SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 13-50000060
DATE: 20140819

RE: HER MAJESTY THE QUEEN

AND:

YAHYA AHMED

BEFORE: R. F. Goldstein J.

APPEARANCE:
Richard Litkowski, for Mr. Ahmed, Appellant

Kim Walker, for the Crown, Respondent

ENDORSEMENT

[1] Mr. Ahmed was arrested and charged with attempting to disarm a police officer, assaulting a police officer in the execution of his duty, assaulting a police officer with the intent to prevent the arrest of another, and two counts of breach of probation. Justice DiZio of the Ontario Court of Justice convicted him of all five counts.

[2] The Crown alleged that in the course of an arrest of a third person Mr. Ahmed tried to take Officer Davis’s gun. Mr. Ahmed was a friend of the arrestee, one Martinez. Officer Davis testified that he felt someone tugging on his holster. He had Mr. Martinez in custody. He threw Mr. Martinez to the ground and tried to grab Mr. Ahmed, whom he knew. Other officers saw the encounter, although none actually saw Mr. Ahmed specifically attempt to grab the officer’s weapon.

[3] Mr. Ahmed testified that he had loaned Mr. Martinez his cell phone. He said that he was simply trying to retrieve it from Mr. Martinez’s pocket, notwithstanding that Mr. Martinez was under arrest and in custody. Mr. Ahmed said that he took the phone but that it must have fallen out of his pocket as he ran away from the officers. The officers chasing him did not see a phone. Nobody recovered a phone.

[4] The defence argued that because of inconsistencies in the evidence of the officers the trial judge should find that their evidence was fabricated and, therefore, find that there was a reasonable doubt as to Mr. Ahmed’s guilt. The defence position was that there was a conspiracy to frame Mr. Ahmed. The trial judge disbelieved Mr. Ahmed, believed the officers, and found him guilty.

[5] Mr. Ahmed appeals. Mr. Litkowski, on his behalf, advances two arguments. The first argument is that the trial judge erred in his application of the test in R. v. W.D., 1991 93 (SCC), [1991] 1 S.C.R. 742; the second argument is that the trial judge shifted the burden of proof to the defence.

Did the trial judge err in his application of W.D.?

[6] Mr. Litkowski argued that the trial judge incorrectly reduced the evaluation of the Appellant’s credibility to a credibility contest. He pointed to this passage in the trial judge’s reasons:

Mr. Ahmed’s version of events is unbelievable because it is contrary to all the other evidence as related by the officers who testified.

[7] It is obviously an error of law for a trial judge to approach a trial as a credibility contest: R. v. Vuradin (2013), 2013 SCC 38, 298 C.C.C. (3d) 139 (S.C.C.).

[8] Mr. Litkowski argued that the trial judge in this case approached the trial in the same erroneous manner that the trial judge approached the case in R. v. P.(A.) (2013), 2013 ONCA 344, 297 C.C.C. (3d) 560 (Ont.C.A.). In other words, as stated by Rouleau J.A., by “… choosing between the appellant’s and the complainant’s version of events…”

[9] I respectfully disagree. The trial judge listed the basis for rejecting the evidence of Mr. Ahmed and accepting the evidence of the officers. All parties recognized at trial and on appeal that the trial judge was required to evaluate credibility. Trial judges are afforded a great deal of deference on issues of credibility: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, 231 C.C.C. (3d) 177.

[10] The comment made by the trial judge must be seen in the overall context of the evidence and the reasons: R. v. Morrissey, 1995 3498 (ON CA), [1995] O.J. No. 639, 22 O.R. (3d) 514, 97 C.C.C. (3d) 193 (C.A.). In other words, the comment must not be read in isolation. Indeed, the trial judge also commented regarding Mr. Ahmed’s evidence:

And, it in addition, it is unreasonable, as I will now explain. Why he would put his hand in Mr. Martinez’s pocket when Mr. Martinez is clearly under arrest, and handcuffed, and being escorted to the police vehicle by officer Davis, who was holding onto Mr. Martinez? It does not make any sense.

[11] I do not agree that the trial judge reduced his reasons to a credibility contest. It is fairly obvious that what the trial judge did was find that he did not believe Mr. Ahmed (and he explained why he did not believe him) and then found that the rest of the evidence did not leave him in a state of reasonable doubt. It is also clear that he did not simply reject Mr. Ahmed’s evidence and then convict. He rejected Mr. Ahmed’s evidence, found it did not raise a reasonable doubt, and then convicted on the basis of the evidence that he did accept. That is, in a nutshell, the W.D. process. I therefore see no error by the trial judge in applying the W.D. test.

Did the trial judge shift the burden of proof to the defence?

[12] Mr. Litkowski also argued that the trial judge erred by drawing an adverse inference from the failure of the defence to call evidence. He points to the following comments:

There was no evidence that indeed Mr. Ahmed had a phone at all. There was no evidence of a telephone contract, an invoice, a record of use, which might have shown that he had a telephone. My conclusion is that there was no phone, and this story is simply an invention by Mr. Ahmed.

Federico Martinez, a friend of Mr. Ahmed’s, who was present during the incident, was not called to testify. There is no other support for Mr. Ahmed’s version of events…

[13] Thus, Mr. Litkowski argues that the trial judge shifted the burden in two areas: the phone and Mr. Martinez. He relies on three cases from the Ontario Court of Appeal (R. v. Zehr, 1980 2964 (ON CA), [1980] O.J. No 1130, 54 C.C.C. (2d) 65, 1980 CarswellOnt 1269; R. v. Koffman, 1985 3640 (ON CA), [1985 O.J. No. 133, 20 C.C.C. (3d) 232, 1985 CarswellOnt 1387, and R. v. Rooke (1988), 1988 2946 (BC CA), 40 C.C.C. (3d) 484) to support the proposition that a trial judge must exercise great caution before drawing an adverse inference since it may well shift the burden of proof. In those cases, comments were made (either by counsel or the trial judge) before a jury regarding the failure of one party or the other to call evidence. Improper or no instructions were given to the jury about dealing with those comments. In my view, these cases do not apply. Here, the trial judge was sitting alone and observing the state of the evidence that was presented to him.

[14] I agree that it is obviously an error of law for a trial judge to shift the burden of proof; it is also clear that if an adverse inference is to be drawn by a trial judge because of the failure to call evidence, that adverse inference cannot be equated with proof of guilt.

[15] With respect, however, the trial judge did not do what Mr. Litkowski argues he did. He did not suggest that Mr. Ahmed was required to call evidence to support his evidence regarding the phone. He simply noted the lack of evidence, which is not the same thing. It was correct that there was no contract, invoice, or other paper document put into evidence. I make the same observation with regard to Mr. Martinez. He simply noted the absence of supporting evidence. I see no error by the trial judge.

[16] Even if I am incorrect on this point, I find that the adverse inference was open to the trial judge: R. v. N.L.P., 2013 ONCA 773, [2013] O.J. No. 5878, 305 C.C.C. (3d) 105, 2013 CarswellOnt 17811 (C.A.).

DISPOSITION

[17] The appeal is dismissed.

R. F. Goldstein J.

Date: August , 2014