Publication Ban Warning

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4 or 486.6 of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: (i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order; (b) on application made by the victim, the prosecutor or any such witness, make the order; and (c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; (b) on application of the victim or the prosecutor, make the order; and (c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall (a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order; (b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and (c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have (a) informed the witnesses and the victim who are the subject of the order of its existence; (b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances: (a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or (b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

486.6 (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor, (a) the person knowingly failed to comply with the order; (b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and (c) a warning to the individual is not appropriate.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.

Court of Appeal for Ontario

Date: 20240319 Docket: C69677

Judges: Hourigan, Thorburn and Favreau JJ.A.

Between: His Majesty the King, Respondent and Waqar Ali, Appellant

Counsel: Ariel Herscovitch, for the appellant Vallery Bayly, for the respondent

Heard: March 11, 2024

On appeal from the conviction entered by Justice D.E. Harris of the Superior Court of Justice on October 4, 2019, and from the sentence imposed on March 5, 2021, with reasons reported at 2019 ONSC 5740 and 2021 ONSC 1648.

Reasons for Decision

[1] The appellant was convicted of two counts of sexual assault and one count of assault causing bodily harm. The complainants, M.P. and S.J.S., were both intoxicated young women who the appellant approached and offered to drive home. He was sentenced to a global sentence of 22 months, consisting of nine months on each sexual assault consecutive, and four months consecutive for the assault causing bodily harm conviction.

[2] On his conviction appeal and application for leave to appeal sentence, the appellant advances several grounds of appeal; none of them are availing. At the conclusion of the appellant’s submissions, we dismissed the appeal with reasons to follow. These are our reasons.

[3] First, the appellant submits that the application judge erred in failing to grant a stay of proceedings pursuant to sections 11(b) and 24(1) of the Charter in relation to the M.P. charges. This argument is based on the unique procedural history of the case. The appellant was initially charged on June 14, 2016, with one count of sexual assault and one count of assault causing bodily harm on M.P. as a result of an incident that took place in Toronto on June 12, 2016. In September 2017, the defendant sought an adjournment of the trial dates that had been set in January 2018. New dates for trial in August 2018 were scheduled.

[4] In June 2018, the appellant was charged with one count of sexual assault against S.J.S. and one count of theft arising from an incident that occurred in Peel. In July 2018, the August 2018 trial date that had been set for the Toronto charges was vacated when the Toronto and Peel charges were joined. A trial date for both sets of charges was scheduled for June 3 to 14, 2019.

[5] The application judge dismissed the s.11(b) motion, finding, among other things, that the period from January 10, 2017 to March 28, 2017 was defence delay because the Crown and court were ready to proceed but the defendant was not. The delay between January 2018 to July 24, 2018 was also held to be attributable to the defence because it flowed from the defendant’s decision to adjourn his original trial date for the Toronto charges that was scheduled for January 2018.

[6] The appellant submits that when the Crown combined the two sets of charges, any defence delay became attributable to the Crown. He cites no authority for this proposition, and we are not persuaded by it. The application judge correctly found on the facts that the periods in issue should be categorized as defence delay. The vacating of trial dates does not change those factual findings and does not transform defence delay into Crown delay.

[7] Second, the appellant submits that the trial judge erred in granting the Crown’s count-to-count similar fact application. In making that order, the trial judge relied on, among other things, the fact that the appellant’s DNA was found on the breasts of both complainants. The appellant says that the trial judge lowered the standard for granting the application by permitting it in a circumstance where there were only two acts, whereas the jurisprudence he relied on consisted of cases where there were multiple acts.

[8] We reject this argument. The trial judge was well aware of the factual differences between this case and the caselaw he cited. Indeed, he specifically commented on it. There was nothing improper in finding that the presence of the appellant’s DNA on each complainant’s breasts was probative of whether the appellant sexually assaulted the complainants, particularly given the similarities in the appellant’s interactions with each complainant. Further, there is no requirement that more than two instances of similar facts must be present for a court to grant a similar fact application.

[9] Third, we also reject the related submission that the trial judge did not consider alternative explanations about how the DNA was deposited on M.P.’s breast. This is inaccurate. The trial judge considered the possibility of an innocent deposit and rejected it. He found that there was no possible innocent explanation for the appellant’s DNA on S.J.S.’s breasts given that she was wearing four layers of clothes that night. He further concluded that it would be a coincidence that “boggles the mind” for the appellant’s DNA to have been innocently deposited on M.P.’s breast. That finding was open to the trial judge on the evidence and there is no basis for appellate interference.

[10] Fourth, the appellant submits that the trial judge erred in his assessment of the appellant’s credibility. In particular, he relies on the trial judge’s analysis of the issue of what vehicle the accused was driving at the time of the assault of S.J.S.

[11] At trial, there was evidence that a minivan was at S.J.S.’s house. The appellant drove for Uber. He had previously registered a Nissan sedan car and a Dodge Caravan minivan with Uber as his vehicles. The appellant told Uber that he was driving his minivan that night. However, he testified that he was actually driving his Nissan sedan that evening and that he would often tell Uber that he was driving the larger vehicle to get better fares.

[12] The trial judge rejected the appellant’s evidence, including his statement that he had previously transported six people in his Nissan. He found this claim to be “a ridiculous and impossible explanation.” The appellant relies on R. v. Kruk, 2024 SCC 7, for the submission that this finding was an error of law because it was based on no evidence and was an improper use of judicial notice. We disagree. To the contrary, this was precisely the type of common sense inference that the Supreme Court in Kruk found attracts judicial deference and should be considered on a standard of palpable and overriding error. We are not convinced that the trial judge made any such error.

[13] On the sentence appeal, the appellant’s counsel conceded that the sentence is fit. However, he submits that the trial judge erred in finding a breach of trust as an aggravating factor on the basis that the appellant was a professional driver. The appellant argues that he was not connected to the Uber app at the time of the assaults and there was no evidence that the complainants understood that he was a professional driver.

[14] Without deciding that a breach of trust cannot arise in these circumstances, we reject this argument. As stated by the Supreme Court in R. v. Nahanee, 2022 SCC 37, 474 D.L.R. (4th) 34, at para. 61, where “no error in principle is established, or the error in principle does not have an impact on the sentence, then the only potential remaining ground of appeal will be whether the sentence is demonstrably unfit.” We are not satisfied that the alleged error had any impact on the sentence imposed. Further, as conceded by the appellant, the sentence was fit. Therefore, we would not give effect to the sentence appeal.

[15] In the result, the conviction appeal is dismissed. Leave to appeal sentence is granted, but the sentence appeal is also dismissed.

“C.W. Hourigan J.A.”

“Thorburn J.A.”

“L. Favreau J.A.”