Court of Appeal for Ontario

Date: 2017-05-09 Docket: C61948

Panel: Doherty, MacFarland and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

Rabih Hamade Appellant

Counsel

Erica Tanny, for the appellant Jennifer Epstein, for the respondent

Heard and released orally: May 9, 2017

On appeal from: the conviction entered by Justice Julie Bourgeois of the Ontario Court of Justice on January 15, 2016.

Reasons for Decision

[1] We appreciate counsel for the appellant's careful and thorough submissions. We do not, however, agree with those submissions.

[2] The Crown witness, Bonney, presented various difficulties to all involved in the trial. Eventually, the trial judge held, based primarily on Bonney's near recantation of his evidence in-chief during his re-examination, that the Crown would be allowed to cross-examine Bonney on a statement he had given to the police the night of the assault. That statement was consistent with Bonney's evidence in-chief, but inconsistent, both with his cross-examination and his re-examination.

[3] Counsel for the appellant argues that Crown counsel's re-examination was inappropriate and that without the inappropriate re-examination, the possibility of cross-examining Bonney would never have arisen.

[4] In our view, counsel's re-examination was appropriate. In cross-examination, Bonney had indicated that he really could not be sure about the accuracy of his memory in relation to anything that had happened on the night in question because of his ongoing drug abuse and other matters. Crown counsel was entitled to re-examine Bonney on exactly what he could and could not remember. Bonney's response, which identified for the first time someone other than the appellant as the perpetrator of the assault no doubt came as a surprise to Crown counsel. The answer, however, did not affect the propriety of the question. The re-examination was proper and led to the inconsistencies which triggered the Crown's application under s. 9 of the Canada Evidence Act.

[5] The Crown sought to cross-examine Bonney on his statement pursuant to s. 9(1) of the Canada Evidence Act. We are satisfied that it was open to the trial judge, based on the changes in Bonney's evidence, to find that Bonney was adverse to the Crown and could be cross-examined on his statement. Indeed, it seems to us that the trial judge could well have gone further and made a finding of hostility, justifying cross-examination at large. The trial judge was not asked, however, to make that finding.

[6] It may be that part of the cross-examination went beyond the proper limits of cross-examination on the statement made to the police. However, the main focus of the cross-examination was that statement.

[7] Even if the cross-examination went beyond cross-examination on the statement, we see no prejudice to the appellant. The cross-examination, apart from cross-examination on the statement, really did not advance the Crown's case, or impair Bonney's credibility. He simply repeated on several occasions that he genuinely did not have a clear memory of what had happened.

[8] The trial judge's reasons at the end of the trial demonstrate a full appreciation of Bonney's evidence and the various inconsistencies in that evidence. She fully described the evolution of his testimony over the course of the trial. It was open to her as the trier of fact to accept Bonney's initial version of the events. She was aware that there were serious credibility concerns associated with Bonney's evidence. She properly looked for evidence capable of supporting his testimony. In our view, she made no error in accepting Bonney's initial version of the relevant events.

[9] The second ground of appeal relates to the trial judge's fact-finding. The trial judge was required to look at the totality of the circumstances in making the findings which eventually led to her verdict. We think it was open to her on the entirety of the evidence to make the findings she did as they related to the nature of Bonney's injuries, the cause of those injuries, and the location in the apartment where the injuries were inflicted. On the totality of the circumstantial evidence, it was open to the trial judge, particularly bearing in mind her acceptance of Bonney's evidence in-chief, to conclude, beyond a reasonable doubt, that the appellant was the assailant. We note that the appellant did not testify.

[10] The parties agree that the conviction on the charge of assault with a weapon should be stayed on the basis of R. v. Kienapple, [1975] 1 S.C.R. 729. We so order, otherwise the appeal is dismissed.

"Doherty J.A."

"J. MacFarland J.A."

"B.W. Miller J.A."