ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-DV7219

DATE: 2013/02/12

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

MIFTAH OMAR

Appellant

Moiz M. Karimjee, for the Respondent

Robert B. Carew, for the Appellant

HEARD: January 30, 2013

Decision on summary conviction appeal

Beaudoin J.

Background

[1] Mr. Omar (“the appellant”) was charged that on or about the 9th day of September in the year of 2010 in the City of Ottawa did commit an assault on Amel Shghaghi (“the complainant”) contrary to section 266 of the Criminal Code of Canada, R.S.C. 1985, C. C-46. The Crown elected to proceed summarily and the trial proceeded in the Ontario Court of Justice before Justice P.A. Sheppard on October 13, 2011. The accused was convicted, sentence was suspended with 18 months probation and a s.110 prohibition ordered for five years. Initially, the accused sought to appeal both his conviction and the sentence but now restricts the appeal to his conviction only.

Overview of the evidence below

[2] The accused Mr. Omar and Ms. Shghaghi were married for 10 years but separated on September 7, 2010. On September 9, 2010, the accused attended at the complainant’s apartment and an argument occurred outside the apartment door. The complainant alleged that the accused pushed her from behind causing her to fall down and spat on her. A neighbour, Ismaham Awale, saw a part of the altercation. The accused then left the scene.

The evidence of Amel Shghaghi

[3] The complainant testified that the accused left the matrimonial home the last week of March 2010 and that they officially separated on April 7, 2010. After that date the parties did speak of reconciling, the accused had a key to her apartment but had very few clothes there. Family law proceedings had commenced and the complainant was seeking full custody of the couple’s two children and she was alleging abuse by the accused.

[4] She said that she returned to her apartment on September 9, 2010 and found the accused at her door and asked him to move away. She testified that the appellant called her bad names and indicated his intention to enter the residence. She asked her neighbour to take the two children. That is when the appellant spat on her and pushed her from behind causing her to fall on the wall and closet at the front door. She screamed for help and the accused left by the adjacent stairs. She called 9-1-1 more than two hours later.

The evidence of Ismaham Awale

[5] Ismaham Awale was a few feet away in the hallway when she observed the accused and the complainant arguing face to face. The complainant’s children came to her. She saw the complainant’s door was open and that the accused made contact with the complainant pushing her from behind with his hands towards her back. The complainant fell onto the floor and the door closed. She then went to the complainant’s apartment where the complainant was lying on the floor with her children who had gone back to the apartment around her. She was wiping white gooey stuff from her face which were not tears.

The evidence of the Miftah Omar

[6] The appellant says he attended the complainant’s residence and knocked on the door but said no one was there. The complainant arrived later and blamed him for leaving her. The appellant said he was only there to get his clothes and that the complainant and the two children entered the apartment and closed the door on him. He denied assaulting or spitting on the complainant. The appellant described his relationship with the complainant as being up and down since their separation and that he had no bad feelings for her. He testified that three weeks prior to the incident she had sent a letter asking for reconciliation. The lease for the complainant’s apartment was in his name.

The issue for appeal

[7] During the cross-examination of the complainant by counsel for the appellant, he embarked on a line of questioning to suggest that the complainant was upset with the appellant because she wanted to talk about reconciliation and he did not. The complainant denied this suggestion. The defence counsel attempted to question the complainant about a letter that that she had written earlier seeking reconciliation and that she would discuss that with the appellant once her brother returned from abroad. Defence counsel suggested it had been written three weeks earlier. The complainant admitted that the letter that was produced to her was hers, but claimed that it had been written months before. Defence counsel proposed to read an English translation of the letter subject to the complainant agreeing to the translation and then to file it as an exhibit. The following exchange occurred.

Q. Was reconciliation still in your mind at this time or was it over as far as you were concerned?

A. At the day of the incident?

The Court: Yes

Mr. Grencher: Yes

The interpreter: A. Before he attacked me or after?

Q. Before?

A. I can’t give an answer because the – the thoughts about getting back together was before this day.

Q. Right. But you were still talking and still had the hope that you could get back together?

A. Approximately, the situation was reaching an end, approximately, between us because I was – I had the knowledge that he had a relation with another person.

Q. Three weeks earlier, approximately, you wrote him a letter seeking reconciliation explaining that you wanted reconciliation and when your brother returned from abroad you could discuss that with him?

A. That wasn’t three weeks prior?

Q. When was that?

A. Do you have the date? I can’t remember that.

Q. I don’t have a date, I’m asking you?

A. No. That was never.

Q. Okay. I’m going to show you a document if I can approach? Is this your letter?

A. Yes.

Q. You don’t know when that was written?

A. This was way before – with months, months, I mean.

Q. Months. Okay. Thank you. I guess we can make the original the – an exhibit. I have a translation; the original is with the witness.

The Court: Okay.

Mr. Grencher: And my proposal – I did not bring the interpreter, but my proposal is to read it in English and if she agrees with the interpretation, then I would file the interpretation as an exhibit as well.

The Court: Well, what – for what purpose is this being tendered?

Mr. Grencher: Because my client will be testifying, if he’s put to that election, he will likely testify that he received this letter approximately three weeks before hand. So.

The Court: So what? He received the letter of reconciliation whether it’s three months of three weeks, so what?

Mr. Grencher: Well, it’s relevant in the fact as to – Your Honour may see from the tenor of my questions – well, that…

The Court: Well, I think that the tenor of your question suggest to be you’re on an enormous fishing expedition right now. Frankly.

Mr. Grencher: No. I – I’m constrained by Browne v. Dunn, I have to put certain…

The Court: Yeah.

Mr. Grencher: ...things to her that you’re going to hear perhaps if the defense calls a case.

The Court: Right.

Mr. Grencher: So I’m trying my best to put in a situation – well, why don’t I ask the next question and then I can revisit this.

The Court: All right. Go ahead.

Mr. Grencher: Q. Ma’am I’m going to suggest to you that Mr. Omar didn’t push you, didn’t spit on you. The fact that he was there to talk about just picking up his own clothes but not there to talk about reconciliation made you very, very angry and it was you who started yelling at him?

A. This – this is a false statement – totality.

[8] The defence then sought to ask the complainant about how many brothers she had and to establish that one of her brothers had a health condition in Libya, apparently with the view of trying to place a time on the letter that was an issue. The learned trial judge denied defence counsel’s right to pursue this line of questioning and the cross-examination ended shortly thereafter.

Basis for the appeal

[9] The appellant takes issue on this appeal with the trial judge’s ruling preventing his counsel from pursuing the line of questioning with the use of the letter and submits that the ruling denied his right to make full answer and defence.

[10] The appellant argues that he has a right to cross-examine a prosecution witness without significant constraint and that this is an essential component of his right to make a full answer and defence. He argues that the right of cross-examination, which is protected by sections 11 and 11(d) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, must be jealously protected and broadly construed. In support of this proposition, he cites passages from R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193. In R. v. Anandmalik (1984), 6 O.A.C. 143 (C.A.), the Ontario Court of Appeal recognized the importance of cross-examination where credibility is the essential issue in the trial. The same point was made by the Albert Court of Appeal in R. v. Giffin, [1988] A.J. No. 312 and by the Manitoba Court of Appeal in R. v. Wallick (1990), 1990 11128 (MB CA), 69 Man.R. (2d) 310 (Man. C.A.).

[11] In this case, both counsel for the appellant and the respondent as well as the trial judge recognized that the credibility of the witnesses was central to deciding the case and the test in R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, was applied.

[12] The appellant submits that his line of questioning was legitimate, admissible and relevant and was directed at challenging the credibility of the complainant who denied writing the letter three weeks earlier. The appellant submits that the letter would have provided fertile areas to question the complainant about the date of the letter and its contents vis-à-vis an intent to reconcile thereby calling into question her credibility and state of mind. It is further submitted that at a minimum the trial judge should have come within a voir dire or otherwise have allowed the question and determined afterwards the relevancy and admissibility of the answer and what weight to give them.

[13] The respondent takes some issues with the facts as alleged but emphasizes that the complainant and the neighbour were not shaken in cross-examination and came across as good witnesses, a fact that the appellant’s trial counsel admitted.

Framework for Summary Conviction Appeal

[14] Pursuant to section 86(1)(a) on the hearing of an appeal against the conviction, the Court of Appeal may allow the appeal where it is the opinion that: 1) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence; 2) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law; or 3) on any ground that there was a miscarriage of justice.

[15] It is agreed by both the appellant and the respondent that the basis for the appeal in this case rests in the third branch of that section; namely whether there was a miscarriage of justice by the trial judge in limiting further cross-examination of the complainant.

[16] The respondent underlines that the legislative framework is important because of the onus. If limiting further cross-examination was a question of law alone and the appellant showed that the trial judge erred in limiting further cross-examination then the appeal would be granted unless the Crown convinced the court that no substantial wrong or miscarriage of justice had occurred. If the question was a question of mixed law and fact then the onus would reside with the appellant to establish that a miscarriage of justice occurred.

[17] The respondent argues that the issue of the letter seeking reconciliation was a collateral issue and that the trial judge has a discretion to limit cross-examination on such matters. In support of that proposition the respondent cites Paciocco and Stuesser’s The Law of Evidence, 5th ed. (Toronto: Irwin Law Inc., 2009), at p.436, where the authors cite Sopinka J. in R. v. Meddoui, 1991 42 (SCC), [1991] 3 S.C.R. 320, at para. 3, where he stated:

With respect to the ground relating to cross-examination, the proposed line of questioning related to collateral matters. Furthermore, its relevance was extremely tenuous and while wide latitude is permitted in cross-examination in a criminal case, the trial judge properly exercised his discretion in excluding the cross-examination.

[18] The respondent says the issue of the letter was a collateral issue. The victim testified that she had sent the letter seeking reconciliation a few months prior to the incident rather then the three weeks suggested by the appellant’s counsel.

[19] The respondent further argues that the decision to exercise discretion intervened in cross-examination or to refrain from intervention is one involving considerations of both fact and law and therefore the appellant has the onus to show miscarriage of justice resulted pursuant to section 86(1)(a)(iii) of the Criminal Code. If it was an error of law, there is a curative proviso set out in section 686(1)(b)(iii) of the Criminal Code. In R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, the Supreme Court of Canada said the following, at para. 26:

There are essentially two classes of errors which have been identified by reviewing courts and which have led to a proper application of the proviso. The first category is that of so-called “harmless errors”, or errors of a minor nature having no impact on the verdict. The second category encompasses serious errors which would justify a new trial, but for the fact that the evidence adduced was seen as so overwhelming that the reviewing court concludes that there was no substantial wrong or miscarriage of justice.

[20] The respondent submits that even if the trial judge erred in limiting further cross-examination of the complainant on a purely collateral matter, this was a harmless error having no impact on the verdict. Secondly, even if was serious error, the evidence at trial was so overwhelming that a conviction may have resulted and there was no miscarriage of justice.

[21] I agree with the submissions of the respondent that the cross-examination related to a collateral issue. I also agree that regardless of the ruling of the trial judge on this collateral issue there was an overwhelming case for the conviction and the result would not have been any different and the conviction should withstand.

[22] Initially, counsel at trial sought to introduce the letter in part because he was relying on the rule in Browne v. Dunn (1893), 1893 65 (FOREP), 6 R. 67 (H.L.) which would have prevented him from leading evidence about the letter if the appellant chose to testify. In the end, the appellant did testify at trial that the complainant had sent him a letter three weeks before. The letter, in Arabic, was filed as an exhibit at the trial. The complainant was asked whether or not she wrote the letter three weeks before and she denied it. Moreover, she gave reasons for indicating that she had discovered that the appellant had found a new partner and that reconciliation was at an end. There was an opportunity to explore the complainant’s state of mind. Moreover, it is not apparent that the subject contained any date which could have confirmed one way or the other when it was sent. Trial counsel hoped to indirectly obtain evidence of that date by reference to an illness of one of the complainant’s brothers, an even more collateral issue. The trial judge limited that cross-examination as well.

[23] The complainant’s evidence was completely corroborated by the independent third party. The trial judge properly assessed the evidence and applied the W. (D.) test. After making reference to the W. (D.) test, the trial judge found the appellant lacked credibility in most respects. In finding that the complainant was credible, he noted that defence counsel unable to pick up any significant inconsistencies between the statement she gave to the police on the night in question even though the matter was being written down by a police officer and the evidence that she gave at trial. He also relied on the evidence of the neighbour, Ms. Awale, who was very clear that she witnessed the physical push to the victim’s back. The court also found that there was an assault in that, and accepted the evidence that the appellant had threatened the complainant on the night in question. The court also concluded that the appellant had left the apartment by using the stairwell in order to avoid detection.

[24] There was no miscarriage of justice and the appeal is dismissed.

Beaudoin J.

Released: February 12, 2013

COURT FILE NO.: 10-DV7219

DATE: 2013/02/12

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

– and –

MIFTAH OMAR

Appellant

Decision on summary conviction appeal

Beaudoin J.

Released: February 12, 2013