COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mughal, 2014 ONCA 349

DATE: 20140502

DOCKET: C56565

Goudge, Cronk and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Muhammad Mughal

Appellant

R. Craig Bottomley, for the appellant

Jason Balgopal, for the respondent

Heard: April 15, 2014

On appeal from the convictions entered on November 4, 2012 by Justice S. Gail Dobney of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant was convicted of 11 offences against his wife and his three children.

[2] He was convicted of assaulting his wife (count 1), and sentenced to 15 days in jail, concurrent to his other sentences, for this offence. He was acquitted of one count of assault with a weapon on his wife (count 2).

[3] In relation to each of his three children, Rafay, Maheen and Ali, he was convicted of three offences: simple assault (counts 3, 6 and 9), assault by threatening to use a knife (counts 4, 7, and 11), and threatening to cause serious bodily harm using a knife (counts 5, 8 and 12). For each of these nine offences the trial judge imposed a 30-day sentence. The sentences relating to each child were made concurrent to the sentences for the other two offences relating to the same child. The total sentences relating to each child were made consecutive to the sentences relating to the other two children.

[4] The appellant was also convicted of a separate assault with a knife of Ali (count 10) for which he received 30 days, concurrent to the other sentences relating to Ali.

[5] The end result was a 90-day sentence that the trial judge ordered to be served intermittently, together with a two-year probation order.

[6] The appellant takes no issue with his conviction for assaulting his wife.

[7] He does, however, raise three issues on the appeal of his other convictions: propensity reasoning; misapprehension of evidence; and the Kienapple principle.

[8] The first of these is enough to dispose of the conviction appeal. In giving his evidence, the appellant made admissions that support his conviction for simple assault of Rafay (count 3), his conviction for assaulting Ali by threatening to use a knife (count 11), and his conviction for the separate assault with a knife of Ali (count 10). In registering convictions on these counts, the trial judge considered the appellant’s admissions together with the evidence of his children to be sufficient. She did not use propensity reasoning to convict and we see no basis to interfere with her conclusion on these counts.

[9] However, the appellant made no such admissions in denying the other offences. With respect to these convictions, we conclude that the trial judge rejected the appellant’s evidence solely on the basis that if the appellant was prepared to assault Ali by threatening him with a knife, it is not beyond belief that he was the kind of person who would act similarly towards his other two children. Since the Crown made no similar fact application and we cannot say that such an application would inevitably have been successful, this error requires that the convictions on counts 4, 5, 6, 7, 8, 9 and 12 be set aside and new trials on those counts be ordered.

[10] There is no need for us to deal with the misapprehension issue since it deals with counts 6 and 9, on which we have ordered new trials, and count 3, on which we are satisfied that the appellant’s admissions at trial support his conviction.

[11] Nor need we deal with the Kienapple issue[^1]. It was argued by the appellant to apply where the appellant was convicted of assaulting a child by threatening to use a knife and of threatening to cause serious bodily harm using a knife in relation to the same child. No pair of the convictions that we have upheld fits this description.

[12] The sentences imposed by the trial judge for the convictions that we have left undisturbed are 30 days for count 3, (the simple assault of Rafay); 30 days for count 10, (the separate assault on Ali); and 30 days for count 11, (the assault of Ali by threatening to use a knife). The two sentences in relation to Ali are concurrent to each other. The resulting 30-day sentence in respect of the offences against Ali is consecutive to the 30 days imposed for the conviction on count 3, relating to Rafay. The 15-day sentence for count 1 is concurrent to both these sentences. The overall result is a 60-day sentence ordered to be served intermittently, together with two years’ probation.

[13] In all the circumstances, we see no basis to interfere with the global sentence the trial judge imposed for the convictions we have left undisturbed. In our view, it is not unfit.

[14] In the end, the conviction appeal is allowed to the extent that the convictions on the counts specified in these reasons are set aside and a new trial is ordered on those counts, should the Crown choose to proceed. We would not interfere with the sentences for the convictions that remain. Accordingly, while leave to appeal sentence is granted, the sentence appeal concerning the remaining conviction is dismissed.

“S.T. Goudge J.A.”

“E.A. Cronk J.A.”

“Gloria Epstein J.A.”

[^1]: R. v. Kienapple, [1975] 1 S.C.R. 729.