SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CR-12-0000107-00AP

DATE: 20130129

RE: HER MAJESTY THE QUEEN, Respondent

AND:

Tanveer Badar, Appellant

BEFORE: MacDonnell, J.

COUNSEL:
Lori Hamilton, for the Respondent

Lakhwinder Sandhu, for the Appellant

HEARD: January 25, 2013

On appeal from the conviction entered by Justice K.N. Barnes of the Ontario Court of Justice at Toronto on June 13, 2012

Appeal Book ENDORSEMENT

[1] At the conclusion of the hearing of this appeal, the conviction was set aside and a new trial was ordered with written reasons to follow. These are those reasons

[2] The appellant was tried on two counts of assault, one count of threatening and one count of failing to comply with the no-contact term of a bail order. The complainant in relation to all of the counts was the appellant’s estranged wife. The trial judge acquitted the appellant on all counts save for the count of failing to comply.

[3] In the course of her examination in-chief of the complainant, Crown counsel introduced copies of two documents from the records of the police in Karachi, Pakistan.

[4] The first document was a record of the complainant’s attendance at the police station in Karachi on May 19, 2011 to report her concern about the potential of a “mishap” befalling her at the hands of the appellant. Her fear flowed, at least in part, from an assault that she alleged the appellant had committed in Pakistan in February, 2011. None of the charges before the court concerned that alleged assault.

[5] The second document was a record of the complainant’s report to the Pakistan police on November 12, 2011. In that report, she alleged that two days before, on November 10, the appellant and two other men came to the door of the home where she was staying and threatened her with a gun. That incident was the basis for the charge of failing to comply with bail.

[6] At the time of the introduction of the documents, it was unclear what use the Crown proposed to make of them. When the admissibility of the May 19 document was challenged by counsel for the appellant (on the basis that it was a fabrication), the Crown stated: “Well, at this point Your Honour, it’s a document that I’m showing to the witness. I’m asking her to identify it. I intend to ask her where it came from, and just like any other document, I’m not asking for it to go in as…a proof of anything, at this point. It’s just something that the witness can identify.” The trial judge deferred a ruling on the use to be made of the document. He stated: “If it is a document that I conclude that I should accept, then of course I shall address it in the normal course, and decide what weight to give to it.”

[7] The documents were initially entered as lettered exhibits, pending proof that they were authentic police records. Later in the trial, when that proof was provided, they were entered as numbered exhibits.

[8] In the course of her final submissions, Crown counsel invited the trial judge to use the documents as evidence supporting the credibility of the complainant. In assessing her credibility, the trial judge took both documents into account. Specifically, in relation to the November 12 report, he stated that, together with some photographic evidence, it “confirms [the complainant’s] evidence on the fact that she was assaulted by [the appellant] in February 2011 and also threatened by him in November 2011.”

[9] With respect, the reports that the complainant provided to the police in Karachi were not admissible to support the credibility of her allegations against the appellant. The trial judge was satisfied that the reports were true copies of the police records, but that did not make them admissible. Accepting that they were accurate reports of what the complainant told the police, they remained nothing more than prior consistent statements. In the absence of some circumstance that would except them from the general rule, they were presumptively inadmissible: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at paragraph 5; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at paragraph 36.

[10] One of the circumstances that can make a prior consistent statement admissible is an allegation of recent fabrication. In this case, counsel for the appellant suggested to the complainant that she had a motive to fabricate her allegations against the appellant, namely that she was involved with another man and wanted a divorce. However, this was not an allegation of ‘recent’ fabrication: the suggestion was that the motive came into existence well before the complainant made either of the two reports to the police in Pakistan. Accordingly, admission of the reports would not “illustrate that the witness’s story was the same even before [the] motivation to fabricate arose”: Stirling, supra, at paragraph 5.

[11] The fact that the trial judge used the complainant’s prior statements, and in particular the report she made on November 12, 2011, to support her credibility in relation to the allegation that the appellant threatened her with a gun on November 10, 2011 was not a harmless error. Her testimony about that incident was the only evidence that the appellant contacted her on that date in contravention of his bail order. The credibility of the complainant was very much in issue in this case, so much so that the trial judge was not prepared to convict the appellant on the basis of her evidence on three of the four counts before him. Because the trial judge took inadmissible evidence into account in finding the complainant credible on the only count on which the appellant was found guilty, the conviction on that count cannot stand.

[12] Accordingly, the conviction is set aside and a new trial is ordered on the charge of failing to comply. In light of the history of this matter and the trial judge’s findings with respect to the credibility of the complainant in relation to the three other counts, the Crown may consider whether it is in the public interest to proceed further.

MacDonnell, J.

Date: January 29, 2013