ONTARIO COURT OF JUSTICE

Date: 2021-04-13 Newmarket

Parties

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JAMAL YUSUF AND JAMIS YUSUF

Ruling on Application to Re-Open

Evidence and Submissions Heard: 13 April, 2021. Delivered: 13 April, 2021.

Counsel: Mr. Peter Westgate, Mr. Michael Ventola — counsel for the Crown Ms Sonya Shikhman — counsel for the defendants/applicants

KENKEL J.:

Introduction

[1] Mr. Jamal Yusuf called 911 and said an injured male had wandered into his restaurant while he was cleaning. Police attended and later found a security video recorder that Jamal Yusuf had placed in an oven. A subsequent investigation including a review of that video led to Mr. Jamal Yusuf, his brother Jamis and Mr. Aziz Pauls being charged with Aggravated Assault and Forcible Confinement.

[2] Jamal and Jamis Yusuf were convicted at trial of Assault Causing Bodily Harm s 267 and Forcible Confinement s 279(2). After conviction the defence brought a s 11(b) application which was granted.

[3] The Crown appealed the s 11(b) stay of proceedings and the Yusufs appealed the findings of guilt to the Court of Appeal. The decision reported as R v Pauls, 2020 ONCA 220, set aside the stay of proceedings. The conviction appeals were dismissed. A further appeal to the Supreme Court of Canada on the s 11(b) issue was heard and dismissed with reasons reported as, R v Yusuf, 2021 SCC 2. The case was returned to this court for sentencing.

[4] The defence filed an application to reopen the trial based on an affidavit by a witness who said he wanted to change his testimony. The Crown response provided strong reasons why that application failed to meet any aspect of the test for reopening and should be dismissed without a hearing. Just before the application was to be heard, the defence abandoned that approach and filed a new application.

[5] The current application is based on a recent affidavit by the co-accused Aziz Pauls. Mr. Pauls is to be sentenced on one count of assault causing bodily harm arising out of the same incident. These reasons explain why I find this application fails to meet the test to reopen and must be dismissed.

Continuation of Proceedings

[6] The judgment in this trial was delivered almost four years ago. Since then the matter has been to the Ontario Court of Appeal and the Supreme Court of Canada. In the interim Justice Gorewich, one of Newmarket’s most distinguished judges, completed his years of service. These proceedings are continued under s. 669.2 of the Criminal Code.

The Trial Decision

[7] The reasons of the trial judge set out in extensive detail the evidence heard at trial, which is helpful on this continuation.

[8] The trial judge specifically considered the defence advanced in this application, that Mr. Pauls was the aggressor and that the Yusuf brothers did not assault or unlawfully confine the complainant. The court made many findings of fact in favour of the defendants, but ultimately it was the surveillance video evidence that reliably showed the actions of each party.

[9] In the circumstances, the court found there was no evidence that the complainant consented to the altercation and the assertion of self defence lacked any “air of reality”. The Yusufs were both found guilty of assault causing bodily harm and forcible confinement.

The Appeals

[10] In the Court of Appeal, Mr. Jamal Yusuf and Mr. Jamis Yusuf advanced the same argument – that Mr. Pauls was the person who injured the complainant and that the Yusufs used minimal force, aimed at protecting the complainant from Pauls or acting in self-defence or with consent to restrain the complainant – Pauls at para 85.

[11] The Court of Appeal found no error, mentioning at paragraphs 105 and 107 the restaurant surveillance video as the anchor for the trial judge’s findings of fact. The convictions were affirmed.

[12] A further appeal to the Supreme Court of Canada on the s 11(b) issue only was dismissed.

The Application to Reopen

[13] This application is based on an affidavit by the co-accused, Aziz Pauls. Mr. Pauls did not testify at trial, but in his recent affidavit he says he wants to tell the court “what actually happened that night”.

[14] He states at paragraph 9, “Some of the details are of course hazy because of how much time has passed…” but he can “say clearly” that the Yusuf brothers had no conflict with the complainant “at any point really”. He states at paragraph 11 that Jamal was simply trying to calm down the complainant and pacify the situation. Contrary to the court’s finding of forcible confinement, Mr. Pauls says at paragraph 12 that the opposite actually happened – it was the complainant who would not let anyone leave.

Re-Opening After Conviction

[15] A trial judge has the discretion to re-open a trial after a conviction has been registered. It is a power which should only be exercised in exceptional circumstances and where its exercise is clearly called for – R v Lessard, [1976] OJ No 74 at para 12. Justice Rosenberg explained that the phrase “exceptional circumstances” captures the essential point that it will only be in very rare cases that a judge would reopen a conviction R v Griffith, 2013 ONCA 510 at para 23. The principle recognizes the strong interest in finality as well as the fact that Parliament has established a generous appeal process that is primarily responsible for reviewing criminal adjudications – Griffin para 24.

[16] The longer the time that has elapsed between the finding of guilt and the proposed reconsideration of the verdict, the greater the risk of an appearance of unfairness or the possibility of a tainted decision-making process – Griffin at para 26.

[17] The general test for re-opening the defence case prior to adjudication was set out in R v Hayward, [1993] OJ No 2939 (CA). Once a trial judge has convicted the accused, a more rigorous test is required to protect the integrity of the process – R v Kowall, [1996] OJ No 2715 (CA) at para 31. The Kowall test:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases;

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

(3) The evidence must be credible in the sense that it is reasonably capable of belief;

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

(5) The application to reopen must not be an attempt to reverse a tactical decision made at trial.

[18] Courts must not permit litigants to bring successive legal arguments in the event that their primary argument fails to win the day. A trial is not a preliminary hearing that allows the parties to recast their arguments depending upon the reasons for judgment – R v Theriault, 2020 ONSC 5725 at para 11 and Kowall at para 40.

Analysis

[19] I agree with the defence that this is not the situation described in Theriault, where the defence seeks to bring new arguments and recast their case based on the judgment at trial. This application involves the opposite – the applicants are relying on the same defence that was rejected at trial and on appeal, but they’re asking that the defence be reconsidered in light of new evidence.

[20] The proposed evidence is potentially relevant, and I’m satisfied it could not have been adduced at trial. The application is not an attempt to reverse a tactical decision. I agree with Ms. Shikhman that the two issues on this application are whether the evidence is credible in the sense of being reasonably capable of belief, and whether if believed, the evidence could have affected the result.

[21] The Crown’s case against Mr. Pauls was strong enough that he entered a plea of guilty to assault causing bodily harm at the close of the Crown’s case. The arrival of an affidavit almost two years later in which he puts the blame on the complainant for the altercation, minimizes his own conduct in relation to events not captured on the video and seeks to absolve his two co-accused by repeating their defence does little to inspire confidence in the contents.

[22] To assess whether the evidence is reasonably capable of belief, the statements in the affidavit must be considered in light of the evidence at trial and the findings of fact made by the trial judge.

[23] The trial judge specifically considered the defence advanced in this application to reopen, including Mr. Jamal Yusuf’s testimony to the same effect. At paragraphs 22-38 he reviewed the evidence of the complainant in detail including time references to the parts of the video that showed specific actions of assault by each of the accuseds and confinement by Jamal and Jamis Yusuf. Paragraphs 30 to 34 focused on the submissions of Ms. Shikhman at trial with respect to this defence.

[24] At paragraph 103 Justice Gorewich found that Mr. Jamal Yusuf’s evidence was not credible given the video evidence to the contrary. His Honour found that the submission that Jamal Yusuf was the protector of the complainant “did not reflect reality”. At paragraph 104 he noted that the actions of both Yusuf brother’s and Mr. Pauls in assaulting the complainant were “clearly visible on the video”. At paragraph 114 the court referred to Mr. Jamal Yusuf’s own evidence that he told the complainant, “It is three against one” as a clear summary of the joint participation of all three parties in the incident as shown on the video. In the circumstances, the court found there was no evidence that the complainant consented to the altercation and the assertion of self defence lacked any “air of reality”.

[25] The affidavit of Mr. Pauls runs into the same evidentiary hurdle identified at trial and on appeal – the video evidence. Two courts have found that the defence being asserted does not reflect the reality of what is shown on the video. There’s nothing in the proposed evidence of Mr. Pauls that could reasonably be found to be credible in that context.

[26] Even if the trial were reopened and the evidence of Mr. Pauls was considered, the trial judge’s reasons show that his could not affect the result on either court given the video evidence and the evidence of the key portions of the complainant that were found to be credible.

[27] There is a strong interest in finality in criminal proceedings and both applicants have had the benefit of the appeal process with respect to these convictions and this defence. This is not an exceptional case where the trial must be reopened, and it would be unfair to the Crown to do so.

Conclusion

[28] If there were any new evidence reasonably capable of belief, that could potentially leave a reasonable doubt in relation to either accused on either count, I would not hesitate to allow the application. I find the proposed evidence fails to meet that test and it would be contrary to the interests of justice to reopen this trial.

[29] The application is dismissed.

Delivered: 13 April, 2021. Justice Joseph F. Kenkel