SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: SCA – 08-8715
DATE: 2013/02/15

RE: Her Majesty the Queen v. Nimo Yussuf

BEFORE: Mr. Justice Douglas Rutherford

COUNSEL:
Moiz M. Karimjee, Assistant Crown Attorney

Mark Ertel, Counsel, for the Appellant

HEARD: February 15, 2013

ENDORSEMENT

[1] After a trial in the Ontario Court of Justice, Nimo Yussuf was found guilty that on or about the 14th day of December 2008 at the City of Ottawa in the East Region did, in committing an assault Jean Smith Gabriel, use a weapon, namely two glass cups, contrary to section 267, Clause (a) of the Criminal Code of Canada; and further that or about the 14* day of December in the year 2008 at the City of Ottawa in the East Region did wilfully destroy clothing, the property of John Smith Gabriel, the value of which did not exceed five thousand dollars, and did thereby commit mischief, contrary to section 430, subsection (4) of the Criminal Code of Canada. She was conditionally discharged on these two offences on the 10th of August 2011.

[2] She appeals against these findings of guilt, principally on grounds that the learned trial judge rejected her evidence, preferring that of the complainant wherever it conflicted with her’s, and in doing so, misapplied the “Rule in Browne v. Dunn.” [See Browne v. Dunn, (1893), 1893 65 (FOREP), 6 R. 67]

[3] For the Crown, Mr. Karimjee conceded that indeed the learned trial judge had misapplied the so called “Rule in Browne v. Dunn” and his error significantly affected the result. In the Crown’s factum Mr. Karimjee says;

Crown admits that the learned trial judge misapplied the rule in Browne and Dunn. Moreover, the Crown submits that this likely played a significant role in assessing credibility of the Appellant because the Trial judge made a specific reference to substantial non-compliance with the rule in Browne and Dunn in assessing the credibility of the complainant.

Mr. Karimjee requests that a new trial be ordered.

[4] I agree with the position of the Crown and the defence. The learned trial judge’s assessment of the credibility of both the complainant and of the accused/appellant was affected by his misapplication of the rule in Browne v. Dunn. Since the accused/appellant only had to raise a reasonable doubt as to the allegations of the complainant, it cannot be said that the error could not have affected the outcome, or that the outcome would not have been different without it.

[5] Accordingly, this appeal is allowed and the two findings of guilt against the appellant are set aside and a new trial is ordered. That having been done, Mr. Karimjee directed that, pursuant to section 579.1 of the Criminal Code, an entry be made on the record of the proceedings that the two charges be stayed. I made that entry on the Information, and the charges against Nimo Yussuf are, and shall be stayed, and any recognizance by which she has been bound is vacated.

ORDER ACCORDINGLY

Original signed by Mr. Justice Rutherford

Rutherford J.

Date: Friday February 15, 2013

R. v. Yussuf, 2013 ONSC 1052

COURT FILE NO.: SCA – 08-8715

DATE: 2013/02/15

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Her Majesty the Queen

AND

Nimo Yussuf, Defendant

BEFORE: Mr. Justice Douglas Rutherford

COUNSEL: Moiz M. Karimjee, Assistant Crown Attorney

Mark Ertel, Counsel, for the Defendant/Appellant

ENDORSEMENT

Mr. Justice Douglas Rutherford

Released: Friday February 15, 2013