COURT FILE NO.: 12-7-10-00AP
DATE: 20121114
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SALAMEH MARJI
Appellant
Randy Schwartz, for the Respondent
Alan D. Gold, for the Appellant
HEARD: October 17, 2012
McWatt J.
RULING
[1] The appellant is a police officer convicted of assault and sexual assault by Her Honour Justice Lucia Favret. He was sentenced to 30 days in jail for punching the 20 year old victim in his face, slamming his head against the hood of a police cruiser, kneeing and elbowing the victim and grabbing and squeezing his testicles while asking him “how does that feel?” All of this took place within the context of a roadside stop where a group of officers from a Tavis (Toronto Anti- Violence Intervention Strategy) unit of the Toronto police were looking for criminal activity in an area known to be full of drug trafficking and gang violence.
[2] The appellant appeals conviction and sentence. Part of the conviction appeal relates to the trial judge’s dismissal of a s. 11(b) Charter application. The trial took place on January 17 to 21 and March 7, 2011. Constable Marji was convicted on June 27, 2011. Reasons for the conviction were released November 21, some 5 months later. The appellant was sentenced on February 15, 2012.
The Facts
[3] The Crown called three witnesses: the complainant, Mr. Phillip Pham-Ho, a 20 year old student; his friend and passenger in the vehicle the complainant was driving, Mr. Paul Doan; and Dr. Panhaj Chand, a physician who examined Mr. Pham-Ho’s injuries.
[4] Mr. Pham-Ho lived with his family in Kitchener. He studies biochemistry at university and worked as a sales representative in a cell phone store. He does not drink and does not have a criminal record. Defence counsel conceded at trial that he was “a young, basically decent kid”.
[5] Mr. Doan was 18 years old on the date in question – September 2, 2009. He also lived at home with his parents. He was a high school graduate who was in a college program intended to steer him towards becoming a police officer. He also worked in a shoe store and has no criminal record.
[6] Dr. Chand did a follow-up examination of Mr. Pham-Ho after the victim first went to the Kitchener urgent care centre due to the pain from his injuries. He testified he found objective evidence of the victim’s reported injuries. There was bruising on Mr. Pham-Ho’s left wrist, tenderness on his left thigh and knee and tenderness under his right scrotum. The doctor ordered a testicular and scrotal ultrasound due to his concern about injury to the victim’s scrotum. The tests showed no internal damage to Mr. Pham-Ho’s testicle.
[7] The trial judge found the following as fact about the incident:
[8] The complainant and Mr. Doan were in Toronto on their way to pick up a third male who would go back with them to Kitchener for the night. The three would then go to Canada’s Wonderland the next day.
[9] The victim and Mr. Doan were travelling westbound on Lawrence Avenue at up to 75 km/hour when two vehicles approached them quickly from behind. In an effort to get out of the way, the victim turned onto a side street. His path was blocked by police in a driveway he had turned into in order to turn around and get back on Lawrence Avenue.
[10] The victim and Mr. Doan got out of the vehicle to speak to Sgt. Craig Gouthro who was yelling at them. The sergeant ordered them to go to the police car and place their hands on the hood. They both complied. Sergeant Gouthro told the victim he would “smack” him. The officer emptied the victim’s pockets and placed the contents, including two cell phones, on the hood of the police vehicle.
[11] The victim was telling the sergeant that he had done nothing wrong. The appellant and other police officers arrived. The appellant assisted Sergeant Gouthro to search the victim. The appellant swore and accused the victim of being intoxicated and having drugs and weapons in his possessions. The victim was handcuffed. The appellant told him to spread his legs and put his head on the cruiser hood. Mr. Pham-Ho complied. He then felt the appellant’s hands all over him. He turned to look at the appellant and the appellant punched him in the left side of his face and yelled to him to put “your fucking head on the vehicle”. He turned his face the other way to avoid being hit again. The appellant then squeezed the victim’s testicles as the search progressed to that area of his body. After the first occasion, the appellant let go of the victim’s testicles, got a better grip then squeezed again. The victim was shaking and screaming from the pain. The appellant held him up against the car by his groin while his legs were curled up behind him. The appellant leaned into the victim and asked him “how does that feel?” Other officers held the victim down and yelled to him to stand still and “don’t fucking move.” The appellant then kneed the victim in the thigh and elbowed him in the ribs. Mr. Pham-Ho was pleading for them to stop and repeated that he’d done nothing wrong, that he wasn’t resisting arrest, he wanted to go home and “it hurts”. He was crying and the police were laughing at him.
[12] Mr. Doan was hit in the head for asking an officer, who was dealing with him, what the appellant and others were doing to the victim. He was scared.
[13] After the assaults, the appellant pulled the victim to a police car and told him to get in. The victim felt a chop to his neck and a kick to his back (although these were not found by the trial judge to constitute an assault). The officer told the victim to “shut up and sit there as he had done something wrong” – in spite of the victim’s protests that he had not.
[14] The appellant and other officers searched the victim’s cell phone, read through a resumé they found in his car and laughed at it. They made fun of his name and one of them left a message on the victim’s cell phone calling him a “huge homo”. At one point, the appellant walked by the victim, opened the police car door and asked him if he wanted another punch to his face. The victim said no. The appellant then told him to “keep his mouth shut, he did do something wrong”.
[15] The appellant asked the victim why he was pouting. The victim told him it was because he was scared and didn’t want to be hit again. The appellant retorted “Who hit you? I didn’t hit you”.
[16] After checks had been run on the victim and his friend, the appellant appeared to calm down. The other officers also seemed to have a changed attitude about the two young men. The appellant let the victim get out of the police car and removed the handcuffs.
[17] The victim was charged for not having the vehicle ownership and registration. He could not find them in the vehicle after the police had searched it.
[18] The other officers were standing around and joking. Sgt. Gouthro told the victim not to speed and to “run his sorry ass back home to Kitchener”. The victim apologized to the appellant and gave him his business card as explanation for his having two cell phones. The appellant responded by saying “let bygones be bygones”.
[19] The appellant denied the assault and sexual assault. He was supported in this position by four defence witnesses. Their evidence was rejected by the trial judge and she concluded that the defence evidence did not create a reasonable doubt.
The Grounds of the Appeal from Conviction
[20] The grounds of the appeal are:
(1) The trial judge erred when she dismissed the s. 11(b) application for a stay of proceedings;
(2) the trial judge erred by misapprehending the evidence relied upon by the Crown;
(3) the trial judge erred in her assessment and treatment of the defence evidence; and
(4) the trial judge’s reasons are not reflective of her actual reasoning that led to the convictions, but are an after-the-fact justification for her decision to convict the appellant.
1. S. 11(B) Application
[21] The section 11(b) application was brought only as a result of the trial judge releasing her reasons for judgment five months after she convicted the appellant. The application was heard on February 2 and dismissed on February 15, 2012.
[22] The total delay in the case was two years, 1 month and 28 days. The trial judge concluded the total period of institutional delay was nine and one half months including judicial delay. This period of time does not call for a stay.
[23] The appellant contends the trial judge erred in allocating the entire period between June 27 and November 21, 2011 as part of the inherent time requirements of the case. This delay should have been characterized as institutional delay. In that case, the institutional delay would have exceeded the guidelines set out in R. v. Morin 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771.
[24] I can find no palpable error in the trial judge’s characterization of the period in question as inherent time requirements of the case. Although she told counsel on June 27, 2011 that she would be delivering her reasons for conviction shortly, she also wrote to counsel soon after to clarify that the reasons would take longer to produce.
[25] That period included the preparation of a pre-sentence report, counsel’s preparation to make submissions on sentence, and the trial judge’s writing of the reasons. All of these activities are properly inherent time requirements.
[26] There was nothing on the record to indicate defence counsel was ready before November 21 to conclude the case.
[27] In considering the evidence of prejudice to the appellant, the trial judge assessed the evidence thoroughly and fairly. She found that Constable Marji did not suffer prejudice as the result of any delay.
[28] The trial judge made no error in dismissing the section 11 (b) application.
2. Misapprehension of the Evidence of the Crown
The medical evidence
[29] The appellant contends that Dr. Chand’s evidence, which was the result of an examination of the victim eight days after the event, should not have been relied on by the trial judge as corroboration of the victim’s evidence.
[30] I disagree. The trial judge properly used this evidence, especially where there were no alternative explanations for the victim’s injuries, to conclude that it confirmed Mr. Pham-Ho’s testimony. She was aware that the injuries could have been caused by something other than the appellant’s actions.
Other complaints
[31] I accept the respondent’s submission with respect to the other claims made by the defence about Her Honour’s findings of credibility in the Crown’s case in spite of alleged frailties in the evidence.
[32] The errors alleged by the appellant relate to the same issues of credibility dealt with by the trial judge in her review of the evidence. She considered the same arguments made before her at the conclusion of the trial and concluded that they did not create a reasonable doubt.
[33] Her findings of fact should not be interfered with in this case.
3. Assessment and Treatment of the Defence Evidence
[34] Essentially, the appellant challenges the trial judge’s rejection of his testimony and the acceptance of the testimony of the victim as being erroneous. In fact, she detailed the reasons for her findings which supported her decision to do so.
[35] I adopt paragraphs 29 and 30 of the respondent’s factum. The trail judge found numerous reasons to reject the defence evidence that the appellant did not have the alleged conduct with the victim.
[36] Her findings of fact based on the lack of credibility of the defence witnesses should not be disturbed.
4. Reasons for Judgment – “After the Fact Justification”
[37] The appellant has the burden of rebutting the presumption that the trial judge’s reasons for conviction reflect the reasoning that led to her decision [R. v. Teskey, 2007 SCC 25, [2007] S.C.J. No. 25; R. v. Cunningham, 2011 ONCA 543, [2011] O.J. No. 3546 (C.A.)].
[38] The evidence offered by the appellant to satisfy this burden is not cogent. He complains that the five month period it took to deliver the reasons, spelling mistakes, typographical mistakes and grammatical errors in the judgment are some support for his claim. He also alleges analytical errors – which is a repetition of his argument in the previous grounds of appeal that challenge credibility findings the judge made.
[39] There is no suggestion that the trial judge released reasons to explain away an accusation that they were delayed; that the reasons were written in response to a pending appeal; that the reasons dealt with post-verdict issues; that she was wavering or hesitant in her conclusion to convict the appellant; that she replaced or revised initial reasons.
[40] There is no merit in this ground of appeal.
5. Sentence Appeal
30 days in Jail
[41] In her detailed deliberation about the appropriate sentence in this case, the trial judge considered all of the relevant sentencing principles, the evidence of the appellant’s background and the case law.
[42] She appropriately relied on case law which calls for custodial sentences where a breach of trust has transpired. Clearly, the appellant was in a position of trust.
[43] I can find no reason to interfere with the 30 day sentence, especially because of the sexual assault conviction. The cases presented to me by the appellant on this appeal do not change my opinion in that regard.
[44] I am prepared, however, to allow the appellant to serve the sentence on weekends.
[45] The Crown does not oppose this submission. The sentence is less than 90 days. The appellant’s background and the circumstances of the offence do not preclude an order pursuant to section 732. (1) of the Criminal Code. The appellant is employed.
[46] He will report to the institution where the sentence is to be served on the Friday after the release of these reasons at 6:00 p.m. and remain in custody until Monday morning at 5:00 a.m. He shall return to the institution each Friday at 6:00 p.m. thereafter and remain there until Monday at 5:00 a.m. until the sentence is served. He shall be on probation in the interim. He must report to a probation officer within 48 hours of his release after the first weekend sentence. He is to keep the peace; have no contact with Mr. Phillip Huy Quoc Pham-Ho or Mr. Paul Doan or their immediate families; he is to stay 500 meters away from any place of residence, employment or education at which they are known to be.
[47] The remaining 12 month probation order and its conditions set out by the trial judge shall remain part of the sentence.
DNA Order
[48] The trial judge has a limited discretion not to make a DNA Order with respect to a primary designated offence. The sexual assault conviction was acknowledged by both counsel to attract the order. The appellant did not argue at trial that the impact of the DNA Order on privacy and security interests was grossly disproportionate to the public interest in the protection of society and the proper administration of justice [section 487.051(2); R. v. R.C., 2005 SCC 61, [2005] S.C.J. No. 62 (S.C.C.)].
[49] There is nothing before me on this appeal to persuade me to change the trial judge’s imposition of the, otherwise, mandatory order.
[50] For all of these reasons, the appeal from conviction is dismissed. The appeal from sentence is granted in part.
McWatt J.
Released: November 14, 2012
COURT FILE NO.: 12-7-10-00AP
DATE: 20121114
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
SALAMEH MARJI
Appellant
RULING
McWatt J.
Released: November 14, 2012