SUPERIOR COURT OF JUSTICE – ONTARIO

Summary Conviction Appeals – Toronto Region

Court File No.: CR-11-70000098-00AP
Date: 20120411

RE: HER MAJESTY THE QUEEN, Respondent

AND:

MOHAMMED KAMEL BENKARTOUSSA, Appellant

BEFORE: McWatt J.

COUNSEL:
Carmel Penney, for the Respondent
Jonathan Dawe, Steven Skurka, for the Appellant

HEARD: April 10, 2012

ENDORSEMENT

[ 1 ] Mr. Benkartoussa was found guilty of two counts of Indecent Act by His Honour Judge Wolski of the Ontario Court of Justice on May 6, 2011. He appeals that conviction on the grounds that His Honour failed to apply the appropriate burden of proof on the Crown to disprove an alibi to the second count before him beyond a reasonable doubt - in effect, reversing the burden of proof.

[ 2 ] Secondly, the Appellant submits (and the Crown concedes) that the learned trial judge erred when he drew an adverse inference against the Appellant’s credibility because he disbelieved the alibi evidence. The Crown contends that this error can be cured by the curative proviso as there was no substantial wrong or miscarriage of justice caused by the trial judge’s error in this regard.

[ 3 ] In relation to the first ground of appeal, I find that there was enough evidence for the trial judge to disbelieve the alibi presented at trial by the appellant. He found that there was nothing independent in Ms. Meyer’s mind or the document she filled out on November 24, 2008 that established an alibi for the second count of Indecent Act. He also did not believe the accused that he was not present during the commission of the offence. On a reading of his entire reasons, it was clear that the alibi did not raise a reasonable doubt in his mind and that he was satisfied beyond a reasonable doubt based on all of the other evidence, which he did accept, that the appellant was guilty of the offences. He did not reverse the burden of proof.

[ 4 ] Where the real problem lies, however, is the trial judge’s adverse inference drawn from his disbelief of the alibi.

[ 5 ] In concluding, without evidence of deliberate fabrication, that he could use the rejected alibi as “another inference” that the accused’s evidence was “unreliable”, “incredible” and a “total sham”, the trial judge found that the appellant must have committed the offences. In spite of indicating that his disbelief in the alibi was “another” reason not to believe the appellant, it was the only one he articulated. This error appears on the record to be the basis for his rejecting the appellant’s evidence in its entirety on count 2.

[ 6 ] The two counts were factually intertwined. The complainants were sisters who discussed the events with their parents before going to the police. A reasonable doubt on count 2 may have also contributed to a reasonable doubt on the first count. The error in relation to the use of the rejected alibi fatally undermines the verdict on both counts.

[ 7 ] As a result, the appeal is allowed. A new trial is ordered.

McWatt J.

Date: April 11, 2012