OSHAWA COURT FILE NO.: 13539/14
DATE: 20150415
CORRIGENDA: 20150520
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MAHMOOD MOSHREF
Applicant
D. Parke, for the Respondent (Crown)
J. Frost, for the Applicant
WRIGHT J.
HEARD: March 31, April 1, 2015
REVISED REASONS FOR JUDGMENT
Introduction
[1] On October 2, 2013, the Appellant, Mahmood Moshref, was convicted of one count of Public Mischief after trial before the Honourable Justice Stone of the Ontario Court of Justice. The Appellant was sentenced to incarceration for a term of 4 months and 27 days.
[2] The appellant appeals both the conviction and sentence.
[3] I will deal with the conviction appeal first.
Background
[4] On May 29, 2012, the Appellant reported to police that he had been assaulted by three people, Shannelle Vogt, his ex-common law spouse, her brother Jeshua Vogt, and their mother Deborah Vogt.
[5] The Appellant was living with his mother in Oshawa at the time. He was on bail as a result of being charged with domestic assault on Shannelle Vogt. He told police that the three had arrived at his home at approximately 1:30 am and beat him up. After the assault, Mr. Moshref made his way to his neighbor, Amanda Temple’s house. Ms. Temple testified for the Crown and said she saw a male and female leave the scene in a silver Infiniti SUV. She provided a description of the male.
[6] The police observed a cut to the Appellant’s left temple; a cut down the left side of his chest; and visible marks on his back consistent with being struck by an object. The Appellant’s t-shirt was torn and the injuries appeared fresh. The Appellant told officers that all three people participated in the assault on him and fled in a silver Infiniti SUV owned by Deborah Vogt.
[7] Deborah Vogt testified that she was home in Brampton recovering from heart surgery the night of the incident. Her SUV was in the driveway; it was cold to the touch and she was on doctor’s orders not to drive. Jeshua Vogt testified that he was with his girlfriend, Caroline Costley that evening. Caroline confirmed that the two were together at her home that night.
[8] Shannelle Vogt was living with her grandparents in the Niagara Region. She was pregnant and ordered by her physician to be on bed rest. Moreover, she did not have access to a vehicle and her grandparents testified that she was home that night.
[9] The trial judge accepted the evidence of Shannelle, Deborah and Jeshua to be true. He went through a detailed and thorough analysis in relation to each of their testimonies. He found Deborah Vogt to be a credible witness and fully accepted her evidence that she was recovering from a heart attack and was on doctor’s orders to maintain a reduced schedule of exertion. Similarly, he fully accepted the alibi evidence regarding the whereabouts of Shannelle and Jeshua in finding that they did not go to the Appellant’s house the night of the incident. Justice Stone disbelieved the Appellant providing succinct but sufficient grounds for why he came to that conclusion.
[10] In my view, the trial judge made no errors requiring judicial intervention. For the reasons that follow, the conviction appeal is dismissed.
Issues
[11] The Appellant makes three arguments:
The verdict is unreasonable;
The trial judge erred by applying a higher standard of scrutiny to the evidence of the witnesses favourable to the defence than to the witnesses favourable to the Crown;
The trial judge erred in applying R. v. W.D. by reversing the burden of proof.
Analysis
Was the verdict unreasonable?
[12] An appellate court may only interfere with credibility assessments of a trial court on a challenge to the reasonableness of the verdict if it is shown that those credibility assessments cannot be supported on any reasonable view of the evidence: R. v. R.P., 2012 SCC 22 at para. 10, R. v. Burke, 1996 229 (SCC), [1996] 1 SCR 474 at para. 7.
[13] Mr. Frost, on behalf of the Appellant, argues that the trial judge’s evaluation of Ms. Temple’s evidence and the Appellant’s evidence was flawed and led to an unreasonable verdict.
Evidence of Ms. Temple
[14] Mr. Frost argues that the trial judge rejected Ms. Temple’s evidence in large measure because she could not identify the silver Infiniti as belonging to the Vogt’s. Counsel argues that the trial judge failed to appreciate or to consider the corroborative role this evidence played in relation to the defence case. He also argues that the trial judge’s comment that Ms. Temple’s description of the people leaving the scene “did not bring anything home to the Vogt family”, further reflects his misunderstanding of the evidence and the uses that could be made of that evidence.
[15] I disagree, and here is why.
[16] Firstly, the trial judge did not reject Ms. Temple’s evidence outright; he simply made observations about the quality of it and ultimately chose not to place any weight on it. After a fulsome and detailed review of Ms. Temple’s evidence, he found that it did not leave him in reasonable doubt. He found that her testimony did not provide a sufficient basis or link to the Vogt’s. This finding in my view is entirely reasonable and very much available on the evidence. Despite Ms. Temple stating that the vehicle she saw was a silver Infiniti, there was nothing to link this particular vehicle to the Vogt’s. Similarly, the description of the male was on its face highly generic and as such, it was open to the trial judge to place little to no weight upon it.
[17] Moreover, I find that the trial judge was very much alive to the potential corroborative use of Ms. Temple’s evidence to the defence case. He stated as much in his Reasons for Judgment page 15 at line 20, when he said :
I have considered whether Ms. Temple’s evidence of seeing that motor vehicle could be credible. The problem is that whatever one can say about that evidence, it does not operate to raise a reasonable doubt, or leave me with a reasonable doubt on the hearing of all the evidence at the end of the day.
[18] Mr. Frost takes issue with the trial judge’s finding that the Vogts, if involved, would not have parked their car immediately outside of the Appellant’s residence because of the bail condition that forbade communication. Counsel argues that the trial judge misapprehended this evidence and erred when he used it as a basis to reject Ms. Temple’s evidence.
[19] Again, I disagree.
[20] Although the finding could be said to impact on Ms. Temple’s evidence, it was not made in direct reference to her. The trial judge was referring to the implausibility of the entire incident, the place and the timing around it—all which he was entitled to do and which was reasonable based on the evidence before him.
Evidence of the Appellant
[21] Defence counsel argues that the trial judge misapprehended the Appellant’s evidence when he found that his evidence internally shifted and because he told the 911 caller that Jeshau had a knife, but did not repeat that allegation at trial.
[22] In his reasons for rejecting the Appellant’s evidence, the trial judge found that the Appellant’s evidence shifted internally a number of times. While it is true that this conclusory statement was offered without any further explanation, it was not the only, nor was it the primary reason for the trial judge’s rejection of the Appellant’s evidence. The contradictory evidence about the knife was provided as an additional reason for disbelief and found to be a major inconsistency.
[23] In my view, on a reading of the record before me, it was open to the trial judge to make such a finding. The inconsistency must be seen in the context of the trial judge having had the advantage of hearing and seeing the witnesses. As well, changes of emphasis and demeanour cannot be fully captured on a transcript: R. v. Howe (2005), 2005 253 (ON CA), 192 CCC (3d) 480 at para. 46.
[24] Finally, the trial judge found the Appellant’s evidence to be in total conflict with the other highly credible evidence called by the Crown and rejected the Appellant’s evidence on that basis. On my review of the record, the trial judge was entirely justified in disbelieving the Appellant’s evidence and entitled to reject based on his reasoned acceptance of the Crown’s evidence (R. v. J.J.R.D., 2006 40088 (ON CA), [2006] O.J. No.4749 and R. v. J.C., 2013 ONCA 495).
Appellant’s Motive
[25] The trial judge is not required to demonstrate in his reasons that he has considered or resolved every issue that arose in the case; every submission by counsel; or every contradiction in the evidence: R. v. R.E.M., 2008 SCC 51, [2008] S.C.J. No. 52.
[26] Motive was not referred to by either counsel in final submissions. It came up for the first time on appeal.
[27] The trial judge did not expressly refer to the issue of motive in his reasons. It is understandable that he did not do so. He was however, keenly aware of the domestic dispute context in which these charges arose and as such one can assume as an experienced trial judge that if motive had been a material issue in his assessment, he would have referred to it.
[28] Accordingly, this ground of appeal must fail.
Did the trial judge apply a higher standard of scrutiny to the evidence of the Appellant and of Ms. Temple than to the evidence of the Vogt family?
[29] A trial judge must not subject the evidence of the accused to a greater level of scrutiny than the evidence of the complainant: R. v. Gostick (1999), 1999 3125 (ON CA), 137 CCC (3d) 53 (Ont. CA).
[30] In Gostick, the trial judge uncritically accepted the evidence of the complainant and conducted no analysis of contradictions or issues raised on cross-examination. The trial judge then conducted a cursory review of the defence evidence and discounted it based on the uncritically accepted Crown evidence.
[31] Justice Goldstein, sitting on appeal in R. v. Coxall, 2015 ONSC 709, [2015] O.J. No. 559, stated the test as follows at para. 29:
In order to succeed on this ground, the Appellant must be able to point to something more than a mere disagreement about the interpretation to be placed on a particular piece of evidence, or even a mere factual error. There must be something sufficiently significant that the "heavy door of deference is opened to the domain of the trial judge, where credibility is assessed": R. v. Phan, 2013 ONCA 787, 313 O.A.C. 352, [2013] O.J. No. 5894 (Ont. C.A.) at paras. 31-34. It is not enough that the trial judge failed to point to a particular piece of evidence or emphasised a particular piece of evidence. As Doherty J.A. pointed out in J.H., it is also not enough that a different judge might have come to a different assessment of credibility. There must be something in the reasons or the record that "makes it clear that the trial judge applied different standards in assessing the evidence of the appellant and the complainant": J.H. at para. 59.
[32] In this case, the trial judge carefully considered the evidence of all three complainants, the accused and the other material witnesses including Ms. Temple. He went on to consider the complainants’ evidence individually and in combination with the extensive confirmatory and corroborative evidence. He gave specific examples of the confirmatory evidence that he found credible allowing him to ultimately accept the evidence of each complainant.
[33] Moreover, he was reluctant to accept Jeshua Vogt’s evidence because, “his way of giving evidence was not as careful and was not delivered with the same efficiency and impact on this trier of fact as those other witnesses.” It was the confirmatory evidence that persuaded the judge of the alibi (Reasons for Judgment page 12 lines 20-25).
[34] There is nothing in the record that “makes it clear that the trial judge applied different standards in assessing the evidence of the Appellant and the complainant.” Accordingly, this ground of appeal must fail.
Did the Trial Judge Err in his application of R. v. W.D.?
[35] The Supreme Court of Canada has consistently held that the W.D. analysis is a functional, not formulaic analysis. As was stating in R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5 at paras 6-7:
This Court has consistently warned that verdicts of guilt should not be based on "whether [triers of fact] believe the defence evidence or the Crown's evidence" (W. (D.), at p. 757). Rather, the paramount question remains whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused (R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345 (S.C.C.), at p. 361). The following suggested steps in W. (D.) are intended to ensure that the trier of fact remains focused on the principle of reasonable doubt:
However, and significantly, this Court has also consistently confirmed that these steps need not be religiously followed or articulated. Cory J. made this very clear in W. (D.):
... 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. [p. 758]
[36] Despite these comments, the trial judge referenced W.D. on two separate occasions in his assessment of the evidence (Reasons for Judgment page 6 lines 20-30 and page 18 lines 9-21):
In assessing this matter, I note that Mr. Moshref of course, has testified, and I have to consider and apply the three-pronged test in R. v. W.(D). (1991), 1991 93 (SCC), 63 C.C.C. (3rd) 397 @ 409 Supreme Court of Canada. I note that the onus is on the Crown throughout. This is not a situation where the defence is seeking or obliged to raise a reasonable excuse concerning something. This is strictly a case where the Crown has to prove all elements of the offence beyond a reasonable doubt.
On all three branches of R. v. W.(D.), the Crown has satisfied me that Mr. Moshref fabricated and reported the assault complaint involving each and all Jeshua, Deborah, and Shannelle Vogt, with intent to mislead the police into arresting, first investigating then arresting and charging those three. Again, I disbelieve Mr. Moshref’s evidence to the contrary. I find it cannot, does not leave me in doubt, and at the end of the day on all of the evidence I’ve heard, I do not have any nagging or other doubt founded in reason about this situation.
[37] Defence counsel argues that the trial judge was only providing lip service to the second stage of R. v. W.D. but failed to engage that step in any meaningful way. He argues that the trial judge failed to consider whether the defence evidence gave rise to a reasonable doubt.
[38] I disagree.
[39] The trial judge’s analysis of the evidence clearly demonstrates the route he took to his verdict. He carefully considered each witness’s evidence on its own and in combination with the rest of the evidence. It was a contextually holistic approach, very much in keeping with the second stage of the W.D. analysis.
[40] Accordingly, this ground of appeal must fail.
Sentence Appeal
[41] As to the Appellant’s sentence appeal:
[42] The Appellant received a total sentence of 5 months incarceration less 3 days credit for pre-trial custody, to be followed by 2 years of probation.
[43] The Appellant makes three arguments regarding sentence:
The trial judge erred by failing to apply the principle of restraint;
The trial judge erred in finding a conditional sentence to be inappropriate;
The trial judge erred in failing to consider the Appellant’s time on restrictive bail.
Did the trial judge fail to apply the principle of restraint?
[44] I find no merit in this argument. Justice Stone felt that the offence warranted a sentence of 12 to 15 months, but because the Crown proceeded by way of summary conviction, the upper range was limited to 6 months. I agree with Crown counsel that the imposition of a 5 month sentence under these circumstances is a clear demonstration of the trial judge’s restraint. Moreover, after a thorough review of all the mitigating and aggravating circumstances, the trial judge comments that he does not have any additional circumstances before him that would make it easier to impose a lesser disposition (Sentencing Reasons page 20 at lines 23-26). I find that Justice Stone was very much alive to his duty to consider all possible sanctions when sentencing this first offender and did exercise judicial restraint in doing so.
Did the trial judge err in imposing a conditional sentence?
[45] I can find no error in the trial judge’s analysis in rejecting the conditional sentence. On the contrary I find Justice Stone’s analysis to be through and well-reasoned, leaving no basis for appellate interference.
Did the trial judge err in failing to consider the appellants time on restrictive bail?
[46] On June 13, 2012, the Appellant was released on a house arrest bail. Four months later, that house arrest condition was varied and the appellant was placed on a curfew condition.
[47] The Appellant asks this court to find that the trial judge erred in not taking the bail conditions into account. To support that argument, he relies heavily on the case of R. v. Downes (2006), 2006 3957 (ON CA), 205 C.C.C. (3d) 488, [2006] O.J. No. 555 (C.A).
[48] The failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle (R. v. Downes).
[49] This case is similar to Downes in that the defence counsel at trial did not make any submissions suggesting that the appellant should be given credit for these bail conditions at the sentencing hearing.
[50] That however is where the similarities end.
[51] Mr. Downes was on a house arrest bail for 18 months, as compared to the 4 months in the Appellant’s case.
[52] Mr. Downes’ house arrest condition did not allow for an employment exception. The Appellant was allowed to work outside the home and to his credit he was able to hold down two jobs while on bail. In addition to work, the Appellant was able to attend for counselling on a regular basis. On the record before me, the bail conditions and the impact they had on the Appellant, were on the least stringent end of the scale. Moreover, I am mindful that this was not a contested bail hearing; the appellant consented to the release conditions. I am also alive to the fact that the Appellant at the time of this release was already out on bail for domestic assault involving the same victim. This puts him in a fundamentally different position than an individual in a Crown onus situation who has a contested bail hearing.
[53] In my view, having regard to all of the circumstances in this case, an appropriate credit for 4 months spent on bail under a house arrest condition is 30 days. I find that the balance of the bail spent under a curfew condition does not warrant any credit.
[54] Accordingly, I would grant leave to appeal, allow the appeal from sentence and reduce the sentence for public mischief from 4 months and 27 days to 3 months and 27 days; leaving the Appellant with 61 days left to serve. In all other respects, I would dismiss the sentence appeal.
(Original signed by Madam Justice Wright)
Madam Justice K.P. Wright
Released: May 20, 2015
CORRIGENDA
- Citation – the citation number has been changed from 2454 to 3213.