ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 128/13
DATE: 2015-07-30

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

Mohamed Jalloh

Appellant

Natalie M. Boivin, for the Crown

Mohamed Jalloh, Self-Represented

HEARD: July 17, 2015

DECISION ON APPEAL

GAUTHIER, J.

1Mohamed Jalloh (the “appellant”) appeals from the conviction entered on August 29, 2013, and the sentence imposed against him by Justice G.N. Glaude, of the Ontario Court of Justice, on September 26, 2013.

2The following are the grounds for the appeal as set out in the notice of appeal:

(a) On the question of law, the learned trial judge erred in barring the complainant from being asked about the 4 month delay in reporting the incident to the police for a second time, having already offered a statement to the police on the night of the incident. This prevented the Appellant and his appointed counsel from cross-examining the complainant on part of her evidence relevant to her credibility.

(b) The learned trial judge erred in failing to clearly articular and assess the credibility of witnesses pursuant to WD. The trial version of Ryan Williamson’s evidence could not be true in light of the complainant’s version of events. Rather, Mr. Williamson’s initial version of events, as noted in the police report, is more logical and coherent in light of the circumstances of this case. This error affected the outcome of this case and impacted the Appellant’s ability to receive a fair trial.

(c) The learned trial judge erred in sentencing the Appellant to a suspended sentence. Given the Appellant’s personal circumstances (i.e. immigration status in Canada, admission to law school and his lack of criminal antecedents) a suspended sentence was an unduly harsh sentence in the circumstances of this case.

3The relief sought is:

(a) That the conviction be quashed, the appeal granted, and an acquittal entered.

(b) In the alternative, that the appeal be granted and a new trial ordered.

(c) In the further alternative, that the appeal be granted and the sentence reduced.

Facts

4The facts relate to events which occurred in the early morning hours of September 18, 2011, in the City of Greater Sudbury.

5Both facta refer extensively to the facts, and the dispute between the appellant and the respondent centers around the delay between the events of September 18, 2011, and the complaint to police by the complainant (who, on September 18, 2011, advised police that nothing untoward had transpired between herself and the appellant), as well as the evidence of the witness Ryan Williamson.

6At approximately 1:00 a.m. on September 18, 2011, the appellant and the complainant were outside their residence at Antiganish Co-Op, in the city of Greater Sudbury. According to the witness Villeneuve, she was awakened by the couple screaming and yelling at each other. She observed them pushing each other and throwing things in and out of a vehicle. They appeared angry.

7Villeneuve called 911.

8According to the complainant's testimony at trial, the appellant got into his vehicle and was fastening his seat belt when she went to the passenger side of the vehicle, opened the door and was leaning on the inside of the front passenger door when the appellant accelerated and set the vehicle in motion.

9The complainant yelled at the appellant, but he accelerated twice more while she was hanging on to the inside of the passenger door. After the third time, the complainant could no longer hold on to the vehicle. She fell, hitting her head and injuring her elbows and knees.

10The appellant drove around the circular drive back to where he had been parked and stopped his vehicle. According to his testimony, he heard a bang after he had put his vehicle in motion. He stopped the vehicle and made a statement to the effect that he had not seen the complainant at his vehicle before she fell.

11Police attended the couple's residence. The complainant had changed her clothing she said because she did not want the police to see that she had been injured. When questioned by police, both parties denied that there had been any altercation or any trouble at all.

12The following day, the complainant went to hospital where her injuries were photographed. She also visited another resident in the Antiganish Co-Op, Norbert Delisle, and she showed him her injuries. Delisle testified that he observed the complainant's bruises on her elbows and knees and a bump on her head. He said that the complainant was upset and crying.

13The complainant did not report the incident to police for some four months after the event.

14The appellant was charged with assault with a weapon and dangerous driving.

15The only witness to the complainant falling from the vehicle was Ryan Williamson. He testified that he observed the complainant to be "stuck" to the vehicle on the passenger side:

I know somehow she was attached to the vehicle somehow. I don't know if she went to lean in the window or if her clothes got caught but he started to drive away. She was stuck. And when they got to the bend, she fell to the ground and the door was open. He continued around the co-op, went back, stopped.

(p. 30, line 28)

16At trial, the appellant testified that there was no argument or altercation on September 18, 2011. His testimony suggests that he was not aware that the complainant was in the vehicle or attached to the vehicle somehow when he put the vehicle in motion. His evidence suggests that he did not see her in or at the vehicle, and that he only became aware that she had fallen after he heard a "bang". (p. 28, line 12).

17The appellant suggested that the complainant fabricated the event. “Every time she is unhappy she makes up stories.” (p. 33, line 22).

18The trial judge acquitted the appellant of the assault charge but found him guilty of dangerous driving. He suspended the passing of sentence and placed the appellant on probation for a 12 month period.

Appellant’s Position

19The appellant was prevented from cross-examining the complainant about the four month delay between the date of the alleged offence and her complaint to police.

20The trial judge did not conduct a proper W.(D.) analysis.

21The evidence of Ryan Williamson about the passenger door being open should not have been accepted by the trial judge, as it contradicted the earlier statement he had given to police.

22The trial judge made improper negative inferences about the appellant's actions on the night in question.

23The sentence imposed by the trial judge was unduly harsh in the circumstances (lack of a criminal record, his education, his immigration status).

24The appellant has tendered what he characterizes as fresh evidence:

(a) a copy of the Information;

(b) a photograph of the driver's door of the vehicle;

(c) a copy of the witness statement of Ryan Williamson, taken by Constable G. Smuland;

(d) a copy of the General Occurrence Report prepared by Constable M. Brunette on the night in question; and

(e) a copy of an e-mail message from the appellant to Constable G. Smuland enclosing an earlier email message from the appellant to his landlord advising of his intention to terminate the tenancy at the co-op.

Respondent’s Position

25The scope of questioning of the complainant regarding the delay in reporting was limited at the insistence of defence counsel. That was a strategic decision on the part of counsel.

26Although the W.(D.) test was not explicitly cited in the judge's reasons, he nonetheless did conduct a proper analysis. The trial did not reject the appellant's evidence in its entirety, but it did not raise a reasonable doubt. The judge concluded that the Crown had discharged its burden of proof beyond a reasonable doubt.

27The suspended sentence and 12 months’ probation was reasonable in the circumstances. The appellant has not demonstrated that it was unduly harsh.

28The “fresh evidence” tendered by the appellant is neither admissible evidence, nor does it satisfy the test set out in R. v. Palmer, 1979 8 (SCC), [1980 1 S.C.R. 759.

Analysis

29I will begin by dealing with the “fresh evidence” tendered by the appellant.

30The Information is not evidence. It is purely a document reflecting the charges that an accused person has to answer to.

31The other documents tendered by the appellant might have been admissible, however, the appellant has not met the Palmer test: the evidence should not be admitted if, by due diligence, it could have been adduced at trial; the evidence is relevant, i.e., it bears upon a decisive or potentially decisive issue; the evidence must be reasonably capable of belief; and, the evidence must be such that, if believed, it could reasonably be expected to have affected the result of the trial when considered with the other evidence adduced at trial.

32The photo of the door of the vehicle could have been obtained and produced at the trial.

33The witness statement of Ryan Williamson was disclosed, but was not evidence at the trial. The viva voce evidence of Ryan Williamson was the evidence. The discrepancy, if any between the contents of the evidence and the witness statement will be discussed later in these reasons.

34The general occurrence report is not properly admissible as fresh evidence. Even if the contents of the report were accepted, at best, it simply confirms that the complainant delayed her disclosure of the events of September 18, 2011, to police for a four month period. The report merely reflects what the appellant told police that night.

35The email from the appellant to Constable G. Smuland is also not admissible. It could have, with due diligence, been tendered at trial, if deemed relevant, which I conclude it is not. It has no bearing on the issue of whether or not the Crown discharged its onus of proof at trial.

36I will turn now to the general principles applicable to summary conviction appeals and to the issues identified in this appeal.

Standard of Review and Misapprehension of the Evidence:

37R. v. Boily, 2015 ONSC 4427:

27The standard of review on a summary conviction appeal is whether, based upon the evidence, the decision made by a trial judge is a finding that COULD have been reasonably reached. A court sitting on appeal should only allow an appeal of the decision if:

a. the decision cannot be supported by the evidence, or it is clearly wrong in law, or

b. it is clearly unreasonable, or

c. there was a miscarriage of justice.

R. v. Rivera, 2011 ONCA 225, [2011] O.J. No. 1233 (Ont.C.A.) paragraph 32 (my emphasis).

28Where a misapprehension of the evidence is alleged, appellate interference is only warranted where the misapprehension is material rather than peripheral to the reasoning of the trial judge. The error must play an essential part of, not only the narrative, but of the reasoning process which resulted in the acquittal. A mere misstatement of or an inaccuracy in the trial judge’s treatment of the evidence does not constitute reversible error. A misapprehension of evidence may refer to a failure to consider evidence relevant to a material issue, a mistake concerning the substance of the evidence, or the failure to give proper effect to the evidence. R. v. C.R., 2010 ONCA 176, [2010] O.J. No. 911 (C.A.) at paras. 29 to 32. R. v. Morrisey, 1995 3498 (ON CA), [1995] O.J. No. 639 (C.A.) at para. 83. R. v. C. L. Y., 2008 SCC 2, [2008] S.C.J. No. 2 at para. 19. R. v. J. H., 2005 253 (ON CA), [2005] O.J. No. 39 (C.A.) at para. 46.

29On matters of credibility and on factual matters, the reviewing court ought to afford due deference to the advantageous position of the trial judge who heard and saw the evidence.

38The appellant submits that the trial judge misapprehended the evidence and complains specifically about the following: (i) the curtailing of the cross-examination of the complainant about the delay in reporting; (ii) Ryan Williamson's testimony at trial that he observed the passenger door to be open is contrary to what he told police in his earlier statement and, the failure to articulate and apply the W.(D.) inquiry.

The Restriction on Cross-examination of the Complainant

39It was defence counsel who objected to the Crown's attempt to elicit the reason for the complainant having delayed her report to police for four months. He objected on the basis of relevance. One has to assume that that was a reasonable strategic decision by defence counsel. The competence of counsel was not raised on the appeal, and cannot be raised at this time. The appellant is bound by the decision that was made during the trial.

40Furthermore, and just as importantly, the trial judge DID consider the delay and DID explicitly examine how that delay would impact on the complainant's credibility. He acknowledged that the complainant had given two different statements to the police: one on the night of the events, when no complaint is made, and the complaint to police four months later.

41At p. 98, commencing at line 18 and continuing at p. 99, lines 1-3, of the judge's reasons for judgment, there is the following exchange between the appellant and the trial judge:

“MOHAMED JALLOH: So that’s what I’m asking this court, the fact that the complainant in this case made a statement to the police at the night in question, I’m asking this court not to ignore those statements or tender them into evidence. THE COURT: I’m not going to ignore those statement(s) but certainly not because of your case. I’ve not seen the case. A case dealing with a statement by an accused to police has nothing to do with the fact that a complainant gives a statement, and what I’m saying to you is, yes, I know she gave two statements. That will affect her credibility. I will take that into consideration in assessing her credibility. Is that what you mean?

MOHAMED JALLOH: That’s what I mean.

THE COURT: Bang ̶ right on. I will take that into consideration.

42This ground of appeal fails.

The Evidence of Ryan Williamson

43Despite the complaints by the appellant, there is no inconsistency between the statement given by this witness to police and his testimony at trial. His statement indicates that when the appellant put the vehicle in motion “Fatima was stuck to the vehicle”. I have, in paragraph 14, set out his testimony at trial to the effect that the complainant was “stuck” to the vehicle.

44In his statement, Ryan Williamson told Constable G. Smuland that “he was not sure if she was trying to lean into the window or open the door”. At trial he said “I don't know if she went to lean in the window or if her clothes got caught but he started to drive away.” (p. 30, line 29).

45Constable G. Smuland indicated in his testimony that he “did not solicit the answer to the question in regard to was the door opened or closed.” (p. 69, line 17). In other words, Ryan was not specifically asked by Constable G. Smuland, during the giving of the witness statement, whether he had observed the front passenger door to have been open or closed.

46Ryan Williamson was very clear at trial that the passenger side of the vehicle was facing away from him until the appellant came “around the bend”, at which time he saw that the passenger door was open. He was “sure” about that. (p. 62, line 5).

47Ryan Williamson was not only cross-examined on his observations of the location of the complainant at the vehicle and the position of the front passenger door, he was recalled as a witness by the appellant. His evidence was clear: when the appellant's vehicle came around the bend, at which time the passenger side of the vehicle was facing Ryan Williamson, he observed the door to have been open.

48There was no inconsistency in the evidence of Ryan Williamson, even when contrasted with his earlier statement. There was no basis upon which the trial judge could properly have rejected Ryan Williamson's testimony.

49This ground of appeal fails.

The W.(D.) Analysis

50Verdicts of guilt should not be based on whether or not the trier of facts believes the defence evidence or the Crown's evidence.

51Rather 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, at p. 361). See para. 6 of R. v. C.L.Y. 2008 SCC 2, [2008] S.C.J. No. 2.

52There was a strong evidentiary basis upon which the trial judge could have found the appellant guilty of dangerous driving. In addition to the complainant's evidence, there was the eyewitness evidence of Ryan Williamson, and the evidence of Norbert Delisle about the injuries sustained by the complainant, in addition to the photographs depicting those injuries.

53Notwithstanding the appellant's position that the complainant's testimony about having opened the front passenger door being “a fabrication”, that's something she cooked up “after the incident" (p. 48, line 27), the judge had the direct evidence of Ryan Williamson. The appellant's testimony that he was never aware of the complainant being present at the vehicle before she fell is simply not believable in the face of the evidence of the complainant and of Ryan Williamson. The trial judge properly rejected that portion of the appellant's evidence as he was entitled to do.

54He was not required to review all of the corroborating evidence, nor was he required to specifically refer to the W.(D.) test. As indicated at paras. 39 and 40 of the respondent's factum:

The Learned Trial Judge did not weigh competing versions of events, nor did he base the findings of guilt on a rejection of the appellant's evidence. Rather, he appropriately assessed the Crown's case and found that the Crown had met its onus.

As explained by the Supreme Court of Canada in R. v. C.L.Y., W.D. is not a sacrosanct formula that serves as a straitjacket for trial courts. Trial judges deliver oral judgments every day and often limit their reasons to the essential points. It would be wrong to require them to explain in detail the process they followed to reach a verdict. They need only give reasons that the parties can understand and that permit appellate review.

55This ground of appeal fails.

The Judge’s Negative Inferences

56The appellant suggests that the trial judge made negative inferences about the appellant's intentions regarding his marriage to the complainant. The inference appears to be that those negative inferences somehow tainted the judge's reasoning process.

57The transcript does not support the appellant's complaint. At p. 102 of his reasons, the trial judge says the following:

“So what happens is, and I find, that he’s leaving, he wants to get in the car and go, and you’re right, the timing is perfect for him to get into Ottawa obviously. But, the fact of the matter is things change when she gets outside. She’s on the passenger side and frankly, I find that all this gentleman wanted to do was to get out of there. He didn’t want a conflict but she’s there on the passenger side and she’s giving him a hard time about whatever – whether it’s things that (are) in the car – whatever. Mr. Jalloh decides to leave.”

58The trial judge found that the appellant's intention on September 18, 2011, was to leave the couple's home for Ottawa without conflict.

59The appeal from conviction fails.

The Sentence Appeal

60At the conclusion of the trial, the appellant was granted an adjournment in order to research the issue of sentencing.

61The appellant sought a conditional discharge and submitted that a probation order would adversely affect his immigration status as a conventional refugee. He could not produce any evidence to support that submission.

62Section 36(1) of the Immigration and Refugee Protection Act provides that “serious criminality” is a ground of inadmissibility for a permanent resident, where the person is convicted of an offence punishable by at least 10 years of imprisonment, or where a term of incarceration of more than six months has been imposed. A conviction for dangerous driving attracts a maximum sentence of five years if the Crown proceeds by Indictment. In this case, the Crown proceeded summarily, which means the maximum penalty on conviction could have been six months. The Crown suggests that it is unlikely that the appellant's immigration application would be adversely affected by the sentence imposed by the trial judge.

63The respondent argued that a conditional sentence was not appropriate in the circumstances, given the nature of the incident, the injuries sustained, and the lack of remorse on the part of the appellant.

64The appellant has failed to establish that the sentence was unfit or harsh in the circumstances.

65The appeal from sentence fails.

Conclusion

66The appeal from conviction and sentence is dismissed.

The Honourable Madam Justice Louise L. Gauthier

Released: July 30, 2015

COURT FILE NO.: 128/13
DATE: 2015-07-30

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

Mohamed Jalloh

Appellant

DECISION ON APPEAL

Gauthier, J.

Released: July 30, 2015