Court of Appeal for Ontario

Citation: R. v. Dhami, 2016 ONCA 51 Date: 2016-01-18 Docket: M45880 (C58707)

Judges: MacPherson, Watt and Miller JJ.A.

Between:

Her Majesty the Queen Respondent

and

Opneet Dhami Applicant

Counsel: V. Rondinelli, for the applicant John Neander, for the respondent

Heard: January 13, 2016

Endorsement

[1] The applicant Opneet Dhami applies for an order pursuant to s. 683(1)(b) of the Criminal Code requiring that a witness (the complainant and the applicant’s ex-wife) be made available for cross-examination in the context of his appeal of his convictions for assault, sexual assault and uttering a death threat.

[2] The principal ground of appeal is that the trial judge erred in his assessment of the complainant’s credibility by concluding that she was not motivated to complain to the police by her desire to see her ex-husband deported to India. After the trial, the applicant obtained two documents from Citizenship and Immigration Canada (“CIC”) – a letter from the complainant with an affidavit and attachments and a summary on file with CIC based on the letter. The applicant wants to cross-examine the complainant about these documents to assist in his canvass of a potential fresh evidence application on the appeal.

[3] We would not grant the application. In R. v. Sihota, 2009 ONCA 770, 249 C.C.C. (3d) 22, at para. 14, Sharpe J.A. said that “[i]t will only be in exceptional cases that an appellant who has been convicted of sexual assault should be afforded the opportunity to cross-examine the complainant in aid of a fresh evidence application on appeal.” In R. v. Ibrahim, 2014 ONCA 229, at para. 4, this court said:

[T]he interests of justice require a consideration of the obvious interests of the appellant, but also the interests of the witness who is sought to be cross-examined. The interests of the witness are particularly significant when the witness is the complainant who has already testified at some length at a trial that occurred many years ago.

[4] Applying these authorities, in our view this is not an exceptional case that justifies subjecting the sexual assault complainant to renewed questioning, and it is not in the interests of justice to do so.

[5] The fact that the complainant complained about the applicant to CIC was acknowledged in crystal clear language in her cross-examination at the trial:

Q. Right. Did you call immigration as well, to let them know?

A. Yes.

Q. Right. Because you want to do everything you could to get him deported, isn’t that true?

A. Yeah. He used me…

[6] In light of this testimony, further questioning of the complainant about the details of what she said to CIC would not advance the applicant’s argument that the trial judge misapprehended the complainant’s evidence about her complaint to CIC. This argument can be fully made on the basis of the complainant’s trial testimony and the CIC documents obtained after the trial, the latter on the basis of a fresh evidence application made to the panel hearing the appeal.

[7] The application is dismissed.

“J.C. MacPherson J.A.”

“David Watt J.A.”

“B.W. Miller J.A.”