COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Khan, 2014 ONCA 795

DATE: 20141112

DOCKET: C55510

Cronk, Gillese and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nasrullah Khan

Appellant

Mark Halfyard, for the appellant

Avene Derwa, for the respondent

Heard: September 8, 2014

On appeal from the convictions entered on February 28, 2012 by Justice Barbara A. Conway of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant, Nasrullah Khan, was charged with seven counts which arose out of two separate incidents. Both incidents involved the same complainant, Mr. Shahid Sidhu. The first incident involved an assault with a weapon (a knife) that occurred on October 10, 2008. This incident resulted in charges of possession of a weapon, assault with a weapon and aggravated assault.

[2] The second incident involved a threatening phone call to Mr. Sidhu on November 16, 2008. The second incident resulted in charges of failure to comply with a recognizance, intimidating a justice participant, attempting to obstruct justice and uttering a threat.

[3] Following a four-day trial before a Superior Court judge, sitting without a jury, the appellant was convicted of all counts and received a global sentence of 17 months in custody. He now appeals his convictions on two main grounds. First, the appellant submits that the trial judge erred in her treatment of alibi evidence adduced by the defence by discounting a time-stamped, dated receipt from a variety store which was disclosed by the appellant to the police upon his arrest, about 7 and a half hours after the first incident. Second, the appellant contends that the trial judge misapprehended the evidence when she concluded that the appellant’s evidence contradicted his wife’s evidence in a way that suited the defence.

Factual Overview

[4] The appellant and the complainant, Mr. Sidhu, were friends who purchased a house together in 2008 with a view to sharing the profits. The house was in the appellant’s name only. The appellant and his family moved into the house right away and Mr. Sidhu subsequently moved into the basement. On September 21, 2008, the appellant told Mr. Sidhu to move out. Mr. Sidhu filed an application against the appellant at the Landlord and Tenant Board. He later sued the appellant for the return of mortgage funds he claimed to have advanced in respect of the house.

[5] On October 10, 2008, at around 4:30 p.m., Mr. Sidhu was attacked in the parking lot at his work. His left arm was cut with a knife. Mr. Sidhu’s friend witnessed at least part of the attack and identified the attacker as the appellant. On November 16, 2008, around 8:30 p.m., Mr. Sidhu received a telephone call from a pay phone near the appellant’s home. Mr. Sidhu recognized the caller’s voice as that of the appellant. The caller told Mr. Sidhu to take his cases back and threatened to kill Mr. Sidhu. A witness to the telephone call corroborated the content of the call, which was audible on speaker phone, but not the identity of the caller.

[6] At trial, the appellant testified in his own defence and provided an alibi for both incidents. He testified that he was at a convenience store buying milk at the time of the first incident. On October 10, 2008, the appellant had told police that he was purchasing two bags of milk at the time of the incident, and subsequently produced a receipt time-stamped 4:29 p.m. that day. He testified that he was at home with his wife and father during the evening of November 16, 2008. Both the wife and father testified that the appellant was always in their sight that evening.

[7] The trial judge found that Mr. Khan was not a credible witness, and rejected his testimony with respect to the alibis.

Analysis

[8] In our view, the appeal should be dismissed.

[9] The trial judge properly considered the alibi evidence in its entirety, and correctly applied the burden of proof. This was a case in which both the appellant and the complainant knew each other, as did the main Crown witness to the assault incident. This case turned largely on credibility. The trial judge had to consider the alibi evidence within the context of her credibility assessment of the various witnesses. She gave detailed reasons for her credibility findings. Determinations of credibility by a trial judge attract a high degree of deference: R. v. Horton, 2014 ONCA 616, at para. 8; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26.

[10] The trial judge was in the unique position to see and hear the witnesses. The alibi evidence was dependent on the believability of the appellant’s evidence. She did not believe the appellant’s alibis, nor did she find that they raised a reasonable doubt.

[11] It cannot be said that the trial judge’s reasons for rejecting the alibi evidence were inadequate. “Reasons for judgment must clearly tell the losing party why he or she lost and must provide for meaningful review”: R v. Newton, 2006 7733 (Ont. C.A.), at para. 3. The reasons met this standard. For example, the trial judge gave a specific reason for rejecting the alibi evidence regarding the October 10, 2008 incident: the receipt relied on by the appellant did not link the accused to the store. She was not required to provide a theory about who purchased the milk and gave the receipt to the accused. She simply stated, “It could have been anybody.”

[12] After considering the totality of the evidence, the trial judge found the Crown witnesses credible and accepted their evidence. She was satisfied that the Crown evidence proved the appellant’s guilt beyond a reasonable doubt. We see no fault in the trial judge’s reasoning or in her ultimate findings.

[13] We also do not agree that the trial judge misapprehended the evidence. Misapprehension of evidence involves a “stringent standard”: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2. This standard is met only “[w]here a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction” (emphasis added): R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 541, cited with approval in Lohrer. The trial judge was certainly entitled to find that the appellant’s evidence contradicted his wife’s evidence in a way that was self-serving. As pointed out by the respondent in submissions, the appellant portrayed his ex-wife as an independent woman who could come and go as she pleased, whereas, his wife’s evidence was that she was completely dependent on her husband. In any event, this finding was not central to the trial judge’s reasoning process, nor was the credibility of the defence witnesses dependent solely on this finding. In our view, the contradiction was just one of many reasons the trial judge offered for disbelieving the appellant.

[14] In all the circumstances, the appeal is hereby dismissed.

“E.A. Cronk J.A.”

“E.E. Gillese J.A.”

“M. Tulloch J.A.”