed, the complainant testified that the appellant did not apply much pressure and did not try to choke, suffocate or strangle her. Based on this testimony, which the trial judge believed, he acquitted the appellant of the offence of choking to assist in the commission of sexual assault. In this context, there is no inconsistency between the one acquittal and the four convictions; all of the verdicts flow from the trial judge’s acceptance of the complainant’s testimony.
(3) Inadequate consideration of the defence theory
[15] The appellant contends that the trial judge did not adequately consider some of the evidence supporting the defence theory that the sexual encounter on November 10, 2006 was consensual.
[16] We disagree. In his 53-page judgment the trial judge clearly stated the defence theory and dealt comprehensively and fairly with the evidence and defence counsel’s submissions relating to it.
Disposition
[17] The conviction appeal is dismissed.
B. SENTENCE APPEAL (C51188)
[18] It will be recalled that the respondent was convicted of sexual assault, unlawful confinement, and two counts of uttering threats. These offences occurred following the breakdown of an intimate relationship of several years’ duration. The Crown sought a sentence of three to four years in jail. The defence position was that the respondent ought to receive a conditional sentence of two years less a day. The trial judge imposed a conditional sentence of two years less a day to be followed by three years’ probation.
[19] The Crown appeals sentence on the basis that the sentence was unfit; it represented a substantial and marked departure from sentences for offences of this sort; and the sentence failed to give appropriate effect to general deterrence and denunciation.
[20] We accept these submissions. Following her decision to end her sexual relationship with the respondent, the complainant was the victim of a campaign of threats and intimidation culminating in the sexual assault on November 10 in which the complainant was confined to a vehicle in a secluded location and subjected to forced vaginal intercourse. The respondent was a person whom she had trusted, with whom she had been in a domestic relationship and who was a friend of her father. Granting a conditional sentence in these circumstances is a substantial and marked departure from sentences imposed for similar offenders committing similar crimes: see, for example, R. v. Bradley, 2008 ONCA 179, [2008] O.J. No. 955 (C.A.).
[21] In the circumstances of this case however, it is not in the public interest to incarcerate the respondent at this point. The respondent has already served 14 months on strict house arrest. This period of house arrest follows a period of approximately three years in which the respondent was subject to seriously restrictive bail conditions. Furthermore, incarceration at this point would impose a considerable hardship on the respondent’s wife, children and mother. Moreover and very significantly, the fresh evidence shows that the respondent was in a serious multi-car accident that has left him with ongoing injuries requiring continuing rehabilitation and he is expected to be called as a witness for the prosecution at the trial of two of the other drivers involved in the accident.
[22] Accordingly, leave to appeal sentence is granted and the sentence appeal is dismissed.
RELEASED: DEC 17 2010 (“J.C.M.”)
“J. C. MacPherson J.A.”
“J. M. Simmons J.A.”
“E. E. Gillese J.A.”