SUPERIOR COURT OF JUSTICE – ONTARIO

SUMMARY CONVICTION APPEAL COURT

COURT FILE NO.: SCA(P) 1385/11
DATE: 20120326

RE: HER MAJESTY THE QUEEN
Respondent

v.

SAADULLAH KHAN
Appellant

BEFORE: WEIN J.

COUNSEL:
N.J. Bridge, for the Crown Respondent
M. Morten, for the Appellant

ENDORSEMENT

[On summary conviction appeal from the judgment of Schwarzl J. of the
Ontario Court of Justice dated August 24, 2011]

[ 1 ] The appellant was convicted of assault, and was sentenced to a fine of $200 plus probation.

[ 2 ] A police officer was conducting surveillance from a parking lot, and happened to see an argument in a vehicle between the appellant and his former girlfriend. He heard the arguing for about 15 or 20 minutes and then saw the girlfriend, Ms Arsalon, slap the appellant in the face. The appellant responded with three open hand strikes to the facial area and as the officer got out of his vehicle and ran towards them, the appellant continued to slap Ms Arsalon several more times before the officer was able to intervene. The victim had blood on her tooth and a cut on the inside of her teeth and top of her lips. As well, her cheeks were swollen and puffy. The appellant apologized to the officer and Ms Arsalon asked that the appellant be let go. The appellant testified that he responded to being slapped, with two slaps. He also said that Ms Arsalon bit him and continued to bite him. He thought blood on Ms Arsalon’s teeth was actually his blood and testified that he showed the officer some marks on his arm. The complainant did not require medical attention and there were no pictures introduced as exhibits. It is argued on behalf of the appellant that there ought to have been photographs, but given the nature of the charge, which is common assault not assault bodily harm, the nature of any injuries is not an essential element.

[ 3 ] It is argued that the trial judge misapprehended the relevant evidence and failed to consider or give appropriate weight to the inconsistencies between the complainant’s evidence and the officer’s evidence, and the internal inconsistencies in the complainant’s evidence itself. For example, the complainant indicates she was hit two or more times while the officer-in-charge indicated the slaps were in excess of seven times or closer to ten times.

[ 4 ] It is also argued that the reasons of the trial judge do not adequately provide reasons for rejecting the evidence of the appellant. However, reading the reasons as a whole, it is clear that the trial judge rejected the evidence of the appellant in the context of the objective evidence of the officer who saw the incident. He specifically rejected the evidence that the appellant was injured or that he was acting in self-defence.

[ 5 ] In my view, the trial judge did not misapprehend the evidence, or fail to appreciate the differences between the evidence of Ms Arsalon and the officer’s evidence. The difference between being struck with a fist or a slap was referred to in the reasons, as was the discrepancy with respect to the number of times the victim was hit. The trial judge clearly relied on the independent evidence of the officer who did not give a precise number of slaps, but whose evidence supported the finding of “as many as ten times”, and in my view it cannot be said that the consideration of the evidence in the reasons resulted in any failure to assess the credibility of witnesses or reliability of the evidence. In his reasons, the trial judge clearly indicated that he was relying on what he found was the “independent, careful, unbiased and reliable” evidence of the officer, and accepted the evidence that the appellant slapped the victim as many as ten times, in anger and not self-defence, in full view of the policeman, who neither the complainant nor the accused knew was watching.

[ 6 ] It is quite clear from the reasons that the trial judge applied the correct standard of proof and effectively used the approach recommended by the Supreme Court of Canada in R. v. W.D.

[ 7 ] With respect to the appeal against sentence, the trial judge imposed a nominal fine and one year probation, and the reasons disclosed no error in principle with respect to sentence. Objection is taken to the fact the court explained to the self-represented accused at trial, in reference to sentencing “I must punish you”, but this was not an inappropriate term. It is a term used in the Criminal Code , for example throughout s. 718.3 , which defines punishment generally. The quantum of sentence in any event was modest and unobjectionable.

[ 8 ] Accordingly, this appeal must be dismissed as to both conviction and sentence.

Wein J.

DATE: March 26, 2012