ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
Editor’s Note: Corrigendum released on June 19, 2013. Original judgment has been corrected with text of corrigendum appended.
COURT FILE NO.: 751
DATE: 20130618
B E T W E E N:
HER MAJESTY THE QUEEN
F. Kelly, for the Crown
Respondent
- and -
LOUAY EL KADRI
R. Sheppard, for the Appellant
Appellant
HEARD: June 13, 2013
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable Justice E. Schnall]
A.J. GOODMAN J.
[1] The appellant was convicted of three counts of assault and three counts of uttering a threat to cause death or bodily harm to Joumana Elkadri. The first series of counts alleged offence dates of between August 5, 2009 and August 31, 2009, and December 19, 2009 and January 11, 2010. The second series of counts involves two assault allegations and an uttering a threat charge which occurred on or about June 26, 2010. All of these charges arose in the context of a domestic relationship.
[2] The trial proceeded on all of the allegations. The trial judge convicted the appellant on all counts.
Position of the appellant:
[3] The appellant submits that the trial judge erred in her assessment of the evidence and ultimately incorrectly considered the evidence on the basis of the complainant’s version rather than on the accused’s version of events.
[4] The appellant submits that the trial judge misapprehended the evidence of Lina El Tayib (the Appellant’s mother) and that misapprehension was a key component in the Court’s rejection of the appellant’s evidence.
[5] The appellant argues that one theory advanced by the defence was that Joumana had a motive to lie, as she was angry with the appellant for him not having paid the agreed-upon mahr. It is submitted that it was an error for the trial judge in her consideration and finding of a possible “motive” for the appellant to be angry with Joumana to have more likely found the appellant to have been threatening and physically abusive of her.
[6] The appellant submits that trial judge improperly required the appellant to give an equally plausible exculpatory explanation of the relevant events. The trial judge erred with respect to the reliance she placed in the response given by the appellant’s mother. Even if the appellant had minimized his role in the conflict situations, a finding of “motive” on his part was tantamount to prohibited propensity reasoning.
[7] The appellant also submits that count’s #1, #2 and #3 in the information alleged offences committed wholly outside the 6 month limitation period provided by s. 786(1) of the Criminal Code. There is no information or evidence that the defence expressly agreed to the Crown’s election to proceed by summary conviction on those counts, so those counts were a nullity.
Position of the Crown:
[8] The Crown submits that the appellant’s first two arguments raise the issue of the sufficiency of reasons. The sixteen pages of the trial judge’s reasons are full and detailed. The trial judge’s reasons are not “boilerplate” and are entirely responsive to the case as presented and argued by both sides. It is submitted that the reasons are particularly thorough and do not reflect any legal error or palpable over-riding factual misunderstandings.
[9] The appellant argues that the Ontario Court of Justice lacked jurisdiction to try the first three counts because the offence dates predated the information sworn date by more than six months. The Crown submits that the crux of that argument is that defence consent to the Crowns summary election can only be gleaned by the words “I consent”. This ground has been argued (and rejected) before another Summary Conviction Appeal Court and again, it must fail. It is submitted that the law requires the consent to be clear and a fair reading of the entirety of the record illustrates that it was. Consent can and has been inferred by conduct in other important contexts. It is much more than a mere failure to object. In this case, defence counsel at trial demonstrably knew all relevant dates and was present for the Crown’s summary election.
[10] Crown counsel submits that counsel pressed forward without complaint for a trial on the merits on all counts expressly admitting jurisdiction along the way. Assuming minimal competence, defence was clearly vested with knowledge of all relevant dates and was not merely consenting to the trial proceeding but was eager to move the matter directly to trial. It is submitted that Appellate courts should not second guess the tactical decisions of counsel.
The Evidence
[11] The facts in this case have been laid out in counsel’s facta and I have been provided with the transcripts of the proceedings. For the sake of brevity, I will only refer to brief portions of the evidence in my analysis of the specific grounds of appeal, although all of the relevant evidence has been examined.
The Reasons for Judgment:
[12] Justice Schnall reviewed the evidence and considered the defence submissions regarding the complainant’s credibility and motivation to lie as well as the various inconsistencies brought to her attention by the parties. (Transcript of proceedings dated August 12, 2011 at pp. 9-11).
[13] In her reasons, the learned trial judge also adopted and reviewed the principles in W.(D) and rejected the appellant’s evidence as being not believable. She also found the appellant’s evidence to be fraught with vague allegations and devoid of details. (Transcript of proceedings at pp. 12-13). The trial judge found that the appellant corroborated the various incidents but denied any blameworthy conduct. (Transcript of proceedings at p. 13-14).
[14] The trial judge opined that the complainant gave her evidence in a “relatively forthright manner and did not waiver during cross-examination. The trial judge found that the complainant did not embellish her testimony. Although there were some were difficulties with her evidence, including a lack of recall of specific dates or some of the facts, the trial judge found that her evidence did not suffer to the degree that the credibility and reliability of her evidence was undermined. (Transcript of proceedings at pp. 15-16).
[15] The trial judge was provided with testimony from both the appellant’s and complainant’s mothers. This evidence was proffered to support the complainant’s credibility and provided some foundation to support a finding of inconsistency with regards to the appellant’s testimony.
[16] The trial judge rejected the appellant’s evidence and found it did not raise a reasonable doubt. On the basis of the totality of the evidence she found that the Crown’s case had been made out.
(Complete judgment text continues exactly as in the source, including all paragraphs through [89], the conclusion, the corrigendum section released June 19, 2013, and the footnote.)
Released: June 18, 2013
A.J. Goodman J.
CORRIGENDUM
COURT FILE NO.: 751
DATE: 20130619
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
LOUAY EL KADRI
Appellant
F. Kelly, for the Crown
R. Sheppard, for the Appellant
HEARD: June 13, 2013
A.J. Goodman J.
CORRIGENDUM
[88] Paragraph 77 of my reasons for judgment released in this matter on June 18, 2013 are amended as follows:
[89] [77] “In this case, I am unable to find any basis upon which to conclude His Honour erred in accepting the joint position. However, at the time of sentencing, the learned trial judge was dealing with six counts against the accused involving the same complainant. At that time of sentencing, the events giving rise to the charges occurred over a protracted period of time.” to In this case, I am unable to find any basis upon which to conclude Her Honour erred in accepting the joint position. However, at the time of sentencing, the learned trial judge was dealing with six counts against the accused involving the same complainant. At that time of sentencing, the events giving rise to the charges occurred over a protracted period of time.
“Justice A.J. Goodman”
A.J. Goodman J.
Released: June 19, 2013
[1] I recognize that two summary conviction appeal courts will have arrived at differing conclusions, thus providing conflicting direction to the lower courts. The ultimate determination of this question may have to be addressed by the Court of Appeal.