COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Siddiqi, 2015 ONCA 548

DATE: 20150724

DOCKET: C59170

Watt, Brown and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shakib Siddiqi

Appellant

Lance Beechener, for the appellant

Gavin MacDonald, for the respondent

Heard: July 3, 2015

On appeal from the conviction entered on May 29, 2014 and the sentence imposed on July 17, 2014 by Justice Lorne E. Chester of the Ontario Court of Justice.

ENDORSEMENT

A. Overview

[1] The appellant, Shakib Siddiqi, was convicted of one count of assault and two counts of assault with a weapon, for pushing his 73-year old aunt to the floor and hitting his 17-year old daughter with a piece of wire and with a laptop computer. He appeals his convictions and his sentence of nine months’ incarceration.

[2] At the hearing of the appeal on July 3, 2015, we dismissed the appeal, with reasons to follow. These are those reasons.

B. Conviction appeal

[3] In respect of his conviction, the appellant advances three grounds of appeal: (i) the trial judge demonstrated a reasonable apprehension of bias rendering the trial unfair; (ii) the trial judge misapprehended the aunt’s evidence; and (iii) the trial judge erred in his use of his daughter’s KGB statement to the police.

Reasonable apprehension of bias

[4] To place the argument about reasonable apprehension of bias in context, the appellant was born in Afghanistan, then moved with his parents to India at the age of 16. Thirteen years later, he and his wife moved to Canada. The events for which charges were laid took place in the family’s home in Richmond Hill.

[5] The appellant submits the trial judge permitted inappropriate cultural stereotypes to enter into his reasoning process, thereby giving rise to a reasonable apprehension of bias. He contends that at trial Crown counsel pursued a line of questioning of the appellant’s daughter “aimed at exposing a cultural basis for the Appellant’s actions and for the reluctance of [the daughter and aunt] to testify against him.” The appellant argues that in his reasons for judgment and sentence the trial judge made comments that revealed he approved of the Crown’s theory, pointing to the following language:

(i) In his judgment, the trial judge noted that it was obvious the daughter did not want to be in court testifying against her father and that she “perceived herself as to be between a rock and a hard place.” In his sentencing reasons, the trial judge repeated that the daughter was between a rock and a hard place when she testified and, he continued: “She was under restraints of being the daughter of the accused and cultural restraints and familial restraints – constraints I guess is a better word, when she testified”;

(ii) In his judgment, the trial judge also observed that when the daughter gave her KGB statement to the police she swore on the Qur’an, whereas she affirmed when she gave her evidence at trial;

(iii) In the pre-sentence report, the appellant’s wife had described her husband as “overall he’s a good person.” In commenting on that description in his reasons for sentence, the trial judge stated: “But I find that she, based on her daughter’s testimony, that she too is constrained by marriage, culture and ethnicity”;

(iv) Finally, in his sentencing reasons, the trial judge stated that the “offences need to be denounced and Mr. Siddiqi has to be specifically deterred from committing those kinds of violent offences in the future.” He continued: “Just as importantly, the community, whether it is the Afghan community or any other community regardless of their culture or religion, there has to be a message sent out that there has to be a respect for the law but also for the person.”

[6] We see no merit in this submission. To ascertain whether a reasonable apprehension of judicial bias exists, one must ask the question: “What would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude? Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly?” Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at pp. 394-395. When that question is asked of the reasoning of the trial judge disclosed in his judgment and reasons for sentence, the answer is that they disclose no reasonable apprehension of bias. The trial judge’s judgment and sentencing reasons, when read fairly and in their entirety, disclose that he did not rely upon cultural factors in convicting and sentencing the appellant.

[7] First, the premise of the appellant’s submission – i.e. that the Crown pursued a line of questioning “aimed at exposing a cultural basis for the Appellant’s actions and for the reluctance of [the daughter and aunt] to testify against him” – is not supported by the trial transcript. During the course of her evidence-in-chief, the daughter testified that her parents’ desire to have boys was “a cultural thing,” but they were content with what they had “regardless of traditional beliefs.” The Crown then asked how her parents would view calling the police to deal with a family matter, and the daughter responded that had nothing to do with the family’s value system. The respondent submits that these questions were not improper, but were directly responsive to the witness’s own testimony. We agree.

[8] Second, while acknowledging that the trial judge made no reference to cultural matters in his judgment, the appellant argues that his use of the phrase “between a rock and a hard place” in his sentencing reasons did contain a cultural dimension that indicated his trial reasons had been tainted. At one place in his sentencing reasons, the trial judge repeated that the daughter was “between a rock and a hard place,” and he continued: “She was under restraints of being the daughter of the accused and cultural restraints and familial restraints – constraints I guess is a better word, when she testified.” Later in his sentencing reasons he explained what he meant by the phrase “between a rock and a hard place”:

Just to give a flavor of what I mean by between a “rock and a hard place”; the officer testified as to his observations when he arrived at the front door. He met with the complainant…” She asked us…” – that being a couple of officers - “…to escort her upstairs. She did not want to be seen talking to the police because her father may hurt her if she does. She was extremely nervous and frightened. She wanted to be separated. She was panicking. She wanted to get the police isolated away from her father and she was shaking.”

[9] A trial judge’s reasons must be read fairly and as a whole. Reading the trial judge’s reasons in that fashion, it is clear that his repeated use of the phrase “between a rock and a hard place” did not signify that any sort of impermissible cultural stereotyping had entered into his reasoning. He merely used the phrase to describe that the daughter felt she was in a very difficult situation making allegations against her father and testifying against him and, as well, to compare her demeanour at trial with that which she displayed when giving her KGB statement. There was no cultural dimension to his use of the phrase. People of all cultures likely will find it difficult to testify against their own family in a criminal trial.

[10] Third, the trial judge did observe that the daughter gave her KGB statement under oath, whereas she affirmed at trial. However, there is nothing in his judgment to indicate he gave more weight to her KGB statement because it was under oath, rather than by affirmation, as was her trial testimony.

[11] Next, the trial judge’s comments on the statements attributed to the appellant’s wife in the pre-sentence report must be read in the context of his overall analysis of the evidence and information relating to mitigating factors. The sentencing reasons disclose that the trial judge discounted the wife’s description of her husband as “a good person” because of the daughter’s statement to the police that her mother had told her to excuse her father’s conduct and because of the statements of the appellant’s mother-in-law in the pre-sentence report that since his arrest, the appellant had “improved and is okay now.”

[12] Finally, with the respect to the trial judge’s mention of the “Afghan community or any other community” in his sentencing discussion about denunciation and general deterrence, we do not see his references to the specific community of the appellant as well as to the more general community at large as giving rise to a reasonable apprehension of bias. When his sentencing reasons are read as a whole, there is nothing to suggest that the trial judge treated the appellant’s ethnic origins as a factor in his sentencing analysis: R. v. Zheng, 2014 ONCA 345, at para. 12.

Misapprehension of evidence

[13] The only witness called at trial by the appellant was his aunt who denied the appellant had assaulted her. The trial judge put very little weight on the aunt’s evidence, stating that she was “an elderly lady, 75 years of age, suffering from depression and admitted issues with her memory and that ‘her head is not right’.” The appellant submits that the trial judge misapprehended the aunt’s evidence because she did not testify that her “head was not right.”

[14] We agree that the trial judge was mistaken about this part of the aunt’s evidence – she did not testify that her “head was not right.” We do not agree, however, that the trial judge misapprehended the substance of material parts of the aunt’s evidence or that his error played an essential part in the reasoning process resulting in a conviction: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), p. 221. Part of the material substance of the aunt’s evidence was that her memory was poor – she admitted in cross-examination that she had issues with her memory, as noted by the trial judge in his judgment. Accordingly, we conclude that the trial judge did not misapprehend the substance of the aunt’s evidence.

The daughter’s KGB statement

[15] The trial judge admitted into evidence a statement the appellant’s daughter had given to the police on the day they were called to the family home. The trial judge preferred the evidence the daughter gave in her statement to the police to that she gave at trial. In reaching that conclusion, he relied on the daughter’s demeanour and the contrast between the manner in which she gave her statement to the police as compared to her reluctance to give evidence against her father at trial.

[16] The appellant submits that the trial judge erred in relying so heavily on the contrast in the daughter’s demeanour between her evidence in the statement and her evidence at trial. We do not agree. The trial judge gave detailed reasons why he preferred the evidence given by the daughter in her statement to the police. In R. v. K.G.B., 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, at p. 804, the Supreme Court of Canada expressly stated that when determining the appropriate weight to be given to a KGB statement, a trier of fact could take into account “the demeanour of the witness at all relevant times (which could include making the statement, when recanting at trial, and/or when presenting conflicting testimony at trial).” When his reasons are read as a whole, we are not persuaded that the trial judge placed disproportionate weight on demeanour in relying on the KGB statement. Accordingly, we see no error in the trial judge’s substantive use of the daughter’s KGB statement.

C. Sentence appeal

[17] The trial judge sentenced the appellant to six months for the assault of his daughter with the wire, two months consecutive for the assault of his daughter with her laptop computer, and one month consecutive for the assault of his aunt.

[18] The appellant submits that the trial judge erred in principle in imposing that sentence for several reasons: (i) his reasoning was influenced by the use of cultural stereotypes; (ii) he did not treat the appellant’s first offender status as a mitigating factor; and (iii) he treated the appellant’s lack of insight into his conduct as an aggravating factor.

[19] As discussed above, we do not accept the appellant’s submission that the trial judge’s reasoning was tainted by the use of cultural stereotypes.

[20] Although the trial judge did not include in his list of mitigating factors the fact that the appellant was a first offender, it is clear from other parts of his sentencing reasons that the trial judge was quite alive to that fact.

[21] It is true that the trial judge identified as an aggravating factor the appellant’s “lack of insight here as to what he has done and that he has put himself above the law.” To use lack of remorse as an aggravating factor in sentencing, absent unusual circumstances, is an error in law: R. v. Ling, 2014 ONCA 808, at para. 12. That said, although the trial judge’s error in principle requires this court to consider the fit sentence to impose on the appellant in the circumstances, in accordance with the totality principle we agree with the trial judge that a global sentence of nine months is a fit sentence for these three assaults in the domestic context.

D. Disposition

[22] For these reasons, the appeal from conviction is dismissed. Leave is granted to appeal the sentence, but the appeal from sentence is dismissed.

“David Watt J.A.”

“David Brown J.A.”

“L.B. Roberts J.A.”