Court of Appeal for Ontario

Date: 2022-02-25 Docket: C65394

van Rensburg, Nordheimer and George JJ.A.

Between

Her Majesty the Queen Respondent

and

Joseph Issa Appellant

Counsel: David M. Humphrey and Jared L. Greenspan, for the appellant Samuel G. Walker, for the respondent

Heard: January 31, 2022 by video conference

On appeal from the conviction entered on February 9, 2018, and the sentence imposed on April 20, 2018, by Justice James W. Sloan of the Superior Court of Justice, sitting without a jury.

George J.A.:

OVERVIEW

[1] The appellant was convicted of one count of assault in relation to his wife, A.B. This one count encompassed four separate incidents of assaultive conduct. He was found not guilty on several other counts including allegations that he threatened A.B., assaulted their daughter, possessed a prohibited weapon, and possessed a firearm while prohibited from doing so. The appellant was sentenced to eight months in jail, reduced by the time spent in pre-trial custody, followed by a period of probation. Three ancillary orders were made (i.e., DNA, further weapons prohibition, and forfeiture of property).

[2] The appellant appealed against both conviction and sentence, but he did not pursue his sentence appeal. On the conviction appeal, he advances these two grounds:

i.) The verdict is unreasonable; and ii.) The trial judge provided insufficient reasons.

[3] In brief, the appellant’s argument is that the trial judge arrived at an illogical result by making and relying upon incompatible findings. In other words, having concluded that the complainant was not credible in relation to her allegation that the appellant possessed firearms, it then made no sense to rely upon her evidence to ground a conviction for assault. The appellant submits that the trial judge’s reasons on the assault charge were insufficient because they do not explain how he resolved his concerns about the complainant’s testimony.

[4] These reasons explain why I would reject that argument and dismiss the appeal.

FACTS

Evidence of A.B.

[5] The appellant and A.B. met shortly after A.B.’s arrival in Canada in 2010 on a student visa. They promptly moved in with each other; had a daughter; and remained together until separating in 2016. A.B. testified that during their relationship the appellant assaulted her four times and that, on one occasion, he assaulted their child. She further alleged that he routinely threatened to kill her. Before this complaint, she had not reported his assaultive behaviour to police.

[6] A.B. testified that on January 8, 2016, while cleaning the main floor washroom of their residence, she located under the sink a duffle bag with three firearms, some ammunition, and foreign currency. She acknowledged knowing the appellant had guns, and that guns had been in the home before, but had not previously brought it to the attention of the authorities. On her account, this time was different because she found them in a location that was easily accessible to their young child.

[7] On the same day she found these items, she spoke on the phone with the clerk of a family lawyer. She was interested in exploring her options and, possibly, pursuing a divorce. She met with the lawyer on January 11, 2016. On January 13, 2016, she attended at the police station to file her complaint. While there, she was joined by the lawyer who had her review and swear an affidavit in support of her claims for divorce, custody, support, and exclusive possession of the matrimonial home.

[8] At trial, several date-stamped photographs were tendered which showed injuries to A.B. that she said were inflicted by the appellant, as well as photographs depicting damage to a lamp, TV, and drywall. One screenshot of a text message was filed, which the complainant testified was sent by the appellant in which he apologized for threatening her with deportation and taking their child. However, this message was not a threat itself. Apart from the screenshot of the text apology, there was no independent evidence confirming A.B.’s allegation that the appellant threatened her. There was no independent evidence confirming her allegation that the appellant assaulted the child. Her evidence was that while the appellant had left a red mark on the child’s face, she did not think to take a photograph as she was more concerned with comforting her.

[9] Cross-examination focused on whether she was aware of allegations levelled against the appellant by his ex-wife, and of the nature of the financial settlement his ex-wife had received upon the breakdown of their relationship. It was suggested that A.B. was following that template to secure something similar for herself. She acknowledged being aware of the settlement, the appellant’s assaultive behaviour towards his ex-wife and their child, and of his prior convictions for assault and possessing a firearm. She denied any suggestion that this informed her decision to come forward. She denied planting the firearms.

Police Evidence

[10] On the strength of a warrant, two police officers searched the appellant’s home where they located, in the place A.B. said they would find them, a black duffle bag which contained a dark silver handgun with a black handle and unloaded magazine (located inside of a sock); rounds of ammunition (located inside of another sock); a red cardboard box containing a loaded handgun; and yet another handgun wrapped inside a white shirt (loaded with a fifteen round magazine). The bag also contained $2,344 USD and 50 Israeli new shekels. No DNA profile or fingerprints were developed on any of the seized items.

Evidence of Ed Said

[11] Ed Said was a business tenant at a property owned by the appellant. He testified that the appellant had once told him that he would “love to put … a fucking bullet in [A.B.’s] head”, and that he had “a few guns” in his home. He testified to seeing a gun taped under a toilet tank in one of the appellant’s bathrooms. He testified that, after the appellant was charged and taken into custody, the appellant called him from jail “about a hundred times” to see if he would convince A.B. to drop the charges.

[12] Mr. Said testified about his deteriorating relationship with the appellant which, according to him, had to do with the state of his rental unit. Apparently, there were issues over a proposed rate hike and questions over who would bear the cost of renovations. He did not provide a statement to the police at the time of the events, nor even after the appellant was charged. In fact, he did not reach out to provide this information until well after the preliminary inquiry and after he had demanded from the appellant $47,000 as reimbursement for upgrades to the unit he had already undertaken.

POSITIONS AT TRIAL

Defence

[13] The appellant’s position at trial was that A.B. had fabricated her allegations and planted the guns to match what his ex-wife said about him as their relationship came to an end, to secure a similar divorce settlement. He argued that she was not credible and should not be believed. Although he did not challenge the authenticity or approximate dates of the photographs, in his view, the photographs were not corroborative as they were not truly independent pieces of evidence, but rather were “entirely reliant on [A.B.’s] evidence that the marks in those photographs [were] the result of assaults as opposed to innocent falls or bumps.”

Crown

[14] The Crown argued that A.B. was both credible and reliable and ought to be believed. It argued that the photographs corroborated A.B.’s assault allegations, as did the location of the guns and money on the firearm related counts. It argued that, were A.B. intent on framing the appellant by planting a firearm, it would have made no sense to plant three of them when one would have done the job.

DECISION BELOW

[15] The trial judge made these findings:

i.) Both the complainant and Mr. Said had a motive to testify as they did. For her part, A.B. wanted to bolster her family law claims; Mr. Said to exact revenge for what he perceived to be the appellant’s unfair business practices.

ii.) Given his concerns with A.B.’s testimony on the firearm counts, and significant concerns with Mr. Said’s testimony, he was unable to conclude beyond a reasonable doubt that the appellant was guilty of the firearm offences. He did not find as a fact that she had planted them. In his reasons for judgment, he said this:

Objectively, both the complainant and Ed had a motive to testify as they did: the complainant to further her Family Law claim, and for Ed to seek revenge for what he perceived were unfair business dealings at the hand of his former friend and landlord.

The Crown has raised interesting questions in her submissions, asking:

(a) How would the complainant know where to purchase a gun? (b) Why would the complainant plant three guns, when one would have been sufficient? and, (c) Why would the complainant plant over $2,000.00 in American and Israeli funds in a duffle bag, along with the guns?

Unfortunately, from an evidentiary point of view, no DNA was found on the handguns, the magazines, or the ammunition. The Identification Officer testified that because of the level of the alleged offence – the Court assumes he meant possession as opposed to something more sinister – he was restricted to swabbing the objects and sending the swabs to the Centre of Forensic Sciences for testimony. His testimony was that when more serious crimes are alleged, the actual objects are sent to the Centre of Forensic Sciences, and that they have the ability, when the[y] have the actual object, to test for incredibly minute quantities of DNA.

Although submissions posed by the Crown with respect to the three-guns-versus-one and the cash caused the Court some concern, overall, for the reasons given above, I am unable to conclude beyond a reasonable doubt, that the accused is guilty of counts 4, 5, 6, 7, 8 or 9, and, therefore, a finding of not guilty shall be entered with respect to those counts.

iii.) Although A.B.’s testimony on the firearm charges could not be relied upon, in respect of the assault charge, the date-stamped photographs she took supported her evidence that the appellant assaulted her, and on the dates and in the manner she described. In his reasons for judgment, the trial judge said this:

Exhibit 2 shows numerous marks on the complainant’s body, and at the same time and date, pictures were taken of a broken TV, holes in the drywall and a broken lamp. The Court can come to no other conclusion, based on the evidence before it, that the complainant was assaulted just before the pictures were taken and that the accused, in what appears to have been an uncontrollable rage, threw a bedroom lamp at the wall, smashing the lamp and causing moderate damage to the drywall, after which he smashed a TV.

Although based on the evidence before the Court, it does not appear that the accused threw the lamp in an attempt to hit the complainant, it would have hit the wall within a few feet of her, certainly terrifying her.

Based on the evidence of the complainant, corroborated by the photographic evidence in Exhibits 2, 3, 4 and 5, the Court is satisfied beyond a reasonable doubt that the accused assaulted the complainant on the dates in question and conviction shall be registered with respect to count 1.

iv.) As there was no similar date-stamped photographic corroborative evidence in respect of A.B.’s allegation that the appellant threatened her and struck the child, he found the appellant not guilty on those counts.

ISSUES

[16] On this appeal, two issues arise:

i.) Did the trial judge arrive at an unreasonable verdict? ii.) Were his reasons sufficient?

ANALYSIS

Introduction

[17] The presenting issues are related and can, therefore, be addressed together.

[18] Let me start by saying that the trial result is somewhat odd as, at least on a first read, it would seem that the trial judge’s comments about A.B.’s motive to lie, and the issues he identified with her evidence on the firearm counts – and how that gave rise to a reasonable doubt – might well have applied equally to his analysis of the assault. Which is to say, the appellant’s position is at least arguable.

[19] However, though arguable, I do not agree. While I understand the appellant’s submission about “demonstrable logical incompatibility” and his position that the trial judge’s reasons reveal fundamental flaws, these were distinct counts, with different evidence, and as such it was open to the trial judge to conclude as he did.

[20] It remains the fact, however, that the reasons of the trial judge are unsatisfactory. He fails to articulate why his credibility findings regarding the guns, which he concluded raised a reasonable doubt, did not lead to a similar conclusion regarding the assault. While the trial judge may not have made a positive finding that the complainant planted, or otherwise orchestrated the presence of, the guns, that conclusion is really the only one that reasonably arises on the judge’s findings. Given that reality, the trial judge ought to have better explained why his conclusion on those counts did not suggest a similar conclusion on the assault count.

[21] Nevertheless, it seems evident that the trial judge found that the photographs confirmed the complainant’s allegation that she was assaulted, in large part because they were date-stamped – aligning them with her unshaken trial testimony that she was assaulted. The defence did not object to their provenance.

[22] It is, of course, open to a trial judge to believe none, some, or all of any witness’ evidence. The appellant’s argument that the result is logically incompatible ignores that principle. The trial judge had a reasonable doubt on one set of charges (i.e., firearms), for reasons he articulated, although not particularly well. He had concerns with the appellant’s testimony on these counts, and he had serious concerns with Mr. Said’s testimony. Therefore, he was unable to conclude beyond a reasonable doubt that the appellant was guilty. He did not have a reasonable doubt on the assault count because, while he may have had concerns with A.B.’s credibility, he found there to be evidence, namely the photographs, that confirmed her testimony. Considered in that light, the apparent inconsistency in the trial judge’s reasons is explained.

Beaudry / Sinclair

[23] That being the case, this is not an unreasonable verdict according to the principles set out in R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, and R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3; see also R. v. C.P., 2021 SCC 19, for more recent guidance. According to that line of authority, a court can intervene under s. 686(1)(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46, where a verdict is unreasonable because it is reached “illogically or irrationally”: C.P., at para. 29, per Abella J., citing Beaudry, at paras. 96-97, per Fish J. (dissenting in the result). This may occur where the trial judge makes a finding, or draws an inference, essential to the verdict that is unsupported by or plainly contradicted by the evidence, or is shown to be demonstrably incompatible with evidence that has neither been contradicted by other evidence nor rejected by the trial judge: C.P., at para. 29, per Abella J.; Sinclair, at paras. 4, 16, 19-21, per Fish J. Under the second type of unreasonable verdict, “an essential inference that appears compatible with the evidence from which it is drawn implodes on contextual scrutiny”: Sinclair, at para. 22, per Fish J. Both types of unreasonable verdict are “exceedingly rare”: Sinclair, at para. 22, per Fish J. When determining whether the verdict was reasonable, an appellate court cannot interfere with the trial judge’s assessments of credibility unless those assessments cannot be supported on any reasonable view of the evidence: C.P., at para. 30, per Abella J. It is not this court’s role on appeal to substitute our preferred findings and credibility assessments for those made and undertaken by the trial judge.

[24] In Sinclair, Charron J., in a concurring opinion, writes that:

The Beaudry test may apply in exceptional cases where the reasoning process of the trial judge is so irrational, or so at odds with the evidence, that it vitiates the verdict – even though that verdict is available on the evidence as a whole. In these rare cases, an appellate court will be justified in concluding that the verdict itself is unreasonable.

[25] This is not one of those exceptional cases. While the trial judge’s reasoning could have been much better explained, it is not “so irrational, or so at odds with the evidence” as to satisfy the Beaudry test. When read in the context of the reasons as a whole, one is able to discern what the trial judge did and why he did it. He found that the concerns he had with A.B.’s credibility were overcome by the photographs, which then led to different results across the counts. He was entitled to reach that result.

[26] While there are issues surrounding the taking of the photographs that the trial judge perhaps should have addressed, and while his reasons for finding a reasonable doubt on the firearm counts could have been more fully explained, to give effect to the appellant’s argument would be to measure these reasons against a standard of perfection, which of course we cannot do.

Additional Comments

[27] I would make these two additional points. First, while an accused person is never required to testify, and while no negative inference can be drawn from the decision not to, the fact remains that the appellant did not, so there was no other evidence advanced for how A.B.’s injuries were incurred, other than the invitation to speculate that they could have been the result of, as trial counsel put it, “innocent falls or bumps”. On a fair and complete reading of the reasons, the trial judge rejected that as a reasonable alternative explanation.

[28] Second, this case illustrates the potential risks associated with conflating independent corroboration with confirmatory evidence, which is yet another instance where the trial judge might have been a bit clearer. What I mean is, while he used the term “corroborated” when describing the photographs, it would have been better, and far more accurate, to refer to them as confirmatory or “evidence in support”. For evidence to be corroborative, it must be independent. Here, of course, the photographs were not independent in that A.B. herself took them. However, when placed in their proper context, the photographs were capable of removing any doubt one might have and of tipping the balance in favour of conviction. Again, no issues were raised as to their provenance. This was undisputed evidence of injuries, incurred at or near the time A.B. said she was assaulted by the appellant, and evidence of property damage which was consistent with the events she described.

DISPOSITION

[29] The verdict was not unreasonable, and the reasons are sufficient. I would, therefore, dismiss the conviction appeal.

[30] As the appellant did not pursue his sentence appeal, I would treat it as abandoned.

Released: February 25, 2022 “K.M.v.R.” “J. George J.A.” “I agree. K. van Rensburg J.A.” “I agree. I.V.B. Nordheimer J.A.”