ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 129/14
DATE: 20150807

ONTARIO
SUPERIOR COURT OF JUSTICE

RE: Her Majesty the Queen v. Tshepho Onyaditswe

BEFORE: K.L. Campbell J.

COUNSEL: Megan Petrie, for the Crown, respondent

Taufiq Hashmani, for the accused, appellant

HEARD: June 8, 2015

ENDORSEMENT

[Summary Conviction Appeal]

A. Introduction

[1] The appellant, Tshepho Onyaditswe, was charged with two counts of assault, two counts of assault with a weapon, and one count of sexual assault. The offences were all allegedly committed by the appellant in the context of his domestic relationship with the female complainant.

[2] The appellant was tried by the Honourable Mr. Justice B. Cavion of the Ontario Court of Justice. The trial judge heard from only two witnesses, the complainant and the appellant. The case turned entirely upon the credibility of the two witnesses and the trial judge’s application of the burden of proof in accordance with the principles outlined in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, at pp. 757-758. After hearing the brief closing submissions of counsel, the trial judge delivered oral reasons for judgment concluding that the appellant was not guilty of the charge of sexual assault, but was guilty of the remaining four offences.

[3] The appellant then pled guilty to an additional charge of breaching his recognizance by communicating with the complainant when he was obliged to abstain from such communication.

[4] Recognizing that the appellant had already spent a total of six months and 11 days in custody on these charges, the trial judge imposed the sentence jointly proposed by counsel, namely, one day in jail and a one year period of probation, concurrent on all charges. However, he refused the accused’s request to apportion the time served in pre-trial custody across the various offences.

[5] The appellant now appeals against both his conviction and sentence.

B. The Appeal Against Conviction

1. Introduction

[6] With respect to the appeal against conviction, defence counsel advanced four arguments. First, he argued that the trial judge erred in failing to consider whether the Crown had established a lack of consent on the part of the complainant as one of the essential elements of the assault offences. Second, he argued that the trial judge erred in failing to consider whether the Crown had established that the appellant was not acting in self-defence. Third, he contended that the trial judge misapprehended some of the evidence provided by the appellant. Finally, defence counsel urged me to conclude that the reasons for judgment provided by the trial judge were legally insufficient in that they failed to explain why the trial judge had reached the conclusions he did regarding the verdict. For the following reasons, I reject each of these arguments.

2. Consent and Self-Defence

[7] The first two grounds of appeal can be conveniently dealt with together. The trial judge did not expressly consider the issues of consent or self-defence in his reasons for judgment. The appellant argued that the trial judge was bound to consider these issues as, at one point in his reasons for judgment, the trial judge mentioned that he suspected that “on a few occasions [the complainant] gave as good as she got” from the appellant in relation to their fights. I see no error on the part of the trial judge in this regard. There was no suggestion by the appellant that he had ever been acting in self-defence, or that the complainant had consented to his assaultive conduct. Moreover, at trial, counsel for the appellant did not raise either argument on behalf of the appellant. In addition, the complaint’s evidence, which the trial judge accepted, established that she did not consent to the assaultive conduct by the appellant, and established that the appellant did not act in self-defence. See R. v. J.B., 2004 BCCA 342, [2004] B.C.J. No. 1234, at para.14. The mere fact that, on other occasions, not forming part of the allegations before the court, the complainant may have assaulted the appellant as much as the appellant assaulted her, did not require the trial judge to engage in any further consideration of these issues in relation to the counts before the court.

3. Misapprehension of Evidence

[8] I do not accept that the trial judge significantly misapprehended the testimony of the appellant as to the nature of his relationship with the complainant. In concluding that he had “no doubt” that the alleged assaults took place, and similarly had “no doubt” that the alleged incidents involving the appellant assaulting the complainant with the “pot lid” and with the “cord” took place, the trial judge rejected the denials of the appellant on the basis that they did “not ring true.” In drawing his conclusions in this regard, the trial judge indicated that he did “not believe for a moment that things were lovey-dovey and hunky-dory” between the appellant and the complainant, as the appellant suggested in his evidence, and that “it was all fabrication” on the part of the complainant. While the appellant certainly did not use those precise terms to describe his relationship with the complainant, in my view this was not an inaccurate characterization of the overall tenor of the appellant’s evidence. See R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at pp. 538-541; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2; R. v. Wadforth 2009 ONCA 716, 247 C.C.C. (3d) 466, at paras. 79-81; R. v. M.C., 2014 ONCA 307, 318 O.A.C. 354, at paras. 31-33; R. v. S.J., 2015 ONCA 97, 124 O.R. (3d) 595, at paras. 72-73, leave denied, [2015] S.C.C.A. No. 146; R. v. Bonnington, 2015 ONCA 122, [2015] O.J. No. 830, at para. 12; R. v. Abdullahi, 2015 ONCA 549, [2015] O.J. No. 3944, at para. 6.

4. The Legal Adequacy of the Reasons for Judgment at Trial

[9] I also reject the appellant’s argument that the reasons for judgment provided by the trial judge are legally inadequate. Viewed from a functional and context-specific approach, and read in their entirety, against the evidentiary background of the case, and the live issues in this case, the reasons for judgment delivered by Cavion J. adequately explain why the appellant was convicted, provide public accountability for the verdict, and permit effective appellate review of the decision. See R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 24-28, 46-52, 55; R. v. Braich, 2002 SCC 27, [2002] 1 S.C.R. 903, at para. 31; R. v. Gagnon, 2006 SCC 17, at paras. 12-16, 19; R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, at paras. 19-23; R. v. R.E.M., 2008 SCC 51, at paras. 15-57; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at paras. 24-35; R. v. A.J.S., 2011 ONCA 566, 106 O.R. (3d) 586, at paras. 12-13; R. v. T.S., 2012 ONCA 289, 284 C.C.C. (3d) 394, at paras. 45-46, 75-80; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at paras. 9-15, 19; R. v. F.C., 2015 ONCA 191, [2015] O.J. No. 1437, at paras. 27-36.

C. The Appeal Against Sentence

[10] With respect to the appeal against sentence, defence counsel argues that the trial judge failed to properly consider the potential immigration consequences for the appellant as required by R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739. At trial, defence counsel obliquely suggested that, if the trial judge were to “split up the time served between the counts” this would result in effective sentences of less than six months, and might avoid the deportation of the appellant. Presumably, defence counsel was alluding to the fact that certain provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 36(1)(a) and 64(2), define “serious criminality,” which may lead to inadmissibility and other negative immigration consequences, as being convicted of a crime that has been punished in Canada by a “term of imprisonment” of “more than six months, or “at least six months.”

[11] According to the “fresh evidence” materials provided on the appeal, it appears that the Canada Border Services Agency has determined that it “will not be proceeding with removal action at the present time.” At the same time, the appellant has been warned that this decision “may be reviewed in the future” in the event of further information or further criminal convictions, and could result in the appellant’s “removal from Canada.”

[12] In any event, the Crown has fairly conceded that the appellant’s sentence appeal should be allowed so as to more accurately and evenly apportion the pre-sentence custody served by the appellant across his various convictions. I agree. See R. v. Pinas, 2015 ONCA 136, [2015] O.J. No. 941. In the result, while the formal sentence imposed upon the appellant remains the same, the pre-sentence custody served by the appellant (i.e. six months and 11 days) shall be apportioned equally amongst the appellant’s four convictions for the assault-based offences.

D. Conclusion

[13] In the result, the appeal by the appellant against his conviction is dismissed. However, with respect to his sentence appeal, the appeal is allowed, but only to the extent that the pre-sentence custody served by the appellant (i.e. six months and 11 days) will be apportioned equally amongst the four assault-related convictions. The sentence appeal is otherwise dismissed. An order shall issue accordingly.

Kenneth L. Campbell J.

Released: August 7, 2015