ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 142/12

DATE: 20140902

RE: Her Majesty the Queen v. Khalil Ahmad

BEFORE: K.L. Campbell J.

COUNSEL:
Stephania Fericean, for the Crown, respondent

Alvin Pollard, for the accused, appellant

HEARD: June 11, 2014

ENDORSEMENT

[Summary Conviction Appeal]

A. Overview

[1] The appellant, Khalil Ahmad, was tried by Mr. Justice J.W. Bovard of the Ontario Court of Justice on charges of criminal harassment, threatening to cause serious bodily harm, and breach of probation. The complainant is the appellant’s former wife. At the time of the alleged offences, they were still married, but separated. By the time of trial, they were divorced. At the time of their marriage, one arranged by their respective families in 2008, the complainant was but 16 years of age, while the appellant was 30 years old. From the start, their marriage was not a happy one, at least not for the complainant. She described it as a “hell-hole” in which she was regularly subjected to physical and verbal abuse from the appellant.

[2] At the center of the alleged offences is a series of text messages the complainant received on February 24, 2010 while she was in the company of her therapist at a clinic. The complainant received all of these messages within a short period of just a few minutes. All of the messages originated from the same electronic source. Collectively viewed, they were short, abusive and threatening. The trial judge described them as “offensive and demeaning.” In one of the messages the sender refers to the complainant as his “wife.”

[3] At the time these messages were sent, the appellant was prohibited, by the conditions of a probation order, from communicating with the complainant. By the end of the trial proceedings, the only issue before the court was whether the Crown had established beyond a reasonable doubt that the appellant was, in fact, the person who sent these messages. The trial judge concluded that the appellant had, indeed, sent all of these messages. The appellant was, in the result, convicted.

[4] After crediting the appellant with having already served ten days of imprisonment (to account for his short period of pre-trial custody and the restrictive terms of his subsequent judicial interim release order), the trial judge sentenced the appellant to an 80-day term of intermittent imprisonment. The trial judge also imposed a three-year term of probation upon the appellant that included a requirement that the appellant attend Partner Assault Response Services (PARS) for counselling.

[5] The appellant appeals against his conviction. The appellant contends that the trial judge erred in two respects in relation to his application of the burden of proof on the Crown to establish the guilt of the appellant for the alleged offences beyond a reasonable doubt. First, the appellant argues that the trial judge failed to properly apply the principles established by the Supreme Court of Canada in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. Second, the appellant argues that the trial judge subjected the evidence called by the defence to a higher standard of scrutiny than he applied in relation to the evidence called by the Crown. The appellant also contends that the verdict of guilty reached by the trial judge is unreasonable.

B. The Burden of Proof Arguments

1. The Alleged R. v. W.(D.) Error

[6] In R. v. W.(D.) the Supreme Court of Canada explained, at pp. 757-758, that in jury trials, in cases where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue and, ideally, should instruct the jury: (1) that if they believe the evidence of the accused, they must acquit; (2) that even if they do not believe the testimony of the accused, they must acquit if they are left with a reasonable doubt by that testimony; and (3) even if they are not left with any reasonable doubt by the evidence of the accused, they may only find the accused guilty if, on the basis of the evidence which they do accept, they are convinced beyond a reasonable doubt of the guilt of the accused. At the same time, however, the Supreme Court made it clear, at p. 758, that “the failure to use such language is not fatal if the charge, when read as a whole, makes it clear that the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply.”

[7] Subsequent decisions have consistently reiterated that this three-pronged formula, suggested as the ideal model for jury instructions, must not be viewed as a “sacrosanct formula” or “ritual incantation” that must be employed by trial judges in delivering reasons for judgment. The issue at the end of the day is always whether the trial judge erred in his or her application of the correct burden of proof upon the Crown to establish the alleged guilt of the accused beyond a reasonable doubt: see R. v. S.(W.D.), 1994 76 (SCC), [1994] 3 S.C.R. 521, at p. 533; R. v. Minuskin (2003), 2003 11604 (ON CA), 68 O.R. (3d) 577, 181 C.C.C. (3d) 542 (C.A.), at paras. 21-22; R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499, at paras. 29, 59; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 23; R. v. Y.(C.L.), 2008 SCC 2, [2008] 2 S.C.R. 5, at paras. 4-12.

[8] The trial judge in the present case did not expressly refer to the three-pronged analysis outlined in W.(D.). This may have been because the appellant did not himself testify at the trial of this matter, and because the credibility of the lone defence witness, Mr. Antonio Latorre, a co-worker of the appellant, was not in serious issue. In any event, the reasons for judgment delivered by the trial judge reveal that he clearly recognized and applied the ancient “golden thread” of the criminal law, that the Crown is required to prove the alleged guilt of the accused beyond a reasonable doubt. See Woolmington v. D.P.P., [1935] A.C. 462 (H.L.), at p. 482. Moreover, trial judges are presumed to know the law, especially fundamental principles of the criminal law such as the presumption of innocence and the burden of proof on the Crown to establish the alleged guilt of the accused beyond a reasonable doubt. See R. v. Burns, 1994 127 (SCC), [1994] 1 S.C.R. 656, at pp. 664-665; R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193 (C.A.), at paras. 27-31.

[9] In his reasons for judgment in the present case, Bovard J. noted that defence counsel had advanced a number of points in support of his argument that “the Crown did not prove beyond a reasonable doubt that Mr. Ahmad sent the text messages” in question. While addressing each of those points in detail, Bovard J. expressed his “favourable view” of the credibility of the complainant, ultimately accepting her testimony as “strong, convincing and plausible,” and “not shaken or undermined in any way” in cross-examination. In contrast, Bovard J. referred to the defence theory of the case, that someone else must have sent these messages to the complainant, as no more than “wild speculation.” Moreover, in drawing his final conclusions about the case, Bovard J. stated that he was “persuaded beyond a reasonable doubt that Mr. Ahmad sent the text messages” to the complainant and that “the Crown has proven beyond a reasonable doubt all of the ingredients of all of the offences.” Accordingly, I am not satisfied that the trial judge erred as alleged by the appellant. See also R. v. Vuradin, 2013 SCC 38, 298 C.C.C. (3d) 139, at paras. 20-28; R. v. Hogg, 2014 SCC 18, 309 C.C.C. (3d) 178; reversing 2013 PECA 11, 300 C.C.C. (3d) 435.

2. Analyzing the Evidence Employing Different Standards of Scrutiny

[10] As a matter of principle, it is wrong for a trial judge to apply a greater degree of critical scrutiny to the testimony of an accused person or another defence witness than is applied to the testimony of a complainant or other evidence led by the Crown. In reviewing the important evidence in a criminal case, the trial judge is obliged to consider all of the evidence with the same, even and equal level of careful analysis, regardless of whether it is called by the Crown or the defence. See R. v. Gostick (1999), 1999 3125 (ON CA), 137 C.C.C. (3d) 53 (Ont.C.A.), at paras. 13-15, 39-40; R v. C.(J.) (2000), 2000 1931 (ON CA), 145 C.C.C. (3d) 197 (Ont.C.A.), at para. 13; R. v. Owen (2001), O.A.C. 378, at paras. 2-3; R v. F.(J.) (2003), 2003 52166 (ON CA), 177 C.C.C. (3d) 1 (Ont.C.A.), at para. 90; R. v. C.(H.), 2009 ONCA 56, 241 C.C.C. (3d) 45, at para. 62; R. v. Costache, 2013 ONSC 4447, [2013] O.J. No. 3038, at para. 34; R. v. Da Costa, 2014 ONSC 1000, [2014] O.J. No. 704, at paras. 9, 22; R. v. O.M., 2014 ONCA 503, 318 O.A.C. 390, at paras. 16-19.

[11] On appeal, it is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something he or she could have said in assessing the credibility of the witnesses, or that the trial judge failed to expressly set out the governing legal principles relevant to credibility assessments. In order to succeed in challenging a conviction based upon an allegation that the trial judge erroneously employed different levels of scrutiny in his or her analysis of the evidence, thus tainting the factual findings and/or credibility conclusions reached, “the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence” called by the Crown and the defence: see R. v. Howe, (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480, at para. 59. As the courts have observed, the legal threshold for establishing such a claim is “very high.” See R. v. Howe, at para. 59; R. v. J.W.J., 2009 ONCA 791, at para. 5; R. v. T.(T.), 2009 ONCA 613, 265 O.A.C. 47, at para. 31; R. v. Cloutier, 2011 ONCA 484, 272 C.C.C. (3d) 291, at paras. 86, 93-94; R. v. Jones, 2013 ONCA 245, [2013] O.J. No. 1786, at para. 8; R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, at para. 39; R. v. Schell, 2013 ABCA 4, 293 C.C.C. (3d) 400, at paras. 34-35; R. v. Denduk, 2014 ONSC 4603, [2014] O.J. No. 3655, at paras. 41-42.

[12] In the circumstances of the present case, the appellant has not met that rigorous legal threshold. In my view, there is nothing in the record of this case to support the notion that the trial judge mistakenly employed different levels of scrutiny to the evidence called by the Crown and the defence.

[13] As I have indicated, there was one defence witness called on behalf of the accused, namely, Mr. Antonio Latorre. He was called by the defence in an effort to provide the appellant with an “alibi” defence in relation to his alleged sending of the text messages. Mr. Latorre is a friend and co-worker of the appellant. He was also the appellant’s surety pending trial on other, earlier criminal charges. In advancing his argument that the trial judge erroneously applied different levels of scrutiny to the evidence called on behalf of the appellant and the evidence called by the Crown, counsel for the appellant relies heavily upon the manner in which the trial judge analyzed the evidence of Mr. Latorre.

[14] In his examination-in-chief, Mr. Latorre testified that, on the day of the alleged offences, he and the appellant were working together, in close physical proximity in the cockpit of an airplane, “pretty much the whole day” between 8:00 a.m. and 5:00 p.m. At no point during the day did Mr. Latorre see the appellant use a computer or his cell phone (which he kept in his tool box located some 50 feet way from where they were working). Mr. Latorre also testified that he did not think that the appellant could have “slipped out” without him noticing. Mr. Latorre explained that, according to the appellant’s bail conditions, the appellant had to be with him “full time.” Mr. Latorre also knew that the appellant was prohibited from contacting the complainant, and this was something that he was “monitoring.” Mr. Latorre thought that it was “impossible” for the appellant to have sent the complainant the text messages in question.

[15] In cross-examination, however, Mr. Latorre conceded that both he and the appellant went, separately, to the washroom that day. Mr. Latorre was not sure how many times he went to the washroom that day, and was similarly unsure of how many times (and when) the appellant went to the washroom that day. Mr. Latorre accepted that it was “entirely possible” that the appellant used his cell phone during one of these washroom visits. They did not attend the washroom together.

[16] In his reasons for judgment, the trial judge accurately reviewed the evidence of Mr. Latorre on this issue, and concluded that there was a “weakness” in this evidence in that all of the short text messages in question “could have easily been done” by the appellant and sent to the complainant “during a short bathroom visit.” Accordingly, the testimony of Mr. Latorre “does not foreclose the possibility that [the appellant] went to the washroom and sent the messages.” I see no error in the manner in which the trial judge analyzed the evidence of Mr. Latorre. Accepting his evidence as entirely honest and truthful, the trial judge was still entitled to conclude that the testimony of Mr. Latorre simply did not provide the appellant with an alibi for his alleged sending of the text messages in question to the complainant.

[17] Further, in my view, there is nothing about the way in which the trial judge analyzed and accepted the testimony of the complainant that suggested that Bovard J. applied a lesser, different, or more forgiving standard of scrutiny to the testimony of the complainant. In his review of her testimony, the trial judge fully considered all of the main points that defence counsel had raised during his cross-examination of the complainant and in his closing arguments touching upon the credibility and reliability of the complainant.

C. The Reasonableness of the Verdict

[18] The appellant also argues that the verdict reached by the trial judge is unreasonable. In advancing this position, the appellant relies upon his claims that the trial judge misapprehended the Crown’s burden of proof by failing to properly apply the principles articulated in W.(D.), and by erroneously applying an unequal standard of scrutiny to the testimony of the complainant and the evidence of Mr. Latorre. I have already rejected those arguments.

[19] In considering the reasonableness of a verdict, the responsibility of an appellate court is to determine, on the whole of the evidence adduced at trial, whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. This process requires more than simply determining whether there is any evidence to support the verdict. It requires the appellate court to thoroughly review, analyze and, within the limits of appellate disadvantage, weigh the evidence, and consider, through the lens of judicial experience, whether judicial fact-finding precludes the conclusion reached by the trier of fact. This process does not, however, permit the appellate court to simply retry the case, or give effect to any vague unease, or any lurking or reasonable doubt it may have based on its own review of the written record. See R. v. Corbett, 1973 199 (SCC), [1975] 2 S.C.R. 275, at pp. 278-279, 282; R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168, at p. 186; R. v. W.(R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, at pp. 129-132; R. v. Burns, 1994 127 (SCC), [1994] 1 S.C.R. 656, at p. 663-665; R. v. François, 1994 52 (SCC), [1994] 2 S.C.R. 827, at pp. 835-838; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 24, 38, 40, 42; R. v. G.(A.), 2000 SCC 17, [2000] 1 S.C.R. 439, at paras. 6, 28-29; R. v. R.(J.S.), 2012 ONCA 568, 112 O.R. (3d) 81, at paras. 69-72; R. v. H.(W.), 2013 SCC 22, [2013] 2 S.C.R. 180, at paras. 27-28; R. v. Kish, 2014 ONCA 181, 309 C.C.C. (3d) 101, at paras. 43-45.

[20] In my view, applying this governing legal standard of appellate review, the verdicts reached by the trial judge in this case cannot be said to be unreasonable. In other words, in my opinion, the convictions of the appellant on these charges were verdicts that a properly instructed jury, acting judicially, could reasonably have rendered given all of the evidence in this case. Judicial fact finding does not preclude the verdicts reached by the trial judge. It is not for me to now retry the case on appeal and reach different verdicts. In this regard, I note the following considerations:

• The substantive contents of the threatening text messages suggest that they were sent by the appellant. Most obviously, in one of the messages, the sender expressly referred to the complainant as his “wife.” More particularly, in this message, the sender stated: “Bitch stop getting cops involved ur my wife.” Unless this message was sent by someone pretending to be the appellant, it could only have been sent by the appellant, as the complainant was the appellant’s wife at the time the message was sent.

• The complainant testified that she knew from their content that these text messages were sent to her by the appellant. According to the complainant, the appellant frequently made comments to her that were very similar to the comments made in the text messages that she received. More specifically, the complainant pointed to the fact that the appellant was constantly asking to meet with her, called her his wife, asked her why she was not replying to his texts, and mentioned the fact that she got the police involved in their relationship.

• The repetitive text messages from the appellant were clearly of a threatening nature. In all of these messages, the complainant was simply called “bitch.” Further, in these messages, the sender cumulatively and effectively: (1) told the complainant not to play her “childish games” with him; (2) told the complainant that she had “better” call or text message him so that they could talk “for the last time,” or this would be her “last time;” (3) told the complainant that he would “find” her; (4) indicated that these messages constituted a “warning” to her, reminding her that she knew he did not “joke”; (5) told the complainant to “stop getting cops involved” as she was his “wife;” and (6) told the complainant that if she called the police, he would be “out the next day.” According to the complainant, these were the kinds of comments that the appellant had made to her on a number of earlier occasions. She had heard these kinds of things from him “many times.”

• In cross-examination, the complainant expressly denied sending these text messages to herself, or asking anyone else (including her therapist) to send these text messages to her, so as to “get [the appellant] in trouble” with the police.

• The complainant testified that she felt overwhelmed by these messages and that she was being “haunted from the past again.” More specifically, she testified that she thought that the appellant would beat her up, lock her in the washroom, or throw her down the stairs as he had done in the past. In the result, the complainant called the police.

• The appellant did not testify at trial. While it was, of course, his right to remain silent, it is well-established that, “on appeal, where the reasonableness of the trial verdict is attacked, an appeal court is entitled to view the silence of the accused at trial as indicating that he could not provide an innocent explanation of his conduct:” see R. v. Loi and Liang, 2013 ONSC 1202, at para. 37, and the authorities therein cited.

D. Conclusion

[21] In the result, the appeal against conviction must be dismissed. An order shall issue accordingly.

Kenneth L. Campbell J.

Released: September 2, 2014